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HEADNOTES
Art.
96 para. 1 of the Constitution of the CR enshrines, as one of the key
principles of the functioning and implementation of the judicial power
in the CR, the procedural principle of the equality of rights in parties
before the court. This constitutional principle thus guarantees the
equal procedural status of parties in judicial proceedings concerning
rights which are granted to parties of a particular type of proceedings
by the legal order. One can conclude form this principle, among other
things, that a particular type of proceedings must have a single court
jurisdiction, understood in the substantive and functional dimension,
and that framework must be implemented by statute.
It is evident that the legislature can set varying degrees of
procedural rights and obligations for various types of proceedings with
different subject matter. In other words, the equality of parties to
proceedings must be interpreted so that the same scope of procedural
rights and obligations must be observed in proceedings which match the
same subject of proceedings. However, it is impermissible for the
distinguishing criterion to be, instead of the subject matter of the
proceedings, the party himself – even if, for example, defined by his
procedural status in any previous proceedings.
Art. 37 para. 3 of the Charter of Fundamental Rights and Freedoms
provides that all parties to proceedings are equal. This provision of
the Charter must be interpreted to the effect that this is a principle
which guarantees the equal procedural rights and obligations of
particular parties in particular proceedings. In this, this provision of
the Charter differs from Art. 96 para. 1 of the Constitution, which
generally foresees the equality of parties in proceedings with the same
subject matter.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The Plenum of the Constitutional Court decided on a petition from the High Court in Olomouc to annul § 24 para. 4 of Act no. 328/1991 Coll., on Bankruptcy and Settlement, as amended by later regulations, with the participation of the Chamber of Deputies of the Parliament of the CR and of the Senate of the Parliament of the CR as parties to the proceedings, as follows:
The provision of § 24 para. 4 of Act no. 328/1991 Coll., on Bankruptcy and Settlement, as amended by later regulations, is annulled.
REASONING
I.
On
15 August 2002, the Constitutional Court received, under Art. 95 para. 2
of the Constitution of the CR and § 64 para. 4 of Act no. 182/1993
Coll., on the Constitutional Court, a petition from the High Court in
Olomouc to annul § 24 para. 4 of Act no. 328/1991 Coll., on Bankruptcy
and Settlement, in the valid wording.
Under
§ 104a of the Civil Procedure Code, the High Court in Olomouc receives
for decision matters in which the parties to the proceedings, regional
courts, or district courts, believe that the bankruptcy court lacks
substantive jurisdiction to decide on a creditor’s complaint to
determine a claim or the district court lacks jurisdiction to decide on a
creditor’s complaint in proceedings opened at the district court before
bankruptcy filings were made. In these cases the High Court in Olomouc
is to decide on the substantive jurisdiction under the contested § 24
para. 4 of the Bankruptcy and Settlement Act.
The
petitioner justified its petition on the grounds that Act no. 105/2000
Coll., which amends Act no. 328/1991 Coll., on Bankruptcy and
Settlement, as Amended by Later Regulations, and Certain Other Acts,
effective as of 1 May 2000, inserted in the newly formulated § 24 of the
Bankruptcy and Settlement Act a fourth paragraph which provides that
if, before bankruptcy filings were made, proceedings were opened on a
denied claim and these proceedings were suspended [§ 14 para. 1 let.
c)], the denied claim shall be determined in the proceedings already
opened; new proceedings on the denied claim are not opened [§ 14 para. 1
let. d)]. The petition to continue the suspended proceedings must be
filed by the deadlines provided by the Act (§ 23 para. 4 and 5 and § 24
para. 1 and 2); those whom the Act identifies as parties (§ 23 para. 2 a
3 a § 24 para. 1 a 2) become parties to the proceedings.
In
the petitioner’s opinion the legislature did not adequately consider
the range of cases which this provision affects. By application of this
provision in various procedural situations bankruptcy creditors whose
non-executable claims were denied in the review proceedings are placed
in an unequal position. In some cases they find themselves in an
unsolvable procedural situation, in other cases, on the contrary, they
are at an advantage compared to other bankruptcy creditors.
