Pl US 19/02
                               


Art. 96 para. 1 of the Constitution of the CR enshrines, as one
of  the key principles of the functioning and implementation of
the  judicial power in the CR, the procedural principle of  the
equality   of   rights  in  parties  before  the  court.   This
constitutional  principle thus guarantees the equal  procedural
status  of  parties  in judicial proceedings concerning  rights
which   are  granted  to  parties  of  a  particular  type   of
proceedings  by  the  legal order. One can conclude  form  this
principle,  among  other  things, that  a  particular  type  of
proceedings  must have a single court jurisdiction,  understood
in the substantive and functional dimension, and that framework
must be implemented by statute.
  It is evident that the legislature can set varying degrees of
procedural  rights  and  obligations  for  various   types   of
proceedings with different subject matter. In other words,  the
equality of parties to proceedings must be interpreted so  that
the  same  scope of procedural rights and obligations  must  be
observed  in  proceedings  which  match  the  same  subject  of
proceedings.   However,   it   is   impermissible    for    the
distinguishing  criterion to be, instead of the subject  matter
of  the  proceedings, the party himself – even if, for example,
defined by his procedural status in any previous proceedings.
   Art.  37  para. 3 of the Charter of Fundamental  Rights  and
Freedoms  provides that all parties to proceedings  are  equal.
This provision of the Charter must be interpreted to the effect
that  this is a principle which guarantees the equal procedural
rights  and  obligations of particular  parties  in  particular
proceedings.  In  this, this provision of the  Charter  differs
from  Art.  96  para.  1 of the Constitution,  which  generally
foresees  the equality of parties in proceedings with the  same
subject matter.


The  Plenum  of the Constitutional Court decided on a  petition
from the High Court in Olomouc to annul § 24 para. 4 of Act no.
328/1991  Coll., on Bankruptcy and Settlement,  as  amended  by
later  regulations, with the participation of  the  Chamber  of
Deputies of the Parliament of the CR and of the Senate  of  the
Parliament of the CR as parties to the proceedings, as follows:
   The provision of § 24 para. 4 of Act no. 328/1991 Coll.,  on
Bankruptcy and Settlement, as amended by later regulations,  is
annulled.


