In The Matter Of The Application For Revocation Of Section 114B Para. 5 Of The Code Of Civil Procedure

Original Language Title: ve věci návrhu na zrušení § 114b odst. 5 občanského soudního řádu

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211/2016 Sb.


The Constitutional Court

On behalf of the Republic of

The Constitutional Court ruled under SP. zn. PL. ÚS 13/15 on 31 December 2004. may, in

the plenary consisting of the President of the Court, Pavel Rychetského and judges Louis

David, Jaroslav Fenyka, Josef Fiala, Jan Filip, Jaromir Jirsy,

Tomas Too (Judge-Rapporteur), Jan Musil, Vladimir Sládečka,

Radovan Suchánka, Catherine Šimáčkové, Vojtěch Šimíčka, Milady

Tomková, David Jiří Zemánek, and Took on the proposal and the Senate the constitutional

the Court for annulment of the provision of Section 114b para. 5 and (to the extent of the designation "section

114b para. 5 ") section 153a of paragraph 1. 3 of Act No. 99/1963 Coll.

Code of civil procedure, as amended, with the participation of the

the Chamber of deputies of the Parliament of the Czech Republic and the Czech Senate

as the parties and the Governments of the United Kingdom as intervener


as follows:

Application for annulment of the provision of Section 114b para. 5 and the words "section 114b para. 5 "

the provision of section 153a of paragraph 1. 3 of Act No. 99/1963 Coll., the code of civil procedure,

as amended, is rejected.



The subject of the proceedings before the general courts

1. In proceedings on constitutional complaints, conducted under SP. zn. I. ÚS 3263/13,

the complainant Ing. Vladimir P sought the annulment of the resolution of the Supreme

of the Court of 20 September. 9.2013 No. 33 Cdo 578/2013-122, judgment of city

Court in Prague from day 1. 10.2012 No. 22 What 321/2012-77 and judgment

The District Court for Prague 7 on 2 December. 12.2011 No. 4 C 393/2009-47.

2. the subject of the proceedings before the general courts was a claim for payment of the amount

2 500 000 Eur with accessories, made in respect of the loan agreement. From

content on-demand documents that are served on 24. 7.2009

the applicant filed the application for a payment order to pay a sum

the amount of Czk 2 500 000 with interest, for the alleged claim in contract

of the loan agreement. On 4 April 2006. 9.2009, the District Court for Prague 7 payment

the order is issued. Part of the order for payment was a challenge to the defendant

(the complainant) to convey to the action within 30 days from the date of submission of the

resistance. The order for payment was served on the defendant on 9 April. 9.2009. Against the

payment order filed by the complainant on 14 June 2005. 9.2009 resistance.

3. the application shall the complainant to challenge the Court in writing on 29. 10.

2009. In this representation of the conclusion of the loan agreement denied with the applicant and

claimed the relevant facts in relation to the alleged contract of work. Together

with the expression of the content of the action, the complainant made an application to the Court and request for

relief, which justify significant problems with

the eyes that had occurred since the 6. 10.2009 and have been confirmed, accompanied by a

a medical report. By order of the District Court for Prague 7 of 27 June. 4.

2010 was rejected the complainant's request for relief to

filing the defence pleadings. The Court found that a general proposal on

relief has been filed within the statutory time limit, but not in it

given what the reason. The Court held the mj. the view that the answer to the

the lawsuit could dictate a third party complainant. The complainant appealed against the

resolution on rejection of the application for the relief appeal.

Municipal Court in Prague, its resolution of 20 November 2003. 1.2011 process

the decision of the Court of first instance confirmed. Concluded that the waiver

the time was not possible with regard to the nature of the deadline for the submission

defence, that is not legal, but judicial.

4. the District Court of Prague 7 decided by judgment for recognition so that the order

the complainant to pay the applicant a sum of 2 500 000 € to

interest on late payments and to pay the costs. Court of first instance was

considered the fulfillment of the conditions for recognition of a judgment. The time limit for

administration of defence pursuant to the conclusion of the Court to the complainant in vain

has elapsed. The judgment of the circuit court was to appeal the complainant confirmed

the judgment of the municipal court in Prague. The Court of appeal had established that

in the period from 6. 10.2009 until the end of judicial time limits for the submission of observations,

Therefore, to 12. 10.2009 (and then the next three days to 15. 10.2009)

the complainant suffered from eye disease, for which he was not able to

qualified to comment on the lawsuit. However, the Court of Appeal held that the

the State of health did not prevent the complainant from making within the prescribed period

at least the Court announced that a serious reason (IE. an obstacle to

administration of defence). The Court stated that the complainant at the time of

the disease helped by the father, who also took him to the doctor, and through

the father of the complainant, the Court may inform disease. Leave to appeal

the complainant, the Supreme Court rejected as inadmissible.


