Pl. US 37/04 - decided 26 April 2006 (…) 55. The essence of the petition is the claim that § 133a par. 2 of the CPC (Code on civil procedure ) is unconstitutional because in the matters listed therein it shifts the burden of proof to the de fendant, thereby discriminating against it. This is claimed to violate constitutionally enshrined f undamental rights, in particular the right to a fair trial under Art. 6 par. 1 of the Convention an d the corresponding rights enshrined in Chapter Five of the Charter, the principle of equality of t he parties in court proceedings under Art. 37 par. 3 of the Charter, Art. 96 par. 1 of the Constitu tion and Art. 14 par. 1 of the International Covenant on Civil and Political Rights, no. 120/1976 C oll. (the "Covenant"), and the ban on discrimination under Art. 14 of the Convention. 56. Thus, the present case concerns application of the procedural principle of equality and no n-discrimination in the decision making of the general courts in civil matters. International law p rotection is primarily enshrined in the Covenant, which provides in Art. 14 par. 1, among other thi ngs, that "All persons shall be equal before the courts." 57. The right to a fair trial is guaranteed primarily by Article 6 of the Convention, which is directly titled as such in the text as revised by Protocol no. 11, and whose relevant provision fo r the "civil" branch reads: "Article 6 Right to a fair trial 1.Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law which shall decide on his civil rights and obligations . .." 58. As regards the actual content of this fundamental right, it is obvious from its wording that th is is a structured right, which includes several independent subjective fundamental rights, formula ted both specification (e.g. a public and speed trial, or an independent and impartial court), and generally (namely, "entitled to a fair hearing"). 59. The right to a fair hearing, as a component of the right to a fair trial, is thus an uncer tain, open, and precisely undefined concept. Its content includes not only all other guarantees exp ressly named in Art. 6 par. 1 of the Convention, but in particular also those that are not named in it, but which the European Court, in particular, in its longtime decision making activity derived and gradually defined from the general requirement of a fair trial. Thus, in relation to (not only) admission of evidence principles were defined which, though not expressly stated in the Convention , and an inseparable part of the concept of a fair trial. They are primarily the principle of equal weapons and adversarial proceedings. 60. The right to a fair hearing can not be separated from the general requirement of equality and non-discrimination. In this context, however, the meaning of equality is one that applies to th e equality of parties in proceedings before a court, found in various opposed procedural positions, usually called "equal weapons." In the constitutional order of the Czech Republic this principle i s contained in Art. 96 par. 1 of the Constitution, under which "all parties to a proceeding have eq ual rights before the court," or Art. 37 par. 3 of the Charter, under which "all parties to such pr oceedings are equal." Such equality is not literally stated in the Convention, but the case law of the European Court could not but derive it from the requirement of fairness. A trial is a dispute t hat is played out through adversarial discussion, in which the parties to the dispute must have "eq ual weapons," i.e. the same opportunity to speak and defend "their" truth. In practical life there will usually not be absolute, mathematical equality; it is a relative concept, especially in the sense that it can not completely erase the di fference in the procedural and especially factual position of the parties, arising from their diffe rent abilities. This unequal position can be compensated to a certain degree by additional guarante es for the weaker party, so-called favor defensionis, which is manifested by, e.g. regulation of th e burden of proof (see, e.g. B. Repik, Evropska umluva o lidskych pravech a trestni pravo [The Euro pean Convention for the Protection of Human Rights and Criminal Law], Orac, 2002, p. 144 et seq., s imilarly also B. Repik, Ludske prava v sudnom konani [Human Rights in Court Proceedings], MANZ Brat islava, 1999, p. 155 et seq.). In the decision in the matter De Haes and Gijsels v. Belgium (1997), (in par. 55 of the reasoning), the European Court again confirmed that the principle of equal weap ons - an element of the wider concept of a fair trial - requires that each side be given a reasonab le opportunity to defend its position under conditions which do not place it at a substantial disad vantage in relation to its opponent. It also stated a similar opinion in the matter Ankerl v. Switz erland (1996), (in par. 38 of the reasoning of the decision). 