The Opinion Of The Assembly, Tc To Claim For Compensation Of Non-Material Injury

Original Language Title: stanovisko pléna ÚS k nároku na náhradu nemateriální újmy

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=83085&nr=297~2F2014~20Sb.&ft=txt

297/2014 Sb.



The COMMUNICATION FROM the



The Constitutional Court



The plenary adopted the Constitutional Court under the SP. zn. PL. ÚS-St. 39/14 on 25 April.

November 2014 in the composition of Louis David, Norman F, Jan Filip,

Vlasta Formankova, Vladimir Crust, Tomáš Lichovník, Lippincott, Pavel

Rychetský, Vladimir Sladecek, Radovan Suchánek, Catherine Simackova,

Vojtěch Prince, Milada Tomková and Jiří Zemánek on proposal III. the Senate

The Constitutional Court under section 23 of the Act No. 182/1993 Coll., on the Constitutional Court, in

things before this Senate-led under SP. zn. III. TC 1856/13,



This opinion:



I. the right to compensation for non-material injury under art. 5 (3). 5 Convention on the

the protection of human rights and fundamental freedoms shall be incurred, provided that the

the intervention of a State to liberty of the person concerned has occurred, and this intervention

was terminated only after the International Convention has become for the Czech

Republic of binding (i.e. from 18.3.1992); the moment of that person's participation in the

rehabilitation is not relevant in this respect.



II. this law shall not apply in cases where a claim for payment of the

reparation for non-material damage caused was filed before

the adoption of this opinion.



Justification:



(I).



Incidental decisions of the Constitutional Court



1. The Constitutional Court in the award of 23 July. may 2012 SP. zn. I. ÚS 3438/11

(N 111/65 SbNU 497) expressed the view that the claim for compensation for non-material

injury based article. 5 (3). 5 of the Convention for the protection of human rights and fundamental

freedoms (hereinafter referred to as "the Convention") depends on the participation of the person concerned to

rehabilitation, or after the 2003 decision, which was cancelled

condemning the decision of the 1950s. We conclude, therefore, that in the

the case of the application of the right to reparation for the resulting non-material

the injury suffered by the complainant, the arrest, detention, and the performance of the binding or

the punishment is necessary to follow the article. 5 (3). 5 of the Convention regardless,

that the arrest or detention and to the emergence of non-material injury

18. in March 1992, several findings also concluded, in IV. the Senate

The Constitutional Court (e.g. the findings of 30 November 2005. 4.2013, SP. zn. IV. TC 662/12

and of 24 September. 4.2014 SP. zn. IV. TC 644/13, available at

http://nalus.usoud.cz). Because III. the Constitutional Court has come to the Senate

the legal opinion, a derogatory him than submit according to §

23 of law No. 182/1993 Coll., on the Constitutional Court, the plenum of the Constitutional Court case

with the design of the preoccupation of the above opinion.



II.



A recap of the content of the constitutional complaint



2. the constitutional complaints from 12 October. 6.2013, which was registered under the sp.

Zn. III. TC 1856/13, the complainant and M (the "complainant") attacked

the judgment of the District Court for Prague 2 (hereinafter referred to as the "District Court") of

on April 17, 2012, No 10/2010 C 90-77, the judgment of the municipal court in Prague

(hereinafter referred to as "Municipal Court") of 27 April 2001. July 2012 No. 1 What

228/2012-91 and the resolution of the Supreme Court of 28 June. may 2013 No. 30

CDO 3349/2012-104, for infringement of article 81(1). 5 (3). 5, art. 6 (1). 1

Convention, article. 89 para. 2 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), and

article. 1 of the Charter of fundamental rights and freedoms ("the Charter").



3. By the judgment of the District Court was rejected by the app's

action brought against the Czech Republic-the Ministry of Justice to pay

the amount of 300 000 €, which would represent compensation for non-material damage, which

the complainant should be due to the fact that it was the judgment of a lower military

the Court of Brno from 20 July 1999. 11.1950 SP. zn. VT 205/50-III. found guilty

criminal offence evasion of duties under section 270 paragraph. 1

(a). (b)) (a). 2 (a). and) Act No 86/1950 Coll., the criminal code, and

sentenced to imprisonment in duration 18 months informal probation, in

the sentence was from 17. 10.1950 to 26. 4.1952, with the resolution of the

A military court in Brno of 28 June. 11.1991, SP. zn. 2 Rtv

151/91 the said decision was repealed in its entirety and by resolution of the

the same Court of 13 July. 2. in 1992, it was decided that the complainant acknowledges

guilty of a criminal offence evasion of duties under section 270 paragraph.

