Extraordinary Appeal Proceedings Pursuant to the Rules of Civil Procedure

According to Act No. 99/1963 Coll., the Rules of Civil Procedure, as amended (hereinafter referred to as “the RCP”), an extraordinary appeal is one of extraordinary remedial measures.

The following text reflects the changes in the extraordinary appeal procedure according to the amendment No. 404/2012 (in force from January 1, 2013). It is necessary to point out the transitional provision of the Article II (7) of the amendment according to which the extraordinary appeals against the decisions of the court of second instance issued before the January 1, 2013 (the date of the entry into force) shall be considered and decided according to the previous legislation with the exception of the Section 243c (3) RCP which is to be used as effective from the date of the coming into force of this Act.

The proceedings on this extraordinary remedial measure, the hearing and decision of which is within the jurisdiction of the Supreme Court (Section 10a of the RCP), are governed by Chapter 3 in Part IV of the RCP, specifically by Sections 236 to 243g.

In addition to providing just protection of rights and justified interests of the parties to civil proceedings, the extraordinary appeal proceedings are one of the fundamental procedural instruments of the Supreme Court serving to fulfil the statutory role of the Supreme Court as a supreme judicial body unifying the decisions of ordinary courts. The last change of the extraordinary appeal from January 1, 2013 strengthened the unifying role of the Supreme Court.

What may be challenged by an extraordinary appeal?

According to the RCP, extraordinary appeals may only challenge decisions of courts of appeal, i.e. only decisions of Regional Courts or High Courts (or decisions of the Municipal Court in Prague), if such courts decided appeals from decisions of courts of first instance. Such decisions are generally issued in the form of judgments. However, an extraordinary appeal may also challenge a resolution of a court of appeal or a resolution issued during the course of appeal proceedings (Section 238a RCP).

Moreover, the decision challenged by an extraordinary appeal must be final and conclusive. A decision is final and conclusive if no regular remedial measure under the RCP (such as an appeal) may be used against it. In practice, a decision of a court of appeal is final and conclusive if the counterparts of the decision have been served on all persons required to be served by the applicable legislation.

NOTE! An extraordinary appeal may not be lodged against any other decisions or acts of ordinary courts or other government bodies. If the conditions specified in the previous paragraphs are not met at the time of the filing of an extraordinary appeal, the Supreme Court will discontinue the proceedings.

Who may file an extraordinary appeal?

An extraordinary appeal may be filed by a party to the previous proceedings (Section 240 of the RCP). In this sense, a party to the previous proceedings is a party which was a party to the proceedings in the court of appeal, or their legal successor (with the exception of the legal successor defined in Section 107a of the RCP).

It is important to know that an extraordinary appeal may be lodged by such a party only if the contested decision (of the court of appeal) has been to the detriment of the party and the detriment may be rectified by the Supreme Court vacating the decision. Hence, an extraordinary appeal cannot be filed, for example, by a party whose claim was completely satisfied by the judgment of the court of appeal.

What must an extraordinary appeal contain?

First of all, an extraordinary appeal must contain the essential elements of any motion filed with a civil court. These elements are listed in Section 42(4) of the RCP.

In addition to the essential elements, an extraordinary appeal must contain the following information:

1) what decision it challenges;

2) the extent in which the decision is challenged;

3) on what grounds the decision is challenged (decisions issued after January 1, 2013 may be challenged only because of the erroneous determination of law, see Section 241a);

4) why an extraordinary appeal should be admissible (conditions in Section 237 or decision as named in Section 238a);

5) what the appellant seeks (e.g. vacation of the contested decision of the court of appeal by the Supreme Court).

The essential elements may be added during the course of the appeal time limit, however the appellant is not invited to do so by the court (the Section 43 is not in effect here).

Where to file an extraordinary appeal?

An extraordinary appeal is to be filed with the court which decided the respective case as a court of first instance (generally a District Court or the Municipal Court in Brno, or in specific cases a Regional Court or the Municipal Court in Prague).

Within what period may an extraordinary appeal be brought?

An extraordinary appeal may be lodged within two months of service of the judgment (resolution) of the court of appeal. This period will begin to run on the date following the date of service of the judgment (resolution) to the party. It will end on the date whose numerical identification is identical with the date of service.

