The Constitutional Court
On behalf of the Republic of
The Constitutional Court decided on 19. January in plenary in the composition of Stanislav package
Francis Skinner, Vlasta Formankova, Turgut Güttler, Pavel Holländer,
Ivana Janů, Vladimir Crust, Dagmar Lastovecká, Jiří Mucha, Jan Musil,
Jiří Nykodým, Pavel Rychetský (reporter judge), Miloslav Výborný,
Elisabeth Wagner and Michael April about the design of the trading company TV
PRODUCTS CZ s.r.o., ID no. 26061333, registered office: 669/04, 110 00 Prague
1, on the abolition of section 76g and § 220 para. 3 of Act No 99/1963 Coll., the civil
the rules of court, as amended, with the participation of the Chamber of Deputies
and the Senate as the parties,
I. the provisions of § 220 para. 3 of Act No 99/1963 Coll., the code of civil procedure,
as amended, it is in part that allows you to change
the resolution, in which the Court of first instance rejected or refused a proposal from the
on the preliminary injunction or which was the procedure for this proposal
stopped, and in the context of an effective code of civil procedure
contrary to the principle of equality of the parties in accordance with article 3(1). 37 para. 3
The Charter of fundamental rights and freedoms and article. 6 (1). 1 of the Convention on the protection of
human rights and fundamental freedoms.
II. The provisions of § 220 para. 3 of Act No 99/1963 Coll., the code of civil
of procedure, as amended, shall be abolished on 1 January 2004. April 2011.
III. As long as the § 220 para. 3 of Act No 99/1963 Coll., the code of civil
of procedure, as amended, in effect, does not apply to
the resolution, which was the Court of first instance decided to reject or
reject the application for interim measures or proceedings
on this proposal should be terminated.
IV. The proposal to repeal section 76g of Act No 99/1963 Coll., the code of civil procedure,
as amended, is rejected.
Recap of the proposal
1. On time and properly filed constitutional complaint, the appellant sought,
to set aside the finding of the Constitutional Court, the High Court in Prague resolution of
May 27, 2008, SP. zn. 3 Cmo 52/2008-52 for the alleged infringement of article 81(1). 36
paragraph. 1 and article. 37 para. 3 of the Charter of fundamental rights and freedoms (hereinafter referred to as
"The Charter") and article. paragraph 96. 1 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution").
Proceedings on constitutional complaints is conducted under SP. zn. II. The CS 2100/08. With
the proposal to repeal the said resolution also sought repeal of § 76g
and § 220 para. 3 of Act No 99/1963 Coll., the code of civil procedure, as amended by
amended, conflict with the article. 37 para. 3 of the Charter and article. 96
paragraph. 1 of the Constitution.
2. An action of 3 June. January 2008 the company Studio Moderna s.r.o.
Studio Moderna SA sought against the appellant and companies FIRST CHOICE
Ltd. and Nodus Technologies, spol. s r.o. obligation to abstain from
use of a specific marking or service specific
the website. He was also associated with an action proposal to release
interim measures, which the applicant sought the determination of the majority of
the duties, which are contained in the remedies claim. In relation to the
the appellant was a proposal to impose the duty of a provisional measure
the same as with private pleas petite. By order of 10 June 1999. January 2008
Municipal Court in Prague rejected a proposal for a preliminary injunction.
The decision was delivered only to the applicants ' counsel. Of the day
January 30, 2008 applicants appeal against this decision, which
It was subsequently followed by the administrations of 21 June. in March 2008, and 1. April 2008.
By the contested decision the High Court decided in Prague so that comply with the
the application for interim measures in respect of all defendants
companies. On 30 November. June 2008 decision delivered
the defendant (TV PRODUCTS CZ s.r.o., i.e., the appellant in the proceedings before the
The Constitutional Court).
3. The essence of the argument of the appellant is, in short, the claim that in the
due to its exclusion from the second level adjudication of the matter (of the appellate
control) in case the application for interim measures in a case where
Court of first instance rejected the proposal, the applicant receives undue
protection, as it may in its proposal to say anything about the violation of their rights
the defendants in the first and second instance, and the defendant is not granted
no protection, or the possibility of defense against these allegations and decisions
and even then, when the Court itself has doubts about the legitimacy of the claims of the plaintiff.
