84/2007 Coll.
FIND
The Constitutional Court
On behalf of the United States
The plenary of the Constitutional Court of the day 6. February 2007 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, Miloslav Výborný, Elisabeth Wagner, and
Michael April decided in the matter of the proposal of the District Court in Ostrava
repeal of the provisions of § 31 para. 4 the third sentence Act No. 82/1998 Coll., on
liability for damage caused in the performance of public authority by a decision
or incorrect official procedure and on the amendment of the Act of the Czech National Council.
358/1992 Coll., on the notarial profession and their activities (notarial regulations), as amended by
Constitutional Court No 234/2002 Coll.
as follows:
The proposal is rejected.
Justification
(I).
The definition of things and a recap of the proposal
The Constitutional Court was on 26. April 2006 served the District Court in
Ostrava, Czech Republic on abolition of the provisions of § 31 para. 4 second sentence (according to the content
the design of the third sentence) of Act No. 82/1998 Coll., on liability for damage
caused in the exercise of public authority decision or incorrect official
the procedure and on the amendment of the Act of the Czech National Council No. 357/1992 Coll., on the
notaries public and their activities (notarial regulations), as amended by the constitutional
Court No. 234/2002 Sb.
The appellant did so according to § 64 para. 3 of Act No. 182/1993 Coll., on
as amended, and then, what in the context of its
the decision-making activities in accordance with art. 95 para. 2 of the Constitution and § 109 paragraph. 1
(a). (c)) of the row came to the conclusion that the provisions of § 31 para. 4 sentences
the second Act No. 82/1998 Coll., which has be in solving things SP. zn. 85 C
446/2004 applies, is in breach of article. 4, art. paragraph 36. 3 and article. 37 of the Charter of
fundamental rights and freedoms ("the Charter").
In that case, SP. zn. 85 C 446/2004 is the District Court in Ostrava
decided on the action of Ing. M. k., filed pursuant to Act No. 82/1998 Coll. against
The Czech Republic, on the payment of specific amounts, and after that, what was
the plaintiff judgment of the regional court in Ostrava dated June 25. in March 2002, in
case conducted under the SP. zn. 3 It 122/2002, acquitted of a criminal
crime of assault on a public official under section 155 para. 1 (b). and), para. 2
(a). (b) mixtures), when his conduct was not found to be a criminal offence.
The applicant in the application and payment of the required contractual remuneration lawyer in criminal
proceedings, while aware that according to the provisions of § 31 para. 4 of law No.
82/1998 Coll., the amount of the remuneration of defence counsel shall be determined according to the provisions of the Special
Regulation on non-contractual remuneration (Decree No. 177/1996 Coll., on rewards
lawyers and compensation lawyers for provision of legal services (the law firm
tariff), as amended by later regulations), but is considered the provisions of the
for the conflicting with article. 4 and article. paragraph 36. 3 of the Charter.
To the argument of the applicant responds by, the General Court was interrupted by the case
management and presented to the Constitutional Court for annulment of the
the statutory provisions. The reason for this proposal is the alleged contradiction between the
the concept of compensation for actual damages, contained in Act No. 82/1998 Coll.,
understanding of the concept of actual damages in the Czech legal order (§ 442 paragraph 1 1.
Cust.) and payment of the equivalent amount of contracting nepřiznáním the remuneration of barristers in
criminal proceedings. Ústavněprávním by projecting this conflict then according
the appellant is a contradiction to the provisions of § 31 para. 4 second sentence (according to the content
the design of the third sentence) of Act No. 82/1998 Coll., with art. paragraph 36. 3, art. 4 and article.
37 of the Charter.
II.
Recap the essential parts of the representation of a party to the proceedings
According to § 42 para. 4 and section 69 of Act No. 182/1993 Coll., on the Constitutional Court, in
as amended, posted by the Constitutional Court of the present proposal
The Chamber of Deputies. In its observations of 19 April 1996. in May 2006 the President of the
The Chamber of deputies of the Parliament of the Czech Republic, PhDr. Lubomír Zaorálek
points to the fact that the provisions of § 31 para. 4 Act No. 82/1998 Coll.
It is in the form in which the applicant "complaint" attacks, invalid, since
the whole of the provisions of section 31 has been amended by law No. 160/2006 Coll., which
amended Act No. 82/1998 Coll., on liability for damage caused during
the exercise of public power by a decision or incorrect official procedure and on
the Czech National Council Act No. 357/1992 Coll., on the notarial profession, and their
activities (notarial regulations), as amended, law No.
