The Constitutional Court
On behalf of the Republic of
The Constitutional Court ruled under SP. zn. PL. ÚS 49/10 28 February. January 2014
plenary in the composition of Stanislav Package, Louis David, Norman F, Jan
Filip, Vlasta Formankova, Ivana Janů, Vladimir Crust, Jan Musil, Paul
Rychetský, Vladimir Sladecek, Radovan Suchánek, Catherine Simackova
(Judge Rapporteur), Milada Tomková, Jiří Zemánek and Michael
April on the proposal of the District Court in Děčín according to art. 95 para. 2 of the Constitution
The United States on cancellation of the § 153b of paragraph 1. 1, 4 and 5 of Act No 99/1963 Coll.,
Code of civil procedure, as amended, with the participation of the
the Chamber of deputies of the Parliament of the Czech Republic and the Czech Senate
as the parties,
I. the proposal is rejected.
II. The interpretation of the word "may" in section 153b para. 1 of Act No 99/1963 Coll.,
Code of civil procedure, as amended by law No 7/2009 Coll., amending
Act No. 99/1963 Coll., the civil procedure code, as amended
regulations, and other related laws, must fulfill the purpose of the legislation
default judgment and respect the procedural equality of the parties;
This means, inter alia, take account of those principles, even if
assessment of the conditions for delivery pursuant to § 49 paragraph 1. 4 of Act No 99/1963
Coll., the civil procedure code, as amended by law No 7/2009 Coll., amending
Act No. 99/1963 Coll., the civil procedure code, as amended
regulations, and other related laws.
The definition of things
1. The District Court in Děčín ordered on day 8. 10.2010 negotiations, to which the
call the plaintiff through his legal representative and the defendant
the procedure laid down in section delivery 45 et seq.. Act No. 99/1963 Coll.,
Code of civil procedure, as amended by later regulations (hereinafter referred to as "o. s.
2. To conduct the District Court in Děčín is on 8. 10.2010 came
only the side of the plaintiff. The defendant without any apologies for the hearing
not appeared. The legal representative of the applicant, in accordance with the § 153b of paragraph 1. 1
o. s. l. suggested the release of the judgment by default ("by
the judgment "). The summons to the defendant's conduct has been delivered under section 49
paragraph. 4. (. alternate delivery or delivery of fiction).
3. The District Court in Děčín, however, by a judgment by default is not decided, although
in his opinion, met all the conditions laid down by law for the
its release, as it came to the conclusion that the § 153b of paragraph 1. 1, 4 and 5 of the row.
is in conflict with the constitutional order of the Czech Republic, and specifically with the
the principle of equality of the parties. For this reason, the District Court in
Decin proceedings and submitted to the Constitutional Court under art. 95
paragraph. 2 of the Constitution of the Czech Republic to repeal § 153b of paragraph 1. 1, 4 and 5.
4. The Constitutional Court was lodged pursuant to article 4(1). 95 para. 2 of the Constitution of the United
the Republic to repeal § 153b of paragraph 1. 1, 4 and 5 of the 8-delivered on 16. 11.
The arguments of the applicant
5. According to the applicant's section 153b of the row (or its paragraph 1, 4
and 5) contrary to the principle of equality of parties to the proceedings, enshrined in article.
paragraph 96. 1 of the Constitution of the Czech Republic (hereinafter "the Constitution"), art. 37 para. 3
The Charter of fundamental rights and freedoms ("the Charter"), art. 6 (1). 1 and
article. 14 to the Convention for the protection of human rights and fundamental freedoms (hereinafter also
"The European Convention on human rights", or just "the ECHR") and article. 14
The International Covenant on Civil and political rights.
6. The main argument for the repeal of § 153b of the appellant is
the fact that a default judgment may be issued only for the benefit of
the plaintiff, while the defendant does not enjoy this privilege. This means that if the
under the same conditions to the plaintiff fails to appear, the hearing ordered the defendant
the Court cannot propose the release of judgment by arguing that the claim
the defendant in his defence (or made at
the negotiations) on the facts relating to the dispute would have to be considered
undisputed. Party plaintiff is so process-an advantage, without this
advantage was in the management of the defendants compensated in any way. This is
According to the claimant the defendant built to substantially less favourable situation
than the plaintiff, which is contrary to the principle of the equality of the participants [District
the Court in Děčín here refers to the find SP. zn. PL. ÚS 15/01 of 31 July. 10.
2001 (N 164/24 SbNU 201; 424/2001 Coll.) and find SP. zn. III. TC 202/03
of 13 October. 11.2003 (N 134/31 SbNU 193)].
7. in support of its proposal, the applicant raised the historical argument.
According to him, a judgment by default is znovuzavedený in the form of § 153b of.
in the Czech legal order to 1. 9.1993, contrary to the traditional concept of
the judgment order in our territory. Already the Act No. 113/1895.,
court proceedings in civil law established graziers (order of the Court, civil), in
text of the provisions to changing and supplementing until 31 December 2006. 12.1947 (hereinafter
"c. r. s.") the Institute knew of an order by the judgment (judgment in
cases by default), which respects the equality of the parties,
Since both sides threatened the walkover. Specifically, § 396 c. l. s.
stated that: "where the claimant misses a defendant or the first year, to be
thought me dostavivší the parties about the recitation of fact
regarding the subject matter of the dispute, for the true, if not rebutted
presented by the evidence, and on this basis, the application of a party,
decide on the claim, request judgment by default "(emphasis
completion). The following § 397 c. l. s. then read as follows: "to a written
interpretations of the issue of the party, which has not appeared, don't be taken
8. the appellant also drew on the Austrian and German editing judgment
for a default judgment. In Austria, although amended many times, it is still effective
the above mentioned civil order of the Court of the year 1895, including editing
judgment by default (§ 396-403 ÖZPO). Edit the default judgment of both parties
contains the German civil procedure code of procedure (Zivilprozessordnung, hereinafter referred to as
ÎZPO), in section 330-347; Therefore, the counts as the default of the defendant
(Säumnis des Beklagten, section 331 ZPO), which is adjusted as in
Czech o. s. l., so missed the plaintiff (Säumnis des Klägers, section 330
ZPO). Here's the difference compared to the Austrian, however, editing in that it does not appear to
the plaintiff, or if this is not the case (section 333 of the ZPO), though it has been duly
summoned, is his action without a substantive review of the rejected.
9. In its application the applicant has marked as the contested provisions only
the first, fourth and fifth paragraph of § 153b of the row, as only these three
paragraphs are, for the present case SP. zn. 22 C 128/2009
immediately applicable and also unconstitutional. The petitioner thus
He did not contest the second paragraph § 153b of the row, though even that is
unconstitutional, since this paragraph is not the present case
immediately applicable, as a condition of "imminent
applicability of "within the meaning of article. 95 para. the Constitutional Court interprets the Constitution
[here the appellant referred to resolution SP. zn. PL. ÚS 38/2000 of 23 October 2000.
10.2000 (in 39/20 SbNU 353) and resolution SP. zn. PL. ÚS 20/02 of 28 October 1999.
11.2002 (42/28 SbNU 477)]. With regard to the third paragraph of section 153b.
row, the applicant is of the view that this paragraph is constitutionally Conformal.
Representation of the Chamber of Deputies and Senate of the Parliament of the Czech Republic
10. The Constitutional Court pursuant to the provisions of § 42 para. 4 and section 69 of Act No.
182/1993 Coll., on the Constitutional Court, as amended by later regulations (hereinafter referred to as
"the law on the Constitutional Court") posted by the annulment of the contested
the provisions of the Chamber of Deputies and Senate of the Parliament of the Czech Republic. In
accordance with point 3 of the notice of the Constitutional Court published under no. 469/2012
Coll., the Constitutional Court had not named to represent the Government of the United States or
of the Ombudsman within the meaning of § 69 para. 2 and 3 of the law on the constitutional
Representation of the Chamber of deputies of the Parliament of the Czech Republic
11. The Chamber of deputies in its statement of 30 June. 6.2011
signed by Chairwoman Miroslava Němcová, zrekapitulovala process
the adoption of Act No. 171/1993 Coll., amending and supplementing the civil
the rules of court, which he introduced into the Czech legal order a judgment by default,
and its three amendments. Pointed in particular to the explanatory memorandum to the
Act No. 171/1993 Coll., according to which the then legislature gave in
the design of the default priority to a solution that is used to
Slovakia (which had a foothold in the Hungarian law), which permits release
judgment by default only in the case when the first act misses the defendant.
