2009/08/18 - I. ÚS 557/09: Limitation of Legal Capacity

18 August 2009

HEADNOTES

G.

Dürig formulated the famous theory of the object. According to this

theory, human dignity is violated in a case where the state power places

a specific individual into the role of an object, where he becomes

merely a means, and is reduced to the form of an interchangeable

quantity. We can conclude that a person is thus not only an object of

social “relationships,” but also becomes an object of law, if he is

forced to conform to it completely in the interpretation and application

of the law, i.e. without taking into account his individual interests

or fundamental rights.

The

individual is the starting point for the state. The state and all its

bodies are constitutionally bound to protect and preserve the rights of

the individual. However, the concept of our constitutionality is not

limited to protection of the fundamental rights of individuals (e.g.,

the right to life, a guarantee of legal subjectivity), but in accordance

with the post-war change in the understanding of human rights (which

found expression in, for example, the UN Charter or the General

Declaration of Human Rights) has become the fundamental basis from which

arises the interpretation of all fundamental rights, human dignity,

which, among other things, forbids treating a person as an object. In

this conception questions of human dignity are understood as a component

of the quality of a human being, a component of his humanity.

The

concept of human dignity defined above must also be projected into the

sphere of capacity to have rights, and it has strong implications in the

area of legal capacity, because it is through the capacity to perform

legal acts (conduct) and procedural capacity that the constitutional

guarantee of an individual’s legal subjectivity is brought to life (Art.

5). Rights or entitlements that lack a means for protecting them would

only be empty proclamations.



CZECH REPUBLIC

CONSTITUTIONAL COURT
JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


The

Constitutional Court ruled on 18 August 2009 in a panel consisting of

chairman Vojen Güttler and judges Ivana Janů and Eliška Wagnerová (the

judge rapporteur) in the matter of a constitutional complaint from the

complainant M. H., represented by her guardian M. H., legally

represented by JUDr. Jiřina Jiráková, attorney with her registered

office at Třebízského 175, Slaný, against a decision by the Supreme

Court of 16 December 2008 ref. no. 30 Cdo 1948/2008-421, a decision by

the Regional Court in Prague of 20 December 2007 ref. no. 27 Co

568/2007-394, and a decision by the District Court in Kladno of 6

September 2007 ref. no. 42 P 111/94-351, with the participation of the

Supreme Court, the Regional Court in Prague, and the District Court in

Kladno, as parties to the proceedings, with the consent of the parties

without a hearing, as follows:


I.

The resolution of the Supreme Court of 16 December 2008, ref. no. 30

Cdo 1948/2008-421, the judgment of the Regional Court in Prague of 20

December 2007, ref. no. 27 Co 568/2007-394, and the judgment of the

District Court in Kladno of 6 September 2007, ref. no. 42 P 111/94-351

violated the complainant’s fundamental rights guaranteed in Art. 5 and

Art. 10 par. 1 of the Charter of Fundamental Rights and Freedoms.

II. Therefore, these decisions are annulled.



REASONING


I.


1.

In her timely filed constitutional complaint, the complainant sought

annulment of the above-cited decisions of the Supreme Court, Regional

Court in Prague, and District Court in Kladno. In the constitutional

complaint, the complainant claimed that the contested decisions violated

her fundamental rights and freedoms, “in particular the right to

capacity to possess rights, the right to her human dignity, personal

honor, good reputation, and protection of her good name, as well as the

right to protection from unjustified intrusion in her private and family

life, guaranteed primarily by Art. 5 and Art. 10 par. 1 and 2 of the

Charter.”

2. Violation of the complainant’s rights is found in

several aspects. In the complainant’s opinion, the general courts, when

ruling on whether to reinstate her full legal capacity, did not consider

all the decisive facts. In particular, the general courts did not take

into account the circumstances under which her legal capacity was

removed, as that proceeding was conducted on the basis of administrative

powers, quickly and simply, the complainant was subsequently placed in

an institution against her will, which she has still not recovered from,

and since 2002 she has been living in the harmonious environment of the

family of her cousin, who is also her guardian. During their decision

making, the courts did not hear the evidence of the medical expert,

MUDr. O. R., whose conclusions are different from the conclusions of the

court-appointed medical expert, MUDr. M. H., and did not appoint a new

expert to prepare a revised expert opinion. Also, in their decision

making, the courts relied on only one expert opinion, but they had a

differing expert opinion at their disposal, as well as other documents

and statements demonstrating the complainant’s legal capacity. The

general courts also did not take into account the complainant’s own

opinion; during the entire course of the proceedings before the general

courts she expressed her wish to have her full legal capacity returned.

The complainant believes that in view of her health, age, knowledge and

skills she fully “deserves to return to normal life” (p. 3 of the

constitutional complaint).

3. In the complainant’s opinion, the

general courts assessed the entire matter incorrectly, did not admit all

the proposed evidence, and evaluated the evidence that they did admit

completely incorrectly, from a factual and legal viewpoint, to her

detriment. In her opinion the contested decisions are sharply

inconsistent with the Constitutional Court’s conclusions expressed in

its judgment of 7 December 2005, file no. IV. ÚS 412/04. The appeals

court provided practically no reasoning for its decisions, as it merely

stated that it did not find the guardian’s objection, that the decision

by the first level court is inconsistent with settled case law and

violates the ward’s fundamental rights, to be justified.

