Application For Annulment Of The Provisions Of Part Five Of The Cpc "administrative Justice"

Original Language Title: návrh na zrušení ustanovení části páté OSŘ "Správní soudnictví"

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=51551&nr=276~2F2001~20Sb.&ft=txt

276/2001 Coll.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 27. June 2001 in plenary on draft M. C., R.

And (IV). the Chamber of the Constitutional Court to repeal some of the provisions of section

the fifth "administrative justice" Act No. 99/1963 Coll., the code of civil procedure,

as amended, or the whole of this part of the code of

Code of civil procedure

as follows:



Part five "administrative justice" (section 244 – 250s) of Act No 99/1963 Coll.,

Code of civil procedure, as amended, is hereby repealed on 31 December.

December 2002.



Justification



During the years 1999-2001 was submitted to the Constitutional Court, the plenum of the several

the proposals that have been made specifically to the provisions of unconstitutionality

part five of the Act No. 99/1963 Coll., the code of civil procedure, (hereinafter referred to as "o. s.

ř." ) of the administrative judiciary. The first is a proposal that handed M. C. together with the

the constitutional complaint for annulment of the provisions of section 250 d of paragraph 1. 3 and § 250j para.

4. row the essence of this proposal is to claim neústavnosti concept

that does not allow any appeal against a decision

issued in the administrative justice system, and that even in those cases where the

issued by the decision is not a decision on the merits, but control.

discontinued for alleged defects in design, non-payment of the court fee

etc., without, in contrast to the rules applicable in the ordinary civil

proceedings, was clearly erroneous or precipitous decision of the Court

reparovat. This is related to the fact that these decisions, which

in effect, means, in fact, denial of the right to a judicial

protection, the Senate does not act, but the President of the Senate itself. This proposal when

public hearing of the Assembly, the Constitutional Court of 27. 6.2000 and then

written submission from 5. 9.2000 navrhovatelův counsel has changed and

He said. In particular stated that after the submission of its proposal was by law No.

30/2000 Coll., the civil procedure code changed, even in the originally contested

the provisions of section 250 d of paragraph 1. 3. Although this Act takes effect up to 1. 1.

2001, however, probably is in this part of the proposal unnecessary, even if it is

a testament to the legislature seemed to be aware of the shortcomings of this

provisions. Whereas the said amendment of the quite extensive.

with the row, however, not jeopardise the fundamental shortcomings of the whole system of the administrative

at the same time, the judiciary has proposed that the Constitutional Court considered the cancellation of the whole section

the fifth of 5-this change your design then stated, in particular, that the

the legislature must be aware of the shortcomings, which the present adaptation of the administrative

the judiciary has, and is, therefore, surprising that for more than seven years

He was unable to proceed to the implementation of the Constitution of the Czech Republic (hereinafter referred to as

"The Constitution") and set up her expected the Supreme Administrative Court, while he could

to proceed to the creation of the Institute of the Ombudsman, the Constitution

does not know. He stated that crying out for mnohastupňovém control, but after the implementation of the

the mechanism, which would be allowed to correct obvious errors of administrative courts

and, in particular, allow the unification of the case-law of the courts, as in the series

cases in the county courts decide the same thing quite differently. Today's

Therefore, the situation is such that the correction of obvious errors can only do

The Constitutional Court, which undoubtedly is not his job. The appellant further stated,

that the mere deletion of itself or the cancellation provisions of § 250j para. 4.

(which was its original proposal) cannot, of itself, create meaningful

the system. Believes, therefore, that it is necessary to force the legislature to

This problem finally, and this can be dealt with, in his opinion,

achieved only by discarding the whole of part five of the row.



The proposal brought by r. p. 4. 10.1999 together with a constitutional complaint requests that the

The Constitutional Court finding set aside the word "legality" (or phrase in the

which form of this concept occurs) in specifically designated

provisions of part five of the row (this is the word the legality in § 244

paragraph. 1 and 2, section 245 paragraph. 1 the words "legality" and "the legality of the previously

by administrative "). Furthermore, it is proposed to abolish the entire paragraph

245 paragraph. 2 in § 247 paragraph. 1 cancellation of the words "legality of this" in § 249

paragraph. 2 the words "in what the Prosecutor sees the illegality of the decision of the administrative

authority ', in section paragraph 250i 1 the words "legality" in § 250i para. 3 words

"the legality of the contested" and finally proposes the cancellation of an entire paragraph

250j para. 1.



