314/2011 Sb.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court decided under the SP. zn. PL. TC 11/10 day 6. September 2011 in plenary
in the composition of Stanislav Duchoň, Package, Vlasta Formankova, Turgut
Güttler, Pavel Holländer, Ivana Janů, Vladimir Crust, Dagmar
Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Elisabeth Wagner, and
Michael Židlická on the design of the circuit court for Prague 2 on cancellation
the provisions of section 12(2). 1 (a). and Act No. 82)/1998 Coll., on liability
for damage caused in the exercise of public authority decision or incorrect
the official procedure and on the amendment of the Act of the Czech National Council No. 358/1992 Coll., on the
notaries public and their activities (notarial regulations), with the participation of the
the Chamber of Deputies and the Senate of the Parliament of the Czech Republic,
as follows:
I. proposal for the repeal of the provisions of section 12(2). 1 (a). and Act No. 82)/1998
Coll., on liability for damages caused in the exercise of public authority
by a decision or incorrect official procedure and on the amendment of the Czech
the National Council No 358/1992 Coll., on notaries public and their activities (notarial
in the words of the order), "the right to compensation is not the one who's link)
(...) blame yourself, ...) ", is rejected.
II. The proposal for the repeal of the provisions of section 12(2). 1 (a). and Act No. 82)/1998
Coll., on liability for damages caused in the exercise of public authority
by a decision or incorrect official procedure and on the amendment of the Czech
the National Council No 358/1992 Coll., on notaries public and their activities (notarial
in the words of the order), "the right to compensation for damages, and has one) which (...)
a conviction or the imposition of a safeguard measure to blame myself, (...) ",
rejects.
Justification
(I).
1. the applicant, in accordance with article. paragraph 95. 2 of the Constitution of the Czech Republic
demanded that the Constitutional Court has issued a finding, which cancels the section 12 paragraph. 1 (a).
and Act No. 82)/1998 Coll., on liability for damage caused in the performance of
of public authority by a decision or incorrect official procedure and amendment
the law of the Czech National Council No. 358/1992 Coll., on notaries public and their activities
(the notarial regulations). Evidence of active dovozoval § 64 paragraph. 3 of Act No.
182/1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as
"the law on the Constitutional Court").
2. In the proposal the applicant first briefly described the evolution of the dispute. Specifically,
He informed that the subject of the proceedings before the
The District Court for Prague 2 under SP. zn. 27 C 65/2003, an action for
the payment of an amount as compensation for damage caused by, inter alia,
the decision on custody pursuant to section 9 of Act No. 82/1998 Coll., on liability for
damage caused in the exercise of public authority decision or incorrect
the official procedure and on the amendment of the Act of the Czech National Council No. 358/1992 Coll., on the
notaries public and their activities (notarial regulations), as amended
Regulations (hereinafter "Law No 82/1998 Coll."), when according to the law
the claim was served on the applicant and, subsequently, was against him
the prosecution stopped, and as a result of binding him damage
consisting in lost profit. The matter is now pending before the district
Court for Threshold 2 as the Court of first instance, after having been to the appeal
the Prosecutor of the Supreme Court judgement No. 25 2794/Cdo 2006-167, dated
January 29, 2009 the Court of Appeal quashed the judgment, which subsequently set aside
and the judgment of the Court of first instance. Following the reasoning of the judgment
The Supreme Court is now in the proceedings dealt with the question of whether in the present case, the
are filled with the assumptions of the provisions of section 12(2). 1 (a). and Act No.)
82/1998 Coll. as circumstances excluding the right to compensation from the
the decision on custody under section 9 of the Act, and because of that
the plaintiff brought this link alone. For the decision on the merits is so completely
the key provisions of section 12 of the application of paragraph 1. 1 (a). and Act No. 82)/1998 Coll.
3. In this context, then, the appellant referred to the finding of the Constitutional Court
of 17 December. 6.2008, SP. zn. II.-590/08 (N 108/49 SbNU 567), when
He quoted the legal phrase created to this finding, the following
way: "the material law, must bear the objective responsibility for the
the acts of its organs, which State authorities or public authorities
directly interfere with the basic rights of the individual. Indeed, it cannot be overlooked,
that the State does not have free will, but is obliged to strictly respect the right
in his ideal (non-injury). On one side is the
certainly the duty of law enforcement authorities to investigate and prosecute
criminal activity, on the other hand, the State cannot get rid of the liability
for the procedure of these organs, if they later prove how mistaken,
infringing fundamental rights. In such a situation is not applicable, as
authorities active in criminal proceedings to assess the original suspect, but
whether their suspect in criminal proceedings. Resources
the criminal process, which often lead to the restriction of fundamental rights
the accused, cannot be considered entirely in isolation, but only in the context of the purpose of
their use, which is the detection and punishment of the perpetrators of the crime
activity. If at any stage of criminal proceedings, be shown that the
the purpose cannot be filled, since the accused did not commit the crime,
and the suspicion of the authorities active in criminal proceedings was quite odd, it should be
for defective, all the operations that have been in criminal proceedings
carried out, i.e.,. where appropriate, including resource manager to limit the personal
freedom, which is binding. For the purposes of compensation therefore cannot be completely
assessed in isolation and the prosecution. From this perspective,
It is then the indecisive as to whether the complainant's Act binding induced,
because not nedůvodného prosecution, the complainant would not have been at all
exposed to the request to submit to a psychiatric examination, let alone restrictions
personal freedom in the form of links. ".