4. Based

on the foregoing, the complainant proposed that the Constitutional

Court annul the decisions of the general courts cited above.

5.

The Constitutional Court called on the parties to the proceeding to

respond to the constitutional complaint. The Supreme Court, represented

by the appropriate panel chairman, JUDr. Karela Podolka, referred to the

reasoning of the contested decision and proposed that the

constitutional complaint be denied. Similarly, the Regional Court in

Prague, represented by the appropriate panel chairman, JUDr. Věra

Provazníková, referred to the reasoning of its decision and proposed

that the constitutional complaint be denied as unjustified. The District

Court in Kladno did not respond by the deadline.

6. Under § 44

par. 2 of Act no. 182/1993 Coll., on the Constitutional Court, as

amended by later regulations, the “Act on the Constitutional Court,” the

Constitutional Court may, with the consent of the parties, waive a

hearing, if the hearing cannot be expected to further clarify the

matter. The parties gave their consent, and a hearing was waive.


II.


7.

In order to evaluate the complainant’s objections and claims, the

Constitutional Court requested the file from the District Court in

Kladno, file no. 42 P 53/2009, from which it determined the following

facts that are decisive for the constitutional complaint.

8. The

file indicated that decision of the District Court in Louny of 15

October 1982, ref. no. 10 Nc 637/82-16 (sic!, it is not clear to the

Constitutional Court how a decision to remove a person’s legal capacity

can be decided in a file of a mere 16 pages), at the request of her

uncle, removed the complainant’s legal capacity; she was subsequently

placed in an institution together with her sister, and her bank account

was blocked in the name of the District Court in Kladno. In 2002 the

complainant moved in with the family of her cousin, her guardian, M. H.

The abovementioned decision was subsequently, at the guardian’s

proposal, amended by decision of the District Court in Louny of 18

September 2003, file no. P 79/2003 to the effect that the ward is

capable of independently handling property up to a value of CZK 500. The

remainder of the petition to reinstate her full legal capacity was

denied.

9. On 28 June 2006 the guardian filed another petition

seeking reinstatment of his ward’s legal capacity. The District Court in

Kladno, by resolution of 19 October 2006, ref. no. 42 P 111/94-293,

appointed JUDr. S. G. as the complainant’s guardian for that proceeding.

On 5 February 2007 the District State Prosecutor’s Office in Kladno

joined the proceeding.

10. Based on a resolution by the District

Court in Kladno of 6 February 2007 ref. no. 42 P 111/94-306, a

psychiatric expert, MUDr. M. H., was appointed to prepare an expert

opinion. The expert concluded that the complainant suffers light mental

retardation at a level in the middle of the light range, and her

condition is permanent; the positive influence of a family environment

allows her to make full use of her intellectual and personal abilities,

but her health has not improved sufficiently since the last examination

(note: expert opinion prepared in 2003 by the expert MUDr. Š.) to

constitute grounds for reinstating her legal capacity or reducing the

existing limitations. In conclusion, the expert stated that one might

consider increasing the amount of money that the complainant is allowed

to handle on her own, but she is not capable of other acts without

endangering herself (see expert opinion pp. 309 to 319).

11. The

guardian filed objections (pp. 328 and 329) against this expert opinion,

and submitted another expert opinion, prepared by the expert MUDr. O.

R. (pp. 336 to 342). This expert concluded that the complainant does not

suffer from any mental illness, but merely mild mental retardation. He

also stated that through training it would be possible for her to

improve in certain areas, in particular practical and social

intelligence, reading, writing, and arithmetic. The expert concluded

that the complainant is capable of handling the amount of her disability

pension and to perform other legal acts, such as receiving mail, or

submitting written forms to offices or courts, but she is not capable of

performing legal acts of a more complicated nature. Both experts (the

expert H. in a hearing – see pp. 348, the expert R. in the written

opinion, as he was not questioned at a hearing, although the

complainant’s attorney proposed this) confirmed the complainant’s close

bond to her guardian and his wife and the positive influence of her

living with them in a family environment.

12. The guardian also

submitted confirmation from the District Office P. that the complainant

is a citizen who causes no problems; she goes shopping by herself,

communicates normally with others, and behaves politely and normally in

public (pp. 301).

13. On 6 September 2007 the District Court in

Kladno issued judgment ref. no. 42 P 111/94-351, denying the guardian’s

petition to reinstate her full legal capacity and amending the decision

of the District Court in Louny of 18 September 2003, ref. no. P

79/2003-173, to the effect that the complainant is not capable of

handling property with a value over CZK 1,000. The District Court

provided fragmentary reasoning for its decision; in five and a half

pages of the judgment it summarizes the proceeding and the evidence, and

sets forth its deliberations and evaluation of the evidence that was

the grounds for its decision in the final half page (pp. 357). The

District Court believes that it is obvious from the expert opinion of

MUDr. H. that the complainant was acting under the strong influence of

her guardian, that without him she was uncertain, frightened, and

incapable of making her own decisions. The reasoning section of the

judgment lacks justification of the verdict that set the limitation on

the ward as regards the amount or property that she is able to handle on

her own.

