2006/07/13 - I. ÚS 85/04: Non-Pecuniary Damage Compensation

13 July 2006

HEADNOTES

The

Constitutional Court considered the question of compensation for

non-pecuniary damage as part of the compensation of damages whose scope

is generally formulated in § 442 par. 1 of the Civil Code in judgment

file no. Pl. ÚS 16/04 (promulgated as no. 265/2005 Coll.). It concluded

that the current legislative concept of damage as pecuniary damage does

not permit such an interpretation, although it does not rule out an

individual seeking compensation for non-pecuniary damage consisting of

interference in personality rights through protection of personality

under § 11 and § 13 of the Civil Code. However, in terms of the current

legislative framework, this is a different claim than compensation of

damage.

However, these conclusions arising from the judgment by the plenum of

the Constitutional Court must be corrected in the area of compensation

of damages for previous unlawful limitation of personal freedom, where

the claim for compensation is constructed not only in the area of simple

law, but also by the Convention on the Protection of Human Rights and

Fundamental Freedoms, in Art. 5 par. 5, which is, under Art. 10 of the

Constitution of the CR, a directly applicable norm in the domestic legal

order of the CR, and which must be given priority in application before

statutes.

Regardless of how the content of the institution of compensation of

damage is treated by the domestic legislature, the case law of the

general courts and the constitutional court, or domestic civil doctrine,

in domestic application of the Convention one must start with the

concept of compensation of damage as it is treated by the national

European constitutional courts and supreme courts, whose case law gives

rise to the case law of the ECHR. As regards specifically state

liability for limiting personal freedom, and thus the relationship of

the domestic civil law of offenses and Article 5 par. 5 of the

Convention, the situation in individual European states is that the

classic dogmatics of civil legal institutions gave way to direct

application of Article 5 par. 5 of the Convention, which is interpreted

fully autonomously by the national courts. The Constitutional Court also

bases this position on the case law of the European Court of Human

Rights (the “ECHR”), which has consistently ruled that the Convention’s

institutions can have completely autonomous content and a scope not

dependent on their legal classification under domestic law.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 
The

Constitutional Court decided, on 13 July 2006, without a hearing,

without the presence of the parties, in a Panel composed of Chairman

František Duchoň and judges Vojen Güttler and Eliška Wagnerová (judge

rapporteur) in the matter of a constitutional complaint from J. Ch.,

represented by JUDr. L. M., attorney, against decisions by the Supreme

Court of the CR of 25 November 2003, file no. 25 Cdo 1727/2003, by the

Municipal Court in Prague of 31 October 2002, file no. 22 Co 421/2002,

and by the District Court for Prague 2 of 21 March 2002, file no. 14 C

113/2001, with the participation of the Supreme Court of the CR, the

Municipal Court in Prague, and the District Court for Prague 2, as

parties to the proceedings, as follows:


I.

The decisions of the Supreme Court of the CR of 25 November 2003, file

no. 25 Cdo 1727/2003, of the Municipal Court in Prague of 31 October

2002, file no. 22 Co 421/2002, and of the District Court for Prague 2 of

21 March 2002, file no. 14 C 113/2001, violated the petitioner’s

fundamental right guaranteed by Art. 5 par. 5 of the Convention for the

Protection of Human Rights and Fundamental Freedoms.

II. Therefore, those decisions are annulled.

 


REASONING


I.
 

In

his constitutional complaint, which met all the requirements of content

and form specified by Act no. 182/1993 Coll., on the Constitutional

Court, as amended by later regulations (the “Act on the Constitutional

Court”), the petitioner contested the decisions by the general courts

specified in the introduction.
 

The

decision by the District Court for Prague 2 denied the complaint

against the Czech Republic – the Ministry of Justice – in which the

petitioner sought payment of the amount of CZK 304,356 on the grounds of

state liability for damage caused by an unlawful decision and incorrect

official procedure under Act no. 58/1969 Coll. The decision by the

Municipal Court in Prague confirmed the decision of the trial court. The

contested decision by the Supreme Court of the CR denied the

petitioner’s appeal in the amount of CZK 36,140, and rejected the

remainder of it as impermissible.
 

As

the petitioner described in more detail in the constitutional

complaint, he sought payment of the abovementioned amount as

compensation of damage for a prison sentence that he served, on the

following grounds. A decision by the District Court in Kolín of 10 July

1991, file no. 1 T 68/91, sentenced the petitioner, for the crime of

evading civil service, under § 272c par. 1 of the Criminal Code, to a

non-suspended prison sentence of 6 months. The decision by the Regional

Court in Prague of 27 August 1991, file no. 5 To 295/91, changed the

sentence to a suspended one. A decision by the District Court in Kolín

of 10 April 1992, file no. 1 T 8/92, sentenced the petitioner again, for

the same crime, to a non-suspended prison sentence of 8 months. Thus,

on that basis, by decision of the District Court in Kolín of 5 October

1992, file no. 1 T 68/91, i.e. in the first trial, the originally

imposed suspended sentence was changed into a non-suspended sentence.

The petitioner served both sentences.
 