(Example: The decision of the court of appeal was served on October 10. The period within which an extraordinary appeal may be lodged will begin to run on October 11 and end on December 10. If the decision of the court of appeal was served, for example, on December 30, the last day on which an extraordinary appeal may be lodged will be February 28, or February 29 in the case of a leap year, since there is no 30th day in February). If the last day of the period is a Saturday, Sunday or public holiday, the last day of the period will be advanced to the immediately following business day.

In order to meet the time limit, an appellant must file the extraordinary appeal with the court or send it by post at the latest on the last day of the above period.

However, if the court of appeal issued an amended resolution, the period within which an extraordinary appeal may be lodged will begin to run again from the date of service of the amended resolution to the party (i.e. analogously to the above).

NOTE! If the party fails to meet the time limit, the expired time to lodge an extraordinary appeal cannot be waived, even by a decision of the Supreme Court. Any late extraordinary appeal will be rejected by the court of first instance (or the Supreme Court).

Does the appellant have to be represented?

When lodging an extraordinary appeal, the appellant must be represented by an advocate, or in certain cases by a notary (where the legislation allows). This means that an extraordinary appeal must be executed and signed by an advocate (notary), and the party must grant the advocate (notary) a power of attorney to represent them in the extraordinary appeal proceedings. Also for the purposes of the extraordinary appeal proceedings, the party may request the court to appoint counsel. The request for the appointment of counsel must be submitted specifically for the extraordinary appeal proceedings; if counsel was appointed to represent the party before lower courts, it will not apply to the extraordinary appeal proceedings. However, the party does not have to be represented during the entire course of the extraordinary appeal proceedings; it is sufficient to meet the condition of qualified representation at the time of the lodging of the extraordinary appeal.

A party does not have to be represented in extraordinary appeal proceedings if:

a) the party is an individual who graduated with a Law degree from a law school in the Czech Republic, or with a Law degree from a law school in the former Czech and Slovak Federative Republic or its legal predecessors, or an individual with a recognized Law degree achieved at a foreign university (graduates from the Faculty of Public Security of the University of National Security Corps are not deemed to fall within the above definition).

The appellant must submit evidence of the degree (for example a verified copy of the diploma).

NOTE! An individual cannot be represented in extraordinary appeal proceedings by a person with a Law degree who is not an advocate or notary (i.e. by the so-called general representative).

b) the party is a legal entity, municipality, region or state and they are represented by a person with a Law degree falling within the definition in Section 21, Section 21a or Section 21b of the RCP.

If the appellant does not have a Law degree and is not appropriately represented at the time of the filing of an extraordinary appeal, the court will invite them to appoint a representative for the purposes of the extraordinary appeal proceedings (generally an advocate), and to submit an extraordinary appeal executed and signed by such a representative within a period determined by the court.

If the appellant fails to do so within the period determined by the court, the extraordinary appeal proceedings will be discontinued!

Court fees for extraordinary appeal cases

In principle, the court fees for extraordinary appeal proceedings are collected in the following amounts:

a) If the subject matter of the extraordinary appeal proceedings is an amount of money not exceeding CZK 100 000,- the court fee will be CZK 5 000,-.

b) If the subject matter of the extraordinary appeal proceedings is an immovable property, the court fee will be CZK 10 000,- for each one.

c) If the subject matter of the extraordinary appeal proceedings is a company or its organizational part, the court fee will be CZK 20 000,- for each company or its organizational part.

d) In other cases, the court fee will be CZK 10 000,- irrespective of what the subject matter of the proceedings is (it may be, for example, an amount of money exceeding CZK 100 000,- determination of ownership of property, sale of a pledged property, exclusion of an issue, an inheritance case, settlement of the marital common property, cancellation and settlement of co-ownership, insolvency proceedings, proceedings connected with insolvency proceedings, proceedings to reopen a case, nullity motions, action against a decision of an administrative body, or a remedy against a decision of an administrative body).

In any other cases not mentioned above, the court fee will be CZK 2 000,-.

The court fees for extraordinary appeal proceedings are not collected if so stipulated by law (Act No. 549/1991 Coll., on Court Fees).

