The Constitutional Court found No. 48 / 2010 Coll.
The Constitutional Court's finding of 19 January 2010 on the application for annulment of Sections 76g and 220 (3) of Act No. 99 / 1963 Coll., Civil Code of Procedure, as amended
Valid
48
FIND
The Constitutional Court
On behalf of the Republic
On 19 January 2010, the Constitutional Court decided in plenary in the composition Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimir Krórka, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský (Judge Rapporteur), Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of the company TV PRODUCTS CZ, s. r. o., IČ 26061333, with the seat of the Czech Parliament of the Czech Republic as participants in the proceedings
as follows:
I. Paragraph 220 (3) of Act No. 99 / 1963 Coll., the Civil Code, as amended, is in the part which allows for the amendment of the order by the Court of First Instance to refuse or reject an application for a preliminary measure or by which the procedure for such a proposal has been terminated, in the context of the now applicable and effective Civil Code, contrary to the principle of equality of parties under Article 37 (3) of the Charter of Fundamental Rights and Freedoms and Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms.
II. Paragraph 220 (3) of Act No. 99 / 1963 Coll., Civil Code, as amended, is hereby repealed on 1 April 2011.
III. As long as Article 220 (3) of Act No. 99 / 1963 Coll., the Civil Code, as amended, is in effect, the order which the Court of First Instance decided to reject or reject an application for interim measures or which terminated the procedure for such an application shall not apply.
IV. Motion to repeal § 76g of Act No. 99 / 1963 Coll., Civil Code, as amended, is rejected.
Reasons
Recital of the proposal
1. In due course and in due course of the constitutional complaint, the applicant requested that the Constitutional Court annul the finding of the order of the Supreme Court in Prague of 27 May 2008 No 3 Cmo 52 / 2008- 52 for the alleged infringement of Article 36 (1) and Article 37 (3) of the Charter of Fundamental Rights and Freedoms ("Charter") and Article 96 (1) of the Constitution of the Czech Republic ("Constitution"). The proceedings for a constitutional complaint are conducted under point II.ÚS 2100 / 08. With the proposal for the annulment of the resolution, it also requested the annulment of Sections 76g and 220 (3) of Act No. 99 / 1963 Coll., Civil Code, as amended, for the contradiction with Article 37 (3) of the Charter and Article 96 (1) of the Constitution.
2. By an action of 3 January 2008, Studio Moderna, s. r. o., and Studio Moderna SA claimed against the author and BESTSELLER, s. r. o., and Nodus Technologies, spol. s r. o., the imposition of an obligation to refrain from using more specified signs or operation of more specified websites. The application was also accompanied by an application for an interim measure requesting the applicant to determine most of the obligations contained in the petition. With regard to the appellant, the application to impose provisional measures was identical to its own petition. By order of 10 January 2008, the Municipal Court in Prague rejected the application for an interim measure. That decision was served only on the legal representative of the applicants. On 30 January 2008, the applicants lodged an appeal against this decision, which was subsequently supplemented by the submissions of 21 March 2008 and 1 April 2008. By the contested decision, the Supreme Court in Prague decided to comply with the application for interim measures in respect of all the defendant companies. The defendant was served on 30 June 2008 (TV PRODUCTS CZ, s. r. o., i.e. the appellant in the proceedings before the Constitutional Court).
