2011/03/13 - Pl. ÚS 43/10: Restrictions on Legal Capacity

13 March 2011

Czech republic constitutional court judgment

CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT

 

IN THE NAME OF THE REPUBLIC

 


HEADNOTES

Provision

Section 33 para. 3 first sentence of the Act 150/2002 Coll., the

Administrative Code of Justice, according to which “The party is

competent to act independently to in the proceedings (hereafter only as

“the procedural capacity”) only provided he/she enjoys full legal

capacity.” is inconsistent with the proportionality principle, as well

as with the maxim according to which any interference with rights must

reflect the particularities of every single case.

 

The

Constitutional Court holds that the unlawful situation persists,

consisting in the fact that persons who have been restricted in their

legal capacity are prevented from exercising their procedural capacity

within administrative court proceedings pursuant to Act No. 150/2002

Coll., even though the restriction on their rights does not at all

concern the court proceedings in question. Undoubtedly, this conclusion

also arises from the role of the administrative judiciary, one of whose

most important missions includes the protection of the rights of an

individual in dealings with administrative bodies.

 


JUDGMENT

On

April 13, 2011, the Constitutional Court Plenum consisting of Stanislav

Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Ivana Janů,

Vladimír Kůrka, Dagmar Lastovecká, Jiří Mucha, Jiří Nykodým, Pavel

Rychetský, Miloslav Výborný, Eliška Wagnerová, and Michaela Židlická in

file no. Pl. ÚS 43/10 held on the petition lodged by Supreme

Administrative Court seeking to annul provision Section 33 Paragraph 3

of the first sentence of Act No. 15/2002 Coll. of Code of Administrative

Justice with the participation of the Chamber of Deputies of the

Parliament of the Czech Republic and the Senate of the Parliament of the

Czech Republic as parties to the proceedings:

 

Provision

Section 33 par. 3 of the first sentence of the Act No. 150/2002 Coll.,

of the Code of Administrative Justice is annulled as of the date of

publication of this Judgment in the Collection of Laws.


 

REASONING

 

I.
Subject Matter of the Proceedings and Arguments of the Petitioner

1.

On October 12, 2010 pursuant to Article 95 Section 2 of the

Constitution of the Czech Republic (hereafter only “the Constitution”)

and pursuant to Section 64 par. 3 of the Act No. 182/1993 Coll. on the

Constitutional Court in the wording of its latest reading (hereafter

only “the Act on the Constitutional Court”) the Constitutional Court was

served a petition of the Supreme Administrative Court (hereafter only

as “the petitioner”) represented by the President of the Extended

Chamber JUDr. Josef Baxa seeking to have annul Section 33 par. 3 of the

first sentence of the Act No. 150/2002 Coll., the Code of Administrative

Proceedings.

 

2. The petitioner stated in its

petition that it was under file number 4 Ads 93/2009 conducting

proceedings regarding the cassation complaint of the plaintiff S.M.

(hereafter only as “the plaintiff”) represented by his guardian JUDr. P.

J., an attorney, against the resolution of the Regional Court in

Ostrava (hereafter only as “the Regional Court”) dated May 19, 2009 file

number 38 Cad 15/2005-162. The above resolution of the Regional Court

appoints an attorney as a guardian to the plaintiff for the proceedings

regarding action filed against the Regional Office of the Olomouc Region

as the defendant (hereafter only as “the defendant”) contesting the

decision of the defendant dated May 2, 2005 file number

KUOK/9881/05/OSV-DS/7025/SD-80. The Regional Court relied on Section 33

par. 3 of the first sentence of the Act No. 150/2002 Coll. (hereafter

only as “the contested provision”) since on September 16, 1987 the

plaintiff was restricted on his legal capacity by a decision of the

District Court in Olomouc file number Nc 1565/86-42 (17 Sen 16/87) in a

manner as “to be able to independently conduct all legal acts with the

exception of legal acts in the area of employment law when he is not

able to independently conclude employment contracts and engage in

employment  of such nature when refusal to comply with an order for

illness-related reasons might result in a threat against his own health

or the health of others or in material damage”.

 

3.

The above resolution of the Regional Court on the appointment of a

guardian was contested by the plaintiff as the complainant in his

cassation complaint in which the act of appointment of the guardian was

referred to as grossly offensive against his person alleging the

resolution was issued by an incompetent person with no educational

qualification in the field of law and is contrary to the Constitution

and thus the matter should be referred to the Constitutional Court.

 

4.

