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HEADNOTES
1)
The obligation relationship is, under § 45 para. 4 of Act no. 361/2000
Coll. in connection with § 489 and § 420 of the Civil Code, established
by the causing of damage, which is given by the expenses for removing a
vehicle in order to ensure traffic on a surface roadway. This
relationship arises between the vehicle operator and the person who was
authorized to perform the compulsory towing of a vehicle and which
incurred damages, the amount of which is given by the amount of expenses
incurred for purposes of securing operation on the surface roadway.
This person can be either the owner of the surface roadway or a person
which, on the basis of a contractual relationship with the owner of the
surface roadway, ensures the compulsory towing of vehicles; in both
cases the position of the authorized entity is given by the instruction
from a police officer or municipal police officer to remove the vehicle.
This instruction has the character of an administrative decision, or
intervention by an administrative body (under § 83 of the Administrative
Court Procedure Code) and in that sense is subject to review, which is,
for the vehicle operator, a procedural guarantee against possible
arbitrariness. Only achieving the annulment of the decision at issue, or
a decision under § 87 para. 2 of the Administrative Court Procedure
Code, can establish grounds for applying a complaint in the matter of
liability for damages caused in the exercise of public power or by an
incorrect official procedure (under Act no. 82/1998 Coll., as amended by
later regulations).
2)
Insofar as the complainant under § 74 of Act no. 182/1993 Coll., as
amended by later regulations, petitions for annulment of § 202 para. 2
of the CPC, the Constitutional Court refers to the maxim which it stated
for evaluating the constitutionality of first level judicial review in
judgment file no. Pl. ÚS 15/01: “No legal order is, nor can it be, from
the point of view of a system of procedural means for protecting rights,
as well as form the point of view of a system of organizing levels of
review, constructed ad infinitum. Every legal system generates, and
necessarily must generate, a certain number of mistakes. The purpose of
review proceedings can realistically be to approximately minimize such
errors and not to eliminate them completely. The system of review levels
is therefore a result of comparing, on one hand, the effort to achieve
the sovereignty of law, and on the other hand efficiency of decision
making and legal certainty.” Thus, in relation to “small” claims, as the
Constitutional Court stated in its resolution file no. III. ÚS 173/02,
single level judicial review is not inconsistent with the principle of
proportionality, with regard to the requirements which arise in this
context from Art. 1 of the Constitution and Art. 36 para. 1 of the
Charter. The Constitutional Court reached the same conclusion in
resolution file no. IV. ÚS 101/01, in which, in addition to the argument
of proportionality, it stated that from a constitutional law point of
view, judicial proceedings are not compulsorily at two levels, with the
exception of criminal matters, where this requirements arises from Art. 2
of Protocol no. 7 to the Convention on the Protection of Human Rights
and Fundamental Freedoms; thus, Art. 36 of the Charter does not, without
anything further, indicate the necessity of two-level judicial
proceedings for matters other than criminal ones, as a result of which a
single level judiciary, and particularly in matters of objectively
small significance, does not in anyway exceed constitutional bounds.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
A Panel of the Constitutional Court decided, on 6 November 2003, in the matter of a constitutional complaint from Mgr. P. M., represented by Mgr. J. H., attorney, against a verdict of the District Court for Prague 10 of 5 February 2003, ref no. 13 C 186/2002-24, joined with a petition to annul § 202 para. 2 of Act no. 99/1963 Coll., as amended by later regulations, as follows:
I. The verdict of the District Court for Prague 10 of 5 February 2003, ref no. 13 C 186/2002-24, is annulled.
II. The petition to annul § 202 para. 2 of Act no. 99/1963 Coll., as amended by later regulations, is denied.
REASONING
I.