Arguments of the parties in proceedings on constitutional complaints

5. the constitutional complaint was submitted incorrect legal assessment questions

fulfillment of the legal prerequisites for the recognition of a judgment. Among other things,

for lack of legal background to use the so-called. qualified challenges

pursuant to Section 114b code of civil procedure (hereinafter referred to as "o. s. l.")

the plaintiff in an action properly by content and does not justify the alleged claim.

The complainant objected to the decision of the general courts nepřezkoumatelnost

the lack of justification for the conditions of the call for expression of under-qualified

Section 114b para. 1. s. l., fiction entitlement within the meaning of Section 114b para. 5

o. s. l., and for the recognition of a judgment under section 153a of paragraph 1. 3. in the row.

General courts according to the complainant duly submitted or nevypořádaly

applications for relief for defence because of the

proven health problems.

6. the constitutional complaint was the complainant argued and "access denied"

to justice from the Supreme Court's rejection of the app's

appellate review. Dovolací the Court did not remove the defects arising in the proceedings before the Court

of first instance and the Court of appeal, as to the legal assessment of the

the Court of appeal on the question of qualified challenges and the emergence of fiction recognition

the claim pursuant to Section 114b para. 5. l. didn't speak out in any way, and the other claims

in the appeal without comment on the ground that it is not about "the controversy over the law". From the above

for those reasons the complainant dovozoval violations of the right to a fair

the process under article. paragraph 36. 1 of the Charter of fundamental rights and freedoms (hereinafter referred to as

"The Charter").

7. At the conclusion of a constitutional complaint, the complainant proposed the suspension of

the contested decisions. The proposal to suspend the enforceability of a judgment

General courts, the Constitutional Court upheld the resolution of 25 June 2002. 9.2014.

8. the District Court of Prague 7 and the municipal court in Prague after the invitation of the constitutional

the Court relied on to convey only justify their constitutional complaints

the decision concerned.

9. The Supreme Court in a constitutional complaint so that

the complainant's objections about the wrong assessment of the conditions of the judgment for

the recognition found unfounded (and nezakládajícími the admissibility

the appeal), as the decision of the lower courts in accordance with the

those judikaturními dovolacího of the Court's conclusions about the issue

judgments of recognition prevents serious reason only if it was announced

the Court before the expiry of the time limit for the submission of observations, or if it was not possible

serious reason a court within the period. A decision on the appeal

the complainant was not violated constitutionally locked right to a fair

process, and therefore the Supreme Court suggested a constitutional complaint for obvious

are not sound, reject or refuse to nedůvodnost.

10. the intervener (applicant in the dispute) to the constitutional complaint

comment in a way that aligned with the legal conclusions of the handsfree in the

the contested decisions of the ordinary courts, and disagreed with objections

the complainant. Within the meaning of the principle of minimizing the intervention of the Constitutional Court

not consider the arguments contained in the constitutional complaint for reaching

no constitutional plane. The constitutional complaint suggested for nedůvodnost



The proposal of the Chamber of the Constitutional Court for annulment of the law

11. Pursuant to § 78 para. 2 Act No. 182/1993 Coll., on the Constitutional Court, in

amended by Act No. 48/2002 Coll., the Senate occurs in connection with

ruling on a constitutional complaint to the conclusion that the law or individual

provisions of the Act which occurred, which is

the subject of the constitutional complaint, are in conflict with the constitutional law, management

before the Constitutional Court and report to the plenary breaks the proposal to repeal the law or

its individual provisions under art. 87 para. 1 (b). and the Constitution of the United)

Republic (hereinafter referred to as "the Constitution").

12. the Senate of the Constitutional Court (hereinafter referred to as "petitioner) came to

the conclusion that the provisions of Section 114b para. 5. s. l., which was in the legal

procedure enshrined the so-called. fiction for failure to claim representation

the respondent to the application for qualified court challenge within the

the deadline is in conflict with the constitutional order. The unconstitutionality of further found

even with the provision of section 153a of paragraph 1. 3. in the row, which is a modified form of

the judgment for the purpose of fiction entitlement (i.e. the judgement for recognition), in

the scope of Section 114b of the designation "paragraph. 5. " This conflict with the constitutional order is

According to i. the Senate due to the fact that those provisions do not guarantee participants

proceedings (in disputes the defendant) freedom of will, according to article. 2 (2). 3 of the Charter

and article. 2 (2). 4 the Constitution nor a fair trial according to art. paragraph 36. 1

Of the Charter and article. 6 (1). 1 of the Convention for the protection of human rights and fundamental

freedoms (hereinafter referred to as "the Convention").