4. Further, he finds the Constitutional Court from 5. 5.2004, SP. zn. II. THE TC
596/02 (N 64/33 SbNU 141), according to which-in accordance with the literal reference
the petitioner-: "the basic right to compensation within the meaning of article.
paragraph 36. 3 of the Charter has only the one to which the damage was caused by the illegal
by a decision or incorrect official procedure. The imposition of binding on the person
accused of a crime in and of itself is not an unlawful decision,
If this decision has been taken in accordance with article. 8 (2). 4 and 5 of the Charter,
or in accordance with the criminal procedure code. The binding does not lose its legal quality
the fact that the person accused and later the defendant of the offence was
Finally, the prosecution may not, therefore, that it was not shown that the deed
She committed. If (...) today, law No 82/1998 Coll. (...) based
liability of the State for damage caused by illegal lawful next to also
the decision on custody, if the defendant was later acquitted,
provides a higher legal standard of protection rights. It is undoubtedly a wise
and a welcome Act of the legislature, which above all valued personal freedom
the individual, not on the fulfilment of the undertakings referred to in article guideline. paragraph 36. 3
Instrument. ".
5. On the basis of both the cited decision, or their parts,
the applicant concludes that the first mentioned find SP. zn. II.-590/08 has
strong potential to significantly affect the application of Act No. 82/1998
Coll. in relation to criminal proceedings, when the decision-making practice general courts
yet of the charges (criminal prosecution) concluded
only the illegality of the decision to initiate the criminal prosecution of the founding
the responsibility of the title from the illegal decision. Responsibility of the decision
the detention was in accordance with the regulations of Act No. 82/1998 Coll.
assessed separately.
6. According to the applicant, that the case-law of the Constitutional Court
in relation to the article. paragraph 36. 3 of the Charter of fundamental rights and freedoms went through
the development, which the general courts in the application of Act No. 82/1998 Coll. cannot
ignore. If, however, the conclusions expressed in the finding of the Constitutional Court sp.
Zn. II.-590/08, then the plaintiff cannot imagine under what
factual circumstances could result in the application of the provisions of section 12(2). 1
(a). and Act No. 82)/1998 Coll., without at the same time not to be ignored
the legal opinion of the Constitutional Court.
7. In view of the above, then the appellant sees a contradiction of the provisions of
section 12, paragraph. 1 (a). and) Act 82/1998 Coll. with the article. 1 (1). 1 of the Constitution of the Czech
Republic and article. paragraph 36. 3 of the Charter of fundamental rights and freedoms (hereinafter referred to as
"The Charter").
II.
8. The Chamber of deputies of the Parliament of the Czech Republic in its simple
Express signed her Vice-President Miroslavou Lang in particular
stated that the proposal submitted by the Government of the Czech Republic
Parliament of the Czech Republic on 2. October 1997. The Government proposal was
then circulated to members as print 292. The Bill was then
approved in the 3. reading in the texts of amendments constitutionally legal
the Committee, which was commanded by printing to the discussion. Of the 167 members
for the implementation of the 149, no votes against, the draft law has thus been
accepted. To own the content of the proposal, the Chamber of deputies of the Czech Parliament
the Republic only referred to the relevant passage in the explanatory memorandum to the
amend the draft law, in accordance with which it is to be entitled to compensation for damage
exclude in particular in cases in which the provision of compensation for damage
It was contrary to accepted principles of morality. In the conclusion of his observations agreed with
abandonment of any oral proceedings within the meaning of section, paragraph 44. 2 of the law on
The Constitutional Court.
9. the Senate of the Parliament of the Czech Republic in its representation of a signed
Chairman MUDr. Přemysl Sobotka also (after a recap of the content of the proposal)
He said the procedure for the adoption of the Act; the fact that the proposal
Act No. 82/1998 Coll., the provisions of section 12(2). 1 (a). and) proposes
District Court for Prague 2 was cancelled, after the approval of the Chamber of Deputies
referred to the Senate April 16. February 1998. The Bill was referred to the
discuss the constitutionally-legal Committee, that its resolution of 25 April 2002.
February 1998 recommended the Senate to approve the Bill as amended by the transferred
The Chamber of Deputies. When discussing this proposal in the
Senate meeting held 5. 3. the expression of objection or doubt 1998
relating in particular to the provisions of § 14 paragraph. 2, section 30 and 31 of the
the draft law. Because in the negotiations was not present at the meeting of the representative
the Government of the Czech Republic, which was the complainant in his act, Senate
resolution No. 21 from 5. in March 1998, the negotiations on the draft law. For
This procedural proposal from the present 63 Senators rejected 57
the senators. The consequent continuation of the negotiations on the draft law on the constitutional
the 30-day time limit is already there, and for this reason, in accordance with article. 46
paragraph. 3 of the Constitution of the Czech Republic was the draft law adopted by the expiry of the
thirty days after its referral to the Senate. The issue that is the subject of
the proposal to repeal the provisions of section 12(2). (l) (a). and Act No. 82)/1998
Coll., not in a debate held at the meeting of the Senate specifically mentioned. The Senate
Therefore, the assessment of the possible violation of the provisions of section 12(2). 1 (a). and)
Act No. 82/1998 Coll. with the article. 1 (1). 1 of the Constitution of the Czech Republic and with the article. 36
paragraph. 3 of the Charter leaves fully to the discretion of the Constitutional Court, while the
at the same time agrees with the abandonment of the oral proceedings within the meaning of section, paragraph 44. 2
the law on the Constitutional Court.
