234/2002 Sb.
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court ruled on 30. April 2002 in plenary on the proposal of the district
Court for Prague 10 to repeal section 31, paragraph. 3 of Act No. 82/1998 Coll., on
liability for damage caused in the performance of public authority by a decision
or incorrect official procedure and amendment to the Czech National Council Act No.
358/1992 Coll., on notaries public and their activities (notarial regulations),
as follows:
The provisions of section 31, paragraph. 3 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. 358/1992 Coll., on the
notaries public and their activities (notarial regulations), as amended by Act No 120/2001
Coll., shall be repealed on the date of the announcement of the award in the collection of laws.
Justification
(I).
The Constitutional Court has received 28 June. 6.2001 a proposal for the District Court for Prague
10, which the Court seeks the annulment of section 31, paragraph. 3 of Act No. 82/1998
Coll., on liability for damages caused in the exercise of public authority
by a decision or incorrect official procedure and on the amendment of the Czech
the National Council No 358/1992 Coll., on notaries public and their activities (notarial
order), with the claim that that provision is manifestly contrary to the
the principle enshrined in article. paragraph 36. 3 of the Charter of fundamental rights and freedoms
(hereinafter referred to as "the Charter"), according to which everyone has the right to compensation for damage
caused by his unlawful by decision of the Court, another State authority or
the public authority or incorrect official procedure. The circuit court
for the threshold of 10 so he took the provisions of § 64 paragraph. 4
Act No. 182/1993 Coll., on the Constitutional Court, which is empowered to
to submit a proposal for the repeal of the law or its individual provisions also
the Court in the context of its decision-making activities referred to in article. paragraph 95. 2
The Constitution of the Czech Republic (hereinafter referred to as "the Constitution").
Projector resolution SP. zn. 9 C 6/2001 of 25 June. 6.2001 interrupted
According to § 109 paragraph. 1 (a). (c)) of Act No 99/1963 Coll., the code of civil
of procedure, as amended by later regulations, the procedure initiated for Action E. H., in.
H and J. S. against the Czech Republic, represented by the Ministry of
Justice, in the case of damages claimed, on the basis of Act No.
82/1998 Coll. and submitted the case to the Constitutional Court. In the present case
dovodili putting the plaintiffs claim for damages from the fact that
against them was initiated on the basis of the allegations communicated to it, and then conducted
the prosecution for the crime of loss of tax and similar benefits under section
paragraph 148. 1 and 4 of the criminal code [in the case of the last of that plaintiff
§ 148 paragraph. 1 (a). 3 (b). c) Ditto], committed by
aiding and abetting (article 9, paragraph 2, ditto). Against all the accused were eventually
the prosecution stopped, since it has not been proven that they committed the deed,
for which they were communicated to the allegations [of section 172, paragraph 1, point (b) (c)) of the criminal
order]. As in the case of proceedings for the offence took place, for the
which the law stipulates a prison sentence whose upper limit exceeds the
for five years, had to have a defence counsel already in the preparatory proceedings, since it was a
necessary defence based on § 36 odst. 3 of the code of criminal procedure. In the application of the
compensation then the applicants expressed the view that the communication charges are
considers that in the case of cessation of criminal prosecution for the wrong official
the procedure, and if the damage in its wake, which happened in a particular case,
the State is responsible for it, and for part of the damages, which was
caused by incorrect official procedure indicated, is also considered to
the amount spent on costs associated with the defense that prosecutors closer
vyčíslili and documented. Reported and documented, that is in accordance with § 6
paragraph. 1 (a). 2 (a). and Act No. 82)/1998 Coll. turned to the defendant
-The Ministry of Justice, the Department of compensation. The defendant by letter to them
of 5 December. 4.2000, SP. zn. Odšk. 136-8/2000, said that while the right to
compensation under section 7 of Act No. 82/1998 Coll. was, however, their
the application for payment of the refund cannot be accepted. In this context, stated that
in accordance with section 31, paragraph. 3 this Act are entitled to reimbursement of the costs