3. In essence, the appellant's argument is that, as a result of its exclusion from the second degree of examination of the case (appeal procedure) in the case of an application for interim measures where the Court of First Instance rejected the application, the claimant receives undue protection, since it can claim in its application any infringement of its rights to the defendant at first and second stage, and the defendant is not granted any protection or defence against those claims and decisions, even after the Court itself has doubts as to the lawfulness of the applicant's claims. According to the appellant, the principle of first instance ruling on the application for a provisional measure without hearing the parties under Paragraph 75c (3) of the Civil Code is, in fact, broken. The result is that the defendant has been dismissed. Consequently, the appellant was not given the opportunity to oppose the decision of the First Instance, to state further arguments and explanations in its defence and to respond to individual arguments of the Court of First Instance in the event of the rejection of the application by the Court of First Instance. If, on the contrary, the Court of First Instance had complied with the applicant, the appellant would have the same rights in appeal proceedings as the applicant. In addition, the appellant submits that there is no reason in the appeal proceedings to enforce an attempt to obtain maximum protection for the appellant (as opposed to the proceedings before the Court of First Instance) in the event that the applicant has already been refused that protection by a negative order. Nor can such a conclusion be based on a hypothetical consideration that the defendant could, in an undetermined manner, thwart the provisional measures when, at first instance, no regulation was made and the claimant could have disclosed all the relevant facts before. In this context, the appellant disputes the Constitutional Court's legal conclusions contained in the resolution of 3 December 2007, sp. zn. IV. The Court of Justice of the European Union ("the Court of Justice ') held that the Court of First Instance had failed to reach a conclusion on a breach of fundamental rights as a result of failure to deliver a decision to reject or reject an application for an interim measure. For those reasons, the appellant claims that its exclusion from the appeal procedure has infringed the principle of equal treatment of the parties under Articles 36 (1) and 37 (3) of the Charter and Article 96 (1) of the Constitution (that provision is incorrectly referred to as Article 69 (1) of the Constitution in a constitutional complaint). It also sees an infringement of the principle of double-party proceedings, which it adds that this principle needs to be assessed in the light of the principle of equality between the parties. The Civil Code does not allow the defendant to lodge a proper appeal against the order for interim measures in appeal proceedings, while the appellant's right to appeal is granted in its entirety.
4. The constitutional complaint was also accompanied by a motion to abolish § 76g and § 220 (3) of the Civil Code. Following the arguments set out above, the appellant submits that the provision of Paragraph 76g of the Civil Code, according to which the defendant will not be aware of the refusal or refusal of the application for interim measures and the possibility of bringing an appeal by the applicant, constitutes a denial of the principle of equal treatment of the parties to the defendant. Where the appellant is granted the right to appeal against the decision and to express his opinion on it, which the Court of Appeal is discussing and taking decisions on, the same right should be granted in the appeal proceedings and to the person to whom the interim measure is to be imposed. It further submits that, as a result of Paragraph 220 (3) of the Civil Code, the court is required to proceed in such a way that the defendant is prevented from exercising his right to seek revision of the decision imposing an obligation on him. Unlike the appellant, he is thus denied the right to use all proper and extraordinary means. The application of the two provisions may result in direct interference with the party's right of equal treatment and the right to a fair trial. If a preliminary measure is ordered, the defendant will have the opportunity to comment on the case at a later date, but its claims will be assessed in the context of the procedure and decision-making in the substance of the case, replicated by the applicant, and the very fact of the existence of the regulation will not affect the obligation and will not be reversed.
Proceedings before the Constitutional Court and recap the observations of the parties
5. By order of 23 June 2009 No 2100 / 08-49 of the ÚS 2100 / 08- 49, the Second Chamber of the Constitutional Court came to the conclusion that the application of Article 76g and Article 220 (3) of the Civil Code gave rise to a fact which is the subject of a constitutional complaint, and therefore the appellant's application for annulment of the contested provisions was referred to the Constitutional Court's decision pursuant to Article 87 (1) (a) of the Constitution.
6. The Constitutional Court requested documentation and invited the parties to comment on the application for annulment of the contested provisions. The Ministry of Justice also called for the opinion, having regard to its jurisdiction in relation to the courts.
7. The Senate, in its observations signed by its President Sobotka, summarised the legislative process in the Senate in relation to the draft law amending the Civil Code, which was supplemented by § 76f (later renumbered by Act No. 135 / 2006 Coll. to § 76g) and § 220 (3) and which was published as Act No. 59 / 2005 Coll.
8. The Chamber of Deputies, in its observations signed by its Vice-President Miroslava Nemcová, summarised the legislative process in relation to Act No. 59 / 2005 Coll., as well as Act No. 135 / 2006 Coll. In this context, it stated that both amendments to the Act were approved by the necessary majority of Members of the Chamber of Deputies, signed by the relevant constitutional authorities and duly declared. At the same time, it expressed its view that the legislature acted in the belief that the law adopted was in line with the Constitution and the rule of law.
9. In its observations, the Ministry of Justice acknowledged that, in the case of an order for interim action, the appellant's appeal by the Court of Appeal would be final, without having the power to appeal against the appellant. However, the President of the Chamber shall, in accordance with Paragraph 77 (2) of the Civil Code, withdraw provisional measures if the reasons for which it was ordered cease to exist. A participant to whom a provisional regulation is imposed shall be entitled at any time to submit a request for the annulment of the provisional measure, stating that the reasons for which it was ordered have ceased or never existed.