The expression of the appellant's preliminary measures again occurs according to the
the de facto
to break the policy decisions of the first instance to decide on the proposal on
interim measures without hearing the parties to proceedings under section 75
paragraph. 2 of the code of civil procedure, resulting in a complete
"bypassing" the defendant out of control. The appellant was not given so
the ability to oppose the decision of the first instance, on defense include
other claims and the clarifications and respond to individual claims in court
When there is a rejection of the Court of first instance. If
In contrast, the Court of first instance granted the applicant, should the appellant in
appeal proceedings the same rights as the plaintiff. In addition, the appellant submits
that, in appeal proceedings, there is no reason to promote the desire for maximum protection
the appellant (as opposed to the procedure before the Court of first instance) in
If the provision of such protection has been denied the applicants '
by resolution. Such a conclusion cannot be base or on hypothetical reasoning about
that the defendant could unidentified way thwarting the interim measure,
when ordered to do so in the first instance, the applicant could not, and the Court could all
the decisive fact tell already before. The appellant in this
the context of the dispute with the legal conclusions of the Constitutional Court contained in
resolution of 3 July 2003. in December 2007, SP. zn. IV. TC 2959/07, in which Constitutional
the Court concluded a violation of fundamental rights as a result of
nedoručování decision on refusal or rejection of the proposal for a regulation of the
interim measures on the defendant. For these reasons, therefore, the appellant
claims that its exclusion from the appeal proceedings in violation of the principles of
the equality of the parties in accordance with article 3(1). paragraph 36. 1 and article. 37 para. 3 of the Charter
and article. paragraph 96. 1 of the Constitution (that provision is in a constitutional complaint
incorrectly marked as article. paragraph 69. 1 of the Constitution). It also sees the
breach of the principle of dvouinstančnosti control, which adds that this policy
There is a need to assess from the perspective of the principle of equality of the parties.
Code of civil procedure does the defendant filing the proper
appeal against the order of interim measures in appeal
the Steering, while the applicant's right to appeal the decision of the given
the entire range.
4. The constitutional complaint was also the proposal to repeal section 76g and section 220
paragraph. 3 of the code of civil procedure. In response to the above
arguments the appellant argues that the provisions of § 76g of the code of
Code of civil procedure, according to which the defendant knows about rejection or
rejection of the application for interim measures and about the possibility of filing an appeal from the
by the applicant, has resulted in the denial of the principle of equality of parties to proceedings
to the detriment of the defendant. If the applicant is granted the right to appeal
against the decision and expressing their opinion to him, of which the Court of appeal
and decided upon by, then the same right should be granted in appeal
the management of even a person that has a provisional measure subject to the obligation. Further
He claims that as a result of § 220 para. 3 of the code of civil procedure is the Court
forced to proceed in such a way that the defendant will prevent the implementation of the
its rights to seek a revision of the decision, which is stored
duty. Unlike the petitioner is denied the right to use it
all regular and extraordinary remedies. The application of both the provision
You may have as a direct result of neodčinitelný interference with the right of the participant
proceedings on equal treatment and the right to a fair trial. If
will the interim measure, the defendant will have
the option later to comment, his claim will be assessed
in the context of management and decision making on the merits, the applicant and replicated
the very fact of the existence of the regulation does not affect the obligation and not reverse.
The course of the proceedings before the Constitutional Court and the recapitulation of the observations of the parties
5. By order of 23 July. in June 2009, no. (II). TC 2100/08-49 reached II.
Chamber of the Constitutional Court concluded that the application of § 76g and § 220 para. 3
Code of civil procedure occurred, which is the subject of the constitutional
the complaint, the appellant's proposal to repeal the contested provisions
He advanced to the decision of the plenum of the Constitutional Court according to article. 87 para. 1 (b).
a) of the Constitution.
6. The Constitutional Court requested the filing documentation and called on the parties to the
proceedings, to comment on the application for annulment of the contested provisions. To
representation of the Ministry of Justice has called and, with regard to its
scope in relation to the courts.
7. The Senate in its statement, signed by its Chairman, Přemysl Sobotka
summed up the legislative process in the Senate in relation to the draft law,
novelizujícího civil procedures, which have been amended by this Act,
by § 76f (later přeznačen by Act No. 135/2006 Coll. on § 76g), and
§ 220 para. 3 and that was after its approval, published as Act No.
8. The Chamber of deputies in its statement, signed by its
Vice-President of Miroslava Němcová summed up the legislative process in
relation to Act No. 59/2005 Coll., and Act No. 135/2006 Coll. in this
the context stated that both of the amendment to the Act have been approved by the necessary
a majority of members of the Chamber of Deputies, were signed by the competent
constitutional actors and have been duly announced. At the same time expressed
is of the opinion that the legislature acted in the belief that the adopted law
It is in accordance with the Constitution and the rule of law.
9. the Ministry of Justice acknowledged in its observations that, in the case of
the Court of appeal for an interim measure to the appeal of the claimant
This decision will be final, without appeal against it could
the one to whom it is imposed the obligation. President of the Chamber, however, is still
obliged to according to § 77 para. 2 of the code of civil procedure to cancel the preliminary
the measure, if the reasons for which it was ordered. The participant,
with the assistance of the provisional regulation, something saved, is entitled to file an
application for annulment of the interim measure, that the reasons for which it was
ordered have ceased to apply, or never existed.
