Decided 11 February 2004 - Pl. US 1/03
                               
             “Reasons for Appeal on Points of Law”

HEADNOTES
1) In various proceedings before courts of the same state, in a
procedural  situation which is, if not identical, very  similar
(the  party  to  the  proceedings seeks  the  annulment  of  an
effective   court  decision  on  grounds  of  incorrect   legal
evaluation,  or  asks the highest body in the court  system  to
address a question which the party to the proceedings considers
to  be  fundamental and as yet unresolved)  the  party  to  the
proceedings  can  not be treated differently unless  reasonable
grounds for such action are evident.
2)  Stating brief reasons on which the Supreme Court based  its
denial  decision  (e.g. citations of the  Court’s  cases  which
address  the  matter  and which the court found  no  reason  to
change  or  deviate  from)  can not  significantly  burden  the
Supreme  Court,  and thus they can not significantly  influence
the  overall  length of court proceedings;  thus  limiting  the
rights  of a party to appellate proceedings on a point  of  law
appears to be clearly disproportionate to the aim pursued.

JUDGMENT
The  Plenum  of  the  Constitutional Court, composed  of  JUDr.
Frantisek   Duchon,   JUDr.  Pavel  Hollander,   JUDr.   Dagmar
Lastovecka, JUDr. Jiri Malenovsky, JUDr. Jiri Mucha, JUDr.  Jan
Musil,  JUDr.  Jiri  Nykodym, JUDr.  Pavel  Varvarovsky,  JUDr.
Miloslav  Vyborny  and  JUDr.  Eliska  Wagnerova,  ruled  on  a
petition  from the minors Jan and Pavel Boukal, represented  by
their  mother, Monika Boukalova, all residing at  Visnova  146,
legally  represented by JUDr. Antonin Janak, attorney with  his
registered office in Pribram, seeking the annulment of  §  243c
par.  2 of Act no. 99/1963 Coll., the Civil Procedure Code,  as
amended  by later regulations, with the consent of the  parties
without conducting oral proceedings, as follows:
The  provision of § 243c par. 2 of Act no. 99/1963  Coll.,  the
Civil  Procedure  Code,  as amended by  later  regulations,  is
annulled  as  of  the day this judgment is promulgated  in  the
Collection of Laws.

REASONING
In   a  petition  delivered  to  the  Constitutional  Court  on
2September 2002 (file no. IV. US 582/02), the complainants, the
minors  Jan  Boukal  and  Pavel Boukal,  represented  by  their
mother,  Monika Boukalova, legally represented by JUDr. Antonin
Janak, seek to have the Constitutional Court annul the decision
of the Supreme Court of the CR of 19 June 2002, file no. 33 Odo
360/2002-127, the decision of the Regional Court in  Prague  of
22 January 2002, file no. 28 Co 11/2002-111 and the decision of
the District Court in Pribram of 17 October 2001, file no. 11 C
165/97-81.
Together  with  the constitutional complaint, the  complainants
filed  a  petition to annul § 243c par. 2 of  Act  no.  99/1963
Coll.,  the Civil Procedure Code, as amended (the “CPC” of  the
CPC).
      The  fourth  panel  of  the Constitutional  Court,  after
stating that application of the contested provision resulted in
one   of  the  facts  which  are  the  subject  matter  of  the
constitutional complaint, i.e. that the conditions provided  in
§  74  of Act no. 182/1993 Coll., on the Constitutional  Court,
have  been  met,  suspended proceedings on  the  constitutional
complaint and forwarded the petition to annul § 243c par. 2  of
the CPC to the Plenum of the Constitutional Court.
