2004/05/06 - III. ÚS 258/03: Interpretation of Contracts

06 May 2004

HEADNOTES

1)

The acceptance of the ordinary court’s conclusions on the content of

the legal transaction (the contract) is a legal judgment, representing

an authoritative interpretation of the legally relevant manifestation of

private intent, and not a factual finding, rather a finding made on the

basis of legal knowledge (see the agreeing ruling no. III. ÚS 280/03). 

In this connection, in the realm of fact belongs only findings of fact

(but not the ascertainment of duties), in other words, the ascertainment

of the existence of a legal transaction itself, the identification of

its subject, the genuineness of the document (if it is made in written

form), and the establishment of the wording of the text, etc.

The

fulfillment of conditions for the subsumption under a legal norm is not

made up solely of the factual findings, rather may be made up also of

the determination of duties.  Expressed in other words, an adjudication

of the requisites of a contract represent the subordination of the

individualized and concretized duties (rights) under the general and

abstract (norms).  The interpretation of contracts (legal transactions)

is guided by interpretive rules which are analogous to those which

govern the interpretation of generally binding legal enactments.

2)

The meaning of § 15 para. 1, lit. c) of the Bankruptcy Act is, by the

introduction of the institute of contesting and ineffectiveness of a

legal transaction, to prevent the transfer of a debtor’s property to

third person to the detriment of the creditor in cases of doubt as to

the debtor’s good faith.  However, the transfer free of charge of units

in flats pursuant to §§ 23 para. 2, 24 para. 1 of the Bankruptcy Act

does not constitute such a case.  The transfer free of charge in the

given case is not a manifestation of the free will of the debtor, rather

occurs ex lege.

 

The

Constitutional Court has, in a number of its judgments or positions

(see position no. Pl. ÚS-st-1/96 and judgment no. Pl. ÚS 33/97),

expressed its view on the tension between a literal and a teleological

interpretation.  It formulated a starting thesis in this regard in its

judgment no. Pl. ÚS 33/97, in which it declared that it is untenable for

the application of law to emerge solely from a linguistic

interpretation; such linguistic interpretation represents merely an

initial approximation to the application of the legal norm, it is the

point of departure for the elucidation and clarification of its meaning

and purpose (which purpose is served by a host of other approaches, such

as a logical or systematic interpretation, an interpretation e ratione

legis, etc.). Then in its judgment no. Pl. ÚS 21/96, in the context of

assessing a similar matter, it stated:  “A court is not absolutely bound

to the literal wording of a statutory provision, rather it may and must

diverge therefrom in cases where such is required by serious grounds of

the statute’s aim, the history of its adoption, systematic

connection/context or certain of the principles which have their basis

in a constitutionally conforming legal order which is a meaningful

whole.  At the same time, it is necessary to eschew arbitrariness,

judicial decision-making must be based upon rational arguments.”


Consequently, in the matter under consideration, the application of §

15 para. 1, lit. c) of the Bankruptcy Act is in conflict with its

purpose and aim and as such must be rejected.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


On

6 May 2004 the Constitutional Court, sitting in a panel, in the matter

of the constitutional complaint of J.F., represented by JUDr. E. J.,

attorney, with the participation of Ing. T. K., the administrator of the

bankruptcy estate of the bankrupt, B. d. K. s. Ř., represented by JUDr.

M. V., attorney, against the 25 March 2003 judgment of the Supreme

Court, case no. 29 Odo 560/2001-64, rejecting on the merits the

extraordinary appeal, the 12 April 2001 judgment of the High Court in

Prague, file no. 13 Cmo 50/2001-37, and the 5 December 2000 judgment of

the Regional Commercial Court in Prague, file no. 4 Cm 164/2000-15

concerning the exclusion of certain property from the inventory of

bankruptcy assets of the bankrupt’s estate, and the 3 November 2003

ruling of the Municipal Court in Prague, file no. 99 K 21/98-969,

denying consent to the non-auction sale of precisely designated property

from the bankruptcy estate, which complaint was submitted with a motion

to have the constitutional complaint heard out of order due to urgency

and to suspend the enforcement of the designated court decisions, as

well as in the matter of the petition, pursuant to § 74 of Act No.

182/1993 Coll., proposing the annulment of § 15 para. 1 of Act No.

328/1991 Coll., on Bankruptcy, as subsequently amended, decided as

follows:

1.  The 25 March 2003 judgment of the Supreme

Court, case no. 29 Odo 560/2001-64, the 12 April 2001 judgment of the

High Court in Prague, file no. 13 Cmo 50/2001-37, and the 5 December

2000 judgment of the Regional Commercial Court in Prague, file no. 4 Cm

164/2000-15, and the 3 November 2003 ruling of the Municipal Court in

Prague, file no. 99 K 21/98-969, are quashed.
2.  In its remaining parts, the complaint is denied on preliminary grounds.

 


REASONING

 

I.

The Definition of the Matter according to the Constitutional Complaint
 

In

its petition submitted on 19 May 2003 for delivery to the Constitional

Court and then supplemented by submissions made on 4 June 2003, 29

December 2003, and 6 February 2004, the complainant sought the quashing

of the 25 March 2003 judgment of the Supreme Court, case no. 29 Odo

560/2001-64, rejecting on the merits the extraordinary appeal, the 12

April 2001 judgment of the High Court in Prague, file no. 13 Cmo

50/2001-37, and the 5 December 2000 judgment of the Regional Commercial

Court in Prague, file no. 4 Cm 164/2000-15 concerning the exclusion of

certain property from the inventory of bankruptcy assets of the

bankrupt’s estate, and the 3 November 2003 ruling of the Municipal Court

in Prague, file no. 99 K 21/98-969, denying consent to the non-auction

sale of precisely designated property from the bankruptcy estate, and

proposes that the constitutional complaint heard out of order due to

urgency and the suspension of the enforcement of the designated court

decisions, and pursuant to § 74 of Act No. 182/1993 Coll., submitted a

petition proposing the annulment of § 15 para. 1 of Act No. 328/1991

Coll., on Bankruptcy, as subsequently amended.

 

In

consequence of the designated ordinary court decisions, he considers

that his fundamental rights and basic freedoms have been affected,

namely those arising from Art. 2 paras. 2, 3, Art. 3 para. 1, Art. 4

paras. 1, 3, 4, Art. 11 paras. 1, 4, Art. 12 para. 1, Art. 36 para. 3,

and Art. 38 para. 2 of the Charter of Fundamental Rights and Basic

Freedoms (hereinafter "Charter"), as well as from Art. 1, Art. 2 para.