In the opinion of the applicant judicial review of an administrative decision to restrictive

only to the examination of the legality of the represents a major interference with the right

to a fair trial. The Court is obliged to discuss the matter comprehensively (hence the

After the material), which stores the particular article. 6 (1). 1 the Convention on the

the protection of human rights and fundamental freedoms (hereinafter referred to as "the Convention").

Provisions that do not allow the Court to examine, the factual and

the findings of the contested decision, which is a condition that is

in conflict not only with the cited provisions of the Convention, but also with the case-law

The European Court of human rights (hereinafter "ECHR"). In this respect,

the applicant points out, in particular, the judgment in the case of Albert et Le

Compte (10. 2.1983, 58, § 29), in which the Court found that

decision of the administrative authority must be subject to subsequent review either of the

by another institution which meets the requirements of article. 6 (1). 1 of the Convention, or

the Court, which has the so-called. full jurisdiction. Similarly, the ECtHR in case

Ozturk (21. 2.1984, and 73, § 67), and in the same sense it was decided i

in other matters.



The applicant further notes that the Constitutional Court of the Czech Republic

expressed in its award of 27. 11.1996, SP. zn. PL. ÚS 28/95 (No. 1/1997

SB.) the view that in our legal system is not clear and clearly based

the right to a full review of decisions of administrative authorities, by an independent and

impartial tribunal that would satisfy the requirements of article. 6 (1). 1

The Convention, therefore, the General Court, which was not only in the issues of the legality of

the administrative decision, but also to state the facts (IE. full

jurisdiction). In the same finding indicates, the Constitutional Court also to resolution

"On the protection of individuals in relation to the acts of the Administration" in the framework of the approved

The Council of Europe Committee of Ministers on 28. 9.1977, specifically to the principle I.

section 1, according to which "against any administrative act which could be

without prejudice to the rights, freedoms and interests of a party, is to have a participant

the opportunity to state the actual state of affairs and to the evidence ". In conclusion, the

the Rapporteur recalls that the ECTHR, your opinion on the Czechoslovak (and thus the de

facto and the current Czech legislation in the field of administrative justice)

expressed in the decision at issue the Slovak Republic Lauko ca on 2 December. 9.

1998.



Finally, then, is the plaintiff in the case also IV. Chamber of the Constitutional Court

that on two occasions he interrupted the proceedings on constitutional complaints according to § 78

paragraph. 2 Act No. 182/1993 Coll., on the Constitutional Court, and initiated the launch of

the procedure for the assessment of the constitutionality of the two provisions of part five of the row,

which in its view are strays from the constitutional limits.



The first of the cases related to complaints, m. m., constitutional complaints

joined the proposal to repeal section 139 (a). c) Act No. 50/1976 Coll., on the

land use planning and the building code (the building Act), as amended by

amended, under which could be per participant for the building

management considered to be just a neighbor, who had a common border with the land

its promoter. This proposal, the Constitutional Court in a separate proceeding

kept under SP. zn. PL. ÚS 19/99 and the contested provisions of the construction

the law set aside the findings of 22. 3.2000, no. 96/2000 Coll., on the day of its publication in the

the finding in the journal of laws.



In the opinion of IV. the Chamber of the Constitutional Court, however, in addition to the cited

the provisions of the construction Act was the reason for the exclusion of the complainant

the possibility of submitting an administrative action whether or not the provisions of § 250 paragraph. 2. s. l.,

that permission to sue binds to a condition of participation in the administrative

control. This provision appears to be inconsistent with article as paragraph 36.

2 of the Charter of fundamental rights and freedoms (the "Charter") and of the

the following reasons:



The definition of the circle of participants in the administrative proceedings Act No. 71/1967

Coll., on administrative proceedings (administrative code), in its section 14. In paragraph 1 of this

the provisions of the general definition of a participant is expressed in the administrative proceedings,

that is because the rights, legally protected interests or

responsibilities should be in control of the branch, or the one whose rights, law

protected interests or obligations may be directly affected by the decision.