10. The Constitutional Court has sent to the applicant to reply comments
The Chamber of deputies of the Czech Parliament and the Senate of the Parliament
Of the Czech Republic. The appellant, however, the Constitutional Court said that the law
a replica, because the content of the two terms, and does not use the abandonment of
the oral proceedings according to § 44, paragraph. 2 of the law on the Constitutional Court agrees.
11. In accordance with the provisions of section 44, paragraph. 2 of the law on the Constitutional Court may by the constitutional
the Court, with the consent of the participants of the oral proceedings, to refrain from it cannot be
expect further clarification of the matter. Whereas, as the applicant in the
his proposal, as well as the participants in the proceedings in the Chamber of Deputies President
the Chamber of deputies of the Parliament of the Czech Republic and President of the Senate of the Parliament of the Czech
Republic expressed its consent with the abandonment of the oral proceedings, and
due to the fact that the Constitutional Court had considered that, since the meeting cannot be
expect further clarification of the matter, it was from the oral proceedings in the case
abandoned.
III.
12. From the file of the District Court for Prague 2 SP. zn. 27 C 65/2003 the constitutional
the Court found that petitioner's proceedings, in which the plaintiff
a claim for payment of the amount in the total amount of $ 901 478 as compensation
(consisting of the costs of legal representation and the loss of profits), which
should arise as a result of the communication charges for offences of fraud,
extortion, unauthorized use of foreign things and restriction of personal freedom and
as a result of custody.
13. District Court for Prague 2 judgment of 11 December. 7.2005 No. 27 (C)
65/2003-99, order the defendant to the Czech Republic-Ministry of Justice
the obligation to pay the plaintiffs $ 566 532.56 with 2% interest from 10.
10.2003, dismiss the action in respect of the amount of $ 334 945.44 with 2%
interest from 10. 10.2003, and decided to pay a refund
costs of the proceedings. Came out of a finding that the plaintiff, who is from the autumn of the year
1999 remained abroad, was from 26 July 2005. 10.1999 prosecuted for the crime of
performance limitation of personal freedom under section 231, paragraph. 1 of Act No. 140/1961
Coll., the criminal code, effective until 31 December 2006. 12.2009, and from 26 July 2005. 1.2000 for
the offences of fraud under section 250, paragraph. 1 and 4 of the criminal code, extortion
under section 235, paragraph. 1 (a). 2 (a). (b)) of the criminal code and unauthorized
the use of Foreign Affairs under section 249, paragraph. 1 and 2 of the criminal code. Furthermore, it was
prosecutors charge for an offence under the restriction of personal freedom
§ 231 paragraph. 1 of the criminal code. Through counsel, the applicant
learned about criminal prosecution and defence counsel with the investigator, arranged on the
questioning after the return of the plaintiff. He was, however, on 12 December 2003. 4. the 2000 State
the border detained, taken in for questioning, and then on the basis of the resolution of the
The District Court for Prague 1 of 14 June. 4.2000, SP. zn. NT 299/2000 taken
into custody under section 67, paragraph. 1 (a). and the criminal procedure code) on the grounds that
stayed abroad, although he knew about his criminal prosecution, and that the
continue to be a concern of the authorities is reasonable law enforcement that could
Once again flee or hide. He was released from custody on 18 July 2005. 7.2000.
Subsequently, it was gradually stopped criminal proceedings against the applicant for all
the offences of which he was accused. At the time of prosecution, or even
at the time of stay in custody the plaintiff held the function of the Manager of the company with
limited liability company. In its, the above mentioned, the stay abroad has closed
contract for a period of 3 months for the agreed remuneration of 120 000 Czk. Because of the
stay in custody, however, contractual obligations to fulfil, the reward has not been
paid. For the determined factual situation then the Court of first instance
came to the conclusion that the plaintiff's commencement of criminal prosecution or imposition of
links within the meaning of section 12 of Act No. 82/1998 Coll., on his part, and therefore has a claim
on the compensation for lost profit in the amount of 120 000 Czk and it also belongs to the replacement
the cost of the defence, the amount of which, however, has set differently from the design of the plaintiff.
14. To appeal to both participants in the municipal court in Prague, by judgment of 20 June.
1.2006 no. 35 What 474/2005-137 of the judgment of the Court of first instance in
a satisfactory statement on the merits regarding the amount of CZK 117 638.56
Accessories changed so that, in this range, dismissed the rest of the
It confirmed and decided to refund the costs of proceedings before the courts of both degrees.