3, and Art. 15 para. 1 of the Constitution.
 


II.

Recapitulation of the Matter in the Proceedings before the Ordinary Courts
 

From

the file of the Municipal Court in Prague, 4 Cm 164/2000, which it

requested, from the content of the contested decisions, as well as from

the reasoning of the constitutional complaint, the Constitutional Court

ascertained the following:
 

By

its 5 December 2000 judgment, file no. 4 Cm 164/2000-15, the Regional

Commercial Court in Prague rejected on the merits the complainant’s

action seeking the exclusion, from the inventory of bankruptcy assets

from the bankruptcy estate of the bankrupt, B. d. K. s. Ř., of precisely

designated shares in a flat and shares in common areas of the building

and the subjacent land.  The trial court reasoned its decision by the

legal conclusion that, in accordance with the 30 April 1998 contract

concluded between the complainant and the bankrupt on the transfer of

title to the flat they performed a legal transaction that was

ineffective in the sense of § 15 para. 1, lit. c) of the Bankruptcy Act,

as it effected, free of charge, the transfer to another person of the

property of a debtor and, in consequence, the conditions for the

exclusion of an item of property from the inventory of a bankrupt’s

estate were not fulfilled in the case under consideration.
 

On

the complainant’s appeal the High Court in Prague, in its 12 April 2001

judgment, file no. 13 Cmo 50/2001-37, affirmed the judgment of the

first instance court.  It stated that in the transfer, pursuant to § 23

odst. 2 a § 24 odst. 1 a 2 of the Act on Ownership of Flats, of title to

a flat, garage, or atelier, a mutual settlement of funds designated for

the financing of repairs on and maintenance of the building, or the

house and unit, forms a component of a contract, as well as any negative

balance of the basic fund of the residential management of the

cooperative, as follows from § 24 para. 7 of the second mentioned act. 

According to its legal view, this settlement cannot be confused with the

duties of the acquirer to pay a proportional amount of arrears of the

outstanding investment credit granted for the construction and

appurtenant to the transferred unit or on the outstanding portion of the

preferential credit for extensive alterations and construction

modifications on the transferred flat, or on the outstanding portion of

commercial credits appurtenant to the flat, since the duty to pay these

arrears is imposed upon the acquirer in another provision of the Act on

Flats, namely § 24 para. 5.  According to the appellate court findings,

the contract at issue did not contain the mandatory attributes, as

prescribed in § 24 paras. 5, 7 of the Act on the Ownership of Flats,

thus it reached the conclusion on its invalidity pursuant to § 39 of the

Civil Code.  In such circumstances, it no longer considered it relevant

to assess the contract’s ineffectiveness pursuant to § 15 para. 1, lit.

c) of the Bankruptcy Act.  And it stated, in reaction to the

complainant’s objection to the registration of title to the residential

unit in question into the register of property by decision of the

cadastral office (hence, a public document under § 134 of the Civil

Procedure Code), that this did not result in a decision on the

contract’s invalidity, that the cadastral office assesses the legal

transaction at issue only from the perspectives exhaustively enumerated

in § 5 of Act No. 265/1992 Coll., as subsequently amended.  According to

the High Court the decision on the authorization to register does not

prevent the assessment of the contract in a civil court proceeding,

whether that be in accordance with § 39 of the Civil Code or § 15 para.

1, lit. c) of the Bankruptcy Act.
 

In

its 25 March 2003 judgment, case no. 29 Odo 560/2001-64, the Supreme

Court rejected on the merits the complainant’s extraordinary appeal. 

Basing its decision on the factual findings made by the appellate court,

among which were included the determination of the content of the

contract in question, it concurred on all points with the appellate

court’s findings of law.
 

In

its 3 November 2003 ruling, file no. 99 K 21/98-969, the Municipal Court

in Prague denied its consent to the non-auction sale of precisely

designated property from the bankruptcy estate.
 


III.

Recapitulation of the Points and the Petit of the Constitutional Complaint
 

On

the level of ordinary law and in accord with the arguments already

asserted in the prior proceeding, in her constitutional complaint the

complainant objects, in particular, to the formalistic manner of

interpreting the text of the contract on the transfer of the title to a

flat from a cooperative to the complainant.  In the complainant’s view,

the conclusion that the contract at issue is invalid, due to the failure

to observe the conditions flowing from § 24 para. 7 of the Act on the

Ownership of Flats, does not pass muster, since the fund for repairs and

maintenance was not burdened by any debts and, thus, she was not, in

this connection, a debtor in relation to the cooperative.  She also

views the appellate court’s decision to be surprising, since the trial

court assessed the matter under consideration according to § 15 para. 1

of the Bankruptcy Act, while the appellate court did so in accordance

with § 39 of the Civil Code in conjunction with § 24 para. 7 of the Act

on the Ownership of Flats.  In her view, due to this approach, she was

deprived of the opportunity to advance factual and legal arguments. 

Further, the complainant considers the High Court’s conclusion (to the

effect that the contract at issue does not contain a clause under § 24

para. 7 of the Act on the Ownership of Flats) to be in conflict with the

admitted evidence, specifically the fact that this clause is contained

in Art. VI para. 2 of the contract.  Then, as a matter of constitutional

law, she objects that § 15 para. 1 of the Bankruptcy Act is in conflict

with the constitutional protection of the right of property.  In

addition, the complainant refers to the restitutional nature of the

transfer of title to flats from a cooperative to the members thereof and

the necessity arising therefrom of proceeding in accordance with § 68

of the Bankruptcy Act, as well as the unjustified preference accorded

the bankrupt’s creditors in relation to the complainant and other

members of the cooperative.  She finds the alleged preference to consist

in the infringement of §§ 23 and 24 of the Act on the Ownership of

Flats, regulating the right to the transfer, free of charge, of a

residential unit of a house owned by a residential cooperative which,

the complainant is convinced, is in no way affected by the declaration

of the cooperative’s bankruptcy.
 

