In The Matter Of The Application For Revocation Of § 32 Para. 2 Of The Act. The Aliens

Original Language Title: ve věci návrhu na zrušení § 32 odst. 2 zák. o pobytu cizinců

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=46713&nr=160~2F1998~20Sb.&ft=txt

160/1998 Coll.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court decided on 26 April. May 1998 in plenary on the draft City

Court in Prague to repeal § 32 para. 2 of Act No. 123/1992 Coll., on stay of

aliens in the territory of the Czech and Slovak Federal Republic, as amended

the texts,



as follows:



The provisions of § 32 para. 2 of Act No. 123/1992 Coll., on foreigners ' stay on

territory of the Czech and Slovak Federal Republic, as amended,

repealed on 13 November. May 1999.



Justification



(I).



On 22 November. 8. The Constitutional Court has received a proposal from 1997, the municipal court in Prague,

repeal the provisions of § 16 para. 3 and § 32 para. 2 of Act No. 123/1992 Coll.,

on the residence of foreigners on the territory of the Czech and Slovak Federal Republic, in the

as amended. The Senate 28 Ca municipal court in Prague came when

the hearing of the action, filed pursuant to part five second head of the civil

Code of civil procedure, the decision on the expulsion of the applicant under section 16 of the Act No.

123/1992 Coll., concluded that the statutory provisions, to be in the solution of

things used are in conflict with the Constitution of the Czech Republic (hereinafter referred to as

"The Constitution") and the Charter of fundamental rights and freedoms ("the Charter"), and

namely the provisions of § 32 para. 2 of Act No. 123/1992 Coll., with art. 36

paragraph. 2 of the Charter and the provisions of § 16 para. 3 of the Act with article. 2

paragraph. 3 of the Constitution and article. 2 (2). 2 and article. paragraph 36. 1 of the Charter. Therefore, Urban

a court in Prague in its resolution of 25 June 2002. 7.1997, SP. zn. 28 Ca 37/97 proceedings

before him, held pursuant to § 109 paragraph. 1 (b). (b)) of row and

The Constitutional Court has submitted an application for annulment of the above provisions.



In this case, decided by the municipal court in Prague under SP. zn. 28 Ca

37/97, the Prosecutor v. h. sought review of the decision of the police

the Presidium of the Czech Republic, the Directorate of aliens and border service

Prague police about his expulsion under section 16 of Act No. 123/1992 Coll. in the application

among other things, argued that the existing legislation contained in the Act of expulsion

No. 123/1992 Coll. is in contradiction with the constitutional laws and international

treaties on human rights, in particular article. 1 (1). 1 of Protocol No 7 to the

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

Therefore, objections raised against expulsion and sought to review the case

the Court, as he was not allowed to act in an orderly and a modified Steering

to lodge an appeal against the decision of expulsion. At the same time asked for the postponement of the

the enforcement of a removal order, and suggested to the Court that

the decision set aside. The legal representative of the applicant then told the Court that the

the plaintiff has already been out of the United States 7 December. 2. the 1997 expelled.



The action is expressed the Police Presidium of the Czech Republic, the Directorate

Aliens and border police, Prague, as the defendant. According to the

the defendant is the expulsion of the forced implementation of the decision on the prohibition of residence in the

the territory of the Czech Republic, it is not a separate procedure, but a remedy

the infringement arising when a foreigner even after the release of

decision on the prohibition of stay (as was the case also in the case of the applicant)

continue to be illegally staying on the territory of the Czech Republic. All repair

resources, including the possibility of review by a court, shall be made in the case of

decision on the prohibition of the stay. Therefore, in the case of expulsion is not issued

decision and is not even given the possibility of judicial review of this

the expulsion. If they were allowed legal remedies against expulsion,

This would in the opinion of the defendant to the paradoxical situation where by stranger

on the territory of the United States had banned, yet stay here could

stay still, if against it was not prosecution

for obstruction of the performance of official decisions and would be expelled by the Court then.

This means that the decision on the prohibition of residence would not be without a court

the judgment enforceable. In disregard of the prohibition of stay can be considered by the

the defendant found the conduct directed against public order, maintain

the protection of health or the rights and freedoms of others.



