On The Proposal To Repeal § 137 Paragraph. 1 Code Of Civil Procedure

Original Language Title: ve věci návrhu na zrušení § 137 odst. 1 občanského soudního řádu

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275/2014 Coll.

Constitutional Court
On behalf of the Republic

Constitutional Court decided under ref. Nos. Pl. US 39/13, 7 October 2014 plenary
court composed of the Chairman Pavel Rychetsky and judges Louis David
Jaroslav FENYK, John Philip Vladimir crust Lichovník Thomas, John
Musil, Radovan Suchanek, Vladimir Sládečka, Catherine Šimáčková
(judge rapporteur), Vojtech Šimíček, Milady Tomkova and George
Zemanek on the proposal in Chrudim District court for the annulment of § 137 paragraph. 1
Act no. 99/1963 Coll., Civil Procedure regulations, as amended
regulations, with the participation of the Chamber of Deputies of the Czech Parliament and Senate
Czech Republic as parties, as follows:

I. The petition is denied.

II. The principle of equality of the parties in accordance with Article 37 par. 3
Charter of Fundamental Rights and Freedoms fills granting lump-sum refund
as the reimbursement of cash expenses according to their illustrative list in §
137 paragraph. 1 of Civil Procedure and the party
lawyer who is not represented, and in situations in which the participant
management represented by a lawyer was granted such compensation according to § 13 paragraph
. 3 lawyers tariff.


Definition matter and recapitulation draft

First Constitutional Court on 13 8th 2013 received a petition from the District Court in Chrudim
(hereinafter "petitioner") pursuant to Article. 87 paragraph. 1 point. a)
Constitution of the Czech Republic (hereinafter "Constitution") and pursuant to § 64 par. 3 of Law No.
. 182/1993 Coll., On the Constitutional Court, as amended, (hereinafter
"the Constitutional Court Act") to annul § 137 paragraph. 1
Act no. 99/1963 Coll., Civil Procedure Regulations, as amended, or
least annulment of the word "finished" in this provision (ed.
Constitutional court: in that provision is used in the shape of "finished"). Alternatively
draftsman proposes that the Constitutional Court interpretative statement
established policies and limits for determining compensation
small and overhead costs that regularly arise subscribers Civil
management who are not represented by a lawyer.

Second The contested provision, according to the petitioner in conflict with Art. 36 para. 1
and Art. 37 par. 3 of the Charter of Fundamental Rights and Freedoms (hereinafter
"Charter"), because some of the successful parties are obliged || | show what cash expenses they incurred in the proceedings, while others are deprived
this burden, just that the costs will apply a flat rate based on
normatively based assumption that the procedural step
are regularly associated cash expenses in the amount of 300 CZK.

Third The petitioner recalls that the general compensation
regularly occurring expenses related to procedural acts činěnými
in civil court proceedings is one of the few possible solutions if it is to be
civil proceedings and effective if the state to honor its commitments
flowing among other provision of Art. 1, 4 and 90 of the Constitution and Art. 36 et seq
Charter. This solution contains provisions § 2 para. 1 and § 13 of the Decree
Ministry of Justice no. 177/1996 Coll., On lawyers' fees and reimbursement
lawyers for providing legal services (lawyers fare), as amended in
legislation which provides for a flat-rate minimum amount
finished expenditure which participants represented by a lawyer paid
losing party. This is done by the petitioner on the edge of constitutionality, because
decree is only formally performing § 22 of Law no. 85/1996 Coll.
On Advocacy, as amended.

Fourth The petitioner points out that this lump-sum reimbursement in practice
treated as a kind of substitute overhead, however, to the amount already
today does not fully reflect the legal and technological developments or
actual nature of the act, which sometimes does not nor allow for the establishment of the expenditure to be
this fixed allowance covers. The very existence of the lump sum payment
cash expenses petitioner criticize, but refers to the violation
equality of the parties based on the fact that § 137 paragraph. 1
Civil Procedure associated with the emergence of compensation for a group of participants at
establish the creation of cash expenses.

Fifth To address this inequality petitioner mentions first use
§ 11 paragraph. 1 and 2 and § 13 para. 3 lawyers tariff on the basis of direct application
article 37 par. 3 of the Charter, which, however, faces a requirement for proceeding under §

137 paragraph. 1 Code of Civil Procedure, and the result is the preservation of the above-mentioned inequality
, which documents the petitioner to proceedings, from which it emerged
proposal. It refers to a typical consequence
legal regulation, which calls for them to be served legal actions connected to the Plaintiff
a modest cost, but the cost legally not represented
defendant not to be compensated. The situation is similar
behalf of institutional guardians. The petitioner recalls that
such adjustment makes legal laity to be represented by a lawyer, because
only have the opportunity to achieve at least the lump sum
cash expenses. Unconstitutional treatment of reimbursement parties
moreover also associated with deficits in the Czech legal aid system, which
warned the Constitutional Court as a protector of the rights of the parties and their


The proceedings before the Constitutional Court

6th The Constitutional Court, under § 42 para. 4 and § 69 of the Law on the Constitutional Court
sent the petition to annul the contested provisions
Chamber of Deputies and the Senate of the Parliament of the Czech Republic, the Government and

7th Ombudsman administration announced that their right to join
control exercised, while the present proposal District Court in Chrudim

8th Government administration said it also its right to intervene
exercised, warned however that is currently within
legislative process at the government level discussed by the Legislative Council of the Government
government bill amending law no. 99/1963 Coll.
Civil procedure, as amended, and Act no. 120/2001
Coll., on court Executors and execution (the execution procedure Act) and amending other
laws, as amended, (kept in electronic library
eKLEP under ref. no. 454/14), whose aim is, among other
order and the subscriber nalézacího and enforcement proceedings, which was not
represented by a lawyer, he was entitled to an award of finished
expenses and loss of earnings in the amount determined by ministerial decree, without having to
expenses and lost profits show. Government therefore merely expressed fears
of interpretative problems that would result in any acceptance of an eventual second
statement of claim, namely the abolition of the word "finished" in the provisions of §
137 paragraph. 1 of the Civil Procedure Code.

