Communication from the Constitutional Court No 79 / 2009 Coll.

The constitutional complaint, which is against the final decision of the Court of Appeal, which was rejected in civil proceedings by the complainant's appeal, is inadmissible pursuant to Article 75 (1) of Law 182 / 1993 Coll., on the Constitutional Court, as amended, if the complainant has not brought an action for confusion under Article 229 (4) of the Civil Code against that decision.

1. On 24 July 2008, the Constitutional Court received a constitutional complaint from the complainant P. D. requesting the annulment of the order of the Supreme Court in Olomouc of 9 April 2008 No 5 Cmo 130 / 2008-46. The proceedings concerning the abovementioned constitutional complaint are conducted under the heading "I. ÚS 1847 / 08 '(Note: resolution sp. zn. I. ÚS 1847 / 08 of 17 December 2008, available at http: / / nalus.ujud.cz). The constitutional complaint was directed against the final order of the Court of Appeal, which, in conjunction with Paragraph 43 (2) of the Civil Code, rejected the complainant's appeal against the order of the Regional Court in Brno sp. v............................ The complainant did not bring an action for confusion against the contested decision pursuant to Paragraph 229 (4) of the Civil Code.

2. In Case C-689 / 05 [2006] ECR I-ÚS 689 / 05 of 21 June 2006 (N 126 / 41 SbNU 575) * there was a constitutional complaint against the order of the Court of Appeal, which rejected the appeal of the complainant pursuant to Paragraph 43 (2) in conjunction with Paragraph 211 of the Civil Code, which was therefore a similar issue to that dealt with in the case under point I of the ÚS 1847 / 08. It is also a finding of sp. zn. III. ÚS 473 / 01 of 13 December 2001 (N 198 / 24 SbNU 491), in which the complainant challenged the decision of the appeal court on grounds of late appeal under § 218a of the Civil Code, the finding of sp. zn. III. ÚS 133 / 03 of 29 January 2004 (N 14 / 32 SbNU 123) and the finding of sp. zn. I. ÚS 83 / 04 of 29 June 2005 (N 132 / 37 SbNU 665), in which the constitutional complaint was directed against the decision of the appeal court of appeal as filed by an unjustified person under § 218 (b) of the Civil Code of the Court of Appeal, and the finding of page I. ÚS 586 / 05 of 9 October 2007 (available at http: / nalus.újud.cz).

3. In those findings, the Constitutional Court ruled by finding the substance of the case, while the fact that the applicants for confusion did not challenge the final order of the appellate court which refused the appeal did not implicit in the plea of inadmissibility of the constitutional complaints in question.

4. On the basis of a proposal from the Judge-Rapporteur, the First Chamber of the Constitutional Court, which, according to the schedule of work, would have jurisdiction to rule in Case I. ÚS 1847 / 08, concluded that a constitutional complaint should be considered inadmissible under Paragraph 75 (1) of the Law on the Constitutional Court because it is directed against the final order of the Court of Appeal, which rejected the appeal of the complainant, and the complainant did not contest that decision by an action for confusion, which allows him to do so under Article 229 (4) of the Civil Code. It could therefore be rejected by the Judge-Rapporteur under Paragraph 43 (1) (e) of the Constitutional Court Act.

5. However, that legal conclusion deviates from the legal conclusion that the Constitutional Court implicated in the above findings. The First Chamber therefore submitted a draft opinion to the plenary of the Constitutional Court by which the plenary of the Constitutional Court would have a divergent legal opinion of the First Chamber and discuss it. Otherwise, the First Chamber or the Judge-Rapporteur would be bound in his decision by the legal opinion resulting from the findings so far and would have to consider the Constitutional Complaints sp. zn. I. ÚS 1847 / 08 as admissible and eligible meritorial hearing.

6. The Plenum of the Constitutional Court has concluded that it is possible to attest to the legal opinion of the First Chamber of the Constitutional Court. Pursuant to Article 229 (4) of the Civil Code, a party may challenge an action for confusion by a final order of the Court of Appeal, which has been refused appeal. On the basis of that provision, the party whose appeal has been refused has a procedural means of examining whether the conclusion of the Court of Appeal that the appeal had to be rejected is in accordance with the law, or constitutional order. For this reason, an action for confusion under that provision should be regarded as a procedural instrument whose exhaustion is a prerequisite for the admissibility of a constitutional complaint. That legal opinion was accepted in a number of resolutions of the Constitutional Court rejecting constitutional complaints for inadmissibility pursuant to Article 43 (1) (e) of the Law on the Constitutional Court on the ground that the complainant did not bring an action for confusion in the present case (e.g. resolution of 13 August 2007 sp. zn. I. ÚS 1988 / 07, resolution of 16 January 2008 sp. zn. IV. ÚS 2618 / 07, order of 18 June 2008 sp. zn. II. ÚS 1276 / 08, resolution of 18 September 2008 sp.