      The petitioners consider § 243c par. 2, of the CPC, which
permits  the Supreme Court to not give any reasons  at  all  in
decisions  on  appeals on points of law [“dovolani”]  specified
therein,  to be inconsistent with everyone’s right  to  a  fair
trial,  in particular with Art. 6 par. 1 of the Convention  for
the  Protection  of Human Rights and Fundamental  Freedoms.  In
their opinion, this convention is a treaty under Art. 10 of the
Constitution,  and thus directly applicable and has  precedence
before statutes. In support of their opinion, they argue on the
basis  of  decisions of the European Court of Human Rights,  in
particular they point to the judgment of 21 January1999 in  the
case  of  Garcia  Ruiz  v.  Spain, which  clearly  states  that
according  to its established case-law reflecting  a  principle
linked  to  the proper administration of justice, judgments  of
courts  and  tribunals should adequately state the  reasons  on
which they are based.” The petitioners also point out that  the
extent  of  this duty may vary according to the nature  of  the
decision   and  must  be  determined  in  the  light   of   the
circumstances  of the case (see Ruiz Torija v. Spain  and  Hiro
Balani v. Spain, 1994, and Higgins and Others v. France, 1998).
Finally,  they  point  to the conclusions  of  the  ECHR  that,
although  Article 6 par. 1 obliges courts to give  reasons  for
their decisions, this duty cannot be understood as requiring  a
detailed  answer  to every argument (see Van  de  Hurk  v.  the
Netherlands, 1994). Thus, in dismissing an appeal, an appellate
court  may,  in principle, simply endorse the reasons  for  the
lower court’s decision (see Helle v. Finland, 1997).
      The  petitioners  believe that in  both  kinds  of  cases
regulated by the contested provision, § 243c par. 2 of the CPC,
where  the Supreme Court can omit giving reasons, it is  not  a
question  of  a  mere procedural decision in the  matter  (e.g.
denial on grounds of a late filing or filing by an unauthorized
person),  but that the appellate court on a point of  law  must
preliminarily answer the question concerning the merits of  the
matter  and  conclude that it is not a question of  fundamental
legal  significance, or that the appeal on a point  of  law  is
clearly groundless. Thus, it must consider the matter in  terms
of  substantive law. Insofar as it is one of the main tasks  of
the Supreme Court to have a unifying effect on the case law  of
lower  courts  through  its  interpretations  of  the  law   in
individual cases, then, according to the petitioners, this role
must  be  fulfilled by a clear, even if only brief,  reference,
e.g. to a decision of the Supreme Court in an analogous matter.
However,  one  can hardly speak of fulfilling this  role  in  a
cases  where the appellants are not even informed why there  is
not  a  question of fundamental legal significance, or why  the
appeal on a point of law is clearly groundless. Therefore,  the
petitioners conclude that if the law permits the court  to  not
give reasons for its decision at all, although Art. 6 par. 1 of
the  Convention  establishes the right of every participant  in
court  proceedings to an adequate statement of the  reasons  on
which  a  decision is based, it thereby directly  violates  the
right  to  a  fair trial. An absence of reasons  can  never  be
adequate reasons.
      The  Constitutional Court, under § 69 of Act no. 182/1993
Coll.,  on  the  Constitutional Court  (the  “Act”),  requested
opinions from the Chamber of Deputies and the Senate.
…
    
The  Constitutional  Court  also  asked  for  opinions  on  the
petition from the Ministry of Justice and the Supreme Court  of
the  CR  (  §  48  par. 2 and § 49 par. 1 of  the  Act  on  the
Constitutional Court).
The   Ministry  of  Justice  expressed  the  opinion  that  the
contested  provision is an exception from the general framework
of  providing reasoning for resolutions whereby a court decides
a matter on the merits, under § 169 par. 4, or § 157 par. 2 and
4  of the CPC. This exception has its justification in the fact
that, in the case of a decision to deny an appeal on a point of
law  under  §  243c  par. 2 of the CPC,  the  reasons  for  the
decision  may  be  merely formal. In its reasoning,  the  court
would basically only repeat the relevant provisions of the law,
which  provide quite unambiguous criteria for denying an appeal
on  a  point of law– either it is not a question of a  decision
which has fundamental legal significance for the merits of  the
matter,  or the appeal on a point of law is clearly groundless.
The  permissibility  of an appeal on a  point  of  law,  as  an
extraordinary means of redress in cases under § 237 par. 1 let.
c) of the CPC, or its denial as clearly groundless under § 243b
par.  1  of the CPC, depend on the consideration of the  court.
