In The Case Of A Proposal To Repeal Section 237 (1) (A). (C)) With. Code Of Civil Procedure

Original Language Title: ve věci návrhu na zrušení § 237 odst.1 písm. c) obč. soudního řádu

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=77499&nr=147~2F2012~20Sb.&ft=txt

147/2012 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided under the SP. zn. PL. ÚS 29/11 on March 21. February 2012

plenary in the composition of Stanislav Duchoň, Package, Vlasta Formankova,

Turgut Güttler, Pavel Holländer, Ivana Janů, Vladimir Crust, Dagmar

Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský,

Miloslav Výborný, Elisabeth Wagner (the judge rapporteur) and Michael

Židlická of design II. Chamber of the Constitutional Court to repeal section 237, paragraph. 1

(a). (c)) of Act No 99/1963 Coll., the code of civil procedure, as amended by

amended, with the participation of the Chamber of Deputies and the Senate of the Parliament

The Czech Republic as the parties,



as follows:



The provisions of § 237 paragraph. 1 (a). (c)) of Act No 99/1963 Coll., the civil

the court order, as amended, is off the end of the day 31. 12.

2012.



Justification



(I).



The definition of things and a recap of the proposal



1. The constitutional complaints led under SP. zn. II.-2371/11, the plaintiff

YOU. AFTER. 2010, s. r. o., called mj. annulment of the judgment of the Supreme Court

of 22 March. 12.2009, SP. zn. 29 Cdo 101/2007, since it is considered that, in the

as a result of this decision, infringed the fundamental right of the general courts

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

"The Charter") and the right to act in accordance with the principle of freedom of contract according to the article.

2 (2). 4 of the Constitution of the Czech Republic (hereinafter "the Constitution") and according to the article. 2

paragraph. 3 of the Charter.



2. In its resolution of 13 April 2000. 9.2011 SP. zn. II.-2371/11 interrupted the second

Senate proceedings on constitutional complaints mentioned and suggested plenary according to § 64 paragraph.

1 (a). (c)) of the law No. 182/1993 Coll., on the Constitutional Court, as amended by

amended, (hereinafter referred to as the "law on the Constitutional Court") to repeal section 237

paragraph. 1 (a). (c)) of Act No 99/1963 Coll., the code of civil procedure, as amended by

amended, (hereinafter referred to as "the service") for its contradiction with the constitutional

policy.



3. naznačenému procedure for lead II. Chamber of the Constitutional Court finding that, in the

the contested decision of the Supreme Court fully absentovalo grounds

the admissibility of the appeal within the meaning of the interpretation of the considerations that led the Supreme Court

the fundamental importance of the issues at stake, and it's a situation where

It was obvious that the interpretation of the disputed provisions of the "conditions" that have made

the general courts, the question was unique, that



prima facie

does and from the nature of things cannot even be no overlap, in particular

influenced the subsequent case-law in the sense of its unification. Other

in the words of the Supreme Court decision in question was not obvious which of the

the alternatives referred to in section 237, paragraph. 3. s. l., citing the case

judgment of the Court of Appeal's decision should be examined after

law of fundamental importance.



4. II. the Senate of the Supreme Court did not consider it constitutionally conformal,

leaving the contested provisions of s. l. Supreme Court space for

unpredictable consideration about whether the question dovolatel

set out in its submissions, will examine the question of a fundamental rule as

the importance of. Non-exhaustive list of the characteristics of the

the Court (section 237 (3) of s. l.), the one that makes decisions that have

have a major legal significance, there is case law of the Supreme Court

unpredictably distributed elsewhere unpredictably narrowed.



5. the Vagueness of the contested provision, which allows the Supreme Court

the unpredictable decisions on the admissibility of the appeal, according to the

opinion (II). Chamber of the Constitutional Court, which puts on the Act

the operative principle of the rule of law (article 1 of the Constitution), and does not meet or

the requirements on the quality of the law restricting the fundamental rights (article 4, paragraph 2

Of the Charter), since the contested provisions is to be considered as a formal

the law, which limits the fundamental right of access to a court (article 36, paragraph 1,

Of the Charter). However, if it is to go on a proper law in the material meaning, must be

for a party to the proceedings (after the professional consultation with a lawyer, whose presence

It is in such extraordinary appeal proceedings) seznatelné, that the legal rule

turns out even on his case. On the contrary, under the law in the material meaning cannot be

consider such an adjustment, which for its vagueness and uncertainty

does not allow a party to proceedings to adapt their behavior (to decide on the

submission or submission of an appeal) the law, since its content is not appreciable.



II.



Representation of the parties to the proceedings and other persons



6. The Constitutional Court pursuant to § 42 paragraph. 4 and section 69 of the Act on the Constitutional Court

posted by the present proposal to repeal the contested provisions of the

the House and Senate of the Parliament of the Czech Republic.



7. The Chamber of deputies of the Parliament of the Czech Republic, its President of the mouth

By Miroslava Němcová, in its representation of the rekapitulovala process, in which the

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

Coll., the civil procedure code, as amended, and certain other

the laws, which included the contested provisions. It pointed out that the

explanatory memorandum expressly stated that the Bill is in accordance with the

the constitutional order of the Czech Republic. She stressed that the Chamber of Deputies

acted in the belief that the contested provision is in accordance with the constitutional

policy, and his assessment of the left to the decision of the Constitutional Court.

At the same time the Chair of the Chamber of Deputies, said that according to section 44, paragraph. 2

the law on the Constitutional Court agrees with the abandonment of the oral proceedings.



8. the Senate of the Parliament of the Czech Republic, through the mouth of its President Milan Štěcha,

in its comments stated that the contested provision was to a. s. l.

its called vřazeno. the great Novella, which contained a section 315 of the Act No.

30/2000 Sb. with effect from 1 January. 1.2001 operating in the legal order in the unchanged

the form today. Furthermore, the process of adopting the draft law recounted in

The Senate and made a conclusion, that the Senate acted within the limits of the Constitution "set

competence and constitutionally prescribed manner ". After he quoted words

the former Chairman of the Senate Committee on legal and constitutional j. Vyvadila, which

the so-called. a great novel about a. s. l. "the most profound change since the origin of the

the existence o. s. l. ", and the words of the then Minister of Justice.

Motejl, who presented an amendment to s. l. "system

change to the civil process ", or the first legislative step to the project

reform of the judiciary, as well as the comments of Senator from. Klausnera, from

which amendment was very carefully prepared, discussed 10 years "

He concluded that, in the case of material that represents the revision of the civil

process, the Senate examined it in detail, but his attention

focus on the issues of conceptual/system. problematic or

controversial. In the plenary debate had been recorded more significant disagreement

with the content page of a bill under consideration. In relation to the Institute

the appeal, according to the statement in the debate from the mouth of former Vice-President

Senate j. Musiala there: "in this context, I must appreciate the introduction

the appeal of the Institute, which is a great benefit of the amendment and is in my

the view is processed at the level. " Further observations of the President of the Senate highlights

on the link of the contested provisions with article 237 paragraph. 3 and § 239, paragraph. 1 and

indirectly, also with section 238a, paragraph. 2 and § 239, paragraph. 3 the last sentence about the row.

the conclusion of the President of the Senate, said: "I am sending this statement with the knowledge that is

completely on the Constitutional Court within the meaning of the Constitution and the law on the Constitutional Court

assess the constitutionality of § 237 paragraph. 1 (a). (c)). "



9. On 14 June 2004. 11.2011 was the Constitutional Court delivered spam comments

The Supreme Court, acting JUDr. Zdeněk Krčmářem, Chairman of the Senate

29 Cdo, who asked about his connection to the file SP. zn. PL. ÚS 29/11 and

his pass to all the judges of the Constitutional Court. In this expression of the Supreme

the Court argues extensively to constitutional complaints conducted under SP. zn. II. THE TC

2371/11, respectively. to its inadmissibility expresses its reservations to

procedural steps II. Chamber of the Constitutional Court and its composition. Since

the fact that the Supreme Court, or his Senate 29 Cdo, not under section 69

the law on the Constitutional Court, a party to proceedings pursuant to article. paragraph 87. 1 (a). and)

The Constitution in conjunction with § 64 paragraph. 1 (a). (c) the Act on the Constitutional Court), and

due to the fact that the President of the Senate 29 Cdo raised in relation to the management of the

SP. zn. PL. ÚS 29/11 argument is not relevant, in the opinion of the constitutional

the Court must of its submission in the context of the justification of this decision

recap and closer with this line of argument will be addressed in the framework of the

management SP. zn. II.-2371/11, which is the Supreme Court, represented by

the Chairman of the Senate 29 Cdo (see section 28, paragraph 4, in conjunction with section 30, paragraph 4

the law on the Constitutional Court), the participant and that is currently

aborted (see point 2). This submission was to the judges of the Constitutional Court to

available in an electronic version and is part of the file.



10. The Constitutional Court has called upon the Office of the Government agent for representation

The Czech Republic before the European Court of human rights (referred to hereinafter as

"The ECHR") to indicate the decision of the ECHR, which is positively evaluated, or

at least allowed the construction of the appeal in the system of General

the courts of the type



and certiorari

. The Office of the Government agent, after the analysis of several decisions of the ECHR

relating to appellate review under section 237, paragraph. 1 (a). (c)) of the s. l. (eg.



Screw against the Czech Republic

of 10 June 1999. 5.2005, complaint No. 5424/03,



Pigeon against the Czech Republic
of 14 June. 12.2010, complaint No 24880/05, and more), said that, in General,

If the State decides to allow interested parties to contact

the highest judicial instance, enjoys in determining the conditions of

the acceptability of such an appeal and the procedure for him a

space for your own discretion. The ECTHR in the spirit of this policy, steadily at the

judikuje, that if national law allows you to refuse the appeal

the resource because it does not inspire any significant legal question

and that does not have a sufficient chance of success, it may be enough if the Court

limited to a reference to the provisions of the Act, which allows such a procedure,

without stating more detailed arguments. The ECHR therefore rejected as manifestly

unfounded objections to violations of the right to a fair trial, to which

should be by the Czech Supreme Court rejected an appeal by the complainant without

justification, as he at the time allowed the section 243c paragraph. 2. s. l.,

that in the meantime, the Constitutional Court annulled as unconstitutional. The ECHR HAS of course

the legal opinion of the Constitutional Court in no way questioned, aware of the fact that in

the meaning of the article. 53 of the Convention for the protection of human rights and fundamental freedoms (hereinafter

also referred to as "the Convention"), the national authorities may provide a higher standard of

protection than what ensures the Convention (



Vokoun against Czech Republic

partial decision of 20 May 1999. 3.2007, complaint No 20728/05,



Simon against Germany

partial decision of 6 May 1999. 7.1999, complaint No. 33681/96,



Nersesyan against Armenia

of 19 December 2003. 1.2010, complaint No. 15371/07). According to the Office of the Government

an agent from the case law of the ECTHR overview clearly shows that the

the structure of the appeal to the highest court instance of type and

certiorari is not, in principle, contrary to article. 6 (1). 1 of the Convention. Such a conclusion

the ECHR HAS made both in relation to the objective of section, paragraph 237. 1 (a). (c)).

l., in relation to the previous § 239, paragraph. 2. with the line on the other side

However, should the infringement of article. 6 (1). 1 the Convention theoretically could occur in the

in the case law of the ECTHR cases (on article 6, in General and in other contexts

exceptional), when the procedure of the competent court in relation to

specific circumstances seem arbitrary (cf. the above decision



Pigeon

and



Screw

). The ECTHR himself would but this arbitrariness of mere absence apparently nedovodil

a more detailed statement of reasons (cf. the above decision



Vokoun

). Finally, as is apparent from the provisions of the article. 53, the Convention

does not preclude the national authorities to guarantee a higher standard of protection, whether

through the domestic legal order, or access to other

international conventions.



