2004/05/12 - I. ÚS 167/04: Autonomy of the Will

12 May 2004

HEADNOTES

The

autonomy of the will and individual liberty of action guaranteed on the

constitutional level by Art. 2 para. 3 of the Charter of Fundamental

Rights and Basic Freedoms.  Art. 2 para. 3 of the Charter must be

understood in a double sense.  In its first dimension it represents a

structural principle, according to which state authority may be asserted

in relation to the individual and her autonomous sphere (including

autonomous manifestations of the will) solely in cases where an

individual’s conduct violates an explicitly formulated prohibition laid

down in law.  However, such prohibition must, in addition, reflect

solely the requirements consisting in preventing the individual in

encroaching upon the rights of others and in the attainment of the

public good, provided that such restriction upon the individual liberty

of action is legitimate and proportional.  Such principle must, then, be

conceived of as an essential attribute of every democratic law-based

state (Art. 1 para. 1 or the Constitution of the Czech Republic).  Art. 2

para. 4 of the Constitution of the Czech Republic has a like content.
In

its second dimension, Art. 2 para. 3 of the Charter operates as an

individual right to the respect by state authorities of the autonomous

manifestation of one’s personhood (including manifestations of the

will), which are reflected in a person’s specific conduct, to the extent

that such conduct is not expressly prohibited by law.

In

its second dimension, in which it operates as an individual fundamental

right, Art. 2 para. 3 must be applied immediately and directly.  In

this dimension it does not merely radiate through ordinary law, rather

it is an individual right which operates directly in relation to state

authority.  Thus, when state bodies apply ordinary law, they are also

obliged to interpret the norms of that law, in which Art. 2 para. 3 of

the Charter and Art. 2 para. 4 of the Constitution of the Czech Republic

are reflected as objective constitutional principles, in such a manner

that they do not encroach upon the right of the individual to the

autonomy of his will, which is guaranteed by the second dimension of

Art. 2 para. 3.

Such

a conception of Art. 2 para. 3 of the Charter merely expresses the fact

that, in the substantive law-based state, the individual and his

liberty of action always take priority before state power realized in

statutes.  Should the individual not have the opportunity directly to

call upon this priority, such priority would be a mere formal

declaration.  Such a proclamation of objective principle is then easily

erodible by the legislative activity of the legislative body.

The

free sphere of the individual and its direct constitutonal guarantee in

the form of an enforceable individual right are conditiones sine qua

non of the material law-based state, which is erected upon respect for

the fundamental rights of the individual.  The individual’s right to the

respect for his or her autonomous and free sphere actually operates as a

constant placed before the bracket in which are found particular

specified fundamental rights put into positive law form in reaction to

the massive infringement of them by authoritarian or totalitarian

regimes.  The need to formulate particular fundamental rights has, as a

historical matter, always been conditioned as a reaction to the massive

infringement in a certain field of individual freedom, from which

specific fundamental right emerged (see Hayek, F. A., Law, Legislation

and Freedom, Part 3, Academia, Prague 1991, p. 96).  This fact is

apparent from the evolution of catalogues of fundamental rights;

otherwise, the taxonomy of the Charter of Fundamental Rights and Basic

Freedoms is constructed upon the same logic as well.


 

 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


On

12 May 2004 the Constitutional Court decided in a panel composed of its

Chairman, JUDr. František Duchoň, and Justices, JUDr. Eliška Wagnerová

and JUDr. Vojen Güttler, in the matter of the constitutional complaint

of the commercial company, Home Credit Finance a. s., with its

headquarters at Kounicova 284, 602 00 Brno, represtented by JUDr.