13. both the above provisions were applied in decisions that

the constitutional complaint was attacked. They were so filled with the conditions of § 78 para.

2 Act No. 182/1993 Coll., on the Constitutional Court, as amended by Act No. 48/2002

Coll. i. Chamber of the Constitutional Court by a resolution of 1 February 1993. 6.2015 decided to

stay of proceedings in the matter of a constitutional complaint, and the plenum of the Constitutional Court

He proposed to cancel the provision of Section 114b para. 5 and (to the extent of the designation "section 114b

paragraph. 5 ") section 153a of paragraph 1. 3. in the row.


The arguments of the applicant

14. the contested provisions Conflict with the constitutional order establishes

the appellant in that they do not guarantee the parties (in disputes

the defendants) freedom of will, according to article. 2 (2). 3 of the Charter and article. 2 (2). 4

The Constitution and even a fair trial within the meaning of article 87(1). paragraph 36. 1 of the Charter and article.

6 (1). 1 of the Convention. The claimant's reasons for this conclusion are as follows.

15. Fiction entitlement pursuant to Section 114b para. 5. r. contradicts according

the claimant the principle of autonomy of the will, which is on the constitutional level

included in the article. 2 (2). 3 of the Charter and article. 2 (2). 4 of the Constitution ("everyone can

do what is not prohibited by law, and no one shall be forced to do what

the law does not impose. "). The recognition of the claim in civil proceedings is

the procedural act of national character. Has fundamentally depend on

the free will of the Party (the respondent), that the claim of the plaintiff is satisfied

or not. Only the normative structure that entitlement (even for

the purpose of speeding up proceedings) connects with the explicit layout, it is

compatible with the legal system and constitutional principles. In this context,

the appellant pointed to the finding of the Constitutional Court of 21 June. 4.2009 sp.

Zn. PL. ÚS 42/08 as amended by an amending resolution of 27 June 2002. 5.2009 (N

90/53 SbNU 159; 163/2009 Coll.) under which disposition legal acts

It is not meant to be based on a legal fiction. The opposite procedure is violated

the disposition principle permeating the civil process and the principle of the autonomy of the

(freedom) will. "The obligation to respect the autonomy of the will is true not only for

authorities the right to interpret and apply, but also for

the legislature. The effort to accelerate the proceedings, therefore, on the one hand

desirable, on the other hand, however, cannot take such a form, so that

communicating well a procedural act of the participant, he actually took the opportunity of his

free negotiations. " (from SP. zn. PL. ÚS 42/08).

16. the disposition action Fiction stray from the law (in the substantive

even the procedural framework) and is contradictory to the constitutional principles. This is true by

more if it comes even after the submission of the statement of opposition,

which is an explicit expression of disagreement with the release of the contested

decision, and therefore the expression of explicit non-recognition of the claim.

17. the appellant conceded that, in General, is a legal fiction from the perspective of

constitutional requirements, pursues a legitimate aim and if the

appropriate, necessary and proportionate. Institute of fiction entitlement pursuant to Section 114b

paragraph. 5 and section 153a of paragraph 1. 3. row. therefore it is necessary to submit the test

of proportionality. In the opinion of the applicant, this Institute are eligible

to achieve the purpose, which is to speed up the proceedings. However, it does not hold water anymore

evaluation of conditions of necessity. Legislation fiction entitlement

pursuant to Section 114b para. 5. r. did not honor the requirement of necessity, since it is

possible to use other means to achieve the goal.

For the assessment of the need for legal standards preferred resource

which are the least restricted constitutional (fundamental rights and values

freedom). Speeding up court proceedings, which is the purpose of the Institute of the judgment

for recognition under Section 114b para. 5 and section 153a of paragraph 1. 3. s. l., could be

done (even if the defendant's filing with the idle to

the application for judgment by default) by judgment (hereinafter also "the judgment by default").