The Court of Appeal assumed the factual findings of the Court of first instance and the
to associate himself with his conclusion that the plaintiff was not the cause of the communication's
the charges, because he belongs to the reimbursement of the costs incurred by the representation of the
Counsel in criminal proceedings. Reimbursement of the cost of the defence but in the
compared with the Court of first instance differently. Also concluded (on
Apart from the Court of first instance), that the imposition of the applicant's ties to its
the negotiations brought (from the autumn of 1999, stayed abroad, although
He knew about the ongoing criminal prosecution, it had given cause for concern
authorities active in criminal proceedings, which were the reason for his withdrawal to
the binding), and therefore cannot cause the right to compensation for lost profits in the amount of 120
USD; nepřisvědčil, however, the opposition of the defendant that the plaintiff does not have the right to
pay the costs of his defence that were thrown, as referred to in
the Court of appeal shall be entitled to reimbursement of the costs incurred on the reward
the representative of the neodvíjí from the decision on custody, but as to the liability of the State
for damage caused by the start of (the direction) of the prosecution, which
ended by a final conviction. The Court of appeal therefore
did not find reasonable claim on payment of 120 000 Czk (loss of profit) and 4
988.56 (part of the travel expenses)-the sum of these two amounts
the plaintiff was awarded the sum has decreased. On the contrary, as a true assess eligible
the applicant to pay the costs incurred for legal services, including 2 acts
two overhead paušálů in the total range of 7 350 Czk, of this amount
prosecutors rejected the sum has increased.
15. the plaintiff's appeal against the judgment of the Court of Appeal decided the highest
the judgment of the Court of 29 June. 1.2009 No. 25 2794/Cdo 2006-167, so that
the judgment of the municipal court in Prague from 20 December. January 2006 no. 35 What
474/2005-137 in the scope in which it was decided to appeal against the
judgment of the Court of first instance in respect of the amount of $ 120 with 2% interest from
the delay from 10. 10.2003, and to the payment of the refund of costs in the statement
management of the case in this range return to this Court for further
the proceedings; otherwise, leave to appeal refused. In the grounds of its judgment, explained
why, in his opinion, it is not permissible to [section 237, paragraph 1 (b), (c))
Code of civil procedure], the appeal of the plaintiff as to the questions relating to the
the cost of the defence. Acceptable [section 237, paragraph 1 (a)) of the
the order], and also the reason was, of course, by the Supreme Court of appeal
the plaintiff, if the Court of appeal changed the decision of the Court of first instance
so, dismiss the action on the payment of compensation for loss of profits in the amount of 120 000
With 2% interest from 10. 10.2003 to pay (changing opinion in the
as a result of add and subtract the change concerned the amounts of the more claims added
only Czk 117 638.56, but in fact the change affects the entire amount
loss of profits).
16. The Court of appeal in this part of his decision was motivated only by the fact that, in the
proceedings before the Court of first instance has established that the applicant from
autumn of 1999 remained abroad, and he knew about the ongoing
criminal prosecution, which had given cause for concern, which were the reason for his
taking into custody; therefore to blame for the custody, and therefore cannot cause
the right to compensation for loss of profits. Decision of the Court of appeal
According to the Supreme Court, however, is not totally obvious on the basis of what
the facts and the legal considerations of the above the conclusion reached. Its
the argument had limited to applicant's stay abroad, without
dealt with-for the finding of fault on the custody-substantial time
context, IE. in particular, when the applicant became aware of the fact that they are in
connection with its operations, the person made the inquiry when he was
notified of the communication charges for specific offences, etc.
17. The stay of dovolatele (the plaintiff) beyond the borders of the Czech Republic in
the time the prosecution itself does not imply fault on his
the subsequent custody within the meaning of the provisions of section 12(2). 1 (a). and)
Act No. 82/1998 Coll., by the dovolacího Court was therefore obvious that
the decision of the Court of appeal lacked the above partial entitlement
the necessary factual basis-was not properly justified and přezkoumatelně.
Therefore, the Supreme Court decision in this section set aside for
nepřezkoumatelnost (for lack of reasons).
18. The municipal court in Prague on the judgment of the Supreme Court responded
so, that its resolution of 19 May 2000. 5.2009 No. 35 What 474/2005-175
set aside the judgment of the Court of first instance in a satisfactory verdict on the merits
regarding the amount of CZK 120 with 2% interest from 10. 10.2003
payment and statement of costs and in this range case
back Court of first instance for further proceedings. In the grounds of the resolution
in particular, he stated that the task of the Court of first instance will perform the taking of evidence in
to the extent that it can be made a clear conclusion about the fault
plaintiff's custody, and it was found essential time
the context, in particular, the time when the claimant learned that, in the context of the
his person are made investigative operations, when he was notified of the communication
charges for specific offences, when, for what reasons and for what
the purpose, he traveled abroad and how long he was kept there. On the basis of the
This decision of the municipal court has made the Court of first instance concluded that the
"basically, any negative decision in relation to the applicant, therefore, from the
in terms of cargo claim and questions of culpability in the light of the
the constitutional Award [i.e. finding SP. zn. II.-590/08-noted
The Constitutional Court] cannot succeed. In the opinion of [the District Court for Prague 2]
in the light of the finding of the Constitutional Court, then basically you cannot
to infer a situation where the provisions of section 12(2). 1 (a). and Act No.)
82/1998 Coll., has been applied in a manner which would not be in contradiction with the
the legal opinion expressed in the cited provision. ". In this situation,
Therefore, the District Court proceeded according to § 109 paragraph. (l) (a). (c)) Law No.
99/1963 Coll., the code of civil procedure, as amended, and handed
The Constitutional Court has just discussed the proposal.
IV.
19. The Constitutional Court shall-in accordance with section 68, paragraph. 2 of the law on
Constitutional Court-to deal with the question of whether the law as soon as possible, the unconstitutionality of
the provision is namítána, was accepted and published in the limits of the Constitution, the Czech
the Republic established competence and constitutionally prescribed way.
