The Opinion Of The Full Court In The Case Of Inadmissibility Tc Constitutional Complaint

Original Language Title: stanovisko pléna ÚS ve věci nepřípustnosti ústavní stížnosti

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394/2016 Sb.



The COMMUNICATION FROM the



The Constitutional Court



The plenary adopted by Constitutional Court on 15 December. November 2016 under SP. zn. PL.

TC-st 43/16 in the composition of Louis David, Norman F, Josef Fiala, Jan

Filip, Jaromir Jirsa, Tomáš Lichovník, Lippincott, Pavel Rychetský,

Vladimir Sladecek, Radovan Suchánek, Vojtěch Prince (judge

the Rapporteur), David Collier and Jiří Zemánek on design II. the Senate's Constitutional

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

in the case of a legal opinion (II). Senate proceedings conducted under the SP. zn. II. THE TC

1929/16, which derogates from the legal opinion of the Constitutional Court

in the award of 4 April 2003. December 2002, SP. zn. IV. TC 157/02 (N

149/28 SbNU 347),



This opinion:



Does not preclude the Act No. 99/1963 Coll., the code of civil procedure, as amended by

amended, changing the design or the infestation of declaring

such design changes the way of appeal, the constitutional complaint is directed

against the resolution, which does not allow changing the design according to § 95 para. 2

Code of civil procedure, inadmissible under section 75 para. 1 of law No.

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



Justification



(I).



The facts of the case



1. a constitutional complaint to the Constitutional Court, which was delivered on 16. 6.

2016, the capital city of Prague, the complainant seeks the annulment of the resolutions of the

The District Court for Prague 4 of 5. 5.2016 SP. zn. 15 C 53/2013

which was not acceptable to change the action within the meaning of the provisions of § 95 para. 2

Act No. 99/1963 Coll., the code of civil procedure, as amended by Act No. 519/1991

Coll. (hereinafter referred to as "the row"). Therefore, the constitutional complaint is directed against the

the decision, which is not the final decision on the merits.



II.



Procedure II. the Senate



2. When discussing the above cited a constitutional complaint II. the Senate

The Constitutional Court found that the earlier case-law of the Court on the local

the admissibility of a constitutional complaint lodged against the order issued pursuant to

the provisions of § 95 para. 2. is inconsistent.



3. One of the legal prerequisites of a substantive discussion of the constitutional complaint

It is to the complainant before the Administration has exhausted all process

resources law to protect its rights provides [the provisions of §

72 para. 3 of Act No. 182/1993 Coll., on the Constitutional Court, as amended by

amended, (hereinafter referred to as the "law on the Constitutional Court")]. If

the complainant these resources prior to filing a constitutional complaint is not

his proposal inadmissible (article 75, paragraph 1, of the law on the constitutional

of the Court).



4. In this case, however, on the one hand, it is found, which was such a

the constitutional complaint is found to be admissible. In addition to the award of 4 April 2003. 12.2002

SP. zn. IV. TC 157/02 (N 149/28 SbNU 347), referred to in the header,

This is for example. about the discovery of 9 June. 10.2008, SP. zn. II. TC 801/08 (N 166/51

SbNU 79), from 26 March. 4.2012 SP. zn. I. ÚS 383/12 (N 93/65 SbNU

247), the award of 7. 5.2013, SP. zn. I. ÚS 4181/12 (N 79/69 SbNU 329),

the discovery of 21 June. 8.2014 SP. zn. IV. TC 1324/14 (N 159/74 SbNU 369) and

the discovery of 21 June. 7.2015 SP. zn. II. TC 3717/14 (all decisions

The Constitutional Court are also available at http://nalus.usoud.cz).



5. these findings were, in substance, the contested resolution reviewed only from

the perspective of the right to proper justification of the decision (as part of the

the right to a fair trial). The legal opinion, according to which the constitutional

the complaint against the decision on declaring the changes action is admissible,

However, it follows from the findings cited only implicitly, since the Constitutional Court

in any of them, the question of admissibility in the grounds closer to explicitly

not paying.



6. The second group in the context of the relevant case-law of the Constitutional Court

the resolutions, which were such a constitutional complaint dismissed as

inadmissible. This is příkladmo about the resolution of 28 October 1999. 6.2016, SP. zn.

II. TC 2151/15, a resolution of 30 March 2004. 6.2016, SP. zn. II. TC 2674/14,

resolution of 19 June. 1.2016, SP. zn. IV. 3216/15 TC, resolution of 14 March.

12.2015 SP. zn. I. ÚS 3438/15, the resolution of 6 May 1996. 3.2012 SP. zn. II.

TC 382/12, resolution of 8 September 2005. 9.2011 SP. zn. III. TC 1976/11, resolution

of 5 April 2004. 8.2011 SP. zn. III. TC 1990/11 or resolution of 27 June 2002. 10.