10. In relation to the alleged infringement of the contested provisions with Article 37 (3), The Charter of the Ministry stated that the interim measure regulation procedure was de facto a reinsurance institution of its kind and not a confirmatory procedure, whereas the possibility of a provisional measure being granted is linked to the submission of an application for the initiation of proceedings on the substance in which a binding decision will be taken on the rights and obligations of the parties. All principles expressed in constitutional laws must always be assessed as a whole in a specific procedure and not individually. In the present case, according to the Ministry of Justice, it should be concluded that the principle of equality of arms, which is fully applicable in the case at hand, outweighs the principle set out in Article 36 (1) of the Charter. If this provision is not to be merely a declaration of the rights of individuals, its meaning must be fulfilled in practice, and thus it is without doubt possible for individuals to actually exercise their rights in court proceedings. However, in the absence of an effective means of resolving the situation between the parties in the meantime until a binding decision has been taken, it could be possible for the court to grant the applicant his rights, but, in fact, it would no longer be possible to implement it voluntarily or by enforcement. Finally, the Ministry of Justice stated that the contested provisions were in accordance with the constitutional order.
11. Since the oral hearing of the Constitutional Court in accordance with Article 44 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, the Constitutional Court has waived since it concluded that further clarification of the case could not be expected of it, and the parties to the proceedings gave their assent to the abandonment of the oral hearing.
Petit of the proposal and the classification of the contested legislation
12. The appellant seeks the annulment of Sections 76g and 220 (3) of the Civil Code as amended.
13. Paragraph 76g of the Civil Code reads: "If an application for interim measures has been rejected or rejected or the application has been terminated, the order shall be served only on the appellant. The same copy of the order shall be sent to the appellant or, where appropriate, to his representative within 3 days of the date of publication or issue of the order. '
14. Paragraph 220 (3) of the Civil Code reads: "If the conditions for the confirmation of the order which decided on the interim measure or any other order which has not been decided on the substance of the case or for its annulment pursuant to Paragraph 219a (1) are not met, the Court of Appeal shall amend it."
Constitutional conformity of the legislative process
15. Pursuant to Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Constitutional Court ascertains in the proceedings for the annulment of laws and other laws whether the contested law or other legislation has been adopted and issued within the limits of the Constitution laid down by competence and by the constitutional procedure. In this assessment it was based on the observations of the parties and on publicly available sources of information at www.psp.cz and www.senat.cz.
16. From the above documents, the Constitutional Court found that the draft law (House Press 643, Chamber of Deputies, 4th Election, 2002-2006), which was subsequently declared as No 59 / 2005 Coll., amending Act No. 135 / 2006 Coll., the Civil Code, as amended, and certain other laws which incorporated the contested provision § 76g into the Civil Code (Amendment to Act No. 135 / 2006 Coll., amending certain laws in the field of protection against domestic violence, originally designated as § 76f) and the provisions of § 220 (3), was approved by the Chamber of Deputies on 26 November 2004 by Resolution No. 1399 (vote No 169). Of the 189 Members present, 183 voted in favour, against 3. The Senate discussed the draft law (Senate Press 467, Senate, 4th term of office, 2002-2004) on 5 January 2005, expressing its willingness not to deal with the draft law by resolution 31 (vote 13). Of the 64 senators present, 41 senators voted against this resolution. On 13 January 2005 the law was delivered to the President of the Republic, who signed it on 20 January 2005.
17. The bill (House Press 828, Chamber of Deputies, 4th Election, 2002-2006), which was published under No. 135 / 2006 Coll., amending certain laws in the field of protection against domestic violence, was approved by the Chamber of Deputies after the Senate (Senate Press 197, Senate, 5th term of office, 2004- 2006) was returned with amendments by resolution No 312 of 26 January 2006 (vote No 28). On 14 March 2006, the Chamber of Deputies continued with Resolution 2267 (vote 142) on the text of the proposal which was referred to the Senate. Of the 176 Members present, they voted in favour of 139, against 15. The Act was served on the President of the Republic on 22 March 2006 and signed on 31 March 2006.
18. Given that the appellant did not object to a defect in the legislative process or to a breach of the legislature's constitutional competence, and having regard to the principles of procedural economics, the Constitutional Court continued to examine the constitutional conformity of the legislative process and to satisfy itself with the above formal verification of its conduct on the basis of the above elements.
Self-assessment of the proposal
19. The Constitutional Court dealt with the alleged contradiction of the contested provisions with the principle of equality between the parties within the meaning of Article 37 (3) of the Charter.