The former legislator to justify it, by admission of the judgment for
by default, the applicant and the defendant would create uneven position of the parties,
as if the defendant misses a meeting, it is known from the Inbox actions in advance
not only the subject of the proceedings, but also the applicant's line of argument and the evidence
It offers to the Court to prove their claims. If accepted, the judgment of the
by default, the plaintiff, missed the party, that the opinion of the defendant
ahead and did not have the opportunity to respond to the allegation that the defendant
It was only at the hearing, the Chairman shall refer. In addition, the explanatory memorandum to the Act No.
171/1993 Coll. in connection with § 153b of r. stressed that even in
provided that the transferee is properly the defendant fails to attend a hearing
and the applicant shall propose to the Court to decide by a judgment by default may not
the Court accepted this proposal.
12. in addition, the Chamber of Deputies indicated that as the legislature acted in
the belief that adopted laws are in accordance with the Constitution and our legal
regulations, however, it is up to the Constitutional Court to assess the constitutionality of § 153b
paragraph. 1, 4 and 5 of 5-the Chamber of deputies also agreed with the
abandonment of the oral proceedings.
Expression of the Czech Senate
13. The Senate in its statement of 27 November. 6.2011, signed by the Chairman of the
Milan Private, noted that the Senate was established in November 1996, and
Therefore, to Act No. 171/1993 Coll., which introduced into the Czech legal order
default judgment, he could not comment. Since then, although it was section 153b
amended three times, however, the basic principle has remained unchanged, and to
the issue of implied in the administration of the District Court in Decin is in Senate
under the approval of the above mentioned three amendments to § 153b of the row.
He expressed. According to the Senate so it is entirely up to the Constitutional Court to
to assess the constitutionality of the contested section 153b o. s. l. in paragraphs 1, 4 and 5.
The Senate also gave its assent to the abandonment of the oral proceedings.
The diction of the contested legislation
14. The provisions of § 153b of row reads as follows (paragraph appellant
expressly contested are highlighted in bold):
"the § 153b
(1) if the defendant Misses, which have been duly delivered to his own
hands (§ 49) the application and the summons to a hearing at least ten days prior to the
the date on which the meeting is to take place, and that was about the consequences of failure
instructed, without reasonable and timely apology the first Act, which, in case
held, and will propose it to the applicant, who came to the meeting, by
the plaintiff claims contained in the application on the facts about
the dispute, for the undisputed and, on this basis, the Court may rule on the action
the judgment by default.
(2) if there is one thing a few of the defendants, who have such a common
obligations, that judgment must apply to all (article 91, paragraph 2),
You can decide by a judgment in absentia only if he fails to
hearing all the defendants duly obeslaní.
(3) a default judgment cannot be issued in cases which cannot be closed
and approve the settlement (article 99, paragraphs 1 and 2), or if there would be such a judgment
to develop, modify or terminate the legal relationship between the participants.
(4) if the defendant misses a omluvitelných reasons of the first Act, in the case
which was handed down the default judgment, upon the motion of the defendant
This judgment by order and order cancels the meeting. Such a proposal may
a participant may submit, no later than the date of the judgment by default.
(5) if the defendant in addition to the application for annulment of the judgment of the Court of first
the degree of the reasons referred to in paragraph 4 of the judgment appealed against the appeal and
application for annulment of the judgment was upheld by a final resolution, to
the appeal shall be disregarded. "
15. As mentioned above, the appellant contests only paragraphs 1, 4 and 5
the provisions of § 153b of the row, on the grounds that only these three
paragraph § 153b of the row are immediately applicable to the thing it
led by under SP. zn. 22 C 128/2009 and also unconstitutional (see point
16. The Constitutional Court based on the texts of the provisions of § 153b of row i of the
the provisions of § 49 paragraph 1. 4. with the (governing so-called substitute service
or fictitious), as introduced by law No 7/2009 Coll.
the amended Act No. 99/1963 Coll., the civil procedure code, as amended
regulations, and other related laws, since this Act No 7/2009 Sb.
with effect from 1 January. 7. these provisions were amended in 2009
last and so far charged in the same text. This is the same wording
valid as at the time of submission of the proposal by the District Court, at the time of decision making
Of the Constitutional Court.
Assessment of the competence of the Constitutional Court to hear the application and
locus standi of the applicant
17. The Constitutional Court had to first answer the question of whether he is entitled
discuss the merits brought by the proposal. Terms of locus standi in the
management of specific control standards the Constitutional Court summarized in its resolution sp.
Zn. PL. TC 37/10 of 18 February 2004. 12.2012 (available on the
16. before the Constitutional Court shall proceed to a factual assessment of the proposal by
article. 87 para. 1 (b). and) of the Constitution is obliged to examine whether it meets all the
the formalities required by law and that they are not at all dictated by the conditions of its
consultation as stipulated in Act No. 182/1993 Coll., on the Constitutional Court, in
as amended (hereinafter the ' law on the Constitutional Court '). According to the
the provisions of § 64 para. 3 of the law on the Constitutional Court to repeal of the law
or its individual provisions is also entitled to the Court in
with regard to its decision-making activities under art. 95 para. 2 of the Constitution.
According to the article. 95 para. 2 of the Constitution, if the Court concluded that the law,
to be used in solving the case, is in contradiction with the constitutional order,
refer the matter to the Constitutional Court.
17. the Constitutional Court must first address the question of whether it was populated
the condition laid down in article 95 para. 2 of the Constitution, i.e.. whether the plaintiff
the alleged conflict with the constitutional order refers to the law which should be applied to
When the solution matters initiated prior to the regional court in Hradec Králové, since
If it came to the conclusion that this condition has not been populated, it would not be
the appellant to his Administration actively open to, respectively, the petition was filed
' someone apparently unauthorized ' as normuje the provisions of § 43 para. 1 (b).
(c)) of the Act on the Constitutional Court.
18. pursuant to the conclusions of the resolution of the Constitutional Court, SP. zn. PL. ÚS 38/2000 of
on 23 December 2005. 10.2000 [resolution SP. zn. PL. ÚS 38/2000 of 23 October 2000. 10.2000
(U 39/20 SbNU 353), available at http://nalus.usoud.cz] the condition is
design of privilege of the Court expressed in the article. 95 para. 2 of the Constitution, to
request the cancellation of the law against ' to be in the solution of
things used ', true, ' If this is about the law or its individual
the provisions whose application has to be immediate ... ', or ' is
necessary its inevitable application and not just a hypothetical use,
or other broader context... ' [cf. also find SP. zn. PL. ÚS 20/05
of 28 June. 2.2006 (N 47/40 SbNU 389; 252/2006 Coll.), available at
http://nalus.usoud.cz]. Of the purpose and the meaning of (specific) checks
the constitutionality of the law, then it follows that the law, ' to be in the solution of
things used ', it is only because you (or its provisions), which gets in the way,
in order to achieve the desired (constitutionally consistent) results; If it was not
then removed, he would have been the result of the proceedings before him another.
19. is the applicant, both in order to withstand an adequate argument that
the contested act (its individual provisions) is in conflict with the constitutional
policy (which the appellant has made), but at the same time he pointed out and proved that
the application of the contested provisions is inevitable, and only the annulment of the contested
the provisions will result in the desired constitutionally consistent
the result; the assumption of such a claim is sufficiently straight
the facts. The last-mentioned requirement, however, has not been populated.
20. in addition to the above, the General Court, which proposes the repeal of the law
(its provisions), lies on the obligation of the contested provision, which has
be applied in the proceedings before him, lay out, and this interpretation is primarily
constitutionally compliant; The constitutional court deduced that the reason for the cancellation is not given
such a provision, if possible, where appropriate, among others-and interpretation,
that this requirement (i.e., constitutionally konformnímu interpretation) complies with the [cf.
find SP. zn. PL. ÚS 48/95 of 26 July 1995. 3.1996 (N 21/5 SbNU 171;
121/1996), finding SP. zn. PL. ÚS 20/05 of 28 June. 2.2006 (N 47/40
SbNU 389; 252/2006 Coll.), finding SP. zn. PL. ÚS 36/01 of 25 June. 6.2002
(N 80/26 SbNU 317; 403/2002 Coll.), all available also on
http://nalus.usoud.cz]. The fact that, in the present case was such a
constitutional interpretation available, then the possibility of implikoval
assessment of the draft as ' manifestly unfounded ', as this
the qualification expressed in the provisions of § 43 para. 2 (a). and) of the
The Constitutional Court.
Principles listed judikovalo the plenary Constitutional Court as well as in many other
resolutions (e.g., resolution SP. zn. PL. ÚS 23/08 of 14 July 2004. 8.2008, sp.
Zn. PL. ÚS 34/11 of 3 April. 4.2012 and SP. zn. PL. ÚS 30/09 dated March 2. 4.
2013), and can therefore be considered part of established case-law
Of the Constitutional Court.