14. On 19 October 2007 the guardian filed an appeal

against this judgment. The court-appointed guardian, JUDr. G., also

filed an appeal. That appeal was directed only against verdict II of the

judgment, i.e. it challenged the amount that the ward was allowed to

handle on her own. The appeals court, the Regional Court in Prague,

ruled in a judgment of 20 December 2007, ref. no. 27 Co 568/2007-394, as

amended by a supplemental resolution of 20 December 2007, ref. no. 27

Co 568/2007-399, and fully confirmed the contested judgment by the

District Court in Kladno. The appeals court justified its decision by

saying that it agreed fully with the conclusions of the first level

court, that it was sufficiently proved in the proceeding that the

complainant’s health had not changed, and therefore there were no

grounds to reinstate her legal capacity. Taking into account the expert

opinion of MUDr. H., it was appropriate to consider inflation and

increase the amount that the complainant was authorized to handle, to

CZK 1,000. In contrast, the appeals court did not agree with the

guardian’s opinion that the contested judgent by the District Court was

inconsistent with the conclusions of the Constitutional Court stated in

its judgment of 7 December 2005 file no. IV. ÚS 412/04. Therefore, it

concluded that the contested judgment did not interfere in the

complainant’s fundamental right guaranteed by Art. 10 par. 1 of the

Charter of Fundamental Rights and Freedoms (the “Charter”).

15.

The guardian filed an appeal on point of law against this decision with

the Supreme Court, and presented the same arguments as in the present

constitutional complaint. The appeal on point of law was denied by

Supreme Court resolution of 16 December 2008, ref. no. 30 Cdo

1948/2008-421, under § 243b par. 5 first sentence and § 218 let. c) of

Act no. 99/1963 Coll., of the Civil Procedure Code (the “CPC”), because

the Supreme Court concluded that the contested decision of the first

appeals court had no fundamental legal significance, and therefore an

appeal under § 237 par. 1 let. c) of the CPC (pp. 422) could not be

admitted.


III.


16.

After conducting the proceeding, the Constitutional Court concluded

that the constitutional complaint is justified. The Constitutional Court

is authorized to protect constitutionality, not to review “ordinary”

legality (Art. 83 of the Constitution of the CR). The Constitutional

Court does not review mere correctness of interpretation and application

of “simple” law by the general courts. It will intervene in their

activities only if one of their decisions violated a complainant’s (in

this case the ward’s) fundamental right or freedom that is guaranteed by

the constitutional order of the Czech Republic, because the fundamental

rights and freedoms not only define the framework of normative content

of the applied legal norms, but also set the framework for

constitutional interpretation and application of them.

17. The

Constitutional Court will always intervene if it finds an element of

arbitrariness in the actions of the general courts. For example, in

judgment I. ÚS 534/03 it stated: “There is also such violation of the

complainant’s fundamental rights and freedoms when the general court

overlooks the constitutional law importance of the ban on arbitrariness,

the starting point from which one must approach interpretation of all

procedural principles and rules provided by the simple law. The

Constitutional Court also reviews decisions of the general courts if it

finds that their interpretation of legal regulations is so extreme that

it deviates from the bounds of constitutionality. That also occurs if

the general courts interpret a certain statutory provision so

expansively that they establish an individual’s obligation to act above

the scope of the law, which violates Art. 4 par. 1 of the Charter. The

Constitutional Court has already ruled (e.g. in judgment file no. I. ÚS

546/03), that Art. 4 par. 1 of the Charter has two dimensions; the first

specifies the effects of Art. 2 par. 2 of the Charter on individual

persons, and the other represents a structural principle of a democratic

law-based state, under which state authority can only be exercised in

cases and within the bound set forth by law, and in a manner provided by

law. Likewise, a court’s imposition of an obligation is limited by the

law to require that the fundamental rights and freedoms be preserved.”

In the Constitutional Court’s opinion, there is arbitrariness in a case

where the general courts do not fulfill their obligation to properly,

i.e. adequately, rationally, and logically, justify their decisions in

the relevant aspects (e.g., I. ÚS 534/03); this is also true in a case

where a decision demonstrates extreme inconsistency between its legal

conclusions and the evidence presented and conclusions of fact made on

that basis; it is also true in a case where the interpretation and

application of “simple” law is extremely inconsistent with the

principles of justice (e.g., as a result of excessive formalism) – see,

e.g., judgment III. ÚS 94/97.