In
its petition, the High Court in Olomouc further stated that § 24 para. 4
of the Bankruptcy and Settlement Act applies if proceedings on a denied
claim were opened before bankruptcy filings were made ant those
proceedings were suspended through the filing for bankruptcy. In the
petitioner’s opinion, § 24 para. 4 does not take into account cases
where a decision was already made in the proceedings before the court of
the first level and the decision has not yet gone into legal effect,
not has it been contested by an appeal, by a protest, or by objections.
In these cases, the court is bound by the announced decision under § 156
para. 3 and § 170 para. 1 of the Civil Procedure Code In that
situation, in the petitioner’s opinion neither the parties nor the
petition can be changed, as the matter has already been decided. On the
other hand, however, the contested provision prohibits opening new
proceedings on the denied claim. Therefore, the petitioner believes that
in this case a creditor with a non-executable claim does not have a
procedural opportunity to obtain a decision in his dispute over the
denied claim in bankruptcy proceedings.
The
petitioner also believes that § 24 para. 4 of the Bankruptcy and
Settlement Act can, however, lead to violation of the equality of
bankruptcy creditors, not only to the disadvantage of the creditor whose
claim was at issue in proceedings before the filing for bankruptcy, but
also by giving him an advantage over the other bankruptcy creditors.
This is because § 24 para. 4 of the Bankruptcy and Settlement Act gives
the court an obligation to specify the circle of parties to the
proceedings and issue the judgment verdict even without a petition.
Therefore, in cases where the bankruptcy creditor imprecisely or
incorrectly formulates a petition to continue already opened
proceedings, § 24 para. 4 of the Bankruptcy and Settlement Act gives him
an advantage compared to other bankruptcy creditors whose claims were
also denied during the review proceedings.
The
petitioner sees the abovementioned facts as grounds for the
unconstitutionality of the contested provision of the Bankruptcy and
Settlement Act, and it therefore petitioned for a judgment which will
annul § 24 para. 4 of the Bankruptcy and Settlement Act in the presently
valid wording.
II.
The
reporting judge requested, in accordance with § 42 para. 4 and § 69
para. 1 of Act no. 182/1993 Coll., on the Constitutional Court, as
amended by later regulations, position statements from both houses of
the Parliament of the CR.
A) The Chamber of Deputies, represented by its chairman, PhDr. Lubomír Zaorálek, in its position statement of 10 October 2002, stated that the legislature’s motive for including § 24 para. 4 of the Bankruptcy and Settlement Act on determination of a disputed claim within the already opened proceedings suspended by the filing for bankruptcy was to simplify and make more economical the manner of addressing the disputed claim for purposes of bankruptcy. In his opinion, this provision is supposed to make possible a reduction in the number of incidental disputes where it would otherwise be necessary to open new proceedings through a separate complaint to determine the disputed claim. As a rule, a number of items of evidence which were already presented in the suspended proceedings on the same claim can be used. In discussion the Act, the legislature began with the purposes of the Act and the aims of bankruptcy proceedings, and was convinced that it was meeting the requirements of the Constitution of the CR a of the Charter of Fundamental Rights and Freedoms.
A) The Chamber of Deputies, represented by its chairman, PhDr. Lubomír Zaorálek, in its position statement of 10 October 2002, stated that the legislature’s motive for including § 24 para. 4 of the Bankruptcy and Settlement Act on determination of a disputed claim within the already opened proceedings suspended by the filing for bankruptcy was to simplify and make more economical the manner of addressing the disputed claim for purposes of bankruptcy. In his opinion, this provision is supposed to make possible a reduction in the number of incidental disputes where it would otherwise be necessary to open new proceedings through a separate complaint to determine the disputed claim. As a rule, a number of items of evidence which were already presented in the suspended proceedings on the same claim can be used. In discussion the Act, the legislature began with the purposes of the Act and the aims of bankruptcy proceedings, and was convinced that it was meeting the requirements of the Constitution of the CR a of the Charter of Fundamental Rights and Freedoms.