                           REASONING

I.
On  15  August  2002, the Constitutional Court received,  under
Art. 95 para. 2 of the Constitution of the CR and § 64 para.  4
of  Act  no.  182/1993  Coll., on the Constitutional  Court,  a
petition from the High Court in Olomouc to annul § 24  para.  4
of Act no. 328/1991 Coll., on Bankruptcy and Settlement, in the
valid wording.
   Under § 104a of the Civil Procedure Code, the High Court  in
Olomouc  receives for decision matters in which the parties  to
the  proceedings, regional courts, or district courts,  believe
that  the  bankruptcy court lacks substantive  jurisdiction  to
decide  on a creditor's complaint to determine a claim  or  the
district  court  lacks jurisdiction to decide on  a  creditor's
complaint  in  proceedings opened at the district court  before
bankruptcy filings were made. In these cases the High Court  in
Olomouc is to decide on the substantive jurisdiction under  the
contested § 24 para. 4 of the Bankruptcy and Settlement Act.
  The petitioner justified its petition on the grounds that Act
no.  105/2000  Coll., which amends Act no. 328/1991  Coll.,  on
Bankruptcy and Settlement, as Amended by Later Regulations, and
Certain Other Acts, effective as of 1 May 2000, inserted in the
newly  formulated § 24 of the Bankruptcy and Settlement  Act  a
fourth  paragraph  which provides that  if,  before  bankruptcy
filings  were  made, proceedings were opened on a denied  claim
and  these  proceedings were suspended [§ 14 para. 1 let.  c)],
the denied claim shall be determined in the proceedings already
opened;  new proceedings on the denied claim are not opened  [§
14  para.  1  let. d)]. The petition to continue the  suspended
proceedings must be filed by the deadlines provided by the  Act
(§ 23 para. 4 and 5 and § 24 para. 1 and 2); those whom the Act
identifies  as parties (§ 23 para. 2 a 3 a § 24 para.  1  a  2)
become parties to the proceedings.
    In   the  petitioner's  opinion  the  legislature  did  not
adequately  consider  the range of cases which  this  provision
affects. By application of this provision in various procedural
situations  bankruptcy  creditors whose  non-executable  claims
were  denied in the review proceedings are placed in an unequal
position.  In some cases they find themselves in an  unsolvable
procedural situation, in other cases, on the contrary, they are
at an advantage compared to other bankruptcy creditors.
   In  its  petition, the High Court in Olomouc further  stated
that  § 24 para. 4 of the Bankruptcy and Settlement Act applies
if  proceedings on a denied claim were opened before bankruptcy
filings  were made ant those proceedings were suspended through
the  filing for bankruptcy. In the petitioner's opinion,  §  24
para.  4 does not take into account cases where a decision  was
already  made in the proceedings before the court of the  first
level and the decision has not yet gone into legal effect,  not
has  it  been  contested by an appeal,  by  a  protest,  or  by
objections. In these cases, the court is bound by the announced
decision  under § 156 para. 3 and § 170 para. 1  of  the  Civil
Procedure  Code In that situation, in the petitioner's  opinion
neither  the  parties nor the petition can be changed,  as  the
matter  has  already been decided. On the other hand,  however,
the  contested  provision prohibits opening new proceedings  on
the  denied claim. Therefore, the petitioner believes  that  in
this  case a creditor with a non-executable claim does not have
a  procedural opportunity to obtain a decision in  his  dispute
over the denied claim in bankruptcy proceedings.
   The  petitioner  also believes that §  24  para.  4  of  the
Bankruptcy  and Settlement Act can, however, lead to  violation
of  the  equality  of bankruptcy creditors,  not  only  to  the
disadvantage  of  the  creditor whose claim  was  at  issue  in
proceedings  before  the  filing for bankruptcy,  but  also  by
giving  him  an advantage over the other bankruptcy  creditors.
This  is  because § 24 para. 4 of the Bankruptcy and Settlement
Act  gives  the  court an obligation to specify the  circle  of
parties to the proceedings and issue the judgment verdict  even
without  a  petition. Therefore, in cases where the  bankruptcy
creditor  imprecisely or incorrectly formulates a  petition  to
continue  already  opened proceedings, §  24  para.  4  of  the
Bankruptcy  and Settlement Act gives him an advantage  compared
to  other  bankruptcy creditors whose claims were  also  denied
during the review proceedings.
   The petitioner sees the abovementioned facts as grounds  for
the  unconstitutionality  of  the contested  provision  of  the
Bankruptcy and Settlement Act, and it therefore petitioned  for
a  judgment which will annul § 24 para. 4 of the Bankruptcy and
Settlement Act in the presently valid wording.

II.
The reporting judge requested, in accordance with § 42 para.  4
and   §  69  para.  1  of  Act  no.  182/1993  Coll.,  on   the
Constitutional Court, as amended by later regulations, position
statements from both houses of the Parliament of the CR.