It follows from the file of the Regional Court file no. 38 Cad 15/2005

that by the decision of the Municipal Authority in Zábřeh, namely of the

Social and Health Department  of March 25 2005 reference no.

Soc/552/2695/2005/Dv the complainant was not awarded a social security

allowance due to his failure to meet the statutory conditions. The

decision issued by the first instance body was overturned in the appeal

proceedings by the defendant and the application was dismissed. The

reasoning behind the decision emphasized that the complainant (the

plaintiff) failed to meet the conditions decisive for the award of the

allowance and failed to enable an inquiry required for the assessment of

his overall social and financial background, furthermore, he refuses 

to allow for an increase of his income by not undergoing a medical

examination required to facilitate the award of a partial disability

pension, he was removed from the jobseekers list and refuses to

cooperate with the administrative body in the administrative

proceedings. In the action against the decision the plaintiff alleged

violation of his constitutional rights; he further requested the payment

of the social security allowance in the amount of 7.300 Czech Crowns a

month and sought to have the contested decision quashed as well as

seeking compensation for both material and immaterial damage suffered.

 

5.

The fourth Chamber of the petitioner did not identify with the opinion

presented in the current case law/adjudication of this Court and

expressly stated in its Judgment of March 12, 2008 file no. 6 Ads

97/2007-133 (available at www.nssoud.cz), pursuant to which “should the

party be limited in legal capacity in employment matters such party does

not need to be represented by a guardian in proceedings on action

directed against the decision of an administrative body” (§ 65 and

subsequent of Code of Administrative Justice).  Such legal opinion is

contrary to the unambiguous wording of the contested provision pursuant

to which procedural capacity in judicial administrative proceedings is

only granted to the parties to the proceedings in no manner limited by

their legal capacity. Thus the fourth chamber referred the matter to the

Extended Chamber of the petitioner. 

 

6. The

Extended Chamber of the Petitioner found that the facts set forth by

Section 17 par. 1 of the Act No. 150/2002 Coll. were met. It further

assessed whether the contested provision enables for the consideration

of the court on the necessity of the appointment of a guardian for a

party to proceedings who lacks full procedural capacity and whether such

consideration is founded at all in the matter of the pursuit and the

purpose of the representation by a guardian in relation to the

protection of rights of such a party to proceedings. The Extended

Chamber of petitioner followed the legal provisions of a variety of

procedural regulations, international treaties and case law of a variety

of other courts.  

 

7. Regarding the provisions

governing procedural capacity the petitioner maintained that procedural

capacity represents a part of legal capacity and is governed by both Act

No. 99/1963 Coll., Civil Procedure Code as amended and by Act No.

150/2002 Coll.

 

8. The Civil Procedure Code sets

forth in § 20 that everyone may act independently before the Court as a

party to proceedings (procedural capacity) in the extent in which the

person is competent by their own acts to assume rights and incur

liabilities. Pursuant to § 29 Section 1 of the Civil Procedure Code

should a natural person who acts as a party to proceedings not be able

to act independently before court the presiding judge shall appoint a

guardian to such a person should a danger of delay occur. Pursuant to

Section 4 an attorney may be appointed as a guardian. Another entity may

only be appointed as a guardian with the consent of the party

concerned. Should the Court not hold otherwise the guardian then acts

before courts in all instances. The appointed guardian has a position

identical to the one of a legal representative acting on the basis of

granted power of attorney and should the appointed guardian be an

attorney his position is identical to the one of an attorney appointed

by the party by power of attorney (§ 31 Section 1 and 2 of the Civil

Procedure Code)

 

9. Contrary to that a party to the

court administrative court proceedings is competent to act

independently solely in the event such party has full legal capacity (§

33 Section 3 sentence one of the Act No. 150/2002 Coll.).

 

10.

Legal provisions governing procedural capacity within Act No. 150/2002

Coll. are thus independent and much stricter since they do not allow

regard to be taken of the fact whether or not the party restricted on

his legal capacity within substantive law might be capable of acting

before a court in matters unrelated to the above restriction. The

reasoning fails to provide any further interpretation regarding the

provisions referred to above. Provision § 64 of Act No. 150/2002 Coll.

enables the application of the Civil Procedure Code only unless

stipulated otherwise by the Law. Pursuant to Civil Procedure Code both

the circle of persons who may be appointed as guardians and the extent

of representation may be assessed, however, not the circumstances for

appointment of a guardian related to the capacity of the party.

 

11.

Procedural capacity represents a prerequisite for personal access to

courts and thus a prerequisite for the application of the right to

judicial protection pursuant to Article 36 Section 1 and 2 of the

Charter of Fundamental Rights and Basic Freedoms, published under no.

