The Constitutional Court found No. 84 / 2007 Coll.
The Constitutional Court's finding of 6 February 2007 on the application for annulment of the provisions of § 31 paragraph 4 of the third sentence of Act No. 82 / 1998 Coll., on liability for damage caused in the exercise of public authority by decision or by maladministration and amending the Act of the Czech National Council No. 358 / 1992 Coll., on notaries and their activities (notarial order)
Valid
The Constitutional Tribunal found
Text versions:
20.04.2007
84
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 6 February 2007, as amended by the amending resolution of 3 April 2007 in plenary composed of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Jan, Vladimir Krůrek, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodemí, Pavel Rychetský, Eliška Wagner and Michaela Židlická on the proposal of the Regional Court of Ostrava to abolish the provisions of § 31 paragraph 4 of Act No. 82 / 1998 Coll., as amended by the Act of the Constitutional Court No 234 / 2002 Coll.
as follows:
Motion denied.
Reasons
Definition and recap of the proposal
The Constitutional Court received on 26 April 2006 a proposal by the District Court in Ostrava to abolish the provisions of § 31 paragraph 4 of the second sentence (according to the content of the proposal is the third sentence) of Act No. 82 / 1998 Coll., on liability for damage caused in the exercise of public authority by a decision or an incorrect official procedure and on the amendment of the Act of the Czech National Council No. 358 / 1992 Coll., on notaries and their activities (notarial order), as amended by the Constitutional Court's finding No. 234 / 2002 Coll.
The appellant did so pursuant to Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, after having concluded, in the context of its decision-making activities in accordance with Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and § 109 (1) (c) of the Civil Procedure Code (hereinafter referred to as "o.s. '), that the provisions of Article 31 (4) of the Second sentence (according to the content of the proposal are the third sentence) of Act No. 82 / 1998 Coll., to be used in the resolution of the sp.
In that case, sp. zn. 85 C 446 / 2004, the Regional Court of Ostrava is decided on the action by Ing. M. K., brought under Act No. 82 / 1998 Coll., against the Czech Republic, to pay a precisely marked amount, after the plaintiff's judgment of 25 March 2002 of the Regional Court in Ostrava, in a case brought under sp. zn. 3 To 122 / 2002, was acquitted of a criminal offence against public officials pursuant to § 155 (1) (a) and § 2 (b) of the Criminal Act, since his conduct was not found to be a criminal offence. In the application, the applicant also requests the payment of the contractual remuneration of the lawyer in criminal proceedings, knowing that according to the provisions of § 31 (4) of Law 82 / 1998 Coll. the amount of the lawyer's remuneration shall be determined in accordance with the provisions of the special regulation on non-contractual remuneration (Decree No. 177 / 1996 Coll., on the fees of lawyers and the compensation of lawyers for the provision of legal services (the legal tariff), as amended, but the provision in question shall be regarded as contradictory to Articles 4 and 36 (3) of the Charter.
It reacts to the applicant's argument, the General Court suspended the proceedings in the case and submitted a motion to the Constitutional Court for annulment of the legal provision in question. The reason for this proposal is the alleged contradiction between the concept of compensation for actual damage, contained in Act No. 82 / 1998 Coll., by understanding the concept of actual damage in the Czech legal order (§ 442 (1) of the Civil Code) and by not admitting payment corresponding to the amount of contractual remuneration to a lawyer in criminal proceedings. According to the appellant, the contradiction between the provisions of § 31 (4) second sentence of the second sentence (according to the content of the proposal is the third sentence of Law No. 82 / 1998 Coll. with Articles 36 (3), 4 and 37 of the Charter.
