In The Matter Of The Application For Revocation Under Cease. Code Of Civil Procedure

Original Language Title: ve věci návrhu na zrušení části ustanov. občanského soudního řádu

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93/2005 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court decided on 11 July. January 2005 in plenary in the composition of JUDr.

Stanislav Balík, JUDr. Francis Skinner, JUDr. Turgut Güttler, JUDr.

Pavel Holländer JUDr. Ivana Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří

Mucha, JUDr. Jan Musil, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský,

JUDr. Miloslav Výborný and JUDr. Elisabeth Wagner in the draft

The District Court in Ústí nad Orlicí, the cancellation of part of the provisions of § 131

paragraph. 1 the first sentence and the provision of section 226 paragraph 1. 1 of Act No 99/1963 Coll.,

Code of civil procedure, as amended,



as follows:



The proposal is rejected.



Justification



(I).



The proposal, which was delivered to the Constitutional Court of the day and the challenge of 15.7.2003

The Constitutional Court, accompanied by the date of 8.10.2003, District Court in Usti nad

Eagle sought the annulment of the provisions of section expressed by the words "and if

the consent of the party who is to be heard "in the provisions of § 131

paragraph. 1 the first sentence, and article 226 paragraph 1. 1, as amended: "where a decision

cancelled and if the matter was returned for further proceedings, the Court of first instance

bound by the legal opinion of the appellate court. "the Act No. 99/1963 Coll.,

Code of civil procedure, as amended, (hereinafter referred to as "CCP").

This proposal has been filed in accordance with the provisions of § 64 para. 3 of Act No.

182/1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as

"the law on the Constitutional Court") in connection with proceedings held at the

the petitioner under SP. zn. 8 C 42/2001 in the case of the plaintiff to.

the defendant Fishing L., Ltd., on the determination of property rights. On the initiative of

the defendant's lawyer filed the President of the Chamber 8 (C) of the district

the Court in Ústí nad Orlicí, (hereinafter referred to as "the claimant") that a proposal to

repeal the provisions of § 131 paragraph. 1 the first sentence under "and if the

the participant agrees to be heard ", as it comes to CCP

the conclusion that this part of the statutory provision is in conflict with the constitutional

order, which the Court interprets in the meaning of art. 1 and article. paragraph 112. 1 of the Constitution

The Czech Republic (hereinafter "the Constitution"). Part of the legal order (article 1 and

article. paragraph 112. 1 of the Constitution) is, inter alia, the Charter of fundamental rights and freedoms

(hereinafter referred to as "the Charter"). Part of the legal order of the Czech Republic (article 10

The Constitution) are announced by the international treaties, to whose ratification put

Parliament's consent and which is bound by the Czech Republic; If provided for in

international contract something other than law, it shall apply to international

the contract.



The provisions of article. 36 et seq. Of the Charter and article. 6 (1). 1 of the Convention on the protection of

human rights and fundamental freedoms (hereinafter referred to as "the Convention") enshrining a right to

to a fair trial. Part of the due process is the ability of the parties

to get acquainted with every evidence, document or a proposal submitted to the Court

and the ability to express it. The defendant had doubts about the person of the applicant,

Therefore, he suggested to hear the plaintiff to the identity of the person to his family

nationality and as to whether the applicant is a descendant of the original owner

the real estate in question. Referenced facts cannot be proven otherwise

before the hearing of the participant. The legal representative of the applicant on behalf of the applicant

He refused to give consent to the questioning of the plaintiff pursuant to § 131 paragraph. 1 CCP,

which was designed by the defendant. The defendant gave the right to become acquainted with

substantial evidence in the case, asking the applicant questions and comment on the

the testimony of the plaintiff.



The rapporteur considers the legal provisions referred to in article 46(2). 36 and

subs. Of the Charter and article. 6 (1). 1 of the Convention. Within the meaning of article 87(1). 10 of the Constitution should

Court to give precedence to the international treaty before the law. A court in this

the case came to the conclusion that the provisions of § 131 paragraph. 1 the first sentence, "and

If the participant agrees to be heard, "the CCP is in

contrary to the constitutional order, therefore, according to the article. 95 para. 2 of the Constitution

submit the matter to the Constitutional Court.



On the initiative of the defendant's legal representative, the appellant referred to handed

application for annulment of the provision of section 226 paragraph 1. 1 CCP, which sounds "

decision cancelled and if the matter was returned for further proceedings, the Court

of first instance is bound by the legal opinion of the appellate court. ". The Court of appeal,

in this case, its decision to transfer the burden of proof

from the plaintiff to the defendant. The applicant claimed that in itself is the owner of

the real estate in question, and seeks to determine the title. According to the

opinion of the Court of first instance being saddled with the burden of proof-prove their claims

about your property-the plaintiff and not the defendant, who is as

the owner in the land registry. In the event that the Court of first

degree set proceeded (under section 226 (1) CCP binding)

a legal opinion, he would have violated article. 6 (1). 1 of the Convention, since it was not a

a fair decision. Furthermore, there has been a violation of the right of the defendant to

a fair trial within the meaning of article 87(1). 36, paragraph 1, of the Charter, according to which each

can claim a set procedure, their right to an independent and

an impartial court. Within the meaning of article 87(1). paragraph 36. 2 of the Charter simply by law

must not be excluded a review of a decision relating to the fundamental rights of the

According to the Charter of rights and freedoms. According to the article. 11 of the Charter's ownership is protected and

protection of ownership simply cannot be excluded by law. According to the

article. 1 (1). 1 of the additional protocol to the Convention has the right to any person

the peaceful enjoyment of their property and no one can be deprived of his property with

except in the public interest and subject to the conditions provided for by law and General

principles of international law.