The party is also the one who argues that it may be in their decision

the rights, legally protected interests or responsibilities directly affect, and it

up until the opposite is proved. Thus defined circle of

proceedings is undoubtedly konvenuje the provisions of article content. paragraph 36. 2

Of the Charter. According to § 14 para. 2 of the administrative code is a participant in the proceedings as well as

the one whom such status confers a special regulation. In the sectors

However, there are a number of administrative law regulations of the special, which is

the concept of a party arranged specifically and often defined even closer

way than the one that would fit the general definition contained in section 14

paragraph. 1 of the administrative code. [As an example-in addition to the Constitutional Court

of the cases studied, relating to certain types of civil proceedings-


include for example. § 17 para. 3 of Act No. 44/1988 Coll., on the protection and use of

mineral wealth (the top Act), as amended, when

party to the proceedings for the establishment of the protected area is only

the petitioner, or § 9 para. 8 of the Act No. 229/1991 Coll., on the adjustment of

the ownership of land and other agricultural property as amended by

amended, the so-called. the law on the ground that the parties

It considers only the authorized person liable person and Land Fund,

not, however, for example. the person in whose favour the rights

the relevant factual proof].



Locus standi to file an administrative lawsuit, therefore, in some cases,

they don't have bodies, about whose rights or obligations were clearly

treated, or they can be in their rights by decision of the authority of the State

without prejudice to the management. While it cannot be excluded that it may go even about basic rights

(in relation to the above příkladmo set out the specific rules would

account in particular of the right to ownership). The provisions of § 250 paragraph. 2. s. l.

thus creates inequality and is, in the opinion of the Senate not only in breach of article.

paragraph 36. 2 of the Charter, but does not meet the requirement arising from the article or. 6

paragraph. 1 of the Convention, namely the requirement that anyone whose civil rights or

commitments, must be guaranteed the right to access to court.



Finally, IV. Chamber of the Constitutional Court in connection with the decision of the

a constitutional complaint RNDr. S. D. proceedings and submitted to plenary

The Constitutional Court to assess the constitutionality of the provision of Section 250a of the row.

designating the obligatorním representative before the administrative court may be

only a lawyer (or notary according to the amendment of the round made by law No.

30/2000 Coll.). In the opinion of the Senate, in a situation where a considerable part of agenda

administrative courts are the stuff of tax and when Act No. 523/1992 Coll., on the

tax advisory services and the Chamber of tax advisers of the Czech Republic, in paragraph 6 of

provide that tax advisers are entitled and obliged to protect the rights and

the legitimate interests of their client, and consistently enjoy all

the legal means to protect its rights, it's about the State of the obvious nesouladnosti

the legislation of the same strength, which would no doubt be under the rule of not

exist. If o. s. l. exempts from resources available for the protection of

client rights tax advisors for administrative action, the Senate considers

that such a limitation lacks reasonable grounds and is inherently limiting

the right to freedom to conduct business according to the article. 26 paragraph 2. 1 of the Charter. Although according to the

paragraph 2 of this article, the law may lay down the conditions and limitations for

the exercise of certain professions or activities in the establishment of such

restrictions respecting the principles laid down in article 4(1). 4 (4). 3 and 4, of the Charter. In addition,

If the legislature wished to exclude from the jurisdiction of tax advisers law

to act before the Court, should do so expressly in the Act No. 523/1992 Coll.

Unconstitutionality of Section 250a of the row thus sees the IV. the Senate

The Constitutional Court in the omission of the legislator to include in the enumeration of persons

entitled to represent before the administrative courts, tax advisor (of course

only to the extent permission according to special regulations, as it

It has made the amendment a. s. l. u of notaries). If not doing so, this

the provisions of the arbitrariness of the characters, when a group of people undoubtedly

qualified to provide legal aid within the meaning of article 87(1). 37 para. 2

The Charter is a group and is removed as a result of this exclusion is limited

the subject of his business, laid down by law. Just for completeness, the Senate

notes that the same applies to patent agents (Law No. 238/1991 Coll.,

Patent Attorney Act, as amended).



Day 10. 10. the 2000 plenary of the Constitutional Court has decided that all of the above

the proposals are connected to a common management and will continue to be kept under

single SP. zn. PL. ÚS 16/99.



After joinder received the Constitutional Court together with the constitutional complaints proposal

Private basic schools and. J. s. &, s. r. o., on the repeal of section 250 d of paragraph 1. 3

o. s. l. Resolution SP. zn. PL. ÚS 4/01 of the 2. 2. the 2001 Constitutional Court this

the proposal because of the lis pendens refused and stated that the appellant has the right to

to participate in the hearing on the SP. zn. PL. ÚS 16/99 as a side

participant. Similarly, the Constitutional Court decided by resolution SP. zn. PL. ÚS 7/01

21.2. 2001 on the proposal for Ing. (D) to repeal section 250i para. 1. s. l.