10. In relation to the alleged breach of the contested provisions with article. 37 para.
3 of the Charter, the Ministry stated that the proceedings on the preliminary
the measure is
the de facto
reinsurance Institute of its kind and not the application inter partes proceedings,
While the possibility of the duration of the provisional measure is tied to the submission of the proposal
the proceedings on the merits of the case, in which the binding decision on
the rights and obligations of the parties. All the principles expressed in
constitutional law is a must in particular always considered as control
whole, and not is evaluated individually. In the present case is based on
The Ministry of justice must come to the conclusion that the above principle
equality of arms, which is fully applicable in proceedings on the merits, the
the principle expressed in article. paragraph 36. 1 of the Charter. Does not have to be this provision
merely declares the rights of individuals must be in the practice of naplnitelný and
its meaning, and this is a completely no doubt enable the individuals actually
their rights in legal proceedings to be enforced. If, however, there was no effective
resource for the interim solution ratios among the participants until the release
a binding decision, it might be the fact that although the court prosecutors
the law admits, but in fact is already voluntarily or performance
the decision will not be possible to implement. In conclusion, it expressed its Ministry
Justice, the belief that the contested provisions are in accordance with the
the constitutional order.
11. From the oral proceedings, the Constitutional Court in accordance with § 44 para. 2 of the law on
The Constitutional Court, as the Court concluded that, since it could not be
expect further clarification of the matter, and the parties with the abandonment of
the oral proceedings agree.
Petit design and wording of the contested legislation
12. The appellant seeks the annulment of the proposal to section 76g and section 220 g of the civil
Code of civil procedure as amended.
13. paragraph 76g of the ZPO reads as follows: "If the proposal Was to
interim measures is dismissed or rejected or if
the proceedings on the application shall be served on the resolution stopped only to the applicant.
A copy of the resolution must be sent to the applicant or his
representatives within 3 days from the date of its publication or issue resolution. ".
14. The provisions of § 220 para. 3 of the code of civil procedure reads as follows: "if they are not
conditions for the confirmation of the order, by which it was decided to advance
measures, or other resolutions which were not decided on the merits,
or for their cancellation pursuant to section 219a para. 1, the Court of appeal is changed. ".
The constitutional conformity of the legislative process
15. Pursuant to § 68 para. 2 Act No. 182/1993 Coll., on the Constitutional Court, in
amended by Act No. 48/2002 Coll., examines the Constitutional Court in proceedings relating to revocation
laws and other legal regulations, whether the contested act or other legal
Regulation was adopted and issued within the limits of the Constitution laid down the competence and
constitutionally prescribed way. In this assessment, yet came out of the
the observations of the parties, as well as publicly available information
resources at www.psp.cz and www.senat.cz.
16. Of the above documents, the Constitutional Court found that the Bill
(print 643, the Chamber of Deputies, 4. the electoral period, 2002-2006),
that was later declared as no. 59/2005 Coll., amending Act No.
99/1963 Coll., the code of civil procedure, as amended, and
certain other acts, which was the first place in the code of civil procedure
the contested provisions of § 76g (the changes made by Act No. 135/2006 Coll.
amending certain laws in the area of protection against domestic violence,
originally designated as § 76f) and the provisions of § 220 para. 3, was
The Chamber of Deputies approved on 26 April. November 2004 resolution No. 1399
(vote no. 169). Of the 189 MPs present voted for the proposal, 183
against the 3. The Senate discussed the Bill (Senate document No 467, Senate, 4.
the term, 2002-2004) on 5 July 2004. in January 2005, and expressed
Declaration No 31 (vote no. 13), the draft adopts the law. From
64 present senators voted for the adoption of this resolution 41
Senators, against 5. On 13 November. in January 2005, the law was delivered to the President
the Republic, which is 20. He was signed in January 2005.
17. The draft law (828, printing house of Commons election, 4.
the period 2002-2006), which was promulgated under Act No. 135/2006 Coll., which
changing some laws in the area of protection against domestic violence, was
The Chamber of Deputies approved after the Senate (Senate document No 197,
The Senate, 5. the term of Office, 2004-2006) based on resolution No. 312 of the
January 26, 2006 (vote no. 28) returned with the amendment proposals. On 14 June 2005.
March 2006 the Chamber of Deputies remained in resolution No. 2267 (vote
No. 142) on the text of the proposal, which was forwarded to the Senate. Of the 176
members of Parliament voted for, 139 against 15. The law was delivered to the President
the Republic of 22 July 2003. March 2006 and signed on 31 March 2004. March 2006.