For

the given reasons, the complainant proposes that, in its judgment, the

Constitutional Court quash the 25 March 2003 judgment of the Supreme

Court, case no. 29 Odo 560/2001-64, the 12 April 2001 judgment of the

High Court in Prague, file no. 13 Cmo 50/2001-37, and the 5 December

2000 judgment of the Regional Commercial Court in Prague, file no. 4 Cm

164/2000-15, in consequence of the designated ordinary court decisions,

fundamental rights and basic freedoms have been affected, arising from

Art. 2 paras. 2, 3, Art. 3 para. 1, Art. 4 paras. 1, 3, 4, Art. 11

paras. 1, 4, Art. 12 para. 1, Art. 36 para. 3, and Art. 38 para. 2 of

the Charter of Fundamental Rights and Basic Freedoms (hereinafter

"Charter"), as well as from Art. 1, Art. 2 para. 3, and Art. 15 para. 1

of the Constitution.

 

The

complainaint reasons her motion to have the constitutional complaint

heard out of order due to urgency, as well as to suspend the enforcement

of the designated court decisions, by the possibility of irreparable

changes to the property in consequence of the manner in which the

administrator of the bankruptcy estate proceeds; the petition to quash

the 3 November 2003 ruling of the Municipal Court in Prague, file no. 99

K 21/98-969, denying consent to the non-auction sale of precisely

designated property from the bankruptcy estate, she reasons, in

particular, by its alleged conflict with § 23 para. 1 of the Act on the

Ownership of Flats and, in consequence thereof, its conflict with Art.

1, Art. 2 para. 3, and Art. 95 para. 1 of the Constitution, and Art. 2

paras. 2, 3, Art. 11 para. 1, and Art. 36 of the Charter.
 


IV.

Recapitulation of the Main Parts of the Views Expressed by the Parties
 

On

the basis of the Constitutional Court’s request, pursuant to §§ 42

para. 4 and 76 para. l of Act No. 182/1993 Coll., as subsequently

amended, on 10 February 2004, one of the opposing parties to the

proceeding, the Supreme Court, submitted its statement of views on the

constitutional complaint under consideration.  In its statement that

court refers to the ground for an extraordinary appeal, which gives

grounds for the review of the decisions of both the appellate and trial

courts, and by which a legal issue of basic significance was resolved

(according to § 239 para. 1 of the Civil Procedure Code, in the version

valid until 31 December 2000).  It states that the judgment in the

extraordinary appeal affirmed the appellate court’s legal view,

according to which in the given case, the complainant’s action to exempt

property from execution of judgment was dismissed due to the

unconditional invalidity of the contract on the transfer of title to a

flat from the cooperative to the complainant (§ 39 of the Civil Code) in

consequence of the absence of agreement by the contracting parties

under § 24 para. 7 of the Act on the Ownership of Flats.  The party to

the proceeding does not spot any formalistic approach, either in such

application of the statutory provision in question or in the

interpretation of the terms of the contract at issue.  It is convinced

that it consistently followed the constitutional order (iparticularly

the separation of powers principle, according to which the judicial

power is not permitted, when applying law, to replace the legislative

power), then even the literal wording, as well as the sense and meaning

of relevant ordinary law.  As regards the restitutionary nature of Act

No. 42/1992 Coll., on the Regulation of Property Relations and the

Settlement of Property Claims in Cooperatives, the Supreme Court then

refers to the fact that only certain provisions of the cited act are of a

restitutional nature, but not the rules on the transformation of

individual types of cooperatives into a from corresponding to the rules

contained in the Commercial Code.  For the given reasons, § 68 of the

Bankruptcy Act does not apply to the given matter.  In reaction to the

complainant’s assertion that an agreement corresponding to § 24 para. 7

of the Act on the Ownership of Flats is contained in Art. VI. para. 2 of

the contract at issue, the party to the proceeding calls attention to

the framework of the review in an extraordinary appeal, which permits it

to review the factual findings [§ 241 para. 3, lit. c) of the Civil

Procedure Code, in the version valid until 31 December 2000].  Further,

the Supreme Court does not share the complainant’s view that the

appellate court made a “surprising” decision.  According to it, the

complainant’s view on the assessment of the validity of the contract at

issue (that it was not the object of review before the first instance

court) is enough to show that she is incorrect.  The first instance

court reviewed the contract’s validity, and it came to the conclusion

that it is valid but ineffective; if even the appellate court examined

this conclusion on the basis of a review of the same document (§ 213 of

the Civil Procedure Code, in the version valid until 31 December 2000),

then according to the party to the proceeding it did not exceed the

bounds of its review authority.  If the contract’s validity had been

subject of review by the first instance court (albeit with a positive

conclusion), then, in the Supreme Court’s view, the complainant could

not have been “surprised” by the fact that the instrument was subject to

review (albeit toward the opposite conclusion) in the appellate

proceeding.
 

Finally, in its

statement of views, the party to the proceeding recalls that the

conclusion, according to which the collective’s creditors cannot satisfy

their justified claims to the collective’s property only due to the

fact that the provisions of the Act on the Ownership of Flats confers a

special right to this property (the right to the transfer, free of

charge) on the members of the cooperative, that this property is not

subject to enforcement, and thus not to bankruptcy either, or that these

rights endure even in an enforcement or bankruptcy proceeding, would be

in conflict, not only with the principles of the cooperative’s property

liability for its own obligations (§ 222 para. 1, second sentence of

the Commercial Code), rather even in blatant conflict with the

protection of the rights of others (which, in contrast to the members of

the cooperative, do not have any influence on any irresponsible

behavior by the cooperative as regards the selection of obligations

which it is not capable of covering).  In the Supreme Court’s view, the

complainant’s legal opinion would, in this connection, lead to the

conclusion that the Act on the Ownership of Flats operates

retroactively, for ex., in relation to creditors, who prior to its entry

into effect secured their claims as against the cooperative, for ex.,

by liens on the buildings of the cooperative which contain cooperative

flats.
 

In relation to the

petition proposing the annulment of § 15 para. 1 of the Bankruptcy Act,

the party to the proceeding objects, in particular, to the fact that it

was not applied in the mentioned matter.  As regards its content, the

party states that the provision quite obviously is not in conflict with

the constitutional order.
 

