2004/01/15 - II. ÚS 656/02: Protection of Actual Rights

15 January 2004

HEADNOTES

Art.

36 para. 1 of the Charter of Fundamental Rights and Basic Freedoms,

similarly as Art. 6 para. 1 of the Convention for the Protection of

Human Rights and Fundamental Freedoms, construct a fundamental right to

the judicial protection of actual, and not hypothetical rights, or they

guarantee everyone judicial protection from actual, and not merely

theoretical, infringements of their rights.  To the extent that, in

actuality, no dispute exists between the complainants and the secondary

parties, no intrusion into the right, under Art. 36 para. 1 of the

Charter, to judicial and other legal protection could have occurred.

The constitutional complaint is not an ordinary legal remedy to cure

formal errors by courts which practically do not affect the sphere of

the rights and obligations of the parties.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


The

Constitutional Court, in a panel composed of JUDr. Dagmar Lastovecká,

its Chairperson, and Justices JUDr. Jiří Nykodým and JUDr. Pavel

Rychetský, on the constitutional complaint of complainants V.J. and S.J.

. . . against the 19 August 2002 ruling of the Regional Court in

Pilsen, file no. 56 Co 172/2002, in which it decided the appeal against

the 11 July 2002 ruling of the District Court in Karlsbad, file no. 19 C

138/2002-8, with the participation of the Regional Court in Pilsen as a

party to the proceeding, the District Court in Karlsbad as a secondary

part to the proceeding and V.J. and Z.J. . . . as secondary parties to

the proceeding, decided as follows:

 

The constitutional complaint is rejected on the merits.

 


REASONING


I.
 

In

its constitutional compliant, the complainant sought the issuance of a

judgment quashing the 19 August 2002 ruling of the Regional Court in

Pilsen, file no. 56 Co 172/2002 (hereinafter „contested ruling“).
 

In

the first point of the 11 July 2002 ruling of the District Court in

Karlsbad, file no. 19 C 138/2002-8, the proceeding was dismissed as

regards the plaintiffs‘ (now complainants‘), Vá.J. and S.J., claim

against the defendants (now secondary parties), Vl.J. and Z.J., for the

payment of money owed for rent.  The proceeding was dismissed due to the

fact that the plaintiffs withdrew their action, as the defendants had,

already before the beginning of the court hearing in the matter, paid in

full the sum they owed.  In the ruling’s second point, the district

court decided that the defendants are obliged to compensate the

plaintiffs, in the amount of 10 928,- Kč for the costs of the

proceeding.
 

The defendants

(secondary parties) submitted an appeal against the second point of this

ruling, proposing that the first instance court’s ruling be modified in

the contested part, to the effect that none of the parties had a claim

to the reimbursement of the costs of the proceeding before the first

instance court, due to the fact that, prior to 3 July 2002, that is,

before the first instance ruling was handed down, they had already paid

the plaintiffs (complainants) this amount for the costs of the

proceeding.
 

In its contested

ruling on the appeal against point II of the first instance court’s

ruling, the Regional Court in Pilsen modified the ruling such that it

did not impose upon the defendants the duty to reimburse the plaintiffs

for the costs of the proceeding.  In its reasoning it asserted that, if

at the time that the first instance court decided the matter the

defendants had already paid the demanded reimbursement for the costs of

the proceeding pursuant to the demand made by the plaintiffs‘ legal

representative, there were no grounds for imposing upon the defendants,

in the form of a judicial decision, a duty which they had already

previously voluntarily fulfilled.
 