In
the conclusion of his statement, the chairman of the Chamber of
Deputies of the Parliament of the CR stated that Act no. 105/2000 Coll.,
which amends and supplements Act no. 328/1991 Coll., on Bankruptcy and
Settlement, as amended by later regulations, was approved by the Chamber
of Deputies at its 21st session on 28 January 2000; 128 out of 152
present voted in favor or it. The Senate of the Parliament of the CR
approved the draft act submitted by the Chamber of Deputies as amended
by amending proposals at its 16th session on 1 March 2000, and the
Chamber of Deputies subsequently approved the draft act in the version
approved by the Senate; out of 181 deputies present, 98 voted in favor
and 81 against. The Act was thus approved by the necessary majority of
deputies in the legislative assembly, was signed by the appropriate
constitutional representatives, and was duly promulgated. In the opinion
of the Chamber of Deputies, the legislative assembly acted in the
conviction that the passed act was consistent with the Constitution of
the CR and the constitutional order, and that it is solely up to the
Constitutional Court to evaluate the constitutionality of the contested
provision in connection with the filed petition and to issue an
appropriate decision.
B) The Senate of the Parliament of the CR, in its position statement of 16 October 2002, signed by its chairman, doc. JUDr. Petr Pithart, stated that the draft act was submitted to the Senate on 7 February 2000. The Senate discussed the draft at its 16th session of its second term of office, held on 1 March 2000, and by resolution no. 302 returned the draft act to the Chamber of Deputies with amending proposals. Out of a total of 53 senators present, 52 voted to return the draft act and 1 senator abstained from voting. The Chamber of Deputies again discussed the draft act on 4 April 2000 at its 24th session. The draft act, as amended by amending proposals, was approved by Chamber of Deputies resolution no. 902; out of 181 deputies present 98 deputies voted in favor and 81 deputies were against.
B) The Senate of the Parliament of the CR, in its position statement of 16 October 2002, signed by its chairman, doc. JUDr. Petr Pithart, stated that the draft act was submitted to the Senate on 7 February 2000. The Senate discussed the draft at its 16th session of its second term of office, held on 1 March 2000, and by resolution no. 302 returned the draft act to the Chamber of Deputies with amending proposals. Out of a total of 53 senators present, 52 voted to return the draft act and 1 senator abstained from voting. The Chamber of Deputies again discussed the draft act on 4 April 2000 at its 24th session. The draft act, as amended by amending proposals, was approved by Chamber of Deputies resolution no. 902; out of 181 deputies present 98 deputies voted in favor and 81 deputies were against.
In
Senate committees, the issues of § 24 para. 4 of the Act were
extensively discussed in connection with the aim that “incidental”
disputes always be decided by a court, even though otherwise these were
claims which a court did not have the authority to decide, which does
not correspond to § 7 para. 1 of the Civil Procedure Code. The
conception under which bankruptcy courts should decided incidental
disputes, including, for example also administrative and tax claims,
appeared inconsistent in relation to § 24 para. 4 of the amendment to
the Act, because, in the opinion of some, this overlooked the fact that,
under § 14 para. 1 let. c), not only judicial, but also other
proceedings, are suspended. Thus, continuing in the proceedings would
take place not before the court, but before the body (administrative,
tax) at which the proceedings were opened.
According
to the Senate’s statement, the committees concluded that the party
proposing the Act apparently did not take into account the fact that any
outcome of a dispute on the authenticity, amount, or order of claims
does not establish the obstacle of pending litigation for claims applied
in proceedings which were suspended by the filing for bankruptcy. This
consequence appeared particularly important in a situation where, under §
45 para. 2 of the Bankruptcy and Settlement Act, claims which were
considered ascertained for purposes of bankruptcy, but which the
bankrupt party denied after the cancellation of bankruptcy proceedings,
would not be grounds for execution. It was also pointed out in
discussion that the wording of § 23 para. 2 last sentence may be in
direct conflict with § 24 para. 4 of the Act, because in the
abovementioned opinions the order of a claim should be decided by a
court in proceedings which are being continued, and which need not be
judicial proceedings.
As the
chairman of the Senate stated further in his statement, despite the
abovementioned discussions and proposals to delete § 24 para. 4 from the
draft act, subsequently the inclination to retain the submitted wording
of this provision prevailed in the committees. The Senate session did
not consider the issues further.
III.