18. Due to the fact that the appellant is not a defect of the legislative
process, or exceeding the Constitution laid down the competence of the legislature, and with the
regard to the principles of procedural economy, the Constitutional Court continued to examine
the constitutional conformity of the legislative process and satisfy the referred to
formal verification of its progress on the basis of the above documents.
Custom design assessment
19. The Constitutional Court has dealt with the alleged contradiction of the contested provision,
the principle of equality of parties to the proceedings within the meaning of article 87(1). 37 para. 3 of the Charter.
20. Interim measures constitutes a procedural device which allows you to
before the decision of the General Court on the merits of the case provide for participant
the obligation to control, if necessary, to be provisionally revised ratios
the participants, or if it is a concern that the execution of the Court decision was
at risk. The purpose of the interim measure is therefore the interim adjustment of the rights and
obligations, which does not exclude the protection of the rights of the interested party will be
the final decision in the case given, ensures, however, that such
the final decision could have real meaning at all (cf. resolution of
February 23, 2005 sp. Zn. IV. TC 601/03, accessed on
21. Although the injunction only to temporary modify
legal relations, this is a decision that, as is apparent from settled
the case-law of the Constitutional Court, is eligible to infringe fundamental rights and
freedoms of individuals (cf. e.g. award of 10 November 1999, SP. zn.
II. TC 221/98, N 158/16 SbNU 171, or the discovery of 21 June. November 2001
SP. zn. IV. TC 189/01, N 178/24 SbNU 327). The imposition of certain obligations
Indeed, in this way, depending on the subject-matter of the proceedings before the General
the Court can fundamentally affect the legal status of the participant
management, as well as interfere with his fundamental rights and freedoms. Typically you
You can imagine the restrictions of ownership rights of the interested party by the preliminary
as a result of determining the obligations to refrain from an waste
with the subject of the proceedings. Interim measures may, however, constitute interference
the rights relating to the right to judicial and other legal protection. In
this context, the Constitutional Court notes that the basic rights contained in the
the fifth head of the Charter are reflected not only in relation to the assessment of the Court of
the proceedings as a whole, but it is necessary to examine through the prism of their
each part of the proceedings before the General Court. It is not necessarily
necessary that the requirements arising from each of the constitutionally guaranteed
procedural rights were in the same intensity in all its parts.
Limitation of fundamental procedural rights but can not be arbitrary and must take
account of the fact that the purpose of the proceedings is to provide protection
the subjective rights of the individual. Violations of the procedural rights of the participant
management may negatively reflect in the other his fundamental rights,
While such intervention can have a direct and in terms of further proceedings
neodčinitelný character (cf. resolution of 30 October 2006, SP. zn.
IV. TC 394/06, accessed at http://nalus.usoud.cz).
22. The principle of equality of the parties is the core principle of
the fairness of the process. Its normative representation located mainly in the article.
37 para. 3 of the Charter and article. paragraph 96. 1 of the Constitution, and at the level of podústavního
civil procedure law is enshrined in section 18 of the code of civil procedure,
and is also reflected in a number of other provisions of this Act. This
the constitutional principle guaranteeing equal status of participants in court proceedings as
the rights, which the participants of a certain type of procedure (cf. legal order.
the discovery of 21 June. August 2008, SP. zn. II. TC 657/05, accessible on the
http://nalus.usoud.cz). In a similar way, this principle
interpreted even in the established case-law European Court of human
the law, which is considered part of the right to a fair trial within the meaning of article 87(1). 6
paragraph. 1 of the Convention for the protection of human rights and fundamental freedoms (hereinafter referred to as
"The Convention") considers the principle of "equality of arms". From this principle, this Court
concludes that each process has to be given a reasonable opportunity to
make your affair, including evidence, under conditions which do not build it into
considerably less favourable situation than that of its counterparty
(judgment of 27 October 1993 Dombo Beheer in the matter (B). In.
The Netherlands, # 14448/88, paragraph 33).
23. On the basis of the postulates of the Constitutional Court States that the principle of
the equality of the parties acts in relation to the management of the regulation
interim measures as part of legal proceedings, and in particular with the
regard to the possibility of the imposition of duties, which may significantly
touch the legal status of the defendant's body. If it is to be
a provisional measure ordered to, must be parties to the proceedings
option in a comparable range to apply before the Court their claims and
objections in relation to the subject of the proposal that are relevant manner
be reflected in the consideration of the Court in relation to the assessment of the merits test design.
24. Position of the parties on the interim measure to the
a simple level (podústavního) exhibits a number of specifics in
compared to the proceedings on the merits. Under section 74 para. 2 of the code of civil
In addition to the proposer of the order are the participants and those who would, if they were
It was the thing itself. In the proceedings before the Court of first instance but do not design
served on the other parties. The Court shall decide on this proposal
without a public hearing, with the delivery of the other participants
proceedings shall proceed only in the case that the design of at least a partial suit.
