Decided 12 May 2004 – I. US 167/04
                               
                    „Autonomy of the Will“


HEADNOTES
The  autonomy  of  the will and individual  liberty  of  action
guaranteed on the constitutional level by Art. 2 para. 3 of the
Charter of Fundamental Rights and Basic Freedoms.  Art. 2 para.
3  of the Charter must be understood in a double sense.  In its
first dimension it represents a structural principle, according
to  which  state authority may be asserted in relation  to  the
individual  and  her  autonomous sphere  (including  autonomous
manifestations   of  the  will)  solely  in  cases   where   an
individual’s   conduct   violates  an   explicitly   formulated
prohibition laid down in law.  However, such prohibition  must,
in  addition,  reflect  solely the requirements  consisting  in
preventing  the individual in encroaching upon  the  rights  of
others and in the attainment of the public good, provided  that
such  restriction  upon the individual  liberty  of  action  is
legitimate  and  proportional.  Such principle must,  then,  be
conceived of as an essential attribute of every democratic law-
based  state (Art. 1 para. 1 or the Constitution of  the  Czech
Republic).   Art. 2 para. 4 of the Constitution  of  the  Czech
Republic has a like content.
In its second dimension, Art. 2 para. 3 of the Charter operates
as  an individual right to the respect by state authorities  of
the  autonomous  manifestation of one’s  personhood  (including
manifestations of the will), which are reflected in a  person’s
specific  conduct,  to  the extent that  such  conduct  is  not
expressly prohibited by law.
In  its second dimension, in which it operates as an individual
fundamental  right, Art. 2 para. 3 must be applied  immediately
and  directly.   In this dimension it does not  merely  radiate
through  ordinary law, rather it is an individual  right  which
operates  directly in relation to state authority.  Thus,  when
state  bodies  apply  ordinary law, they are  also  obliged  to
interpret the norms of that law, in which Art. 2 para. 3 of the
Charter  and  Art. 2 para. 4 of the Constitution of  the  Czech
Republic  are reflected as objective constitutional principles,
in  such  a manner that they do not encroach upon the right  of
the individual to the autonomy of his will, which is guaranteed
by the second dimension of Art. 2 para. 3.
Such  a  conception  of Art. 2 para. 3 of  the  Charter  merely
expresses  the  fact that, in the substantive law-based  state,
the  individual and his liberty of action always take  priority
before state power realized in statutes.  Should the individual
not  have  the opportunity directly to call upon this priority,
such  priority  would  be a mere formal  declaration.   Such  a
proclamation of objective principle is then easily erodible  by
the legislative activity of the legislative body.
The  free sphere of the individual and its direct constitutonal
guarantee  in the form of an enforceable individual  right  are
conditiones sine qua non of the material law-based state, which
is  erected  upon  respect for the fundamental  rights  of  the
individual.  The individual’s right to the respect for  his  or
her  autonomous and free sphere actually operates as a constant
placed  before  the  bracket  in  which  are  found  particular
specified  fundamental rights put into  positive  law  form  in
reaction  to  the massive infringement of them by authoritarian
or  totalitarian  regimes.  The need  to  formulate  particular
fundamental  rights  has, as a historical matter,  always  been
conditioned  as  a  reaction to the massive infringement  in  a
certain  field  of  individual  freedom,  from  which  specific
fundamental  right emerged (see Hayek, F. A., Law,  Legislation
and  Freedom, Part 3, Academia, Prague 1991, p. 96).  This fact
is  apparent  from the evolution of catalogues  of  fundamental
rights;  otherwise, the taxonomy of the Charter of  Fundamental
Rights and Basic Freedoms is constructed upon the same logic as
well.

JUDGMENT
On  12  May  2004 the Constitutional Court decided in  a  panel
composed of its Chairman, JUDr. Frantisek Duchon, and Justices,
JUDr.  Eliska Wagnerova and JUDr. Vojen Guttler, in the  matter
of the constitutional complaint of the commercial company, Home
Credit  Finance a. s., with its headquarters at Kounicova  284,
602  00  Brno,  represtented  by  JUDr.  Vladimir  Muzikar,  an
attorney  with  his office in Brno, Havlickova 13,  joined  for
joint hearing and resolution by the 23 March 2004 ruling of the
Plenum of the Constitutional Court, against the rulings of  the
Regional Court in Brno listed below:

    1.  resolution of 7. 11. 2003, file no. 28 Co 416/2003,
    2.  resolution of 7. 11. 2003, file no. 28 Co 388/2003,
    3.  resolution of 7. 11. 2003, file no. 28 Co 371/2003,
4.  resolution of 7. 11. 2003, file no. 28 Co 417/2003,
    5.  resolution of 6. 11. 2003, file no. 28 Co 168/2003,
    6.  resolution of 6. 11. 2003, file no. 28 Co 339/2003,
    7.  resolution of 6. 11. 2003, file no. 28 Co 421/2003,
8.  resolution of 6. 11. 2003, file no. 28 Co 215/2003,
    9.  resolution of 7. 11. 2003, file no. 28 Co 409/2003,
10. resolution of 6. 11. 2003, file no. 28 Co 306/2003,
    11.  resolution of 7. 11. 2003, file no. 28 Co 381/2003, as
       follows:

I.  The  resolutions of the Regional Court in Brno  of  7.  11.
2003,  file no. 28 Co 416/2003, of 7. 11. 2003, file no. 28  Co
388/2003,  of 7. 11. 2003, file no. 28 Co 371/2003, of  7.  11.
2003,  file no. 28 Co 417/2003,of 6. 11. 2003, file no.  28  Co
168/2003,  of 6. 11. 2003, file no. 28 Co 339/2003, of  6.  11.
2003,  file no. 28 Co 421/2003, of 6. 11. 2003, file no. 28  Co
215/2003,  of 7. 11. 2003, file no. 28 Co 409/2003, of  6.  11.
2003,  file no. 28 Co 306/2003, of 7. 11. 2003, file no. 28  Co
381/2003, constituted an intrusion into the fundamental  rights
of  the complainant under Art. 2 para. 3 and Art. 38 para. 1 of
the  Charter of Fundamental Rights and Basic Freedoms,  and  at
the  same  time  Art.  1 para. 1 and Art.  2  para.  4  of  the
Constitution of the Czech republic were infringed.
II.  The  resolutions of the Regional Court in Brno  listed  in
point I of the statement of judgment (dispositif) are quashed.

REASONING:
By  her timely and, as far as other requirements are concerned,
duly   submitted  constitutional  complaints,  the  complainant
contested  the ordinary court decisions listed in the  heading.
The  contested rulings of the Regional Court in Brno upheld the
rulings  of  the  Municipal Court in Brno, by which  the  first
instance court declared that it was not the proper venue in the
case  and  transferred the matter to the court which, according
to  § 84 of the Civil Procedure Code, was the proper venue (the
ordinary court of the defendant).
      In  view  of the fact that the constitutional  complaints
have  identical content and that the parties to the  proceeding
are  identical, the Constitutional Court Plenum decided in  its
23 March 2004 ruling to joint all constitutional complaints for
joint hearing under file no. I. US 167/04.
      The complainant is of the view that the contested rulings
of  the  Regional  Court in Brno violated her  constitutionally
guaranteed fundamental rights, in particular the right  to  act
in  accordance with the principle of contractual liberty in the
sense  of  Art.  2  para. 4 of the Constitution  of  the  Czech
Republic  and  Art.  2  para. 3 of the Charter  of  Fundamental
Rights  and Basic Freedoms (hereinafter „Charter“), as well  as
the right to equal status in judicial proceedings under Art. 37
para. 3 of the Charter.
     According to the complainant, the Municipal Court declared
in  its rulings (about which the Regional Court in Brno decided
in  the  appellate proceeding) the invalidity of  the  parties‘
prorogation agreement , which stipulated the court in  Brno  as
the  proper venue to hear their mutual disputes.  According  to
the  Municipal Court, it is not clear from the agreement  which
of the two courts located in Brno should be the proper venue in
the matter (whether the Municipal Court in Brno or the District
Court  Brno  - Province).  For this reason the court considered
the  agreement to be indefinite and, thus, invalid under  §  37
para.  1 of the Civil Code.  In its rulings, contested in  this
case,  the  Regional Court in Brno subsequently  affirmed  this
conclusion.
     The Regional Court put forward as the cardinal argument in
the  reasoning  of its decisions that it found there  to  be  a
difference  between  the formulation „the  court  that  is  the
proper venue in Brno“, which in its view designates the court’s
seat,  and the formulation „the court that is the proper  venue
for  Brno“,  which in the court’s view designates  the  courts‘
jurisdiction regardless of its seat.
      The  complainant  considers that,  in  this  matter,  all
statutory   conditions  for  the  entry  into  a   „prorogation
agreement“  were met.  The parties to the proceeding stipulated
as  the  proper venue the court in Brno that has subject-matter
jurisdiction  to hear matters relating to that  agreement.   In
the  complainant’s view, at the present no court other than the
Municipal Court in Brno qualifies as such a court, nor even  at
the  time when individual actions were filed (§ 11 para.  1  of
the Civil Procedure Code).