61. The Constitutional Court has also considered the equality of parties to proceedings in a n umber of its decisions. For example, in the matter file no. IV. US 13/98 (Collection of Decisions o f the Constitutional Court, Volume 12, judgment no. 98) it stated that "the principle of equality o f the parties is a key principle of a fair trial. It is enshrined in Art. 37 par. 3 of the Charter and in Art. 96 par. l of the Constitution of the Czech Republic and is also reflected in a number o f provisions in procedural regulations. The Civil Procedure Code expressly provides the equality of parties to proceedings in § 18, from which a court has an obligation to ensure the parties the sam e, i.e. equally effective opportunities to exercise their rights." Under the judgment in the matter file no. Pl. US 15/01 (Collection of Decisions of the Constitutional Court, Volume 24, judgment no . 164) "The constitutional principles forming one of the components of the fundamental right to a f air trial include the principle of "equal weapons," or the principle of equal opportunities (i.e. the principle of eq uality of all parties to proceedings) under Art. 37 par. 3 of the Charter , Art. 96 par. 1 of the C onstitution and Art. 6 par. 1 of the Convention. .... The principle of "equal weapons" (Art. 6 par. 1 of the Convention) has been distinctively reflected in the existing case law of the European Cou rt of Human Rights. In that context it can be described, in particular, by saying that in the Court 's opinion its foundation is the idea of equality, wherefore it is comparable to the principle of t he ban on discrimination under Art. 14 of the Convention." 62. Unlike the principle of equality of parties in proceedings before a court, at the constitu tional law level the question of who in a civil trial is to bear the burden of proof is not express ly regulated. The European Court has said regarding this issue, e.g. in the matter Blucher v. Czech Republic (2005) and similarly in the matter Tiemann v. France and Germany (2000), that "Article 6 par. 1 of the Convention does not set any rules for the permissibility or evidentiary value of evid ence of the burden of proof, which are questions that are basically subject to domestic law." 63. Thus, the Convention and the Charter guarantee a fair trial, but do not regulate presentat ion of evidence as such, although this is a substantial, if not the most important part of a trial. Of course, this does not mean that presentation of evidence is somehow "apart" from the constituti onal law level and regulation of it is exclusively the province of statutes. The fundamental princi ples of a fair trial, namely the principles of equal weapons and its adversarial nature, governing the entire trial, necessarily also apply to presentation of evidence. For example, in the matter fi le no. IV. US 167/96 (Collection of Decisions of the Constitutional Court, Volume 6, judgment no. 9 3) the Constitutional Court stated that "it is aware of the importance of the institution of the bu rden of proof, because it permits the court to decide even in a case where it is not possible to co mpletely clarify the factual situation. However, this institution too is subject to a certain proce dural law framework, as it is defined primarily by the principles of an impartial and fair trial, a rising from Article 90 of the Constitution of the CR , as well as from Article 36 par. 1 of the Cha rter. That means, among other things, that the court can not impose the burden of proof on one of t he parties without anything further and in a one-sided manner, but only in the context of all relev ant circumstances of the case." 64. Thus, at the constitutional law level the principle of equal weapons in a civil trial, con tained in the right to a fair trial, generally also includes equality of the burdens which are laid on the parties to the proceedings (and which must not be disproportionate), and that in the contra ry case the proceedings as a whole can not be considered fair. This general principle of equality o f the parties must then also be reflected in the legal regulation of presentation of evidence at th e statutory level. 65. The statutory regulation of an adversarial civil trial is governed by the principle to hea r, under which it is fundamentally a matter for the parties to the proceedings to make claims of fa ct and propose proof of them. The burden of proof lies in a party's procedural responsibility to se e to it that the facts he claims will be proved in the trial. Thus, in an ordinary civil adversaria l trial each party bears the burden of proof for those facts that he himself asserts. The general r egulation of presentation of evidence in § 120 of the CPC, where, under paragraph one "the parties are required to identify evidence to prove their claims," clearly specifies that the initiative for gathering evidence fundamentally lies on the parties. Thus, a party has the obligation (burden) of assertion and obligation (burden) of proof. The burden of proof is an institution of procedural la w which affects the party in whose interest it is for a certain fact, decisive under substantive la w and asserted by the party, to be proved in the trial, so that the court recognizes it as true (cf . Bures, Drapal, Krcmar, Mazanec, Obcansky soudni rad - Komentar, 6.vydani [The Civil Procedure Cod e - Commentary, 6th ed.], p. 450 et seq.). 