The Constitutional Court found no 44 / 2014 Coll.
The Constitutional Court's finding of 28 January 2014, sp. zn.
Valid
44
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 49 / 10 on 28 January 2014 in plenary composed of Stanislav Balík, Ludvík David, Jaroslav Fenyk, Jan Filip, Vlasta Formánková, Ivana Jan, Vladimir Křirka, Jan Musil, Pavel Rychetský, Vladimir Sládeček, Radvan Sukánek, Kateřina Šimáková (Judge of the Rapporteur), Milada Tomková, Jiří Zemánek and Michaela Židická, on the proposal of the District Court of the Parliament of the Czech Republic, pursuant to Article 95 (2) of the Constitution of the Czech Parliament of the Czech Republic as participants in the proceedings
as follows:
I. Motion denied.
II. The interpretation of the word "may" in Article 153b (1) of Act No. 99 / 1963 Coll., the Civil Code, as amended by Act No. 7 / 2009 Coll., amending Act No. 99 / 1963 Coll., the Civil Code, as amended, and other related laws, must fulfil the purpose of the regulation of the judgment in order to be late and respect the procedural equality of the parties; This means, inter alia, taking into account these principles even in the case of the assessment of the conditions of service under Section 49 (4) of Act No. 99 / 1963 Coll., Civil Code, as amended by Act No. 7 / 2009 Coll., amending Act No. 99 / 1963 Coll., Civil Code, as amended, and other related laws.
Reasons
Definition of the case
1. The District Court in Děčín ordered, on 8 October 2010, the hearing to which it called the applicant through his lawyer and the defendant by the procedure for service provided for in § 45 et seq., Act No. 99 / 1963 Coll., Civil Code, as amended, (hereinafter referred to as "o.s. ').
2. On 8 October 2010, only the plaintiff came to the hearing of the District Court in Decin. The defendant did not show up for the hearing without any excuse. Therefore, in accordance with Article 153b (1) (c) of the EC Treaty, the applicant's legal representative proposed the issue of a judgment by default (hereinafter referred to as the "contumation judgment '). The defendant was served in accordance with § 49 (4) o. s. s. (i.e. the so-called" replacement service').
3. However, the District Court of Decin did not rule by a judgment of default, although in its view all the statutory conditions for its extradition were fulfilled, as it concluded that the provisions of § 153b (1), (4) and (5) o. s. CS are contrary to the constitutional order of the Czech Republic, namely the principle of equality of parties. For this reason, the District Court in Děčín suspended the proceedings and submitted to the Constitutional Court an application pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') for the annulment of § 153b (1), (4) and (5) o. s. s.
4. The Constitutional Court has received an application pursuant to Article 95 (2) of the Constitution of the Czech Republic for the annulment of § 153b (1), (4) and (5) o. s. s., delivered on 16 November 2010.
Arguments of the appellant
5. According to the appellant, Article 153b (s) (or paragraphs 1, 4 and 5 thereof) is contrary to the principle of equality of parties, enshrined in Article 96 (1) of the Constitution of the Czech Republic, Article 37 (3) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), Article 6 (1) and Article 14 of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as" the European Convention on Human Rights' or "ECHR ') and Article 14 of the International Covenant on Civil and Political Rights.
6. According to the appellant, the main argument for the annulment of § 153b CS is that the judgment of default can only be given in favour of the plaintiff, whereas the defendant does not enjoy that privilege. This means that if, under the same conditions, the applicant does not appear for the ordered hearing, the defendant cannot propose to the court the judgment to be delivered by default, stating that the defendant's claim in his observations on the action (or at the hearing) on the facts relating to the dispute would be considered undisputed. The applicant's party thus has a procedural advantage without any compensation to the defendant in the proceedings. Thus, according to the appellant, the defendant is placed in a significantly less favourable situation than the claimant, which is contrary to the principle of equality between the parties [Decin County Court refers here to the finding of sp. zn. Pl. ÚS 15 / 01 of 31.10.2001 (N 164 / 24 CollNU 201; 424 / 2001 Coll.) and the finding of sp. zn. III. ÚS 202 / 03 of 13.11.2003 (N 134 / 31 SbNU 193)].
7. In support of its proposal, the appellant also made a historical argument. According to him, by default the judgment reintroduced in the form of § 153b o. s. o., in the Czech legal order on 1 September 1993 is contrary to the traditional concept of the contusion judgment in our territory. Law No 113 / 1895, on judicial proceedings in civil matters of law (civil order of the court), as amended by the regulations amending it and supplementing it by 31.12.1947, (hereinafter referred to as "c. c. s. '), already knew the Institute of Contumation Judgment (judgment in cases of omission), which, however, respected the equality of the parties, as the contention threatened both parties. In particular, § 396 c. CS stated that:" If the applicant or the defendant is missing for the first year, it is necessary to refer to the parties to the facts relating to the subject matter of the dispute as being true if it is not refuted by the evidence submitted and, on this basis, to decide on the application by a judgment of default' (emphasis added). The following section 397 c. S. then read as follows: "For written interpretations sent over a party which did not appear, do not be seen..."
8. The appellant further referred to the Austrian and German provisions of the judgment by default. In Austria, although amended many times, the abovementioned civil order of 1895 is still effective, including the modification of the judgment by default (§ 396 to 403 ÖZPO). The modification of the failure of both parties includes the German Civil Procedure Code (Zivilprozessordnung, hereinafter referred to as "ZPO '), in § 330 to 347; Therefore, both the misconduct of the defendant (Säumnis des Beclagten, § 331 ZPO), which is regulated in a similar manner to that of the Czech PO, and the misconduct of the plaintiff (Säumnis des Klägers, § 330 ZPO). However, there is a difference here from the Austrian regulation in the fact that if the applicant does not appear to be heard or did not act in the case (Section 333 of the SCO), although it has been duly served, his action is dismissed without a substantive review.
9. In its proposal, the appellant referred to the contested provisions as only the first, fourth and fifth paragraphs of § 153b................................ The appellant therefore did not challenge the second paragraph of § 153b o. s. s., although it is, in its view, unconstitutional, since that paragraph is not directly applicable to the present case, as is the condition of "immediate applicability 'within the meaning of Article 95 (2) of the Constitution, the Constitutional Court interpreted [the appellant referred to the resolution sp. zn. Pl. Pl. ÚS 39 / 2000 of 23.10.2000 (U 39 / 20 SbNU 353) and the resolution sp. (Pl. ÚS 20 / 02 of 28.11.2002 (U 42 / 28 SbNU 477)]. As regards the third paragraph of § 153b o. s. s., the appellant is of the opinion that this paragraph is constitutionally conformal.
Observations of the Chamber of Deputies and Senate of the Parliament of the Czech Republic
10. The Constitutional Court in accordance with the provisions of Sections 42 (4) and 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court) sent the present application for the annulment of the contested provisions to the Chamber of Deputies and the Senate of the Parliament of the Czech Republic. In accordance with point 3 of the Notice of the Constitutional Court published under No 469 / 2012 Coll. The Constitutional Court did not call on the Government of the Czech Republic or the Ombudsman to comment within the meaning of Article 69 (2) and (3) of the Constitutional Court Act.