1 (b). (b)) of the criminal code, but that is subject to punishment pursuant to section 227 of criminal procedure

does not store (Note: this was blown away by the judgment of the Supreme Court of

21.2. 2007, SP. zn. 4 Tz 5/2007 cleared) but subsequently by resolution

The municipal court in Brno, Czech Republic of 8 September. 1.2008, SP. zn. 1 Rt 9/2007

criminal proceedings against the complainant under section 188 paragraph. 1 (b). (c)) §

172 para. 1 (b). (b)) code of criminal procedure stopped, arguing that the deed is not

a criminal offence. The District Court concluded that the complainant cannot be

indemnify or according to law No. 119/1990 Coll., on the judicial rehabilitation, or

pursuant to Act No. 82/1998 Coll., on liability for damage caused during

the exercise of public power by a decision or incorrect official procedure and on

the Czech National Council Act No. 357/1992 Coll., on the notarial profession, and their

activities (notarial regulations), nor (direct) applications article. 5 (3).

5 of the Convention, since the complainant was imprisoned in a time when the Czech Republic still

wasn't her party.



4. By the judgment of the municipal court was to appeal from the complainant

judgment of the Court of first instance as factually correct one confirmed. By the contested

by order of the Supreme Court was refused leave to appeal with proof that the

that is not permissible, nor within the meaning of § 237 para. 1 (b). (c)) and paragraph 2. 3

Code of civil procedure.



5. a constitutional complaint, the complainant States that the issue lies in the

whether the person innocent prisoner January 18. 3. the 1992 shall be entitled to

satisfaction or compensation for non-material injury. Meanwhile, relied on by the

support just the legal opinion expressed in the already mentioned finding SP. zn.

I. ÚS 3438/11 (followed by several other findings), according to which

It is not important when it was damaged, so when the State imprisoned, violated your

the obligations of international law, but when reached, charges

or a decision to complete the rehabilitation, as prior to such

zprošťujícím by decision no satisfaction.



6. Thus, the contentious issue is whether to apply the provisions of article. 5 (3). 5

The Convention, if the conduct of the State in violation of the article. 5 (3). 1 (b). and)

Occurred at the time of the Convention before the Convention became applicable to the Czech Republic

binding, i.e.. before the date of 18. 3. the 1992 (in the present case in the 1950s

up to 1952), but this was a violation (in the rehabilitation proceedings)

declared until after this date.



III. a)



The basic point of departure



7. The Constitutional Court in the first instance comes from the fact that the Convention is an international

the Treaty, and as such must be interpreted by the Contracting States, i.e..

According to the rules of international law, which found reflection in the Vienna Convention

about contract law, declared under no. 15/1988 Coll. (hereinafter referred to as the ' Vienna

the Convention "). At the same time it is necessary to take into account the fact that the Contracting Parties

have appointed a specific authority in whose purview is the interpretation of the Convention

(binding) to perform (see article 19 of the Convention), and the European Court of human

rights (hereinafter "ECHR").



8. It is not disputed that the obligations of the Contracting States, or of their

authorities, including the judicial, is to interpret the Convention, as

interpreted by the ECtHR. An incorrect procedure, the national court

in the interpretation of the rights and freedoms protected by the Convention then

international legal responsibility. In this context, however, is not without

the importance that the Convention provides only for a minimum standard of protection

fundamental rights and freedoms, and the Contracting Parties to the Convention so they can provide

protection at a higher level. Therefore, if a Contracting Party, for example, anchor

other fundamental rights and freedoms beyond those listed in the Convention or

provide protection of the fundamental rights and freedoms beyond the



ratione temporis

The Convention, it is a matter of assessment of their situation, values from which