Under
§ 44 para. 2 of Act no. 182/1993 Coll., on the Constitutional Court, as
amended by later regulations, the Constitutional Court can, with the
consent of the parties, omit oral proceedings if they can not be expect
to clarify the matter further. Therefore, in accordance with this
provision, the Constitutional Court asked the parties to the proceedings
for a statement as to whether they agreed with omitting oral
proceedings. By a filing of 5 March 2003, the High Court in Olomouc, and
by filings of 4 March 2003, likewise the Chamber of Deputies of the
Parliament of the Czech Republic and of 7 March 2003, the Senate of the
Parliament of the Czech Republic, gave their consent to omit oral
proceedings in the adjudicated matter.
IV.
Before
the Constitutional Court turned to evaluating the content of the
contested statutory provision in the aspects defined by § 68 para. 2 of
Act no. 182/1993 Coll., on the Constitutional Court, i.e. in terms of
the consistency of § 24 para. 4 of the Bankruptcy and Settlement Act
with constitutional statutes, it reviewed whether the formal
requirements for passing the relevant legal norm had been met.
The
draft act which amends and supplements Act no. 328/1991 Coll., on
Bankruptcy and Settlement, as amended by later regulations, was
submitted to the Chamber of Deputies as a proposal from deputies on 29
April 1999. From the stenographic record of the 21st session of the
Chamber of Deputies, 3rd election term, the Constitutional Court
determined that on 28 January 2000 the Chamber of Deputies, according to
Chamber of Deputies document 219, as amended by approved amending
proposals, agreed with this draft; out of 152 deputies present 128 voted
for the draft and one deputy voted against it.
The
stenographic report on the 16th session of the Senate, 2nd election
term, showed that on 1 March 2000, the draft act, together with passed
amending proposals, was returned to the Chamber of Deputies; out of 53
senators present, 52 voted in favor and one senator abstained from
voting.
From the
stenographic record of the 24th session of the Chamber of Deputies, 3rd
election term, the Constitutional Court determined that the Chamber of
Deputies, on 4 April 2000, passed the draft act which amends Act no.
328/1991 Coll., on Bankruptcy and Settlement, as Amended by Later
Regulations, and Certain Other Acts, in the version approved by the
Senate; out of 181 deputies present 98 voted in favor and 81 against.
After
being passed, Act no. 105/2000 Coll., which amends Act no. 328/1991
Coll., on Bankruptcy and Settlement, as Amended by Later Regulations,
and Certain Other Acts, was signed by the appropriate constitutional
representatives and published in part 32 of the Collection of Laws,
which was distributed on 25 April 2000. The Act went into effect, in
accordance with Art. VIII., on 1 May 2000.
Therefore,
the Constitutional Court, under § 68 para. 2 of the Act on the
Constitutional Court, found that Act no. 105/2000 Coll., which inserted §
24 para. 4 into the Bankruptcy and Settlement Act, was passed and
issued within the bounds of the legislative jurisdiction of the
Parliament of the CR prescribed by the Constitution of the CR and in a
constitutionally prescribed manner, as, in any case, the Constitutional
Court already stated in the matter Pl. ÚS 36/01.
V. - A
The
provision of § 24 para. 4 was inserted into the Bankruptcy and
Settlement Act when it was amended by Act no. 105/2000 Coll., which
amends Act no. 328/1991 Coll., on Bankruptcy and Settlement, as Amended
by Later Regulations, and Certain Other Acts, with effect as of 1 May
2000. The contested § 24 para. 4 affects situations where a bankruptcy
trustee or bankruptcy creditor, in review proceedings, denied a
non-executable claim of a creditor, arising from a claim which was
registered in the bankruptcy proceedings. If the bankruptcy creditor,
before the bankruptcy filing was made, applied any part of this claim in
proceedings which were suspended by the bankruptcy proceedings, it is
impermissible to open new incidental proceedings, but proceedings to
determine the authenticity, amount or order of the registered claim are
to be conducted before the court which conducted the proceedings which
were suspended by law by the bankruptcy filing.
As
indicated by the background report to Act no. 105/2000 Coll., in this
case it was the intent of the legislature to rationalize and make more
economical incidental proceedings caused by bankruptcy proceedings. The
legislature’s aim was to reduce the number of incidental proceedings so
that the Act would permit making use of the outcomes of proceedings
which were suspended as a result of a bankruptcy filing, and thus
continue on from the proceedings on the claim which were conducted
before the bankruptcy filing.