Vladimír Muzikář, an attorney with his office in Brno, Havlíčkova 13,

joined for joint hearing and resolution by the 23 March 2004 ruling of

the Plenum of the Constitutional Court, against the rulings of the

Regional Court in Brno listed below:

1.    resolution of 7. 11. 2003, file no. 28 Co 416/2003,
2.    resolution of 7. 11. 2003, file no. 28 Co 388/2003,
3.    resolution of 7. 11. 2003, file no. 28 Co 371/2003,
4.    resolution of 7. 11. 2003, file no. 28 Co 417/2003,
5.    resolution of 6. 11. 2003, file no. 28 Co 168/2003,
6.    resolution of 6. 11. 2003, file no. 28 Co 339/2003,
7.    resolution of 6. 11. 2003, file no. 28 Co 421/2003,
8.    resolution of 6. 11. 2003, file no. 28 Co 215/2003,
9.    resolution of 7. 11. 2003, file no. 28 Co 409/2003,
10.    resolution of 6. 11. 2003, file no. 28 Co 306/2003,
11.    resolution of 7. 11. 2003, file no. 28 Co 381/2003, as  follows:

I.

The resolutions of the Regional Court in Brno of 7. 11. 2003, file no.

28 Co 416/2003, of 7. 11. 2003, file no. 28 Co 388/2003, of 7. 11. 2003,

file no. 28 Co 371/2003, of 7. 11. 2003, file no. 28 Co 417/2003,of 6.

11. 2003, file no. 28 Co 168/2003, of 6. 11. 2003, file no. 28 Co

339/2003, of 6. 11. 2003, file no. 28 Co 421/2003, of 6. 11. 2003, file

no. 28 Co 215/2003, of 7. 11. 2003, file no. 28 Co 409/2003, of 6. 11.

2003, file no. 28 Co 306/2003, of 7. 11. 2003, file no. 28 Co 381/2003,

constituted an intrusion into the fundamental rights of the complainant

under Art. 2 para. 3 and Art. 38 para. 1 of the Charter of Fundamental

Rights and Basic Freedoms, and at the same time Art. 1 para. 1 and Art. 2

para. 4 of the Constitution of the Czech republic were infringed.
II. The resolutions of the Regional Court in Brno listed in point I of the statement of judgment (dispositif) are quashed.



REASONING
 

By

her timely and, as far as other requirements are concerned, duly

submitted constitutional complaints, the complainant contested the

ordinary court decisions listed in the heading.  The contested rulings

of the Regional Court in Brno upheld the rulings of the Municipal Court

in Brno, by which the first instance court declared that it was not the

proper venue in the case and transferred the matter to the court which,

according to § 84 of the Civil Procedure Code, was the proper venue (the

ordinary court of the defendant).
 

In

view of the fact that the constitutional complaints have identical

content and that the parties to the proceeding are identical, the

Constitutional Court Plenum decided in its 23 March 2004 ruling to joint

all constitutional complaints for joint hearing under file no. I. ÚS

167/04.
 

The complainant is

of the view that the contested rulings of the Regional Court in Brno

violated her constitutionally guaranteed fundamental rights, in

particular the right to act in accordance with the principle of

contractual liberty in the sense of Art. 2 para. 4 of the Constitution

of the Czech Republic and Art. 2 para. 3 of the Charter of Fundamental

Rights and Basic Freedoms (hereinafter „Charter“), as well as the right

to equal status in judicial proceedings under Art. 37 para. 3 of the

Charter.
 

According to the

complainant, the Municipal Court declared in its rulings (about which

the Regional Court in Brno decided in the appellate proceeding) the

invalidity of the parties‘ prorogation agreement , which stipulated the

court in Brno as the proper venue to hear their mutual disputes. 

According to the Municipal Court, it is not clear from the agreement

which of the two courts located in Brno should be the proper venue in

the matter (whether the Municipal Court in Brno or the District Court

Brno - Province).  For this reason the court considered the agreement to

be indefinite and, thus, invalid under § 37 para. 1 of the Civil Code. 

In its rulings, contested in this case, the Regional Court in Brno

subsequently affirmed this conclusion.
 

The

Regional Court put forward as the cardinal argument in the reasoning of

its decisions that it found there to be a difference between the

formulation „the court that is the proper venue in Brno“, which in its

view designates the court’s seat, and the formulation „the court that is

the proper venue for Brno“, which in the court’s view designates the

courts‘ jurisdiction regardless of its seat.
 

