For The Vote Of The Unconstitutionality Of Section 124 Para. 1 Of The Act No. 326/1999 Coll.

Original Language Title: o vyslovení protiústavnosti § 124 odst. 1 zákona č. 326/1999 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=69024&nr=229~2F2009~20Sb.&ft=txt

229/2009 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled on 12 December 2003. in May 2009 the plenary panel of judges

Stanislav Bumpkin, Vlasta Formánkové, Franz Duchoně, Vojena

Güttlera, Pavla Holländera, Ivana Janů, Vladimir Crust, Dagmar

Lastovecké, Jana, she (the judge-rapporteur), Jiří Nykodýma, Miloslava

Excellent, Elizabeth Wagner and Michael Židlické on the proposal of the Supreme

Administrative Court to declare the unconstitutionality of section 124 para. 1

Act No. 326/1999 SB. on residence of aliens in the territory of the Czech Republic and

amendments to certain laws, as amended by Act No. 218/2002 Coll., with the participation of

The Chamber of Deputies and the Senate of the Parliament of the Czech Republic as participants

control



as follows:



Proposal to declare the unconstitutionality of the provisions of section 124 para. 1 of law No.

326/1999 SB. on residence of aliens in the territory of the Czech Republic and amending

certain acts, as amended by Act No. 218/2002 Coll., is rejected.



Justification



(I).



1. June 10. in March 2008, the Constitutional Court has been served the Supreme

Administrative Court made pursuant to article. 95 para. 2 of the Constitution of the Czech Republic

(hereinafter referred to as "the Constitution") to declare the unconstitutionality of the provisions of section 124 para.

1 of the Act No. 326/1999 SB. on residence of aliens in the territory of the Czech Republic and

amendments to certain laws, as amended by Act No. 218/2002 Coll. (hereinafter referred to as

"Aliens Act"). The appellant did so once in control of the

cassation complaints, citizen of Ukraine (in proceedings on a complaint of Cassation

and in the text of the preamble to this finding "the complainant"), led by

under SP. zn. 2 As 22/2006, concluded that the contested provisions,

to be used in solving the case, it is in breach of article. 1 of the Constitution and with the

article. 1 of the Charter of fundamental rights and freedoms ("the Charter"), and that this

the contradiction could not be bridged or constitutionally Conformal interpretation.



II.



Circumstances of the case



2. The complainant was in criminal proceedings, kept by the District Court in the affirmative,

sentenced to expulsion (judgment dated November 16, 1999 No. 1

T 69/1999-203), this penalty has not been enforced and the complainant continues to

resided in the territory of the Czech Republic. After the decision of the police of the Czech

Republic, the Regional Directorate of the alien and border police

Prague from 28 June. November 2003 no j. SCCPS-465/PH-OPK4-SV was

the complainant saved deportation, despite the aforementioned decision

The District Court in the affirmative. Even then, however, the complainant in the Czech

the Republic did not leave.



3. On 4 December 2002. April 2005, published by the Regional Directorate of aliens and

border police Prague under no j. SCF-I63/PH-OPK4-SV-2005 decision

to ensure the complainant pursuant to section 124 para. 1 of the law on residence

the aliens.



4. The complainant the same day from the police to the issue so that it was no longer

in criminal proceedings sentenced to expulsion, the territory of the Czech Republic

However, he did not leave, he was without a travel document, and therefore made up new

the name, which was used. He asked for asylum, but he has not been granted.

From the territory of the Czech Republic neodcestoval, because he didn't want to. Furthermore, he stated that

The Czech Republic has a child with whose mother does not live in the same household.

A child doesn't care, and neither does not apply to it. In his letter to the child is

mentioned herein are fictitious name of father v. p., because this name set in the asylum

control.



5. in the preamble to the decision of the Regional Directorate of aliens and

border police of Prague 4. April 2005 to provide the complainant

pursuant to section 124 para. 1 of the Aliens Act states that

the complainant has travelled to the Czech Republic in 1999, and to this day

This left the territory and even attempted to make it legal for your stay. He was

aware that he is staying here illegally, in violation of the above

the judgment and the decision on administrative expulsion. For these reasons it has

the police considered that, given the risk that the alien could thwart or

hinder enforcement of administrative expulsion.



6. this decision of the Regional Directorate of aliens and border service

the police of Prague 4. April 2005 the complainant was attacked by an action in which the

He stated that the Czech Republic has a child that wants to take care of, and

due to the length of the ensuring the child should ensure adequate care,

which would be contrary to the principle of the Declaration of the rights of the child 6.



