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HEADNOTES
The
Constitutional Court considered the question of compensation for
non-pecuniary damage as part of the compensation of damages whose scope
is generally formulated in § 442 par. 1 of the Civil Code in judgment
file no. Pl. ÚS 16/04 (promulgated as no. 265/2005 Coll.). It concluded
that the current legislative concept of damage as pecuniary damage does
not permit such an interpretation, although it does not rule out an
individual seeking compensation for non-pecuniary damage consisting of
interference in personality rights through protection of personality
under § 11 and § 13 of the Civil Code. However, in terms of the current
legislative framework, this is a different claim than compensation of
damage.
However, these conclusions arising from the judgment by the plenum of
the Constitutional Court must be corrected in the area of compensation
of damages for previous unlawful limitation of personal freedom, where
the claim for compensation is constructed not only in the area of simple
law, but also by the Convention on the Protection of Human Rights and
Fundamental Freedoms, in Art. 5 par. 5, which is, under Art. 10 of the
Constitution of the CR, a directly applicable norm in the domestic legal
order of the CR, and which must be given priority in application before
statutes.
Regardless of how the content of the institution of compensation of
damage is treated by the domestic legislature, the case law of the
general courts and the constitutional court, or domestic civil doctrine,
in domestic application of the Convention one must start with the
concept of compensation of damage as it is treated by the national
European constitutional courts and supreme courts, whose case law gives
rise to the case law of the ECHR. As regards specifically state
liability for limiting personal freedom, and thus the relationship of
the domestic civil law of offenses and Article 5 par. 5 of the
Convention, the situation in individual European states is that the
classic dogmatics of civil legal institutions gave way to direct
application of Article 5 par. 5 of the Convention, which is interpreted
fully autonomously by the national courts. The Constitutional Court also
bases this position on the case law of the European Court of Human
Rights (the “ECHR”), which has consistently ruled that the Convention’s
institutions can have completely autonomous content and a scope not
dependent on their legal classification under domestic law.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The Constitutional Court decided, on 13 July 2006, without a hearing, without the presence of the parties, in a Panel composed of Chairman František Duchoň and judges Vojen Güttler and Eliška Wagnerová (judge rapporteur) in the matter of a constitutional complaint from J. Ch., represented by JUDr. L. M., attorney, against decisions by the Supreme Court of the CR of 25 November 2003, file no. 25 Cdo 1727/2003, by the Municipal Court in Prague of 31 October 2002, file no. 22 Co 421/2002, and by the District Court for Prague 2 of 21 March 2002, file no. 14 C 113/2001, with the participation of the Supreme Court of the CR, the Municipal Court in Prague, and the District Court for Prague 2, as parties to the proceedings, as follows:
I. The decisions of the Supreme Court of the CR of 25 November 2003, file no. 25 Cdo 1727/2003, of the Municipal Court in Prague of 31 October 2002, file no. 22 Co 421/2002, and of the District Court for Prague 2 of 21 March 2002, file no. 14 C 113/2001, violated the petitioner’s fundamental right guaranteed by Art. 5 par. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
II. Therefore, those decisions are annulled.
REASONING
I.
In
his constitutional complaint, which met all the requirements of content
and form specified by Act no. 182/1993 Coll., on the Constitutional
Court, as amended by later regulations (the “Act on the Constitutional
Court”), the petitioner contested the decisions by the general courts
specified in the introduction.
The
decision by the District Court for Prague 2 denied the complaint
against the Czech Republic – the Ministry of Justice – in which the
petitioner sought payment of the amount of CZK 304,356 on the grounds of
state liability for damage caused by an unlawful decision and incorrect
official procedure under Act no. 58/1969 Coll. The decision by the
Municipal Court in Prague confirmed the decision of the trial court. The
contested decision by the Supreme Court of the CR denied the
petitioner’s appeal in the amount of CZK 36,140, and rejected the
remainder of it as impermissible.
As
the petitioner described in more detail in the constitutional
complaint, he sought payment of the abovementioned amount as
compensation of damage for a prison sentence that he served, on the
following grounds. A decision by the District Court in Kolín of 10 July
1991, file no. 1 T 68/91, sentenced the petitioner, for the crime of
evading civil service, under § 272c par. 1 of the Criminal Code, to a
non-suspended prison sentence of 6 months. The decision by the Regional
Court in Prague of 27 August 1991, file no. 5 To 295/91, changed the
sentence to a suspended one. A decision by the District Court in Kolín
of 10 April 1992, file no. 1 T 8/92, sentenced the petitioner again, for
the same crime, to a non-suspended prison sentence of 8 months. Thus,
on that basis, by decision of the District Court in Kolín of 5 October
1992, file no. 1 T 68/91, i.e. in the first trial, the originally
imposed suspended sentence was changed into a non-suspended sentence.
The petitioner served both sentences.