      In her constitutional complaints, the complainant further
argues  that  the title, district, and seat of each  court  are
laid  down by law.  It is also stated directly in the law that,
in  the  judicial district of the City of Brno,  the  Municipal
Court in Brno exercises the jurisdiction of a district court (§
9  para. 2 of the Act on Courts and Judges), and that the  seat
of the Municipal Court in Brno is the City of Brno (§ 12 of the
Act on Courts and Judges).
      The municipalities that fall within the judicial district
of the District Court Brno-Province are exhaustively enumerated
in  the  appendix  to  the Act on Courts  and  Judges  (in  the
complainant’s  view,  it  must be  emphasized  that  this  list
contains  neither the municipality nor the City  of  Brno);  it
further  provides  that the seat of the  District  Court  Brno-
Province is the City of Brno.
      In  the complainant’s view, it follows from what has been
stated that the Municipal Court in Brno is the sole court which
is related to Brno by title, judicial district, and seat – that
is,  which is, in the wording of the prorogation agreement  „in
Brno“.  It also follows from the above that the District  Court
in  Brno-Province is not directly related to the City of  Brno;
the  sole  fact that the seat of this court is in Brno  is  not
capable of establishing any such qualified relation.
      In  light  of  the  above-stated  arguments,  it  is  the
complainant’s  view that the opinion of the Regional  Court  in
Brno,  according to which the formulation, „the court  that  is
the  proper venue in Brno“, designates the court’s seat and the
formulation,  „the court that is the proper  venue  for  Brno“,
designates the courts‘ jurisdiction, does not hold muster.
      In  a  situation where the contracting parties wished  to
establish,  as  the  proper venue, the court  which  hears  and
decides  matters within the territory of the judicial  district
of  the City of Brno, the complainant considers the term  which
was  designated in the prorogation agreement for the  venue  of
the  court  as  the appropriate choice; at the same  time,  the
parties wished to formulate this agreement in such a way as  to
cover,  as well, any possible changes that might occur  in  the
future.
      The complainant considers that one can give consideration
even  to other terms which might have been used in the text  of
the  prorogation agreement.  For example, one such  formulation
could be the term, „the court for Brno which has subject-matter
jurisdiction over the matter“.  The complainant considers  this
formulation  to  be  similar in meaning to  that  used  in  the
prorogation agreement.  The complainant thus considers that the
term, „court in Brno“ and „court for Brno“ mean practically the
same  thing, so that the correct interpretation of them  should
lead to the same conclusion as to whether they are definite.
       For   these  reasons,  the  complainant  considers   the
conclusions  reached by the ordinary courts as legal  formalism
and  believes  that, as a matter of fundamental  constitutional
principles, excessive demands concerning the formulation  of  a
prorogation  agreement are unacceptable, as  they  demonstrably
encroach  upon  the  contractual  liberty  resulting  from  the
principle  of the priority of the citizen before the State,  as
laid  down in Art. 1 of the Constitution of the Czech  Republic
(more  precisely,  Art. 1 para. 1 of the  Constitution  of  the
Czech  Republic) and from the principle of contractual freedom,
in the sense of Art. 2 para. 4 of the Constitution of the Czech
Republic and of the corresponding provisions of Art. 2 para.  3
of  the  Charter of Fundamental Rights and Basic  Freedoms  (in
this  connection, the complainant refers to the  Constitutional
Court’s judgment in the matter no. I. US 331/98).
      The  complainant further believes that, in addition,  her
constitutionally  guaranteed right to her lawful  judge,  under
Art.  38 para. 1 of the Charter, was infringed by the contested
decisions,   precisely   due  to  the  declaration   that   the
prorogation agreement was invalid.  To the extent  that,  in  a
specific  case,  a  court fails to respect a validly  concluded
prorogation  agreement and decides concerning the proper  venue
in   disregard  thereof,  in  the  complainant’s  view  it  has
infringed  the  right of the parties to a  proceeding  to  have
their  case  heard by the court which is the proper venue,  and
thus also the constitutionally guaranteed right to one’s lawful
judge under Art. 38 para. 1 of the Charter.