2010 SP. zn. II. TC 2865/10.



7. Since the dominant II. the Senate was of the opinion that the constitutional complaint

against the resolution within the meaning of the provisions of § 95 para. 2. s. l.

It is not permissible, under the provisions of § 23 of the Act No. 182/1993

Coll., on the Constitutional Court, the plenum of the Constitutional Court with a proposal for the adoption of

the opinion, which was overtaken by a legal opinion when I say in the above

the cited award SP. zn. IV. TC 157/02 and in other top

cited by the findings.



III.



Own justification opinion



8. the admissibility of a constitutional complaint has in general the roots

already in the article. 4 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), according to which

fundamental rights and freedoms are protected by the judiciary. The Constitutional Court

as the independent judicial power is only one of the institutions of public

power, which is to protect the fundamental rights and freedoms constitutionally qualified, and

the protection of fundamental rights and freedoms is therefore a function, which it shares with

General courts. The Constitutional Court's relationship to the general courts in fulfilling

This function is then defined not only by its specific constitutional

powers [cf. in particular article 87, paragraph 1 (b), (d)) of the Constitution], but also

legal admissibility of a constitutional complaint.



9. Legislation then entirely in the logic of the article. 4 of the Constitution is based on the principle of

the so-called. of subsidiarity, a constitutional complaint, which is specifically caught up in

the provisions of § 72 para. 3 and section 75 para. 1 of the law on the Constitutional Court. According to the

These provisions is the complainant must exhaust before the submission of the constitutional

complaints about all the procedural means to him, the law to protect its

the law provides. If it fails, it is his constitutional complaint inadmissible.

This setting of the admissibility of a constitutional complaint indicates that the role

The Constitutional Court in proceedings on constitutional complaints is to be a kind of

the last guarantor of fundamental rights and freedoms in the context of the constitutional system,

and not by the authority which enters the ongoing proceedings at the time when

can be effective protection of the fundamental rights and freedoms to be enforced in other

procedural means in the context of the proceedings before the General Court.



10. this background reflects well settled case-law of the Constitutional Court, in accordance with

which the constitutional complaint should be attacked the final and final

the substance of the Court's ruling, not whether or not a minor procedural decisions, and


When the final itself (that is, even though they were against them all

available remedies have been exhausted, if the laws of such

the resources foreseen at all); of the hundreds of decisions to CF. for example.

resolution of 29 January 2004. 9.2005, SP. zn. III. TC 292/05 (23/38 SbNU 587),

resolution of 20 November 2003. 6.2016, SP. zn. II. TC 1725/16, of its resolution of 26 October.

7.2016, SP. zn. IV. TC 2072/16 or the resolution of 10 June 1999. 5.2016 SP. zn.

I. ÚS 1026/16.



11. From this general rule, however, the Constitutional Court makes exceptions, which

consist in the possibility of opposing and minor (typically procedural) decision in

a situation in which proceedings on the merits is not yet over. However, such a procedure

in the light of the above, be considered only under the current

meet the two conditions (cf. e.g. resolutions of 3. 3.2016

SP. zn. IV. The CS 3520/15, a resolution of 25 June 2002. 7.2012 SP. zn. I. ÚS

1894/02, resolution of 6 May 1996. 3.2012 SP. zn. II. TC 382/12 or resolution

of 5 April 2004. 4.2016, SP. zn. I. ÚS 843/16).



12. First, such a decision must be eligible immediately and noticeably

interfere with the constitutionally guaranteed fundamental rights and freedoms of the complainant.

This condition, however, reflects the nature of the proceedings on constitutional complaints, which

is the protection of fundamental rights and freedoms against decisions, actions and

measures by the public authorities.



13. The second condition to the admissibility of a constitutional complaint against the

such a split decision is a procedural objection to infringement

constitutionally guaranteed fundamental rights or freedoms cannot be within the

further proceedings (e.g. when using the remedies against the merits of the

decision, including a constitutional complaint) effectively enforced. The meaning of this

conditions is just in the strict implementation of the principle of subsidiarity, the constitutional

the complaint, or the role of the Constitutional Court as the last "emergency brake"

under the justice system.



14. In the application of these criteria to the decision issued by the

the provisions of § 95 para. 2. s. l., the Constitutional Court came to the conclusion that the first

the condition of admissibility in this case filled with them. Resolution on the

declaring the changes action is (in General) eligible

interfere with fundamental rights and freedoms, at least with the right to

a fair trial. The findings cited above for example. have come to intervention in the

This right in the case of insufficient justification of the decision. In addition, can be

specific conditions, even about the fact that the decision on declaring

the action may be affected by changes to the right to access to court.



15. the second Condition is not fulfilled, however. However, although the Constitutional Court

stricto sensu is not considered an effective remedy within the meaning of this

the conditions for the possibility of launching a new action, the proceedings in so far as it has not been

change the original actions allowed, can be objected to the decision to

declaring the action to apply changes in the appeal against the decision in

merits of the case, if the original application was rejected.