18. As the Constitutional Court has

already stated in the past: “The Constitution of the CR accepts and

respects the principle of legality as a component of the overall concept

of a law-based state; however it does not tie positive law only to

formal legality, but subordinates the interpretation and application of

legal norms to their substantive meaning” (see, e.g., judgment of 4 July

2000, file no. Pl. ÚS 7/2000). Where there is potential violation of

the classic fundamental rights of complainants tied to the very essence

of their “humanity” (including the right to human dignity, the right to a

guarantee of a comprehensively understood legal personality, etc.),

which are issues connected to judicial rulings to remove or limit a

person’s legal capacity, the abovementioned conclusions have

particularly fundamental importance. Both human dignity and the capacity

to have rights in the broad sense of the word (substantive and

procedural, expressed in the language of civil law) legally define the

individual that state authority has an obligation to respect. Without

acknowledging this postulate, the other fundamental rights and freedoms

guaranteed by the constitutional order of the CR would only be empty

phrases. G. Dürig [G. D., Der Grundrechtssatz von der Menschenwürde,

Archiv des öffentlichen Rechts 81 (1956), p. 127] formulated the famous

theory of the object that was adopted by the case law of the German

Constitutional Court, connected to questions of human dignity. According

to this theory, human dignity is violated in a case where the state

power places a specific individual into the role of an object, where he

becomes merely a means, and is reduced to the form of an interchangeable

quantity. We can conclude that a person is thus not only an object of

social “relationships,” but also becomes an object of law, if he is

forced to conform to it completely in the interpretation and application

of the law, i.e. without taking into account his individual interests

or fundamental rights.

19. We must also add that “the source of

the constitutional order of the Czech Republic is the individual and his

rights guaranteed by the constitutional order of the CR. The individual

is the starting point for the state. The state and all its bodies are

constitutionally bound to protect and preserve the rights of the

individual. However, the concept of our constitutionality is not limited

to protection of the fundamental rights of individuals (e.g., the right

to life, a guarantee of legal subjectivity), but in accordance with the

post-war change in the understanding of human rights (which found

expression in, for example, the UN Charter or the General Declaration of

Human Rights) has become the fundamental basis from which arises the

interpretation of all fundamental rights, human dignity, which, among

other things, forbids treating a person as an object. In this conception

questions of human dignity are understood as a component of the quality

of a human being, a component of his humanity. Guaranteeing the

inviolability of human dignity allows a person to fully make use of his

personality. These deliberations are confirmed by the preamble to the

Constitution of the CR, which declares human dignity to be an inviolable

value, standing at the foundation of the constitutional order of the

CR. Likewise, the Charter guarantees that people are equal in dignity

(Art. 1) and guarantees the subjective right to the preservation of

human dignity (Art. 10 par. 1). The Constitutional Court considers the

legal personality of a free individual and the guarantee of the de facto

exercise of that personality to be extremely important constitutional

values with a central position in the constitutional order (Art. 1, Art.

9 par. 2 of the Constitution of the CR and Art. 5 of the Charter). The

Constitutional Court is bound (Art. 83 of the Constitution) to protect

these components of the comprehensively understood dignity of the

individual (preamble to the Constitution, Art. 1 and Art. 10 par. 2 of

the Charter) – see similarly judgment file no. IV. ÚS 412/04.

20.

That decision stated, among other things: “The concept of human dignity

defined above must also be projected into the sphere of capacity to

have rights, and it has strong implications in the area of legal

capacity, because it is through the capacity to perform legal acts

(conduct) and procedural capacity that the constitutional guarantee of

an individual’s legal subjectivity is brought to life (Art. 5). Rights

or entitlements that lack a means for protecting them would only be

empty proclamations. It is only the rights thus understood that the

state power must take into consideration when interpreting simple law.

As the Constitutional Court has already stated in the past: ‘The

constitution of the CR accepts and respect the principle of legality as a

component of the overall concept of a law-based state, but it does not

tie positive law only to formal legality, but subordinates the

interpretation and application of legal norms to the meaning of their

substantive content.’ (cf., e.g., judgment of 4 July 2000, file no. Pl

ÚS 7/2000 in Coll. of Decisions, vol. 19, p. 45 of no. 261/2000 Coll.).

The constitutional order recognizes and guarantees, in Art. 5 of the

Charter, everyone the capacity to have rights, i.e. it guarantees

everyone a legal personality.

21. On the level of

sub-constitutional law, the capacity to have rights and obligations and

acquire them through one’s own acts is governed by civil law, generally

expressed for the purpose of ensuring certainty in relationships between

members of civil society. This right of every person is applied as a

public subjective right in the area of public law, in vertical

relationships, i.e. relationships between the state and the individual,

where it protects the individual from interference by the state, or the

state power, in his personality. As the Constitutional Court already

concluded in judgment file no. IV. ÚS 412/04, a vertical relationship

can also describe the position of a party in a so-called “non-disputed”

proceeding, which can be opened without a petition, which also includes a

proceeding to restrict legal capacity. This is a proceeding in which

the legislature made a person an “object” of the law, because it

believed that the matter involved a strong public interest.

Nevertheless, this public interest cannot always and completely, sort of

automatically, outweigh the interest of the individual and deprive him

of the cited fundamental rights. In vertical relationships all

fundamental rights are exercised as directly applicable rights, which

directly bind the state power (here, the court), and prohibit dealing

with a human being as with a mere object of objective law without taking

his fundamental rights into account. The interests or fundamental

rights of the person whose legal capacity is limited must be taken into

consideration in the courts decision making, which cannot be conducted

through automatic inclusion of the facts under a statutory norm.