      The  complainant  also considers that, by  its  contested
decisions,  the  Regional  Court in Brno  encroached  upon  her
right, under Art. 37 para. 3 of the Charter, to the equality of
parties  to  a  proceeding.  A component of this right  is  the
parties‘  right  to  give their views on all  facts  which  are
important for the adjudication of the matter.  This right  then
corresponds  to the duty of courts to respond,  in  a  relevant
procedural  matter,  to  all views expressed  by  the  parties.
Should  the  court  fail to respond to their views,  procedural
error  can  reach  such  an  intensity  as  to  result  in  the
infringement  of the constitutionally guaranteed right  to  the
equal  status of parties to a proceeding.  In the complainant’s
view,  such is the case, in particular, when the court entirely
disregards  the views expressed by the parties,  and  the  same
outcome  may  result where the relevant part  of  the  judicial
decision is unreviewable due to a failure to give reasons.
      For  all  of  the  above-stated reasons, the  complainant
proposes  that  the  Constitutional Court quash  the  contested
rulings.
      At the Constitutional Court’s request, the opposing party
to  the  constitutional complaint, the Regional Court in  Brno,
represented  by the Chairman of Panel 28 Co, responded  to  the
submission  of the complaint.  In the statement  of  views,  he
declared  that without a doubt the complainant has  the  right,
when  entering  into a credit contract in conformity  with  the
object  of her entrepreneurial activities, to make use  of  the
possibility afforded, under § 89a of the Civil Procedure  Code,
to  parties  to  a  civil court proceeding  in  commercial  law
matters.   It  does  not  follows from the  contested  rulings,
however, that the Regional Court in Brno denied or called  into
doubt  the  complainant’s right under Art. 2  para.  3  of  the
Charter  (everyone may do that which is not prohibited by  law;
and  nobody  may be compelled to do that which is  not  imposed
upon  him by law).  In his view, it was up to the parties,  and
above  all  to  the  complainant, as  contracting  subjects  to
realize  the  above-stated right in an appropriate manner  into
the  text  of  the  agreement making another court  the  proper
venue,  and  to  stipulate  in  that  agreement,  in  a   quite
unequivocal and indisputable manner, which specific  court  the
parties have chosen to decide on their disputes.
      Even  though  it might be conceded, as a general  matter,
that  such  other court need not be designated in the agreement
by  the  title  given it in Act No. 6/2002 Sb., on  Courts  and
Judges, without a doubt the parties‘ agreement on the selection
of  such court must designate it in such an unequivocal  manner
so as not to give rise to doubts as to which specific court the
parties  agreed  was to be the proper venue.   If  the  parties
expressly  agreed that such court would be „the venue  in  Brno
which has subject-matter jurisdiction over the matter“, in  the
Regional Court’s view, it can be adjudged that courts „in Brno“
refers  to, on the one hand, the Municipal Court in  Brno,  but
also  that the District Court Brno-Province, with its  seat  in
Brno,  could  be  meant,  as  both courts  have  subject-matter
jurisdiction in first instance to hear and decide in the  given
matter.
      To the objection that the right to one’s lawful judge had
been  infringed, the Chairman of Panel 28 Co stated that it  is
precisely the indefiniteness of the prorogation agreement  that
has  logical impact even in the sphere of the lawful judge, and
it  is  precisely  for this reason that prorogation  agreements
require an entirely unambiguous expression of intent to  select
another  concrete court as the proper venue.  It  is  precisely
the  indefiniteness of the given agreement which gives  grounds
for  concluded  that Art. 38 para. 1 of the  Charter  has  been
affected,  and in no sense on the part of the court, rather  by
the complainant herself.
     As far as concerns the arguments relating to the violation
of  the equality of parties to a proceeding, the Regional Court
in  Brno  stated  that, in its view, there were sufficient  and
detailed reasons supporting the conclusion that the prorogation
agreement is indefinite (and, in consequence thereof, invalid).
The  Regional Court in Brno did not, as the appellate court  in
the  matter,  receive from the complainant  any  expression  of
views  or of opinion to which the Court would have had to react
(or  take  a  position upon) in the reasoning of its  contested
decisions.
     With reference to all these grounds, the Regional Court in
Brno  proposes  that  the  constitutional  complaints  not   be
granted.
      In  his  9  April 2004 declaration, one of the  secondary
parties  to  the  proceeding on the constitutional  complaints,
Maxmilian Simonic, waived this status pursuant to § 28 para.  2
of the Act on the Constitutional Court, and the other secondary
parties   did  not  give  their  views  on  the  constitutional
complaints  in a qualified manner within the period  prescribed
by the Constitutional Court.
      After  receiving the agreement of the parties to dispense
with  an  oral  hearing pursuant to § 44 para.  2  of  Act  No.