However,  this consideration is very narrowly defined.  If  the
contested  decision of the appeals court is correct, consistent
with   case   law,  and  otherwise  error-free,  a   sufficient
substantive basis for a reasoning in the scope foreseen by,  in
particular, § 157 par. 2 of the CPC does not even exist.
      The  ministry also pointed out, that an appeal of a point
of   law  is  an  extraordinary  means  of  redress,  which  is
permissible only if provided by statute (it is not based on the
principle of universality, unlike an ordinary appeal)  and  its
purpose is, apart from deciding individual matters, to  have  a
unifying  effect on case law. If the appellate court  concludes
that an appeal on a point of law is not permissible under § 237
par.  1 let. c) of the CPC, because the contested decision does
not have fundamental legal significance, or that the appeal  on
a point of law is clearly groundless under § 243b par. 1 of the
CPC  assumes  that  the  decision of  the  appellate  court  is
correct,  and  that even in terms of its reasons the  appellate
court has not reason to add anything. The fact that it does not
give  reasons for its decision to deny an appeal on a point  of
law  can  not  be inconsistent with the right to a fair  trial,
because stating reasons for the decision of the appellate court
[on  the  point  of  law]  could  only  point  to  the  correct
conclusions  of  the appellate court [on the ordinary  appeal].
Therefore,  it  is  not  procedurally economical  to  give  the
reasons  for  such  a decision, because the  [first]  appellate
court  resolved the dispute correctly, and the reasons  of  the
appellate  court  [on the point of law] can  bring  no  benefit
either to the parties or for purposes of unifying case law. For
these reasons, the Ministry of Justice is convinced that § 243c
par.  2  of the CPC, which does not required the court to  give
reasons for its decision, can not be considered a violation  of
the right to a fair trial under Art. 6 par. 1 of the Convention
on Human Rights and Fundamental Freedoms.
      In its opinion of 28 March 2003, the Supreme Court relied
in  part  on  the statement submitted in the proceedings  on  a
constitutional complaint by the chairwoman of the  panel  which
decided  on  the  appeal on a point of law  in  the  particular
matter,   and  which  holds  the  opinion  that  the  contested
provision of the CPC does not deny the party’s right to a  fair
trial  under  Art.  6 par. 1 of the Convention.  The  contested
provision of the CPC, providing that reasons are not  given  in
decisions  to  deny an appeal on a point of law  in  designated
cases,  was  established in the Civil  Procedure  Code  in  the
interest  of speeding up and shortening proceedings in  appeals
on  points of law before the Supreme Court. It is necessary  to
see  that these proceedings are proceedings on an extraordinary
means of recourse, so they do not in any way interfere with the
principle of two levels of civil court proceedings (The Supreme
Court  is  a  third level in this case), and that the  European
Union,  or  the  majority of its states,  considers  two  court
levels  to  be  quite  adequate. One can not  assume  that  the
contested  provision interferes with the party’s constitutional
right to a fair trial, as it meets the requirement for speeding
up  court proceedings and making them more economical in  those
cases where decisions on appeals on points of law (of a more or
less  trivial  nature), weighed down by unnecessary  giving  of
reasons,  take away from the Supreme court’s capacity to  unify
court  practice  and make decisions on matters  of  fundamental
importance.  The  complainants’  arguments,  relying   on   the
particular  case  law of the European Court  of  Human  Rights,
apply  to the ordinary appellate court, not the appellate court
handling the appeal on a point of law.
      In  conclusion, the Supreme Court’s statement  says  that
these  opinions  are  also consistent  with  the  trend  toward
efficiency in civil proceedings in Germany and other states  of
the European Union.
     After reviewing the arguments presented by the petitioners
and  after weighing the abovementioned opinions and statements,
the  Constitutional Court concluded that there were grounds for
the petition. It based this on the following considerations.