201/2002 Coll., on the Office of the Government representation in property Affairs, in
as amended, and Act No. 40/1964 Coll., the civil code, in the
as amended. (The Constitutional Court on this point only
notes that the appellant incorrectly indicates that the proposal in the
control standards the term "complaint".) Law No. 160/2006 Sb.
published in the amount of 55 laws and came into effect on the date of its publication,
i.e.. 27 June 2002. April 2006. For those in the expression of the proposed procedure in
things SP. zn. PL. ÚS 38/06 on the proposal of the District Court in Ostrava according
the provision of section 67 para. 1 Act No. 182/1993 Coll., on the Constitutional Court,
stop, since it was delivered the day before the entry into force of the said amendments
the law.
According to § 42 para. 4 and section 69 of Act No. 182/1993 Coll., as amended
the rules, posted by the Constitutional Court of the present proposal and the Senate of the Czech
of the Republic. At the outset of its observations of 13 January 2004. in June 2006 the Chairman
Mudr. Přemysl Sobotka recapitulates the progress of the consultation of the
the Bill by the Senate. States that the proposal for the contested act was adopted in accordance
with the article. 46 para. 3 of the Constitution, the provisions of § 31 para. 4 Act No. 82/1998 Coll.
It was then amended by law No. 160/2006 Coll., which entered into force
on 27 October 2001. April 2006, with the "adjustment concerning the amount of remuneration for
Indeed, the adoption of the amendment to the representation of substantive changes and is now part of the
the provisions of § 31 para. 3 of Act No. 82/1998 Coll., as amended, as
his sentence by a third. "
The proposal referred to the amendment to Act No. 82/1998 Coll., referred the Chamber
the Chamber of Deputies for consideration of the Senate on 21 February 2006. February 2006. After discussion in the
ústavněprávním Committee, which, by its resolution of 8 June 1993. March 2006
recommended its approval, the amendment was included on the agenda 10. meeting
The Senate held at 5. term of Office. The hearing took place on 16. March
2006. After the general debate, the Senate voted on a proposal to approve the
amendment to the Act, as amended by the Senate, the Chamber of Deputies transferred.
This proposal was the Senate resolution No. 378 of 16 June. March 2006, accepted.
The statement further States that at the hearing held by the Senate to act on
liability for damage caused in the performance of public authority by a decision
or incorrect official procedure nor during the negotiations on the proposal of its
the amendment was not to the provisions on the costs of representation of an objection
unconstitutionality. The Senate followed by the consideration that the remuneration agreed by the Treaty
legal representation between lawyer and client depends entirely on the will of the
of the parties and the reasonableness of the amount of the viewpoint may not always be
consideration applicable to the conclusion of the contract. By contrast, the remuneration for the
representation, determined according to the tariff, as lawyers represents the amount that
corresponds to the standard costs incurred for economic representation. From
the reason, as stated in the observations, the Senate the statutory
the provisions accepted.
The assessment of a possible breach of the contested provisions of Act No. 82/1998
Coll., as amended, with art. 4, art. paragraph 36. 3 and article. 37
Of the Charter, the Senate leaves fully at the discretion of the Constitutional Court.
The Constitutional Court on 26 April. in June 2006, he received the submission of Ing. M. k., a plaintiff in the
things kept at the District Court in Ostrava SP. zn. 85 C 446/2004
marked as "observations" to the design of the District Court in Ostrava. Because
the fact that Ing. M. k. is not a party or intervener
proceedings SP. zn. PL. ÚS 38/06 (section 28, section 69, paragraph 1, of Act No.
182/1993 Coll.) and therefore was not a representation of the subject of the proposal prompted
The Constitutional Court in the proceedings in the matter of its content.
III.
The abandonment of an oral hearing
According to the provisions of § 44 para. 2 Act No. 182/1993 Coll., as amended
legislation, the Constitutional Court may, with the consent of the participants from the oral proceedings
refrain, if you cannot expect him to further clarification of the matter. Due to the
the claimant in filing as of 9 June. October 2006 and participants
in the note, the management of the President of Parliament of the United
Republic of 6. October 2006 and President of the Senate of the Czech
Republic of 5. October 2006, expressed its approval of the abandonment of
the oral proceedings and also due to the fact that the Constitutional Court has considered that, from the
negotiations cannot be expected to further clarification of the matter, it was from the oral proceedings in the
the case dropped.