From the contents of the administrative file before the Municipal Court in Prague

The Police Presidium of the Czech Republic, the Directorate of aliens and

border police showed that an expulsion decision has not been issued in

a written copy. The Police Presidium of the Czech Republic, the Director of the

Aliens and border police, was on 21. 1.1997 under REF.

PSP-1-52/CP-c-97 filed Director foreign police proposal to Prague

administrative expulsion of the plaintiff, and this proposal was also approved.

The Police Presidium of the Czech Republic, the Directorate of aliens and

border police, then non of 3 June. 2. the 1997 requested the police

The United States on the provision and operation of escort duty for the purpose of realization of

the expulsion of the applicant on 6. 2. the 1997 over the border crossing

Prague-Ruzyne Airport-to-airport. The file also includes a protocol for the expulsion of foreigners from

the territory of the Czech Republic, according to which the applicant was deported on 6. 2.1997.



Municipal Court in Prague, in the grounds of its application

The Constitutional Court shows, came out of the opinion, that the process of deciding on the

the stay of the alien in the territory of the United States, according to the applicable legislation

(Act No. 123/1992 Coll.) divided into control on the prohibition of the stay and on the procedure for

the expulsion of foreigners. To the prohibition of stay according to the provisions of § 14 and 15

Act No. 123/1992 Coll. does not preclude the applicability of general rules on the

administrative procedure and the final decision on the prohibition of stay if they are

the proper remedies have been exhausted, is subject to review by the Court (§ 32

paragraph. 2 of Act No. 123/1992 Coll.). On the procedure for expulsion, however, under section

Article 16(1). 3 of Act No. 123/1992 Coll. General provisions of administrative procedure

not apply, and the decision, other than a decision on the prohibition of stay are under

the provisions of § 32 para. 2 of Act No. 123/1992 Coll. of judicial review

excluded, which is the case for action, the contested decision

the expulsion. Municipal Court in Prague, came to the conclusion that the decision to

expulsion cannot be in response to the article. paragraph 36. 2 of the Charter excluded from

review by the Court, as from the jurisdiction of the Court should not be excluded

review of decisions concerning fundamental rights and freedoms referred to in

Of the Charter, which also include the basic right contained in article. 14 of the Charter,

According to which an alien may be expelled only in cases provided for by

by law. The provisions of § 32 para. 2 of Act No. 123/1992 Coll., which has to be

When the solution of the case is therefore used in his opinion, contrary to the article. 36

paragraph. 2 of the Charter. Only if these statutory provisions repealed, may

the Court deal with the other aspects of submitted claims.



In the next part of the justification for its proposal, the municipal court in Prague, then also

points out the absence of proper written copy of the decision on the

expulsion and with this question the plaintiff's objection related to the contradiction

the provisions of § 16 para. 3 of Act No. 123/1992 Coll., with art. 2 (2). 3 of the Constitution and

article. 2 (2). 2 of the Charter. With reference to the provisions of § 16 to 18 of the law

No. 123/1992 Coll., and then after detailed analysis of the municipal court in Prague

It concludes that the provisions of § 16 para. 3 of Act No. 123/1992

Coll. is unconstitutional for its conflict with article. 2 (2). 3 of the Constitution and article. 2

paragraph. 2 of the Charter, as well as with the article. paragraph 36. 1 of the Charter, and therefore proposes (i)

the repeal of this provision. This proposal for a municipal court in Prague,

repeal the provisions of § 16 para. 3 of Act No. 123/1992 Coll., however, had to be

rejected by a resolution of the Constitutional Court [of 22 March. 4.1998, SP. zn. Pl. ÚS

27/97 pursuant to the provisions of § 43 para. 1 (b). f) Act No. 182/1993 Coll., on

as amended through 9. 5.1998], having regard to the fact that at the time of this

the design of municipal court in Prague, the Constitutional Court on the application for revocation

the same provisions of the Act, and that in the case conducted under the SP. zn. PL. ÚS 24/97.



II.