182/1993  Sb.,  on  the Constitutional Court,  as  subsequently
amended, the Constitutional Court came to the conclusion in the
proceeding that the constitutional complaints are well-founded.
      The Constitutional Court has repeatedly, in its judgments
nos.  I.  US  546/03 and I. US 43/04, dealt with the  decision-
making  of  the  Regional Court in Brno  in  the  complainant’s
matters,  in which the complainant, pursuant to §  89a  of  the
Civil Procedure Code, designated in credit contracts the proper
venue for disputes under those contracts.  In consideration  of
the  fact  that  the constitutional complaints presently  being
heard concern an analogous legal issue, the first panel of  the
Constitutional  Court  continues  to  adhere  to  its  original
opinions, expressed in the cited judgments.
      The  Constitutional Court constitutes the  judicial  body
responsible for the protection of constitutionalism (Art. 83 of
the  Constitution of the Czech Republic).  Accordingly, it does
not constitute a part of the ordinary courts, neither is it, in
relation  to  them,  a superior instance.   The  Constitutional
Court’s  task  is  to  review the ordinary  courts‘  decisional
activity,  however, only in the circumstance  where,  by  their
decisions, they have encroached upon constitutionally protected
fundamental rights and basic freedoms of the individual.   That
means  that  the  Constitutional  Court  is  not  entitled   to
intervene into the ordinary courts‘ decisional activity in each
case  in  which there has been a violation of ordinary legality
or  of  some  other incorrect decision which, in  its  essence,
resides on the plane of ordinary law.
      It  follows  from  the  Constitutional  Court’s  constant
jurisprudence,  the  circumstances  under  which  it   can   be
considered  that the incorrect application of ordinary  law  by
ordinary courts results in the violation of fundamental  rights
and  basic freedoms (compare judgment in the matter .  III.  US
224/98  in  The  Constitutional Court of  the  Czech  Republic,
Collection  of  Judgments and Rulings, Vol. 15,  p.  98).   The
fundamental rights and basic freedoms operate in the  field  of
ordinary  law  as  regulative ideas, on account  of  which  the
complex  of  norms of ordinary law are, by content,  intimately
bound  up therewith.  The violation of certain of these  norms,
in consequence in particular of arbitrariness (for example, the
failure  to  respect mandatory norms) or as the  result  of  an
interpretation which is in extreme conflict with the principles
of  justice (for example, excessive formalism), then also gives
rise  to  a  greivance respecting fundamental rights and  basic
freedoms.   In other words, apart from the flagrant  disrespect
of  mandatory  norms, excessive formalism in the interpretation
of  the norms of ordinary law is also one of the conditions for
the  Constitutional Court to intervene into the decision-making
of ordinary courts and the application of ordinary law.
      The Constitutional Court has deduced from the content  of
certain of these constitutional complaints that the given  case
is  just such a case; therefore, it addressed the issue whether
the   Regional  Court  in  Brno,  by  its  interpretation   and
application  of ordinary law, encroached upon the complainant’s
constitutionally guaranteed fundamental rights.
      A basic attribute of a law-based state (Art. 1 para. 1 of
the  Constitution of the Czech Republic) is the  protection  of
individual fundamental rights, upon which state authorities are
entitled  to  encroach  only in exceptional  cases,  especially
where  the  individual has intruded upon the rights  of  others
(including by manifestations of the will which are reflected in
concrete  conduct)  or  to the extent that  such  intrusion  is
justified by a certain public interest, which nonetheless  must
result,  in specific cases, in a proportionate limitation  upon
the fundamental right in question.  In other words, a condition
of  the  proper operation of a law-based State is  the  State’s
respect for the autonomous sphere of the individual, who enjoys
protection on the part of the State such that, on the one hand,
the State ensures such protection against intervention by third
parties  and,  on the other hand, the State itself  engages  in
only  such  actions as would not encroach upon this sphere,  or
would  do so only in cases where such is warranted by a certain
public interest and where such encroachment is proportionate in
respect of the aim which is meant to be attained.
      The individual right to the autonomy of the will, that is
in  consequence of the liberty of the individual, is one of the
expressions   of,   and   institution  guarantees   of,   these
principles.   To the extent it aspires to be an authority  with
the attributes of a law-based State, it is encumbent upon state
authority   to  recognize  the  autonomous  manifestations   of
individual will, as well as the conduct corresponding  thereto,
if  such conduct filfills the above-described conditions (above
all,  the  nonintrusion upon the rights of third persons).   In
such  cases,  state  authority must  respect  or  approve  such
manifestations of the individual only to the extent  that  such
conduct   might   possibly  call  into  being   further   legal
consequences.