On the basis of the above, your rapporteur came to the conclusion that section 226 paragraph 1.

1 CCP is in conflict with the constitutional order and the international treaties,

He should give precedence to the international treaty in decision-making (article 10

The Constitution), and therefore submitted a proposal to the Constitutional Court for the annulment of that

the legal provisions referred to in article 14(2). 95 para. 2 of the Constitution.



II.



The Constitutional Court pursuant to § 69 para. 1 of the law on the Constitutional Court requested from

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

The Czech Republic as from the parties comments on the present

the proposal. Due to the nature of the case, the Ministry also asked for comments

Justice under the provisions of § 48 para. 2 of the Act on the Constitutional Court.



The opinion of the Chamber of deputies of the Parliament of the United Kingdom, which in

the required time and in accordance with section 30 paragraph 2. 2 of the Act on the Constitutional Court and section

29 para. 1 (b). a) of Act No. 90/1995 Coll., on rules of procedure of the

the Chamber of Deputies, deputies signed the PhDr. Lubomír Zaorálek,

the President of the Chamber of Deputies, expressed the following opinion: interrogation

the party was and is seen as supporting evidence for that has its

the place where the fact to be the subject of the burden of control, cannot be

prove otherwise. Act No. 30/2000 Coll., which was with effect from 1.1.2001

amended, this theory of the CCP is based on and takes into account that, in the

contentious proceedings, which is operated by projednací principle, this evidence

as already mentioned, the supporting character, and the ability to demonstrate its use

operative depends mainly on the willingness of the party to the proceedings in the matter

to testify. In the contested proceedings is not, therefore, no reason to make the

the party's de facto "forced" to testify against their will. The fact that

Decides to remain silent, the possible impact on its claims, IE. that his

the claim in the proceedings will not be demonstrated. Therefore, in the opinion of the President

The Chamber of Deputies challenged the words do not conflict with the constitutional order

The United States, because the right to a fair trial is infringed. On

the basis of the above, it is therefore considers that these provisions, is not in the

conflict with the article. Article 36 of the Charter or with. 6 (1). 1 of the Convention.



The proposal to repeal section 226 paragraph 1. 1 CCP stated that a provision which

completely corresponds to the Supreme principle determining the appeal procedure provided for in

CCP controls. The Cassation principle is a general principle of civil process,

that is also used in many other countries of Europe. As for the Institute

traditional, roughly in the current form, it can be found at the end of 19th century.

century and was applied in today's terms even approximately the entire

twentieth century. The right to a fair trial as the appellant argues,

This does not affect, because while maintaining the principle of the decision of the Court of Cassation

subject to review. Therefore, in violation of the article. paragraph 36. 1 and 2 of the Charter of

does not occur. Even in the context of an appeal, the Court of first instance, in its

decision making controls and is bound by law, CCP, which of course

It reflects and the principles of international treaties and conventions to which the United

Republic.



Act No. 30/2000 Coll., was passed after duly carried out by normotvorném

process, signed by the competent constitutional officials, and he was named in the

The collection of laws. The legislature acted in the belief that the law

It is in accordance with the Constitution of the United States and by the Charter.



On the basis of the above stated that it considers that the

the provisions of § 131 paragraph. 1 the first sentence of the section "and if you agree

the participant that has to be heard, "and section 226 paragraph 1. 1 CCP are in

accordance with the constitutional order of the Czech Republic. It is therefore for the constitutional

the Court considered that the submission of the appellant and issued the award.



On the application by the Constitutional Court, the President of the Senate of the Parliament also expressed


The United States, JUDr. Petr Pithart, within the required period pursuant to § 69 para.

1, and in accordance with section 30 paragraph 2. 2 of the Act on the Constitutional Court. The provisions of § 131

paragraph. 1 CCP and fallen the provisions of § 226 paragraph 1. 1 CCP was in

current form included in the amendment to the effective date of CCP 1.1.2001. According to the

expression of the law was adopted in accordance with the constitutional order, and

the legal order of the Czech Republic. Discussion of the draft law

in all these bodies of the Chamber was mindful that

This was a significant and extensive subject matter kodexového nature that

include mj. a variety of system changes.