66. The Constitutional Court does not share the Regional Court's claim that the difference in the treatment of the defendant in proceedings under § 133a par. 2 of the CPC, compared to the stand ard procedural position of the defendant under the general provisions of the Civil Procedure Code o n the burden of proof is discriminatory toward the defendant primarily for the following reasons. 67. The Constitutional Court is of the opinion that the specific statutory regulation of prese ntation of evidence in proceedings under § 133a of the CPC, in which the plaintiff claims that he w as directly or indirectly discriminated against (as a rule with the simultaneous claim of violation of rights enshrined in the Civil Code or the Labor Code, and exercising the responsibility arising therefrom), is an exception from the abovementioned general principles of evidence. By its nature this is a rebuttable legal presumption that specifies that proving the opposite is the obligation o f the defendant. It obviously differs from the general standards of proof in § 120 of the CPC, beca use to a certain extent it favors the plaintiff at the expense of the defendant, who seeks nothing before the general courts, but must nevertheless prove something that it did not claim. From this p urely formal point of view one can assert that the defendant is, in proceedings where § 133a par. 2 of the CPC is applied, is to a certain extent disadvantaged in comparison with the plaintiff. Howe ver, shifting the burden of proof to the defendant is not full, or automatic. The person who claims that he is a victim of discrimination must first present to the court facts that sufficiently just ify a conclusion that there was possible discrimination, although this is not sufficiently clear fr om the wording of § 133a par. 2 of the CPC. This conclusion is consistent with the legal opinion of the European Court of Justice (the "ECJ") expressed in the decision of the court of first instance of 16 March 2004 in the case Afari v. Euro pean Central Bank (T-11/03). 68. Undoubtedly, in proceedings listed in the contested § 133a par. 2 of the CPC (and likewise in labor proceedings - § 133a par. 1 of the CPC) the defendant is treated differently in relation to proof than are defendants in other civil law proceedings, and this difference is an advantage fo r the plaintiff, and thus obviously a disadvantage for the defendant. Whether this disadvantage can be considered unconstitutional discrimination must be weighed a) from the viewpoint of an objective and reasonable entitlement, i.e. whether this disadvanta ge pursues a legitimate aim, and b) from the viewpoint of a reasonable relationship (proportionality) between the legitimate ai m and the means by which that aim is achieved. 69. The Constitutional Court has spoken on the relationship between discrimination and the pub lic interest, e.g. in judgment file no. Pl. US 9/95 (Collection of Decisions of the Constitutional Court, Volume 5, p. 107, published as no. 107/1996 Coll.), in which it stated that "it is up to the state to specify conditions under which it provides an advantage to a particular group of persons, of course, on the assumption that it is doing so in the public interest and for the public good, w here the public interest undoubtedly includes promotion of the principles of democracy and human ri ghts." 70. As stated above, different treatment is discriminatory under Art. 14 of the Convention if it lacks objective and reasonable justification, i.e. a) it does not pursue a legitimate aim and b) there is not a proportional relationship between the means used and the aim pursued. 71. As regards the legitimacy of the aims pursued by § 133a par. 2 of the CPC (and likewise th e non-contested § 133a par. 1 of the CPC), it is obvious (and also correctly stated in the position statements of the Chamber of Deputies and the Senate), that the cited provision became part of the Civil Procedure Code in connection with the obligation of the Czech Republic, as a member state of the European Union, to reflect in its legal order the obligations arising from the relevant Europe an directives. The constitutional dimension of this obligation is framed by Art. 1 par. 2 of the Co nstitution, under which "the Czech Republic observes the obligations which arise for it from intern ational law." The reasons themselves for passing so-called anti-discriminatory directives