9th Deputies through its chairman Jan Hamáček
recapitulated the procedure for adopting the Rules of Civil Procedure and the relevant amendments
. Stressed that these laws were always approved
necessary majority of deputies of the National Assembly of the Czechoslovak Socialist Republic
, Federal Assembly of the Czech and Slovak Federal Republic
, as well as the Chamber of Deputies, were signed
appropriate constitutional authorities and were duly and announced that the legislative body
always acted in the belief that the adopted laws are in accordance with
Constitution and our legal order.

10th The Senate, through its chairman Milan Stech pointed out that although it was
§ 137 paragraph. 1 since the adoption of the Civil Procedure
changed several times, enacting "cash expenses of participants'
against which the present application is directed, is in it from the beginning, ie from
1963. the above facts have not changed nor the last big change
civil Procedure (Act no. 293/2013 Coll.)
taken in connection with the recodification of private law and approved by the Senate
well within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner
. It is precisely in this last major "revision"
private procedural law, by Act no. 293/2013 Coll., Which
amends Act no. 99/1963 Coll., Civil Procedure Code, as amended || | amended, and certain other laws, the legislature dealt
Civil Procedure Code as a whole, and certainly would on such occasions - in
event that was on the unconstitutionality of the contested provisions convinced -
him way defined by the Constitution and relevant Rules of Procedure on the situation
responded. The Senate itself no change to § 137 paragraph. 1
Civil Procedure Code in connection with the discussion of the draft law no. 293/2013 Coll
. or sometimes not initiated, respectively. not on the issue of costs
no, much less constitutional objections.

11th The Constitutional Court considered whether Czech law distinguishes
proving cost-represented and unrepresented parties responsible
reporting costs in neighboring countries.
Purpose of this comparison was to determine which countries whose civil procedural rules are similar to Czech
systematically modifying the civil process, are allowed to
lump sum cash expenses (ie. A similar type of claim) demanded
the successful tenderer, whether represented by a lawyer or notary, or
not; and in which countries could otherwise a lump sum compensation
cash expenses (ie. a similar type of claim) require only participant
represented by a lawyer or notary. From this comparative analysis showed that
from 24 countries examined is a difference between represented and unrepresented
participants in terms of the allocation of the lump sum
certain costs (telecommunications, photocopying)
Only Germany and Slovakia.


Evaluate claims of unconstitutionality

12th The Constitutional Court first considered the petitioner to
application for annulment of the contested provisions and concluded that
petitioner's locus standi. The appellant in the case which
submitted to the Constitutional Court applied the provisions of the Civil Procedure
on costs and pay them, performed their application according to your opinion
constitutional manner by filling gaps unconstitutional, and the appellate court
in the relevant case concluded that this application is not
possible. Petitioner, therefore, assumed if the application saved him
appellate court is inconsistent with the constitutional rights of the parties to
fair trial and equality of all participants in judicial proceedings
(Art. 36 para. 1 Art. 37 par. 3 of the Charter), had no choice but
turn to the Constitutional court to resolve the issue of the constitutionality of the contested provision and its
constitutional interpretation. It is not excluded that
pertinently was challenged before the Constitutional Court, together with § 137
Civil Procedure and § 142 of the Civil Procedure governing
allocation of the costs, however, the Constitutional Court interpreted the proposal as
petitioner, so that he could discuss the fact that he is aware that the petitioner
after seeking the interpretation of solving the loophole or cancellation
legislation that favors the regime demonstration cash expenses
party represented by a lawyer compared the participant unrepresented .
The problem of inequality is caused not only by the contested provision
Civil Procedure, but it also implementing provisions
lawyers tariff. The judge of the court is indeed summoned by Art. 95 of the Constitution
assess compliance with the law decree itself, but in consideration
situation petitioner finds a lump sum compensation costs fixed
advocacy tariff constitutionally consistent and in harmony with the principle of economy and
the efficiency of judicial proceedings; conflict with the law
party to the proceedings to equal treatment before the court only happened if
this lump sum compensation could not admit party is unrepresented. The aim
petitioner in the present case was not complicated procedural obligations
represented by the participants, but to facilitate and simplify the process of proving
costs for unrepresented parties. The Constitutional Court
therefore understand the proposal and the proposal discussed, since the refusal
its consideration would be inconsistent with its constitutional role and manifestation
exaggerated formalism.

13th In assessing whether the contested provisions of the Civil Procedure
and related provisions of the lawyers' tariffs are inconsistent with
constitutional order, or whether they are indeed unconstitutionally applied, however, it is possible to interpret
on the possibility of granting the flat-rate compensation constitutionally
conformist, as suggested by the petitioner not only in its design, but especially
its own previous decision-making practice, the Constitutional court first considered
sense of this legislation.

14th First, it should be noted the version applicable under the provisions of §
137 paragraph. 1 of the Civil Procedure Code, together with the text of the closely related paragraphs 2

"(1) The costs are mainly cash expenses
participants and their representatives, including court fees, lost earnings
participants and their legal representatives, costs evidence interpreter, compensation for VAT

Values, reward for representing a reward for a mediator under the law on mediation
first meeting with the mediator ordered by the court pursuant to § 100 paragraph.