A)  The Chamber of Deputies, represented by its chairman, PhDr.
Lubomir Zaoralek, in its position statement of 10 October 2002,
stated that the legislature's motive for including § 24 para. 4
of  the  Bankruptcy  and Settlement Act on determination  of  a
disputed  claim within the already opened proceedings suspended
by  the  filing  for bankruptcy was to simplify and  make  more
economical  the  manner of addressing the  disputed  claim  for
purposes  of  bankruptcy.  In his opinion,  this  provision  is
supposed  to  make  possible  a  reduction  in  the  number  of
incidental  disputes where it would otherwise be  necessary  to
open  new proceedings through a separate complaint to determine
the  disputed claim. As a rule, a number of items  of  evidence
which  were  already presented in the suspended proceedings  on
the  same  claim  can  be  used. In  discussion  the  Act,  the
legislature began with the purposes of the Act and the aims  of
bankruptcy  proceedings, and was convinced that it was  meeting
the requirements of the Constitution of the CR a of the Charter
of Fundamental Rights and Freedoms.
   In  the  conclusion of his statement, the  chairman  of  the
Chamber of Deputies of the Parliament of the CR stated that Act
no.  105/2000  Coll.,  which amends  and  supplements  Act  no.
328/1991  Coll., on Bankruptcy and Settlement,  as  amended  by
later  regulations, was approved by the Chamber of Deputies  at
its  21st  session on 28 January 2000; 128 out of  152  present
voted  in favor or it. The Senate of the Parliament of  the  CR
approved the draft act submitted by the Chamber of Deputies  as
amended  by amending proposals at its 16th session on  1  March
2000,  and  the Chamber of Deputies subsequently  approved  the
draft  act  in the version approved by the Senate; out  of  181
deputies present, 98 voted in favor and 81 against. The Act was
thus  approved  by the necessary majority of  deputies  in  the
legislative   assembly,   was   signed   by   the   appropriate
constitutional  representatives, and was duly  promulgated.  In
the  opinion  of  the  Chamber  of  Deputies,  the  legislative
assembly  acted  in  the conviction that  the  passed  act  was
consistent   with  the  Constitution  of   the   CR   and   the
constitutional  order,  and  that  it  is  solely  up  to   the
Constitutional Court to evaluate the constitutionality  of  the
contested  provision in connection with the filed petition  and
to issue an appropriate decision.

B)  The  Senate  of the Parliament of the CR, in  its  position
statement  of  16  October 2002, signed by its  chairman,  doc.
JUDr. Petr Pithart, stated that the draft act was submitted  to
the  Senate on 7 February 2000. The Senate discussed the  draft
at  its  16th session of its second term of office, held  on  1
March 2000, and by resolution no. 302 returned the draft act to
the Chamber of Deputies with amending proposals. Out of a total
of 53 senators present, 52 voted to return the draft act and  1
senator  abstained from voting. The Chamber of  Deputies  again
discussed  the  draft act on 4 April 2000 at its 24th  session.
The  draft act, as amended by amending proposals, was  approved
by  Chamber of Deputies resolution no. 902; out of 181 deputies
present  98  deputies  voted  in favor  and  81  deputies  were
against.
   In  Senate committees, the issues of § 24 para. 4 of the Act
were  extensively  discussed in connection with  the  aim  that
"incidental" disputes always be decided by a court, even though
otherwise  these  were claims which a court did  not  have  the
authority to decide, which does not correspond to § 7  para.  1
of  the  Civil  Procedure  Code.  The  conception  under  which
bankruptcy   courts   should   decided   incidental   disputes,
including,  for  example also administrative  and  tax  claims,
appeared  inconsistent in relation to  §  24  para.  4  of  the
amendment  to  the Act, because, in the opinion of  some,  this
overlooked the fact that, under § 14 para. 1 let. c), not  only
judicial,  but  also  other proceedings, are  suspended.  Thus,
continuing  in the proceedings would take place not before  the
court,  but before the body (administrative, tax) at which  the
proceedings were opened.
  According to the Senate's statement, the committees concluded
that  the party proposing the Act apparently did not take  into
account  the  fact  that  any  outcome  of  a  dispute  on  the
authenticity, amount, or order of claims does not establish the
obstacle   of   pending  litigation  for  claims   applied   in
proceedings  which were suspended by the filing for bankruptcy.
This consequence appeared particularly important in a situation
where, under § 45 para. 2 of the Bankruptcy and Settlement Act,
claims  which  were  considered  ascertained  for  purposes  of
bankruptcy,  but  which  the bankrupt party  denied  after  the
cancellation  of bankruptcy proceedings, would not  be  grounds
for  execution. It was also pointed out in discussion that  the
wording of § 23 para. 2 last sentence may be in direct conflict
with  §  24  para. 4 of the Act, because in the  abovementioned
opinions  the order of a claim should be decided by a court  in
proceedings  which are being continued, and which need  not  be
judicial proceedings.
   As  the  chairman  of  the  Senate  stated  further  in  his
statement, despite the abovementioned discussions and proposals
to  delete  §  24 para. 4 from the draft act, subsequently  the
inclination  to retain the submitted wording of this  provision
prevailed  in  the  committees.  The  Senate  session  did  not
consider the issues further.

