Decided 23 June 2004 – III. US 209/04
                             
             „Effective Protection of Rights“

HEADNOTES
The  Constitutional  Court  considers  the  fact  that  the
complainant elected the route of a civil law proceeding for
the  protection  of  his rights of personhood,  which  were
allegedly  violated in the course of a criminal proceeding,
as  a defective and inefficient means of proceeding, giving
rise  to  future  complications  and  delays.   A  criminal
proceeding, governed by Act No. 141/1961 Coll., on Criminal
Judicial  Proceedings, as subsequently amended (hereinafter
„Criminal Procedure Code“ or „CPC“) is an independent  type
of  proceeding.   The Criminal Procedure  Code  contains  a
sufficient number of legal instruments by which  a  person,
who  considers himself to be affected in his rights by  the
steps  taken by bodies acting in the criminal process,  can
seek  the  protection of his rights.  As examples  of  such
institutes  can  be  given  the  remedial  measure  against
decisions  of  bodies acting in the criminal  process  (for
example,  the complaint - § 141 and following of the  CPC),
the petition for the review of steps taken by police organs
and  state attorneys (§ 157a of the CPC), etc.  As  far  as
concerns the level of legal protection accorded, the  legal
provisions governing these institutes in the Czech Criminal
Procedure Code corresponds to the standard which  is  usual
in other mature democratic law-based states.
The Constitutional Court observes that delays occurring  in
this  civil court proceeding were, among other things,  due
to  the  fact  that the complainant elected to  assert  his
allegedly  infringed  rights by  procedural  proposals  and
steps  that  were evidently inappropriate and  ineffective,
the   resolution   of  which  nonetheless   (unnecessarily)
complicated   and   dragged   out   the   proceeding.    If
concurrently  with  the  ongoing criminal  proceeding,  the
complainant initiated a civil law proceeding by  submitting
an   action  for  the  protection  of  personhood,   future
procedural  steps  are made significantly  more  difficult,
since  this brings about the need for various state  bodies
(courts   in   civil   proceedings,  courts   in   criminal
proceedings,  police  bodies, state attorneys)  to  request
file   material   from  each  other,  the  duplication   of
procedural steps and excessive formalism in general,  which
undermines  the  economy and efficiency of the  proceeding.
In such cases, the negative consequences arising therefrom,
especially delays in the civil court proceeding, cannot  be
attributed to the fault of state bodies.
The  Constitutional Court also considers  as  inappropriate
and  bordering on obstruction the complainant’s  constantly
repeated and unwarranted objections of bias and requests to
have  excluded  judges  who were  hearing  the  case  under
consideration,  as  well  as the  proposals  to  amend  the
complaint.  Smooth progress in hearing the matter was  also
impeded  by  the  repeated  failure  to  appear  for  court
hearings,  on  the  part either of the complainant  or  his
legal council.

JUDGMENT
On  23  June 2004, the Constitutional Court, sitting  as  a
panel composed of its Chairperson, JUDr. Jan Musil, and  of
Justices  JUDr. Miloslav Vyborny and JUDr. Pavel Hollander,
decided, without holding a hearing and without the  parties
being   present,   in  the  matter  of  the  constitutional
complaint of complainant, Tomas Hanzel, residing at  Sarovo
kolo  2/981, 153 00 Prague 5, legally represented  by  Mgr.
Anna Vetrovska, attorney AK Stepanska 633/49, 110 00 Prague
1, against the 20 February 2004 ruling of the High Court in
Prague, file no. Nco 10/2004-231, and further for delay  in
the  proceeding  conducted before the  Municipal  Court  in
Prague in the matter .32 C 44/94, as follows:
The constitutional complaint is rejected on preliminary
grounds.

REASONING

I.
