Cancellation Of Part Of The Act On Bankruptcy And Settlement

Original Language Title: zrušení části zákona o konkursu a vyrovnání

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101/2003 Coll.



Find



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided on 11 July. March 2003 in Parliament on the proposal of the high

the Court in Olomouc, on the repeal of § 24 para. 4 Act No. 328/1991 Coll., on the

bankruptcy and settlement, as amended,



as follows:



The provisions of § 24 para. 4 Act No. 328/1991 Coll., on bankruptcy and settlement,

as amended, is deleted.



Justification



(I).



The day the Constitutional Court received 15.8.2002 according to art. 95 para. 2 of the Constitution of the United

Republic (hereinafter referred to as "the Constitution") and § 64 para. 4 of law No. 182/1993 Coll., on the

The Constitutional Court, the High Court in Olomouc's proposal to repeal the provisions of §

24 paragraph 2. 4 Act No. 328/1991 Coll., on bankruptcy and settlement, as

the text of the.



The High Court in Olomouc are according to the provisions of Section 104a of the civil

Court (hereinafter referred to as "the row"), presented the decision in

where the parties to the proceedings, the county or district courts have considered that the

It is not determined by the substantive jurisdiction of bankruptcy court for a decision on the application

the lender on the determination of the claim or of the District Court for a decision on

the creditor's claim in the proceedings commenced in the District Court prior to the Declaration

bankruptcy. In these cases, should the Supreme Court decide in Olomouc

substantive jurisdiction according to the contested provisions of § 24 para. 4 of the law on

bankruptcy and settlement.



The applicant justifies its proposal by law No. 105/2000 Coll.

amending Act No. 328/1991 Coll., on bankruptcy and settlement, as amended by

amended, and certain other laws effective from 1.5.2000, was in

new test formulated provisions of section 24 of the Act on bankruptcy and settlement

embedded paragraph Fourth, which provides that if, before the

Declaration of bankruptcy proceedings of popřené receivable and

aborted [section 14, paragraph 1 (b), (c))], determining the popřené

accounts receivable in the already initiated proceedings; a new procedure for popřené to allocate the

not initiated [section 14, paragraph 1 (b), (d))]. A proposal for the continuation of a broken

the proceedings must be filed within the time limits specified by law (article 23, paragraph 4, and 5, and section

24 paragraph 2. 1 and 2); the parties are becoming those whom the law

the participants of the means (article 23, paragraph 2, and 3 and § 24 para. 1 and 2).



In the opinion of the appellant, the legislature offered enough circuit

the cases on which the disposition of this provision will turn out. The application of this

the provisions in the various procedural situations, bankruptcy creditors,

whose claims were unenforceable in the context of the review meeting

disclaimed, the unequal position. In some cases,

find themselves in an impossible situation of a procedural, in other cases, by contrast, are

compared to other bankruptcy creditors.



The High Court in Olomouc in its proposal further stated that the application

the provisions of § 24 para. 4 of the Act on bankruptcy and settlement occurs in

If the popřené claim proceedings have been initiated prior to the Declaration

bankruptcy and the bankruptcy Declaration, this procedure was discontinued. According to the

the claimant's opinion doesn't count § 24 para. 4 cases where the adjustment

proceedings in the Court of first instance has already been decided yet

was not in force and was not even challenged by appeal, resistance or

objections. In these cases, the Court decision is published by bound

in accordance with § 156 para. 3 and § 170 para. 1. with a row in a given situation cannot

in the opinion of the appellant no longer occur to change participants or to change the

the proposal when the matter has already been decided. On the other hand, however, contested

provisions which forbid to initiate a popřené claim a new procedure.

The rapporteur therefore considers that in this case, the creditor

unenforceable claims process to obtain the decision of its

popřenou dispute the claim in bankruptcy proceedings.



The rapporteur also considers that the provisions of § 24 para. 4 of the law on

bankruptcy, however, may lead to the infringement of the equality of the bankruptcy

the lenders not only to the detriment of the creditor whose claim has been conducted

proceedings before the Declaration of bankruptcy, but also its advantages compared to the

other bankruptcy creditors. The provisions of § 24 para. 4 of the law on

bankruptcy is clear obligation of the Court to modify the circuit

the parties and the operative part of the judgment without an application. Therefore, in cases where

bankruptcy creditor formulates a proposal for the continuation of the already initiated proceedings

inaccurately or incorrectly, it is explicitly the provisions of § 24 para. 4 of the law on

bankruptcy from creditors in a bankruptcy than others,

whose claims were supported also disclaimed.