It is also evident from the background report to the Act and from the statements of the parties to the proceedings that the legislature constructed § 24 para. 4 of the Bankruptcy and Settlement Act in the conviction that in the future it would not be necessary to open new proceedings to determine the denied claim, but that the original proceedings would continue on from their current position, and, in particular, all factual and other judgments would be used.
It is also evident from the background report to the Act and from the statements of the parties to the proceedings that the legislature constructed § 24 para. 4 of the Bankruptcy and Settlement Act in the conviction that in the future it would not be necessary to open new proceedings to determine the denied claim, but that the original proceedings would continue on from their current position, and, in particular, all factual and other judgments would be used.
The
Constitutional Court agrees with the petitioner’s opinion that the
legislature did not sufficiently consider the range of all procedural
situations to which the provision can apply, the practical consequences
of that concept, but also its constitutional law dimension.
V. - B
Art.
96 para. 1 of the Constitution of the CR enshrines, as one of the key
principles of the functioning and implementation of the judicial power
in the CR, the procedural principle of the equality of rights in parties
before the court. This constitutional principle thus guarantees the
equal procedural status of parties in judicial proceedings concerning
rights which are granted to parties of a particular type of proceedings
by the legal order. One can conclude form this principle, among other
things, that a particular type of proceedings must have a single court
jurisdiction, understood in the substantive and functional dimension,
and that framework must be implemented by statute.
The
constitutional provision is supposed to guarantee the institution of
equality in its procedural form, which, of course, has substantive law
effects. The role of ordinary statutes, procedural regulations, is to
transfer the constitutionally protected institution of equality, thus
understood, into procedural guarantees which will ensure the fulfillment
of this equality.
It is
evident that the legislature can set varying degrees of procedural
rights and obligations for various types of proceedings with different
subject matter. In other words, the equality of parties to proceedings
must be interpreted so that the same scope of procedural rights and
obligations must be observed in proceedings which match the same subject
of proceedings. However, it is impermissible for the distinguishing
criterion to be, instead of the subject matter of the proceedings, the
party himself – even if, for example, defined by his procedural status
in any previous proceedings.
The
interpretation of Art. 38 para. 1 of the Charter of Fundamental Rights
and Freedoms also develops from this interpretation of Art. 96 para. 1
of the Constitution of the CR, because determining the statutory judge
must be preceded by the constitutional statutory setting of court
jurisdiction. The principle under which the legal regulation of court
jurisdiction is reserved to statute includes not only the postulate
under which only a statute may set the powers and jurisdiction of a
court to review a particular matter, but also the requirement that the
statute define such power and jurisdiction equally for all cases of the
same type and not make unjustified differences in the jurisdiction of
courts, understood substantively and functionally.
The
substantive jurisdiction of courts to review disputes caused by
bankruptcy or settlement is governed by § 9 para. 3 of the Civil
Procedure Code so that it is entrusted to regional courts as courts of
the first level. These disputes are, among other things, disputes to
determine the authenticity, amount and order of registered claims which
were denied during bankruptcy proceedings. In these cases the bankruptcy
creditor is forced to exercise his claim by prescribed deadlines and to
observe other formal requisites in special (incidental) proceedings
which were caused by the bankruptcy. In these cases, under the
abovementioned § 9 para. 3 of the Civil Procedure Code and § 23 para. 2
of the Bankruptcy and Settlement Act, the court of substantive
jurisdiction is the bankruptcy court, i.e. basically the regional court.
However,
§ 24 para. 4 of the Bankruptcy and Settlement Act, contested by the
petition, represents a special definition of the substantive
jurisdiction of a court, as it limits the conduct of special incidental
proceedings before the bankruptcy court and constructs for the given
type of disputes, i.e. disputes to determine the authenticity, amount
and order of a claim, the special substantive jurisdiction of the court
which previously conducted proceedings opened on the claim of the
current creditor with the denied claim, the subject of which was
connected to the denied non-executable claim.
