Pl. ÚS 36/01


1)  The  public  purpose of the institution of  the  bankruptcy
trustee  must  be  seen  in the acceptance  of  limited  public
interference into resolving property rights which have  reached
a  critical  state. The manner of the trustee’s appointment  is
provided  by  a decision by a state body (court).  His  powers,
which  are  established  in  a  number  of  provisions  in  the
Bankruptcy and Settlement Act (§ 14, § 17 to 20, § 24, § 26  to
29), in view of their heteronomous nature (the trustee can  not
be  considered  the  representative of  the  creditors  or  the
bankrupt),  are  an exercise of authority (in contrast  to  the
heteronomous  nature of public law acts,  private  law  acts  –
legal   acts   –   are  of  an  autonomous  nature).   From   a
constitutional  viewpoint,  performance  of   the   office   of
bankruptcy trustee on the basis of court appointment can not be
classified  as  labor  or  service  imposed  by  law  for   the
protection the rights of others under Art. 9 para. 2 let. d) of
the Charter of Fundamental Rights and Freedoms (the “Charter”).
Performance of the office of bankruptcy trustee is not part  of
an  employment relationship, and thus does not fall within  the
content,  purpose or meaning of Art. 26 of the Charter.  It  is
not  the  conduct of business or the conduct of other  economic
activity,  and  thus, in constitutional terms  it  can  not  be
classified in the framework defined by Art. 26 of the Charter.
     In view of the diversity of purposes of public offices, no
safeguards  automatically arise from the  constitutional  order
concerning  the  source  of remuneration  and  compensation  of
expenses  related  to  their performance,  nor  do  safeguards,
concerning their structure and amount. Nonetheless,  the  maxim
of  proportionality arises for remuneration and compensation of
expenses related to the performance of public offices from  the
constitutional  principle  of  non-accessory  equality,   whose
function  is  ruling  out arbitrariness  on  the  part  of  the
legislature in differentiating subjects of law and rights.
2)  The  constitutional basis of a general incorporative  norm,
and  thereby  the overcoming of the dualistic  concept  of  the
relationship between international and domestic law, can not be
interpreted  in  terms  of  removing  the  reference  point  of
ratified  and  promulgated international  agreements  on  human
rights  and fundamental freedoms for the evaluation of domestic
law  by  the Constitutional Court with derogative results.  The
scope   of  the  constitutional  order  concept  can   not   be
interpreted  only  with  regard  to  §  112  para.  1  of   the
Constitution, but must be interpreted in view of Art. 1 para. 2
of  the  Constitution and must include ratified and promulgated
international  agreements  on  human  rights  and   fundamental
freedoms.
  For these reasons Art. 95 para. 2 of the Constitution must be
interpreted  to  the  effect  that  a  general  court  has   an
obligation   to  present  to  the  Constitutional   Court   for
interpretation a matter in which it concludes that a law  which
is  to  be used in resolving the matter is in conflict  with  a
ratified  and  promulgated  international  agreement  on  human
rights and fundamental freedoms.
<
    
    
The  Plenum  of  the Constitutional Court, without  a  hearing,
decided on 25 June 2002 in the matter of the petition from  the
Prague High Court to annul § 5 para. 1 second sentence and §  8
para.  3  second  sentence  of  Act  No.  328/1991  Coll.,   on
Bankruptcy and Settlement, as amended by later regulations,  as
follows:
    
Section  5  para.  1 second sentence and §  8  para.  3  second
sentence   of  Act  No.  328/1991  Coll.,  on  Bankruptcy   and
Settlement, as amended by later regulations, are annulled as of
31 March 2003.
                               
                           Reasoning
                               
                              I.