The applicant seeks the annulment of section 12(2). 1 (a). and Act No. 82)/1998
SB.
20. From the relevant websites, it was found that the Bill
submitted to the Chamber of Deputies, the Government of the day 2. 10.1997. After the prescribed
the procedure was resolution No. 646 draft law approved on 12 June 2006. 2.1998; from
167 members present voted in favor, for 149 against no one. The Senate
forwarded the draft began to discuss the day 5. 3. in 1998, when he adopted the resolution
No 98020, in which he stated that, due to the absence of the representative of the Government of
as the promoter of the Bill, which would clarify the opinion of Governments to
the highlight of the observations made by the senators, the Senate was seriously impeded, and
the President asked the Government to rectify; resolution No. 98021
the hearing was interrupted. Because the Senate did not continue in the negotiations, the law
signed by the Chairman of the Chamber of Deputies, the President, Prime Minister and
declared in the collection of laws under no. 31 amount 82/1998 Coll., with effect from
15.5. 1998.
21. The texts of the provisions of section 12 [or paragraph 1 (b))] of the Act No.
82/1998 Coll., have not yet been amended and is the following:
"(1) the right to compensation is not the one
and who's the link,) the conviction or the imposition of safeguard measures caused
alone, or [(b)) who was acquitted or the criminal against him
the prosecution stopped just because he is not a criminal offence
responsible, or that he was awarded the grace or that the offence has been
amnestován.] ".
22. The Constitutional Court notes that Act No. 82/1998 of Coll. was adopted and issued
within the limits of the Constitution of the Czech Republic set out competences and constitutionally
in the prescribed manner, or that, in this proceeding did not detect anything
spoke for the opposite conclusion.
In the.
23. The Constitutional Court first reviewed the question of whether the appellant is entitled to
submit a proposal to repeal the contested provisions of Act No. 82/1998 Coll.
Standing Court to submit a proposal for the repeal of the law,
or its provisions, defined in article 1. paragraph 95. 2 of the Constitution of the Czech Republic
so that, if the Court comes to the conclusion that the law, which has to be in the solution
things used is in conflict with the constitutional order, refer the matter to the constitutional
of the Court. In § 64 paragraph. 3 the law on the Constitutional Court States that the proposal for the
repeal of the law or its individual provisions is also entitled to
the Court in the context of its decision-making activities referred to in article. paragraph 95. 2
The Constitution of the Czech Republic. As for the so-called. specific control standards (cf..
for example, e. Wagner and rounds. The law on the Constitutional Court
commentary. Vyd. 1. Prague: ASPI, 2007, pp. 241 et seq.), which
decisions of the Constitutional Court limits only on particular aspects of the
the case, which raised doubts. In the case under consideration (see the findings of the
made by the Constitutional Court of the District Court for Prague 2 SP. zn. 27
(C) 65/2003) with regard to the subject matter of the dispute-in which the plaintiffs seek to
Czech Republic-Ministry of Justice for damages incurred in the
as a result of the communication charges for offences of fraud, extortion,
unauthorized use of foreign things and restriction of personal freedom, and as a result
custody-partially to the application occurs while the contested
the provisions.
24. In accordance with these conclusions of the Constitutional Court, then submit to meritornímu
a review of just the part of the contested provision, the saying that: "the right to
compensation is not the one who's link) and (...) to blame myself, (...). ". Only
in this part of the proposal is Article 95 paragraph request filled. 2 of the Constitution
Of the Czech Republic. On the contrary, in part, in which the plaintiff, at least formally,
rail against that: "the right to compensation for damages, and has one) which (...)
a conviction or the imposition of a safeguard measure to blame myself, (...) "proposal
he refuses, as is filed by a person obviously unjustified (cf..
for example, mutatis mutandis. Constitutional Court SP. zn. PL. ÚS 33/09 of 29 June.
9.2010, promulgated under no 332/2010 Sb.).
VI.
25. No constitutional objections to the petitioner against the contested provisions
usually the claim that section 12 paragraph. 1 (a). and Act No. 82)/1998 Coll.
in the light of the finding of the Constitutional Court of 17 December. 6.2008, SP. zn. II. THE TC
590/08, unable to unload, so that this provision was not in conflict, in particular,
with the article. 1 (1). 1 of the Constitution of the Czech Republic (i.e. with the principles on which it is
built a democratic legal State in the material concept) and with article. 36
paragraph. 3 of the Charter (i.e., the right to compensation for damage caused by illegal
by a decision or incorrect official procedure of a public authority or
State authority). The appellant also cited finding understands so that
in future, it will no longer use the existing decision-making procedure in practice, when
waiver of indictment (criminal prosecution) concluded
only the illegality of the decision to initiate the criminal prosecution of the founding
liability for the unlawful decision (section 8 of Act No. 82/1998 Coll.);
responsibility of the decision on custody then was assessed separately.
26. Both the conclusions that the appellant connects with the finding of the SP. zn. II. THE TC
590/08, however, the Constitutional Court must refuse.