The
consequence of § 24 para. 4 is the fact that it constructs a double
regime for substantive jurisdiction of courts. One can conclude that the
relationship between § 9 para. 3 of the Civil Procedure Code, § 23
para. 2 and § 24 para. 4 of the Bankruptcy and Settlement Act is a
relationship between a general regulation (lex generalis) and a special
regulation (lex specialis), and that the constitutional requirement of
statutory establishment of court jurisdiction was observed. However, as
was already state above, it is impermissible for a statute to create an
unjustified difference n defining substantive jurisdiction for cases
which have identical subject matter. The conception of the legal
framework of § 24 para. 4 of the Bankruptcy and Settlement Act creates a
duality of substantive jurisdiction in disputes to determine the
authenticity, amount and order of claims denied in bankruptcy
proceedings. Yet, in terms of the subject matter of proceedings, these
disputes are the same. Application of § 24 para. 4 of the Bankruptcy and
Settlement Act thus causes a difference in the substantive, and
possibly functional jurisdiction, where in one case the regional court,
as the bankruptcy court, decides in incidental proceedings, and in
another the district court decides, if it conducted proceedings opened
on a complaint from the current creditor with a denied claim, the
subject of which was related to the denied claim and which were
suspended by the bankruptcy filing. In that case, the decision making to
determine the authenticity, amount and order of the denied claim is
concentrated at the court which had subject matter and territorial
jurisdiction in the original, suspended proceedings, i.e. at a court
which is not the bankruptcy court. Subject matter and territorial
jurisdiction established under § 24 para. 4 of the Bankruptcy and
Settlement Act thus derives from the subject matter and territorial, or
sometimes functional, jurisdiction of the court in the preceding
proceedings, which were suspended by the bankruptcy filing under § 14
para. 1 let. c) of the Bankruptcy and Settlement Act; in fact, however,
it derives from the status of the creditor as plaintiff in the original
proceedings.
This conception
leads to inequality in the procedural position of individual creditors
who exercise in court their denied, non-executable claims under
different procedural regimes.
This
is because § 24 para. 4 sets the circle of parties to the proceedings
ex lege (i.e. those persons whom the Act identifies as parties to the
proceedings become parties to the proceedings), and the court thus has
the obligation itself to newly identify parties to the proceedings, and
itself to remove defects in the petition to continue the proceedings if
it does not contain the appropriate requisites (e.g. identification of
the parties, a proposed judgment, etc.), in a situation where the
original petition to open proceedings on the claim which was related to
the denied claim suffered from defects which the plaintiff did not
remove. In contrast, in incidental proceedings the creditor has the
obligation, under § 23 of the Bankruptcy and Settlement Act, to
precisely identify the parties to the proceedings and precisely specify
the entire claim by a specified deadline. It is evident from this that a
party to the proceedings (creditor), who filed a petition to continue
proceedings under § 24 para. 4 of the Bankruptcy and Settlement Act
finds himself in an advantaged position in comparison with a party to
the proceedings (creditor), who files a petition to open special
(incidental) proceedings before the bankruptcy court under § 23 para. 2
of the Bankruptcy and Settlement Act.
The
procedural inequality of creditors who exercise their denied,
non-executable claims under different procedural regimes is also caused
by the fee obligations under the regimes. If the original proceedings
were suspended in a situation where the creditor, as a party to the
proceedings, had not yet met his statutory fee obligation, and then
filed a petition to continue the proceedings under § 24 para. 4 of the
Bankruptcy and Settlement Act, he will be unjustifiably advantaged in
comparison to a creditor on whose claim incidental proceedings are being
opened. This is because a petition to continue suspended proceedings
does not, under Act no. 549/1991 Coll., on Court Fees, as amended by
later regulations, create a fee obligation for the party, and despite
the fact that the fee was not paid in the original proceedings, the
court will be required to decide the matter. The consequence of not
paying the court fee in the incidental proceedings, in contrast, will be
that the proceedings will be stopped. In a situation where the party
paid a higher court fee in the original proceedings than he would be
required to pay in incidental proceedings, this discrepancy can not be
removed, because it is impossible to perform acts in proceedings which
are suspended by law.
This
conception, with the consequences of unequal rights and obligations of
parties to proceedings to determine the authenticity, amount and order
of a denied claims, is inconsistent with Art. 96 para. 1 of the
Constitution of the CR, whose content, concerning the extent of its
effect, was laid out above. The legislature impermissibly assigns
different procedural rights and obligations to parties to proceedings
with the same subject matter, which sometimes leads to advantages,
sometimes to disadvantages, for various parties. Yet, the different
procedural regime derives solely from the procedural status of a
creditor in preceding proceedings, the subject matter of which was only
related to the denied claim.