2/1993 Coll., (hereafter only as “the Charter”). The purpose in the

appointment of a guardian undoubtedly lies in ensuring that a physical

person who is not able to duly defend their rights before court as a

result of their limitations is not disadvantaged by their restrictions

and limitations.

 

12. On the other hand appointment

of a guardian may not be too formalistic so as to exclude a physical

person restricted in their capacity from direct participation in court

proceedings unless such exclusion is unavoidable and necessary. Such

course of action would represent an interference with the rights

guaranteed by the above mentioned Article 36 Section 1 and 2 of the

Charter and by Article 5 of the Charter (“Everyone has the capacity to

possess rights.”) and in Article 10 Section 1 of the Charter (“Everyone

has the right to demand that her dignity be respected...”).

 

13.

The petitioner referred, for comparative purposes, to provisions

governing legal capacity in Act No. 141/1961 Coll., on Criminal

Proceedings (Criminal Procedure Code) as amended. The Code assumes

appointment of a defense counsel in the event the accused is either

deprived or restricted in his legal capacity [§ 36 Sec. 1 let. a) and

b)] or whenever it appears necessary due to physical or mental

impairment giving rise to doubts on the accused’s capacity to

appropriately defend himself (§ 36 Section 2). Pursuant to § 33 Section 1

of the Code of Criminal Procedure, however, all rights conferred onto

the accused are conferred onto a person even in the event he is deprived

of or restricted in his legal capacity and a legal representative of

the accused merely represents the accused restricted in or deprived of

legal capacity pursuant to § 34 of the Criminal Procedure Code without

the represented person being deprived of his

rights.                                                                                                                                                                                                                               

 

14.

National provisions governing procedural capacity must in the opinion

of the petitioner  petitioner be perceived in light of the European

Convention on the Protection of Fundamental Rights and Freedoms

published under No. 209/1992 Coll. /hereafter as “the Convention”),

which guarantees human dignity and access to courts. It is in the case

law of the European Court of Human Rights (hereafter as “European

Court”) where conditioning access to courts by a guardian is thus deemed

to represent restriction of direct access to courts unless such

condition is not tied to convincing grounds. The Convention on Rights of

Persons with Disabilities (hereafter only as “the UN Convention”) that

was adopted by the General Assembly of the United Nations Organization

on December 13, 2006 in New York (declared under No. 10/2010 Coll. in

the wording of the amendment declared under No. 44/2010 Coll. int.

treaties) cannot be omitted. The Convention protects persons with

disabilities from all types of discrimination and covers civil,

political, economic, social and cultural rights. It binds parties to the

Convention not only to adopt statutes and regulations compliant to the

above principle but also to ensure better every day life integration of

people with disabilities into the society as well as their access to

courts. The key article is Article 12 conferring the right of persons

with disabilities to be recognized as persons before the law  and

Article 13 governing access of people with disabilities to justice.

People with disabilities must be deemed to include also people with

long-term mental disability that may in interaction with other obstacles

prevent their full and effective integration into society as a standard

and in the extent equal to others.

 

15. The

Recommendation of the Committee of Ministers of the Council of Europe

No. R (99)4 on Principles Concerning the Legal Protection of Incapable

Adults (hereafter only as “the Recommendation”) stating that legal

provisions should be flexible and should enable “made-to measure” legal

response in each individual case is also relevant.

 

16.

The petitioner equally referred to the case law of the European Court

of  Human Rights that  in the cases of Shtukaturov versus Russia

(judgment dated March 27, 2008, application No.   44009/05), H. F.

versus Slovakia (judgment dated November 2005, application No. 54797/0)

and Alajos Kiss versus Hungary (judgment dated May 20, 2010, application

No. 38832/06), all available at www.echr.coe.int, the HUDOC

database had already emphasized that such principles, although they do

not have the power of the statutes, do define the common European

standard in this particular area, and thus promoted the above principles

from the soft law area onto principles binding in interpretation for

the course of action adopted by bodies of public authority. Principle 2

Section 1 of the quoted Recommendation embedded the flexibility within

legal response in the application of protective measures and other legal

arrangements available for protection of the personal and economic

interest of incapable adults. Principle 3 then stipulates that the

statutory framework should, as far as possible, recognize the fact that

different degrees of incapacity may exist and incapacity may vary from

time to time. Thus the measures of protection should not result

automatically in a complete removal of legal capacity. Restriction of

legal capacity should be possible only in cases when it is shown to be

necessary for the protection of the person concerned.