On  23  November  2001  the  Constitutional  Court  received  a
petition from the Prague High Court to annul § 5 para. 1 second
sentence  and  § 8 para. 3 second sentence of Act No.  328/1991
Coll.,  on  Bankruptcy  and Settlement,  as  amended  by  later
regulations, (the “Bankruptcy and Settlement Act”).
    A Panel of the Prague High Court, in proceedings concerning
the  appeal  of a bankruptcy trustee, JUDr. V. L., an  attorney
with  his registered office in Prague, against the decision  of
the  Prague City Court of 17 April 2001, file no. 99 K 76/2000-
28,  in  the  matter  of  bankruptcy  of  the  company  Bohemia
Enterprises,  s.  r. o., with its registered office  in  Prague
(the   “bankrupt”),  conducted  at  the  Prague   City   Court,
concluded,  under  Art. 95 para. 2 of the Constitution  of  the
Czech  Republic (the “Constitution”), that § 5 para.  1  second
sentence and § 8 para. 3 second sentence of the Bankruptcy  and
Settlement Act are in conflict with Art. 9, Art. 26 and Art. 28
of   the  Charter  of  Fundamental  Rights  and  Freedoms  (the
“Charter”), due to which, under § 109 para. 1 let.  c)  of  the
Civil Procedure Code  it interrupted the proceedings and, under
95  para.  2  of  the Constitution and § 64  para.  4  Act  No.
182/1993  Coll.,  on the Constitutional Court,  as  amended  by
later  regulations, submitted the matter to the  Constitutional
Court.   Together  with  the  petition  to  annul   the   cited
provisions,  Prague  City  Court file  no.  99  K  76/2000  was
submitted to the Constitutional Court.
   The  reporting  judge  determined  the  following  from  the
submitted  file  and petition: By decision of 6 February  2001,
file  no.  99  K  76/2000-11,  the  Prague  City  Court  opened
bankruptcy  proceedings  against the  bankrupt,  and  appointed
JUDr.  V. L., an attorney with his registered office in  Prague
as the trustee (the “trustee”). A decision by the same court of
17 April 2001, file no. 99 K 76/2000-28, approved the trustee’s
excluding  from  the  bankruptcy  estate  the  bankrupt’s  non-
collectible  receivable and three telephone cards (verdict  I.)
and  cancelled  the bankruptcy proceedings due to  insufficient
assets  under  §  44  para. 1 let. d)  of  the  Bankruptcy  and
Settlement  Act  (verdict  II). The  court  also  approved  the
accounting of the trustee’s cash expenses in the amount of  CZK
1,193.60 and his remuneration in the amount of CZK 10,000,  and
stated that these receivables of the trustee would not be  met,
as  the  bankruptcy  estate  were not  sufficient  to  pay  the
expenses  of  the  bankruptcy proceedings (verdict  III.),  and
charged  the  trustee to inform the court  within  thirty  days
whether  he  had  closed the accounting  records  and  compiled
closing  accounting statements (verdict IV.). In the  reasoning
of  its  decision, concerning verdict III., it stated that  the
trustee’s   claims  for  payment  of  his  cash  expenses   and
remuneration,  although they had been  awarded  by  the  court,
could not be satisfied, as no assets from the bankruptcy estate
had  been  converted  to money and, on the contrary,  the  only
assets  had  been excluded from the inventory of the bankruptcy
estate.  The trustee’s claims also could not be satisfied  from
the  deposit for bankruptcy expenses, because it had  not  been
paid  in  the  matter,  as  the petitioner  seeking  bankruptcy
proceedings, as a creditor of the bankrupt seeking satisfaction
of  a  wage  claim, was exempt from that obligation under  §  5
para. 1 of the Bankruptcy and Settlement Act.
     The  trustee filed an appeal against verdict  III  of  the
Prague  City  Court’s decision of 17 April 2001,  file  no.  99
K 76/2000-28, in which he pointed to the fact that the decision
in  the verdict is not executable, as the trustee’s claim  will
not,  nor  can  it,  be  paid by anyone, although  the  trustee
fulfilled all the obligations imposed on him by law and imposed
on  him  by  the  court. He objected that the  decision  is  in
conflict  with  Art. 26 of the Charter and  proposed  that  the
appeals  court change the decision of the court  of  the  first
level  in  the  contested  scope, and  decide  that  the  Czech
Republic  is  required  to  pay  the  trustee’s  expenses   and
remuneration.
     The Prague High Court, as the appeals court, reviewed  the
appealed decision and the proceedings preceding it under §  212
Civil  Procedure Code (the matter is conducted  at  that  court
under  file  no.  1 Ko 257/2001) and found, as already  stated,
that  it is appropriate to proceed under § 109 para. 1 let.  c)
of the Civil Procedure Code.
     In the opinion of the petitioner in the proceedings before
the Constitutional Court, in this case there is no dispute that
the  trustee  is entitled, under § 8 para. 3 first sentence  of
the   Bankruptcy  and  Settlement  Act,  to  remuneration   and
compensation of cash expenses, which, in constitutional  terms,
is justified by Art. 9, Art. 26 and Art. 28 of the Charter. The
petitioner points out in this regard that the trustee  did  not
raise  any  objections against that part  of  the  Prague  City
Court’s decision which is based on the cited provision  of  the
Bankruptcy  and Settlement Act and § 8a of Decree no.  476/1991
Coll.,  which  implements certain provisions of the  Bankruptcy
and  Settlement Act, as amended by later regulations, by  which
the  court  approved  the  accounting  of  the  trustee’s  cash
expenses  and  his remuneration. The petitioner  considers  the
question  of  whether the trustee in such a  situation  can  be
completely  denied compensation which he would  certainly  have
received in a case where there were funds from which to satisfy
the  claim  as fundamental for evaluating the justification  of
the  appeal, given the undisputed factual state of the  matter,
where  there are no resources in the bankruptcy estate and  the
deposit for bankruptcy expenses was not paid.
     Section § 8 para. 3 second sentence of the Bankruptcy  and
Settlement Act merely sets an exclusive range of resources from
which  the trustee’s lawful claims can be satisfied, which,  in
the  petitioner’s opinion, can be accepted only  in  the  event
that  at least one of these resources contains means which  can
be  used  to pay the trustee’s claims. According to the  Prague
High  Court, in order that fundamental rights arising from Art.
9,  Art. 26 and Art. 28 of the Charter not be affected,  it  is
necessary  to require that nobody be exempt a priori  from  the
obligation  to  pay  a  deposit for  bankruptcy  expenses.  The
existence  of this situation is made possible by §  5  para.  1
second sentence of the Bankruptcy and Settlement Act. Aware  of
the  need for an instrument to remove harshness, the petitioner
notes  in  this  regard  that the court need  not  require  the
deposit  (or  need not stop proceedings due to the deposit  not
being  paid)  in  those  cases where there  are  funds  in  the
bankruptcy estate from which bankruptcy expenses can be paid.
     The  Prague  High  Court believes that a legal  regulation
which  exempts some persons from paying a deposit and does  not
permit  satisfying  the trustee’s lawful and  justified  claims
even from the funds of the state, a body of which appointed the
thus-injured person to the position of trustee, is in  conflict
with Art. 9, Art. 26 and Art. 28 of the Charter. Therefore, the
court  proceeded in this matter under § 109 para. 1 let. c)  of
the  Civil Procedure Code, § 66a para. 1 and 66b para. 3 of the
Bankruptcy   and   Settlement   Act,   and   filed   with   the
Constitutional Court, under Art. 95 para. 2 of the Constitution
and  § 64 para. 4 Act No. 182/1993 Coll., on the Constitutional
Court, as amended by later regulations, a petition to annul § 5
para  1 second sentence and § 8 para. 3 second sentence of  the
Bankruptcy and Settlement Act.