The

complainants submitted this constitutional complaint against this

ruling.  They stated that, as is clear from the Civil Procedure Code (§

151 para. 1), each court decision (apart from some statutory exceptions)

must contain a statement concerning the costs of proceeding.  In their

view, however, the wording of the point of the contested ruling

concerning the costs of the proceeding did not correspond to the

provisions of the Civil Procedure Code; the law does not provide for a

statement on the „non-imposition of the duty to reimburse the costs of

the proceeding“ and further, as a result of the appellate court’s

modification to the ruling, the first instance court had not, as the law

obliges it to do, made a decision concerning the costs of the

proceeding.  That is, to the extent that the defendants had paid the

plaintiffs the costs of the proceeding already prior to the court’s

decision, then they did so without any legal grounds therefor, as the

claim for the reimbursement of the costs of proceeding is a procedural

law claim, the establishment and maturity of which is laid down only by

decision of a court.  The defendants‘ duty to reimburse the

plaintiffs‘costs of proceeding and the plaintiffs‘ right to demand the

reimbursement of the costs of the proceeding only come into being once

the first instance court’s decision becomes final and enforceable.
 

The

complainants see in the appellate court’s manner of proceeding an

infringement of the right to fair process under Art. 36 para. 1 of the

Charter of Fundamental Rights and Basic Freedoms (hereinafter „Charter“)

and Art. 90 of the Constitution of the Czech Republic.  In their view,

the defendants could, in consequence of the contested ruling taken ad

absurdum, demand back the amount paid for the costs of proceeding, since

their payment of it lacked any legal grounds.  The contested ruling

denied the parties to the proceeding their legal certainty.
 


II.
 

The

Constitutional Court called upon the parties and secondary parties to

give their views on the matter and requested the judicial file, 19 C

138/2002.
 

In its 5 January

2004 statement of views, the District Court in Karlsbad asserted that it

is possible to accept the grounds of the constitutional complaint,

namely that, in consequence of the appellate court modifying its ruling,

the first instance court had not yet ruled on the costs of the

proceedings, as the law obliges it to do.  In that court’s view,

however, it is not possible to accept the argument that the ruling is

not in accordance with the provisions of the Civil Procedure Code, since

it relates the formal and substantive enforceability of the contested

point of the ruling concerning the costs of the proceeding and that

point is formally and substantively enforceable, as it precisely defines

the rights and duties of the parties as relates to the costs of the

proceeding.
 

In its statement

of view of 30 January 2004, the Regional Court in Pilsen merely

referred to its reasoning in the contested ruling.
 

At

the Constitutional Court’s instigation, the complainants informed it in

their 6 January 2004 memorandum that, as of yet, the defendants have

not requested the amount paid out for expenses of the proceeding;

nonetheless, the deadline for its return has still not passed and the

defendants‘ claim therefore is not time-barred.
 

In

their 18 May 2004 statement, secondary parties Vl.J. and Z.J. indicated

that the complainants had not been injured by the infringement of their

right to fair process.  They asserted that, at the request of the

complainants‘ legal representative, they had paid the demanded costs of

the court proceeding and that they have never requested the return of

the costs of the proceeding they had paid out.  Therefore, they believe

that the complainants‘ claims were not unfairly harmed in the proceeding

before the Regional Court in Pilsen and that their fundamental rights

had not been affected.  They propose that the constitutional complaint

be rejected.
 

Prior to

deciding on the constitutional complaint, the Constitutional Court made

the above-cited views of the parties and secondaring parties available

to the complainants.  In view of the fact that all parties and secondary

parties consented to dispensing with an oral hearing in the matter, one

was not held (§ 44 para. 2 of the Act on the Constitutional Court).
 


III.
 

The

Constitutional Court found that the timely submitted constitutional

complaint met all the formal requirements laid down in law, so that

there is nothing to impede a hearing and decision on the merits in the

matter.
 

According to Art. 36

para. 1 of the Charter, everyone has the right to judicial and other

legal protection, everyone may assert, through the legally prescribed

procedure, his rights before an independent and impartial court. 

Similarly Art. 6 para. 1 of the Convention for the Protection of Human

Rights and Fundamental Freedoms (hereinafter „Convention“) guarantees to

everyone the right to fair process, that is, among other things, the

right of everyone to a fair hearing in his matter by an independent and

impartial tribunal established by law, which determines his civil rights

and obligations.
 

