In The Matter Of The Application For Revocation Article 133A Para. 2 Ccp

Original Language Title: ve věci návrhu na zrušení ustanovení § 133a odst. 2 OSŘ

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=62998&nr=419~2F2006~20Sb.&ft=txt

419/2006 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court decided on 26 April. April 2006 in Parliament consisting of the President of the

Paul Rychetského and the judges of the Court of Stanislav Duchoně, Bumpkin, Franz

Vlasta Formánkové, Vojena Güttlera, Paul Holländera, Ivana Janů,

Vladimir Crust, Dagmar Lastovecké, Jiří Mucha, Miloslav Excellent,

Elizabeth Wagner and Michael Židlické on the draft regional court in Ústí

nad Labem on abolition of the provisions of section 133a of paragraph 1. 2 of the Act No. 99/1963 Coll.,

Code of civil procedure, as amended,



as follows:



Application for annulment of the provision of section 133a of paragraph 1. 2 of the Act No. 99/1963 Coll.,

Code of civil procedure, as amended, is rejected.



Justification



(I).



1. the regional court in Ústí nad Labem in proceedings relating to protection of personality in accordance with

the provisions of section 11 of the civil code, administered under the SP. zn. 34 C 22/2002,

discussing the dispute between plaintiff, m. b., l. No, d. d. and r. k. apartment

Ústí nad Labem, and the defendants J. H. and P. D., doing business in Ústí nad

Labem, according to District Court, delivered on 13 June. 3.2002.



2. the essence of the dispute lies in the fact that on 26 April. 11.2001 at about 11.15 pm.

the applicants, citizens of Roma nationality, visited the defendants in the restaurant

Ústí nad Labem. According to the appellants ' contention there's none of long time

the operator's attention, and therefore, the second applicant passing by the waitresses

asked if they will be served. She replied that it will not be because the

the restaurant is a private club and to service should be submitted

Club card, which they only have regular guests and cost $300. Then, what

the applicants have expressed interest to buy the card, they were told that they can

give a beer and walk away. Prosecutors, however, have said that they want to eat,

which has been replied to, that the restaurant's cooking. Immediately after the

joined the establishment of three non-Roma persons who have been without any

queries and requests for submission of club cards are serviced. That is described

access assured prosecutors they perceive as racial

discrimination of decreasing their dignity. Action to the regional court in

Ústí nad Labem is therefore seeking the protection of the personality and the imposition of obligations

the defendants sent them a letter of apology and pay compensation for non-material damage

of 80 000 CZK. each of the claimants 20 000 CZK, and pay the costs of

control.



3. the regional court in Usti nad Labem by order of 3. 7.2004 No. 34 (C)

22/2002-63 proceedings on the grounds that the provision of section 133a of paragraph 1. 2

Code of civil procedure ("of the row), which has solution

things used is in conflict with the constitutional order [article 95, paragraph 2, of the Constitution

The Czech Republic (hereinafter "the Constitution"), § 64 para. 3 of Act No. 182/1993

Coll., on the Constitutional Court, as amended, (hereinafter referred to as the "law on the constitutional

the Court ")] and the proposal made by the Constitutional Court for its annulment.



4. A regional court in the draft stated that the proceedings have not yet listened to the Prosecutor (with the

the exception is omluvivší L), both defendants, their employee E. M.

and a witness, defendant J. L. Plaintiff remained on his claim that the

they were, as the Roma racially discriminated against. The defendants and their

workers have denied that anyone, at any time and for any reason

znevýhodňovali compared with other customers; Equally, however, stated that this

cannot prove the claim, because the operator of each

restaurant reviews in no way nedokumentují. Witness l. said,

While Rom, at the same time and in the same place as the applicant discriminated against be

felt. The District Court further stated that, despite the allegations vaguely

nasvědčujícím rather on the opposing party, prosecutors remained and its application

claimed that it was decided in their favour when you use

the provisions of § 133a para. 2. s. l., because of their belief that they were

racially discriminated against in the provision of services, the management of

rebutted, and therefore has to be taken as proven.



5. The regional court in Ústí nad Labem within the very brief constitutional law

the argument expressed the belief that the provision of section 133a of paragraph 1. 2

Code of civil procedure are interfering with the constitutional principle of procedural equality

participants of legal proceedings, and therefore is in breach of article. paragraph 96. 1

Of the Constitution, according to which "All the parties are equal before the Court

rights. ". By shifting the burden of proof compared to the standard right-from the

the applicants to the respondent is a party plaintiff unfairly favored, since

prove what should have been, and why it is actionable, while the party

the defendant is unfairly disadvantaged, since they should demonstrate what

not the case, as with the social need such evidence could not plan ahead.

It follows from the logic of things, that while the first proof is possible relatively

easily, the evidence of the second is difficult, or-as in the case in question-i

completely impossible.



6. any arguments that even the standard order burdensome evidentiary

the burden of the plaintiff the full equality of the parties does not guarantee by the conviction

the applicant does not hold water, as it referred to the standard order reflects

different procedural situation of both the hassle of the parties: the plaintiff is

"master of the process and its end can always-after considering the possible

its own evidence of helplessness-quite easily achieved; on the other hand

the defendant does not have such an option. It is therefore fair to this

procedural weakness of the defendant was compensated for by snětím the burden of proof.



7. for these reasons the regional court is convinced that the contested

the provisions of § 133a para. 2. r. infringes the right of the defendants to

due process, which is contained not only in the Czech imanentně the constitutional

all right, but also in the legal order of the European Union, for example. in the provisions of article.

6 (1). 1 of the Convention for the protection of human rights and fundamental freedoms (hereinafter referred to as

"The Convention").



8. In conclusion, the regional court in Ústí nad Labem, has proposed that the Constitutional Court

finding the provisions of § 133a para. 2 of the code of civil procedure.



9. On 23 December 2005. 8. in 2004, the Constitutional Court received the request of m. b., l. # and

D. d., the appellants in proceedings before the regional court in Ústí nad Labem

under SP. zn. 34 C 22/2002, in which they asked the Constitutional Court to consider whether it would

in the procedure on the proposal of the regional court in Ústí nad Labem on cancellation

the provision of section 133a of the row can be regarded as minor participants

or if such status could be granted, by order under

the provisions of § 28 para. 3 of the law on the Constitutional Court.



II.