                              II.

Under  §  42  para.  3 and § 69 of Act No. 182/1993  Coll.,  as
amended  by later regulations, the Chamber of Deputies and  the
Senate  of  the  Parliament  of  the  CR,  as  parties  to  the
proceedings, presented their positions on the petition .


                             III.

Under  §  44  para. 2 of Act No. 182/1993 Coll., as amended  by
later  regulations,  the Constitutional  Court  may,  with  the
consent  of the parties, dispense with a hearing, if no further
clarification of the matter can be expected from one.  In  view
of  the fact that this provision could be applied to evaluation
of  the  present  matter, the Constitutional Court,  after  the
statements from the parties, dispensed with a hearing.
…..
                              IV.

The  Constitutional Court first considered, under § 68 para.  2
of  Act  No.  182/1993 Coll., as amended by later  regulations,
whether  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  passed  and  issued
within  the  bounds of constitutionally prescribed jurisdiction
and in a constitutionally prescribed manner. The Constitutional
Court  stated  that  the Act was passed and issued  within  the
bounds  of constitutionally prescribed jurisdiction  and  in  a
constitutionally prescribed manner.
    
                              V.

The   text  of  the  contested  statutory  provisions  is   the
following:
     Under  §  5 para. 1 second sentence of the Bankruptcy  and
Settlement  Act:  “If the petitioner’s claim arises  from  wage
claims, the petitioner is exempt from paying the deposit,  with
the exception of employees stated in § 67b.“
     Under  §  8 para. 3 second sentence of the same Act:  “The
trustee’s  claims  are satisfied out of the bankruptcy  estate,
and  if  it  is not sufficient, from the deposit for bankruptcy
expenses paid by the petitioner.”

                              VI.