(2) Remuneration for representation among the Costs only if the agent
lawyer or notary within their authority established by special legislation
patent attorney or the extent of authority
determined by special legislation. "

15th from the cited provisions that, if the party is not represented by a lawyer
is entitled particular cash expenses.
comments literature (see Drápal, L., Bures, J. et al., Civil procedure Code
I .: § 1 200Z. Commentary. Praha: CH Beck, 2009, p. 945)
defines cash expenses beyond the cost of other express provisions in
§ 137 paragraph. 1 civil Procedure mentioned (for unrepresented
participants in terms of court fees, loss of earnings, costs evidence and
interpreter) as follows: "the cash expenses of participants (secondary
participants) and their representatives, alongside the costs associated with shipping
their court filing (postage) especially fare, local freight,
meals and dormitory, or also needed edition of the guide and its
loss of earnings. "Finished spending lawyers, notaries and patent attorneys paid a flat rate determined
the amount having to cover the costs involving the
domestic postage, local telephone calls and transportation
then analyzes this comment alone.

16th The Constitutional Court has repeatedly ruled on the principles of controlling
granting of compensation incurred cash expenses, which occurs by
§ 142 paragraph. 1 in conjunction with § 137 paragraph. 1 and 2 of the Civil Procedure Code.
Probably nejsouhrnněji did so in its judgment. . I. ÚS 3923/11 dated
29th 3. 2012 (N 68/64 SbNU 767), in paragraph 17: "The basic principle which dominates
decisions on reimbursement of civil procedure at issue is the principle
success in the case expressed in § 142 paragraph. 1 Act No. . 99/1963 Coll.
Civil procedure, as amended. this principle is reflected
idea that whoever reasonably defend his individual right or
legally protected interest, should have the right the reimbursement of costs, which in this procedural action
reasonably expended against the participant who
into the legal sphere of unreasonably interfering. Right
successful litigant against the unsuccessful party proceedings to recover costs based on the basic structural
the principle that in a civil controversial process claims
ie. the two-party system in an adversarial position, whereby
parties act as peer opponents applying the procedure
conflicting interests. the success of one litigant is so
failure while the procedural opponents, with each party within
of the Code of Civil Procedure tries through permissible means
achieve their own victories and defeats of the counterparty. If the procedural side
successful, it should bear the costs of its opponents that when it
effectively spent, because it would be contrary to the protective function of civil rights
procedural, should not permit civil proceedings to remove the shrink | || property sector caused only by a party that was forced reasonably
defend their rights, to which someone else interfering. "

17th prevailing case law of civil courts then shows that cash expenditure within the meaning
§ 137 paragraph. 1 Code of civil procedure must
unrepresented party to prove if it wants to be in accordance with § 142 of the civil procedure Code
obtain reimbursement.
example can serve as the resolution of the Regional court in Hradec Kralove - branch office in
Pardubice sp. Ref. 18 Co 229/2013 dated 27. 6. 2013, which was
proceedings, from which emerged a proposal now under consideration, canceled the original resolution
petitioner who wanted unrepresented defendants admit flat
cash expenses. the regional court here specifically stated: "it is clear
without being contrary to the principle of equality of parties that finished
expenses of the defendant in connection with these proceedings can not agree with spending || | what would the defendant was obliged to pay his lawyer
for the provision of legal services, should be represented. "

18th While the proportion of participants can do the costs to them
if their success in managing accorded to courts, exercise and reward

For representation, part of which is in accordance with § 13 para. 1
lawyers plan to "reimbursement of cash expenditures reasonably incurred in connection with
providing legal services". § 13 par. 3
tariff lawyer adds: "Unless the lawyer with the client on a flat
amount as compensation for domestic postage, local telephone calls and
delivery, amount of CZK 300 one act of legal service. "
It is moreover generally established practice that even when the lawyer and his client have agreed
higher lump sum, the general courts recognize only
advocacy tariff adjustment amount CZK 300 per action (cf..
Comment to § 137 paragraph. 1 Code of civil procedure in Jirsa, J. et al.
civil proceedings: judiciary comment. Praha: Havlicek
Brain Team, 2013 electronic version available in the legal information system ASPI
) .

19th As the first compensated at a flat rate of expenditure is therefore stated
domestic postage. That is the cost, which may well prove even
unrepresented party, but a lawyer, and thus indirectly
represented subscriber already usually occur virtually all
not, as written communications with lawyers from the courts has been increased | || often replaced by communication through data boxes. With them
relatively challenging, financially as well as a skill, their very
acquisition, or activation; single communications act however
then practically free, so it would be difficult, even in diameter,
determined what about the cost of "data postage" in relation to
one act of legal services. Similarly billing "local tariffs" is already
itself archaism, because in an era when most
telephone communication is carried out through mobile phones, makes no sense
distinguish between local and long distance calls, and it can be assumed that today | || lawyers do not usually calls charged per minute or individual
calls, but covered by a lump payment of the mobile operator, so
single call made to a court or to the actual principal itself usually does not establish a separate
precisely quantifiable expense. Perhaps the only freight
sense adjustments remains the same as at the time of adoption lawyers tariff.
In its entirety, however, the costs to be compensated by a fixed allowance,
created a much lesser extent than at the time of adoption lawyers tariff
or apply more generally to the operation of the law firm
(payments for Internet and telephone flat rate), not to individual acts.
Fixed reimbursement of cash expenses has yet cover costs
in relation to a specific procedure or operation, attorney arise only
would be difficult to quantify. If someone carries the expenses to be covered by
flat rate, then it will, paradoxically, often unrepresented parties
management, usually destitute data box, than lawyers, or their representation
participants. Additionally, any unrepresented parties to
account statement for the services of mobile operators probably easier to recognize
call made to the court regarding his management of other calls (u
reporting additional costs covered by lump-sum reimbursement has also facilitating this
Void) itself difficulty tracing these figures and
reporting before the court, which for them is often quite unusual and difficult
manageable, this "simplification" more than compensates.