II. (a)



10. The Chamber of deputies of the Parliament of the Czech Republic represented by its

the Chairman of PhDr. Lubomír Zaorálkem in the comments of 27 March. 8.2004

It stated that the provisions of section 133a was inserted in the code of civil procedure

primarily as a result of the commitment of the United States arising from directive

Of the Council (EC) No 97/80/EC of 15 December 1999. 12. in 1997, about the burden of proof in cases of

discrimination based on sex. Subsequently, it was the provisions of § 133a

extended by Act No. 151/2002 Coll., which was transposed into it requirements

the other two European directives, i.e.. Council Directive 2000/43/EC of the

on 29 June 2000, implementing the principle of equal treatment between persons

irrespective of racial or ethnic origin, and Council Directive No. 2000/78/EC of

27 June 2002. November 2000 establishing a general framework for equal treatment in

of employment and occupation.



11. According to Directive No. 2000/43/EC, the Member States of the European Union

are required to provide in their legal systems, to ensure that, in cases where the person

considered to be damaged, because in their opinion, there was an

their direct or indirect discrimination on the ground that it was not against them

proceeded according to the principles of equal treatment, the burden of carrying a

the defendant. The intent of this directive is to ensure that the obligations

the defendant prove that the breach of the principle of equal treatment did not occur.



12. The Chamber of Deputies, where none aligned itself with the view of the applicant, that the

by projecting of any commitment for the Czech Republic from Directive No.

2000/43/EC into the code of civil procedure had been violated article. paragraph 96. 1

The Constitution, which governs equality of participants in proceedings before the Court. In each

civil process is one of the parties the obligation of the burden of

the burden and this obligation does not mean violating the equal position of the parties

proceedings before the Court. The contested provision in determining the probative

the obligation is mainly based on the protection of participants, who believe

that were harmed on their rights on grounds of unequal treatment.

The equality of the parties is given by, among others, mainly independence

the Court. Parties to the proceedings in relation to which the Court fulfils its role, it must be

nepodřízení, i.e. each other. must have equal status in the proceedings. This

equal status is not violated the duty of burden of proof.



13. the contested provisions will not alter the right of defendants to a fair trial.

In the framework of the principles of a fair trial in this case is

(i.e. the way according to the provisions of section 133a (2) o. s. l.) to allow for the

the parties claim the set procedure, their rights in the

an independent and impartial court. In this procedure, has each

the party granted personal access to the Court, has the opportunity to participate in the

the hearing and the hearing of the case in his presence and to respond to the

made to the evidence. The abolition of the provision of section 133a of paragraph 1. 2. with the row would

There was a clear violation of the commitments the United States arising from the


membership in the European Union and on the follow-up of commitments resulting from the

of EU directives.



14. Act No. 151/2002 Coll., amending certain laws in the context of

with the adoption of the code of civil procedure of the administrative, was approved after a properly carried out

normotvorném process, signed by the competent constitutional officials, and was

promulgated in the collection of laws.



15. In conclusion, the Chamber of Deputies expressed the opinion that the legislative

the choir at the time accept the law no 151/2002 Coll., acted in the belief

that law is adopted in accordance with the Constitution, the constitutional order, the rule of

the order of the United States and the relevant European directives, which is

Czech Republic is bound. It is up to the Constitutional Court, in the context of

the examination of the application for annulment of the provision of section 133a of paragraph 1. 2 Act No. 151/2002

Coll., amending certain laws in connection with the adoption of the

order administrative, assessed the constitutionality of this law and issued the relevant

decision.



II. (b)



16. the Senate of the Parliament of the Czech Republic represented by its former

Chairman doc. JUDr. Petr Pithart in observations from day 2. 9.2004

the Court held that the contested provisions of section 133a of paragraph 1. 2. with the row.

included in the "accompanying" Act (Act No. 151/2002 Coll.), in

during the legislative process in the House of Commons, as the scope of the

the administrative judiciary, although unrelated, however, from the perspective of the accession

The Czech Republic to the European Union at the most necessary.



17. the substance of the matter, the Senate has stated that the right of everyone to equality before the law,

and before the law (and the protection from discrimination) is the General base

the law recognized as the European Union, and at the level of the individual

the Member States (the Czech Republic).



18. the equality enshrined in article Categories. 1 of the Charter of fundamental rights and

freedoms ("the Charter"), belong to the basic human rights, which

by their very nature are social values konstitujícími the value of procedure

[find the Constitutional Court published under no. 169/1995 Coll. (note.

Red: find SP. zn. PL. ÚS 4/95, collection of findings and resolutions of the constitutional

Court, volume 3, finding no. 29)]. As such, it is developed in other

provisions for each area and situation. In the plane of the constitutional goes

for example. about-for relevant case-equality of rights in proceedings before the

Court (article 37, paragraph 3, of the Charter in conjunction with article 96, paragraph 1, of the Constitution); in

the plane then, e.g. podústavní. the provisions of section 18 of the row, that principle

equality of rights in proceedings before the Court translates into "ordinary law".



19. In the light of the above, the provisions of § 133a has o. s. 5-help

persons who feel discriminated against, for the effective enforcement of the

equal treatment so that the facts of the alleged discrimination on the

grounds of racial or ethnic origin, the Court regarded as proven,

If the control didn't come out to light otherwise. The provisions of paragraph of the second

the provision of section 133a of the round falls on things the provision of health and

social care, access to education and training, access to

public procurement, membership in organizations of workers or

employers and membership in professional and interest associations and

the sale of goods or the provision of services in the shop. To do this, you can add that

the range of things that repeal that paragraph 2, together with the

deviation in a discriminatory reason aspect that distinguishes it from the

paragraph 1 of the same provision (paragraph 1 shall be calculated not only to discrimination on the

grounds of racial or ethnic origin, but also on the basis of gender,

religion, faith, belief, disability, age or

sexual orientation). Legal protection of the tool, however, in both cases

the same as.



20. The historical interpretation of the provisions of section 133a of paragraph 1. 2. with the row.

to find out, that the legislature was in its approval driven primarily

the intention to harmonize the Czech law with Community law. "The European

the legislature "on the basis of the fact that the creation of the default conditions

It cannot be in certain cases and situations sufficiently achieved at national

level, committed the Member States to take the necessary measures to ensure that, if the

a person feels damaged by the failure to observe the principle of equal treatment and

shall submit to the Court or other competent authority, facts from which

the fact that there has been direct or indirect discrimination, it is for the defendant to

to prove that there was no breach of the principle of equal treatment (the relevant

the standard carries the title of "burden of proof").