The
Minister of Justice filed a complaint about violation of the law
against the second conviction in favor of the petitioner, which the
Supreme Court of the CR, in its decision of 25 April 1996, file no. 2
Tzn 10/96, decided by giving an academic verdict that declared merely a
formal violation of the law (according to the Supreme Court of the CR,
instead of the definition under § 272c par. 1 of the Criminal Code, the
definition under § 272d par. 3 of the Criminal Code should have been
used) and not annulling the contested decision. Based on a
constitutional complaint from the petitioner, the decision of the
Supreme Court of the CR was annulled by Constitutional Court judgment of
20 March 1997, file no. I. ÚS 184/96, on the grounds of violating the
principle “ne bis in idem.” However, in new proceedings the Supreme
Court of the CR did not respect the legal opinion of the Constitutional
Court, and again made the same decision. Constitutional Court judgment
of 2 April 1998, file no. III. ÚS 425/97, annulled this decision of the
Supreme Court of the CR as well, on the grounds that it violated the
binding nature of the Constitutional Court’s judgments under Art. 89
par. 2 of the Constitution of the CR. In its decision of 25 August 1999,
file no. 4 Tz 102/98, the Supreme Court of the CR finally granted the
complaint about violation of the law, and annulled the decision of the
District Court in Kolín of 10 April 1992, file no. 1 T 8/92, the
decision of the Regional Court in Prague of 16 June 1992, file no. 5 To
188/92, and “all other decisions connected to the content of this
decision, if, in view of the change caused by annulling it, they have
lost their foundation.” The Supreme Court of the CR then stopped the
criminal prosecution of the petitioner under § 11 par. 1 let. f) of the
Criminal Procedure Code.
As
the petitioner stated, on the one hand he was satisfied with this
decision, because it definitively stopped his second criminal
prosecution, but on the other hand he believed that the decision’s
verdict is indefinite, insofar as it did not expressly specify which
particular decisions can be considered connected in content, given the
existence of the decision by the District Court in Kolín of 5 October
1992, file no. 1 T 68/91, which, in connection to the annulled
decisions, changed the sentence in the first trial from a suspended
sentence to a non-suspended sentence. Because of this, he again filed a
constitutional complaint against the decision of the Supreme Court of
the CR, which was denied by Constitutional Court decision of 15 February
2000, file no. III. ÚS 454/99, on the grounds that the contested
decision did not violate the petitioner’s rights. As regards his
concerns regarding interpretation of which decisions were annulled, for
purposes of a “damages provision,” the Constitutional Court then
concluded that such reservations are premature. In the Constitutional
Court’s opinion, only if subsequent proceedings, including the
petitioner’s intended exercise of rights to compensation, violated his
constitutionally guaranteed rights, would it be appropriate to review
legally effective decisions about them. The petitioner thus believes
that the situation foreseen in the Constitutional Court’s decision has
come to pass, because his claims were denied in the decisions now being
contested. According to the petitioner, 3 disputed questions were
addressed in these proceedings: (1.) whether a citizen who was sentenced
several years ago has a claim for compensation of lost wages, adjusted
or not adjusted for present value, (2.) whether a citizen has a right to
damages for non-pecuniary damages or just satisfaction, and (3.) which
decisions can be considered to be decisions connected in content to the
decisions expressly annulled by the Supreme Court of the CR in
proceedings on the complaint about violation of the law. The petitioner
specifically stated, that in a fair trial under Art. 6 par. 1 of the
Convention for the Protection of Human Rights and Fundamental Freedoms,
when setting compensation for lost earnings one can not use as a basis
only the earnings which the unjustly convicted person received before
imprisonment, but that this amount must be appropriately adjusted for
present value. In this case the courts refused to award the petitioner
the requested amount of CZK 5,000 per month, on the grounds that the
amount awarded, CZK 3,973 per month, corresponded to the petitioner’s
earnings at the time, and definitely exceeded the minimum wage provided
by Order no. 53/1992 Coll. as amended, i.e. CZK 2,000 per month. The
petitioner objects, however, that the price level of 1992 is completely
different from today’s, and the amount of that time, if paid out today,
has nowhere near the purchasing power that it had then. In the
petitioner’s opinion compensation of lost earnings should never be lower
than the minimum wage in effect on the date when the compensation is
paid out. The petitioner considers the fact that the courts refused to
award the petitioner compensation of adjusted wages to be violation of
Art. 4 par. 4 of the Charter of Fundamental Rights and Freedoms, because
in the petitioner’s opinion the essence and significance of the right
to damages were not preserved, when disproportionately low compensation
was awarded. As regards the claim for compensation of non-pecuniary
damage, the general courts rejected that claim, with reference to the
previous case law of the Supreme Court of the CR, which explained the
lack of justification for such a claim. However, the petitioner claims
that the European Court of Human Rights recognized a claim for
compensation of non-pecuniary damage in the case Tsirlis and Kouloumpas
v. Greece, which was analogous with the petitioner’s case (the
petitioners refused on religious grounds to perform military service,
were imprisoned for their refusal, and in further proceedings proved
that their imprisonment was unlawful). Similarly, in the case Pincová
and Pinc v. the Czech Republic, and in other cases, the ECHR awarded
petitioners compensation for non-pecuniary damage under Art. 41 of the
Convention. Therefore, the petitioner made his claim before the general
courts for compensation of non-pecuniary damage for the total period of
imprisonment, in the amount of CZK 260,000. Insofar as the claim was
denied by the contested decisions, the petitioner believes that this
violated Art. 5 par. 5, in connection with Art. 41 of the Convention.
Last,
but not least, in the petitioner’s opinion, Art. 36 par. 3 of the
Charter was violated by denial of the claim for compensation of damages
for the period when the petitioner served the prison sentence of 6
months on the basis of the first conviction, or on the basis of the
suspended sentence being converted to a non-suspended sentence, which
was done by decision of the District Court in Kolín of 5 October 1992,
file no. 1 T 68/91. According to the petitioner, it is a question of
evaluating whether that decision is such a decision connected in content
to the decisions that were annulled by the Supreme Court of the CR. The
petitioner believes that the decision to transform the sentence, if it
was based on the verdict which was later annulled, lost its basis, and
was de facto annulled as a connected decision. In contrast, according to
the petitioner, the general courts believe that the decision
transforming the sentence will stand independently even after the
annulment of the second conviction.