III.
Under  §  44  para.  2  of  Act  no.  182/1993  Coll.,  on  the
Constitutional  Court,  as amended by  later  regulations,  the
Constitutional Court can, with the consent of the parties, omit
oral  proceedings  if  they can not be expect  to  clarify  the
matter  further. Therefore, in accordance with this  provision,
the  Constitutional Court asked the parties to the  proceedings
for  a  statement as to whether they agreed with omitting  oral
proceedings.  By a filing of 5 March 2003, the  High  Court  in
Olomouc,  and by filings of 4 March 2003, likewise the  Chamber
of  Deputies of the Parliament of the Czech Republic and  of  7
March 2003, the Senate of the Parliament of the Czech Republic,
gave  their consent to omit oral proceedings in the adjudicated
matter.

IV.
Before  the  Constitutional  Court  turned  to  evaluating  the
content  of  the contested statutory provision in  the  aspects
defined  by  §  68 para. 2 of Act no. 182/1993  Coll.,  on  the
Constitutional Court, i.e. in terms of the consistency of §  24
para.   4   of   the   Bankruptcy  and  Settlement   Act   with
constitutional  statutes,  it  reviewed  whether   the   formal
requirements for passing the relevant legal norm had been met.
   The  draft act which amends and supplements Act no. 328/1991
Coll.,  on  Bankruptcy  and Settlement,  as  amended  by  later
regulations,  was  submitted to the Chamber of  Deputies  as  a
proposal  from deputies on 29 April 1999. From the stenographic
record  of  the  21st session of the Chamber of  Deputies,  3rd
election term, the Constitutional Court determined that  on  28
January  2000 the Chamber of Deputies, according to Chamber  of
Deputies   document  219,  as  amended  by  approved   amending
proposals, agreed with this draft; out of 152 deputies  present
128 voted for the draft and one deputy voted against it.
   The  stenographic report on the 16th session of the  Senate,
2nd  election term, showed that on 1 March 2000, the draft act,
together  with passed amending proposals, was returned  to  the
Chamber  of Deputies; out of 53 senators present, 52  voted  in
favor and one senator abstained from voting.
   From  the  stenographic record of the 24th  session  of  the
Chamber  of  Deputies,  3rd election term,  the  Constitutional
Court determined that the Chamber of Deputies, on 4 April 2000,
passed  the draft act which amends Act no. 328/1991  Coll.,  on
Bankruptcy and Settlement, as Amended by Later Regulations, and
Certain Other Acts, in the version approved by the Senate;  out
of 181 deputies present 98 voted in favor and 81 against.
   After being passed, Act no. 105/2000 Coll., which amends Act
no. 328/1991 Coll., on Bankruptcy and Settlement, as Amended by
Later  Regulations, and Certain Other Acts, was signed  by  the
appropriate  constitutional representatives  and  published  in
part 32 of the Collection of Laws, which was distributed on  25
April  2000. The Act went into effect, in accordance with  Art.
VIII., on 1 May 2000.
   Therefore, the Constitutional Court, under § 68 para.  2  of
the  Act  on  the  Constitutional Court,  found  that  Act  no.
105/2000 Coll., which inserted § 24 para. 4 into the Bankruptcy
and Settlement Act, was passed and issued within the bounds  of
the  legislative  jurisdiction of  the  Parliament  of  the  CR
prescribed   by  the  Constitution  of  the   CR   and   in   a
constitutionally  prescribed  manner,  as,  in  any  case,  the
Constitutional Court already stated in the matter Pl. US 36/01.