21. As is evident from the mentioned circumstances, that the selection of the legislative

the resource has been greatly limiting, yet the legislature concluded that

the wording of the contested provisions based on the assumption of the truth of

the alleged facts, if you didn't come out in the proceedings show the opposite, it is legal

construction, which in no way impair the principles of evidence, on which the

civil procedural law is based. Legal presumption in this case

in fact restrict the parties from presenting a claim or

the design of the evidence, but only allows you to decide when the Court

"evidence of weakness" of the defendant, or the State of the evidence.



22. in addition to the legislative aspect of the dominant, formally because of the adoption of

the provisions of § 133a para. 2. with the row can be supplemented with an opinion on the material,

the social side of things. The Senate in deciding doubted the validity of the

the reasons which led the European legislativce for the definition of the material scope of

the relevant standards and, therefore, had more serious problems with the fact that the national

standard struck the circuit cases, identical to the relevant European

the directives.



23. It can be stated that in the above specified dimensions is paragraphs

133a para. 2. r. comply with the constitutional principle of equality of rights

Parties to the proceedings before the Court, as it does not undermine the principles of "equality of arms

(fair trial), by one of the parties has provided more benefits. Rather

You can argue that the provision helps to enforce the principle of

"substantive" equality where there would otherwise be objective reasons, helplessness

to prove its allegations was suppressed nedůvodně equality "formal".



24. In the matter of the alleged discrimination is the standard survey

of the facts. None of the procedural aspect is not limited by or in

submitted claims or in designing the means of proof.

The provisions of § 133a para. 2. with the row only added (i.e. conditionally.

unless it is for the management of any truth value, claiming the opposite)

the plaintiff about the uneven treatment, and thus it takes away the onus of proof.

The defendant, however, this fact does not interfere with the ability to demonstrate the falsity of

such statement by evidence on equal treatment. The defendant

as demonstrated by their behavior, and not delay, it is an unacceptable behavior.

Indeed, the nature of things it is not even possible. At this point, therefore, cannot be

regard to the applicant, that the defendant should prove "something

did not happen ".



25. provisions adopted by Member States, located in the section entitled "evaluation of the evidence",

It is for the judge to rule in no way nenabádá to it within the meaning of

the provisions of § 133a para. 2. row indicate the relevant cases at a flat rate

as discriminatory and resigned from considering each cases in

the detailed and all contexts. On the contrary, "added"

endpoint, which puts in the evaluation of the case of unequal

treatment to a judge increased demands. This provision must be

interpret that to be the case at all possible subsumovat below

the provisions of § 133a para. 2 CCP, the judge must first conclude that the

the fact of discrimination really suggest (see chap. (II) article. 8 (2). 1

Council Directive 2000/43/EC; identically and Council Directive No. 2000/78/EC and

Council Directive No. 97/80/EC). If this were not so, no provision

section 133a of paragraph 1. 2. use a round.



26. The Chamber does not consider that the applicant described the "move the burden

the burden of "started by the conflict with the constitutional principle of due process, but

It considers that the imposition of liability on the defendant for more findings

the facts in the cases defined (as in article 133a

paragraph. 2, after all, the provision of section 133a of paragraph 1. 1. s. l.) to

higher accuracy in filling the maxims of a fair hearing, how it

required by article. 6 (1). 1 of the Convention.



27. it is evident from the application that the applicant sees the unconstitutionality

mainly as a result of "moving the burden of proof", not in the circuit

things that the standard turns out. Senate adds that if the Constitutional Court

the claimant's arguments found justified cancellation the provisions of §

133a para. 2. s. l., then suffering from a deficient and referred to paragraph 1 of the same

section.



28. Beyond expression to the provisions of § 133a para. 2. with the row can be used for

the completeness of the stated that, as regards the burden of proof, or the Government of the newly

forthcoming anti-discrimination legislation with changes over

the current state does not count.



29. The same attitude to the issue of additional occupy rated States

The European Union (eg. France, Ireland, Sweden, Portugal, Poland,

Hungary) whose legislation and case-law konvenují with raised

trend (see for example. Equality and non-discrimination, Annual report 2004,

The European Commission, p. 20).



30. In conclusion, the President of the Chamber indicated that its observations be forwarded with the fact that it is

entirely up to the Constitutional Court to examine the constitutionality of the application for revocation

the contested provisions.



II. (c)




31. The regional court in Ústí nad Labem to the representation of the Chamber of Deputies and

The Senate, which was sent to the Constitutional Court, by letter of 20 April 2004. 9.2004,

would not comment.



II. (d)



32. the Ministry of Justice to the challenge of the Constitutional Court in its

opinion on the application for annulment of the provision of section 133a of paragraph 1. 2. s. l.

repeated argument of the applicant and stated the reasons for the incorporation of

of the provision in the legal order of the Czech Republic, consisting in the

the necessity of the transposition of the article. 8 (2). 1 and 2 of Council Directive 2000/43/EC of the

29 April 2004. 6.2000, implementing the principle of equal treatment between persons

regardless of their racial or ethnic origin, to the national legal

of the order. Apparent objective of this legislation is to provide protection to the weaker

party to the dispute, that the person against whom should be made to manifestations of racial or

ethnic discrimination, undoubtedly is. In accordance with the provisions of article 8(1). 8

paragraph. 2 of the directive, which provides States the option of more moderate

setting the conditions for transferring the burden of proof to the defendant, then

approached the legislature to implement a benevolentnější diction and side

the plaintiff in a discriminatory dispute merely "assert facts",

not "present facts suggesting direct or indirect

discrimination "as defined in article. 8 (2). 1 directive. In doing so, it is necessary to

Remember that breaking the principle of the burden of proof by the plaintiff is blown away in the

this case has been made as a result of transposition of the directive, that is, the rule of

Regulation adopted by the European Community in accordance with the Treaty

establishing the European Community. Directive in accordance with article 3(1). 249 para. 3

Of the EC Treaty is a legal act binding on any State which is

intended, as regards the result to be achieved. The choice of the forms and

resources in fulfilling the goal set by the directive, while leaving

the national authorities. In this case, as a convenient means

implementation of the directive evaluates to the law-code of civil procedure.



33. You cannot identify with the opinion of the applicant, that the election of

the solution was to suppress the rights of the parties on their equal rights

before the Court, as claims with reference to the article. paragraph 96. 1 of the Constitution, and to the denial of the

the principle of equality of the parties, as it is embodied in the provisions of the

article. 37 para. 3 of the Charter. The determination of the burden is mainly based on

from the protection of the participants, who have considered that they were harmed by their

rights because of the unequal treatment.