The
petitioner claims that this could be so only if the reason for
transforming the sentence was a fact other than the petitioner’s second
conviction. However, if the only reason for transforming the sentence
was the conviction of the petitioner by the decisions that were annulled
as being unlawful, then it is a connected decision.
In
the contested decision, the Supreme Court of the CR stated that a
decision connected in content can be only a decision issued in the
criminal matter in which it was stated that the law was violated.
According to the petitioner, the Supreme Court of the CR thus took such a
formalistic approach to evaluating the matter, that it ignored the
purpose of the decision by the District Court in Kolín of 5 October
1992, i.e. to comprehensively connect to the conclusions of the decision
issued in the petitioner’s second conviction.
Therefore,
the petitioner proposed that the Constitutional Court annul all the
contested decisions. In his supplement to the constitutional complaint
of 20 June 2006, the petitioner emphasized that in the meantime
compensation for non-pecuniary damage had been expressly enshrined in §
31a of Act no. 82/1998 Coll., as amended by Act no. 160/2006 Coll.
Compensation for non-pecuniary damage is awarded for unlawful decisions
and for incorrect official procedure. And, in the petitioner’s matter,
at least six unlawful decisions were issued that were later annulled.
Upon
being called to do so by the Constitutional Court, the other parties to
the proceedings provided their responses to the constitutional
complaint.
The panel
chairwoman of the Supreme Court of the CR stated that in the
constitutional complaint the petitioner repeats the same objections
which he raised in the appeal proceeding. In view of the fact that the
appeal was not permissible up to the amount of CZK 8,216 (the amount
requested as adjustment for present value of compensation for lost
earning), because the amount was under CZK 20,000, and the question of
compensation for non-pecuniary damage or just satisfaction was not – in
view of the previous case law – found to have fundamental legal
significance, these parts of the appeal were denied as being
impermissible. Therefore, in the contested decision the appeals court
addressed only the question of whether the decision that the suspended
prison sentenced would be served is a decision connected in content to
the annulled decision to convict in another criminal matter. The legal
opinion stated by the appeals court concerning this question corresponds
to criminal law theory and practice, and this decision did not violate
Art. 36 par. 3 of the Charter. As to details, the chairwoman referred to
the reasoning of the contested decision, or to case law in criminal
matters. In view of this, in her opinion the petitioner’s fundamental
rights were not violated, and therefore she proposed that the
constitutional complaint be denied.
As
regards the petitioner’s claim to adjustment of his lost earnings and
compensation for the period of the first prison sentence served, the
panel chairwoman of the Municipal Court in Prague referred to the
reasoning of the contested decisions, and also expressed the belief that
the Municipal Court duly considered the petitioner’s claim in
accordance with procedural and substantive legal regulations, and that
the reasoning adequately explained the legal conclusion on which it
based its decision. As regards the claim to compensation for
non-pecuniary damages and the reference to Art. 5 par. 5 and Art. 41 of
the Convention and the ECHR decisions, the Municipal Court stated that
at that time compensation under Art. 5 par. 5 of the Convention was
governed by Act no. 58/1969 Coll. However, neither the Charter nor the
Convention provides that this compensation means anything other than
compensation of damages. Compensation under Art. 5 par. 5 of the
Convention means “compensation,” i.e. a replacement for damage, not
“satisfaction,” i.e. satisfaction or replacement for non-pecuniary
damage. In support of these arguments, the Municipal Court in Prague
pointed to a passage from the ECHR judgment in the matter Tsirlis and
Kouloumpas v. Greece: in order for the ECHR to proceed under Art. 41 of
the Convention, there would have to be, in relation to violation of Art.
5 par. 5 of the Convention, a case where domestic law did not provide
“an enforceable claim for compensation before the domestic authorities.”
According to the Municipal Court, it was due to this absence that
Greece was sentenced to make payments; the petitioner derives his claim
from those amounts. The Municipal Court in Prague believes that under
the settled case law of the ECHR the point is that the effective
exercise of a right must be ensured in a sufficiently certain manner.
The municipal court believes that the Czech legal order meets these
requirements, both by Act no. 58/1969 Coll., which governed the
adjudicated matter, and by Act no. 82/1998 Coll. The provision of § 20
of Act no. 58/1969 Coll. expressly refers to the provisions of the Civil
Code, where, under § 442 par. 1 the petitioner has a right both to
compensation of actual damages (damnum emergens) and to lost earnings
(lucrum cesans), i.e., in the municipal court’s opinion, everything
which isconsdiered to be compensation of damages (including compensation
under Art. 5 par. 5 of the Convention), and not to compensation of
non-pecuniary damage, as the petitioner believes.
For these reasons the Municipal Court in Prague proposed that the Constitutional Court deny the constitutional complaint.
In
her position statement, the panel chairwoman of the District Court for
Prague 2 referred to the reasoning of the judgments by the trial and
appeals courts, and said that she finds the constitutional complaint to
be unjustified.
The
secondary party, the Czech Republic, represented by the Ministry of
Justice, did not respond to the constitutional complaint by the
specified deadline, and gave up its status as a secondary party. For
purposes of evaluating the constitutional complaint the Constitutional
Court also requested the relevant files, those being the file of the
District Court for Prague 2, file no. 14 C 113/2001, and files of the
District Court in Kolín concerning both previous criminal trials, i.e.
file no. 1 T 68/91 and file no. 1 T 8/92.