In the above mentioned facts the applicant sees reasons

neústavnosti the contested provisions of the Act on bankruptcy and settlement, and

He suggested, therefore, acceptance of the award, which will be the provisions of § 24 para. 4 of the law on

bankruptcy and settlement, as amended, repealed.



II.



The judge-rapporteur has requested, in accordance with the provisions of § 42 para. 4 and § 69

paragraph. 1 Act No. 182/1993 Coll., on the Constitutional Court, as amended

legislation, representation of both chambers of the Czech Parliament.



And)



Chairman of the Chamber of Deputies, represented by PhDr. Lubomír Zaorálkem, in

its observations dated 10.10.2002 stated that the motive of the legislator to

the inclusion of the provisions of § 24 para. 4 of the Act on bankruptcy and settlement on the determination

disputed claims within the framework of previously launched and the Declaration of bankruptcy

the broken procedure was to simplify and rationalise the way discussion

the disputed claim for the need for bankruptcy. This provision, in his

view allow reducing incidental disputes where it would be

otherwise, it must initiate a new procedure, a separate lawsuit on the determination of disputed

accounts receivable. As a general rule can be broken out of the existing procedure for the same

claim a number of evidence that have been interrupted proceedings

performed. The legislature when discussing the Act was based on the purpose of the law

and objectives of the bankruptcy proceedings and was in the belief that complies with the requirements

The Constitution and the Charter of fundamental rights and freedoms ("the Charter").



At the conclusion of his observations of the President of Parliament

The United States, that the law No 105/2000 Coll. amending and supplementing the

Act No. 328/1991 Coll., on bankruptcy and settlement, as amended

legislation, was approved by the Chamber of Deputies on 21. a meeting on

28.1.2000, while 128 voted for its adoption of the 152 present. The Senate

The Czech Parliament has approved a draft law submitted by the

The Chamber of deputies in the texts of amendments to its 16. a meeting of the

the date of 1.3.2000 and subsequently approved by the Chamber of Deputies a draft law on

the version approved by the Senate when the 98 of 181 present voted for and 81

against. The law was approved by the required majority of members

the legislature, was signed by the respective constitutional officials, and was

properly declared. In the opinion of the Chamber of Deputies acted as legislator

the choir, in the belief that the law is adopted in accordance with the Constitution and the constitutional

policy and it is up to the Constitutional Court, in the context of the examination of the

the proposal to assess the constitutionality of the contested provisions and issued the relevant

decision.



(B))



The Senate in its observations dated 16.10.2002, signed by the Chairman of the doc.

JUDr. Petr Pithart, stated that the Bill was submitted to the Senate of the day

the Senate proposal discussed 7.2.2000. on their 16. the meeting of the second term of Office

period June 1.3.2000 and its resolution No. 302 returned the Bill

The House of representatives with amendments. For the return of a Bill

of the 53 senators present voted 52 and 1 Senator abstained from the vote.

The Chamber of Deputies a draft law discussed again the day the 4.4.2000

its 24. meeting. The Bill as amended by the amendments approved

by resolution of the House of Commons no 902, when present, 181

Jos adoption 98 members and 81 votes against.



Senate committees was the issue of § 24 para. 4 the Act extensively

discussed in the context of the intention to make the so-called. incidental disputes always

the Court ruled, even if it is otherwise of the claims on which the Court does not have

jurisdiction, which does not correspond to the provisions. § 7 para. 1 of the code of

Code of civil procedure. The concept, according to which incidental disputes should decide

for example, as well as for the administrative and tax courts, bankruptcy claims

appeared in custody at § 24 para. 4 to amend the law as incoherent, since

According to some opinions, it was overlooked that, according to § 14 para. 1 (b). (c))

to interrupt not only judicial but also other proceedings. Continuation of proceedings should

It had happened not before the Court, but by authority (administrative, tax)

which the proceedings were initiated.



