decided on 10th August 2004 – II. US 656/02
The Protection of Actual Rights



HEADNOTES
Art. 36 para. 1 of the Charter of Fundamental Rights and Basic Freedoms, similarly as Art. 6 
para. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 
construct a fundamental right to the judicial protection of actual, and not hypothetical rights, or 
they guarantee everyone judicial protection from actual, and not merely theoretical, infringements 
of their rights.  To the extent that, in actuality, no dispute exists between the complainants and the 
secondary parties, no intrusion into the right, under Art. 36 para. 1 of the Charter, to judicial and 
other legal protection could have occurred.
     The constitutional complaint is not an ordinary legal remedy to cure formal errors by courts 
which practically do not affect the sphere of the rights and obligations of the parties.


JUDGMENT
The Constitutional Court, in a panel composed of JUDr. Dagmar Lastovecká, its Chairperson, and 
Justices JUDr. Jiøí Nykodým and JUDr. Pavel Rychetský, on the constitutional complaint of 
complainants V.J. and S.J. . . . against the 19 August 2002 ruling of the Regional Court in Pilsen, 
file no. 56 Co 172/2002, in which it decided the appeal against the 11 July 2002 ruling of the 
District Court in Karlsbad, file no. 19 C 138/2002-8, with the participation of the Regional Court 
in Pilsen as a party to the proceeding, the District Court in Karlsbad as a secondary part to the 
proceeding and V.J. and Z.J. . . . as secondary parties to the proceeding, decided as follows:
  The constitutional complaint is rejected on the merits.


REASONING

I.
In its constitutional compliant, the complainant sought the issuance of a judgment quashing the 
19 August 2002 ruling of the Regional Court in Pilsen, file no. 56 Co 172/2002 (hereinafter 
„contested ruling“).
     In the first point of the 11 July 2002 ruling of the District Court in Karlsbad, file no. 19 C 
138/2002-8, the proceeding was dismissed as regards the plaintiffs‘ (now complainants‘), Vá.J. 
and S.J., claim against the defendants (now secondary parties), Vl.J. and Z.J., for the payment of 
money owed for rent.  The proceeding was dismissed due to the fact that the plaintiffs withdrew 
their action, as the defendants had, already before the beginning of the court hearing in the matter, 
paid in full the sum they owed.  In the ruling’s second point, the district court decided that the 
defendants are obliged to compensate the plaintiffs, in the amount of 10 928,- Kè for the costs of 
the proceeding.
     The defendants (secondary parties) submitted an appeal against the second point of this ruling, 
proposing that the first instance court’s ruling be modified in the contested part, to the effect that 
none of the parties had a claim to the reimbursement of the costs of the proceeding before the first 
instance court, due to the fact that, prior to 3 July 2002, that is, before the first instance ruling was 
handed down, they had already paid the plaintiffs (complainants) this amount for the costs of the 
proceeding.
     In its contested ruling on the appeal against point II of the first instance court’s ruling, the 
Regional Court in Pilsen modified the ruling such that it did not impose upon the defendants the 
duty to reimburse the plaintiffs for the costs of the proceeding.  In its reasoning it asserted that, if 
at the time that the first instance court decided the matter the defendants had already paid the 
demanded reimbursement for the costs of the proceeding pursuant to the demand made by the 
plaintiffs‘ legal representative, there were no grounds for imposing upon the defendants, in the 
form of a judicial decision, a duty which they had already previously voluntarily fulfilled.
     The complainants submitted this constitutional complaint against this ruling.  They stated that, 
as is clear from the Civil Procedure Code (§ 151 para. 1), each court decision (apart from some 
statutory exceptions) must contain a statement concerning the costs of proceeding.  In their view, 
however, the wording of the point of the contested ruling concerning the costs of the proceeding 
did not correspond to the provisions of the Civil Procedure Code; the law does not provide for a 
statement on the „non-imposition of the duty to reimburse the costs of the proceeding“ and 
further, as a result of the appellate court’s modification to the ruling, the first instance court had 
not, as the law obliges it to do, made a decision concerning the costs of the proceeding.  That is, 
to the extent that the defendants had paid the plaintiffs the costs of the proceeding already prior to 
the court’s decision, then they did so without any legal grounds therefor, as the claim for the 
reimbursement of the costs of proceeding is a procedural law claim, the establishment and 
maturity of which is laid down only by decision of a court.  The defendants‘ duty to reimburse the 
plaintiffs‘costs of proceeding and the plaintiffs‘ right to demand the reimbursement of the costs of 
the proceeding only come into being once the first instance court’s decision becomes final and 
enforceable.
     The complainants see in the appellate court’s manner of proceeding an infringement of the 
right to fair process under Art. 36 para. 1 of the Charter of Fundamental Rights and Basic 
Freedoms (hereinafter „Charter“) and Art. 90 of the Constitution of the Czech Republic.  In their 
view, the defendants could, in consequence of the contested ruling taken ad absurdum, demand 
back the amount paid for the costs of proceeding, since their payment of it lacked any legal 
grounds.  The contested ruling denied the parties to the proceeding their legal certainty.