In the Chamber of deputies of the Parliament of the Czech Republic States

in particular, that article. paragraph 36. 2 of the Charter expressly provides that the Institute

judicial review of an administrative decision is based on a review of the

legality, namely that the Court examines only legal adjudication of the matter. This

the principle of the Charter is then instantiated in the respective provisions of the.

5-Chamber of Deputies therefore does not share the opinion of those neústavnosti

the provisions of s. r., which limit the activity of the Court to review the legality of

the decision of a public authority. The draft, IV. the Chamber of the Constitutional Court

on the repeal of § 250 paragraph. 2. with a 5-Chamber of that article.

paragraph 36. 2 of the Charter permits the Act of reviewing some

the decision to exclude, and specifies that it must not be a basic

rights and freedoms. In accordance with this solution of the round some of the administrative

the decision of the review. Assesses the § 250 paragraph. 2.

in relation to the article. paragraph 36. 2 of the Charter, it cannot be concluded that it is

unconstitutional, since it clearly says that anyone who claims that he was

a participant in the administrative procedure or not, but should be, and was

by decision of the administrative authority, truncated in their rights, may file a

the action. The purpose of the review of administrative decisions is not that of the row.

expanded the circle of participants compared to the administrative procedure, which has already been declared,

because the judicial review cannot be general management. In the opinion of the Court

Indeed, the Chamber of Deputies does not directly rule on a specific law, but

the subject of the proceeding is an administrative act, which reviews only in terms of

the rule of, i.e.. its compliance with the law.



As regards the limitation of tax advisors to act before the courts, believes that it is

The Chamber of Deputies for the concurrent with the article. 26 paragraph 2. 2 of the Charter. States that it is

While true that Act No. 523/1992 Coll., speaking about the provision of legal

assistance in the area of taxes, duties, fees and other similar payments,

as well as in matters related to taxes, but the concept of "legal aid"

here used is not identical with the notion of "legal aid", which regulates article. 37

paragraph. 2 of the Charter. A person authorised to provide legal aid within the meaning of

This article considers the Chamber of Deputies when it comes to civil court

control, only lawyers and notaries. Whereas that part five of the row.

of the administrative judiciary, regulates the specific control when an administrative act is

reviewed only in terms of the rule, and the Court does not deal with the assessment of

the facts, the Chamber of Deputies does not consider the tax advisor,

in particular with regard to its lack of legal education, as a person

could represent in this proceeding. As a supporting argument lists

The Chamber of Deputies, also the fact that the qualifying examination for tax

the expert can fold and the person that has the only complete secondary education. From

for these reasons it is not considered mandatory representation in the editing Section 250a of the row.

to be unconstitutional.



The Chamber of deputies also drew attention to the last large novel about.

with row deliberated and approved by the Chamber of Deputies and the Senate, which

It responds not only to the necessary changes in the field of Justice, but at the same time

trying to delete has not yet problematic provisions in judicial practice

deliver interpretive problems often. Senate of the Parliament of the Czech Republic

comment only on the issue of mandatory representation by a lawyer when

He stated that the purpose of the provision of Section 250a of the row, which has been in the law

inserted in amendment at the end of 1991, was an effort by the legislature of

ensure that the action for review of decisions of administrative authorities

have been administered competently and in order to avoid possible landslide lay

Administration against acts of the Administration, though mostly it is a legally complicated

cases for which an assessment of legal education is necessary. At the same time

It was apparently monitored in order to modify the mandatory representation in administrative

the judiciary did not differ from the like of the Institute in such extraordinary appeal procedure and in

an action for annulment. At the end of the observations the Senate States that

in principle, although it is not excluded that the contested provision was extended

as to tax advisers appear before the courts in matters of

relating to tax issues, however, would be largely

took the effort to legislators about the qualified legal representation before the

by the Court. Annulment of the contested provisions could lead to an increase in

unqualified actions and to an increased load of general courts.



Other Senate proposals only stated that the creation of the contested

the provisions did not engage. These provisions have been in a row with inserted already

the Federal Assembly by law No 519/1991 Coll., amending and

supplementing the code of civil procedure and the notarial regulations.



