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The Opinion Of The Full Inadmissibility Of A Constitutional Complaint To The Tc

Original Language Title: stanovisko pléna ÚS k nepřípustnosti ústavní stížnosti

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124/Sb.



The COMMUNICATION FROM the



The Constitutional Court



The plenary adopted the Constitutional Court under the SP. zn. PL. ÚS-St. 35/13 of 23 July.

April 2013 in the composition of Stanislav Package, Vlasta Formankova, Turgut

Güttler, Pavel Holländer, Ivana Janů, Vladimir Crust, Dagmar

Lastovecká, Jan Musil, Jiří Nykodým, Pavel Rychetský (judge

the Rapporteur), Miloslav Výborný and Michael April on a proposal from the Senate as well.

The Constitutional Court under section 23 of the Act No. 182/1993 Coll., on the Constitutional Court, in

his legal opinion for the proceedings conducted under the SP. zn. I. ÚS 42/13,

which deviates from the legal opinion of the Constitutional Court has issued in

the findings of 16 June. March 2006, SP. zn. I. ÚS 664/03, of 17 December 1999. may

2007, SP. zn. II. TC 745/06 of 26 July. September 2007, SP. zn. I. ÚS 43/07,

from day 1. November 2007, SP. zn. II. CS 359/07 and of 3 July 2003. April 2008

SP. zn. II. TC 275/08,



This opinion:



The constitutional complaint against the order of the Court, which was a party to the proceedings pursuant to

§ 9 para. the Czech National Council Act No. 553/1991 Coll. on Court

fees, as amended, is asked to pay a fee

for the procedure, payable to the filing of the application instituting proceedings, appeals,

appeal or appeal in cassation, it is under section 75 para. 1 of law No.

182/1993 Coll., on the Constitutional Court, as amended,

inadmissible.



1. Before the constitutional court proceedings have been instituted on the constitutional complaint, Ing.

Paul Radoně against the municipal court in Prague by order of 31 July. October

2012 No. 31 C 105/2012-6 and no. 31 C 105/2012-7; the matter is kept under

SP. zn. I. ÚS 42/13. He subsequently referred to by a resolution (hereinafter referred to as ' the contested

the resolution ") was the complainant in accordance with § 9 para. 1 of Act No. 553/1991 Coll. on

court fees, as amended, (hereinafter referred to as "the law of

court fees ") is asked to pay the balance of the fee for the

an action for protection of personality in the amount of $ 200. The reason for this was the fact

that its action was directed against two defendants, in consequence of which is, even

management fee $ 400, double the rate of the fixed

amount by item No. 3 (b). a) and no. 4 (4). 1 (b). (c))

fees, of the annex to the law on court fees. On the contrary, had the complainant

consider that the number of defendants is not substantial, if each of

they commit the same unauthorized interference in moral rights. In

the determination of this supplement to constitute a violation of their fundamental rights.



2. Before the Constitutional Court could proceed to a factual assessment of the

a constitutional complaint, he had to deal with the question of its admissibility. How

in fact stems from section 75 para. 1 Act No. 182/1993 Coll., on the Constitutional Court, in

as amended, constitutional complaints can seek protection

fundamental rights and freedoms only against decisions of the "final", IE.

a decision on the last process of the resource that the law for the protection of

the law provides. As a rule, it will be the decisions of judicial or

other control ends. The following conditions may be accepted in the

the case of nemeritorních decisions that are eligible immediately and

significantly affect the fundamental rights of the complainant, and which are

a separate enclosed part of the proceedings, even though the proceedings on the merits

not over yet [cf. find dated January 12, 2005, SP. zn. III. THE TC

441/04 (N 6/36 SbNU 53)]. According to i. the Senate Constitutional Court, however, it is not

the case of the contested order.



