2/2008 Coll. CONSTITUTIONAL Court on behalf of the Czech Republic's Constitutional Court ruled today in the Pavel Rychetsky: of, chairman and judge Stanislav Balik, Frantisek Duchon, Vlasta Formankova, Turgut Güttler, Ivana Janu, Vladimir Kurka, Dagmar Lastovecká, Jan Musil, Jiří Nykodým, Miloslav Vyborny, Elizabeth Wagner and Michael Židlická on the proposal of the District Court for Prague 1 on the annulment of § 444 par. 2 of Act No. 40/1964 Coll. , the Civil Code, as amended, as follows: The petition is denied. Reason 1. The District Court for Prague 1 (hereinafter the "District Court") submitted to the Constitutional Court under the provisions of Article. 95 para. 2 of the Constitution of the Czech Republic (the "Constitution") with the provisions of § 64 par 3 of Law No. 182/1993 Coll., on the Constitutional Court, as amended (the "Act on the Constitutional Court") for the annulment of § 444 par. 2 of Act No. 40/1964 Coll., the Civil Code, as amended. Proposal formally meets the other requirements requested by the Constitutional Court. 2. The applicant in the application initiating proceedings stated that the district court proceedings are brought for damages it health, attack specifically for the payment of insurance benefits against the insurer under section 9 of the Act No. 168/1999 Coll., On liability insurance for damage caused by vehicle and amending some related laws (Act on vehicle insurance), in which the applicant is a natural person , the defendant's insurer and the subject of the dispute is the payment of the amount of the 1,458,000,-CZK for social impairment. The applicant suffered in a traffic accident not caused serious injuries and sought compensation for loss of amenity. For this purpose, commissioned two expert reports, according to which the total amount of compensation for loss of amenity represents the sum of 486 000,-CZK which she was paid by the insurer. With regard to the permanent consequences, persistent restrictions in family, social, cultural, sports, sex life, the applicant contended that the games court granted it pursuant to § 7 para. 3 of the Decree Art. 440/2001 Coll. in conjunction with § 444 paragraph. 2 ranking social impairment, as in the case of a particularly exceptional, extraordinary sight worthy of the case and ordered the insurer's pay an amount equal to three times, and further 1,458,000,-CZK. 3. Furthermore, the petitioner stated that he has applied the provisions of § 444 of the Civil Code. Code in conjunction with Decree No. 440/2001 Coll., on compensation for pain and social impairment. He is aware that under Article. 95 para. 2 of the Constitution in conjunction with § 64 para. 3 of the Constitutional Court is legitimized it propose the abolition of the law or its part it conflict with the constitutional order; therefore can not propose the abolition of legal regulation of lower legal force, in this case Decree No. 440/2001 Coll. However, since the law refers directly to this Regulation obliges the court to proceed in accordance with sub-statutory regulation in disputes over compensation for damage that health, it is necessary that deal with the nature and constitutional conformity and quoted decree. It adds that section 444 Sec. 2 of the Civil Code. Code and Legislative Decree constitutes a whole, therefore, if the court applied a law that completely and without further reference to the decree, must logically deal with the fact that it is not in conflict with the constitutional order and decree applied. 4. the essence of the problem the petitioner stated that the entire system of compensation for pain and social impairment, which is based on the design of multiples calculated according to the number of points set by the Ministry, subsequently binding forensic experts, and in effect the court is entirely unworthy, contradictory principles that it is necessary that respect in a democratic society if they are thinking seriously protect human honor, dignity and above all health and life. If the law will issue construction damages for bodily injury (constitutionally protected rights) that he delegates authority (Ministry of Health) that rate the amount of compensation for pain and social impairment totally undignified manner, as is the case with Decree No. 440/2001 Coll., this is a fundamental disrespect for human rights, and therefore is inconsistent with the provisions of Art. 1, paragraph. 1 of the Constitution. Compensation is a way of demeaning the more so if it allows courts to increase the compensation prescribed by law in connection with the decree only in particularly exceptional cases deserving special attention (§ 7 para. 3 of Reg. No. 440/2001 Coll.). 5. In the next part of the petitioner argued that: a) the provisions of § 444 paragraph. 2 of the Civil Code. The code is inconsistent with Art. 4 of the Constitution, because the mandate of the Ministry of Health set by regulation the amount to which only allows compensation for pain and social impairment, and determining the amount of compensation is excluded from the court that it-protect fundamental rights and freedoms b) the provisions of § 444 paragraph. 2 of the Civil Code. Code in conjunction with Decree No. 440/2001 Coll is in conflict with Art. 6, paragraph. 1 of the Charter of Fundamental Rights and Freedoms (the "Charter") because the person whose health is damaged, it belongs, the amount of compensation which can not in any circumstances be regarded as such, to protect preventive health, and therefore life, and because it is not dignified that compensation, but not extraordinary and exceptional, could not be granted this citizens before the accident did not reach extraordinary performances (c)) of § 444 paragraph. 