they are based on, etc. In this area, "beyond Convention" (not in the

the framework, where he then applied the doctrine of so-called. the margin of

appreciation or marge d ' appréciation) Contracting Parties may,-

the perspective of the Convention-to move "back and forth", IE. increase and decrease

protection of rights protected over the scope of the protection required by the Convention, unless

it conflicts with their other international obligations or constitutional

rules (called eternity clause). It follows from this that, if the national

the courts shall adopt such an interpretation, which shall grant a right to a person who

claims (direct) application of the Convention, without such a right from the Convention

actually spoke, international responsibility does not arise, if there is a change in the

the legal opinion. The same, of course, must apply in a situation where the basis for the

such a procedure does not provide nor give rise to national law.



9. other relevant to the present case's conclusion is therefore that, in the

such a situation does not arise here, the international responsibility of the State (pursuant to article 5

paragraph. 5 of the Convention), if that interpretation is based on a particular interpretation of the Convention

the national courts will remedy for his conflict with the constitutional order (here article.

42 and 49 of the Constitution), and the



the de facto

, but not



de constitutione lata

the existing level of protection, reduce the fundamental rights. In this context,

The Constitutional Court adds that the shift in the jurisprudence of national courts.

judikatorní diversion, if duly justified, usually are not, in themselves,

inconsistent with the Convention [see e.g. judgment of 14 July 2004. 1.2010 in

the case against Macedonia Atanasovski, no. 36815/03, paragraph 38;


the judgment of the Grand Chamber of 20 December. 10.2011 Nejdet Şahin and the matter

Perihan Şahin against Turkey, complaint # 13244/03, paragraphs 68-96;

decision of 30 November 2005. 8.2011 in case Boumaraf against France, complaint

# 32820/08; judgment of 10 July 2003. 5.2012 in case the album and another against

Romania, complaint # 34796/09, paragraph 34; for an exception to this General

rules cf. the Grand Chamber judgment of 21 March. 10. in case Del

Río Prada against Spain, no. 42750/09, paragraph 93



in fine

, paragraphs 111-116 and 130-131 points (change of case-law, to the detriment of

the accused)].



10. However, the fact that in this case there is no international

the responsibility of a Contracting State for violation of the Convention, does not mean that a faulty

the interpretation of the national courts, against the Convention, was of no importance

point of view of the constitutional order and his parliamentary forms of Government and

the principles of the rule of law, creating a legal claim in excess of the

The Convention extend to the judiciary's remit (Act



ultra vires

), which is entrusted to the people legitimovanému the legislature within the meaning of article. 2

paragraph. 1, art. 15 paragraph 1. 1, art. paragraph 42. 2 and article. 49 of the Constitution and the judiciary

According to the article. 95 para. 1 of the Constitution. Judicial power (which traditionally is not a folder

the Government over the "měšcem" State or diplomatic power) is called

to provide protection to the rights and claims arising by operation of law

and the international obligations of the State (in this context, as well as from article 9, paragraph 5,

The International Covenant on Civil and political rights), cannot, however,

with regard to the basis of its legitimacy to create beyond itself will

Democratic legitimovaného of the legislature from both the constitutionally

the proposed content and form, and in terms of costs, which are

their meeting. In this way, the doctrine of implied here

the distribution of tasks of the State authorities binds and judicial power.



11. it is necessary for completeness, added that this is not a case of presumed

the provision of article. 17 of the Convention, since the State legislature through no

the right of the parties concerned, by means of the interpretation of the Convention was

restricted, admitted.



III. b)



Application article. 5 (3). 5 of the Convention from the perspective of



ratione temporis



12. The fundamental right to personal liberty within the meaning of article 87(1). 5 of the Convention is based

each individual in the first place to the State is entitled to abstain from all interference in the

protected legal position; If such acts of unlawful interference

(still), there is a claim for him to remove his consequences, and to establish a

such a legal status that was in accordance with the basic law. Only

in the event that the removal of objectionable State is not imaginable or

possible, as the third in the order found in the account are entitled to compensation. This

(secondary) are entitled to directly derive from the fundamental right in question,

its content is a substitute for all the material and imateriální injury

that the person concerned has been caused by the intervention. This

the subjective substantive law, expressly laid down in article 4(1). 5 (3). 5

The Convention may be invoked by the ECTHR separately, its main importance then

lies in the fact that in those States where the Convention is not "directly applicable",

These pledges to adopt such national legislation with

the law will correspond.