The purpose of the Bankruptcy and Settlement Act, under § 1  of
Act No. 328/1991 Coll., as amended by later regulations, is the
regulation  of  the property relationships of a debtor  who  is
bankrupt. A debtor is bankrupt if he has multiple creditors and
is  not  able, over a lengthier period, to meet his obligations
when they come due . A natural person, if an entrepreneur, or a
legal   entity  is  bankrupt  if  it  is  over-indebted.  Thus,
bankruptcy  proceedings  are a special procedure,  involving  a
certain public law interference for purposes of regulating  the
property relationships of all entities affected by the debtor’s
bankruptcy.
     A  mandatory  component of bankruptcy proceedings  is  the
appointment of a bankruptcy trustee (§ 8 of the Bankruptcy  and
Settlement  Act). The opinions of case law and  doctrine  agree
that  the  bankruptcy trustee is not a party to the  bankruptcy
proceedings; however, as a special procedural subject he has an
independent  status both vis-ŕ-vis the bankrupt  and  vis-ŕ-vis
the  creditors,  and  he  can  not  be  considered  to  be  the
representative  of the creditors or the representative  of  the
bankrupt (see the position of the Supreme Court file nNo.  Cpjn
19/98,   published  in  the  Collection  of   Court   Decision.
no.  7/1998; K. Eliáš, Bankruptcy. Lawyer , no. 2/1995, p. 123;
F.  Zoulík, The Bankruptcy and Settlement Act. Commentary.  3rd
ed.,  Prague  1998,  p. 63-70; J. Zelenka,  J.  Maršíková,  The
Bankruptcy   and   Settlement  Act  and  Related   Regulations.
Commentary. Prague 2002, p. 159).
     Doctrine categorizes the bankruptcy trustee among  special
public law bodies, and his task is to ensure the proper conduct
of  the  bankruptcy  proceedings  (see  K.  Eliáš,  Bankruptcy.
Lawyer, no. 2/1995, p. 123; H. Hrstková, R. Tománek, Some Basic
Issues  of the Bankruptcy and Settlement Act. Law and Business,
no.  10/1994, p. 27 et seq.; Fr. Štajgr, Bankruptcy Law. Prague
1947, p. 71).
      The   Constitutional  Court  agrees  with  the  doctrinal
definition, taking as a starting point the aspects defining the
concept of a public law body: They are a public purpose, manner
of  establishment, and authorization. The public purpose of the
institution  of  the bankruptcy trustee must  be  seen  in  the
acceptance  of  limited  public  interference  into   resolving
property rights which have reached a critical state. The manner
of  the  trustee’s appointment is provided by a decision  by  a
state  body  (court). His powers, which are  established  in  a
number  of provisions in the Bankruptcy and Settlement  Act  (§
14,  §  17  to  20,  §  24,  § 26 to  29),  in  view  of  their
heteronomous  nature  (the trustee can not  be  considered  the
representative  of  the  creditors or  the  bankrupt),  are  an
exercise  of authority (in contrast to the heteronomous  nature
of  public law acts, private law acts – legal acts – are of  an
autonomous nature).
    The trustee is a natural person or legal entity, registered
in  the  list  of trustees, appointed by a court (§  8  of  the
Bankruptcy  and  Settlement Act).  A  trustee  is  entitled  to
remuneration and compensation of cash expenses (§ 8 para. 3  of
the Act). These are then part of the bankruptcy expenses. Under
§  8 para. 3 of the Bankruptcy and Settlement Act the trustee’s
claims  are satisfied from the bankruptcy estate, and, if  that
is  not  sufficient,  from the deposit for bankruptcy  expenses
paid by the petitioner.
     The  Act  establishes  an exception  to  the  petitioner’s
general  obligation  to pay a deposit for bankruptcy  expenses,
under which, if the petitioner’s claim is based on wage claims,
the  petitioner  is  exempt from paying the deposit,  with  the
exception  of  the  debtor’s management employees  and  related
persons (§ 5 para. 1 of the Bankruptcy and Settlement Act). The
purpose  of  this  exception, as pointed out  by  the  Senate’s
position,  was the need for increased protection for employees’
wage  claims (which was also reflect in § 32 of the  Bankruptcy
and  Settlement Act). In this regard, the Constitutional  Court
shares the legislature’s conviction, that exemption from paying
the deposit for bankruptcy expenses in the cited cases, and the
purpose  which the legislature pursued with this provision,  is
not  in conflict with the constitutional order, in view of  the
petitioner’s arguments particularly with Art. 9,  Art.  26  and
Art. 28 of the Charter.
     The  cited  legal  construction makes it  possible  for  a
situation  to arise where no assets from the bankruptcy  estate
are  converted to money and the deposit for bankruptcy expenses
was  not  paid,  as  the  petitioner  seeking  the  opening  of
bankruptcy  proceedings, as a creditor of the bankrupt  seeking
satisfaction  of a wage claim, was exempt from this  obligation
