269/1996 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic decided on 24. September 1996 in plenary in the matter

proposal IV. the Chamber of the Constitutional Court of the Czech Republic to repeal the provisions of the

Code of civil procedure § 250f



as follows:



The provisions of § 250f of Act No 99/1963 Coll., the code of civil procedure, in

as amended, shall be repealed on 1 January 2000. May 17, 1997.



Justification:



(I).



Resolution SP. zn. IV. TC 252/95 of 13 December 1995 June 1996 interrupted the IV.

Chamber of the Constitutional Court (hereinafter referred to as the "Senate") proceedings in respect of the constitutional

j. m. complaints a complaint is directed against the judgment of the regional court in Brno

No. 29 Ca 393/94-24 of 7 May. 8.1995. The reason for the stay of proceedings

was the fact that the Senate again and detailed consideration of all

of the facts and in particular taking into account the decision of the European Court

for human rights concluded that the provisions of § 250f civil

Code of civil procedure (hereinafter referred to as "the row") is inherently unconstitutional, and that the

This unconstitutionality cannot be eliminated merely by tapping into its interpretation and

strict and sporadic use of.



The above conclusion is based, in particular, the Senate of the fact that the administrative

the justice system the United States is conceived as a management jednoinstanční,

without any options, even if extraordinary appeal. To

frequent argument the courts, that the provisions of article. paragraph 96. 2 of the Constitution of the United

Republic (hereinafter referred to as "the Constitution") stipulates that the hearing before the Court is

the oral and public, but the exceptions provided by law, the Chamber is of the view that the

This permission is necessary to interpret the legislature in all other

the context, in particular with regard to the provisions of article. 38 para. 2 of the Charter of

fundamental rights and freedoms ("the Charter") and article. 6 (1). 1 of the European

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

That provision of the Constitution understands the Senate so that the law may exclude

the public and the participation of the person to whom the matter concerns, in some degrees

management, for example. in proceedings of appeal or Cassation. The principle of public

the negotiations, however, must be respected in at least one instance of the. In this

regard the Senate on the judgment of the European Court of human

rights in case of 1986, Hakansson (A-99), and certain other

the opinion of this Court. In the opinion of the Chamber cannot accept a common

the objection of the courts, that similar proceedings. and management pursuant to § 243a.

row and some of the other, since this is a procedure where at least

one instance was a party to the proceedings.



If a valid legal regulation of administrative justice, in particular § 250f

o. s. l., allows the nenařizovat negotiations, even though they are administrative divisions

all levels of the courts of the first and only court that has

implemented the right to judicial protection, the Senate is of the opinion that this

the provision is in breach of article. 38 para. 2 of the Charter and article. 6 (1). 1

Of the Convention.



Last but not least the Senate argues that non-public discussion of the case

and the absence of any appeal against a decision

issued in such proceedings is deprived of any possibility to claim

with respect for the principles of fair process. one could argue the judge's bias,

requesting an interpreter, etc. For all the above reasons, the Senate decided to

According to § 78 para. 2 of the Act on the Constitutional Court to suspend the proceedings and handed

the plenum of the Constitutional Court to repeal the provisions of § 250f o. s. l.



II.



In its observations on the draft, which is brought by the Chamber of deputies of Parliament

The United States on 22 November. 7.1996 and signed by the President of the Chamber of Deputies

Milos Zeman, stating that proceedings under part five of the row.

conceived as a specifically modified the process by which the Court is based on the

the rule of the State that was at the time of issue of the decision of the administrative authority.

Negative enumeration to in Section 248 of the row represents the Constitution permitted

breakthrough to the general principle, because of the jurisdiction of the Court is prohibited

exclude only things listed in the article. paragraph 36. 2 the second sentence of the Charter. According to the

the opinion of the House of the provisions of § 250f o. s. l., while breaking down the

the principle of immediacy and oral deposition of the judicial process, on the other hand

However, complies with the requirements of decision making, where the taking of evidence

does not, and the Court decision of the administrative authority or change, or

attest. The conditions for the application of this provision is, however, necessary to

interpreted strictly and narrowly. Full provision is also to be

interpreted in the context of the provisions of § 250j para. 2. s. l., so that

cases which are not covered by this provision, covers just the provisions of

§ 250f o. s. l. In the opinion of the Chamber of Deputies is the problem

the fact that the contested provision is apparently in a number of cases, courts used in

an attempt to simplify and accelerate the procedure, that is, such a procedure

prove to be incorrect. Unconstitutional therefore considers the Chamber of Deputies

application of the provisions of § 250f o. s. l., but not his own text.