The

complainant considers that, in this matter, all statutory conditions

for the entry into a „prorogation agreement“ were met.  The parties to

the proceeding stipulated as the proper venue the court in Brno that has

subject-matter jurisdiction to hear matters relating to that

agreement.  In the complainant’s view, at the present no court other

than the Municipal Court in Brno qualifies as such a court, nor even at

the time when individual actions were filed (§ 11 para. 1 of the Civil

Procedure Code).
 

In her

constitutional complaints, the complainant further argues that the

title, district, and seat of each court are laid down by law.  It is

also stated directly in the law that, in the judicial district of the

City of Brno, the Municipal Court in Brno exercises the jurisdiction of a

district court (§ 9 para. 2 of the Act on Courts and Judges), and that

the seat of the Municipal Court in Brno is the City of Brno (§ 12 of the

Act on Courts and Judges).
 

The

municipalities that fall within the judicial district of the District

Court Brno-Province are exhaustively enumerated in the appendix to the

Act on Courts and Judges (in the complainant’s view, it must be

emphasized that this list contains neither the municipality nor the City

of Brno); it further provides that the seat of the District Court

Brno-Province is the City of Brno.
 

In

the complainant’s view, it follows from what has been stated that the

Municipal Court in Brno is the sole court which is related to Brno by

title, judicial district, and seat – that is, which is, in the wording

of the prorogation agreement „in Brno“.  It also follows from the above

that the District Court in Brno-Province is not directly related to the

City of Brno; the sole fact that the seat of this court is in Brno is

not capable of establishing any such qualified relation.
 

In

light of the above-stated arguments, it is the complainant’s view that

the opinion of the Regional Court in Brno, according to which the

formulation, „the court that is the proper venue in Brno“, designates

the court’s seat and the formulation, „the court that is the proper

venue for Brno“, designates the courts‘ jurisdiction, does not hold

muster.
 

In a situation where

the contracting parties wished to establish, as the proper venue, the

court which hears and decides matters within the territory of the

judicial district of the City of Brno, the complainant considers the

term which was designated in the prorogation agreement for the venue of

the court as the appropriate choice; at the same time, the parties

wished to formulate this agreement in such a way as to cover, as well,

any possible changes that might occur in the future.
 

The

complainant considers that one can give consideration even to other

terms which might have been used in the text of the prorogation

agreement.  For example, one such formulation could be the term, „the

court for Brno which has subject-matter jurisdiction over the matter“. 

The complainant considers this formulation to be similar in meaning to

that used in the prorogation agreement.  The complainant thus considers

that the term, „court in Brno“ and „court for Brno“ mean practically the

same thing, so that the correct interpretation of them should lead to

the same conclusion as to whether they are definite.
 

For

these reasons, the complainant considers the conclusions reached by the

ordinary courts as legal formalism and believes that, as a matter of

fundamental constitutional principles, excessive demands concerning the

formulation of a prorogation agreement are unacceptable, as they

demonstrably encroach upon the contractual liberty resulting from the

principle of the priority of the citizen before the State, as laid down

in Art. 1 of the Constitution of the Czech Republic (more precisely,

Art. 1 para. 1 of the Constitution of the Czech Republic) and from the

principle of contractual freedom, in the sense of Art. 2 para. 4 of the

Constitution of the Czech Republic and of the corresponding provisions

of Art. 2 para. 3 of the Charter of Fundamental Rights and Basic

Freedoms (in this connection, the complainant refers to the

Constitutional Court’s judgment in the matter no. I. ÚS 331/98).
 

The

complainant further believes that, in addition, her constitutionally

guaranteed right to her lawful judge, under Art. 38 para. 1 of the

Charter, was infringed by the contested decisions, precisely due to the

declaration that the prorogation agreement was invalid.  To the extent

that, in a specific case, a court fails to respect a validly concluded

prorogation agreement and decides concerning the proper venue in

disregard thereof, in the complainant’s view it has infringed the right

of the parties to a proceeding to have their case heard by the court

which is the proper venue, and thus also the constitutionally guaranteed

right to one’s lawful judge under Art. 38 para. 1 of the Charter.
 