The

Minister of Justice filed a complaint about violation of the law

against the second conviction in favor of the petitioner, which the

Supreme Court of the CR, in its decision of 25 April 1996, file no. 2

Tzn 10/96, decided by giving an academic verdict that declared merely a

formal violation of the law (according to the Supreme Court of the CR,

instead of the definition under § 272c par. 1 of the Criminal Code, the

definition under § 272d par. 3 of the Criminal Code should have been

used) and not annulling the contested decision. Based on a

constitutional complaint from the petitioner, the decision of the

Supreme Court of the CR was annulled by Constitutional Court judgment of

20 March 1997, file no. I. ÚS 184/96, on the grounds of violating the

principle “ne bis in idem.” However, in new proceedings the Supreme

Court of the CR did not respect the legal opinion of the Constitutional

Court, and again made the same decision. Constitutional Court judgment

of 2 April 1998, file no. III. ÚS 425/97, annulled this decision of the

Supreme Court of the CR as well, on the grounds that it violated the

binding nature of the Constitutional Court’s judgments under Art. 89

par. 2 of the Constitution of the CR. In its decision of 25 August 1999,

file no. 4 Tz 102/98, the Supreme Court of the CR finally granted the

complaint about violation of the law, and annulled the decision of the

District Court in Kolín of 10 April 1992, file no. 1 T 8/92, the

decision of the Regional Court in Prague of 16 June 1992, file no. 5 To

188/92, and “all other decisions connected to the content of this

decision, if, in view of the change caused by annulling it, they have

lost their foundation.” The Supreme Court of the CR then stopped the

criminal prosecution of the petitioner under § 11 par. 1 let. f) of the

Criminal Procedure Code.
 

As

the petitioner stated, on the one hand he was satisfied with this

decision, because it definitively stopped his second criminal

prosecution, but on the other hand he believed that the decision’s

verdict is indefinite, insofar as it did not expressly specify which

particular decisions can be considered connected in content, given the

existence of the decision by the District Court in Kolín of 5 October

1992, file no. 1 T 68/91, which, in connection to the annulled

decisions, changed the sentence in the first trial from a suspended

sentence to a non-suspended sentence. Because of this, he again filed a

constitutional complaint against the decision of the Supreme Court of

the CR, which was denied by Constitutional Court decision of 15 February

2000, file no. III. ÚS 454/99, on the grounds that the contested

decision did not violate the petitioner’s rights. As regards his

concerns regarding interpretation of which decisions were annulled, for

purposes of a “damages provision,” the Constitutional Court then

concluded that such reservations are premature. In the Constitutional

Court’s opinion, only if subsequent proceedings, including the

petitioner’s intended exercise of rights to compensation, violated his

constitutionally guaranteed rights, would it be appropriate to review

legally effective decisions about them. The petitioner thus believes

that the situation foreseen in the Constitutional Court’s decision has

come to pass, because his claims were denied in the decisions now being

contested. According to the petitioner, 3 disputed questions were

addressed in these proceedings: (1.) whether a citizen who was sentenced

several years ago has a claim for compensation of lost wages, adjusted

or not adjusted for present value, (2.) whether a citizen has a right to

damages for non-pecuniary damages or just satisfaction, and (3.) which

decisions can be considered to be decisions connected in content to the

decisions expressly annulled by the Supreme Court of the CR in

proceedings on the complaint about violation of the law. The petitioner

specifically stated, that in a fair trial under Art. 6 par. 1 of the

Convention for the Protection of Human Rights and Fundamental Freedoms,

when setting compensation for lost earnings one can not use as a basis

only the earnings which the unjustly convicted person received before

imprisonment, but that this amount must be appropriately adjusted for

present value. In this case the courts refused to award the petitioner

the requested amount of CZK 5,000 per month, on the grounds that the

amount awarded, CZK 3,973 per month, corresponded to the petitioner’s

earnings at the time, and definitely exceeded the minimum wage provided

by Order no. 53/1992 Coll. as amended, i.e. CZK 2,000 per month. The

petitioner objects, however, that the price level of 1992 is completely

different from today’s, and the amount of that time, if paid out today,

has nowhere near the purchasing power that it had then. In the

petitioner’s opinion compensation of lost earnings should never be lower

than the minimum wage in effect on the date when the compensation is

paid out. The petitioner considers the fact that the courts refused to

award the petitioner compensation of adjusted wages to be violation of

Art. 4 par. 4 of the Charter of Fundamental Rights and Freedoms, because

in the petitioner’s opinion the essence and significance of the right

to damages were not preserved, when disproportionately low compensation

was awarded. As regards the claim for compensation of non-pecuniary

damage, the general courts rejected that claim, with reference to the

previous case law of the Supreme Court of the CR, which explained the

lack of justification for such a claim. However, the petitioner claims

that the European Court of Human Rights recognized a claim for

compensation of non-pecuniary damage in the case Tsirlis and Kouloumpas

v. Greece, which was analogous with the petitioner’s case (the

petitioners refused on religious grounds to perform military service,

were imprisoned for their refusal, and in further proceedings proved

that their imprisonment was unlawful). Similarly, in the case Pincová

and Pinc v. the Czech Republic, and in other cases, the ECHR awarded

petitioners compensation for non-pecuniary damage under Art. 41 of the

Convention. Therefore, the petitioner made his claim before the general

courts for compensation of non-pecuniary damage for the total period of

imprisonment, in the amount of CZK 260,000. Insofar as the claim was

denied by the contested decisions, the petitioner believes that this

violated Art. 5 par. 5, in connection with Art. 41 of the Convention.
 

Last,

but not least, in the petitioner’s opinion, Art. 36 par. 3 of the

Charter was violated by denial of the claim for compensation of damages

for the period when the petitioner served the prison sentence of 6

months on the basis of the first conviction, or on the basis of the

suspended sentence being converted to a non-suspended sentence, which

was done by decision of the District Court in Kolín of 5 October 1992,

file no. 1 T 68/91. According to the petitioner, it is a question of

evaluating whether that decision is such a decision connected in content

to the decisions that were annulled by the Supreme Court of the CR. The

petitioner believes that the decision to transform the sentence, if it

was based on the verdict which was later annulled, lost its basis, and

was de facto annulled as a connected decision. In contrast, according to

the petitioner, the general courts believe that the decision

transforming the sentence will stand independently even after the

annulment of the second conviction.
 