34. Although the above-cited directive was released in 2000, it is

Czech Republic in accordance with the provisions of article 8(1). 2 of the Act of accession of the bound

with effect from 1 January. 5.2004, when it became a Member State of the European Union.

In the event that the Czech Republic cited the directive,

therefore has not taken the necessary measures to guarantee its transposition into

national law, was carrying, according to the Treaty establishing the European

Community responsibility for this misconduct, which could result

be bringing an action by the Commission at the European Court of Justice and the subsequent

the possible imposition of fines or periodic penalty payments.



35. In the opinion of the Ministry cannot agree with the statement of the claimant,

the provisions of section 133a of paragraph 1. 2. is in breach of article. paragraph 96. 1

Of the Constitution, according to which "All the parties are equal before the Court

rights. ". At the same time, this is the principle of equality of the participants explicitly

expressed in the Charter in article 6(2). 37 para. 3 ("all of the participants are in the

the proceedings are equal. "). The principle of equality of the participants is stressed in the provisions

section 18 of the row, which enshrines the equality of participants in civil

court proceedings. Equality before the law and the Court is one concept.

Means the equal status of the two parties in the application of physical and

procedural regulations before any court against any physical

or legal person. The principle of equality of the parties is reflected through the creation of

the same procedural conditions and the procedural position of the bodies, of which the

rights and obligations of the Court rules. Excludes certain group

participants recognized the exceptional position, or individuals associated with the

grant of special rights or, conversely, duties. The mere fact

that is usually on the claimant to prove the their claims referred to in the application,

does not mean that the plaintiff does not have equal rights as counterparty

such an obligation does not have. As well as for the violation of equality

Parties to the proceedings, cannot be regarded as in some justifiable

cases, "as opposed to the standard policy", as stated by the appellant, the

shift the burden of proof. Such a procedure is in no way exceptional and many

States use it not only in the cases mentioned above

Directive (see e.g. actions against the assets of the rogue sources

applied in Anglo-Saxon law). The consistent application of the principle of equality

party is also assured by the independence of the judges, rules on the exclusion of

preconceived legal persons, but also by the existence of a judicial system,

to ensure every citizen and legal person of the public hearing of the case

organised by the competent court, and the law on the basis of general constitutional

principles.



36. The Ministry also reported that they also cannot be identified with the view

that the contested legislation takes away the right of defendants to a fair trial.

The provisions of § 133a para. 2. with the (Similarly, but also the provision of section 133a

paragraph. 1. s. l.) does not affect the primary principles of free reviews

evidence explicitly expressed in the provisions of § 132 of the row, according to which

the Court shall assess the evidence according to their reasoning, each individually and all

evidence in their mutual context. The Court in assessing the facts

the State of affairs in the process of the taking of evidence is not bound, when assessing the degree of

the credibility of, respectively, the probative force of the individual evidence

resources; and even if the presumed "prokázanosti" averred

the facts according to the provisions of § 133a para. 2. with the row (by analogy, but i

the provisions of § 133a para. 1. s. l.) It is entirely up to the discretion of the Court, which

evidentiary value in the context and in comparison with the other application documents

evidence of these "established" the alleged facts. At the same time can

be in control of the contrary, and that, where appropriate, under the provisions of § 120

paragraph. 3. s. l., IE. the procedure, the Court may make the decision in the proceedings

other than the participants of the proposed evidence.



37. In conclusion, the Ministry of Justice indicated that in view of the above

considers that, given that neither that directive nor article 133a para. 2

of the row do not conflict with the rights of participants in the constitutional order

The United States, but rather to emphasise the fundamental right of discriminated

(weaker) subjects to due process, how is this guarantee both

By the Charter (article 36, paragraph 1), and article 6 (1). 1 of the Convention, and are

therefore constitutionally Conformal. It is up to the Constitutional Court, in the context of

the examination of the application for annulment of the provision of section 133a of paragraph 1. 2. r. assessed

the constitutionality of these provisions and has issued the decision.



II. (e)



38. The European Roma Rights Center-European Roma Rights Centre, the

based in Budapest ("European"), the Constitutional Court of the day

16.12. 2004 informed the Commission that it was informed about the ongoing proceedings before the

a Chamber of the Constitutional Court in the matter of the application for revocation article 133a

paragraph. 2. for unconstitutionality. In this context, submitted

The Constitutional Court its opinion (amicus brief), in which mj. It underlined

that condition for transfer the burden of proof to the defendant is to

the applicant has demonstrated a prima facie discrimination; only when this is followed by

the obligation of the defendant to prove that it did not infringe the principle of equal treatment

(see also para. 9 of the preamble to Council Directive 2000/43/EC). Experience

suggest that the effective and genuine respect for property

provisions to guarantee non-discrimination shall ensure, when will

the shared burden of proof and the defendant, who must prove that its

conduct was objectively justified. The decision of the UN Committee pointed out

for human rights in case Mukong in Cameroon, Communiqué No. 458/1991

(1994), by which the burden of proof cannot be held only the applicant, in particular

If we consider the situation in which the parties do not always have equal access to the

evidence and often access to relevant information only has the defendant.



39. the delegation of the burden of proof from the plaintiff to the defendant after he was

case classified as prima facie discrimination, makes it easier for applicants

his decision to file a complaint.



40. It is possible to classify the case as prima facie discrimination,

It depends on the circumstances of each case; However, it is evident that, in the

the application of such a principle, the taking of evidence shall be sufficient to provide the applicant

arguments, that is, "the facts suggesting that there has been direct or

indirect discrimination ". At the same time the desired evidentiary standard "without

reasonable doubt ' is applied rather in criminal proceedings.



41. The European Centre referred to the decision of the European Court of

human rights (hereinafter referred to as the "European Court") in case Scarlet and more

against Bulgaria (2004), in which the European Court stated that the burden of proof

must be passed to the defendant in the cases of discrimination referred to in article. 14

Of the Convention, and noted that this approach is in line with developments in the

Europe.



42. After migration, the burden of proof is on the defendant to submit a


evidence which rebuts the allegation of prima facie discrimination. According to the

European Court of Justice, the defendant must prove that the difference in negotiations

"corresponded to the real need of the negotiations" and was "appropriate and necessary to

the achievement of the interest "(thing Ingrid Rinner-Kühn v FWW.