Recital of the essential parts of the party's observations
Pursuant to Articles 42 (4) and 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Constitutional Court sent the proposal in question to the Chamber of Deputies. In its observations of 19 May 2006, the President of the Chamber of Deputies of the Czech Republic, PhDr. Lubomír Zaorálek, points out the fact that the provision of Paragraph 31 (4) of Act No. 82 / 1998 Coll. in the form which the appellant of the "complaint 'is challenging, since the entire provision of Paragraph 31 was amended by Act No. 160 / 2006 Coll., amending Act No. 82 / 1998 Coll., as amended, Act No. 201 / 2002 Coll., on the Protection of the State in Matters of Property, as amended by Act No. 358 / 1992 Coll. (The Constitutional Court merely notes at this point that the party to the proceedings incorrectly refers to the application in the standard control procedure as" complaint'.) Act No. 160 / 2006 Coll. was published in the amount of 55 Collection of Laws and became effective on the date of publication, i.e. on 27 April 2006. It is therefore proposed in the observations to stop proceedings in the case sp. zn.
Pursuant to Articles 42 (4) and 69 of Act No. 182 / 1993 Coll., as amended, the Constitutional Court sent the proposal to the Senate of the Parliament of the Czech Republic. At the beginning of his observations of 13 June 2006, his chairman, MUDr. It states that the draft of the contested law was adopted in accordance with Article 46 (3) of the Constitution, the provision of Article 31 (4) of Law No. 82 / 1998 Coll. was then amended by Act No. 160 / 2006 Coll., which came into force on 27 April 2006, "the regulation relating to the amount of the remuneration for representation did not recognise the adoption of the amendment in substance and is now part of the provision of Article 31 (3) of Act No. 82 / 1998 Coll., as amended, as its third sentence '.
The draft amendment to Act No. 82 / 1998 Coll. was forwarded by the Chamber of Deputies to the Senate on 21 February 2006. Following discussion in the Constitutional Law Committee, which, by its resolution of 8 March 2006, recommended its approval, the draft amendment was placed on the agenda of the 10th Senate meeting held during the 5th term of office. The meeting took place on 16 March 2006. After the general debate, the Senate voted on the proposal to approve the draft amendment to the Act as referred to the Senate by the Chamber of Deputies. This proposal was adopted by Senate Resolution No 378 of 16 March 2006. It is further stated in the observations that, in the conduct of the Senate on the law on liability for damage caused in the exercise of public authority by a decision or by an incorrect official procedure, or in the negotiation of the draft amendment thereto, no objection to the provisions on costs of representation was raised. The Senate was guided by the consideration that the remuneration negotiated by the legal representation agreement between the lawyer and the client depends entirely on the will of the parties and the proportionality of the agreement may not always be a relevant consideration for the conclusion of the contract. On the other hand, the remuneration for representation determined on the basis of the legal fare represents an amount corresponding to the economic costs of the standard representation costs. For these reasons, as stated in the observations, the Senate accepted the legal provision in question.
The assessment of the possible contravention of the contested provision of Act No. 82 / 1998 Coll., as amended, with Articles 4, 36 (3) and 37 of the Charter of the Senate leaves full consideration to the Constitutional Court.
On 26 June 2006, the Constitutional Court received an application from Ing. M. K., the plaintiff in the case brought before the District Court in Ostrava under sp. zn. 85 C 446 / 2004, marked as "observations' on the application by the District Court in Ostrava. In view of the fact that Ing. M. K. is neither a party nor an intervener in the case sp. zn. Pl. ÚS 38 / 06 (§ 28, § 69 (1) of Act No. 182 / 1993 Coll.) and was therefore not invited to comment on the application in question, the Constitutional Court did not consider its content in the present case.
Abandonment of oral proceedings
According to the provisions of § 44 (2) of Act No. 182 / 1993 Coll., as amended, the Constitutional Court may, with the consent of the parties, refrain from oral proceedings if it cannot be expected to further clarify the matter. Since both the appellant, in its submissions of 9 October 2006 and the parties to the proceedings in the letter of the President of the Chamber of Deputies of the Parliament of the Czech Republic of 6 October 2006 and the President of the Senate of the Parliament of the Czech Republic of 5 October 2006, expressed their consent to the abandonment of the oral hearing, and given that the Constitutional Court considers that further clarification of the case cannot be expected from the hearing, the oral hearing in the present case has been abandoned.