25. the contested provisions of section 76g of the judicial code by establishing
an exception to the General editing service of the resolution under section 168 paragraph. 2 of this
the law, as though against such a decision is permissible
the appeal, in the case of suspension or rejection of the proposal for a regulation of the
the interim measure or in case of termination of the proceeding of such a proposal
delivered to others than to the applicant. According to the claim
the appellant is given a contradiction to § 76g code of civil procedure with article 6(1). 37
paragraph. 3 of the Charter due to the limitation of the application of the amending
a resource against a decision ordering interim measures. Against the
order of the Court of first instance the appellant may submit
the appeal, but in the event that the Court of first instance could not design
granted, means that this appeal will be able to submit only the claimant.
Only he was order of the Court of first instance delivered. With that
the arguments, however, the Constitutional Court agreed, wherefore also nepřisvědčil
alleged breach of this provision, the principle of equality of the participants
26. The principle of the equality of the parties cannot be inferred
an abstract postulate, that all parties must at all times
at the same time dispose of certain procedural control means. In the case of
certain procedural devices stems from their nature and purpose,
that their application can be in only one side. So it
even if the application for interim measures, since this measure
It is used to guarantee the projednatelnosti of the claim and the effectiveness of any
the provision of legal protection. If the legislature has allowed in cases
that affects the contested section 76g of the judicial code, to Prosecutor's Office
able to exercise an appeal against the decision of the Court of first instance,
his procedure was justified by the interest in the effective protection of subjective rights
of the plaintiff. Delivering the decision of the Court of first instance, whether or not the defendant would be
the defendant referred to procedural activity signaled the Prosecutor and provide
a specific time and space to capacity, which could, where appropriate, efficiency
subsequently issued an interim measure to thwart (resolution of 3 September 2002.
December 2007 sp. Zn. IV. TC 2959/07, accessed on
http://nalus.usoud.cz). You cannot therefore, in the non-delivery of this
the decision of the defendant, which basically ensures the effectiveness of the
the appeal of the claimant, seen as a breach of the principle of equality of the parties.
Such an interpretation would be meaningless, not only in relation to the interest
the plaintiff, but also in relation to the defendant, as it could hardly
have interest in bringing the appeal against the decision, which the Court a proposal for
interim measures rejected (such an appeal would have to be
found to be subjectively unacceptable). In terms of the principle of equality
of the parties is also necessary to underline that against any
the allegation or evidence that the applicant has raised in relation to the draft
interim measures and which could be relevant to the decision of the General
the Court on the merits, the defendant may express in the context of court proceedings.
For these reasons, the Constitutional Court did not find a contradiction to § 76g of the code of
Code of civil procedure with the principle of equality of the parties in accordance with article 3(1). 37 para. 3
Of the Charter.
27. as regards the contested provisions of § 220 para. the code of civil
procedure, this provision provides that the conditions are not fulfilled for the
confirmation of the order granting the interim measures has been decided upon, or
another resolution, which was not decided on the merits or for their
cancellation under section 219a para. 1, the Court of appeal is changed. The Constitutional Court in the
this context underlines that the unconstitutionality of the provision is not
raised in General to limit the possibility of Cassation the decision of the Court of appeal
on cases under section 219a para. Code of civil procedure, but only the
in relation to those cases where the appeal is directed against the decision of the
the provisional measures under section 76g of the judicial code
the other parties in the locality. Therefore, the contested provision
The Constitutional Court examined only within this range.
28. as already mentioned above, the interim measures is eligible
intervene in a significant way to the fundamental rights and freedoms of the participant
control. To live up to the obligations deriving from the principle of equality of parties to proceedings
means that in judicial proceedings must be guaranteed the possibility of
to assert their claims in such a way that no procedural page has not been
substantially disadvantaged in terms of its assessment of the General Court in
under management. Statutory proceedings on interim measures
Therefore, you must create a process space to reflect purpose when
the preliminary measures have been maintained at the same time the participant concerned
management of the real possibility of protection of his rights in relation to the ordered
the preliminary measures, especially with regard to the judicial proceedings
is not limited by the deadline, which means that the measure may cause
after effects not negligible amount of time to a final termination of the proceedings.
29. assessment of accordance § 220 para. 3 of the code of civil procedure in respect of
to the procedure for interim measures from the standpoint of the principle of equality
participants in proceedings according to art. 37 para. 3 of the Charter, therefore, assumes
answering the question whether the current legislation allows the participant
control, which was a provisional measure ordered to apply
their claims and objections in a similar range as the appellant, without
Regardless, if interim measures ordered by the Court of the first or
the second degree. The Constitutional Court has come to the conclusion that it is not.