Spezial-Gebäudereinigung GmbH & Co. KG. /1989/, ECR 2743). The question of the

transferring the burden of proof in cases of discrimination based on sex

the appeal also deals with the work of the Tribunal of Great Britain

of 3 July 2003. 4.2003 in the matter of Barton in the Investec Henderson Crosthwaite.

Securities Ltd., in which it stressed the increased importance of the defendant

in matters of discrimination, to defend their actions.



43. The European Centre pointed to another decision of the European

the Court of Justice for a preliminary ruling (case 170/84 Bilka-Kaufhaus GmbH

/1986/ECR 1607, case 109/88 Danfoss,/1989/, ECR 3283), from which you can

inferred that the applicant is primarily required to prove prima facie case

differential treatment on the basis of prohibited grounds; otherwise,

He lost the case. If the applicant proves, this is on the defendant to

provide objective justification for that difference in treatment (eg.

the achievement of a legitimate interest, or the introduction of adequate measures to

the achievement of such an interest).



44. In conclusion, the European Centre stated that the principle of the transfer of the burden of

the burden is the result of more than twenty years of development and liberalization,

that develops from the first EU directives relating to gender issues

adopted in the mid-1970s. years 20. of the century. Its aim is to create a

a balance that enables us to collect from the courts of all parties to all

relevant evidence before they decide whether there has been discrimination.

Transfer the burden of proof helps applicants ensure that the defendant

had an obligation to defend their actions. As a result, committed to both parties,

to bring their defence on what the most compelling claims.



III.



45. the provisions of section 133a of the row, part of which is to cancel the proposed

paragraph 2, as follows:



"section 133a



(1) the facts alleged that the participant has been directly or indirectly

discriminated against on the basis of their sex, racial or ethnic origin,

religion, faith, belief, disability, age or

sexual orientation, the Court in matters of work as established, if

management didn't come out to light otherwise.



(2) the facts alleged that the participant has been directly or indirectly

discriminated against on the basis of their racial or ethnic origin, the Court

in matters relating to the provision of health and social care, access to education and

training, access to public contracts, membership in organizations

workers or employers, and membership in professional and special interest

associations and in the sale of goods in a shop, or the provision of services for

proven, if in the proceedings did not come out to light the opposite. "



IV.



46. The Constitutional Court in the framework of the examination of the conditions he found that management applications

the contested provisions of section 133a of paragraph 1. 2. when making a decision is in

the case of the regional court is inevitable. It is therefore a provision, which

to be within the meaning of article 87(1). 95 para. 2 of the Constitution applied in solving the case, and therefore

the condition laid down in article 4(1). 95 para. 2 of the Constitution is satisfied.



47. at the request of m. b., l. # and d. d. granting the status of secondary

of the participants, respectively, of the decision, that such status in the proceedings,

The Constitutional Court States that, in proceedings for annulment of laws and other legal

the provisions of the law on the Constitutional Court, which is based on article. 88 of the Constitution, the constitutional

the Court is bound, with the exception of cases that have occurred as a result of the procedure according to

the provisions of § 35 para. 2 of the Act, to intervene.



In the.



48. the provisions of paragraph 1 of section 133a. 2 was inserted in the code of civil procedure

the law of 21 March. March 2002 No. 151/2002 Coll., amending certain

laws in connection with the adoption of the administrative judicial procedure. The law became

effect on 1 May. January 2003 and was published in the amount 61/2002 Collection

the laws, which have been circulated on 17. 4.2002.



49. From the electronic library of the Chamber of deputies of the Czech Parliament

of the Republic, the Constitutional Court found that the Bill was submitted to the

The Chamber of Deputies as a Government proposal on 1 May 2004. 10.2001 and circulated

Members such as printing 1081/0. The proposal was accepted at the 46. the meeting of the

the Chamber of Deputies on 15 December. February 2002 resolution No. 2106, when from the present 159

Members voted for a proposal from them 149 when the quorum is 80.



50. From the electronic library of the Czech Senate the constitutional

the Court found that the Bill was sent to the senators as Senate document No

# 224. 15. a meeting of the Senate, the third term, on 21 February 2006. March 2002

the Senate adopted a resolution No. 327, which expressed the will of the draft law is

to dwell on. Of the 43 senátorek and Senators rejected the proposal for

38, against 1, when quorum is 22.



51. On 26 April. 3. in 2002, the law was delivered to the President of the Republic to the

the signing. President of the Republic signed the Act of 28 January. 3.2002.



52. the Constitutional Court within the meaning of the provisions of § 68 para. 2 of the law on

The Constitutional Court found that the Act No. 151/2002 Coll., amending

Some laws in connection with the adoption of the code of civil procedure of the administrative, was

adopted and published within the limits of the Constitution of the United States laid down the legislative

competence of the Parliament of the United Kingdom and the constitutionally prescribed way.



Vi.



53. The Constitutional Court came to the conclusion that the merits of the application for revocation

the provisions of § 133a para. 2. in the row is not given, and therefore rejected the proposal of the

the following reasons.



54. in the proceedings on the revocation of the laws or their individual provisions under

article. 87 para. 1 (b). and the Constitutional Court) of the Constitution shall examine the content of the law of

with regard to its compliance with the constitutional order. In this context, the constitutional

the Tribunal notes that, as the last domestic instance for

constitutional qualification not to be bound by the qualifications, that things

attributed to the appellant in support of its proposal. According to the principle iura

novit curia design may consider from the perspective of the provisions to which the

the applicant did not invoke or parties. A proposal or a complaint is

characterized by deeds that criticizes or its subject, whose

unconstitutionality claims, and not just the legal justification. However, it cannot be

inferred that detailed constitutional argument does not have to be a regular

part of the proposal. In the present case, the Constitutional Court is of the opinion that the proposal

a more detailed reasoning of the District Court.



55. The essence of the proposal is the argument that the provisions of section 133a of paragraph 1. 2. s. l.

is unconstitutional, that the matters listed there, shifting the burden

the burden of proof on the side of the defendant, thereby discriminating against her. This supposedly violates

constitutionally enshrined fundamental rights, in particular the right to a fair trial

According to the article. 6 (1). 1 of the Convention and the rights enshrined in the corresponding title

the fifth of the Charter, the principle of equality of participants in court proceedings pursuant to art. 37

paragraph. 3 of the Charter, article. paragraph 96. 1 of the Constitution and article. 14. 1 International

Covenant on Civil and political rights, no. 120/1976 Coll. (hereinafter referred to as

"The Covenant"), and the prohibition of discrimination pursuant to art. 14 of the Convention.



