Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=51551&nr=276~2F2001~20Sb.&ft=txt
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
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Code of civil procedure, as amended, is hereby repealed on 31 December.
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.
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 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
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
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,
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
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.
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