13. with regard to the question of the temporal scope of the Convention, the case-law

The ECTHR is based on the fact that it is necessary to differentiate between ongoing situations and

Once an Act whose consequences will eventually affect the

the present. The ECTHR also distinguishes itself on the one hand, and intervention

the failure of successive remedies for such intervention on the side of the

Second, saying that violations of the rights guaranteed by the Convention is necessary to derive

not from the refusal of the State to remedy the interference, but of the intervention itself;

in terms of time is therefore the decisive moment or time

the section in which the intervention occurred, otherwise there would be a breach of the

General legal principles of non-retroactivity in the sense of the Vienna Convention;

While there is no general obligation to redress the wrongs of the State or harm,

that caused prior to ratification [see the judgment of the Grand Chamber of 8 June.

3.2006 in case Blečić against Croatia, complaint No. 59532/00; to

State at the time the infringement considerably remote (forced labour

Italian prisoners of war-to the deportation occurred before 3. 9.1953, when

The Convention entered into force for Germany) see the decision of 4 April 2003. 9.

2007 in the matter of the Associazione Nazionale Reduci dalla Prigionia dall '

Internal medicine-mento e dalla Guerra di Liberazione and 275 others against

Germany, no. 45563/04 (available on the

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx? i = 001-82292)].



14. A specific exception to this rule-should be underlined for specific

cases of infringement of article 81(1). 2 and 3 of the Convention-represents a separate process

the obligation to conduct effective investigations, when the moment of the initial intervention in

of the basic law may not be from that point of view. To

see the judgment of the Grand Chamber of 9 June. 4.2009 in case Šilih against

Slovenia, complaint # 71463/01; closer to the assumptions of liability

State in terms of time for a given violation. also the judgment of the great

the Senate of 21 June. 10. in the matter of Janowiec and others against Russia

(the case of Katyn), complaint # 55508/07 and no 29520/09 (available on

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx? i = 001-127684), and

the case-law of the ECTHR there cited the issue of



ratione temporis

including a similar interpretation of the article. 9. 5 of the International Covenant on

Civil and political rights, the Committee for human rights in Geneva. To

only the Constitutional Court emphasises that the subject of this opinion is not

reviews of the application being referred to special feature article. 9. 5 of this

the Pact (closer to Nowak, m.: the u. n. Convention on Civil and Political

Rights. CCPR Commentary. 2. ed., n. p. Engel, Kehl 2005, s. 237-240).

Otherwise, the said exception (the effective management of the investigation) have not

to challenge the policy



ratione temporis

How was the above illustrated of the, on the contrary this policy has been confirmed. Finally,

It is not without significance that the same opinion of the Constitutional Court has delivered in the past

the possibility of the application of the Charter to the events that transpired before her

efficiency [cf. find of 6. 11.1996, SP. zn. I. TC 197/96 (N 118/6

SbNU 353)] when it came to the conclusion that you can hardly conclude infringement

article. 11 (1) 4 of the Charter, in 1966, when part of the Czech

(Czechoslovak) the rule of law at all.



15. The issue in the case under consideration is not whether the above mentioned

"continuing situation", since it clearly was a one-time intervention

State to personal freedom, which was finished in 50. years of the last century

the release from prison of the complainant. With regard to the separate

the nature of the right to compensation in the meaning of article 87(1). 5 (3). 5 of the Convention may be considered

a Variant that, although violations of the article. 5 (3). 1 to 4 of the Convention occurred before

the decisive day, the Convention is still applicable, for compensation

the national court to decide after that date. This option could be

(hypothetically) on account of that, after the Czech Republic became

Contracting State is required to take adequate measures to remedy the

of the intervention, although such an obligation should not, but

If so, in the form of the law on judicial rehabilitation, must

This legislation reflect the provisions of article. 5 (3). 5 of the Convention.