20th In the position represented and unrepresented parties therefore arises
inequality in proving the costs incurred, as a lawyer
represented party may not be part of the record cash expenses and
prove the contrary participant without legal representation can not
possibility of flat-rate compensation costs use. This inequality can be turned
and using the modified test of direct discrimination, which can also indicate
as a test of equal treatment [judgment file. Nos. Pl. US 49/10 of 28 first
2014 (44/2014 Coll.), Paragraph 35]. Test of equal treatment consists of the following steps
assessing these four questions: 1.
comparable in terms of individuals or groups (ie. In terms of the parties) ?;
Second It is treated differently ?; 3. different treatment to the party concerned
to the detriment of the dispute (the burden of saving or denying good) ?; 4. Is this
justified different treatment, ie. A) pursues a legitimate interest b)
is reasonable?

21st Look to this test, it can be stated that the first representation and

Unrepresented participants are in a comparable situation because they are
participants of the same management and representatives of both the represented party, and thus indirectly
itself represented by the participant and the participant
unrepresented produced similar costs arising mainly
of communication with the court; 2. treated differently, as in the case
participants represented their representatives may apply
expenses incurred simply a flat rate, while unrepresented parties is
must prove more demanding; 3. This different treatment is unrepresented
charged to participants, because they put more burden in terms
documenting the costs associated with the management; 4. Those finish watching
legitimate interest, namely to reflect the fact that lawyers as a legal
professionals representing at least management can hardly evidence
document costs to specific act of legal services;
such a difference in treatment is manifestly disproportionate. The main reason for this inadequacy
, ultimately violating article 37 par. 3 of the Charter
is the fact that for unrepresented parties posited
disproportionately larger burden because they must individually demonstrate specific
costs, they want if to obtain their refunds; In contrast, the representation
participants may not prove cost and can conversely obtain the amount
that their actual cost is often considerably exceeds
it is set at a flat rate.

22nd Imperative of equality represented and unrepresented parties and
demonstrating in cash expenses is the fulfillment
important principle of "equality of arms" participants in the trial, which is essential
part of the right to a fair trial, as the Constitutional Court stated
e.g. in its Judgment. Nos. Pl. US 15/01 dated 31. 10. 2001 (N 164/24
SbNU 201; 424/2001 Sb.). In terms of sub-constitutional law and granting
compensation costs, moreover otherwise it is not relevant whether the
party represented or not, entitled to compensation for costs arising directly
party, not his lawyer. Contrary
right to equal treatment or to "equality of arms" and would therefore
situation where they would be favored parties represented by a lawyer
compared to unrepresented parties.

23rd The affected unequal treatment in specific procedures
constitutes a breach of equality of the parties, namely the rights guaranteed
in article 37 par. 3 of the Charter, as it highlights the petitioner.
According to article 37 par. 3 of the Charter, all participants are equal in the procedure. In
discussed herein due to legal and other adjustments, however, the participants in the proceedings
are equal, partly because unrepresented participants must
documents show expenses, which represented the participants need not demonstrate
; partly because increased lump-sum reimbursement of cash expenses
does not correspond to the trend, which is a de facto reduction in the amount of
expenses that should be in accordance with § 13 para. 3 lawyers tariff
lump sum covered, so it's more of a bonus for the winner in the proceedings and is not
not clear why such a bonus should be accorded only the winner
represented by a lawyer.

24th The legislature thus actually got to the opposite extreme than in the so-called.
Predicative Decree, ie the Ministry of Justice Decree no. 484/2000 Coll
., Stipulating a flat rate of remuneration for
representation of a party by a lawyer or notary in
deciding on the reimbursement of costs in civil proceedings and amending the Decree of the Ministry of justice
no. 177/1996 Coll., on lawyers' fees and reimbursement
lawyers for providing legal services (lawyers fare) in || | amended. It was canceled by the Constitutional Court file.
Brand. Pl. US 25/12 of 17. 4. 2013 (116/2013 Coll.), Which was, among others
criticized following: "The costs of legal representation calculated on the basis of predicative
decree unreasonably burden the unsuccessful party management
especially in situations where the value of the subject matter ranges
lower bands, especially in the Gaza bagatelnosti.
awarding of costs is manifestly disproportionate to the nature and content of the dispute.
enforce the civil liabilities in such cases, while in terms of
general justice marginal issues comes to the fore

Interest to creditors to benefit from the leadership of the dispute itself. "
In other words, the Constitutional Court in a single folder for costs
criticized that it is equally uneven decided, therefore, that even in defeat
marginal disputes is burdened with obligations to pay the costs
similar amount as a loss in disputes nemarginálních (and also in the amount of high
exceeding the amount the defendant itself).

25th in the case now under consideration, the Constitutional court finds the opposite problem because
on equal is actually decided unevenly, which in turn manifests itself most visibly in marginal
disputes involving the loss burdened
among other things, to repay the winner of a lump sum fixed cash expenses,
however, only if the successful party represented by a lawyer, if
would in turn represented party lost, the payment of a lump sum provided
expenditure against unrepresented party gambles.

26th This inequality, which in certain proceedings constitutes an infringement of the equality of participants
procedure under Article 37 par. 3 of the Charter, has furthermore
in certain types of disputes and the nature of the systemic problem of the Czech justice.
Constitutional Court has repeatedly pointed out that the long run is not
legislative solution to the problem of disputes between "serial" legally represented
applicants for whom the number of them during litigation files relevant motivation and
total amount received these disputes on the reimbursement of costs and
legally unrepresented defendants for whom proceedings usually
completely new events in which it is difficult to navigate, while
dispute may be conducted frequently on such a small amount that worthwhile to let
legally represent. For example, in resolution file. . I. ÚS 3372/11 dated
24th 7th 2013 (available on http://nalus.usoud.cz) the Constitutional Court
critical remark to address the allocation of compensation costs in a situation where
entitled to a cash settlement standard enforced by other than the original
( originary) the creditor and plaintiff claims the defendants traded
the profits to be generated at a flat rate set reimbursement of cash expenses
trial (if not yet the decree by the Ministry of justice
no. 484/2000 Coll.). The same view later took
Constitutional Court also in its judgment. Ref. IV. US 3678/12 dated 18. 12. 2013 (available on http://nalus.usoud.cz
). The "free-riding (disproportionate raising of
costs) for small claims against the citizens" to the Constitutional Court expressed
critical in its judgment. . I. ÚS 195/11 dated 15. 12.
2011 (N 215/63 SbNU 473). This of course does not have to be lawyers
denied the right to make a profit, as is clear from their
entrepreneurial freedom guaranteed by Article 26 of the Charter. This gain, however, not be produced using
lump sum reimbursement of cash expenses. So if you created a practice that
lump sum cash expenses understood as a means of creating
profit hundredfold repeated actions, it is also contrary to the purpose of this procedural
Institute and also contrary to the principle of equality

