Communication from the Constitutional Court No 460 / 2017 Coll.
Communication from the Constitutional Court on the Opinion of the plenary of the Constitutional Court of 28 November 2017, sp. zn.
Valid
Communication from the Constitutional Court
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21.12.2017
460
COMMUNICATION
The Constitutional Court
On 28 November 2017, the Plenum of the Constitutional Court was adopted by Pl. ÚS-st. 45 / 16, composed of the President of the Court of Paul Rychetský and the Judges of Louis David, Jaroslav Fenyk, Josef Fiale, Jan Filip, Jaromír Jirsa, Tomáš Licensee, Jan Musil, Radovan Suchanek, Kateřina Šimáčková, Vojtěch Šimíček, Milady Tomková (Judge of the Rapporteur) and Jiří Zemánek on a proposal III. of the Constitutional Court, pursuant to Article 23 of Law 182 / 1993 Coll., on the Constitutional Court, concerning his legal opinion on the proceedings concerning a constitutional complaint brought under Article III. ÚS 2670 / 15, which derogates from the legal opinion of the Constitutional Court as set out in the finds sp. zn. I. ÚS 2447 / 13 of 11.11.2013, sp. zn. II. ÚS 3588 / 14 of 16.6.2015, sp. zn. IV. ÚS 3216 / 14 of 17.12.2015, sp. zn. IV. ÚS 3143 / 15 of 23.2.2016, sp. zn. IV. ÚS 3973 / 13 of 25.2.2016, sp. zn. II. ÚS 849 / 16 of 11.10.2016, sp. zn. I. ÚS 425 / 17 of 19.4.2017 and sp. IV ÚS 3168 / 16 of 11.7.2017,
the following opinion:
1. If the application does not contain a definition of the presumption of admissibility (Section 241a (2) of the Civil Code), the refusal of such an authorisation for defects is not an infringement of Article 36 (1) of the Charter of Fundamental Rights and Freedoms.
2. If the appellant does not define the fulfilment of the preconditions for the admissibility of the application, the constitutional complaint against previous decisions on procedural remedies for the protection of the right shall be inadmissible pursuant to Article 75 (1) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended.
3. Paragraph 237 of the Civil Code in conjunction with Articles 4 and 89 (2) The Constitution of the Czech Republic requires that the appeal be assessed as admissible if the contested decision depends on the resolution of a matter of substantive or procedural law relating to the protection of fundamental rights and freedoms, in which the Court of Appeal deviated from the established case law of the Constitutional Court.
Reasons
Reasons for submitting an opinion
1. On 2 September 2015, a constitutional complaint was received from the Constitutional Court, which is held under page III of the ÚS 2670 / 15 and to which the complainant seeks the annulment of further specified decisions of the Municipal Court in Prague and the Supreme Court. By order No 30 C 29 / 2012-39 of 9 November 2012, the District Court for Prague 1 decided not to grant the complainant an exemption from legal fees. The Municipal Court in Prague, as a court of appeal, confirmed the first step decision by order No 72 Co 145 / 2013-47 of 29 May 2013. The complainant's appeal was refused by the Supreme Court by order No 30 Cdo 1221 / 2015-81 of 17 June 2015 on the grounds that the complainant did not define in the notice which, on the grounds of the admissibility of the appeals referred to in § 237 of the Civil Code, it considered to be fulfilled.
2. The Third Chamber of the Constitutional Court is of the legal opinion that, under the circumstances described, a constitutional complaint is inadmissible in the part in which it is directed against the decision of the Municipal Court in Prague, as the complainant has not properly exhausted the call. At the same time, the Third Chamber is of the opinion that, in accordance with the Supreme Court procedure, the complainant's constitutional rights have not been infringed.
3. However, those conclusions are contrary to part of the case law of the Constitutional Court. Since the opposite legal opinion was already expressed in the form of a finding, the third Chamber was left with no choice but to comply with § 23 of Act No. 182 / 1993 Coll., on the Constitutional Court.
Judicial practice of the Constitutional Court in appeals lodged in civil proceedings after 1 January 2013
4. In view of the fulfilment of the procedural conditions for the procedure provided for in Article 23 of the Law on the Constitutional Court, the findings of the Constitutional Court, sp. zn. I. ÚS 2447 / 13 of 11.11.2013 (N 184 / 71 CollNU 213), sp. zn. II. ÚS 3588 / 14 of 16.6.2015 (N 114 / 77 SbNU 673), sp. zn. IV. ÚS 3216 / 14 of 17.12.2015 (N 218 / 79 SbNU 503), sp. In the first instance, the Constitutional Court argued to the Supreme Court that it refused as a faulty leave in which the complainant did not define what it saw as fulfilling the preconditions for the admissibility of the claim. This error was committed by the complainant as a result of the fact that it was based on the already inefficient wording of the civil Code which did not anchor this requirement. The Constitutional Court also stated:
"However, the Constitutional Court takes the view that, in view of the circumstances of the case, which in the present case consisted in a very clear and understandable verbal statement of the plea, the Court of First Instance should not have refused the complainant's authorisation. It cannot be overlooked that the plea, incorrect legal assessment of the case 'has been correctly identified by the appellant as the current plea under § 241a (1) o. s. s., i.e. under current legislation. Although it is now a single and in substance a summary ground of order, the appellant in its submissions asked quite clearly for an assessment of the legal situation, which was based on the specific circumstances of the lease agreement, and the Court of Appeal could, on that basis, apply its own discrepancy in that respect, in that regard, whether the claim is admissible from the point of view of the case-law as calculated in the new text of the provision of § 237 ° S.
5. The Constitutional Court further submitted, in the same finding, to a substantive review and to the decision of the Court of Appeal, although that decision has not yet been properly reviewed by the Court of Appeal. In addition, the Constitutional Court stated that the Supreme Court had failed by its decision, which, according to point 20 of the finding, implies that the complainant had used up all the means to protect his right under Section 75 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, and the constitutional complaint is therefore also admissible in relation to the appeal decision.
6. The Constitutional Court's finding is based on two basic exits. First, the party to the proceedings is not obliged to specify in the notice how it sees compliance with the grounds for admissibility of the notice, if duly justified. Second, the refusal of the right to appeal for defects does not prevent the Constitutional Court from meritoriously examining the decisions that are preceded by the decisions of the Supreme Court in a procedural manner.
7. Done at sp. zn. IV. ÚS 3973 / 13 of 25.2.2016 The Constitutional Court held that, contrary to Article 4 of the Constitution of the Czech Republic, the Court of First Instance, which rejected the appeal for a non-definition of what the appellant saw to be fulfilled by the presumption of admissibility, did not provide sufficient protection to the threatened constitutional right of the complainant, even though the complainant pointed out to him that the infringement of the law in question had been committed. The Constitutional Court did not explicitly address the admissibility of a constitutional complaint in the part where it was directed against the decision of the Court of Appeal. However, his legal opinion on the admissibility of the constitutional complaint in relation to this decision was binding on him by taking a substantive decision and [cf. Plenary Opinion of the Constitutional Court, sp. pl. ÚSN. 9 / 99 of 9.11.1999 (ST 9 / 16 of SbNU 372)].