In conclusion, the statement notes that the law has been approved by the necessary

a majority of the members of the Federal Assembly on 5 December. 11.1991, was signed by the

respective constitutional officials, and has been duly declared. In an additional

observations of 6. 9.1996 the Chamber of deputies of the Czech Parliament

the Republic agreed to in case it has been decided without

an oral hearing, as it allows the provisions of § 44 para. 2 of law No.

182/1993 Coll., on the Constitutional Court. In the comments, that, at the request of the constitutional

the Court has made the Ministry of Justice of the Czech Republic on 22 November. 7.1996

and that is signed by the Director of the Legislative Department of JUDr. Milan

Kamlachem, States that the contested provision is based on the needs of the administrative

the judiciary as the appeal of the legality of the decision of the administrative authority checks

and from the essential differences from the civil and administrative justice

the criminal proceedings. This essential difference lies mainly in the fact that

the facts at the time of making the application to the Court has been stabilised and cannot be

change. The Court is bound by the facts as found by the administrative

authority, it cannot itself make new findings of fact and on the basis of

to decide on the merits of the case. If the findings of inadequate and

do not allow to assess whether the decision was made in accordance with the

by law, the Court has to cancel, even if such a decision, if participants

make suggestions for additional evidence. Additionally, in the comments points out

the need to assess the contested provisions in the context of the provisions of § 250j

paragraph. 2. s. l., the Court shall decide after the hearing.



In the representation of the Ministry of Justice further notes that section

250f o. s. l. applies not only to simple cases, but also on the

cases where the contested decision is nepřezkoumatelné for

incomprehensibility or for lack of reasons. As for the "simple

case ", podřazuje judicial practice under this concept and cases where it is

In contrast, no doubt that the facts of the public authority correctly

was not detected. When it comes to interference the decision by reason of the

nepřezkoumatelnosti for incomprehensibility, ranks here judicial practice

a diverse spectrum of substantive and procedural defects in the administrative

the acts of which it is common that one cannot reliably determine whether and how

affected the rights and obligations of the applicants. To the Group of nepřezkoumatelných

the decision for lack of reasons, then the Court practice includes

cases where the rationale is missing, although this requirement in a particular case

the procedural regulation provides, as well as cases where the administrative authority could and should

enjoy free considerations, but the necessary findings to this consideration did not.



In the opinion of the Ministry of Justice is not the purpose of § 250f o. s. l.

withdrawal of the right to a public hearing of the case where there may be direct participation

Parties to the dispute in any way, to the benefit of things, but the purpose is to reduce

the case where there is no doubt that the negotiations would be useless

and they would have no effect on the outcome of the court proceedings. From this

point of view, therefore, this provision can be regarded as a legal exception in

the meaning of the provisions of article. paragraph 96. 2 of the Constitution, without conflict with

the purpose of the rights guaranteed by article. 38 para. 2 of the Charter. While there is no doubt,

the system of administrative justice of the Czech Republic is not in full compliance with the

article. 6 (1). 1 of the Convention, which is the Czech Republic as a Member State of the Council of

Europe bound, since the review of the legality of decisions of administrative authorities

General courts pursuant to part five of the row is insufficient, if he

does not precede the decisions of an independent and impartial body, which should

jurisdiction not only in terms of the law, but also in terms of

the facts. To resolve this issue, however, is extremely challenging, is related to the

the functioning of the entire executive branch, with its structure, with a territorial arrangement

the State and defining the scope of the Supreme Administrative Court. It is therefore

common ground, that the repeal of the provisions of § 250f itself of the row itself would

itself did not lead to the strengthening of the principles of due process in the administrative

the judiciary, but would often only to formal acts, however,

considerably strained by the courts. For all these reasons, it is recommended that the Ministry of

Justice carefully considered the proposal of the Senate. In the event that the Constitutional Court

concludes about the neústavnosti of the contested provisions, shall be deemed to


The Ministry of Justice considered it necessary to provide for a longer time for it to

It was possible to create the conditions for the proper performance of the administrative judiciary.



III.



After the evaluation of all of the above opinions and observations, it was

plenum of the Constitutional Court concluded that the Senate proposal is reasonable.