V. - A
The  provision of § 24 para. 4 was inserted into the Bankruptcy
and  Settlement  Act when it was amended by  Act  no.  105/2000
Coll.,  which amends Act no. 328/1991 Coll., on Bankruptcy  and
Settlement, as Amended by Later Regulations, and Certain  Other
Acts, with effect as of 1 May 2000. The contested § 24 para.  4
affects  situations  where a bankruptcy trustee  or  bankruptcy
creditor, in review proceedings, denied a non-executable  claim
of a creditor, arising from a claim which was registered in the
bankruptcy proceedings. If the bankruptcy creditor, before  the
bankruptcy filing was made, applied any part of this  claim  in
proceedings which were suspended by the bankruptcy proceedings,
it  is  impermissible to open new incidental  proceedings,  but
proceedings to determine the authenticity, amount or  order  of
the registered claim are to be conducted before the court which
conducted  the proceedings which were suspended by law  by  the
bankruptcy filing.
   As  indicated by the background report to Act  no.  105/2000
Coll.,  in  this  case it was the intent of the legislature  to
rationalize  and  make  more economical incidental  proceedings
caused by bankruptcy proceedings. The legislature's aim was  to
reduce  the  number of incidental proceedings so that  the  Act
would  permit  making use of the outcomes of proceedings  which
were  suspended  as a result of a bankruptcy filing,  and  thus
continue  on  from  the  proceedings on the  claim  which  were
conducted before the bankruptcy filing.
   It is also evident from the background report to the Act and
from the statements of the parties to the proceedings that  the
legislature  constructed § 24 para. 4  of  the  Bankruptcy  and
Settlement  Act in the conviction that in the future  it  would
not  be  necessary  to open new proceedings  to  determine  the
denied  claim, but that the original proceedings would continue
on from their current position, and, in particular, all factual
and other judgments would be used.
  The Constitutional Court agrees with the petitioner's opinion
that the legislature did not sufficiently consider the range of
all procedural situations to which the provision can apply, the
practical   consequences  of  that  concept,   but   also   its
constitutional law dimension.