8. The finding of sp. zn. IV. ÚS 3973 / 13 is based on the fact that the appellant is not obliged to specify in the application the fulfilment of the conditions for the admissibility of the notice if he argues by violating his constitutionally guaranteed rights. As well as the finding of sp. zn. I. ÚS 2447 / 13, it is based on the assumption that the refusal of an appeal for a defect does not prevent the Constitutional Court from having a meritative review of the decisions preceding the decisions of the Supreme Court. On similar exits are also the findings sp. zn. IV. ÚS 3216 / 14 of 17. 12. 2015 and sp. zn. II. ÚS 3588 / 14 of 16. 6. 2015.
9. As regards the finding of sp. zn. IV. ÚS 3143 / 15 of 23.2.2016 (N 35 / 80 CollNU 447), in which the Constitutional Court did not comment on the procedure of the Supreme Court, by which the constitutional complaint contested by the decision refused to give rise to a non-definition of compliance with the preconditions for its admissibility. The Court of Justice of the European Union ("the Court of Justice ') held that the Court of Justice of the European Union (" the Court of First Instance') had adopted a decision on the application of the judgment of the Court of First Instance. It is therefore implicitly stated in this finding that the appellants do not have to state what they see as fulfilling the conditions of admissibility of the claim. Similarly, it follows from this finding that, if the Supreme Court rejects a claim for defects, the constitutional complaint is not inadmissible in the part against decisions that are preceded by decisions of the Supreme Court.
10. Done at sp. zn. II. ÚS 849 / 16 of 11.10.2016 The Constitutional Court took the view that, if the appellant objects to the unconstitutional nature of the legal conclusions or to the procedure of the appellate court, it is thus satisfied with the pleas in law of the alleged misassessment of the case and then it is the Court's task to deal with that argument and to deal with it. As the Constitutional Court has also pointed out, a decision on the admissibility of an application cannot be made by a single Judge but must remain reserved for the Senate. This finding was then followed by the Constitutional Court in the sp. zn. I. ÚS 425 / 17 of 19.4.2017. Finally, in the find sp. zn. IV. ÚS 3168 / 16 of 11.7.2017 The Constitutional Court has also examined the contested decision of the Court of Appeal, in a situation where the Supreme Court has rejected the appeal as defective, in which it found that the complainant's rights guaranteed by Article 2 (3) of the Charter of Fundamental Rights were infringed. On the decision of the Supreme Court, he stated that he did not find any violation of any of the constitutionally guaranteed fundamental rights and freedoms, namely the violation of the right to judicial protection by law (here the Civil Code) as provided for. However, for reasons of legal certainty, it was considered necessary to repeal this decision together with the order of the Court of Appeal.
11. The Constitutional Court has dealt with the question of whether it is the duty of the parties to the proceedings to state what they see as fulfilling the preconditions for its admissibility in many other decisions. Similarly, the Constitutional Court has repeatedly addressed the question of whether, in similar cases, a constitutional complaint against lower-degree judgments is admissible.
Judgments of the Constitutional Court in relation to the constitutional conformity of the request for the appellant to state what he sees as fulfilling the preconditions for the admissibility of the application
12. Despite the findings of sp. zn. I. ÚS 2447 / 13, sp. zn. IV. ÚS 3216 / 14, sp. zn. IV. ÚS 3143 / 15 and sp. zn. IV. 17 / 16 / 2015 / 15 / 2016 / 15 / 2016 / 15 / 2016 / 17 / 2016 / 17 / 2016 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2016 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2016 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2015 / 2017 / 2015 / 2015 / 2017 / 2015 / 2017. 2015 / 2015 / 2017 / 2017. 2015 / 2017. all resolutions are available at http: / / nalus.ujud.cz) and must do so properly; Therefore, the mere citation of the law (e.g. resolution sp. zn. III. ÚS 1675 / 14 of 26 June 2014) or the definition of assumptions relating to the manifest misinterpretation of § 237 of the Civil Code (e.g. resolution sp. zn. III. ÚS 651 / 14 of 10 July 2014) is not sufficient. In resolution sp. zn. II. ÚS 2716 / 13 of 12 February 2015, the Constitutional Court stated:
"The following can be generally mentioned on the issue of the formal terms of reference. Article 241a (2) of the Civil Code states, inter alia, that it is expressly stated that the appellant must state in what way he sees the admissibility of the rights (§ 237 to 238a) to be fulfilled, and further to define the ground for the right of appeal, which, according to Article 241a (3) of the Civil Code, is defined by the appellant by giving a legal assessment of the case which he considers to be incorrect and by explaining the inaccuracy of that assessment. Paragraph 241b (3) of the Civil Code also provides that an application which does not contain a definition of the admissibility of an application or which does not contain a definition of the ground of appeal may be supplemented only for the duration of the period of the period of appeal. In accordance with Article 243c (1) of the Civil Code, the Supreme Court will then reject a claim which suffers from defects which have not been remedied within the prescribed period and for which the appeal procedure cannot be continued. Therefore, the formalities for the application and the consequences of their non-compliance are clearly stated in the Civil Code. Therefore, a party to the appeal proceedings cannot, while maintaining a minimum degree of prudence, raise doubts as to what it is to state in the notice. The refusal of an authorisation which does not meet those requirements is not a formality but a logical consequence of failure to comply with the statutory requirements. '
13. Similarly in the sp. zn. II. ÚS 1966 / 16 of 15.3.2017 The Constitutional Court stated:
"Although the constitutional order does not give rise to a right of appeal or any other special remedy (it is likely that the legislation which would not allow such means at all), if the legal order admits them, the decision on them cannot be found outside the constitutional framework for the protection of the fundamental rights of the individual [finding of 11 February 2004 sp. zn. Nor is it an exception to the ruling of the Court of First Instance on whether an application fulfils the requirements of Article 241a (2) and (3) of the Civil Code, that is to say, whether there is a reason for its refusal under Article 243c (1) of the Civil Code for defects which have not been removed within the period laid down in Article 241b (3) of the Civil Code, that is to say, the legal period for the lodging of an application or the period provided for in order to remedy a lack of legal representation, and for which the pleading cannot be continued.