procedure in the context of damages only if the decision (how to
qualify for the purposes of Act No. 82/1998 Coll., communication charges)
also other damage. In support of this opinion, pointed out to the legislative
report on the draft of this law. Due to this fact, the applicants,
who remained on its decision to apply damage only in the amount of the tariff
the values of the costs of legal representation, the Court already referred to
action and argued that this view is not correct, since such
the conclusion cannot be drawn from the cited provisions clearly. They pointed out
that finding rights only to the Court and rely on the Executive
the report considered to be inappropriate. At the same time argued that the law cannot be
interpreted so as to conflict with the Charter, in their case specifically with
article. paragraph 36. 3 this constitutional document. They considered that the assessment of the
claims for compensation for damage incurred in the exercise of public authority by a decision
or incorrect official procedure must always be subject to this article,
which provides for the liability of the State for damage in General, and on the
the basis of Constitutional Act No. 23/1991 Coll., which is prefixed by the Charter
fundamental rights and freedoms as a constitutional act of the Federal Assembly
The Czech and Slovak Federative Republic, i.e. the standards of the higher legal force.
In connection with these outlets, in relation to the argument presented by them,
It also appealed to the Constitutional Court finding SP. zn. I. ÚS 245/95 of 22 June 1995
9.2000 [collection of findings and resolutions of the Constitutional Court (hereinafter referred to as "Collection
the decision "), volume 6, finding no. 82]. Finally, also stressed that this
a restrictive interpretation of the dovedeným ad absurdum would in essence could
cause the rejection of any claim, which was filed separately,
and even though the damage was clearly caused by the exercise of public authority
and proven. Moreover, such an interpretation is in accordance with their belief in the
contrary to the General principles of fairness, good manners and morals,
because it was not their fault, that they have been informed of the accusations of criminal
acts requiring the necessary defence, which had to pay out of their own
resources.
The circuit court for the threshold of 10 of the proceedings and the case presented to the
an assessment of the Constitutional Court. In the grounds of its proposal, said that, while
He was able to interpret that provision in favour of the applicants, but from
systematic reasons couldn't even want to Miss also the text of the
the explanatory memorandum to the Act No. 82/1998 Coll., which in the context of the
the formulation of the contested provisions of paragraph 3 of section 31 creates expository
the problem against the wording of paragraph 1 of section 31 of the Act. If the cost of
legal representation are clearly defined in paragraph 1, as
too bad, then making this claim the existence of other damage not from the point of view
article. paragraph 36. 3 of the Charter justified. Sudden restrictive concept
the undisputed obligation of public authorities to pay damages is not in accordance with that
the standard of the Charter and is not even unloaded referred to the explanatory memorandum. The one in the
this direction does not contain nothing more than a terse statement. The law itself
internally contradictory provisions contains in paragraph 1 and paragraph 3, section 31,
the lack of explanatory memorandum to try to remove the use of the word
"loss", which, however, the wording of section 31 does not at all.
The appellant thus concludes that the conflict with the constitutional principle according to the article. 36
paragraph. 3 of the Charter is accordingly resolved fundamentally and therefore
proposes to repeal the provisions of paragraph 3 of section 31 of the Act.
After a positive assessment of the question whether brought on the proposal meets the formal
requirements, in particular, whether it has been filed by an authorized person under the conditions
provided for in § 64 paragraph. 4 of law No. 182/1993 Coll., whether they have been met
the conditions of admissibility referred to in section 66 paragraph. 1, and whether there are grounds for
his refusal under section 43 or for termination of the proceeding pursuant to section 67, was
the proposal sent in accordance with section 69 of the same Act for expression of the
the House and Senate of the Parliament of the Czech Republic.