16. the resolution itself under the provisions of § 95 para. 2. s. l.

Indeed, the appeal is admissible not [§ 202, paragraph 1 (b), (d)) of the round]. To do this,

However, the Constitutional Court in particular States that, when making a decision under the provisions of

§ 95 para. 2. with the row, it is necessary to insist that there was

immediately, as otherwise would risk the destruction of the substantive

the plaintiff's claims. Just such a procedure is "laid down procedures

the Court "within the meaning of article 87(1). paragraph 36. 1 of the Charter of fundamental rights and freedoms.



17. with regard to the fact that this decision is eligible to hit the

the rights of the individual, the Constitutional Court considered constitutionally souladný only

such an interpretation of the code of civil procedure, according to which the Court of appeal in

the appeal proceedings against the decision on the merits is not bound

resolution pursuant to the provisions of § 95 para. 2. with (though formally

undissolved) and is entitled to, or in the case of the application of the relevant objections

[to section 205, paragraph 2 (b), (c)), g) of s. l.] obliged to, decisions about

declaring the changes the action in its entirety. Party to the proceedings

Indeed, the option has to do in terms of the provisions of § 95 of the row and in the

appeal proceedings, because the system is incomplete, only prevents the appellation to

might be on appeal filed a new claim which has no

the findings related to a previously filed claim in question. According to established

the case-law of the Supreme Court (see e.g. judgment of 30 March 2004. 8.2001 sp.

Zn. 21 Cdo 2502/2000) "change the action of the plaintiff under the conditions referred to

the provisions of § 95 of the row also in appeal proceedings (cf. section 211.

r.), unless the change action to apply a new claim, IE. the claim that

has no factual link with the earlier (originally) applied the claim

(see the judgment of the Supreme Court of 8 March. 1.1998, SP. zn. 2 Cdon 753/97,

published under no. 56 in the collection of judgments and opinions.

1998). About change of action, the Court of appeal must always decide; until so

they do not, the application cannot be changed and make decisions. "



18. Thus, it follows from the above that any interested party may oppose the

declaring a design change under the provisions of § 95 para. 2. row according

the circumstances of a particular case to defend both 1. Thus, it shall submit a proposal

(a lawsuit) new, 2. may challenge the declaring the proposal in the notice of appeal

filed on the merits and, finally, it is not excluded, or 3. Administration changes

the proposal directly to the Court of appeal.



19. protection of the rights of individuals as follows, which is granted under the

appeal proceedings has also the potential to be significantly more efficient than

protection which could provide itself the Constitutional Court in the constitutional

the complaint. Indeed, while the Court of appeal may in full review

the correctness of the procedure, the Court of first instance, the Constitutional Court may consider

only by whether it has been infringed by the contested decision certain basic

right or freedom. In this context, can refer to the illustration and

the findings of the Constitutional Court cited above, which was not solved core

the problem, but only the question whether the contested resolution duly

justified. Already it is apparent that the substantive discussion of the constitutional complaint

against the decision on declaring the changes action is not only in the

contrary to the principle of subsidiarity, a constitutional complaint, but is in its

and not very efficient, and the protection that in the end the Constitutional Court

provides is far more virtual than actually fair.



20. Just referred to, of course, cannot be related to management.

small claims cases in which an appeal against the decision on the merits is not


permissible. Or in relation to them, however, there is no need to discuss the constitutional

the complaint directed against a decision on declaring direct changes to the application,

Since the opposition against him can be applied in the context of the constitutional complaint against the

the final meritornímu decision. The effectiveness of the protection provided by

The Constitutional Court will be comparable to the situation in which the Constitutional

the Court has already admitted a complaint against a decision pursuant to the provisions of

§ 95 para. 2. s. l.



21. For the above reasons, the Constitutional Court came to the conclusion that the constitutional

the complaint directed against the resolution, which does not allow changing of action

According to the provisions of § 95 para. 2. s. l., is inadmissible within the meaning of

the provisions of section 75 para. 1 of the law on the Constitutional Court. Against this resolution

can be brojit effective means of protection rights within the system

the General judiciary. Therefore, the Constitutional Court decided, as in the operative part

stated, and the opinion pursuant to the provisions of section 23 of law No. 182/1993 Coll., on the

The Constitutional Court, has surpassed the legal opinion contained in the report SP. zn. IV. TC

157/02 of 4 January. 12.2002 (N 149/28 SbNU 347) and the other from the top

cited by the findings.



22. with regard to the fact that the legal opinion contained in this

the opinion represents the so-called. judikatorní diversion that could

negatively affect the constitutional complaints that have been lodged, and

they often were based on the legal opinion contained in the above cited

finding case law, and the complainants therefore legitimately expect

the Constitutional Court will deal with them in a matter-of-fact, it shall apply only to the constitutional

complaints filed to the Constitutional Court on the day following that of its publication

opinion on the statute book.



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, took to the opinion of the judges of the plenum Pavel

Rychetský and David Collier.

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