under  §  5  para. 1 of the Bankruptcy and Settlement  Act.  In
these circumstances § 8 para. 3 second sentence of the Act does
not   establish  another  alternative  source  from  which  the
trustee’s claims can be satisfied.
     In  this regard we must point to the developments in legal
regulation of bankruptcy and settlement, which in the amendment
of  Act  No. 328/1991 Coll., enacted by Act No. 94/1996  Coll.,
abandoned  the  finding principle in bankruptcy proceedings  in
determining  the  debtor’s  assets  before  opening  bankruptcy
proceedings.  According to the explanatory  report  to  §  12a,
newly  inserted by the amendment “in the future the court  will
not have the obligation, before opening bankruptcy proceedings,
to  determine the extent of assets, but shall deny the petition
only  if  there  is an evident lack of necessary  assets”.  The
purpose  of  this amendment was not only to speed up bankruptcy
proceedings, but in particular to eliminate having  the  office
of bankruptcy trustee filled by the court.
    The first question which must be answered in this matter is
whether  performance  of the position of a  bankruptcy  trustee
constitutionally falls within the framework defined in  Art.  9
para. 2 of the Charter, or Art. 4 para. 3 of the Convention for
the  Protection of Human Rights and Fundamental  Freedoms  (the
“Convention”).
    If the grounds under Art. 9 para. 2 of the Charter have not
been  met,  under  paragraph 1 of the  same  provision  of  the
Charter  no  one may be subjected to forced labor  or  service.
Analogously,  under  Art. 4 para. 2 of the Convention,  no  one
shall  be  required to perform forced or compulsory labor,  and
“forced or compulsory labor” are, under Art. 4 para. 3  of  the
Convention,  not  considered to be precisely defined  areas  of
labor and services.
     The  Constitutional Court expressed  a  position  for  the
interpretation  of the provisions concerned, in  a  matter  the
subject of which was the issue of determining remuneration  and
compensation  of  cash  expenses of defense  counsel  appointed
under § 39 of the Criminal Procedure Code, , in file no. Pl. ÚS-
st.-1/96.  It  stated  that Art. 40  para.  3  of  the  Charter
represents a special constitutional guarantee of the  right  to
defense  counsel,  and Art. 9 para. 2 let. d)  of  the  Charter
enshrines   the  constitutional  mechanism  for  ensuring   it.
According  to  it, the case of conduct imposed by  the  law  to
protect  the rights of others does not involve forced labor  or
service.  In the case of compulsory defense, there is thus  not
forced  labor, because the grounds for compulsory  defense,  as
well  as  the  procedure  for  appointing  defense  counsel  in
fulfilling  them,  are provided by law(§ 36  et  seq.  Criminal
Procedure  Code), for the protection of the right to a  defense
(Art. 40 para. 3 of the Charter). Art. 9 para. 2 of the Charter
represents an instrument for protection an entire range of very
diverse  values  (for  example, an  instrument  for  protecting
national   defense,  removing  the  consequences   of   natural
disasters,  accidents, protection of life, health or property).
One  can imagine situations under Art. 9 para. 2 of the Charter
in  which  no  compensation would be provided (for example,  in
removing  the  consequences of natural  disasters).  Thus,  the
criterion by which the legislature should be guided in  setting
compensation for actions under Art. 9 para. 2 of the Charter is
not  the  principle  of  equivalence,  but  the  principle   of
proportionality.  The  decisive aspect  from  a  constitutional
viewpoint  is  whether any inconsistency between the  scope  of
work  and services and the compensation affects Art. 9 para.  2
let.  d)  of  the Charter with an intensity that  violates  the
principle  of  proportionality, i.e. in a manner  connecting  a
disproportionate burden of labor with the level of compensation
and   compensation  of  cash  expenses.  In  this  regard,  the
Constitutional  Court  also  pointed  to  the  analogous  legal
opinion  stated by the European Court of Human  Rights  in  the
matter  of  Van  der Mussele v. Belgium (1983).  Based  on  the
nature  of  the  matter,  the Constitutional  Court  ruled  out
application  of  Art. 28 of the Charter to  evaluation  of  the
present matter.
     In  the  Constitutional Court’s opinion, the legal opinion
expressed  in  file no. Pl. ÚS-st.-1/96 does not apply  to  the
matter  of the constitutionality of § 5 para. 1 second sentence
and  §  8  para.  3  second  sentence  of  the  Bankruptcy  and
Settlement Act. From a constitutional viewpoint, performance of
the  office  of  bankruptcy  trustee  on  the  basis  of  court
appointment  can not be classified as labor or service  imposed
by  law  for the protection the rights of others under  Art.  9
para. 2 let. d) of the Charter.