Petit of the proposal and the classification of the contested legislation
The Constitutional Court is bound in its decision-making by the scope of the application and in its decision-making from its borders (ultra petitum) it cannot [see, for example, the judgment in the case of sp. zn. Pl. ÚS 16 / 94, sp. zn. Pl. ÚS 8 / 95, sp. zn. Pl. ÚS 5 / 01, sp. zn. Pl. ÚS 7 / 03, sp. Pl. ÚS 10 / 03 - Pl. If the District Court of Ostrava proposes to abolish the sentence of the second provision of Section 31 (4) of Act No. 82 / 1998 Coll., as amended by the Constitutional Court Found No. 234 / 2002 Coll., although its whole content is directed towards the sentence of the third provision in question, and at the end of its proposal the sentence of the third provision of Section 31 (4) of the Act No. 82 / 1998 Coll., as amended by the Constitutional Court's finding No. 234 / 2002 Coll., as well as a verbatim quote, the Constitutional Court considers the definition of a petition to be a manifest error and, if it has excluded from its reasoning, it is not a procedure of ultra petitum, but of a manifest contradiction between the content and citation of a law indicating the petition.
Paragraph 31 (4) of Act No. 82 / 1998 Coll., as amended by the Constitutional Court Act No. 234 / 2002 Coll., in force on the date of service of the application by the District Court in Ostrava to the Constitutional Court, reads: "The costs of representation are part of the costs of the proceedings. They include legal expenses and representation fees. The amount of this remuneration shall be determined in accordance with the provisions of the Special Code on non-contractual remuneration. ';
The entire provision of Section 31 of Act No. 82 / 1998 Coll. was repealed and replaced with effect from 27 April 2006 by Act No. 160 / 2006 Coll. by the following text:
"(1) Compensation shall include the costs of proceedings which have been effectively incurred by the injured party to revoke or amend an unlawful decision or to remedy maladministration.
(2) The injured party may claim reimbursement of the costs only if he has not been able to do so in the course of the proceedings under procedural rules or if he has not been so granted reimbursement.
(3) The costs of representation are part of the costs of the proceedings. They include expenditure incurred in an efficient manner and representation fees. The amount of such remuneration shall be determined in accordance with the provisions of the special law on non-contractual remuneration.
(4) The injured party shall not be entitled to reimbursement of the costs of representation incurred in connection with the hearing of the claim lodged with the competent authority. "
Conditions for the applicant's active legitimacy
The application for annulment of the provisions of § 31 paragraph 4 of the third Act No. 82 / 1998 Coll., on liability for damage caused in the exercise of public authority by decision or maladministration and amending the Act of the Czech National Council No. 358 / 1992 Coll., on notaries and their activities (notarial order), as in force at the relevant time, was submitted by the District Court of Ostrava pursuant to the provisions of § 64 paragraph 3 of Act No. 182 / 1993 Coll., as amended.
As already stated in the national case, in Case 85 C 446 / 2004, the Regional Court of Ostrava decided on an action brought under Law No 82 / 1998 Coll. against the Czech Republic in respect of the payment of the precisely marked amount, after the applicant was a judgment of the Regional Court of Ostrava of 25 March 2002 in a case brought under the Law of 25 March 2002, and the applicant, in so far as he requests, by way of reference, an offence of an offence against public officials pursuant to Article 155 (1) (a) and (b) of the criminal law, that his conduct was not found to be a criminal offence, and that the applicant, in the action requires, by reference to the illegality of Article 31 (4) of Law No 82 / 1998 Coll.
Regional Court in Ostrava, after having taken a decision in accordance with Article 95 (2) The Constitution concluded that the second sentence of Paragraph 31 (4) (according to the content of the proposal) of Act No. 82 / 1998 Coll., which is to be applied in order to resolve the case sp. zn. 85 C 446 / 2004, is contrary to Articles 36 (3), (4) and 37 of the Charter, after the suspension of the tribal proceedings under § 109 (1) (c) o. s. s., the Constitutional Court submitted the present proposal for a review of the standards.