In

conclusion, it asserts in the statement of views that the decision

contested in the constitutional complaint was selected to be in the

Collection of Judicial Decisions and Positions of the Supreme Court, as

the Civil Law Collegium and the Commercial Collegium of the Supreme

Court approved, at their 8 October 2003 meeting, the publication of that

decision and determined that it would be published in issue No. 1 of

the 2004 Annual under no. 8, with the headnotes, according to which:
 

    

“I. A contract on the transfer of title to a residential unit owned by a

cooperative, a component of which is not the mutual settlement of the

funds designated for the financing of the repair and upkeep of the

building, or of the house and units and further the funds realized from

the income of residential, accruing to the transferred unit (§ 24 para. 7

of Act No. 72/1994 Coll., as subsequently amended), je neplatná (§ 39

of the Civil Code).
     II. A house owned by a cooperative, which

includes cooperative flats, shall not be excluded from the execution of

the decision merely due to the fact that a member of the cooperative has

asserted his right, pursuant to Act No. 72/1994 Coll., as subsequently

amended, to the transfer free of charge of a residential unit in this

house.
     III. Until the conclusion of the bankruptcy proceeding,

members of the cooperative who have asserted the right, pursuant to Act

No. 72/1994 Coll., as subsequently amended, to the transfer free of

charge of title to a residential unit owned by the cooperative, shall

have solely the statutory right of first refusal of this residential

unit.
     IV. Claims arising from Act No. 72/1994 Coll., as

subsequently amended, are not restitution claims in the sense of § 68 of

Act No. 328/1991 Sb, as subsequently amended.”
 

In

view of what is stated above, the party to the proceeding proposes that

the constitutional complaint under consideration should be rejected on

the merits as unfounded.
 


V.

Evidentiary Proceeding
 

Pursuant

to § 48 para. 1 of Act No. 182/1993 Coll., as subsequently amended, the

Constitutional Court shall admit all evidence necessary to establish

the facts of the case. In addition, it shall decide which of the

proffered evidence it is necessary to admit and may also admit evidence

other than that which has been proposed.
 

This

statutory provision must be interpreted in light of Art. 83 of the

Constitution, according to which the Constitutional Court is the

judicial body responsible for the protection of constitutionality, as

well as from the perspective of current case law, in which is

accentuated that the Constitutional Court and ordinary courts have

differing functions.  The Constitutional Court adjudges decisions of

ordinary courts contested by means of a constitutional complaint solely

from the perspective of whether fundamental rights and basic freedoms

guaranteed by the constitutional order have been affected, and not by

reviewing the merits of the matter from the perspective of ordinary

law.  From this can be deduced, in the area of evidence taking, the

maxim that evidence is taken in relation to facts verifying the

complainant’s assertion that he has been affected in his fundamental

rights and basic freedoms, but not evidence in relation to the merits of

the case, that is evidence concerning matters on the plane of ordinary

law, leading to a decision on the merits of the case.  This

differentiation is one of the features distinguishing the constitutional

judiciary from the ordinary judiciary.
 

From

the perspective of the indicated guarantees, the Constitutional Court

took evidence in the matter under consideration with the aim of

verifying the assertions contained in the constitutional complaint from

the file of the Municipal Court in Prague, file no. 4 Cm 164/2000:
  -

on no. l. 36 is filed the record of the hearing before the appellate

court, held on 12 April 2001, according to which were “read into

evidence Art. V and Art. VI of the contract on the transfer of title to

flat no. 1472/10”, concluded on 30 April 1998 between B. d. K. s. Ř and

the complainant.
  - the appendices to the file contain the contract

on the transfer of title to flat no. 1472/10”, concluded on 30 April

1998 between B. d. K. s. Ř and the complainant, Art. VI of which reads

as follows:

"VI.
Financial Settlement
1) On the basis of a

request, the receiver shall pay the grantor, at his own expense, the

amount of the unpaid long-term investment credit, which as of 30. 6.

1998 for the transferred flat amounted to 39,800 Kč.
 

2)

The receive agrees that the remainder of fund designated for the

financing of maintanence and repairs of the common area and facilities

of the home appurtenant to the transferred flat, including further

increase in those funds from rental payments less any amount drawn upon

from the day the contract on trusteeship is signed pursuant to paragraph

3 of this Article, is held by the grantor until the time the transfer

of title to the flat and then transferred to the account of the

administrator of the house.
 

3) The grantor is obliged:
a)

To use the amount of unpaid long-term investment credit mentioned in

paragraph 1 of this article for an exceptional one-off repayment of

credits to the bank together with the regular installment payments of

the credit as of 30 June 1998 and designate the bank, the shares of

which the exceptional payment concerns.
b) Make an accounting of the

advance on rental payments already made and the advance on performances

connected with the use of a flat after the conclusion of the credit

period (that is, calendar year) until 30 June of the year following the

signature of the contract.”
 


VI.

Ratio Decidendi


VI./a

The Scope of Constitutional Review


The

assessment of whether an encroachment by a public authority upon

fundamental rights and basic freedoms is unconstitutional consists of

several components (file nos. III. ÚS 102/94, III. ÚS 114/94, III. ÚS

84/94, III. ÚS 142/98, III. ÚS 224/98).  The first is the adjudication

of the constitutionality of the legal provisions that have been applied

in the case (which follows from § 68 para. 2 of Act No. 182/1993 Coll.,

as subsequently amended).  Further components are the evaluation of

whether constitutional procedural rights have been observed, and finally

the adjudication of whether the substantive legal provision was

interpreted and applied in a constitutionally conforming manner.
 


VI./b

Assessment of the Matter on the Ordinary Law Plane
 

From

the perspective of ordinary law relevant for constitutional review, for

the case under consideration the statutory provisions that apply to the

case under consideration are §§ 1, 6, 7, 15 para. 1, 19, 20, 32 para.

1, and 68 of the Bankruptcy Act, §§ 23 and 24 of the Act on the

Ownership of Flats, § 1 of Act No. 42/1992 Coll., on the Regulation of

Property Relations and the Settlement of Property Claims in

Cooperatives, § 222 para. 1 of the Commercial Code, §§ 39 and 41 of the

Civil Code, § 5 of Act No. 265/1992 Coll., as subsequently amended, and §

241 para. 3, lit. c) of the Civil Procedure Code, in the version valid

until 31 December 2000.

 

In

the matter under consideration, the Constitutional Court did not find

any grounds, in the sense of § 68 para. 2 of Act No. 182/1993 Coll., as

subsequently amended, for assessing the constitutionality of the applied

substantive and procedural law.
 

The

aim and purpose of the action to exempt property from execution of

judgment under § 19 of the Bankruptcy Act is the authoritative finding

of whether some property which was included in the bankruptcy estate was

properly so included, whether some third person can claim in relation

thereto a stronger right than that of the bankrupt, that is a right

which rules out the inclusion of this property into the bankrupt’s

estate and its subsequent liquidation in the bankruptcy.
 