By
a petition filed for delivery to the Constitutional Court on 20 March
2003 the complainant seeks annulment of the verdict of the District
Court for Prague 10 of 5 February 2003, ref no. 13 C 186/2002-24. He
feels that the cited decision affects his fundamental right to a fair
trial under Art. 36 of the Charter of Fundamental Rights and Freedoms
(the “Charter”), as well as rights which he claims arise from Art. 2
para. 2 and Art. 4 para. 1 of the Charter. Under§ 74 of Act no. 182/1993
Coll., on the Constitutional Court, he also proposes annulment of § 202
para. 2 of Act no. 99/1963 Coll., the Civil Procedure Code, as amended
by later regulations.
The
Constitutional Court requested the file of the District Court for Prague
10, file no. 13 C 186/2002, from which it determined that on 4 April
2002 that court received the complainant’s complaint for the amount of
CZK 870 against the limited liability company B. S. The complainant
justified his complaint on the grounds that on 29 January 2001 the
defendant in the proceedings before the general court towed his car, a
Volvo 460, license plate number KLL 09-60 from Wenceslas Square in
Prague. The car was issued to the petitioner after payment of CZK 870.
He believes that the car was towed incorrectly, and paid the stated
amount under duress, as a result of which the sued company received
unjustified enrichment.
On
22 July 2002 the District Court for Prague 10 issued payment order ref
no. 13 C 186/2002-7, which charged the sued company to pay the plaintiff
the amount in question within 15 days from the day it was delivered.
On
19 August 2002 the defendant filed an protest to the payment order with
the District Court. Subsequently, on 5 February 2003, the District
Court, by verdict ref no. 13 C 186/2002-24 denied the complaint. It
stated in the reasoning that the car was towed on the basis of an
instruction from the Police of the Czech Republic, in accordance with an
agreement concluded between the defendant and the capital city of
Prague. The price for towing the car was set under capital city of
Prague ordinance no. 12/97. Thus, the towing was done on the basis of
legal grounds and there could not have been unjustified enrichment.
The
petitioner filed a timely constitutional complaint contesting the
decision of the District Court for Prague 10. In it he stated that in
this matter no proceeding related to administrative infraction or other
administrative proceedings were opened, i.e. no administrative body
decided that a administrative infraction had been committed.
Nevertheless, the complainant was forced to pay expenses for the towing
of his car, which, however, can be billed only as a component of an
imposed fine and parking fees. The constitutional complaint further
states that in the proceedings before the general court, the defendant
delivered to the court a filing in which it expressly stated that it was
an protest against payment order file no. 13 C 351/2002, i.e. against a
payment order issued in a completely different matter. Although the
complainant pointed this fact out to the court and proposed that the
payment order be acknowledged as legally in effect, the court did not
consider this petition and did not resolve the issue in its verdict.
According to the complainant, this violated Art. 2 para. 2 of the
Charter, under which state power can be applied only in cases and within
the bounds provided by law, as well as Art. 4 para. 1 of the Charter,
under which obligations may be imposed only on the basis of law and
within its bounds, and finally violated the right to a fair trial under
Art. 36 of the Charter. Because the contested verdict can not, under §
202 para. 2 the Civil Procedure Code be contested by an appeal, the
complainant petitioned the Constitutional Court to annul the cited
statutory provision.
The
District Court for Prague 10, as a party to the proceedings, was asked,
under § 42 para. 4 for a position statement on the matter, and provided
one.
…..
…..
II.
Evaluating
the constitutionality of interference by a body of state power with
fundamental rights and freedoms consists of several components (III. ÚS
102/94, III. ÚS 114/94, III. ÚS 84/94, III. ÚS 142/98, III. ÚS 224/98
and others). The first is evaluating the constitutionality of the
applied provision of the legal regulation (which is indicated by § 68
para. 2 of Act no. 182/1993 Coll., as amended by later regulations).
Other components are evaluating the preservation of constitutional
procedural rights, and finally evaluating the constitutional
interpretation and application of substantive law.
In
evaluating the matter, the Constitutional Court began with the factual
judgments, which are undisputed by the parties to the proceedings.
