48/2010 Sb.



FIND



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,



as follows:



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.



Justification:



(I).



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 appellants



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.



II.



The course of the proceedings before the Constitutional Court and the recapitulation of the observations of the parties

control



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.

59/2005 Sb.



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.



III.



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. ".



IV.



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.



In the.



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

http://nalus.usoud.cz).



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

control.



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

those principles.



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.



Vi.



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

as nepromyšlená.



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 (



Judgments Act

, 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.

resistance (



Widerspruch

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

procedure (



Zivilprozessordnung

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 (



Berufung

), resistance (



Widerspruch

) defendant against the resolution on the interim measure or immediate

complaint (



sofortige Beschwerde

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

interim measures).



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

J.