18. Kontumačním the judgment would not violated autonomy process

the parties and the Court could interpret and apply a legal standard of constitutional

be a harmonious way. If they are filled with the terms of the contested provisions for

the emergence of fiction entitlement, "the Court judgment for recognition" (has a

Therefore the obligation rather than the ability to issue a judgment of uznávací). In the judgment for

a default judgment is a privilege (discretions) and not the duty of the Court to decide

on the proposal of the applicant kontumačním the judgment.

19. According to the applicant the deficiencies the contested provisions cannot be overcome

constitutionally, a conforming interpretation. Judgment for the recognition of a brand on the

the basis of fiction entitlement pursuant to Section 114b para. 5 in conjunction with section 153a

paragraph. 3. row do not achieve the purpose of the civil process, which is

the actual protection of private rights and interests. Speeding up the procedure is here

achieved at the expense of objective truth and the constitutional autonomy of the will and technique (

the fairness of the process). If the fiction of entitlement within the meaning of Section 114b

paragraph. 5. s. l., is the Court of session under section 153a of paragraph 1. 3 of the 8-obligation to

decide by a judgment for the recognition. Is not entitled to take account of the fact that the

defence; the defendant caused or cause the delays in

control whether a timely objection or comment to the application until the

judgment for the recognition.

In the.

The observations of the parties on the control of standards

20. The Chamber of deputies of the Parliament of the United Kingdom in its observations

stated that the legislature acted in the context of the adoption

Bills, which was changed to the code of civil procedure, in accordance with the

The Constitution and the rule of law. In the end, that is a matter of the constitutional

Court to examine the question of the alleged unconstitutionality of the contested

the statutory provisions.

21. In its observations the Senate of the Parliament of the United Kingdom stated that the

a similar design as the provision of Section 114b para. 5. row contains the

also § 114c para. 6. (including the link with section 153a (3).

r.). To the contested legal standards the Senate with reference to section 38 explanatory memorandum

the message to Act No. 7/2009 Coll., amending Act No. 99/1963 Coll.

Code of civil procedure, as amended, and other related

the law stated that the passivity of the parties has the civil process

major consequences. In conclusion, he added that the decision on the annulment of the contested

law is at the discretion of the Constitutional Court.

22. the Government of the United Kingdom entered the proceedings in the Constitutional Court. According to the

her observations of the contested legislation does not limit the autonomy of the will

the parties, since the restrictions cannot, without further disposition policy

be considered as a violation of the autonomy of the will of the procedural pages. The concerned

law was a civil process, introduced an element of concentration

control that is associated with the procedure that respects fundamental rights

the defendant. The concentration of the control elements supporting the principle of the Court's decision

in a single action. The aim is to make the participant received a decision in

reasonable time, and in order to be filled with the right to a fair trial. Is

It should be noted that the time limit to submit observations (Section 114b, paragraph 2.

l.), which is the court competent to provide for even longer than under the law, creates

sufficient time for the defendant to be in things in writing

comment. The fact that in the case of inactivity with the filing of observations on the

the action occurs to the fiction of entitlement, is the defendant agree. It is solely

on the will of the defendant, if the Court imposed the obligation (expressed

pursuant to Section 114b para. 1. s. l.) and avoiding the onset of legal fiction, or

will be idle. At the same time, the Government stated that the law does not require that the defendant

He described an overview of factual claims in an exhaustive

way. In addition, the challenge must be qualified is always delivered to the

their own hands and substitute service is excluded. Does not, therefore, to

zakotvenému procedural law consequences (section 153a (3) o. s. l.), without

should the defendant the opportunity to manifest his will. The Government has therefore proposed to

The Constitutional Court for annulment of the contested provisions.

23. The Ombudsman has sent 17 May. 8. The Constitutional Court the 2015

the filing, in which it stated that the right of entry to the proceedings does not use.


The abandonment of an oral hearing

24. during the examination of the application for annulment of the law reached the plenary

The Constitutional Court concluded that it is not necessary to hold an oral hearing, as this would

has not resulted in further clarification of the matter. According to the text of section 44 of the Act No. 182/1993

Coll., on the Constitutional Court, as amended, therefore, Constitutional Court

decided without holding an oral hearing.


The contested Law

25. The language of the provision of Section 114b and section 153a of paragraph 1. 3. in the text of the time

the release of the contested judgments, i.e.. in particular before release

the end of the first paragraph, the words "(and in the cases referred to in § 120 paragraph 1. 2 "),

which has occurred as a result of the so-called independence. non-contentious proceedings act

No. 292/2013 Coll., on special procedures, the Court, as amended by Act No.