16. However, it cannot be the case, and despite the relatively autonomous nature

the Basic Law (see above). In general terms, the obligation

correct the injustice or injury to the State prior to the ratification of the ECHR expressed in

the above cited findings in the case against Croatia Blečić negatively, when in

paragraph 81 said that, from the date of the ratification of all acts and omissions

the State must be in accordance with the Convention, that Contracting States does not

no special obligation to remedy the injustice or injury

before the Convention, because any other approach would

undermined the principle of exclusion as retrospective, which enshrines

contract law, so the basic difference between the breach and the reparations to which

liability law is based, States [while it is true that from the

ratification date onwards all of the State's acts and omissions must

conform to the Convention (see Yagci and Sargin v. Turkey, 8 June 1995,

§ 40, Series and no. 319-A), the Convention imposes no specific

obligation on the Contracting States to provide redress for wrongs or

damage caused prior to that date (see Kopecký v. Slovakia [GC], no.

44912/98, § 38, ECHR 2004-IX). Any other approach would undermine both

the principle of non-retroactivity in the law of treaties and the

fundamental distinction between violation and reparation that underlies

the law of State responsibility; available on the

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx? i = 001-72688].

Similarly, this opinion in General (not only for restitution of property)

the ECTHR HAS pointed out in its judgment of 8 June 2004. 6.2006 (complaint No 22860/02, case

Woś against Poland-compensation for forced labour), which stated that the

such an obligation of the State under the Convention Additionally does not arise (there is no

General obligation under the Convention for States that compensate wrongs

inflicted in the past under the general cover of State authority,

available at:

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx? i = 001-75719).




17. If it is specifically about compensation under art. 5 (3). 5 of the Convention, cited

the provisions of the formation of the said claim specifically binds to the violations of the previous

paragraphs, respectively, infringement of resulting therefrom (primary) obligations

State. Where such violations occur due to the competent

international commitment to the Czech Republic still linked, then you cannot

not a violation of (secondary) responsibilities. If (yet) the Czech

Republic adopted the law on the judicial rehabilitation, on the basis of which the

condemning the decision and cancelled the complainant, however, acted on

under national law, outside the framework of their duties within the meaning of article 87(1).

5 (3). 5 of the Convention, and not even complain that the compensation does not match

He later set up "parameters", resulting from a quoted

provisions. Otherwise, there is a condition where the contract would be a positive step

the State eventually turned-in the field of international responsibility-against him

itself in the form of the load which could not at the time of the ratification of the

to predict.



18. in this context, it should be noted that otherwise would

had to pay, for example. the release of the restitution laws of liability

The United States for violations of property rights (that their release

led) before the effective date of the Convention, respectively. the obligation to remedy such a breach

the form of the return of property or financial compensation, and that regardless of when the

This occurred (i.e. well before 25 February 1948 or in an even more distant

the past). Nothing of the sort, of course, cannot be drawn from the ECtHR case-law, since the

It is of the opinion (see for example judgment of the Grand Chamber of 28 June. 9.

2004 in the matter of the complaint against Slovakia, Kopecký # 44912/98). 1

Additional Protocol to the Convention may be interpreted as meaning that the Contracting

States a general obligation to accede to the restitution of property that

was converted by their owners before the ratification of the Convention (see, to that

an overview of the case law and the conclusions which result from the work of Ranjit K, j., Mike K.,

D., Kratochvíl, j., m. Bobek, the European Convention on human rights.

Comment. 1. Edition. Prague: c. h. Beck, 2012, p. 52-57, 1283-1285).



19. The legal opinion contained in the report SP. zn. I. ÚS 3438/11 (and from it

derived decisions) is (only) on the argument that

the legal power of the "rehabilitation" of the judgment the complainant could apply for

compensation (non-material damage). This fact, however, having regard to the above

the reasons could not be considered in terms of aspect



ratione temporis

The Convention is relevant. For it is the importance of the moment to State interference

There was, therefore, where the State has violated its obligations under the article. 5 (3). 1 to 4 of the Convention

(see the above sub 8), and not when the decision was his authority that the

the intervention resulted in canceled. Other conclusion would, moreover, lead to the fact that

applicability article. 5 (3). 5 of the Convention would depend on the positive

the decision of the national court, and other cases in which it was

a negative decision or where no decision has been issued, the

remained beyond its reach, even though in both groups was a potential violation of

article. 5 (3). 1 to 4 of the Convention the same. The cancellation of conviction is therefore

(only) should be considered as a legal condition for any compensation

the national court under national law. Different conclusion without the express

support in the decision of the democratic election of the legislature would be legitimovaného

could have factored into the other areas and time periods in our history-

disastrous consequences, despite the fact that it would lead to the violation of

equality in comparison with many other people, who are victims of

infringement of past regimes in our territory.