2 of the Civil Code. Code in conjunction with Decree No. 440/2001 Coll is in conflict with Art. 10 paragraph. 1 of the Charter, because the current legislation in its essence and its philosophy grossly reduces human dignity as such. cheapest car can be bought for a sum equal to the amount it has to be compensation to the citizen that due accident lost quite a sight d) of § 444 paragraph. 2 of the Civil Code. Code in conjunction with Decree No. 440/2001 Coll. It is in conflict with Art. 31 of the Charter because it does not ensure that the injured party is free to obtain such funding, which would allow the removal of all the possible consequences of injury, albeit through superior and paid interventions (e)) of § 444 paragraph. 2 of the Civil Code. Code in conjunction with Decree No. 440/2001 Coll. It is in conflict with Art. 3.1 of the Charter because it discriminates between citizens of different ages, regardless of constitutionally guaranteed protection of health, life and human dignity which can not be dependent on the amount of the age. 6. From all these reasons, the petitioner is convinced that § 444 Sec. 2 of the Civil Code. Code is unconstitutional because of the legal structure of compensation in pain and social impairment is based on age discrimination is inconsistent with the right to protection of life, health and human dignity, in particular provision of the Act is constitutionally protected; the rights of people and the protection of these rights, excludes from judicial protection. The whole structure and method of compensation deemed so unworthy that conflict with the constitutionally enshrined rights is so important that it can not overcome the constitutional interpretation of the law. 7. The petitioner in the proposed text also stated that even if the Constitutional Court II that the ordinary court is not entitled to bring a proposal, it should nevertheless deal with the constitutionality of Decree No. 440/2001 Coll., As provided for in Article. 87.1 point. (b)) of the Constitution, in conjunction with the provisions of § 11 para. 2 point. (b)) of the Act on the Constitutional Court also decides that annul other legal regulations or their individual provisions. 8th Chamber of Protect in the comments pointed out that the bill (no. sc Act 367/2000 Coll., Which was that section 444 of the Civil Code. Code attached second paragraph) was lodged on 16 December 1999 as Parliamentary print no. 465th The explanatory memorandum to this provision only briefly stated that suggests that even in the area of civil relations was established constitutionally proper authorization this issue the implementing legislation, which sets the level to which you can provide compensation for pain and social impairment, and determining the amount of such refund , that it will comply with regulation according to labor regulations; In conclusion stated that the bill is in line with the constitutional order and the international treaties to which the Czech Republic is bound. The Chamber of the gave its consent that Protect the proposal at its 26th meeting, on 10 July 2000, when the 169 protect the present, 118 voted in favor for it, against it 45. The proposal was forwarded to the Senate, who returned it with amendments, but the contested provisions were not covered. The bill was again returned by the Senate voted on 14 September 2000, at 27 meeting. Given that the Chamber of Protect the bill approved in the Senate version, voted according to § 97 para. 5 of Law No. 90/1995 Coll., On the Rules of Procedure of the Chamber of Protect; He maintained the original bill, when, out of 186 protect the present, 130 voted in favor and 53 against. The President signed the law on October 6, 2000. The Act No. 367/2000 Coll. He was signed by the appropriate constitutional authorities and was duly promulgated. On this basis, the Chamber of the Protect expressed opinion that the legislative assembly acted in the belief that the law is consistent with the Constitution and our legal order. It is up to the Constitutional Court that evaluate the constitutionality of the Act and issue an appropriate decision. 9. The Senate of the Parliament of the Czech Republic in its statement also recapitulated the legislative process and pointed out that during the contested provision was not questioned in any way. Unlike the Chamber of Protect, the Senate took the statement, also an opinion on the merits. In this context, he pointed out that section 444 of the Civil Code. The code constitutes a right to compensation for non-pecuniary damage, while the second paragraph is a typical instruction, which is the executive branch imposes an obligation within the limits prescribed by the law by decree, the Ministry of Health which completely filled the issuance of Decree No. 440/2001 Coll., on compensation for pain and suffering a social application. Considers it a self-evident that the subject matter regulated by this decree is space for delegated norm creation, when the legislature is not suitable ideologically or materially to the normalization of social reality to the last detail. The legislature has fulfilled its role as a manifestation of what will be, ie. Legalization, so that when the injury once the injured odškodňovaly pain and loss of amenity. Legal mandate then ordered the executive it implement the will of the legislature, when it comes to determining the amount of compensation and its self-determination. From this perspective, the Senate considers false allegations of the petitioner and the contrary such design with Art. 1, paragraph. 