V. - B
Art. 96 para. 1 of the Constitution of the CR enshrines, as one
of  the key principles of the functioning and implementation of
the  judicial power in the CR, the procedural principle of  the
equality   of   rights  in  parties  before  the  court.   This
constitutional  principle thus guarantees the equal  procedural
status  of  parties  in judicial proceedings concerning  rights
which   are  granted  to  parties  of  a  particular  type   of
proceedings  by  the  legal order. One can conclude  form  this
principle,  among  other  things, that  a  particular  type  of
proceedings  must have a single court jurisdiction,  understood
in the substantive and functional dimension, and that framework
must be implemented by statute.
   The  constitutional provision is supposed to  guarantee  the
institution  of  equality  in its procedural  form,  which,  of
course,  has  substantive law effects.  The  role  of  ordinary
statutes,   procedural  regulations,   is   to   transfer   the
constitutionally  protected  institution  of   equality,   thus
understood,  into procedural guarantees which will  ensure  the
fulfillment of this equality.
  It is evident that the legislature can set varying degrees of
procedural  rights  and  obligations  for  various   types   of
proceedings with different subject matter. In other words,  the
equality of parties to proceedings must be interpreted so  that
the  same  scope of procedural rights and obligations  must  be
observed  in  proceedings  which  match  the  same  subject  of
proceedings.   However,   it   is   impermissible    for    the
distinguishing  criterion to be, instead of the subject  matter
of  the  proceedings, the party himself – even if, for example,
defined by his procedural status in any previous proceedings.
   The  interpretation of Art. 38 para. 1  of  the  Charter  of
Fundamental  Rights  and  Freedoms  also  develops  from   this
interpretation  of Art. 96 para. 1 of the Constitution  of  the
CR, because determining the statutory judge must be preceded by
the constitutional statutory setting of court jurisdiction. The
principle   under   which  the  legal   regulation   of   court
jurisdiction  is  reserved to statute  includes  not  only  the
postulate  under which only a statute may set  the  powers  and
jurisdiction of a court to review a particular matter, but also
the   requirement  that  the  statute  define  such  power  and
jurisdiction  equally for all cases of the same  type  and  not
make  unjustified  differences in the jurisdiction  of  courts,
understood substantively and functionally.
   The  substantive jurisdiction of courts to  review  disputes
caused  by bankruptcy or settlement is governed by § 9 para.  3
of the Civil Procedure Code so that it is entrusted to regional
courts as courts of the first level. These disputes are,  among
other  things,  disputes to determine the authenticity,  amount
and  order  of  registered  claims  which  were  denied  during
bankruptcy proceedings. In these cases the bankruptcy  creditor
is  forced to exercise his claim by prescribed deadlines and to
observe   other  formal  requisites  in  special   (incidental)
proceedings  which  were  caused by the  bankruptcy.  In  these
cases,  under  the  abovementioned § 9 para.  3  of  the  Civil
Procedure  Code  and  §  23  para.  2  of  the  Bankruptcy  and
Settlement  Act, the court of substantive jurisdiction  is  the
bankruptcy court, i.e. basically the regional court.
   However, § 24 para. 4 of the Bankruptcy and Settlement  Act,
contested  by the petition, represents a special definition  of
the  substantive  jurisdiction of a court,  as  it  limits  the
conduct of special incidental proceedings before the bankruptcy
court  and  constructs  for the given type  of  disputes,  i.e.
disputes to determine the authenticity, amount and order  of  a
claim, the special substantive jurisdiction of the court  which
previously  conducted proceedings opened on the  claim  of  the
current  creditor with the denied claim, the subject  of  which
was connected to the denied non-executable claim.
   The  consequence  of  §  24 para. 4  is  the  fact  that  it
constructs  a  double  regime for substantive  jurisdiction  of
courts.  One  can conclude that the relationship  between  §  9
para.  3  of the Civil Procedure Code, § 23 para. 2  and  §  24
para.  4 of the Bankruptcy and Settlement Act is a relationship
between  a  general regulation (lex generalis)  and  a  special
regulation   (lex  specialis),  and  that  the   constitutional
requirement  of  statutory establishment of court  jurisdiction
was  observed.  However,  as was already  state  above,  it  is
impermissible for a statute to create an unjustified difference
n  defining  substantive  jurisdiction  for  cases  which  have
identical subject matter. The conception of the legal framework
of § 24 para. 4 of the Bankruptcy and Settlement Act creates  a
duality  of  substantive jurisdiction in disputes to  determine
the  authenticity,  amount  and  order  of  claims  denied   in
bankruptcy proceedings. Yet, in terms of the subject matter  of
proceedings, these disputes are the same. Application of  §  24
para.  4  of  the Bankruptcy and Settlement Act thus  causes  a
difference   in   the  substantive,  and  possibly   functional
jurisdiction,  where  in one case the regional  court,  as  the
bankruptcy  court,  decides in incidental proceedings,  and  in
another the district court decides, if it conducted proceedings
opened  on a complaint from the current creditor with a  denied
claim, the subject of which was related to the denied claim and
which  were  suspended by the bankruptcy filing. In that  case,