20. It can therefore be concluded that the complainant could qualify for compensation in accordance with

article. 5 (3). 5 of the Convention, only if he (ever) a claim arose;

If it is a condition of the right infringement (violation of article 5.

1 of the Convention), not the abolition of a conviction by a national court,

the former condition could not be populated, and not

material (ratione materiae), but in terms of time (



ratione temporis

).



III. c)



Application article. 3 of Protocol No 7 to the Convention from the perspective of



ratione temporis

and



materiae



21. This provision is intended to address the issue of material significance.

Between him and the article. 5 (3). 5 of the Convention is the one fundamental difference-establishes the

completely separate claim for compensation for the material nature of the case

miscarriage. The applicability of the cited provision is contrary

infringement of the right, which is enshrined in the Convention. The consequence of this is that there

(vice versa) in terms of



ratione temporis

relevant, when the termination of a definitive (the conviction) judgement, and

not when the conviction was issued (so it could still be

before the Convention). If the final judgment (judgmental) cancelled

for the validity of the Convention, then the State is obliged to follow this

provisions. For this reason, it can be applied to the case.



22. On the other hand, in the cases examined, the obligation of the United States

to compensation on the basis of that provision, does not arise. In the spirit of the case-law

The ECTHR (judgments of 2 July. 11.2010 in case against Poland, Bachowski

complaint # 32463/06, and 3. 7.2008 in case against Russia, Matveyev

complaint No. 26601/02) a condition of the application of the provision is in addition to another

is that to cancel the final (the conviction) judgement was based on the

new or newly discovered facts, which leads to the conclusion that there was an

miscarriage. For this fact, however, should not be considered

a reassessment of the evidence in the original criminal proceedings or other legal

evaluation of the things (in the former case it was a similar situation, since

the complainant was spreading leaflets in 1959 against the Soviet Union).



23. can i Exclude the procedure based on the combination of the two provisions, namely that

by the time the Convention was non-applicability of article 6(1). 3 of Protocol No 7

to the Convention, the material from the article. 5 (3). 5 of the Convention.



24. in the light of the above, it was therefore not possible to deal with the potential

the interpretation of the right to compensation for non-material injury, taking into account

the statement of the complainant, in what way should they consist of injury whether the intangible

You can protikonvenčním the limitations of personal freedom and the alleged injury

find a causal relationship. to what extent (cf. judgment of the

January 6. 4.2000 in the case Labita against Italy, complaint No. 26772/95;

available in ASPI under ID: JUD25517CZ) has become. If

the finding of a violation of such a right is sufficient or freedom (e.g..

the decision against the United Kingdom and the Hood thing Cable and others against

The United Kingdom; available in the ASPI under ID: JUD25418CZ).



IV.



The temporal effects of the present opinion



25. As is apparent from the above, the Constitutional Court has come to the legal

the conclusion that derogates from the legal opinion has issued previously in the

relation to the application of article 4(1). 5 (3). 5 of the Convention in several of the above-cited

findings. Right to compensation for non-material injury, therefore, cannot rely on article. 5

paragraph. 5 of the Convention. The other, however, is the question of whether this different legal conclusion

necessarily must be reflected also in the judikatorním diversion in terms of the substance of the

now the decision of the present case. In search of answers to the following

answer to the question, the Constitutional Court was based on a few basic considerations.