The Senate draft discussed mainly with the belief that legislation

ensure a more efficient passage of Justice and will enhance protection of the rights of persons in the

civil proceedings. Therefore, for the reasons outlined in the bodies of the Chamber

was dominated by the debate on the principles and system changes of the draft law

(indeed, the very constitutional deadline for the 30-day review of the draft

the Bill in the Senate in such cases, a detailed assessment of the extensive

Neither does the standards), while in the vast majority of contributions was a proposal from the

evaluated in terms of the substantive and technical aspects such as quality and creators was

Many say the recognition for their achievement. Reservations or more

suggestions for thought were presented in the context of an increased

using the formalism in civil proceedings (the concentration of proceedings), leading to

potential adverse legal consequences for the parties to the dispute, and with the

free legal aid related issues. Discussion posts

concerned and the principle of incomplete appeal in appeal proceedings and the issue of

delivery.



From the foregoing that the Senate Bill has been examined within the limits of their

constitutional powers and the status of the established him in the legislative process

The Constitution, and did not protiústavními the Bill and its parts and

approved the text of a transferred him in the Chamber of Deputies. Additionally, the Senate

as a party to the proceedings, as it has done so, by analogy, the Chamber of Deputies,

comment on the content of the contested provisions of the CCP, which it considers

constitutionally concurrent. In conclusion, the left entirely up to the Constitutional Court to

to assess the constitutionality of the application for annulment of the contested provisions.



The Ministry of Justice, in its observations that § 131 paragraph. 1

CCP provides that the evidence of the witness of the participants, the Court may in the contested

ordered, if dokazovanou the fact you cannot prove otherwise, and

If the participant agrees to be heard. Proof

the hearing of the participants is therefore considered to be proof of the support, which has its

the place where the fact that it is subject to the evidentiary proceedings, cannot be

demonstrated by performing other evidence. The nature of the evidence of the witness

It is clear from the experience of the participants, that the communication of the party before the

Court upholds his thing, is not objective. The aforementioned is reflected

even the provisions of § 126 paragraph. 1 CCP, which provides that a witness must

denounce the truth and nothing to omit anything, while in the case of the hearing

the parties, the law provides that participants have the right to terminate and

nothing to omit anything. The same reflects in paragraph 175 criminal law (criminal offence

perjury and false expert opinion), according to which the

a crime may commit a witness or expert before the Court

stating false about the circumstances, which is essential for the decision,

or such a circumstance at length, but not party to proceedings relating

in the context of questioning of the participant. It may be considered that, in those circumstances, the law

rightly provides that the Court may order that the evidence of the witness of the participants only

If the participant agrees to be heard, and that the

Therefore, the participant shall not be compelled in any way to this questioning.



To the provisions of § 226 paragraph 1. 1 CCP, which provides that in the case where

the decision was revoked and was returned to the matter for further proceedings, the Court

of first instance is bound by the legal opinion the Court of appeal.



The law contains this provision because, in order to ensure that the

the appeal court's conclusions of law are respected and the new decision is

pass away; in this way, the principle of dvojinstančnosti control.

In the Court of second instance appeal court decision of that Court

either (if factually correct), or is changed, and if they are not given

conditions for at least one of these decisions, the decision to cancel and returns

Court of first instance for reconsideration.



That such a procedure had some meaning and that the courts of first instance, which

the case was returned to the decision, there would not have been

comply with decisions of the Court of second instance in the same case (which could

lead to the endless protraction of court proceedings and denied it would amount

referred to the principle of dvojinstančnosti), you must by law provide for the linking of the

the legal opinion expressed by the Court of appeal.



The linking of the Court of first instance legal opinion the Court of appeal

does not mean that the new decision of the Court of first instance was not

reviewable or that the provisions of section 226 paragraph 1. 1 CCP was excluded

a review of the decision. The judgment of the Court of first instance, which

It was decided in the same case, after the annulment of the decision by the Court of the second

the degree may be filed again appeal.



In conclusion, the Department of Justice rejected the suggestion that both of the above

referred to the provisions of the code of civil procedure has been maintained.



The appellant and the two parties agree to Constitutional

the Court refrained from the oral proceedings according to § 44 para. 2 of the Act on the constitutional

Court, and due to the fact that the Constitutional Court has considered that, since the meeting cannot be

expect further clarification of the matter from an oral hearing was waived.



III.



At the start of proceedings before the Constitutional Court thing fell as judges

the rapporteur JUDr. Eva Zarembové, but due to the fact that the term of Office

on 9 April. November 2003 was over (within the meaning of article 84 (1)

The Constitution), it was necessary to give another unfinished thing judge-rapporteur.

In accordance with the schedule of the work of the Constitutional Court of 28 June. January 2004 No.

Org. 13/04 for the period from 1. January 2004 to 31 December 2004. in December 2004, laid down

based on the distribution rules of the agenda and by decision of the President of the Constitutional

Court OKs org. 12/04 of 28 April 2004. January 2004, which changed the schedule

work no. Org 3/04 of 18 May. December 2003, in the article. I, point 2, plenary

the unfinished agenda of the former judge of the Constitutional Court. Eva

Zarembovou has been allocated. Paul Rychetskému as judges

the rapporteur.