are simil arly expressed, especially in their preambles. Primarily they are concerned with effective promotio n of the principle of equal treatment, which is understood to be the non-existence of any direct or indirect discrimination on the basis of sex, race, ethnic origin, and other reasons specified in t he directives. In fact this is the result of several years of development in the European Union, wh ich is, as provided by Article 6 of the Treaty on the European Union, established on the principles of freedom, democracy, respect for human rights and fundamental freedoms, as well as on the princi ples of a law-based state, principles which are common to the member states; the European Union rec ognizes as general legal principles of the Community the fundamental rights as they are guaranteed by the Convention and as they follow from the constitutional traditions common to the member states . The cited anti-discrimination directives have a common point of departure, under which persons wh o have been subject to discrimination, should have effective means for legal protection. Therefore, domestic legal frameworks are to ensure, among other things, special regulation of the burden of p roof. It is supposed to be based on the principle that if a person who feels injured by non-observa nce of the principle of equal treatment proves to the court facts which indicate that there was dir ect or indirect discrimination, the burden of proof shifts to the opponent, who is required to prov e that there was no violation of the principle of equal treatment (see, e.g., Art. 8 par. 1 of Coun cil Directive 2000/43/EC). The Constitutional Court accepts that, if the Convention is to be primar ily and above all a system for protecting human rights, it is essential to take into account the ch anging conditions in the states parties, and to respond to any newly arising consent, as regards st andards that are to be achieved and that are, in this case, expressed especially in the preamble an d normative provisions of individual anti-discrimination directives. For that reason the Constituti onal Court respects the expression of the will of member states of the European Union expressed in the cited directives, and states that the contested § 133a par. 2 of the CPC does pursue a legitima te aim. 72. It remains to be decided whether the second condition has also been met, that is, whether there is a proportional relationship between the means used and the aim pursued. Although it is not the Constitutional Court's primary task to independently evaluate to what extent, or at what legis lative-technical level of quality the legislature succeeded in projecting the obligations arising f rom Council Directive 2000/43/EC into the Civil Procedure Code, or whether the legislature succeede d in expressing the legitimate aims of the directive in the clear language of the law, it must be s tated that at first glance it is obvious that the condition contained in Article 8 par. 1 of the ci ted directive, according to the unofficial revised wording of which in ISAL (Information System for Approximation of Law) "the member states shall enact, in accordance with their legal systems, the necessary measures so that, as soon as a person feels injured by the failure to observe the princip le of equal treatment and submits to the court ... facts indicated that direct or indirect discrimi nation occurred, it fell to the opponent to prove that the principle of equal treatment had not bee n violated," that is, a condition that the plaintiff shall present to the court facts indicating th at discrimination occurred, is not sufficiently transparently expressed in the existing wording of § 133a of the CPC. For comparison, we can point to the legal regulation of the Slovak Republic, whe re, under § 11 par. 2 of Act no. 365/2004 Coll., on Equal Treatment and Certain Areas and Protectio n from Discrimination and Amending and Supplementing Certain Acts (the Anti-Discrimination Act) "th e defendant is required to prove that he did not violate the principle of equal treatment, if the p laintiff presents to the court evidence from which one can reasonably conclude that the principle o f equal treatment was violated." However, despite these facts, the Constitutional Court is of the o pinion that a constitutional interpretation of the contested § 133a par. 2 of the CPC can not lead to a conclusion other than that which arises from the cited directive and from the statements from the Senate and the European Roma Rights Center, i.e., that § 133a par. 2 of the CPC does not have t he nature of a rebuttable presumption of responsibility being on the defendant. Thus, application o f it requires that, in the first place, the plaintiff himself prove prima facie interference; thus, a mere unsubstantiated claim of alleged discrimination is not sufficient. 