The Chamber of Deputies as a participant in this proceeding in its comments,
signed by the President Prof. Ing. Václav Klaus, CSc., takes the view
the provisions of section 31, paragraph. 3 the contested act does not conflict with the constitutional
order of the Republic and is fully within the terms of the legislation of the
the relevant provisions of the Constitution. Expression contains a brief
recap of the procedural legislation relating to compensation for
the costs in the civil procedure code, the administrative procedure code, the criminal procedure code and the
the law on the administration of taxes and fees, and States that if a party to proceedings in
connection with the unlawful decision or a decision on custody, sentence
or protective measures, the damage State of the method and extent of compensation
This damage. In the event that a refund has not yet been decided
costs of the proceedings, invite the State party to seek their
claims under the relevant procedural regulations, or about them at the same time
decides next to the damage caused by an unlawful decision. If the participant
control the damage resulting from the unlawful decision or improper
the official procedure, either because no party
the damage has not exercised, or because, he failed to prove the damage, the
State compensation from the illegal decision of the irrelevant, and therefore
does not act nor any costs and only refers to the
party to the proceedings, apply to the competent authority in accordance with
the relevant procedural rules. The Chamber of Deputies has concluded its
comments by Act No. 82/1998 Coll., passed through the ordinary legislative
the process was approved by the prescribed number of members of Parliament, signed the constitutional
agents and duly published in collection of laws. The Chamber of Deputies
always acted in the belief that this law is in accordance with the Constitution and the
By the Charter. It is therefore up to the Constitutional Court to the District Court for the
The threshold of 10 examined and issued the award.
The Senate, in its statement, signed by Assoc. Prof. JUDr. Peter Pithartem, to
the proposal stated that the draft Act No. 82/1998 Coll. was the second Chamber
Parliament after the approval of the Chamber of Deputies sent to the 16 December 2004. February
1998, and then commanded to discuss ústavněprávnímu Committee, which
in its resolution of 25 November 2003. February 1998 Senate bill approved recommended
in the current version. The Bill was placed on the agenda of the second meeting of the
The Senate in 1998, held on 5 December. 3.1998. When his hearing were in
General debate expressed objections to certain provisions that closer
issues, section 31, paragraph. 3, however, was not mentioned.
Because the negotiations on the Bill at this meeting of the Senate was not present
the representative of the Government, which was the complainant the law, did not Appeal to
available opinion to highlight comments made by Senators.
For this reason, the Senate resolution No 20 of 5 July. 3. the 1998 asked the
the Prime Minister about the redress and resolution duly adopted by the
the negotiations on the draft law. Since then the consequent continuation of the
in the negotiations on the draft law on the constitutional time limit already, 30-day there is a need to
noted that, in accordance with article. paragraph 46. 3 of the Constitution was a Bill
adopted by the expiry of the period of 30 days from his referral to the Senate. To
the issue, which is the subject of a proposal on the matter, which was not in the
the debate held at the meeting of the Senate, namely, it would be mentioned in the
its comments on States, can be inferred that it was a generally accepted
opinion characterizing the provisions of section 31, paragraph. 1 as a general, which
damages caused by the decision while covering the costs of the proceedings, including
the costs of legal representation, but under the conditions in the following
the provisions referred to. One of the conditions is the requirement referred to in
the contested provisions of section 31, paragraph. 3, namely that these costs may not
be the only damage that was in connection with the unlawful decision
caused by. He pointed out also that, to modify the terms of compensation for
the illegal decision of the public authority the law finally explicitly
empowers the article. paragraph 36. 4 of the Charter. It would also be possible, in his view,
Moreover, that Act No. 82/1998 Coll. was accepted the basic principle
on which it is based, and that the right to compensation belongs only in the
If the damage was caused by the decision of the competent authority, that
It was later repealed as unlawful, as an exception to this principle is
only the decision on custody, where will the application of the compensation
stopping criminal prosecution for reasons closer divorced in § 9 (2). 1, and
decision on the punishment in cases under section 10, paragraph 1. 2 of the Act.