According to the observations of the Senate Committees came to the conclusion that the applicant apparently

the law was not taken into consideration, that any outcome of the dispute about the authenticity,

the amount of the claim does not constitute an obstacle or the order became final for

claims in the proceedings that the Declaration of bankruptcy.

Especially significant is this effect appeared to be in a situation where under section 45

paragraph. 2 of the Act on bankruptcy and settlement should not be claims which

for the purposes of bankruptcy be considered established, but that the bankrupt had denied after the

cancellation of bankruptcy, enforcement. The discussion then was also

highlighted the fact that the wording of § 23 para. 2 the last sentence may be in

contrary to § 24 para. 4 of law, since, according to the above opinions


the order claims in the proceedings, the Court should decide in which

continues, and that may not be the management of the Court.



As further stated in its observations, the President of the Senate, despite the above

discussions and proposals for the deletion of § 24 para. 4 of the draft law,

Subsequently, in the committees opinion keep that provision in the present

the text of the. Meetings of the Board, the issue has already been addressed.



III.



According to the provisions of § 44 para. 2 Act No. 182/1993 Coll., on the Constitutional Court,

the Constitutional Court may, with the agreement of the participants to refrain from oral proceedings,

If you cannot expect from this meeting the further clarification of the matter. The Constitutional Court

Therefore, in accordance with this provision, requested from the parties

a statement whether it agrees with the abandonment of the oral proceedings. The filing of the

the High Court in Olomouc 5.3.2003 and submissions of 4.3.2003 also

The Chamber of deputies of the Czech Parliament and the Senate of 7.3.2003

The Parliament of the United Kingdom in the present case have expressed their agreement with the

abandonment of the oral proceedings.



IV.



Before the Constitutional Court to assess the content of the contested

provisions of the law of the aspects set out the provisions of § 68 para. 2 of the Act

No. 182/1993 Coll., on the Constitutional Court, as amended, i.e.. from

for compliance the provisions of § 24 para. 4 of the Act on bankruptcy and settlement

with the constitutional law, the fulfilment of the formal requirements, the adoption of

the relevant legal standards.



The draft law, amending and supplementing Act No. 328/1991 Coll., on the

bankruptcy and settlement, as amended, has been submitted to the

The Chamber of Deputies as a group of 29.4.1999 suggestion of the day. From těsnopisecké

reports of 21. a meeting of the Chamber of Deputies, 3. the electoral period, the constitutional

the Court found that day, according to the Chamber of deputies in favour of 28.1.2000

Printing House 219, in the version approved amendments with

This proposal approval, when 152 members of Parliament present them for design

voted 128 and one Deputy voted against the proposal.



From těsnopisecké news on 16. a meeting of the Chamber, 2. the term was

demonstrated that the day was Bill 1.3.2000 adopted by the EP amendments,

proposals returned to the Chamber of Deputies, when from the present 53 Senators

52 voted for and one Senator abstained from the vote.



From těsnopisecké news on 24. a meeting of the Chamber of Deputies, 3. the electoral

period, the Constitutional Court found that the Chamber of Deputies adopted a of the day

4.4.2000 a bill amending Act No. 328/1991 Coll., on bankruptcy

and to compensate, as amended, and some other laws, in

the version approved by the Senate, and that of the 181 members

voted for and 81 against 98.



After the adoption of the law No. 105/2000 Coll., amending Act No. 328/1991

Coll., on bankruptcy and settlement, as amended, and some

other laws, signed by the competent constitutional officials, and published in the

the amount of 32 of the laws that has been circulated the day 25.4.2000. Law

acquired in accordance with its article. VIII. effect on 1.5.2000.



The Constitutional Court therefore, within the meaning of the provisions of § 68 para. 2 of the Act on the constitutional

the Court found that the Act No 105/2000 Coll., which was to act on the

bankruptcy and settlement inserted the provisions of § 24 para. 4, was accepted, and

issued within the limits of the Constitution laid down the legislative competence of Parliament

The United States and constitutionally prescribed way, as indeed already Constitutional

the Court stated in case SP. zn. PL. ÚS 36/01 (no 403/2002 Coll.).



V.A.



The provisions of § 24 para. 4 to the Act on bankruptcy and settlement inserted

his amendment in the form of Act No. 105/2000 Coll., amending Act No.

