CYIL vol. 10 (2019)

PETR ŠUSTEK

CYIL 10 ȍ2019Ȏ

5. Unjustifiability of the Supreme Court case-law The above-cited argument of the Supreme Court that legal principles have not changed since the decision 7/79 and therefore the decision is to be applied in contemporary cases is rather misleading and, in effect, false. It is so for at least three basic reasons. 5.1 Political reasons The first reason consists in a general political perspective. Even though the basic principles of private law indeed remain the same, the decision 7/79 cannot be understood in isolation from its political, ideological, social, and historical context. Even though the fear of unlimited claims is common to all jurisdictions, the complete rejection of reflective damages is rather unique. The Supreme Court of the Czech Socialist Republic was apparently motivated by the aim of preventive protection of the so-called social organizations (a form of legal entity under socialist law) in the context of the socialist economy. This approach clearly reflected the collectivist and materialist ideology. After the substantial change of the society’s paradigm to the market economy and individualism, the established case-law does not seem adequate anymore. On a more particular level, it seems to be contrary to the fundamental idea of justice if psychological injury as a more intensive form of damage cannot be compensated while emotional distress can. Considering that in many countries, only psychologic injuries are compensated to the secondary victims – indeed a justifiable approach – the situation in the Czech Republic seems to be rather absurd. It is also incompatible with the preventive aim which is widely considered to be one of the functions of tort law 40 . The deterrent aim is significantly weakened when potential tortfeasors know that they will not be held liable (at least within the frame of private law) for a more intensive consequence of their wrongdoing. To sum up, the practice of awarding reflective damages only to some of the secondary victims leaves many tortfeasors without the obligation to provide compensation as a result of their breach of law. It diminishes the preventive function of law as well as the protection of the human right to life through the means of private law. 5.2 The incompatibility with the positive law The second reason why current case-law of the Supreme Court is unjustifiable is its incompatibility with the Civil Code. This problem likewise has its historical roots in the socialist law.The socialist law did not acknowledge any immaterial claims of secondary victims, regardless of their nature (i.e. whether they represented emotional distress or psychiatric injury). The situation did not change until several years after the Velvet Revolution which ended the Communist Party rule in 1989. The breakthrough decision was issued by the Regional Court in Ostrava on 23 January 1998 under file number 23 C 52/96. The court recognized that the claimants – the adult children of a deceased woman – had no right to immaterial damages based on the post- mortal protection of the deceased person’s personal rights. However, the court held that the death of their mother violated the claimants’ right to private life as one of their personal rights. From this perspective, unlawful interference with family relationships represents an

40 Even though mainly in continental law, it is understood as a secondary function after the primary function of compensation. Cf. for example KOZIOL, Helmut. Basic Questions of Tort Law from a Germanic Perspective. Jan Sramek Verlag, Wien 2012, pp. 78-79.

330