The Constitutional Court in its resolution of 23 February 2005. March 2004 (No. pl. ÚS 38/03-35)

proceedings on 30 September. March 2004 (section 63 of the Act interrupted on the constitutional

the Court in conjunction with § 109 CCP) because the number of judges of the Constitutional Court

fell below 12. According to the provisions of § 11 (1) 1 of the law on the constitutional

the Tribunal the plenary is composed of all the judges. The Constitution in its article. paragraph 84. 1

in doing so, provides that the judges of the Constitutional Court is fifteen. Transitional

the provisions of § 149 of the law on the Constitutional Court established that the Constitutional Court

as a whole, will take the oath of Office of a judge of the twelfth activities, not

Thus, the 11th or 10th, and regardless of the fact that

quorum for the actions and decisions of the Assembly, the provisions of § 11 (1) 1

the law on the Constitutional Court was established on the ten judges. A decrease in the number of

judges at eleven so occurs legally analogous situations, which occurred

at the start of the first-ever Constitutional Court following the adoption of the Constitution of the United

the Republic (section 149 of the Act on the Constitutional Court). Thus constructed the weakened

plenum of the Constitutional Court cannot fully exercise their competence (§ 144 paragraph.

2 of the Act on the Constitutional Court). Also actions and decisions of the constitutional

the Court in plenary matters in case of insufficient number of judges would have the

as a result, it was certainly disputed, even though a quorum for meetings of the Assembly,

It was during the discussion of individual things formally consummated. If the

under the provisions of section 13 of the Act on the Constitutional Court to take a decision

According to the article. 87 para. 1 (b). a), g) and (h)) and article. 87 para. 2 of the Constitution, or

the decision received on the basis of the legal opinion, which deviates

from the legal opinion of the Constitutional Court has issued in the report, the need for the nine

votes of judges, it means that in a situation that occurs on the date of

March 30, 2004, just to not taking a decision the votes of only three judges

assuming that all the appointed judges taking part in the plenum

comparison with the voices of seven judges in full, the Constitution envisaged State.

Therefore, guided by the interest in maintaining the correctness and fairness of the proceedings and

the effort to avoid undermining the exercise of protection of constitutionality in the Czech Republic, the plenary

The Constitutional Court found in insufficient manning of the Constitutional Court

an obstacle to the proceedings in plenary matters and pursuant to section 63 of the law on the constitutional

the Court in conjunction with § 109 CCP control disconnected.



Resolution of the plenum of the Constitutional Court of 22 March. June 2004 (REF. pl. ÚS

37/03-41) it was decided that the Constitutional Court continues proceedings in

plenary matters, which was a 30. March 2004, interrupted. 16 December 2002.

June 2004, the President of the Republic with the consent of the Senate of the United

appointed as a judge of the Constitutional Court of the Republic. Michael Židlickou.

The appointment of a number of judges of the Constitutional Court, then rose again to the

twelve, which broke ground for a stay of proceedings in the above

matters.



IV.




The Constitutional Court in proceedings for the annulment of laws and other legal regulations

It assesses the contents of the Act in accordance with the criteria contained in the provisions of § 68 para.

2 of the Act on the Constitutional Court, i.e., in terms of its conformity with the constitutional

laws. Before he went up to his own examination of the application, meritornímu

also examined in compliance with the obligations arising from a quoted

provisions (in fine), compliance with the formal conditions of acceptance of the law

and whether the contested act was adopted within the limits of the Constitution laid down the competence and

constitutionally prescribed way.



In this case, the message from the těsnopisecké. a meeting of the Chamber of Deputies

held on 9 April. December 1999 that the Chamber of deputies by a majority

164 votes of the 187 present, with 1 vote against and 22 members of the

abstentions, approved a draft law (resolution No 670). From

těsnopisecké messages from the 15. the meeting of the Czech Senate

held on 12 June 2006. January 2000, it is clear that the approval occurred mostly 68

the votes of those present, when 72 4 Senators refrain from voting and no

He was not against (resolution No. 249). The law was delivered to the signing on 19 December.

January 2000, the President of the Republic, which was signed on 8 June 1998. February 2000.

On 23 December 2005. February 2000 was promulgated in the collection of laws in the amount of 11 under

the number 30/2000 Sb.



Act No. 30/2000 Coll., was passed after duly carried out by normotvorném

process, signed by the competent constitutional officials, and he was named in the

The collection of laws. From these circumstances, the Court concludes that the contested

Act No. 30/2000 Coll. was adopted and issued by the constitutionally prescribed way and

within the limits of the Constitution laid down the competence, while respecting quorums set out

in the article. paragraph 39. 1 and 2 of the Constitution and within the meaning of the provisions of § 68 para. 2 of the Act

on the Constitutional Court. Therefore, the Constitutional Court could deal with the merits. For

these circumstances, it was up to the plenum of the Constitutional Court to assess and

decide whether the contested provisions are contrary to the constitutional order

[article 87, paragraph 1 (a)) Of the Constitution].