87/2015 Coll., is as follows:

The provision of Section 114b of the row.

(1) if required by the nature of the case or the circumstances of the case, as well as when

If it has been decided on the matter, the electronic payment order payment

command or the European order for payment, the President of the Senate instead of

challenges under section character paragraph. 2 (a). and it was not) or such a challenge properly and

granted, the defendant timely resolution save that in the case in writing

comment and that in the event that the claim put forward in the application, completely disowns in

expression of the decisive facts on diction, which puts its defense,

and the expression joined the documentary evidence, which relies on, or

called evidence to prove their claim; This does not apply in cases in which

Unable to conclude and approve a settlement (article 99, paragraphs 1 and 2), and in the cases referred to

in § 120 paragraph 1. 2.

(2) to submit observations in accordance with paragraph 1, the President of the Senate shall determine the period

which may not be less than 30 days after service of the order. If it was about the things

decided to order for payment, the electronic payment order or

European order for payment shall be determined by this time limit from the date of statement of opposition

statement of opposition, the electronic payment order or

the European order for payment.

(3) the resolution referred to in paragraph 1 may not be issued or delivered after the preparatory

hearing pursuant to section 114c, or after the first hearing in the case.

(4) the resolution referred to in paragraph 1 shall be delivered to the defendant's own

hand, substitute service is excluded. The resolution shall be on the defendant

delivered before the action.

(5) If a defendant without good reason to challenge Court under

paragraph 1 does not respond in a timely manner and within the prescribed period or the Court has failed to communicate what

serious reason prevents him, it is considered that the claim that it is against him

action, the presumption acknowledges; about this effect (section 153a (3)) must be

advised. This does not apply if they are satisfied the conditions for termination of the proceeding

or denial of the application.

The provision of section 153a of the row.

(3) the recognition of a judgment for the Court also has to consider that the

the defendant is entitled, that is an action applied against him, acknowledged (Section 114b

paragraph. 5 and § 114c para. 6).


The constitutional conformity of the legislative process

26. The contested provisions have been incorporated into the code of civil procedure

Act No. 30/2000 Coll., amending Act No. 99/1963 Coll., the civil

the rules of court, as amended, and certain other laws (the so-called.

the big amendment to the code of civil procedure). The last sentence of the provision of Section 114b

paragraph. 5, containing the exclusion from the statutory recognition to the fiction of the cited

provisions supplemented by Act No. 7/2009 Coll. Both laws have already been

The Constitutional Court assessed [find SP. zn. PL. ÚS 29/11 of 21 March. 2.

2012 (N 34/64 SbNU 361; 147/2012) and find SP. zn. PL. ÚS 16/12 from

16 December 2002. 10.2012 (N 174/67 SbNU 115; 369/2012)], with the conclusion

that have been received and issued within the limits of constitutionally established competence and

constitutionally prescribed way.


The existing case law of the Constitutional Court and the European Court of human

the rights of the

27. The Constitutional Court ruled (and repeatedly in all its Chambers)

constitutional complaints in connection with the contested provisions of the

nearly a hundred times. Only in four cases, the constitutional complaint

by the decision of the general courts set aside. In other cases, the

constitutional complaints rejected as manifestly unfounded. The Constitutional Court

as a rule, the judge of the Constitutional Court decision of the conformity of the contested

only through the lens of the proper application of the relevant procedural standards. Repeatedly, the

However, as to the conformity of the Constitution itself to Institute

recognition by the contested provisions. In 2004 he came to this

conclusion: "the Constitutional Court notes that the cited provisions of the civil

Code of civil procedure [i.e. Section 114b, paragraph 5, and section 153a (3) o. s. l.] cannot

be in general position in the conflict with the constitutional order, and if they are

interpreted in a way they cannot constitutionally be Conformal or contrary to

the constitutional order in individual cases. Request

effective judicial proceedings without undue delay and request

reliable detection of facts for fair decisions

form the basic components of the right to a fair trial within the meaning of article 87(1). 36

and subs. Of the Charter and article. 6 of the Convention for the protection of human rights and fundamental

freedoms. The civil process is characterised by that law talks

How to speed the process of request, about the need to take care of other

important principles and values in one and the same provisions (cf. section 6

CCP). Czech legislation in principle allows that in the proceedings was granted

as far as possible the principle of hearing both sides. However, the legislation

may not provide the conditions allowing the gratuitous control for stretching

absolutizované adherence to achieve the most reliable knowledge of the State of

things. The expression of these requirements and measurement values and principles

related to the requirement for reliable detection of the State of affairs on the side

one and the speed control on the other side are the complainant

zpochybňovaná the provisions of the CCP. It is therefore not reasonable grounds for the complainant's allegations,

that article. 38 of the Charter makes it impossible for legal judgments of recognition, i.e..

scheme, which is traditional as well as in the legal order of the předkomunistického

And that is from the perspective of the common law of comparative

systems of Europe and America. " [resolution SP. zn. I. ÚS 661/03 of 24 September.

