III US 150/03
                               

   1) The obligation relationship is, under § 45 para. 4 of Act
no.  361/2000 Coll. in connection with § 489 and § 420  of  the
Civil  Code,  established by the causing of  damage,  which  is
given by the expenses for removing a vehicle in order to ensure
traffic  on a surface roadway. This relationship arises between
the  vehicle  operator  and the person who  was  authorized  to
perform  the compulsory towing of a vehicle and which  incurred
damages, the amount of which is given by the amount of expenses
incurred  for  purposes of securing operation  on  the  surface
roadway.  This  person can be either the owner of  the  surface
roadway  or  a  person  which, on the basis  of  a  contractual
relationship with the owner of the surface roadway, ensures the
compulsory  towing of vehicles; in both cases the  position  of
the authorized entity is given by the instruction from a police
officer or municipal police officer to remove the vehicle. This
instruction has the character of an administrative decision, or
intervention  by  an administrative body (under  §  83  of  the
Administrative  Court  Procedure Code) and  in  that  sense  is
subject  to  review,  which is, for  the  vehicle  operator,  a
procedural  guarantee  against  possible  arbitrariness.   Only
achieving the annulment of the decision at issue, or a decision
under  § 87 para. 2 of the Administrative Court Procedure Code,
can establish grounds for applying a complaint in the matter of
liability for damages caused in the exercise of public power or
by  an  incorrect  official procedure (under  Act  no.  82/1998
Coll., as amended by later regulations).
   2) Insofar as the complainant under § 74 of Act no. 182/1993
Coll., as amended by later regulations, petitions for annulment
of § 202 para. 2 of the CPC, the Constitutional Court refers to
the  maxim which it stated for evaluating the constitutionality
of  first  level judicial review in judgment file  no.  Pl.  US
15/01:  "No  legal order is, nor can it be, from the  point  of
view of a system of procedural means for protecting rights,  as
well as form the point of view of a system of organizing levels
of   review,  constructed  ad  infinitum.  Every  legal  system
generates, and necessarily must generate, a certain  number  of
mistakes.  The  purpose of review proceedings can realistically
be  to  approximately minimize such errors and not to eliminate
them  completely. The system of review levels  is  therefore  a
result  of  comparing, on one hand, the effort to  achieve  the
sovereignty  of  law,  and  on the  other  hand  efficiency  of
decision  making  and legal certainty." Thus,  in  relation  to
"small"  claims,  as  the Constitutional Court  stated  in  its
resolution  file  no.  III. US 173/02,  single  level  judicial
review   is   not   inconsistent   with   the   principle    of
proportionality, with regard to the requirements which arise in
this  context from Art. 1 of the Constitution and Art. 36 para.
1  of  the  Charter. The Constitutional Court reached the  same
conclusion in resolution file no. IV. US 101/01, in  which,  in
addition  to  the argument of proportionality, it  stated  that
from  a  constitutional law point of view, judicial proceedings
are  not  compulsorily  at two levels, with  the  exception  of
criminal matters, where this requirements arises from Art. 2 of
Protocol  no.  7 to the Convention on the Protection  of  Human
Rights  and Fundamental Freedoms; thus, Art. 36 of the  Charter
does  not, without anything further, indicate the necessity  of
two-level judicial proceedings for matters other than  criminal
ones,  as  a  result  of  which a single level  judiciary,  and
particularly in matters of objectively small significance, does
not in anyway exceed constitutional bounds.


A  Panel  of  the Constitutional Court decided, on  6  November
2003, in the matter of a constitutional complaint from Mgr.  P.
M.,  represented by Mgr. J. H., attorney, against a verdict  of
the District Court for Prague 10 of 5 February 2003, ref no. 13
C 186/2002-24, joined with a petition to annul § 202 para. 2 of
Act  no.  99/1963  Coll., as amended by later  regulations,  as
follows:

   I.  The  verdict of the District Court for Prague  10  of  5
February 2003, ref no. 13 C 186/2002-24, is annulled.
   II.  The petition to annul § 202 para. 2 of Act no.  99/1963
Coll., as amended by later regulations, is denied.


                           REASONING
                               
I.