26. In the application practice of courts is certainly possible to to so.

judikatorním deflections (changes). This phenomenon is largely natural,

because it reflects the fact that the process of interpretation and application of the law is not

static, but dynamic, and the courts, honestly seeking the most correct and

the most equitable solution decided cases, may later come to

the belief that a solution that is not voted before, for many reasons

optimal. Could for example. completely thought through all the possible argumentation

the plane of matter, they are guilty of a logical error, they perceive the need to take into account the

the development of legal doctrine, feels the need to respond to the decision-making activities

foreign or international courts or changes the overall context

of the legislation. As stated in the report, the Constitutional Court of 12 December. 12.2013 sp.

Zn. III. TC 3221/11, the "change of case-law, especially if it is about

the settled case-law, necessarily always causes a conflict between the need for legal

certainty and the requirement of the material accuracy of the Court decision. In this

Regardless, however, plays an important role internal openness of the postulate

decision making as a significant structural element of an independent finding

rights and a fair trial. Be also sure to agree

that case-law, in particular, reinforces the legal expectations stable, concerned

people, at the same time, however, there is no constitutionally protected expectations in her

, nezměnitelnost ' because technically this represents

(at most) a subsidiary source of law and as such-in comparison with the

law-may be based, significantly weaker ' expectations of the persons concerned, of the

then the factual expectations is in contrast with the usual

present an element of uncertainty about the outcome of the dispute. "



27. in any event, however, that the judikatorním deflections should

experience, rather exceptionally, and that it would therefore not be the rule. Any

judikatorní camber built above the Court which performs the unification

the case-law, namely the causes of a certain "rozkolísání" decision-making activity

lower-level courts, creates legal uncertainty and may lead to


the more difficult the predictability of the law. Each court that to judikatornímu

deflection of accesses, therefore, must be very well aware of these risks and

"negative externalities", and should therefore respect the principle

austerity and restraint arrangements. Simply put, even stable (albeit not

optimal) case-law is the value per se. As in the past, therefore,

the Constitutional Court has repeatedly stated, change the settled case-law can be undoubtedly

be considered a negative in terms of the principles of legal certainty and confidence

citizens in the law, it cannot, however, be considered a negative in General, by contrast,

the process of "improving" the law is beneficial, and therefore desirable, and

for this reason, cannot escape or the judiciary, including the Supreme courts

[cf. findings from 12 October. 5.2009, SP. zn. IV. TC 2170/08 (N 117/53 SbNU

473) and of 5 November. 8.2010, SP. zn. II. TC 3168/09 (N 158/58 SbNU 345)].

Not always, of course, such a change can be considered truly necessary, and

Therefore, the Constitutional Court in this regard in the past has accentuated the principle

restraint; the rule of thumb should be that it is not completely clear which

from interpretations deserve priority, should be maintained so far

case law (



non liqued

).



28. In the case of the Constitutional Court, it should be noted, and pointed out that his

the task is the protection of constitutionality, which is necessary to perceive both as

objective category, in the case of a constitutional complaint, however, in particular

as the imperative of protection of constitutionally guaranteed fundamental rights and freedoms.

This task, though of course entrusted everything to the courts (article 4 of the Constitution of the United

the Republic) is the most emphasized by the Constitutional Court.



29. Therefore, if in a particular case, the Constitutional Court is considering whether the

no need to proceed to the judikatornímu diversion, cannot abstract from

legal relationships whose interpretation would be changed as a result of this diversion.

With a considerable dose of simplification of these relationships can be divided into

vertical and horizontal relationships, when the vertical relationship is meant to be

the relationship between the individual and the State of pure (or public authorities, see for example.

tax management), while the horizontal relationship takes place primarily between

private bodies to each other (typically a civil dispute). Otherwise,

speaking, while typically vertical relationships are the consequences of judikatorního

diversion may negatively affect either only by the State (public authority),

or only for the concerned individuals, it is for the horizontal

the relationship in a way that is reflected in the legal realm of a private

the body always. The Constitutional Court should therefore carefully weigh the impact of

any diversion of the most judikatorního if if its

the negative effects are reflected in the realm of private persons whose fundamental rights

is obliged to protect.