11. The Constitutional Court he dated 1. 12.2011 asked the Ministry of

Justice of the communication, whether it has statistical data.

the analysis of the effectiveness of the appeal according to section 237, paragraph. 1 (a). (c)) of row.

the response of 12 December. 12.2011 that the Ministry has communicated the information

is not available, however, the Constitutional Court has sent "a brief legal

analysis of major importance to the Institute the rule of appellate review, "which grows up

to the conclusion that "whereas national legal documents of the constitutional

power nezakotvují policy instančnosti in the subjective sense, cannot be

restrict access to the Court of the third instance in proceedings on Appeal considered

for the conflicting with the constitutional order of the Czech Republic and the fundamental right to

access to the Court is not limited in this way. Instančnosti policy

does not constitute either the Convention on the protection of human rights and fundamental

freedoms. From the documents of the Council of Europe shows that the contrary is desirable to introduce

mechanisms that access to the Court of the highest instance be limited to

These may deal with only the more important matters. This no doubt

the current wording of section, paragraph 237. 1 (a). (c)) of s. r. and can be

be regarded as completely normal Institute in procedural adjustments to the Democratic

the laws of the States (not only) of the Central European legal area. "



12. The Constitutional Court of 28 June. 11.2011 won the "analysis of the flow of an appeal (and Cdo

ODO) Supreme Court-change the conditions of admissibility of the appeal according to.

row. " drawn up in 2010 Jan Petrov for the Ministry of

Justice, which works with a randomly selected sample of 200 appellate review.

The Constitutional Court shall be 30 June. 11.2011 Chair of the Supreme Court, asked the

whether the analysis was developed by the Supreme Court. In the response from the

day 6. 12.2011 Chair of the Supreme Court, said that the

the analysis is not an official document, drawn up by the Supreme Court. From

for this reason, the Analytical Department of the Constitutional Court has developed its own

based on the analysis of the Supreme Court decision, issued by 500 in the period

from the 1. 9. by 31 December 2009. 8.2010 and selected from a predetermined

the algorithm. From a total of 500 surveyed decision there were 278

the decisions of the so-called. nenárokovém an appeal under section 237, paragraph. 1 (a). (c)).

s. l. (55.6% of all examined decisions), it was in 54 cases

19.42% (decision on appeal nenárokovém, 10.8% of all investigated

decision the appeal of the (permissible) found 32 matching and 22

negative decision) and in 224 cases considered the appeal of the undue

(80.58% nenárokovém the appeal of the decision, 44.8% of all investigated

the decision).



13.10 June. 1.2012 asked the Constitutional Court of the Supreme Court and the President of the

the President of the Czech Bar Association to provide the answer to the question

predictability of legislation contained in section 237, paragraph. 1 (a). (c)).

row, or the expression of the admissibility of the appeal to predictability.



14. June 25. 1.2012 Constitutional Court received a short representation of the Czech

the bar, from which it follows that this paragraph shall be deemed to section 237. 1 (a).

(c)) in conjunction with § 237 paragraph. 3. s. l. for "an adequate guarantee for the

the predictability of it, whether the appeal will be considered as accepted

the reason that the contested decision is on a matter of vital importance. " Further

the President of the Czech Bar Association stated that the construction of the admissibility

an appeal cannot be understood as a space for free legal discretion of the Supreme

the Court, and even if it were possible to admit a degree of unpredictability

"the decision of the Supreme Court, it will be offset by the advantage of

the possibility of the Supreme Court to respond more quickly to the development of the company and

create the appropriate case law. "



15. On 30. 1. The Constitutional Court received extensive 2012 representation of the President of the

The Supreme Court of JUDr. Ivy Dust, while the Constitutional Court on this point

expansively recapitulates the response only, which was the highest court as a



amici curiae

asked when the Supreme Court further commented extensively and other issues

ESP.. the procedural route II. Chamber of the Constitutional Court and to the conditions

control, and even though that is not a party to the proceedings. The Supreme Court on the introduction

his expression said that according to his edit of the admissibility

the appeal, contained in section 237, paragraph. 1. s. l. is predictable (the Supreme

the Court is not known for any relevant argumentation that would in literature

or in the case-law of the general courts and the Constitutional Court, this conclusion

contesting) and distinguishes the admissibility of an appeal) transparently

According to the provisions of the admissibility of an appeal based on the

Diversity (nesouhlasnosti) the judgment of the Court of appeal judgement

Court of first instance, whether it's about diversity (diformitu) the apparent [§

237, paragraph. 1 (a). and o. s.), l.] or hidden [§ 237, paragraph 1 (b)).

s. l.], that must go on, "which was confirmed by the decision of the

Court of first instance, "without the appeal was admissible according to section 237, paragraph.

1 (a). (b)) a. s. l.; (b)) the admissibility of the appeal leaves the discretion

dovolacího Court, but an appeal against the decision makes the admission

the Court of appeal that the criterion should be "such a decision after legal

the essential "; (c) the admission of the appeal makes the transparent)

by the contested decision (Court of appeal) after a legal page

of fundamental importance "on the merits." The predictability of the editing of the admissibility

the appeal is contained in section 237, paragraph. 1 (a). (c)) of the s. l. therefore manifests itself

the fact that, in order to establish the admissibility of an appeal "in conclusion

dovolacího Court ", requires that it was confirming a decision); (b))

the decision on the merits; (c) the legal decision) major

the importance of. The Supreme Court is not known, that would be so conceived interpretation of

the decision, which is "legally of crucial importance," then

the constitutional order of the Czech Republic, and certainly denied that his

decision-making practice in the interpretation of the analysis of the provisions, even if only outwardly,

appeared unpredictably.



16. According to the existing practice of the Supreme Court itself

The Constitutional Court on the contrary shows that even on the constitutional level inspired

review of the decision of the Supreme Court based on the editing of the admissibility

appeal under section 237, paragraph. 1 (a). (c)) of the s. l. no difficulties. The Constitutional Court

in the past, repeatedly judikoval that in the situation when certain provisions of

the law allows for different interpretations, one of which is in

accordance with the constitutional law of the Czech Republic, while the others are with them in the

contrary, it is the task of the State authority to interpret the provisions of the

constitutionally Conformal manner. Citing the Supreme Court decision of the constitutional
the Court shows that, where the Constitutional Court, in contrast, expressed doubts about the

along these lines, the interpretation of the admissibility illegally closely appeal under section 237

paragraph. 1 (a). (c)) of the s. l., ESP.. on the issue of "judikatorního trap"

out the legal theory and case law of the Supreme Court to meet the requirements of the

The Constitutional Court and took over the interpretation of which had constitutionally Conformal

the Constitutional Court [finds himself on 2 December. 12.2008, SP. zn. II.-323/07 (N

210/51 SbNU 627) of 10 June 1999. 5.2005, SP. zn. IV. TC 128/05 (N 100/37

SbNU 355), of 20 December. 9.2006, SP. zn. I. TC 202/06 (N 168/42 SbNU 433),

of 15 July. 3.2010, SP. zn. IV.-2117/09 (N 51/56 SbNU 553) and more,

including dozens of resolutions, some of which were adopted after the date of issue of the

resolution on the suspension of proceedings and part of them even after the II. the Senate

The Constitutional Court, the plenum of the Constitutional Court submitted the thing]. In this

context, the Supreme Court left the resolution of the Supreme Court of

30.11. 2011 SP. zn. NSČR 66/29 2011, which is designed for publication in the

The collection of judgments and opinions (and for this purpose to be

discussed in the civil and commercial College of the Supreme Court of the day

8.2. 2012) with the legal sentence worded as follows: "If the legal issue addressed in

the decision of the Court of appeal decision of importance for specific things (in the

individual case), cannot reject the admissibility of an appeal in accordance with section 237

paragraph. 1 (a). (c)) on the s. row only on the basis of the argument that lacks

of fundamental importance in terms of the decision-making activity of courts at all (for their

case-law), in particular, that its solution is given by the neopakovatelnými and

unmistakable by the circumstances of the case. Even when deciding on

the appeal is the legal means of ensuring the consistency of decision making

courts, fulfils this purpose through decision making in specific matters

(in each case), without however could be significant, what

(may have) such a thing judikatorní bleed ".



17. Furthermore, the Supreme Court has submitted a detailed appeal (cf. statistics.

point 12), from which it follows that a decision falling under 72.5%

the admissibility of the appeal according to section 237, paragraph. 1 (a). (c)) of the s. l. is a defiant,

7.5% negative and 20% is Cassation. The reason for the refusal of leave to appeal

According to section 237, paragraph. 1 (a). (c)) of the s. l. is a 20.9% in the impossibility of its

questions of major legal significance, 36.7% of the compliance of the contested decision

with the case-law, 25.9% solution only the factual questions, 11.5% namítání

only defects without major legal significance, 1.4% the absence judikatorního

bleed and 3.6% other reason. In the context of these numbers cannot be according to

Talk about the unpredictability of Supreme Court decisions of the Supreme

the Court on the admissibility of an appeal in the application section, paragraph 237. 1 (a). (c)).

row as predictably odmítaných appeal is 83.5% (20.9% + 36.7%

+ 25.9%), then the numbers according to the Supreme Court also show that

(under the direct influence of the case-law of the Constitutional Court) was deleted in principle

the case-law contingent upon the admissibility of the appeal, that the contested decision

must be called. judikatorní overlap. The Supreme Court concluded that according to section 14

paragraph. 1 (a). and no. 6) Act/2002 Coll., on courts, judges, assessors

and the State administration of courts and amending certain other laws (the law on the

courts and judges), as amended by later regulations, the Supreme Court as

the ultimate judicial authority in matters falling within the jurisdiction of the courts in the

the civil and criminal procedure, ensures the unity and

the legality of decisions by decides on extraordinary remedies

resources in the cases provided for in the laws of procedure before the courts.

The provisions of § 237 paragraph. 1 (a). (c)) of the s. l. has in fulfilling this role

its indispensable function.