The Chamber of deputies of the Parliament of the United Kingdom in its observations on the draft

refers to the explanatory memorandum to draft Act No. 123/1992 Coll., which

in the general part States that the aim of this proposed law was

delete the existing shortcomings of the legislation using the knowledge of the

legislation in the States that have a migration of aliens many years

experience, in particular in Germany, Sweden and the United States. Additionally, in the observations that

the appellant in its deliberations it leaves out the fact that the procedure for expulsion

occurs only at the moment of failure to observe the prohibition of stay of foreign citizens on

which is made aware of the alien to a decision imposing a

the prohibition of residence, and does not take into account the so-called Institute. return that is

under international conventions used in the vast majority of cases just to

the return of persons who have been in the Czech Republic. For

provided that in the case of the expulsion of the effective implementation of the

decision on the prohibition of the stay, it seems fully sufficient opportunity to

in the previous review, the procedure for granting the prohibition of stay the appellate authority

or by the Court. The fact that the procedure of expulsion does not cover administrative

the order does not mean that there was a legal vacuum that allows

the emergence of official arbitrariness, the administrative authority shall proceed according to the law No.

283/1991 Coll., on the police of the Czech Republic, as subsequently amended,

and must comply with the provisions of section 18 of Act No. 123/1992 Coll., regulating the so-called.

obstacles to deportation. The State undoubtedly has the right to protect its territory and citizens

before the aliens who knowingly violate the law. In view of the high degree of


foreign crime and expected the reintroduction of the visa requirement with

some States proposed annulling the contested provisions of the entire

the situation in the area, shutting down the stay of foreigners more complicated and

zneprůhlednilo. In terms of time, cost, and effectiveness is not mainly

desirable that in the same case were two administrative control.

The President of the Chamber of deputies also confirmed in its observations, in accordance

requirements contained in the provisions of § 68 para. 2 Act No. 182/1993

Coll., that the contested act was approved by the required majority of members

The Federal Assembly of the CZECHOSLOVAK FEDERAL REPUBLIC on 4 October. 3. in 1992, has been signed by the competent

constitutional factors and duly promulgated, as indeed, Constitutional Court

He said in his finding SP. zn. PL. ÚS 24/97 of 13 March. 5.1998.



The Constitutional Court also demanded representation of the Ministry of the Interior. The proposal to

repeal the provisions of § 32 para. 2 of Act No. 123/1992 Coll., on the representation of

States that this provision should be interpreted in relation to the other provisions of the

the law. Expulsion decisions cannot apparently be considered decision

concerning fundamental rights and freedoms, since those rights can only be bound

to do this, an alien who is staying in the territory of the Czech Republic.

Expulsion, however, carries out only in the case of aliens who, in the territory

The United States will enter illegally or unlawfully residing here, and from the

This point of view, the provisions of § 32 para. 2 of the above-mentioned Act appears to be

as a constitutionally compliant. At the same time the Interior Ministry points out,

that started the legislative work on the new legislation of the stay

the aliens. In the case of compliance with the proposal therefore believes the Ministry of the Interior

for appropriate to defer the enforceability of the award by one year.



Ministry of Foreign Affairs in its opinion on the proposal for the city

Court in Prague refers to the interpretative report of the article. 1 (1). 1 of the Protocol

No. 7 to the Convention, according to which the term "expulsion" is considered

an autonomous concept, which is completely independent of the national definition and

indicates any action enforcing the departure of foreigners from the country, with the

the exception of extradition. Article 1 does not require that the person concerned stayed on the

the territory of the State until the outcome of the decision on the appeal against the decision of the

a review of her case. Way of reviewing is entirely entrusted to

national legislation is not even required that a review body

He was different from the authority that issued the original decision, and fully

sufficient is treated as autoremedura. As regards the right to be represented by the

before the competent authority or by a court, the interpretative report indicates that in itself

It does not include the right of the person concerned to participate in proceedings before these bodies.