The

complainant cites three grounds which give rise to such a right.  The

first ground is the exclusion of an item from the bankruptcy estate in

the case a restitution claim was asserted in relation to it (§ 68 of the

Bankruptcy Act), and a claim asserted pursuant to §§ 23 and 24 of the

Act on the Ownership of Flats is considered such a right.  The second

ground is the right to the transfer, free of charge, of shares of a flat

in a building, the title of which is held by a cooperative (§§ 23 and

24 of the Act on the Ownership of Flats) which, in the complainant’s

conviction, is in no way affected even by the the cooperative’s

declaration of bankruptcy.  Finally, the third ground is the asserted

content of the contract on the transfer of title to a flat from the

hands of the cooperative to the complainant, where the conclusion of the

High Court, according to which the contract at issue does not contain a

clause under § 24 para. 7 of the Act on the Ownership of Flats, is

considered to be in conflict with the admitted evidence, specifically

with the fact that this clause is contained in Art. VI para. 2 of the

contract.
 

The aim and

purpose of the restitution acts (in particular Act No. 119/1990 Coll.,

on Judicial Rehabilitation, as subsequently amended, Act No. 403/1990

Coll., on the Mitigation of the Consequences of Certain Property

Injustices, as subsequently amended, Act No. 87/1991 Coll., on

Extrajudicial Rehabilitation, as subsequently amended, Act No. 229/1991

Coll., on the Regulation of Ownership Relations to the Soil and other

Agricultural Property, as subsequently amended) is to mitigate the

consequences of certain injustices, which occurred in consequence of the

communist totalitarian regime, violating fundamental rights and basic

freedoms in the period from 1948 until 1989.
 

According

to its § 1, Act No. 42/1992 Coll., on the Regulation of Property

Relations and the Settlement of Property Claims in Cooperatives, is a

transformational act, while only in one context does it contain a

restitution dimension as well, namely in connection with the surrender

of property of the Communist Party of Czechoslovakia and the Socialist

Union of Youth, acquired by cooperatives as of 1 January 1990.  The

rules contained in §§ 23 and 24 of the Act on the Ownership of Flats are

then tied into the the indicated transformational purpose of Act. No.

42/1992 Coll.  Otherwise, the Constitutional Court has already, in its

judgment in the matter no. IV. ÚS 460/98, given its views on the

transformational, and not the restitutional, character for the given

case of the relevant ordinary law.  For the given reason one must reach

the conclusion that the assertion of a claim under §§ 23 and 24 of the

Act on the Ownership of Flats does not establish the conditions for the

fulfillment of the manner of proceeding under § 68 of the Bankruptcy

Act, that is, the exclusion of units in flats from the bankruptcy estate

of a bankrupt which is a cooperative of flats.
 

The

aim and purpose of the Bankruptcy Act (§ 1) is the disposition of the

assets of debtors who are insolvent, while a debtor is insolvent if he

has several creditors and is not capable, over an extended period, to

cover his obligations, even in the case that he is a natural person, if

he is an entrepreneur, and a legal person is overburdened with debt. 

The property which is subject to the bankruptcy proceeding is above all

that property (bankruptcy estate) which belongs to the debtor on the day

bankruptcy is declared, and also the property of other persons,

especially those who acquired it on the basis of an ineffective legal

transaction by the debtor (§ 6 of the Bankruptcy Act).  Further,

according to § 222 para. 1 of the Commercial Code, cooperatives answer

for the violation of their obligations with all their assets.  It

follows therefrom that units in flats which are owned by a cooperative,

however much the members of the cooperative hold a claim, under §§ 23

and 24 of the Act on the Ownership of Flats.
 

According

to §§ 23 para. 2 and 24 para. 1 of the Act on the Ownership of Flats,

members of the cooperative, possess a claim to the transfer, free of

charge, of the title to share in flats from the cooperative to them. 

For the given reasons the complainant inferred that, from the nature of

the matter, this property cannot be included into the bankruptcy estate

of a bankrupt cooperative, since, under the given circumstance, it

cannot be liquidated (§ 27 of the Bankruptcy Act).
 

The

conflict of norms of ordinary law outlined in this way, the resolution

of which is then viewed differently on the one hand by the complainant

and on the other hand by a party to the proceeding, is, however, a

merely apparent conflict.
 

According

to the mandatory provisions of §§ 1, 6 of the Bankruptcy Act, and § 222

para. 1 of the Commercial Code, all units in flats held by a

cooperative on the day bankruptcy is declared become a part of the

bankruptcy estate.
 

According

to §§ 23 para. 2 and 24 para. 1 of the Act on the Ownership of Flats,

upon the fulfillment of certain conditions precisely laid down in the

law, members of the cooperative who is a renter of the flat aquires the

right to the transfer, free of charge, the flat from the ownership of

the cooperative.
 

Under the

conditions contained in § 20 of the Bankruptcy Act, bankruptcy creditors

are authorized to assert claims, while § 7 of the cited act defines as a

“bankruptcy creditor” each person who asserts a claim in relation to a

bankrupt.  At the same time, even an item of property can be the object

of a claim, that is, even a flat (see, for example, § 167 para. 2 of the

Civil Code), while the Bankruptcy Act also envisages the possibility of

satisfying a bankruptcy creditor’s claim in relation to the item by

which the claim is secured (§ 28 odst. 1).
 

In

the case of a cooperative of flats which is a bankrupt, if she duly

asserts her claim even a member of the cooperative can be a bankruptcy

creditor, who is entitled to a claim flowing from the provisions of §§

23 para. 2 and 24 para. 1 of the Act on the Ownership of Flats.
 

Should

the proceeds from the liquidation of the bankruptcy estate not suffice

to cover the settlement of all asserted claims, then according to § 32

para. 1 of the Bankruptcy Act, “other claims”, among which can be

included as well claims arising from §§ 23 para. 2 and 24 para. 1 of the

Act on the Ownership of Flats, shall be satisfied proportionally.  This

means that a member of the cooperative who is a bankruptcy creditor

shall, following the appraisal of the shares in flats and the transfer

of title to them, pay the difference between the proportional settlement

of his claims and the price of the shares in flats (§ 27 para. 5 of the

Bankruptcy Act).
 