The procedural condition of the active legitimacy of the General Court pursuant to § 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, is such a position of the Law, or its individual provision, which is proposed to be annulled, on the subject of the tribal proceedings which give rise to decision-making reasons for the General Court's assessment of the case.
As is apparent from the description of the procedure in question at the General Court, the appellant can therefore be found to fulfil the conditions of his active legitimacy for the standard control procedure.
Assessment of the justification of the termination of proceedings under Section 67 of Act No. 182 / 1993 Coll.
Paragraph 31 of Act No. 82 / 1998 Coll., as amended by the Constitutional Court Act No. 234 / 2002 Coll., was repealed and replaced by a new text with effect from 27 April 2006 by Act No. 160 / 2006 Coll..
Under Paragraph 67 (1) of the Law on the Constitutional Court, the reason for the termination of proceedings is given if the law, other legislation or individual provisions which are proposed to be annulled expire before the end of the proceedings before the Constitutional Court.
On the interpretation of the legal reason for the termination of proceedings, the Constitutional Court stated, in particular, in the decision of the ÚS 15 / 01 (ECR 24, p. 164, published under No 424 / 2001 Coll.). On the basis of the meaning and purpose of Section 67 (1) of Act No 182 / 1993 Coll., he stated that the amendment to abolish the proposed legal provision constituted a ground for the termination of the procedure for the control of standards only if it is relevant for the assessment of the constitutionality of that provision. That legal opinion was subsequently confirmed by a number of other findings of the Constitutional Court (sp. zn. Pl. ÚS 38 / 04, sp. zn. Pl. ÚS 43 / 04, sp. zn. Pl. ÚS 5 / 05 - published under No 409 / 2006 Coll., under No 354 / 2005 Coll. and No 303 / 2006 Coll.).
However, the situation in which there is no change is different from that in which the contested provision is removed and replaced by a new provision (or legislation), even in the case of identical wording. Since the legislative existence of a law (validity) is shaped by a single legislator's will and speech (publication of a regulation), the identity of the legislator (validity identity) is not given for two content identical and at the time of successive legislation. Based on this legal opinion, the Constitutional Court also applied the provisions of § 67 (1) of Law No 182 / 1993 Coll. in similar cases (see for example resolution sp. zn. Pl. ÚS 39 / 04 - unpublished).
The application pursuant to Article 95 (2) of the Constitution, § 64 (3) of Act No. 182 / 1993 Coll., as amended, § 109 (1) (c) o. s. o., is an application for annulment of the proposed law, or its provision, by a general court in a specific procedure [see the findings sp. zn. It follows from that condition for the case in question whether the relevant wording of Act No. 82 / 1998 Coll. is for its assessment before or after its amendment by Act No. 160 / 2006 Coll.
Law 160 / 2006 Coll. does not contain an intertemporal provision on the matter. The time conflict of the previous and new definitions of the provisions of § 31 of Act No. 82 / 1998 Coll. can therefore be resolved by the analogous application of the intertemporal provisions of Act No. 82 / 1998 Coll., and by the application of general intertemporal rules.
Under Article 36 of Act No. 82 / 1998 Coll. of the Act, liability under that Act applies to damage caused by decisions which have been made since the date of its effectiveness and to damage caused since the date of its effectiveness by an incorrect official procedure, while liability for damage caused by decisions made before the date of its effectiveness and for damage caused before the date of its effectiveness by an incorrect official procedure is governed by the existing rules (Act No. 58 / 1969 Coll., on liability for damage caused by a decision by a State authority or by its maladministration). The analogous application of that provision to the case under examination concludes that Law No. 82 / 1998 Coll., as amended by Act No. 160 / 2006 Coll., is relevant to the decision of the ordinary court.