Generally, and especially in addressing this issue, a legal norm that

permits limiting the fundamental rights must be interpreted and applied

with awareness of the significance and breadth of relationships that

cover the fundamental rights being limited. The legal norm can be

applied only after a careful determination of which conflicting

fundamental rights of third parties, or which public interests, are in

conflict with the fundamental rights of the person whose rights are

being limited, and that determination must be stated in the reasoning of

the decision. In other words – a limitation on fundamental rights must

be strictly proportional. Therefore, the Constitutional Court previously

stated that “limiting legal capacity is always serious interference in

the personal integrity of the person being limited. Such interference

must be reviewed in terms of the potential interference in the

fundamental rights of the affected person guaranteed especially by

Article 5 and Article 10 par. 1, 2 of the Charter, interpreted in a

scope that is limited by human dignity. Because the Charter guarantees

these rights as so-called “absolute” fundamental rights, they may be

limited only for purposes of protecting the fundamental rights of other

persons or for purposes of protecting a public interest that is a

principle or value contained in the constitutional order (so-called

“immanent” limitation of fundamental rights, see judgment of 11 November

2005, file no. I. ÚS 453/03, published at www.judikatura.cz, or

judgment of 26 March 2003, file no. Pl. ÚS 42/02 published on the same

website or in Coll. of Decisions, vol. 29, p. 389 or no. 106/2003

Coll.). However, the possible limitation of these fundamental rights for

that purpose must always be done proportionately.” (judgment file no.

IV. ÚS 412/04)).

22. In that judgment the Constitutional Court

also addressed the test of proportionality, which should contain the

following three steps, which must be applied both to the statute that

limits these fundamental rights, and to interpretation and application

of the statute reflected in the individual decision that is issued:

a) Is the aim pursued a legitimate one? Is the aim that is pursed and promoted necessary in a free, democratic society?

b) Is there a rational connection between the aim and the means selected to promote it?

c)

Are there alternative methods for achieving the aim, use of which would

make the interference in the fundamental right less intensive or avoid

it entirely?

23. In judicial decisions to limit legal capacity,

it will always be necessary to diligently see to it that the legal

capacity not be limited in a scope greater than what is absolutely

necessary to protect the fundamental rights of third parties and other

constitutionally protected values, for the benefit of which the

fundamental rights of the affected person are to be diminished; as the

extreme limit (which, of course, cannot always be reached, in terms of

the principle of proportionality), it is necessary to respect the limit

set by Art. 4 par. 4 of the Charter. From that point of view, the

institution of removal of legal capacity, which is an obvious relic of

the old regime, is constitutionally considerably problematic. [It is

surely significant, that the legal orders of our western neighboring

states, Austria and Germany, do not recognize removal of capacity to

perform legal acts, or removal of capacity to manage one’s own affairs,

and as of 1 January 2009 this institution has also disappeared from the

French Code Civil, where, from the late date, we can conclude that this a

result of the (somewhat delayed) French acceptance of the normative

effect of fundamental rights on the activity of the legislature] The

general courts must always weigh all the milder alternatives [point 23

let. c)], that could achieve the pursued aim in terms of protection of

specific, identified competing rights or public interests derivable from

the constitutional order, and limitation of legal capacity must always

be considered the most extreme means. The fact alone that a person

suffers from a mental illness is not yet grounds for limiting his

capacity to perform legal acts, or, stated in the language of

fundamental rights, for limiting his fundamental rights (the right to

legal personality and human dignity); rather, it must always be

specifically stated, who, or what, is endangered by the full legal

capacity (preservation of legal personality) of the affected person, and

it is also necessary to justify why the situation cannot be addressed

using milder means. In other words – when deciding to limit a person’s

capacity to perform legal acts (or the scope thereof) the subsidiary of

that measure must always be applied thoroughly (the new codification of

civil law now being prepared also takes into account this

constitutionally normative principle, arising from the very essence of a

substantive law-based state – see points 19, 20, 21).

24. As

already indicated in the previous points, in cases of deciding to limit a

person’s legal capacity, the court is required to identify, in the

particular case, the competing right or value or interest protected by

the constitutional order because of which the limitation of the

abovementioned fundamental rights of the affected person is to take

place. In connection with this requirement, the court is obligated to

ensure complete and reliable findings on the personal situation of the

affected person, i.e. how he handles himself in social contact with

members of the civil society, how he takes care of his and his family’s

needs, how he manages money, how he conducts himself at his workplace,

etc.. In this type of proceeding an expert opinion is credible evidence,

but it may not be the only evidence, and may not make up for a lack of

findings of fact. Before the fall of communism, the judiciary believed

that removal or limitation of legal capacity was a measure that was to

protect, not damage or endanger interests in the capacity of the

affected citizen (further, see From the Report on the Level of

Proceedings and Decision Making by Courts of the Czech Socialist

Republic in Matters of Legal Capacity, discussed and approved by the

civil law collegium of the Supreme Court of the CSR, Cpj 160/76 of 18

November 1977, R 3/79). In the present legal environment, formed by the

Czech constitutional order, this idea (which then arose from the

achieved unity of the interests of the individual, the whole society,

and the state, as that unity of interests was presumed to exist by the

Constitution of the CSSR of 1960, demonstrating thereby the achievement

of socialism – on this issue, see Wagnerová E.: Základní práva

[Fundamental Rights], in Komunistické právo v Československu, Kapitoly z

dějin bezpráví [Communist Law in Czechoslovakia: Chapters from the

History of Lawlessness], M.Bobek, P.Molek, V.Šimíček (eds.), Masarykova

univerzita, 2009, pp. 330-363) must be modified by separation the

interests of the individual, the society, and the state (as is standard

in the constitutional law theory of democratic, liberal states), and

also to take as a starting point the priority of a fundamentally free,

autonomous individual, whom the state may not prevent from pursuing his

idea of happiness by forcing upon him state protection where the

individual, perhaps with the help of his family, can take care of

himself (the principle of subsidiarity, derived from recognizing the

dignity of the individual, first expressly defined as a principle in the

encyclical of Pope Pius XI. Quadragesimo anno, in 1931).