 

17.

In the view of the petitioner in order to assess whether the legal

provisions governing procedural capacity contained in the contested

provisions are not contrary to fundamental rights, the perceptions of

the concerned tenet and of the function of a guardian as reflected in

case law is crucial. The judgment of the Constitutional Court file no.

IV. ÚS 412/04 of December 7, 2005 (N 223/39 SbNU 353) is vital to the

assessment of the instant question. The Court formulated similar

opinions in judgment file no. II. ÚS 2630/07 dated December 13, 2007 (N

224/47 SbNU 941) when it assessed the petition seeking annulment of  §

10 Section 1 of Act No. 40/1964 Coll., of the Civil Code as amended (the

possibility of deprivation of legal capacity). Here the Constitutional

Court emphasized that it is through legal capacity, (conduct) and

procedural capacity that the constitutional guaranties of legal

subjectivity of an individual guaranteed by Article 5 of the Charter are

exercised. The rights and entitlements lacking a genuine tool for

protection of their maintenance would represent nothing more than empty

proclamations. The Constitutional Court had not annulled the contested

instrument of deprivation of legal capacity itself but emphasized the

necessity of its application being in conformity with the constitutional

order.

 

18. The European Court of Human Rights in

its judgment in Ashingdane versus United Kingdom (Judgment dated May 28,

1985, application No. 8225/78), Klass and others versus Germany

(Judgment dated September 8, 1978, application No. 5029/71) and

Salontaji-Drobnjak versus Serbia (judgment dated October 13, 2009,

application No. 36500/05) expressed its view that the right to access to

court is not an absolute one and may be restricted. Such interference,

however, cannot restrict the access to court in a manner as to threaten

the very substance of the access to court. The restrictions will not be

deemed in compliance with Article 6 para. 1 of the Charter unless such

restrictions pursue a legitimate objective and the instruments applied

are not proportionate to the pursued objective. In Zehentner versus

Austria (judgment dated  July 16, 2009, application No. 20082/02) the

European Court dealt directly with the procedural capacity of the

petitioner before this court and did not admit the objection of the

government that the application should have been dismissed due to the

absence of representation by a guardian; the Court however, draw upon

the fact that in proceedings before this Court the need for

representation does not need to be as obvious as in the cases of

restrictions applied within the national laws aimed inter alia at

ensuring that the individuals restricted in their legal capacity do not

exercise their rights or deal with property in a manner harmful to them.

In the above-mentioned decision in Shtukaturov versus Russia the

European Court of Human Rights held that many of the states have

recently modified their approach to individuals with disabilities and

have either undergone or are undergoing a reform of the guardianship

systems. It is namely the abolishment of the act of deprivation and

restriction of legal capacity in their traditional form and subsequent

replacements of such acts by measures that do not result in loss of

legal capacity of an individual but lead to such an individual being

provided with assistance with exercise of it that represents a

significant element of such reforms. The European Court recommends a

so-called functionality test pursuant to which the very presence of any

kind of disability (including a mental one) does not automatically mean a

loss of capacity to make decisions. What needs to be tested is what

kind of action the concerned individual fails to comprehend and control,

what impact the mental condition has on the social life, health,

property matters and other interests of such an individual. The mere

existence of a mental condition, and not even of a severe one, may not

represent the sole ground justifying the deprivation of legal capacity.

Similarly the factual capacity matters were addressed in other judgments

of the European Court (such as judgment dated October 24, 1979 in

Winterwerp versus the Netherlands, application No. 6301/73; judgment

dated  July 7, 7. 2008, X versus Croatia, application No. 11223/04; and

the above quoted judgment Alajos Kiss versus Hungary).

 

19.

The case law of the Supreme Court related to the provisions governing

the procedural capacity within Civil Procedure Code both emphasises the

link of the procedural capacity to restriction of a substantive nature

(i.e. opinion dated May 23, 1979 file no. Cpj 301/77, published under

no. R 34/85), and also stresses another aspect of the matter, namely

that in the event a guardian is appointed without the proper conditions

being met, an impermissible deprivation of a right to be heard occurs.

In its judgment file no. 23 Cdo 107/2009 dated May 18, 2009 (available

at novyweb.nsoud.cz) the above court appointed a guardian to a

party to the proceedings who was unable to attend the hearing due to his

health condition for a temporary period of time and the court stated

that: “Should a guardian be appointed to the party to proceedings

without the requirements set forth in Section 29 para. 3 of the Civil

Procedure Code having been satisfied and the aforementioned fact lead to

the court not hearing the party to the proceedings or other

representative, the case amounts to the party to the proceedings being

deprived of the right to be heard in court in the course of the

proceedings by erroneous course of action adopted by the court.”  A

similar conclusion was arrived at by this court in Judgments file no. 20

Cdo 2850/99 dated August 23, 2001 and file no. 30 Cdo 1072/2005 dated

August 31, 2005 (available at novyweb.nsoud.cz).