We  can agree with the objections of both houses of Parliament,
as  well  as  the  Ministry of Justice, that  the  petitioner’s
arguments  overlook the fact that, through the promulgation  of
constitutional Act no. 395/2001 Coll., priority of  application
of  international treaties was enshrined in the legal order  of
the  CR  with  effect as of 1 June 2002, and  as  result  their
reference   to  the  original  wording  of  Art.  10   of   the
Constitution.  Likewise, one can agree with the  Supreme  Court
that  the  particular  cases of the  European  Court  of  Human
Rights,  to  which  the petitioners point are concerned  rather
with the requirements imposed on the reasoning of decisions  by
first-level  or appellate courts. However, these  arguments  do
not in themselves make the petition groundless.
      It  is  evident  from  the opinions  of  both  houses  of
Parliament,  as well as the expert opinions of the Ministry  of
Justice and the Supreme Court, that the main aim of adding  the
contested provision into the CPC by the amendment performed  by
Act  no.  30/2000 Coll. is removing unnecessary delays  in  the
activity of courts, in particular easing the situation  of  the
Supreme  Court, that is, meeting the requirements  of  Art.  38
par.  2 of the Charter, or Art. 6 par. 1 of the Convention,  as
regards  court decision making in an appropriate and reasonable
time.  That  aim is undoubtedly legitimate, but  the  means  of
attaining it should not come into conflict with the right of  a
party  to  court proceedings to fair and equal treatment  which
prevents arbitrariness.
       The   Constitutional  Court  has  already   stated   the
requirements  which  must be imposed on the decision-making  of
the general courts in a number of its decisions. Primarily,  it
stated  that  the  independence of decision-making  by  general
courts   is  implemented  in  a  constitutional  and  statutory
framework of procedural and substantive law. The procedural law
framework means primarily the principles of a proper  and  fair
trial,  as  arising  from Art. 36 et seq.  of  the  Charter  of
Fundamental  Rights  and  Freedoms, and  from  Art.  1  of  the
Constitution  of  the Czech Republic. One of these  principles,
which  is a component of the right to a fair trial, as well  as
of  the concept of a state governed by the rule of law (Art. 36
par.  1 of the Charter of Fundamental Rights and Freedoms, Art.
1  of  the Constitution of the Czech Republic) and which  rules
out  arbitrariness  in decision-making, is  the  obligation  of
courts  to give reasons for their verdicts. (judgment file  no.
III.  US  84/94,  Collection of Decisions of the Constitutional
Court  of  the Czech Republic, volume 3, no. 34,  p.  257).  In
judgment  file no. III. US 176/96 (Collection of  Decisions  of
the  Constitutional Court of the Czech Republic, volume 6,  no.
89, p. 151) the Constitutional Court expressed the opinion that
if one of the purposes of court jurisdiction is to be met, that
being the requirement of “education aimed at preserving the law
…  at  respect for the rights of fellow citizens”  (§ 1 of  the
Civil  Procedure  Code), it is completely  necessary  that  the
decisions of the general courts not only conform to the law  in
the merits of the matter, and be issued with full observance of
procedural  norms,  but  also  that  the  reasoning  of  issued
decisions,  in  relation to the cited aim,  meet  the  criteria
given  by  § 157 par. 2 in fine, par. 3 of the Civil  Procedure
Code,  because  only  substantively  correct  decisions  (fully
consistent  with  the  law) and decisions  which  are  properly
justified, i.e. in the legally required manner, meet  –  as  an
inseparable  component  of  the  “designated  procedure”–   the
constitutional criteria arising from the Charter of Fundamental
Rights and Freedoms (Art. 38 par. 1). Similarly as in the  area
of  facts,  likewise in the area of inadequately  analyzed  and
justified  legal  arguments  there are  analogous  consequences
which  lead  to decisions being incomplete and, in  particular,
unconvincing, which is of course inconsistent not only with the
aim of court proceedings but also with the principles of a fair
trial (Art. 36 par. 1 of the Charter of Fundamental Rights  and
Freedoms), as the Constitutional Court understands them.