      The autonomy of the will and individual liberty of action
guaranteed on the constitutional level by Art. 2 para. 3 of the
Charter of Fundamental Rights and Basic Freedoms.  Art. 2 para.
3  of the Charter must be understood in a double sense.  In its
first dimension it represents a structural principle, according
to  which  state authority may be asserted in relation  to  the
individual  and  her  autonomous sphere  (including  autonomous
manifestations   of  the  will)  solely  in  cases   where   an
individual’s   conduct   violates  an   explicitly   formulated
prohibition laid down in law.  However, such prohibition  must,
in  addition,  reflect  solely the requirements  consisting  in
preventing  the individual in encroaching upon  the  rights  of
others and in the attainment of the public good, provided  that
such  restriction  upon the individual  liberty  of  action  is
legitimate  and  proportional.  Such principle must,  then,  be
conceived of as an essential attribute of every democratic law-
based  state (Art. 1 para. 1 or the Constitution of  the  Czech
Republic).   Art. 2 para. 4 of the Constitution  of  the  Czech
Republic has a like content.
      In  its  second dimension, Art. 2 para. 3 of the  Charter
operates  as  an  individual right  to  the  respect  by  state
authorities of the autonomous manifestation of one’s personhood
(including manifestations of the will), which are reflected  in
a person’s specific conduct, to the extent that such conduct is
not expressly prohibited by law.
      Such a conception of Art. 2 para. 3 of the Charter merely
expresses  the  fact that, in the substantive law-based  state,
the  individual and his liberty of action always take  priority
over  state  power realized in statutes.  Should the individual
not have the opportunity directly to invoke this priority, such
priority   would  be  a  mere  formal  declaration.    Such   a
proclamation  of  objective principle  is,  after  all,  easily
erodible  by the legislative activity of the legislative  body,
which  is  otherwise substantiated, for example, by the  French
Declaration  of the Rights of Man and Citizens,  which  on  the
European  continent was the ideological model for the enactment
of  human  rights into positive law, V. Klokocka  („The  entire
profundity  of  the Declaration, contained in the  introductory
text, which gives a vivid picture of ‚natural, inalienable, and
sacred  human  rights‘,  was  eclipsed  by  the  competence  of
parliament“,  compare Klokocka, V., Constitutional  Systems  of
European States, Linde Publishers, Prague 1996, p. 273).
       The  free  sphere  of  the  individual  and  its  direct
constitutonal   guarantee  in  the  form  of   an   enforceable
individual  right are conditiones sine qua non of the  material
law-based  state,  which  is  erected  upon  respect  for   the
fundamental  rights of the individual.  The individual’s  right
to  the  respect  for  his or her autonomous  and  free  sphere
actually  operates as a constant placed before the  bracket  in
which  are  found particular specified fundamental  rights  put
into  positive law form in reaction to the massive infringement
of  them by authoritarian or totalitarian regimes.  The need to
formulate  particular fundamental rights has, as  a  historical
matter,  always been conditioned as a reaction to  the  massive
infringement  in  a certain field of individual  freedom,  from
which  specific fundamental right emerged (see  Hayek,  F.  A.,
Law, Legislation and Freedom, Part 3, Academia, Prague 1991, p.
96).  This fact is apparent from the evolution of catalogues of
fundamental rights; otherwise, the taxonomy of the  Charter  of
Fundamental Rights and Basic Freedoms is constructed  upon  the
same logic as well.
     State authorities thus also commit an infringement of this
right  to  the extent that, by a formalistic interpretation  of
the  the  norms  of  ordinary law,  they  deny  the  autonomous
manifestation   of  intent  of  parties  to  a   contract   the
consequences  which,  by  that manifestation,  the  contractual
parties intended to bring about in their legal spheres.
      After  assessing  all  circumstances  of  the  case,  the
Constitutional Court came to the conclusion that the given case
concerns  such  a  legal  situation where  the  ordinary  court
interpreted in an excessively formalistic manner the provisions
of  the Civil Code concerning the rules for interpreting  legal
transactions and also engaged in formalism in interpreting  the
relevant  provisions of the Civil Procedure  Code,  which  gave
rise  to  further  legal consequences for  the  status  of  the
complainant  and the secondary party as regards access  to  the
courts.