The

complainant also considers that, by its contested decisions, the

Regional Court in Brno encroached upon her right, under Art. 37 para. 3

of the Charter, to the equality of parties to a proceeding.  A component

of this right is the parties‘ right to give their views on all facts

which are important for the adjudication of the matter.  This right then

corresponds to the duty of courts to respond, in a relevant procedural

matter, to all views expressed by the parties.  Should the court fail to

respond to their views, procedural error can reach such an intensity as

to result in the infringement of the constitutionally guaranteed right

to the equal status of parties to a proceeding.  In the complainant’s

view, such is the case, in particular, when the court entirely

disregards the views expressed by the parties, and the same outcome may

result where the relevant part of the judicial decision is unreviewable

due to a failure to give reasons.
 

For all of the above-stated reasons, the complainant proposes that the Constitutional Court quash the contested rulings.
 

At

the Constitutional Court’s request, the opposing party to the

constitutional complaint, the Regional Court in Brno, represented by the

Chairman of Panel 28 Co, responded to the submission of the complaint. 

In the statement of views, he declared that without a doubt the

complainant has the right, when entering into a credit contract in

conformity with the object of her entrepreneurial activities, to make

use of the possibility afforded, under § 89a of the Civil Procedure

Code, to parties to a civil court proceeding in commercial law matters. 

It does not follows from the contested rulings, however, that the

Regional Court in Brno denied or called into doubt the complainant’s

right under Art. 2 para. 3 of the Charter (everyone may do that which is

not prohibited by law; and nobody may be compelled to do that which is

not imposed upon him by law).  In his view, it was up to the parties,

and above all to the complainant, as contracting subjects to realize the

above-stated right in an appropriate manner into the text of the

agreement making another court the proper venue, and to stipulate in

that agreement, in a quite unequivocal and indisputable manner, which

specific court the parties have chosen to decide on their disputes.
 

Even

though it might be conceded, as a general matter, that such other court

need not be designated in the agreement by the title given it in Act

No. 6/2002 Sb., on Courts and Judges, without a doubt the parties‘

agreement on the selection of such court must designate it in such an

unequivocal manner so as not to give rise to doubts as to which specific

court the parties agreed was to be the proper venue.  If the parties

expressly agreed that such court would be „the venue in Brno which has

subject-matter jurisdiction over the matter“, in the Regional Court’s

view, it can be adjudged that courts „in Brno“ refers to, on the one

hand, the Municipal Court in Brno, but also that the District Court

Brno-Province, with its seat in Brno, could be meant, as both courts

have subject-matter jurisdiction in first instance to hear and decide in

the given matter.
 

To the

objection that the right to one’s lawful judge had been infringed, the

Chairman of Panel 28 Co stated that it is precisely the indefiniteness

of the prorogation agreement that has logical impact even in the sphere

of the lawful judge, and it is precisely for this reason that

prorogation agreements require an entirely unambiguous expression of

intent to select another concrete court as the proper venue.  It is

precisely the indefiniteness of the given agreement which gives grounds

for concluded that Art. 38 para. 1 of the Charter has been affected, and

in no sense on the part of the court, rather by the complainant

herself.
 

As far as concerns

the arguments relating to the violation of the equality of parties to a

proceeding, the Regional Court in Brno stated that, in its view, there

were sufficient and detailed reasons supporting the conclusion that the

prorogation agreement is indefinite (and, in consequence thereof,

invalid).  The Regional Court in Brno did not, as the appellate court in

the matter, receive from the complainant any expression of views or of

opinion to which the Court would have had to react (or take a position

upon) in the reasoning of its contested decisions.

 

With reference to all these grounds, the Regional Court in Brno proposes that the constitutional complaints not be granted.
 

In

his 9 April 2004 declaration, one of the secondary parties to the

proceeding on the constitutional complaints, Maxmilián Šimonič, waived

this status pursuant to § 28 para. 2 of the Act on the Constitutional

Court, and the other secondary parties did not give their views on the

constitutional complaints in a qualified manner within the period

prescribed by the Constitutional Court.
 