18. in the present case, has filed a proposal to repeal § 153b of the civil
civil procedure law court in the situation where the defendant did not appear to
the first hearing and in response, the applicant proposed the judgment for
a default judgment. The question on which the Constitutional Court must now answer is
whether from the perspective of the principle of equality of the parties, the judge may General
the Court its proposal pursuant to article. 95 para. 2 of the Constitution of the relevantly make (1)
only in the case where the applicant does not attend the hearing and the respondent objected
While his absence could be a reason the judgment by default,
the Court cannot, by analogy, the process-simply respond to the non-participation of the applicant
(this situation in case the District Court in Děčín occurred),
or (2) even in the case when the first negotiations come only the plaintiff,
that release of the judgment subsequently declared (as happened in the case
the present District Court in Děčín). The first situation is only
obvious that any annulment of the contested provisions (assuming his
a controversy with the principle of equality of the parties) would open the path to the
the adoption of such legislation, which would result in the ability to
the plaintiff, the defendant achieved Decree judgment. The aim of the
equality of the participants, however, do not create the possibility of Decree
judgment in favor of both parties of the dispute-the principle of equality of the participants would
on the contrary, has been populated even if the legislature did not allow to achieve
Decree judgment or one of the parties. Similarly, it would be
the principle of equality of the participants filled in a situation where the legislature
drop anchor in case of failure by one of the parties to negotiate a different
penalty than judgment by default in favor of the dostavivší with the other side.
The equality of the parties is therefore neutral in what the parties are
equal, and fixes the only whether they are equal. In other words, it is the
legislators, whether to allow the issuance of an order by the judgment or not.
However, if it is anchored, must comply with the terms of the judgment by default
arising from the principle of equality of the parties; If this were not so,
The Constitutional Court is gifted with the powers of such a modification of an order by the judgment
Cancel and reopen the space for the legislature to decide whether
anchors the match to the query set aside by the equality of the participants
proceedings or decides to again nezakotvit or whether its entirely other,
an alternative solution [for example. cover the cost of zmařeného negotiations
nedostavivší with the party or the obligation of the judge (in the case of delivery
fiction) to decide on the date, according to the State of the file the following zmařeného negotiations].
19. the Constitutional Court also notes that in both cases outlined above
the position of the parties cannot be considered equivalent-in the first
the case, therefore, that the defendant does not have the same legal remedy
as the plaintiff (defendant cannot do what the Prosecutor); in the second case
Therefore, that the applicant has available procedural means that the defendant to
There does not have (the applicant may do what the defendant cannot). In both
the cases of § 153 paragraph is applied. 1. s. l., in both cases it is the
the immediate application of this provision (i.e., its application is
inevitable and not just hypothetical) and only the annulment of the contested
the provisions of constitutional interpretation or balancing position both
process the parties would lead to the desired constitutionally consistent
the result, as otherwise the District Court in Děčín was obliged to
give judgment by default, but you can play only in favour of
the applicant (see paragraphs 18-20 the resolution SP. zn. PL. ÚS 38/10 of 18 February 2004. 12.
2012, cited above).
20. the Constitutional Court when considering the locus standi of the General Court to
submission of the application for annulment of the Act or its provisions came from the article. 95
paragraph. 2 of the Constitution, which provides that if the Court concluded that the law,
to be used in solving the case, is in contradiction with the constitutional order,
refer the matter to the Constitutional Court, and from section 64 para. 3 of the law on the Constitutional Court,
which enshrines the permission of the Court to request the cancellation of the law or its
individual provisions in relation to its decision-making activities. In
now the case under consideration, it is undisputed that the use of the contested provisions
o. s. l. plaintiff has suggested, and the Court is using it in a particular case
had to deal with. The purpose of the privileges and obligations of General
the Court used the law to the Constitutional Court, if the Court
the conclusion that the law is in conflict with the constitutional order, is to preserve
the principles of internal unity and control of the legal system. How stresses i
komentářová literature, "[in] the case of the conclusion of conflict with constitutional law
Therefore, the general policy of the Court to stay the proceedings and to legal
the obligation of the thing (as a proposal for the abolition of the Act) to submit to the Constitutional Court "
(cf. Filip, j., Holländer, P., Prince, in the law on the Constitutional Court.
Comment. 2. the revised and expanded edition. Prague: c.h. Beck, 2007,
p. 365). Therefore, if there is doubt about the constitutionality of the provisions of the Act
and at the same time the General Court clears this doubt or considering
individual interpretation of the alternatives, or fails to submit to the decision of the matter
The Constitutional Court, violates article. 1 (1). 1, or article. 95 para. 2
Of the Constitution. On the contrary, the Constitutional Court would provide the General rejection of the Court
assistance to its decision on the constitutionality or unconstitutionality of the applicable
the law has violated their obligations arising out of the cited article. 95 para. 2 i of
article. 83 of the Constitution. Indeed, excessive secrecy, and exclusivity of the constitutional
the judiciary could be counterproductive, since it would limit the scope for
"constitutional cultivating general courts" (cf. Kühn, from the application of the law.
a judge in an era of Central European communism and the transformation. Analysis of the causes
post-Communist legal crisis. Prague: c.h. Beck, 2005, p. 146; to do this,
more also Wagnerová, e. et al. The law on the Constitutional Court commented.
Prague: ASPI, a.s., 2007, pp. 246 and 247).
21. On the basis of these considerations, the Constitutional Court came to the conclusion that brought
the proposal to assess the constitutionality of the existing editing judgment
by default, enshrined in section 153b o. s. l., from the point of view of equality of the participants
How to control a situation, when the first negotiations come only a defendant
that does not have the ability to design a judgment by default, so for
When the first negotiations come only plaintiff who
subsequently declared the issuance of such judgment (as was the case in the matter of
before the District Court in Děčín). In both cases, then, the Constitutional Court-
If found modify an order by the judgment is contrary to the principle of
the equality of the parties-had to cancel the contested provision. The constitutional
the Court itself under any circumstances cannot "call" the procedural rights of
the defendant, on the level of the Prosecutor and the defendant's right to judikatorně anchor
design issue of default judgment against nedostavivšího,
the plaintiff, because it is not positive by the legislator. The only way to
achieve a constitutionally compliant editing order judgment would therefore be
its cancellation and the reopening of the space for the adjustment of the legislature or constitutional
balancing both interpretation of procedural pages. How
However, it was pointed out above, such a system would not necessarily require
anchoring options to achieve an order of judgment for both parties;
such a solution is only one of the alternatives (see paragraph 18 of this finding
22. From the above it follows that the proposal of the District Court in Děčín meets
all the requirements of article. 95 para. 2 of the Constitution, including the requirement
locus standi of the petitioner for proceedings for review of the standards.
The constitutional conformity of the legislative process of adoption of the contested provisions
23. the Constitutional Court stated that Act No. 171/1993 Coll., which was to
Code of civil procedure enshrined the judgment by default, the Institute was
adopted and published within the limits of constitutionally established competence and constitutionally
in the prescribed manner.
Content compliance of the contested statutory provisions with the constitutional order
24. before the Constitutional Court went to the meritornímu assessment, he had to
to deal with the scope of the proposal. The appellant attacked the only § 153b of paragraph 1. 1,
4 and 5 of the row, and explicitly stated that on the contrary, think of the second and third
paragraph of that provision. According to the appellant, the second paragraph is not
in the present case, it is immediately applicable and the third paragraph of
the appellant considered constitutionally Conformal.
25. The Constitutional Court, however, is of the view that § 153b of the row, setting out the
Edit the default judgment, make up a coherent and internally, so
a linked unit, that it cannot be broken down into individual components and
examine the souladnost with the constitutional order only for some of them
(i.e. paragraphs of the first, fourth and fifth). This is particularly true, that is
attacked by the first paragraph of § 153b of the row that is to specify the conditions
the application of the judgment by crucial. If the Constitutional Court
accept the scope of the proposal, as it defined the petitioner, and, where appropriate,
This proposal has passed, he would then be in the code of civil procedure "stump"
in the form of the second and third paragraphs of section 153b o. s. l., which did not give
itself makes no sense. Detached second paragraph (without
discontinuing the first paragraph) should the defendant even built into an even
less favourable position than the current edit, since no derogation after § 153b
paragraph. 1. with the row would, strictly speaking, there was no need for the judgment
by default meet the condition of due service of the summons to the Court and to the
own hands under section 49 of the row at least ten days in advance, or
the condition of the ordinary lessons learned by the defendant of the consequences of failure to appear and
the defendant would have no way to prevent the release of the judgment by default your
the excuse of the mandated negotiations. For this reason, the Constitutional Court shall be deemed to
necessary to assess the constitutionality of the entire section 153b o. s. l., and not only
its first, fourth and fifth paragraphs [cf. mutatis mutandis find
SP. zn. PL. ÚS 16/09 of 19 July. 1.2010 (N 8/56 69 SbNU; 48/2010 Sb.)