30. Before the Constitutional Court examined whether the possibility for the application claims
the defendant is or may be given in the course of the appeal proceedings, and
especially in terms of § 210 paragraph 2. 1 and § 214 paragraph. 2 (a). (c))
Code of civil procedure. Both provisions apply to the appeal
management, and in essence create a space for it, so that other
the parties to the proceedings to assert their claims. Under the first
that provision, Chairman of the Board of appeal delivered to others
participants only if, in the case of a judgment or resolution in
merits of the case. In other cases, as in the case of the preliminary
measures, the Court of appeal in the locality. The above provisions of the Constitutional Court
has repeatedly stated in relation to decision on appeal only against the
the operative part of the costs, although it "does not imply an obligation to
the Court delivered copies of the appeal directed against not the merits of the
by decision of the other participants, however, this does not mean that the Court of first
instance cannot make on the basis of considerations (constitutionally concurrent) about the suitability and
the effectiveness of such measures having regard to the circumstances of the case or
particularity of things "(from 26 September 2005, SP. zn. IV. TC 310/05, N
180/38 SbNU 443). Similarly, in relation to the possibility to order
proceedings provided for in § 214 paragraph. 2 (a). (e) the code of civil procedure) in
If the appeal concerns only the costs of the proceedings. In that case, the
However, this is a different situation than it was in the case of
the appeal proceedings relating only to pay the costs.
31. as already mentioned above, the interim measures creates a presumption of
for effective protection of subjective rights of the participant before the Court. The effectiveness of the
This protection is given by the fact that this measure can be rapidly enforced
the determination of obligations against the defendant, in which as a result can be avoided
the threat of a subsequent enforcement, respectively. This can be avoided
potential negative consequences to the legal sphere of the applicant, to which
could occur as a result of the impossibility of performance of his rights until the decision of the
the Court on the merits. The speed requirement, as well as the překvapivosti of the
in terms of predictability of the imposition of provisional measures to the concerned
the effectiveness of the said party allows you to process resource.
The exclusion of these requirements would make it impossible for the effectiveness of this resource when
judicial protection of subjective rights, and therefore would be in a negative way
reflected in the fundamental right to judicial protection. paragraph 36. 1
Of the Charter, which requires the existence of legal remedies for the effective
the protection of subjective rights. If the Court of appeal against the
the decision of the Court of first instance which has not complied with the proposal for a regulation of the
the preliminary measures, other participants in the proceedings or, if ordered
negotiations within the meaning of § 214 paragraph. 2 (a). (c)) code of civil procedure,
de facto, this would in many cases made it impossible to achieve the protection of the rights of fair
the form of the provisional measures, as the defendant could your procedure
make it impossible to achieve its purpose. Such a procedure is, therefore, the General Court
excluded from the nature of the provisional regulation, and it can be concluded that the interpretation and
the application of § 210 paragraph 2. 1 and § 214 paragraph. 2 (a). (c)) code of civil
the order cannot, having regard to the purpose of the interim measure to secure option
the defendant's exercise of his procedural rights.
32. Option for the application and the objections of the defendant's claim is not given
even then, after the decision of the appeal court, which shall order preliminary
measures. For an adequate remedy cannot be considered, nor any
the initiative to cancel the interim injunction by the Court within the meaning of § 77 para. 2
Code of civil procedure. This provision essentially makes the duration
interim measures the duration of the reasons for which it was ordered. The Court is
According to this provision shall be cancelled if the interim measures referred to in
his opinion, the reasons for its regulation. Already from the above it is clear that
any complaint in relation to the Court would be unable to achieve the review
the legality of the interim measures at the time of the regulation as referred to in
that provision, the court assesses the current duration these terms and conditions, and
not whether these terms have been made at the time of the regulation.
33. in those circumstances, therefore, the Constitutional Court notes that the current
the legislation does not create a process space for a party, which is
as a result of changes to the order of the Court of first instance the Court of appeal under section
paragraph 220. 3 of the code of civil procedure established a provisional measure
obligation to a similar level as the Prosecutor's Office to protect their rights in the
proceedings before the Court. As a result of the legislation is so at the level of
simple (podústavního) rights-based conflict with the constitutional principle of
the equality of the parties, which may in the case of the application of this legal
adjustments lead to a violation of the fundamental right of a party to proceedings arising from the
34. The Constitutional Court in terms of article. 37 para. 3 of the Charter concluded,
that the exclusion of the possibility to cancel the decision of the Court of first instance on
the provisional regulation within the meaning of section 220 of the contested paragraph. 3 of the code of
Code of civil procedure can in itself be regarded as unconstitutional. In the case that
Court of first instance failed, at least in part the proposal for a regulation of the
the preliminary measures, but the impossibility of appeals this decision
the Court of appeal in the absence of other means of protection of the rights of the defendant
the party defends its protection of the basic rights in the
the proceedings before the general courts pursuant to art. 4 of the Constitution. The contested provision
Therefore, it is for the above reasons, in violation of the principle of equality of the participants
the article 88(2) procedure. 37 para. 3 of the Charter, and at the same time article. 6 (1). 1 of the Convention.