IV.
Petit design and wording of the contested legislation
The Constitutional Court in its decision is the range of application is bound, and
in its decision of its borders (ultra petitum) cannot move (see
for example. decision in the matter of SP. zn. PL. ÚS 16/94, SP. zn. PL. ÚS 8/95, sp.
Zn. PL. ÚS 5/01, SP. zn. PL. ÚS 7/03, SP. zn. PL. ÚS 10/03-a collection of
the findings and resolutions of the Constitutional Court (hereinafter referred to as "the decision"),
Volume 2, usn. # 14; Volume 4, finding no 83, declared under no. 29/1996
SB.; Volume 24, no. 149, promulgated under no 410/2001 Coll.; volume 34,
find no 113, promulgated under no. 512/2004 Coll.; Volume 36, no. 9,
promulgated under no. 86/2005 Coll.). Proposes to repeal the District Court in Ostrava
the second sentence of § 31 para. 4 Act No. 82/1998 Coll., as amended by
Constitutional Court No 234/2002 Coll., although all your content design
is directed against the third sentence of the provision, and at the end of your design
This sentence of the third paragraph of section 31. 4 Act No. 82/1998 Coll., as amended by
Constitutional Court No 234/2002 Coll., and literally CITES, considers the
The Constitutional Court of the definition of the remedies for the obvious mistake and if in their considerations of the
it embarrassing, it's not about how ultra petitum, but removal of obvious
conflict between the content and citations to legal regulation indicating petit
the proposal.
The provisions of § 31 para. 4 Act No. 82/1998 Coll., as amended by the award
The Constitutional Court No 234/2002 Coll., valid on the date of service of the
The District Court in Ostrava to the Constitutional Court: "representation costs are
part of the costs. Include the cost of a lawyer and a reward for
representation. The amount of this remuneration shall be determined in accordance with the provisions of the Special
Regulation on non-contractual remuneration. "
The whole of the provisions of section 31 of Act No. 82/1998 Coll. was with effect from 27.
April 2006, Act No. 159/2006 Coll. repealed and replaced by this text:
"(1) the compensation includes such costs that were
the victims reasonably incurred by the cancellation or amendment of illegal
the decision or to remedy the maladministration.
(2) the injured party to pay the costs apply only if
had the chance to do so in the course of proceedings on the basis of procedural
regulations, or if the reimbursement of costs as follows already has not been awarded.
(3) the representation costs are included in the costs. Include efficiently
incurred by cash outlays and fee for representation. The amount of this remuneration shall be
determined in accordance with the provisions of the special law on non-contractual
the reward.
(4) the injured party has no right to reimbursement of the costs incurred by the representation in
the context of the consultation of the claim to the competent authority. "
In the.
The conditions of the locus standi of the applicant
The proposal to repeal the provisions of § 31 para. 4 the third sentence Act No. 82/1998
Coll., on liability for damage caused in the exercise of public authority
by a decision or incorrect official procedure and amending the law of the Czech
the National Council No. 357/1992 Coll., on the notarial profession and their activities (notarial
of procedure), in the version applicable at the material time, was filed in the District Court
Ostrava according to the provisions of § 64 para. 3 of Act No. 182/1993 Coll., as amended by
amended.
As was already mentioned in naraci, in that case, SP. zn. 85 C 446/2004
The District Court in Ostrava decided on the action lodged pursuant to Act No.
82/1998 Coll., against the Czech Republic on the payment of the amounts indicated accurately and
it once was the plaintiff's judgment of the regional court in Ostrava dated June 25.
in March 2002, in case conducted under the SP. zn. 3 It 122/2002, relieved of
the prosecution of the crime of assault on a public official under section 155 para. 1
(a). and), para. 2 (a). (b) mixtures), when his conduct was not found
a criminal offence, and the plaintiff in the lawsuit, referring to requests
the unconstitutionality of section 31 para. 4 Act No. 82/1998 Coll. and the payment of contractual
the remuneration of barristers in criminal proceedings.