18. Beyond the respondent, as stated above, the highest

the Court, II. the Senate's Constitutional Court finds resolution for interruption

the proceedings unconstitutional modification contained in section 237, paragraph. 1 (a). (c)) of row.

that is not considered "constitutionally-conformist, is completely left to the

unpredictable to the discretion of the Supreme Court, whether the question set out

dovolatel in its submission, will examine the question of a fundamental rule as

importance. " Thus formulated the reservation, however, in fact, does not bind to the

the provisions of § 237 paragraph. 1 (a). (c)) of the s. l., that question, what means after

the legal meaning of the contested decision, the primary page in the merits of the case,

but not to § 237 paragraph. 3. s. l., fundamental legal significance

the contested decision of the Court of appeal and the addresses also provides

a reliable guide for the assessment of what the importance ascribed to the contrary,

cannot be. On the basis of the reasoning contained in the resolution of the Constitutional Chamber

the Court would thus be possible (if at all) to measure only the constitutionality of adjustment

contained in section 237, paragraph. 3. s. l. While it is clear that the reported

the intent of the Executive Chamber of the Constitutional Court would fully meet the

the deletion of the words "in particular" from section 237, paragraph. 3. s. l. [if, however, the proposal

on the abolition of the law nepřiléhavě have against § 237 paragraph. 1

(a). (c)) of the s. l.]. Furthermore, the Supreme Court said that the constitutional complaint

in the proceedings at the Constitutional Court under the SP. zn. II.-2371/11

facing and resolution of 31 March 2004. 5.2011 No. 29 Cdo

1113/2011-279, in which the Supreme Court rejected an appeal by the complainant admissible

for the apparent absence of, on the one hand against the judgment of the Supreme zrušujícímu

of the Court of 22 May. 12.2009. In this range, however, is she the constitutional

the complaint manifestly inadmissible, as it is not directed against the final

the decision of the General Court, and does not so request formulated in section

paragraph 75. 1 of the law on the Constitutional Court.



III.



The abandonment of an oral hearing



19. In accordance with section 44, paragraph. 2 of the law on the Constitutional Court, the Constitutional Court may be

the agreement of the participants to refrain from an oral hearing, if not from this

the negotiations expect further clarification of the matter. The Constitutional Court therefore in accordance

with this provision, requested from the parties to the proceedings, whether the representation agrees

with the abandonment of the oral proceedings. The participants consent, and from

the oral proceedings could be considered the matter dropped.



IV.



The constitutional conformity of the legislative process



20. In the procedure for the control of standards according to the article. paragraph 87. 1 (a). and) of the Constitution in

the meaning of section 68, paragraph. 2 of the law on the Constitutional Court, the Constitutional Court must first

to examine whether the law in question was adopted and issued a constitutionally prescribed

the way [to the algorithm of the review in the procedure for the control of standards see section 61

the finding of the Constitutional Court SP. zn. PL. ÚS 77/06 of 15 July. 2.2007 (N 30/44

SbNU 349; 37/2007 Sb.)].



21. The contested provisions was to a. s. l. inserted his amendment

carried out by Act No. 30/2000 Coll., the draft of this law was in the Chamber of Deputies

the Chamber of deputies presented the Government of 16. 6. in 1999, and was provided with a number of the House

print 257. First read about him was on 15. the meeting of 30 September 2002. 6.1999.

Printing has been discussed in the constitutional legal Committee of the Chamber of Deputies, which

to him, adopted a resolution No. 70. The second reading took place on 19. the meeting of the

The Chamber of Deputies the day 3. 12.1999. The amendments became

the content of print 257/3. At the same meeting, 9 July 2004. 12. the 1999 Bill

approved, when MPs from 187 to 164 for the implementation of the proposal

members and one vote against.



22. The Senate Bill was delivered to 16 December. 12.1999 and was registered

in the second term as the print number 146. Then, what was discussed in the

constitutionally-legal Committee of the Senate, which was the Committee of guarantee (the resolution of the

No. 131 dated May 5. 1.2000), the Committee on Foreign Affairs, defence and

Safety (resolution No. 105 dated June 5. 1.2000) and of the Committee for

European integration (resolution No. 117 dated May 5. 1.2000) and was all

the committees recommended for approval, the draft law was approved on 12 June 2006. 1.

2000, on 15. Meeting 2. term in the text of the transferred

The Chamber of Deputies. Of the 72 senators present for the implementation of the proposal

68 senators did not vote against the proposal, and no.



23. the President of the Republic of the law of 8 June. 2.2000 and nato was signed this

declared in the collection of laws of the day 23. 2.2000 as Act No. 30/2000 Coll.



24. the situation described above it can be concluded that the law, which also

contained in the contested provision was adopted in the constitutionally Conformal

the legislative process.



In the.



The diction of the contested provisions



25. the provisions of § 237 paragraph. 1 (a). (c)) of the s. l.:



"The appeal is permitted against the judgment of the Court of appeal and against the resolution

the Court of appeal, which confirmed the decision of the Court of first instance,

If the appeal is not admissible under subparagraph (b)) and dovolací Court

comes to the conclusion that the contested decision has on the merits after the legal

the vital importance. "



VI.



The assessment of the appellant's evidence is active



26. Before the Constitutional Court shall accede to the factual assessment of design II.

Chamber of the Constitutional Court to repeal section 237, paragraph. 1 (a). (c)) of the s. l.,

obliged to examine whether the conditions are made at his hearing set

the law on the Constitutional Court. As stated by the Constitutional Court in its finding SP. zn.

PL. ÚS 18/06 of 11 April. 7.2006 (N 130/42 SbNU 13; 397/2006 Sb.)

a prerequisite for the initiation of a specific control standards is duly brought

and the admissible constitutional complaint. In the course of the proceedings, and it raised the question

not only in the opposition of the Supreme Court (paragraph 18), that the constitutional complaint
the claimant is in the range of the contested judgment, the Court of Cassation of the Supreme

of the Court of 22 May. 12.2009, SP. zn. 29 Cdo 101/2007, and therefore,

whether it was at all from the above given locus standi (II). the Senate

The Constitutional Court to suspend the proceedings and request the repeal of § 237

paragraph. 1 (a). (c)) on the s. r., which was applied in the Cassation Court

the decision of the Supreme Court.



27. The Constitutional Court is according to the article. 83 of the Constitution, the judicial authority of the protection

the constitutionality and this power shall be exercised by, inter alia, that within the meaning of

article. paragraph 87. 1 (a). (d)) of the Constitution, decides on constitutional complaints against the

the final decision and other intervention by the public authorities to the constitutionally

guaranteed fundamental rights and freedoms [cf. also article 72, paragraph 1,

(a). and the Act on the Constitutional Court)]. Is not part of the system of General

courts and is not even called to instančnímu review of their decision;

a constitutional complaint is directed against the decision of the General Court, therefore it is not

in and of itself significant, if namítána his substantive inaccuracy. The power to

The Constitutional Court is based solely on the review of the decision in terms of

compliance with the constitutional principles, i.e.,. whether in the proceedings (and then

It issued decision) has not been constitutionally guaranteed rights without prejudice to the

participants, whether the procedure was conducted in accordance with these principles and whether the

management as a whole be considered fair (see e.g. find SP. zn. III.

TC 1976/09 of 13 June. 12.2011 resolution SP. zn. III.-3415/11 of

12.1. 2012, the resolution of the SP. zn. IV.-2945/11 of 16 April 2003. 1.2012).



28. The constitutional complaint then according to the article. paragraph 87. 1 (a). (d)) of the Constitution forms the

procedural means to protect the constitutionally guaranteed fundamental rights and

freedoms, that is in relation to other resources that individuals can use to

the protection of his rights in respect of subsidiarity. Attribute of the subsidiarity principle, the constitutional

the complaint has both a formal dimension, a dimension of material. On the one

the side with the subsidiarity of the constitutional complaint reflects the exhaustion in the request

all resources from the various public authorities, that the rule of law

provides individuals, which is the expression in the Institute of inadmissibility

the constitutional complaint (article 75, paragraph 1, of the Act on the Constitutional Court). On the other

side has the subsidiarity principle and dimension of the material, from which it follows that

the reason of subsidiarity are the competence of the Constitutional Court as a

protection authority the constitutionality (article 83 the Constitution), the authority, which provides

the protection of the basic rights of the individual only if fundamental rights

the other has not been respected by the public authorities.



29. From the above it follows that the principle should be that the contested decision

the constitutional complaint was the final decision on the matter. From this

because the Constitutional Court fundamentally does not allow constitutional complaint against

decision of the Supreme Court of Cassation (cf.. Wagner, E., Dostál, M.,

Langášek, T., Pacheco, I.:



The law on the Constitutional Court, with commentary

. Prague: Aspi, 2007. p. 383). However, it does not imply that they cannot

be instances where it will be next to repeated court decisions,

the original decision of the Cassation Court intervention was canceled, and the next

the Supreme Court decision (resolution on the refusal of leave to appeal), attack

just the appeal the Supreme Court decision. As an example you can

indicate the situation, when the Supreme Court overlook that the appeal has been lodged

belatedly, it is factually and decides to appeal. It is clear that

in this case, is the Court whose decision has been cancelled, bound

the opinion expressed by the appeal decision, and does not have the competence itself

draw the consequences from the fact that leave to appeal should not be discussed at all.

A similar model is also the appeal the Supreme Court decision, in

where was the admissibility of the appeal assessed arbitrarily (unjustifiably, respectively.

the admissibility of the derive in conflict with prejudikaturou, etc.). If you would

so the Constitutional Court remained on kategorickém the conclusion of inadmissibility

the constitutional complaint against the decision of the Supreme Court of Cassation

instances, the part of the court proceedings would be completely outside the framework of any

the checks, since it would



de facto

These courts have been given almost unlimited power of Cassation, when possible

deviation from the limits of a fair trial by a Court of lower instance has not been

entitled to correct the constitutional protection of the rights and subscriber management

also, through non-constitutional complaints, excluded.



30. From the above implies that the court decisions may exceptionally happen

subject to review, of course, provided that they have been exhausted

the funds, which the complainant had available in following up on them, and in

which was granted to him, or even could not be granted

the protection of his rights to a fair trial. In such cases, it is

The Constitutional Court within the meaning of its case-law referred to in point 27 shall be obliged to

provide the complainant with protection of the right to a fair trial and assess

management as a whole. In summary, it is in the case of the constitutional

the complaint admissible and satisfies the other requirements, is also given

Active evidence II. Chamber of the Constitutional Court to submit the proposal in the context of the

specific control standards, or the proposal to repeal section 237, paragraph. 1 (a).

(c)) on the s. r., which was applied in appeal, the decision of the Supreme

of the Court. Moreover, in the above comments (p. 377) is expressed as

the postulate that "[d] if (nezjednoduší) construction of the admissibility

an appeal cannot be accepted or a simple rule for the assessment of

the admissibility of constitutional complaints. The Constitutional Court de lege lata

evaluation of the admissibility of the appeal, however, cannot avoid because it is in the game

the question of access to the Constitutional Court (and the risk of denegationis iustitiae in

so serious is the issue of how the protection of constitutionally guaranteed fundamental rights

and freedoms) should do the utmost in hesitation and doubts

evaluate the admissibility of constitutional complaints in favour of the complainant, as

It is the duty of the legislature to define clear and procedural rules

in a predictable way so that the participants could obtain effective

the protection of their rights, and it is also the duty of the courts in the application of

procedural rules to prevent excessive formalism, which would

contrary to righteousness and management that would hit the right of access to

the Court in its essence. "



VII.



Terms of reference for the assessment of the proposal



31. In finding SP. zn. I. ÚS 2166/10 of 22 June. 2.2011 States: "according to the

article. 1 (1). 1 the Constitution of the Czech Republic is a State based on law

respect for the rights and freedoms of man and citizen. The fact that the Czech

the Republic belongs to the family of democratic legislation backed by pojímaných

States, has significant implications in the area of interpretation and application of the law.