20. The preliminary measure constitutes a procedural instrument which allows, before a decision by the General Court on the substance of the case, the party to the proceedings to be required to adjust the circumstances of the parties or to be concerned that the enforcement of the judgment would be jeopardised. The purpose of the provisional measure is therefore the provisional regulation of rights and obligations, which does not exclude that the protection of the rights of the party to the proceedings will be granted by a final decision on the matter, but ensures that such final decision can be of any real importance (cf. Resolution of 23 February 2005 sp. zn. IV. ÚS 601 / 03, accessible at http: / / nalus.ujud.cz).
21. Although the preliminary measure is merely a temporary regulation of legal relations, it is a decision which, as is apparent from the settled case-law of the Constitutional Court, is capable of intervening in the fundamental rights and freedoms of the individual (e.g. the finding of 10 November 1999 sp. zn. II. ÚS 221 / 98, N 158 / 16 SbNU 171, or the finding of 21 November 2001 sp. zn. IV. ÚS 189 / 01, N 178 / 24 SbNU 327). The imposition of a certain obligation in this way, depending on the subject-matter of the proceedings before the General Court, may, in principle, affect the status of the party concerned and affect his fundamental rights and freedoms. Typically, a restriction on the ownership of a party may be envisaged as a consequence of the requirement to refrain from certain proceedings. However, a preliminary measure may also constitute an intervention in the rights relating to the right to judicial and other legal protection. In this context, the Constitutional Court observes that the fundamental rights contained in Title Five of the Charter are reflected not only in relation to the assessment of the legal proceedings as a whole, but also in relation to the assessment of the various parts of the proceedings before the general courts. It is not necessary, however, for the requirements arising from individual constitutional procedural rights to operate in the same intensity in all its parts. However, the restriction of fundamental procedural rights cannot be arbitrary and must take into account that the purpose of judicial proceedings is to provide protection for individual subjective rights. The infringement of the procedural rights of a party may thus be adversely reflected in other fundamental rights of the party, such intervention being of a direct and irreversible nature from the point of view of further proceedings (cf. Resolution of 30 October 2006 sp. zn. IV. ÚS 394 / 06, accessible at http: / / nalus.ujud.cz).
22. The principle of equality between the parties constitutes a fundamental principle of a fair process. It is primarily found in Article 37 (3) of the Charter and Article 96 (1) of the Constitution and, at the level of sub-constitutional law, it is enshrined in Article 18 of the Civil Code for civil proceedings, and it is reflected in a number of other provisions of this law. This constitutional principle guarantees the equal position of the parties to the legal proceedings as regards the rights conferred on the parties to a particular type of proceedings by the legal order (cf. the finding of 21 August 2008 sp. zn. II. ÚS 657 / 05, accessible at http: / / nalus.udou.cz). Similarly, this principle is interpreted in the established case law of the European Court of Human Rights, which considers the principle of 'equality of arms' as part of the right to a fair trial within the meaning of Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '). It follows from that principle that each procedural party should be given a reasonable opportunity to present its case, including evidence, under conditions which do not put it in a significantly less favourable situation than that of its counterparty (judgment of 27 October 1993 in Dombo Beheer B. V. v Netherlands, No 14448 / 88, paragraph 33).
23. On the basis of those postulates, the Constitutional Court states that the principle of equal treatment of the parties also acts as part of the judicial proceedings in relation to proceedings for interim measures, in particular with regard to the possibility of imposing an obligation which may significantly affect the legal status of the defendant. Therefore, where a preliminary measure is to be imposed, the parties must be able to apply their claims and objections to the case before the Court in a comparable manner in relation to the application in question, which shall, in a relevant way, be reflected in the Court's view in relation to the assessment of the merits of the application.
24. The position of the parties to the interim measure regulation at the level of simple (sub-constitutional) law shows a number of specifics compared to the case-law. Under Paragraph 74 (2) of the Civil Code, the parties are, in addition to the appellant, those who would have been if it had been a case itself. However, the application shall not be served on the other parties in the proceedings before the Court of First Instance. In fact, the Court of First Instance decides on the application without a regulation of a public hearing, and only if it accepts the application in part to service the other parties.