30. Thus, in any judikatorní departure undoubtedly qualifies to disrupt

referred to legal certainty and stability of the case-law, always, with the largest

caution should the Constitutional Court access to just those cases where

This is a purely vertical relationship and implications of the judikatorního deflection is

reflected negatively only for individuals. Both of the Constitutional Court

a projecting steadily, is based on the principle of the primacy of the individual against the State,

and therefore to the protection of his fundamental rights constitutionally guaranteed right to

of public authority. The task of the Constitutional Court, therefore, is not and cannot be

protection of vrchnostensky the withdrawing State from individuals, but just

on the contrary: the protection of fundamental rights of the individual against the State, or

of public authority.



31. in the present legal question, it is clear that the judikatorní diversion

that would consist only of the impossibility of finding a procedure under article 5(2). 5

paragraph. 5 of the Convention in the case of non-material injury claims put forward for

interference with personal freedom, which occurred before the Convention provides for the

The Czech Republic, would be in the case of purely retrospective solution necessarily lead

how these applied to claims which have not been

decided. Should this happen in a situation where the Constitutional Court for a period of

a few years of their legitimacy and recognized when these claims as a result of

the case-law of the Constitutional Court and the ordinary courts have accepted [see the findings of the

on 23 December 2005. 5.2012 SP. zn. I. ÚS 3438/11 (N 111/65 SbNU 497), of 4 November 1993. 3.

2013 SP. zn. IV. TC 3439/11 (N 37/68 SbNU 379), of 30 November 2005. 4.2013 sp.

Zn. IV. TC 662/12, of 30 November 2005. 5.2013, SP. zn. II. the TC, the 4877/12 of 5 May 1999.

11.2013, SP. zn. IV. TC 500/13 of 24 July 2003. 4.2014 SP. zn. IV. TC

644/13 and IV. TC 2265/13 (all available at http://nalus.usoud.cz)].

Some of the appellants, therefore, apparently only on the basis of knowledge of this

case-law of its claims raised, as expected, that they will be

granted. From the nature of things is also obvious, that this is only for a limited

the number of cases in which these findings may directly relate to judikatorní.



32. On the basis of these more general considerations, it is therefore the Constitutional Court dealt with the

whether out of sheer inability to procedure referred to in article 14(2). 5 (3). 5 of the Convention necessarily

It follows that these-now-forward claims cannot be accepted.

He came to the conclusion that it is not.



33. As is apparent from the above, judikatorní diversion, which is

This opinion is executed, can have either a prospective, or also

retrospective effects. Regarding its prospective effects, i.e., in the

relation to the potential management, which has not yet been started, you cannot

make any reasonable doubt, and therefore there is no need in this direction or

closer to argue.



34. in relation to the effects of retrospective, however, the Constitutional Court is based on the

the fact that the cases in question is a purely vertical relationship between

the State and the applicant for compensation for non-material damage, which is why

use (albeit incorrect) legal opinion cannot cause damage to the

the legal realm of other persons. It must be presumed from the fact that the constitutional

Court rules for situations where several other and legally comparable

cases have already been granted the appellants. To do in this situation

judikatorní departure to the detriment of several of the appellants (NET

prospektivita), in whose case has not yet been granted, should therefore

The Constitutional Court considered grossly unfair, and create the additional

inequality and injustice, and even within this group of people that are

in principle, they were in a comparable legal situation properly by

their rights, however, only some of them had that "luck" that their

the cases were decided before this judikatorním departure.



35. It is notorietou to remind that the question of the judicial rehabilitation

represents the (only) one of the components of efforts to deal with the

předlistopadovým of the totalitarian Communist regime, which violates the

fundamental rights and freedoms of individuals. In its interpretation should therefore be

vote rather than restrictive, but extensive access. Otherwise,

Indeed, even in our conditions could populate a sad sigh known

the East German disidentky and a campaigner for human rights Bärbely

Bohleyové that the margo reckoning with the past, said: "the inhabitants of the GDR

wanted justice, and instead get the rule of law. "



36. The Constitutional Court, therefore, concludes that the judikatorní camber made in this

opinion cannot be interpreted as meaning that it applies retrospectively, even on

the proceedings, which were initiated before its release, but it should be

apply only



Pro futuro

(prospectively).



The President of the Constitutional Court:



JUDr. Rychetský v.r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, took the opinion of the full Court judges Jan

Filip, Vladimir Crust, Vladimir Sladecek, and Radovan Suchánek.