The

petitioner claims that this could be so only if the reason for

transforming the sentence was a fact other than the petitioner’s second

conviction. However, if the only reason for transforming the sentence

was the conviction of the petitioner by the decisions that were annulled

as being unlawful, then it is a connected decision.
 

In

the contested decision, the Supreme Court of the CR stated that a

decision connected in content can be only a decision issued in the

criminal matter in which it was stated that the law was violated.

According to the petitioner, the Supreme Court of the CR thus took such a

formalistic approach to evaluating the matter, that it ignored the

purpose of the decision by the District Court in Kolín of 5 October

1992, i.e. to comprehensively connect to the conclusions of the decision

issued in the petitioner’s second conviction.
 

Therefore,

the petitioner proposed that the Constitutional Court annul all the

contested decisions. In his supplement to the constitutional complaint

of 20 June 2006, the petitioner emphasized that in the meantime

compensation for non-pecuniary damage had been expressly enshrined in §

31a of Act no. 82/1998 Coll., as amended by Act no. 160/2006 Coll.

Compensation for non-pecuniary damage is awarded for unlawful decisions

and for incorrect official procedure. And, in the petitioner’s matter,

at least six unlawful decisions were issued that were later annulled.
 

Upon

being called to do so by the Constitutional Court, the other parties to

the proceedings provided their responses to the constitutional

complaint.
 

The panel

chairwoman of the Supreme Court of the CR stated that in the

constitutional complaint the petitioner repeats the same objections

which he raised in the appeal proceeding. In view of the fact that the

appeal was not permissible up to the amount of CZK 8,216 (the amount

requested as adjustment for present value of compensation for lost

earning), because the amount was under CZK 20,000, and the question of

compensation for non-pecuniary damage or just satisfaction was not – in

view of the previous case law – found to have fundamental legal

significance, these parts of the appeal were denied as being

impermissible. Therefore, in the contested decision the appeals court

addressed only the question of whether the decision that the suspended

prison sentenced would be served is a decision connected in content to

the annulled decision to convict in another criminal matter. The legal

opinion stated by the appeals court concerning this question corresponds

to criminal law theory and practice, and this decision did not violate

Art. 36 par. 3 of the Charter. As to details, the chairwoman referred to

the reasoning of the contested decision, or to case law in criminal

matters. In view of this, in her opinion the petitioner’s fundamental

rights were not violated, and therefore she proposed that the

constitutional complaint be denied.
 

As

regards the petitioner’s claim to adjustment of his lost earnings and

compensation for the period of the first prison sentence served, the

panel chairwoman of the Municipal Court in Prague referred to the

reasoning of the contested decisions, and also expressed the belief that

the Municipal Court duly considered the petitioner’s claim in

accordance with procedural and substantive legal regulations, and that

the reasoning adequately explained the legal conclusion on which it

based its decision. As regards the claim to compensation for

non-pecuniary damages and the reference to Art. 5 par. 5 and Art. 41 of

the Convention and the ECHR decisions, the Municipal Court stated that

at that time compensation under Art. 5 par. 5 of the Convention was

governed by Act no. 58/1969 Coll. However, neither the Charter nor the

Convention provides that this compensation means anything other than

compensation of damages. Compensation under Art. 5 par. 5 of the

Convention means “compensation,” i.e. a replacement for damage, not

“satisfaction,” i.e. satisfaction or replacement for non-pecuniary

damage. In support of these arguments, the Municipal Court in Prague

pointed to a passage from the ECHR judgment in the matter Tsirlis and

Kouloumpas v. Greece: in order for the ECHR to proceed under Art. 41 of

the Convention, there would have to be, in relation to violation of Art.

5 par. 5 of the Convention, a case where domestic law did not provide

“an enforceable claim for compensation before the domestic authorities.”

According to the Municipal Court, it was due to this absence that

Greece was sentenced to make payments; the petitioner derives his claim

from those amounts. The Municipal Court in Prague believes that under

the settled case law of the ECHR the point is that the effective

exercise of a right must be ensured in a sufficiently certain manner.

The municipal court believes that the Czech legal order meets these

requirements, both by Act no. 58/1969 Coll., which governed the

adjudicated matter, and by Act no. 82/1998 Coll. The provision of § 20

of Act no. 58/1969 Coll. expressly refers to the provisions of the Civil

Code, where, under § 442 par. 1 the petitioner has a right both to

compensation of actual damages (damnum emergens) and to lost earnings

(lucrum cesans), i.e., in the municipal court’s opinion, everything

which isconsdiered to be compensation of damages (including compensation

under Art. 5 par. 5 of the Convention), and not to compensation of

non-pecuniary damage, as the petitioner believes.
 

For these reasons the Municipal Court in Prague proposed that the Constitutional Court deny the constitutional complaint.
 

In

her position statement, the panel chairwoman of the District Court for

Prague 2 referred to the reasoning of the judgments by the trial and

appeals courts, and said that she finds the constitutional complaint to

be unjustified.
 

The

secondary party, the Czech Republic, represented by the Ministry of

Justice, did not respond to the constitutional complaint by the

specified deadline, and gave up its status as a secondary party. For

purposes of evaluating the constitutional complaint the Constitutional

Court also requested the relevant files, those being the file of the

District Court for Prague 2, file no. 14 C 113/2001, and files of the

District Court in Kolín concerning both previous criminal trials, i.e.

file no. 1 T 68/91 and file no. 1 T 8/92.
 