Their observations concluded that the assessment of a possible violation of the leaves
incriminated provisions with article. 36 of the Charter at the discretion of the Constitutional Court.
II.
Under section 68, paragraph. 2 Act No. 182/1993 Coll., the Constitutional Court first examined the
whether the relevant legislation was adopted and published within the limits of the Constitution
established competence and constitutionally prescribed way.
From the relevant Council publications and těsnopiseckých reports, it was found that the
the Government's draft law on liability for damage caused in the performance of
of public authority by a decision or incorrect official procedure and amendment
the law of the Czech National Council No. 358/1992 Coll., on notaries public and their activities
(the notarial regulations), was approved by the Chamber of Deputies on 12 December 2003. February 1998,
as for him, from the present 149 167 votes, no votes
against; The Senate then day 17. in March 1998, when it came to the fulfillment of conditions
referred to in the article. paragraph 46. 3 of the Constitution, since the Bill was Senate
referred to the Chamber of Deputies June 16. February 1998. The law was signed by the
respective constitutional actors and was duly promulgated under Act No. 82/1998 Coll.
the amount 31/1998 Coll., which was circulated on 15. April 1998. On
the basis of these findings, the Constitutional Court concluded that the law was adopted, and
issued within the limits of the Constitution laid down the competence and the constitutionally prescribed
in a way.
III.
When the material was based on the assessment of the proposal, the Constitutional Court, inter alia, from the fact
that is not bound by the grounds of the proposal, but only his petitem, and therefore
judged by the contested provisions and in terms of its compliance with other
constitutional standards. After examining the content of the proposal and the comments of the participants
the management then concluded that the proposal is reasonable. Arose from the
the following considerations.
The law, whose content is the contested provisions, became effective on 15. 5.
1998 and replaced the previous legislation made by Act No. 58/1969
Coll., on liability for damage caused by a decision of the authority of the State or
its incorrect official procedure, when legislation in this Act
contained ceased to correspond to the changing social situation. Was
based on the principle of a single exclusive bearer of responsibility for damage
the State, in connection with the application of the principle of self-government in
our legal order of the State ceased to be the exclusive holder of public power.
The new legislation must therefore take this fact into consideration, as well
as for more changes in the current legal order, i.e.. in particular, developments in the structure of the
the State authorities, to whom it was necessary to adapt the definition of bodies, holders of
authorities or other bodies, who can cause damage, which carries a
the responsibility of the State. In General, for the damage pursuant to the Act on liability for damage
No 82/1998 Coll., corresponds to the now State and territorial self-governing units. Legal
Edit in this Act contained shall apply to damage, which was for
the conditions laid down in the Act caused by the public of the activities of the State,
territorial self-governing units, then responsible for the damage caused in the framework of the
the exercise of those powers in a separate territorial scope, which are
municipalities entrusted by the law. Liability for damages is referred to in
the Act on liability for damage no 82/1998 Coll., designed as
the responsibility of the objective, in the law is not modified no liberační reason.
The civil code is in relation to this Act in relation to subsidiarity (§
26.) Unlike the previous legislation contained in the Act No. 58/1969
SB. the new law contains a detailed adjustment of the conditions relating to the
compensation for the costs incurred in proceedings in which there was a
the release illegal decision or maladministration. This
the adjustment is made to the provisions of section 31 of Act No. 82/1998 Coll. entered into
the common and the transitional provisions in the section marked as a way and
the extent of the damages, the text of which is as follows:
the "section 31
(1) the compensation shall include reimbursement of the costs of the proceedings, which the injured party
incurred in the management, in which it was issued illegal decisions or
the decision on detention, punishment or protective measures, and in the proceedings in which
It was released on appeal, or whether the decision, decision
criminal proceedings have been terminated or a decision on the matter was
referred to another authority.
(2) the compensation shall include reimbursement of the costs of the proceedings, which the injured party
incurred in the management, in which there has been maladministration, if
These costs are associated with the incorrect official procedure.