According to these, the complainant’s car, a Volvo 460 license plate
number KLL 09-60, was towed by the subsidiary party from Wenceslas
Square in Prague on 29 January 2003, at the instructions of the Police
of the Czech Republic (order PČR DI-OŘD of 29 January 2003 ref no.
PSP-43/DI-I-2003). This towing was performed by the subsidiary party,
which was authorized thereto on the basis of an agreement concluded with
the capital city of Prague on 30 April 1999; under Art. 2.3 of the
agreement the party liable for the authority to tow is the party who
gives the order, i.e. the Police of the Czech Republic, the Technical
Roadways Administration of the capital city of Prague, and so on, and
the price of towing, which the subsidiary party is authorized to charge
the vehicle’s operator, was set by capital city of Prague ordinance no.
12/1997, on maximum prices for towing road vehicles and wrecks,
compulsory towing of vehicles after a traffic accidents, and guarding
these vehicles at assigned parking lots. Also undisputed is the fact
that in this matter no proceedings related to administrative infraction
were conducted against the complainant, as well as the fact that the
complainant paid the appropriate amount for the compulsory towing of the
vehicle to the subsidiary party as a condition for the vehicle being
released.
At the level of
simple law, § 45 para. 4 of Act no. 361/2000 Coll., on the Operation of
Surface Roadways and Amending Certain Acts, as amended by later
regulations, applies to the merits of the adjudicated matter; under it,
“if a vehicle is an obstacle to traffic on a surface roadway, a police
officer or officer of the municipal police shall decide on removing it;
the vehicle is removed at the expense of its operator.”
The
purpose and aim of the Act on the Operation of Surface Roadways is, in
particular, to provide rules which ensure safety for a public aim, which
is, in this context, traffic on surface roadways. In accordance with
the generally valid concept of objective liability for damages caused by
operation of means of transportation (§ 428 of the Civil Code), the Act
on the Operation of Surface Roadways, in § 45 para. 1, establishes the
objective liability of the person who caused the obstacle to traffic on
surface roadways so that it gives that person the obligation to remove
the obstacle without delay, and if he does not do so, an obligation to
pay the costs of removing it to the owner of the surface roadway. The
provision of § 45 para. 4 of the Act is only a special provision, which
determines the entities entitled to issue an order for the compulsory
towing of a vehicle. As the reason for such an order can be either a
delictual behaviour (in the case of violation of the rules for traffic
on surface roadways) or protection of the public interest in the
passability of a surface roadway regardless of fault (§ 19 para. 5, 6 of
Act no. 13/1997 Coll., on Surface Roadways), the cited distinction is
not decisive for application of § 45 para. 4 of the Act on the Operation
of Surface Roadways, as the liability relationship it establishes is
built on the principle of objective liability.
Thus,
the obligation relationship is, under § 45 para. 4 of Act no. 361/2000
Coll. in connection with § 489 and § 420 of the Civil Code, established
by the causing of damage, which is given by the expenses for removing a
vehicle in order to ensure traffic on a surface roadway. This
relationship arises between the vehicle operator and the person who was
authorized to perform the compulsory towing of a vehicle and which
incurred damages, the amount of which is given by the amount of expenses
incurred for purposes of securing operation on the surface roadway.
This person can be either the owner of the surface roadway or a person
which, on the basis of a contractual relationship with the owner of the
surface roadway, ensures the compulsory towing of vehicles; in both
cases the position of the authorized entity is given by the instruction
from a police officer or municipal police officer to remove the vehicle.
This instruction has the character of an administrative decision, or
intervention by an administrative body (under § 83 of the Administrative
Court Procedure Code) and in that sense is subject to review, which is,
for the vehicle operator, a procedural guarantee against possible
arbitrariness. Only achieving the annulment of the decision at issue, or
a decision under § 87 para. 2 of the Administrative Court Procedure
Code, can establish grounds for applying a complaint in the matter of
liability for damages caused in the exercise of public power or by an
incorrect official procedure (under Act no. 82/1998 Coll., as amended by
later regulations).