328/1991 Coll., on bankruptcy and settlement, as amended, and

some other laws, with effect from 1.5.2000. The contested provisions of § 24

paragraph. 4 turns out to situations where a liquidator or bankruptcy creditor

in the context of the review of the negotiations denied unenforceable the creditor's claim

arising from claims that are logged on to the bankruptcy proceedings. In the case of

the bankruptcy creditor applied prior to the Declaration of bankruptcy of any part of the

This claim in the proceedings by declaring bankruptcy is interrupted, it is

not permitted to initiate a new indirect control, but the procedure for determining the

authenticity, above, or the order of the claims should be carried out before the

the Court, which led to the proceedings, which was a declaration of bankruptcy by law

broken.



As is apparent from the explanatory memorandum to the Act No 105/2000 Coll., in the

If the intention of the legislature to streamline and rationalise the cross

you call up the receiver control procedures. The aim of the legislature was

to reduce the current number of incidental proceedings so that the law

allow the use of the results of the management of broken as a result of the Declaration

bankruptcy, and establish the procedure for the claim that went on before the

a declaration of bankruptcy.



From the explanatory memorandum to the law and the observations of the parties to the proceedings is also

evident that the legislature, the provisions of § 24 para. 4 of the law on

bankruptcy in the belief that in the future it will not be necessary

be initiated on the determination of popřené claims the new management, but that in the original

proceedings will continue on their current status, and, in particular, to exercise the

all factual and other findings.



The Constitutional Court agrees with the applicant that the legislature sufficiently

appreciated the circuit all procedural situations on which the provisions of the

turn out, the practical implications of such a concept, but also its itself

no constitutional dimension.



(B) IN THE.



Article. paragraph 96. the Constitution enshrines as one of the key principles of the functioning of the

and implementation of judicial power in the Czech Republic the procedural principle of equality rights

Parties to the proceedings before the Court. This constitutional principle guaranteeing equal so

procedural status of participants of legal proceedings as to the rights, which the participants

a specific type of proceedings confers on the rule of law. This principle can be

inferred that for a particular control type, the only jurisdiction must be given

the Court stricto sensu in the dimension of the physical and functional, such adjustment shall

be carried out by the law.



Constitutional provisions guarantee equality Institute in its procedural

the form, which, however, has the impact of substantive. The role of the ordinary laws, and

This procedural requirement, is protected in the Constitution and thus understood the Institute

convert to equality of procedural safeguards that populate this way understood

ensure equality.



It is clear that for different control types differing in their subject

the legislature may provide a different range of procedural rights and obligations.

In other words, equality of the parties is to be interpreted as meaning that must

be respected the same range of procedural rights and obligations, in the proceedings

consistent with the same subject. However, it is not permitted to

the distinguishing criterion was the subject of the proceedings instead of participant-albeit

for example, defined their procedural position in any previous

control.



From this interpretation of the provisions of article. paragraph 96. the Constitution is based on (i) the interpretation of the

article. 38 para. 1 of the Charter, since the determination of the legal judge must precede the

constitutionally the legal determination of the jurisdiction of the Court-compliant. The principle

which is the law of jurisdiction reserved to law, includes

not only a postulate, which States that only the law may provide for the authority and

jurisdiction of the Court to hear a particular case, but also the requirement that

the law of such jurisdiction and jurisdiction is defined for all type-identical

cases as well, and probably not an unjustified difference in jurisdiction of courts

understood, materially and functionally.



Substantive jurisdiction of the courts to disputes raised by the bankruptcy or

compensation is regulated in the provisions of § 9 para. 3. in the row so that it is

entrusted to the regional courts as the courts of first instance. These disputes are

among other things, disputes about authenticity, above, and the order of the registered

the claims, which were not contested during the bankruptcy proceedings. In such

situations, it is the bankruptcy lender forced to your claim within the prescribed

the time limits and in compliance with other formalities in the Special

(interim) management, which had been initiated bankruptcy. In such

cases pursuant to the above provisions of § 9 para. 3. row and section

23 para. 2 of the Act on bankruptcy and settlement of substantive jurisdiction in bankruptcy

the Court, IE. in principle, the regional court.