After

receiving the agreement of the parties to dispense with an oral hearing

pursuant to § 44 para. 2 of Act No. 182/1993 Sb., on the Constitutional

Court, as subsequently amended, the Constitutional Court came to the

conclusion in the proceeding that the constitutional complaints are

well-founded.
 

The

Constitutional Court has repeatedly, in its judgments nos. I. ÚS 546/03

and I. ÚS 43/04, dealt with the decision-making of the Regional Court in

Brno in the complainant’s matters, in which the complainant, pursuant

to § 89a of the Civil Procedure Code, designated in credit contracts the

proper venue for disputes under those contracts.  In consideration of

the fact that the constitutional complaints presently being heard

concern an analogous legal issue, the first panel of the Constitutional

Court continues to adhere to its original opinions, expressed in the

cited judgments.
 

The

Constitutional Court constitutes the judicial body responsible for the

protection of constitutionalism (Art. 83 of the Constitution of the

Czech Republic).  Accordingly, it does not constitute a part of the

ordinary courts, neither is it, in relation to them, a superior

instance.  The Constitutional Court’s task is to review the ordinary

courts‘ decisional activity, however, only in the circumstance where, by

their decisions, they have encroached upon constitutionally protected

fundamental rights and basic freedoms of the individual.  That means

that the Constitutional Court is not entitled to intervene into the

ordinary courts‘ decisional activity in each case in which there has

been a violation of ordinary legality or of some other incorrect

decision which, in its essence, resides on the plane of ordinary law.
 

It

follows from the Constitutional Court’s constant jurisprudence, the

circumstances under which it can be considered that the incorrect

application of ordinary law by ordinary courts results in the violation

of fundamental rights and basic freedoms (compare judgment in the matter

. III. ÚS 224/98 in The Constitutional Court of the Czech Republic,

Collection of Judgments and Rulings, Vol. 15, p. 98).  The fundamental

rights and basic freedoms operate in the field of ordinary law as

regulative ideas, on account of which the complex of norms of ordinary

law are, by content, intimately bound up therewith.  The violation of

certain of these norms, in consequence in particular of arbitrariness

(for example, the failure to respect mandatory norms) or as the result

of an interpretation which is in extreme conflict with the principles of

justice (for example, excessive formalism), then also gives rise to a

greivance respecting fundamental rights and basic freedoms.  In other

words, apart from the flagrant disrespect of mandatory norms, excessive

formalism in the interpretation of the norms of ordinary law is also one

of the conditions for the Constitutional Court to intervene into the

decision-making of ordinary courts and the application of ordinary law.
 

The

Constitutional Court has deduced from the content of certain of these

constitutional complaints that the given case is just such a case;

therefore, it addressed the issue whether the Regional Court in Brno, by

its interpretation and application of ordinary law, encroached upon the

complainant’s constitutionally guaranteed fundamental rights.
 

A

basic attribute of a law-based state (Art. 1 para. 1 of the

Constitution of the Czech Republic) is the protection of individual

fundamental rights, upon which state authorities are entitled to

encroach only in exceptional cases, especially where the individual has

intruded upon the rights of others (including by manifestations of the

will which are reflected in concrete conduct) or to the extent that such

intrusion is justified by a certain public interest, which nonetheless

must result, in specific cases, in a proportionate limitation upon the

fundamental right in question.  In other words, a condition of the

proper operation of a law-based State is the State’s respect for the

autonomous sphere of the individual, who enjoys protection on the part

of the State such that, on the one hand, the State ensures such

protection against intervention by third parties and, on the other hand,

the State itself engages in only such actions as would not encroach

upon this sphere, or would do so only in cases where such is warranted

by a certain public interest and where such encroachment is

proportionate in respect of the aim which is meant to be attained.
 