2.2004 (this and all below cited the decision of the Constitutional Court are

available at].

28. In its resolution of 16 December 2004. 11.2006, SP. zn. III. TC 91/06 Constitutional

regarding the contested provisions, the Court came to this conclusion: "if it was a

the procedure sets the period within which a party has to perform a specified process

the Act combines law with his missed some, clearly formulated

legal consequences, cannot be contrary to the right to a fair trial

(article 36, paragraph 1, of the Charter) Court, which combines with these consequences

procedural measures which the law anticipates. "

29. In great detail with the very nature of the contested decision devoted to

The Constitutional Court in its resolution SP. zn. II. TC 2115/09 of 24 September. 9.

2009. "one of the fundamental pillars of a democratic rule of law is

legal certainty. The latter is usually distorted to some extent by invoking the

the court proceedings, and therefore human rights instruments insist that

the court proceedings took place in a reasonable time. It is therefore a positive obligation

State arising from human rights instruments, to ensure that the procedural

the rules of the court proceedings so as to set up for the purpose of what the earliest

the establishment of legal certainty and of peaceful State to avoid delays in the

control. The procedural rule that allows the Court to invite the party to the proceedings

the rout of the application within a reasonable time under the sanctions of the procedural failure,

You can thus be regarded as a procedure that pursues a legitimate aim. With

stěžovatelkou can agree in the fact that the legislature that procedure

has not completely in accordance with the civilněprocesní doctrine, how pointed out

for example. Josef Macur in the article referred to by the complainant. However, neither

Josef Macur in the article in no way questioned the legitimacy of the reference

objectives or the possibility of its legislative solutions with process failure as a

as a result, for the idle of a party. Having regard to the fact that the representative of the

the complainant is a lawyer registered in the bar register of the Slovak

the bar can be used for comparison, observed that the solution plédované, Josef

Macurem is his reflection in the section 114 para. 3-6 and § 153b of paragraph 1. 2 (a). (b))

the Slovak civil procedure. We must add that in Slovakia

the legislature required a period for the expression of even half the

local lawmakers. About both of these solutions, however, can indicate that the

Verily the dura lex, sed lex (hard law, but the law in Ulp. (D) 40, 9, 12,

1), based on the principle of vigilantibus non dormientibus, iura

subveniunt (the law helps the watchful, not sleeping in (C). I. 7, 40, 1 pr.

Iust.), and, above all, at the time the Court of first instance decision was

his predictable. "

30. Also in its resolution SP. zn. IV. TC 3355/10 of 19 May. 4.2011

"... generally a valid legal principle of vigilantibus iura scripta

sunt (rights belong to the watchful) that requires a party to proceedings

careful consideration over to what extent and in what way will actively

pursued in accordance with the material and procedural norms for the protection of their

the rights of ... Procedural regulation does not exclude certain options make it difficult to effectively

objections in relation to the material things ', but it is a

rules (e.g., at a concentration of control) from the nature of things balanced their

a positive meaning for transparent, situational and concentrated

leadership of the judicial process at all. A similar purpose monitors, the provision

Section 114b para. 5. s. l., if it establishes the fiction of entitlement; for

such a situation is the will of the participant, whether your (not) the holding of the emergence of a legal

Fiction will allow, or rule out. " Respect for the Constitutional Court to the above

vigilantibus iura scripta sunt principle in relation to the contested provisions of the

is supported by repeatedly and still, see for example. resolution SP. zn. I. ÚS

3280/11 of 8 June. 12.2011 or resolution SP. zn. I. ÚS 2299/14 of the day

24.9. 2014.

31. the European Court of human rights (hereinafter referred to as "the ECHR") on the

the complaint against the judgments of recognition pursuant to Section 114b para. 5. s. l.

issued by a Court of the United States only once, in the decision in

case Buryška against the Czech Republic of 6. 5.2008 No. 33137/04. The ECTHR

He concluded the obvious complaint manifestly unfounded, since the complainant was

Court of first instance properly advised about the consequences of the

the specified period does not respond to the application, and therefore the Court could not be

reproach, that the defendant's silence as consent to nenařízením

the hearing on the merits.