 

20.

In conclusion the petitioner reminded the court that the appointment of

the guardian is of a protective nature and its very purpose is to

provide a party to proceedings lacking full legal capacity to the

necessary extent a legally competent individual who will assist them in

court proceedings so that neither their substantive nor their procedural

rights are interfered with.  On the other hand, shall the party to the

proceedings not be allowed to turn to court and actively participate in

the proceedings although he is able to do so, such a circumstance

amounts to restriction or deprivation of a right. This is especially the

case when the restriction on rights does not relate in any way to the

concerned court proceedings. The individual partially restricted in

capacity regarding employment law acts thus cannot be deprived of

procedural capacity without further grounds and without putting regard

on the actual abilities of such an individual. The contested provision,

however, assumes such course of action by excluding from procedural

capacity those individuals who do not possess full legal capacity. The

court must, nevertheless, guard that the interests are balanced and due

process is ensured even in the case that the communication with the

party to the proceedings is a difficult one and rights of such an

individual are not to be interfered with. The provisions in question are

unique within the national law and cannot be justified by any specific

feature of administrative judiciary. The petitioner thus arrived at the

conclusion that the contested provision is contrary to the commitments

following from Article 6 Section 1 of the Convention and Article 12 and

13 of the UN Convention and provisions of Article 5, Article 10 Section 1

and 2 and Article 36 Section 1 and 2 of the Charter. In the view of the

petitioner this inconsistency is irremovable by a constitutionally

conforming interpretation since such an interpretation may not be of

contra legem nature. And yet, annulment of the quoted provisions does

not give rise to any difficulties since in the event of its removal from

the Civil Procedure Code (§ 64 of Act No. 150/2002 Coll.) may be

followed as its provisions will stand the test of the concerned aspects.

 

21.

Relying on the aforementioned reasons the petitioner sought to have the

contested provisions annulled by the Constitutional Court in its

judgment upon conduct of the proceedings.


II.
Summary of Substantial Parts of Opinions of the Parties to the Proceedings

22.

Pursuant to provisions of Section 42 par. 4 and Section 69 of the Act

of the Constitutional Court the Constitutional Court sent the concerned

application to the Chamber of Deputies of the Parliament of the Czech

Republic and to the Senate of the Parliament of the Czech Republic.  The

Chairwoman of the Chamber of Deputies of the Parliament of the Czech

Republic Miroslava Němcová in the opinion dated January 2011 described

the legislative procedure of the enactment of the Act No. 150/2002 Coll.

and stated that the legislative body acted upon its conviction that the

enacted Act is in compliance with the Constitution and our legal order.

As far as the contested provisions are concerned the explanatory

memorandum accompanying  the Bill merely states in a general manner

that: “...The introductory general provisions on proceedings define the

time of the actual commencement of the proceedings and the parties to

the proceedings; regarding the latter the provisions in a common manner

define the capacity of the parties and their procedural capacity”

(parliamentary print 1080, explanatory memorandum, special part,

commentary to sections 31 to 38).

 

23. The

President of the Senate of the Czech Republic Milan Štech in the opinion

dated December 22, 2010 equally described the legislative procedure of

the enactment of the Act No. 150/2002 Coll., noting that the Senate

proceeded within the scope of authorities defined by the Constitution

and in a manner prescribed by the Constitution. Furthermore, he stated

that the Code of Administrative Procedure had been a long expected act

of the legislature and was presumed to have replaced the not as flawless

legislative provisions of the administrative judiciary, regulated by

part five of the Civil Procedure Code in the wording applicable at the

given time. The ambition of the Act No. 150/2002 Coll. was to remove the

constitutional deficiencies of the legislative provisions, and at the

tenet level to embed the role and position of the administrative courts

and judges as far as necessary in relation to a general regulation [Act

No. 6/2002 Coll., on Courts, Judges, Lay Judges and Administration of

Courts and on Amendment of Certain Further Laws (Law on Courts and

Judges)] and to set forth in a complex manner the regulations of

proceedings before administrative courts. In course the of the

discussion of the reform material of a codex-like nature the Senate is

not awarded space to focus in great detail on the individual provisions

mainly at times when truly controversial or questionable issues appear

at the very centre of everyone’s attention.  This was the case in course

of the discussion of the Code of Administrative Justice when the

senators discussed the deficiencies of the legislative provisions as a

result of the disapproval of the “new” code of administrative procedure;