The

Constitutional Court determined from the reasoning of the contested

decisions that both the trial and the appeals court, in evaluating the

claims for compensation of damage, relied on § 20 of Act no. 58/1969

Coll. in connection with § 442 par. 1 of the Civil Code, i.e. the fact

that in the relevant proceedings the petitioner can be awarded actual

damages and lost profits. Lost profits, or, in the petitioner’s case,

lost earnings, is understood to mean the actual amount of earnings which

the petitioner actual received at the time of serving his sentence.

According to the general courts, one can not agree with the petitioner’s

arguments regarding adjustment of wages, if the compensation for lost

earnings is paid at any later time. The trial and appeals courts then

concluded from the definition of damages that the petitioner likewise

can not be awarded compensation for non-pecuniary damage, and, according

to the general courts, one can not by analogy apply Art. 41 of the

Convention and award the petitioner “just satisfaction.”
 

As

regards the claims connected to serving the six-month prison sentence

imposed on the petitioner per the decision to transform the suspended

sentence into a non-suspended sentence, both the trial and the appeals

courts concluded that in the first criminal proceedings the petitioner

was not cleared of the complaint, nor was the prosecution against him

stopped. Thus, the basic requirement for exercising a claim for

compensation of damages was not met, because the relevant legally

effective decision was not annulled due to unlawfulness. The decision to

transform the sentence can not then be considered a decision which is

connected in content. In deciding whether the petitioner proved himself

in the probation period under § 60 of the Criminal Code, the decisive

element is the convicted person’s behavior, not the fact that he was

convicted in different criminal proceedings. Thus, it is sufficient that

in the probation period the petitioner repeatedly engaged in the same

conduct, i.e. did not live an orderly life. According to the trial and

appeals courts, the fact that he engaged in this conduct was not

questioned even by the decision of the Supreme Court of the CR that

annulled the later decisions. The Supreme Court of the CR stated only

that criminal prosecution under § 11 par. 1 let. f) of the Criminal

Procedure Code was impermissible.
 

From

the reasoning of the contested decision by the Supreme Court of the CR,

the Constitutional Court determined that the appeals court first, for

purposes of evaluating the permissibility of the appeal, separated the

individual claims exercised by the petitioner. It partly denied the

claim due to impermissibility; it denied the part concerning the claim

arising from the request to adjust wages on the grounds that the amount

requested was under CZK 20,000, and denied the part concerning the claim

for compensation of non-pecuniary damages, with reference to the

settled case law of the Supreme Court of the CR. It then considered on

the merits only the claim connected to serving the prison sentence

imposed per the decision to transform the sentence. The decision’s

reasoning indicates that the Supreme Court of the CR concluded that the

decision to transform the sentence can not be considered a decision

connected in content. “In annulling other decisions connected in content

under § 269 par. 2 of the Criminal Procedure Code, the rule is that all

further decisions are annulled that are connected in content

(internally) to the annulled legally effective decision to convict. Even

if the law does not expressly state in that section that decisions ‘in

the same criminal matter’ are to be annulled, there is no doubt that the

statement about annulling further decisions is dependent on the

statement under § 268 par. 2 of the Criminal Procedure Code, i.e. the

statement that said that the reviewed decision violated the law. It is

clear from these provisions that only those decisions are annulled that

were issued in the criminal matter in which it was ruled that the law

had been violated.” Therefore, the Supreme Court of the CR concluded

that “if the decision file no. 1 T 68/91 sentencing the petitioner to a

prison sentence of 6 months was not annulled, then neither can the

subsequent (and related to this decision in content) decision of the

court, file no. 1 T 68/91, stating that the defendant shall serve a

prison sentence of 6 months … .”
 

From

the decision by the District Court in Kolín of 5 October 1992, ref. no.

1 T 68/91-76, the Constitutional Court determined that it decided,

under § 60 par. 1 of the Criminal Procedure Code, as amended, that the

defendant would serve a prison sentence of 6 months. The reasoning of

the decision states: “As the court determined from the file 1 T 8/92 of

the District Court in Kolín, the defendant was sentenced again for

conduct engaged in from 11 July 1991 and ending on 10 April 1992 to a

non-suspended prison sentence of eight months, for a crime under §

272c/1 of the Criminal Code.”
 


II.
 

The

Constitutional Court first had to consider whether the constitutional

complaint was permissible (§ 75 par. 1 a contrario of the Act on the

Constitutional Court, in the version before it was amended by Act no.

83/2004 Coll.) and whether it was filed on time as regards all the

contested decisions (§ 72 par. 2 of the Act on the Constitutional Court,

in the version before it was amended by Act no. 83/2004 Coll.). This is

because the decision by the Supreme Court of the CR led to separate

evaluation of the petitioner’s individual claims, and part of the

petitioner’s appeal was considered impermissible, with reference to §

237 par. 2 let. a) of the CPC and § 237 par. 1 let. c) of the CPC. In

that situation, the Constitutional Court could conduct constitutional

law review only of those parts of the claims that the Supreme Court

considered on the merits, or where it denied the appeal on the grounds

that it did not find the issue to be of fundamental legal significance

(cf. the Constitutional Court announcement published as no. 32/2003

Coll., inserted into § 72 par. 4 and § 75 par. 1, the sentence after the

semi-colon, of the Act on the Constitutional Court, with effect as of 1

April 2004). The constitutional complaint against the remaining parts

of the claims would be, as regards the verdict of the trial and appeals

courts, as a result of impermissibility of the appeal ex lege [§ 237

par. 2 let. a) of the CPC ] filed after the deadline specified by law.
 