1 of the Constitution. The key reason for the complainant's arguments about the unconstitutionality of § 444 paragraph. 2 of the Civil Code. The code refers to the amount of compensation the Senate, therefore, formulate their own opinions on the individual complainant's allegations of breach of the articles of the Charter is, and notes that such claims are not justified. At the end, disputes the petitioner's opinion that the court's construction of § 444 paragraph. 2 of the Civil Code. Code excluded from that fundamental rights-protect it and freedoms. First of all, that the contested provision can not be interpreted so broadly, leading it to think about and "of separation of powers. Recalls that Article. 95 para. 1 of the Constitution the principle that formulates a judges are bound by law and international agreement, which is part of the law, allowing the judge that assess its compliance with other legal regulations with the law or a contract. Hence the imperative not to use such an implementation regulation, which would be in conflict with them. The principle of novit curia is the Senate concludes that if an ordinary court judge came to the conviction of illegal (unconstitutional) the compensation event. about illegal (unconstitutional) selection addressees compensation, has the right-but rather an obligation-implementation regulation on him deciding affair aside and use all available legal options that provide protection court affair that decide and reasoning convincingly justify why secondary legislation deemed inconsistent with law. Following this conclusion has repeatedly pointed out that under § 7 para. 3 reg. No. 440/2001 Coll. the court has the option to off appropriately increase the amount of compensation, and the judge is not obliged case case would dogmatically referring to the settled judicial practice, but has-in the light of the safeguards of the Constitutional Court-room right through rational arguments advanced, creative interpretations. Completely at the end of its reasoning, adding that the assessment of the constitutionality of the proposal it repeal the contested provision leaves it to the Constitutional Court. 10. The Expression of Protect and the Senate, the Constitutional Court sent the petitioner into account and any reply; the petitioner has not used this option. 11. After the presentation of evidence, the Constitutional Court found that the proposal is not justified. According to Art. 95 para. 2 of the Constitution applies that if there is a court concludes that a statute which should be applied in resolving a matter is inconsistent with the constitutional order, submit the matter to the Constitutional Court. Law of the court is specified in § 64 par. 3 of the Law on the Constitutional Court, such as the right to submit a proposal that repeal and the law or its individual provisions. This means that the active material standi to file a court petition that annul and statute or individual provisions of the law depends on the subject matter and its legal classification. In other words, the court may make a proposal it repeal such a law only, respectively. its individual provisions to be applied in resolving the dispute pending before an ordinary court. The Constitutional Court adds that consideration of such an application must be justified, must be derived from the fulfillment of the conditions the proceedings, including the substantive legitimacy of the participants and, in the case of substantive legislation from unequivocal finding that such a rule is to be applied. In the present matter, the Constitutional Court found that the conditions for abolition of § 444 paragraph. 2 of the Civil Code. Code are not met. The proposal suggests that the district court, the applicant, who suffered the injury in a car accident, seeks payment of insurance benefits against the insurer under section 9 of the Act. No. 168/1999 Coll., on liability insurance for damage caused by vehicles and amending some related Acts (vehicle insurance). The dispute is the payment of the amount of the 1,458,000,-CZK for social impairment. The applicant commissioned two expert opinions of the social Assessment of impairment that total 3.150 points and the corresponding amount of (486 000,-CZK) had been paid. With regard to the permanent consequences, persistent restrictions in family, social, cultural, sports, sex life, the applicant claims that the games court awarded under § 7 para. 3 of Decree No. 440/2001 Coll. in conjunction with § 444 paragraph. 2 of the Civil Code. The Code further compensation for loss of amenity in the amount of three times the basic assessment of the social impairment, as in the case of a particularly exceptional, extraordinary sight worthy of the case, and that the defendant ordered it to pay an amount corresponding to this three times, ie. and further 1,458,000,-CZK. 12. The wording of the cancellation of the proposed provisions is as follows: § 444 paragraph. 2 of the Civil Code. Code: The Ministry of Health determined in agreement with the Ministry of Labour and Social Affairs Decree of the amount to which only allows compensation for pain and social impairment, and determining the amount of compensation in individual cases. 