The
Constitutional Court determined from the reasoning of the contested
decisions that both the trial and the appeals court, in evaluating the
claims for compensation of damage, relied on § 20 of Act no. 58/1969
Coll. in connection with § 442 par. 1 of the Civil Code, i.e. the fact
that in the relevant proceedings the petitioner can be awarded actual
damages and lost profits. Lost profits, or, in the petitioner’s case,
lost earnings, is understood to mean the actual amount of earnings which
the petitioner actual received at the time of serving his sentence.
According to the general courts, one can not agree with the petitioner’s
arguments regarding adjustment of wages, if the compensation for lost
earnings is paid at any later time. The trial and appeals courts then
concluded from the definition of damages that the petitioner likewise
can not be awarded compensation for non-pecuniary damage, and, according
to the general courts, one can not by analogy apply Art. 41 of the
Convention and award the petitioner “just satisfaction.”
As
regards the claims connected to serving the six-month prison sentence
imposed on the petitioner per the decision to transform the suspended
sentence into a non-suspended sentence, both the trial and the appeals
courts concluded that in the first criminal proceedings the petitioner
was not cleared of the complaint, nor was the prosecution against him
stopped. Thus, the basic requirement for exercising a claim for
compensation of damages was not met, because the relevant legally
effective decision was not annulled due to unlawfulness. The decision to
transform the sentence can not then be considered a decision which is
connected in content. In deciding whether the petitioner proved himself
in the probation period under § 60 of the Criminal Code, the decisive
element is the convicted person’s behavior, not the fact that he was
convicted in different criminal proceedings. Thus, it is sufficient that
in the probation period the petitioner repeatedly engaged in the same
conduct, i.e. did not live an orderly life. According to the trial and
appeals courts, the fact that he engaged in this conduct was not
questioned even by the decision of the Supreme Court of the CR that
annulled the later decisions. The Supreme Court of the CR stated only
that criminal prosecution under § 11 par. 1 let. f) of the Criminal
Procedure Code was impermissible.
From
the reasoning of the contested decision by the Supreme Court of the CR,
the Constitutional Court determined that the appeals court first, for
purposes of evaluating the permissibility of the appeal, separated the
individual claims exercised by the petitioner. It partly denied the
claim due to impermissibility; it denied the part concerning the claim
arising from the request to adjust wages on the grounds that the amount
requested was under CZK 20,000, and denied the part concerning the claim
for compensation of non-pecuniary damages, with reference to the
settled case law of the Supreme Court of the CR. It then considered on
the merits only the claim connected to serving the prison sentence
imposed per the decision to transform the sentence. The decision’s
reasoning indicates that the Supreme Court of the CR concluded that the
decision to transform the sentence can not be considered a decision
connected in content. “In annulling other decisions connected in content
under § 269 par. 2 of the Criminal Procedure Code, the rule is that all
further decisions are annulled that are connected in content
(internally) to the annulled legally effective decision to convict. Even
if the law does not expressly state in that section that decisions ‘in
the same criminal matter’ are to be annulled, there is no doubt that the
statement about annulling further decisions is dependent on the
statement under § 268 par. 2 of the Criminal Procedure Code, i.e. the
statement that said that the reviewed decision violated the law. It is
clear from these provisions that only those decisions are annulled that
were issued in the criminal matter in which it was ruled that the law
had been violated.” Therefore, the Supreme Court of the CR concluded
that “if the decision file no. 1 T 68/91 sentencing the petitioner to a
prison sentence of 6 months was not annulled, then neither can the
subsequent (and related to this decision in content) decision of the
court, file no. 1 T 68/91, stating that the defendant shall serve a
prison sentence of 6 months … .”
From
the decision by the District Court in Kolín of 5 October 1992, ref. no.
1 T 68/91-76, the Constitutional Court determined that it decided,
under § 60 par. 1 of the Criminal Procedure Code, as amended, that the
defendant would serve a prison sentence of 6 months. The reasoning of
the decision states: “As the court determined from the file 1 T 8/92 of
the District Court in Kolín, the defendant was sentenced again for
conduct engaged in from 11 July 1991 and ending on 10 April 1992 to a
non-suspended prison sentence of eight months, for a crime under §
272c/1 of the Criminal Code.”
II.
The
Constitutional Court first had to consider whether the constitutional
complaint was permissible (§ 75 par. 1 a contrario of the Act on the
Constitutional Court, in the version before it was amended by Act no.
83/2004 Coll.) and whether it was filed on time as regards all the
contested decisions (§ 72 par. 2 of the Act on the Constitutional Court,
in the version before it was amended by Act no. 83/2004 Coll.). This is
because the decision by the Supreme Court of the CR led to separate
evaluation of the petitioner’s individual claims, and part of the
petitioner’s appeal was considered impermissible, with reference to §
237 par. 2 let. a) of the CPC and § 237 par. 1 let. c) of the CPC. In
that situation, the Constitutional Court could conduct constitutional
law review only of those parts of the claims that the Supreme Court
considered on the merits, or where it denied the appeal on the grounds
that it did not find the issue to be of fundamental legal significance
(cf. the Constitutional Court announcement published as no. 32/2003
Coll., inserted into § 72 par. 4 and § 75 par. 1, the sentence after the
semi-colon, of the Act on the Constitutional Court, with effect as of 1
April 2004). The constitutional complaint against the remaining parts
of the claims would be, as regards the verdict of the trial and appeals
courts, as a result of impermissibility of the appeal ex lege [§ 237
par. 2 let. a) of the CPC ] filed after the deadline specified by law.