Statement by the Chamber of Deputies of the Parliament of the Czech Republic
11. The Chamber of Deputies in its observations of 30 June 2011, signed by President Miroslava Nemcová, took note of the process of adopting Act No. 171 / 1993 Coll., amending and supplementing the Civil Code, which introduced a judgment to be late and its three amendments. In particular, it referred to the explanatory memorandum to Act No. 171 / 1993 Coll., according to which the then legislator preferred the solution used in Slovakia (which supported Hungarian law) when drafting the judgment by default, which only allows the defendant to issue the judgment by default if the first hearing is missed. This was justified by the legislature at the time by the fact that the acceptance of the judgment in order to miss both the applicant and the defendant would create an unequal position of the parties, since, if the defendant had missed the hearing, he was aware of not only the subject-matter of the action previously served, but also of the applicant's arguments and of the evidence offered to the court to prove his claims. Should the judgment be allowed in order to miss the plaintiff, a party who does not know the defendant's position in advance and has not been able to respond to the claim that the defendant will only present at the hearing. In addition, the explanatory memorandum to Law No 171 / 1993 Coll. in relation to § 153b o. s., pointed out that, even if the defendant is not present for the first hearing and the applicant proposes to the court to rule by a judgment of default, the court may not comply with the application.
12. Furthermore, the Chamber of Deputies stated that it acted as legislature in the belief that the laws adopted were in accordance with the Constitution and our rule of law, but it is nevertheless up to the Constitutional Court to assess the constitutionality of Paragraph 153b (1), (4) and (5) (c) of the Chamber of Deputies also gave its assent to the abandonment of oral proceedings.
Statement by the Senate of the Parliament of the Czech Republic
13. The Senate stated in its observations of 27 June 2011, signed by President Milan Štěm, that the Senate had been established in November 1996 and therefore did not have the opportunity to comment on Act No. 171 / 1993 Coll., which introduced a judgment in order to be late. Since then § 153b o. s. has been amended three times, but the basic principle has remained unchanged and the Senate did not comment on the issue raised by the District Court in Děčín as part of the approval of the above three amendments of § 153b o. s. o. According to the Senate, it is therefore entirely up to the Constitutional Court to assess the constitutionality of the contested § 153b. The Senate also agreed to abandon oral proceedings.
Derogation of the contested legislation
14. The provisions of Paragraph 153b (s) shall read as follows:
(1) If the defendant, who was duly served in his own hands (Paragraph 49), was brought before the hearing at least ten days before the date on which the hearing was to be held and who had been informed of the consequences of the failure to arrive, without a reasoned and timely excuse for the first hearing which took place in the case, and if the applicant who came to the hearing so requests, the claims of the applicant in the action on the facts relating to the dispute shall be considered to be undisputed and the court may, on that basis, decide on the action by a judgment for failure.
(2) If, in one case, there are several defendants who have such common obligations that the judgment must apply to all (Paragraph 91 (2)), the judgment may be decided by default only if all those who have been duly sent to the hearing do not appear.
(3) A judgment by default cannot be given in cases in which a settlement cannot be concluded and approved (Paragraph 99 (1) and (2)), or would result in such a judgment giving rise to, modification or withdrawal of the legal relationship between the parties.
(4) If the defendant goes missing for reasons of appeal, the first hearing in the case in which the judgment was delivered by default, the court shall, on application by the defendant, revoke the judgment by order and order the hearing. Such an application may be made by the party by the date of the judgment by default at the latest.
(5) If, in addition to the application for annulment of the judgment of the Court of First Instance for the reasons set out in paragraph 4, the defendant has lodged an appeal against the judgment and the application for annulment of the judgment has been granted by a final order, the appeal shall not be taken into account. '
15. As mentioned above, only paragraphs 1, 4 and 5 of the provisions of Paragraph 153b (a) above are contested by the appellant, on the ground that only those three paragraphs of § 153b (a) are directly applicable to the matter referred to it under sp. zn.
16. The Constitutional Court was based on the wording of the provisions of § 153b o. s. s., § 49, paragraph 4 o. s. s., (governing the so-called replacement service or fiction of service), as introduced by Act No. 7 / 2009 Coll., amending Act No. 99 / 1963 Coll., the Civil Code, as amended, and other related laws, since this Act No. 7 / 2009 Coll., with effect from 1 July 2009, amended the provisions in question for the last time and is still in force as amended. It is the same text valid both at the time of the application by the District Court and at the time of the decision of the Constitutional Court.
Assessment of the jurisdiction of the Constitutional Court to discuss the application and the applicant's active legitimacy
17. The Constitutional Court had first to answer the question of whether it was responsible for dealing with the application. The conditions of active legitimacy in the procedure for specific control of standards were summarised by the Constitutional Court in resolution sp. zn. Pl. ÚS 37 / 10 of 18.12.2012 (available at http: / / nalus.ujud.cz):
"16. Before the Constitutional Court makes a substantive assessment of the application pursuant to Article 87 (1) (a) of the Constitution, it is obliged to examine whether it fulfils all the legal requirements required and whether the conditions for its hearing laid down in Law No 182 / 1993 Coll., on the Constitutional Court, as amended (hereinafter referred to as the Law on the Constitutional Court) are at all. Under Article 64 (3) of the Law on the Constitutional Court, an application for annulment of the law or its individual provisions is also entitled to be filed by the court in connection with its decision-making activities under Article 95 (2) of the Constitution. Article 95 (2) The Constitution states that if the court concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it shall bring the matter before the Constitutional Court.
17. The Constitutional Court must first address the question of whether the condition laid down in Article 95 (2) of the Constitution has been fulfilled, i.e. whether the appellant's alleged contradiction with the constitutional order concerns the law to be applied in the settlement of a case brought before the Regional Court in Hradec Králové, as it would have concluded that that condition would not have been fulfilled, the appellant would not have been actively justified or the application was made, by someone manifestly unjustified, as the provisions of Paragraph 43 (1) (c) of the Law on the Constitutional Court.
18. In the light of the conclusions of the Constitutional Court resolution sp. zn. Pl. ÚS 39 / 2000 of 23 October 2000 [Resolution sp. zn. Pl. ÚS 39 / 2000 of 23 October 2000 (U 39 / 20 SbNU 353), available at http: / / nalus.ujud.cz], the condition of the design permission of the court set out in Article 95 (2) of the Constitution is that the requirement of the repeal of the law should be directed against the one to be used in order of the matter ', whether the law, or its individual provisions, the application of which is to be immediate...', if applicable, is necessary, and not only hypothetical use, or other broader context of... '[cf. It follows from the purpose and purpose (specific) of checking the constitutionality of the legal standards that the law to be applied in the resolution of the case is only the one (or its provisions) which obstructs the achievement of the desired (constitutional) outcome; If it had not then been removed, the outcome before it would have been different.
19. It is up to the appellant, on the one hand, to put forward an adequate argument that the contested law (its individual provision) is contrary to the constitutional order (which the appellant has done), but also to point out and prove that the application of the contested provision is unavoidable and only the annulment of the contested provision will result in the achievement of the desired constitutional consensus result; A sufficiently clarified factual situation is also a prerequisite for such a claim. However, the last request was not fulfilled.
20. In addition to the above, the General Court, which proposes the repeal of the law (its provision), also has the obligation to interpret the contested provision to be applied in the proceedings before it, by interpretation primarily constitutionally conformal; The Constitutional Court concluded that there is no reason for the annulment of such a provision, if possible - among other things - of the interpretation which satisfies the requirement (i.e. the constitutional interpretation) [cf. sp. zn. Pl. The fact that such a constitutionally conformal interpretation would be available in the present case would then imply the possibility of assessing the proposal as "manifestly unfounded ', as expressed in Section 43 (2) (a) of the Constitutional Court Act.'
The above principles were set out in plenary of the Constitutional Court and in a number of other resolutions (e.g. Resolution sp. zn. Pl. ÚS 23 / 08 of 14.8.2008, sp. zn. Pl. ÚS 34 / 11 of 3.4.2012 and sp. zn.