II.
The Constitutional Court called upon the parties and secondary parties to give their views on the 
matter and requested the judicial file, 19 C 138/2002.
     In its 5 January 2004 statement of views, the District Court in Karlsbad asserted that it is 
possible to accept the grounds of the constitutional complaint, namely that, in consequence of the 
appellate court modifying its ruling, the first instance court had not yet ruled on the costs of the 
proceedings, as the law obliges it to do.  In that court’s view, however, it is not possible to accept 
the argument that the ruling is not in accordance with the provisions of the Civil Procedure Code, 
since it relates the formal and substantive enforceability of the contested point of the ruling 
concerning the costs of the proceeding and that point is formally and substantively enforceable, as 
it precisely defines the rights and duties of the parties as relates to the costs of the proceeding.
     In its statement of view of 30 January 2004, the Regional Court in Pilsen merely referred to its 
reasoning in the contested ruling.
     At the Constitutional Court’s instigation, the complainants informed it in their 6 January 2004 
memorandum that, as of yet, the defendants have not requested the amount paid out for expenses 
of the proceeding; nonetheless, the deadline for its return has still not passed and the defendants‘ 
claim therefore is not time-barred.
     In their 18 May 2004 statement, secondary parties Vl.J. and Z.J. indicated that the 
complainants had not been injured by the infringement of their right to fair process.  They 
asserted that, at the request of the complainants‘ legal representative, they had paid the demanded 
costs of the court proceeding and that they have never requested the return of the costs of the 
proceeding they had paid out.  Therefore, they believe that the complainants‘ claims were not 
unfairly harmed in the proceeding before the Regional Court in Pilsen and that their fundamental 
rights had not been affected.  They propose that the constitutional complaint be rejected.
     Prior to deciding on the constitutional complaint, the Constitutional Court made the above-
cited views of the parties and secondaring parties available to the complainants.  In view of the 
fact that all parties and secondary parties consented to dispensing with an oral hearing in the 
matter, one was not held (§ 44 para. 2 of the Act on the Constitutional Court).