Nonetheless,

the Constitutional Court has already in the past deemed such actions by

the Supreme Court of the CR to be inconsistent with the right to a fair

trial, when, as a result of division of individual claims, it happens

that each is subject to a different procedural regime (cf. the judgment

in the matter file no. II. ÚS 117/04, as yet unpublished, available in

electronic form at www.judikatura.cz). Such action by the Supreme Court

of the CR is also inconsistent with the principle of foreseeability of

law, because a party to the proceedings, when filing an appeal, can not

with any certainty predict how the claim will be structured by the

Supreme Court of the CR and therefore for which part he must, because

the appeal is impermissible, file a constitutional complaint against the

decision of the appeals court.
 

In

view of this, the Constitutional Court could not accept such action by

the Supreme Court of the CR, and therefore it considered the

constitutional complaint to be permissible and timely filed in its full

scope.
 


III.
 

The

Constitutional Court, in accordance with § 44 par. 2 of the Act on the

Constitutional Court, requested consent from the parties to the

proceedings to waive a hearing, because it concluded that a hearing

could not be expected to further clarify the matter.
 

After

conducting its proceedings, the Constitutional Court then concluded

that the constitutional complaint is justified, both in the part of

objections to the general court’s conclusions that it is impossible to

award the petitioner compensation of non-pecuniary damage, and in the

part of objections to the decision not to award damages for serving the 6

month prison sentence that the petitioner was given by the decision to

transform the original suspended sentence in the first criminal

proceedings.
 


IV.
 

First

of all, the Constitutional Court states that is the judicial body for

protection of constitutionality (Art. 83 of the Constitution of the CR).

Therefore, it is not party of the general courts, and is not above them

in their hierarchy. The task of the Constitutional Court is to review

the decision making activity of the general courts, but only in

situations where their decisions interfere in the constitutionally

guaranteed fundamental rights and freedoms of individuals.
 

This

indicates that the Constitutional Court’s point of reference is not

simple law, but the constitutionally guaranteed fundamental rights

arising both from the Charter of Fundamental Rights and Freedoms and

from international treaties on human rights and fundamental freedoms. As

the Constitutional Court has already stated many times, fundamental

rights and freedoms in the area of ordinary law function like regulatory

ideas, which is why the complexes of ordinary law norms are tied to

them in terms of content. The interpretation and application of the

norms of ordinary law can not be performed completely autonomously, that

is without regard to the protection of an individual’s fundamental

rights arising from the norms of the constitutional order of the CR.
 

The

Constitutional Court evaluated the contested decisions by the general

courts from these points of view, and concluded that their conclusions

regarding evaluation of the petitioner’s claims for compensation of

non-pecuniary damage and damage for serving a 6 month prison sentence

will not stand in light of protection of the petitioner’s fundamental

rights.
 


A.
 

The

reasoning of the contested decisions indicates that the general courts

denied the petitioner’s claim to compensation of non-pecuniary damage

because the applied statute, Act no. 58/1969 Coll., just like Act no.

82/1998 Coll., is based on the requirement of compensation of pecuniary

damage, which, under § 442 par. 1 of the Civil Code, is understood to

mean actual damage (damnum emergens) and lost profits (lucrum cessans).

The general courts also concluded that this framework is consistent with

Art. 5 par. 5 of the Convention, i.e. it represents the implementation

of a claim to compensate a person whose personal freedom was restricted

in conflict with Art. 5 par. 1 to 4 of the Convention.
 

In

its decisions, the Constitutional Court has already formulated the

belief that criminal prosecution and the sentence arising from it are

serious interference in an individual’s freedom, and also lead to other

negative consequences for an individual’s personal life and destiny

(most recently, cf. judgment file no. IV. ÚS 335/05, as yet unpublished,

available in electronic form at www.judikatura.cz). Criminal

prosecution and serving a sentence thus interfere in an individual’s

private life, in his honor and good reputation, i.e. they are also

capable, in addition to violating the right to personal freedom

guaranteed in Art. 8 par. 1 of the Charter, of restricting or violating

the individual’s right to respect for and protection of his private and

family life, dignity, personal honor, and good reputation, as guaranteed

in Art. 10 of the Charter. Thus, it is indisputable that criminal

prosecution, or serving a sentence, that was implemented in conflict

with the law, or the constitutional order of the CR, can lead to ,

besides material damages (the value by which the injured party’s assets

were reduced or by which possible increase of property was reduced) the

creation of non-pecuniary damage.
 

The

Constitutional Court considered the question of compensation for

non-pecuniary damage as part of the compensation of damages whose scope

is generally formulated in § 442 par. 1 of the Civil Code in judgment

file no. Pl. ÚS 16/04 (promulgated as no. 265/2005 Coll.). In that

decision the Constitutional Court specifically considered the question

of whether that provision, defining the compensation of damages, can be

interpreted so that it could also include a claim for compensation of

non-pecuniary damage consisting of the killing of a close relative. It

concluded that the current legislative concept of damage as pecuniary

damage does not permit such an interpretation, although it does not rule

out an individual seeking compensation for non-pecuniary damage

consisting of interference in personality rights through protection of

personality under § 11 and § 13 of the Civil Code. However, in terms of

the current legislative framework, this is a different claim than

compensation of damage.
 

In

this regard, the Constitutional Court then appealed to the legislature,

and stated that from a legislative standpoint it would be more correct

to abandon the existing concept of damage as property damage and

consider damage to also include damage caused by effects on the bodily

and spiritual integrity of the injured party. As the Constitutional

Court noted, this concept is also in line with the principles of

European law on offences, which define damage as property or

non-property damage. These principles, although they are based in

private initiative, have a significant effect on the legislation of

European states, which have gradually been adapting to this concept.