The District Court in Ostrava, then what in the context of its decision-making
activities in accordance with art. 95 para. 2 of the Constitution, came to the conclusion that the
the provisions of § 31 para. 4 second sentence (according to the content of the proposal the third sentence)
Act No. 82/1998 Coll., which has be in solving things SP. zn. 85 C
446/2004 applies, is in breach of article. paragraph 36. 3, art. 4 and article. 37
Of the Charter, after the suspension of the tribal management pursuant to § 109 paragraph. 1 (b). (c)).
5-the Constitutional Court submitted the present proposal on control standards.
A procedural condition for the locus standi of the General Court according to § 64 para. 3
Act No. 182/1993 Coll., on the Constitutional Court, as amended,
such a position is the law. its individual provisions, which
the cancellation is proposed, to the subject of tribal control, which is based on
adjudication of the matter by the General Court of the reasons for the decision.
As is apparent from the description of the proceedings before the General Court, therefore, on
applicants concluded his active fulfillment
the evidence for proceedings for review of the standards.
Vi.
The assessment of the merits test termination according to section 67 of Act No. 182/1993 Coll.
The provisions of section 31 of Act No. 82/1998 Coll., as amended by the Constitutional Court
No 234/2002 Coll., effective from 27. April 2006, law No. 160/2006
Coll. repealed and replaced by a new text.
According to section 67 para. 1 of the law on the Constitutional Court is given a reason for the termination of the proceeding,
If the law, other legislation or their individual provisions,
whose annulment is sought, will expire before the end of the trial
before the Constitutional Court.
To the interpretation of that legal reason to stop the proceedings is the constitutional
the Court expressed in particular in finding SP. zn. PL. ÚS 15/01 (ECR,
Volume 24, no. 164, declared under no. 424/2001 Coll.). On the basis of
the meaning and purpose of section 67 para. 1 Act No. 182/1993 Coll., noted that the
change to the cancellation of the proposed legal provisions establishing the reason
stop the proceedings for review of the standards only if the assessment of the
the constitutionality of this provision shall prevail. The said legal opinion was
subsequently confirmed by a number of other findings of the Constitutional Court (SP. zn. Pl. ÚS
38/04, SP. zn. PL. ÚS 43/04, SP. zn. PL. ÚS 5/05-promulgated under no.
409/2006 Coll., under no 354/2005 Coll. and under no. 303/2006 Coll.).
But it is different from the situation in which there is no change, but to
annulment of the contested provisions and replacing it with a provision (or.
legal regulation) the new, even in the case of their identical wording.
Since the normative of the existence of law (force) is shaped by
Jednota normotvůrcovy will and its expression (publications of the regulation), it is not
two substantively identical and in time of successive legal
the rules given and their normative identity (identity).
On the basis of this legal opinion of the Constitutional Court, the provision of section 67 para.
1 Act No. 182/1993 Coll. and applied in similar cases (see, for example.
resolution SP. zn. PL. ÚS 38/04-not published).
A condition of submission of the proposal according to paragraph 95. 2 of the Constitution, § 64 para. 3 of Act No.
182/1993 Coll., as amended, § 109 paragraph. 1 (b). (c)).
with the row, the application for cancellation of the proposed law. his
provisions, the General Court in the particular proceeding (see findings SP. zn. PL.
TC 5/05 (see above), SP. zn. PL. ÚS 75/04 (promulgated under no. 452/2006
SB.)). From the listed conditions for rozhodovanou thing is clear, the question is if the
for its assessment of the relevant amended by Act No. 82/1998 Coll. before the acquisition
the effectiveness of the amendment made by Act No. 160/2006 Coll., or after it.
Act No. 160/2006 Sb. does not contain the thing falling
intertemporální provisions. Time conflicts of previous and new diction
the provisions of section 31 of Act No. 82/1998 Coll., on the one hand can be solved
analogue applications intertemporálních the provisions of law No 82/1998
Coll., and, secondly, by applying the General rules of the intertemporality.
Pursuant to section 36 of Act No. 82/1998 Coll., liability under this Act shall
apply to damage caused by the decisions that have been issued from the date of
its effectiveness, and the damage caused by the incorrect date of its effectiveness
the official procedure, with responsibility for the damage caused by the decisions
that was released prior to the date of its effectiveness, and for damage caused by
before the date of its incorrect official procedure is governed by the
the existing legislation (Act No. 58/1969 Coll. on liability for damage
caused by the decision of the authority of the State or by its incorrect official
procedure.). Analogous to the use of that provision for the assessed
case conclusion, according to which the general decision-making of Tribal Affairs
the Court of the relevant Act No. 82/1998 Coll., as amended by the amendment before
carried out by Act No. 160/2006 Sb.