In his constitutional complaint, which was delivered to the
Constitutional Court on 6 April 2004 and supplemented by  a
submission delivered on 8 April 2004, the complainant seeks
the  quashing of the 20 February 2004 ruling  of  the  High
Court  in  Prague, action no. Nco 10/2004-231, due  to  the
violation of his right to judicial protection enshrined  in
Art.  36  para. 1 of the Charter of Fundamental Rights  and
Basic    Freedoms   (hereinafter   „Charter“).    In    his
constititonal  complaint the complainant  further  requests
the Constitutional Court to declare that the means by which
the Municipal Court in Prague proceeded in the matter heard
before that court, under file no. 32 C 44/94, constituted a
violation  of  his  fundamental  right  to  have  his  case
considered within a reasonable time and without unnecessary
delay,  guaranteed by Art. 38 para. 2 of  the  Charter,  as
well  as  by  Art.  6  para. 1 of the  Convention  for  the
Protection   of  Human  rights  and  Fundamental   Freedoms
(hereinafter   „Convention“),   and   further   that    the
Constitutional Court forbid the Municipal Court  in  Prague
from continuing in the violation of the complainant’s basic
rights in the manner stated above.
       The   complainant  asserts  in  his   constitutional
complaint  that  by  the action filed in  1994,  which  the
Municipal Court in Prague has been considering already  for
nine  years  without  yet  the  presenting  the  action  or
admitting evidence, the complainant seeks the protection of
his personhood and misuse of his given name and surname  in
the  files  of  the Czech Republic Police and  against  the
unauthorized conduct of a house search and photographing of
the  complainant  in  his residence  without  his  consent,
without  statutory basis and, above all, without  a  lawful
warrant to conduct such action.
       The   complainant  asserts  in  his   constitutional
complaint that on 20 October 2003 he made a motion to admit
as evidence witness testimony of JUDr. Jaroslava Lobotkova,
who  was  hearing this matter as case no. 32 C 44/94.   The
complainant  substantiate his motion by the fact  that  the
given  matter  has  been  under consideration  already  for
longer than nine and one-half years, without the court even
getting at least to the presentation of the action,  while,
from  the  manner  in  which the judge  is  conducting  the
matter,   the   complainant  judges  that  the   judge   is
consciously  bringing the proceeding „to a  loss“.   Since,
according  to  the complainant, the judge has learned  more
about  the case than solely that which is contained in  the
file,  the complainant proffers as evidence the questioning
of  this judge, and in particular with a focus on the issue
of  whether she spoke with anybody outside of the courtroom
concerning the matter under consideration, whether she  has
or  has  not been influenced (in whatever manner)  in  this
matter,  how (not) to proceed and in reference  to  further
issues  which,  as  the complainant stated,  he  would  not
announce in advance, so as not to spoil this evidence.  The
court  has  competence to decide whether to admit proffered
evidence; it is the complainant’s view, however, that, with
regard to the requirement of impartiality and non-bias,  it
is  incompatible for the very judge whose witness testimony
is  proposed  would herself decide on the motion  proposing
that witness testimony be taken.  Without the High Court in
Prague  in any way in the reasoning of its decision dealing
with the merits of the matter, that is, with the reason for
which  the  objection of bias was raised by the complainant
which  consists  in the incompatibility of  the  status  of
judge  and, at the same time, witness, it decided that  the
mentioned  judge  would not be excluded  from  hearing  and
deciding in the matter.  According to the complainant,  the
High  Court, by its decision, created a situation in  which
the  judge, JUDr. Jaroslava Lobotkova, would herself decide
on  whether  evidence, consisting of her witness testimony,
would or would not be taken.  According to the complainant,
the  High Court in Prague did not concern itself with these
reasons   at  all  and  satisfied  itself  with  a  routine
declaration by the judge that she did not feel  herself  to
be  biased,  and neglected the merits of the  complainant’s
motion.
      In  order to judge the constitutional complaint,  the
Constitutional  Court  requested  the  files  kept  at  the
Municipal  Court  in  Prague as nos. 32  C  44/94  and  Spr
4564/94.