27th It was the violation of equality of the parties in this type of litigation
aptly points petitioner in paragraph 11 of his proposal: "The rule of law can not be
trial on a larger scale exclusive arena for people
who know the magic words like â špromlčení € 'â € šprekluze' or tricks
how to avoid transmission, or vice versa formally delivered so
about the other party actually did not know. If any plaintiff suing quite often
receivables that are far for the time limitation, it raises
among others. i question whether the defendants passivity with which are calculated, not just
caused temporal distance from the events that would give rise
defendants claim ... "|| |
28th Here it should be noted that it is of such a nature and had a dispute, which arose from
proposal currently under discussion. In it was the plaintiff
STAY ACTIVE INC. filed against the defendant Ivana Hápová proposal for issuing
electronic payment order to pay the amount of CZK 6,434 as
arrears from the lease price and CZK 1,000 as a penalty and further
payment of court fees and attorneys fees. This was just a
one of the assets transferred earlier to the plaintiff under a contract of assignment
large number of receivables. Both the defendant and the amount of compensation
costs were initially granted to the applicant in electronic payment orders
District Court in Chrudim sp. Ref. 111 EC 599/2011 of 17.

Fifth 2012. The defendant, however, raised an objection of limitation, in response to which
applicant withdrew the proceedings. The district court therefore suspended the proceedings
Resolution dated 22. 11. 2012, which also admitted the defendant to pay the costs
CZK 300 because the defendant, although not legally represented,
on the basis of Article 36 para. 1 Article 37 par. 3 of the Charter, however, was on
given situation must apply by analogy to § 13 paragraph. 3 lawyers
tariff, which led the district court and the fact that there
plaintiff asserted clearly statute-barred claim. This caused the halt
management and should not replace the defendants
costs for administrative expenses, communications, research, study the case and spent time with
especially taking into account that it was an old claim, in which the
difficult dohledávala documentation. The Regional Court in Hradec Kralove - branch office in Pardubice
however, the plaintiff appeals the district court resolution
canceled because according to him a lump reimbursement of cash expenses in the amount of CZK 300
is not represented by a lawyer of a party to apply. After
matter was returned to the district court for further proceedings, he decided to bring
Constitutional Court, under Article 95 para. 2 of the Constitution proposal now under consideration.
Eat seeks to give rise to either cancel or to define
constitutionally conforming interpretation of the above provisions in a way that would prevent
violation of equality of the parties.

29th The Constitutional Court was informed during the proceedings a note of the Government
Czech Republic dated 21. 7. 2014 on current legislative initiative in the form of a draft amendment
lawyers' tariff, which is now being prepared
Ministry of Justice. It has reduced the amount of lawyer's fees and the amount
reimbursement of cash expenses, so that the absolute amount of these costs
did not motivate the parties to claim reimbursement for the amount
costs while at the same time enabled the successful party to the dispute were || | reimbursed reasonable costs of legal representation (see press
report to the Ministry of justice of 1. 4. 2014
named Minister of justice proposes to significantly reduce the cost of recovery and
execution, available on the website www.justice.cz ). Likewise, the Constitutional Court
known and pending amendment to the Civil Procedure Code, on which
in its statement drew the attention of the government and according to which the future
pay the participant, who was not represented by a lawyer and
does not justify the amount of cash expenses, the court admits cash expenses in
amount determined by special legislation, without prejudice
his right to compensation for other costs. Thus prepared legislation
leads to the fulfillment of Art. 37 par. 3 of the Charter and the alignment of the two parties to the dispute regarding evidence
incurred cash expenses in accordance with the conclusions
this decision of the Constitutional Court.

30th Even if its adoption would, however, this legislative change worked
only prospectively, ie disputes arising in the future. The Constitutional Court
this initiative is not relieved of the obligation to fulfill the role of protector
constitutionality and push for the protection of the right to equal status in proceedings
meaning of Article 37 par. 3 of the Charter of those participants whose litigation has
underway or will begin before the legislation is addressing the problem described
taken. Below is yet explained that this protection
rights not necessarily interfere with the legislation in force, but simply
nod to its constitutional interpretation in conformity, which already occupy
some of the general courts, including the petitioner.


Assessment of the proposal to repeal § 137 paragraph. 1 Code of Civil Procedure

31st Regarding the assessment of a proposal to repeal § 137 paragraph. 1
Civil Procedure Code, the Constitutional Court must conclude that the actual abolition of § 137
paragraph. 1 of the Civil Procedure Code would be unconstitutional as described inequality
actually worked, even in case of cancellation of the entire provision, nor
in case of cancellation of the word "finished".