32. The case-law of the European Court of human rights can be further point out

the judgment in case Aždajić of 8 June against Slovenia. 10.2015 No.

71872/12. In this judikátu of the ECTHR implicite respected competency

national legislation to punish procedural passivity of the participant (even

even tacit) recognition in the form of a judgment. In order to comply with the principle of equality

"weapons", however, foresaw the conservation conditions (awareness, fair

the possibility of procedural defence), in which judgment can be considered for the recognition of

in accordance with the human rights guarantees of the Convention.


Custom design assessment

33. the proposal is mainly justified by the fact that the contested provisions do not guarantee

freedom of will and the defendant a fair trial. Based on the fact that the recognition of

the claim is a procedural act national character and has to depend on the

the free will of the individual, whether it admits or does not recognise. Recognition of the right

According to the applicant, therefore, cannot be a legal fiction content.

34. However, the contested provision is rather inappropriately phrased than

directly unconstitutionally interfere with the autonomy of the will of the defendant. "Stone

"the wording contained in paragraph 5 of Section 114b:" ... it is

considered that a claim that an action against him is applied, recognizing; ..."

There had to be a condition that is not, or may not be in accordance with the

the facts, because the defendant did not explicitly claim. More fundamental than

alone fiction however, a consequence of inactivity is recognition of the defendant. The result of the

is a loss of the dispute. What would be the difference in the outcome for the defendant,

If paragraph 5 was the last of the cited provision, for example:

"If the defendant without good reason to challenge a court referred to in paragraph

1 does not respond in a timely manner and within the prescribed period or the Court do not communicate what a serious

the reason for stopping him, court action will meet; about this effect must be

advised. "? In fact, none. The Court would be decided by the judgment in favor of

of the plaintiff. Only inappropriate indicate a specific process of the Institute and for sure

"legislative ineptitude" in its construction, however, this Institute

do not invalidate unconstitutional. For more credibility judgments of recognition, however,

It will certainly be necessary, if the general courts in the preamble clearly explains that the

the main reason for the loss of the defendant is his passivity.

35. Free will the defendant here is not limited. The defendant to

your own hands (substitute service is out of the question) it receives from the Court

with the challenge, and with the proper instruction. It depends on whether the application will be

defend and fulfil the law required and known to him, or whether the requirements

passive and defend yourself is not at all. The law required presentation

the decisive facts on which it builds its defence and the connection

the documentary evidence, which relied on, is not unreasonably burdensome

requirement. In case of serious grounds, to prevent a defendant in

the observations, it is sufficient to avoid (at least temporarily) the judgment for

recognition of the reasons of the Court. The defendant then has free will take place

or not to act.

36. the restriction of the autonomy of the will on which the proposal was built, Constitutional Court

did not find. In this situation, it was not to be, or can be accessed

to the test of proportionality. Still, it is worth noting that, even

the appellant advocated a judgment by default is built on fiction.

Though not the fiction of entitlement, but fiction nespornosti facts

the plaintiff claims contained in the application (section 153b (1) o. s. l.). In doing so,

This claim may not be true at all, and the defendant is definitely worth

undisputed is not considered. As a result of his inactivity, however, significant

they become. Not to be overlooked or that, to issue a default judgment

even the fiction the summons to a hearing on the defendant. The defendant therefore

about the court proceedings do not know at all. In contrast, the judgment for the recognition

the replacement delivery of qualified calls excluded. The defendant therefore

the action also had to be delivered by a qualified call with lessons to

your own hands.

37. The most important reason for the rejection of the application for annulment of the contested

the provisions, however, is the possibility of their constitutionally consistent interpretation. Fifteen

years are decided by general courts, the judgments for recognition and in that time there have been

issued tens or hundreds of thousands more. Any excesses in deciding

judgment for recognition based on the fiction of recognition can be remedied (and in practice,

as well as going on) in appeal proceedings. The Board of appeal reasons for judgment for the recognition

are in section 205b o. s. l. limited to "... defects referred to in § 205

paragraph. 2 (a). and) and facts or evidence which has to be shown that the

the prerequisites have not been met for their release ... ", however, to remedy the

the excesses of the already mentioned it is quite sufficient. The Court of appeal had not examined

the subject of the proceedings, but only in compliance with the procedural conditions. If the Court finds

that the judgment under appeal have been met, cancels or determines that the

does not issue. In both cases, the matter is returned to the Court of first instance, which

then the regular procedure is decided by the fiction of recognition. This appeal

It is permissible even in the so-called. small claims litigation (to 10 000 CZK), where

law does not allow the appeal (article 202, paragraph 2, of the row). Excluded

not even the submission of appellate review for compliance with statutory conditions.

