Decided 13 June 2006 - I. US 85/04
Non-Pecuniary Damage Compensation

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. US 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. 

JUDGMENT
The Constitutional Court decided, on 13 July 2006, without a 
hearing, without the presence of the parties, in a panel composed of 
chairman Frantisek Duchon and judges Vojen Güttler and Eliska 
Wagnerova (judge rapporteur) in the matter of a constitutional 
complaint from Josef Chodera, residing at Nerudova 145, 281 01 Nova 
Ves, represented by JUDr. Lubomir Müller, attorney, with his 
registered office at Mansfeldova 792/3, 198 21 Praha 98, 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 Kolin 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 Kolin 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 Kolin 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. US 
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. US 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 Kolin 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 Kolin 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. US 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 Pincova 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 Kolin 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 
Kolin 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 Kolin 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 Kolin 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 Kolin, 
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. US 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. 
US 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. US 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, Zwierzyñski 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. Repik, B.: Evropska umluva o lidskych 
pravech a trestni pravo [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. US 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 Kolin, 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 Kolin 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 Kolin 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.