the  decision making to determine the authenticity, amount  and
order  of  the denied claim is concentrated at the court  which
had   subject  matter  and  territorial  jurisdiction  in   the
original, suspended proceedings, i.e. at a court which  is  not
the   bankruptcy   court.   Subject  matter   and   territorial
jurisdiction  established under § 24 para. 4 of the  Bankruptcy
and  Settlement  Act thus derives from the subject  matter  and
territorial, or sometimes functional, jurisdiction of the court
in  the  preceding  proceedings, which were  suspended  by  the
bankruptcy  filing under § 14 para. 1 let. c) of the Bankruptcy
and  Settlement  Act;  in fact, however, it  derives  from  the
status   of   the  creditor  as  plaintiff  in   the   original
proceedings.
   This  conception  leads  to  inequality  in  the  procedural
position  of  individual creditors who exercise in court  their
denied,   non-executable  claims  under  different   procedural
regimes.
   This  is because § 24 para. 4 sets the circle of parties  to
the  proceedings  ex  lege (i.e. those  persons  whom  the  Act
identifies as parties to the proceedings become parties to  the
proceedings), and the court thus has the obligation  itself  to
newly identify parties to the proceedings, and itself to remove
defects in the petition to continue the proceedings if it  does
not contain the appropriate requisites (e.g. identification  of
the  parties, a proposed judgment, etc.), in a situation  where
the  original petition to open proceedings on the  claim  which
was related to the denied claim suffered from defects which the
plaintiff   did   not  remove.  In  contrast,   in   incidental
proceedings the creditor has the obligation, under § 23 of  the
Bankruptcy  and  Settlement  Act,  to  precisely  identify  the
parties  to  the proceedings and precisely specify  the  entire
claim  by a specified deadline. It is evident from this that  a
party  to  the proceedings (creditor), who filed a petition  to
continue  proceedings under § 24 para. 4 of the Bankruptcy  and
Settlement  Act  finds  himself in an  advantaged  position  in
comparison  with  a  party to the proceedings  (creditor),  who
files  a  petition  to  open  special (incidental)  proceedings
before  the  bankruptcy  court  under  §  23  para.  2  of  the
Bankruptcy and Settlement Act.
   The  procedural inequality of creditors who  exercise  their
denied,   non-executable  claims  under  different   procedural
regimes  is  also  caused  by  the fee  obligations  under  the
regimes.  If  the  original proceedings  were  suspended  in  a
situation  where  the creditor, as a party to the  proceedings,
had not yet met his statutory fee obligation, and then filed  a
petition to continue the proceedings under § 24 para. 4 of  the
Bankruptcy   and  Settlement  Act,  he  will  be  unjustifiably
advantaged   in  comparison  to  a  creditor  on  whose   claim
incidental  proceedings are being opened.  This  is  because  a
petition to continue suspended proceedings does not, under  Act
no.  549/1991  Coll.,  on  Court  Fees,  as  amended  by  later
regulations, create a fee obligation for the party, and despite
the fact that the fee was not paid in the original proceedings,
the   court  will  be  required  to  decide  the  matter.   The
consequence  of  not  paying the court fee  in  the  incidental
proceedings, in contrast, will be that the proceedings will  be
stopped. In a situation where the party paid a higher court fee
in the original proceedings than he would be required to pay in
incidental  proceedings, this discrepancy can not  be  removed,
because  it is impossible to perform acts in proceedings  which
are suspended by law.
   This conception, with the consequences of unequal rights and
obligations   of  parties  to  proceedings  to  determine   the
authenticity,  amount  and  order  of  a  denied   claims,   is
inconsistent  with Art. 96 para. 1 of the Constitution  of  the
CR,  whose  content, concerning the extent of its  effect,  was
laid out above. The legislature impermissibly assigns different
procedural  rights  and obligations to parties  to  proceedings
with  the  same  subject  matter,  which  sometimes  leads   to
advantages,  sometimes to disadvantages, for  various  parties.
Yet,  the  different procedural regime derives solely from  the
procedural  status of a creditor in preceding proceedings,  the
subject matter of which was only related to the denied claim.
   The current decision making practice of courts when applying
§  24  para. 4 of the Bankruptcy and Settlement Act shows  that
the  unconstitutionality of this provision can not be  overcome
by an interpretation which would be constitutional.
   The  unconstitutional consequences of the framework are  not
removed  by  the interpretation applied by some general  courts
(see,  for example, Resolution of the High Court in Olomouc  of
10  September 2002, file no. 4 Cmo 305/2002), under which §  24
para.  4  of  the Bankruptcy and Settlement Act  establishes  a
special  type  of  "proceedings within proceedings,"  that  is,
proceedings which differ from the original proceedings in their
subject matter and circle of parties and which are connected to
the original proceedings only ex lege, while the subject of the
previous proceedings is not subsumed in the proceedings under §
24  para. 4 of the Bankruptcy and Settlement Act, and they  can
be   continued   after  the  bankruptcy   is   finished.   This
interpretation  does not remove the abovementioned  discrepancy
in rights and obligations of the parties to "proceedings within
proceedings" and incidental proceedings.