However, in that decision the Constitutional Court confirmed that de

lege lata claims for compensation of non-pecuniary damage are

exercisable not as compensation of damage, whose the components are

defined by § 442 par. 1 of the Civil Code, but through protection of

personality under § 11 and § 13 of the Civil Code.
 

However,

these conclusions arising from the judgment by the plenum of the

Constitutional Court must be corrected in the area of compensation of

damages for previous unlawful limitation of personal freedom, where the

claim for compensation is constructed not only in the area of simple

law, but also by the Convention on the Protection of Human Rights and

Fundamental Freedoms, in Art. 5 par. 5, which is, under Art. 10 of the

Constitution of the CR, a directly applicable norm in the domestic legal

order of the CR, and which must be given priority in application before

statutes.
 

This approach

must generally be chosen when the grounds for compensation of damages

are punishable conduct by an individual or legal entity, i.e. conduct

which is inconsistent with the law, with good morals, with public order.

Authoritative determination of such conduct is much more dependent on

cooperation by the state, compared to a situation involving compensation

of damages on the grounds of violation of contractual provisions. So,

for example, the German Constitutional Court (BVerfG), in its decision

of 15 January 1958 (BVerfGE 7, pp. 198, 206) declared that the civil law

of offenses belongs to “those legal norms of private law which contain a

mandatory legal framework, and therefore are part of the ordre publique

in the wider sense, i.e. that they contain principles which apply to

private law relationships on the grounds of public interest, and

therefore their applicability is not subject to private arrangements.

Thanks to their purpose, these provisions are not as closely related to

public law, but are a direct supplement to public law. Therefore, these

provisions must be especially open to the influence of constitutional

law.”
 

The Greek Supreme

Court (Areios Pagos) also did not hesitate to turn directly to the

constitution when dealing with compensation of damages due to punishable

conduct. In one of its decisions [Areios Pagos 81/1991, EllDik 32

(1991), p. 1215], referring to Article 5 of the Greek constitution, it

stated that “the fundamental principle, under which every action or

failure to act which results in culpable causation of damage binds the

damaging party to compensate the damage, not only if his action or

failure to act violates a particular legal provision, but also if it

violates the general spirit of our legal system, which requires that the

conduct of commercial actions may not lead to a breach of the public

order.”
 

As regards

specifically state liability for limiting personal freedom, and thus the

relationship of the domestic civil law of offenses and Article 5 par. 5

of the Convention, the situation in individual European states is that

the classic dogmatics of civil legal institutions gave way to direct

application of Article 5 par. 5 of the Convention, which is interpreted

fully autonomously by the national courts. So, for example, the

Netherlands Supreme Court (Hoge Raad), in one case directly relied on

Art. 5 par. 5 of the Convention and found the state liable for the

conduct of a state prosecutor, involving flawed interpretation of a

statutory provision (HR 11 October 1991, NedJur 1993, No. 165, p. 516).
 

The

German Supreme Court (BGH), in an older decision (BGH 31 January 1966,

BGHZ 45, p. 58), evaluated a claim based on Art. 5 par. 5 of the

Convention as “a case of objective [state] liability requiring illegal

conduct [by it].” The current German and Austrian supreme courts’ case

law (BGH 26 November 1992, VersR 1993, p. 972, 975-6; OGH 7 October

1992, ÖJZ 1993, p. 276) awards, without anything further, compensation

for pain and suffering, directly applying Art. 5 par. 5 of the

Convention.
 

The Danish

Western Court of the first level went so far as to, in the case of a

person erroneously imprisoned for seven years, granted the person’s

claim by awarding compensation for damages in an amount equivalent to

300,000 pounds for the injustice suffered (VLD 24 June 1994, UfR 1994 A,

p. 751).
 

The

abovementioned examples show that the state liability for a limitation

of personal freedom of an individual by judicial authorities that is in

any way flawed is penalized by court case law through awarding

compensation of non-material damages to the person, regardless of the

domestic legal framework, because domestic courts directly apply Art. 5

par. 5 of the Convention. Therefore, the Constitutional Court sees no

reason not to take this European legal opinion into consideration.
 

The

Constitutional Court also bases this position on the case law of the

European Court of Human Rights (the “ECHR”), which has consistently

ruled that the Convention’s institutions can have completely autonomous

content and a scope not dependent on their legal classification under

domestic law. So, or example, the ECHR approached the interpretation of

the content and scope of property rights which enjoy protection under

Art. 1 of the Protocol to the Convention, and whose content and scope

need not be identical with the concept of property rights under the

legal systems of the parties to the Convention (cf., e.g., the decision

of the Grand Chamber of 5 January 2000, Beyeler v. Italy, 33202/96: §

100, or the decision by the First Section of 19 June 2001, Zwierzyński

v. Poland, 34049/96: § 63 or the decision by the Grand chamber of 22

June 2004, Broniowski v. Poland, 31443/96: § 129).
 

Regardless

of how the content of the institution of compensation of damage is

treated by the domestic legislature, the case law of the general courts

and the constitutional court, or domestic civil doctrine, in domestic

application of the Convention one must start with the concept of

compensation of damage as it is treated by the national European

constitutional courts and supreme courts, whose case law gives rise to

the case law of the ECHR. Thus, without regard for the anachronism of

the Czech legal framework which the Constitutional Court accepted in the

abovementioned judgment, and only called on the legislature to

harmonize domestic legislation with the European understanding of the

law of offenses, this concept of damage and compensation can not be

extended to interpreting the Convention’s norms.
 