From
the point of view of this purpose and content of the simple law which
applies to the adjudicated matter, the Constitutional Court did not find
a reason to evaluate the constitutionality of § 45 para. 4 of Act no.
361/2000 Coll.
In the matter
at hand, the compulsory towing was performed by a subsidiary party
which as authorized thereto on the basis of an agreement concluded with
the capital city of Prague on 30 April 1999, and on the basis of a
decision by a police body. Due to the foregoing, the Constitutional
Court agrees with the conclusion of the District Court for Prague 10
that in this matter there was no unjustified enrichment on the part of
the subsidiary party.
Insofar
as the complainant claims in this regard that his fundamental rights
arising under Art. 2 para. 2 and Art. 4 para. 1 of the Charter have been
affected, the Constitutional Court only refers to its settled case law
(judgment file no. Pl. ÚS 12/94, III. ÚS 31/97, III. ÚS 593/99) under
which Art. 4 para. 1 of the Charter does not provide independent
individual fundamental rights, but only provides the necessity of
imposing general obligations only on the basis of law, while preserving
the fundamental rights and freedoms. Thus, this provision can be relied
on only in connection with other provisions of the Charter, of the
Constitution or of international agreements under Art. 10 of the
Constitution, which contain the particular fundamental rights or
freedoms which were violated. The same statement also applies for Art. 2
para. 2 of the Charter. Art. 2 para. 2, 3 of the Charter and Art. 2
para. 4 of the Constitution are provisions evidently inspired by Art. 5
of the Declaration of the Rights of the Human Being and the Citizen of
26 August 1789, which, in connection with Art. 1 of the Charter,
delineate the range for an individual’s free conduct, and it belongs
among those constitutional norms which, in response to the past
experience of totalitarianism, provide the framework principles for the
relationship between and individual and the state.
Another
point in the complaint is the claim of violation of Art. 36 of the
Charter, consisting of the fact that the general court, in the reasoning
of the decision contested by the constitutional complaint, did not in
any way respond to the complainant’s arguments under which the decision
was made on the basis of the subsidiary party’s protest filed against a
payment order other than the one in question.
In
this context, at the level of the simple law, the safeguards arising
from § 157 para. 2 of the CPC apply to the adjudicated matter.
The
file materials in the adjudicated matter indicate that the District
Court for Prague 10 issued payment order ref no. 13 C 186/2002-7 on 22
July 2002. On 27 August 2002 the court received the defendant’s protest
against payment order file no. 13 C 351/2002. On 8 January 2003,
proceedings were held at the District Court for Prague 10 in the matter
file no. 13 C 186/2002, in the course of which the plaintiff did not
raise the protest of incorrect identification of the protest filed by
the subsidiary party, and the proceedings were postponed for purposes of
completing the evidence (file of the District Court for Prague 10, file
no. 13 C 186/2002, no. l. 11-12). On 15 January 2003 the District Court
for Prague 10 received the position statement of the subsidiary part in
the matter file no. 13 C 186/2002. On 20 January 2003 the proceedings
continued, and the complainant again did not raise the objection of
incorrect identification of the protest and the proceedings were again
postponed for purposes of further evidence (file of the District Court
for Prague 10 file no. 13 C 186/2002, no. l. 14-15). On 3 February 2003
the court received the position statement of the complainant containing
the final petition, and within it also the objection of incorrect
identification of the protest, as well as an excuse for absence from the
proceedings on 5 February 2003. The District Court for Prague 10, by
verdict of 5 February 2003 ref no. 13 C 186/2002-24, denied the
complainant’s complaint, and stated in the reasoning of the decision
that the plaintiff, in his closing petition, pointed to the fact that
the protest filed by the defendant was identified with the incorrect
file number, and was thus filed for a different matter than the one
which was the subject of the complaint, but did not respond to this
objection.
The independence
of the decision making of general courts is implemented in the
constitutional and statutory procedural and substantive law framework.