IV.

 

25.

As stated above (points 14 and 15), the judgment of the District Court

in Kladno of 6 September 2007 ref. no. 42 P 111/94-351 changed the

judgment of the District Court in Louny of 18 September 2003 ref. no. P

79/2003-173 to the effect that M. H. is not capable of handling property

with a value over CZK 1,000 (verdict II. of the judgment), and the

petition to reinstate the complainant’s legal capacity was denied

(verdict I., pp. 351). In contrast, the District Court in Louny chose

for its verdict on limiting the complainant’s legal capacity a so-called

“positive” definition of the scope of limitation, when it limited her

capacity to the effect that she is entitled to handle property not

exceeding an amount of CZK 500 (i.e., she does not have legal capacity

in other acts). The District Court in Kladno then changed that judgment,

with the justification that the conditions for limitation still exist,

but for the verdict of the decision it used a so-called “negative”

definition of legal capacity, when it stated that M. H. lacks capacity

to handle property whose value exceeds CZK 1,000. With reference to the

dogma of fundamental rights in a democratic, law-based state (under

which the fundamental rights exist as fundamentally unlimited rights,

while statutory or statutorily-permitted limitation of them, and

interpretation and application of them by a court must be implemented so

that it is possible to review both the justification for the limitation

in terms of the existence of conflicting rights and values and the need

for the limitation in terms of its intensity, i.e. in terms of

observance of the proportionality principle), that arises from the

principles set forth in part III of this decision, the contested

decisions cannot be accepted in terms of constitutional law, because

they lack both an express specification of the constitutionally

guaranteed rights and values that are to be protected by limiting the

fundamental rights of M. H., through very drastic limitation of her

legal capacity, and also lack an explanation of why any conflict between

the rights of M. H. with the rights of third parties, or other values,

cannot be resolved using milder means. Beyond the framework of what is

necessary, the Constitutional Court adds that the original verdict in

the decision by the District Court in Louny was completely defective in

terms of fundamental rights, as it “granted” the complainant the

fundamental right to property in a limited extent, although this right

is hers without limitation, and a court may, if the necessary conditions

exist (see point 21), only limit it, and, as already stated, while

carefully respecting the principles of subsidiarity and proportionality.

26.

The general courts obviously acted based on an opinion, contrary to the

constitutional order, that nothing prevents them from annulling,

through their verdict, the autonomous discretion of M. H. to exercise

her own personality, and leaving her only the ability to handle an

insignificant amount of property. Thereby they failed to respect the

complainant’s sphere of autonomy, defined, among other things, by her

abovementioned fundamental rights (see points 19, 20, 21) in their

negative function, which prevents the state power from entering into the

thus-defined sphere without finding quite fundamental grounds (the

conflicting rights of third parties and values assumed by the

constitutional order), or, literally usurping it. The general courts did

not realize at all that their task is only to set appropriate

limitations on the complainant’s fundamental rights, if they find

grounds therefore in conflicting rights and values, or general interests

contained in the constitutional order. However, the courts did not find

any such conflicting rights, values, or interests, and so of course did

not identify them either, and subsequently could not evaluate them or

weigh them against the complainant’s fundamental rights guaranteed by

Art. 5 and Art. 10 par. 1 of the Charter in terms of the proportionality

principle.

27. The general courts erroneously assumed that it is

not necessary for them to again review and decide on the quite

obviously excessive limitation of M. H.’s legal capacity, despite the

fact that, according to both the experts consulted in the matter, the

“evaluated person suffers light mental retardation” only, (pp. 355, p. 5

of the decision of the fact-finding court) and the expert MUDr. R., in

his evaluation (pp. 336 to 342) stated that, in addition to handling

property in amounts corresponding to her pension, the complainant is

also capable of other acts that would exercise her rights. Here, of

course, the Constitutional Court points out that the court must also

evaluation this opinion, not accept it word for work, because the court

may not provide rights to M. H., but only, if it finds grounds therefore

in conflicting rights and values (which, however, it must find itself,

and not rely on experts for), proportionately limit her rights. The

courts will also have to draw appropriate conclusions from the fact that

the decision of the District Court in Louny of 18 September 2003, ref.

no. P 79/2003-173, already removed the impediment under § 2 let. b) of

Act no. 247/1995 Coll., on Elections to the Parliament of the Czech

Republic, and Amending and Supplementing Certain Other Acts, for m. H.

to exercise her voting rights (active and passive), because the

impediment to the exercise of voting rights is only removal of legal

capacity, not merely limitation of legal capacity, and they must weigh

whether they are grounds, in the form of conflicting rights and values,

to maintain the limitation of other fundamental political rights (the

right to petition, freedom of association and freedom of assembly),

precisely with the background, or in the context, of the cited

legislative decision. The file also shows no basis for deciding on

limiting the complainant’s rights arising from family law relationships,

protected at the constitutional level by the fundamental right to

family and private life, etc.