As well as an oral hearing is not required in the present case-writing

the procedure is considered sufficient. From the case-law on article. 6 (1). 1

It follows that the Convention does not apply to proceedings relating to an authorisation to

residence and expulsion of aliens, if it is without prejudice to respect for

family life as "civil law". It is clear that in relation

to the article. 6 (1). 1 of the Convention is article. 1 of Protocol No. 7 to the lex specialis, which, however,

does not apply in the event that the outcome of the procedure of expulsion is crucial for

certain civil law. If you should happen to the expulsion of a person to

some countries, the public authorities have a statutory duty to nevyhostit it to

the country, where it could be violated her basic rights (such as, for example,

the right to life, the right not to be subjected to torture), this person does not

no opportunity to challenge the decision, which would be obliged to

failed to meet since the expulsion proceedings is excluded from the scope of

administrative code and specific legislation during not exist. From

the context of the representation of the Ministry of Foreign Affairs shows that, according to its

opinion is when expulsion to be in a particular case to consider whether the intervention

the rights of the person concerned represents only the expulsion, or whether to

they have already been affected by saving the prohibition of stay. If it was an interference with the rights of the

of the individual guaranteed by the contract limited to proceedings on the

imposition of a ban, from the perspective of the aforementioned provisions on

the expulsion should be seen only as the "execution" of the prohibition decision

stay and the article. 1 of Protocol No. 7, article. 6 (1). 1 of the Convention, in such

the case of the expulsion proceedings do not apply. However, if the expulsion

represents such intervention in the rights of the individual, not

decision on the prohibition of stay, but removal is necessary to

the expulsion to be seen not as a mere execution of a decision, but as the

"expulsion" by the article. 1 of Protocol No 7 to the Convention. From the perspective of the Convention is

possible from case to case to consider the procedure for expulsion under Act No.

123/1992 Coll. for the management of the investigative phase (if the expulsion of such intervention in the

the civil rights of the person concerned, that there was no preceding the

imposition of a ban of residency) or execution (if the expulsion

the same intervention in civil rights, which has already been preceding the

imposition of a ban). It is, therefore, according to the Ministry of Foreign Affairs

Obviously, if an expulsion procedure control is investigative, whose

the outcome is crucial for the civil rights of the person concerned, then valid

the legislation does not meet the requirement of article. 6 of the Convention, to bring about civil

Rights ruled an independent and impartial tribunal. Likewise, if the

the subject of this management decision making on the rights or freedoms

guaranteed by the Charter, are not true nor the conditions laid down in article. 36

paragraph. 2 of the Charter, because § 32 para. 2 of Act No. 123/1992 Coll. excludes

the procedure for removal from the jurisdiction of the courts.



III.



Institute of expulsion constitutes an essential intervention into the rights accorded

foreigners lawfully resident in the territory of a foreign State and, therefore,

the international treaty on human rights and fundamental freedoms-the Convention

on the protection of human rights and fundamental freedoms and the International Covenant on

Civil and political rights-as well as the Charter of fundamental rights and

freedoms includes provisions setting out the limits of such an interference with the freedom of

movement and residence of foreigners on the national territory and its abandonment. Even if the

the said Treaty or Charter do not guarantee foreigners the right not to be expelled,

provide protection against such interference in the freedom of movement and residence

aliens that would exceed the scope provided for by law.



Article 1 of Protocol No. 7 to the Convention stipulates that a foreigner who has enabled

stay on the territory of a State may be expelled only on the basis of

enforcement of a decision adopted in accordance with the law and must be able to

objections against his deportation, put his case and

give to be represented for this purpose before the competent authority or before

the person or persons designated by that authority. A foreigner may be according to the

This article is expelled before the exercise of the above rights, if such

the expulsion must be in the interest of public order or is justified by the interests of the

national security. Provisions like the wording then it also contains the article.

13 of the International Covenant on Civil and political rights.



Article 14, paragraph 1. 1 of the Charter guarantees freedom of movement and residence, with

regard to the provisions of article. paragraph 42. 2 of the Charter, as well as foreigners. In paragraph 5,

This article is then stipulated that an alien may be expelled only in

the cases provided for by law. Guarantee these fundamental rights and freedoms

i must therefore ensure the law governing the stay of foreigners on the territory of the United

the Republic, which is Act No. 123/1992 Coll.



Zaručovaná fundamental rights in connection with the removal of the alien constitutional

policy in the United States and international treaties are listed in

the principle is linked to the fact that the alien has in the territory of the State enabled

stay, therefore, that the territory of the State resides. The protection of these

the rights of aliens, however, is based on the principle of individual assessment

each individual case of removal and the possibility of applying the objections

against expulsion decisions, which may be decided only in the

the cases provided for by law and in a way that the law provides.