18. In the present case, the application for annulment of Paragraph 153b of the Civil Code was brought by a general court in a situation where the defendant did not appear for the first hearing and, in response, proposed to issue a judgment by default. The question to which the Constitutional Court must now answer is whether, in view of the principle of equality between the parties, a judge of the General Court may, in accordance with Article 95 (2) of the Constitution, make his application relevant (1) only if the applicant does not participate in the proceedings and the defendant contends that, while his absence may have been the cause of the judgment being delivered by default, the court cannot, by analogy, simply react to the failure of the claimant (this situation in the case pending by the District Court in Decin Decin), or (2) even if the first hearing was brought by the plaintiff which subsequently proposed the judgment (as it had been dealt with in the case pending by the Court of the Court of Appeal). Only in the first situation is it clear that the possible annulment of the contested provision (provided that it is contradictory to the principle of equality of parties) would open the way for the adoption of such legislation, which would result in both the applicant and the defendant being able to reach a judgment on the subject. However, the objective of the equality of participants is not to create a possibility of issuing a contumation judgment for the benefit of both parties to the dispute - on the contrary, the principle of equality of participants would be fulfilled even if the legislator did not allow a contumation judgment to be reached by either party. Similarly, the principle of equality of participants would be fulfilled in a situation where the legislator would have imposed a penalty other than a contumation judgment in favour of the other party in the event of a failure to appear. The equality of the parties is therefore neutral to what the parties are equal in, and they only resolve whether they are equal. In other words, it is up to the legislator whether or not it will allow the judgment to be handed down. However, if it is anchored, the judgment must comply with the conditions arising from the principle of equality of participants; If that is not the case, the Constitutional Court shall be empowered to abolish and reopen the scope for the legislator to decide whether to establish a judgment which satisfies the requirement of equality of the parties to the proceedings, or decide not to re-establish it, or to choose a completely different alternative solution [e.g. to cover the costs of a failed conduct which is not a party to the proceedings or to decide on the status of the file on the date of such failure].
19. The Constitutional Court further observes that, in both cases indicated above, the position of the parties cannot be regarded as equivalent - in the first case because the defendant does not have the same procedural means available to the applicant (the defendant cannot do what the applicant does); in the second case, because the applicant has at his disposal a procedural instrument which the defendant does not have at his disposal (the applicant can do what the defendant cannot). In both cases Article 153b (1) (a) applies, in both cases it is an immediate application of that provision (i.e. its application is unavoidable and not only hypothetical) and only the annulment of the contested provision or a constitutional conformal interpretation balancing the position of the two parties would result in a desired constitutional outcome, since otherwise the District Court of Decin would have been obliged to enforce a judgment which, however, can only be rendered for the benefit of the applicant (see paragraphs 18-20 of the resolution in sp. v. ÚS 37 / 10 of 18 December 2012 cited above).
20. The Constitutional Court, when assessing the active legitimacy of the General Court to file an application for annulment of a law or provision thereof, was based on Article 95 (2) of the Constitution, which states that if the Court concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it shall bring the matter before the Constitutional Court and Article 64 (3) of the Law on the Constitutional Court, which lays down the authority of the Court to file a motion for annulment of the law or its individual provisions in connection with its decision-making. In the present case, it is common ground that the application of the contested provision is proposed by the applicant and therefore had to be dealt with by the court in a particular case. The purpose of the authorisation and, at the same time, the obligations of the General Court to present the law in force to the Constitutional Court, if the court concludes that the law is contrary to constitutional order, is to maintain the principle of internal unity and the integrity of the rule of law. As also pointed out in commentary literature, "[in the case] the conclusion on the infringement of the law with the constitutional order must therefore be interrupted by the General Court in the case and has a procedural obligation to bring the case (as a proposal for annulment of the law) to the Constitutional Court '(cf. Filip, J., Holländer, P. Šiměl, V. Law on the Constitutional Court. Comment. 2. revised and extended edition. Praha: C. H. Beck, 2007, p. 365). Therefore, where there is doubt as to the constitutionality of the provision of the law and at the same time the General Court does not dispel or dispel that doubt by considering the various interpretative alternatives or bring the matter to the decision of the Constitutional Court, it will infringe Article 1 (1), possibly Article 95 (2) of the Constitution. On the contrary, the Constitutional Court would, by refusing to provide assistance to the General Court by its decision on the constitutionality or unconstitutionality of the applicable law, infringe its obligations under Articles 95 (2) and 83 of the Constitution. Indeed, the overclosure and exclusivity of constitutional justice could be counterproductive, as it would reduce the possibility of" constitutional cultivation of general courts "(cf. Kühn, Z. Application of the law by a judge in the era of Central European communism and transformation. Analysis of the causes of the post-communist legal crisis. Praha: C. H. Beck, 2005, p. 146; In addition, Wagner, E. et al. Law on Constitutional Court with commentary. Praha: ASPI, a. s., 2007, p. 246 and 247).
21. On the basis of these considerations, the Constitutional Court has concluded that the proposal in question allows an assessment of the constitutionality of the existing regulation of the judgment by default, laid down in Article 153b of the Rules of Procedure, in terms of the equality of the parties, both in the context of a situation where only the defendant, who has not been able to propose a judgment by default, is able to propose a judgment by default, and in the context of the case before the District Court of Decin. In both cases, the Constitutional Court - if it found an amendment to the contention judgment contrary to the principle of equality between the parties - would have had to abolish the contested provision. In fact, under no circumstances can the Constitutional Court "compare" the procedural rights of the defendant to the level of the plaintiff and, in case-law, the defendant's right to propose that a judgment be delivered by default against the plaintiff, since he is not a positive legislator. Thus, the only way to achieve a constitutional conformity adjustment would be to abolish and re-open the legislature area or a constitutionally conformal interpretation balancing the position of both procedural parties. However, as pointed out above, such an arrangement would not necessarily require the possibility of reaching a contumation judgment for both parties; such a solution is only one of the alternatives (see paragraph 18 of this finding in fine).
22. It follows from the above that the application by the District Court in Děčín meets all the requirements laid down in Article 95 (2) of the Constitution, including the requirement of the applicant's active legitimacy for the standard control procedure.
Constitutional conformity of the legislative process of adopting the contested provisions
23. The Constitutional Court stated that Act No. 171 / 1993 Coll., which was incorporated into the Civil Code by the Institute of Judgement of Formalities, was adopted and issued within the limits of the constitutionally determined competence and the constitutionally prescribed manner.
Content compliance of the contested legal provisions with the constitutional order
24. The Constitutional Court had to deal with the scope of the proposal before taking a substantive assessment. The appellant challenged only § 153b (1), (4) and (5) (a) and expressly stated that it did not consider the second and third paragraphs of that provision. According to the appellant, the second paragraph is not directly applicable in the present case and the third paragraph considers the appellant to be constitutional.
25. The Constitutional Court is of the opinion, however, that § 153b o.s., which provides for the regulation of the judgment by default, constitutes a coherent and internally connected whole, that it cannot be divided into individual components and that compliance with the constitutional order can only be examined for some of them (i.e. paragraphs 1, 4 and 5). This is all the more true because the first paragraph of § 153b o. s. s., which is crucial for determining the conditions of application of the judgment by default. If the Constitutional Court accepted the scope of the proposal as defined by the appellant and, where appropriate, complied with it, it would then remain in the civil code of the "stump 'in the form of the second and third paragraphs of § 153b. The separate second paragraph (without the first paragraph being deleted) would even put the defendant in an even less favourable position than the existing regulation, since after the derogation of Paragraph 153b (1) CS, it would not, strictly speaking, have been necessary for the judgment to be delivered by default to comply with the condition of proper service of the action and the appeal to his own hands pursuant to § 49 CS, and the condition of proper instruction by the defendant of the consequences of failure to arrive and the defendant would not have been able to prevent the judgment being delivered by default by his apology of the ordered action. For this reason, the Constitutional Court considers it necessary to assess the constitutionality of the whole of § 153b o. s. s., and not only its first, fourth and fifth paragraphs [cf. Mutatis mutandis finding sp. zn. Pl. ÚS 16 / 09 of 19.1.2010 (N 8 / 56 SbNU 69; 48 / 2010 Coll.), paragraph 35].