28. The Constitutional Court adds

that the proceeding did prove that the complainant suffers mild mental

retardation, at a level in the middle of the light range. However, that

finding does not automatically give rise to a conclusion that the

complainant’s legal capacity must be considerably limited, virtually

removed. A mild intellectual disability, which, moreover, is not even

mental disability in the true sense of the word, cannot and must not, in

and of itself, be grounds to deprive a person of the opportunity to

express her will in ordinary life situations, and perform legal acts in

accordance with her will. Grounds for limiting legal capacity may be

only an interest in the protection of the rights and freedoms of third

persons or protection provided to values or interests arising from the

constitutional order.

29. As regards the actions of the second

appeals court, the Constitutional Court states that it considers

incorrect the narrow interpretation the court used for the

permissibility of an appeal on point of law under § 237 par. 1 let. c)

of the Civil Procedure Code (the “CPC”). The second appeals court is

also called upon, in its decision-making activity, to protect the

complainant’s fundamental rights and freedoms (Art. 4 of the

Constitution), and therefore the scope of its deliberations on the

permissibility of an appeal on point of law under § 237 par. 1 let. c)

of the CPC is not unlimited from a constitutional perspective. In the

present matter the second appeals court was content to state that the

decision of the first appeals court cannot be considered fundamentally

significant, legally speaking, and it denied the appeal on point of law.

Moreover, in the reasoning of its decision it states that the

objections of the appellant (the guardian) are aimed against the

conclusions of fact and incomplete findings of fact, and are therefore

not objections to the legal evaluation. As was already stated above

(points 21, 22, 23), deciding to limit or remove legal capacity is a

sensitive and fundamental interference in the fundamental rights and

freedoms of persons. It is also obvious from the reasoning of this

judgment that the decisions of the trial court and appeals court offered

up for review a whole series of legal issues tied to effective judicial

protection of the complainant’s fundamental rights and freedoms, which

the Supreme Court completely overlooked. Therefore, we cannot agree with

the conclusions of that court, which said in the reasoning of its

decision that: “however, in formulating the legal issue, the appellant

overlooks the fact that this proceeding did not review the issue he

formulated, whether the claimed protection of the evaluated person is

consistent with the laws and with the Charter, in other words, whether

the removal of M. H.’s legal capacity is consistent with the laws, but

addressed the issue of whether there was such a change in the state of

M. H.’s health as would justify the change in the limitation of her

legal capacity, which had been made in the past” (p. 3 par. 1 of the

decision). In the Constitutional Court’s opinion, this conclusion is

quite inappropriate and erroneous, because whether a citizen’s legal

capacity was limited or removed, i.e. whether his fundamental rights

were limited in accordance with the constitutional order, must always be

a question to be addressed by every court in the Czech Republic, if a

person turns to it with a petition to provide protection for his

fundamental rights. That is because Art. 4 of the Constitution of the

Czech Republic sets protection of the fundamental rights under the

protection of the judicial power, i.e. first of all under the protection

conducted by the general courts, regardless of their position in the

court system.

30. In this regard, we cannot omit to state the

alarming statistics on the number of persons whose legal capacity has

been removed or limited; as of 30 July 2007 records showed 3,893 persons

with limitations on their legal capacity and 23,283 persons deprived of

legal capacity. Based on these numbers, the conclusion about the

decision making practice of the general courts is clear. It is obvious

that the general courts too often make use of the constitutionally

problematic removal of legal capacity. Therefore, the Constitutional

Court, beyond the framework of the reasoning of this decision, calls on

the general courts, especially the Supreme Court, one of whose main

functions is unifying case law in a constitutional manner, in

proceedings before them to reverse the unfortunate trend arising in

communist times and still persisting, and thus ensure judicial respect

for the fundamental rights and freedoms of individual persons so that

the maxims expressed in this and other decisions of the Constitutional

Court will be maintained (see, e.g., judgment file no. II. ÚS 303/05 of

13 September 2007, file no. II. ÚS 2630/07 of 13 December 2007, file no.

IV. ÚS 412/04 of 7 December 2005 and others).

31. For the

reasons cited above, the Constitutional Court granted the constitutional

complaint. Under § 82 par. 2 let. a) the Act on the Constitutional

Court, it identified in its verdict which fundamental rights and

freedoms were violated by the contested decisions and proceedings

preceding them, and it annulled the decision of the Supreme Court of 16

December 2008, ref. no. 30 Cdo 1948/2008-421, the decision of the

Regional Court in Prague of 20 December 2007, ref. no. 27 Co

568/2007-394, and the decision of the District Court in Kladno of 6

September 2007, ref. no. 42 P 111/94-351, under § 82 par. 3 let. a) the

Act on the Constitutional Court.

Instruction: Decisions of the Constitutional Court cannot be appealed (§ 54 par. 2 the Act on the Constitutional Court).




Dissenting Opinion of Justice Ivana Janů

I

disagree with the reasoning of judgment file no. I. ÚS 557/09, and am

submitting a dissenting opinion to it pursuant to § 22 of Act no.