The wording of the operative part of the award derogačního and its legal consequences
35. The Constitutional Court has come to the conclusion that, in view of the above reasons
paragraph 220 para. 3 of the code of civil procedure in breach of article. 37 para. 3
Of the Charter and article. 6 (1). 1 of the Convention. In this context, but again stated that
the reasons for the conflict applies only to cases in which the
the appeal is directed against the order of the Court of first instance, when the proposal was submitted to the
interim measures is dismissed or rejected, or who have been
proceedings of the design, and the Court of appeals stopped, it considers that this
the resolution has to be changed so that it is at least partially meets design.
The Constitutional Court is aware that the reason for the derogation applies only to a subset of the
legal standard contained in this provision, however, with regard to the
the jurisdiction of the Court to its verdict needs to be reframed in this derogačním
the provisions, for example. by the way, that only came up to its cancellation in the
section relating specifically to the preliminary measures, i.e., in the
as defined by the words "resolution on interim measures has been decided upon,
or "(cf. the award of 30 November 2004, SP. zn. PL. ÚS 15/04, N
180/35 SbNU 391, 45/2005 Coll.). In addition, if the Constitutional Court annulled the
This provision only in the words "the resolution by which it was decided to
interim measures, or, it would continue to be a decision on the preliminary
podřaditelné measures under the torso section 220 paragraph text. the code of civil
the order, because it is undoubtedly a "resolution, which has not been decided in
merits of the case ". Partial derogation should therefore not lead to the removal of
protiústavního State. In addition, the accidental consequence of this derogation was
also eliminate the possibility of changes to the contested order, even in a situation where it was
in the first instance the application for preliminary injunction at least partly
granted, the resolution was delivered to the debtor and filed the appeal against it.
On such a procedural situation of derogatory reason in any case doesn't work.
36. It is for the legislature to decide what legislation
the interim measures shall take decisions which would remove this
finding a defined constitutional deficit. The Constitutional Court emphasises once again that the
arises in the context of the entire legislation with interim measures in
Code of civil procedure, and there was complete absence of the right to be
heard and the complete absence of possibility of the defendant's legal defense against
a preliminary measure by which this side of the obligation was to court
the second stage, unlike the appellant, unlike the situation that
would occur if the interim measures already ordered the Court of first
the degree. The Constitutional Court adds that this finding cannot be interpreted by
in a way, that the only possible solution is to absolutizace the possibility of Cassation
the decision of the Court of first instance in the present appeal proceedings. In this
the meaning of the legislature is not limited, you can on his part to introduce
other solutions, e.g.. extension of the reasons for the submission of the application for revocation
interim measures pursuant to § 77 para. 2 of the code of civil procedure, or
the introduction of entirely new cause of action, which could be required
the party reach the hearing officer in case ordered interim measures,
the presentation of their case and ordered the preliminary examination
measures in a short time. Also can be considered a combination with options
autoremedury in the case of an appeal the appellant against
rejection of an application for an interim measure by the Court of first
degree, and then followed by the defendant to appeal
the Court of second instance. Only the Constitutional Court mentioned for completeness and
possibility of extending the leave to appeal on the situation where the interim measure shall order
Court of second instance by changing the order of the Court of first instance, this solution
However, it does not seem appropriate to systemically and having regard to the requirement of speed
proceedings for interim measures. The Constitutional Court adds that attention should
Indeed, a comprehensive reassessment of procedural justice legislation
interim measures with consistent reflection of constitutional principles and constitutionally
guaranteed fundamental rights, in particular the resolution of the functions and purposes of different
interim measures in the different types of proceedings, and the corresponding
procedural differences for each type of provisional measures. The current
the legislation is also a comparison with legislation in other countries
37. The Constitutional Court here used figuratively, for example, points out the procedural
legislation in neighbouring, from the perspective of legal culture are nearby
countries. The Austrian enforcement procedure code (
, 1896, RGBl/79, section 378-402), for example, establishes special procedural
means of Defense, not only to the plaintiff, which was rejected, but also
the defendant, who was a provisional measure ordered to.
and may be appealed ()
May be appealed
), both of which allow you to resources in the various process situations
the defendant, in order to be heard and to obtain a review of the preliminary
measures (briefly and simply put, it is for the resistance in the case that
the defendant did not have the possibility of interim measures before the regulation to the point
comment, may be appealed in the case that had this option, or if the proposal was
rejected-then right rekursu claimant). The German Code of civil
of 30 March 2004. 1.1877, RGBl. S. 83, newly announced as amended on 5 November. 12.