    Under § 8 para. 1 of the Bankruptcy and Settlement Act, the
trustee  is  chosen from a list of trustees maintained  by  the
court  of jurisdiction, and a natural person or company can  be
entered in the list only if he/it agrees to be listed. A person
registered on the list may refuse appointment as a trustee only
if  there  are  important reasons for doing so. In  exceptional
cases  a court may also appoint as trustee a person who is  not
on  the  list  of  trustees, if he/it  agrees.  This  mechanism
ensures  either the implicit, prior general consent to  perform
the  position of trustee, or specific consent for a given case.
For these reasons performance of the position does not meet the
element  of  lack of consent as a condition for performance  of
labor  or  services  under Art. 9 para. 2 of  the  Charter,  or
Art. 4 para. 3 of the Convention.
    Performance of the office of bankruptcy trustee is not part
of  an  employment relationship, and thus does not fall  within
the  content, purpose or meaning of Art. 26 of the Charter.  It
is not the conduct of business or the conduct of other economic
activity,  and  thus, in constitutional terms  it  can  not  be
classified in the framework defined by Art. 26 of the Charter.
     If  we  take  as a starting point the proposition  that  a
bankruptcy  trustee can be categorized as a special public  law
body, then from a constitutional law viewpoint the question  of
constitutional  safeguards of remuneration and compensation  of
expenses  related to the performance of public positions  is  a
key question for the matter.
     These  safeguareds  are given by  the  substance  of  laws
arising  from the constitutional principle of equality (Art.  1
and  Art.  3  para.  1  of the Charter).  In  interpreting  the
constitutional  principle of equality the Constitutional  Court
agreed  (particularly in judgments in matters under  file  nos.
Pl.  ÚS 16/93, Pl. ÚS 36/93, Pl. ÚS 5/95 and Pl. ÚS 9/95)  with
the  interpretation of the constitutional principle of equality
as  it was expressed by the Constitutional Court of the CSFR (R
11,  1992):  “It  is a matter for the state to decide,  in  the
interest of securing its functions, that it will provide  fewer
advantages  to a particular group than to another.  Even  here,
however,  it  may  not  proceed arbitrarily.  ...  If  the  law
determines  the success of one group and thereby simultaneously
imposes  disproportionate  obligations  on  another,  this  may
happen   only   with   reference   to   public   values.”   The
Constitutional    Court    thereby   rejected    an    absolute
interpretation  of  the  principle  of  equality,  and  further
stated: “the equality of citizens can not be understood  as  an
abstract  category,  but as relative equality,  as  all  modern
constitutions understand it” (Pl. ÚS 36/93). Thus,  it  shifted
the  substance of the principle of equality into  the  area  of
constitutional  admissibility  of  ground  for  differentiating
subjects  of law and rights. It thus sees the first  ground  in
ruling  out  arbitrariness. The second ground arises  from  the
legal  opinion expressing in the judgment in the  matter  under
file  no. Pl. ÚS 4/95: “inequality in social relationships,  if
it  is  to  affect  fundamental human  rights,  must  reach  an
intensity  which  casts doubt upon, at least  in  a  particular
aspect, the very substance of equality. As a rule, this happens
when the violation of equality is connected to the violation of
another fundamental right, e.g. the right to own property under
Art.  11  of  the  Charter, one of the political  rights  under
Art.  17  et  seq.  of  the  Charter,  and  so  on.”  (likewise
Pl.   ÚS   5/95).   The   second  ground  in   evaluating   the
unconstitutionality  of  a legal regulation  which  establishes
inequality is whether it affects one of the fundamental  rights
and   freedoms.   In  other  words,  in  its   case   law   the
Constitutional Court interprets the constitutional principle of
equality in the sense of accessory and non-accessory equality.
     In view of the diversity of purposes of public offices, no
safeguards  automatically arise from the  constitutional  order
concerning  the  source  of remuneration  and  compensation  of
expenses  related  to  their performance,  nor  do  safeguards,
concerning their structure and amount. (e.g. under § 108 of the
Notarial  Code,  in connection with § 11 to 14  of  Decree  no.
106/2001  Coll., on Remuneration and Compensation  of  Notaries
and Estate Administrators, as amended by later regulations, the
remuneration of a notary, as a court commissioner, is  paid  by
the  person who requests the performance of a notarial act; the
state  does  so exceptionally, in cases of death). Nonetheless,
the  maxim  of  proportionality  arises  for  remuneration  and
compensation of expenses related to the performance  of  public