Admissibility of an extraordinary appeal

In order for the Supreme Court to be able to hear and decide the case on the merits, the extraordinary appeal must meet the conditions of admissibility set out by law, specifically in Sections 237 to 238a of the RCP. Therefore, an extraordinary appeal is admissible only in cases specified by law (not if the party to the proceedings believes so or if the court of appeal incorrectly states so in the appeal instructions). The admissibility is considered by the Supreme Court exclusively.

As of the January 1, 2013 the law stipulates completely new conception of the admissibility. The RCP regulates the presumption of admissibility both positively (Sections 237 and 238a) and negatively (Section 238).

I. An extraordinary appeal against a decision concluding the appellate procedure (Section 237 RCP). An extraordinary appeal is admissible against each decision of the court of appeal (either in the form of a judgment or a resolution) in which the court of appeal decided on appeal of the party to the proceedings against the decision (again a judgment of a resolution) of the court of the first instance. Such a decision of an appeal court may be:

a) A judgment or a resolution of the court of appeal confirming the decision (a judgment or a resolution) of the court of the first instance.

b) A judgment or a resolution of the court of appeal reversing the decision (a judgment or a resolution) of the court of the first instance.

c) A judgment or a resolution of the court of appeal annulling the decision (a judgment or a resolution) of the court of the first instance and returning the case to the first instance for further proceedings or referring the case to a different court, institution or staying the proceedings.

d) A decision of the court of appeal approving a peace settlement.

e) A decision of the court of appeal deciding on the ineffectiveness of the withdrawal of the claim.

In all of the before mentioned cases the extraordinary appeal is admissible only if the challenged decision of the court of appeal is dependent on the resolution of the question of law (substantial – i.e. interpretation of the Civil Code – or precedural) and:

a) the decision of the court of appeal departs from the settled case law of the Supreme Court, or

b) this question has never been answered in the case law of the Supreme Court , or

c) the Supreme Court decides this question differently, or

d) the question of law – already resolved in previous case law of the Supreme Court – ought to be assessed differently.

NOTE! Section 238 RCP regulates situations when an extraordinary appeal is not admissible although the above mentioned conditions were fulfilled.

An extraordinary appeal is therefore inadmissible in:

a) family law, with the exception of the judgment on the limitation or removal of parental responsibility or suspension of its exercise, of the establishment (denial) of paternity or on irrevocable adoption,

b) international child abductions under the international agreements which are part of the national law or under the directly applicable measures of the European Communities,

c) matters governed by the Act on Registered Partnership,

d) against the judgments and resolutions where the contested verdict of the court of appeal does not exceed 50 000 Kč, with exception of the relationships deriving from consumer contracts, employment/labour relations or matters referred to in Section 120 (2); accessory claims are yet disregarded,

e) matters of the delay of the enforcement of the decision or the execution,

f) against the resolutions where an action for nullity is permissible (under Section 229 (4)),

g) against the resolutions deciding on the interim measure, disciplinary measure, expert or interpreter fees.

II. An extraordinary appeal against the decisions of the court of appeal issued during the appellate procedure (Section 238a RCP).

An extraordinary appeal is admissible also against the decision of the court of appeal in which the court did not decide on an appeal against a judgement or a resolution of a court of first instance. The exact character of these decisions of the court of appeal is given in the Section 238a:

a) decision on the procedural successorship,

b) decision on the entry into the proceedings in the position of the current party (Section 107a),

c) decision on the accession of another party to the proceedings (Section 92 (1)),

d) decision on the substitution of the party to the proceedings (Section 92 (2)).

In all of the above-mentioned decisions an extraordinary appeal is admissible without any further conditions. However, if one of these decisions had been issued by the court of first instance and later decided on by the court of appeal, an extraordinary appeal is admissible only under the conditions of the Section 237 (e.g. the court of first instance decided on the substitution of the party to the proceedings (Section 92 (2)), the affected party appealed and the court of appeal confirmed, reversed or annulled the decision).

AN EXTRAORDINARY APPEAL WHICH IS NOT ADMISSIBLE WILL NOT BE DEALT WITH ON THE MERITS BY THE SUPREME COURT, AND THE SUPREME COURT WILL REJECT ANY SUCH EXTRAORDINARY APPEAL.