The General principles of
26. the applicant considers § 153b of the row in breach of article. paragraph 96. 1
The Constitution of the United States, art. 37 para. 3 the Charter of rights and
freedoms, article. 6 (1). 1 and article. 14 of the Convention for the protection of human rights and
fundamental freedoms and article. 14 of the International Covenant on Civil and
27. The provisions of article 96 paragraph 2. 1 of the Constitution of the Czech Republic provides that
"[in] all parties to proceedings have equal rights before the Court". The provisions of the
Article 37 paragraph 2. 3 of the Charter of fundamental rights and freedoms has a similar
formulation: "all participants in the proceedings are equal." The provisions of the
Article 6 (1). 1 of the ECHR does not mention explicitly the equality of the parties,
However, the European Court of human rights (hereinafter "ECHR") in its
case-law the Court held that the principle of equality of arms is part of the right to
a fair consideration of the case (cf.. Ranjit K, J., Mike K., D., Kratochvíl, J.,
Bobek, m. European Convention on human rights. Comment. Prague: C. H.
Beck, 2012, with 737-740; and Molek, P. the right to a fair trial. Prague:
Wolters Kluwer, 2012, pp. 236-253). The provisions of article 14 of the ECHR then
enshrines the incidental non-discrimination. Finally, article. 14. 1
The International Covenant on Civil and political rights provides that the
"[a] ll persons are equal before the Court."
28. the Constitutional Court in its case-law, repeatedly found that the principle of
the equality of the parties is part of the right to a fair trial in
the broader sense of the word. The principle of equality of the participants while the Constitutional Court
means "equality of arms, and equality of opportunity" [find SP. zn. PL.
ÚS 15/01 of 31 July. 10.2001 (N 164/24 SbNU 201; 424/2001 Coll.)]. It
means that each process should be given a reasonable opportunity to
refer your matter under conditions that do not build it into a significantly
less favourable situation than that of its counterparty [find SP. zn.
III. TC 202/03 of 13 May. 11.2003 (N 134/31 SbNU 193)].
29. in a similar vein, the European Court of human rights found that the
the principle of equality of arms is one element of a wider concept of fair
process; and equality of arms, the ECTHR means the requirement that each of the
Parties to the proceedings to defend his case under conditions that, from the perspective of
the proceedings as a whole, significantly due to the neznevýhodňují
the opposing party (judgment in case Nideröst-Huber against Switzerland of 18 May.
2.1997 no 18990/91, paragraph 23). This applies to civil proceedings (cf.
the cited case Nideröst-Huber against Switzerland, § 23; or
judgement in the case of Foucher against France on 18 July 2005. 3.1997 no 22209/93,
§ 34) as well as criminal proceedings (see the judgment in case against Brandstetter
Austria of 28 June. 8.1991 No. 11170/84 and others, paragraph 66; judgment in case
Zahirović against Croatia of 25 June. 4. no 58590 2013/11, section 42). The aim of the
the principle of equality of arms is the achievement of "fair balance" between
the parties to the dispute (judgment in case Dombo Beheer B. V. against the Netherlands from
27 June 2002. 10.1993 # 14448/88, paragraph 33).
30. The principle of equality of the participants but by the Constitutional Court is not absolute.
Procedural equality cannot be interpreted as meaning that the legislature could not establish
a different range of procedural rights and obligations for different types of proceedings;
However, it must respect the same range of procedural rights and obligations in
proceedings with the same subject of proceedings [find SP. zn. III. TC 202/03 of
on 13 November. 11.2003 (N 134/31 SbNU 193), find SP. zn. II. TC 657/05 of
on 21 February 2006. 8.2008 (N 146/50 SbNU 291) or find SP. zn. PL. ÚS 16/09 from
on 19 December. 1.2010 (N 8/56 69 SbNU; 48/2010 Sb.)]. The Constitutional Court is
also aware that the absolute equality of the parties in the broader
the meaning of or cannot be reached. So some of the acts held
the plaintiff with the subject of civil proceedings the contested process, such as
for example, the withdrawal of the action, the defendant from the nature of things it cannot do. On the contrary,
a court fee is required to pay only the plaintiff substantially, and not
the defendant (the universality of this rule does not change anything or exemptions referred to in
§ 2 (2). 3 of Act No. 553/1991 Coll. on court fees, as amended by
amended, which are worded very closely).
31. Furthermore, the European Court of human rights is of the opinion that both
Parties to the dispute must be situated in a completely identical position, or
in criminal proceedings (see for example the decision of the Oyston v United
Kingdom on 22 March. 1.2002 No. 42011/98), even in civil proceedings
(see the judgment in case Kenedy v United Kingdom of 18 May. 5.
2010 # 26839/05, § 184
; or the judgment in case Batsanina against Russia from July 26. 5.2009 No.
3932/02, paragraph 27). The European Court of human rights, for example, has accepted the
different time limits for the performance of certain procedural acts for each party
proceedings, if such a difference had no effect on the position of the
the complainant (see e.g. the judgment in the matter and the SGEN-CFDT Guigue against
France of 6 April 2005. 1.2004 No. 59821/00; judgement in the case against Ewert
Luxembourg of 22 March. 7.2010 No. 50010/07, § 98), exemption from the
the court fee for only one of the parties (the partial decision in the case
Gouveia Gomes Fernandes and Freitas e Costa against Portugal of 26 March.
5.2009, no 1529/08) or the initiation of civil proceedings the Prosecutor in order to
counterparty (top-cited the judgment in case Batsanina against Russia, §
32. Consequently, the Constitutional Court or the European Court of human
rights do not require absolute equality between the parties. This right is
Therefore, the law of omezitelným, because the different treatment for the parties is
under certain circumstances (see below) constitutionally conformal, respectively
concurrent with the European Convention on human rights.
33. the appellant considers a judgment by default also unconstitutional for
infringement of article 81(1). 14 of the ECHR, which enshrines the incidental non-discrimination.
In this context, the Constitutional Court notes that the principle of equality
the parties enshrined in article. 37 para. 3 of the Charter represents the
free-standing fundamental right, for which there is no need to distinguish between
akcesoritou and neakcesoritou of equality of arms to the general prohibition of
discrimination. The link between equality of arms and the prohibition of discrimination
However there are. The Constitutional Court is of the opinion that the principle of equality
Parties to the proceedings is
to non-discrimination, and therefore can also be used to apply this policy, after
the appropriate modification of the corresponding specificities of postulátu equality in
trial, test of direct discrimination. As stated by the Constitutional Court already in
finding SP. zn. PL. ÚS 38/04 of 26 March. 4.2006 (N 92/41 SbNU 173;
60. the right to a fair hearing of the case cannot be separated from the General
the requirement of equality and non-discrimination. In this context, however, such
the importance of equality concerning the equality of participants in proceedings before the Court,
situated in different, opposing, procedural
capacities, usually referred to as the ' equality of arms ' ... In a practical
life as a rule not an absolute, mathematical equality; as to the concept of
the relative, in particular in the sense that it cannot completely wipe off the difference in
in particular, the procedural and factual position of the parties resulting from their
the different options. This inequality can be to a certain extent
offset by the additional guarantees for the weaker party. favor
defensionis, which is the manifestation of the eg. adjustment of the burden of proof. "
34. Direct discrimination consists of the following steps, which can be
comment in the form of questions: (1) it is the equivalent of an individual or
Group?; (2) these are treated differently on the basis of one of the
prohibited reasons?; (3) the different treatment to the complainant to bear
(saving a burden or denial of goodness)?; (4) the different treatment
justified, IE. (a) pursues a legitimate interest and (b) is reasonable?
[cf. find SP. zn. PL. ÚS 53/04 of 16 June. 10.2007 (N 160/47 SbNU
111; 341/2007 Coll.), paragraph 29; find SP. zn. II. TC 4377/07 of 30 November 2005. 4.
2009 (N 105/53 SbNU 313); find SP. zn. PL. ÚS 4/07 of 1 July. 12.2009
(N 249/55 SbNU 397; 10/2010 Sb.); the ECTHR Grand Chamber judgment in case
D.h. against Czech Republic of 13 October. 11.2007 No. 57325/00, § 175;
the ECTHR Grand Chamber judgment in case Carson v United Kingdom
of 16 December 2002. 3.2010 no 42184/05, § 61; Wagner, e. et al. The Charter
fundamental rights and freedoms. Comment. Prague: Wolters Kluwer ČR, 2012, with.