The

individual right to the autonomy of the will, that is in consequence of

the liberty of the individual, is one of the expressions of, and

institution guarantees of, these principles.  To the extent it aspires

to be an authority with the attributes of a law-based State, it is

encumbent upon state authority to recognize the autonomous

manifestations of individual will, as well as the conduct corresponding

thereto, if such conduct filfills the above-described conditions (above

all, the nonintrusion upon the rights of third persons).  In such cases,

state authority must respect or approve such manifestations of the

individual only to the extent that such conduct might possibly call into

being further legal consequences.
 

The

autonomy of the will and individual liberty of action guaranteed on the

constitutional level by Art. 2 para. 3 of the Charter of Fundamental

Rights and Basic Freedoms.  Art. 2 para. 3 of the Charter must be

understood in a double sense.  In its first dimension it represents a

structural principle, according to which state authority may be asserted

in relation to the individual and her autonomous sphere (including

autonomous manifestations of the will) solely in cases where an

individual’s conduct violates an explicitly formulated prohibition laid

down in law.  However, such prohibition must, in addition, reflect

solely the requirements consisting in preventing the individual in

encroaching upon the rights of others and in the attainment of the

public good, provided that such restriction upon the individual liberty

of action is legitimate and proportional.  Such principle must, then, be

conceived of as an essential attribute of every democratic law-based

state (Art. 1 para. 1 or the Constitution of the Czech Republic).  Art. 2

para. 4 of the Constitution of the Czech Republic has a like content.
 

In

its second dimension, Art. 2 para. 3 of the Charter operates as an

individual right to the respect by state authorities of the autonomous

manifestation of one’s personhood (including manifestations of the

will), which are reflected in a person’s specific conduct, to the extent

that such conduct is not expressly prohibited by law.
 

Such

a conception of Art. 2 para. 3 of the Charter merely expresses the fact

that, in the substantive law-based state, the individual and his

liberty of action always take priority over state power realized in

statutes.  Should the individual not have the opportunity directly to

invoke this priority, such priority would be a mere formal declaration. 

Such a proclamation of objective principle is, after all, easily

erodible by the legislative activity of the legislative body, which is

otherwise substantiated, for example, by the French Declaration of the

Rights of Man and Citizens, which on the European continent was the

ideological model for the enactment of human rights into positive law,

V. Klokočka („The entire profundity of the Declaration, contained in the

introductory text, which gives a vivid picture of ‚natural,

inalienable, and sacred human rights‘, was eclipsed by the competence of

parliament“, compare Klokočka, V., Constitutional Systems of European

States, Linde Publishers, Prague 1996, p. 273).
 

The

free sphere of the individual and its direct constitutonal guarantee in

the form of an enforceable individual right are conditiones sine qua

non of the material law-based state, which is erected upon respect for

the fundamental rights of the individual.  The individual’s right to the

respect for his or her autonomous and free sphere actually operates as a

constant placed before the bracket in which are found particular

specified fundamental rights put into positive law form in reaction to

the massive infringement of them by authoritarian or totalitarian

regimes.  The need to formulate particular fundamental rights has, as a

historical matter, always been conditioned as a reaction to the massive

infringement in a certain field of individual freedom, from which

specific fundamental right emerged (see Hayek, F. A., Law, Legislation

and Freedom, Part 3, Academia, Prague 1991, p. 96).  This fact is

apparent from the evolution of catalogues of fundamental rights;

otherwise, the taxonomy of the Charter of Fundamental Rights and Basic

Freedoms is constructed upon the same logic as well.
 

State

authorities thus also commit an infringement of this right to the

extent that, by a formalistic interpretation of the the norms of

ordinary law, they deny the autonomous manifestation of intent of

parties to a contract the consequences which, by that manifestation, the

contractual parties intended to bring about in their legal spheres.
 

After

assessing all circumstances of the case, the Constitutional Court came

to the conclusion that the given case concerns such a legal situation

where the ordinary court interpreted in an excessively formalistic

manner the provisions of the Civil Code concerning the rules for

interpreting legal transactions and also engaged in formalism in

interpreting the relevant provisions of the Civil Procedure Code, which

gave rise to further legal consequences for the status of the

complainant and the secondary party as regards access to the courts.
 