Nonetheless,
the Constitutional Court has already in the past deemed such actions by
the Supreme Court of the CR to be inconsistent with the right to a fair
trial, when, as a result of division of individual claims, it happens
that each is subject to a different procedural regime (cf. the judgment
in the matter file no. II. ÚS 117/04, as yet unpublished, available in
electronic form at www.judikatura.cz). Such action by the Supreme Court
of the CR is also inconsistent with the principle of foreseeability of
law, because a party to the proceedings, when filing an appeal, can not
with any certainty predict how the claim will be structured by the
Supreme Court of the CR and therefore for which part he must, because
the appeal is impermissible, file a constitutional complaint against the
decision of the appeals court.
In
view of this, the Constitutional Court could not accept such action by
the Supreme Court of the CR, and therefore it considered the
constitutional complaint to be permissible and timely filed in its full
scope.
III.
The
Constitutional Court, in accordance with § 44 par. 2 of the Act on the
Constitutional Court, requested consent from the parties to the
proceedings to waive a hearing, because it concluded that a hearing
could not be expected to further clarify the matter.
After
conducting its proceedings, the Constitutional Court then concluded
that the constitutional complaint is justified, both in the part of
objections to the general court’s conclusions that it is impossible to
award the petitioner compensation of non-pecuniary damage, and in the
part of objections to the decision not to award damages for serving the 6
month prison sentence that the petitioner was given by the decision to
transform the original suspended sentence in the first criminal
proceedings.
IV.
First
of all, the Constitutional Court states that is the judicial body for
protection of constitutionality (Art. 83 of the Constitution of the CR).
Therefore, it is not party of the general courts, and is not above them
in their hierarchy. The task of the Constitutional Court is to review
the decision making activity of the general courts, but only in
situations where their decisions interfere in the constitutionally
guaranteed fundamental rights and freedoms of individuals.
This
indicates that the Constitutional Court’s point of reference is not
simple law, but the constitutionally guaranteed fundamental rights
arising both from the Charter of Fundamental Rights and Freedoms and
from international treaties on human rights and fundamental freedoms. As
the Constitutional Court has already stated many times, fundamental
rights and freedoms in the area of ordinary law function like regulatory
ideas, which is why the complexes of ordinary law norms are tied to
them in terms of content. The interpretation and application of the
norms of ordinary law can not be performed completely autonomously, that
is without regard to the protection of an individual’s fundamental
rights arising from the norms of the constitutional order of the CR.
The
Constitutional Court evaluated the contested decisions by the general
courts from these points of view, and concluded that their conclusions
regarding evaluation of the petitioner’s claims for compensation of
non-pecuniary damage and damage for serving a 6 month prison sentence
will not stand in light of protection of the petitioner’s fundamental
rights.
A.
The
reasoning of the contested decisions indicates that the general courts
denied the petitioner’s claim to compensation of non-pecuniary damage
because the applied statute, Act no. 58/1969 Coll., just like Act no.
82/1998 Coll., is based on the requirement of compensation of pecuniary
damage, which, under § 442 par. 1 of the Civil Code, is understood to
mean actual damage (damnum emergens) and lost profits (lucrum cessans).
The general courts also concluded that this framework is consistent with
Art. 5 par. 5 of the Convention, i.e. it represents the implementation
of a claim to compensate a person whose personal freedom was restricted
in conflict with Art. 5 par. 1 to 4 of the Convention.
In
its decisions, the Constitutional Court has already formulated the
belief that criminal prosecution and the sentence arising from it are
serious interference in an individual’s freedom, and also lead to other
negative consequences for an individual’s personal life and destiny
(most recently, cf. judgment file no. IV. ÚS 335/05, as yet unpublished,
available in electronic form at www.judikatura.cz). Criminal
prosecution and serving a sentence thus interfere in an individual’s
private life, in his honor and good reputation, i.e. they are also
capable, in addition to violating the right to personal freedom
guaranteed in Art. 8 par. 1 of the Charter, of restricting or violating
the individual’s right to respect for and protection of his private and
family life, dignity, personal honor, and good reputation, as guaranteed
in Art. 10 of the Charter. Thus, it is indisputable that criminal
prosecution, or serving a sentence, that was implemented in conflict
with the law, or the constitutional order of the CR, can lead to ,
besides material damages (the value by which the injured party’s assets
were reduced or by which possible increase of property was reduced) the
creation of non-pecuniary damage.
The
Constitutional Court considered the question of compensation for
non-pecuniary damage as part of the compensation of damages whose scope
is generally formulated in § 442 par. 1 of the Civil Code in judgment
file no. Pl. ÚS 16/04 (promulgated as no. 265/2005 Coll.). In that
decision the Constitutional Court specifically considered the question
of whether that provision, defining the compensation of damages, can be
interpreted so that it could also include a claim for compensation of
non-pecuniary damage consisting of the killing of a close relative. It
concluded that the current legislative concept of damage as pecuniary
damage does not permit such an interpretation, although it does not rule
out an individual seeking compensation for non-pecuniary damage
consisting of interference in personality rights through protection of
personality under § 11 and § 13 of the Civil Code. However, in terms of
the current legislative framework, this is a different claim than
compensation of damage.
In
this regard, the Constitutional Court then appealed to the legislature,
and stated that from a legislative standpoint it would be more correct
to abandon the existing concept of damage as property damage and
consider damage to also include damage caused by effects on the bodily
and spiritual integrity of the injured party. As the Constitutional
Court noted, this concept is also in line with the principles of
European law on offences, which define damage as property or
non-property damage. These principles, although they are based in
private initiative, have a significant effect on the legislation of
European states, which have gradually been adapting to this concept.