In the absence of explicit intertemporal provisions, i.e. in a situation where the legislator is silent both as to whether the entitlement under the previous regulation is maintained and as to the applicability of the new regulation, such an interpretation must be adopted, according to the Constitutional Court (sp. zn. II. ÚS 444 / 03, sp. zn. II. ÚS 37 / 04, sp. zn. I. ÚS 287 / 04, sp. zn. I. ÚS 344 / 04, sp. zn. IV. ÚS 178 / 04 - ECR 37, Found No 134 and No 135; Volume 35, Found No 174 and No 191; Volume 36, Found No 18), which "retains the meaning and substance of the fundamental law, in the case of legitimate expectations. The reverse application or interpretation procedure means an infringement of Article 4 (4) of the Charter," is therefore a "retroactive interpretation." It follows from the same observation as the analogous application of the transitional provisions contained in Section 36 of Act No. 82 / 1998 Coll.
On the basis of the grounds thus set out, it could be concluded that the conditions for the termination of the procedure laid down in Article 67 (1) of Act No 182 / 1993 Coll., could be fulfilled, but only after having considered the legal opinion resulting from the finding of sp. zn.
According to the legal opinion contained in that finding of the Constitutional Court, which is also referred to in the reasoning of the finding of sp. zn. Pl. ÚS 42 / 03 (published under No 280 / 2006 Coll.), if the judge of the General Court concludes that the law to be applied in the resolution of the case (i.e. not only at that time valid but also at that time no longer valid but still applicable law) is in breach of constitutional law, he is obliged to bring the case before the Constitutional Court (Article 95 (2) of the Constitution). The Constitutional Court considered the refusal to provide assistance to the General Court by its decision on the constitutionality or the unconstitutional nature of the applicable law as a reason for the insoluble situation of the artificial legal vacuum, the decision of the General Court itself on the unconstitutional nature of the provisions applied to it to qualify as a procedure contrary to the Constitution, contrary to the principle of concentrated constitutional justice (Articles 83 and 95 (1) and (2) of the Constitution).
Similarly, by the explicit regulation contained in Article 140 (4) and (7), the Constitution of the Republic of Austria allows for the possibility of an academic statement by the Constitutional Court on the unconstitutionality of an already repealed law, however, the possibility of a "new 'assessment of previous facts is provided for only in cases which have initiated a procedure for the control of standards which resulted in an opinion on the unconstitutional status of an invalid law. In fact, the Constitutional Court of the Czech Republic is also acting analogous in its case-law in cases of specific control of the standards resulting in a derogatory finding (see the findings of the sp. zn. I. ÚS 102 / 2000, sp. zn. I. ÚS 738 / 2000, sp. zn. IV. ÚS 582 / 02, sp. zn. III. ÚS 569 / 03 - Reports of decisions, volume 24, findings No 179 and No 180; Volume 32, Found No 30; Volume 33, Found No 87).
The illustration of that situation is the provision of § 154 (1) o. s., according to which, in cases where the judgment merely declares the rights and obligations of the parties, the relevant legal situation is at a time when the rights and obligations in the proceedings arose, changed or ceased. Therefore, if the General Court, in the context of the so-called designation action, assesses the existence of a private relationship in 1947, it will apply the relevant provisions of the General Civil Code. If these provisions are contradictory from the point of view of the current constitutional order, then, in the sense of the finding of the sp. zn. Pl. ÚS 33 / 2000, it would interrupt the procedure and proceed in accordance with Article 95 (2) of the Constitution. If then the Constitutional Court were to comply, let us assume by academic statement, a proposal by the General Court to check the standards, such a procedure would necessarily bear the characteristics of genuine retroactivity (see E. Tilsch, Civil Law, on the concept of genuine retroactivity. General section, Prague 1925, p. 75 - 78; A. Procházka, Basics of Intertemporal Law, Brno 1928, p. 111; A. Walk, Retroactivity of the Law. A dictionary of public law. St. III, Brno 1934, p. 800; L. Silent, The temporal scope of the amendment to the Civil Code, Lawyer, No 12, 1984, p. 1104; from the case-law of the Constitutional Court in particular, the finding of sp. zn.
