79/2009 Sb.



The COMMUNICATION FROM the



The Constitutional Court



The plenary in the composition of the Constitutional Court, Francis Skinner, Vlasta Formankova,

Turgut Güttler, Pavel Holländer, Ivana Janů, Vladimir Crust, Dagmar

Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský,

Miloslav Výborný, Elisabeth Wagner and Michael on the April meeting on

December 16, 2008 adopted pursuant to section 23 of law No. 182/1993 Coll., on the constitutional

the Court, in the case of the legal opinion of the Constitutional Court and the Senate in the case conducted by the

under SP. zn. I. ÚS 1847/08, which derogates from the legal opinion

The Constitutional Court finding of SP. zn. I. ÚS 689/05 of 21 December.

June 2006, from SP. zn. III. TC 473/01 of 13 December 1990. December 2001,

from finding SP. zn. III. TC 133/03 of 29 April. January 2004, from SP. zn.

I. ÚS 83/04 of 29 April. June 2005 and of finding SP. zn. I. ÚS 586/05 of

on 9 April. October 2007,



This opinion:



The constitutional complaint is directed against the final decision

the Court of appeal, which was rejected in civil proceedings

appeal from the complainant, it is inadmissible under section 75 para. 1 of law No.

182/1993 Coll., on the Constitutional Court, as amended, if the

the complainant has not brought an action against this decision for annulment

pursuant to § 229 paragraph. 4 of the code of civil procedure.



Justification



(I).



1. On 24. July 2008 was the Constitutional Court delivered a constitutional complaint

the complainant, p. d., which seeks the annulment of the resolution of the High Court in

Olomouc, Czech Republic of 9 September. April 2008-No. 5 Cmo 130/2008-46. Proceedings in respect of

referred to a constitutional complaint is conducted under SP. zn. I. ÚS 1847/08 (note.

Red. the resolution was subsequently released: SP. zn. I. ÚS 1847/08 dated March 17.

December 2008, available at http://nalus.usoud.cz). The constitutional complaint

facing against the final resolution of the Court of appeal, which was

According to § 43 para. 2 in conjunction with section 211 of the civil procedure

rejected the complainant's appeal against the order of the regional court in Brno

SP. zn. 50 Cm 20/2007 of 3 May. December 2007, in which this Court rejected

his proposal on the issue of a copy of the list of shareholders-owners of registered shares

-the company's Clothing Company, and the reason for the rejection of the appeal was that

that the complainant in spite of the Court in a timely manner of their blanketní appeal nedoplnil.

The complainant did not file an action against the contested decision for annulment

pursuant to § 229 paragraph. 4 of the code of civil procedure.



II.



2. finding SP. zn. I. ÚS 689/05 of 21 December. June 2006 (N 126/41 SbNU

575) ^ * it was a constitutional complaint against the decision of the appeal court,

that appeal was rejected by the complainant pursuant to § 43 para. 2 in the

conjunction with section 211 of the civil procedure, it was a similar question,

What is dealt with in the case conducted under the SP. zn. I. ÚS 1847/08. Furthermore, it is

about find SP. zn. III. TC 473/01 of 13 December 1990. December 2001 (N 198/24 SbNU

491), in which the complainant has challenged the appeal court's rejection of the resolution of the

because of the delayed appeal under section 218a code of civil procedure, find

SP. zn. III. TC 133/03 of 29 April. January 2004 (N 14/32 SbNU 123) and find

SP. zn. I. ÚS 83/04 of 29 April. June 2005 (N 132/37 SbNU 665) in which

the constitutional complaint was directed against the decision of the appellate court to reject

the appeal as filed by an unauthorized person, under section 218 (a). (b))

Code of civil procedure, and find SP. zn. I. ÚS 586/05 of 9 April 2003. October

2007 (available at http://nalus.usoud.cz), which concerned the constitutional

the complaint the complainant, he ran against the resolution of the Court of appeal,

the appeal which was rejected as inadmissible pursuant to § 218 (a). (c))

conjunction with section 202 paragraph. 1 (b). (g)) code of civil procedure.



3. In the above findings, the Constitutional Court decided the findings on the merits

While the fact that an action for annulment, the complainants did not attack

the final resolution of the Court of appeal, which rejected the appeal,



implicite

did not consider it a reason of inadmissibility of the constitutional complaints.



4. On a proposal from the judge-rapporteur and the Senate of the Constitutional Court, which would be

According to the work schedule of the matter I ÚS 1847/08,

to the conclusion that the constitutional complaint should be considered inadmissible

under section 75 para. 1 of the law on the Constitutional Court, because it is directed against the

the final resolution of the Court of appeal, which rejected the appeal

the complainant, and the complainant he did not contest the decision against which an action for

annulment, § 229 paragraph. 4 of the code of civil procedure allows.

Therefore, the rapporteur could be rejected pursuant to § 43 para. 1

(a). e) of the Act on the Constitutional Court.



5. that the legal conclusion, however, deviates from the legal conclusion of the

the Constitutional Court



implicite

It was based on the above findings. I therefore submit the Senate plenary session

Draft opinion of the Constitutional Court, the plenum of the Constitutional Court would

constituted a legal opinion and Senate aprobovalo. Otherwise, the Senate, was I.

and the judge-rapporteur in its decision is bound by the legal opinion

resulting from the previous findings and constitutional complaint SP. zn.

I. ÚS 1847/08 be considered admissible and eligible on merits

consultation.



III.



6. The plenary of the Constitutional Court came to the conclusion that they can regard the legal

the opinion of the Constitutional Court and the Senate. Pursuant to § 229 paragraph. 4 of the code of

Code of civil procedure, a participant may challenge the action for annulment of a final decision

the resolution of the Court of appeal, which rejected the appeal. The participant,

the appeal was rejected, on the basis of

the provisions of procedural means, on the basis of let

examine whether the ávěr the Court of appeal that the appeal had to be

rejected, is in accordance with the law and with the constitutional order. From

for this reason, it should be an action for annulment under that provision

considered as procedural means by which exhaustion is a prerequisite

the admissibility of a constitutional complaint. The said legal opinion was

accepted in a number of resolutions of the Constitutional Court, which was to reject the

constitutional complaints as inadmissible pursuant to § 43 para. 1 (b). (e))

the law on the Constitutional Court on the ground that the complainant has not submitted in the

Action for annulment (e.g. resolutions of 13 August 2007 sp.

Zn. I. ÚS 1988/07, resolution of 16 October. January 2008, SP. zn. IV. TC

2618/07, resolution of 18 May. June 2008, SP. zn. II. TC 1276/08,

resolution of 18 May. September 2008, SP. zn. III. the TC 2290/08, available at

http://nalus.usoud.cz).



The President of the Constitutional Court:



JUDr. Rychetský in r.



* Note. Red. A collection of findings and resolutions of the Constitutional Court, Volume 41, finding

# 126, p. 575