      At the Constitutional Court’s request, a judge of the
Municipal Court in Prague, JUDr. Jaroslava Lobotkova, in  a
memorandum  delivered  to the Constitutional  Court  on  24
May2004,  gave  her  views on the submitted  constitutional
complaint.   In her statement of views, the judge  asserted
that  the  complainant had repeatedly  made  objections  of
bias, most recently by a submitting which reached the court
on  20  October  2003.  The submission  did  not  meet  all
requirements,  in particular, the grounds  upon  which  the
judge is alleged to be biased where not stated therein.  By
its  27  October  2003 ruling, the court  called  upon  the
complainant  to  cure  the defects in his  submission,  and
included  a  notice concerning the consequences  should  he
fail   to  comply  with  the  request.   Even  though   the
complainant  failed to comply with the  request,  the  High
Court in Prague did not reject his submission in accordance
with  §  43  para.  2 of the Civil Procedure  Code,  rather
merely  decided that the judge would not be  excluded.   In
the  judge’s  view,  it is evident from  the  text  of  the
submission  that the plaintiff was deliberately creating  a
situation  when he proposed the questioning of  the  judge,
without  giving  any grounds of bias, and  by  these  means
attempts  to  create  such  grounds.   The  judge  of   the
Municipal  Court  in Prague stated that he  has  repeatedly
drawn   out   the   proceeding  by  making   similar   such
submissions,  by  changing the petit he is  attempting,  by
means of an action for the protection of personhood, to get
the civil law court to modify part of a criminal file or to
review the legality of the conduct of bodies acting in  the
criminal proceeding.  He has excused himself from scheduled
hearings  at the last moment, requested a continuance,  and
made  other  submission which have lead to the postponement
of a decision.

II.
The  Constitutional  Court does not  form  a  part  of  the
ordinary  court  system and does not  possess  a  right  of
supervision  over  the decision-making of ordinary  courts.
The  Constitutional Court is authorized to  intervene  into
the  decision-making of ordinary courts only  in  the  case
that  the final decision of one of those courts results  in
the  violation of a constitutionally guaranteed fundamental
right or basic freedom.
      The  Constitutional Court first of all  reviewed  the
contested  20 February 2004 decision of the High  Court  in
Prague,  no.  Nco  10/2004-231, as well as  the  proceeding
leading  up  to it, from the perspective of the  objections
put  forward  by  the  complainant  in  his  constitutional
complaint.  With regard to the fact that it may  engage  in
review  solely  as  concerns  the  constitutionality  of  a
proceeding, it came to the conclusion that this part of the
constitutional complaint is not well-founded.
     By its 20 February 2004 ruling, action no. Nco 10/2004-
231,  the High Court in Prague decided not to exclude JUDr.
Jaroslava  Lobotkova,  judge  of  the  Municipal  Court  in
Prague,  from  taking part in and deciding  on  the  matter
being  heard before that court as file no. 32 C 44/94.   In
the  reasoning of its decision, the court stated  that,  in
the  case under consideration, the plaintiff did not  raise
such  objections as would, in the sense meant by § 14 para.
1 of the Civil Procedure Code, justify the exclusion of the
judge of the Municipal Court in Prague from taking part  in
and deciding on the matter.
      A  judge  can  be excluded from taking  part  in  and
deciding  on an already matter only in exceptional  and  on
genuinely  serious  grounds which truly  prevent  her  from
deciding  in  conformity  with  the  law,  impartially  and
fairly.
      In  order to reach a conclusion on a violation of the
constitutional  safeguards of  the  purity  of  a  judicial
proceeding  and  the observance of the principles  of  fair
process  (Art.  36  and  following  of  the  Charter),  the
complainant’s merely general or subjective conviction  does
not  suffice (judgment no. III. US 230/96).  The subjective
perspective  of the parties to the proceeding, or  possibly
of  the  judges  themselves, functions as  an  impetus  for
decision-making  on potential bias, however,  decisions  on
this  issue  must be taken exclusively on the basis  of  an
objective  point  of  view.  That  means  that  it  is  not
admissible to proceed solely on the basis of doubts  as  to
the  judges‘ relation to the matter under consideration  or
to  the persons which the transactions affects, rather also
from  a  substantive law analysis of the facts  which  gave
rise to these doubts.
      A  judge  can  be excluded from taking  part  in  and
deciding  on  a matter only in a case where it  is  evident
that  the  relation of the judge to the given  matter,  the
parties, or their representatives attains such a nature and
intensity  that,  even  despite the statutorily  prescribed
obligation,  they  would not be able or capable  to  decide
independently and impartially (judgment no. II. US 105/01).
      In  his  constitutional  complaint,  the  complainant
refers to the Constitutional Court’s judgment in matter no.