In the.



Part of the provisions of § 131 paragraph. 1 CCP



To the provisions of § 131 paragraph. 1 the words "and if CCP agrees

the participant that has to be heard, "petitioner", concludes that the

This part of the Statute is in breach of the constitutional order, which

the Court interprets, within the meaning of article 1 and paragraph 112. 1 of the Constitution ". Specifically, it shows the

conflict with the article. 36 of the Charter (resolution of the Presidium of the Czech National Council No.

2/1993 Coll.) and with art. 6 (1). 1 of the Convention (Federal Ministry of communication

Foreign Affairs, no. 209/1992 Coll.), which enshrined the right to

a fair trial. In the opinion of the applicant concerned part prevents

the provisions of § 131 paragraph. 1 CCP side of litigation (in particular

cause a defendant) to get acquainted with the essential evidence in the case, ask

the applicant questions and comment on the testimony of the plaintiff, and thus is contrary to the law of the

to a fair trial, as it guarantees the article. 36 of the Charter, or article. 6

paragraph. 1 of the Convention; in the opinion of the applicant within the meaning of article 87(1). 10 Constitution

The Constitutional Court should give precedence to the international treaty before the law.



The filing of the contested provisions of § 131 paragraph. 1 was to the CCP "returned"

Act No. 30/2000 Coll., amending Act No. 99/1963 Coll., the civil

the rules of court, as amended, and certain other laws (the part of the

the first article. (I) section 173 of the Act No. 30/2000 Coll., amending Act No.

99/1963 Coll., the code of civil procedure, as amended, and

some other laws). The provisions of § 131 paragraph. 1 of the CCP provides that the Court

the evidence of the witness may order the participant, are satisfied at the two

terms and conditions. First of all: If you cannot dokazovanou reality prove otherwise, and for the

Second: with the consent of the party who is to be heard. This whole

does not apply to the so-called. management of the undisputed and in proceedings relating to divorce, which

they are in the realm of evidence controlled-in contrast to the adversarial

proceedings-investigation principle; in the case of divorce, therefore, that it is a

deciding a specific legal relationship.



To reject the claim of the plaintiff on the unconstitutionality of the provisions of § 131

paragraph. 1 CCP in part expressed by the words "and if you agree

the party who is to be heard by the Constitutional Court, "lead to closer

Furthermore, two essential elaborated arguments. The first argument is based on the

the key principles, according to which the contested civil proceedings is based on the principle of

projednávací. The second argument is contained as a result of

of the cited provisions of § 131 CCP, in accordance with which the success of the process

Parties subject to the obligations and duties of the adjoining

and the corresponding evidence correlates in the form of the burden of claims and

the burden of proof. From this principle it follows then-especially more in

situation in which, where appropriate, the procedural status of the non liquet occurs-the effect

that each party is required to process, if there is no legal regulation

Save as otherwise provided, proof of the fact that matches the characters of legal

standard, which is favorable and the party that it invokes. If she

It fails to reflect the fact that it is being forced to suffer the adverse procedural

the consequences in the form of failure in court litigation. Of the implied

the argument follows that the contested part of the provisions of § 131 paragraph. 1 CCP

expressed by the words "and if the participant agrees to be

heard "is not in conflict with the constitutional order as detailed on [to

This CF. for example. find in case SP. zn. IV. TC 364/2000, a collection of awards and

the resolution of the Constitutional Court (hereinafter referred to as "a collection of decision), Volume 27,

find no. 100; find in case SP. zn. IV. TC 208/2000, collection of decisions,

volume 29, finding no. 16]. In addition to the Court or the opposing party in a dispute

doubts as to the existence or identity of a party to proceedings, gives her a

CCP available to a wide range of other legal remedies, how to

the identity of the participant to verify-e.g.. the requirement that the proxy

the chosen legal counsel has been verified.



Evidence of the presence of the testimonies already knew the traditional procedural law as well as

theory. The questioning of the party was and is considered as a supporting

evidence which has its place, where the fact to be the subject of

burden control, cannot be demonstrated by performing other evidence. Act No.

30/2000 Coll. of this theory is based on and takes into account the fact that in the contested

the management which is operated by projednací principle, has this proof, as already

It was noted the supporting character, and the ability to demonstrate its use applicable

in particular, depends on the willingness of the party to the proceedings in the matter

to testify. In the contested proceedings is not, therefore, no reason to make the

the party's de facto "forced" to testify against their will. The fact that

Decides to remain silent, the possible impact on its claims, IE. his

the claim in the proceedings will not be demonstrated.



Hearing of the party to the proceedings, it is necessary to distinguish from the claim of the participant,

that may be part of the action or its another submission to the Court, or may

be a part of the oral observations at the hearing. Therefore, from the CCP definitely

It follows that, even if a party does not agree with the evidence of his

the testimony, it is obliged to do his duty claims. The questioning of the participant

control is intended to ensure that its implementation was the Court believes

the truth of the factual allegations which the appellant has an interest in

to prove. The evidence of the witness or participant control is not intended to

only when it featured the party its allegations about the decisive

the facts, in contrast, assumes that the necessary claim has already been

and now these arguments put forward to be demonstrated. It is essentially

the last option that remains among the participant, unless the

claim prove otherwise. In addition, of the hearing proceedings should therefore

Court to decide when it will know exactly which facts have

This evidence demonstrated. It should not, therefore, be considered to

only the interrogation of a party to the proceedings was accompanied by incomplete or missing

the findings of fact.