preference was given to the issues related to absence of the

accompanying amendment of the Constitution, and the choice of seat of

the Supreme Administrative Court was another frequently discussed

matter. Nevertheless, even within the laws of a codex-like nature having

been debated by the Senate in the above-described manner, certain

details of the Code of Administrative Justice were addressed, inter alia

the question of procedural capacity of the party to proceedings. The

Vice President of the Senate, Jan Ruml, noted in the debate that

although “the proposed legislation is a necessary regulation, thus its

enactment should be treated as a priority”, there were, nevertheless,

“certain minor reservations”. The speaker in this case included among

the aforementioned reservations namely the concerned matter covered by

the contested provision when he informed the plenum what his opinion was

using the following words:  “...I do not see it as necessary to resist

and depart from the already verified procedural practices of the Civil

Procedure Code and I do not know why several instruments are regulated

again and furthermore with merely minor differences. A situation may

thus occur of a deteriorated position of a party to proceedings as this

position is in this statute - the Code of Administrative Justice - more

strictly viewed than in the Civil Procedure Code.”  J. Ruml did not,

however, rely on the argument of unconstitutionality of such provisions

neither did he submit any proposals for amendments accordingly. He

merely urged the “proponent to hear his reservations and to possibly

work on them within any further legislative activities. The minister

Jaroslav Bureš on behalf of the proponent responded as follows:

“Relation to the Civil Procedure Code offered two options. What Senator

Ruml has just said is an entirely legitimate view. The prevalence was

awarded in such a manner so that the readers are offered the fundamental

procedural instruments in an amendment needed for the administrative

judiciary. If there, thus, is certain divergence, it is determined by

the nature of the proceedings before regional administrative courts, or

the Supreme Administrative Court.” Having heard all speakers in the

debate the Senate voted and approved the Bill in its wording approved by

the Chamber of Deputies of the Parliament of the Czech Republic. The

contested provision has thus represented in an unamended form from the

very beginning an inseparable part of the Act No. 150/2002 Coll. The

President of the Senate concluded by stating that it is entirely at the

discretion of the Constitutional Court pursuant to the Constitution and

the Act on Constitutional Court to determine the constitutionality of

the contested provision.


III.
Dispensing with Oral Hearing

24.

Pursuant to provisions Section 44 para. 2 of the Act No. 182/1993 Coll.

the Constitutional Court may dispense with oral hearing should further

clarification of the matter not be expected of the hearing. As both the

petitioner and the parties to the proceedings expressly consented to the

oral hearing being dispensed with, the hearing was indeed dispensed

with in the instant matter.


IV.
Conditions of the Petitioner’s Standing

25.

The Constitutional Court initially tested whether the formal

prerequisites for factual determination of the application had been

satisfied and it further observed whether the petitioner in the instant

case has the standing to lodge such an application.

 

26.

Pursuant to Article 95 Section 2 of the Constitution which the

application relies upon, should a court come to the conclusion that the

statute that should be applied in the resolution of a matter is in

conflict with the constitutional order, it shall submit the matter to

the Constitutional Court.  The Constitutional Court notes that in the

tested case direct application of the contested provision by the

petitioner is necessary. Thus the application was lodged by a petitioner

entitled to do so.


V.
Constitutional Conformity of the Legislative Procedure

27.

Pursuant to Section 68 para. 2 of the Act on the Constitutional Court

the Constitutional Court - apart from testing the compliance of the

contested provision with the constitutional order - ascertains whether

the statute was adopted and issued within the confines of the powers set

down in the Constitution and in the constitutionally prescribed manner.

 

28.

Since the petitioner did not contest either a fault of legislative

procedure or action outside the statutory competencies of the

legislature it is not necessary, with regards to the principles of

procedural economy, to address this matter in more detail and apart from

taking regard to the opinions submitted by the Chamber of Deputies of

the Parliament of the Czech Republic and by the Senate of the Parliament

of the Czech Republic a formal verification of the course of

legislative procedure based on publicly accessible source of information

at www.psp.cz. will suffice.

 

29. Act No.

150/2002 Coll. was approved by the Chamber of Deputies of the Czech

Republic on February 15, 2002 and by the Senate of the Czech Republic on

March 21, 2002. The President signed the Act on March 28, 2002 and the

Act was published on April 17, 2002 in the Collection of Laws of the

Czech Republic in part 61 under number 150/2002 Coll. The Constitutional

Court finds that the Act was adopted and issued within the confines of

the powers set down in the the Constitution and in a constitutionally

prescribed manner.