I.  US 167/94, in which it stated that the „condition of  §
14  para.  1 of the Civil Procedure Code provides  for  the
exclusion of judges from taking part in and deciding  on  a
matter  not  solely due to any actually demonstrated  bias,
but  even  in  the  case that it is possible  to  entertain
doubts concerning their lack of bias.“  The complainant did
not,  however,  go on to cite the following sentences  from
that  judgment, where it is stated:  „It is  not  a  matter
merely of assessing the judge’s subjective feelings  as  to
whether she does or does not feel biased, or the assessment
of her personal relations to the parties to the proceeding,
rather it concerns objective considerations as to whether –
with  regard to the circumstances of the case – it  can  be
considered that the judge could be biased.“
       With   regard   to   what  is  stated   above,   the
Constitutional  Court  did  not find  as  well-founded  the
complainant’s  objections  directed  against   the   above-
mentioned ruling of the High Court in Prague.

III.
In  his constitutional complaint, the complainant also made
objections to delay in the proceeding conducted before  the
Municipal Court in Prague in matter no. 32 C 44/94.
     The Constitutional Court has already, in a host of its
decisions,  dealt  with the issue of delay  in  proceedings
before  ordinary courts.  Justified delays in a  proceeding
represent  „some other encroachment“ upon the complainant’s
fundamental  rights  (Art. 87  para.  1,  lit.  d)  of  the
Constitution of the Czech Republic, and further § 72  para.
1, lit. a) of Act No. 182/1993 Coll., on the Constitutional
Court, as subsequently amended), enshrined in Art. 38 para.
2  of the Charter of Fundamental Rights and Basic Freedoms.
This provision guarantees to everyone the right to have her
case  considered  without unnecessary delay  (or  within  a
reasonable  period),  and a conflict  with  this  provision
naturally  results  if there has been undue  delay  in  the
proceeding  in  a  concrete case before an ordinary  court.
The Constitutional Court has repeatedly adjudged that delay
in  a  proceeding cannot be justified even by  the  courts‘
general overburdened state, since „it is up to the State to
organize its judiciary in such a way that the principles of
the  judiciary,  enshrined in the  Charter  of  Fundamental
Rights  and Basic Freedoms, be respected, and any  possible
inadequacies in this regard cannot work to the detriment of
citizens  who  justifiably  expect  from  the  courts   the
protection  of  their  rights  within  a  reasonable  time“
(compare  Constitutional  Court  judgments  nos.   IV.   US
55/1994, III. US 70/1997).
      In  assessing unnecessary delays in a proceeding  and
the unreasonable length of a proceeding, it is not decisive
whether  delays are caused by a subjective factor  standing
on  the side of the ordinary court (that is, primarily  the
conduct  of the judge deciding the matter) or an  objective
factor consisting in the amount of matters submitted to the
courts,   in   the   legal  regulation  of   the   judicial
organization,  or  in the insufficient  administrative  and
technical  background of the ordinary courts.   It  is  the
State  as  a  whole,  without regard to its  division  into
individual units, which should guaranteed the protection of
an   individual’s  rights,  while  timeliness  is  also  an
indispensible attribute of such protection.
      In  the complainant’s case, the proceeding before the
ordinary  courts has lasted more than 9 years, which  could
hypothetically be interpreted as an encroachment  upon  his
fundamental  rights.   Nonetheless,  for  the  purposes  of
adjudging  delays  in  a proceeding, a  decisive  issue  is
whether  the  delays are attributable solely to  the  state
authority  (the  court) or whether they  are  also  by  the
conduct  of  a  party  to the proceeding  or  even  by  the
complainant directly (I. US 600/03).
      Following a comprehensive analysis of the file of the
Municipal   Court   in  Prague,  no.  32   C   44/94,   the
Constitutional Court is constrained to declare that  it  is
the  complainant  himself who bears the decisive  share  of
blame  for  the  delays which have occurred and  are  still
occurring in this case, who by his obstructive behavior and
inappropriate  procedural tactics prevented the  proceeding
from  being  completed  within  a  reasonable  time.    The
complainant’s  legal  representative  in  the   civil   law
proceeding,  the  Independent Trade Union Commission  (with
its headquarters in Prague 5 – Radotin, Sarovo kolo 2/981),
is  also  in part to blame for the delays that were caused.