The proposal for the contested provisions of § 24 para. 4 of the Act on bankruptcy and settlement

However, a special definition of the substantive jurisdiction of the Court, if at all

prevents the management of the special proceedings, the proceedings in the bankruptcy court and

constructed for a given type of disputes, i.e.. disputes about authenticity, above and

the order claims a special jurisdiction of the Court, which previously led

to the application of the current proceedings brought by creditors, whose claims popřené

the subject was related to the popřenou unenforceable a claim.



The result of the provisions of § 24 para. 4 is the fact that it constructs

the double mode of substantive jurisdiction of the courts. It can be said that the relationship between

the provisions of § 9 para. 3. s. l., § 23 para. 2 and § 24 para. 4 of the law on

bankruptcy is the relationship between the general law (lex generalis)

and a special law (lex specialis), taking account of the constitutional

the requirement of the legal establishment of the jurisdiction of the Court. However, as previously


stated, it cannot be accepted that the law amounted to an unjustified difference in

the definition of substantive jurisdiction for cases which are the subject of

the same. The concept of the legislation, § 24 para. 4 of the law on bankruptcy and

the settlement creates a duality of substantive jurisdiction in disputes relating to the determination of

authenticity, above, and the ranking of claims in the bankruptcy popřených

control. In doing so, it comes to the subject of proceedings concerning the same dispute. Application

the provisions of § 24 para. 4 of the Act on bankruptcy and settlement causes

the difference in kind and, where appropriate, the functional jurisdiction, where in one case

shall be decided by a regional court in interim proceedings as the Court of bankruptcy, in the

another case, then the Court district, where he led the proceedings brought by the action

the current popřené of the claim, the creditor whose subject was related to the

popřenou claim and that it was a declaration of bankruptcy is interrupted. In

this case, then deciding to determine the authenticity, above or order

popřené concentrates in the Court of claims, which was factually and locally

appropriate to the original interrupted the proceedings, i.e. in a court which is not

Court of bankruptcy. Substantive and territorial jurisdiction established pursuant to § 24 para.

4 of the Act on bankruptcy and settlement thus depends on the factual, local and

where appropriate, the functional jurisdiction of the Court in the previous proceedings, which was

Declaration of bankruptcy pursuant to § 14 para. 1 (b). (c)) the Bankruptcy Act

the settlement discontinued; in fact, however, depends on the position of the

the lender as the plaintiff in the main proceedings.



Such an approach raises as a result of the inequality in the process

the position of individual creditors who legally applied their popřenou

unenforceable debt in various procedural modes.



This is because § 24 para. 4 of the Act on bankruptcy and settlement provides circuit

Parties ex lege (i.e. the parties become those

the law for the participants indicates), and the Court produce the obligation to

the newly described the proceedings to remedy defects of the proposal on

the continuation of the proceedings, unless the relevant requirements (e.g., designation

participants, petit, etc.), even in a situation where the original proposal to begin

proceedings on a claim that was related to the popřenou claim he suffered from disabilities,

that the plaintiff did not remove it. In particular, the creditor has

the obligation pursuant to § 23 of the Act on bankruptcy and settlement in the defined period of time

accurately identify the parties and specify exactly the entire claim. Out of it

It is therefore clear that any interested party (lender) who submitted the proposal for the

the continuation of the proceedings according to § 24 para. 4 of the Act on bankruptcy and settlement,

finds himself in the position of the beneficiary compared to the party to the proceedings

(creditor) who files a motion to begin the special (proceedings)

proceedings in the bankruptcy court pursuant to § 23 para. 2 of the Act on bankruptcy and

settlement.



Procedural inequality of creditors, who exercise their popřenou

unenforceable debt in various procedural modes, is also given and

different fee arrangements. In the event that the original procedure was

suspended in circumstances where a creditor as a party to the proceedings has not yet

legal fee obligation, and then filed for its continuation,

According to § 24 para. 4 of the Act on bankruptcy and settlement, will be compared to the creditor,

the claim is commenced proceedings incidental unjustifiably

preferential treatment. A proposal for the continuation of a broken control namely party

does not arise pursuant to Act No. 549/1991 Coll., on court fees, as

amended, and the court fee, even though the fee

has not been paid either in the main proceedings, it will be obliged to decide the matter.

The consequence of non-payment of the court fee in particular will

on the contrary, stop this procedure. In a situation where a participant in the original

management paid a higher court fee than would be required to pay in

interim management, you cannot delete this discrepancy, which results from the

the inability to do the acts in the proceeding which is legally interrupted.