101; or Ranjit K, j., Mike K., d., Kratochvíl, j., Bobek, m. European Convention
on human rights. Comment. Prague: c. h. Beck, 2012, s. 1214). From
the case-law of the European Court of human rights to non-discrimination, then
It is also apparent that the different treatment is based on and from
because of this different treatment. For different treatment on grounds of race
or ethnic origin, gender, sexual orientation, nationality or origin
the child is then required to present a very strong justification [cf. for example.
judgment in case Ponomaryov and others against Bulgaria from 21 June. 6.2011
# 5335/05 (nationality); top-cited judgment of the Grand Chamber in the case
D. h. against the Czech Republic, section 176 (race); or judgment in Ünal
Tekeli against Turkey from 16 June 2003. 11.2004 No. 29865/96, § 53 (gender)],
While for other reasons, the different treatment is a review by the
The European Court of human rights, is less intense. You can distinguish between (i)
the fifth step in direct discrimination test, in which he plays the role of a measure
"podezřelosti" the reason for the different treatment, from which depends on
the intensity of the review by the Court.
35. In the application of that test of direct discrimination on the assessment of the
equality of participants in court proceedings is, however, necessary to take into account the
the specificities of the principle of equality of parties to the proceedings and direct discrimination test
to modify. First of all, it is not necessary to examine in the second step, zakázanost
the reason (and thus his "podezřelost" in step 5), since that is the
expressly enshrined in article. 37 para. 3 of the Charter: any different treatment
with the parties to the proceedings is
suspicious. Then, the first step to reduce the assessment of the question whether the
the parties to the proceedings. The modified test direct discrimination will continue for
clarity referred to as a test of equal treatment. Test of equal
treatment consists of the following steps, assessing: (1)
the comparable individuals or groups (i.e., for the parties to the proceedings)?;
(2) is treated differently?; (3) the different treatment of the concerned
party to the dispute to the debit (saving the burden or denial of goodness)?; (4)
This different treatment is justified, IE. (a) pursues a legitimate
interest and (b) is reasonable?
Application of general principles to the present case
36. in the present case, the equality of the participants need to understand
the procedural equality of the parties in civil procedure.
37. A judgment by default is a special kind of judgment; It is a typical
Institute of classical civil process at issue, in which they are issued
the decision on the rights and obligations which the parties may freely
mimoprocesně Dispose (Winterová, judgment by default, the judgment of the
for recognition. Legal practice, 1993, no. 10, p. 594).
38. the General Court may decide by a judgment in absentia in accordance with § 153b of.
with the row, if the following conditions are met: (1) the defendant was
the Court delivered the action into their own hands; (2) the defendant has been served
into your own hands the summons to a hearing at least 10 calendar days
before the date of the hearing; (3) the defendant was advised that he will be
decided against a judgment by default, if the negotiations,
to which he had been summoned, misses no reasonable and timely apology; (4) the defendant
the meeting, which was the first negotiations on the matter, without apology,
where appropriate, its apology, which ran out of court before the start of the negotiations, it is
unfounded; (5) the applicant to attend a hearing on the matter came and suggested
that was decided by the judgment for the judgment of the defendant; (6) on the basis of
claims in the lawsuit about the facts of the dispute, it is possible
decide against the defendant, as to the legal assessment of those
the alleged facts justify a conclusion that the action is
well founded; (7) a judgment by default is permissible; and (8) are not
conditions for the issuing of the judgment for the recognition (Bureš, j., Clawed, l.,
The Inkeeper, of the code of civil procedure.-a comment. 7. the issue. Prague: C. H.
Beck, 2006, p. 703-704).
39. A judgment by the General Court may, but need not. The law so
It leaves to the discretion of the Court whether and where they are met by the law
set assumptions, it is appropriate to decide on the matter kontumačním
judgment, the opposite interpretation, i.e.. that the Court must a judgment by default when
evidence that the conditions specified in § 153b of the row, the doctrine and
the case law has already been completely abandoned.
40. the judgment in default is among the institutes used to accelerate the
proceedings to which the Constitutional Court has previously expressed. The General principles of
related to these institutes has defined in its award SP. zn. I. ÚS
329/08 of 20 May. 6.2011 (N 118/61 SbNU 717) where in connection with
judgment judgment stated:
"14. the courts are article 90 of the Constitution of the United States called upon in particular to
to the law laid down by way of providing protection to the rights. It
generally applies to any kind of judicial proceedings, even for the judiciary
civil. In accordance with the definition in the civil jurisdiction can be of
of the cited article of the Constitution, that the purpose of the civil proceedings of the Court of
is the provision of protection for endangered or impaired subjective private
the rights of ...
15. On the protection can be in the truest sense only if
civil process allows you to enforce the actually existing, and not
fictional subjective private rights and obligations. The extent to which
civil procedural law is moving away from this goal, is denied not only
protective function of the civil procedural law, but also a sense of
private control; in the final analysis is then significantly impaired by
legal certainty. In other words, the civil procedural law is effective only in the
the extent to which it is eligible to provide protection to the actual subjective
the substantive rights of the ...
16. that the request is generic, and can therefore be applied to all
the institutes used to accelerate civil proceedings of a court, including the
judgments, which respond to the judgment of the participant. Features of an order
the judgment is not any way to speed up the proceedings, but speed up the procedure for assistance
the application of factual presumption of adverse, against whom the judgment is for the
default judgment handed down. By default, the judgments are based on the fact that the procedural
the party in control of defending their rights, even though she had the opportunity to do so (eg.
Rosenberg, L.-Schwab, K. H.-P., Zivilprozessrecht, Gottwald. 16.
release. München: c. h. Beck, 2004, pp. 704), and despite the fact that it is a
inter partes dispute dominated projednací principle in which the party itself
in their own interests to contribute to the clarification of the facts, if they are
claims of the counterparty is untrue, incomplete or otherwise deviate from
fact. Judgment by default in this view, as it indicates
Prof. Macur (Macur, j. Judgment on the basis of entitlement referred to in fiction
the provision of Section 114b of the row advocacy Bulletin, 2002, no. 2, p. 32),
' is not based on some ' fikcích ' or the mere effort to end
negotiations at any cost, but is based on long term proven factual
the presumption according to which it is highly likely that a party that any
in a way the other procedural claims does not dispute, though it has tents to
all of the options, do not take any factual claims or proposals and evidence to
ordered to the first oral court hearing, does not appear in the
fact no arguments or evidence against the correctness of the facts
the second claim process by ... In all modern civil judicial
orders are carefully excluded all unhealthy influences,
that could adversely, thus conflicts with the objective
the facts affect the application of the presumptions of fact or experience
the sentence ... The result of the application of the presumption is highly probable conclusion
bordering on certainty that decisive factual claims process of the party
to which the other party had not contradicted, are true. It's not about the application of fiction,
but the use of presumptions of fact, about which it can be assumed that corresponds to the
given that before the process of objectively and independently
occurred. The first conclusion of the judgment must be based on it. This is not a
judgment for recognition, but on the judgment issued on the basis of the facts,
that is in accordance with the internal conviction the judge, since it derives from the
in General, applying the factual presumption (experiential). '. '
41. On the basis of these general principles, the Constitutional Court stated that the
Institute a judgment by default is not in itself contrary to the
a fair trial [resolution SP. zn. III. TC 370/98 of 28 April. 1. the 1999
(On 7/13 SbNU 405)], however, its application must be in accordance with the purpose of
order the judgment (cf. e.g. the above quoted find SP. zn. I. ÚS
329/08, paragraph 17).
42. The application of the judgment by the Constitutional Court expressed
several times, while the basic principles in the report clearly summarized SP. zn.
I. ÚS 2656/12 of 7 November. 5.2013:
"14. the Constitutional Court has already in many of the findings [cf.. for example. the discovery of 10 June. 3.
2005, SP. zn. III. TC 428/04 N 53/56 SbNU 563), the discovery of 23 December 2003. 8.
2005, SP. zn. IV. TC 63/05 (N 163/38 SbNU 301), the discovery of 15 July 1.
2009, SP. zn. IV. TC 2785/07 (N 10/52 SbNU 103)], in particular,
the following legal opinions.
15. when deciding on the possible release of the judgment by default or when
design decisions of the defendant to set aside the default judgment should
the Court should also take into account the previous procedural activity of the defendant,
so that comment on the submitted application, whether the proposed evidence to defend ourselves
16. To issue a default judgment, the Court should be approached with discretion and had
Choose this Institute, in particular in cases in which the lack of interest on the part of
the defendant is obvious, when the defendant is truly idle (which is apparent
for example. from the content and frequency of the previously made procedural acts), and
he refuses to actively participate in the judicial process, or deliberately court proceedings
17. This is because the default judgment is a formal institution, which
significantly reduces the possibility of the application of the procedural rights of the defendant. Each
has the right to seek protection in a Court of law, which has been threatened or
infringed. The provisions of article. 90 of the Constitution states that the courts are called upon
primarily to the law laid down by the way provide protection
rights. According to the article. paragraph 36. 1 of the Charter, any claim laid down
the procedure of their rights before an independent and impartial court and in specified
cases at another institution.
