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,
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.
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.
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.
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
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
, paragraphs 111-116 and 130-131 points (change of case-law, to the detriment of
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
), 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
Application article. 5 (3). 5 of the Convention from the perspective of
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
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
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,
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
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
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 (
Application article. 3 of Protocol No 7 to the Convention from the perspective of
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
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).
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 (
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
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.