 

30. Having tested the above the

Constitutional Court proceeded to test the content of the contested

provision from the view of its compliance with the constitutional order

of the Czech Republic [Article 87 Section 1 Letter a) of the

Constitution].


VI.
Wording of the Contested Provision

31. Provision Section 33 para. 3 sentence of the Act No 150/2002 Coll. reads as follows:

“The

party is competent to act independently to in the proceedings

(hereafter only as “the procedural capacity”) only provided he/she

enjoys full legal capacity.”


VII.
Compliance of the Contested Provision with the Constitutional Order

32.

The Constitutional Court proceeded to the review of the contested

provision from the perspective of its compliance with the constitutional

order of the Czech Republic, mainly with the rights and principles set

out in Art. 5, Art. 10, Section 1 and 2 and Art. 36, Section 1 and 2 of

the Charter, Art. 6, Section 1 of the Convention and Art. 12 and 13 of

the UN Convention.

 

33. The petitioner concluded

that on the basis of the comparison of the legal regulation concerning

the procedural capacity contained in Act No. 150/2002 Coll. with the

corresponding regulation contained in the Civil Procedure Code and

Criminal Code, while perceiving the current issues from the perspective

of the Charter, the Convention, the UN Convention, the quoted

Recommendation, as well as with reference to the case law of the

Constitutional Court, the European Court, the Supreme Court, and the

petitioner, it may be concluded that the contested provision excludes,

in collision with the constitutional order, persons who do not enjoy

full legal capacity from the procedural capacity. The petitioner also

pointed out the unfounded uniqueness of the given regulation within the

Czech judiciary, maintaining that: “striking down the contested

provision is not bound to cause any difficulties since upon its removal,

the Civil Procedure Code can be followed (Section 64 of Act No.

150/2002 Coll.), whose regulation will stand the test from the

perspectives mentioned above.”

 

34. Previously, the

Constitutional Court held that “the Constitution accepts and respects

the legality principle as part of the overall concept of the state

governed by the rule of law, yet it does not associate the positive law

with formal legality only, subordinating the interpretation and

application of legal norms and regulations to their content and material

sense” (for instance, cf. judgment file reference Pl. ÚS 7/2000, issued

on 4 July 2000, published under No. 261/2000 Coll., N 106/19 Collection

of judgments 45). Similarly, in its judgment file reference IV. ÚS

412/04, also referred to by the petitioner, and its judgment file

reference I. ÚS 557/09, issued on 18 August 2009 (N 188/54, Collection

of judgments 325, see also nalus.usoud.cz), the Constitutional

Court held that  “the core of the constitutional order of the Czech

Republic is the individual and his/her 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 an 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 to be

recognized as persons before the law), 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. Within this

concept, questions of human dignity are understood as a component of the

quality of a human being, a component of his/her humanity. Guaranteeing

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

his/her 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 para. 1). The Constitutional Court considers

the right of a free individual to be recognized as a person before the

law and the guarantee of the de facto exercise of such right to

represent extremely important constitutional values with a central

position in the constitutional order (Art. 1, Art. 9 para. 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 perceived dignity of the individual (Preamble to

the Constitution, Art. 1 and Art. 10 Section 2 of the Charter).”

 

35.

In general, any legal norm allowing the restriction of fundamental

rights must be interpreted and applied with the awareness of the

importance and width of relations covering the fundamental rights

subject to the restriction. This legal regulation may be applied only

after a careful determination, which must be expressed in the reasoning

behind the decision itself, what colliding fundamental rights of any

third persons or what public interests are in collision with the

fundamental rights of the person subject to the restriction of his or

her rights. In the instant case, there is a collision of the subjective

right to the preservation of human dignity and the right to judicial

protection with the individual’s capacity to undertake legal acts and

thus the procedural capacity.