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

regulations.

I must state first of all that I am not addressing

all the problematic points in the reasoning of the judgment, but only

those points in the reasoning that I consider fundamental. Thus, I am

not addressing issues that had nothing to do with the adjudicated

matter, but which nevertheless appear in the reasoning [e.g. references

to removing legal capacity, although the complainant merely had her

capacity limited; the obviously incorrect description of removal of

legal capacity as a relic of the old regime (see point 23.; cf.

Sedláček-Rouček: Komentář k československému obecnému zákoníku

občanskému [Commentary on the Czechoslovak Civil Code], volume I., pp.

1069 and 1073); there is no doubt, of course, that until 1989 the

totalitarian regime abused removal and limitation of legal capacity for

political purposes].

Apparently I diverge from the majority

opinion starting with the basic view of limiting legal capacity. I

believe that the purpose of limiting legal capacity is, first of all,

protection of the person whose legal capacity is concerned. Therefore, I

consider as still valid the conclusion stated in R 3/1979, that the

purpose of limiting ore removing legal capacity “is primarily to provide

protection to persons who, because of a mental disability that is not

merely temporary are not able to perform any or some legal acts; it is

also necessary to consistently prevent legal capacity being limited in a

greater scope than is absolutely necessary, and that this not

unnecessary burden the living situation of these persons.” This

conclusion cannot be faulted even from the contemporary constitutional

law viewpoint.

The majority opinion also states that the

decision to limit legal capacity granted the complainant the fundamental

right to property (see point. 25.) However, I cannot agree in this

regard either, because limitation or removal of legal capacity does not

result in the removal of any subjective rights, including the right to

property. All that is limited or removed is the ability to take on

rights through one’s own legal acts and to bind oneself to obligations;

however, in the scope in which this capacity is affected, the rights and

obligations of the person are performed by his guardian, in that

person’s name and on his account. For example, a person whose legal

capacity has been removed cannot by himself manage his property rights,

but that does not mean that he is deprived of his property, or that the

decision limiting legal capacity granted or removed property rights,

etc.

I also cannot agree with the description of the proceeding

on legal capacity as a proceeding “in which the legislature made a

‘person’ an object of the law.” A natural person, whose capacity is at

issue, is not an object, but a party to the proceeding (§ 94 par. 1 of

the CPC), i.e., a procedural subject. The conclusion that the examined

person is a mere object is also ruled out not only by the fact that the

Civil Procedure Count grants him, as a party, a number of procedural

rights (and an object cannot have rights), but also by the special

regulation of his procedural capacity (in contrast to § 20 par. 1 of the

CPC, based on § 186 par. 3 of the CPC a person whose legal capacity has

been completely removed also has procedural capacity).

I also

cannot agree with the conclusion that the limitation of the complainant

is “very drastic” or “obviously excessive.” Here the majority opinion

quite obviously does not fully appreciate the different consequences of a

positive or negative formulation of the verdict limiting legal

capacity; of course, I must acknowledge that the inadequate and

incomprehensible reasoning of the contested decisions contributes to

that. While, according to the 2003 decision the complainant was “capable

of independently handling property with a value of up to CZK 500,”

according to the decision contested by the constitutional complaint the

complainant “is not capable of handling property whose value exceeds CZK

1,000.” The first mentioned decision chose a positive definition, as a

result of which the complainant could perform only the legal acts stated

in the verdict, i.e. only to handle property of up to CZK 500; the

second decision is based on a negative definition, and therefore the

complainant is capable of all legal acts except those that are stated in

the verdict, i.e. she can perform any legal acts except handling

property exceeding the value of a thousand crowns. Thus, using a

negative formulation instead of a positive list has far-reaching

consequences, due to which the present scope of the limitation cannot be

seen as very drastic or obviously excessive.

I also cannot pass

over the fact that the majority opinion considers the expert opinion of

MUDr. Rotter to be evidence through an expert opinion. An expert opinion

under § 127 of the CPC is only an opinion that has been prepared by an

expert appointed by the court. but MUDr. Rotter was not. He prepared his

evaluation at the request of the complainant’s guardian, so it is

evidence through a private document (§ 129 of the CPC), and not expert

evidence.

I agreed with the verdict of the majority opinion only

because the decision of the first level court and that of the appeal

court contains completely inadequate justification, which is

inconsistent with the settled case law of the Constitutional Court,

stating the obligation of courts to provide justification for their

decision in a legally provided manner (e.g. file no. III. ÚS 290/96,

III. ÚS 703/06). Every decision to limit legal capacity must be based on

an unambiguous factual finding that the person whose capacity is at

issue suffers a mental disability that is not only temporary, and that,

as a result, he is not able to correctly assess the consequences of his

legal acts and be responsible for such acts, or a statement regarding to

what extent that ability is affected. The court must set forth these

conclusions in the reasoning of its decision. The reasoning of the first

level court completely lacks justification for why there was a change

in the scope of limitation of legal capacity and why the limit is now

the one that is stated in the verdict; the appeal court decision devotes

one sentence to this question. Such reasoning cannot generally be

considered sufficient, or even comprehensible in relation to the

verdict. This applies all the more so with an issue as serious as

limiting a person’s legal capacity.