(3) entitlement to the reimbursement of the costs of the proceedings in the context of damages arises only
If the decision was too bad and if reimbursement of costs already
has not been awarded in accordance with the procedural legislation.
(4) the representation costs are part of the costs of the proceedings. Include finished
expenses and attorney fees. The amount of this remuneration shall be determined in accordance with
the provisions of the special regulation on non-contractual remuneration.
(5) the injured party has the right to compensation for the costs incurred by the representation in
the context of the hearing, claimed the right of the competent authority. "
The appellant attacks the proposal the provisions of paragraph 3 above
standards in effect, therefore, that while paragraph 1 States that the compensation,
to which the release illegal decision, includes the reimbursement of the costs
proceedings, the contested paragraph on the other hand makes the entitlement to
compensation for damage caused by the payment of the costs, the emergence of other-other
damage. Is convinced that this concept is narrowing, as the claim
concerning the costs is bound to the emergence of other damage and cannot be
satisfied independently, regardless of the existence of other damages, and this concept
According to him, is in breach of article. paragraph 36. 3 of the Charter.
The provisions of the article. paragraph 36. 3 of the Charter provides that everyone has the right to compensation
the damage caused by an unlawful decision of a court to him, another State body
or the public authority or incorrect official procedure. The law on the
liability is just by the law, which is
respond to paragraph 4 of the article. 36 of the Charter, and therefore should be
implemented the Basic Law on compensation for damage caused by unlawful or
the improper interference of public authorities.
Civil law, whose part is also the Act No. 82/1998 Coll., defines the
as the financial damage, the damage that can be objectively express the General
equivalent, IE. the money. For the actual damage is considered to be property damage
vyjádřitelná money, which is to reduce, in the reduction or in another
the depreciation of the existing assets of the damaged, as well as in the
incurring the cost to eliminate this impairment. Already from the very
This definition, it is clear that the loss may also be parties to the proceedings
It costs actually incurred by the management, and that the State bears
responsibility for damage arising from this, of course, for the fulfilment of the other
the conditions of developing this relationship, namely, the existence of causal liability
the context of damages with the law expected of any
event, so with the release illegal decision or with the wrong
the official procedure. The legislature itself, as follows from the wording of paragraph 1
from the top of the cited provisions, specifically costs to damages
odškodnitelné under this Act includes, however, how to install
a comparison of the two following paragraphs, does not retain the same access to
all account of coming to the bodies. Differently, namely to lay down the conditions
the costs incurred for the proceedings pursuant to the Act to compensate, when in
proportion to the damaged incorrect official procedure provides, as a condition
the only causal link between spending costs and referred to
procedure (paragraph 2), while in relation to those bodies, which were
damaged by an unlawful decision (in addition to the condition that the costs of the proceedings already
they have not been granted in accordance with the procedural rules, which will be further stated,
is acceptable), makes further compensation of the costs incurred
the existence of the damage incurred by the decision. In the words of the explanatory memorandum
"the costs of the proceedings may be covered in the framework of the compensation of damage caused by a decision
must not, however, go to damage the only ". So then the contested
provisions effectively divides the entities to which it applies, which
was the injury to property in connection with the release illegal decisions,
into two categories. One consists of those facing a loss of
"only" in the incurred costs, and the other those who at the same time
damage another, and only later referred to this group by
paragraph 3 shall be entitled to reimbursement of the costs of the proceedings in the framework of the compensation (for the
provided, that the recovery of these costs has not been awarded in accordance with the procedural
regulations). Legislator, in the opinion of the Constitutional Court shall be differences,
that cannot be justified by a qualified way, as in both
cases to reduce the property damaged, and thus damage
in the above sense, the right to compensation which is the zaručováno article. 36
paragraph. 3 of the Charter.