27. In the evaluation or interpretation of the award SP. zn. II.-590/08 is
to be in the first place to remind the uniqueness (specificity) of the facts
the State, with which the Constitutional Court to resolve the constitutional complaints registered
under SP. zn. II.-590/08. In the case in question, the complainant was
prosecuted for the crime of assault on a public authority under section 154, paragraph. 2
the criminal code, which should happen so that in the written submission of the
addressed to the police of the Czech Republic. He stated that there appointed
judge is an overbearing, arrogant, and its function of a judge tries to exploit the
křivému charges. In the course of this prosecution, then an investigator
ordered a constitutional examination mental state of the complainant, which is
the complainant refused to submit. On the basis of this position, the complainant was
decision on his detention under section 67, paragraph. 1 (a). and criminal)
the order that the complainant refuses to undergo observation at the Institute, and may be
from this it is inferred that intentionally hides, to criminal prosecution
Dodge [cf. paragraph 19 of the award SP. zn. II.-590/08]. Later, he was
the complainant decision the Supreme Court acquitted, because
the Court did not commit any crime. The complainant subsequently
a claim for compensation in accordance with section 9 of Act No. 82/1998 Coll., but
not just with reference to § 12 of the Act, as referred to in
the courts caused the complainant's imposition of binding by voluntarily
He would not come to a psychiatric examination. In this situation, the constitutional
the Court considered that no doubt contradicts the principles of democratic
the rule condition (or exclude) the right to compensation
any limits-hence the limits laid down in section 12 of Act No. 82/1998
SB is the one of the institutes criminal proceedings (criminal, respectively.
law in General) used wholly inappropriate to an absurd way, then
in the opinion of the Constitutional Court cannot be used for the purposes of State responsibility
expressed pozitivněprávně just by Act No. 82/1998 Coll., act completely
formally and mechanically. cannot be the criminal proceedings in which this occurred
absolutely flagrantnímu misconduct, measured by the procedures and mechanisms, which
pozitivněprávní edit knows and applies in a situation where such a
avoid excesses. Indeed, it cannot be seen again soon-facts
constitutional complaints registered under SP. zn. II.-590/08-that the authorities
law enforcement agencies have used the Criminal Law Institute (link) to verify the
the mental health of the complainant, since already in the initiation of criminal prosecution
considering that it is not necessary for the complainant to be seen as criminally
irresponsible '' for pursuing because of his insanity. However, already stripped
any legitimacy not only ordered the link, but also the entire prosecution
the complainant. In such circumstances, then, of course, cannot-as
He said the Constitutional Court finding in question SP. zn. II.-590/08-
for the purposes of compensation, and to consider absolutely formalistic manner isolated link
and criminal prosecution as such.
28. the applicant, in this context, the reference to find
The Constitutional Court, SP. zn. II.-596/02 correctly draws attention to the fact
the legislature decided to establish the liability of the State for damage caused by
not only illegal, but also to the legal decision on custody-because, after all,
the provisions of section 9 of Act No. 82/1998 Coll. does not bind the claim for damages
(differently from § 8 of the same Act) for annulment of the decision, which was a pity
caused by. It is obvious, that the limit of the fault, as it refers to section 12
paragraph. 1 (a). and Act No. 82)/1998 Coll., can be applied only in the case of
the legal decision on custody. In other words, the law assumes that the
You cannot cause illegal link. In exceptional cases, while
Apparently, according to the Constitutional Court may occur in situations when the legality of the
the binding cannot be judged only by complying with the formal conditions enabling
custody, but also the legality of the entire prosecution.
29. those conclusions are Just way prescience did with the relevant case-law
The European Court of human rights (hereinafter referred to as "the ECHR"), or the Convention on the
the protection of human rights and fundamental freedoms (hereinafter referred to as "the Convention"). Convention
namely, does not guarantee the person against which the allegations in the criminal
management and subsequently exempted from charges (IE. in the conditions of the Czech
the law was the prosecution stopped), the right to compensation for expenses, which
incurred in the course of criminal proceedings, or to compensation for legal
restrictions on its freedom (cf. paragraph 49 of the judgment to Masson and Van Zon
against the Netherlands, 15346/89; 15379/89). The same conclusion also occurs (B).
Repík, which States that: "the Convention does not guarantee the right to compensation for the link
for example. in the case of exemptions, cease prosecution, etc., if
during the arrest, detention or custody complied with article 5
paragraph. 1 to 4 of the Convention "(retrieved by Repík, (B). the European Convention for the
human rights and criminal law. Prague: Orac, 2002, p. 252 to 253).
This conclusion is also supported by the decisions of the ECHR in cases
Belčev against Bulgaria, 39270/98; Hamanov against Bulgaria, 44062/98;
Govoruško against Russia, 42940/06; Koršunov against Russia, 38971/06, in the
which the ECHR HAS found a violation of article 5 (3). 5 of the Convention and at the same time violating
Article 5 (3). 1 to 4 of the Convention. In these cases, while the national
While conferring the right to claim compensation for unlawful detention, however,
the illegality of the binding was assessed in the light of national law and
circuit cases, when it was binding under national law is considered
legally, they didn't with the requirements laid down in article. 5 (3). 1 to 4 of the Convention.
Thus, although there has been a violation of article. 5 (3). 1 to 4 of the Convention, the national
the right to link illegal neshledalo and entitled to compensation but never acknowledged.