      Also  of  significance for the present matter is judgment
file  no.  III.  US  206/98 (Collection  of  Decisions  of  the
Constitutional Court of the Czech Republic, volume 11, no.  80,
p.  231 et seq.), in which the Constitutional Court stated that
part  of  the  constitutional framework of the independence  of
courts  is  their  obligation  to observe  equality  in  rights
arising  from  Art.  1 of the Charter. Equality  of  rights  in
relation  to  the general courts thus establishes, among  other
things,  the  right  to the same decision-making  in  the  same
matters,  and  at  the  same time rules  out  arbitrariness  in
application of the law.
      On the other hand, the Constitutional Court has also said
in  its case law that the right to an appeal on a point of  law
is  not  constitutionally guaranteed,  and  this  extraordinary
means  of redress, which the law makes available to parties  in
civil  and criminal proceedings, thus goes beyond the framework
of    constitutionally   guaranteed   procedural   entitlements
(decision  file no III. US 298/02, Collection of  Decisions  of
the  Constitutional Court of the Czech Republic, vol.  26,  no.
18, p. 381).
       Although  the  constitutional  order  does  include   an
entitlement to file an appeal on a point of law, or another so-
called  “extraordinary”  means of redress,  the  Constitutional
Court  considered it key to review the question of whether  the
procedure  chosen  by  the legislature sufficiently  eliminates
possible  arbitrariness in application of  the  law,  which  is
indisputably  one of the elements of a state  governed  by  the
rule of law. In other words, whether the fact that a particular
procedural  process goes beyond the framework of constitutional
requirements is, in itself, sufficient grounds to conclude that
the  criteria  arising  from  the  existing  case  law  of  the
Constitutional Court need not be applied to the reasoning of  a
decision  about  such procedural process, or  that  it  is  not
necessary to apply these criteria even commensurately.  Another
question  which  the Constitutional Court  had  to  answer  was
whether limiting the right of the appellant on a point  of  law
to  learn ( in certain cases) on what grounds the Supreme Court
denied  the  petition is commensurate with the aim pursued,  or
whether it can even serve this aim at all.
      The background report for § 243c par. 2 of the CPC states
that  as the reason why the Supreme Court is denying an  appeal
on  a  point of law is obvious, it is not necessary to state  a
reasoning  for the decision. The opinions from both  houses  of
Parliament and the opinions of the Ministry of Justice and  the
Supreme  Court of the CR were in the same spirit. However,  the
Constitutional   Court  believes  that  these   arguments   are
unconvincing,  because the “obviousness” of the  reason  is  de
facto  expressed only by reference to the text of the  relevant
provisions  of  the CPC, which is actually a kind  of  circular
argument. The appellant on a point of law thus does not  learn,
even  if  briefly, why the Supreme Court did not  consider  the
question presented to it in the appeal on a point of law to  be
one  of  fundamental legal significance, why it considered  the
appeal  on  a  point of law to be clearly groundless.  In  this
regard,  the  Supreme Court’s decision is thus  non-reviewable,
which could perhaps stand if the Supreme Court really were  the
last  body of a judicial type which could consider the  matter.
However,  in view of the position of the Constitutional  Court,
as  well  as of the European Court of Human Rights, the absence
of  any  reasoning makes it impossible to review, even roughly,
the  reasons for the decision, and in the event that the matter
is  presented to these bodies there will still be an obligation
on  the  Supreme  Court  to  give  reasons  for  its  decisions
(supplementally).
      In the case law of the European Court of Human Rights, it
is  up  to each state how to arrange its court system  and  the
relationships  between  its individuals  levels.  If  so-called
extraordinary means of redress were not permitted  at  all,  no
doubt  such a framework should stand from that point  of  view,
and  from the point of view of constitutional law. On the other
hand,  if such means are permitted, in a state governed by  the
rule  of  law their framework should be fundamentally identical
for all types of court proceedings, or differ only if there are
reasonable  grounds  for  it.  However,  a  comparison  of  the
requirements which must be contained in a decision on an appeal
on  a  point of law in civil and criminal proceedings,  or  the
requirements  which the Administrative Procedure Code  requires
for  decisions  on  a  cassation complaint,  shows  significant
differences,   and  their  rationale  is  not  clear   to   the
Constitutional Court.