56. In the present case, therefore, on the application of the procedural principle

equality and non-discrimination in deciding general courts in civil

matters. International legal protection enshrined in the Pact, which primarily in the article.

14. 1, inter alia, that "all persons are before the Court

equal. ".



57. the right to a fair trial is guaranteed in particular in article 6 of the Convention,

that is indeed, as follows in Protocol No. 11 of the revised text of the Convention

directly to the relevant provisions, and headed for the so-called. "civilian branch"

added:



"Article 6



The right to a fair trial



1. Everyone has the right to his matter was fair and public

and within a reasonable time by an independent and impartial tribunal established by

the law, which decides about his civil rights and obligations ".



58. with regard to the contents of the basic rights of their own, from his word

the wording is clear, that this is the right structure, including more

separate subjective fundamental rights formulated as specifically

(e.g., the public, and the speed of the proceedings, or an independent and impartial tribunal),

and in General (in particular, the right to a fair hearing).



59. the right to a fair hearing of the case, as part of the right to

due process, therefore the term is neutral, open, and precisely

neohraničeným. Its content includes not only all other warranties

expressly referred to in the article. 6 (1). 1 of the Convention, but in particular also those which, in the

It specifically mentioned are not, but that in particular the European Court in its

long-term decision-making activity inferred and gradually defined from a General

the requirement of fairness of the process. (Not only) in relation to the taking of evidence so

principles that have been defined, although not mentioned specifically in the Convention, are

an integral part of the concept of a fair trial. It is all about

the principles of equality of arms and adversarial.



60. the right to a fair hearing of the case cannot be separated from the General

the requirement of equality and non-discrimination. In this context, however, such

the importance of equality concerning the equality of participants in proceedings before the Court,

situated in different, opposing, procedural

capacities, usually referred to as the "equality of arms". In the constitutional


order of the Czech Republic is the principle contained in article 2(2). paragraph 96. 1

Of the Constitution, according to which "All the parties are equal before the Court

rights. "and article. 37 para. 3 of the Charter, according to which "all participants

are you in control even. ". In the Convention, such equality is explicitly expressed

It is not, however, the European Court it could not nevyvodit from the requirement of

Justice. The dispute process, which takes place through

adversarial discussion during which the parties must have "equal weapons",

i.e.. the same opportunity to speak and defend "his" truth. In a practical

life as a rule not an absolute, mathematical equality; as to the concept of

the relative, in particular in the sense that it cannot completely wipe off the difference in

in particular, the procedural and factual position of the parties resulting from their

the different options. This inequality can be to a certain extent

offset by the additional guarantees for the weaker party. favor

defensionis, which is the manifestation of the eg. adjustment of the burden of proof (cf.

for example. B. Repík, the European Convention on human rights and criminal law,

ORAC, 2002, p. 144 et seq., similarly, also Repík, Ľudské rights in

súdnom konaní MANZ, Bratislava, 1999, pp. 155 et seq.). In the judgment in

De Haes and Gijsels case against Belgium (1997), (para. 55),

The European Court reaffirmed that the principle of equality of arms-control

the broader concept of fair process – requires that each side was

reasonable opportunity to defend his case under conditions which it

substantially neznevýhodňují in relation to its opponent. Similar

the opinion expressed in Ankerl against Switzerland (1996), (in para.

38 the judgment).



61. Equality of the participants in the proceedings shall be dealt with and the Constitutional Court in its

decision. For example. in the matter of SP. zn. IV. TC 13/98 (collection of findings and

the resolution of the Constitutional Court, volume 12, finding no. 98) stated that "the principle of

the equality of the parties is a core principle of a fair trial. Is embodied

in the article. 37 para. 3 of the Charter and article. paragraph 96. (l) of the Constitution of the United States and

It is also reflected in a number of provisions of procedural law. The code of civil

the order specifically provides for the equality of the parties in the provisions of section 18, of the

which the courts follows the obligation to ensure the same, i.e. to the participants.

equivalent options to exercise their rights. ". According to the findings in the case

SP. zn. PL. ÚS 15/01 (collection of findings and resolutions of the Constitutional Court, the volume

24, finding no. 164; promulgated under no. 424/2001 Coll.) "The constitutional principles

representing one of the components of the basic rights to a fair trial

also includes the principle of "equality of arms" and the principle of equality of opportunity

(or the principle of the equality of all parties to the proceedings) under art. 37 para. 3

Of the Charter, article. paragraph 96. 1 of the Constitution and article. 6 (1). 1 of the Convention. .... The principle of the

"equality of arms" (article 6, paragraph 1, of the Convention) is significantly reflected in the current

the case-law of the European Court of human rights. It can be in this

context characterized especially by the fact that in the opinion of the Court by its

the basis is the idea of equality, which is comparable with the principle of the prohibition of

discrimination pursuant to art. 14 of the Convention. ".



62. contrary to the principle of equality of the participants in the proceedings before the Court, in

the plane of the constitutional question of who in the civil process is to bear the burden of

the burden is not expressly regulated. The European Court on this question for example. in

things Blücher against the Czech Republic (2005), and similarly in case Tiemann

against France and Germany (2000) stated that "article 6 (1). 1 of the Convention

does not provide any rules of admissibility or probative value of the evidence

or the burden of proof, which are issues which in principle are subject to

the national law ".



63. the Convention and the Charter therefore guarantees a fair trial, but do not regulate the

taking of evidence as such, although this is a significant, if not

the most important parts of the control. However, this does not mean that the evidence is

somehow "outside" the constitutional situation of the plane and its preparation is totally exclusive

a matter of law. The basic principles of the fairness of the proceedings, in particular

the principles of equality of arms and the adversarial principle, controlling the entire proceeding,

necessarily apply to the taking of evidence. For example. in the matter of SP. zn. IV. TC 167/96

(Collection of the findings and resolutions of the Constitutional Court, volume 6, finding no. 93)

The Constitutional Court stated that it "is aware of the importance of the Institute of evidentiary

burden, as it enables the Court to rule in case of factual

the State fails to completely clarify. However, this Institute is subordinate to the

a procesněprávnímu framework, how to delineate the particular principles

an impartial and fair trial, under article 90 of the Constitution,

as well as from article 36 para. 1 of the Charter. This means, inter alia, that the Court of

cannot any of the procedural aspect of charging a burden without

the next and unilateral way, but only in the context of all the

relevant circumstances of the case. ".