The

complainant further considers to be in conflict with the admitted

evidence, specifically with the fact that this clause is contained in

Art. VI para. 2 of the contract, the High Court conclusion that the

contract under consideration does not contain a clause under § 24 para. 7

of the Act on the Ownership of Flats.
 

According

to § 24 para. 7 of the Act on the Ownership of Flats, a mutual

settlement of funds designated for the financing of repairs on and

maintenance of the building, or the house and unit, forms a component of

a contract on the transfer of the title to a unit from the cooperative,

as does further the funds formed from the gains from residential

management that are appurtenant to the transferred unit, and by the

mutual settlement is meant both the repayment of remainder not drawn

upon, as well as of arrears on the part of the acquirer.
 

According

to the legal view of the appellate court, the settlement pursuant to §

24 para. 7 of the Act on the Ownership of Apartment cannot be confused

with the duties of the acquirer to pay a proportional amount of arrears

of the outstanding investment credit granted for the construction and

appurtenant to the transferred unit or on the outstanding portion of the

preferential credit for extensive alterations and construction

modifications on the transferred flat, since the duty to pay these

arrears is imposed upon the acquirer in another provision of the Act on

Flats, namely § 24 para. 5.  Proceeding from the interpretation outlined

in this way of the provisions of § 24 paras. 5, 7 of the Act on the

Ownership of Flats, the appellate court in the matter under

consideration reached the conlusion that the contract at issue did not

contain the attributes called for in § 24 para. 7 of the indicated act

and, since an obligatory attribute was concerned, the court considered

that, due to its absence, this contract was unconditionally invalid (§

39 of the Civil Code).  In this connection it further stated that in the

proceeding on the authorization to register the cadastral office

assesses the legal transaction at issue only from the perspectives

exhaustively enumerated in § 5 of Act No. 265/1992 Coll., as

subsequently amended, while the decision on the authorization to invest

does not hinder a court in a civil court proceeding from adjudging a

contract’s invalidity in the sense of § 39 of the Civil Code or of other

statutory provisions, or rather its ineffectiveness as against

bankruptcy creditors in the sense of § 15 para. 1, lit. c) of the

Bankruptcy Act.
 

Proceeding

from evidence admitted by the Constitutional Court at the oral hearing,

the establishment of the wording of Art. VI of the contract on the

transfer of flat no. 1472/10, concluded on 30 April 1998 between B. d.

K. s. Ř. and the complainant, and from the legal assessment of its

terms, the Constitutional Court declares that the contract at issue

corresponds to the requirements that follow from the wording of § 24

para. 5, 7 of the Act on the Ownership of Flats.  The provisions of Art.

VI para. 2, and para. 3, lit. b) contain both a clause on the mutual

accounting of funds designated for the financing of repairs and

maintenance of the building and the residential units, further the funds

formed from the gain from the management of the flats (from the

perspective of the terms of Art. VI para. 2 of the contract at issue,

the settlement of remainder of the rental payments), and also the manner

in which such accounting will be carried out.
 

In

this context and beyond the confines of the established factual and

legal findings, the Constitutional Court agrees with the legal views of

the High Court, to the effect that the obligatory nature of the clause

under § 24 para. 7 of the Act on the Ownership of Flats, its absence or

invalidity results without more in the unconditional invalidity of the

entire contract on the transfer, free of charge, of the shares in flats

under §§ 23 para. 2 and 24 para. 1 of the Act on the Ownership of Flats.
 

The

regulation of contractual types also falls within the competence of a

democratic legislature in the area of the statutory regulation of

private law.  The transfer, free of charge, of title to shares in a flat

from a cooperative to a member of the cooperative who is the lessee of

the flat (§§ 23 para. 2 and 24 para. 1 of the Act on the Ownership of

Flats) must also, if conditions precisely prescribed by lat are met, be

considered as just such a contractual type.  As has already been stated,

according to § 24 para. 7 of the Act on the Ownership of Flats, a

component of a contract on the transfer of title to a unit from the

cooperative is the mutual settlement of funds designated for the

financing of repairs on and maintenance of the building, or the house

and unit, as does further the funds formed from the gains from

residential management that are appurtenant to the transferred unit.
 

Under

§ 39 of the Civil Code, a legal transaction shall be invalid if, by its

content or aim, it is in conflict with the law or circumvents it, and

under § 41 of the Civil Code, if the grounds of invalidity relate merely

to a part of the legal transaction, then only that part is invalid,

unless it follows from the nature or content of the legal transaction,

or from the circumstances under which the transaction came into being,

that this part cannot be severed from the remainder of the content.
 

If

the High Court came to the conclusion that the contract at issue lacks a

clause in the under § 24 para. 7 of the Act on the Ownership of Flats,

or alternatively that its terms mix the obligation laid down in the

statutory provision with the obligation arising from other statutory

provisions (§ 24 para. 5 of the Act on the Ownership of Flats), which it

would be possible to adjudge rather in the sense of legally relevant

indefiniteness (§ 37 para. 1 of the Civil Code), then it neglected to

concern itself with the issue whether this clause is an essential or

accidental requisite of the contractual type under §§ 23 para. 2 and 24

para. 1 of the Act on the Ownership of Flats, whether then the

conditions are met for proceeding as laid down under §41 or of § 39 of

the Civil Code.
 

If then the

Supreme Court, when making an evaluation of the issue of basic legal

significance, submitted to it for its adjudication by the complainant,

concluded that the determination as to whether the contract at issue on

the transfer of title to a flat (with respect to its Art. VI) contains a

clause under § 24 para. 7 of the Act on the Ownership of Flats, or that

such is not the case, is a factual finding, and thus grounds for an

extraordinary appeal under § 241 para. 3, lit. c), in the version valid

until, 31 December 2000, the Constitutional Court has not divulged its

view in this regard.  The acceptance of the ordinary court’s conclusions

on the content of the legal transaction (the contract) is a legal

judgment, representing an authoritative interpretation of the legally

relevant manifestation of private intent, and not a factual finding,

rather a finding made on the basis of legal knowledge (see the agreeing

ruling no. III. ÚS 280/03).  In this connection, in the realm of fact

belongs only findings of fact (but not the ascertainment of duties), in

other words, the ascertainment of the existence of a legal transaction

itself, the identification of its subject, the genuineness of the

document (if it is made in written form), and the establishment of the

wording of the text, etc.
 