The Ministry of Justice, in its opinions on the various proposals

stated in particular that the Charter in article 6(2). paragraph 36. 4 assumes legal

the definition of conditions and details, under which you can claim a right to

judicial review of the legality of a decision of a public authority. O. s. l.


they are doing so in their part of the fifth, where it defines the procedural conditions for the

exercise of the rights to judicial review. If this procedural regulation specifies

in the interest of the Court Act option and make decisions, the requirements for

the particulars of the action, the Court is entitled to require rectification of defects

Action (if such defects are preventing its factual) and where to

When you disregard the requirements of the Court for the removal of the defects of the complaint, the court proceedings

He stopped, without action, cannot be decided in substance, in such legislation

seen as a disproportionate restriction on the right to a judicial review under art. 36

paragraph. 2 of the Charter. Similarly is the case in other cases in which the law in

section 250 d of paragraph 1. 3 enables a court to stop the proceedings. If this provision

the law did not contain, intractable situation, how should the Court

do this for example. in the case where the suit was filed out of time,

by an unauthorized person, or in the case where the plaintiff took action, etc.



The Justice Department also argued that there is no doubt that the

an appeal against a court decision is an important tool,

to allow the correction of erroneous judgments and make

the unification of judicial decision making. That is why one of the aims of the reform

steps in the administrative judiciary is to anchor the appeal, since the

When the víceinstanční court decisions directly from the Constitution and the Charter of

It is needed to process the prescription to allow axle

individual erroneous decisions and uniformity of decision-making

itself to administrative justice and remedy erroneous decisions not

transmitted through the Institute a constitutional complaint to the Constitutional Court.

However, you cannot change a legal associate only with the provisions of § 250j para. 4.

with round, because with the exception of proceedings in cases referred to in § 250s para. 2.

with the row cannot be in matters of administrative justice take part four of the row.

the remedies.



The Ministry of Justice in terms of de lege ferenda, allege that the

as regards the legislative intentions in the field of administrative justice, it is

aware of the fact that current legislation is not sufficient and it must be

Replace with a new modification that would meet both the requirements of the Convention and

the constitutional order of the Czech Republic, and that this must be an adjustment

functional, interconnected with the reform of public administration and the new codification of the

administrative procedure and acceptable in terms of expenditure from the State

the budget, which will require such a project. Valid legislation

reflects the time of its birth, when it was necessary to the Board as soon as possible

the judiciary as an institution to introduce, and it was therefore necessary to make use of the existing

judicial system, and be based on the possibilities for its load. When

the Constitution of administrative justice apparently have not been fully anticipated

the consequences for the sector of Justice arise out of the Convention, in particular

its article 34(2). 6 (1). 1. the difficulties in finding an optimal and

únosného solution of the obligations arising from this provision were the main

the reason for delaying the establishment of the Supreme Administrative Court as the administrative

Justice required a comprehensive solution. Valid to modify are mutually

whole intervention in individual provisions without changes to the provisions

the follow-up should this adjustment was made.



The Justice Department also mentioned the inconsistency between article. paragraph 36. 2

Of the Charter and article. 6 (1). 1 of the Convention. Recalls that the ECHR did not file the abstract

definition of the term "civil rights and obligations" and should therefore be based on the

individual decisions of this Court, according to which the concept

need to include a wide range of things that are not yet seen as a

on the matter of public law. While the application article. 6 (1). 1 of the Convention has

the case-law of the Court tend to still wider conception.



In terms of § 250 paragraph. 2. s. l., does not have a Department of Justice

doubts about the constitutionality of this scheme in relation to the judgment given in the

administrative proceedings in which the parties to the proceedings follow the definition

According to § 14 para. 1 of the administrative code. However, it is clear that many of the management, in

which follows the code of administrative procedure, have a range of participants compared to the

the provisions of § 14 of the administrative code is restricted so that not all persons who

prejudice to the rights and obligations, or in respect of which the rights in

the proceedings in question are in the proceedings before the administrative authority of the parties and may here

to defend their rights, and cannot see that in these cases the legislation

determined by an inequality. In the opinion of the Ministry of Justice would remedy

This condition, however, should be ensured by adjusting the specific rules rather

administrative law, in which the persons concerned in their rights of

participation in a certain type of administrative proceedings is excluded.



As regards the issue of mandatory representation by a lawyer, is based on

The Ministry of Justice of the opinion that the lack of orientation in

the field of procedural law could be prejudicial to the person against which an action or

the remedy of judicial review. Therefore, the qualifying

the prerequisites laid down by Act No. 523/1992 Coll. for the activity

tax adviser appears to be the Ministry of Justice for the area

administrative justice as insufficient.