It is

evident that both of these provisions construct a fundamental right to

the judicial protection of actual, and not hypothetical rights, or they

guarantee everyone judicial protection from actual, and not merely

theoretical, infringements of their rights.  As follows even from the

case law of the European Court of Human Rights in Strasbourg, a

complainant seeking the protection under Art. 6 para. 1 of the

Convention, must first of all be capable of substantiating that the

given case concerns (concerned) an actual, and not merely a

hypothetical, dispute relating to civil rights and obligations (compare

the words, „contestations sur ses droits et obligation de caractère

civile“ in the authentic French text of the Convention or the words,

„determination of his civil rights and obligations“ in the authentic

English text of the Convention). The European Court gave a detailed

explanation of this requirement in its decision in the matter of Le

Compte, Van Leuven and De Meyere versus Belgium of 23 June 1981, A.43,

§§ 45 – 48.  The Court interpreted the requirement that an actual

dispute exist such that civil rights and obligations must be the subject

of the dispute between the parties and that the result of the judicial

proceeding must have a directly decisive impact on the disputed right.
 

Analogous

procedural institutes can be found even in other legal orders,

institutes which should, among other things, prevent the courts from

dealing with fictitious disputes and in that way dissipating their time

and considerable resources to the detriment of actual disputes [compare,

for example, the American law doctrine limiting judicial competence to

„Cases and Controversies“ (Art. III 2 para. 1 of the Constitution of the

United States of America) and the rule of ripeness derived therefrom,

according to which the detriment with which the plaintiff is threatened

must be actual and immediate, and not putative, speculative,

hypothetical or remote].
 

The

Constitutional Court affirms that the parties and the secondary parties

do not dispute that the complainants demanded the reimbursement of the

costs of the proceeding and the secondary parties voluntarily paid in

full the amount demanded even prior to the first-instance court’s

decision to dismiss the proceeding.  Even after the modification of the

ruling in the point concerning the costs of the proceeding, the

secondary parties have not demanded the return of the amount paid for

the costs of the proceeding.  Thus, in actuality, no dispute exists

between the complainants and the secondary parties concerning the

reimbursement of the costs of a proceeding, therefore, no intrusion into

the right, under Art. 36 para. 1 of the Charter, to judicial and other

legal protection could have occurred.
 

The

complainants make reference to the legal uncertainty into which the

contested decision has thrown them, since the secondary parties

allegedly could demand back the reimbursement paid for the costs of the

proceeding.  In this sense, however, it is a hypothetical dispute on

individual rights.  The Constitutional Court is not prepared at this

juncture to speculate as to how the ordinary courts would adjudge a

prospective claim submitted by the secondary parties for the return of

the amount voluntarily paid the complainants in reimbursement of the

costs incurred in connection with the assertion of the debt. 

Nevertheless, it is possible to consider even other interpretational

variants which would lead to a just outcome consisting, for example, in

the conclusion that this matter concerned a voluntary performance on the

basis either of a nominate or innominate agreement of the parties with

relatively clear cause („causa“).  The dispute between the complainants

and the secondary parties certainly was not the first, and will not be

the last, dispute which ended in dismissal of the proceeding after an

out-of-court settlement; therefore, it can be presumed that cases of

voluntary settlement of the costs connected with the assertion of rights

are not a rarity.
 

The

complainants and the first instance court are of the view that it is

possible to accept the grounds of the constitutional complaint, namely

that, in consequence of the appellate court modifying its ruling, the

first instance court had not yet ruled on the costs of the proceedings,

as the law obliges it to do.  Even should the Constitutional Court

concur with that view, that would not, in and of itself, be a reason for

such a serious intervention as a cassational judgment.  The

constitutional complaint is not an ordinary legal remedy to cure formal

errors by courts, which practically do not affect the sphere of the

rights and obligations of the parties.
 

In

view of what has been stated above, pursuant to § 82 para. 1 of the Act

on the Constitutional Court, the Constitutional Court rejects the

complaint as unfounded.

Notice: Decisions of the Constitutional Court cannot be appealed.


Brno, 10 August 2004