I. US 663/01

   The Constitutional Court states that, under its settled case
law,  if  there  is  an objection about delays  in  proceedings
before  the general courts, it is necessary, even before filing
a constitutional complaint, to file a complaint about delays in
proceedings – under Act No. 436/1991 Coll., on Certain Measures
in  the Judiciary, on Election of Lay Judges, Their Removal and
Recall from Office and on State Administration of the Courts of
the  Czech  Republic – with the chairman of the relevant  court
(note: this Act has been annulled as of 1 April 2002 by Act No.
6/2002  Coll., on the Courts, Judges, Lay Judges and the  State
Administration of the Courts and Amending Certain  Other  Acts;
nonetheless,  the  right to file a complaint  about  delays  in
proceedings with court administration bodies is provided  in  a
comparable  way  in  §  164 para. 1 of Act  No.  6/2002,  which
replaces  the  annulled Act No. 436/1991 Coll..  However,  this
principle  is  not without exception. The Constitutional  Court
has  also  ruled, that if filing of the appropriate  procedural
means  is  evidently ineffective, it can not be  insisted  upon
(see,  e.g. judgment file no. IV. ÚS 240/95, The Constitutional
Court of the CR: Collection of Judgments and Resolutions,  vol.
5, p. 298).
     The  Constitutional  Court  states  that  it  has  already
considered  the  question of delays in proceedings  before  the
general courts in a number of its decisions. Justifiable delays
in  proceedings  include  an  “other  actions”  infringing  the
petitioner’s fundamental rights Art. 87 para. 1 let. d) of  the
Constitution  of the CR and § 72 para. 1 let.  a)  of  Act  No.
182/1993 Coll., on the Constitutional Court, enshrined in  Art.
38 para. of the Charter and in Art. 6 para. 1 of the Convention
for  the  Protection  of Human Rights and Fundamental  Freedoms
(the  “Convention”).  Both of these cited provisions  guarantee
everyone’s  right  to  have his case heard without  unnecessary
delays   (or  in  a  reasonable  time),  and  it  is  naturally
inconsistent  with  these provisions if unnecessary  delays  in
proceedings occur in a particular case before a general  court.
The  Constitutional Court has repeatedly ruled that  delays  in
proceedings  can  not be justified even by the generally  known
overload  on  the  courts, because “it is up to  the  state  to
organize its judiciary so that judicial principles enshrined in
the   Charter   and  the  Convention  are  observed   and   any
shortcomings  in  this regard can not be to  the  detriment  of
citizens  who justifiably expect from the courts protection  of
their rights in a reasonable time” (e.g. judgment file no.  IV.
ÚS  55/94,  The  Constitutional Court of the CR: Collection  of
Judgments and Resolutions, vol. 2, p. 39). It must be said that
this  legal  opinion  also conforms to  the  case  law  of  the
European  Court  of  Human  Rights in  the  interpretation  and
application of the Convention.
     Reference  to  the computer equipment of the  registration
court or to a file located temporarily at another court are not
reasons  which can be interpreted otherwise than  as  technical
and  organizational problems, which, however, in  this  regard,
may  not  be used to the detriment of the petitioner (a private
law  corporation),  which justifiably expects  from  the  court
protection  of  its rights in a reasonable time under  Art.  38
para.  2  of  the Charter and Art. 6 para. 1 of the Convention.
However,  if the Regional Court is waiting to handle a petition
only because it does not have the relevant file at its disposal
and  is  thus  waiting  for  the  High  Court’s  decisions  for
technical reasons and not reasons on the merits, this procedure
is fundamentally unjustified, and unconstitutional in its final
results.  The  registration  court  can  take  steps  such   as
requesting  the return of the relevant file for a short  period
for  purposes of handling the petition in question,  or  making
copies of those parts of it which it needs for its decision. In
other words, the registration court must do all that it can  so
that the petitioner’s fundamental rights are not violated as  a
result  of the technical and organizational problems  of  state
bodies.


A  panel  of  the  Constitutional Court decided  today  on  the
constitutional complaint of the petitioner C., s.r.o., in which
it  seeks  annulment  of the resolution of the  Hradec  Králové
Regional Court of 19 September 2001, file no. F 18945/2001, Rg.
C  13213, and an order to the Hradec Králové Regional Court  to
act and decide in the matter Rg. C 13213,
    
                          as follows:
                               
I. The Constitutional Court forbids the Hradec Králové Regional
 Court  to  continue  violating the petitioner’s  rights  under
 Art.  38  para.  2  of the Charter of Fundamental  Rights  and
 Freedoms  and  Art.  6  para.  1 of  the  Convention  for  the
 Protection  of  Human  Rights and  Fundamental  Freedoms,  and
 orders  it to process the petitioner’s matter file no.  Rg.  C
 13213 without unnecessary delays.