In general terms, then the Ministry of Justice, for the case

The Constitutional Court came to the conclusion about the provisions under consideration of neústavnosti.

with round, pointed out the need to keep the time required to

in order to be carried out necessary legislative changes, if

comprehensively as possible, within the framework of the reform of the administrative justice.



To query the President of the Constitutional Court of 7 July. 6.2001, what is the current

the status of the legislative work on administrative justice reform, said

the Minister of Justice, the reform of the administrative justice represents

extremely challenging legislative project not only in terms of the scope of the

the legislative draft, but above all in terms of finding the optimal

g/l solution, since it will significantly affect how the rights of the people,

that can invoke legal protection, as well as the activities of public

Administration. The Department of Justice therefore prepared in 2000

"The default argument for the preparation of the concept of administrative justice and possible

variants of its organizational structure ". This handout Government presented in

July of last year, both houses of Parliament, and after the House

the Chamber of Deputies on 24. 1. the 2001 resolution has recommended to the Government,

which has received majority support, it was possible to work on the preparation of the proposal

Start Act. The Commission was created, composed of leading experts

legal theory and practice and cooperation were asked constitutional committees

both houses of Parliament. In the present work are discussed

draft legislative curriculum and the Minister assumes that the proposals will be

submitted to the Government for consideration in August of this year. It is assumed,

that a new legislation on Administrative Justice takes effect 1. January

2003.



After weighing those arguments and opinions, and after hearing přednesů

the Minister of Justice and a representative of R. P. at the oral proceedings concluded

The Constitutional Court concluded that the part of the fifth of the round it is necessary to cancel.

In doing so, he conducted the following considerations.



There is no doubt that the way to restore administrative justice of the amendment.

in 1991, it was understood at the time of its creation as a temporary solution, with

Mindful of the necessity of the implementation of the overall management and the creation of a recodification

a meaningful system of administrative courts. Due to the fact that in a short time

were accepted without reservation the obligations deriving from the Convention (No. 209/1992 Coll.),

that judicial control activities in the area of public administration puts the requirements of

considerably wider, said a provisional measure in many points still

troubled.



This State has acceded, the fact that the Constitution of the courts system

explicitly incorporated the Supreme Administrative Court, without transitional and

final provisions the establishment of this Court postponed the imposed, respectively.

specific tasks specific to the authorities, as well as the time limit for the establishment of a constitutional

State. The constitutional order thus calculated, with the highlight of the system of administrative courts,

While the law governing this sector the judiciary (part five of the row.)

It is built completely differently when creating three independent planes

making a decision, and this decision is, with the exception of pension,

final.



The current system does not provide judicial protection against acts of unlawful

procedures or interventions of public administration that have the character and form of

the administrative decision (in particular, immediate interventions or interventions, the issue of

certificate with often significant legal effects, etc.), the resource is not

to judicial protection against inactivity Administrative Office, administrative courts may not

right to decide on the validity of acts of the public administration (e.g., whether it is

about insignificant Act or whether the validity of the decision, which it grants permission, or

an obligation to lapse. the passage of time, etc.). Also, in these

cases often informs the Constitutional Court.



A separate issue is the so-called. administrative punishment, where the constitutional

findings of the Court 17. 1.2001, SP. zn. PL. ÚS 9/2000 (No. 52/2001 Coll.)

repeal of § 83 para. 1 of Act No. 200/1990 Coll. on offences, as amended by

amended, which is secreted from the judicial review of the decision,


they were penalized at least serious offences, has moved things

a little forward, however, this area is not in accordance with the Convention,

as "criminal charges" within the meaning of article 87(1). 6 (1). 1

the ECtHR virtually control of any sanctions imposed

administrative offices of natural persons have committed an offence or an administrative offence,

as well as the penalties to be imposed in disciplinary proceedings or disciplinary

(civil servants, soldiers, COPS) and stored in the

similar procedures to members of the Chambers with compulsory membership. The Court must then be

gifted with powers to consider not only the legality of the sanctions, but also its adequacy.