The
current decision making practice of courts when applying § 24 para. 4
of the Bankruptcy and Settlement Act shows that the unconstitutionality
of this provision can not be overcome by an interpretation which would
be constitutional.
The
unconstitutional consequences of the framework are not removed by the
interpretation applied by some general courts (see, for example,
Resolution of the High Court in Olomouc of 10 September 2002, file no. 4
Cmo 305/2002), under which § 24 para. 4 of the Bankruptcy and
Settlement Act establishes a special type of “proceedings within
proceedings,” that is, proceedings which differ from the original
proceedings in their subject matter and circle of parties and which are
connected to the original proceedings only ex lege, while the subject of
the previous proceedings is not subsumed in the proceedings under § 24
para. 4 of the Bankruptcy and Settlement Act, and they can be continued
after the bankruptcy is finished. This interpretation does not remove
the abovementioned discrepancy in rights and obligations of the parties
to “proceedings within proceedings” and incidental proceedings.
V. - C
Art.
37 para. 3 of the Charter of Fundamental Rights and Freedoms provides
that all parties to proceedings are equal. This provision of the Charter
must be interpreted to the effect that this is a principle which
guarantees the equal procedural rights and obligations of particular
parties in particular proceedings. In this, this provision of the
Charter differs from Art. 96 para. 1 of the Constitution, which
generally foresees the equality of parties in proceedings with the same
subject matter, as laid out above.
The
ultimate effect of applying § 24 para. 4, compared to applying § 23
para. 2 of the Bankruptcy and Settlement Act (incidental proceedings) is
to establish the unequal status of creditors falling under these two
procedural regimes when satisfying their claims within schedule
proceedings (§ 30 of the Bankruptcy and Settlement Act). If an
incidental dispute is understood as formalized evidentiary proceedings,
the results of which are binding on the bankruptcy court, then it is
evident that the original procedural duality established by the Act also
has effects, in terms of equality, on the procedural status of
creditors in the particular bankruptcy proceedings.
VI.
Therefore,
the Plenum of the Constitutional Court, with regard to the foregoing
situation, decided, under § 70 para. 1 of Act no. 182/1993 Coll., on the
Constitutional Court, as amended by later regulations, to annul § 24
para. 4 of the Bankruptcy and Settlement Act, in its present wording,
due to inconsistency with Art. 96 para. 1 of the Constitution of the CR
and Art. 37 para. 3 of the Charter of Fundamental Rights and Freedoms;
this judgment shall become executable on the day it is published in the
Collection of Law.
However,
in this regard, the Constitutional Court also had to deal with the
question of what influence the annulment of this provision would have on
proceedings conducted by courts whose jurisdiction was established by
the contested provision.
If
already opened proceedings conducted by courts whose jurisdiction was
established by the contested provision were to continue in the current
regime, even after the Constitutional Court judgment which annuls § 24
para. 4 of the Bankruptcy and Settlement Act became executable, this
would lead to a continuation of the unconstitutional inequality created
by that provision. Therefore, the Constitutional Court states that, when
the judgment becomes executable, the substantive jurisdiction of courts
established by § 24 para. 4 of the Bankruptcy and Settlement Act ceases
to have a statutory basis.
However,
at the same time the Constitutional Court emphasizes that the general
courts, in resolving this procedural situation must act so that their
procedure does not permit justice to be denied (denegationis iustitiae).
A procedure whereby a court would prevent a party of proceedings in
progress from exercising the opportunity to exercise his rights before
an independent and impartial court, as guaranteed by Art. 36 para. 1 of
the Charter of Fundamental Rights and Freedoms, would mean a violation
of a party’s right to a fair trial, and in its consequences would
violate the principles of a state governed by the rule of law (Art. 1
para. 1 of the Constitution of the CR). Such a procedure would thus lead
to further unconstitutional consequences.
Notice: Decisions of the Constitutional Court can not be appealed.
Brno, 11 March 2003
Notice: Decisions of the Constitutional Court can not be appealed.
Brno, 11 March 2003