18. In cases where otherwise active participant unintentionally for their error
misses the first court hearing, but it is clear his interest to participate in the
the court proceedings and to defend itself, not the release of the judgment by default.
Priority in court proceedings in this case must remain the protection of the rights of
the participants of the trial (of the defendants), who in a judicial proceeding they want
actively participate. The main mission of the legal proceedings is to ensure the
fair protection of rights and legitimate interests of the parties (§ 1, § 3.
r.). terms of Decree of the judgment must be assessed carefully
and with restraint, in a controversial and borderline cases is not the issue
no need to answer.
19. The opposite of this procedure is precise formalism, the effect of which is
sophisticated reasoning an obvious injustice and the violation of
the meaning of § 1 and § 3 of the row. 90 of the Constitution and article. paragraph 36. 1 of the Charter
fundamental rights and freedoms.
20. If the Court of first instance has already chosen such a procedure (i.e. slated
If a judgment by default), it is for the Court of appeal to provide
protection to the rights of the participant. In this case, it is necessary to take
account primarily for the purpose of legal proceedings, which is the protection of the rights of
the parties (the courts are called upon to ensure that the law laid down by the
way to provide protection to the rights). "
43. In the award IV. TC 2785/07 of 15 December 1999. 1.2009 (N 10/52 SbNU 103) then
The Constitutional Court stressed that the Court must examine not only the reason
by default, but also a time range by default:
"The Court must, therefore, in each case before proceeding to
the release of the judgment by default, or the decision on the application for revocation
default judgment, carefully consider whether the reason for default judgment, as well as
as the time range of a default judgment to the defendant at the first hearing, are
excusable. When deciding on the possible release of a judgment by default,
or when deciding on the design of the defendant to set aside for
a default judgment, the Court should also take into account the previous procedural activity
the defendant, namely whether the submitted application, whether the proposed evidence to
their defense, etc. The Court should be taken into account in each case
also the nature of the subject-matter of the dispute. "
This means that in the case where otherwise active defendant misses a hearing about
five minutes, there is no issue of default judgment must be [cf. find sp.
Zn. III. TC 428/04 of 10 March. 3.2005 (N 53/36 SbNU 563)].
44. the Constitutional Court also commented on the application delivery in fiction
the context of the judgment by default, and in finding SP. zn. II. THE TC
451/03 of 16 June. 9.2004 (N 131/34 SbNU 325), where he stated:
"The basic requirements the provisions of section 46 paragraph 2. 4. s. l.,
that the addressee at the point of delivery in the time when this
delivery is to be made. Conversely, if a participant in the place
delivery delay, the delivery cannot take. fiction Expressly
formulated a rule does not allow modification, the Court has already done,
When examined and considered the relevant reasons for which the applicant
in the place of residence did not bother. Having regard to the provisions of § 46 para. 5.
with the round was on the complainant, in order to refute that at the point of delivery
During her stay. It is completely irrelevant, for what reasons this has happened.
If it is proved, then it cannot be effectively
delivery (could not get in fiction). The Constitutional Court is forced to
held that the interpretation of the provisions of § 46 para. 4 and 5 of general courts
in the present case was so extreme that it cannot be regarded as
constitutionally Conformal. As a result of this interpretation was the complainant
impossible to claim their rights in an independent and
impartial tribunal (article 36, paragraph 1, of the Charter). General courts also
act outside the limits of the law, which has also been a violation of article 6(1).
2 (2). 3 of the Constitution, or article. 2 (2). 2 of the Charter. "
It follows from this that, if the Court is considering the judgment for
default judgment in cases where an action or the summons to a hearing
delivered on the basis of the so-called. the fiction of delivery, must be extremely
carefully and examine whether they were truly exhausted all options, as
the defendant's reach.
45. From the above analysis of the existing case-law of the Constitutional Court
It is clear that the Constitutional Court has in the past dealt with the souladnost judgment for
in absentia the right to a fair trial (cf. resolution quoted above
SP. zn. III. TC 370/98), precise formalism in the application of the judgment for
default judgment (cf. e.g. the above quoted find i. ÚS 2656/12), the soundness and
the timeliness of the apologies of the party or the legal representative of the meeting, when the
decided by the judgment in absentia [cf. e.g. find sp.
Zn. I. ÚS 1084/08 of 18 May. 6.2008 (N 111/49 SbNU 599)], the obligation to
the Court of appeal to give the defendant the opportunity to comment on the merits test apologies
(see e.g. above quoted find SP. zn. IV. TC 2785/07) or the difference between the
missed and delayed (see e.g. above quoted find SP. zn. III. THE TC
428/04) and the obligation to interpret "first act" constitutionally Conformal
(see the above quoted find SP. zn. I. ÚS 326/08; to the General
assumptions for the issue of a judgment by default there defined see section
38 the current award).
46. In the present case, however, applied the new argument, and it
through the argument based on the principle of equality of the participants
proceedings, enshrined in article. paragraph 96. 1 of the Constitution, article. 37 para. 3 of the Charter, article.
6 (1). 1 of the ECHR and article. 14 of the International Covenant on Civil and political
rights. The Constitutional Court therefore proceeded to test application of equal
treatment as defined in section 35 of this finding.
47. with regard to the first step of the test set out above, equal treatment,
i.e.. the issue of the comparability of the situation compared to individuals, the constitutional
the Court finds that the plaintiff and the defendant are in civil procedure
the parties to the dispute. Therefore, they are parties to the proceedings, as required by the first step.
48. as regards the second step of the test of equal treatment, the judgment for
judgment pursuant to § 153b of the 5th issue in favour of the plaintiff, the only
While the defendant cannot take advantage of an order by the judgment of the Institute. Out of it
It follows that the applicant on the one hand, and the respondent on the other hand is
49. In the third step, then, the Constitutional Court assessed whether the alleged different
treatment to the detriment of the party in whose favour he launched a General Court
management of specific control standards referred to in article 14(2). 95 para. 2 of the Constitution. In
the present case is in Děčín District Court considers that it has suffered is
the defendant. The Constitutional Court agrees with this conclusion. The fact that the defendant
cannot design a judgment by default against the
nedostavivšího the Prosecutor, he is denied the opportunity that you want to
available to the applicant. Different treatment, therefore, to the detriment of the defendant, and
the Constitutional Court therefore proceeded to the final step of the test of equal
50. In the last, fourth step, the Constitutional Court assessed whether it is different
treatment of the plaintiff and defendant in relation to the possibility to propose the release of
order of the judgment is justified. Ospravedlnitelnosti assessment
is breaking up into two parts: (a) assessment of the legitimate interests of the different
treatment; and (b) the adequacy of the different treatment. In other words,
The Constitutional Court had to consider whether a legitimate interest is given on how to
the release of the judgment by default design only the plaintiff, and if such
a legitimate interest exists whether this different treatment is reasonable.
51. In the identification of legitimate interest was based on the Constitutional Court of the explanatory memorandum
the message to Act No. 171/1993 Coll., the code of civil procedure
Institute an order by judgment. One of the main principles of the
This amendment was to accelerate civil proceedings (see General section
explanatory memorandum to the Act No. 171/1993 Coll.). To this end, to
Code of civil procedure introduced by the institutes default judgment and
judgments of recognition. As regards the judgment in default, the explanatory memorandum
States that the concept of the default judgment in the § 153b of the row while
follows the Edit contained in the civil code (Act No. 113/1895
.), which, according to the legislature's long-term applications have proved their
justification, however, "[n] and the difference from this edit that in Czech
countries allow a default judgment as a judgment to decide when
failed to attend a hearing duly transferee the defendant, so even if the
If you missed the first meeting of the Prosecutor's Office, it is proposed to modify similar edit
Hungarian law which were in force in the Slovak Republic, and which admits the release
judgment by default only in the case when the first act misses the defendant "
(see the explanatory memorandum to the Act No. 171/1993 Coll. to point 18). To a different
treatment has led the legislature "the fact that the admission of the judgment for
by default, the applicant and the defendant would create uneven position of the parties.
If the defendant misses a meeting, he's out of action known not only received in advance
the subject of the proceedings, but also the applicant's line of argument, and what evidence it offers
Court to prove their claims. If accepted, the judgment for
by default, the plaintiff, missed the party, that the opinion of the defendant
ahead and did not have the opportunity to respond to the allegation that the defendant
It was only at the hearing, the Chairman shall refer "(ibid.).