3. pursuant to § 9 para. 1 of the law on court fees, if the fee has not been

management of the filing of the application due to the initiation of the procedure, appeal, appeal in cassation

a complaint of Cassation or paid, the Court shall invite the taxpayer to pay it

within a period which it shall determine; After expiry of this period the court proceedings

stops. About the call within the meaning of that provision, the Court by order,

in which, in addition to another shall indicate the amount of the fee, or its supplement,

you want the taxpayer to pay, he will determine the deadline by which the so has to make,

and instruct him about the fact that in the case of non-payment of court proceedings stopped. In

section that specifies the amount of the fee, the declaratory nature of the resolution

decision. Indeed, it does not rise to fees, but

so much for its individualization. As a whole, then the resolution only modifies the

conduct of the procedure, with the result that the appeal is not admissible against him [§

paragraph 202. 1 (b). and) code of civil procedure].



4. consideration of the admissibility of a constitutional complaint against this resolution

requires answering the questions whether it is interfered with the rights of the taxpayer,

and if so, whether the law provides the taxpayer legal means to protect

his rights. By that the call for a content page individualizuje

fee obligation, no doubt allows the taxpayer to act in trust

in its accuracy. However, it is necessary to emphasize that the incorrect determination of the amount

the fee does not in any way change the statutory fee

obligations. If, therefore, such designation in the amount lower than that provided for by law,

and the taxpayer will pay it, that fact cannot go to its weight in the

the meaning of the Court stops the proceedings on his proposal without additional

He called for additional payment of the fee within the statutory, and therefore the correct amounts. On the other

side, determine if the amount of the fee in the invitation the Court incorrectly amount higher,

does not arise by a branch of the obligation to pay it even in this

"over and above" section. If the Court in the case of non-payment of this

the difference stopped the trial, such a decision would be illegal.



5. It can be assumed that, unless in the course of proceedings to cancel or

the replacement of the present resolution, then expressed the opinion of the Court on the amount of

the fee, if any, and marks the company's non-payment.

The taxpayer has basically two options how to enforce review

the challenge of the legality of the specified attachment. The first of these is the

non-payment of the court fee in the disputed section. The Court then decides on the

to stop the proceedings, which although possibly interferes in the fundamental rights of the

the taxpayer, however, against such a decision to be able to defend

program rights, whether in the form of sound, or, where appropriate, special

remedies, and if there are no appeals permitted,

then by means of a constitutional complaint [cf. e.g. the discovery of 20 December.

1995 SP. zn. I. ÚS 231/95 (N 86/4 SbNU 307)]. The taxpayer

In addition, nothing prevents to incorrect determination of the amount of the fee in the call

argued before the decision terminating the proceedings, and in this way so

He served on the Court to change his opinion on the amount of the fee

obligations. The Court is not the (procedural) resolution, which called for

payment of the court fee, bound and after finding inaccuracies intended

the fee can be remedied by your misconduct himself, that this resolution

cancels, and shall issue a new challenge, or at least effectively acknowledges that the

fee in the correct amount was paid, and court proceedings stopped. In

account but comes a different procedure, whose undoubted advantage is that

allows the taxpayer to avoid termination of the proceeding with confidence. The taxpayer

You may pay the fee in the amount specified in the invitation, despite the

It has doubts about the correctness of the above. Pay without

actually the amount higher, has the right to claim subsequently pursuant to section 10, paragraph 1. 2

the law on court fees refund of the amount paid by

"the extra mile". On his proposal, the Court by order, against which it will be in the

Depending on the type of procedure and applicable legislation of either the permissible corrective

resource, or it will be possible to challenge directly the constitutional complaints.

Any denial of reimbursement, on which the taxpayer is entitled,

the reason might be a violation of his fundamental rights and freedoms (cf. mutatis

mutandis, to the award of 18 December 2003. December 2012 SP. zn. I. ÚS 3296/12; available

on http://nalus.usoud.cz).