General principles
26. The appellant finds § 153b o.s. contrary to Article 96 (1) of the Constitution of the Czech Republic, Article 37 (3) of the Charter of Fundamental Rights, Article 6 (1) and Article 14 of the Convention on the Protection of Human Rights and Fundamental Freedoms and Article 14 of the International Covenant on Civil and Political Rights.
27. Article 96 (1) of the Constitution of the Czech Republic provides that "the parties to proceedings shall have equal rights before the courts." Article 37 (3) of the Charter of Fundamental Rights contains a similar wording: "All parties are equal in the proceedings." Article 6 (1) of the ECHR explicitly does not mention the equality of the parties, but the European Court of Human Rights (hereinafter "the ECHR ') stated in its caselaw that the principle of equality of arms is part of the right to a fair hearing (cf. Kmek, J., Košák, D., Kratochčíl, J., Bobek, M. European Convention on Human Rights. Comment. Praha: C. H. Beck, 2012, p. 737-740; and Molek, P. Right to a fair trial. Praha: Wolters Kluwer, 2012, p. 236-253). Article 14 of the ECHR then provides for an action ban on discrimination. Finally, Article 14 (1) of the International Covenant on Civil and Political Rights provides that" all persons are equal before the courts. "
28. The Constitutional Court has repeatedly held in its caselaw that the principle of equality between the parties is part of the right to a fair trial in the wider sense. The principle of equality of participants is the Constitutional Court means "equality of arms, virtually equality of opportunity '[finding sp. zn. This means that each procedural party should be given a reasonable opportunity to present its case under conditions which do not put it in a significantly less favourable situation than that in which its counterparty is [page III of the Decision of 13.11.2003 (N 134 / 31 of SbNU 193)].
29. In a similar spirit, the European Court of Human Rights stated that the principle of equality of arms is one of the elements of a broader concept of a fair process; with regard to the equality of arms of the ESLP, the requirement that each party may defend its case under conditions which do not significantly disadvantage it from the point of view of the proceeding as a whole in relation to the opposing party (Nideröst-Huber v Switzerland judgment of 18 February 1997 No 18990 / 91, § 23). This applies to civil proceedings (cf. Case Nideröst-Huber v Switzerland, § 23; or Foucher v France, 18.3.1997, No 22209 / 93, § 34) and criminal proceedings (cf. Brandstetter v Austria, 28.8.1991, No 11170 / 84, and Others, § 66; Zahirović v Croatia, 25.4.2013, No 58590 / 11, § 42). The aim of the principle of equality of arms is to achieve a "fair balance 'between the parties to the dispute (judgment in Dombo Beheer B. V. v Netherlands of 27.10.1993 No 14448 / 88, § 33).
30. However, according to the Constitutional Court, the principle of equality between participants is not absolute. Procedural equality cannot be interpreted in such a way that the legislator could not establish a different scope of procedural rights and obligations for different types of proceedings; However, it must respect the same scope of procedural rights and obligations in the same proceedings [finding sp. zn. III. The Constitutional Court is also aware that absolute equality of the parties in the wider sense cannot even be achieved. Thus, some of the acts of the applicant having the subject-matter of the civil dispute proceedings, such as the withdrawal of the action, cannot be taken by the defendant out of the nature of the case. On the contrary, the court fee must be paid in principle only by the claimant and not by the defendant (the generalities of this rule do not change the exceptions set out in Section 2 (3) of Act No 549 / 1991 Coll., on judicial fees, as amended, which are very closely formulated).
31. Moreover, the European Court of Human Rights does not consider that both parties to the dispute must be in a completely identical position, even in criminal proceedings (see, for example, the Oyston decision against the United Kingdom of 22.1.2002 No 42011 / 98) or in civil proceedings (cf. Keneda judgment against the United Kingdom of 18.5.2010 No 26839 / 05, § 184 in fine; or Batsanina v Russia of 26.5.2009 No 3932 / 02, § 27). The European Court of Human Rights thus accepted, for example, different time limits for the exercise of certain procedural acts by the parties to the proceedings where such a difference did not affect the position of the complainant (see, for example, the judgment in the case of Gugue and SGENO-CFDT against France of 6.1.2004 No 59821 / 00; the judgment in the case of Ewert v Luxembourg of 22.7.2010 No 49375 / 07, § 98), the exemption from the court fee for only one of the parties (the partial judgment in the case of Gouveia Gomes Fernandes and Freitas e Costa against Portugal of 26.5.2009 No 1529 / 08) or the opening of civil proceedings by the prosecutor in the interest of the counterparty (cited judgment in the Batsanna v Russia, § 25-28).
32. It can therefore be concluded that neither the Constitutional Court nor the European Court of Human Rights require absolute equality between the parties. That right is therefore a right to limit, since the different treatment of the parties to proceedings is, in certain circumstances (see below) constitutionally conformable or consistent with the European Convention on Human Rights.
33. The appellant finds the judgment, by default, also unconstitutional for infringement of Article 14 of the ECHR, which provides for an action ban on discrimination. In this context, the Constitutional Court finds that the principle of equality of parties enshrined in Article 37 (3) The Charter constitutes a separate fundamental right for which there is no need to distinguish between the accession and non-accession of equality of arms against the general prohibition of discrimination. However, there is a link between equality of arms and the prohibition of discrimination. The Constitutional Court considers that the principle of equality of parties is lex specialis against non-discrimination and can therefore also be applied to that principle, following appropriate modification corresponding to the specificities of the postulate of equality in court proceedings, a test of direct discrimination. As already stated by the Constitutional Court in the find sp. zn. Pl. ÚS 37 / 04 of 26.4.2006 (N 92 / 41 SbNU 173; 419 / 2006 Coll.):
"60. The right to a fair hearing cannot be separated from the general requirement of equality and non-discrimination. In this context, however, this is about the importance of equality, which concerns the equality of parties to proceedings before the courts, which are in different, anti-one, procedural positions, usually referred to as' equality of arms'... 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 compensated by additional guarantees for the weaker party, the so-called favor defensionis, which is manifested by, for example, the adjustment of the burden of proof... '.
34. The direct discrimination test consists of the following steps, which can be expressed in the form of questions: (1) are comparable individuals or groups? (2) are treated differently on any of the grounds prohibited? (3) is the different treatment of the complainant liable (by imposing a burden or by denying good)? (4) Is this different treatment justified, i.e. (a) is pursuing a legitimate interest and (b) is appropriate? [cf. Findings sp. zn. Pl. ÚS 53 / 04 of 16.10.2007 (N 160 / 47 CollU 111; 341 / 2007 Coll.), paragraph 29; Findings sp. zn. II. ÚS 1609 / 08 of 30.4.2009 (N 105 / 53 CollU 313); Findings sp. zn. Pl. ÚS 4 / 07 of 1.12.2009 (N 249 / 55 of SbNU 397; 10 / 2010 Coll.); Judgment of the Grand Chamber of the ESLP. H. v Czech Republic of 13.11.2007 No 57325 / 00, § 175; Judgment of the ESLP in Carson v. Kingdom of 16.3.2010 No 4184 / 05, § 61; Wagner, E. et al. Comment. Praha: Wolters Kluwer ČR, 2012, p. 101; or Kmec, J., Košák, D., Kratočíl, J., Bobek, M. European Convention on Human Rights. Comment. Praha: C. H. Beck, 2012, p. 1214). It also follows from the case law of the European Court of Human Rights on non-discrimination that the justification of the different treatment depends also on the reason for the different treatment. For different treatment on grounds of racial or ethnic origin, sex, sexual orientation, nationality or origin of the child, there is therefore a very strong justification to be presented [cf., e.g. the judgment in the Ponomaryov case and others against Bulgaria of 21 June 2011 No 5335 / 05 (nationality); The judgment cited above in the Grand Chamber in case D. H. v Czech Republic, § 176 (race); or the judgment in Ünal Tekeli v Turkey of 16.11.2004 No 29865 / 96, § 53 (sex)], whereas for other reasons the different treatment is less intense by the European Court of Human Rights. Thus, the fifth step of the direct discrimination test, in which the degree of "suspicion 'of the grounds for different treatment plays a role, from which the intensity of the review by the court then depends.