25. The contested provision of Paragraph 76g of the Civil Code thus provides for an exception to the general provision for service of orders under Paragraph 168 (2) of this Law, since, although an appeal against such a decision is admissible, it is not served by participants other than the appellants in the event of the suspension or refusal of the application for interim measures or of the termination of the procedure for such an application. According to the appellant, the division of Article 76g of the Civil Code with Article 37 (3) of the Charter is made as a result of the restriction of the possibility of an appeal against the order ordering interim measures. In fact, a party to proceedings may appeal against the order of the Court of First Instance, which, if the Court of First Instance has not complied with the application, means that only the appellant will be able to appeal. Only he was served with the order of the Court of First Instance. However, the Constitutional Court did not agree with that argument, which is why it also did not testify to the alleged contradiction of that provision with the principle of equality between the parties.
26. It cannot be inferred from the principle of equality between the parties to the proceedings that all the parties must have at any time at the same time a means of procedure. On the contrary, in the case of certain means of procedure, it follows from their nature and purpose that their application may be made by only one party. This will also be the case in the case of an application for interim measures, as this measure serves to ensure that the entitlement and the effectiveness of the possible grant of judicial protection are negotiable. Where the legislature has, in cases where the contested Section 76g of the Civil Code is concerned, allowed the applicant to appeal against the decision of the Court of First Instance, its action was justified by an interest in the effective protection of the applicant's subjective right. By delivering the decision of the Court of First Instance, the defendant would also be signalled by the said procedural activity of the applicant and would provide a certain period of time for actions which could thwart the effectiveness of the measure subsequently issued (order of 3 December 2007 sp. zn. IV. ÚS 2959 / 07, accessible at http: / / nalus.ujud.cz). Therefore, it cannot be seen, in the absence of this decision itself, that the defendant, which essentially ensures the effectiveness of the appeal of the applicant, is in breach of the principle of equality between the parties. Such an interpretation would make no sense, not only in relation to the interest of the applicant but also in relation to the defendant, since he could hardly be interested in bringing an appeal against the order which the court rejected the application for interim measures (such an appeal would have to be found subjectively inadmissible). Moreover, from the point of view of the principle of equality between the parties, it should be stressed that, in relation to any claim or evidence made by the applicant in relation to a draft interim measure which might be relevant to the decision of the General Court on the substance of the case, the defendant may make observations in the context of legal proceedings. For the reasons set out above, the Constitutional Court did not find the contradiction of § 76g of the Civil Code with the principle of equality between the parties under Article 37 (3) of the Charter.
27. As regards the contested provision of Paragraph 220 (3) of the Civil Code, that provision provides that, if the conditions for the confirmation of the order which decided on the interim measure or any other order which has not been decided on the substance of the case are not fulfilled, the Court of Appeal shall amend it. In this context, the Constitutional Court points out that the unconstitutional nature of that provision is generally not opposed to the limitation of the possibility of appeal by the Court of Appeal to cases under Paragraph 219a (1) of the Civil Code, but only in relation to cases where the appeal is directed against a decision on a provisional measure which, pursuant to Article 76g of the Civil Code, is not delivered to other parties. The contested provision was therefore examined by the Constitutional Court only to that extent.
28. As mentioned above, the interim measure is liable to significantly interfere with the fundamental rights and freedoms of the party. To fulfil the obligation arising from the principle of equality between the parties means that, in the context of legal proceedings, the possibility of asserting its claims must be guaranteed in such a way that no procedural party is significantly disadvantaged in terms of its own assessment by the General Court in the context of proceedings. The legal arrangements for the interim measure regulation must therefore create a procedural space in order to ensure that, when reflecting the purpose of the interim measure, the party concerned has at the same time the real possibility of protecting his rights in relation to the interim measure ordered, in particular in view of the fact that the judicial proceedings are not limited by the deadline, which means that the interim measure may produce effects for a not negligible period until the final termination of the procedure.
29. Assessment of the conformity of Article 220 (3) of the Civil Code with regard to the procedure for the regulation of interim measures with regard to the principle of equality of parties pursuant to Article 37 (3) The Charter therefore provides for the answer to the question whether the current legislation allows a party to whom a provisional measure has been imposed to apply its claim and objections to an extent similar to that of the appellant, irrespective of whether the interim measure was ordered by a court of first or second instance. The Constitutional Court concluded that this is not the case.