Yet,

the ECHR case law understands damage as pecuniary damage and

non-pecuniary damage, including in interpretation and application of a

claim for compensation of damage under Art. 5 par. 5 of the Convention

(cf. Repík, B.: Evropská úmluva o lidských právech a trestní právo [The

European Convention on Human Rights and Criminal Law]. Orac, Praha 2002,

p. 253: “Of course, a requirement for a claim is that damage has been

incurred which is in a causation relationship with violation of Art. 5

par. 1 to 4. Thus, the damage compensated is material as well as

non-material, moral, e.g. injury to reputation, moral hardship, more

difficult social functioning, etc.”). In interpreting Art. 5 par. 5 of

the Convention, the ECHR in relevant decisions takes as its starting

point that the demand for compensation covers both material damage and

non-material damage (“pecuniary or non-pecuniary damage to compensate”,

cf. the decision Wassink v. The Netherlands, par. 38). In the decision

Tsirlis and Kouloumpas v. Greece the ECHR found it was a violation of

Art. 5 par. 5 of the Convention that Greece did not provide the

petitioners any compensation for the limitation of their personal

freedom that was implemented inconsistently with Art. 5 par. 1 let. a)

of the Convention. In that decision, the ECHR expressly stated that “The

Court observes that Mr. Tsirlis and Mr. Kouloumpas spent thirteen and

twelve months, respectively, in what was unlawful detention. … The very

fact of their deprivation of liberty must have produced damage of both

pecuniary and non-pecuniary nature” (cf. par. 80 of the decision). The

Greek domestic legislation contained Art. 540 par. 1 of the Criminal

Code, which expressly provided the obligation to compensate non-material

damage as well (cf. par. 48 of the decision: “Article 540 para. 1:

Persons who have been unfairly … detained on remand must be compensated

for any pecuniary loss they have suffered as a result of their

detention. They must also be compensated for non-pecuniary loss…”).
 

In

the decision Shilyayev v. Russia, although the ECHR did not find

violation of Art. 5 par. 5 of the Convention, nonetheless, it cited as

decisive criteria for evaluating the specific amount of damage, the

nature of the matter, the total length of deprivation of liberty, and

consequences affecting the petitioner’s personal sphere (“the nature of

the criminal case against him, total length of his detention and

personal after-effects,” cf. par. 21 of the decision).
 

Thus,

it is indisputable that in the context of application of the

Convention, whether at the national or European level, the concept of

damage is understood as both pecuniary and non-pecuniary damage.
 

This

conclusion can also be supported by historical interpretation of the

Czech legal framework. On 27 April 2006 Act no. 160/2006 Coll. went into

effect, which amended Act no. 82/1998 Coll., on Liability for Damage

Caused During the Exercise of State Authority by a Decision or Incorrect

Official Procedure, as amended by later regulations. This Act inserted

into the Czech legal order a claim for compensation of non-pecuniary

damage, which was incurred as the result of an unlawful decision or

incorrect official procedure. The background report to the Act clearly

indicates that the legislature was motivated, among other things, by

deficiencies in the domestic framework in relation to Art. 5 par. 5 of

the Convention. The background report states: “Thus, not one of these

[previous] amendments to the law concerned the essential problem which

relates to compensation of damages in the case of non-pecuniary

(non-material) damage. This concept is not unknown in the Czech legal

order, because, e.g. § 43 of the Criminal Procedure Code speaks of moral

or other (in this sense, non-material) damage caused by the perpetrator

of a crime to the victim ... Likewise, theory (just like many foreign

legal systems) knows this concept, and gives it the meaning of damage

other than pecuniary (material), i..e moral, conceptual, non-pecuniary

damage (e.g., in French law, “le dommage moral”), for which the victim

is entitled to monetary – pecuniary – satisfaction (compensation). This

non-pecuniary damage may be part of injury to health (e.g. pain, more

difficult social involvement) or may arise from violation of a right …

The amendment of Act no. 82/1998 Coll. aims to cover that second

component of non-property damage. Even if the non-material detriment is

defined separately from damage as such (i.e. separately from material

damage), the provisions of the law regarding compensation of damage

apply to it fully.”
 

As

regards the deficiencies of the previous legal framework in relation to

Art. 5 par. 5 of the Convention, the background report stated that “Act

no. 82/1998 Coll. does not permit sufficient compensation for illegal

deprivation of freedom, which is nevertheless guaranteed in Art. 5 par. 5

of the European Convention on Human Rights. That provision requires

that the right to compensation exist in the legal order for cases of any

violation of Art. 5 par. 1 to 4 of the Convention, although the legal

framework contained in Act no. 82/1998 Coll. does not meet the

requirement of the Convention.”
 

In

other words, the motivation for enacting this legal framework was,

among other things, to bring the domestic legal framework into

accordance with the Convention’s requirements. It is indisputable that

the new legal framework does not establish the entitlement to

compensation of non-pecuniary damage, but merely declares its existence

at the level of the domestic legal framework. As stated above, that

entitlement was established in the foregoing period by Art. 5 par. 5 of

the Convention, which is a “self-executing” provision that is directly

applicable over domestic statutes. Insofar as the previous legal

framework (regardless of whether it was contained in Act no. 82/1998

Coll. or Act no. 58/1969 Coll.) permitted only the compensation of

pecuniary damage, it was the duty of the courts, whose protection an

individual’s fundamental rights enjoy, to give priority in application

to Art. 5 par. 5, using the meaning that arises from ECHR case law.
 

Thus,

if the general courts concluded in this case that the petitioner could

not be granted a claim for non-pecuniary damage under Act no. 58/1969

Coll., whose § 20 refers, concerning the scope of damage, to § 442 par. 1

of the Civil Code, that conclusion may be consistent with the

Constitutional Court’s conclusions stated in the abovementioned judgment

by the plenum, but it will not stand in light of the concept of

compensation of damage which arises from Art. 5 par. 5 of the

Convention, which the general courts must apply before statutes.
 