13. The Constitutional Court finds that in the present case was applied in general this section 444 paragraph. 2 of the Civil Code. Code. His diction is clear that it is a typical enabling provision that is not in itself unconstitutional (see also judgment. Nose. PL US 20/05, Collection of Decisions of the Constitutional Court (hereinafter "Collection"), Volume 40, judgment No. 47, promulgated as well. 252/2006 Coll., in which the Constitutional Court stated that "the very wording of section 696 paragraph. 1 of the Civil Code. Code which merely expects the passage of new legislation, is unconstitutional is long-term inaction of the legislature, which has resulted in a constitutionally unacceptable inequality, and ultimately the "of constitutional principles"). Although the two cases are different (because under § 444, paragraph 2 of the Civil Code. The code was adopted in implementing treatment, while treatment envisaged by the provisions of § 696 paragraph. 1 at the time absent), the nature of the enabling provision remains the same. For this reason, the conclusions of the Constitutional Court received the case file no Pl US 20/05 use, therefore the Constitutional Court for the annulment of § 444 paragraph. 2 of the Civil Code. Code dismissed. 14. It further adjudicated matter, the Constitutional Court considers it desirable that the recall that the subject of a specific application in a dispute with the district court's section 7 of the Decree. No. 440/2001 Coll., the annulment of which has not been proposed. His diction is as follows: The amount of compensation for pain and social impairment 1) The amount of compensation for pain and social impairment is determined based on the scores established in a medical report. 2) The value of 1 point CZK 120. 3) In particularly exceptional cases deserving special consideration, the court determined the amount of compensation under this ordinance off appropriately increase. This finding applied in respect of legal norms, the Constitutional Court adds that it fully agrees with the opinion of the Senate (paragraph 9), refers to the conclusions included in the order in Case File No. i. US 419/06 (unpublished in the ECR), adding that the district court lacks "courage" to consider action in accordance with these principles. This means that, within the meaning of Article. 95 para. 1 of the Constitution, the judge is bound by the law and international agreements, which is part of the legal order. The judge is entitled it to assess compliance to other legislation (also section 7 reg. No. 440/2001 Coll.) With the law or with such international agreement. If there is a conclusion that it is a rule of behavior that is in conflict with them, and the judge is required such that the rule not apply (see Rule is commemorated novit curia). However, it is logical that in such a case must decide the dispute and the Kennel justification statement adequately explain the reasons which led to this decision, including the reasons for which subordinate the rule did not apply. 15. In the present case the petitioner has also the usage rules included in § 7 para. 3 reg. No. 440/2001 Coll. It is a provision that gives the court discretion it exceed the scores and take into account the exceptional circumstances. It is true that the case law of the general courts and tends it restrictive application of that provision (see references on p. 5 of the proposal), but its findings do not rule out that the petitioner did not find that the conditions for increased compensation also in the present dispute. This may also serve the account the Constitutional Court expressed in the statement of law in the matter file well finding III. US 380/03 (Collection of Decisions, Vol 38, judgment No. 186): "The modern unwritten constitutional rule which, according to today's constant jurisprudence also applies the Constitutional Court, the principle of proportionality, which is among the general legal principle, which, although not legal Regulatory expressly included, but in the European legal culture is fully applied (to see. the eg. in: the judgment of the Constitutional Court in the case file. Nose. PL US 33/97, Collection of Decisions of the Constitutional Court, Volume 9, judgment No. 163, promulgated under no. 30/1998 Coll.). The Constitutional Court has thus joined the European legal culture and to its constitutional traditions. In light of these general principles of law also interprets constitutional provisions, in particular the Charter of Fundamental Rights and Freedoms. Such an interpretation is then reflected in the interpretation of the legislation, ie. In this case, those that regulate the amount of any award for damages for bodily injury (compensation for loss of amenity). "Of the rule of proportionality may cause interference in constitutionally guaranteed rights, namely the right to judicial protection (art. 36, para. 1, of the Charter of Fundamental Rights and Freedoms). -In the matter was disputed interpretation of the then applicable reg. No. 32/1965 Coll. on compensation for pain and social impairment, the related text, which was the implementing regulation issued on the basis of statutory authorization in the provisions. § 444 paragraph. 