The constitutional principle of equality embodied in the article. 1 of the Charter, according to which
people are free and equal in dignity and rights, and finance in a complementary
expressed in article. 3 of the Charter, as the principle of non-discrimination in
granted fundamental rights interprets the Constitutional Court in its
case law from the dual perspective of the [e.g. findings SP. zn. PL. ÚS 16/93, pl. ÚS
36/93, pl. ÚS 5/95, Pl-9/95, Pl. TC 33/96, pl. ÚS 9/99 (collection
the decision, volume 1, finding no. 25, promulgated under no. 131/1994 Coll.; volume
1, finding no. 24, declared under no 132/1994 Coll.; Volume 4, find no 74,
competition no 6/1996 Coll.; Volume 5, finding no 16, announced under the No.
107/1996 Coll.; Volume 8, finding no 67, announced under the No. 185/1997 Coll.;
volume 16, finding no. 135, declared under no 289/1999 Coll.) and other]. The first
the request is given in the procedure for the exclusion of the arbitrariness of the legislator in
differentiation of the groups of entities and their rights, the second requirement of the
constitutional aspects of the acceptability of differentiation, i.e.. inadmissibility
violation of any of the fundamental rights and freedoms of the odlišováním operators and
rights on the part of the legislature. In the indicated direction, the Constitutional Court did not
no reason, that would be eligible to justify inequality in access to
each group of victims, as described above.
The legislature also provided a procedure establishing inequality nothing
without any explanation. The Constitutional Court therefore came to the conclusion that the contested provisions of the
in effect, raises an unjustified inequality between the entities,
which was caused by damage in the exercise of public authority. From postulátu
Although the equality does not imply the requirement of general equality of each with each,
However, it follows from the requirement that the law does not specifically favour or for no reason
neznevýhodňovalo some before others. In the present case it is common ground that the
the requirement to provide the same rights under the same conditions, without
unjustified differences in diction of the contested provisions is not respected,
Since the legislature without the constitutional plane acceptable default reasons
put those bodies, which was a shame only in the form of
incurred costs.
In the wake of what was stated, cannot be disregarded, or that the
According to the article. 4 (4). 2 of the Charter may be the limits of fundamental rights and freedoms
regulated under the conditions laid down in this constitutional document only
by law, while in the application of the provisions on fundamental rights and
freedoms must be investigated, their nature and meaning, and such restrictions
must not be abused for purposes other than for which it was established
(article 4, paragraph 4, of the Charter). Therefore, if everyone has the right to compensation for damage
caused by his unlawful by decision of the Court, another State authority or
the public authority or incorrect official procedure, with the
the conditions and details of the implementation of the rights provided for by law (article 36
paragraph. 3 and 4 of the Charter), then such act issued on the basis of the constitutional
the authorization cannot be entitled to damages as a result of the aforementioned negotiations
incurred wholly void (negate), and thus constitutionally guaranteed basic
right, if only in certain cases, to deny. In the case of persons who
a loss of "only" in costs, so there
the procedure of the legislature projected in the contested provisions of the absolute
the exclusion of this category of entities from the right to compensation for damage caused by
them unlawful decision of the Court, another State authority or body
the public administration. This is in stark contrast with the constitutional order
The Czech Republic and does not respect the principle of minimizing the interference to the
fundamental rights in the form of their eventual constraints and maximizing
the content of the basic law, the preservation of nature. The Constitutional Court therefore
the contested provisions for its conflict with article. paragraph 36. 3 in conjunction with article.
1, article. 3 (3). 1 and article. 4 (4). 4 of the Charter.
For completeness should be added, that the contested provision was repealed as
great, although if further excludes the possibility of damages incurred by the
the costs in the context of damages those entities which have already been
reimbursement of costs awarded under the procedural rules, then goes the
condition not unconstitutional, however, completely redundant, as in
such cases have already completely lacking the basic assumption of the responsibility for
damage, namely the existence of the damage itself.
The President of the Constitutional Court:
JUDr. Kessler v. r.