Under

§ 35 para. 2 of the Civil Code, legal transactions expressed in words

shall be interpreted not only in accordance with their verbal

formulation, but also particularly with regard to the intention of the

person who performed the legal transaction, provided that such intention

is not inconsistent with the expressed wording.  Under § 37 para. 2 a

contrario a legal transaction is invalid if it is not made definitely

and comprehensibly.  Then § 89a of the Civil Procedure Code enables the

parties to legal relations to agree, by the expression of their intent,

that the proper venue to hear their disputes will be an ordinary court

other than the court designated by the fixed rules of the Civil

Procedure Code for those parties.
 

It

is evident that the above-stated principle of the autonomy of the will,

in accordance with which individuals must be granted space in which

they alone designate the extent of their rights and duties, radiate into

all of the cited provisions; further, their expression of intent must

be given priority over the mandatory wording of statutes.
 

In

its second dimension, in which it operates as an individual fundamental

right, Art. 2 para. 3 must be applied immediately and directly.  In

this dimension it does not merely radiate through ordinary law, rather

it is an individual right which operates directly in relation to state

authority.  Thus, when state bodies apply ordinary law, they are also

obliged to interpret the norms of that law, in which Art. 2 para. 3 of

the Charter and Art. 2 para. 4 of the Constitution of the Czech Republic

are reflected as objective constitutional principles, in such a manner

that they do not encroach upon the right of the individual to the

autonomy of his will, which is guaranteed by the second dimension of

Art. 2 para. 3.  In other words, in interpreting the above-cited

provisions of ordinary law, the ordinary court must do so in such a

manner that they do not, by means of a formalistic interpretation of

legal norms, encroach upon the right of the individual to do anything

which he is not by law expressly prohibited from doing and to not be

compelled to do that which is not expressly imposed upon him by law. 

This applies as well for norms governing the interpretation of the

manifestation of individual will, where formalism in the interpretation

of the legal norm itself can be deduced from formalism consisting in the

mere interpretation of the contractual text without regard to the aim

of the transaction consisting in the intent of the parties to the

contractual relation, which the court puts into effect when

interpretating an individual‘s legal transaction.
 

In

the instant case, the Regional Court in Brno interpretated the

expressed intent of both the complainant and the secondary party such

that, without even affording the parties the opportunity to give their

views on the matter, it designated their intent as indefinite.  It found

the cause of the indefiniteness in the fact that there are two courts

in Brno having subject-matter jurisdiction in the case (the Municipal

Court in Brno and the District Court, Brno-Province).  In the ordinary

court’s view, an intent expressed in such an indefinite manner gives

rise to the invalidity of the prorogation clause, in consequence of

which it declined to recognize the outcome which, by their expressed

intent, the parties wished to bring about.
 

As

the Constitutional Court has ascertained from a copy of the credit

contracts entered into by the complainant and the secondary parties, the

parties to the contracts agreed that in the resolution of any disputes

arising between them in connection with the credit contracts, including

disputes which would emerge in consequence of claims arising on the

basis of the termination of a credit contract, „the proper venue“ shall

be „the court in Brno which has subject-matter jurisdiction over the

matter“.  In the Constitutional Court’s view, it is evident therefrom

that the contracting parties intended to derogate from the relevant

provisions of the Civil Procedure Code on ordinary court venue and

designate a different court as the proper venue, such that the court

with venue would be the court situated in Brno.  This means that the

parties were aware of the fact that any disputes between them would be

heard by the court in Brno having subject-matter jurisdiction.  In other

words, the parties agreed upon designating the court in Brno as the

proper venue.  Such manifestation of intent can also be interpreted in

such a way that both parties to the contractual relations were aware of

the fact that they had designated the proper venue for the hearing of

disputes between them in such a manner that it would always be the

complainant’s ordinary court, regardless of whether, in any particular

dispute, she would be the plaintiff or defendant.
 