6. Conclusions mean that any incorrect determination of the amount of the fee

in the call, according to § 9 para. 1 of the law on court fees in itself

is not likely to immediately affect the intervention into fundamental rights and freedoms

the taxpayer, but such a consequence could be attributed to the resolution,

terminating the proceedings due to non-payment of the court fee, or

the resolution, which was rejected a proposal to refund the taxpayer,

that was paid on the basis of incorrect challenges Court. In a similar way

can be considered a deadline for payment of the fee, because the

violations of the fundamental rights of the taxpayer, is not the mere lapse of

but the decision terminating the proceedings, which may be issued and

at a later time. The resolution, which calls on the taxpayer to pay the Court of

the fee, so it cannot be in terms of any of these aspects can be considered as

the decision about the last procedural device within the meaning of section 75 para. 1

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



7. However, he could not even Senate Constitutional Court in the present case

reject a constitutional complaint the complainant in part directed against

the contested decisions only on the basis of that argument, because

such a conclusion would be contrary to the binding legal opinion expressed by the

in the findings of 16 June. March 2006, SP. zn. I. ÚS 664/03 (N 56/40 SbNU

547), of 17 December 1999. May 2007, SP. zn. II. TC 745/06 (N 83/45 SbNU 239),


of 26 March. September 2007, SP. zn. I. ÚS 43/07 (N 149/46 SbNU 481), 1 July 1999.

November 2007, SP. zn. II. CS 359/07 (N 178/47 SbNU 367) and of 3 December.

April 2008, SP. zn. II. TC 275/08 (N 67/49 SbNU 31), which in turn

the constitutional complaint against the resolution containing the call in question

admits.



8. The first finding SP. zn. I. ÚS 664/03, against which the

opinion, concerned the constitutional complaint against the 75 and 75 by the resolution

Municipal Court in Prague, which was the complainant in the various

tender invited to pay a fee for an action against the

decision of the administrative authority. The first group was delivered to her

through a lawyer, the other directly. The Constitutional Court in this

the award acknowledged that the complainant could not pay a court fee

specified by the challenge in question and subsequently to submit a cassation complaint under section 103

paragraph. 1 (b). (e)) of the judicial code of the administrative court against the decision, which

stopped the proceedings; However, it did not reasonably require it, its

the conscious failure to pay only for the purpose of maintaining a defense against the options

the decision on the fees. In the present case, moreover, the

75 fee appeal complaints reached a total of up to 150

EUR, which would have the effect meant to deny access

the complainant, to the Constitutional Court and the devaluation of the importance of a constitutional complaint.

The Constitutional Court thus gravitated to the conclusion that the constitutional complaint may

directed against deklaratornímu "resolution on determination of fee

obligations ", i.e. against the resolution, which the complainant was invited to

payment of the court fee. He did so despite being only

the resolution, which is proceeding, as this decision has been

to the individualization of fees, or to specify the importance of the

General of the standard (the law on court fees) in relation to the complainant.

The admissibility of a constitutional complaint, however, conditional on the filing of the complaint in the

pursuant to section 12 of Act No. 553/1991 Coll. on court fees, as amended by

effective 31 December 1998. December 2010 (i.e. before the effective date of Act No 281/2009

Coll.), which could eventually reach the participant changes or cancellation

the decision on the fees. However, it was no longer necessary to

the complainant challenged this decision and initiative or at least how to

the Court in its handling. The complainant, therefore, the complaint only

filed, which was for the substantive discussion of the constitutional complaint is sufficient.



9. legal conclusions contained in this award were also reflected in other

decisions in similar cases, however, were not applied fully

consistently. Specifically, it was about these findings:



-finding SP. zn. II. TC 745/06 cancelled the resolution, which was

the complainant asked for payment of the fee; the complainant to

as a precaution, however, the award paid for it is not clear whether it has taken the initiative to

the procedure under section 12 of Act No. 553/1991 Coll. on court fees in

the version in force until 31 December 2006. December 2010;



-finding SP. zn. I. ÚS 43/07 was cancelled the resolution, which was

the complainant asked for payment of the fee; the complainant to

as a precautionary measure he paid and handed the initiative to the procedure pursuant to section 12 of Act No.