32nd Cancellation of the entire provision would merely create a loophole, since it would
absent finish defining what is actually costs.
If they approached the Constitutional Court to abolish this provision
immediate effect on the date of this judgment, it would be the courts, courts of first instance
starting to define what can be included among
costs on the refund should have the right to a participant under § 142

Paragraph. 1 Code of Civil Procedure; and the courts of appeal and appellate
would be to gradually unify the interpretation of the lower courts, even
way that would eliminate the amount of proven inequality based
existing legislation and its hitherto usual applications.
In the meantime, however, would be significantly undermined legal certainty as another
of the fundamental pillars on which is built the structure of law.
Such a procedure burdening both parties who would be the general courts
submit arguments to the fact that their cash expenses to be borne
and general courts, which would have its interpretation sudden onset
legal loophole gradually fill up, moreover, would have also had to cope with
intertemporality question, therefore, the impact of this legal loophole and its
"saturation" on the ongoing court proceedings. All this would undoubtedly harm not only to
legal certainty, but also the efficiency and effectiveness of court proceedings
. Cancellation or non-application § 13 para. 3 lawyers plan would
while also led to the settlement status represented and unrepresented
parties, but this solution would only complicate the process
obligations represented by the participants and the work of judges, while applications
that provision even for unrepresented parties to facilitate and simplify the process of proving
costs for unrepresented parties. Moreover, it would
complications in proving the cost could be borne not only represented
participants, but also their representatives, thereby also
interference with their right to conduct business, enshrined in Art. 26 of the Charter. For these reasons
Constitutional Court deemed more appropriate solutions which create legal
gap and not create problems intertemporality where it is not necessary to induce
. Additionally, the problem lies not in the actual text of the contested provision
, but in its application of certain general courts
inconsistent with the requirements of article 37 par. 3 of the Charter. And for that reason it is considered
Constitutional Court for appropriate and souladnější with the principle of minimum intervention when
instead of the annulment of the contested provisions of the interpretative statement will define
which application of the contested provision deemed constitutional, as will be discussed below

33rd By contrast, if the Constitutional Court proceeded to repeal this provision
with deferred effect, which is another practice that would
proposal under examination could cause, although it would be a possible tool
pressure on lawmakers to complete the adjustment referred solved the problem, however, is
more than problematic, as it would help solve the unconstitutional inequality
disputes already pending or commenced prior to the effective date of such
future adjustments, including management, from which emerged the proposal now under consideration.

34th Canceling the very word "finished", although would not be so "devastating"
effects of legal certainty as the cancellation of the entire provision is however
clear what would help establish equality of participants. It is possible that
mention only of "expenditure" leaving more room for judicial discretion than
mention of "pocket expenses" So it would be easier to subordinate lump
cash expenses not represented participant under the word "expenses "
than under the phrase" cash costs ".

35th The Constitutional Court is convinced, however, that the scope of such judicial
consideration that would enable allowance of cash expenses and
unrepresented parties, and thus maintain their equal status in the proceedings
compared participants represented, as required by Article 37 par. 3
Charter offers already under the current text of the legislation.
Can not be overlooked that the list of costs contained in § 137 paragraph. 1
Civil Procedure is merely illustrative, as shown
use of the word "especially". Now that word creates room for the inclusion of other costs
whose return is in harmony with the purpose of this provision
. These costs, which can also replace
unrepresented party, then it is being replaced by cash expenses
lump sum, in the amount according to § 13 para. 3 lawyers tariff.

36th Including those costs in the plan illustrative list
costs was contained in § 137 paragraph. 1 of the Civil Procedure
fills the gap, to which fact their proposal highlights
petitioner, that gap is based on the fact that the existing arrangements
catering specifically with the possibility of granting lump sum reimbursement of cash

Spending represented only and not for unrepresented parties.

37th In other words, while lawyers (and thus indirectly on them
represented parties) turns bright sub-statutory modification
defining the amount of the lump sum cash expenses for unrepresented parties
no express provision does not apply, which must be
understood as a gap in the law, causing unconstitutional consequences, as explained above.
This gap must be bridged using the analogy iuris, that is, by
to deal with a situation to which no - in this case the sub-statutory - legal
modification expressly does not apply, apply the provisions of sub-regulation
which addresses the situation most similar, in this case
thus, § 13 par. 3 lawyers tariff if not using
such analogies have unconstitutional consequences. This is not about using the analogy
inadmissible because it is not an area in which it would use its
been excluded, as in criminal law, and its use goes
in this case in favor of unrepresented parties, to which this
analogous to relate lawyer fare goes. It is also the
analogy of sub-statutory regulation, which explicitly allows text
statutory regulation, because she aforementioned demonstrative nature
list of reimbursable costs in § 137 paragraph. 1 of the Civil Procedure Code.
It is then mainly the analogous application, which is commanded imperative
constitutional interpretation sub-constitutional law, in the above-defined
situations where the possibility of relating the lump sum cash expenditures
only to lawyers established unconstitutional inequality
between represented and unrepresented parties. The text of this statutory regulation thus analogous to relate
subordinate regulation also allows unrepresented parties, Art. 37
paragraph. 3 of the Charter in certain situations it commands.

38th § 13 par. 3 lawyers tariff rate should be analogous
based on unrepresented parties, if such action is necessary to
interpretation of § 137 paragraph. 1 Code of Civil Procedure Article harmonic with
. 37 par. 3 of the Charter. Now, such an interpretation is to be regarded as
conform to the Constitution and to minimize judicial intervention [see, eg.
Finding sp. Nos. Pl. US 41/02 of 28. 1. 2004 (N 10/32 SbNU 61;
98/2004 Coll.)] To prioritize before the repeal of the contested provision.

39th The fact that such a procedure is feasible and practical and usable even without changing
Civil Procedure, moreover, proved himself proposing a general court of
, as can be seen not only from his other decisions (eg. The judgment of the District Court in
Chrudim sp. Ref. 111 C 54/2012 dated 19. 2. 2013)
but also made above recap of the proceedings, from which emerged now
proposal under examination. On the possibility of such a procedure does not alter
fact that the original decision requesting the court revoked
court of appeal. It is therefore apparent that the ordinary courts, especially alone
appellant has used such an interpretation, which solves the problem
petitioner indicates that as a reason for its proposal, namely the alleged
unconstitutional inequality between the parties represented by a lawyer and || | unrepresented parties.