35. However, when applying that test of direct discrimination to the assessment of the equality of participants in legal proceedings, it is necessary to take into account the specificities of the principle of equality of parties and to modify the test of direct discrimination. First of all, it is not necessary to examine in the second step the prohibition of the ground (and thus its "suspicion 'in the fifth step), since it is expressly enshrined in Article 37 (3) of the Charter: any different treatment of the parties and the priori is suspicious. Furthermore, the first step is reduced to examine whether the parties are concerned. Furthermore, a modified direct discrimination test will be referred to as an equal treatment test for clarity. Therefore, the equal treatment test consists of the following steps assessing: (1) are comparable individuals or groups (i.e. parties)? (2) are treated differently? (3) is the different treatment of the party concerned to the dispute liable (by imposing a burden or by denying good)? (4) Is this different treatment justified, i.e. (a) is pursuing a legitimate interest and (b) is appropriate?
Application of general principles to the present case
36. In the present case, the equality of participants must be understood as the procedural equality of the parties to the dispute in the civil dispute proceedings.
37. The judgment by default is a special kind of judgment; it is a typical institute of the classical civil process of the dispute, in which decisions on the rights and obligations by which the participants can freely out-of-process dispose (Winter, A. judgment by default, judgment for recognition. Legal practice, 1993, No 10, p. 594).
38. The General Court may decide by a judgment of default pursuant to Paragraph 153b of the EC Treaty, provided that the following conditions are met: (1) the defendant has been served by the Court of First Instance in his own hands; (2) The defendant has been served in his own hands with a summons for the hearing at least 10 calendar days before the date on which the hearing is to be held; (3) The defendant has been instructed to be decided against by a judgment by default if he misses the hearing to which he has been summoned without a reasoned and timely apology; (4) The defendant did not appear for the hearing, which was the first hearing of the case, without an apology, or his apology, before the opening of the proceedings, is unfounded; (5) The applicant came to the first hearing of the case and suggested that it should be decided by judgment at the time the defendant was missed; (6) On the basis of the arguments contained in the action for the facts of the dispute, it is possible to rule against the defendant, since the legal assessment of those alleged facts justifies the conclusion that the action is justified. (7) The judgment is admissible by default and (8) the conditions for the issuing of the judgment for recognition (Bures, J., Drápal, L., Krčmář, Z. Civil Code - comment. 7th edition. Praha: C. H. Beck, 2006, p. 703-704).
39. A judgment by default may or may not be delivered by a general court. Thus, the law leaves it to the discretion of the court whether, even where all the legal conditions laid down by law are fulfilled, it is appropriate to rule on the case by a contumation judgment, the opposite interpretation, that is to say that the court must, in order to fail to comply with the conditions laid down in Paragraph 153b below, give up the doctrine and the case-law completely.
40. The judgment by default is one of the institutions used to expedite proceedings, to which the Constitutional Court has previously stated. The general principles relating to these institutes were defined in his finding, sp. zn. I. ÚS 329 / 08 of 20.6.2011 (N 118 / 61 SbNU 717), where he stated, in relation to the judgment by default:
"14. The courts are called upon by Article 90 of the Constitution of the Czech Republic to provide protection of rights in the legal manner. This applies in general to any kind of judicial procedure, including civil justice. In accordance with the definition of civil jurisdiction, it may be concluded from the article cited in the Constitution that the purpose of the civil procedure is to provide protection to violated or endangered subjective private rights...
15. Protection can only be spoken of in the true sense of the word if the civil process allows the enforcement of actual, and not fictitious, subjective private rights and obligations. To the extent that civil procedural law deviates from that objective, the protection function of civil law is not only denied by procedural law, but also by the sense of private law; in the end, legal certainty is significantly undermined. In other words, civil procedural law is only effective to the extent that it is capable of providing protection to actual subjective substantive rights...
16. That requirement is general and can therefore also be applied to all institutions serving to accelerate civil proceedings, including judgments which respond to the missed participant. The function of the Contumation judgment is not to expedite proceedings in any way, but to expedite proceedings by applying a factual presumption which is unfavourable to the person against whom the judgment is rendered by default. Contumination judgments are based on the fact that the procedural party does not defend its rights in the proceedings, even though it had the opportunity to do so (e.g. Rosenberg, L., Schwab, K. H., Gottwald, P. Zivilprozessrecht. 16th edition. München: C. H. Beck, 2004, p. 704) and despite the fact that it is a contradictory dispute governed by the negotiating principle in which the party itself is to contribute in its own interest to clarify the facts if the claims of the counterparty are false, incomplete or otherwise deviate from reality. The judgment in the absence of such a judgment, as noted by Prof. Macur (Macur, J. Judgement on the basis of the fiction of the recognition of a claim under the provisions of § 114b o.s. of the Bulletin of the Advocate General, 2002, No 2, p. 32), is not based on any "fictions' or mere efforts to terminate the hearing at any price, but is based on a long-standing, proven fact, according to which it is highly likely that a party, which does not in any way call into question the assertion of the second procedural parties, although it has all the possibilities, does not make any factual claims or evidence, and that the first oral hearing is not in fact, does not actually have any arguments or evidence against the veracity of the factual assertions of the second procedural party... In all modern civil court orders, all non-functional influences, which could affect the application of factual conjecture or experience theorem, are very carefully excluded. The result of the assertion is a highly likely conclusion, which borders on the certainty that the operative facts of the procedural party to which the other party did not oppose are true. It is not about the application of fiction, but about the use of factual conjecture, which can be assumed to correspond to the facts that occurred before and independently of the process. The first conclusion of the judgment must be based on it. It is not a judgment for recognition, but a judgment issued on the basis of a fact which is in accordance with the internal conviction of a judge, since it derives it from a general assertion of fact (s). '.
41. On the basis of these general principles, the Constitutional Court held that the judgment of the Court of First Instance was not in itself contrary to the right to a fair trial [Resolution sp. zn. III. ÚS 370 / 98 of 28.1.1999 (U 7 / 13 SbNU 405)], but its application must nevertheless be in line with the purpose of the judgment on the subject (see, for example, the judgment cited above, page I ÚS 329 / 08, paragraph 17).
42. The Constitutional Court has already expressed its views on the application of the judgment by default several times, summarising the basic principles clearly in the sp. zn. I. ÚS 2656 / 12 of 7.5.2013:
"14. The Constitutional Court has already found many findings [cf., for example, the finding of 10.3.2005 sp. zn. III. ÚS 428 / 04 (N 53 / 36 SbNU 563), the finding of 23.8.2005 sp. zn. IV. ÚS 63 / 05 (N 163 / 38 SbNU 301), the finding of 15.1.2009 sp. zn. IV. ÚS 2785 / 07 (N 10 / 52 SbNU 103)], in particular, expressed the following legal views.
15. In deciding whether or not to issue a judgment by default or in deciding on the defendant's application for annulment of the judgment by default, the court should also take into account the previous procedural activity of the defendant, i.e. whether or not he has commented on the action submitted, whether or not he has proposed evidence for his defence, etc.
16. The court should be prudent to issue a judgment by default and vote for that institute in particular where the lack of interest on the part of the defendant is obvious, where the defendant is actually idle (which is apparent, for example, from the content and frequency of the procedural acts already taken) and refuses to participate actively in the trial or deliberately delays the proceedings.