offices  from  the  constitutional principle  of  non-accessory
equality,  whose  function is ruling out arbitrariness  on  the
part of the legislature in differentiating subjects of law  and
rights.
   Insofar  as there is a constitutional purpose for the  legal
regulation permitting bankruptcy proceedings in a case where no
assets from the bankruptcy estate are converted to money in the
proceedings  and  the deposit for bankruptcy expenses  has  not
been   paid,   because   the  petitioner   seeking   bankruptcy
proceedings was exempt from that obligation, then the situation
which  this creates in the legal regulation of compensation  of
cash  expenses  and  remuneration  for  the  trustee  must   be
considered  to be violation of the constitutional principle  of
non-accessory  equality. In comparison  with  cases  where,  in
bankruptcy proceedings, assets were converted to money  or  the
deposit for bankruptcy expenses was paid and the funds used  to
pay  trustees’  cash expenses and remuneration,  the  trustee’s
claims  (compensation  of cash expenses and  remuneration),  in
cases of an insolvent bankrupt and a petitioner exempt from the
obligation to pay the deposit for bankruptcy expenses, will not
be  satisfied, as the assets in the bankruptcy estate  are  not
sufficient  to  pay  the  bankruptcy  expenses.  The  resulting
inequality in remuneration and compensation of expenses related
to  the  performance of a public office is an inequality  which
is,  for  one thing, extreme (as it permits the non-payment  of
remuneration and compensation of cash expenses for  one  group)
and,  for another, an inequality which lacks and purpose (here,
we  must  distinguish from a purpose justifying  inequality  of
subjects of law and rights the causes of such inequality). Only
as  obiter  dictum  we  can state here that,  similarly  as  in
comparable  matters  (§  23  of  Act  No.  85/1996  Coll.,   on
Attorneys,  as  amended by later regulations), in  these  cases
payment of the trustee’s remuneration and cash expenses by  the
state would be appropriate.
     If,  in  view  of the cited reasons, § 5  para.  1  second
sentence and § 8 para. 3 second sentence of the Bankruptcy  and
Settlement Act are in conflict with Art. 1 and Art. 3  para.  1
of  the  Charter and with Art. 26 of the International Covenant
on  Civil and Political Rights (the “Covenant”), it is not  due
to  their  text, but to the gap in the law which  they  create.
What  is unconstitutional is the legislature’s omission,  which
results  in a constitutionally inadmissible inequality (on  the
doctrinal interpretation of the concept of legislative omission
see   V.   Šimíček,  Legislative  Omission  as   Violation   of
Fundamental Rights. In: Ten Years of the Charter of Fundamental
Rights  and  Freedoms in the Legal Order of the Czech  Republic
and  Slovak  Republic. Eds. B. Dančák, V. Šimíček,  Brno  2001,
pp. 144-159).
     The present matter concerns an apparent gap, which is  the
incompleteness of written law (its absence) in comparison  with
the   explicit   regulation  of  analogous   cases,   i.e.   an
incompleteness  in terms of the principle of  equality,  or  in
terms of general legal principles. An illustration of resolving
such a gap is the judgment in the matter under file no. Pl.  ÚS
48/95,  in which the Constitutional Court prescriptively filled
the gap created by inequality in legal regulation with the help
of  a  constitutional  interpretation  of  the  relevant  legal
regulation  (the argument a minori ad maius),  and  denied  the
petition to annul it because its text was not in conflict  with
the constitutional order.
     That method can not be used in the adjudicated matter. The
provision  whose absence in the Bankruptcy and  Settlement  Act
establishes  an unjustified inequality is the provision  of  an
entity  that  would pay, or resources from which the  trustee’s
remuneration and cash expenses would be paid in the case of  an
insolvent  bankrupt  and a petitioner exempt  from  paying  the
deposit for bankruptcy expenses. However, a norm which would be
the  substance  of  such  a  provision  cannot  be  derived  by
interpretation  from the test of the Bankruptcy and  Settlement
Act.
     Based  on all the cited reasons, the Constitutional  Court
concluded  that § 5 para. 1 second sentence and  §  8  para.  3
second  sentence of the Bankruptcy and Settlement  Act  are  in
conflict with Art. 1 and Art. 3 para. 1 of the Charter and with
Art.   26  of  the  Covenant,  wherefore  the  Plenum  of   the
Constitutional Court decide to annul them. Under § 70  para.  1
Act  No.  182/1993 Coll., as amended by later regulations,  the
Constitutional  Court postponed the effect of  this  derogative
judgment  until  31  March 2003, to permit the  legislature  to
remove the existing unconstitutionality.
    