Act No. 123/1992 Coll. regulates the expulsion of foreigners in their Institute

the provisions of § 16 to 18. According to § 16 para. 1 may be deported alien,

who unlawfully enters or staying illegally on the territory of the United

of the Republic. The unlawfulness of entry, or the undue nature of the stay can be in

most cases in terms of the applicable legislation, clearly and

nerozporně assess and legally qualify in particular

unauthorized entry or after a decision on the prohibition of stay. May not

This, however, so in all cases. In this context cannot be

ignore the rules fixed and permanent residence of aliens in the

that Act, which in paragraph 6 allows you to repeatedly lengthen

the period provided for in the framework of the already permitted long-term residence, and in particular

the provisions of § 8 para. 1, which provides that an application for an

for the long-term or permanent residence can be made also on the territory of the

The United States Department of the Interior, while the time limit for a decision on such

the application is set out in section 9 of 60 days from the date of submission of the application. Just

in these cases, it may be the legitimacy of the alien's stay-in the period from

submission of the application to the decision about her--is questionable. Cannot be unambiguously


regard to the opinion of the Ministry of the Interior, that the unlawfulness of the stay can always be

be considered as objective legal fact. In common application practice

the expulsion of foreigners usually prevents the release of the decision on the prohibition of the

his stay on the territory of the United States--which can be used in the administrative

exercise proper control remedies, where appropriate, to seek and

of the judicial review in this proceeding (which may not necessarily each

the expulsion decision to prevent legal obstacles, however, expulsion)

referred to in section 18 of Act No. 123/1992 Coll., excluding the possibility of removal to

certain States are not, and according to the applicable legislation or may not be

considered, and a foreigner is therefore meet them in the case of a decision on

his expulsion cannot under the applicable legislation, to the exclusion of the use of

the administrative code without the possibility of judicial review of the way the law enforced

anticipated. In this State, then takes on the importance of the question of the procedure

State authorities in the provision of statutory conditions which must

Act No. 123/1992 Coll., the expulsion of the meet, which include, in addition to

the illegality of the entry or residence of foreigners on the territory of our State also

respect for the obstacles to deportation. For a custom control on the expulsion so

Act No. 123/1992 Coll. does not provide for a procedure by which it would be respect for

obstacles to expulsion ensured if the State authority to them

information shall be disregarded. Therefore, if this law in connection with specified

conditions and obstacles to deportation at the same time does not provide for a procedure establishing

their respect for the decision making of a removal order, it is necessary to

consider the contested provisions of § 32 para. 2 of this Act, excluding the

the possibility of judicial review of such a decision when based on

the provisions of § 16 para. 1 of the Act is not possible, the administrative

and when discretion under section 16(1). 3 of the Act on the procedure for

removal not covered by regulations on administrative proceedings, contrary to the

article. 2 (2). 3 of the Constitution, as well as the korespondujícímu article to him. 2 (2). 2

Of the Charter, according to which the State power can be exercised only in cases and in

the limits set by the law and the way that the law provides. The exclusion of

options for the review of the expulsion decision in those circumstances, the Court is

at the same time as a contradiction of the contested provisions with article. paragraph 36. 1 of the Charter,

which guarantees everyone the right to set out a procedure for redress of their

rights in court or other authority. For these reasons, it was therefore upheld

application for annulment of the provisions of § 32 para. 2 of Act No. 123/1992 Coll., on the

as amended. At the same time, however, having regard to the fact that this provision

the Constitutional Court shall be deemed to be unconstitutional only in relation to the decision

relating to expulsion, and being aware that-as stated in its

finding SP. zn. PL. ÚS 24/97 of 13 March. 5. the 1998 relating to the same

the law-that this is a crucial and sensitive issue that will

require a new, comprehensive and careful legislative handling, decided to

so, that the contested provisions of § 32 para. 2 is deleted only on 13 November. 5.

1999. as of the date on which the Constitutional Court has been cited

repealed the provisions of § 14 para. 1 (b). (f)) and paragraph 2. 4 of Act No. 123/1992

Coll., as amended, (article 58, paragraph 1, section 70 (1) of Act No. 182/1993

SB.).



The President of the Constitutional Court:



JUDr. Kessler v. r.