III.
The Constitutional Court found that the timely submitted constitutional complaint met all the 
formal requirements laid down in law, so that there is nothing to impede a hearing and decision 
on the merits in the matter.
     According to Art. 36 para. 1 of the Charter, everyone has the right to judicial and other legal 
protection, everyone may assert, through the legally prescribed procedure, his rights before an 
independent and impartial court.  Similarly Art. 6 para. 1 of the Convention for the Protection of 
Human Rights and Fundamental Freedoms (hereinafter „Convention“) guarantees to everyone the 
right to fair process, that is, among other things, the right of everyone to a fair hearing in his 
matter by an independent and impartial tribunal established by law, which determines his civil 
rights and obligations.
     It is evident that both of these provisions construct a fundamental right to the judicial 
protection of actual, and not hypothetical rights, or they guarantee everyone judicial protection 
from actual, and not merely theoretical, infringements of their rights.  As follows even from the 
case law of the European Court of Human Rights in Strasbourg, a complainant seeking the 
protection under Art. 6 para. 1 of the Convention, must first of all be capable of substantiating 
that the given case concerns (concerned) an actual, and not merely a hypothetical, dispute relating 
to civil rights and obligations (compare the words, „contestations sur ses droits et obligation de 
caract?re civile“ in the authentic French text of the Convention or the words, „determination of 
his civil rights and obligations“ in the authentic English text of the Convention). The European 
Court gave a detailed explanation of this requirement in its decision in the matter of Le Compte, 
Van Leuven and De Meyere versus Belgium of 23 June 1981, A.43, §§ 45 – 48.  The Court 
interpreted the requirement that an actual dispute exist such that civil rights and obligations must 
be the subject of the dispute between the parties and that the result of the judicial proceeding must 
have a directly decisive impact on the disputed right.
     Analogous procedural institutes can be found even in other legal orders, institutes which 
should, among other things, prevent the courts from dealing with fictitious disputes and in that 
way dissipating their time and considerable resources to the detriment of actual disputes 
[compare, for example, the American law doctrine limiting judicial competence to „Cases and 
Controversies“ (Art. III 2 para. 1 of the Constitution of the United States of America) and the rule 
of ripeness derived therefrom, according to which the detriment with which the plaintiff is 
threatened must be actual and immediate, and not putative, speculative, hypothetical or remote].
     The Constitutional Court affirms that the parties and the secondary parties do not dispute that 
the complainants demanded the reimbursement of the costs of the proceeding and the secondary 
parties voluntarily paid in full the amount demanded even prior to the first-instance court’s 
decision to dismiss the proceeding.  Even after the modification of the ruling in the point 
concerning the costs of the proceeding, the secondary parties have not demanded the return of the 
amount paid for the costs of the proceeding.  Thus, in actuality, no dispute exists between the 
complainants and the secondary parties concerning the reimbursement of the costs of a 
proceeding, therefore, no intrusion into the right, under Art. 36 para. 1 of the Charter, to judicial 
and other legal protection could have occurred.
     The complainants make reference to the legal uncertainty into which the contested decision 
has thrown them, since the secondary parties allegedly could demand back the reimbursement 
paid for the costs of the proceeding.  In this sense, however, it is a hypothetical dispute on 
individual rights.  The Constitutional Court is not prepared at this juncture to speculate as to how 
the ordinary courts would adjudge a prospective claim submitted by the secondary parties for the 
return of the amount voluntarily paid the complainants in reimbursement of the costs incurred in 
connection with the assertion of the debt.  Nevertheless, it is possible to consider even other 
interpretational variants which would lead to a just outcome consisting, for example, in the 
conclusion that this matter concerned a voluntary performance on the basis either of a nominate 
or innominate agreement of the parties with relatively clear cause („causa“).  The dispute between 
the complainants and the secondary parties certainly was not the first, and will not be the last, 
dispute which ended in dismissal of the proceeding after an out-of-court settlement; therefore, it 
can be presumed that cases of voluntary settlement of the costs connected with the assertion of 
rights are not a rarity.
     The complainants and the first instance court are of the view that it is possible to accept the 
grounds of the constitutional complaint, namely that, in consequence of the appellate court 
modifying its ruling, the first instance court had not yet ruled on the costs of the proceedings, as 
the law obliges it to do.  Even should the Constitutional Court concur with that view, that would 
not, in and of itself, be a reason for such a serious intervention as a cassational judgment.  The 
constitutional complaint is not an ordinary legal remedy to cure formal errors by courts, which 
practically do not affect the sphere of the rights and obligations of the parties.
     In view of what has been stated above, pursuant to § 82 para. 1 of the Act on the 
Constitutional Court, the Constitutional Court rejects the complaint as unfounded.

Notice: Decisions of the Constitutional Court cannot be appealed.

Brno, 10 August 2004