40th In this situation, it was necessary to reject the proposal to annul
§ 137 paragraph. 1 of the Civil Procedure Code as well as an alternative proposal to repeal
word "finished" in this provision and adhere to the second
alternatives that petitioner proposal states, namely the adoption
interpretative statement which would be binding interpret what the interpretation of the legal regulation
granting lump sum reimbursement of cash expenses can be understood as
constitutional, primarily those sympathetic to the requirement of equality of the parties
within the meaning of Article 37 par. 3 of the Charter.


Constitutional interpretation of the contested provision

41st The Constitutional Court in its case-law interpreting [judgment file. Nos. Pl.
US 41/02 of 28. 1. 2004 (N 10/32 SbNU 61; 98/2004 Coll.), Finding sp.
Brand. Pl. US 16/08 of 29. 9. 2010 (N 203/58 SbNU 801; 310/2010 Coll.)
Finding sp. Nos. Pl. US 78/06 dated 16. 10. 2007 (N 162/47 SbNU 145
307/2007), finding sp. Nos. Pl. US 15/12 of 15. 1. 2013 (N 13/68 SbNU
191; 82/2013 Coll.), Finding sp. Ref. IV. US 3102/08 of 12. 7. 2010 (N 142/58
SbNU 183) or finding sp. Nos. Pl. US 49/10 of 28. 1. 2014
(44/2014 Coll.)] That comes into consideration the possibility of conforming to the Constitution

Interpretation of the contested provision, this has priority over
cassation of the contested provisions. This procedure alleging
principle of minimizing the intervention of the Constitutional Court this time around, as in previous cases cited above
decided to add an interpretive statement
which case the needs of the general courts provides a method of interpretation of the contested provision
a constitutional procedure.

42nd The Constitutional Court already cited judgment file. Nos. Pl. US 41/02
came to the following conclusion:

"Different interpretation of Art. 89 para. 2 of the Constitution of the findings in rejecting proposals
to repeal legislation due priority to a constitutional interpretation
amounted to a Constitutional Court decision legally meaningless,
possibly confusing, and urged at the same time the Constitutional court procedure, which
appears in its consequences absurd and untenable:
relying on the possibility of constitutional interpretation, to abandon the principle of judicial restraint and self
if the slightest possibility of a constitutionally contradictory interpretations of the contested
legislation abolishing it. For those in the norm control proceedings in the case
adoption of a negative opinion with interpretative arguments
constitutional court of the plurality of supporting reasons stemming fundamental constitutional principle
included within the scope of the operative part of the judgment. "

43rd In the case now under consideration is the adoption of the interpretative statement about it
preferable that these decisions regarding procedural law, which would
should be as clear as possible for both general courts and the parties
management. No matter how the Constitutional Court is aware that they are no longer binding
supporting reasons for his decision [see Judgment. Nos. Pl. US 45/04 of 22
third 2005 (N 60/36 SbNU 647; 239/2005 Coll.)], So it could conceivably be too dismissive
accompanied by a statement explaining the reasons for the rejection
reason is the existence of constitutional interpretation, considered it more appropriate to incorporate
to the verdict and key it mandatory rule defining
constitutional interpretation of the hotly debated provisions to support
clarity of his decision and went out and meet needs
legal practice.

44th For these reasons, the Constitutional Court decided to adopt
interpretative statement, which will enable the eventual adoption of a new
statutory or sub-statutory regulation now interpreted effective text
Civil Procedure Code and lawyers tariffs in a way that does not violate the right
participants on an equal footing before the court. As mentioned above, it
Constitutional Court considers that the text version of the currently effective rules
provides ample space for a constitutionally consistent interpretation
. It also suggests the aforementioned decision-making activities of some
civil courts, including the petitioner.

45th To be constitutional by the Constitutional Court therefore must be considered such a procedure
civil courts in which the situations in which they would
litigant represented by lawyer admitted lump sum compensation
cash expenses pursuant to § 13 para. 3 lawyers tariff admit
if it is necessary for the fulfillment of equality of the parties, this lump sum compensation
as cash expenses pursuant to § 137 paragraph. 1
civil procedure Code and the party is not represented by a lawyer.
Principle of equality of the parties in accordance with Article 37 par. 3
Charter of Fundamental Rights and Freedoms is possible in the present case to fulfill
granting lump sum compensation as reimbursement of cash expenses according to their
illustrative list in § 137 paragraph. 1 of civil procedure and
the party is not represented by a lawyer, and in situations in which
by the party represented by a lawyer was granted such
compensation under § 13 par. 3 lawyers tariff.

46th Therefore, it is the courts that in a particular case in which it will become
against a successful party without legal representation failed
legally represented party, consider whether it is appropriate to use the space
for constitutional interpretation the provisions of § 137 paragraph. 1
civil procedure Code provides mainly due to the demonstrative nature of the enumeration costs
management. When considering this it is necessary to examine whether, in a given case
be manifestly unfair to lump sum compensation
unrepresented party admit it and whether the different treatment that
text assumes lawyers tariff arises in the case of inequality

Inconsistent with Article 37 par. 3 of the Charter; in particular, whether the different treatment
not discriminate in the context of the entire legal dispute
party not represented, for example, because the amount of the lump sum expenses
is petty compared to the amount by which the dispute results or because | || goes by the legally represented party manifestly vexatious procedure.
If these conditions were met, it is appropriate that as costs identified
civil courts in addition to the costs listed in demonstrative
list of § 137 paragraph. 1 of the Civil Procedure also
lump sum reimbursement, which includes lawyers according to § 13 para. 3 lawyers

47th It can not be overlooked that such a constitutional interpretation
cited provisions will result in not only meeting the requirements
article 37 par. 3 of the Charter, a situation in which you will be represented and unrepresented party
equal, and it in terms of ease
granting lump reimbursement of cash expenses; but it could also be
least a temporary solution to the above problem of systemic Czech
justice, ie motivation "big players" series sue "small player".
Legal representation of applicants because they can now, for example, calculate with the fact that
it was worthwhile to sue small mass of old debts that they
were transferred en masse, and notwithstanding the fact that some of them already
barred and some of them are undetectable, but it's such a small amount
that the respondents generally do not invest in legal representation
or litigation completely resign.