      Under  § 35 para. 2 of the Civil Code, legal transactions
expressed  in words shall be interpreted not only in accordance
with  their  verbal  formulation, but  also  particularly  with
regard  to the intention of the person who performed the  legal
transaction,  provided that such intention is not  inconsistent
with  the expressed wording.  Under § 37 para. 2 a contrario  a
legal  transaction is invalid if it is not made definitely  and
comprehensibly.  Then § 89a of the Civil Procedure Code enables
the  parties to legal relations to agree, by the expression  of
their intent, that the proper venue to hear their disputes will
be  an  ordinary court other than the court designated  by  the
fixed rules of the Civil Procedure Code for those parties.
      It  is  evident  that the above-stated principle  of  the
autonomy of the will, in accordance with which individuals must
be  granted space in which they alone designate the  extent  of
their  rights  and  duties,  radiate  into  all  of  the  cited
provisions; further, their expression of intent must  be  given
priority over the mandatory wording of statutes.
      In  its  second  dimension, in which it  operates  as  an
individual  fundamental right, Art. 2 para. 3 must  be  applied
immediately and directly.  In this dimension it does not merely
radiate through ordinary law, rather it is an individual  right
which  operates directly in relation to state authority.  Thus,
when state bodies apply ordinary law, they are also obliged  to
interpret the norms of that law, in which Art. 2 para. 3 of the
Charter  and  Art. 2 para. 4 of the Constitution of  the  Czech
Republic  are reflected as objective constitutional principles,
in  such  a manner that they do not encroach upon the right  of
the individual to the autonomy of his will, which is guaranteed
by  the second dimension of Art. 2 para. 3.  In other words, in
interpreting  the above-cited provisions of ordinary  law,  the
ordinary court must do so in such a manner that they do not, by
means  of a formalistic interpretation of legal norms, encroach
upon the right of the individual to do anything which he is not
by  law expressly prohibited from doing and to not be compelled
to  do  that  which is not expressly imposed upon him  by  law.
This applies as well for norms governing the interpretation  of
the  manifestation of individual will, where formalism  in  the
interpretation  of the legal norm itself can  be  deduced  from
formalism  consisting  in  the  mere  interpretation   of   the
contractual  text without regard to the aim of the  transaction
consisting  in  the  intent of the parties to  the  contractual
relation,  which the court puts into effect when interpretating
an individual‘s legal transaction.
       In   the  instant  case,  the  Regional  Court  in  Brno
interpretated the expressed intent of both the complainant  and
the  secondary  party  such that, without  even  affording  the
parties  the opportunity to give their views on the matter,  it
designated their intent as indefinite.  It found the  cause  of
the  indefiniteness in the fact that there are  two  courts  in
Brno  having  subject-matter  jurisdiction  in  the  case  (the
Municipal Court in Brno and the District Court, Brno-Province).
In  the  ordinary court’s view, an intent expressed in such  an
indefinite  manner  gives  rise  to  the  invalidity   of   the
prorogation  clause,  in consequence of which  it  declined  to
recognize  the  outcome which, by their expressed  intent,  the
parties wished to bring about.
     As the Constitutional Court has ascertained from a copy of
the  credit contracts entered into by the complainant  and  the
secondary parties, the parties to the contracts agreed that  in
the  resolution  of  any  disputes  arising  between  them   in
connection with the credit contracts, including disputes  which
would  emerge in consequence of claims arising on the basis  of
the  termination of a credit contract, „the proper venue“ shall
be  „the  court  in Brno which has subject-matter  jurisdiction
over  the matter“.  In the Constitutional Court’s view,  it  is
evident  therefrom  that the contracting  parties  intended  to
derogate  from  the relevant provisions of the Civil  Procedure
Code on ordinary court venue and designate a different court as
the  proper venue, such that the court with venue would be  the
court situated in Brno.  This means that the parties were aware
of  the  fact that any disputes between them would be heard  by
the court in Brno having subject-matter jurisdiction.  In other
words, the parties agreed upon designating the court in Brno as
the  proper  venue.  Such manifestation of intent can  also  be
interpreted  in such a way that both parties to the contractual
relations  were aware of the fact that they had designated  the
proper venue for the hearing of disputes between them in such a
manner  that  it  would  always be the  complainant’s  ordinary
court,  regardless of whether, in any particular  dispute,  she
would be the plaintiff or defendant.