II.  The petition to annul the resolution of the Hradec Králové
 Regional  Court of 19 September 2001, file no.  F  18945/2001,
 Rg. C 13213, is denied.



                          Reasoning:
                               
                               
                              I.
In the resolution cited in the introduction, the Hradec Králové
Regional Court (a higher court official), in the matter  of  an
application  to  register  the  petitioner’s  changes  in   the
commercial  register,  ordered  the  petitioner  to  (1.)  send
another  copy  of  the  current  text  of  the  memorandum   of
association to be included in the file, (2.) send another  copy
of  the application under § 79 para. 3 a § 200c para. 1 of  the
Civil  Procedure Code and pointed out (3.) the fact  that  “the
submitted  application will be processed only  after  the  High
Court’s decision on the appeal.”

                              II.
    In its constitutional complaint, the petitioner states that
his  submission  in  the matter of an application  to  register
changes  is in no way related to further proceedings  conducted
before  the High Court, in which the High Court will decide  on
the  petitioner’s  appeal. Therefore, the  petitioner  filed  a
complaint  with  the  Ministry  of  Justice,  which,   however,
approved the Regional Court’s procedure with the reasoning that
“the  computer  equipment  at  the  Hradec  Králové  commercial
register  does  not permit making any changes in  the  register
until  the  previous application has been concluded with  legal
effect  and until registration of the previous change has  been
made  and completed.” However, the petitioner objects that  the
Civil Procedure Code does not permit the court to not act in  a
matter  because  it  does  not have the  appropriate  technical
equipment  at its disposal. Therefore, it claims that  by  this
procedure  and  the  contested  decision  the  Hradec   Králové
Regional Court violated its right enshrined in Art. 36  of  the
Charter of Fundamental Rights and Freedoms (the “Charter”).

     The  petitioner  consented to waive a hearing  before  the
Constitutional Court.

                               
                             III.
The  Constitutional Court first of all states that,  under  its
settled  case  law, if there is an objection  about  delays  in
proceedings  before the general courts, it is  necessary,  even
before  filing a constitutional complaint, to file a  complaint
about delays in proceedings – under Act No. 436/1991 Coll.,  on
Certain  Measures in the Judiciary, on Election of Lay  Judges,
Their   Removal   and   Recall  from  Office   and   on   State
Administration of the Courts of the Czech Republic –  with  the
chairman  of  the  relevant  court (note:  this  Act  has  been
annulled  as  of 1 April 2002 by Act No. 6/2002 Coll.,  on  the
Courts, Judges, Lay Judges and the State Administration of  the
Courts and Amending Certain Other Acts; nonetheless, the  right
to  file  a  complaint about delays in proceedings  with  court
administration bodies is provided in a comparable way in §  164
para. 1 of Act No. 6/2002, which replaces the annulled Act  No.
436/1991  Coll.).  If  the  petitioner  did  not  file  such  a
complaint,    the    Constitutional   Court   considered    the
constitutional  complaint inadmissible and denied  it,  because
the petitioner did not, before filing it, exhaust all means for
protection  of  his rights (e.g. resolution file  no.  III.  ÚS
169/96,  The  Constitutional Court of  the  CR:  Collection  of
Judgments  and Resolutions, vol. 5, p. 589). In this  case  the
petitioner  does not claim or prove that he filed  a  complaint
about  delays in proceedings with the chairman of the  relevant
court and that he has therefore – under the settled case law of
the  Constitutional Court – exhausted all procedural means  for
protection   of  his  rights  before  filing  a  constitutional
complaint.  However, this principle is not  without  exception.
The  Constitutional Court has also ruled, that if filing of the
appropriate procedural means is evidently ineffective,  it  can
not  be  insisted  upon (see, e.g. judgment  file  no.  IV.  ÚS
240/95,  The  Constitutional Court of  the  CR:  Collection  of
Judgments and Resolutions, vol. 5, p. 298).