73. Thus, in the Constitutional Court's opinion, one can not conclude from interpretation of § 133a par. 2 of the CPC that it is enough for a person who felt racially discriminated against when purchasing services to simply claim that discriminatory conduct occurred. That person must, in cou rt proceedings, not only claim, but also prove, that he was not treated in the usual, non-disadvant aging manner. If he does not prove this claim, he can not succeed in the proceedings. He must also claim that the disadvantaging treatment was motivated by discrimination on the basis of racial or e thnic origin. Of course, he does not have to prove that motivation; it is assumed in the event of p roof of different treatment, but is rebuttable, if the contrary is proved (through evidence). In an y case, the requirement that the plaintiff must prove that he was discriminated against precisely a nd exclusively because of his racial (ethnic) origin, and not for other reasons, is quite obviously impossible to meet, because proving the defendant's motivation (impetus) is ruled out by the natur e of the matter. 74. This conclusion is consistent with the line of thinking of the ECJ on the interpretation o f the previous community directive on non-discrimination, under which if someone " pleads that the principle of equal treatment has been infringed to their detriment and establishes facts from which it may be presumed that there has been direct or indirect discrimination, Community law is to be i nterpreted as meaning that it shall be for the defendant to prove that there has been no breach of that principle" (see ECJ decision of 10 March 2005 in the matter Nikoloudi v. OTE; C-196/02). 75. Therefore, in the Constitutional Court's opinion the petitioner's opinion will not stand - the opinion being that in proceedings cited in the contested provision of the Civil Procedure Code "the plaintiff is given an advantage, because it does not have to prove what is alleged to have ha ppened and why it is being complained of, whereas the defendant is disadvantaged, because it is sup posed to prove something that did not happen." In reality the burden of proof does not lie only and exclusively on the defendant. The plaintiff also bears a burden of claiming and a burden of proof. If the plaintiff successfully bears these burdens, which the court must decide in the individual c ase, it is then up to the defendant to prove his claim that discrimination on racial (ethnic) groun ds did not occur. For the foregoing reasons the Constitutional Court concluded that § 133a par. 2 o f the CPC is a proportionate means for achieving the aim pursued, or that - if it is applied in the abovementioned constitutional manner - a fair balance between the requirements of the public inter est of society and the requirements of protection of individual fundamental rights will be preserve d. 76. The Constitutional Court takes this presented opinion despite the position of the Ministry of Justice. The content of that position indicates that the Ministry of Justice has essentially th e same opinion as the petitioner: that the "total" burden of proof lies on the defendant, and only on him (even if allegedly provided by the legislature with milder conditions for shifting the burde n of proof to the defendant). The Ministry of Justice merely - unlike the petitioner - considers th is situation to be constitutional. That is of course not the case; the Constitutional Court notes t hat the Ministry of Justice apparently overlooked the fact that transposition of the cited directiv es must range within the constitutional bounds of a fair trial; the interpretation presented both by the Ministry of Justice and by the petitioner can not be accepted, because it would exceed those bounds. 77. For the abovementioned reasons the Constitutional Court concluded that the existing legal framework can still be interpreted in such a manner that it can be considered consistent with the f undamental right to a fair trial enshrined in Art. 6 par. 1 of the Convention and as not establishi ng discrimination under Art. 14 of the Convention. Thus, the Constitutional Court did not find grou nds to annul the provision, and denied the petition under § 70 par. 2 of the act on the Constitutio nal Court. 78. Of course, the Constitutional Court considers it undisputed that the formulation of the co ntested Civil Procedure Code provision requires, especially in terms of the test of proportionality , an interpretation which is virtually a borderline case where one can still, by interpretation of the statutory text, conclude that it is precisely as a result of this interpretation that the conte sted provision can be considered constitutional. Therefore it would be extremely desirable for the legislature to consider whether it can not conduct the transposition of the cited EC Council direct ives for the target audience of the relevant procedural norms in a somewhat more clear manner.