V. - C
Art.  37  para.  3  of  the Charter of Fundamental  Rights  and
Freedoms  provides that all parties to proceedings  are  equal.
This provision of the Charter must be interpreted to the effect
that  this is a principle which guarantees the equal procedural
rights  and  obligations of particular  parties  in  particular
proceedings.  In  this, this provision of the  Charter  differs
from  Art.  96  para.  1 of the Constitution,  which  generally
foresees  the equality of parties in proceedings with the  same
subject matter, as laid out above.
   The  ultimate effect of applying § 24 para. 4,  compared  to
applying  §  23  para. 2 of the Bankruptcy and  Settlement  Act
(incidental proceedings) is to establish the unequal status  of
creditors  falling  under  these two  procedural  regimes  when
satisfying their claims within schedule proceedings  (§  30  of
the Bankruptcy and Settlement Act). If an incidental dispute is
understood  as formalized evidentiary proceedings, the  results
of  which  are  binding on the bankruptcy  court,  then  it  is
evident that the original procedural duality established by the
Act  also  has effects, in terms of equality, on the procedural
status of creditors in the particular bankruptcy proceedings.

VI.
Therefore, the Plenum of the Constitutional Court, with  regard
to  the foregoing situation, decided, under § 70 para. 1 of Act
no. 182/1993 Coll., on the Constitutional Court, as amended  by
later regulations, to annul § 24 para. 4 of the Bankruptcy  and
Settlement  Act,  in its present wording, due to  inconsistency
with Art. 96 para. 1 of the Constitution of the CR and Art.  37
para. 3 of the Charter of Fundamental Rights and Freedoms; this
judgment shall become executable on the day it is published  in
the Collection of Law.
  However, in this regard, the Constitutional Court also had to
deal  with the question of what influence the annulment of this
provision  would have on proceedings conducted by courts  whose
jurisdiction was established by the contested provision.
   If  already  opened proceedings conducted  by  courts  whose
jurisdiction was established by the contested provision were to
continue  in  the current regime, even after the Constitutional
Court judgment which annuls § 24 para. 4 of the Bankruptcy  and
Settlement  Act  became  executable,  this  would  lead  to   a
continuation of the unconstitutional inequality created by that
provision.  Therefore, the Constitutional  Court  states  that,
when   the   judgment  becomes  executable,   the   substantive
jurisdiction  of  courts established by § 24  para.  4  of  the
Bankruptcy and Settlement Act ceases to have a statutory basis.
  However, at the same time the Constitutional Court emphasizes
that the general courts, in resolving this procedural situation
must act so that their procedure does not permit justice to  be
denied  (denegationis iustitiae). A procedure whereby  a  court
would   prevent  a  party  of  proceedings  in  progress   from
exercising  the  opportunity to exercise his rights  before  an
independent and impartial court, as guaranteed by Art. 36 para.
1 of the Charter of Fundamental Rights and Freedoms, would mean
a  violation  of a party's right to a fair trial,  and  in  its
consequences  would violate the principles of a state  governed
by  the rule of law (Art. 1 para. 1 of the Constitution of  the
CR).   Such   a   procedure  would   thus   lead   to   further
unconstitutional consequences.

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

Brno, 11 March 2003