By a petition filed for delivery to the Constitutional Court on
20 March 2003 the complainant seeks annulment of the verdict of
the District Court for Prague 10 of 5 February 2003, ref no. 13
C  186/2002-24.  He feels that the cited decision  affects  his
fundamental right to a fair trial under Art. 36 of the  Charter
of  Fundamental Rights and Freedoms (the "Charter"), as well as
rights  which he claims arise from Art. 2 para. 2  and  Art.  4
para. 1 of the Charter. Under§ 74 of Act no. 182/1993 Coll., on
the  Constitutional Court, he also proposes annulment of §  202
para. 2 of Act no. 99/1963 Coll., the Civil Procedure Code,  as
amended by later regulations.
   The  Constitutional Court requested the file of the District
Court  for  Prague 10, file no. 13 C 186/2002,  from  which  it
determined  that  on  4  April 2002  that  court  received  the
complainant's complaint for the amount of CZK 870  against  the
limited  liability company B. S. The complainant justified  his
complaint  on the grounds that on 29 January 2001 the defendant
in  the  proceedings before the general court towed his car,  a
Volvo 460, license plate number KLL 09-60 from Wenceslas Square
in  Prague. The car was issued to the petitioner after  payment
of CZK 870. He believes that the car was towed incorrectly, and
paid  the stated amount under duress, as a result of which  the
sued company received unjustified enrichment.
   On  22  July  2002 the District Court for Prague  10  issued
payment  order ref no. 13 C 186/2002-7, which charged the  sued
company  to pay the plaintiff the amount in question within  15
days from the day it was delivered.
   On  19  August  2002 the defendant filed an protest  to  the
payment  order  with  the District Court.  Subsequently,  on  5
February  2003, the District Court, by verdict  ref  no.  13  C
186/2002-24  denied the complaint. It stated in  the  reasoning
that the car was towed on the basis of an instruction from  the
Police  of  the Czech Republic, in accordance with an agreement
concluded between the defendant and the capital city of Prague.
The  price  for  towing the car was set under capital  city  of
Prague  ordinance no. 12/97. Thus, the towing was done  on  the
basis   of  legal  grounds  and  there  could  not  have   been
unjustified enrichment.
   The  petitioner  filed  a  timely  constitutional  complaint
contesting the decision of the District Court for Prague 10. In
it  he  stated  that  in this matter no proceeding  related  to
administrative  infraction or other administrative  proceedings
were  opened,  i.e.  no  administrative  body  decided  that  a
administrative infraction had been committed. Nevertheless, the
complainant  was forced to pay expenses for the towing  of  his
car,  which, however, can be billed only as a component  of  an
imposed  fine  and  parking fees. The constitutional  complaint
further  states  that  in the proceedings  before  the  general
court,  the defendant delivered to the court a filing in  which
it  expressly  stated  that it was an protest  against  payment
order  file  no.  13 C 351/2002, i.e. against a  payment  order
issued   in   a  completely  different  matter.  Although   the
complainant  pointed this fact out to the  court  and  proposed
that  the  payment order be acknowledged as legally in  effect,
the  court  did not consider this petition and did not  resolve
the  issue  in its verdict. According to the complainant,  this
violated Art. 2 para. 2 of the Charter, under which state power
can be applied only in cases and within the bounds provided  by
law,  as  well  as Art. 4 para. 1 of the Charter,  under  which
obligations may be imposed only on the basis of law and  within
its  bounds,  and finally violated the right to  a  fair  trial
under Art. 36 of the Charter. Because the contested verdict can
not,  under § 202 para. 2 the Civil Procedure Code be contested
by  an  appeal,  the complainant petitioned the  Constitutional
Court to annul the cited statutory provision.
   The  District  Court  for Prague  10,  as  a  party  to  the
proceedings,  was  asked, under § 42 para.  4  for  a  position
statement on the matter, and provided one.
…..

II.
Evaluating the constitutionality of interference by a  body  of
state  power  with fundamental rights and freedoms consists  of
several  components (III. US 102/94, III. US  114/94,  III.  US
84/94, III. US 142/98, III. US 224/98 and others). The first is
evaluating  the constitutionality of the applied  provision  of
the legal regulation (which is indicated by § 68 para. 2 of Act
no.  182/1993  Coll.,  as amended by later regulations).  Other
components  are  evaluating the preservation of  constitutional
procedural  rights,  and finally evaluating the  constitutional
interpretation and application of substantive law.