Application of the procedure based on the interpretation of Article 95 (2) of the Constitution, contained in the finding of the sp. zn. Pl. ÚS 33 / 2000, confirmed by the finding of sp. zn. Pl. ÚS 42 / 03, opens up the scope for the assessment of earlier legal acts (possibly legal events) according to later but already constitutionally conformal legislation, thus showing signs of genuine retroactivity. It is therefore necessary to answer the question whether such a procedure is contradictory to the rule of law (Article 1 (1) of the Constitution) or not.
The fundamental right, or freedom, is the content of the relationship between its entity (carrier), which is a person (natural person and a derivative and legal person), and the addressee, which is a public authority. Exceptions to this general design are cases of horizontal application of fundamental rights, cases in which the addressee of fundamental rights (freedoms) is not public authority but private law entities.
In the find sp. zn. Pl. ÚS 21 / 96 The Constitutional Court has formulated aspects that exclude the prohibition of genuine retroactivity, that is to say, aspects that are based on its acceptability: "It follows from the principle of protecting citizens' trust in law that the principle of inadmissibility of retroactivity cannot be linked to the retroactivity of legal standards which do not constitute interference with legal certainty or acquired law. An example of such retroactive action is a situation in which, subject to different criminal rules at the time of the act and at the time of its decision, the act is assessed in accordance with the legislation which is more favourable to the perpetrator (Article 40 (6), second sentence, of the Charter of Fundamental Rights and Freedoms). '
That argument, from the point of view of the breakdown of fundamental rights and freedoms with regard to their possible addressees, affects cases where that addressee is a public authority. True retroactivity in the event of the declaration of the unconstitutionality of an already repealed law and an assessment of previous facts by constitutionally conformal legislation with the effects of ex tunc on the public side does not constitute a breach of the principle of protecting citizens' trust in law, or interference with legal certainty or acquired law.
The situation is different in cases of horizontal application of fundamental rights and freedoms. Such cases must be subject to the principles of protection of citizens' trust in law, legal certainty or acquired rights in relation to third parties; an unlimited application of the procedure based on the interpretation of Article 95 (2) of the Constitution contained in the finding of the sp. zn. Pl. ÚS 33 / 2000, confirmed by the finding of sp. zn. Pl. ÚS 42 / 03, would therefore constitute a genuine retroactivity and thus a contradiction with the rule of law (Article 1 (1) of the Constitution). In the only possible case of a breakthrough in the prohibition of retroactive legal regulation in the procedure for the control of standards in the horizontal application of fundamental rights and freedoms, it would be acceptable to protect values falling within the framework of the material core of the Constitution under Article 9 (2), values whose protection, even at the cost of breaking the prohibition of genuine retroactivity, includes the famous "Radbruch formula": "The conflict between justice and legal certainty can probably only be resolved by the fact that the positive law, provided by regulations and power, takes precedence even if it is inherently unfair and inefficient, except if the contradiction between positive law and justice reaches such an intolerable degree that the law must, as the unimportant law of 'justice." 1946. Re-published in: G. Radbruch, Rechtsphiloscopy. Studienausgabe. Hrsg R. Dreier, S. L. Paulson, 2.Aufl., Heidelberg 2003, p. 216).
Paragraph 31 (4) of Act No. 82 / 1998 Coll., as amended by the Constitutional Court Act No. 234 / 2002 Coll., regulates the legal relationship in which the addressee of the alleged ground of unconstitutionality (Articles 36 (3) and (4) and 37 of the Charter) is public authority and not a private law body.
For those circumstances, the conditions for the procedure for the specific control of standards under Article 95 (2) of the Constitution are met in the case at hand, within the meaning of the Constitutional Court's legal opinion expressed in the finds sp. zn.