One of the mandatory requirements of Article 241a (2) of the Code of Civil Procedure is that it must state what the appellant sees as fulfilling the conditions for the admissibility of the rights. The purpose of this request is to familiarise the lawyer of the appellant with the relevant case-law of the Supreme Court before the appeal is lodged and to consider whether such an appeal has a chance of success and to give that view to the appellant. In this way, the legislature responded to a high number of problematic claims. It should contribute precisely to its reduction that lawyers will have to deal adequately with the issue of their admissibility (for example, the resolution of 26 June 2014 sp. zn. III. ÚS 1675 / 14). '
14. The Constitutional Court followed that finding by finding sp. zn. If the appeal is not legally admissible in the cases listed in Article 238a of the Civil Code, the definition within the meaning of Article 237 of the Civil Code will, in a simple manner, consist in the formulation of a legal question relevant to the contested decision of the Court of Appeal and in an indication of how the case-law of the Supreme Court is dealt with. "
15. The Constitutional Court, however, does not allow the Supreme Court to be too formal in assessing the impeccable nature of the notice and therefore, for example, in the finding of page IV of the ÚS 1256 / 14 of 18.12.2014 (N 234 / 75 of the SbNU 607) He argued to the Supreme Court that he considered it a malpractice in which the appellant did not use the numbers of the relevant decisions. In the judgment of the Court of First Instance in Case No 354 / 15 of 19.11.2015 (N 198 / 79 SbNU 251), the Constitutional Court held that, on the basis of the pleas read following the arguments of the Court of Appeal, it is clear in what manner the appellant finds compliance with the preconditions of admissibility, even if it did not mention this directly in the notice. The Constitutional Court also expressed a request for a proper statement of reasons for a resolution rejecting the appeal for defects. Infringement of the basic rights of the complainants was also noted by the Constitutional Court when the Supreme Court rejected the appeal for defects [the findings of sp. zn. The Constitutional Court found infringement of fundamental rights even if the Supreme Court rejected the appeal for defects as inadmissible (sic) and, at the same time, expressed its views on the substance of the case, on which the Constitutional Court stated that the procedure (that is to say, the substance of the case in a situation where it was allegedly not possible to proceed in the pleading proceedings for defects) was intrinsically contradictory [the finding of the Constitutional Court sp. v. II. ÚS 2766 / 14 of 1.12.2015 (N 202 / 79 SbNU 281)].
The Constitutional Court's caselaw on the admissibility of constitutional complaints in a situation where the appeal was refused because of a non-definition in which the appellant sees compliance with the grounds for admissibility of the application
16. In cases where the Supreme Court rejected the appeal on the ground that the appellant did not define in which it saw the grounds for admissibility of the appeal, the Constitutional Court had repeatedly, whether explicitly or implicitly, to address the issue of the admissibility of constitutional complaints against the decisions of the lower courts. This issue was dealt with differently by the Constitutional Court both in the findings and in the resolutions, regardless of whether or not he considered the Supreme Court procedure to be correct.
17. As in the quoted findings sp. zn. I. ÚS 2447 / 13, sp. zn. II. ÚS 3588 / 14, sp. zn. IV. ÚS 3216 / 14, sp. zn. IV. ÚS 3143 / 15 and sp. zn. IV. ÚS 3973 / 13 followed the Constitutional Court also in the finds sp. zn. II. ÚS 312 / 15 of 9.2.2016 and sp. zn. II. ÚS 2766 / 14 of 1.12.2015. In these cases, the Constitutional Court found an infringement of the constitutional rights guaranteed by the Supreme Court, which refused to give the right of appeal, and the Constitutional Court also submitted the decision of the Court of Appeal to constitutional review. On the contrary, in the finds sp. zn. I. ÚS 425 / 17 of 19.4.2017, sp. zn. II. ÚS 1966 / 16 of 15.3.2017, sp. zn. I. ÚS 3507 / 16 of 21.12.2016, sp. zn. II. ÚS 849 / 16 of 11.10.2016, sp. zn. II. ÚS 3876 / 13 of 3.6.2014, sp. zn. I. ÚS 962 / 14 of 19.8.2014 or sp. zn. I. ÚS 354 / 15 of 19.11.2015 of the Constitutional Court of First Instance, although it also considered the procedure of the Supreme Court to be an unconstitutional, constitutional complaint with reference to the principle of subsidiarity in the part of the decision of the lower court of nonadmissibility.
18. I. ÚS 3507 / 16 The Constitutional Court stated that "following the annulment of the Supreme Court order and the doctrine of minimising interference in the decision-making activities of the General Court, it is no longer for it to examine the contested decision of the Supreme Court. This review will now be under the jurisdiction of the Supreme Court, which will have to decide again - bound by the Constitutional Court's finding - on the call. A constitutional complaint concerning the substance of the matter would therefore be an early remedy in this case '. The Constitutional Court then added that the distinction between the grounds for refusal of the appeal, namely whether it is not self-useful for the inadmissibility or not to be remedied in good time, since it is of relevance to the appellant in that, pursuant to Article 75 (1) of Act No 182 / 1993 Coll., the Constitutional Court, as amended, is a condition for the admissibility of a constitutional complaint and the effective exhaustion of an exceptional remedy which may be rejected by the authority which decides on it by reason of its discretion. The Constitutional Court subsequently concluded that" [j] it was clear that the effective exhaustion of the notice would not occur if it was lodged incorrectly, that is to say without including the legal requirements laid down in § 241a (2) and (3) of the Civil Code, or if it is inadmissible for any reason set out in § 238 of the Civil Code. On the contrary, the condition of effective exhaustion of the notice will be met if the reason for its refusal is that there are no grounds for admissibility under Article 237 of the Code of Civil Procedure'.
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20. Similarly in resolution sp. zn. II. ÚS 2380 / 16 of 14 October 2016 The Constitutional Court stated:
"However, even if the complainant of the resolutions of the Supreme Court challenged a constitutional complaint, the conclusion on the inadmissibility of her proposal would nevertheless remain unchanged in the light of the facts of the matter. It follows from the (uncontested) order of the Supreme Court that, although the complainant formally applied this procedural means of protecting its rights, it did not do so in a procedural (proper) way, since it did not comment on the admissibility of the claim (which is, however, a binding requirement of such a proposal). Paragraph 75 (1) of the Law on the Constitutional Court already needs to be interpreted in the light of the purpose of that provision (i.e. the procedural implementation of the principle of subsidiarity) in such a way that the procedural means of redress mentioned therein must be properly applied... '.
21. On the other hand, the Constitutional Court has not followed this procedure in some decisions and has also accepted a review of the decisions of the courts of lower degrees (e.g. Resolution sp. zn. I. ÚS 3524 / 13 of 21.1.2014, sp. zn. III. ÚS 1185 / 15 of 7.5.2015, sp. zn. IV of ÚS 2750 / 15 of 28.1.2016, sp. zn. III of ÚS 3714 / 15 of 1.3.2016). The Constitutional Court, for example, in its Resolution No III. ÚS 651 / 14 of 10 July 2014 led to the finding that "in the case of contradictory own case-law, the Constitutional Court therefore acted in favour of the complainant, namely his legal certainty, which could rely on that part of the decision-making practice of the Constitutional Court which is more favourable to him '. The Constitutional Court also expressed its views on the argument of legal certainty in the resolution sp. zn. III. The Court of Justice of 8 March 2016 found that, in view of the settled case-law of the Supreme Court," the suppression of the principle of subsidiarity of a constitutional complaint' was no longer a reason and rejected the constitutional complaint in relation to the decision of the Court of Appeal as inadmissible. Finally, it can be added that the Constitutional Court has quasi-examined the decision of the Court of Appeal in a quasi-meritative manner, also on the basis of a constitutional complaint, which was not a decision of the Supreme Court which refused to appeal against the decision of the Court of Appeal for defects at all (Resolution sp. zn. II. ÚS 2340 / 15 of 31.8.2015; a separate constitutional complaint was lodged against the decision of the Supreme Court relating to the application for annulment of Paragraph 241a (2) of the Civil Code in the words "definition of the ground of appeal ', which the Constitutional Court rejected as manifestly unfounded by resolution sp. zn. II. ÚS 2341 / 15 of 11 April 2017).