The principle of the rule of law is bound to the formal characteristics that

the legal rules in the legal system must show that it is

individuals could take into account in determining his future negotiations

(cf.. O'Hood, Philips, Paul Jackson: Constitutional and Administrative

Law, 7. Edition, Sweet and Maxwell, London, 1987, p. 33n.). In the opinion of

The Constitutional Court between the basic principles of the rule of law include the principle of

predictability in the law, its clarity and internal bezrozpornosti

[cf. Constitutional Court SP. zn. PL. ÚS 77/06 of 15 July. 2.2007

(30/44 SbNU 349, paragraph 36)]. Without the clarity and certainty of the rules are not

filled with the basic characteristics of the law, and so are not met

the formal requirements of the law. Any legislation must therefore

to express respect for the General principles of law (principles), as is the

confidence in the law, legal certainty and predictability of the legal acts, which

divide the legal order democratic State, or are of him

inferred. On the legal standards to be put also the content requirements,

as in the material rule based on the idea of Justice

represent the basic rights of the corrective law, both the content and the

their interpretation and application. It is therefore the task of the judge in the terms

the material of the legal State, find a solution that would provide

the maximum realization of the fundamental rights of the participants in the dispute, and if it is not

may decide, in accordance with the general idea of Justice, or by

the general principle of přirozenoprávního [see find SP. zn. II. the TC 2048/09

on 2 December. 11.2009 (N 232/55 SbNU 181)]. "



32. The requirement of a legal basis for the possible restriction of rights

resulting from the article. 4 (4). 2 of the Charter, is the cause of a democratic

the principle, as well as the principle of material law. Its the reason

is to prevent the Executive Branch implementation of own ideas of how and how

many fundamental rights can be limited. The fact that this permission was granted

legitimovanému Parliament has democratically, be assured, that to restrict the

fundamental rights will occur until after the democratic parliamentary discourse, and

In addition, the restrictions of the basic law and acquires the subsequent democratic

feedback.



33. The Convention also foresees for the restriction of fundamental rights law, as well

as the International Covenant on Civil and political rights. It is, however,

should be added that the ECTHR (for good reasons, which stems from the interest in maintaining the

the internal cohesion of the system of the Convention, the participants are not only the States of

circuit



the civil law

but also States of the circuit



the common law
where the law in a formal sense, it is not and never has been the sole source of

the law, which is today, of course, possible to say even about the countries that originally

clearly belong to the circuit



the civil law

with a limited understanding of the sources of law) do not understand the law only in a formal

the meaning of, but accepts and the law. material sense. From the perspective of

The ECTHR are regarded as such under the law of the abstract general rules that

they have external effects, i.e.. focusing on an indefinite number of persons for the

to edit a certain quantity of factual matters, and it does not matter

whether a particular rule was created by the authority which is, according to

the national competent to create laws in the process contemplated

the constitutional order. The ECTHR in this regard reflects the particular rule of law

and its sources of law.



34. Already in the decision



The Sunday Times

of 26 March. 4.1979, complaint No. 6538/74, the Court noted that the word

"right" (



law

) in the phrase "provided by law" (law or something more descriptive



prescribed by law

Besides the written laws) and unwritten law. It would be inconsistent with the

the intent of the creators of the Convention was to limit the rights of having its origins in the common

the law excluded from the impact of the clause "



prescribed by law

"just because they are not included in the Act in a formal sense.

This approach would



the common law

a State which is a party to the Convention, through the possible restriction of rights of the defence, which

It was predicted in the case of article. 10, paragraph 1. 2, of the Convention, and the leading

the very nature of the legal system of the State. The ECTHR held that the

formal law is necessary only if the rules resulting from the



the common law

they are so insecure that they are contrary to the principle of legal certainty. Then the Court

confronting the official language versions of the Convention and concluded that the

they are not literally the same, and therefore try to interpret it so as to

the goal was realized and achieved the purpose of the Convention.



35. Nato court formulated the two requirements that result from turnover "



prescribed by law

“. On the one hand, she must be the legislation adequately accessible to persons

they were able to discern that the rule, which has created, the specific

thing. The second requirement is that standard cannot be considered (the law) the right-





law

"if it is not sufficiently precisely formulated so as to enable the persons

to customize the behavior. A person must be capable of, being eventually equipped with

appropriate professional Council, predict consequences, which may cause some

(her) behavior, and with a degree of certainty, that corresponds to the circumstances.

The consequences need not be foreseeable with absolute certainty, as the experience of the

shows that it is unreachable. Yet, while security is a very

desirable, from the other side may cause excessive rigidities; However, the right to

must be able to keep up with the changing circumstances. In accordance with the

along the many rules necessarily formulated in such a way that it is

the more or less vague, and their interpretation and application are questions

practice.



36. From what has been reproduced from the decision of the ECTHR, shows that his

the requirements for the basic rights of the restrictive law respecting how the diversity of

legal systems, however, it is necessary to express the requirements applied

towards the quality of the law in the formal sense. Even the ECTHR admits

the normative power of the court case-law (see, for example.



Markt Intern Verlag GmbH and Klaus Beermann v. Germany

of 20 December. 11.1989, complaint No. 10572/83) of his decision, however,

follows that must go on steady and generally available.



37. The law, which restricts fundamental rights must, within the meaning of article. 4 (4). 3

Documents turn out to equally to all cases that meet the set

the conditions. In other words, the guarantee of equal rights, i.e. the reduction.

the equal rights situation limiting the set akcesorické of equality. This

the provisions also has a connection to the article. 14 of the Convention.



38. The concept of a democratic rule of law in the 20th century. century reflects the

the material concept of democracy and, therefore, only in a certain extent accepts as

a degree of discretion in the formulation of standards, secondary

However, only in so far as the purpose remains, predicted by the

by law, so the same demand soars and the decisions impartial and

independent courts. From them is, moreover, required to decide, i.e..

interpreted and applied the law in the same cases as well.

in a manner that is not arbitrary, therefore any assessed in the selection

things, or in a way that misses the purpose of applied law, or in the manner

that would have lacked the sense. Listed aspects are to be considered

aspects of a fair process of agricultural as the individual right,

and even as the principle contained in an objective (positive) constitutional

law of the sea. It is also an expression of the degree of progress of the material, understood the legal

statehood. The provisions of the article. 2 (2). 2 of the Charter is a ústavněprávním

the expression of the general principle of the prohibition of arbitrariness in the exercise of State power

(the public) to be able to. In finding SP. zn. PL. ÚS 11/02 of 11 March. 6.2003 (N

87/30 SbNU 309; 198/2003 Coll.) The Constitutional Court explained that even unjustified

change the legal opinion may cause interference in fundamental rights, since it is

enforced arbitrarily.



39. In finding SP. zn. II.-566/05 of 20 June. 9.2006 (N 170/42 SbNU

455). States: "at the same time, however, the Constitutional Court could not overlook, that

It was mainly the dovolací Court, who radically changed the conclusions of the

arising from his own previously published case-law. The Constitutional Court

therefore also had to consider whether such a procedure is not also a violation of the

constitutionally guaranteed fundamental rights and that does not deviate from the limits of a constitutionally

enshrined the principle of material law (article 1, paragraph 1

Of the Constitution). The material law is built on the trust and confidence of citizens, inter alia,

in the law and the rule of law. The condition of such confidence is the stability of the legal

order and sufficient degree of legal certainty for citizens. The stability of the rule of law and

legal certainty is influenced by not only the legislative activities of the State

(creation of the rights), but also the activities of State authorities with the law,

Since only the application and interpretation of laws created in

public awareness of what is and what is not law. The stability of the law, the legal

the certainty of the individual and ultimately also the confidence of citizens in the

the law and the rule of law in the institutions as such because it affects the

the manner in which the authorities of applying the law, particularly the courts, whose

the basic task is to provide protection of rights (article 90 of the Constitution),

access to the interpretation of the law. Indeed, on this the importance

the case-law of the courts is built and the existing case law of the Constitutional Court and the

The European Court of human rights, which considered the law in

material terms right and the case-law of the courts (cf. decision of the Kruslin

against France dated June 24. 4.1990, Müller and another against Switzerland of

24.5. 1988, Markt Intern Verlag GmbH and Klaus Beermann against GERMANY dated

20.11. 1989 and other findings, for example, and SP. zn. IV.-611/05 and Pl. TC

20/05; A collection of findings and resolutions of the Constitutional Court, volume 40, finding no 34

and find no. 47; promulgated under no. 252/2006 Coll.). Thus, the crucial role

He plays, whether it is the interpretation of the law in a time of stable, which, however, on the

the other hand, does not mean that once made the interpretation of legal norms is

immutable. The principle of legal certainty, and also the principle of equality before the

Indeed, the law requires that the case-law of the courts under certain conditions

change (change the value to the right, to change the cultural ideas

company law, changes in the structure of the rule of law or changes in the

folders of the rule of law, which lies in the hierarchy above the interpretovanou

norm etc.), and that certain pre-defined procedure. The Constitutional Court

also to these issues judikoval that, in General, in relation to the

the binding nature of judicial case law should be once made the interpretation,

If there are no subsequent reunion of sufficient relevant reasons

based on rational arguments, and more robust in its summary

more konformnějšími with the legal order as many semantic total and benefiting the

so for a change of case-law, the starting point for deciding the following

the cases of the same kind, and from the perspective of the principles of legal certainty,

predictability of law, the protection of legitimate confidence in law (authorized

legitimate expectations) and the principle of formal equity (equality)-

CF.. find in things sp.. III.-252/04; A collection of findings and resolution

The Constitutional Court, Volume 36, finding no 16. The principle of legal certainty leads to

the conclusion that an individual is maintained confidence in the law, should always have at least

the framework idea about whether the hearing is by negotiation

legally permissible or forbidden-the principle of equality before the law, then

means that the law should be interpreted, in all cases complying with the

the same conditions as well. These principles do not apply is there-

If a legitimate reason for their limitations, therefore, sufficiently

legitimate reason for changing the interpretation of the law, and if the authority

changing the interpretation of the fulfilment of the procedural practices for this purpose

laid down. Only the circumstances and thus justified the change in

interpretation and transparently used procedural practices can

to justify an intervention in the legal security and equality of individuals. These
the principle applies all the more in the case of organs, whose function is inter alia to

unification of case law, i.e.. where the conclusions of law are received from

the nature of the unification of the broader impact on the interpretation of legal norms. In the case of

such, usually the highest, the judicial authorities is set for change

case law, or departing from, the current interpretation of the law, and

specific procedural steps that ensures the participation of a wider circle of judges.

Also with regard to that case-law, such change of

authority means a much worse hit to the principle of legal certainty and

equality before the law. "



40. In the case of



Prince Hans-Adam II. Liechtensteinského

The ECTHR on 12 June 2006. 7.2001 (complaint No 42527/98). in paragraph 43 stated that article.

6 (1). 1 of the Convention provides for each claim in court (Tribunal)

in the case of his civil rights and obligations. In this sense, the article. 6 of the Convention

the right to access to court. In point 44, explained that the right to

access to court is not absolute and may be restricted by the law of the State. When

the application must be taken to ensure that access to the Court was not limited

or reduced in such a way or to an extent that would have been violated

the very essence of this right. The law does not limit the way prescience did with the article. 6

paragraph. 1 of the Convention, even if you do not track the legitimate purpose and if it is not maintained

a reasonable relationship of proportionality between the means used and the purpose of which

monitors measures.