Therefore, in the opinion of the Constitutional Court the contested part of the provisions of § 131 paragraph.

1 CCP expressed in words "and if the participant agrees that has

to be heard ", is not in conflict with the constitutional order of the Czech Republic,

because the right to a fair trial is violated, since, in the context of this

the fairness of the process, everyone has the right to meet with each of the proof

document or statement submitted in court and has the right to express it.

The fact that a party cannot consent to your hearing, do not affect the

rights, it is only to the detriment of the plaintiff, that the implementation of their

the hearing was denied, because it runs the risk that his claim in the proceedings

will not be demonstrated. The Constitutional Court with the question of the implementation and the evaluation of evidence

in civil court proceedings in terms of the constitutional principle of fair

the process of repeatedly dealt with, see. for example. find SP. zn. III. TC 61/94,

Collection of decisions, volume 3, finding no 10. On the basis of the above, the

therefore considers that these provisions are not in conflict either with article. 36 of the Charter of

even with the article. 6 (1). 1 of the Convention.



The purpose of such evidence is seen in the fact that the hearing

party to the proceedings, the Court should take the conviction of the truth of the facts

the claim, which demonstrate the interest of the party to proceedings.




The language of the provisions of § 131 paragraph. 1 CCP resumed questioning (testimony)

participants in the traditional place in the system of evidence, IE. place

the support resource, where you cannot prove the material truth in the dispute

otherwise. Part of the text of the provisions in the words "and if you agree

the participant that has to be heard, "then just sort of highlights

the psychological aspect of subsidiarity. Already prvorepublikoví civil

procesualisté noticed that "this spring (notice or hearing

participant) is not always the cleanest, "and they told" use it only with the greatest

Caution ". Were encouraged to extend to him only "when they were exhausted

all the others in a dispute at hand at all existing accompanying

resources, but did not lead to the desired objective, judges nezjednaly

the belief "(mountain, in the Czechoslovak civil law: procedural, part

I., Prague, Všehrd, 1926, p. 365).



The problematic is clearly always appeared subjective evidence page

resource. Vyslýchaný participant as a person directly interested in the

the outcome of the litigation cannot psychologically-be perfectly

an objective source of knowledge for the Court. From this premise was attained and the

logically correct legal consequence, the inability to punish participant,

who provided false testimony. Yet the civil procedural law

never reluctant to questioning the attendee as a means of proof to give up,

as they accounted for the Court of last resort that would be sure of the fact

could be demonstrated.



Up to the era of "socialist law", based on a different concept

the material truth, hearing of participant-rather of the ideological

than the doctrinal reasons – in one row with the other evidence

resources. Even if the amended § 131 can be traced, that the legality of

is more constrained than in theory, sufficiently justified. While the other

provisions relating to the means of proof notice page

realization of the taking of evidence by the use of such devices for hearing participants

is still explicitly expressed the possibility of court and just admit the implementation

the proof of this resource.



Amendment to CCP (Act No. 30/2000 Coll.) clearly and clearly defined the

by legal means the importance and status of the participant in the process of interrogation

the taking of evidence. Part of the provisions cited in the words "and if the

the participant agrees to be heard, "reflects and implies the right

the prevalence of that psychological element, eligible to play its role in the

the discovery process of material truth. And therefore the right to this evidence

resource shifts to the very edge of his admissibility under

the court proceedings that the decision on the regulation of the burden

leaves in the resource available to the Subscriber. Even such a procedure, however, is not

pointless, since the refusal of consent of a subscriber to your interrogation has

his informative and undoubtedly affects the various aspects of the process

(economy, management, reliability, the basis for making decisions, etc).



If we start from the assumption that could be ordered and carried out against the will of

the hearing as "the last and the only rescue" to demonstrate the material

the truth, it is theoretically debatable whether such testimony could be

the determining criterion for the level of certainty that allows judges to issue a decision

in the case. On the other hand you can imagine from the existing wording of section 125

CCP, the participant will not be adversarial judicial proceedings

modified at all. However, when such a notion cannot be reliably inferred that

the process would be fairer.



If the petitioner submits that the "consent of the participant with regulation of their

hearing the other side prevents meet with substantial evidence in the case,

ask the applicant questions and to comment on the testimony of the plaintiff, and thus is contrary to

the right to a fair trial ", then it does not reflect the basic material

filling the principle of "fair trial" questioning the importance of the participant to determine the

the material of the truth.