22. It can be added that the issue of the admissibility of a constitutional complaint in relation to decisions of the court of appeal and appeal was also addressed by the Constitutional Court in other decisions in which it found that the complainant's constitutional rights had been infringed in the Supreme Court procedural procedure. The Constitutional Court therefore considered a constitutional complaint to be inadmissible in the part against decisions of the court of appeal or of the court of appeal, for example, in the findings of sp. zn. I. ÚS 3093 / 13 of 17.12.2014 (N 231 / 75 of the SbNU 581), sp. zn. III. ÚS 1538 / 14 of 17.5.2016, sp. zn. II. ÚS 3316 / 15 of 31.5.2016, sp. zn. I. ÚS 2936 / 15 of 17.8.2016 or sp. II. ÚS 849 / 16 of 11.10.2016 (available at http: / / nalus.udou.cz). In the latter judgment, the Constitutional Court pointed out: "As a result of that doctrine of minimising the interference in the decision-making activities of the General Courts, the Constitutional Court did not, in this procedural situation, examine the contested decisions of the Circular and the Municipal Court and rejected the constitutional complaint to that extent for inadmissibility. In fact, any constitutional review would be premature in a situation where the Supreme Court had not yet dealt with the decisions of the courts of lower institutions which had been challenged. '
23. Refusal of a constitutional complaint for inadmissibility - in the part in which the decision of the court of appeal and the court of appeal was contested - the Constitutional Court treated, in similar cases, the effectiveness of the Civil Code and the Law on the Constitutional Court as effective by 31 December 2012. E.g. in the sp. zn. II. ÚS 3005 / 07 of 4.3.2009 (N 45 / 52 SbNU 449) The Constitutional Court stated:
"The Constitutional Court rejected the complainant's proposal against the contested decisions of the Municipal Court in Prague and the District Court for Prague 9 under § 43 (1) (e) of the Constitutional Court Act, since it will now be up to the Court of Appeal to re-examine the admissibility of the appeal and, where appropriate, to comment on the procedure of the Court of Appeal (cf. The complainant is now open to the protection of his constitutionally guaranteed rights and freedoms within the system of general courts."
Own justification of the opinion
24. The two statements adopted by the plenary of the Constitutional Court by this opinion are fundamentally independent and each addresses a different legal question. In the first sentence, the Constitutional Court examined whether the procedure of the Supreme Court, which refused to give notice for the absence of a presumption of admissibility of an appeal, was contrary to the right of access to a court guaranteed by Article 36 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '). In the case of the second opinion, the Constitutional Court delivered an opinion on the interpretation of Article 75 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, and the related principles of subsidiarity of the constitutional complaint.
Right of access to the court
25. Pursuant to Article 36 (1) of the Charter of Fundamental Rights and Freedoms, any person may apply for the procedure laid down in his law before an independent and impartial court. That provision lays down the right to judicial protection, which includes the right of access to the courts, subject to the conditions laid down by law (Article 36 (4) of the Charter). The same right is guaranteed by Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms and Article 14 of the International Covenant on Civil and Political Rights.
26. The obligation of the State resulting from the right of access to the court shall be substantially fulfilled in non-criminal matters which are solely to be dealt with if the State provides access to decisions on the rights and obligations of participants at one level of the judicial system. In other words, the constitutional order of the Czech Republic does not imply the right to file proper or even extraordinary remedies. However, as the Constitutional Court has already pointed out in the past (see, for example, the finding of Sp. zn. Pl. ÚS 1 / 03 of 11.2.2004), if the possibility of bringing a proper or exceptional appeal is guaranteed by law, the decision on these funds falls within the requirements laid down in Article 36 (1) of the Charter, which must also be complied with when assessing the actual conditions for the authorisation of the device.
27. In general, the right of access to a court is not absolute but that it may be subject to certain restrictions. After all, this results directly from the wording of Article 36 (1) of the Charter, which guarantees the right to claim its right in court in the manner provided for in the law (Article 36 (4) of the Charter). This method is usually laid down in procedural rules and it is in principle up to the legislator to determine which specific rules (time limits, content and formalities, court fees and others) for access to courts. However, from the point of view of the protection of fundamental rights and freedoms, it is essential that the individual conditions under which judicial protection can be sought follow and be proportionate to the legitimate objective.
28. This is also the case with the requirements that make the legislator subject to access to sound and exceptional remedies. The nature of these funds, as well as the fact that these funds are not guaranteed by constitutional order, implies, of course, that the legislator has a much wider discretion in this regard. In particular, in the case of exceptional means of procedure, the legislature pursues a specific objective which is not simply to provide a further judicial review of a particular dispute. That's the way it is with a call.
29. Extraordinary appeals are available to the parties after the case has been examined at least twice by the courts of lower degrees and are now calling for the Supreme Court to deal directly with it, namely one of the top judicial authorities in the Czech Republic (Article 92 of the Constitution of the Czech Republic). It is clear from the above that access to the appeal procedure may be made subject to a number of requirements by the legislator, including the form and content of the pleadings put forward by the party to the Supreme Court.
30. These requirements may, inter alia, be aimed at limiting the number of appeals lodged [cf. In general, it is not the aim of the rules in the Civil Code for the Supreme Court to discuss as many disputes as possible (after all, it is doubtful whether, by increasing the number of judicial instances, it is the improvement of decision-making and fairer decision-making of individual cases), but that it should be able to deal properly and with due care to those issues which are relevant from the point of view of the legislator (and the legislator). The effective functioning of the Supreme Court, by unifying the case law, contributes to a higher quality of decision-making for the lower courts.
31. The legislator, in the provision of § 241a (2) of the Civil Code, made a requirement, inter alia, that the application must state in what manner the appellant sees the fulfilment of the conditions of admissibility of the rights, with reference to § 237 to 238a of the Civil Code. Paragraph 237 of the Civil Code lists the situations in which an appeal is admissible, following the case law of the Supreme Court. According to that provision, an appeal is admissible where the contested decision depends on the resolution of a matter of substantive or procedural law in which the Court of Appeal has deviated from the established practice of the Supreme Court or which has not yet been dealt with in the decision of the Supreme Court, or may be dealt with differently (inconsistently) by the Supreme Court. The appeal is also admissible where the decision of the Court of Appeal is in accordance with the case law of the Supreme Court, but that case law should be amended.
32. One of the purposes and consequences of such legal arrangements should be for the lawyer of the appellant to be familiar with the relevant case law of the Supreme Court before the appeal is lodged. This may lead, on the one hand, to the fact that the lawyer himself, after having been familiar with the case law, concludes that the lodging of an appeal is of no importance and will then communicate this view to his client. In a sense, this provision can thus motivate a certain filtration of the idea by the appellants themselves and thus the lower overcapacity of the Supreme Court in cases that would not have had the chance of success before the Supreme Court.
33. However, the provisions of the Civil Code in question fulfil its purpose even if the lawyer (namely his client) considers it appropriate to lodge an application. In fact, it is the duty of the lawyer to know the case law that ensures a higher quality of the claim, which provides a higher standard of legal assistance for the client (the complainant), but also allows the decision-making activities of the Supreme Court to be accelerated, improved and streamlined. If the appellant submits his view on the relationship of the contested decision of the appellate court to the case-law of the appellant, the Supreme Court will undoubtedly be in a better position to ensure that one of its main tasks is carried out, namely the unification of the case-law [Paragraph 14 (3) of Act No. 6 / 2002 Coll., on the courts, judges, sitting and administration of the courts, and on the amendment of certain other laws (Law on Courts and Judges), as amended by Act No. 151 / 2002 Coll.].