41. The provisions of article. 14 of the Convention does not prohibit any difference in treatment

in the exercise of the rights and freedoms recognized by the Convention. However, protects persons (including

legal persons), which find themselves in a situation analogous to

discriminatory manner, different treatment. "Different treatment"

(discriminatory) within the meaning of article. 14 of the Convention shall mean such a procedure, which

It lacks objective and reasonable justification, that is. If the tracking

"legitimate aim" or if it is not given a "reasonable relationship of proportionality between the

used means and the objective, which has to be this way

implemented "(a reasonably point 637 ECTHR decision



Neftyanaya Kompaniya Yukos v. Russia

of 20 December. 9.2011, complaint No. 14902/04).



42. The Convention (article 35 (1)) obliges the complainant exhausted all

domestic resources, which, however, must be available and must be

sufficient to allow the complainant to obtain the remedy of

rights. The existence of such devices must be sufficiently certain (



sufficiently certain

), both in the plane of the theoretical and practice; If this is not so, is

based on the lack of the necessary accessibility and efficiency (



requisite accessibility and effectiveness

(point) 637 ECTHR decision



Neftyanaya Kompaniya Yukos v. Russia

). In other words, according to the case-law of the ECTHR, the complainant is not required to use the

These remedies are insufficient or ineffective (decision

in the matter of



Assanidze in Georgia.

of 8 June. 4.2004, complaint No. 71503/01, para. 127).



43. In finding SP. zn. I. ÚS 612/01 of 17 December. 4.2002 (N 47/26 SbNU 33)

with mj. States: "one of the fundamental character of the notion of the constitutional complaint

as a means of protection of constitutionally guaranteed fundamental rights or

liberties is its subsidiarity. This means that the constitutional complaint may be

as a rule, be made only when the plaintiff before filing

exhausted all the means which the law to protect the rights granted

(article 75, paragraph 1, of Act No. 182/1993 Coll., on the Constitutional Court). In the opposite

the case is the constitutional complaint inadmissible. The principle of subsidiarity, the constitutional

the complaint stems from the fact that the Constitutional Court is not part of the system

the system of general courts or public authorities. His task is in

the meaning of the article. 83 of the Constitution of the Czech Republic the protection of constitutionality, and the activities of the

other public authorities had the responsibility to intervene only in

If in their judgment it finds unconstitutional infringement of certain

the complainant's fundamental rights or freedoms. "



44. Find SP. zn. IV. TC 128/05 of 10 June 1999. 5.2005 (N 100/37 SbNU 355)

MJ. He stated that "the very existence of the appeal as extraordinary

the appeal does not enjoy no constitutional protection, in other words, it is not

the duty of the State to protect the rights of such a resource to your legal

the order of composing. However, this does not relieve the Court of the obligation to interpret and

apply the conditions of admission of this resource, if you state in your

created by legislation, so that it followed the maxims of the right to a fair

the process. If there are in the Act limiting the right of access to court under the

the proceedings of the extraordinary appeal, it is necessary to monitor whether this

restrictions are proportional to the protection of the basic rights, not

only in the plane of the normative, but also in assessing the specific case in

the plane of the interpretation and the application of such restrictions. As already mentioned above,

the fundamental rights do not create only the framework of normative content simple

rights, but also the scope of its interpretation and application-dovolací Court

You must be in the interpretation and application of the conditions of admission of the appeal of the aware

the fact that the party it always monitors the protection of their subjective

rights, regardless of what other purpose the procedure for extraordinary appeal

resource monitors. The protection of subjective rights therefore cannot be venturing from the

considerations or where there is a reference to control of legislature

the extraordinary appeal of the so-called. unification of case law. This purpose

cannot prevail over the protection of subjective rights of the interested party,

that the protection of subjective rights completely emptied and the participant

becoming a supplier of material only, ' to unification

the case-law, but it is necessary to search for a fair balance between the relationship

by limiting the right of access to the courts and to that end, which at the same time

represents the public interest, which is to ensure the way prescience did in the present case

the application and interpretation of the simple law of the General Court. "



VIII.



Your own review



45. In the light of the criteria indicated above, the Constitutional Court came to assess the

the constitutionality of the contested provisions. First, it should be noted that the constitutional

the Court is aware of the reality of having a conditional narrowing

the admissibility of the appeal, as the extraordinary appeal,

as it is aware of the danger of "zahlcenosti" of the Supreme Court. This then leads

for the sake of prolonging the proceedings on appeal, and thus contributes significantly to

the emergence of unconstitutional delay and the liability of the State for damage caused by them

induced. Generally, the admissibility of the appeal against the narrowing to just for the purpose of

unification of case law through the solution only legal issues, as

anticipates and contested provisions, therefore, cannot be object. Moreover,

such a construction, in general terms, it appears as souladná with the practice i

other European States.



46. In this context, however, it was necessary to resolve the question of whether the purpose of the

the contested provision is, in addition to the unification of case law [on the way

the removal of serious procedural and substantive legal misconduct of the lower

the courts in the system of general courts and further through the obligation to provide

the protection of fundamental rights (article 4 of the Constitution)-IE. ensure the individual

Justice can be a decision which is konstituovalo, to admit a serious

the legal importance of a certain regulation], the idea of meritorně evaluated things, and

It is the decision of the Supreme Court itself to reject the

the admissibility of the appeal. There cannot be overlooked, that the Supreme Court

separately, does not act on the admissibility of the submission as such (about

decide the issue only as a preliminary issue without decision),

but on the contrary only decides that the appeal is inadmissible, and in

If that had not found "fundamental legal significance" stuff, IE.

factually speaking, if it finds it marked above and will not admit them

the status of "serious legal significance" [see the resolution of the Supreme Court of the sp.

Zn. 30 Cdo 3368/2009 or the resolution of the Supreme Court of 25 October. 11.2009

No. 29 Cdo 5254/2007-117; Conversely, of course, for example. the resolution of the Supreme

of the Court of 30 June. 11.2011 SP. zn. NSCR 66/20 2011, in which it is stated,

that decision of the Court of appeal may not have the legal meaning of

"the decision-making activities at all", but that you cannot refuse

the admissibility of the appeal, if the legal issue addressed in decision

the importance of the decision of the Court of appeal for specific things, therefore, substantial

is that the legal assessment of the case is significant for the thing itself. In

around the same period, however, the Supreme Court remained in doctrine, according to the

"the legal significance of the judgment of the Court of appeal at the same time only

If it addressed the legal question is of fundamental importance not only for the

the decision in the case, but in terms of the decision-making activity of courts

(for their case-law) "-see the resolution of 25 November 2003. 11.2011 sp.

Zn. 23 Cdo 2703/2010 or even later decision, resolution of

15.12. 2011 SP. zn. 23 Cdo 1398/2010, where the Supreme Court again stated: "

A prerequisite for the admissibility of an appeal pursuant to section 237, paragraph. 1 (a). (c)).

row is that the decision of the Court of appeal is of major legal significance not only

for the present case, but for the decision-making activity of courts at all (for the

their case-law), the legal question of fundamental importance must be
dovolatelem specifically defined. "]. From the above follows that of refusal

the admissibility of the appeal, the Court, having found that they are not, and that of the

litigation standpoint, the reasons for the hearing of the case.



47. The latter theoretically possible purpose (of the regulation of the idea) is, of course,

yet to be subjected to the examination as to the decisions, even

explicitly nepřiznán, project. Its possible unconstitutionality could

stem from his conflict with the principle of predictability of law derived from

the principle of the rule of law and with the general principle of equality before the law,

If the rejection of the appeal for its inadmissibility in the above

the intentions outlined also in the cases, when it was examined

the previous decision, respectively. the previous procedure, burdened with serious

wrongful in substantive and procedural law, respectively.

the result was a violation of the fundamental rights of participants in the dovolacího

proceedings, although the case-law of the Constitutional Court shows that such misconduct

represent the fundamental legal question of meaning (see find SP. zn. IV. THE TC

128/05 and more). Furthermore, it is not possible to overlook that the refusal to deal with the

where appropriate, the procedural or substantive vadně posouzenou things means

the risk in the form of a denial of Justice. It, however, in the case of things

loaded with the aforementioned defects, or unwilling to provide the

the protection of fundamental rights, it is not tolerable, and ústavněprávně in addition,

in a situation where there is no need to reject the unanimous decision

Executive Senate [see, by contrast, section 43, paragraph 2, point (b) of the Act)

The Constitutional Court] or does not act any more judicial body that would

It was a kind of insurance against possible denial of Justice, respectively.

denial of protection of fundamental rights [see decisions all over the U. S.

the Supreme Court on the admissibility of a resource called



and certiorari

or decisions of the German Federal Court of Justice (BGH), where

the rejection of the appeal (revision) shall be decided by a two-thirds majority of the

six of the Senate]. The construction of the contested provision thus does not match

the Institute



certiorari

How is constructed in the country of origin; regardless of prices from

normative statement contained in the article. 4 of the Constitution, which cannot be denied

construction of the Institute contained in the legislation (podústavním.

r.). This clearly does not realize nor the Office of the Government

an agent for representation of the Czech Republic before the European Court of

human rights, as is served from its observations (see paragraph 10).



48. The Constitutional Court, in assessing the matter further took into account that, pursuant to section 241

paragraph. 1. s. l., dovolatel-a natural person must be in control

on appeal from the beginning, represented by lawyer [if he does not himself of a legal

education-section 241, paragraph. 2 (a). and o. s.) line, or if there is a legal

a person may act for which the person referred to in section 21, 21a and 21b.

lines if they have a legal education]. It follows that every dovolatel

consider the use of the (extraordinary) appeal, being professionally

legally advised. and the parties to its admissibility. However, the case-law

The Supreme Court, as well as from the analysis carried out its decisions (paragraph 12)

It appears that a considerable percentage of submissions (80.58%) is rejected for

inadmissibility, since the Supreme Court in an appeal lodged by a duly

zformulovanou "a question of major legal significance" relating to the

the contested decision. This state persists, as the contested

provisions is part of the legal order for nearly 11 years (see paragraph 23).



49. The constitutional order, leaving the decision to lawmakers about the principle,

whether and what remedies the procedural means in civil matters, which creates a

the purpose of them wants to track and how it is in the details.



50. the basic reason for that is in a broad sense established system

the remedies of one party is related to the effort to improve

the provision of individual justice in the form of finding what

most poignant of judgments and of the other party as to the

ensure the unity of the institutional legal order through unification

the case-law, including the unification of the judicial rights of the completion. The unity of the

the rule of law is undermined at the very core, is about the parallel

a subjective claim (law) unevenly judikováno. In finding SP. zn. PL.

ÚS 15/01 of 31 May. 10.2001 (N 164/24 SbNU 201; 424/2001 Coll.) The constitutional

the Court, inter alia. He stated: "no legal order is not and cannot be from the perspective of system

the procedural means of protecting the rights, as well as from the perspective of system

organize review instances built ad infinitum. Every legal order

and necessarily must bring a certain number of errors. The purpose of the review,

respectively. review procedures may actually be such misconduct

aproximativně minimize, and not fully remove. System

review of instances is therefore weighing on one side

efforts to achieve the rights of estates, on the other hand the efficiency of decision making

and legal certainty. From the perspective of this criteria is the introduction of the emergency

remedies, or lengthening the proceedings and breaking the principle of

nezměnitelnosti decisions, which have already acquired legal force, adequate

only in the case of exceptional reasons. "



51. each of the remedies system while situated in the meaning of

resulting from all of the case-law, which shall be submitted to binding

procedural findings of what (relative to the subject of the proceeding) is right.