As the Constitutional Court several times in their findings held talks to

the right to a fair trial, or of its content, this means

"equality of arms" of participants of legal proceedings, the right to personal participation and

an oral hearing, the right to compliance with certain rules in the area of

acquisition and evaluation of evidence, etc. (e.g., SP. zn. PL. ÚS 3/02,

the decision, Volume 27, finding no 105; promulgated under no. 405/2002 Coll.).

This is understood to be constitutionally guaranteed due process article. 36 of the Charter and

article. 6 of the Convention.



The constitutional guarantee of a fair trial is to ensure equality of opportunity,

However, it cannot ingerovat until the issue of evidence and its

adverse consequences for one of the parties to the dispute. Convention and the Charter

undoubtedly protects the right to respond to all carried out, IE. already

mandated by evidence. Surely it would be unconstitutional if the Court did not allow the

participants become familiar with the evidence or to comment on the testimony of a witness. This is

However, the other plane, the plane of the constitutional protection of equal treatment of participants

control. From the perspective outlined is unwarranted to expect that the constitutional

the standards will protect the possibility of regulation of the support-and how

explained-"not always purest source" for the detection of material

the truth. The principle of a fair trial cannot replace the responsibility of

the burden of proof for the abducting party, and if the legislature made the

Regulation of interrogation of the participant his consent, did not do so because that

made it impossible for the passage of the justice, but contributed to its maximum

objectivity.



Regard to the appellant's claim, it cannot be that the contested part of the statutory

the provisions of § 131 paragraph. 1 the first sentence of the CCP "and if you agree

the party who is to be heard "is in conflict with the constitutional order,

so there is no reason to cancel this part of the conflict with the provisions of the article. 36

Of the Charter and article. 6 of the Convention.



The provisions of § 226, paragraph 1, CCP



If in the previous section of this finding is the principle of a fair

the process in a way faced with a principle objective

detection of material truth, then § 226 (1) CCP is its constitutionally

Conformal by performing in the Act. According to this provision, the Court of first

instance bound to the legal opinion of the Court of appeal, when it was first

the decision is annulled and the matter is returned for further proceedings. It is not in the legal

the theory of nothing other than a strict fulfillment of the rules of the district

procedure, the purpose of which is to minimize the possibility of faulty decisions and

errors, which would be perhaps the Court in making a decision or, rather, in the decision in

things. Causa remota article 226, paragraph 1, therefore, lies in the

ensuring fair protection of rights and legitimate interests of parties, i.e..

so, as required by section 1 of the CCP and That emphasis is placed on

fair protection of rights and legitimate interests of the participants and so on

the quality of the decision, you can deduce from the title of part four of the CCP Title

"Remedies" is in some ways "higher value" than

for example, if part of the name was "proceeding in the second degree". Repair

control is in the Czech Republic based on the principle of the present, which is

supplemented or modified, the principle of an appeals so that it was possible to

take advantage of the benefits of both.



By the Czech legal order acknowledges in specific cases, corrective

resources and the correction of the initial decision, is committed not only to the interests of the

of the participants, but it also confers on the courts of the sociological and psychological

dimension. Even the Court-judge-příznačněji can make a mistake, which, however,

not as a result of the absence of legal instruments lead to the violation of human

the rights protected in the Charter and article title, fifth. 6 (1). 1 of the Convention.



Hierarchical organization of general courts make up the built up all available

the participants until its Supreme article. If this system guarantee

the right to judicial protection, the housing must be functional. Therefore, they have

the various stages of the judicial system in decision-making in the matter of its

a distinctive role. In the redress of the legislature

he entrusted the courts job to review the matter after the factual and legal

(principle of incomplete Appellation d'Origine Contrôlée). This also corresponds to the range of remedies

including the Cassation of the original decision. To cancel the decision of the Court of first

the degree of the Court of appeal may, if it is not itself a decision to amend

or confirm, but only in the extreme case where defects can't heal himself.

In civil proceedings, it is for sure that the second instance built

the Court must not drag out the process, but cannot replace an unmistakable

the activity of the lower court. The provisions of § 226 paragraph 1. 1 of the CCP is to ensure that

Court of first instance not only knew why the Court of appeal his sentence

for defective, but also what to avoid in the next procedure. This is just the

sense of the suspension of the legal opinion of the Institute. In no event shall not prevent

the provisions of § 226 paragraph 1. 1 CCP lower court, on the basis of

new information has come to the same conclusions; However, binding him to leads

to not repeat previous shortcomings.



If the applicant has his doubts about the constitutionality of the legal commitment in principle

meaning of section 226 paragraph 1. 1 CCP, has doubts about the whole concept

the appeal, as is "established" in the civil process, and doubts about the de facto

first instance decisions and the role entrusted to the lowest general courts

at all. Legal opinion of a higher court, whose task is to review


the decision, which appears to be dubious and that for defective then

marks, cannot be in the interest of participants to disrespect, as

You cannot ignore the reasons of principle the same link between the Court

the appellate court and such extraordinary appeal (§ 243d CCP). You cannot (in analogy

extensive concept of "correction" of the proceedings) or the constitutional position to overlook

the Court, whose decisions are binding on the general courts.