The provisions of § unconstitutionality of 250f row yet does not result from the analysis

This provision alone, but in particular to the nature of the existing editing

administrative justice in the Czech Republic. Administrative justice is

conceived as a jednoinstanční control, without the possibility of sound or

extraordinary remedies. Administrative divisions of general courts of all

degrees are thus the first, but also the only court in which

is the right to judicial protection. If valid legislation,

specifically, § 250f o. s. l., allows this organization to the administrative

the judiciary hearing to order, and it's up to the discretion of the Court, and

the view of the participants on the need for, or the need for their hearing is legally

poor, the State does not respect the provisions of article. 38 para. 2

Of the Charter and article. 6 (1). 1 of the Convention.



On this view, the Constitutional Court, nothing can change the fact that in

the administrative judiciary the courts review the legality of the decision and only

are bound by the facts as found by administrative authorities. In

the administrative judiciary cannot depart from the factual findings, respectively.

You cannot limit the examination of the legality of the decision only, without the Court

He also questions the facts. It is apparent from, inter alia, the provisions of §

250j para. 2 CCP, which stores the Court assess whether findings

the facts is sufficient to assess the case and whether the findings of the

facts from which was based on the decision of an administrative authority,

does not interfere with the content of the files. If not, the Court is obliged to

the contested administrative decision to cancel and return the matter to the administrative authority

further proceedings. Such reviews and the survey may be direct participation

only parties to the dispute for the benefit of things. In this regard, reference may be made whether or not

the judgment of the European Court of human rights in the case of the 1994

Fredin (A-280), where the Court over the objection of the State, that the Supreme Administrative Court

You may only cancel the decision, cannot, however, substitute another

decision and, therefore, may decide on the basis of the writings and without

hearing the complainant clearly stated that if the Supreme Administrative Court

the first and only by the Tribunal in the case, it is

non-public hearing of the case the violation of the article. 6 (1). 1 of the Convention. The Court also

the Court held that the assessment of legal issues is not possible without it, without

consideration has been given to the relevant issues of fact.



Public control protects the party before the secret court beyond

the control of the public, and is also one of the means to create and

the maintenance of confidence in the courts (judgment of the European Court of human rights

in the case of 1983, Pretto and-71). From the point of view of the constitutional can be

admit that the negotiations not be required in cases where the parties

expressly or tacitly waived this right (see similar judgment

The European Court of human rights in the case of Hakansson and Sturesson

1990-171). the way this thing solves the Act No. 182/1993

Coll., on the Constitutional Court, the provisions of § 44 para. 2.



Plenum of the Constitutional Court agrees with the view that the Senate

at the conclusion of their resolution on interruption of the proceedings, i.e.. that non-public

consideration of the case and the absence of any appeal

the decision, which was issued in such proceedings, deprives of the participant

options for crave respect for the principles of fair process, e.g.

bias on the judge's request to argue for interpretation into the native language

etc. In this regard, the plenary of the Constitutional Court only notes that

This is a constitutional problem arises even at non-public discussions in other

the fields of the judiciary.



On the other hand, the Constitutional Court is aware that, in terms of compliance with the

fundamental human rights is problematic especially existing system

administrative justice in the Czech Republic, in which the absence of a

an independent body that would decide "on the right of the heart", in conjunction with the

limited jurisdiction courts, contrary to the obligations for the Czech

Republic stem from the provisions of article. 6 (1). 1 of the Convention. The Constitutional Court's

is fully aware that such a body may become difficult to administrative boards

General courts in its present form. It also does not consider that the remedy

existing State can bring the repeal of the provisions of § 250f

or part-provision of s. r. Is also aware that

the necessary adjustment is likely to be positive, though in terms of the constitutional

undoubtedly, stands up to the cancellation of an administrative decision without a hearing in cases

nepřezkoumatelných and lacking justification, as well as the management of

done this way, with the explicit or otherwise expressed consent

participants. Last but not least then it is obvious that the annulment of the contested

the provisions for the courts will mean an increase in their workload, and even

the case will be referred to if accompanied by positive modification.



All indicated problems and context, however, in the opinion of

The Constitutional Court, the only reason for the postponement of the enforcement of the operative part of the

repeal of the provisions of § 250f o. s. l., however, does not change Anything on the fundamental view

for the reasons above this provision as unconstitutional should be

Cancel.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.