34. It is therefore clear that Paragraph 241a (2) of the Civil Code follows a legitimate purpose. It remains to be assessed whether this provision is proportionate to the objective set.
35. The Committee of the Constitutional Court points out at this point that, in accordance with Article 241 of the Civil Code, the appellant must be represented by a lawyer in principle. This requirement also serves, inter alia, to ensure a higher standard of legal assistance for the beneficiaries. However, lawyers who are in the field of professionals can logically be subject to higher claims by the parties to their submissions addressed to the courts than those who are not usually lawyers and have no legal education. Paragraph 241a (2) of the Civil Code requires lawyers, in a simplified manner, to have sufficient knowledge of the case-law of the Supreme Court before making an appeal and subsequently to state in the appeal, what is the relation of that case-law to the contested decision of the Court of Appeal. The Constitutional Court's board does not find any inadequacy in this requirement, as familiarisation with the relevant case-law should be practically standard even without the existence of § 241a (2) of the Civil Code. It should be pointed out once again that a party to the proceedings is brought before one of the supreme judicial authorities and it should be borne in mind that his lawyer will be informed in the proceedings before the Supreme Court of the caselaw relating to the case which is the subject of the proceedings. If this knowledge of the case-law can also help to streamline the decision-making activities of the Supreme Court, it can hardly be a disproportionate restriction on the right of access to the Supreme Court in the application of the precaselaw.
36. Moreover, it cannot be overlooked that Paragraph 237 of the Civil Code calculates all possible relations by invoking the contested decision of the Court of Appeal to the decision-making function of the Supreme Court. In the event of legal questions being raised, the appellant cannot be in a situation where the requirement under Paragraph 241a (2) of the Civil Code cannot be met. It is equally important that the fault is only if the appellant does not give his opinion at all, but not if the Supreme Court has a different opinion on the fulfilment of the presumption of admissibility. Therefore, if, for example, the appellant considers that the Court of Appeal has deviated from a specific decision of the Supreme Court and, on the contrary, the Supreme Court states that the appellant does not actually refer to the case in question, it is not a failure of the appeal. Thus, the complainant is not even "sanctioned" by rejecting the defects only for a different legal opinion, but indeed for failing to comply with the law in a clear and comprehensible manner.
37. In this respect, there would be no argument that the Supreme Court knows its case-law and therefore there is no reason to request that the Supreme Court draw attention to it. Ad absurdum would lead that argument to the effect that, for example, the parties to the proceedings could not be required to state the ground of appeal, since the Court of Appeal knows the law and must therefore know for itself whether the decision of the court seised is incorrect and for what reason.
38. The Constitutional Court is therefore of the opinion that Article 241a (2) of the Civil Code provides for a clear, legitimate and proportionate requirement for the content of the pleading. Therefore, it is not contrary to Article 36 (1) of the Charter if, in the event that the appellants fail to comply with this requirement, the Supreme Court rejects, for that reason, the appeal lodged. This conclusion has been in force since the beginning of the adoption of effective legislation, and it is all the more true now that the Supreme Court has drawn attention to the obligations of the complainants in countless decisions.
39. It should also be pointed out that the requirement to state what the appellant sees as fulfilling the preconditions for the admissibility of the claim is different from the requirement to state the plea (§ 241a (1) and (3) of the Civil Code). The definition of the ground of appeal is normally fulfilled by the legal argument itself (Section 241a (3) of the Civil Code) and by the finding that the decision of the Court of Appeal is based on an error of law. If, in addition to this argument, the legislature also requests comments on the relevant case-law of the Supreme Court, it cannot be concluded, for the sole reason of the appeal, that the appellant no longer has to comply with the requirement under Paragraph 241a (2) of the Civil Code. The opinion expressed in the decision sp. zn.
40. In view of the arguments contained in particular in the finding in point II.II. ÚS 849 / 16, it is also necessary to highlight the obvious difference between the assessment of whether the claim lodged contains the statutory requirements (including the definition of the fulfilment of the admissibility of the claim) and the assessment of whether one of the grounds for the admissibility of the claim in a particular case is actually fulfilled. In the first case, the Supreme Court assesses the submission from a purely formal point of view and quite clearly according to § 243f (2) of the Civil Code, it may (but may not) make (but may not) the President of the Chamber or the authorised member of the Chamber (similar to § 43 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 77 / 1998 Coll., the Judge-Rapporteur decides to reject a constitutional complaint in certain cases). Only then, if the request contains all the necessary elements, the Supreme Court takes the view of admissibility (see in detail Resolution No 25 of the Supreme Court No 4974 / 2016-408 of 15.12.2016, against which a constitutional complaint was lodged, which was rejected by the Constitutional Court Resolution sp. zn. III. ÚS 1427 / 17 of 30.5.2017).
41. If the admissibility of the appeal by the appellant is found to be in one of the conditions set out in Section 237 of the Civil Code, but the Supreme Court does not find that the conditions (and does not find any other presumption of admissibility) are met, it shall reject the appeal as inadmissible, and pursuant to Section 243c (2) of the Civil Code, it shall do so in the Chamber, subject to the consent of all its members. The assessment of whether one of the conditions of admissibility under Section 237 of the Civil Code is fulfilled is already a substantive assessment of the application (see also the order of the Constitutional Court sp. zn. I. ÚS 33 / 17 of 7. 2. 2017) and is a form of rejection of constitutional complaints for obvious unfounded reasons, which also requires the approval of all members of the Chamber (see Section 19 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 77 / 1998 Coll.). How to do this in resolution sp. zn. II. ÚS 2818 / 16 of 6.9.2016 The Constitutional Court stated:
"The complainant's argument is based on the incorrect assumption that, by rejecting the plea for inadmissibility on the ground that the contested decision is in line with the case law of the Court of Appeal, the Supreme Court denies the appellants of a substantive review of the legal questions raised. In such a case, however, this is not a rejection for purely procedural reasons (such as the inadmissibility of a constitutional complaint in proceedings before the Constitutional Court), but a substantive decision, already because the appeal may be admissible even if the legal question raised by the Supreme Court has already been dealt with, but should be dealt with differently. Thus, although the existence of the Prejurisprudence of the Supreme Court may, to some extent, indicate the outcome of the appeal review (a change in the case-law of the Supreme Court should take place rather exceptionally), this does not mean that there could be no change in the case-law and therefore the complainant's success in the case. Whether or not the three-member Chamber which decides on the application in question agrees with the view previously expressed in the Supreme Court case-law is already on the legal basis. '
42. Although the requirement itself to state what the appellant sees as fulfilling the preconditions for the admissibility of the claim is not contrary to the constitutional order, the application of § 241a (2) (and § 243c) of the Civil Code may still infringe the appellant's fundamental rights. This may be the case in particular if the Supreme Court is acting too formally and, for example, rejects the appeal as defective only because the appellant did not mention the reference numbers of the relevant (and otherwise sufficiently specified) decisions.