52. Consequently, the aim (again) the anchoring of an order by the judgment
the Czech civil process was to streamline the activities of the general courts
and the acceleration of the proceedings. Different treatment of the plaintiff and defendant
the legislature was motivated by the fact that the defendant is before the first hearing in
more favourable situation, since he knows the subject of the proceedings and the arguments of the Prosecutor,
While the applicant does not know the opinion of the respondent before the hearing (or not
to know if the defendant has not sent the Court a replica to the application).
53. this concept of default judgment therefore comes from the fact that the plaintiff
already their interest in the activity and the things he showed, and had to meet all other
procedural requirements. The reason for the different treatment of the plaintiff on the
the one hand, and the respondent on the other hand considers the Constitutional Court
legitimate. Also access to the background to the adoption of
Act No. 171/1993 Coll., which the court proceedings unnecessarily prepared
primarily by the defendants (e.g. borrowers). The threat of a plot
default judgment should lead to a "disciplined" the defendants, who are
dodging, whether due to their inertia, or deliberately, participation in court
negotiations and thus very complicate the exercise of justice. On the contrary, the applicant usually
on the date of the judgment, and hastened to the Court contended the regulation rather
the negotiations, to boycott. This de facto status continues to this day.
It is true that-as noted by the District Court in Děčín-in practice in the
limited cases occurred and the situations in which the first
the applicant does not appear at the hearing. The Constitutional Court is but from official activities
known that these cases were and are rarer than a no-show
the defendant or the plaintiff, and not be presented in its submission that no
empirical data to the contrary. There is therefore nothing to indicate that there would be a
significant change in the social conditions of the effectiveness of Act No. 171/1993
Coll., which cast doubt on the legitimacy of the existing solution that
allows you to issue a default judgment in favor of plaintiff only.
54. at the conclusion of legitimacy because of the different treatment as referred to in
cited the explanatory memorandum does not alter or historical considerations of the petitioner.
The legislature was the adoption of Act No. 171/1993 Coll. aware of different
the concept enshrined in § 396-397 c. l. s. that threatened the walkover
the two parties, and deliberately deviated from it (see paragraph 51 of this award)
the benefit of the Hungarian concept, used to this day, for example, in Slovakia
(cf. § 153b of Act No 99/1963 Zb., Občiansky súdny poriadok;
(again), enshrined by law No. 232/1995 Coll.). In doing so, as
stated in the preceding paragraph, the legislature provided a reason for the different
treatment of the plaintiff and defendant of the Constitutional Court considers it legitimate.
Different adjustment in civil procedure code the Court so cannot of itself lead to
the conclusion on the unconstitutionality of the existing editing in § 153b of the row.
55. The same is true also for comparative argument. The fact that in
other countries have different editing, without further does not mean that United
the adjustment does not pursue a legitimate public interest. Moreover, the applicant does not
no example where the concept of the default judgment similar to that of the Czech,
i.e.. allowing to demand judgment by default only for the benefit of
the plaintiff was found to be unconstitutional. In other words, German, Austrian, or
the Czechoslovak first Republic the concept of an order by the judgment are
Perhaps de lege ferenda, preferable, however this does not mean that the existing
Czech concept in § 153b of the row does not pursue a legitimate public interest, and is
56. The Constitutional Court so proceeded to the assessment of the adequacy of a different
treatment of the plaintiff and the defendant, which is payable by the defendant. In this
the criterion is necessary to assess whether the requirement of equality of arms is populated in the
her integrity, IE. If each of the parties to the proceedings may plead my cause
under the terms of which, from the perspective of management as a whole, significantly
neznevýhodňují due to the counterparty (see paragraphs 28-32 this finding).
The Constitutional Court in this step also took into account the fact that the judgment of the
a default judgment is a procedural penalties, which affects their attention on side
its procedural interests, and not the direct sanctions, so the application should
This sanctions the Institute civil proceedings the Court should not be in the
contrary to its function, i.e. It should not be directed to issue judgments,
which are in conflict with the actual substantive status (Stavinohová,
J., Mr L, P. Sanctions in civil procedural law. Legal forum, 2008,
No. 9, p. 374). Or, order by judgment is not any function
to speed up the proceedings, but speed up the procedure with the help of the application of factual
the presumption according to which you can with a high probability bordering on certainty
be considered as true decisive factual claims process the parties to whom
counterparty did not contradict, though had an opportunity to [find SP. zn. (I).
TC 329/08 of 20 May. 6.2011 (N 118/61 SbNU 717)].
57. The key starting point for Constitutional Court is then how to Institute
default judgment applied the general courts, and should be taken into
account both the formal prerequisites for the application of the Institute
expressly referred to in § 153b of the row, so the material conditions for its
application resulting from its purpose.
58. A disadvantage of the defendant is first and foremost the pre-moderated formal
the conditions for the issue of a judgment by default, referred to in § 153b of.
(see paragraph 38 of this finding), of which the most important in terms of
the equality of the parties, are two: a review of the claims put forward by the applicant
the Court and the possibility of additional excuses. These two conditions are
default judgment differs from the judgments of recognition under section 153a of the.
with (see SMID, of the Institute of the preparatory meeting.. Legal forum,
2011, no. 1, p. 17). As regards the first condition, IE. a review of the
the merits of the action, this means that the Court does not issue a judgment for
by default automatically just after the applicant's proposal, but the factual allegations
the plaintiff must lead to the conclusion that the claim, which seeks, is true.
If the Tribunal considers that these claims are incomplete and cannot be one of them
to draw a conclusion about the validity of the plaintiff's claim, then it is not possible
decide by a judgment by default (see also the judgment of the Supreme
of the Court of 28 June. 12.1998, SP. zn. 15 What 437/94). Similarly, that
the incompleteness of the factual allegations could not be for the purposes of the judgment for
by default remedied during the first session, as it cannot be taken into account to supplement the
factual assertions and evidence during the first session (cf. judgment of the
The Supreme Court of 30 June. 3.2001, SP. zn. 20 Cdo 2498/99). The second
by limiting the inequalities between the plaintiff and the defendant is then the possibility of apologies from
defendant (acceptable reasons for failure to appear at the hearing.
Spáčil, j. adjournment of court hearing and excuse the participant or his
representative. Advocacy newsletter, 2004, no. 3, p. 12).
59. Above and beyond the formal conditions laid down in § 153b of r. then
The Constitutional Court adds that the judgment by default applicable only in
simpler matters; in more complex matters, it is necessary to prepare
negotiations within the meaning of § 114c of the row for which the code of civil procedure counts
not only are the sanctions in case of failure by the defendant (see § 114c para.
6 o. s. l.), but also in case of failure by the applicant (see paragraph 114c paragraph.
7. s. l.). Also this fact thus moderated the inequality between
the plaintiff and defendant in the application of the judgment by default.
60. The material conditions for the issue of a judgment by then
result from the use of the verb "may" in section 153b para. 1. s. l.,
provides that the "[from] mešká if the defendant ... the first hearing in the case
held, ... the Court may rule on the action by a judgment in absentia. " It
means that the Court, in compliance with the formal conditions laid down in § 153b of.
with row may or may not issue a judgment by default. General courts therefore
have a default judgment when using a diskreci, aimed at
is mj. just to prevent the infringement of the principle of equality of parties to the proceedings (respectively.
to preserve the equality of their weapons).
61. the first and most important material condition of an order by the judgment
is the absence of the procedural activities of the defendant. The General Court judgment for
a default judgment shall not issue, if the negotiations failed otherwise procedurally
Active defendant (find SP. zn. I. ÚS 2656/12 of 7 November. 5.2013; closer
see paragraphs 42-45 of this finding). Just as the principle of equality is made
Parties to the proceedings. As was pointed out above, features
order the judgment is not in any way to speed up the proceedings, but speed up
control with the help of the application of factual presumption which can be high
probability bordering on certainty be considered true decisive
factual claims process the parties to whom the counterparty did not contradict, although to
It had the opportunity. Just the previous procedural activity of the defendant,
who have failed to attend a hearing, therefore, may in a particular case
the application of this factual presumption excluded (cf. Constitutional Court
SP. zn. I. ÚS 326/01 of 20 December. 6.2011).
62. the second substantive condition lies in the distinction between the default and
with just a delay. Thus, if the defendant arrived at the hearing only with the
a delay of a few minutes, do not use the default judgment must be
[find SP. zn. III. TC 428/04 of 10 March. 3.2005 (N 53/36 SbNU 563)].