17. This is because the judgment by default is a formal institute which significantly reduces the possibility of the defendant exercising procedural rights. Everyone has the right to apply in a court of law which has been threatened or violated. Article 90 of the Constitution provides that the courts are called upon, in particular, to provide for the protection of rights by law. Article 36 (1) The Charter may be invoked by any person in accordance with the procedure laid down in his or her right in an independent and impartial court and in specified cases by another authority.
18. In cases where an otherwise active participant inadvertently misses the first court hearing for his error, but his interest in taking part in the proceedings and defending himself is evident, the judgment shall not be delivered by default. In such cases, the protection of the rights of the parties to the trial (s) who wish to participate actively in the trial must remain a priority. The main purpose of the legal proceedings is to ensure fair protection of the rights and legitimate interests of the participants (§ 1.3 o. s. s.). The terms of the judgment must be judged with discretion and restraint; it is not appropriate to issue the judgment in the cases in question and in the cases in question.
19. The opposite of this procedure is the overriding formalism, which results in a sophisticated justification for obvious injustice and thus a breach of the meaning of Articles 1 and 3 of the Constitution, Article 90 and Article 36 (1) of the Charter of Fundamental Rights and Freedoms.
20. If the Court of First Instance has already chosen such a criticised procedure (i.e. if it has delivered a judgment by default), it is for the court of appeal to provide protection for the rights of that party. In that case, account must be taken, in particular, of the purpose of the legal proceedings, which is to protect the rights of the parties (the courts are called upon to provide protection of the rights in the legal manner). '
43. In the decision sp. zn. IV. ÚS 2785 / 07 of 15.1.2009 (N 10 / 52 SbNU 103), the Constitutional Court pointed out that the General Court must examine not only the reason for the missing but also the time-scale of the missing:
"The court must therefore, in each individual case, carefully consider whether the reason for the failure, as well as the timescale of the failure of the defendant at the first hearing, is justifiable before taking a judgment by default or before deciding on the application for annulment of the judgment by default. When deciding whether a judgment should be given by default or when a defendant is seeking annulment by default, the court should also take into account the previous procedural activity of the defendant, that is, whether he has commented on the action submitted, whether he has proposed evidence for his defence, etc. The Court of First Instance should also take into account in each individual case the nature of the subject matter of the dispute. '
This means that if the otherwise active defendant misses the five-minute hearing, the judgment is not due to the failure [cf.
44. The Constitutional Court also commented on the application of the correction of service in the context of the judgment in default, in the judgment in Case C-451 / 03 ÚS 451 / 03 of 16.9.2004 (N 131 / 34 SbNU 325), where it stated:
"The essential requirement required by Paragraph 46 (4) is that the addressee was present at the place of service at the time when the service was effected. And contrario, if the participant is not staying at the delivery point, the fiction of delivery cannot begin. The expressly stated rule does not allow the modification carried out by the General Court when it examined and deemed relevant reasons for which the complainant did not stay at the place of residence. In view of the provisions of Paragraph 46 (5) EC, it was for the complainant to disprove that it had remained at the place of service. It is completely irrelevant why this happened. If this has been demonstrated, effective delivery could not take place (no delivery fiction could take place). The Constitutional Court must state that the interpretation of the provisions of paragraphs 46 (4) and (5) of the General Court was so extreme in the present case that it cannot be regarded as constitutionally conformal. As a result of this interpretation, the complainant was prevented from seeking the rights set out in the procedure of its own right before an independent and impartial court (Article 36 (1) of the Charter). The General Courts also went beyond the limits laid down by the law, thereby violating Article 2 (3) of the Constitution and Article 2 (2) of the Charter. '
It follows that, where the General Court is considering the issue of a judgment by default in cases where an action or a summons has been served on the basis of the so-called fiction of service, it must act with extreme caution and examine whether all the possibilities of reaching the defendant have actually been exhausted.
45. It follows from the above analysis of the case-law of the Constitutional Court that, in the past, the Constitutional Court dealt with the consistency of the judgment in order to miss the right to a fair trial (cf. the judgment in sp. zn. III. ÚS 370 / 98), the overriding formalism in the application of the judgment in the course of the proceedings (cf., the judgment in Case C. 29 / 08 [2008] ECR I. ÚS 2656 / 12), the reason and timeliness of the apology in the proceedings (cf. 111 / 49 of the Court of Appeal), which was decided by the judgment in the judgment in respect of the judgment in Case C.
46. However, in the present case, the argument is new, by means of an argument based on the principle of equality between the parties, enshrined in Article 96 (1) of the Constitution, Article 37 (3) of the Charter, Article 6 (1) of the ECHR and Article 14 of the International Covenant on Civil and Political Rights. Therefore, the Constitutional Court accepted the application of the equal treatment test as defined in point 35 of this finding.
47. As regards the first step of the above-mentioned equal treatment test, i.e. the question of the comparability of the status of comparable individuals, the Constitutional Court notes that both the applicant and the defendant are parties to the dispute in the civil dispute proceedings. They are therefore parties as required by the first step.
48. As regards the second step of the equal treatment test, the judgment by default can only be given for the benefit of the applicant, whereas the defendant cannot benefit from the contumation judgment. It follows that the applicant, on the one hand, and the defendant, on the other, is treated differently.
49. In the third step, the Constitutional Court examined whether the difference in treatment of the party's liability was contested, in respect of which the General Court initiated the procedure for the specific control of standards under Article 95 (2) of the Constitution. In the present case, the District Court of Decin considers that the defendant is disadvantaged. The Constitutional Court agrees with that conclusion. The defendant is denied the opportunity available to the applicant by failing to submit a judgment against the applicant. The difference in treatment is therefore liable to the defendant and therefore the Constitutional Court has taken the final step of the equal treatment test.
50. In the final, fourth step, the Constitutional Court considered whether the different treatment of the applicant and the defendant in relation to the possibility of proposing the issue of a contumation judgment was justified. The assessment of the justification falls into two parts: the assessment of (a) the legitimate interest in the different treatment and (b) the proportionality of the different treatment. In other words, the Constitutional Court had to examine whether there was a legitimate interest in allowing the judgment to be delivered by default to be proposed only by the claimant, and if such a legitimate interest existed, whether such a different treatment was appropriate.
51. In identifying the legitimate interest, the Constitutional Court relied on the explanatory memorandum to Act No. 171 / 1993 Coll., which enshrined in the Civil Code the Institute of Contumation Judgement. One of the main principles of this amendment was the acceleration of civil proceedings (see general section of the explanatory memorandum to Act No. 171 / 1993 Coll.). To this end, the institutions of the judgment have been introduced into the Civil Code by default and by recognition. As regards the judgment in default, the explanatory memorandum states that the concept of the judgment in the judgment in the judgment in § 153b CS., although it follows from the provision contained in the civil Code (Law No 113 / 1895), which, according to the legislature's long-term application, has proved to be justified, "[n] and, contrary to that provision, which allowed in the Czech countries to decide by a judgment in the event that the defendant had not arrived at the first hearing, even if he had missed the first hearing of the plaintiff in paragraph 171 / 1993, a provision similar to the Hungarian law which applied in Slovakia and which allows the judgment in the case of failure to be given only in the first hearing of the defendant '(see the explanatory note to the law in Law No 171 / 1993 / 1993 [18]. The difference in treatment was due to the legislator' the fact that the acceptance of the judgment by the applicant and the defendant would create an unequal position of the parties. If the defendant loses his hearing, he is aware not only of the subject matter of the action before him, but also of the applicant's arguments, as well as of the evidence offered to the court to prove its claims. Should the judgment be allowed in order to miss the applicant, a party who does not know the defendant's position in advance and has not been able to respond to the claim which the defendant would only make at the hearing '(there).