The

fulfillment of conditions for the subsumption under a legal norm is not

made up solely of the factual findings, rather may be made up also of

the determination of duties.  Expressed in other words, an adjudication

of the requisites of a contract represent the subordination of the

individualized and concretized duties (rights) under the general and

abstract (norms).  The interpretation of contracts (legal transactions)

is guided by interpretive rules which are analogous to those which

govern the interpretation of generally binding legal enactments.
 

The

wording of Art. VI of the contract at issue, concluded between the

complainant and B. d. K. s. Ř, contains separate provisions for the

remittance of unpaid credits and for the accounting of funds designated

for the financing of repairs and maintenance of the house and units of

flats, thus, it does not mix the duties flowing from § 24 para. 5 and

from § 24 para. 7 of the Act on the Ownership of Flats.  The wording of

Art. VI para. 3, lit. b) of the cited contract then specially prescribes

the manner of accounting of the funds under paragraph 2 of the cited

provision of the contract.
 

Due

to the fact that the appellate court, when interpreting the contract at

issue, did not accept these facts and proceeded in conflict with the

rules of linguistic, systematic, and teleological interpretation, it

violated § 39 of the Civil Code, in conjunction with § 24 para. 7 of the

Act on the Ownership of Flats.
 

By

choosing a restrictive interpretation of the term, “incorrect legal

assessment of the matter”, in the extraordinary appeal the Supreme Court

restricted the relevant grounds for the extraordinary appeal, and that

in conflict not only with the meaning and purpose of § 241 para. 3, lit.

c) of the Civil Procedure Code, in the version valid until 31 December

2000, but also with the meaning of the concepts of legal assessment and

factual finding, which diverge in legal dogmatics.
 

Apart

from substantive law objections, the complainant also reproaches the

appellate court decision decision in that it affected her in her

fundamental rights arising from Art. 38 para. 2 of the Charter (the

restriction of the right to put forth legal and factual arguments in the

matter), consisting in the adoption of a “surprising” decision.
 

The

Constitutional Court does not agree with the legitimacy of this

criticism.  In this connection it concurs with the position taken by the

party to the proceeding, according to which the issue of the validity

of a contract on the transfer of shares in a flat, concluded between the

complainant and B. d. K. s. Ř, was the subject both of the trial and

review proceedings, which follows also from the evidence of the file of

the Municipal Court in Prague, no. 4 Cm 164/2000, according to which the

wording of Art. VI of the cited contract was established at the hearing

before the High Court in Prague.  In its approach, therefore, the High

Court entirely accepted the safeguards which, on the issue of surprising

decisions, flow from Constitutional Court jurisprudence (see judgment

no. III. ÚS 139/98, III. ÚS 257/98, I. ÚS 336/99), in particular due to

the fact that it did not ascertain the entire wording of the contract

under consideration, rather only the wording of selected provisions,

indicated to the parties to the proceeding the legal issue which it

considers reasonable to deal with, without thereby violating the right

of the parties flowing from the maxim of the equality of arms under Art.

37 para. 3 of the Charter.  It thus anticipated the obligation

resulting from § 118a para. 2 of the Civil Procedure Code, without this

provision, I the sense of Art. XI of Part Twelve of Chapter I, point 15

of Act No. 30/2000 Coll., having any impact on this appellate

proceeding.
 

If the

Constitutional Court came to a conclusion on the validity, on the plane

of ordinary law, of the contract under consideration, it then considers

it indispensable also to analyze the arguments of the trial court,

according to which in the decided matter, the application of § 15 para.

1, lit. c) of the Bankruptcy Act is reasonable.  According to the cited

statutory provision, if bankruptcy was declared, legal transactions of

the debtor, by which items of property, rights, and other property

values from his assets are transferred free of charge to a third person,

are ineffective as against the creditors, if they were effected in the

six months preceding the submission of the petition seeking a

declaration of bankruptcy, or following the submission of this petition

until the declaration of bankruptcy.
 

The

meaning of the cited statutory provision is, by the introduction of the

institute of contesting and ineffectiveness of a legal transaction, to

prevent the transfer of a debtor’s property to third person to the

detriment of the creditor in cases of doubt as to the debtor’s good

faith.  However, the transfer free of charge of units in flats pursuant

to §§ 23 para. 2, 24 para. 1 of the Bankruptcy Act does not constitute

such a case.  The transfer free of charge in the given case is not a

manifestation of the free will of the debtor, rather occurs ex lege.
 

The

Constitutional Court has, in a number of its judgments or positions

(see position no. Pl. ÚS-st-1/96 and judgment no. Pl. ÚS 33/97),

expressed its view on the tension between a literal and a teleological

interpretation.  It formulated a starting thesis in this regard in its

judgment no. Pl. ÚS 33/97, in which it declared that it is untenable for

the application of law to emerge solely from a linguistic

interpretation; such linguistic interpretation represents merely an

initial approximation to the application of the legal norm, it is the

point of departure for the elucidation and clarification of its meaning

and purpose (which purpose is served by a host of other approaches, such

as a logical or systematic interpretation, an interpretation e ratione

legis, etc.).  Then in its judgment no. Pl. ÚS 21/96, in the context of

assessing a similar matter, it stated:  “A court is not absolutely bound

to the literal wording of a statutory provision, rather it may and must

diverge therefrom in cases where such is required by serious grounds of

the statute’s aim, the history of its adoption, systematic context or

certain of the principles which have their basis in a constitutionally

conforming legal order which is a meaningful whole.  At the same time,

it is necessary to eschew arbitrariness, judicial decision-making must

be based upon rational arguments.”
 

Consequently,

in the matter under consideration, the application of § 15 para. 1,

lit. c) of the Bankruptcy Act is in conflict with its purpose and aim

and as such must be rejected.
 


VI./c

Adjudication of the Constitutionality of the Interpretation and Application of the Ordinary Law Relevant in the Matter
 

It

is necessary, as a matter of constitutional law, to lay down the

conditions under which, when fulfilled, the incorrect application of

ordinary law by ordinary courts would result in the infringement of a

fundamental right or basic freedom.
 

The

first group of cases in which, in proceedings on constitutional

complaints, the Constitutional Court intervenes into ordinary court

decision-making is represented by those cases in which it assesses the

issue whether, from the perspective of the principle of proportionality,

the ordinary law norm applied in the matter, and which pursues a

certain constitutionally protected aim, legitimately takes priority over

another ordinary law norm which pursues the attainment of another

constitutionally protected aim (for example, case no. III. ÚS 256/01 and

others).
 