                             VII.

The  constitutional maxim in Art. 9 para. 2 of the Constitution
has  consequences not only for the framers of the constitution,
but  also for the Constitutional Court. The inadmissibility  of
changing  the  substantive requirements of a  democratic  state
based  on the rule of law also contains an instruction  to  the
Constitutional Court, that no amendment to the Constitution can
e interpreted in such a way that it would result in limiting an
already achieved procedural level of protection for fundamental
rights and freedoms.
     This must be a basis for evaluating the changes brought by
the    amendment   to   the   Constitution,   implemented    by
constitutional Act No. 395/2001 Coll., in Art. 1 para. 2,  Art.
10,  Art. 39 para. 4, Art. 49, Art. 87 para. 1 let. a), b)  and
Art. 95 of the Constitution. The enshrining in the Constitution
of  a general incorporative norm, and the overcoming thereby of
a  dualistic  concept of the relationship between international
and  domestic law, can not be interpreted to mean that ratified
and  promulgated international agreements on human  rights  and
fundamental  freedoms  are removed as  a  reference  point  for
purposes   of   the   evaluation  of  domestic   law   by   the
Constitutional Court with derogative results.
    Therefore, the scope of the concept of constitutional order
can not be interpreted only with regard to § 112 para. 1 of the
Constitution,  but  also in view of  Art.  1  para.  2  of  the
Constitution,   and  ratified  and  promulgated   international
agreements  on  human rights and fundamental freedoms  must  be
included within it.
    This is also indirectly supported by Art. 95 para. 2 of the
Constitution,  as otherwise it would have to be interpreted  to
the  effect that, in the event a statue is in conflict  with  a
constitutional act, a general court judge is not  qualified  to
evaluate  the  matter  and is required  to  submit  it  to  the
Constitutional  Court,  in  the event  of  conflict  between  a
statute  and an agreement on human rights which is of the  same
nature and quality in constitutional law, under Art. 10 of  the
Constitution  he  is  required  to  proceed  according  to  the
internal  agreement. Even if such a decision were  taken  by  a
court  of  any level, in a legal system which does not  contain
judicial  precedent with the quality and binding  nature  of  a
source  of  law  it  could never have even de facto  derogative
consequences. The Constitution would thus create an unjustified
procedural  inequality for two situations  identical  in  their
constitutional  nature, which, on the  basis  of  the  argument
reductionis ad absurdum, can not be ascribed to the framers  of
the constitution as a purpose of a constitutional amendment.
     The  cited interpretation of Art. 1 para. 2, Art. 10, Art.
87  para.  1 let. a), b), Art. 95 and Art. 112 para. 1  of  the
Constitution  is  also supported by the fact  that  even  after
passing  constitutional Act No. 395/2001 Coll. the  legislature
did not change § 109 para. 1 let. c) Civil Procedure Code and §
224  para.  5  Criminal Procedure CodeC, which  impose  on  the
general  courts  the  obligation to interrupt  proceedings  and
submit a matter for evaluation to the Constitutional Court  not
only  if  a  statue or its individual provision is in  conflict
with  a  constitutional act, but also if they are  in  conflict
with  an  international  agreement which  has  precedence  over
statues.
    For these reasons, Art. 95 para. 2 of the Constitution must
be  interpreted  to  the effect that a  general  court  has  an
obligation to submit to the Constitutional Court for evaluation
a  matter in which it concludes that the statute which is to be
used in resolving the matter is in conflict with a ratified and
promulgated  international  agreement  on  human   rights   and
fundamental freedoms.
     Guided by these considerations, in the present matter  the
Constitutional    Court   did   not   limit    evaluation    of
constitutionality  of  the provisions  of  the  Bankruptcy  and
Settlement  Act contested by the petitioner only  to  reviewing
their  consistency  with constitutional  acts,  but  also  with
ratified  and  promulgated  international  agreement  on  human
rights and fundamental freedoms.

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

Brno 25 June 2002