These reservations, together with the fact that our administrative courts

their decision-making process have been modified in a manner according to part five of the row,

warrant stated that existing administrative judiciary in the Czech

Republic, in terms of process and competence, although generally corresponds to the Constitution

and the Charter, however, the article does not match. 6 (1). 1 of the Convention, if the Convention

clearly requires that on the right (that is, on the merits, and not just about

the legality of a previous administrative act, the Court or Tribunal) ruled a similar

authority. In our adaptation, therefore, the Court can only delete decision

illegal, but not materially defective. In other words, decided. cannot be an administrative

discretion replace the independent judicial body dependent consideration.

If that is so in matters of civil rights and obligations "and" administrative

punishment "within the meaning of the Convention, this condition is unconstitutional, in other matters

will stand.



From the above analysis of the current situation shows that you can regard those

the appellants, who state that the row already by in his part five

governing the administrative judiciary, regardless of the specific nature of the case

satisfied with the mere control of legality and in its provisions closer to the

This control adjusts only, is contrary to article. 6 (1). 1 of the Convention and

in General, therefore, even with the constitutional order of the Czech Republic. This deficit can not be

in the opinion of the Constitutional Court to deal with otherwise, rather than a fundamental change in the concept of

the administrative judiciary, legislature, in particular with

taking into account the case law of the ECTHR-rich to ensure the full judicial control in

all areas that are considered to be within the meaning of that case-law article.

6 (1). 1 of the Convention as a "civil rights and obligations", respectively, and are sorted under the

the term "any criminal charges".



As regards the issue of the constitutionality of the procedural adjustments no longer administrative justice

limits in most cases, on one level, it should be noted that the Constitution

or Charter a multi-stage judiciary guarantees as a fundamental right.

Such a right cannot be inferred either from international treaties. Article 2

Protocol No. 7 to the Convention the right to at least one repair

proceedings before the Court of higher instance only in more severe criminal

matters. The same law enforcement provides to the person article. 14

The International Covenant on Civil and political rights (No. 120/1976

SB.). On the other hand, however, it cannot be disputed that the requirement to

a mechanism for the unification of case law (even if only in the form of

the cassation complaint or another extraordinary appeal) results from

requirements for the State that defines itself as a State law.

The absence of such a mechanism, in effect, then, leads to the

the lack of pressure on the cultivation of the public administration as a whole and to the feelings

authorities of this administration, and often legitimate, they are subjected to judicial

check that lacks a unifying feature. In addition, the absence of

any resource unification of case law leads to administrative courts

the fact that the role of "sjednocovatele" are in violation of their status

getting the Constitutional Court. This condition creates a fundamental inequality between

legal and natural persons on the one hand, and the administrative offices,

because the State has no means to oppose the sometimes diametrically

different decisions of administrative courts. In other words, the Executive does not have the

the ability to invoke the supreme body of case-law, the assessment of the administrative power

the Court has considered that, contrary to the law.



With regard to the proposal from the IV. the Chamber of the Constitutional Court to repeal § 250 paragraph. 2

o. s. l., it is obvious from the current editing, that the making of the locus standi

to submit the administrative action the previous intervention in administrative proceedings may

in some cases, lead to a situation where the claim of rights-that is, from

the right of access to court-are excluded entities whose rights

or obligations were clearly heard, or they can be in their

rights affected by a decision of a public authority (and it cannot be excluded that the

can go on the right base, eg. on the right of ownership). Therefore

the unequal status of the persons concerned in their administrative rights

by decision. Such a State is in breach of article. paragraph 36. 2 of the Charter and with

the requirements arising from article. 6 (1). 1 of the Convention, since it is not met

the requirement that each of the civil rights or obligations, it must have

guaranteed the right to access to court. This unconstitutional status can be

undoubtedly, the address in a way that suggests in its observations

The Ministry of Justice, which changes the way the provisions of the laws of the

administrative law, that persons who may be in their rights without prejudice to the

an administrative decision, from participation in the administrative procedure. Such

How could an effective solution and therefore desirable, as the possibility of

defend their rights should be granted to all persons concerned already in

administrative procedure itself. It should be noted that a positive rate

the legislature itself in this direction has already made the correction of certain specific

Regulations (e.g. expanded the definition of the participants in the proceedings about the building closure

or protected area in the building law). Also, the Constitutional Court in the award of the

22.3. 2000, SP. zn. PL. ÚS 19/99 (No 96/2000 Coll.), which set aside the

definition of the term "neighbor" in the provisions of § 139 (a). (c)) to the building Act,

as well as in the report of 22. 3.2000, SP. zn. PL. ÚS 2/99 (No. 95/2000 Coll.),

which was repealed the provisions of § 78 para. 1 of the same law that specifies the

participants in the so-called. the final building approval proceedings, acted in this spirit.



