In The Matter Of The Application For Revocation § 31 Para. 4 Of Act 82/1998 Coll.

Original Language Title: ve věci návrhu na zrušení § 31 odst. 4 zákona 82/1998 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=64746&nr=84~2F2007~20Sb.&ft=txt

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.