It  should  be said, in addition, that the judicial  bodies
are in part to blame for the delays that have occurred, due
to  several incorrect steps, as noted in the attached  file
of   the  Municipal  Court  in  Prague,  no.  Spr  4564/94;
nonetheless, the length of the proceeding was  not  in  any
substantial  way  prolonged by the  manner  in  which  they
proceeded.
      Since  the  Constitutional Court is not competent  to
review  in detail ordinary courts‘ procedural steps on  the
level  or  „ordinary“  law, it is  not  necessary,  in  the
reasoning of this judgment, for it to concern itself with a
comprehensive  analysis of all steps  taken  in  the  given
civil  law proceeding, conducted under file no. 32 C 44/94.
Merely  examples will be given of those steps taken by  the
complainant which contributed to delays in the proceeding.
      This  civil  law  proceeding  was  initiated  by  the
complainant’s „action for the protection of personhood  and
desisting of the harassment of the plaintiff, with a motion
seeking the issuance of preliminary measures“ submitted  to
the  Municipal  Court  in Prague on  18  March  1994.   The
subject  of  the  lawsuit was the improper conduct  of  the
Czech  Republic  Police – Office of Investigations  of  the
Capitol   City  of  Prague  in  the  criminal   proceeding,
conducted  under file no. CVS: MVV-33/103-93, by which  the
plaintiff  considered himself to be affected in his  rights
of personhood.  For example, the plaintiff asserts that the
police  organs in an ongoing criminal proceeding have  made
unauthorized entries onto land in the plaintiff’s use, took
photographs  while  there, and examined  items  which  were
found  there,  incorrectly  designated  the  names  of  the
persons  involved  in  the criminal proceeding,  improperly
detained the plaintiff, etc.
      The Constitutional Court considers the mere fact that
the complainant elected the route of a civil law proceeding
for  the protection of his rights of personhood, which were
allegedly  violated in the course of a criminal proceeding,
as  a defective and inefficient means of proceeding, giving
rise  to  future  complications  and  delays.   A  criminal
proceeding, governed by Act No. 141/1961 Coll., on Criminal
Judicial  Proceedings, as subsequently amended (hereinafter
„Criminal Procedure Code“ or „CPC“) is an independent  type
of  proceeding.   The Criminal Procedure  Code  contains  a
sufficient number of legal instruments by which  a  person,
who  considers himself to be affected in his rights by  the
steps  taken by bodies acting in the criminal process,  can
seek  the  protection of his rights.  As examples  of  such
institutes  can  be  given  the  remedial  measure  against
decisions  of  bodies acting in the criminal  process  (for
example,  the complaint - § 141 and following of the  CPC),
the petition for the review of steps taken by police organs
and  state attorneys (§ 157a of the CPC), etc.  As  far  as
concerns the level of legal protection accorded, the  legal
provisions governing these institutes in the Czech Criminal
Procedure Code corresponds to the standard which  is  usual
in other mature democratic law-based states.
      If concurrently with the ongoing criminal proceeding,
the  complainant  initiated  a  civil  law  proceeding   by
submitting  an  action  for the protection  of  personhood,
future   procedural  steps  are  made  significantly   more
difficult,  since  this brings about the need  for  various
state  bodies  (courts  in  civil  proceedings,  courts  in
criminal  proceedings, police bodies, state  attorneys)  to
request  file material from each other, the duplication  of
procedural steps and excessive formalism in general,  which
undermines  the  economy and efficiency of the  proceeding.
In such cases, the negative consequences arising therefrom,
especially  delays in the proceeding, cannot be  attributed
to the fault of state bodies.
      In  the case under consideration, such delays, called
forth by the „dual-track“ nature of the proceeding, did  in
fact  occur.   As an example, the court in  the  civil  law
proceeding  quite  naturally  could  not  do  without   the
criminal  file, thus on 28 March 1995, the court  requested
the  file (no. 1. 49).  However, at that point in time, the
criminal  proceeding  has not yet been  finally  completed;
therefore, the requested file was not sent until 10 October
1995 (no. 1. 54).