30. Before that, the Constitutional Court examined whether the possibility of asserting the defendant's claim was or could be given during the appeal proceedings itself, in particular in the light of Articles 210 (1) and 214 (2) (c) of the Civil Code. The two provisions relate to the appeal procedure, in which case they give rise to scope for other parties to make their claims. According to the first provision, the President of the Chamber shall deliver the appeal to the other parties only in the case of a judgment or order relating to the substance. In other cases, as is the case in the case of interim measures, the court does not deliver an appeal. On that provision, the Constitutional Court has repeatedly stated, in the context of the decision on appeal, only against the statement on the reimbursement of costs that, although it does not "imply that the court is under an obligation to deliver copies of the appeal against non-substantive decisions to the other parties, this does not mean that the Court of First Instance cannot do so on the basis of the consideration (constitutionally consistent) of the appropriateness and effectiveness of such a measure in the light of the circumstances of the case or of the specific case '(the finding of 26 September 2005 sp. Similarly, he expressed his views on the possibility of not ordering proceedings under Paragraph 214 (2) (e) of the Civil Code where the appeal concerns only costs. In the present case, however, the situation is different from that of the appeal proceedings relating only to the reimbursement of costs.
31. As mentioned above, the interim measure creates a precondition for the effective protection of the subjective rights of the party before the court. The effectiveness of such protection is due to the fact that this measure is capable of rapidly establishing an obligation against the defendant, thereby preventing the subsequent enforcement of a judicial decision from being jeopardised, or thereby avoiding any negative consequences in the legal sphere of the appellant which could arise as a result of the impossibility of exercising his rights until the Court's decision on the substance of the case. The requirement of speed, as well as the predictability of the predictability of the imposition of provisional measures to the party concerned, allows for the effectiveness of that procedural device. The exclusion of these requirements would make it impossible for this device to be effective in the judicial protection of subjective rights and would therefore be negatively reflected in the fundamental right to judicial protection under Article 36 (1) of the Charter, which foresees the existence of legal means for the effective protection of subjective rights. If the court had sent an appeal against a decision of the Court of First Instance which it had failed to comply with the application for interim measures, to the other parties or if it had ordered a hearing within the meaning of Article 214 (2) (b). (c) the Code of Civil Procedure, in fact, would make it impossible, in a number of cases, to achieve the protection of rights in the form of interim measures, since the defendant could, through his procedure, make it impossible to achieve its purpose. Thus, such a procedure of a general court is excluded from the nature of the preliminary regulation and it can be concluded that the interpretation and application of Article 210 (1) and Article 214 (2) (c) of the Civil Code cannot be ensured, in the light of the purpose of the interim measure, that the defendant can exercise his procedural rights.
32. The possibility of claiming and objecting to the defendant shall not be given after the decision of the Court of Appeal ordering the interim measure. Nor can any initiative for the annulment of provisional measures by a court within the meaning of Paragraph 77 (2) of the Civil Code be considered an appropriate procedural instrument. This provision essentially makes the duration of the provisional measure conditional on the duration of the reasons for which it was ordered. According to that provision, the Court of First Instance is required to abolish the provisional measures if, in its view, the reasons for its regulation cease to exist. It is clear from the above that any complaint with regard to a court could not have achieved a review of the legality of the provisional measure at the time of its regulation, since under that provision the court assesses the actual duration of these conditions and not whether those conditions were given at the time of the regulation.
33. In these circumstances, the Constitutional Court therefore notes that the current legislation does not create a procedural space for a party to whom, as a result of an amendment to the order of the Court of First Instance by the Court of First Instance pursuant to Paragraph 220 (3) of the Civil Code, an obligation is imposed by a preliminary measure in order to protect, to a similar extent as an applicant, his rights in proceedings before a court. Consequently, as a result of the legislation, a contradiction with the constitutional principle of equality between parties is established at the level of the simple (sub-constitutional) law, which may lead to a breach of the fundamental right of the party resulting from that principle in the application of that legislation.
34. Constitutional Court in view of Article 37 (3) The Charter has not come to the conclusion that the exclusion of the possibility of abolishing the decision of the Court of First Instance on a provisional regulation within the meaning of the contested Paragraph 220 (3) of the Civil Code may in itself be considered unconstitutional. However, where the Court of First Instance has not complied at least in part with the application for a preliminary ruling, it is precisely in the absence of any other means of protection of the rights of the defendant, which precludes the granting of protection of his fundamental right in proceedings before the general courts within the meaning of Article 4 of the Constitution. The contested provision is therefore contrary to the principle of equality of parties under Article 37 (3) of the Charter and at the same time Article 6 (1) of the Convention.