38. For a period of fifteen years, already mentioned, the Constitutional Court had to intervene

only in four cases where the general courts have violated constitutionally guaranteed

the rights of the defendants. In all other cases the Constitutional Court on the procedure

General courts protiústavního did not find anything. Repeatedly (even in

Senate decision-making) dealt with the nature of the contested the Institute and

It did not find reasons to doubt about his constitutional conformity.

39. A party cannot leave nor the purpose and importance of the contested legislation. In

the explanatory memorandum of 16 May. 6. the 1999 Act No. 30/2000 Coll. (House

print 257, the Chamber of Deputies, 3. the electoral period, 1998-2002)

the Institute has established, is infected with the following justification: "the present adaptation

the preparation of the meeting and the President of the Senate is fragmentary properly does not, and in many

cases of him nor does it prepare so well to things

It was possible to decide in a single meeting. The proposed modification aims to

rigorous work on the process of the Court and introducing the Institute, with which you can

properly prepare, where appropriate, to decide the matter without hearing

... The plaintiff is obliged in an action, inter alia, to portray the crucial

the fact; If he fails to do so or to challenge Court pursuant to § 43 para. 1 and

If it is not possible for this weakness to continue proceedings, the Court's

Sue refuses (§ 43 para. 2). The substantive law generally provides for the

a claim in the Court of the period for which the mere lapse of the right

forfeited or prekluduje. By contrast, the obligation of the defendant to the action

comment, if he was at all court imposed, not according to the existing

effectively enforced; the defendant, who has no interest in the accelerated examination

things can delay submitting defence extend judicial

proceedings, where applicable, in the absence of representation at all, prevent or at least

make it harder for the proper preparation of the hearing by the Court. To remove these

disparities in the capacity of a plaintiff and defendant in a new Section 114b proposes

provide the presiding judge permission to save [# challenges under section character

paragraph. 1 (b). and the defendant) or if such challenge properly and in a timely manner

has not complied with resolution to the respondent] in the case in writing. ".

Therefore, the contested the Institute pursues a legitimate aim, which is to hear the case

without undue delay (article 38, paragraph 2, of the Charter). The target of the hugely significant,

because "... in terms of expectations given the needs of everyday life

There is no reason to distinguish between the justice delayed and justice

the rejected... " (Wagnerová, E. Prince, V;; Langášek, T.; Pacheco, I.

and wheels. The Charter of fundamental rights and freedoms. Comment. Prague: Wolters

Kluwer ČR, a. s., 2012, with 794).

40. Without meaning certainly is neither strengthening the principle of equality (article participants.

37 para. 3 of the Charter, article. paragraph 96. 1 of the Constitution), or in the words of the above

the explanatory memorandum cited "the removal of distortions in the position of the plaintiff and

the defendant ". Process the parties have to be even, not only in the rights.

While respecting the different roles in management should be balanced and their

obligations. The plaintiff under the threat of denial of an action must, inter alia, to portray

the decisive fact, mark evidence, which relied on and from its

the proposal must be perceptible, what claims (article 79, paragraph 1, of the row). Further

must, under the threat of termination, pay often considerable judicial

the fee, together with the filing or within three days of court challenges.

The principle of a fair trial then cannot match, if the defendant

It was enough to declare that he does not agree with an action, and his demeanor

prolong the proceedings.


The conclusion of the

41. The Constitutional Court did not find that the contested provisions could not be

unload the constitutionally Conformal manner. Did not find or interference with the autonomy of the

the will of the defendant or a violation of the right to a fair trial. Moreover, the intervention of the

the right to a fair trial the appellant passed just from interference with the

autonomy of the will. The Constitutional Court, according to the provisions of § 70 para. 2 of the Act

No. 182/1993 Coll., on the Constitutional Court, the application for annulment of the contested

the provisions of the code of civil procedure.

The President of the Constitutional Court:

JUDr. Rychetský in r.

Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, the decision of the judges of the plenum have been Louis

David, Norman F, Josef Fiala, Pavel Rychetský and Catherine


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