52. It can therefore be summed up that the aim (again) of establishing a contusion judgment in the Czech civil process was to streamline the activities of the general courts and to speed up the court proceedings. The different treatment of the applicant and the defendant by the legislator was justified by the fact that the defendant was in a more favourable situation before the first hearing, since he knew the subject matter of the proceedings and the arguments of the applicant, whereas the applicant did not know the defendant's position before the hearing (or may not know if the defendant sent a reply to the action to the court).
53. This concept of the judgment is therefore based on the fact that the claimant has already expressed his interest in the matter and had to fulfil all other procedural requirements. That ground for different treatment of the applicant, on the one hand, and the defendant, on the other, considers the Constitutional Court to be legitimate. The circumstances prior to the adoption of Act No. 171 / 1993 Coll., when the court proceedings were unnecessarily extended primarily by the defendants (e.g. debtors). Thus, the threat of a judgment by default should have led to the "discipline" of the defendants who avoided, either because of their indifference or deliberately, participation in court proceedings and thus made the performance of justice very difficult. On the contrary, the applicants were usually in a hurry to give the judgment, so they had to order the proceedings rather than boycott them. This fact persists today. It is true that, as the District Court of Decin points out, in practice, in limited cases, there has been and there have been situations where the first hearing will not take place. However, it is known from the official activity of the Constitutional Court that these cases were and are more rare than the defendant's failure to appear, and neither does the appellant submit any empirical data in its submission to the contrary. Therefore, there is no indication that there has been a substantial change in the social conditions since the effectiveness of Act No. 171 / 1993 Coll., which calls into question the legitimacy of the existing solution, which allows the judgment to be delivered by default only in favour of the applicant.
54. Nor does the complainant's historical considerations alter the conclusion on the legitimacy of the reason for the different treatment set out in the reasoned report cited. The legislature was aware of the different concepts enshrined in § 396-397 c. c., according to which the contusions threatened both parties, and deliberately deviated from it (see paragraph 51 of this finding) in favour of the Hungarian concept used to date, for example, in Slovakia [cf. § 153b of Act No. 99 / 1963 Zb. Cičiansky súdny poriadok; (again) enshrined by Act No. 232 / 1995 Z. z.]. As stated in the previous paragraph, the legislator considers that the reason for the different treatment of the applicant and the defendant is legitimate. Thus, the different provisions in the civil order of the court cannot in itself lead to a conclusion on the unconstitutionality of the existing arrangements in § 153b.
55. The same applies to the comparative argument. The fact that there is a different regulation in other countries does not mean that the Czech regulation does not pursue a legitimate public interest. Moreover, the appellant does not give any example of the fact that the concept of a judgment similar to that of the Czech court, that is to say, allowing a judgment to be issued only in favour of the applicant, would be found unconstitutional. In other words, the German, Austrian or Czechoslovak first-publication concept of the Contumation Judgment may be more appropriate, but this does not mean that the existing Czech concept does not pursue a legitimate public interest and is unconstitutional.
56. Thus, the Constitutional Court took the view that the different treatment of the applicant and the defendant was appropriate and that the defendant was liable. In this criterion, it is necessary to assess whether the requirement of equality of arms is met in its integrity, i.e. whether each party can defend its case under conditions which, from the point of view of the proceedings as a whole, do not significantly disadvantage it in relation to the counterparty (see paragraphs 28-32 of this finding). The Constitutional Court also took into account in this step the fact that the judgment by default is a procedural penalty which affects the remaining party on its procedural interests and not a direct penalty, therefore the application of this penal institution to civil proceedings should not be contrary to its function, i.e. it should not be aimed at issuing judgments which are contrary to the actual substantive situation (Stavinhova, J., Lavický, P. Penalties in civil law. Legal forum, 2008, No 9, p. 374). In other words, the function of the Contumation Judgment is not in any way to expedite proceedings, but to expedite proceedings by applying a factual presumption that it is highly likely that the operative factual statements of a procedural party to which the counterparty did not contradict, although it had the opportunity to do so, can be considered to be true by virtue of the fact that the Court of First Instance 329 / 08 of 20.6.2011 (N 118 / 61 of SbNU 717).
57. The key starting point for the Constitutional Court is the application by the General Courts of the judgment by default, taking into account both the formal preconditions for the application of the Institute in question, expressly mentioned in § 153b., and the material conditions for its application arising from its purpose.
58. The defendant's disadvantage is first of all moderated by the formal conditions for the judgment to be delivered by default, as set out in Section 153b (s) (see paragraph 38 of this judgment), of which the most important in terms of the equality of the parties to the proceedings are two: the review by the applicant of the claims lodged by the court and the possibility of an additional apology. It is by these two conditions that the judgment is different by default from the judgment for recognition under § 153a o. s. s.) (see in detail Šmíd, O. Institut of the preparatory proceedings. Legal forum, 2011, No 1, p. 17). As regards the first condition, that is to say, the examination of the merits of the action, which means that the court does not automatically issue a judgment by default only after the applicant's application, but the applicant's factual arguments must lead to the conclusion that the claim it claims is justified. If the court considers that these claims are incomplete and cannot be drawn from them to the conclusion that the applicant's claim is justified, it is not possible to rule by a judgment of default (see also the judgment of the Supreme Court of 28.12.1998 sp. zn. 15 Co. 437 / 94). Similarly, the incompleteness of the factual claims cannot be remedied for the purposes of the judgment of the Court of First Instance in the course of the first hearing, since it is not possible to take account of the addition of the factual claims and the taking of evidence during the first hearing (cf. Judgment of the Supreme Court of 30 March 2001, sp. zn. 20 Cdo. 2498 / 99). The second limitation of the inequality between the applicant and the defendant is the possibility of an apology by the defendant (to the admissible reasons for the failure to arrive at the hearing. Bulletin of the Advocate General, 2004, No 3, p. 12).
59. In addition to the formal conditions laid down in § 153b o. s., the Constitutional Court adds that the judgment is only taken into account in simpler cases by default; in more complex cases, it is necessary to prepare negotiations within the meaning of § 114c o. s. s., where the Civil Code not only provides for sanctions in the event of the defendant not being present (see § 114c. 6 o. s.), but also in the case of the applicant not being present (see § 114c. 7 o. s.). This fact therefore also moderates the inequality between the applicant and the defendant in the application of the judgment by default.
60. The material conditions for issuing the judgment by default then result from the use of the verb "may" in Paragraph 153b (1) (a), which states that "[of] the defendant... the first hearing in the case... may be decided by the court by a judgment of default." This means that a court may, but may not, issue a judgment by default, subject to the formal conditions laid down in § 153b. The General Courts therefore have a discrepancy in the application of the judgment by default, aimed, inter alia, at preventing the breach of the principle of equality of parties (or maintaining the equality of their arms).
61. The first and most important material condition of the judgment is the absence of the defendant's procedural activity. Thus, the General Court may not issue a judgment by default unless an otherwise procedural defendant has appeared at the hearing (Ref. The principle of equality between the parties is only thus established. As pointed out above, the function of the Contumation Judgment is not in any way to expedite proceedings, but to expedite proceedings by applying a factual presumption that it is highly likely that the operative facts of the procedural party, which the counterparty did not contradict, can be considered to be true, even though they had the opportunity to do so. It is precisely the previous procedural activity of the defendant, who did not appear for the first hearing, that, in the particular case, the application of this factual presumption may be excluded (cf. the finding of the Constitutional Court sp. zn. I. ÚS 329 / 08 of 20.6.2011).
62. The second material condition lies in the distinction between missing and mere delay. Therefore, if the defendant has arrived at the hearing only with a delay of a few minutes, the application of the judgment by default is not appropriate [page III of ÚS 428 / 04 of 10.3.2005 (N 53 / 36 of SbNU 563)].