549/1991 Coll. on court fees, in the version in force until 31 December 2006. December

2010; of the award does not indicate the manner in which the complaint was settled;



-finding SP. zn. II. CS 359/07 was cancelled the resolution, which was

the complainant asked to be paid the court fee; It was originally asked to

payment of the amount of $ 14,000, and handed the initiative to the procedure according to § 12

Act No. 553/1991 Coll. on court fees, in the version in force until 31 December 2006.

December 2010; then it was released the new resolution, which the complainant

asked to pay a sum of 12 000 CZK, while just against him was

a constitutional complaint is lodged; It is not clear from the findings that the complainant filed

the complaint even then;



-finding SP. zn. II. TC 275/08 was repealed the resolution, which was

complainant pay the balance of the fee in cases

administrative justice; the complainant it preemptively paid and handed

the initiative for the procedure according to section 12 of Act No. 553/1991 Coll. on Court

fees, in the version in force until 31 December 2006. December 2010, which the municipal court

Prague has not complied with and in his answers he remained in its original opinion.



10. Referring to the Constitutional Court to the Senate with the findings in these

do not adopt decisions. Agree that the legislation should not

forcing taxpayers to make in order to achieve judicial protection, exposing the

the risk of termination by the court fee, the conscious

However, such a procedure is not necessary in any of the proceedings to which the

begin submitting any of the proposals occurs referred to in § 9 para. 1

the law on court fees. This is true even in the case of proceedings before a

the Court in administrative justice, which was in these findings. The taxpayer

After payment of the court fee could in the amount specified by the challenge to design

his, even if only partial, the return on the ground that on the basis of incorrect

challenges the Court paid more than was required. This would make him as

mentioned above, opened up the possibility to apply in proceedings in his

the arguments against the amount of the fee specified in the invitation.



11. For the irrelevant in terms of the assessment of the admissibility of a constitutional complaint

on the contrary, against the contested resolution and the Constitutional Court.

the complaint within the meaning of section 12 of the law on court fees. First and foremost is the

should be noted that the effective date of Act No 281/2009 Coll. has changed

This provision, which newly does not allow you to cancel or change an "incorrect

decision on fees ", but rather" an incorrect decision about

the requirement to pay a fee ". Under this new concept already

(declaratory) does not call for payment of a court fee, which

clearly stems from the resolution of these two terms in § 10 (1). 2

the law on court fees (cf.. Waltr, R. the law on judicial

fees. Comment. 2. Edition. Prague: c. h. Beck, 2012, p. 62).

Yet it is clear that the condition of admissibility has been thus defined in

the past, in terms of section 75 para. 1 of the law on the Constitutional Court

problematic, for several reasons. The complaint primarily not

the nature of the remedy that the complainant the law provides for the protection of

rights. It not be initiated no proceedings, in which it would be possible to

examine the contested order, and the Court had no obligation to him

decide, even if only in this case it would be possible to require its

exhaustion, which by default means not only bringing an appeal,

but also the end of the proceedings. In this situation, it was not clear when

an application of this device or whether it had to get a court to

the initiative of a certain time limit to review the amount of the fee, which is

translated into the above difference in practice of the Constitutional Court, with regard to the

the application of this condition, and only led to a formal, not

the effective application of this resource (cf. the assessment of compliance with

This condition, in a resolution of 19 June. May 2011 SP. zn. II. TC 937/11,

even after the change of the legislation with effect from 1. January 2011). In spite of the

However, the non-application of this confusion could lead to the rejection of the constitutional

complaints (cf. e.g. resolutions of November 28, 2008, SP. zn. II.

TC 2104/08, dated March 10. March 2011, SP. zn. III. TC 581/11; available on the

http://nalus.usoud.cz).