      As  the  Constitutional Court has  already  held  in  its
judgments  I. US 546/03 a I. US 43/04, it does not  agree  with
the  formalistic approach of the Regional Court in X, the  main
aim  of  which  is evidently to eliminate for  the  future  the
situation  where  it  would  be the  proper  venue  and  proper
instance  to  hear all disputes arising from the  complainant’s
loan  agreement,  or  for  any appeal  in  such  matters.   The
Constitutional  Court  does  not  regard  it  as  essential  to
distinguish between the formulations “the court having venue in
Brno”   and  “the  court  having  venue  for  Brno”.   In   the
Constitutional Court’s view the decisive factor is, above  all,
the  fact  that,  with this formulation,  the  parties  to  the
contract  referred to the venue, which is always determined  by
the  appropriate  judicial district, and not by  the  place  in
which  a  court is located.  Further, as indicated  above,  the
parties  expressed their intent to construe  the  term,  proper
venue,  such that it would always be the complainant’s ordinary
court.   However,  the Constitutional Court sees  no  point  in
repeating  the  approach  used  by  the  ordinary  court,  when
interpreting the expressed intent of the parties to the  credit
contract, with the aim of refuting the interpretation supported
thereby, for that is not the Constitutional Court’s task.
      By  means of the interpretation which the ordinary  court
espouses  and  which is strictly a grammatical  interpretation,
the  ordinary  court  incorrectly  applied  the  provisions  of
ordinary law (§ 35 para. 2 of the Civil Code and § 89a  of  the
Civil Procedure Code), which implement and institutionalize the
operation   of  the  autonomy  of  the  individual   will,   in
consequence  of  which  it encroached  upon  the  complainant’s
rights  guaranteed  by  Art. 2 para. 3  of  the  Charter.   The
Regional  Court in Brno committed such an infringement  due  to
the  fact  that it did not sufficiently take into consideration
the  jointly-expressed  intent  of  the  subjects  of  a  legal
relation,   which  it  interpreted  merely  formally   from   a
grammatical  interpretation  of the  text  of  the  contractual
arrangement (§ 35 para. 2 of the Civil Code), and  also  by  an
interpretation  of  §  89a of the Civil  Procedure  Code  which
restricted  the  impact  of  the  autonomy  of  the   will   in
determining the ordinary court that will be the proper venue in
a civil proceeding.
      As  a subsidiary argument, the Constitutional Court cites
the  facts  which  emerge from statistical data  which  it  had
already requested from the Chairwoman of the Municipal Court in
Brno  when  hearing constitutional complaint no. I. US  546/03.
It emerged therefrom that on 17 December 2003 that court issued
in  the complainant’s matter 8001 payment orders (Register Ro),
4478 of which have become final.  In the context of hearing the
actions  (Register C), the court, as the proper venue  pursuant
to § 89a of the Civil Procedure Code, decided on 99 actions (40
of them finally) and on 190 further actions by declaring it was
not the proper venue.
     As the Constititonal Court has already stated, in no sense
does  it  call into doubt the principle of the independence  of
courts and judges; nonetheless, it is of the view that it is in
accord with the principle of legal certainty for the same court
to proceed in the same manner even in different matters having,
however,  an identical legal basis (prorogation clause pursuant
to  §  89a of the Civil Procedure Code).  In the Constitutional
Court’s view, any possible threatened increase in the number of
matters  coming  into being in the case of a particular  party,
who  entered into, with a large number of subjects, contractual
relations  in which the proper venue for the matter was  agreed
upon  identically in a manner departing from  the  fixed  rules
laid  down  in the Civil Procedure Code, cannot be resolved  at
the  price of intruding upon an individual’s fundamental rights
as a party to a judicial proceeding.
      By its infringement of the fundamental right under Art. 2
para.  3  of  the  Charter, the ordinary court  gave  rise,  in
addition,  to an encroachment upon the right to one’s statutory
judge, under Art. 38 para. 1 of the Charter.  In consequence of
the fact that the court withheld its approval of the autonomous
manifestation of the will agreeing upon court venue pursuant to
§  89a  of the Civil Procedure Code, it also intruded upon  the
right to one’s statutory judge.
      For  the above-stated reasons, the Constitutional  Court,
due  to the infringement of Arts. 2 para. 3, 38 para. 1 of  the
Charter,  and Arts. 1 para. 1 and 2 para. 4 of the Constitution
of   the   Czech   Republic,  has  granted  the  constitutional
complaints pursuant to § 82 para. 2 lit. a) of Act No. 182/1993
Sb., on the Constitutional Court, as subsequently amended, and,
pursuant to § 82 odst. 3 pism. a) of the cited Act, quashed the
contested decisions of the Regional Court in Brno.

Notice: A Constitutional Court decision may not be appealed..

Brno, 12 May 2004