In The Matter Of A Proposal For The Repeal Of Section 31, Paragraph. 3 Of Act No. 82/1998 Coll.

Original Language Title: ve věci návrhu na zrušení § 31 odst. 3 zákona č. 82/1998 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=53516&nr=234~2F2002~20Sb.&ft=txt

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Coll., shall be repealed on the date of the announcement of the award in the collection of laws.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.