In the absence of explicit provisions, i.e. intertemporálních. for
a situation where the legislature is silent as to the issue of whether the claim is based on
previous customizations preserved, so the applicability of the new legislation, according to the
The Constitutional Court must adopt such an interpretation (SP. zn. II. CS 444/03,
SP. zn. II. the TC 37/04, SP. zn. I. ÚS 287/04, SP. zn. I. ÚS 344/04, sp.
Zn. IV. TC 178/04 collection of decisions, Volume 37, no. 134 and 135;
volume 35, no. 174 and no. 191; Volume 36, finding no. 18), which
"it saves the meaning and essence of the basic law, in the present case, the right to
legitimate expectations. The opposite application or interpretative procedure means
infringement of article 81(1). 4 (4). 4 of the Charter ", it is" as a result of the interpretation
retroactive ". It follows the same finding, what is apparent from the
any use of the transitional provisions contained in section 36 of the Act
No 82/1998 Coll.
On the basis of the following reasons landed, it would be possible to reach a conclusion about
the fulfillment of the conditions of stopping of the proceedings according to section 67 para. 1 of the law
No. 182/1993 Coll., but only after taking into consideration the legal opinion resulting from the
finding SP. zn. PL. ÚS 33/2000 (a collection of decisions, volume 21, no.
5 promulgated under no. 78/2001 Coll.).
According to the legal opinion contained in the said award of the Constitutional Court, on the
that is referenced in the preamble of the award SP. zn. PL. ÚS 42/03 (announced
under Act No. 280/2006 Coll.), if there is a judge of the General Court to the conclusion that
the law, which is to be used in solving the things (that is, not only at the time
valid, but also at that time, no longer valid, but still applicable
the law), is in conflict with the constitutional law, is obliged to submit the matter to
The Constitutional Court (article 95, paragraph 2, of the Constitution). The refusal to provide the General
the Court, in its decision on the constitutionality or unconstitutionality of the applicable
Assistance Act, the Constitutional Court considered the reason for the creation of unsolvable situation
the artificial legal vacuum, the decision of the General Court itself on the
unconstitutionality applied the provisions of then characterised as the procedure in the
contrary to the Constitution, contrary to the principle of the constitutional
the judiciary (article 83 and article 95 (1) and (2) of the Constitution).
Similarly, an explicit modification contained in the article. paragraph 140. 4, para. 7,
the Constitution of the Republic of Austria admits the possibility of academic opinion
The Constitutional Court on the unconstitutionality of the law, however, the former option
the "new" assessment of the previous facts merely by the assumed
the presentation of the cases to rise to proceedings for review of the standards that resulted
in the operative part of the unconstitutionality of the Act already invalid. Moreover, by analogy
in its case-law progresses and the Constitutional Court of the Czech Republic in the cases
specific control standards that result in the derogation (see finding
findings SP. zn. I. TC 102/2000, SP. zn. I. ÚS 738/2000, SP. zn. IV. TC
582/02, SP. zn. III. TC 569/03-a collection of decisions, volume 24, findings
# 179 and 180; Volume 32, no. 30; Volume 33, finding no. 87).
Illustrations of the situation is the provision of section 154 para. 1. row, from
that in cases in which the judgment only declares the rights and
obligations of the parties, is decisive legal status at the time when the rights and
obligations at stake in the proceedings as, was established, changed or ceased to exist.
If the General Court, therefore, in the framework of the so-called. declaratory action
consider the creation of a private-law relationship in 1947, will be
in doing so, to apply the relevant provisions of the General Civil Code.
Seemed to him these provisions from the perspective of existing constitutional
fine, then within the meaning of contradictory finding, SP. zn. PL. ÚS 33/2000
he interrupted the proceedings and proceeded to dlečl. 95 para. 2 of the Constitution. If approved by
After the Constitutional Court, assume the academic proposal for a general statement
of the Court to control standards, such a procedure would not necessarily carried the characters right
retroactive retroactive to the notion of the right (see e. Tilsch, civil
the right. General part, Prague 1925, pp. 75-78; A. walk, the basics of law
the intertemporal, Brno 1928, p. 111; A. Walk,;
laws. In: Dictionary of public law. Vol. III, Brno, 1934, p. 800; (L).