The enshrined for the Court of first instance under section 226 paragraph 1. 1 CCP,

which consists in the obligation to be bound by the legal opinion of the Court of appeal in

the case that this Court pronounced the decision set aside and the matter returned

for further proceedings, the applicant finds it unconstitutional, arguing "in the

If the Court of first instance proceeded according to that (according to § 226

paragraph. 1 CCP-binding) of a legal opinion, he would have violated article. 6 (1).

1 of the European Convention for the protection of human rights and fundamental freedoms, as it would

It was not a fair decision. ". On-without justification and

context-the applicant concludes that the application of the

in violation of the provisions of law (the defendant) to a fair trial in the

meaning of article 87(1). paragraph 36. 1 of the Charter, and this gives to the context and with the article. 36

paragraph. 2 and article. 11 of the Charter and article. 1 of the additional protocol to the Convention, in accordance with

which every person has the right to the peaceful enjoyment of their property and no one can

be deprived of his possessions except in the public interest and subject to the conditions,

provided for by law and general principles of international law.



The provisions of § 226 paragraph 1. 1 of the CCP in its existing form was included in the

CCP with effect from 1.1.2001 amendment (Act No. 30/2000 Coll.

the amended Act No. 99/1963 Coll., the civil procedure code, as amended

regulations, and some other laws), which changed even the provisions adopted by Member States

section 226 paragraph 1. 1 CCP (part of the first article. I, paragraph 311).



The Constitutional Court does not agree with the opinion of the applicant, it should be

repealed provisions of section 226 paragraph 1. 1 the provisions of the CCP, which is completely

corresponding to the Supreme principle governing the appeals procedure

modified in the CCP when it should be cancelled, then, this, in itself, the Board of appeal

managed to lose meaning. This is a provision which is all the time

the existence of the CCP applied without any problems. In this context,

It should be noted that the principle is a general principle of Cassation for civil

the process, which is also used in many other countries of Europe. As to the

Institute of traditional, roughly in the current form, it can be found already on the

the end of the 19th century. century and was applied with us about in today's terms and

the entire twentieth century.



To enumerate the arguments in favour of retaining the existing wording of section 226 paragraph 1. 1

CCP may be completed, that described the Institute's traditional practice

proven and still constitutionally indisputable building blocks

civil process.



From the top vylíčeného shows that the linking of the lower court legal

the opinion of the Court is making a constitutional principle to judicial

protection and due process, its an integral part of not

an obstacle.



The right to a fair trial as the appellant argues, the infected

the provisions shall not be affected, since the review of the decision is not

out of the question. Therefore, in violation of the article. paragraph 36. 1 and 2 of the Charter does not occur. Even in the

the framework of the General Court of appeal in its decision governed by and

bound by law, CCP, which of course reflects the principles and

international treaties and conventions to which the Czech Republic is bound. The constitutional

the Court considers that approach to the interpretation of the issue used

the applicant can be regarded as unduly extensive interpretation of legal norms

and the special-purpose.



The task of the Constitutional Court was to assess whether the contested act or its

individual provisions are in conflict with the constitutional order or

international agreement under article. 10 of the Constitution [article 87, paragraph 1 (a))

Of the Constitution].



Given the State of affairs, the Constitutional Court came to the conclusion that the appellant

did not submit such arguments to justify the conclusion that § 131

paragraph. the first part of the sentence "and if the participant agrees that has

to be heard, "and section 226 paragraph 1. 1 of Act No 99/1963 Coll., the code of civil

of procedure, as amended, are unconstitutional, and therefore could not

challenged provisions of the Act repealed.



Namítaný contradiction procedural provisions CCP with the material constitutional

guaranteed the rights enshrined in article. 11 of the Charter and article. 1 Additional

Protocol to the Convention (constitutionally guaranteed the right to ownership and protection

This property and the right to peaceful use of property, according to which no

a person cannot be deprived of his property except in the public interest and for the

conditions laid down by the law and the General principles of international law)

the custom nature of the alleged procedural questions completely stray from the framework of the

the nature of the limits cited procedural provisions. This discrepancy could have

legal relevance in the case of a decision only in the context of the objections

upínajícími to the merits of the case.



In the light of the above, the Constitutional Court came to the conclusion that

the contested provisions of § 131 paragraph. 1 the first sentence, the words "and expressed

If the participant agrees to be heard "and § 226

paragraph. 1. "where the decision has been cancelled, and if the matter was returned to the next

proceedings, the Court of first instance is bound by the legal opinion of the Court of appeal. "

Act No. 99/1963 Coll., the civil procedure code, as amended

legislation is not in contradiction with the constitutional order or international treaty

According to the article. within the meaning of article 10 of the Constitution. 1 and article. paragraph 112. 1 of the Constitution. The constitutional

the Court, therefore, the request made by the applicant (in accordance with § 64, paragraph 3, of the law on

The Constitutional Court) pursuant to section 70 para. 2 of the Act.



The President of the Constitutional Court:



JUDr. Rychetský in r.

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