In addition, there is no reference model of the appeal, which would

was binding for the normative expression of procedural devices. If the decision

Therefore, the legislature and establish a procedural remedy, has broad

the field of discretion, as when deciding on the accessibility to instančnímu

the Court, as well as in relation to the formation of management about this appeal

resource to which reflected their ideas about their purpose. Can give

procedural initiative into the hands of parties, which makes it clear that the more he trusts

private initiative and in the implementation of the general purposes (here

unification of case law), to be achieved by the procedural means;

He could also instruct the lower courts to submit the matter to the

the preliminary question of the highest instance, independently on the initiative of the

the procedural pages. It is also conceivable solution, which will bind the access to

appeal to the general criteria, such as. the value of the

dispute or diformita the previous decision in the case, or may

follow the criteria, which is the meaning of individual legal cases in the

the light of the general interest. This creates a more or less controlled access

the response in the form of the management of its admissibility,

acceptance or refusal, that either the judge, whose

the decision has to be reviewed, or the judges appointed to the

making a decision about it.



52. When selecting any of the outlined modalities, however, the legislature

obliged to respect certain requirements arising from the constitutional order,

that always applies when it has to be edited performance state

organized by the judiciary. As to the judicial guarantees and judicial

independence and respect for the basic aspects of a fair trial in the

the range that corresponds to the nature of the appeal. Respect, requiring

framework on the finishing touches to the requirements deriving from the principle of the rule of

the State of fundamental rights and of the principle of equality.



53. The central aspect of legal statehood is to prevent svémocnému and

violent enforcement of legal claims of individuals to each other. These

people rely on judicial solutions to their legal Affairs and from the courts

expect them to provide final and enforceable decision

respecting and protecting the fundamental rights of the parties. Through

the very existence of the judiciary is a measure of how the prohibition of svémocného

the violence applied in resolving the Legal Affairs and State power

monopoly. These aspects of the illuminate the essential rules governing the

access to the courts, as well as the procedural rules governing procedures and

the form of remedies for the protection of the rule of law. From here, you can also

inferred imperative, according to which the rules on access to higher court

instances must be formulated as nejurčitěji, so that was what

most seznatelná for each person. It, therefore, that this

the rules of the State in which the border and how it has affected

person to claim their rights. Request to the certainty of these rules is

increased by the fact that the parties are formed on the road for the enforcement of

their legal claims of large human and financial burden, which should be

last but not least count court fees and legal costs

the representation of the custom, but also cover the costs of the opposing party in the case

ineffectively of the appeal. A final and enforceable

the decision, standing at the end of such a process, which represents the

enforcement order can hit deep into the legal sphere of the participant,

who has something to meet or something. Of it is evident that the procedural

the right has in this context, and to a large extent, functions, which

guarantees the freedom for individuals and for society.



54. From what has been stated, it follows that the appeal of the design, as
expressed in the contested provision, which requires that before his

rejection of substantive review was already at this stage, does not, and

it from the constitutional reasons, to the rejection of the appeal of the idea through the regulated

things about which to be decided meritorně, by the Supreme Court.

If it had happened even at things that would otherwise have the chance to

success, everybody would be a danger of unequal treatment of similar assessment

things to the extent that it was no longer possible to consider the legal assessment

related to the specific content that thing shows, but on the contrary-it

already almost completely independent, more or less to chance přenechaný, and so

discretion of the reporting procedure, which does not respect the predictable, IE.

in advance of the criteria, and is thus inconsistent with the command of the same application

rights in the same (similar) cases, which, however, is dictated by the

the constitutional order [article 26 specifically International Covenant on Civil and

political rights, and article. 1 of the Charter in its interpretation of the Constitutional

the Court, see find SP. zn. PL. ÚS 15/02 dated June 21. 1.2003 (N 11/29 SbNU

79; 40/2003 Coll.) or paragraph 23 Award SP. zn. I. ÚS 2278/10 of 30 October.

11.2010]. Similarly, the progresses and the Federal Constitutional Court-BverfG, which

He was identified only with the first equality libovůlí (2 BvR 1/51), but today,

no longer considered sufficient to justify the unequal treatment of

groups of people that the legislature take into account the nature of the things suitable

the distinctive element, but there must be really objectively justified

differencing factor sufficient weight (1 BvR 1164/07).

The difference in the situations must therefore be such as to justify the difference

treatment (decision 1 BvL 51/86; 1 BvL 50/87; 1 BvR 873/90; 1 BvR

761/91). It's about the concept of de facto equality as proportionality: posuzuj

similar cases Similarly, different in different ways, depending on the extent of their

similarities or differences. The main question here is whether the purpose of the distinction between

justifies its consequences. While that is true if you are in the game also

other basic rights, are the options of the legislature more closely surrounded by

(decision 1 BvL 29, 30, 33, 34, 36/83). If the said restrictive

the criteria for the legislature, the Court must be respected when it is

the interpretation of the statutory provisions, and to respect the principle of equality,

which is at the basis of the constitutional order.



55. In the first place, therefore, will be the assessment of the question whether the contested legal

the provisions as to the definition of the purpose of the predictable enough for its

addressees, and especially in the aspect of the interpretation of that part of the contested norms,

which anticipates that the contested decision has on the merits after the legal

the essential. The provisions of § 237 paragraph. 3. s. l.,

contains only non-exhaustive examples, mechanical, in which the

should follow a positive answer to this question, the need for such a

the review does not diminish.



56. It is clear that an important purpose of the contested provisions is to provide

unification of case law. However, as elaborated above, and this purpose can be

only in the framework of the constitutional order. Of mj. It follows that the

If the legal standard designed for the help content is not entirely a

the concept, which requires an initial account of the Court, it is necessary to examine whether it is

such a standard following the case-law of the Court, which interprets the standard,

predictable enough for their addressees. The predictability of the legal

editing (law in the material sense-see above) provides

nerozporná case law of the Court, which interprets the legal standard and

applies, i.e.. the case-law of the Supreme Court, naturally corrected views

vyslovenými Constitutional Court. It is therefore necessary to examine whether this can be

case law seen as nerozpornou or settled to the extent that it

You can also rate as predictable.



57. The Constitutional Court first examined the empirical data for the assessment of

things capped (see point 12). One of them is served, expertly lessons

dovolatelé were unsuccessful just when formulating the "fundamental questions

the legal meaning of "in the full 80.58% of the formally perfect submitted

the admissibility of the appeal, the contested provisions, based on the. Success rate in

assessment appeal been permissible is not in the

context is relevant. The data leads to the conclusion of the

predictability of the contested provisions of the doubts of the parties.



58. The findings of the variujícím, or mutually inconsistent assessment

What can be described as "a question of major legal significance",

The Constitutional Court also when random content checking things. For example. in the decision

28 Cdo 2996/2009 reached the Supreme Court concluded: "to the question of the admissibility of the

an appeal can also draw attention to the resolutions of the Supreme Court of 15 June. 2.

2001, SP. zn. Cdo 1731 22/99, in which he concludes that if the solution is

the specific legal issues associated with assessing the unique facts

the base, it makes the decision after the Court of appeal decision, the legal

the significant importance. " So he decided the Supreme Court despite the instructions of the

arising from the award of the Constitutional Court of 10 December. 5.2005, SP. zn. IV. THE TC

128/05, which further confirmed the finding of 2 July. 12.2008, SP. zn. II. THE TC

323/07.



59. A similar, perhaps even more pronounced the problem can be found in the decision of the

(the judgment) SP. zn. 25 Cdo 1950/2007, in which the Supreme Court has come to the

the conclusion that "the appeal is admissible under section 237, paragraph. 1 (a). (c)) of row.

for the question of major legal significance, and that the application section 8 (2). 2 of the Act

No 82/1998 Coll. (as amended by law before the amendment made no 160/2006

Coll.), which has been in the past, such extraordinary appeal court decided differently (section

237, paragraph. 3. s. l.). " NATO rejected the appeal and somewhat surprisingly

stated that it does not have a reason to deviate from the legal opinion has issued

the big appeal by judgment of 26 June 1997. 8.2009 SP. zn. 31 3489/Cdo 2007.

It was decided a great appeal in the analogue things and not a space

for a factual differentiation from this matter, then surely wasn't even given a reason

to find the space to address "issues of major legal significance," as

here quite surprisingly said the Supreme Court Senate. Unnoticed

cannot also remain the fact that both the decision of the Grand Chamber, so now

cited decision was based on an interpretation of substantive law, which

the Constitutional Court has repeatedly found to be constitutionally funky (find sp.

Zn. PL. ÚS 35/09 of 6. 12. the case-law referred to in 2011 and its point

23).



60. In the decision of the SP. zn. 26 Cdo 5211/2007 Supreme Court stated that the

If the Court finds the content of the Treaty, and by the interpretation Act, the

the facts, not about the legal merits of the case. In the decision of the sp.

Zn. 29 Cdo 101/2007 Supreme Court interpreted "terms of the narrower the selection

control "as revealed in a legal act embodied the will of one of the parties

the dispute, the subject of which was the wording of the law on the conclusion of the purchase

the Treaty, on which the other party to the dispute to respond its legal act, and

their behaviour was assessed as innominátní contract within the meaning of section 269

paragraph. 2 of the commercial code, the parties diverged in the interpretation

they revealed the will.



61. In decisions SP. zn. 26 Cdo 689/2009, SP. zn. 26 Cdo 3876/2010 and

SP. zn. 22 1936 Cdo/2009 the Supreme Court stated that the question whether a particular

performance rights is in accordance with the established factual circumstances important for the

the assessment of specific things contrary to accepted principles of morality, cannot be considered as

the question of the fundamental legal significance with the General range for judicial practice. In

decision SP. zn. 22 Cdo 1185/2009, by contrast, said that he is entitled to make

consideration about the violation of the legal Act (contract) with the accepted principles of morality within the meaning of section 39

the subject of the review of the civil code, but just in case

the apparent unfairness of the relevant considerations, the Court in the investigative proceedings.

The Constitutional Court in finding SP. zn. I. ÚS 548/11 of 21 May. 6.2011 to this

the question stated that if the Supreme Court at a flat rate excludes the possibility of

assessment of major legal significance for the question whether the claim of limitation

was contrary to accepted principles of morality, it is a clearly illogical reasoning, and

Therefore, any violation of the law, establishing stěžovatelova on the

a fair trial.



62. The latter case might tempt you to believe that the question

as a result of an enforceable decision of the Constitutional Court (article 89, paragraph 2

The Constitution) is resolved and the Supreme Court will in future follow the

a binding instruction provided by the Constitutional Court. The examples listed below

However, show that the zformulovanou account of having a constitutional basis

cannot be relied upon.