Waiver of charges or the prosecution then has to stop by
the case law of the ECTHR influence only on the assessment of the length of the links (i.e. merits tests are applied
its duration within the meaning of article 5 (3). 3 of the Convention and in the light of the judgment in
things against Germany, Wemhoff 2122/64), but it is not confirmed by nedůvodnost
(illegality) links from its beginning within the meaning of article 5 (3). 1
The Convention, and therefore does not constitute automatically entitled to compensation within the meaning of
Article 5 (3). 5 of the Convention.
30. Can therefore make partial conclusion that the ECTHR in their case-law defines
basically only against custody effected in breach of article. 5 (3). 1 to 4
Of the Convention; any compensation for the binding legal, which was carried out in
criminal proceedings which ended by stopping or removal of the indictment,
It leaves to the discretion of the national legislator in principle.
31. Beyond referred to, i.e., above and beyond their own argumentation
the petitioner, then the Constitutional Court deems it necessary, and also due to the
the findings of the on-demand made by the District Court for court records
Prague 2, make the following conclusions:
32. According to the Constitutional Court is required, in accordance with the Convention to interpret it
"fault" within the meaning of the provisions of section 12(2). 1 (a). and Act No. 82)/1998
Coll., and regardless of the manner in which the compensation
or its individual aspects of the work of the legislature, and the case-law home
doctrine (especially the civilistická). Similarly, such as in the
the case-law of the European Court of human rights, and in particular in the case law
European constitutional and Supreme courts interpreted the extent of damages
including non-material injury [cf. to e.g. list the conclusions of this
the case-law referred to in the award of the Constitutional Court SP. zn. I-85/04 dated
13.7. 2006 (N 136/42 SbNU 91)], it must be unloaded and at fault. Can be
While noting that the term "fault" is not considered by the Constitutional Court for the
close-fitting or
de lege lata
(in the case of considerations
de lege ferenda
should the legislature reflect). Used if this law
the term, then he should at least be understood as "causing"
("here the causes for") custody and should be interpreted as
strictly interpreted, respectively, so that the aspect of the fault was in his
essentially the denial of plan to the legislature to establish the liability of the State for
the legal decision on custody (cf. also the plaintiff judgment
The Constitutional Court, SP. zn. II.-596/02). You cannot, therefore, agree in this
connection with the fault within the cited provision was
associated even with the form of unconscious carelessness, so how it counted
selected relevant provisions of Act No. 40/1964 Coll., the civil code,
as amended, (hereinafter the "civil code"), although this
the view is therefore otherwise accepted literature (cf.. Vojtek, P.
Liability in the exercise of public authority: a comment. 2. vyd. Prague
By: c. h. Beck, 2007, 276). The laconically notes-and its conclusions
completely takes over the relevant case-law (see, for example, the decision of the
The Supreme Court SP. zn. 25 Cdo 3038/2006 of 29. 1.2009, R 110/2009
CIV.) -the provisions of section 12(2). 1 (a). and Act No. 82)/1998 Coll.
some form of fault does not impose, to his meeting will
just ignorant negligence. Ignorant negligence is in accordance with this
literature and the case law based on the fact that being pursued by the person she didn't know
that may cause some result in the Act (e.g., taking into
links), although given the circumstances foreseen could or should.
This concept is, however, somewhat, in the opinion of the Constitutional Court
the simplistic. Overlooked that the Civil Code recognizes the fault mainly
as a prerequisite of developing responsibility, or if it works as with
element enabling the limitation or exclusion of liability, pests does so
manner consistent with the nature of civil-law relations (cf..
for example. Plum, j.-Spáčil, j.-Škárová, m.-Hulmák, m. a kol.
The civil code. Part I, 2. Edition, Prague, 2009, p. 35 et seq.. or
for example, the decision of the Supreme Court of 28 June. 2.2007 SP. zn. 33
Odo 1329/2006, unpublished, available under http://www.nsoud.cz/, where
among other things, by the following conclusion: "the hallmark of
civil-law relations is mainly that their bodies have equal
position. Equal status lies in the fact that one participant such
the relationship cannot by its unilateral action to establish the obligation of the second
participant relationship and in the framework of this relationship cannot be authoritatively
to enforce the fulfilment of the obligations of the other body. "). The provisions of § 441
of the civil code, which has to be especially in the question of the concept of fault
similar to the paragraph to section 12. 1 (a). and Act No. 82)/1998 Coll. (cf..
again, Vojtek, P. Liability in the exercise of public authority:
comment. 2. vyd. Prague: c. h. Beck, 2007, p. 84 et seq. and there referred to
explicit reference), but according to a fixed interpretation of Czech civilistiky
(cf. e.g. the Czech from.-coat, j.-j.-plum, J.
The civil code. Comment. Part II. Prague: Panorama, 1987, s. 534 to
535; Fiala, j.-K, M. The civil code: a comment. Part 1,
Vyd. 1. Prague: Wolters Kluwer ČR, 2009, s. 735 et seq.) be understood
so that a precondition for carrying or damaged damage relatively alone,
It is, that is guilty of conduct which meets all the prerequisites for the emergence of
liability for damage.
33. With regard to the just mentioned, the Constitutional Court has considered that, if
the current application of the practice (especially the Supreme Court) the parallel between
some of the General principles of the controlling Institute of damages, so
It counts civil code, and the damages according to the cited
the provisions of Act No. 82/1998 Coll., then goes about how inadequate.