  In evaluating the matter, the Constitutional Court began with
the  factual judgments, which are undisputed by the parties  to
the  proceedings. According to these, the complainant's car,  a
Volvo  460  license plate number KLL 09-60, was  towed  by  the
subsidiary party from Wenceslas Square in Prague on 29  January
2003,  at  the instructions of the Police of the Czech Republic
(order PÈR DI-OØD of 29 January 2003 ref no. PSP-43/DI-I-2003).
This  towing was performed by the subsidiary party,  which  was
authorized thereto on the basis of an agreement concluded  with
the capital city of Prague on 30 April 1999; under Art. 2.3  of
the  agreement the party liable for the authority to tow is the
party  who  gives  the  order, i.e. the  Police  of  the  Czech
Republic, the Technical Roadways Administration of the  capital
city  of Prague, and so on, and the price of towing, which  the
subsidiary   party  is  authorized  to  charge  the   vehicle's
operator,  was  set  by  capital city of Prague  ordinance  no.
12/1997, on maximum prices for towing road vehicles and wrecks,
compulsory  towing of vehicles after a traffic  accidents,  and
guarding   these  vehicles  at  assigned  parking  lots.   Also
undisputed  is  the  fact that in this  matter  no  proceedings
related to administrative infraction were conducted against the
complainant, as well as the fact that the complainant paid  the
appropriate amount for the compulsory towing of the vehicle  to
the  subsidiary  party  as a condition for  the  vehicle  being
released.
   At the level of simple law, § 45 para. 4 of Act no. 361/2000
Coll.,  on  the  Operation  of Surface  Roadways  and  Amending
Certain Acts, as amended by later regulations, applies  to  the
merits of the adjudicated matter; under it, "if a vehicle is an
obstacle  to traffic on a surface roadway, a police officer  or
officer  of  the municipal police shall decide on removing  it;
the vehicle is removed at the expense of its operator."
   The  purpose and aim of the Act on the Operation of  Surface
Roadways  is,  in  particular, to provide  rules  which  ensure
safety for a public aim, which is, in this context, traffic  on
surface  roadways.  In  accordance  with  the  generally  valid
concept  of objective liability for damages caused by operation
of  means of transportation (§ 428 of the Civil Code), the  Act
on  the  Operation  of  Surface Roadways,  in  §  45  para.  1,
establishes  the objective liability of the person  who  caused
the  obstacle to traffic on surface roadways so that  it  gives
that  person  the  obligation to remove  the  obstacle  without
delay, and if he does not do so, an obligation to pay the costs
of  removing  it  to  the  owner of the  surface  roadway.  The
provision  of  §  45  para. 4 of the  Act  is  only  a  special
provision, which determines the entities entitled to  issue  an
order for the compulsory towing of a vehicle. As the reason for
such  an order can be either a delictual behaviour (in the case
of  violation of the rules for traffic on surface roadways)  or
protection  of  the  public interest in the  passability  of  a
surface roadway regardless of fault (§ 19 para. 5, 6 of Act no.
13/1997  Coll., on Surface Roadways), the cited distinction  is
not  decisive for application of § 45 para. 4 of the Act on the
Operation of Surface Roadways, as the liability relationship it
establishes is built on the principle of objective liability.
   Thus, the obligation relationship is, under § 45 para. 4  of
Act  no. 361/2000 Coll. in connection with § 489 and §  420  of
the Civil Code, established by the causing of damage, which  is
given by the expenses for removing a vehicle in order to ensure
traffic  on a surface roadway. This relationship arises between
the  vehicle  operator  and the person who  was  authorized  to
perform  the compulsory towing of a vehicle and which  incurred
damages, the amount of which is given by the amount of expenses
incurred  for  purposes of securing operation  on  the  surface
roadway.  This  person can be either the owner of  the  surface
roadway  or  a  person  which, on the basis  of  a  contractual
relationship with the owner of the surface roadway, ensures the
compulsory  towing of vehicles; in both cases the  position  of
the authorized entity is given by the instruction from a police
officer or municipal police officer to remove the vehicle. This
instruction has the character of an administrative decision, or
intervention  by  an administrative body (under  §  83  of  the
Administrative  Court  Procedure Code) and  in  that  sense  is
subject  to  review,  which is, for  the  vehicle  operator,  a
procedural  guarantee  against  possible  arbitrariness.   Only
achieving the annulment of the decision at issue, or a decision
under  § 87 para. 2 of the Administrative Court Procedure Code,
can establish grounds for applying a complaint in the matter of
liability for damages caused in the exercise of public power or
by  an  incorrect  official procedure (under  Act  no.  82/1998
Coll., as amended by later regulations).