63. In the decision of the SP. zn. 20 Cdo 2530/2003 Supreme Court stated that the

the complainant in an appeal involving the reason of incorrect legal assessment

things, or his reasoning was not podřaditelná under § 241a, paragraph. 2

(a). (b)) a. s. l., according to the Supreme Court lacked the criterion for

the appreciation of the decision of the Court of appeal as a legal principle

significant [§ 237, paragraph 1 (b), (c)). 3. s. l.]. If it is to be

the appeal admissible under the contested provisions can be by the Supreme

the Court justified the only § 241a, paragraph. 2 (a). (b)) a. s. l., therefore, incorrect

the legal assessment of the matter. The claim that the procedure is vitiated by a defect that

could result in an incorrect decision in the matter of [§ 241a (2)

(a). and o. s.), l.] not subsumovatelná under section 237, paragraph. 1 (a). (c)).
ř. this decision was cancelled by Discovery SP. zn. IV. TC 128/05 dated

10.5. 2005 (N 100/37 SbNU 355), in which the Constitutional Court stated that "it is

convinced that these provisions must be interpreted having regard to the above

the said constitutional limits the access of individuals to the Court, therefore,

so that was how the Constitution laid down the obligation of the courts to provide

the protection of the fundamental rights of individuals, as well as the purpose of the given type

dovolacího management, which aims to unify the case-law of the General

of the courts. As already mentioned above, cannot be completely overlooked include from the constitutionally enshrined

the obligation that binds and dovolací Court, provide protection of individuals

fundamental rights, and especially in the case where the appeal by admitting

was filled with other purpose, namely the unification of dovolacího management

case-law of the General Court. "



64. From a like reason, set aside also. find SP. zn. II.-182/05 of

on 18 July 2005. 12.2007 (N 227/47 SbNU 973) the resolution of the Supreme Court SP. zn.

32 Odo 260/2004. In the same way the target set by the findings of the SP. zn. IV. TC 128/05

(see above), II. TC 650/06 of 9 June. 1.2008 (N 3/48 SbNU 25), TC

2030/07 of 11 September. 9.2007 (N 138/46 SbNU 301), II. TC 2837/07 dated

6.8. 2008 (N 136/50 SbNU 205), II. TC 3005/07 of June 4. 3.2009 (N

45/52 449 SbNU) or TC 2884/08 of 18 June. 3.2009 (N 60/52 SbNU

591) or i. ÚS 1452/09 of 17 December. 8.2009 (N 186/54 SbNU 303) the Supreme

the Court, by rušená the unacceptably narrow Supreme Court decision

the right dovolatelů on access to the Supreme Court. All the cited

the decision of the Constitutional Court has found in violation of the procedure of the Supreme Court

the basic rights of individual complainants to a fair trial. In

finding SP. zn. IV.-2117/09 of 15 July. 3.2010 (N 51/56 SbNU 553).

said: "16. The Constitutional Court is the interpretation of the relationship between the section 237, paragraph. 1 (a). (c))

and section 241a, paragraph. 2 (a). and o. s.) lines in the past many times, and

for example. in the findings, SP. zn. IV. TC 128/05 of 10 June 1999. 5.2005 (N 100/37

SbNU 355) and SP. zn. I. ÚS 2030/07 of 11 September. 9.2007 (N 138/46 SbNU

301). These findings-which further draws in the grounds of this

decision-came to the conclusion that the interpretation of the Supreme Court, according to which the

the reason for the leave to appeal pursuant to § 241a, paragraph. 2 (a). and o. s.) r. excludes the possibility of

admission of an appeal pursuant to section 237, paragraph. 1 (c)) of the s. l., leads to

undue constriction of the rights to access to the dovolacímu Court. From such a

the interpretation is that the review procedure dovolací, the Court shall make the

only on the basis of the appeal of the permissible ex lege pursuant to section 237, paragraph. 1 (a).

and (b))) and s. r. 17. These findings, as well as other

decisions, the Constitutional Court said that the right to appeal, respectively.

an extraordinary legal remedy, it is not constitutionally guaranteed, and if there are,

goes beyond the constitutionally guaranteed procedural privileges [see also resolution

SP. zn. III. TC 298/02 of 18 June. 6.2002 (18/26 SbNU 381)]. At the same time

However, repeatedly stated that the decision of the Court, whether in terms of

decision making in the management of the ordinary or extraordinary appeal,

cannot find themselves outside the constitutional framework for the protection of the fundamental rights of the individual.

In finding SP. zn. IV. TC 343/04 of 14 June. 3.2005 (N 55/36 SbNU 581)

divorced on the example of specific judgments, the European Court of human

Rights repeatedly confirmed that article. 6 of the Convention for the protection of human rights and

fundamental freedoms while forcing the Contracting States to create appeal or

the courts of Cassation, however, if these exist, the jurisdiction of the guarantees of article. 6

The Convention must be respected, in particular where they provide participants

the management of an effective right of access to the courts in order to discuss their

rights (cf. the decision in all things



Brualla Gómez de la Torre against Spain

, 26737/95, § 33 in fine, available in electronic form on

http://www.echr.coe.int/). 18. The very existence of the appeal as

the extraordinary appeal therefore enjoys no constitutional protection;

in other words, it is not the duty of the State to such a means of protecting the rights of

in its legal order to compose. However, this does not relieve the Court of the obligation to

to interpret and apply the conditions of admission of this resource, if

you state in your legislation created, so, in order to meet the maxims of law

to a fair trial. If there are in the Act limiting the right of access to

the Court in the framework of an extraordinary appeal, it is necessary to

keep track of whether these restrictions are proportional to the protection of the basic

rights, and not only in the plane of the normative, but also when assessing the

a particular case in the plane of the interpretation and the application of such restrictions. How

The Constitutional Court also steadily at the judikuje, the fundamental rights do not create only

beyond the normative content of a simple law, but also the scope of its

interpretation and application. Therefore, the conditions of admission of an appeal pursuant to section

237, paragraph. 1 (a). (c)). 3. s. l. should be interpreted so as to

filled with how the Constitution laid down the obligation of the courts to provide individuals

the protection of fundamental rights (article 4 of the Constitution), and the purpose of the given type

dovolacího control. 19. The Supreme Court is bound by the finding of the Constitutional Court-in

things SP. zn. IV. TC 128/05-in its resolution of 25 November 2003. 11.2005 sp.

Zn. 20 Cdo 1643/05 (available at www.nsoud.cz), interpreting the concept of legal

an assessment of the ' under section 241a, paragraph. 2 (a). (b)) a. s. l., so that concerns not only

standards of substantive rights, but also the procedural law. Similarly, judikoval

The Supreme Court previously. in its resolution SP. zn. 20 Cdo 1591/2004 of

26 March. 5.2005 (available at URwww.nsoud.cz). 20. From the conclusions above

listed (and resulting from the decision of the Constitutional Court cited how,

and the Supreme Constitutional Court) did not reason to deviate even in

the present case and, therefore, after finding that the Supreme Court judge

the admissibility of the appeal on the basis of interpretation, which is constitutionally incompatible from the

because of an unacceptable bottleneck the access of individuals to the Court, came to the

the conclusion that is given a reason for his action. The Constitutional Court, whose function is to

the protection of constitutionally guaranteed fundamental rights of individuals, reiterates that

fully respects the competence of the Supreme Court choose the appropriate interpretation of the

the relevant provisions of s. l., but only so that this interpretation

respect the fundamental rights of the individual. In the present case

The Supreme Court delivered its constitutional obligations to provide protection

the basic rights of the claimant and violated her basic right to access

a court in the meaning of article. paragraph 36. 1 of the Charter. 22. In short, in the

the things the Supreme Court failed to respect a previous case-law or

nálezovou case-law of the Constitutional Court, and without enough presented

substantiated (non) reasoning, why are eligible from

this case-law departs; voucher for older and obsolete decisions

The Supreme Court, of course, the reason for the judikatornímu deflection shall not constitute.

There has been a violation of this article. paragraph 89. 2 of the Constitution [to e.g. find SP. zn.

III.-252/04 of 25 June. 1.2005 (N 16/36 SbNU 173)]. In addition, the

rejection of the appeal of the claimant for his alleged inadmissibility denied

The Supreme Court of Justice, the complainant thus violated article. paragraph 36. 1

Of the Charter. Referred to the Constitutional Court, of course, in no way prejudge how

The Supreme Court on the appeal of the claimant. In the next procedure, however,

will be forced to the reasons cited in the assessment of the admissibility of the terms section

237, paragraph. 1 (a). (c)) of the s. l. account. 23. On that does not change anything

the fact that under section 237, paragraph. 3. s. l., as amended by Act No.

7/2009, (i.e., in the version effective as from 1. 7.2009) Guest

the admissibility of an appeal in terms of section, paragraph 237. 1 (a). (c)) of row.

the circumstances invoked by the dovolacími reasons pursuant to § 241a, paragraph. 2 (a). and)

o. s. l.. Under the transitional provisions of the law No. 7/2009

SB. is an appeal against the decision of the Court of appeal declared

(issued) before the date of entry into force of this Act will be discussed and

decide according to present legislation. " For failure to

a finding of the case law of the Constitutional Court to address the question of the methodology outlined (in

the intentions of the article. paragraph 89. 2 of the Constitution) was the Supreme Court imposed in order to

the complainant paid the costs of the proceedings before the Constitutional Court.



65. In its resolution SP. zn. I. ÚS 281/10 of 31 March. 5.2010 (in the collection of

the findings and resolutions of the Constitutional Court, published, available on

http://nalus.usoud.cz) was needed over the above again. include:

"According to the Supreme Court, it is only about the incorrect legal assessment of things

According to § 241a, paragraph. 2 (a). (b)) a. s. l., and not a reason for dovolací according to §

paragraph 241a. 2 (a). and o. s.), l. vytýkající, defect management, which could have

result in an incorrect assessment of the matter. In support of this restrictive

conclusion the Supreme Court revokes mj. on the resolution of the Constitutional Court, the sp.

Zn. III. TC 51/06, III. TC 10/06 IV. TC 155/06 and (III). TC 1482/08. To

It should be added that completely covers the last listed resolution

invalidity, therefore, the issue is different, and the three had previously cited

the decisions represent a unique excesses of March, April and July of the year

2006, previous or subsequent case-law of the Constitutional Court

does not endorse. Furthermore, this decision only have the form of a resolution on the

the rejection of the constitutional complaint, and not to the findings. On the contrary, from the findings of the
The Constitutional Court follows the legal reverse steadily at the conclusion. From the last time

You can cite for example. find SP. zn. I. ÚS 1452/09 of 17 December. 8.2009 (N

186/54 SbNU 303) in recital 19 of the Constitutional Court called for

, wrong and unconstitutional, the conclusion that the appeal admissible under section 237

paragraph. 1 (a). (c)) of s. r. and priori excludes the application of the dovolacího reason

referred to in section paragraph 241a. 2 (a). and o. s.) r. Supreme Court so

disregarded the established case law of the Constitutional Court (e.g. SP. zn. II.

TC 182/05, IV. TC 128/05, II. TC 650/06, i. ÚS 2030/07, II. TC 2837/07,

II.-3005/07), according to which the only interpretation according to which a decision

the Court, which is based the admissibility of an appeal pursuant to section 237, paragraph. 1

(a). (c)) of the s. l., can generally be challenged both for reasons of improper

the legal assessment of a case, as well as for reasons of procedural defects, means the current

the fulfillment of the obligations laid down as constitutionally the courts provide individuals

the protection of his fundamental rights, as well as the purpose of the type dovolacího

management, which aims, among others. the unification of the general courts.