B.
 

The

Constitutional Court’s previous judgment in the petitioner’s matter,

file no. I. ÚS 184/96, clearly stated that it is inconsistent with the

principle ne bis in idem for the petitioner to be prosecuted and

punished twice for the same act. This conclusion must also be applied to

the situation if further decisions, concerning the same act, were tied

to the annulled legally effective decisions, and if those further

decisions were in a causal relationship to the transformation of the

sentence originally imposed. It would be inconsistent with the sense of

the abovementioned Constitutional Court judgment if decisions were to

remain untouched which directly, i.e. in a direct causal relationship,

connected to decisions which violated the principle ne bis in idem, if

those decisions mean an increasing of the sentence originally imposed.

This is all the more so if the individual’s liberty was restricted on

the basis of those facts. The contrary approach would actually mean a

continuation of the double punishment of the petitioner, because the

original sentence would not have been changed but for the further

criminal prosecution and his conviction.
 

Only

while respecting these starting points, is it necessary in the given

matter to interpret § 269 par. 2 of the Criminal Procedure Code, as

regards the definition of the scope of the decisions which were

connected in content to the decisions annulled by the Supreme Court of

the CR in proceedings on a complaint about violation of the law. In

other words, decisions that were issued in a direct causal relationship

with decisions that were later annulled due to illegality or

unconstitutionality must be considered decisions connected in content.

If the reason for issuing a decision lay directly in the existence of

decisions, though issued in different proceedings, which were later

annulled due to illegality, that decision must be considered a decision

connected in content.
 

In

this case the petitioner was given a suspended prison sentence of 6

months in the first proceeding. In the following proceeding the

petitioner was convicted for the same crime, and was given a

non-suspended prison sentence of 8 months. Related to that decision in

time and in a causal relationship was the decision by the District Court

in Kolín, whose reasoning makes it evident that it was issued in direct

connection with the petitioner’s second conviction. The direct reason

for the transformation of the sentence was the existence of other

legally effective decisions which found the petitioner guilty of

committing the same crime and sentenced him to a non-suspended prison

sentence. If these decisions were later expressly annulled due to

violating the principle ne bis in idem, that conclusion must also be

applied to the decision to transform the sentence, i.e. the decision by

the District Court in Kolín of 5 October 1992, ref. no. 1 T 68/91. In

this case a contrary conclusion would mean inconsistent application of

the principle ne bis in idem, because the petitioner was required to

serve the non-suspended prison sentence of 6 months only on the basis of

the further criminal conviction.
 

The

general courts were required to reflect this conclusion in their

interpretation of the relevant provisions of Act no. 58/1969 Coll., on

Liability for Damage Caused by a Decision by a State Body or Incorrect

Official Procedure so that the petitioner was compensated for damage

caused by the serving of that sentence. In this regard we can not accept

the opinion that, even if § 1 par. 1 of that Act were to be followed,

the fundamental prerequisite for exercising a claim for compensation of

damages had not been met, i.e. that the legally effective decision which

caused the damage was annulled due to illegality. This is because

evaluation of the group of decisions annulled in proceedings on a

complaint about violation of the law depends precisely on the

abovementioned interpretation of § 269 par. 2 of the Criminal Procedure

Code, because the decision by the Supreme Court of the CR of 25 August

1999 expressly annulled decisions connected in content to the decision

by the Regional Court in Prague of 16 June 1992 file no. 5 To 188/92 and

the decision by the District Court in Kolín of 10 April 1992, file no. 1

T 8/92, insofar as, in view of the change which happened by the

annulment, those decisions ceased to have any basis.
 

As

stated above, in this case this interpretation must be done precisely

with regard to the grounds which led to annulling the decision on the

petitioner’s second conviction. The Constitutional Court considers the

interpretation performed by the general courts to be excessively

formalistic, and, moreover, one that misses the purpose of final

criminal law decision, and therefore it can not be accepted.
 

For

these reasons the Constitutional Court concluded that the contested

decisions, which denied the petitioner’s claim for compensation of

damages related to serving his prison sentence of 6 months, violated the

petitioner’s fundamental right guaranteed in Art. 5 par. 5 of the

Convention.
 


C.
 

As

regards the petitioner’s objection regarding the failure to award

compensation of lost earnings at the adjusted level, the Constitutional

Court states that the general courts will have to address this issue

within their decision-making on compensation of non-pecuniary damage. In

setting the amount of compensation, it will undoubtedly be necessary to

take into account the period when payment of compensation of this

damage was denied to the petitioner, as well as the fact that flagrant

errors were committed by the general courts, and especially by the

Supreme Court of the CR, in handling the complaint about violation of

the law filed in favor of the petitioner, which had the result of

significantly extending the total period of the proceedings, which is

related to the conditions for recognition and actual payment of

compensation of non-pecuniary damage.  
 

In

view of the abovementioned conclusions concerning violation of Art. 5

par. 5 of the Convention on the Protection of Human Rights and

Fundamental Freedoms, the Constitutional Court granted the

constitutional complaint under § 82 par. 2 let. a) of Act no. 182/1993

Coll., on the Constitutional Court, as amended by later regulations, and

annulled the contested decisions of the District Court for Prague 2,

the Municipal Court in Prague, and the Supreme Court of the CR, under §

82 par. 3 let. a) of that Act.

Instruction: Decisions  of the Constitutional Court can not be appealed.
 

Brno, 13 July, 2006