However, in that decision the Constitutional Court confirmed that de
lege lata claims for compensation of non-pecuniary damage are
exercisable not as compensation of damage, whose the components are
defined by § 442 par. 1 of the Civil Code, but through protection of
personality under § 11 and § 13 of the Civil Code.
However,
these conclusions arising from the judgment by the plenum of the
Constitutional Court must be corrected in the area of compensation of
damages for previous unlawful limitation of personal freedom, where the
claim for compensation is constructed not only in the area of simple
law, but also by the Convention on the Protection of Human Rights and
Fundamental Freedoms, in Art. 5 par. 5, which is, under Art. 10 of the
Constitution of the CR, a directly applicable norm in the domestic legal
order of the CR, and which must be given priority in application before
statutes.
This approach
must generally be chosen when the grounds for compensation of damages
are punishable conduct by an individual or legal entity, i.e. conduct
which is inconsistent with the law, with good morals, with public order.
Authoritative determination of such conduct is much more dependent on
cooperation by the state, compared to a situation involving compensation
of damages on the grounds of violation of contractual provisions. So,
for example, the German Constitutional Court (BVerfG), in its decision
of 15 January 1958 (BVerfGE 7, pp. 198, 206) declared that the civil law
of offenses belongs to “those legal norms of private law which contain a
mandatory legal framework, and therefore are part of the ordre publique
in the wider sense, i.e. that they contain principles which apply to
private law relationships on the grounds of public interest, and
therefore their applicability is not subject to private arrangements.
Thanks to their purpose, these provisions are not as closely related to
public law, but are a direct supplement to public law. Therefore, these
provisions must be especially open to the influence of constitutional
law.”
The Greek Supreme
Court (Areios Pagos) also did not hesitate to turn directly to the
constitution when dealing with compensation of damages due to punishable
conduct. In one of its decisions [Areios Pagos 81/1991, EllDik 32
(1991), p. 1215], referring to Article 5 of the Greek constitution, it
stated that “the fundamental principle, under which every action or
failure to act which results in culpable causation of damage binds the
damaging party to compensate the damage, not only if his action or
failure to act violates a particular legal provision, but also if it
violates the general spirit of our legal system, which requires that the
conduct of commercial actions may not lead to a breach of the public
order.”
As regards
specifically state liability for limiting personal freedom, and thus the
relationship of the domestic civil law of offenses and Article 5 par. 5
of the Convention, the situation in individual European states is that
the classic dogmatics of civil legal institutions gave way to direct
application of Article 5 par. 5 of the Convention, which is interpreted
fully autonomously by the national courts. So, for example, the
Netherlands Supreme Court (Hoge Raad), in one case directly relied on
Art. 5 par. 5 of the Convention and found the state liable for the
conduct of a state prosecutor, involving flawed interpretation of a
statutory provision (HR 11 October 1991, NedJur 1993, No. 165, p. 516).
The
German Supreme Court (BGH), in an older decision (BGH 31 January 1966,
BGHZ 45, p. 58), evaluated a claim based on Art. 5 par. 5 of the
Convention as “a case of objective [state] liability requiring illegal
conduct [by it].” The current German and Austrian supreme courts’ case
law (BGH 26 November 1992, VersR 1993, p. 972, 975-6; OGH 7 October
1992, ÖJZ 1993, p. 276) awards, without anything further, compensation
for pain and suffering, directly applying Art. 5 par. 5 of the
Convention.
The Danish
Western Court of the first level went so far as to, in the case of a
person erroneously imprisoned for seven years, granted the person’s
claim by awarding compensation for damages in an amount equivalent to
300,000 pounds for the injustice suffered (VLD 24 June 1994, UfR 1994 A,
p. 751).
The
abovementioned examples show that the state liability for a limitation
of personal freedom of an individual by judicial authorities that is in
any way flawed is penalized by court case law through awarding
compensation of non-material damages to the person, regardless of the
domestic legal framework, because domestic courts directly apply Art. 5
par. 5 of the Convention. Therefore, the Constitutional Court sees no
reason not to take this European legal opinion into consideration.
The
Constitutional Court also bases this position on the case law of the
European Court of Human Rights (the “ECHR”), which has consistently
ruled that the Convention’s institutions can have completely autonomous
content and a scope not dependent on their legal classification under
domestic law. So, or example, the ECHR approached the interpretation of
the content and scope of property rights which enjoy protection under
Art. 1 of the Protocol to the Convention, and whose content and scope
need not be identical with the concept of property rights under the
legal systems of the parties to the Convention (cf., e.g., the decision
of the Grand Chamber of 5 January 2000, Beyeler v. Italy, 33202/96: §
100, or the decision by the First Section of 19 June 2001, Zwierzyński
v. Poland, 34049/96: § 63 or the decision by the Grand chamber of 22
June 2004, Broniowski v. Poland, 31443/96: § 129).
Regardless
of how the content of the institution of compensation of damage is
treated by the domestic legislature, the case law of the general courts
and the constitutional court, or domestic civil doctrine, in domestic
application of the Convention one must start with the concept of
compensation of damage as it is treated by the national European
constitutional courts and supreme courts, whose case law gives rise to
the case law of the ECHR. Thus, without regard for the anachronism of
the Czech legal framework which the Constitutional Court accepted in the
abovementioned judgment, and only called on the legislature to
harmonize domestic legislation with the European understanding of the
law of offenses, this concept of damage and compensation can not be
extended to interpreting the Convention’s norms.