Still, to the scope of the amendment to the civil code, a lawyer, No 12,
1984, p. 1104; from the case law of the Constitutional Court in particular find SP. zn.
PL. ÚS 21/96, ECR, Volume 7, finding no. 13, promulgated under no.
63/1997 Coll.).
Application procedure-based interpretation of the article. 95 para. 2 of the Constitution
the finding, contained in sp. PL. ÚS 33/2000, of a confirmed finding SP. zn.
PL. ÚS 42/03, opens up the space for the examination of the previous
hearing (or legal events) from the later, but already the constitutionally
Conformal legislation has therefore characters right retroactive.
Therefore, must be to answer the question if such a procedure is inconsistent with the principle of
the rule of law (article 1, paragraph 1, of the Constitution) or it is not.
The basic law, or freedom, is the relationship between the content of his body
(the bearer), which is a person (natural person and derivativně and legal
a person), and the addressee, which is a public power. The exception to this General
construction represent cases of horizontal effect of fundamental rights,
cases in which the addressee of the fundamental rights (freedoms) is not a public power,
but bodies governed by private law.
In finding SP. zn. PL. ÚS 21/96 the Constitutional Court formulated the aspects which
exclude the ban retroactive, i.e. right. point of view, which
determined by its acceptability: "the principle of the protection of the citizens ' confidence in the
the law implies that the principle of non-retroactivity cannot be related
to reverse the action of legal norms, which do not constitute intervention in the legal
security, or the acquired rights. An example of such reaction is
a situation in which provided different criminal at the time of editing
committing the offence and at the time of making a decision about him, the deed shall be assessed according to the
the legislation, which is more favourable to the offender (article 40 paragraph 6, sentence
the second of the Charter of fundamental rights and freedoms). "
Referred to proposition from the perspective of the breakdown of fundamental rights and freedoms with regard to the
their possible addressees of the falls on the cases in which the addressee
public power. Right in the case of vote of unconstitutionality;
former law and an assessment of the previous facts constitutionally
Conformal legislation with ex tunc effects on the part of public authorities
will not constitute a violation of the principle of the protection of citizens ' confidence in the law. the intervention of the
to the legal certainty and acquired rights.
A different situation occurs in the cases of the horizontal effect of fundamental
rights and freedoms. To these cases in relation to third parties should be
apply the principles of the protection of the citizens ' confidence in the law, legal certainty, respectively.
acquired rights, unlimited application procedure-based interpretation of the article.
95 para. 2 of the Constitution, contained in the report SP. zn. PL. ÚS 33/2000,
a confirmed finding SP. zn. PL. ÚS 42/03, would thus established
right the retroactive effect, and, therefore, conflict with the principle of the rule of law (article 1
paragraph. 1 of the Constitution). In one possible case a breakthrough non-retroactivity
the legal standards in proceedings for review of the standards for horizontal action
fundamental rights and freedoms would be to accept the protection of values
fall within the framework of the Constitution, in its core material to article. 9. 2,
values, conditions for the protection of which, even at the cost of breaking the ban on right
retroactive, contains the famous "Radbruchova": "the conflict between
Justice and legal certainty is probably can be addressed only by positive
the right, provided by legislation and powers, takes precedence, even if it is
substantively unfair and ineffective, except if the discrepancy between the
positive law and justice reaches so unbearable extent that
the law must, as undue right ' Justice retreat. " (G.
Radbruch, Gesetzliches und übergesetzliches Recht Unrecht. 1946.
Repeatedly posted in: g. Radbruch, Rechtsphilosophie.
Studienausgabe. Hrsg. R. Dreier, s. l. Paulson, 2. Aufl., Heidelberg
2003, p. 216.)
The provisions of § 31 para. 4 the third sentence Act No. 82/1998 Coll., as amended by
Constitutional Court No 234/2002 Coll., governs the legal relationship, in
which the addressee tempered reason of unconstitutionality (article 36, paragraph 3 and 4, and
article. 37 of the Charter) is a body of the public authorities and not private law.