64. In the plane, that is a constitutional right to a fair trial

contained the principle of equality of arms in civil proceedings generally also includes

equality duty, which are placed on the parties to the proceedings (which may not

be unreasonable), and that otherwise could not control as a whole

be considered as fair. This general principle of equality of the participants is

then be reflected in the legal regulation of the taking of evidence in the plane of the Act.



65. Legal provision of the contested civil proceedings is ruled by the principle of

projednací, according to which a claim of fact and to design for them, evidence is

in principle, the parties ' Affairs. The burden of proof lies in the process

responsibilities of the participants that will be claimed in the proceedings

demonstrated. In the ordinary civil procedure, therefore, shall be borne by each participant

the burden of proof in relation to those facts alone argue. General

adjustment of the taking of evidence in § 120 o. s. l., according to paragraphs

the first "Participants are required to indicate the evidence to prove their

claim. ", clearly stipulates that the initiative in gathering evidence

is fundamentally on the participants. The participant therefore has the obligation to (burden)

claims and obligations (burden) of evidence. The burden of proof is the Institute

procedural law that prosecutes the participant in whose interest it is to

a certain fact, determined in accordance with the substantive law and a participant in the hardened,

were demonstrated in the sense that the Court has recognized it for the true

(cf. Bureš, Clawed, the Inkeeper, Scone, code of civil procedure-comment

6. Edition, pp. 450 et seq.).



66. The claims of the regional court that the difference in treatment of the party

the defendant in the proceedings pursuant to the provisions of section 133a of paragraph 1. 2. s. l.,

compared with a standard procedural position of Parties according to the

General provisions of the code of civil procedure of the burden of proof, it is

against defendant discriminatory, Constitutional Court does not share mainly from

the following aspects.



67. The Constitutional Court is of the opinion that specific legislation

the taking of evidence in proceedings under the provisions of section 133a of the row in which the

the claimant asserts that it was directly or indirectly discriminated against

(usually while claims violations of the rights enshrined in the civil

the civil code, the labour code, respectively, and the application of the liability of

resulting), is an exception to the above general principles

the taking of evidence. In nature it is a rebuttable legal presumption

specifying the evidence to the contrary, that it is the duty of the party defendant. From

General standards of evidence in § 120 of the row has apparently

distinguished by the fact that, to a certain extent favoured side of the plaintiff at the expense of the parties

the defendant, before general courts, debt forgiveness, yet nothing has

to prove something that has neither. From this purely formal point of view can be

to claim that the party is in control, where it is applied to the provisions of §

133a para. 2. s. l., in comparison with the Party complained against to some extent

the disadvantaged. Transferring the burden of proof on the side of the defendant, however, is not

even full or automatic. A person who claims to be a victim

discrimination, must first submit to the Court the fact sufficiently

justifying the conclusion on the existence of possible discrimination, albeit it from Word

the texts of the provisions of section 133a of paragraph 1. 2. in the row is not clear enough.

This conclusion is consistent with the legal opinion of the European Court of Justice

expressed in the judgment of the Court of first instance of 16 June. 3.2004 in case

Afari v European Central Bank (T-11/03).



68. There is no doubt that a party defendant is treated in proceedings

listed in the contested provisions of section 133a of paragraph 1. 2. with (and as well

and in proceedings of work-the provisions of section 133a of paragraph 1. 1. s. l.) in respect of

to the taking of evidence otherwise than with the defendants in other civil

proceedings, and this difference is advantage for the party plaintiff, and

therefore clearly disadvantages for the side of the defendant. Whether this disadvantage

can be considered as unconstitutional discrimination it is necessary to consider the



and) in terms of an objective and reasonable justification, that is,. pursues a

This handicaps of a legitimate aim, and



(b)) in terms of a reasonable proportion (proportionality) between the legitimate aim

and the means by which this objective is achieved.



69. The link between discrimination and the public interest, the Constitutional Court expressed the

for example. in finding SP. zn. PL. ÚS 9/95 (collection of findings and resolutions of the constitutional

Court, volume 5, no. 16, p. 107; promulgated under no. 107/1996),


in which he stated that "it is for the State to determine the conditions under which

favours a certain group of people, of course, provided that they do so

in the public interest and for the public good, and in the public interest

undoubtedly it is the promotion of the principles of democracy and human rights ".



70. As stated above, the difference in treatment is discriminatory in

meaning of article 87(1). 14 of the Convention, if it lacks objective and reasonable

justification, i.e.. and does not pursue a legitimate aim and) b) there is reasonable

the relationship between the means used and objectives pursued.



71. with regard to the legitimacy of the objectives pursued by the provisions of section 133a of paragraph 1. 2

of the row (as well as even on an uninfected article 133a (1) o. s. l.),

It is clear (and correctly referred to as the Chamber of Deputies and

The Senate) that that provision has become part of the code of civil

in the context of the obligations of the Czech Republic, as a Member State of the

The European Union, incorporated into national law the obligations arising from

the relevant European directives. The constitutional dimensions of this obligation is

framed by the article. 1 (1). 2 of the Constitution, according to which "the Czech Republic complies with the

obligations under international law. ". Custom reasons

the adoption of the so-called. the anti-discrimination directives are then similarly expressed

in particular, in their preamble. Primarily for active policy enforcement

of equal treatment, which means the absence of any direct or

indirect discrimination based on sex, race, ethnic origin, and

other reasons specified in the directives. In fact, it is a

several years of development in the European Union, that is, as claimed by the article. 6

Treaty on European Union, based on the principles of liberty, democracy,

respect for human rights and fundamental freedoms, as well as on the principles of

the rule of law, principles which are common to the Member States; The European

the Union recognises as a general legal principle of Community fundamental rights,

as guaranteed by the Convention, and as they result from the constitutional traditions common

to the Member States. Mentioned the anti-discrimination directives have in common

basis, according to which persons who have been subject to discrimination, should

have an effective means of legal protection. National legislation, therefore,

to ensure the mj. (I) the specific arrangements for the burden of proof. It has to be

based on the principle that where the person with the eating disorder is damaged

failure to observe the principle of equal treatment, the Court of the facts, to suggest

the fact that there has been direct or indirect discrimination, the burden of

the burden of proof on the respondent, which belongs to prove that there was no breach of the

the principle of equal treatment (see e.g. Article 8 (1) of Council directive

2000/43/EC). The Constitutional Court accepts that the Convention has to be first and

in particular the system for the protection of human rights, it is necessary to take into account the

changing conditions in the Contracting States and to respond to any new

the emerging agreement regarding the standards to be achieved and

in the case, expressed in particular in the preamble and the normative

individual provisions of the anti-discrimination directives. For this reason,

The Constitutional Court shall respect the guidelines expressed in the cited Act

European Union Member States and notes that the contested provisions of §

133a para. 2. r. legitimate aim pursued.



