CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE CONCEPT OF SECONDARY ȍREFLECTIVEȎ DAMAGE … unlawful violation of the right to private and family life. This holds even in cases where secondary victims no longer live with the primary victim and have their own families. Since the decision, immaterial reflective damages started to be compensated on the grounds of violation of secondary victims’ right to private life 41 . It must be noted, however, that the damages for secondary victim’s psychologic injury were still not granted. The legislator reflected this practice by explicitly establishing a right to compensation for reflective damage in the amendment to the then valid Civil Code No. 40/1964 Coll., which, entering into force on 1 st May 2004, brought about a new provision of Section 444 (3). The provision contained an exhaustive list of potential claimants, each of who had a right to a lump sum compensation based on the proximity of their relationship with the primary victim. Since these amounts were not very high (CZK 240.000 at maximum equalling to approximately EUR 8.500 in 2006), the case-law 42 very soon enabled the claimants to simultaneously claim for damages under Section 444 (3) of the Civil Code 1964 as well as for damages for the violation of their right to private life (i.e. under Sections 11 and 13 of the Civil Code 1964). The amounts of compensation for the violation of the right to private life were in tens of thousands or hundreds of thousands of crowns, exceptionally reaching millions of crowns 43 . The resulting practice of double-track compensation of reflective damage was criticised for several reasons: it was arguably contrary to the ne bis in idem principle, there were significant procedural differences between both claims, and from a rather philosophical perspective, it did not seem justifiable to have two claims based on damage to one indivisible value (i.e. health) 44 . Although courts set up some limits to the double-track compensation over time, 45 the underlying problems were not solved until the derogation of the Civil Code of 1964. Even Section 444 (3) of the Civil Code of 1964, however, only concerned reflective damage consisting in emotional distress. It was this provision that for more than a decade preserved the paradoxical situation when damages are granted for a “mere” emotional distress but not for psychologic injuries of secondary victims. It was not until the new Civil Code and its strengthening of the rights of secondary victims that brought about the called for changes. Extended were not only the amounts of compensation but also the types of compensable damage. The “non-pecuniary harm” that is newly compensated under Section 2971 linguistically covers both the emotional distress and the psychiatric injury. However, the core provision in this regard is certainly Section 2959 that introduces new term of “mental suffering”. One would have to interpret the term in a very restrictive way not to include psychologic injuries. Both provisions are clearly aiming at strengthening the secondary victims’ position. The continued application of the Supreme Court case-law is in sharp contrast to the purpose of the substantial law. 41 See for example the decision of the Constitutional Court of the Czech Republic of 1 March 2000, II. ÚS 517/99, or the judgment of the Supreme Court of the Czech Republic of 28 February 2005, 30 Cdo 1678/2004. 42 See the decision of the Constitutional Court of the Czech Republic of 4 May 2005, Pl. ÚS 16/04. 43 See RYŠKA, Michal. Komentář k § 2959. [Commentary to Section 2959.] In PETROV, Jan, VÝTISK, Michal, BERAN, Vladimír (eds.). Občanský zákoník. Komentář. [Civil Code. The Commentary.] C. H. Beck, Praha 2017, p. 2909. 44 See RYŠKA, Michal. Kočka má devět životů, kolik zdraví má člověk? [The Cat has Nine Lives, How Many Healths Does a Man Have?] Jiné právo. (21 November 2008.) accessed 20 May 2019. 45 See the judgment of the Supreme Court of the Czech Republic of 27 September 2012, 30 Cdo 83/2011.

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