   From  the point of view of this purpose and content  of  the
simple  law  which  applies  to  the  adjudicated  matter,  the
Constitutional  Court  did not find a reason  to  evaluate  the
constitutionality of § 45 para. 4 of Act no. 361/2000 Coll.
  In the matter at hand, the compulsory towing was performed by
a  subsidiary party which as authorized thereto on the basis of
an  agreement concluded with the capital city of Prague  on  30
April  1999,  and on the basis of a decision by a police  body.
Due  to the foregoing, the Constitutional Court agrees with the
conclusion  of the District Court for Prague 10  that  in  this
matter  there was no unjustified enrichment on the part of  the
subsidiary party.
   Insofar  as the complainant claims in this regard  that  his
fundamental  rights arising under Art. 2 para.  2  and  Art.  4
para.  1  of the Charter have been affected, the Constitutional
Court  only refers to its settled case law (judgment  file  no.
Pl. US 12/94, III. US 31/97, III. US 593/99) under which Art. 4
para.  1 of the Charter does not provide independent individual
fundamental rights, but only provides the necessity of imposing
general  obligations only on the basis of law, while preserving
the  fundamental rights and freedoms. Thus, this provision  can
be  relied on only in connection with other provisions  of  the
Charter,  of  the  Constitution or of international  agreements
under Art. 10 of the Constitution, which contain the particular
fundamental  rights or freedoms which were violated.  The  same
statement also applies for Art. 2 para. 2 of the Charter.  Art.
2  para.  2,  3  of  the Charter and Art.  2  para.  4  of  the
Constitution are provisions evidently inspired by Art. 5 of the
Declaration of the Rights of the Human Being and the Citizen of
26  August  1789,  which, in connection  with  Art.  1  of  the
Charter,  delineate the range for an individual's free conduct,
and  it  belongs  among those constitutional  norms  which,  in
response to the past experience of totalitarianism, provide the
framework   principles   for  the  relationship   between   and
individual and the state.
   Another point in the complaint is the claim of violation  of
Art. 36 of the Charter, consisting of the fact that the general
court,  in  the  reasoning  of the decision  contested  by  the
constitutional  complaint, did not in any way  respond  to  the
complainant's arguments under which the decision  was  made  on
the  basis  of the subsidiary party's protest filed  against  a
payment order other than the one in question.
   In  this  context,  at  the level of  the  simple  law,  the
safeguards arising from § 157 para. 2 of the CPC apply  to  the
adjudicated matter.
   The  file materials in the adjudicated matter indicate  that
the  District Court for Prague 10 issued payment order ref  no.
13  C  186/2002-7 on 22 July 2002. On 27 August 2002 the  court
received the defendant's protest against payment order file no.
13  C 351/2002. On 8 January 2003, proceedings were held at the
District  Court  for  Prague 10 in the matter  file  no.  13  C
186/2002,  in the course of which the plaintiff did  not  raise
the protest of incorrect identification of the protest filed by
the  subsidiary party, and the proceedings were  postponed  for
purposes of completing the evidence (file of the District Court
for  Prague  10, file no. 13 C 186/2002, no. l. 11-12).  On  15
January  2003  the District Court for Prague  10  received  the
position  statement of the subsidiary part in the  matter  file
no.   13  C  186/2002.  On  20  January  2003  the  proceedings
continued,  and  the  complainant  again  did  not  raise   the
objection  of incorrect identification of the protest  and  the
proceedings  were  again  postponed  for  purposes  of  further
evidence (file of the District Court for Prague 10 file no.  13
C  186/2002,  no.  l.  14-15). On 3  February  2003  the  court
received  the position statement of the complainant  containing
the  final  petition,  and  within it  also  the  objection  of
incorrect  identification of the protest, as well as an  excuse
for  absence  from  the  proceedings on 5  February  2003.  The
District Court for Prague 10, by verdict of 5 February 2003 ref
no.  13 C 186/2002-24, denied the complainant's complaint,  and
stated in the reasoning of the decision that the plaintiff,  in
his  closing  petition, pointed to the fact  that  the  protest
filed  by the defendant was identified with the incorrect  file
number, and was thus filed for a different matter than the  one
which was the subject of the complaint, but did not respond  to
this objection.