Does that on the side of the injured party-though I'm sure you can imagine
the situation, when you actually caused the detention itself, so that the
the provision of compensation should actually was conflicting with the principles of
Justice (cf., for example, to the facts of the case
mentioned in the resolution of the Constitutional Court of 3 June. 11.2005, SP. zn. II. THE TC
366/04, available at http://nalus.usoud.cz)-to the "fault"
in the framework of civil relationship, but in the circumstances related
to the specific criminal proceeding, when the State represented by the law enforcement authorities
in the criminal proceedings was not damaged in the above equality session
bodies. Furthermore, declares to a conceptual commonality between that
in § 441 of the civil code or section 12, paragraph. 1 (a). and Act No.)
82/1998 Coll., the legislature did not specify the form of the fault (it is therefore considered
that, in both cases, it is sufficient to ignorant neglect), does not do this
comparison of discernment, as she "strictness of the law" in the form of the unconscious
negligence within the meaning of § 441 of the civil code is appropriate, inter alia,
Therefore, the injured party to a similar extent as in pest control
whether its filled with all the prerequisites for the emergence of responsibility (as
mentioned above), including the intensity of their fulfilment; a comparable
the possibility of doing so apparently the person being pursued by the vazebně does not have. Just on the edge of the can to
This comparison of the cited statutory provisions to add that while the
the provisions of § 441 of the Civil Code also with the idea to reduce the
compensation to the injured party due to its fault, the provisions of section 12 of the
paragraph. 1 (a). and Act No. 82)/1998 Coll. with this alternative does not count.
34. The Constitutional Court has already, in its case-law judikoval [cf., for example, find
The Constitutional Court of 28 June. 8.2007 SP. zn. IV. TC 642/05 (N 133/46 SbNU
249)], that the criminal proceedings affects the personal life of a criminal
being sued, which is the point of the legal power of the litigation
the decision should be seen as an innocent, but the very fact
criminal prosecution is a burden for each of the accused. Already the criminal
the prosecution had strongly interfered in the private and personal life
of the individual, to his honor and reputation, and even if he is not prosecuted
vazebně. Such action is more acute on it more, if the criminal proceedings
Finally, since the judgment of the zprošťujícím over the deed, from which it was
the individual accused and the accused, did not happen, or was not a criminal
of the offence. Being conscious of these contexts is then to be on any
the fault binding's look and in its interpretation to give always constitutionally
konformnímu interpretation [cf. to understanding this interpretive method for
for example, find all of the plenum of the Constitutional Court of 29 June. 9.2010 sp.
Zn. PL. ÚS 16/08 (promulgated under no 310/2010 Sb.), also available on the
http://nalus.usoud.cz]. In the context of the right of
the plenary of the award means that, when considering whether an individual's link
induced or lose himself, the court examining this factor out
from the fact that the purpose of the company formed in a democratic legal State
European type is to allow individuals to its versatile and what might
the most extensive development. The limit of this development-put simply-there is then
an autonomous space of other members of society that they can
use in accordance with their value preferences. If I happen to
an autonomous realm of individuals in a restrictive way, so
(should do so) in the ideal case only if it is necessary to
the protection of the social arrangements guaranteeing individuals
(individuals) the just autonomy. However, if the State intervenes in the autonomous
the realm of the individual or the inadequacy of the way unnecessarily, it is fundamentally
responsible, since this is, in effect, again carried out of the said
generalized mission State.
35. On the basis of all the foregoing considerations, it is therefore possible to conclude that the
The Constitutional Court finding SP. zn. II.-590/08 did not rule out the possibility of a legitimate
considerations of the Court about the possible fault within the meaning of section 12, paragraph. 1 (a). and the law)
No 82/1998 Coll., or questioned the present practice, which
evaluate the potential liability for zhely alone to stop the criminal
the prosecution and the decision on custody. This procedure is usually one hundred
meet the values of the democratic rule of law, to which the United
Republic reported. On the other hand, however, may occur-as
It happened in the case of events taking place on the background of the constitutional
complaints registered under SP. zn. II.-590/08-that otherwise functioning
the system of State responsibility for damage not only not able to, even if only
in part, to alleviate the damage caused, but even given the injustice
even, and it disputes the democratic legal State as such.
Then, of course, is the duty of the courts, that in particular cases, such
situations, and in particular avoid using constitutionally consistent interpretation
the provisions under consideration (relevant parts) as above
implied.
36. In the light of these conclusions, in relation to their own Circuit Design
Court of Prague 2, the Constitutional Court therefore notes that the reasons are not
to the repeal of the provisions of section 12(2). 1 (a). and Act No. 82)/1998 Coll.,
in the part which reads: "the right to compensation is not the one who's)
binding of (...) to blame myself, (...) ", since this part of the provision is not in itself
in conflict with the article. 1 (1). 1 of the Constitution of the Czech Republic, nor with article. 36
paragraph. 3 of the Charter. Therefore, the proposal of the District Court for Prague 2 in this
part under section 70, paragraph. 2 of the law on the Constitutional Court rejected. In part, the
which reads: "the right to compensation for damages, and has one) who have (...) the conviction
or the imposition of a safeguard measure to blame myself, (...) ", then the proposal
The District Court for Prague 2 refused as brought on by the person apparently to
unfair [§ 43 (1) (b) (c)) in connection with the provision of section 43, paragraph.
2 (a). (b) the law on the Constitutional Court)].
The President of the Constitutional Court:
in the z.. Holländer in r.
Vice-Chairman of the