Referred to the concept of the consequences of unequal rights and obligations of the participants

procedures for determining the authenticity of the above and the order of the popřené of the claim is in violation of the

with the article. paragraph 96. 1 of the Constitution, whose contents to the extent of its impact was

laid out above. The legislature makes various procedural rights and grants

the obligations of the parties with the same subject, which leads

sometimes to the advantage, and sometimes to the disadvantage of those which participants

control. Different procedural mode is determined only from a procedural

the position of a creditor in the previous procedure, the subject only has been linked to

popřenou claim.



The current practice of the courts in the application of § 24 para. 4 of the law on

bankruptcy and settlement shows that the unconstitutionality of that provision cannot be

to overcome such interpretation, which would have been constitutionally Conformal.



Indeed, the consequences of editing does not eliminate the unconstitutional nor the interpretation of the shares of the

some of the general courts (see, for example, the resolution of the High Court in

Olomouc of 10.9.2002 SP. zn. 4 Cmo 305/2002), by which the

the provisions of § 24 para. 4 of the law on bankruptcy and settlements determined by special

the type of the so-called. "the management of the proceedings", i.e.. control, which is different from the original

control to their subject and circle of participants and that is with the original proceedings

only the ex lege United, taking the contents of the previous management, the management of the

According to § 24 para. 4 of the Act on bankruptcy and settlement of not eating, and is

be in it after their bankruptcy continue. This interpretation from above

described by the discrepancy in the rights and obligations of the participants in the control "

control "and incidental proceedings.



IN THE C



The provisions of article. 37 para. 3 of the Charter provides that all participants are

the proceedings are equal. This provision of the Charter is to be interpreted so that the

It is a principle of guaranteeing equal procedural rights and responsibilities of specific

participants in the particular proceeding. By this provision of the Charter distinguishes

from the provisions of article. paragraph 96. 1 of the Constitution, which generally predicts equal

the participants in the proceedings with the same subject, as explained

from the top.



The application of the provisions of § 24 para. 4 compared with the application of § 23 para. 2

the Act on bankruptcy and settlement (indirect control), ultimately

determined by the unequal position of creditors falling within these two procedural

modes in the satisfaction of their claims in the context of proceedings (section rozvrhového

30 of the law on bankruptcy and settlement). If the cross controversy seen

as a formalised evidence whose outcome is bankruptcy court

a binding, then it is obvious that the original statutory procedural duality has

the impact of the procedural status of the creditors in the bankruptcy proceedings of the

for equality.



Vi.



The plenary of the Constitutional Court, therefore, with regard to the above

decided in accordance with § 70 para. 1 Act No. 182/1993 Coll., on the Constitutional Court,

as amended, repealing section 24 para. 4 of the law on bankruptcy

and to compensate, as amended, and that conflict with the article. paragraph 96. 1 of the Constitution

and article. 37 para. 3 of the Charter, and this finding becomes enforceable

on the day of its publication in the journal of laws.



In this regard, however, the Constitutional Court had to deal also with the question of

What effect will have a derogation to this provision in the management led by the courts,

whose jurisdiction was established by the contested provision.



If the control has already been initiated, led by courts whose jurisdiction was

founded by the contested provisions, continued in the current mode even after

enforceability of a Constitutional Court, whereby the provisions of § 24 para. 4

the Act on bankruptcy and settlement, would so to continue

unconstitutional disparities raised this provision. The Constitutional Court therefore

notes that the enforceability of the award ceases to be a law based on

substantive jurisdiction of the courts established the provisions of § 24 para. 4 of the law on

bankruptcy and settlement.



However, at the same time, the Constitutional Court emphasises that the ordinary courts when the solution's

the procedural situation must act so that your procedure

not committed denial of Justice (denegationis iustitiae). The procedure,

that would prevent a party, the court proceedings in the options

to claim their rights before an independent and impartial tribunal, as

guarantees the article. paragraph 36. 1 of the Charter, would mean a violation of the rights of the participant

proceedings to a fair trial and as a result would undermine the principles of the

the rule of law (article 1, paragraph 1, of the Constitution). Such a procedure would lead to the

another institutional consequences.



Vice-President of the Constitutional Court:



JUDr. Haboob in r.

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