63. A judgment by default is associated with other material
limits. It is clear that the Institute cannot be applied even in situations
When is the General Court known to the defendant at the hearing from the failed
because of a natural disaster or other inevitable events (on the situation
the civil procedure code also explicitly remember the Court; see § 402 paragraph 2. c. r. s.).
The Constitutional Court also considered unconstitutional application of the judgment for
default judgment in cases where the respondent submitted tens or hundreds of
actions that, in their cumulative effect to constitute a vexatious filing,
and the defendant misses a hearing just at one of them; in such cases, the
exceptionally, could account feels and concept of abuse of rights.
64. General courts must carefully consider the particular application of the judgment
default judgment in cases where the defendant was served the lawsuit and
summons to a hearing pursuant to § 49 paragraph 1. 4 of the code of civil procedure, that is,
on the basis of the so-called. substitute service or fiction; So how to do this
Indeed, even in the present case the appellant SP. zn. 22 C 128/2009
(the summons to a hearing here, the defendant was delivered on the basis of the so-called fiction
delivery according to § 49 paragraph 1. 4. s. l.). The Constitutional Court to the fiction
in connection with the delivery of the judgment by default already expressed in the above
the cited award SP. zn. II. TC 451/03 (see section 44 of this finding). From
It follows that if the Court issued a default judgment in cases where
have been an action or the summons to a hearing at the. fiction
delivery, must proceed extremely carefully and examine whether they have been
truly exhausted all options, as the defendant.
A judgment by default is not built on a fiction nespornosti
the facts, but on the assumption that the defendant very likely does not have
no arguments against the accuracy of factual claims of the plaintiff, with whom
could meet. However, if the defendant could not realistically with the arguments of the applicant
meet, this presumption is significantly eroded (see above quoted find
SP. zn. II. CS 455/03). It does not change the fact that it is
above all things the addressee (the defendant) to (properly) were taken over by the Court
the document at the address for service.
65. The Constitutional Court notes that however you cannot anticipate all the possible
a situation where the General Court shall refrain from issuing a judgment by default,
Although the formal conditions are met as set out in § 153b of the row Above
enumeration type referred to cases where the issue of a judgment by default in
contrary to the principle of equality of parties to the proceedings, it is therefore only
demonstrative. In other cases, the general courts must follow the General
citations, by the Constitutional Court in this award, or
in finding SP. zn. III. TC 428/04 of 10 March. 3.2005 (N 53/36 SbNU 563):
"The priority in court proceedings in this case must remain the protection of the rights of
the participants of the trial (of the defendants), who in a judicial proceeding they want
actively participate. The main mission of the legal proceedings is to ensure the
fair protection of rights and legitimate interests of the parties (sections 1 and 3.
r.). Conditions for the Decree of the judgment must be assessed
wisely and with restraint, in a controversial and borderline cases is not his
release order. "
66. with regard to the above-described formal and material conditions for the issue of
default judgment and on available remedies against Microsoft
This process of the Institute, the Constitutional Court is of the opinion that from the point of view
civil procedure as a whole is not a defendant to the existence of the investigation
the Institute has suffered substantially against the plaintiffs. In particular, the
the material conditions for the application of the judgment by formulated
The Constitutional Court and the Supreme Court, and later adopted by the lower General
the courts are a sufficient tool to prevent or correct the leader called.
"false judgments" (consistently see Bezouška, P. Short reflection on
judgments of recognition and default judgments. Právní rozhledy, 2004, č. 1, s.
34.) different treatment by the respondent in the application of the judgment by default
Therefore, it is reasonable, and therefore this process in a test of the constitutionality of the Institute
He has prevailed.
67. The provisions of § 153b of the row can be interpreted to be constitutionally Conformal
way. The Constitutional Court then put in accordance with the principle of judicial
restraint (judicial self-restraint) take precedence over constitutionally konformnímu
the interpretation of legal provisions before the contested and from above
the proposal for the reasons given by the District Court in Děčín on cancellation of the Institute
default judgment enshrined in § 153b of the row failed. However, this
It cannot be excluded, if this finding, and it laid out a constitutionally compliant
the interpretation of the general courts will not be followed or it is established that there has been a
material change in circumstances since the introduction of the Institute of social sciences
an order by the judgment in 1993 (for example will be demonstrated in the increased number of
nedostavivších the appellants to Act), the Constitutional Court in the future to
repeal of existing forms of an order by the judgment will not proceed.
68. At the conclusion of the Constitutional Court emphasises that although arguments
The District Court in Děčín did not persuade the unconstitutionality of the existing
editing an order by the judgment in § 153b of the row, because the different treatment
the plaintiff and the defendants according to the Constitutional Court does not reach the intensity of the
unconstitutionality, the Constitutional Court considers that the arguments put forward by the District
a court in Decin as legitimate, which is confirmed by the views of the many Czech
civilians, also plédují for the introduction of modifications to a judgment by default
the applicant (cf. for example. Winterová, a. et al. Civil procedural law. 1.
release. Prague: Linde, 1999, p. 268; or Bezouška, P. Short reflection
above the judgments of recognition and default judgments. Právní rozhledy, 2004, č. 1, s.
34). But it is rather about the initiative to consider the amendment of an order
the judgment; such a change, however, is not the competent constitutional court, but
The Parliament of the United Kingdom, as the Constitutional Court is not positive
by the legislator.
A summary of the
69. the Constitutional Court of the District Court in Děčín on cancellation of the Institute
default judgment enshrined in § 153b of the row for the lack of
the principle of equality of parties to the proceedings, enshrined in article. paragraph 96. 1 of the Constitution
The United States, art. 37 para. 3 of the Charter of fundamental rights and freedoms, article. 6
paragraph. 1 of the ECHR and article. 14 of the International Covenant on Civil and political
rights, has not complied with, since the Court concluded that section 153b of the row can be
lay out so that is contrary to the principle of equality of parties to proceedings
did not occur. Therefore, the Constitutional Court gave priority to constitutionally konformnímu interpretation
before the cancellation of the contested provisions and in accordance with the principle of judicial
austerity proposal from the District Court in Děčín.
70. the Constitutional Court in its case-law, namely repeatedly [find SP. zn. PL.
TC 41/02 of 28 October 1999. 1.2004 (N 10/32 SbNU 61; 98/2004 Coll.), find sp.
Zn. PL. ÚS 16/08 of 29 May. 9.2010 (N 203/58 SbNU 801; 310/2010 Sb.)
find SP. zn. PL. ÚS 79/06 of 16 June. 10.2007 (N 162/47 SbNU 145;
307/2007), finding SP. zn. PL. ÚS 15/12 of 15 April. 1.2013 (82/Sb.)
find SP. zn. IV. TC 3102/08 of 12 October. 7.2010 (N 144/58 SbNU 183)]
He explained that if the possibility of constitutionally consistent interpretation
the contested provisions, this has priority over the SERENADES of the contested
provisions. To this procedure, alleging the principle of minimizing the
the intervention of the Constitutional Court came up this time, and, by analogy, as in
the previous cases cited above, the said interpretative statement
which the general courts and lawmakers suggested way of interpreting
the contested provisions constitutionally Conformal procedure. The Constitutional Court has already in
the cited award SP. zn. PL. ÚS 41/02, concluded that: "Different
the interpretation of the article. 89 para. 2 of the Constitution, for the findings, suggestions to zamítajících
the abolition of legislation on grounds of constitutional priorities Conformal
interpretation of decisions of the Constitutional Court was legally bezobsažnými,
possibly confusing, and at the same time urged the Constitutional Court to the procedure
appears to be, in effect, an absurd and unsustainable: rather than relying on
the possibility of constitutional interpretation, abandoned compliant judicial self
restraint and in the case of the slightest possibility of conflicting interpretations of constitutional
the contested regulation cancel it. For referred to in proceedings for review of the standards in the
the case of the adoption of a negative statement with interpretative argument to the constitutional
the Court reasons arising from a set of load-bearing basic constitutional principle ranked
in the framework of part of the award. "
On the basis of its sustained practice and for the above reasons, therefore, the constitutional
the reasons of this Court bearing to generalise its award on the constitutionally
Conformal interpretation of the provisions under consideration and said it is in the
interpretativním of the operative part of the award.
The conclusion of the
71. On the basis of all the foregoing, the Constitutional Court
The District Court in Děčín rejected (article 70, paragraph 2, of Act No. 182/1993 Coll.) and
defined the terms of constitutional provisions under consideration of conforming interpretation
The President of the Constitutional Court:
JUDr. Rychetský in r.
Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, a decision of the plenary, the judges adopted a
Stanislav Balík, Jan Filip, Vlasta Formankova, Vladimir Crust, Vladimir
Sládeček and Radovan Suchánek.