Another group are

those cases which involve, not a conflict between two, or more, ordinary

law norms that might be applied in the matter, rather the resolution of

the question of acceptance of certain of several interpretive

alternatives, of the same, definite, ordinary law norm (for example,

case nos. II. ÚS 22/94, III. ÚS 114/94 and others)
 

Finally,

the third group of cases are those cases, in proceedings on

constitutional complaints, of the arbitrary application of ordinary law

norms by an ordinary court, which lacks any meaningful substantiation or

any interconnection with any sort of constitutionally protected aim. 

Illustrations are the Constitutional Court decisions in which it

asserted that the ordinary court’s legal conclusion is „in extreme

incongruity with the factual and legal determinations that were made, or

that the reasoning of the court decision does not follow from it by any

possible interpretation“ (see, in particular, III. ÚS 84/94, III. ÚS

166/95, I. ÚS 401/98, II. ÚS 252/99, I. ÚS 129/2000, I. ÚS 549/2000,

III. ÚS 74/02 and  III. ÚS 694/02).
 

Proceedings

on constitutional complaints, then, can be subdivided into cases of the

conflict of norms of ordinary law, the conflict of interpretive

alternatives, and finally cases of the arbitrary application of ordinary

law.
 

In the matter under

consideration (compare also judgment no. III. ÚS 686/02) the

Constitutional Court came to the conclusion that the interpretation of §

39 of the Civil Code, § 24 para. 7 of the Act on Ownership of Flats, §

241 odst. 3, lit. c) of the Civil Procedure Code, in the version valid

until 31 December 2000, and § 15 para. 1, lit. c) of the Bankruptcy Act,

contained in decisions of appellate, extraordinary appellate, and first

instance courts, come into extreme incongruity with the content of the

customary interpretive methods, as well as with the standard legal dogma

demarcated by the content of legal concepts, and as a result the

decision under consideration cannot be classified in the sense of the

arbitrary application of ordinary law, and thus as a violation of the

fundamental right to due process under Art. 36 para. 1 of the Charter

and a violation of the fundamental right to the protection of property

under Art. 11 para. 1 of the Charter.

 

For

the given reasons, that is, in consideration of the violation of Art.

11 para. 1 and Art. 36 para. 1 of the Charter, the Constitutional Court

has quashed the 25 March 2003 judgment of the Supreme Court, case no. 29

Odo 560/2001-64, the 12 April 2001 judgment of the High Court in

Prague, file no. 13 Cmo 50/2001-37, and the 5 December 2000 judgment of

the Regional Commercial Court in Prague, file no. 4 Cm 164/2000-15 [§ 82

para. 1, para. 3 lit. a) of Act No. 182/1993 Coll., as subsequently

amended].
 


VI./d

Ancillary Issues
 

After

quashing the 25 March 2003 judgment of the Supreme Court, case no. 29

Odo 560/2001-64, the 12 April 2001 judgment of the High Court in Prague,

file no. 13 Cmo 50/2001-37, and the 5 December 2000 judgment of the

Regional Commercial Court in Prague, file no. 4 Cm 164/2000-15, the 3

November 2003 ruling of the Municipal Court in Prague, file no. 99 K

21/98-969, denying consent to the non-auction sale of precisely

designated property from the bankruptcy estate, ceases to have any legal

foundation, as the cassational grounds undermining the ordinary courts

decisions in the proceeding also give grounds for the quashing of the

cited Municipal Court ruling.
 

The

complainant gave as her reasons for the motion to have the

constitutional complaint heard out of order due to urgency (§ 39 of Act

No. 182/1993 Coll., as subsequently amended), as well as to suspend the

enforcement of the contested court decisions (§ 79 para. 2 of Act No.

182/1993 Coll.), the possibility of irreparable changes to the property

in consequence of the manner in which the administrator of the

bankruptcy estate proceeds.  In the given case, however, the

Constitutional Court found no reasons for proceeding in accordance with §

39 and § 79 para. 2 of Act No. 182/1993 Coll., as subsequently

amended.  For the given reasons, the Constitutional Court has, as a

rule, applied the cited provisions only in the case where the

enforcement of the contested decision would have irreparable personal

consequence, excluding even the restitutional or compensatory function

of legal liability.  For the reasons laid down, the Constitutional Court

has, pursuant to § 43 para. 2, lit. a) of Act No. 182/1993 Coll., as

subsequently amended, denied as manifestly unfounded the complainant’s

motion to have the constitutional complaint heard out of order due to

urgency (§ 39 of Act No. 182/1993 Coll., as subsequently amended), as

well as to suspend the enforcement of the contested court decisions (§

79 para. 2 of Act No. 182/1993 Coll.).  The Constitutional Court

concludes that a restrictive interpretation of the cited statutory

provisions is necessary in part due to the maxim of the equality of

parties to proceedings conducted before the Constitutional Court

(pursuant to Art. 37 para. 3 of the Charter), and in part due to the

special nature of the institute of proceedings on a constitutional

complaint, as an extensive interpretation of the procedure under § 79

para. 2 of Act No. 182/1993 Coll. would make of it, de facto, an

ordinary remedial procedure.
 

Pursuant

to § 74 of Act No. 182/1993 Coll., the complainant has submitted a

petition proposing the annulment of § 15 para. 1 of Act No. 328/1991

Coll., on Bankruptcy, as subsequently amended, to which she objects for

alleged conflict with the constitutionally protected substance of the

right of property.  Since § 15 para. 1 of the Bankruptcy Act is not

applied either in the reasoning of the final decision of 12 April 2001

of the High Court in Prague, file no. 13 Cmo 50/2001-37, or in that of

the 25 March 2003 judgment of the Supreme Court, case no. 29 Odo

560/2001-64, rejecting on the merits the extraordinary appeal, the

complainant’s petition does not fulfill the conditions of § 74 and § 64

para. 1, lit. e) of Act No. 182/1993 Coll., as subsequently amended, for

which reason the petition must be classified as a petition submitted by

a manifestly unauthorized person, which gives grounds for the denial of

the petition on preliminary grounds pursuant to § 43 para. 2, lit. b)

in conjunction with § 43 para. 1, lit. c) of Act No. 182/1993 Coll., as

subsequently amended.

Notice: This judgment may not be appealed.

Brno, 6 May 2004