43. The case-law of the Constitutional Court, which the appellant will properly refer to, is also taken into account. It would then be an extremely formal procedure if the Supreme Court, even in such a situation, required a reference to the case law of the Supreme Court, which, for example, followed the decision of the Constitutional Court in question, since pursuant to Article 89 (2) of the Constitution of the Czech Republic, decisions of the Constitutional Court are binding on all the institutions and persons. Done at sp. zn. III. ÚS 1594 / 16 of 1.11.2016 In this context, the Constitutional Court pointed out that "the constitutional conformal interpretation of Article 237 EC, having regard to the provisions of Article 4 in conjunction with Article 89 (2) of the Constitution, requires that an appeal against any decision of the Court of Appeal terminating the appeal proceedings may be considered admissible if the contested decision depends on the resolution of the substantive or procedural law relating to the protection of fundamental rights and freedoms, in which case the Court of Appeal has not yet been resolved or otherwise decided by the Court of Appeal, or is decided by the Court of Appeal, by way of a decision of the Constitutional Court of First Instance, or by way of a decision of the Constitutional Court of First Instance, or by a decision of the Court of First Instance, or, if the Court of First Instance of First Instance has not yet been resolved."
44. To this end, the Constitutional Court, in the decision of sp. zn. I. ÚS 2135 / 16 of 3 May 2017 added:
"It is true that Section 237 of the Civil Code refers only to the case law of the Court of Appeal. Nor can it be overlooked that it is primarily the Supreme Court, to which, as the supreme judicial authority in civil and criminal matters (Article 92 of the Constitution of the Czech Republic) it is for it to unify caselaw (§ 14 (3) of the Law on Courts and Judges). On the contrary, the Constitutional Court is not in principle responsible for this role, even because it is not in principle responsible for the interpretation of sub-constitutional law itself. Even in matters of constitutional overlap, it can often be the Supreme Court, which transforms the key conclusions of the Constitutional Court into the language of sub-constitutional law. Therefore, it cannot be denied that the Supreme Court's argument that the case-law of the Constitutional Court is relevant in particular for the plea (that is to say, in the very case, why the contested decision of the Court of Appeal is incorrect, why the present case-law of the Supreme Court should be amended, etc.) but, strictly speaking, it is not primarily for the definition of admissibility, as required by Article 241a (2) of the Civil Code.
On the other hand, however, it must be borne in mind that the findings of the Constitutional Court are binding on all the institutions and persons (Article 89 (2) of the Constitution of the Czech Republic). Moreover, there are legal issues on which only the Constitutional Court has spoken in more detail so far, and it is its case-law that is indeed relevant to the matter. Although the admissibility of an appeal to such a legal question can be simply formulated in such a way that it has not yet been dealt with by the Supreme Court, there is, however, also in the light of the function of the requirement to define admissibility (inter alia, that, after consultation of the relevant case-law, the appellant decides, for example, that he will not make the appeal at all because he would not be able to succeed, or if he does, there is a presumption that, after having been familiar with the case-law, such a submission would be of an argument better quality), it can be considered that the relation of admissibility to the case-law of the Constitutional Court is sufficient. Finally, it is not possible to ignore that it is through the case law of the Constitutional Court that the complainants often sufficiently specify the case law of the Supreme Court... '.
45. Nor can the appeal be regarded as a fault if the Supreme Court takes the view, in relation to the appellant, that the legal question raised was not actually dealt with by the Court of Appeal or that it does not depend on its decision to be dealt with by the Court of Appeal.
46. On the other hand, the refusal of the appeal for a defect is not an exaggerated formality only because the Supreme Court itself could assess or deduce the possible relationship between the contested decision of the Court of Appeal and the Supreme Court's case-law. In fact, the purpose of the rule of law in the Civil Code would be completely denied, and the constitutionally conformal requirement to define what the appellant sees as fulfilling the preconditions for the admissibility of a claim would lose its meaning. If it were enough for the Supreme Court to deduce the presumption of admissibility itself, the assumption that a lawyer is familiar with the case law would be rejected, it would consider whether, in its light, an extraordinary appeal would be relevant and then incorporate the knowledge acquired into its submission, thereby providing its client with better legal assistance, while contributing to the effectiveness and accuracy of the decisions of the Supreme Court.
47. It should also be noted that, if decisions taken by the Supreme Court in the assessment of the admissibility and the defect of the authorisation are to be constitutional, it is essential that its practice be consistent and that decisions are understood. Therefore, it cannot be accepted that certain claims are rejected as defective because of the absence of a presumption of admissibility of the claim, whereas others were rejected as inadmissible for the same reason. Having regard to the fact that the refusal of a right of appeal for both defects and inadmissibility is mentioned in the same section of the Civil Code, the same paragraph and the same sentence (Paragraph 243c (1)), it is also necessary for the Supreme Court to always state clearly in the decisions whether it rejects an appeal for purely procedural reasons (failure to comply with the requirements of the Civil Code), or for reasons of meritative or quasi-meritative, as the case-law practice of the Supreme Court shows that it is not always (e.g. for short, for a mere reference to Article 243c (1) of the Civil Code), it can be deduced from the decision whether it was rejected for defects or for inadmissibility.
48. For the sake of completeness, the plenary of the Constitutional Court also points to the current case-law of the European Court of Human Rights, which, in some cases - under the effectiveness of previous legislation - criticised the Czech Republic with an overly formalistic interpretation of the conditions of access to the Supreme Court and following this to the Constitutional Court (see, for example, the judgment in the case of Belgrade and Others against the Czech Republic of 12.11.2002 No 47273 / 99). However, it is clear from the judgment in Trevisanato v Italy of 15 September 2016, No 32610 / 07, in the view of the Constitutional Court, that the requirements currently imposed on the content of the pleadings do not contradict the Convention for the Protection of Human Rights and Fundamental Freedoms.
49. In the judgment cited, the European Court of Human Rights dealt with a situation where the complainant's appeal to the Italian Supreme Court of Cassation was rejected, as the complainant did not explicitly state in the text the legal question that the Court asked the Court to resolve, as required by the Italian Civil Code (similar to that required by Czech law). The complainant argued that he had been denied the right of access to the Court by refusing the appeal, but the European Court of Human Rights did not agree with that view. He stated that the regulation of the formalities for the exercise of remedies was intended to ensure the proper administration of justice and, above all, to contribute to legal certainty, while being a normal part of the procedural obligations of the participants to comply with these rules. Indeed, the right of access to the court is not absolute and it is at the discretion of the Member States which restrictions it will be subject to (on condition that they pursue and are proportionate to the legitimate objective).
50. The European Court of Human Rights summed up that its objective is twofold to formulate legal questions on extraordinary remedies. The clearly formulated legal question is primarily intended to indicate the solution of the case requested by the participant, and secondly, its wording constitutes a general legal conclusion applicable in similar cases in the future. The purpose of the legal requirement is therefore to protect the interested party's interest in achieving, if necessary, a change to the contested decision and also to respect the function of a higher court (it can be added that according to the Italian Government, the legislation in question was both a response to the practice in which the parties increasingly referred to the circumstances of the facts before the Italian Supreme Court of Cassation, which led to the Court's increased burden). The requirements for the content of the appeal before the Italian Supreme Court therefore pursue a legitimate objective and do not conflict with the requirements of legal certainty or the proper administration of justice.