On what grounds may an extraordinary appeal be lodged?

As from the January 1, 2013, there is only one ground of an extraordinary appeal – ERRONEOUS DETERMINATION OF LAW. This concerns cases when the court of appeal applies incorrect legislation to the case or when the court of appeal applies correct legislation, but interprets it incorrectly or applies it incorrectly to the case. These are purely legal issues, and therefore it is necessary for the appellant to have a person with a Law degree (generally an advocate) to communicate with the Supreme Court on behalf of the appellant.

The grounds of an extraordinary appeal must be explicitly concretized in a petition signed by an advocate or notary. Amendment of grounds is possible only during the appeal time limit.

Extraordinary appeal proceedings

Certain acts relating to commenced extraordinary appeal proceedings may be carried out by the court of first instance with which the extraordinary appeal has been filed. The procedure is analogous to regular appeal proceedings [see Section 241b(1) of the RCP].

After the court of first instance has checked whether the extraordinary appeal meets the fundamental conditions, it will send the extraordinary appeal, along with the respective files, to the Supreme Court.

The Supreme Court will then check again whether all the requirements have been met and also whether the extraordinary appeal is admissible. If the extraordinary appeal is not admissible, the Supreme Court will reject it (see above). If the extraordinary appeal is admissible, the Supreme Court will not issue a special decision on the admissibility and will automatically proceed to examine the contested decision of the court of appeal on the merits.

Before the Supreme Court proceeds to review the contested decision of the court of appeal, it may suspend the enforceability of the decision (Section 234 of the RCP). The suspension of enforceability means a significant intervention in the legal certainty of the parties to the proceedings, and therefore is performed only in particularly justified situations. The suspension of enforceability is to prevent immediate enforcement of the decision and thereby also a detriment to the rights of the appellant. In order for the Supreme Court to be able to suspend the enforceability, the decision of the court of appeal must be a decision allowing such enforceability (i.e. a decision imposing on the party – the appellant – an obligation).

The Supreme Court might also suspend the legal force of the contested decision of the court of appeal when the rights of the appellant are in serious jeopardy and the suspension does not touch the rights and legal relations of a third person.

The contested decision will be reviewed by the Supreme Court only to the extent to which the decision was challenged by the appellant. In other words, the Supreme Court is allowed, in the review, to examine only what the party to the proceedings challenges in the extraordinary appeal. Exceptions from this rule are defined in Section 242(2) of the RCP.

In an overwhelming number of cases, the Supreme Court decides extraordinary appeals in civil proceedings without a hearing.

Decision of the Supreme Court

The Supreme Court decides extraordinary appeals in panels comprising three judges, of which one is the presiding judge of the panel.

The original of the decision is entered into the file.

Copies of the decision on an extraordinary appeal are sent to the parties to the proceedings or to their representatives through the court of first instance.

The methods how the Supreme Court may decide in extraordinary appeal proceedings are as follows:

1. The Supreme Court will discontinue extraordinary appeal proceedings in particular if it arrives at the conclusion that the fundamental conditions of extraordinary appeal proceedings have not been met, or if the appellant withdraws the extraordinary appeal.

2. The Supreme Court will reject an extraordinary appeal in particular if the extraordinary appeal is not admissible.

3. The Supreme Court will dismiss an extraordinary appeal if the extraordinary appeal is admissible, but the Supreme Court arrives at the conclusion that the decision of the court of appeal was correct and therefore the extraordinary appeal is not substantiated.

4. The Supreme Court will vacate the decision of the court of appeal and remand the case to the court of appeal for further proceedings if the extraordinary appeal is admissible and the Supreme Court arrives at the conclusion that the decision of the court of appeal was not correct. In such a case, the Supreme Court may, at the same time, vacate also the decision of the court of first instance if the grounds on which the decision of the court of appeal is vacated apply also to the decision of the court of first instance. In both cases, the Supreme Court does not decide on the costs of the extraordinary appeal proceedings, since they will be decided on by the court (of first instance or of appeal) as part of the subsequent decision on the merits.

The development of the proceedings can be followed in the INFOSOUD application available on the website of the Supreme Court or on the website of the Ministry of Justice of the Czech Republic (www.justice.cz).