     If the Supreme Court denies an appeal on a point of law in
criminal  proceedings, it is required by law to  briefly  state
the reason for the denial, with a reference to the circumstance
relating to the statutory grounds for denial(§ 265i par.  2  of
the  Criminal  Procedure Code). The commentary to the  Criminal
Procedure Code says that the defining element – brevity –  will
necessary  be  affected by the grounds  for  the  denial.  More
extensive  explanations of reasons are required,  according  to
the commentary, for grounds listed in § 265i par. 1 let. b),c),
and  particularly f), that is, if it is to be explained  why  a
particular  question is not of fundamental legal  significance.
Thus,  a  comparison  of  the  requirements  for  providing   a
reasoning in a decision on an appeal on a point of law in civil
proceedings  indicates that, in terms of the  requirements  for
the  reasons  for  its decision, the Supreme Court  can  decide
quite  differently on matters of basically the same  character.
Comparing these different requirements for reasons in decisions
on  appeals  on  points  of law with  the  requirements  for  a
decision  by  the Supreme Administrative Court on  a  cassation
complaint  shows  that  §  55  par.  4  of  the  Administrative
Procedure  Code  permits omitting reasons only  in  a  decision
which  does  not terminate the proceedings and which  does  not
impose  obligations  on anyone. It does not  permit  a  verdict
without reasons (§ 54). In view of the fact that under § 120 of
the  Administrative Procedure Code the provisions of part three
chapter  one  of the Administrative Procedure Code are  applied
commensurately to proceedings on a cassation complaint, one can
conclude that the Supreme Administrative Court must always give
reasons for a decision on a cassation complaint.
       It  is  evident  from  the  foregoing  that  in  various
proceedings  before courts of the same state, in  a  procedural
situation  which is, if not identical, very similar (the  party
to  the  proceedings seeks the annulment of an effective  court
decision on grounds of incorrect legal evaluation, or asks  the
highest  body  in the court system to address a question  which
the party to the proceedings considers to be fundamental and as
yet unresolved) the party to the proceedings can not be treated
differently  unless  reasonable grounds  for  such  action  are
evident.
  The  Constitutional  Court believes that  the  argument  that
denying  an appeal on a point of law in civil court proceedings
without  giving  reasons  will  contribute  to  courts   making
decisions  in  an  appropriate time  (which  is  undoubtedly  a
legitimate  aim) will also not stand. Limiting the right  of  a
party  in  appellate proceedings on a point  of  law  in  civil
matters to learn the reason why the Supreme Court decided as it
did  can  only  minimally serve the declared aim (if  at  all).
Stating  brief  reasons on which the Supreme  Court  based  its
denial  decision  (e.g. citations of the  Court’s  cases  which
address  the  matter  and which the court found  no  reason  to
change  or  deviate  from)  can not  significantly  burden  the
Supreme  Court,  and thus they can not significantly  influence
the  overall  length of court proceedings;  thus  limiting  the
rights  of a party to appellate proceedings on a point  of  law
appears  to be clearly disproportionate to the aim pursued.  In
this  regard we can also point to the opinion expressed in  the
decision by the European Court of Human Rights in the  case  of
Delcourt  (1970 A 11, § 25), that in a democratic society,  the
right  to  a  fair  administration  of  justice  holds  such  a
prominent place, that it can not be sacrificed for convenience.
Justice must not only be done, it must also be seen to be done.
For  the  foregoing  reasons the Plenum of  the  Constitutional
Court  decided  to annul § 243c par. 2 of the CPC  due  to  its
inconsistency  with the principles of a state governed  by  the
rule  of law (Art. 1 of the Constitution), as well as with  the
principle  of  equality  (Art.  1  of  the  Charter),  as   the
Constitutional  Court has interpreted these principles  in  its
existing  case  law;  it  did not find  grounds  to  delay  the
enforceability of this decision.

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

Brno, 11 February 2004