51. The European Court of Human Rights also addressed the proportionality of the requirement to formulate a legal question, in the light of the case law of the Italian Supreme Court of Cassation, according to which it is not sufficient to implicitly deduct the legal question from the wording of the appeal, as this would circumvent the legislation. In a particular case, the complainant pointed out the wrong application of Italian Law No 223 / 1991 and stressed that the removal of workers from the scope of that Act was contrary to the more specified European Directive. In support of this argument, it also referred to the relevant caselaw. Following a summary of its reasoning, the Italian Supreme Court of Cassation requested the annulment of the decision of the Court of Appeal and a binding legal opinion. According to the European Court of Human Rights, the appeal thus formulated did not comply with the legal requirements. The termination of the appeal by means of a synthesis summarising the considerations put forward and explaining the principle of law which the party considers to be infringed, allegedly does not require any particular effort, and the procedure of the Italian Supreme Court of Cassation cannot therefore be considered too formalistic.
52. The European Court of Human Rights also took into account in its reasoning that the requirement to formulate a legal question arises from the law and from numerous case-law, according to which participants must expressly formulate a legal question which is to be the key to the preamble reasoning and allow the Court of Cassation to answer them by stabilising the interpretation applicable in similar cases.
53. It is clear that the decisions of the Supreme Court are very similar to those of the Italian Supreme Court when assessing the fulfilment of the content requirements. The legal remedies for both the Czech Republic and Italy are clearly laid down in the law, and there is also a rich case law on their compliance. In addition to what the European Court of Human Rights has dealt with in the present case, the Czech legislation requires, in addition to the wording of the legal question, a statement on the case-law of the Supreme Court on the legal question, as explained above, which is not too complicated and complex (the consultation of the relevant case-law should be of course). The only significant difference can therefore be found in that, under Italian law, lawyers representing parties before the Italian Supreme Court of Cassation must be entered on a separate list. This is not the case in the case of Czech legislation, but, in the view of the Constitutional Court, this does not in itself lead to the opposite of the conclusions made by the European Court of Human Rights in the judgment cited (for example, in the Court of Justice of the Court of Justice of Luxembourg of 10 December 2009, No 18522 / 06, although the absence of specialised lawyers took this into account, in a situation where, in the view of the European Court of Human Rights, the requirements of the Luxembourg Court of Cassation were unjustifiably strict; see Section 41-43 of the judgment cited). The Constitutional Court considers that any lawyer registered in the list of the Czech Bar Association must be able to formulate a relevant legal question and comment on the existing case law affecting it. It should be pointed out once again that the misinterpretation of the caselaw is no longer a procedural defect. The opinion adopted by this opinion is therefore fully in line with the Convention on the Protection of Human Rights and Fundamental Freedoms.
54. In the light of the case-law of the Supreme Court, which in some cases rejects the following as faulty claims which raise factual questions, the plenary of the Constitutional Court adds. It is clear that the primary task of the Supreme Court is to unify the case-law, which is only limited in nature in matters of fact. At the same time, there is no doubt that, in accordance with the fundamental principles of legal proceedings, the appellate courts are best equipped and predetermined to establish the facts. The procedure, which is usually not public, does not, in principle, serve to determine and reassess the facts and cannot serve. After all, the Constitutional Court also addresses matters of fact in the proceedings on constitutional complaints.
55. Nevertheless, the Constitutional Court concluded in its case-law that there may exceptionally be cases where the facts of the courts are so defective that they constitute a breach of the rights guaranteed by Article 36 (1) of the Charter (so-called extreme contradiction between the evidence and the facts). In such a case, the Constitutional Court has no choice but to grant protection to those rights. The Constitutional Court does not, therefore, replace the activities of the court of appeal and the grounds for the appeal are not in itself the fact that it does not agree with the factual findings made. This is usually a situation where the finding of a prima facie finding is so defective that the court could never, while respecting the fundamental principles of the assessment of evidence (cf. § 132 of the Civil Code and Others). Therefore, the review is not a reassessment of the facts, but rather a review of the procedure of the courts in the examination process. The question whether the courts have respected the procedural principles in determining the facts is already a question of law (a question of procedural law) and, as such, can be presented to the Supreme Court in the pleadings referred to in § 241a (2) and § 237 of the Civil Code.
56. The Constitutional Court is aware of the fact that the legal regulation of an appeal provides solely for objections of law (whether material or procedural), which corresponds to a single plea which is an incorrect legal assessment of the case (§ 241a (1) of the Civil Code). However, the interpretation of the legal regulation of the appeal must also be consistent with the legislation contained in Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, and the fact that it is the decision of the Supreme Court, which usually completes the entire civil procedure, thereby opening up access to the Constitutional Court for participants. Therefore, the relationship between the appeal procedure and the procedure for a constitutional complaint must be set so that the parties themselves can identify at each stage of the procedure what means of protection they have at their disposal.
57. In accordance with this requirement, the complainants are required to submit a notice under Article 75 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, in its version effective as of 1 January 2013, except where the notice is inadmissible by law. Therefore, if the unsuccessful party in the appeal proceedings wishes to "go" to the Constitutional Court, the appeal must be lodged regardless of the nature of the objections it makes to the appeal or finding decision. It follows that it cannot be regarded as a fault of the submission that the appellant who objects to infringement of his constitutionally guaranteed rights (and has properly defined what he sees to be the fulfilment of the preconditions of admissibility under § 237 to 238a of the Civil Code) has, in fact, relied on a plea other than that of an incorrect legal assessment of the case (cf. the finding of the Constitutional Court, sp. zn. I. ÚS 3851 / 15 of 5 April 2016, according to which the appeal is not a fault, if the appellant considers that the questions raised by him are of a legal nature). Similarly, it cannot be regarded as a fault that the appellant sees compliance with the preconditions for the admissibility of a claim in a question which, according to the Supreme Court, the appellate court does not explicitly "deal with '(and the Supreme Court therefore considers it only as a procedural defect which does not give rise to the admissibility of an appeal). The opposite interpretation would mean that Law No 182 / 1993 Coll., on the Constitutional Court, as amended, would in some cases force the complainant to make faulty submissions by definition, which is clearly unsustainable.
58. It is, of course, that this does not change the obligations of the appellants and, in contesting the breach of their constitutionally guaranteed rights, the proper definition of what they see as the fulfilment of the preconditions for the admissibility of the pleadings in the terms of Sections 237 to 238a of the Civil Code, as is also apparent from the above-mentioned legal opinion of the Constitutional Court, expressed in the decision of page III of the ÚS 1594 / 16.