       The   Constitutional  Court  observes  that   delays
occurring in this proceeding were also due to the fact that
the  complainant elected to assert his allegedly  infringed
rights   by  procedural  proposals  and  steps  that   were
evidently inappropriate and ineffective, the resolution  of
which  nonetheless (unnecessarily) complicated and  dragged
out  the civil court proceeding.  For example, on 18  March
1994, together with his lawsuit the complainant submitted a
request  for the ordering of provisional measures by  which
the  Police  of  the  Czech Republic  should  refrain  from
carrying out a number of criminal procedural steps pursuant
to § 158 of the Criminal Procedure Code.  In the 27 October
1995 ruling (file no. 32 C 44/94) of the Municipal Court in
Prague,  this request was properly rejected on  the  merits
with the persuasive reasoning that the conditions laid down
in  § 102 and § 74 para. 1 of the Civil Procedure Code were
not  met  because the investigation in the criminal  matter
has  already been completed, so that the plaintiff was  not
threatened with the repetition of the conduct from which he
asked  them to refrain; in addition, the court came to  the
conclusion  that  the steps prescribed  in  §  158  of  the
Criminal  Procedure Code could not be reviewed in  a  civil
law   dispute.   The  complainant  appealed  this  negative
ruling; however, by its 17 March 1997 ruling (file no. 1 Co
467/95),  the High Court in Prague turned his appeal  down.
By  employing evidently ineffective instruments,  which  in
this matter was the unwarranted request for the ordering of
provisional  measures, the complainant contributed  to  the
delay of the proceeding.
       The   Constitutional   Court   also   considers   as
inappropriate  and bordering on obstruction the  constantly
repeated and unwarranted objections of bias and requests to
have  excluded  judges  who were  hearing  the  case  under
consideration,  as  well  as the  proposals  to  amend  the
complaint, for example:
  - in his 10 November 1995 appeal (no. l. 61), he objected
that  the  single judge, JUDr. Nadezda Zakova,  was  biased
(rejected  on the merits in the 27 October 1995  ruling  of
the Municipal Court in Prague, file no. 32 C 44/94);
   -  in  his submission of 16 November 1995 (no.l. 63)  he
requested that the matter be assigned to the Regional Court
in  Prague;  in  his 27 April 1998 motion  (no.l.  100)  he
withdrew this proposal;
   -  in his 21 April 1998 proposal (no. 1. 92) he withdrew
the  complaint against the Police of the Czech Republic and
proposed  the  dismissal  of  the  proceeding;  after   the
Municipal Court in Prague, in its 22 September 1998  ruling
-  file  no. 32 C 44/94 (no. l. 102), granted this proposal
and  dismissed the proceeding in this part, on  20  October
1998   the  complainant  submitted  an  appeal  for  which,
however, he gave no reasons until being called upon  to  do
so by the court on 26 January 1999; subsequently, in its 22
March 1999 ruling, file no. 1 Co 165/98, the High Court  in
Prague did not grant his appeal in this part;
   -  in the course of the 28 June 1999 hearing before  the
Municipal  Court  in Prague (no. l. 128v), the  complainant
raised  the objection of bias against judge JUDr. Jaroslava
Lobotkova,  but  gave  no written reasons  supporting  that
claim  until  his 10 July 1999 submission;  on  7  December
1999,  the High Court in Prague rejected it as unfounded  –
file no. Nco 228/99 (no. l. 141 and following);
   -  by  his 20 October 2003 memorandum (no. l. 220),  the
complainant  raised  a further objection  of  bias  against
judge  JUDr.  Jaroslava Lobotkova, but in its  20  February
2004  ruling, no. Nco 10/2004-231, the High Court in Prague
decided  not  to  exclude  the  judge;  that  decision  was
contested  by means of the present constitutional complaint
and  for  this  reason, in the course of the oral  hearing,
held  on  7  April  2004, judge JUDr.  Jaroslava  Lobotkova
suspended   the  proceeding  and  adjourned   the   hearing
indefinitely,  as  the  submitted constitutional  complaint
called  the judge’s impartiality into doubt, which  impedes
further action by the court.
      The  Constitutional Court cannot disregard  the  fact
that  smooth progress in hearing the matter was impeded  by
the  repeated failure to appear for court hearings, on  the
part  either of the complainant or his legal council.   For
example,  the  file  contains  written  excuses  from   the
complainant  and  his  legal council  and  requests  for  a
continuance of hearings which were scheduled to take  place
on  8  January 1998 (no. l. 83), 12 February 1998  (no.  l.