The procedural law framework is represented primarily by the principles
of a proper and fair trial, as indicated by Art. 36 et seq. of the
Charter, as well as by Art. 1 of the Constitution. One of these
principles, which represents the role of the law in a fair trial, as
well as the concept of a state governed by the rule of law (Art. 36
para. 1 of the Charter, Art. 1 of the Constitution), and which rules out
arbitrariness in decision making, is the obligation of the courts to
state the grounds for their verdicts (§ 157 para. 1 of the CPC) in a
manner provided in § 157 para. 2 of the CPC. The Constitutional Court
spoke on the effects of the safeguards contained in § 157 para. 2 of the
CPC in the area of fundamental rights and freedoms in particular in
judgment file no. IV. ÚS 304/98, where it stated the following: “A
situation where a verdict lacks the requirements provided in § 157 para.
2 of the CPC leads to the fact that it becomes non-reviewable, and can
be, and as a rule also is, a violation of the constitutionally
guaranteed right to judicial protection provided in Article 36 para. 1
of the Charter.”
In the
adjudicated matter the District Court for Prague 10, in the reasoning of
the decision, did not in any way address the petitioner’s objection
concerning the alleged inconsistency, and did not even mention the
petition and the objection, although the objection was properly raised
and the objected fact could have had a substantial influence on the
court’s decisions. Thus, by this procedure, the court fundamentally
violated § 157 para. 2 of the CPC, and in the final consequence
interfered with the petitioner’s right to a fair trial, given by Art. 36
para. 1 of the Charter.
Due
to the foregoing, the Constitutional Court had no choice but to annul
the contested verdict of the District Court for Prague 10 of 5 February
2003 ref no. 13 C 186/2002-24 under § 82 para. 2 let. a) of Act no.
182/1993 Coll., on the Constitutional Court, as amended by later
regulations.
Insofar as the
complainant under § 74 of Act no. 182/1993 Coll., as amended by later
regulations, petitions for annulment of § 202 para. 2 of the CPC, the
Constitutional Court refers to the maxim which it stated for evaluating
the constitutionality of first level judicial review in judgment file
no. Pl. ÚS 15/01: “No legal order is, nor can it be, from the point of
view of a system of procedural means for protecting rights, as well as
form the point of view of a system of organizing levels of review,
constructed ad infinitum. Every legal system generates, and necessarily
must generate, a certain number of mistakes. The purpose of review
proceedings can realistically be to approximately minimize such errors
and not to eliminate them completely. The system of review levels is
therefore a result of comparing, on one hand, the effort to achieve the
sovereignty of law, and on the other hand efficiency of decision making
and legal certainty.” Thus, in relation to “small” claims, as the
Constitutional Court stated in its resolution file no. III. ÚS 173/02,
single level judicial review is not inconsistent with the principle of
proportionality, with regard to the requirements which arise in this
context from Art. 1 of the Constitution and Art. 36 para. 1 of the
Charter. The Constitutional Court reached the same conclusion in
resolution file no. IV. ÚS 101/01, in which, in addition to the argument
of proportionality, it stated that from a constitutional law point of
view, judicial proceedings are not compulsorily at two levels, with the
exception of criminal matters, where this requirements arises from Art. 2
of Protocol no. 7 to the Convention on the Protection of Human Rights
and Fundamental Freedoms; thus, Art. 36 of the Charter does not, without
anything further, indicate the necessity of two-level judicial
proceedings for matters other than criminal ones, as a result of which a
single level judiciary, and particularly in matters of objectively
trivial significance, does not in anyway exceed constitutional bounds.
Due
to the foregoing, the Constitutional Court found the petition to annul §
202 para. 2 of the CPC clearly unsubstantiated, and therefore it denied
it under § 43 para. 2 let. a), b) of Act no. 182/1993 Coll., as amended
by later regulations.
Notice: Decisions of the Constitutional Court can not be appealed.
Brno, 6 November 2003
Notice: Decisions of the Constitutional Court can not be appealed.
Brno, 6 November 2003