1005, BGBl. 3202 s., § 916-945) likewise also distinguishes more
procedural means of Defense of both parties against the decision
interim measures-appeals (
), resistance (
) defendant against the resolution on the interim measure or immediate
the applicant against a decision on) the rejection of the proposal. And here is the Habitat for the resistance
the instrument by which the defendant realizes its right to be heard in a situation where
It was refused to him before the decision (i.e. here before regulation
38. Because of the importance of that provision for decisions of the boards of
the courts and the fact that the reason for this derogation provisions falls just
in some cases of its application, has decided, pursuant to section 70 of Act No. 182/1993
Coll., on the Constitutional Court, as amended by Act No. 48/2002 Coll., that that
the provisions are cancelled up to 1 day. April 2011. This is for the legislature
created enough space for the adoption of the ústavněkonformní legislation.
By this time, that provision remains applicable, except for
the cases, which turns out the reason for this derogation provisions and, therefore, in
where the application of this provision has led to the violation of basic rights
the parties concerned in accordance with article 3(1). 37 para. 3 of the Charter and article. 6 (1). 1
Of the Convention.
39. In this context, the Constitutional Court adds that an assessment of the conformity of the law
or any other law in any proceedings under section 64 et seq.. Law No.
182/1993 Coll., on the Constitutional Court, as amended,
not only in the plane of the validity of the legislation, but also in the
the plane of its applicability. The Constitution itself does not limit protection
fundamental rights and freedoms in the case when the reason for their infringement lies in
application of unconstitutional law, only to the abolition of such legal
standards, but the Constitutional Court assumes the projection of legal conclusions
The Constitutional Court in relation to the application of such legal standards bodies
of public authority. This conclusion is evident from the constant case-law Constitutional
the Court, which i repealed the law review accepts the proposal of the General
the Court referred to in article. 95 para. 2 of the Constitution, in the event that the Court finds
the conclusion about his conflict with the constitutional order (finding of January 10, 2001
SP. zn. PL. ÚS 33/2000, N 5/21 SbNU 29, 78/2001 Coll.; find of the day 6.
February 2007, SP. zn. PL. ÚS 38/06, N 23/44 SbNU 279, 87/2007 Coll., finding
of 29 April 2004. January 2008, SP. zn. PL. ÚS 73/06, 27/2008 Coll.). In such a
the case is not whether the Act was cancelled, but whether it is
law contained in the text still applicable and whether the assessment
questions of constitutionality is the prerequisite for the Court's decision in
merits of the case.
40. In the present case, so you cannot forget that, in proceedings relating to revocation of the laws
and other legislation shall be decided by the Constitutional Court in the first instance on
the constitutionality of the law. If the control on the design pursuant to article 4(1). 95
paragraph. 2 of the Constitution the Constitutional Court decides on the constitutionality of the already canceled
laws, is a consequence of the breach of the constitutional order
neaplikovatelnost of legal provision (award of 7.
April 2009, SP. zn. PL. ÚS 35/08, 151/2009 Sb.). It is therefore clear that
This effect must apply even in cases where the assessment
constitutionality of the still valid law. Despite the determination of the subsequent delivery
annulment of the contested provisions are, therefore, general courts shall be entitled to
do not apply to § 220 para. 3 of the code of civil procedure in cases where
such a change in the application order of the Court of first instance, which
rejected or refused a proposal for an interim measure or which
It was stopped the proceedings for such a proposal, in the sense that it would be in
as a result of this change was at least partially rejected the proposal. By applying the
This provision would have infringed the fundamental right of the defendant
arising from the principle of equality of parties to the proceedings within the meaning of article 87(1). 37 para.
3 of the Charter.
41. the Constitutional Court thus concluded that the § 220 para. the code of civil
the order is in conflict with article. 37 para. 3 of the Charter and article. 6 (1). 1 of the Convention,
therefore decided, pursuant to section 70 para. 1 of the law on the Constitutional Court, that this
provisions, and the enforceability of this statement according to § 58 para. 1
the law on the Constitutional Court postponed to a later date to have the legislature
space needed for the adoption of a comprehensive ústavněkonformní law.
Because of the suspension of operation of derogačního statement for the same time
the continued presence of derogačního reason in application practice
a large voltage, the Constitutional Court was forced to remove the interim this voltage
editing in the form of interpretativního the operative part under point III. Finally, the proposal
on the abolition of section 76g of the judicial code in accordance with § 70 para. 2 of the law on
The Constitutional Court rejected the Constitutional Court as a nedůvodný.
The President of the Constitutional Court:
JUDr. Rychetský in r.
Different opinion referred to in section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, adopted the decision of the full Court Judge Ivana