The interpretation according to which the reason for appeal pursuant to § 241a, paragraph. 2 (a). and).

the line excludes the possibility of admission of an appeal pursuant to section 237, paragraph. 1 (a). (c))

o. s. l., leads to undue constriction of the rights to access to dovolacímu

of the Court. There is no doubt that even the procedural court procedure can pose a

the question, to which there may be differing opinions in judicial practice,

requiring their unification decision of the Supreme Court. '

The fact that the legislator arbitrarily and despite case law of the Constitutional Court

in Act No. 7/2009 Coll., amending Act No. 99/1963 Coll., the civil

the rules of court, in wording of later regulations, and other related laws, in

section 237, paragraph. 3. l. ruled out the possibility to take account of mj. also to dovolacímu

the reason according to § 241a, paragraph. 2 (a). and o. s.), l., this conclusion

does not change. On the one hand in things meant to be decisive legal status before this

amendment and the Constitutional Court only in connection with the application of this

provisions shall examine whether such a restriction can be dovolacích reasons

be considered constitutionally conformist. "



66. The contentious "issue of major legal significance" after the aforementioned

amendment to s. l. also expressed the resolution to SP. zn. II.-2771/09 from

on 11 July. 3.2010 (available at http://nalus.usoud.cz), that the implementation of the

the following opinion: "The essence of the legal opinion does not change anything

the fact that Act No. 7/2009 Coll. amending section occurred, paragraph 237. 3

o. s. l., in which the words, or the courts of such extraordinary appeal court

rozhodována differently, or if the legal question resolves the conflict with the material

the law ' was replaced by the words the courts differently, or rozhodována if it is to be

such extraordinary appeal court resolved a legal question assessed differently; the circumstances of the

the reasons invoked by the dovolacími pursuant to § 241a, paragraph. 2 (a). ) and section 241a

paragraph. 3 shall be disregarded '. As i continue to apply top-cited opinion

The Constitutional Court, that specific procedural defect may have judikatorní

overlap, and as such is the nature of things-eligible such extraordinary appeal reason

for the examination of questions of major legal significance. Or if the Court shall base

its decision on the interpretation of procedural law and dovolatel against such

the interpretation will be brojit, this question cannot be excluded from the assessment of the existence of

questions of major legal significance. The difference with the previous finding

the case-law (in competition with you, therefore, the mere ' resolution)

It will be only in the form of podřazení, or under specific dovolací reason. To

the future therefore will be able to include such an objection under section 241a, paragraph. 2

(a). (b)) of s. l. That suggests not only constitutionally Conformal interpretation,

but the interpretation of the interpretation of the podústavního methodology-level rights. And

It already with regard to the relevant part of the explanatory memorandum to the Act No.

7/2009 Coll., according to which:, the exclusion of dovolacích for the reasons referred to in § 241a

paragraph. 2 (a). and given the nature of this) dovolacího because when you can

assume that a specific procedural defect will not have judikatorní bleed,

If the Court shall base its decision on the interpretation of procedural law and dovolatel

against this interpretation of the Rails, the current line of argument under section

paragraph 241a. 2 (a). (b). ' "



67. evaluation of the above empirical data necessarily leads to the conclusion of the

the fact that there is a real problem, which consists in the inconsistent case law

The Supreme Court relating to the interpretation and application of the contested

provisions, while continuously neglected to correct the views of the constitutional

the Court, in a variety of legal issues. In the opinion of the constitutional

the Court is this status due to the fact that the Supreme Court is not

identified by the General purpose of appellate review, and is not even respected by his purpose in

the submission of the above case-law of the Constitutional Court (paragraph 43). This leads to the

constitutionally impermissible dovolatelů inequality before the law, or of the

the law, which should be traktován through consistent interpretation of

The Supreme Court (see our and foreign case-law referred to in section 54, and

Furthermore, paragraph 52). In this State (based process nesjednocovaným

the procedure of the Supreme Court, and the case-law of the Constitutional Court of failure)

We can only conclude that the contested provisions, to the extent that an indefinite period or

vague legal standard, that is no longer in the real environment, IE. in

the possibilities of the General justice, predictable law (see paragraphs 34 to 38),

thus finds himself in conflict with the requirements arising from the principle of the rule of

the State (article 1, paragraph 1, of the Constitution), from which you can request on the predictability of the

rights inferred. In each of the cases in which the complainants submit

the constitutional complaint, the Constitutional Court's case-law is found in the decisions

Supreme Court rule, infringement of the right to a fair trial (article 36

paragraph. 1 of the Charter), or the performance of a constitutionally prohibited arbitrary (article 2, paragraph 2

Of the Charter, see point 38). From empirical data also suggests that the time has come to

order has been made systematic conclusion which would address that outlined

the problem in General, not just in the position of individual constitutional complaints.

Indeed, the fact cannot be ignored that the Czech Republic is relatively

often called the international legal responsibilities before the ECTHR, and it primarily

as a result from the interpretation of the contested provisions. The Constitutional Court

advocates say this lack of uniformity, which stems from the conceptual defects

the contested provisions, the Minister of Justice informed the Government

Agent for representation before the ECTHR, with appropriate design of the axle

as well as over inaction by the Minister of Justice and the Supreme Court in the

analysis of the efficiency of the relation to the action of the contested provisions, even if both

institutions are familiar with the issue, or should be familiar

should. It will now be at the Parliament of the Czech Republic, to accept a constitutionally

Conformal Law Institute the appeal so as to ensure the

the functions of the Supreme Court consisting of the unification of the case-law of the General

the courts, which definitely cannot meet the Constitutional Court whose functions (protection

constitutionality) is normována in the article. 83 of the Constitution and ordinary law, it cannot be

or in fact change.



68. With the argument of the President of the Supreme Court (paragraph 18), the Constitutional Court

in the above. As regards its objection in relation to § 237

paragraph. 3. s. l., Constitutional Court adds that by simply canceling the words

"in particular," would hit the permission of the legislature to define the admissibility

leave to appeal, or in this way would be narrowed down, although they are certainly

every other reasons leading to the judikování of the Supreme

the Court, which, after all, even the lawgiver anticipates by non-

listing.



69. The Constitutional Court wants to respect the free will of the legislature, that

assumes the new arrangements of the appeal, however, recalls that this adjustment must

be to the extent predictable, that the admissibility of an appeal must be obvious

each potential dovolateli before the appeal

in the form of an appeal. After the annulment of the contested provision becomes

a number of the provisions of s. l., content on building, obsoletní,

among other things, section, paragraph 237. 3. s. l., and more. The new legislation would appeal

should have a clear theoretical concept, above all in the sense of what the purpose of the

or wants to feature such an appeal to track (and in respect to the

the existing case law of the Constitutional Court and, naturally, also with regard to

function, which is to carry out the Supreme Court, see above), to which the Constitutional Court

has provided lawmakers over a sufficiently long period through the postponement of

the enforceability of the derogačního statement.



70. Of all of the reasons outlined the full constitutional court under section 70, paragraph.

1 of the law on the Constitutional Court decided to annul the contested provisions for

its contradiction with the provisions of the constitutional order referred to in the previous

points.



71. As the



obiter dictum

The Constitutional Court adds that this decision does not represent, in General, to

on the possibility of a real "



the selection of

"things, IE. to Institute



and certiorari

or to Institute the acceptability of submission, as outlined in the

context does not see reason. Only recalls that this Institute is barely

redeemable for ratios of the Supreme Court, whose decisions must remain

full review of constitutionality in the framework of the constitutional

the complaints. The reasons for such a requirement have been listed already, e.g.. in
finding SP. zn. III. TC 202/05 of 16 February. 3.2006 (N 60/40 SbNU 579)

which mj. said: "the Constitutional Court in its finding of 11 September. 2.2004

SP. zn. PL. ÚS 1/03 (collection of findings and resolutions of the Constitutional Court, the volume

32, find no 15, declared under no 153/2004 Sb.) dealt with in the context of the

the proposal to repeal the provisions of section 243c paragraph. 2. row question

requests must comply with the decision of the Court on the refusal to dovolacího

the appeal because of non-fulfillment of the conditions arising from the provisions of § 237 paragraph.

1 (a). (c)). 3. s. l. This finding pointed to his award of

20 December. 6. the 1995 SP. zn. III. TC 84/94 (a collection of findings and resolution

The Constitutional Court, volume 3, finding no. 34), according to which the independence of the

decisions of general courts in the constitutional and statutory

procesněprávním and substantive framework; procedural framework are

above all, the principles of proper and fair process, as resulting from article.

36 et seq.. Of the Charter, as well as from the article. 1 of the Constitution, and one of those principles,

representing part of the right to due process, as well as the concept of the rule of

State (article 36, paragraph 1, of the Charter, article 1, of the Constitution), and preventing arbitrage

When making a decision, it is also the obligation of the courts to give reasons for their judgments. Further

pointed out on its finding of April 26. 9.1996 SP. zn. III. the TC 176/96

(Collection of the findings and resolutions of the Constitutional Court, volume 6, finding no. 89), by

which is to be fulfilled by one of the purposes of the Court's jurisdiction, namely the

the requirement to maintain law-education to respect for citizens ' rights (§

1. s. l.), it is absolutely essential that the decisions of the ordinary courts not only

match the law in the merit of things and was issued with full respect for

procedural standards, but also to justify the decision, issued in

relation to the said purpose, reflect the criteria by the provision of section 157

paragraph. 2 in fine. 3. s. l., since the only factually correct (law

completely corresponding) decision and properly, IE. the law required

in a way, justified the decision, fill-as inseparable part of

, established procedure '-the constitutional criteria arising from the Charter (article 38

paragraph. 1); Similarly, as in the present area, even in areas not sufficiently

landed and reasoned legal arguments occur similar to the consequences

leading to the incompleteness and in particular to the nepřesvědčivosti decision, which is

However, in conflict not only with the purpose of the court proceedings, but also

with the principles of a fair trial (article 36, paragraph 1, of the Charter), as they

The Constitutional Court means. He also pointed to the discovery of 9 June. 7.1998 sp.

Zn. III. TC 206/98 (collection of findings and resolutions of the Constitutional Court, the volume

11, finding no. 80), which States that part of the constitutional framework

the independence of the courts is their obligation to ensure equality in the rights arising

from the article. 1 of the Charter; equality in rights in relation to the general courts of Constitution

Thus, among other things, the right to the same decisions in the same matters, and

at the same time eliminates the discretionary power in the application of the law ... in some cases

with sufficient may appear to be a reference to previous decisions

dovolacího Court (or. The Constitutional Court), while as a rule will be in

cases, when clearly it is a matter of wrong and legally identical or significantly

a similar ... If you were in this situation, the Supreme Court opinion that-i

Despite certain differences, the two cases-it is possible to assess this as well

thing, then had his position sufficiently explained in the justification of his

the decision, especially in a situation where its legal assessment was

(possibly) different from the assessment by the Court of appeal (and when

Moreover, neither the views of the courts of the lower degrees are not uniform, as mentioned

above). If not, the relevance of that link or not

judge. "



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 judges took the decision of plenum of Ivana

Smith, Vladimir Crust, Jiří Mucha, Jiří Nykodým and Miloslav Výborný.