Yet,
the ECHR case law understands damage as pecuniary damage and
non-pecuniary damage, including in interpretation and application of a
claim for compensation of damage under Art. 5 par. 5 of the Convention
(cf. Repík, B.: Evropská úmluva o lidských právech a trestní právo [The
European Convention on Human Rights and Criminal Law]. Orac, Praha 2002,
p. 253: “Of course, a requirement for a claim is that damage has been
incurred which is in a causation relationship with violation of Art. 5
par. 1 to 4. Thus, the damage compensated is material as well as
non-material, moral, e.g. injury to reputation, moral hardship, more
difficult social functioning, etc.”). In interpreting Art. 5 par. 5 of
the Convention, the ECHR in relevant decisions takes as its starting
point that the demand for compensation covers both material damage and
non-material damage (“pecuniary or non-pecuniary damage to compensate”,
cf. the decision Wassink v. The Netherlands, par. 38). In the decision
Tsirlis and Kouloumpas v. Greece the ECHR found it was a violation of
Art. 5 par. 5 of the Convention that Greece did not provide the
petitioners any compensation for the limitation of their personal
freedom that was implemented inconsistently with Art. 5 par. 1 let. a)
of the Convention. In that decision, the ECHR expressly stated that “The
Court observes that Mr. Tsirlis and Mr. Kouloumpas spent thirteen and
twelve months, respectively, in what was unlawful detention. … The very
fact of their deprivation of liberty must have produced damage of both
pecuniary and non-pecuniary nature” (cf. par. 80 of the decision). The
Greek domestic legislation contained Art. 540 par. 1 of the Criminal
Code, which expressly provided the obligation to compensate non-material
damage as well (cf. par. 48 of the decision: “Article 540 para. 1:
Persons who have been unfairly … detained on remand must be compensated
for any pecuniary loss they have suffered as a result of their
detention. They must also be compensated for non-pecuniary loss…”).
In
the decision Shilyayev v. Russia, although the ECHR did not find
violation of Art. 5 par. 5 of the Convention, nonetheless, it cited as
decisive criteria for evaluating the specific amount of damage, the
nature of the matter, the total length of deprivation of liberty, and
consequences affecting the petitioner’s personal sphere (“the nature of
the criminal case against him, total length of his detention and
personal after-effects,” cf. par. 21 of the decision).
Thus,
it is indisputable that in the context of application of the
Convention, whether at the national or European level, the concept of
damage is understood as both pecuniary and non-pecuniary damage.
This
conclusion can also be supported by historical interpretation of the
Czech legal framework. On 27 April 2006 Act no. 160/2006 Coll. went into
effect, which amended Act no. 82/1998 Coll., on Liability for Damage
Caused During the Exercise of State Authority by a Decision or Incorrect
Official Procedure, as amended by later regulations. This Act inserted
into the Czech legal order a claim for compensation of non-pecuniary
damage, which was incurred as the result of an unlawful decision or
incorrect official procedure. The background report to the Act clearly
indicates that the legislature was motivated, among other things, by
deficiencies in the domestic framework in relation to Art. 5 par. 5 of
the Convention. The background report states: “Thus, not one of these
[previous] amendments to the law concerned the essential problem which
relates to compensation of damages in the case of non-pecuniary
(non-material) damage. This concept is not unknown in the Czech legal
order, because, e.g. § 43 of the Criminal Procedure Code speaks of moral
or other (in this sense, non-material) damage caused by the perpetrator
of a crime to the victim ... Likewise, theory (just like many foreign
legal systems) knows this concept, and gives it the meaning of damage
other than pecuniary (material), i..e moral, conceptual, non-pecuniary
damage (e.g., in French law, “le dommage moral”), for which the victim
is entitled to monetary – pecuniary – satisfaction (compensation). This
non-pecuniary damage may be part of injury to health (e.g. pain, more
difficult social involvement) or may arise from violation of a right …
The amendment of Act no. 82/1998 Coll. aims to cover that second
component of non-property damage. Even if the non-material detriment is
defined separately from damage as such (i.e. separately from material
damage), the provisions of the law regarding compensation of damage
apply to it fully.”
As
regards the deficiencies of the previous legal framework in relation to
Art. 5 par. 5 of the Convention, the background report stated that “Act
no. 82/1998 Coll. does not permit sufficient compensation for illegal
deprivation of freedom, which is nevertheless guaranteed in Art. 5 par. 5
of the European Convention on Human Rights. That provision requires
that the right to compensation exist in the legal order for cases of any
violation of Art. 5 par. 1 to 4 of the Convention, although the legal
framework contained in Act no. 82/1998 Coll. does not meet the
requirement of the Convention.”
In
other words, the motivation for enacting this legal framework was,
among other things, to bring the domestic legal framework into
accordance with the Convention’s requirements. It is indisputable that
the new legal framework does not establish the entitlement to
compensation of non-pecuniary damage, but merely declares its existence
at the level of the domestic legal framework. As stated above, that
entitlement was established in the foregoing period by Art. 5 par. 5 of
the Convention, which is a “self-executing” provision that is directly
applicable over domestic statutes. Insofar as the previous legal
framework (regardless of whether it was contained in Act no. 82/1998
Coll. or Act no. 58/1969 Coll.) permitted only the compensation of
pecuniary damage, it was the duty of the courts, whose protection an
individual’s fundamental rights enjoy, to give priority in application
to Art. 5 par. 5, using the meaning that arises from ECHR case law.
Thus,
if the general courts concluded in this case that the petitioner could
not be granted a claim for non-pecuniary damage under Act no. 58/1969
Coll., whose § 20 refers, concerning the scope of damage, to § 442 par. 1
of the Civil Code, that conclusion may be consistent with the
Constitutional Court’s conclusions stated in the abovementioned judgment
by the plenum, but it will not stand in light of the concept of
compensation of damage which arises from Art. 5 par. 5 of the
Convention, which the general courts must apply before statutes.