72. It remains to decide whether the second condition is also satisfied, therefore, that the

There is a reasonable relationship between the means used and objectives pursued.

However it is not the primary task of the Constitutional Court alone to assess the

what extent, and in what legislative-technical quality with legislators

succeeded to the obligations arising from Council Directive 2000/43/EC incorporated into

Code of civil procedure, or whether the lawmakers managed to legitimate

the objectives of the directive, to express the clear language of the law, must be concluded that the

the first glance it is clear that the condition contained in article. 8 (2). 1 cited

the directive, according to which the revised text of the neúředního according to ISAP

(Information system for the approximation of the law) "Member States shall, in

accordance with their legal systems, the measures necessary to ensure that, as soon as the person

He feels damaged and failure to observe the principle of equal treatment the Court shall submit to the

... fact, suggesting that there has been direct or indirect

discrimination, it was incumbent on the respondent to prove that there was no violation of the principle

of equal treatment, that is, the condition that the Party complained against shall provide to the Court

the facts suggest that discrimination has occurred, it is not in the current

the texts of the provisions of section 133a of the row is sufficiently transparent expressed.

For comparison, you can point out the legislation of the Slovak Republic, where

According to the provisions of § 11 (1) 2 of the Act No. 365/2004 Zb., about the same

treatment and certain areas and on protection against discrimination and amending

and the addition of some laws (anti-discrimination Act), "the defendant is

required to prove that they did not infringe the principle of equal treatment, if the applicant

shall submit to the court evidence from which it could reasonably be concluded that a breach of the

the principle of equal treatment ". Despite the above, however,

The Constitutional Court considers that the contested interpretation of constitutionally Conformal

the provisions of § 133a para. 2. with the row cannot be reached a different conclusion than

What is apparent from the abovementioned Directive and expression of the Senate and of the European

Centre for Roma rights, i.e., that the provisions of section 133a of paragraph 1. 2. s. l.

does the nature of the presumption of liability by the defendants is overwhelming. His

the application thus requires that the party in the first place the plaintiff herself

demonstrated a prima facie interference; will not be enough so its nothing

baseless claims about the alleged discrimination.



73. The interpretation of the provisions of section 133a of paragraph 1. 2. therefore, in the opinion of l.

The Constitutional Court cannot be inferred that the person when purchasing services

felt to be racially discriminated against, just to say that there has been a

discriminatory conduct. This person in court proceedings must not only say,

but also to demonstrate that it was not treated as usual, i.e.

neznevýhodňujícím way. Unless this claim, cannot, in the proceedings

to succeed. Then you must claim that prejudicial treatment was

motivated by discrimination on grounds of racial or ethnic origin. This

the motivation, however, does not have to prove, in the case of evidence of a different

treatment assumes, however, is rebuttable, is shown

(prove) otherwise. Indeed, the requirement that the plaintiff had to party

to prove that she was being discriminated against and exclusively for its racial

(ethnic) origin, and not because of another, is clearly

impossible, because to prove motivation (incentive) the defendant is from

the nature of things.



74. Such a conclusion is in accordance with the lines of the European Court of

the Court on the interpretation of the Community directive on non-discrimination earlier, according to the

that if someone ' submits that the principle of equal treatment has been violated

in its detriment, and proves the facts suggesting that an

direct or indirect discrimination, it shall be interpreted as Community law

in the sense that it is for the respondent to prove that there was no breach of the

those principles "(cf. judgment of the European Court of Justice from 10. 3.2005

in case Nikoloudi v OTE; C-196/02).



75. In the opinion of the Constitutional Court, therefore, of the opinion that the applicant does not hold water

in the proceedings referred to in the contested provisions of the code of civil procedure

"it is an advantage, as the party plaintiff need not prove what should have

State and why that is actionable, while the party defendant suffers,

as should prove what didn't happen ". In fact, namely the probative

the burden of proof does not lie solely and exclusively on the side of the defendant. Even the complaining party

carries your burden and the burden of evidence claim. If this page loads

the plaintiff can carry, which must assess in each individual case, the Court is

Subsequently, the defendant to prove the things their claims that the discrimination of

racial (ethnic) grounds. For these reasons, reached the constitutional

the Court concluded that the provisions of section 133a of paragraph 1. 2. l. is a means of

proportionate to the attainment of the objective pursued, and that-if applied

the above constitutionally Conformal manner-fair will be maintained

the balance between the requirements of the general interest of society and the requirements of the

protection of individuals ' fundamental rights.



76. The Constitutional Court is of the opinion Presented despite the opinion

The Ministry of Justice. The contents of this opinion is clear,

the Justice Department has essentially the same opinion as

appellant: that the defendant and only on it is "total"

the burden of proof (though supposedly set up by the legislature more moderate

the conditions for transferring the burden of proof on the defendant). The Ministry of

only unlike the claimant-status for this constitutionally

Conformal. This is not; The Constitutional Court noted that the

The Justice Department apparently was overlooked that transposition referred to

the directives must move in the constitutional limits of due process;

the interpretation that we gladly accept as the Ministry of Justice, the claimant,

cannot be accepted, as it would those limits have been exceeded.



77. For the above reasons, the Constitutional Court has made a conclusion that the existing

You can still interpret the law so that it can be


for compatible with the fundamental right to a fair trial enshrined in article.

6 (1). 1 of the Convention and the discrimination within the meaning of article not running. 14 of the Convention.

The Constitutional Court therefore did not find grounds for revocation of the provision and

the proposal under the provisions of section 70 para. 2 of the Act on the Constitutional Court rejected.



78. The Constitutional Court considered, however, no doubt that the wording of the contested

the provisions of the code of civil procedure requires, in particular, in terms of test

of proportionality, such an interpretation, which is almost a borderline

the case, which is still a possible interpretation of the statutory text, the Court concludes

that as a result of this interpretation can be considered the contested provision

constitutionally Conformal. It would therefore be extremely desirable that the legislature

consider whether the transposition of the EC directives of the Council cannot be cited for the addressees of the

the relevant procedural standards to perform in a way somewhat more pronounced.



The President of the Constitutional Court:



JUDr. Rychetský in r.