Outlined the problem could be solved by an immediate part of the first sentence of the derogations

the provisions of § 250 paragraph. 2. row 3 expressed with words "as a participant

the administrative procedure ", as well as the cancellation of the second sentence of this paragraph, that

It is superfluous, since, whether someone is a participant in the administrative

proceedings, does not depend on whether the administrative authority with him as with such treats.

In addition, this provision as it were excused by the underlying condition management

of the necessity of the legal power of the contested decision. On the other

However, the Constitutional Court's side was aware that already limits participation

the plaintiff and the defendant (article 250, paragraph 1, of the row) is compared to the

interwar modify step back, which, moreover, even the official

comment to the row, when it talks about the fact that this provision gives from

constitutional terms the doubts and de lege ferenda, will require effective

axle. It is obvious that it should be a matter of general interest, in order to

Administrative Court dealt with not only by the opposition petitioning, but on

to all persons who were involved in the matter,

the possibility to defend their rights before the Court.



Finally, as regards reservations IV. the Chamber of the Constitutional Court to

the constitutionality of the provision of Section 250a of the row, it should be noted that mandatory

representation, whether a lawyer or other specialist (tax advisors,

Auditors, patent attorneys, etc.), not before administrative courts

the basic degrees in Europe. Despite this uniqueness and factual

the stringency of the Czech legislation, however, cannot be a valid concept to reproach the contradiction

with the constitutional order. Against the possible objection to restrict access to the Court can be

ensuring the equality of the participants argue in proceedings before an administrative

the Court, therefore, that the applicant has not suffered a significant disadvantage against the defendant to the administrative

the authority, which usually represents a qualified civil servant. Mandatory

legal representation is generally used for the realization of the principle of equality of arms,

as the character of a fair trial. The legislature, so that when a new

consider the need for a codification of the necessary legal representation in General, as well as

and whether legal assistance or the right to the assistance provided for in article. 37

paragraph. 2 of the Charter, can be ensured only by persons with a University

legal education. In this context, the Constitutional Court notes

in the case of mandatory legal representation is essential to ensure better

than in the availability representation for persons socially weak.



The Constitutional Court concludes and summarizes the current adjustment of administrative justice

It shows serious deficits in constitutional law. Above all, there are some

the activity of the public administration, as well as its possible inaction, under

the control of the judicial system at all. Further, not everyone who may be in their

rights without prejudice to an administrative decision, shall have the right to go to court. If

then even such a right is not a party in the full, fair process in the

meaning of article 87(1). 6 (1). 1 of the Convention, although it should be in a number of things.

Issued by the judicial decision is final and then (with the exception of the constitutional

the complaint) unreformable, which leads to inconsistent case law, as well as

in unequal position of administrative authority, that is, to the State of rozpornému with


the requirements of the rule of law. Finiteness of certain decisions (stop

control) can lead to a denial of Justice. Finally, the performance

the administrative judiciary is organized in a way that ignores the

the fact that the Constitution in the article. 91 lists as part of a system of courts

The Supreme Administrative Court.



For these reasons decided by the plenary of the Constitutional Court repealing the entire section

the fifth of the round, since the constitutionality of these deficits cannot be based on its

opinion meaningfully address the Sub derogacemi. It does so with the knowledge that a number of

the provisions of this section and the institutes in her neústavními are not adjusted and

will be in this or that form, also present in the new edit. Likewise, it is

The Constitutional Court recognises the difficulty described the constitutional legislative solutions

deficits, on the other hand, is forced to recall that the unconstitutionality

subordinate problems pointed out in a number of its Senatorial and plenary

in particular, when reminded that it is not his job to replace

non-existent the Supreme Administrative Court, to interpret the ordinary, in particular

administrative law, and provide judicial protection as the only judicial instance.

Therefore, after considering all the imagine that in the past, in the direction of the Executive

and the legislature has done, and after taking note of the status of work on the reform of the

administrative justice, decided to postpone the enforcement of the revoking

the operative part to 31. December 2002. In so doing, the Constitutional Court believes

the need for a longer vacatio legis of this fundamental change, which implies that the

the adoption of the new legislation is a task for the legislature.



The President of the Constitutional Court:



JUDr. Kessler v. r.