   The independence of the decision making of general courts is
implemented in the constitutional and statutory procedural  and
substantive  law  framework. The procedural  law  framework  is
represented  primarily by the principles of a proper  and  fair
trial, as indicated by Art. 36 et seq. of the Charter, as  well
as  by  Art.  1  of the Constitution. One of these  principles,
which  represents the role of the law in a fair trial, as  well
as  the concept of a state governed by the rule of law (Art. 36
para.  1 of the Charter, Art. 1 of the Constitution), and which
rules  out  arbitrariness in decision making, is the obligation
of  the  courts to state the grounds for their verdicts (§  157
para.  1 of the CPC) in a manner provided in § 157 para.  2  of
the  CPC. The Constitutional Court spoke on the effects of  the
safeguards contained in § 157 para. 2 of the CPC in the area of
fundamental rights and freedoms in particular in judgment  file
no.  IV. US 304/98, where it stated the following: "A situation
where  a verdict lacks the requirements provided in § 157 para.
2  of the CPC leads to the fact that it becomes non-reviewable,
and  can  be,  and  as  a  rule also is,  a  violation  of  the
constitutionally   guaranteed  right  to  judicial   protection
provided in Article 36 para. 1 of the Charter."
   In  the adjudicated matter the District Court for Prague 10,
in  the  reasoning of the decision, did not in any way  address
the    petitioner's    objection   concerning    the    alleged
inconsistency,  and did not even mention the petition  and  the
objection, although the objection was properly raised  and  the
objected  fact  could have had a substantial influence  on  the
court's   decisions.  Thus,  by  this  procedure,   the   court
fundamentally  violated § 157 para. 2 of the CPC,  and  in  the
final consequence interfered with the petitioner's right  to  a
fair trial, given by Art. 36 para. 1 of the Charter.
   Due to the foregoing, the Constitutional Court had no choice
but  to  annul the contested verdict of the District Court  for
Prague  10 of 5 February 2003 ref no. 13 C 186/2002-24 under  §
82  para.  2  let.  a)  of  Act  no.  182/1993  Coll.,  on  the
Constitutional Court, as amended by later regulations.
   Insofar  as  the complainant under § 74 of Act no.  182/1993
Coll., as amended by later regulations, petitions for annulment
of § 202 para. 2 of the CPC, the Constitutional Court refers to
the  maxim which it stated for evaluating the constitutionality
of  first  level judicial review in judgment file  no.  Pl.  US
15/01:  "No  legal order is, nor can it be, from the  point  of
view of a system of procedural means for protecting rights,  as
well as form the point of view of a system of organizing levels
of   review,  constructed  ad  infinitum.  Every  legal  system
generates, and necessarily must generate, a certain  number  of
mistakes.  The  purpose of review proceedings can realistically
be  to  approximately minimize such errors and not to eliminate
them  completely. The system of review levels  is  therefore  a
result  of  comparing, on one hand, the effort to  achieve  the
sovereignty  of  law,  and  on the  other  hand  efficiency  of
decision  making  and legal certainty." Thus,  in  relation  to
"small"  claims,  as  the Constitutional Court  stated  in  its
resolution  file  no.  III. US 173/02,  single  level  judicial
review   is   not   inconsistent   with   the   principle    of
proportionality, with regard to the requirements which arise in
this  context from Art. 1 of the Constitution and Art. 36 para.
1  of  the  Charter. The Constitutional Court reached the  same
conclusion in resolution file no. IV. US 101/01, in  which,  in
addition  to  the argument of proportionality, it  stated  that
from  a  constitutional law point of view, judicial proceedings
are  not  compulsorily  at two levels, with  the  exception  of
criminal matters, where this requirements arises from Art. 2 of
Protocol  no.  7 to the Convention on the Protection  of  Human
Rights  and Fundamental Freedoms; thus, Art. 36 of the  Charter
does  not, without anything further, indicate the necessity  of
two-level judicial proceedings for matters other than  criminal
ones,  as  a  result  of  which a single level  judiciary,  and
particularly  in  matters of objectively trivial  significance,
does not in anyway exceed constitutional bounds.
   Due  to  the foregoing, the Constitutional Court  found  the
petition   to   annul  §  202  para.  2  of  the  CPC   clearly
unsubstantiated, and therefore it denied it under § 43 para.  2
let.  a),  b)  of Act no. 182/1993 Coll., as amended  by  later
regulations.

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

Brno, 6 November 2003