2 of the Civil Code. Act, especially section 7 para. 3 of this decree, according to which in particularly exceptional cases deserving special consideration, the court may increase the compensation off appropriately, set high above the area of compensation. Plzeň-city district court found that in this case occurred the site-specific circumstances. The Regional Court in Plzen and the Supreme Court is inclined towards the opposite conclusion that while the amount of any award the complainant stated that the court is not authorized by increasing the compensation for loss of amenity procedure under § 7 para. 3 of the decree replacing shortage if the current legislation When the amount of compensation determined by the amount of CZK 30,-1 point corresponds to the current wage conditions. It is fitting that the above note the following. In the Constitutional Court, it is hard to imagine a better example of a case "worthy of special consideration" under § 7 para. 3 of the decree is, but is irreversible and permanent damage this health as a result of which there has been a marked reduction in functionality of one of the most important organs in the human body as a whole (kidney), and-as was once said-"incorrect, irresponsible and unprofessional procedure the surgeon. The arguments of the court of first instance in this direction closest to and constitutional interpretation in conformity with the provision in question. The conditions for the application of the provisions. § 7 para. 3 of the Decree, therefore, in the opinion of the Constitutional Court have been met. The Constitutional Court based on the following criteria, which in this case have been fulfilled or for which in his opinion should be taken into account: the severity of the damage this health, ie. whether they were affected (damaged), vitals, The possibility.MP3 of and cure or eliminate damages, ie. whether due to damaged is damaged and restricted in their way of life and if it is forced it to regular checks by doctors, another operative surgery or as a result of injury has become, at least it's some extent dependent on the instrumentation, should take into account the degree of fault (negligence) operator, that is how much departing from the standard (ordinary) procedure during surgery. Constitutional Court with regard to its status as a judicial body for the protection of constitutionality (art. 83 of the Constitution), although not entitled to say what the specific amount of the compensation for loss of amenity should be given, ie. What should be a multiple of under § 7 para. 3 of the ordinance, however, must be based on the principle of proportionality. In other words, the ordinary courts in assessing the extreme cases, they have some discretion that decide what multiples are used. In terms of constitutionality, however, care must be taken to ensure that the amount of compensation granted for loss of amenity was based on objective and reasonable grounds and that between the granted amount (amount of money) and caused damage (injury)-"destruction" of one kidney, and relationship adequacy. 16th Beyond The Constitutional Court also points to the possibility.MP3 of increasing the scores of personal injury procedure referred to it in § 6 para. 1 reg. No. 440/2001 Coll. 17. The Constitutional Court does not agree with the Offeror's reflection on the scope of its review powers in relation to the legislation (see section 3). Claimant's allegations deemed sprain targeted efforts that achieve that the Constitutional Court itself considered the constitutionality of the decree No. 440/2001 Coll. In this case, it should fully respect the definition of a set of subjects with active standing to file such a proposal (see section 64 of the Constitutional Court Act). The Constitutional Court recalls that in terms of content petitioner proposal is not directed against the law, but against the decree No. 440/2001 Coll., For the appellant (general court) is not a proposal that the cancel it legitimized the contrary, if it is convinced of the unconstitutionality of the decree may not use it and can decide only on the basis and in the spirit of the law , which is implemented by decree. With the possible lack of locus standi and calculates the petitioner (p. 4, first paragraph), and in this case expresses the opinion that the Constitutional Court still had to deal with the constitutionality of the decree, as provided for in Article. 87.1 point. (b)) of the Constitution, in conjunction with the provisions of § 11 para. 2 point. (b)) of the Act on the Constitutional Court also decides that annul other legal regulations or their individual provisions. This reasoning, however, overlooks the fact that a prerequisite for assessing the constitutionality of the ordinance is necessary for the annulment brought by a legitimate entity-see § 64 para. 2 of the Constitutional Court. Such an entity is itself nor the Constitutional Court (cf. The authorization pursuant this section 78 para. 2 limited only to the proceedings on constitutional complaints). 18. On the basis of these facts, the Constitutional Court finds that there are no grounds that § 444 annul paragraph. 2 of the Civil Code. Code, since that provision is not, in itself, contrary this Article. 3.1, of the Charter of Fundamental Rights and Freedoms, and therefore the proposal to the District Court for Prague 1, without the presence of the participants with their consent (ie. with fiction consent) outside the mouth hearing, according to § 70 para. 2 of Act No. 182/1993 Coll., on the Constitutional Court, as amended, dismissed. Constitutional Court chairman: JUDr. Rychetský vr dissenting opinion according to section 14 of Act No. 182/1993 Coll., On the Constitutional Court, as amended, have taken the decision to the full court judge Elizabeth Wagner and Vlasta Formankova.