86),  21  April 1998 (no. l. 96), 7 October  2000  (no.  l.
145), dale dne 17 January 2001 (no. l. 149), and 27 October
2003  (no.  l. 220).  The Constitutional Court cannot,  and
does  not  intend to, scrutinize whether the  complainant’s
excuses (explained by his health problems) were or were not
valid.  Nonetheless, it is certain that these excuses  were
often submitted at the last moment prior to the start of  a
hearing,  which, as an objective matter, makes it difficult
for  the  trial  court to ensure the smooth course  of  the
proceeding.  In the circumstance where the complainant  was
represented in the proceeding by his legal council,  it  is
warranted to presume that, if the complainant had been more
willing  to cooperate, the further course of the proceeding
could have been sped up markedly.
      The  Constitutional Court concurs with  complainant’s
objection that there were some procedural errors in the way
in  which the ordinary courts proceeded in the case,  which
also  contributed  to the delay in the proceeding.   As  is
substantiated in the file, already on the occasion  of  the
first  hearing before the Municipal Court in Prague, on  31
October  1994,  the  panel  chairman  made  a  mistake   in
preparing the record in that it was written there that,  in
the  course of the hearing, the complaint was read out  and
views  expressed upon it, even though it had  not  in  fact
been  read out.  In reaction to the complainant’s complaint
to the chairman of the Municipal Court in Prague, which was
found to have merit, the panel chairman was reproached  for
this  error  (see  the supplemental file of  the  Municipal
Court in Prague under file no. Spr 4564/94, c. l. 9).   The
Constitutional Court has no intention of trivializing  this
error  but  considers  that  it  could  have  easily   been
corrected and did not, in and of itself, have to result  in
further  delays.   The  fact that the complainant  and  his
legal council submitted a criminal notice against the panel
chairman  and  that  notice was fully investigated  by  the
police  (file  of the Local Division of the Police  of  the
Czech Republic on Vysehradska Street in Prague 2, file  no.
OR 2 520/94/MP 1-Tc 95), resulted in further time consuming
and inefficient procedures, which held up the course of the
civil law proceeding.
      The  unwillingness of the complainant’s legal council
to  contribute,  by  his  cooperation,  to  the  successful
progress  of the civil law proceeding is substantiated,  as
well,  by  his  attitude during the 28  June  1999  hearing
before  the first instance court (no. l. 128): after  being
requested by the panel chairwoman to present the  case,  he
refused  and  designated the ongoing  court  proceeding  as
„tomfoolery“,  and made an objection of  bias  against  the
penal chairwoman.  The Constitutional Court is compelled to
observe  that  such  conduct is  unbecoming,  degrades  the
dignity  of  court proceedings, and kindles an  undesirable
atmosphere  which can, as well, have an effect  on  in  the
smooth running of the proceeding.
      The  Constitutional Court thus came to the conclusion
that  (undesirable)  delay  in  the  proceeding  that   has
occurred  was  caused for the most part by the  complainant
himself.  To the extent that certain error can be  seen  in
the  court’s  manner of proceeding, it was not  of  such  a
character  as  to  entail a violation  of  constitutionally
guaranteed  fundamental rights or basic  freedoms,  in  the
matter  under  consideration  the  violation,  specifically
cited  by  the complainant, of Art. 36 para. 1 or  Art.  38
para.  2  of  the  Charter,  or  Art.  6  para.  1  of  the
Convention.
      Pursuant to § 43 para. 2 lit. a) of Act No.  182/1993
Coll.,  as  subsequently amended, without holding  an  oral
hearing  and without the parties being present,  the  Panel
shall  by  preliminary ruling reject the petition,  if  the
petition is manifestly unfounded.
      On the basis of these facts, the Constitutional Court
has,  pursuant to § 43 para. 2 lit. a) of Act No.  182/1993
Coll., as subsequently amended, rejected the constitutional
complaint  as  a  manifestly  unfounded  petition,  without
holding  an  oral  hearing and without  the  parties  being
present

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

Brno, 23 June 2004