Principle of subsidiarity of a constitutional complaint
59. On the principle of subsidiarity of the constitutional complaint, the plenary of the Constitutional Court expressed its views, inter alia, in the opinion of Mr Pl. ÚS-st. 38 / 14 of 4.3.2014 (ST 38 / 72 CollNU 599; 40 / 2014 Coll.), in which it was stated:
"Paragraph 75 (1) of the Law on the Constitutional Court has its legal basis as a principle of subsidiarity of a constitutional complaint, which also implies the principle of minimising the intervention of the Constitutional Court in the activities of public authorities, which means that a constitutional complaint is an extreme remedy for the protection of the law, starting when redress before those authorities is no longer possible by standard procedure. In particular, the Constitutional judiciary is based on the principle of a review of cases of final termination, in which the possible unconstitutionality is no longer remediable by other means, i.e. procedural means, which are provided by the legislation governing the relevant (judicial) proceedings. It is not for the Constitutional Court to circumvent the law because it is not part of the system of general courts (Resolution sp. zn. III. ÚS 3507 / 10 of 12.9.2012). In particular, the general courts and priori are addressed by an imperative formulated in Article 4 of the Constitution of the Czech Republic... Thus, the protection of constitutionality in the rule of law cannot only be the task of the Constitutional Court, but must be the task of the whole judiciary. The Constitutional complaint therefore constitutes an ultima ratio [see, for example, the finding of sp. zn. III.
The purpose and function of the constitutional complaint is to remedy a decision or other intervention by a public authority in the constitutionally guaranteed rights of the complainant... If the Constitutional Court itself, contrary to the principle of subsidiarity, had not previously exhausted all the possibilities of attaining a remedy for the unlawful situation, it could have inadvertently intervened in the competence of other state bodies (here general courts) and undermined the principle of division of competences. Therefore, in cases where the complainant does not use all available means of redress, the Constitutional Court considers the constitutional complaint inadmissible (Resolution sp. zn. III. ÚS 3507 / 10 of 12.9.2012). '
60. The long-term practice of the Constitutional Court is consistent in that the requirement to be exhausted is to understand the proper exhaustion, that is to say, in accordance with the law [see, for example, resolution sp. zn. III. ÚS 3209 / 08 of 22.1.2009, sp. zn. I. ÚS 1489 / 08 of 16.7.2009, sp. zn. IV. ÚS 2397 / 09 of 2.11.2009, sp. zn. III. ÚS 2425 / 10 of 7.10.2010 or find sp. Indeed, it would be unreasonable to conclude that, even if the complainants had to file the legal remedies offered by the law before filing a constitutional complaint, they did not have to file them in a perfect or timely manner. Since, in the case of defective submissions (for which defects have not been remedied), the courts would have had no choice but to reject those submissions without undergoing a substantive review, thereby creating a similar situation as if the appeal had not been applied at all, the principle of subsidiarity of the constitutional complaint would have been completely denied by this interpretation.
61. Therefore, the requirement to use the procedural instrument is no longer fulfilled by the initiation of the procedure, but also includes, logically, the obligation to "exhaust" those available under the open procedure on this basis, which presupposes, first and foremost, that it contains a sound argument about its admissibility. The lodging of a defective notice cannot be assimilated to the situation described in § 72 (4) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, i.e. that the extraordinary appeal was rejected as inadmissible for reasons which depend on the discretion of the institution which decides on it, since the complainant did not, by its procedure, allow the court to consider the admissibility of its claim. If the complainant's claim did not contain a prescribed definition of the admissibility of the claim and therefore it was not possible to continue the procedure, the complainant did not effectively use the procedural means of protecting its right (Section 72 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended). In the light of Article 75 (1) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended, the constitutional complaint must therefore be regarded as inadmissible in the part against decisions of the courts of the first and second instance under Article 43 (1) (e) of the Law No 182 / 1993 Coll., on the Constitutional Court, as amended by Law No 77 / 1998 Coll.
62. This conclusion is also valid where the Constitutional Court abolishes the decision of the Supreme Court on the ground that the findings of the Supreme Court of the parties do not identify the lack of compliance with the contents of the pleadings. The incorrect refusal of a request in these cases indicates that the Supreme Court did not deal with the submission at all. In the event that this refusal was erroneous, in certain circumstances this refusal may result in a breach of the complainant's fundamental rights, namely that the Supreme Court incorrectly prevented him from accessing the court which the law provides him. The logical remedy for this breach is to return the case to this court in order to deal with it properly.
63. By repealing the decision of the Supreme Court, the complainant is established a procedural space to protect his rights within the system of courts and to assess the objections raised by the court called upon to do so. Therefore, there is no reason in principle for the Constitutional Court, contrary to the principle of subsidiarity, to replace the activities of the Supreme Court in such a case and to carry out a constitutional review of the decisions of the lower-ranking courts without due appeal.
64. However, this does not preclude the Constitutional Court, in very exceptional cases where it requires an interest in the effective protection of fundamental rights, not only to proceed to the annulment of a flawed decision of the Supreme Court, but also to the constitutional review of decisions of lower-ranking courts.
Intertemporal effects
65. As has already been said, in some cases the Constitutional Court did not, in accordance with the principle of subsidiarity, proceed with a constitutional complaint and did not deny the constitutional review of the decision of the appeal and the finding court, with reference to the protection of legitimate expectations, in accordance with the principle of subsidiarity.
66. However, the Constitutional Court's Board considers that, in view of the long-term practice of the Constitutional Court, which rejects the constitutional complaints of complainants who have not properly exhausted the procedural means provided by the Law to them, as well as the practice of the Supreme Court, which has repeatedly emphasised the legal requirements imposed on claims (and has provided sufficient "instructions" to the applicants as to the proper presumption of admissibility of the authorisation), the complainants could not, despite the existence of inconsistency in the Constitutional Court's review case-law, have legitimate expectations.
67. At the time of the application, the party to the proceedings is to submit them in such a way as to meet the legal requirements and to be heard by the Supreme Court. If the appellant had acted in this way, it would not have been in doubt about what it was supposed to say and the appeal would have been properly dealt with, and a constitutional complaint would have subsequently been fully admissible. On the contrary, it cannot be accepted if the complainant does not respect the legal requirements (confirmed and repeatedly stressed by the case-law of the Supreme Court) in the knowledge that he does not care about the outcome of the appeal proceedings, since his final aim is to lodge a constitutional complaint which, despite the defects of the pleas in law of the Constitutional Court, is considered admissible. Such a procedure is contrary to the rules governing proceedings on constitutional complaints based on the principle of subsidiarity (§ 75 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended). Therefore, the complainant could not have established a legitimate expectation, in part of the case law of the Constitutional Court, that it did not have to comply with the legal requirements imposed on the content of the claim. This is all the more true when, in many decisions, the Constitutional Court partially rejected similar constitutional complaints for inadmissibility.
68. In the light of the above, this opinion also covers constitutional complaints already lodged and pending before the Constitutional Court.
President of the Constitutional Court:
JUDr. Rychetský v. r.
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, Judge Louis David took a different position on the opinion of the plenary.
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Regulation Information
| Citation | Communication from the Constitutional Court No 460 / 2017 Coll., on the Opinion of the plenary of the Constitutional Court of 28 November 2017, sp. zn. Pl. ÚS.45 / 16 on the constitutional conformity of the refusal of an appeal in civil proceedings and the inadmissibility of a constitutional complaint against previous decisions on procedural remedies for the protection of the law, unless it contains an indication of the presumption of admissibility |
|---|---|
| Regulation Type | Communication from the Constitutional Court |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 21.12.2017 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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