As

the Constitutional Court has already held in its judgments I. ÚS 546/03

a I. ÚS 43/04, it does not agree with the formalistic approach of the

Regional Court in X, the main aim of which is evidently to eliminate for

the future the situation where it would be the proper venue and proper

instance to hear all disputes arising from the complainant’s loan

agreement, or for any appeal in such matters.  The Constitutional Court

does not regard it as essential to distinguish between the formulations

“the court having venue in Brno” and “the court having venue for Brno”. 

In the Constitutional Court’s view the decisive factor is, above all,

the fact that, with this formulation, the parties to the contract

referred to the venue, which is always determined by the appropriate

judicial district, and not by the place in which a court is located. 

Further, as indicated above, the parties expressed their intent to

construe the term, proper venue, such that it would always be the

complainant’s ordinary court.  However, the Constitutional Court sees no

point in repeating the approach used by the ordinary court, when

interpreting the expressed intent of the parties to the credit contract,

with the aim of refuting the interpretation supported thereby, for that

is not the Constitutional Court’s task.
 

By

means of the interpretation which the ordinary court espouses and which

is strictly a grammatical interpretation, the ordinary court

incorrectly applied the provisions of ordinary law (§ 35 para. 2 of the

Civil Code and § 89a of the Civil Procedure Code), which implement and

institutionalize the operation of the autonomy of the individual will,

in consequence of which it encroached upon the complainant’s rights

guaranteed by Art. 2 para. 3 of the Charter.  The Regional Court in Brno

committed such an infringement due to the fact that it did not

sufficiently take into consideration the jointly-expressed intent of the

subjects of a legal relation, which it interpreted merely formally from

a grammatical interpretation of the text of the contractual arrangement

(§ 35 para. 2 of the Civil Code), and also by an interpretation of §

89a of the Civil Procedure Code which restricted the impact of the

autonomy of the will in determining the ordinary court that will be the

proper venue in a civil proceeding.
 

As

a subsidiary argument, the Constitutional Court cites the facts which

emerge from statistical data which it had already requested from the

Chairwoman of the Municipal Court in Brno when hearing constitutional

complaint no. I. ÚS 546/03.  It emerged therefrom that on 17 December

2003 that court issued in the complainant’s matter 8001 payment orders

(Register Ro), 4478 of which have become final.  In the context of

hearing the actions (Register C), the court, as the proper venue

pursuant to § 89a of the Civil Procedure Code, decided on 99 actions (40

of them finally) and on 190 further actions by declaring it was not the

proper venue.
 

As the

Constititonal Court has already stated, in no sense does it call into

doubt the principle of the independence of courts and judges;

nonetheless, it is of the view that it is in accord with the principle

of legal certainty for the same court to proceed in the same manner even

in different matters having, however, an identical legal basis

(prorogation clause pursuant to § 89a of the Civil Procedure Code).  In

the Constitutional Court’s view, any possible threatened increase in the

number of matters coming into being in the case of a particular party,

who entered into, with a large number of subjects, contractual relations

in which the proper venue for the matter was agreed upon identically in

a manner departing from the fixed rules laid down in the Civil

Procedure Code, cannot be resolved at the price of intruding upon an

individual’s fundamental rights as a party to a judicial proceeding.
 

By

its infringement of the fundamental right under Art. 2 para. 3 of the

Charter, the ordinary court gave rise, in addition, to an encroachment

upon the right to one’s statutory judge, under Art. 38 para. 1 of the

Charter.  In consequence of the fact that the court withheld its

approval of the autonomous manifestation of the will agreeing upon court

venue pursuant to § 89a of the Civil Procedure Code, it also intruded

upon the right to one’s statutory judge.
 

For

the above-stated reasons, the Constitutional Court, due to the

infringement of Arts. 2 para. 3, 38 para. 1 of the Charter, and Arts. 1

para. 1 and 2 para. 4 of the Constitution of the Czech Republic, has

granted the constitutional complaints pursuant to § 82 para. 2 lit. a)

of Act No. 182/1993 Sb., on the Constitutional Court, as subsequently

amended, and, pursuant to § 82 odst. 3 písm. a) of the cited Act,

quashed the contested decisions of the Regional Court in Brno.

Notice: A Constitutional Court decision may not be appealed.

Brno, 12 May 2004