To the above circumstances are met in the case decided by the conditions for the
management of specific control standards pursuant to art. 95 para. 2 of the Constitution within the meaning of
the legal opinion of the Constitutional Court expressed in the findings, SP. zn. Pl. ÚS
33/2000 and SP. zn. PL. ÚS 42/03, and is therefore not given reason for stopping
of the proceedings according to section 67 para. 1 Act No. 182/1993 Coll.
VII.
Content compliance of the contested statutory provisions with the constitutional order
Sense and purpose of the provisions of section 31 of Act No. 82/1998 Coll., as amended by
amended, is to ensure payment of the costs incurred by the
the victims of the illegal decision of the revocation or modification or correction of the
of maladministration. In other words, a sense of purpose and the
the statutory provisions is to include in the framework of the concept of damage caused by the
unlawful decision or incorrect official procedure (article 36, paragraph 3,
and 4 of the Charter) and the reimbursement of the costs of the proceedings, leading to its cancellation,
change or correct the situation. And on the other hand would be contrary to the principle of
liability for damage caused in the performance of public authority by a decision
or incorrect official procedure to one of the consequences of such actions
of the public authorities, and that the cost of the procedure leading to its repair,
He carried a sufferer himself.
The objection of unconstitutionality of the third sentence of the fourth paragraph of the
the provisions directed against the amount of remuneration for the representation, as part of the
cost of representation and its destination according to the specific rules of
non-contractual remuneration, i.e.. against the fact that reimbursement of the cost of representation
According to the contested provisions of the third sentence of paragraph 4 of section 31 of Act No. 82/1998
Coll., in the version applicable at the material time, is not based on the principle of compensation
"the real damage". Thus understood the damage could then be given to the amount of the
contractual fees for representation.
On the issue of reimbursement of the costs incurred by the victims on behalf
repeal or amend the decision or correction of an error of the illegal
the official procedure, the Constitutional Court held in finding SP. zn. PL. ÚS 18/01
(A collection of decisions, Volume 26, finding no 53, declared under no. 234/2002
SB.). Following the repeal of the provisions of § 31 para. 3 of Act No. 82/1998
Coll. in the context of the subject matter is relevant in a given award expressed as a
the conclusion, according to which, in a constitutionally compliant replacement in connection with
the damage caused by unlawful decision or incorrect official procedure
consider the awarding of costs in accordance with the procedural legislation.
The amount of remuneration for representation by a lawyer when deciding on the reimbursement of costs
proceedings according to § 151 paragraph 1. 2. row determined by the Court, at the rates laid down by the
at a flat rate for the control in one instance by the special legislation
(Decree No 484/2000 Coll., laying down a flat rate amount
the rewards for the participant's representation by a lawyer or notary public when making decisions
on the reimbursement of costs in civil proceedings and amending Decree
The Ministry of justice no. 177/1996 Coll., on the remuneration of lawyers and
compensation lawyers for provision of legal services (lawyer's tariff), in
as amended), and only in cases of compensation awards
costs of the proceedings under section 147 of the round, or if circumstances justify
the case, the amount of the compensation determined by the Court under the provisions of the special legal
Regulation on non-contractual remuneration (Decree No. 177/1996 Coll., as amended by
amended). The legal adjustment of the refund of the costs referred to in
procedural rules, as was the Constitutional Court already constitutionally aprobována, in
no alternative, therefore, does not include compensation in the amount of the contractual remuneration for
representation.
The purpose of this statutory interpretation is the real damage, consisting of
the costs incurred by the injured party to repeal or amend the illegal
decision or remedy the maladministration, in the sense of usefully
incurred costs, and as such can be the point of view of legal certainty
those laid down in the special law on the
non-contractual remuneration.
For the Constitutional Court came to the conclusion, according to which the provisions of section 31
paragraph. 4 the third sentence Act No. 82/1998 Coll., on liability for damage
caused in the exercise of public authority decision or incorrect official
the procedure and on the amendment of the Act of the Czech National Council No. 357/1992 Coll., on the
notaries public and their activities (notarial regulations), as amended by the constitutional
Court No. 234/2002 Coll., is not in breach of article. paragraph 36. 3 and 4 and article. 37
Of the Charter, so the design of the District Court in Ostrava on its cancellation has rejected
[section 70, paragraph 2, of Act No. 182/1993 Coll.].
Lessons learned: against the decision of the Constitutional Court cannot be appealed.
The President of the Constitutional Court:
JUDr. Rychetský in r.