Content compliance of the contested legal provisions with the constitutional order
The purpose and purpose of the provisions of Section 31 of Act No. 82 / 1998 Coll., as amended, is to ensure that the costs incurred by the injured parties for the annulment or amendment of an unlawful decision or the correction of maladministration are met. In other words, the purpose and purpose of the legal provision in question is to include the concept of damage caused by an unlawful decision or by an incorrect official procedure (Article 36 (3) and (4) of the Charter) as well as the reimbursement of the costs of the proceedings relating to their annulment, amendment or correction. In fact, contrario would be contrary to the principle of liability for damage caused in the exercise of public authority by a decision or by maladministration, so that one of the consequences of such action by public authorities, namely the costs of proceedings leading to its reparation, would be borne by the injured party himself.
The objection of the unconstitutional nature of the sentence of the third paragraph of the fourth provision in question refers to the amount of remuneration for representation as part of the costs of representation and its determination under the special provision on non-contractual remuneration, i.e. the fact that the reimbursement of the costs of representation under the contested provision of the sentence of the third paragraph of § 31 of Act No. 82 / 1998 Coll., as in force at the relevant time, is not based on the principle of compensation for "actual damage '. The damage thus understood could then be given to the level of the contractual remuneration for representation.
On the question of reimbursement of the costs of representation incurred by the injured parties for the annulment or amendment of an unlawful decision or the correction of maladministration, the Constitutional Court stated in the decision sp. zn. Following the annulment of Paragraph 31 (3) of Law No 82 / 1998 Coll. in the context of the present case, the conclusion expressed in the finding that it is also necessary to consider, in the context of compensation for damage caused by an unlawful decision or by an incorrect official procedure, the granting of compensation for costs under procedural rules.
The amount of the fee for representation by a lawyer when deciding on the reimbursement of costs pursuant to § 151 (2) CS.) shall be determined by the court in accordance with the rates set at a flat rate for proceedings at one stage by a special law [Decree No. 484 / 2000 Coll., which sets out the flat rates for representation of a party by a lawyer or notary when deciding on reimbursement of costs in civil proceedings and amending the Decree of the Ministry of Justice No. 177 / 1996 Coll., on the remuneration of lawyers and compensation of lawyers for the provision of legal services (Law No. 177 / 1996 Coll., as amended), and simply in cases of reimbursement of costs pursuant to Article 147 (c.), where the circumstances of the case so require, the court shall determine the amount of such compensation in accordance with the provisions of the special law on non-contractual remuneration (Decree No. 177 / 1996 Coll., as amended). The legal arrangements for the reimbursement of costs under the procedural rules, as the Constitutional Court has already been constitutionally sought and addressed, therefore, in no alternative does it contain compensation equal to the contractual remuneration for representation.
The purpose of this legal regulation is to interpret the actual damage arising from the costs incurred by the injured party in order to annul or amend an unlawful decision or to correct the maladministration in the sense of the costs effectively incurred, which can be regarded as such from the point of view of legal certainty as provided for by a separate law on non-contractual remuneration.
For those circumstances, the Constitutional Court concluded that the provision of § 31 paragraph 4 of the third sentence of Act No. 82 / 1998 Coll., on liability for damage caused in the exercise of public authority by decision or maladministration and on the amendment of the Act of the Czech National Council No. 358 / 1992 Coll., on notaries and their activities (notarial order), as amended by the Constitutional Court Act No. 234 / 2002 Coll., is not contrary to Articles 36 (3) and (4) and 37 of the Charter, and rejected the proposal of the Regional Court in Ostrava on its annulment [§ 70 (2) of Law No. 182 / 1993 Coll.].
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no. 84 / 2007 Coll., on the application for annulment of the provisions of § 31 paragraph 4 of the third sentence of Act No. 82 / 1998 Coll., on liability for damage caused in the exercise of public authority by decision or maladministration and amending the Act of the Czech National Council No. 358 / 1992 Coll., on notaries and their activities (notarial order) |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 20.04.2007 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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