12. these reasons justify the conclusion that the application of the initiative within the meaning of section 12 of the

Act No. 553/1991 Coll. on court fees, in the version in force until 31 December 2006.

December 2010, would in the opinion of the Constitutional Court and the Senate should not be

in the case that would not change the law, further considered

the condition of the admissibility of a constitutional complaint. In no case, however, is not

no need to conclude that this change would cease to be relevant to the legal

the conclusions contained in the report SP. zn. I. ÚS 664/03. Continue to pay

the core of them, which is itself an admission of the constitutional

the complaint against the order, which the Court invites the taxpayer to pay

the court fee. His fundamental lack of doing so lies in the fact that

does not address the situation where the taxpayer has paid the court fee

more than was required. Its possible the overpayment can be individualised

until the Court decision on his return, in which case the

fee obligation arose directly as a result of the request, the

challenge no. The Court in deciding on the return of the court fee

can assess the accuracy of its amount, not being bound by the challenge, and as well

so may i suggest the return, the taxpayer at any time, without the court fee

would he change this challenge. Finally, we cannot be that

The Constitutional Court will review options to allow this call to

the situation, when it will be basically forced to take in a number of cases an opinion on the

the constitutionality (and also of legality) the amount of the court fee before

were given the opportunity to do so, the courts in the context of the parent system of general courts.



13. Due to the fact that, after the entry into force of Act No. 281/2009 Coll., section

12 of the law on court fees has ceased to apply to the order granting

the Court shall invite the taxpayer to pay the court fee, it should be binding

the legal opinion contained in the report SP. zn. I. ÚS 664/03 to be interpreted


the meaning of the constitutional complaint against this resolution is without further

permissible. Such an interpretation, however, and the Senate for the Constitutional Court.

factually incorrect, and is convinced that the stated sufficient grounds for

change in the legal opinion of the Constitutional Court. A shift in favour of the

change is eventually in decision-making practice already evident today, when the individual

the boards in some of its decisions to reject a constitutional complaint against the

such a resolution as inadmissible (cf. resolution of 10 may

2007, SP. zn. IV. TC 887/07, dated June 5. in May 2008, SP. zn. III. THE TC

809/08, dated June 16. July 2008, SP. zn. II. TC 1259/08, dated March 27.

October 2011 SP. zn. IV. TC 1929/10, dated February 17. April 2012 SP. zn. II. THE TC

1216/12, in essence, a resolution of 19 June. December 2012 SP. zn.

III. The CS 4265/12; all resolutions available on http://nalus.usoud.cz).

The ability to accept the constitutional complaint in these cases for the reasons referred to in

section 75 para. 2 (a). and) of the Act on the Constitutional Court remains the opinion of

of course unaffected.



14. For completeness, it must be added that, although the legal conclusions of the constitutional

the Court contained in the above findings related to the resolution of the regional

the Court in administrative justice and not in civil proceedings,

as is the case in the present case, this difference does not allow derogate

from the above findings merely by pointing to this difference. In the end it

It is apparent from a series of resolutions, in which the Constitutional Court applied the conclusions of these

the findings in both types of proceedings (cf. e.g. resolutions SP. zn. II. THE TC

2104/08). In both cases, is given the opportunity to apply their arguments of the parties

the fee proposal for the return of the fee. The fact that the

the decision on this proposal is not in the administrative judiciary allowed

such an appeal does not have to assess the admissibility of constitutional complaints

against the resolution, which the complainant was asked to pay a court

fee, no effect.



15. For all these reasons I presented the Senate the Constitutional Court pursuant to §

23 of the Act on the Constitutional Court the question of the admissibility of a constitutional complaint against the

the resolution, which according to § 9 para. 1 of the law on court fees

calls on the taxpayer to pay the court fee, for examination by the full Court,

that his line of argument in its entirety identified and adopted legal

the opinion, which is mentioned in the operative part of the opinion.



The President of the Constitutional Court:



JUDr. Rychetský in r.