Formation of the operative statement and its legal consequences
35. The Constitutional Court has concluded that, in view of the above reasons, Article 220 (3) of the Civil Code is contrary to Article 37 (3) of the Charter and Article 6 (1) of the Convention. In this context, however, it reiterates that the grounds for making such a dispute apply only to cases in which the appeal is directed against a resolution of the Court of First Instance, where the application for a preliminary measure has been rejected or refused or whose application has been terminated, and the appeal court considers that this order should be amended in such a way as to at least partially comply with the application. The Constitutional Court is aware that the derogatory ground applies only to the sub-legal standard contained in that provision, but nevertheless, in view of its competence, it is not for it to reformulate that provision, for example by adopting only its annulment in the part relating specifically to the interim measure, that is to say in the part defined by the "order which decided on the provisional measure 'or" (cf. the finding of 30 November 2004 sp. zl. ÚS 15 / 04, N 180 / 35 SbNU 391, 45 / 2005 Sb.). In addition, if the Constitutional Court had annulled this provision only in the words of the "order which decided on a provisional measure or', the decision on a provisional measure would have continued to be inferior to the Torso of Paragraph 220 (3) of the Civil Code, since it is undoubtedly a" order which has not been decided on the substance '. Partial deregulation would therefore not lead to the removal of the unconstitutional state. In addition, the unintended consequence of such a derogation would also be to exclude the possibility of amending the contested order even in a situation where at least part of the application for interim measures has been granted at first instance, the debtor has served the order and appealed against it. Such a procedural situation is in no way affected by a derogatory reason.
36. It is up to the legislator to decide on what legislation it will adopt to decide on a provisional measure, which would eliminate this finding of a defined constitutional deficit. The Constitutional Court reiterates that it arises in the context of the entire legislation governing provisional measures in the civil court order, and there has been a complete absence of the right to be heard and a complete lack of legal defence of the defendant against the interim measure imposed on that party by a second-degree court, contrary to the appellant and to the situation that would arise if the interim measure had already been ordered by the Court of First Instance. The Constitutional Court adds that this finding cannot be interpreted in the way that the only possible solution is to absolutize the possibility of appeal by the Court of First Instance in the appeal proceedings in question. In this sense, the legislature is not limited, and other solutions can be envisaged on its part, such as extending the grounds for the application for the annulment of an interim measure pursuant to Paragraph 77 (2) of the Civil Code or introducing a completely new procedural means by which the obliged party could reach a hearing on the subject of an interim measure ordered, submitting its views on the matter and reviewing the interim measure ordered in a short time. A combination may also be considered with the possibility of an autoremedura in the event of an appeal by the appellant against the refusal of an application for interim measures by a court of first instance and, consequently, the subsequent opening of the defendant's possibility of bringing an appeal before a second instance court. For the sake of completeness, the Constitutional Court also mentions the possibility of extending applications to situations in which a second-degree court will order a second-degree court to amend the order of the Court of First Instance, but this solution seems not to be appropriate in a systematic manner and in view of the need for speed of proceedings for interim measures. Moreover, the Constitutional Court adds that attention should be paid to a comprehensive reassessment of the procedural rules governing interim measures with a consistent reflection of constitutional principles and constitutional guarantees of fundamental rights, in particular the distinction between functions and purposes of different interim measures in different types of proceedings and of the corresponding procedural differences between the different types of interim measures. The current legislation, even when compared to other countries, appears to be unintended.
37. The Constitutional Court illustrates, for example, the procedural rules in the neighbouring countries, from the point of view of the legal culture of the countries close to us. For example, the Austrian Enforcement Order (RGB1 1896 / 79, § 378 to 402) provides for specific means of defence not only to the claimant who has not been complied with, but also to the defendant to whom a preliminary measure has been imposed, the so-called resistance (Widerspruch) and the recursion (Recurs), both allowing the defendant, in different procedural situations, to be heard and to obtain a review of the interim measure (in short and in a simplified manner, the opposition is the responsibility of the applicant if the defendant did not have the opportunity to comment before the order of the preliminary measure in the event that he had, or if the application was rejected - then the right of the recur to the applicant). The German Civil Code (Zivilprozessordnung of 30.1.1877, RGB1. S. 83, reproclaimed as amended on 5.12.2005, BGB1.I S. 3202, § 916 to 945) equally distinguishes between several procedural means of defence of both parties to the dispute against the decision on interim measures - appeal (Berufung), opposition (Widerspruch) of the defendant against the order for interim measures or an immediate complaint (sofortige Beschwerde) against the order to reject the application. Here too, the opposition is an instrument by which the defendant exercises his right to be heard in a situation where he was not allowed to do so before the decision (i.e. here before the order for interim measures).