      In   the  adjudicated  matter  the  Constitutional  Court
concluded that filing a complaint against delays in proceedings
with  the  chairman of the court under Act No.  436/1991  Coll.
would be evidently ineffective, and therefore did not make this
a condition for admissibility of a constitutional complaint. In
this  case, the petitioner documented that on 27 September 2001
he  filed a complaint about the Hradec Králové Regional Court’s
procedures  with  the Ministry of Justice of the  CR,  but  the
Ministry found the complaint groundless, and in a letter  of  8
November  2001  informed  the petitioner’s  attorney  that  the
application for an entry in the commercial register would be  –
in view of the computer equipment at the commercial register in
Hradec  Králové – made only after the previous application  was
concluded with legal effect and the previous change registered.
The Regional Court also refers to this position of the Ministry
of  Justice  of  the  CR  in  its  position  statement  on  the
constitutional  complaint (see below). Thus, in this  situation
one  can not justifiably think that filing a complaint with the
chairman  of  the  Hradec  Králové  Regional  Court  could   be
considered  an  effective  means  for  the  protection  of  the
petitioner’s  rights,  as  far as the  proceedings  delays  are
concerned.

     Therefore,  the  Constitutional Court concludes  that  the
submitted   constitutional  complaint  meets  the   statutorily
provided  procedural conditions and nothing prevents processing
and deciding the matter on the merits.

                              IV.
The  Constitutional Court requested a position statement on the
constitutional complaint from the party to the proceedings, the
Hradec  Králové  Regional Court. In its statement,  that  court
primarily  pointed  to  the  fact  that  the  reason  why   the
registration   court  could  not  make  a   decision   on   the
petitioner’s application is that the registration  court  makes
decisions  on individual applications from the same company  in
the  order  in  which  the court received them,  and  that  the
registration  court can not make a decision without  the  file,
because facts stated in the application must be verified  using
documents  in  the file. However, the file is with  the  Prague
High   Court  for  purposes  of  handling  an  appeal  in   the
petitioner’s petition of 13 June 2000.

     The  Hradec Králové Regional Court believes that  in  this
case there was no violation of the Charter, proposes denial  of
the constitutional complaint as unjustified, and states that it
consents  with  waiving  a  hearing before  the  Constitutional
Court.

                              V.
The  Constitutional Court states that it has already considered
the question of delays in proceedings before the general courts
in a number of its decisions. Justifiable delays in proceedings
include   an   “other  actions”  infringing  the   petitioner’s
fundamental  rights Art. 87 para. 1 let. d) of the Constitution
of  the  CR and § 72 para. 1 let. a) of Act No. 182/1993 Coll.,
on  the Constitutional Court, enshrined in Art. 38 para. of the
Charter  and  in  Art.  6  para. 1 of the  Convention  for  the
Protection  of  Human  Rights  and  Fundamental  Freedoms  (the
“Convention”).   Both  of  these  cited  provisions   guarantee
everyone’s  right  to  have his case heard without  unnecessary
delays   (or  in  a  reasonable  time),  and  it  is  naturally
inconsistent  with  these provisions if unnecessary  delays  in
proceedings occur in a particular case before a general  court.
The  Constitutional Court has repeatedly ruled that  delays  in
proceedings  can  not be justified even by the generally  known
overload  on  the  courts, because “it is up to  the  state  to
organize its judiciary so that judicial principles enshrined in
the   Charter   and  the  Convention  are  observed   and   any
shortcomings  in  this regard can not be to  the  detriment  of
citizens  who justifiably expect from the courts protection  of
their rights in a reasonable time” (e.g. judgment file no.  IV.
ÚS  55/94,  The  Constitutional Court of the CR: Collection  of
Judgments and Resolutions, vol. 2, p. 39). It must be said that
this  legal  opinion  also conforms to  the  case  law  of  the
European  Court  of  Human  Rights in  the  interpretation  and
application of the Convention.

     In  the adjudicated matter, the Constitutional Court first
of  all  states  that proceedings in matters of the  commercial
register  are governed by § 200a et seq. of the Civil Procedure
Code.  Under  § 200c para. 3 of the Civil Procedure  Code,  the
court is required to take actions directed toward deciding  the
matter within 15 days after an application is filed. The  court
decides on the content of a file by resolution, and shall  make
an  entry  within ten days after the resolution on the  content
goes  into  legal  effect  (§ 200d para.  3,  4  of  the  Civil
Procedure   Code).  Thus,  it  is  evident  that   registration
proceedings  are  a  special  type of  proceedings  before  the
general courts, characterized particularly by the legislature’s
interest in speedy decision making, which is possible  in  view
of the nature of these proceedings. In other words, in deciding
commercial  register matters, the court generally  judges  only
the  formal conditions for the application, provided  by  legal
regulations (§ 200d para. 1 of the Civil Procedure  Code),  and
if  these conditions are met, it is required to make the entry.
Therefore,  in this type of proceedings the court’s process  is
considerably different from other types of proceedings in which
the  general court is given considerably greater space for  its
own  deliberation  and  where it judges  often  very  difficult
factual and legal circumstances in a particular matter.