(63) However, the judgment of default is also linked to other material limits. It is clear that this institute cannot be applied even in situations where it is known to the General Court that the defendant did not appear at the hearing because of a natural disaster or other inevitable events (the civil order of the court expressly remembered these situations; see Section 402, paragraph 2, c). In addition, the Constitutional Court considers it an unconstitutional application of the judgment by default where dozens or hundreds of actions are brought against the defendant, which, in their cumulative effect, constitute a bullying application, and the defendant misses the hearing with only one of them; in such cases, the application of the concept of abuse of law could exceptionally also be considered.
64. In addition, the General Courts must consider, in particular, the application of the judgment by default in cases where the defendant has been served with an action and a summons for action pursuant to Paragraph 49 (4) of the Civil Code, i.e. on the basis of so-called alternative service or a fiction of service; as in the appellant of the present case sp. zn. 22 C 128 / 2009 (the summons for the hearing were served here on the basis of the so-called fiction of service pursuant to § 49 (4) o. s. s.). The Constitutional Court has already expressed its views on the application of the notification fiction in the context of the judgment in default in the above-mentioned finding, section II. ÚS 451 / 03 (see paragraph 44 of this finding). It follows that, where a court issues a judgment by default in cases where an action or a summons have been served on the basis of the so-called fiction of service, it must act with extreme caution and examine whether all the possibilities of reaching the defendant have actually been exhausted. The judgment in default is not based on a fiction of the indisputability of the facts, but on the presumption that the defendant is very likely to have no arguments against the accuracy of the plaintiff's factual arguments that he could have made. However, if the defendant was not able to realistically acquaint himself with the applicant's arguments, this presumption is substantially eroded (see the above mentioned finding sp. zn. II. ÚS 451 / 03). Nor does it change the fact that it is primarily the addressee (defendant)'s case to take (properly) legal documents at his service address.
65. The Constitutional Court notes that, however, it is not possible to foresee all possible situations in which the General Court must refrain from issuing a judgment by default, although the formal conditions laid down in § 153b.... The above list of types of cases where the judgment of the Court of First Instance is contrary to the principle of equality of parties is therefore merely a demonstration. In other cases, the general courts must follow the general bases formulated by the Constitutional Court in this finding and, where appropriate, in the sp. zn. III. ÚS 428 / 04 of 10.3.2005 (N 53 / 36 SbNU 563):
"In such cases, the protection of the rights of the parties to the trial (s) who wish to participate actively in the trial must remain a priority. The main purpose of the legal proceedings is to ensure fair protection of the rights and legitimate interests of the participants (Sections 1 and 3 of the ECHR). The conditions for the issue of a contumation judgment must be assessed with discretion and restraint; it is not appropriate to issue it in the cases at issue and at the border. '
66. In the light of the formal and material conditions described above for the issue of the judgment by default and of the available remedies against the application of this procedural institution, the Constitutional Court considers that, from the point of view of the civil procedure at issue as a whole, the defendant is not significantly disadvantaged against the applicant by the existence of the Institute under examination. In particular, the material conditions for the application of the judgment by default formulated by the Constitutional Court and the Supreme Court and subsequently taken over by the lower general courts are sufficient to prevent or correct so-called "erroneous judgments" (see, in agreement, Bezoušek, P. Short reflection on judgments for recognition and for missing. Legal aspects, 2004, No 1, p. 34). The different treatment of the defendant in the application of the judgment by default is therefore appropriate and therefore this procedural institute has been able to pass the constitutional test.
67. The provisions of § 153b o. s. CS can thus be interpreted in a constitutional manner. The Constitutional Court, in accordance with the principle of judicial self-restraint, then gave priority to constitutional interpretation rather than the annulment of the contested legal provision and, for the reasons set out above, to the application by the District Court in Děčín to abolish the institute of judgment for failure to comply with the judgment laid down in Paragraph 153b. However, it cannot be ruled out that, if the finding and the constitutional conformal interpretation outlined by it are not followed by the general courts or it will be shown that there has been a substantial change in the social circumstances since the introduction of the Contumation Judgment Institute in 1993 (for example, the increased number of non-responders to the hearing will be demonstrated), the Constitutional Court will in future not proceed to abolish the current form of the Contumation Judgment.
68. In conclusion, the Constitutional Court points out that, although the arguments of the District Court in Děčín did not convince it of the unconstitutionality of the existing provisions of the Contumation judgment in § 153b p.a., since the different treatment of the applicant and the defendant under the Constitutional Court does not reach the intensity of the unconstitutionality, the Constitutional Court considers the argument put forward by the District Court in Děčín to be legitimate, as is also confirmed by the views of a number of Czech civilians, which are also tasked to introduce an amendment to the judgment for the failure of the applicant (cf. Civil law of procedure. Issue 1. Praha: Linde, 1999, p. 268; or Bezouška, P. Short reflection on judgments for recognition and for missing. Legal aspects, 2004, No 1, p. 34). However, this is rather an incentive to consider the amendment to the Contumation Judgment; However, the Constitutional Court is not responsible for such a change, but the Parliament of the Czech Republic, as the Constitutional Court is not a positive legislator.
Summary
69. The Constitutional Court of the District Court of Děčín's motion for the annulment of the Institute of Judgments for the omission laid down in Article 153b of the ECHR and Article 14 of the International Covenant on Civil and Political Rights did not comply with the principle of equality of parties, as enshrined in Article 96 (1) of the Constitution of the Czech Republic, Article 37 (3) of the Charter of Fundamental Rights and Freedoms, Article 6 (1) of the ECHR and Article 14 of the International Covenant on Civil and Political Rights, because it concluded that it can be interpreted in such a way that the principle of equality of parties would not be infringed. The Constitutional Court therefore preferred the constitutional interpretation to the annulment of the contested provision and rejected the proposal of the District Court in Decin, in accordance with the principle of judicial restraint.
70. The Constitutional Court in its case-law repeatedly [finding sp. zn. This procedure, based on the principle of minimisation of intervention, was followed by the Constitutional Court this time and, as in previous cases cited above, supplemented by an interpretative statement indicating to the general courts and legislators the way in which the contested provision was interpreted by a constitutional procedure. The Constitutional Court has already concluded, in its cited finding, that:
"Different interpretation of Article 89 (2) The Constitution would make the decisions of the Constitutional Court legal and, if necessary, confusing, and would force the Constitutional Court to take a procedure that appears to be absurd and unsustainable in its consequences: not to rely on the possibility of constitutionally conformal interpretation, abandon the principle of judicial self restraint, and, in the event of the slightest possibility of a constitutionally contradictory interpretation of the contested regulation, abolish it. For those mentioned in the standard control procedure in the event of the adoption of a negative statement with an interpretative argument, the Constitutional Court has, for a set of reasons underlying the basic constitutional principle within the scope of the operative part of the finding. '
On the basis of its consistent practice and for the reasons set out above, the Constitutional Court therefore generalized the underlying reasons for its finding concerning the constitutionally conformal interpretation of the provision under consideration and stated them in the interpretative statement of that finding.
Conclusion
71. On the basis of all the above, the Constitutional Court rejected the proposal of the District Court in Děčín (§ 70 (2) of Act No. 182 / 1993 Coll.) and defined the conditions of the constitutional interpretation of the provision under consideration.
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 Stanislav Balík, Jan Filip, Vlasta Formánková, Vladimir Krárek, Vladimir Sládeček and Radovan Suchanek to decide.
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Regulation Information
| Citation | The Constitutional Court found no 44 / 2014 Coll., on the application for annulment of § 153b paragraphs 1, 4 and 5 of Act No. 99 / 1963 Coll., Civil Code, as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 21.03.2014 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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