38. Due to the importance of that provision for the decisions of the appellate courts and the fact that the derogatory reason for that provision only affects certain cases of its application, the Constitutional Court decided, pursuant to Article 70 of Law No 182 / 1993 Coll., on the Constitutional Court, as amended by Law No 48 / 2002 Coll., that that provision is only repealed on 1 April 2011. This creates sufficient scope for legislators to adopt constitutional conformity legislation. Until that date, that provision remains applicable, except in cases where the operative reason for that provision is affected and where the application of that provision would result in a breach of the fundamental right of the parties concerned pursuant to Article 37 (3) of the Charter and Article 6 (1) of the Convention.
39. In this context, the Constitutional Court adds that the assessment of the compliance of a law or other law in a procedure under § 64 et seq., Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, is not only reflected in the plane of validity of the law, but also in the plane of its applicability. The Constitution itself does not restrict the protection of fundamental rights and freedoms where the reason for their infringement lies in the application of an unconstitutional rule, only in the abolition of such a rule by the Constitutional Court, but also in relation to the application of such a rule by public authorities. This conclusion is clear from the constant case-law of the Constitutional Court, which admits a review of both the repealed Act on a proposal from the General Court pursuant to Article 95 (2) of the Constitution in the event that this Court concludes that it is contrary to constitutional order (finding of 10 January 2001 sp. zn. Pl. ÚS 33 / 2000, N 5 / 21 CollNU 29, 78 / 2001 Coll.; finding of 6 February 2007 sp. zn. Pl. ÚS 38 / 06, N 23 / 44 SbNU 279, 87 / 2007 Coll.; finding of 29 January 2008 sp. In such a case, it is not decisive whether that law has been repealed but whether the legal rule contained in its wording is still applicable and whether the assessment of the question of constitutionality is a prerequisite for the Court's decision on the substance of the case.
40. In this case, too, it cannot be omitted that the Constitutional Court first decides on the constitutionality of the rule of law in question in proceedings concerning the repeal of laws and other legislation. Where, in proceedings on a proposal pursuant to Article 95 (2): The Constitution is decided by the Constitutional Court on the constitutionality of the laws which have already been repealed, as a result of the statement that the constitutional order of non-applicability of the legislative provision in question is not applicable (the finding of 7 April 2009 sp. zn. It is therefore clear that this effect must also be applied when it comes to assessing the constitutionality of the law still in force. Therefore, despite the establishment of a later date of annulment of the contested provision, the general courts are entitled not to apply Paragraph 220 (3) of the Civil Code in cases where such an application would entail an amendment to the order of the Court of First Instance, which rejected or refused an application for a preliminary ruling or which had been terminated proceedings for such an application, in the sense that such amendment would at least partially comply with the application. The application of that provision would infringe the fundamental right of the defendant under the principle of equality between the parties within the meaning of Article 37 (3) of the Charter.
41. The Constitutional Court therefore concludes that Article 220 (3) of the Civil Code is contrary to Article 37 (3) of the Charter and Article 6 (1) of the Convention, which is why it has decided pursuant to Article 70 (1) of the Law No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 48 / 2002 Coll., that that provision is to be repealed, while the enforceability of that statement under Article 58 (1) of the Law on the Constitutional Court has been postponed to a later date in order for the legislator to have the necessary scope for the legislature to adopt comprehensive constitutional legislation. Since the postponement of the enforceability of the derogatory statement in the present presence of the derogatory plea causes great tension in the application practice, the Constitutional Court was forced to remove that tension by means of an interim amendment in the form of an interpretative statement under point III. Finally, he rejected the application for annulment of Paragraph 76g of the Civil Code under Paragraph 70 (2) of the Constitutional Court Act as unfounded.
President of the Constitutional Court:
JUDr. Rychetský v. r.
A different opinion under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, was taken by Judge Ivan Janů in plenary.
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Regulation Information
| Citation | The Constitutional Court found No. 48 / 2010 Coll., on the application for annulment of § 76g and § 220 (3) of Act No. 99 / 1963 Coll., Civil Code of Procedure, as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 23.02.2010 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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