     In  this  case,  the Constitutional Court found  that  the
Hradec Králové Regional Court informed the petitioner that “the
submitted  application will be processed only  after  the  High
Court’s  decision on the appeal”. The reason  for  this  was  –
according  to the communications from the Ministry  of  Justice
and  the  court – the fact that the computer equipment  at  the
commercial register allegedly does not permit making changes in
the register without completing the proceedings on the previous
application,   that   the   registration   court   decides   on
applications  in  a  prescribed order  and  that  the  file  in
question  is  located at the Prague High Court, so  it  is  not
possible  to  verify the facts stated in the application  using
documents in the file.

     The Constitutional Court states that the cited reasons can
not  be  used  to  explain the delays  in  the  proceedings  in
question.   Reference  to  the  computer   equipment   of   the
registration court or to a file located temporarily at  another
court  are not reasons which can be interpreted otherwise  than
as  technical and organizational problems, which,  however,  in
this regard, may not be used to the detriment of the petitioner
(a private law corporation), which justifiably expects from the
court protection of its rights in a reasonable time under  Art.
38 para. 2 of the Charter and Art. 6 para. 1 of the Convention.
The  fact  that  the  Regional Court is  waiting  to  make  its
decision  in  the  adjudicated matter for the decision  of  the
Prague  High  Court  in an appeal in another  matter  could  be
accepted, but only under the condition that the Regional  Court
decided to do so in a due procedural manner foreseen by law. If
proceedings  are being conducted before the Prague  High  Court
which  are  to resolve a question which may be significant  for
the  registration court’s decision, the proceedings  should  be
interrupted § 109 para. 2 let. c) of the Civil Procedure  Code.
However,  if the Regional Court is waiting to handle a petition
only because it does not have the relevant file at its disposal
and  is  thus  waiting  for  the  High  Court’s  decisions  for
technical reasons and not reasons on the merits, this procedure
is fundamentally unjustified, and unconstitutional in its final
results.  The  registration  court  can  take  steps  such   as
requesting  the return of the relevant file for a short  period
for  purposes of handling the petition in question,  or  making
copies of those parts of it which it needs for its decision. In
other words, the registration court must do all that it can  so
that the petitioner’s fundamental rights are not violated as  a
result  of the technical and organizational problems  of  state
bodies.

     For  the  sake  of completeness, the Constitutional  Court
emphasizes that in proceedings on this constitutional complaint
it  is  not  addressing  the  registration  court’s  manner  of
decision  making,  i.e. whether statutory  conditions  for  the
entry  in  the commercial register have been met  or  not.  The
unconstitutionality  of  the Hradec  Králové  Regional  Court’s
procedure  lies  in  the fact that it is not  deciding  in  the
matter  and – without the relevant procedural foundation  –  is
waiting for the High Court’s decision.

     For all the cited reasons the Constitutional Court granted
the  constitutional  complaint and forbids the  Hradec  Králové
Regional  Court  to continue violating the petitioner’s  rights
under Art. 38 para. 2 of the Charter and Art. 6 para. 1 of  the
Convention  and  orders it to process the  petitioner’s  matter
under file no. Rg. C 13213 without unnecessary delays.

     Finally, the Constitutional Court states that it  has  not
found  grounds  to  independently annul the resolution  of  the
Hradec  Králové  Regional Court cited in the introduction.  The
substance  of  the  constitutional complaint is  directed  only
against part (3.), under which “the submitted application  will
be  processed  only  after  the High Court’s  decision  on  the
appeal.”  Thus, it is apparent from the nature  of  the  matter
that  in this regard the resolution is not a decision, but only
an  “other  action” by a body of state power, as the  contested
part  does  not constitute or declare any rights or obligations
of  the petitioner, but only states that a body of public power
(i.e.  the  general court) will not act in the matter  until  a
certain  time.  Therefore,  the  Constitutional  Court,  in   a
situation where the verdict of this judgment forbids the Hradec
Králové  Regional  Court  to continue  in  the  delays  in  the
proceedings and orders it to act in the matter without  delays,
denied the petition to annul the cited resolution.


Instruction: Decisions of the Constitutional Court can  not  be
appealed.

Brno, 19 February 2002