B.
The
Constitutional Court’s previous judgment in the petitioner’s matter,
file no. I. ÚS 184/96, clearly stated that it is inconsistent with the
principle ne bis in idem for the petitioner to be prosecuted and
punished twice for the same act. This conclusion must also be applied to
the situation if further decisions, concerning the same act, were tied
to the annulled legally effective decisions, and if those further
decisions were in a causal relationship to the transformation of the
sentence originally imposed. It would be inconsistent with the sense of
the abovementioned Constitutional Court judgment if decisions were to
remain untouched which directly, i.e. in a direct causal relationship,
connected to decisions which violated the principle ne bis in idem, if
those decisions mean an increasing of the sentence originally imposed.
This is all the more so if the individual’s liberty was restricted on
the basis of those facts. The contrary approach would actually mean a
continuation of the double punishment of the petitioner, because the
original sentence would not have been changed but for the further
criminal prosecution and his conviction.
Only
while respecting these starting points, is it necessary in the given
matter to interpret § 269 par. 2 of the Criminal Procedure Code, as
regards the definition of the scope of the decisions which were
connected in content to the decisions annulled by the Supreme Court of
the CR in proceedings on a complaint about violation of the law. In
other words, decisions that were issued in a direct causal relationship
with decisions that were later annulled due to illegality or
unconstitutionality must be considered decisions connected in content.
If the reason for issuing a decision lay directly in the existence of
decisions, though issued in different proceedings, which were later
annulled due to illegality, that decision must be considered a decision
connected in content.
In
this case the petitioner was given a suspended prison sentence of 6
months in the first proceeding. In the following proceeding the
petitioner was convicted for the same crime, and was given a
non-suspended prison sentence of 8 months. Related to that decision in
time and in a causal relationship was the decision by the District Court
in Kolín, whose reasoning makes it evident that it was issued in direct
connection with the petitioner’s second conviction. The direct reason
for the transformation of the sentence was the existence of other
legally effective decisions which found the petitioner guilty of
committing the same crime and sentenced him to a non-suspended prison
sentence. If these decisions were later expressly annulled due to
violating the principle ne bis in idem, that conclusion must also be
applied to the decision to transform the sentence, i.e. the decision by
the District Court in Kolín of 5 October 1992, ref. no. 1 T 68/91. In
this case a contrary conclusion would mean inconsistent application of
the principle ne bis in idem, because the petitioner was required to
serve the non-suspended prison sentence of 6 months only on the basis of
the further criminal conviction.
The
general courts were required to reflect this conclusion in their
interpretation of the relevant provisions of Act no. 58/1969 Coll., on
Liability for Damage Caused by a Decision by a State Body or Incorrect
Official Procedure so that the petitioner was compensated for damage
caused by the serving of that sentence. In this regard we can not accept
the opinion that, even if § 1 par. 1 of that Act were to be followed,
the fundamental prerequisite for exercising a claim for compensation of
damages had not been met, i.e. that the legally effective decision which
caused the damage was annulled due to illegality. This is because
evaluation of the group of decisions annulled in proceedings on a
complaint about violation of the law depends precisely on the
abovementioned interpretation of § 269 par. 2 of the Criminal Procedure
Code, because the decision by the Supreme Court of the CR of 25 August
1999 expressly annulled decisions connected in content to the decision
by the Regional Court in Prague of 16 June 1992 file no. 5 To 188/92 and
the decision by the District Court in Kolín of 10 April 1992, file no. 1
T 8/92, insofar as, in view of the change which happened by the
annulment, those decisions ceased to have any basis.
As
stated above, in this case this interpretation must be done precisely
with regard to the grounds which led to annulling the decision on the
petitioner’s second conviction. The Constitutional Court considers the
interpretation performed by the general courts to be excessively
formalistic, and, moreover, one that misses the purpose of final
criminal law decision, and therefore it can not be accepted.
For
these reasons the Constitutional Court concluded that the contested
decisions, which denied the petitioner’s claim for compensation of
damages related to serving his prison sentence of 6 months, violated the
petitioner’s fundamental right guaranteed in Art. 5 par. 5 of the
Convention.
C.
As
regards the petitioner’s objection regarding the failure to award
compensation of lost earnings at the adjusted level, the Constitutional
Court states that the general courts will have to address this issue
within their decision-making on compensation of non-pecuniary damage. In
setting the amount of compensation, it will undoubtedly be necessary to
take into account the period when payment of compensation of this
damage was denied to the petitioner, as well as the fact that flagrant
errors were committed by the general courts, and especially by the
Supreme Court of the CR, in handling the complaint about violation of
the law filed in favor of the petitioner, which had the result of
significantly extending the total period of the proceedings, which is
related to the conditions for recognition and actual payment of
compensation of non-pecuniary damage.
In
view of the abovementioned conclusions concerning violation of Art. 5
par. 5 of the Convention on the Protection of Human Rights and
Fundamental Freedoms, the Constitutional Court granted the
constitutional complaint under § 82 par. 2 let. a) of Act no. 182/1993
Coll., on the Constitutional Court, as amended by later regulations, and
annulled the contested decisions of the District Court for Prague 2,
the Municipal Court in Prague, and the Supreme Court of the CR, under §
82 par. 3 let. a) of that Act.
Instruction: Decisions of the Constitutional Court can not be appealed.
Brno, 13 July, 2006
Instruction: Decisions of the Constitutional Court can not be appealed.