48th Such motivation to lead civil disputes, distorted
improper approach to the allocation of compensation costs, while criticizing
Constitutional Court has in its judgment. . I. ÚS 988/12 dated 25. 7. 2012 (N 132/66
SbNU 61), at paragraph 22: "When considering the court in deciding on reimbursement
control whether costs associated the lawyer representing
be considered as expenses reasonably incurred, should not lose sight of the very purpose and
civil trial itself. Its purpose is to provide protection
disturbed or threatened with actual subjective
substantive rights and law protected interests. in accordance with this definition
purpose of civil procedure are situations in which the Constitutional court has in the past warned
where civil proceedings are conducted not because things
itself, but because of the amount that can be awarded to
reimburse the costs of the proceedings [judgment dated 14. 9. 2011 sp.. I. ÚS 3698/10 (N 160/62 SbNU
395)]. it is unacceptable that civil proceedings have been torn from his | || genuine social mission and that instead of providing protection
happen only be a tool to create simple and not
unjustified profit at the expense of the counterparty. Even for
costs, therefore, the general idea that the local court already made in the judgment of
20th 6. 2011 sp. . I. ÚS 329/08 (N 118/61 SbNU 717): "Individual
Institutes of Civil Procedure and other procedural regulations
is therefore necessary to adapt and adjust to interpret and apply so that - when
maintaining other basic principles and foundations of civil procedure
- reflect this limited protective function
civil law procedure. ' If the civil process to perform a protective function, losing
by the existence of any common sense. "

49th If legally unrepresented parties could not be accorded
lump sum reimbursement of cash expenses, it would mean (and in many cases
it continued to do so) that such a lawyer, represented the plaintiff in the case
ventured defeat in a dispute with unrepresented
defendants almost no cost (for example, only costs in the amount of proven postage
as in the case, which arose from a proposal under consideration), but in the case
victory (whether the merits of his claim for a mere
passivity defendant, for example by electronic payment orders for petty sums
) has a chance not only to the amount the defendant, but also
lump sum cash expenses [and to repeal Decree no. 484/2000 Coll
., which fixed at a flat rate amount of remuneration for representation
lawyer or notary participant in deciding on the reimbursement of costs in civil proceedings
and amending Decree of the Ministry of justice
no. 177/1996 Coll., on remuneration and compensation of advocates

For providing legal services (lawyers fare), as amended
regulations as other decrees, the flat rate for the amount of pay
representation of a party by a lawyer or notary]. If such a plaintiff
leads hundreds or even thousands of similar disputes may be already very substantial and attractive
amounts that can motivate mass sue for example, such
receivables for which there is a large probability that they are already lapsed ,
or is even aware of their promlčenosti because it is time barred as
already bought, but relies on the fact that the defendant is unrepresented because of their ignorance of the law
objection of limitation does not apply.

50th However, if the general courts proceed in accordance with the above defined
constitutional interpretation has an effect on economic consideration those
claimants of the benefits of keeping such trivial disputes as they
you are aware that if their entitlement to the gain itself apart
claims and lump sum cash expenses; However, if authorized
not, they risk the same lump sum cash expenses
they pay successful defendant. Even in this impact can indeed
implicitly seen as one part of the equality of the parties.
It does not absolve the legislature's obligation to the whole issue
comprehensive solution, which indeed is already taking the first steps as
stated above.

51st Only on the edge Constitutional Court observes that, although now spoken by
constitutional interpretation of the provisions governing the granting of compensation
costs, as well as pending legislation is just as
steps towards implementing the principle of equality between the parties,
of course, it is not a panacea that would completely solve the unequal status
especially poor and uneducated individuals legally in applying
their right to access to court stemming from Article 36 of the Charter and Article 6
. 1 of the European Convention on human rights and fundamental freedoms
. That procedure, which arose from a proposal now under consideration, is a good example of
deficit that exists in this area.
Legally unrepresented defendant party is usually far more complicated situation than
represented participant, less knowledge of substantive law is also supplemented
ignorance and lack of familiarity with the process
rights and their scope, moreover, interpreted them
court of Appeals in the case now under consideration should still be an obligation demonstration demanding
costs. Defendants can certainly let
also appoint a lawyer, this is not the case trivial claims procedure
burdensome for the defendant and - conscious
possible amount of such claims - expensive even for the functioning of the judiciary.
Protect their rights would certainly while more than repeat rhetoric that the rights belong
watchful helped if they had a real possibility, for example, with
electronic payment orders just turn on low-threshold
legal clinic that several minutes of consultation should recognize that it is a
statute-barred claim and advise them how in a few sentences objection
limitation exercise. The fact that the reimbursement of cash expenses cover
not only postage, but also freight to legal counseling, so they could
a vexatious claim avert charge really is just another
shards, suggesting the suitability of the solution, which leads to an interpretive | || operative part of the judgment.

52nd For the foregoing reasons, the Constitutional Court generalized the supporting reasons for its finding that
regarding constitutional interpretation assessed
provisions and stated in the interpretative judgment rendered herein.


53rd Based on all the above facts, the Constitutional Court
District Court in Chrudim rejected (§ 70 para. 2 of Act no. 182/1993 Coll., On the Constitutional Court
) and defined conditions for a constitutional interpretation
provisions under consideration Act.

Chairman of the Constitutional Court:

JUDr. Own hand

Dissenting opinions according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, took to the plenary decision
Judge Jan Filip, Vladimir Kurka and Radovan Suchanek.