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repealed on 13 November.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.