 

36. The

constitutional order, in Art. 5 of the Charter, recognizes and

guarantees everyone the capacity to possess rights, i.e. it guarantees

the right to be recognized as person before the law to everyone. For

this reason, any intervention must be examined from the perspective of

the potential interference with the fundamental rights of the person

subject to such restriction, as guaranteed, above all, by Art. 5 and

Art. 10, Section 1 and 2 of the Charter, interpreted in the extent

limited by human dignity.  Since the Charter guarantees these rights as

so-called absolute fundamental rights, they may be restricted only for

the purposes of protecting the fundamental rights of any other persons

or the purposes of protecting the public interest which is contained, in

the form of a principle or value, in the constitutional order as a

whole (constitutionally immanent restriction of the fundamental rights

and freedoms). On condition that no such purpose has been established,

it is impossible to apply the statutory provisions which would interfere

with the fundamental rights and freedoms of the person subject to such

restriction (cf. judgment file reference Pl. ÚS 42/02, issued on 26

March 2003 and published under No. 106/2003 Coll., N 42/29 Collection of

judgments 389, also available on nalus.usoud.cz ).

 

37.

In the light of the purpose and implications of the contested

provision, it is obvious that this provision does not pursue any

legitimate goal, i.e. it is not a case of promoting a goal which is

essential to free and democratic society, since there is no guarantee of

a fair balance between ensuring the interests of society on the one

hand and respect to the guaranteed rights and freedoms of an individual

on the other hand. A person defined by means of their right to be

recognized as person before the law has the right to freedom of action,

and therefore, provided that the public authority hinders the exercise

of their procedural capacity by applying the contested provision, such

procedure may not be found in line with the goal indispensable in a free

and democratic society.

 

38. At present, the

question of disability is an important issue of human rights and

freedoms.  This is also evidenced by the UN Convention, quoted by the

petitioner, which is the first legally binding international instrument

in the sphere of human rights, by which the European Union and its

Member States are bound [cf. the Council Decision of 26 November 2009

concerning the conclusion, by the European Community, of the United

Nations Convention on the Rights of Persons with Disabilities (in the

Official Journal of the European Union published on 27 January 2010, L

23/35) and the European Disability Strategy 2010–2020: A Renewed

Commitment to a Barrier-Free Europe, published on 15 November 2010 in

eur-lex.europa.eu], as well as the growing case law of the

European Court of Human Rights in the area of disability law. For

instance, in the case of Glor v. Switzerland (Judgment issued on 30

April 2009, No. 13444/04 in www.echr.coe.int, HUDOC database;

Decisions and judgments of the ECHR No. 4, Vol. 2010, p. 235, and the

summary of judgments of the European Court in ASPI under No. JUD

190926CZ), the European Court examined the question of the availability

of reasonable alternatives to military service for persons with

disabilities. It is the first case in which the Court established a

violation of the prohibition of discrimination against individuals with

disabilities (Art. 14 of the Convention) and in which it applied the

principle of so-called “reasonable regulations” with respect to the UN

Convention, i.e. a broader definition of this concept in order to

guarantee the compliance with Art. 1 of this Convention (editor’s note:

UN Convention), consisting in promoting, protecting and providing the

full and equal enjoyment of all human rights and fundamental freedoms by

all persons with disabilities and promoting respect to their natural

dignity.

 

39. Taking into account the current

perception of the issue of the procedural capacity by the Constitutional

Court and the European Court of Human Rights, the comparison of the

current legal regulation of the procedural capacity in the individual

regulations of the sub-constitutional law, as well as the analysis of

the whole case conducted by the petitioner, it is obvious that the

contested provision is inconsistent with the proportionality principle,

as well as with the maxim according to which any interference with

rights must reflect the particularities of every single case. Given the

situation in which it is impossible to provide any constitutionally

conforming interpretation of the contested provision, the Constitutional

Court holds that the unlawful situation persists, consisting in the

fact that persons who have been restricted in their legal capacity are

prevented from exercising their procedural capacity within

administrative court proceedings pursuant to Act No. 150/2002 Coll.,

even though the restriction on their rights does not at all concern the

court proceedings in question. Undoubtedly, this conclusion also arises

from the role of the administrative judiciary, one of whose most

important missions includes the protection of the rights of an

individual in dealings with administrative bodies.

 

40.

From the considerations outlined above and with respect to the

implications of the contested provision on the public subjective rights

of an individual, it is obvious that it is necessary to agree with the

petitioner’s opinion included in the petition, i.e. that the application

of the contested provision would violate the fundamental rights

guaranteed by the constitutional order of the Czech Republic,

particularly those included in Art. 5, Art. 10, Section 1 and 2, and

Art. 36, Section 1 and 2 of the Charter, Art. 6, Section 1 of the

Convention, and Art. 12 and 13 of the UN Convention. Pursuant to Section

70, Section 1 of the Act on the Constitutional Court, the

Constitutional Court thus annulled the contested provision.

 

Note: No appeal from a decision of the Constitutional Court is permissible (Section 54 of the Act on the Constitutional Court).