7. the municipal court in Prague, by judgment of 9 June. September 2005-No. 7 Ca

187/2005-38 an action in s. rejected. In the preamble to its decision

the Court held that the content of the administrative file implies that Regional Directorate

Aliens and border police, Prague progressed in accordance with the

the law and properly assess that the complainant could hinder the performance of the

a decision on administrative expulsion, since they are on the territory of the Czech Republic

delayed unduly. The Court added that in addition, the complainant against the State

authorities performed under a fancy name. To the head of claim

the complainant that in time will be able to take care of his son,

Municipal Court stated that these factors act on the stay of foreigners in

the case of the detention of a foreigner does not reflect (as opposed to the actual

administrative expulsion). Furthermore, it was pointed out to the fact that, in itself, ensure

the alien is only a temporary decision, and relatives in the arguments of the parties

The Czech Republic are dealt with in a possible decision on the administrative

the expulsion. Municipal Court also added that the complainant to the police

the Protocol stated that a child does not care and does not apply to it, and for this reason

his voucher on the Convention on the rights of the child act strongly assigned.



8. Against the decision of the municipal court in Prague, the complainant filed an appeal

the complaint. In the appeal the complaint the complainant alleged that the Administrative Department

Neither the administrative court assess the reasons for the sentence

expulsion in criminal proceedings conducted by the District Court in Kladno (No. 1 T

69/1999-203), however, can be inferred that a marriage with a citizen of

The United States, respectively. another relationship in a straight line, it is

the reason for that is the penalty of expulsion does not grant. If it is still

such a penalty saved, the convicted person has the right to apply after three years of

the abandonment of the performance of the rest of the sentence. The complainant further stated that

Regional Directorate of aliens and border police, its Prague

by decision of 28 June 1999. November 2003 no j. SCCPS-465/PH-OPK4-SV

decided to save the administrative expulsion, despite the already mentioned

the decision of the District Court in Kladno issued in the criminal case. The complainant

It is also noted that in relation to a minor V. P.,

who is a citizen of the United States, which was also true at the time of the administrative

decision making, and thus was the reason that the deportation was not saved.

Administrative expulsion is by its very nature redundant, as well as

the decision on the detention of a foreigner under the provisions of section 124 para. 1 of the law on

residence of aliens. The complainant further stated that on the territory of the Czech Republic

already is not present and is not allowed contact with his underage son. Therefore,

requests that the decision was made about the fact that his deportation in

2003 and its subsequent collateral under the law on aliens was

illegal. The justification for a complaint of Cassation then sees the provisions of § 103

paragraph. 1 (b). a), b) and d) of Act No. 150/2002 Coll., the administrative court rules,

(hereinafter referred to as "s. r. s."). For these reasons, the complainant suggested judgment

the municipal court to cancel and return to the next thing control. At the same time

asked about granting suspensive effect of appeal the complaint.



9. the procedure for complaints of Cassation, decision of the Supreme Administrative

of the Court of 21 June. 12.2007 No. 2 As 22/2006-88 aborted because

The Supreme Administrative Court concluded that the statutory provision that has

be used when solving things, conflict with the constitutional order, and therefore

thing under art. 95 para. 2 of the Constitution submitted to the Constitutional Court and suggested to

the provision of section 124 para. 1 of the Aliens Act was repealed.



10. The documents before the municipal court in Prague SP. zn. 7 Ca 187/2005 on

checks (No. 51) that, according to the Regional Directorate of communication services

the foreign and border police, Prague from 13 June 2005. 12.2005 No.

SCCPS-14-5711/PH-XIII-C-2005 he was the complainant on 22 November. October 2005 from the United

the Republic expelled with the validity of administrative expulsion to 26. September 2015. In

the present time is likely to be staying on the territory of Ukraine.



III.



The arguments of the applicant



11. The Supreme Administrative Court in any proceedings took the view that the

the statutory provisions of section 124 para. 1 of the Aliens Act in the Governing

the texts, which should be used in solving the case, is in conflict with the constitutional

policy in the United States, as the limitation of personal freedom on the basis of

the relevant provision is in conflict with the constitutional imperatives of equality and

of proportionality. The Supreme Administrative Court has first of all considered that the restrictions

personal freedom according to the provisions of section 124 et seq. of the Aliens Act

determined by rationally unjustifiable inequality. Even in the case that the Constitutional

the Court concluded that the principle of equality in question legal editing

violated was not considered by the Supreme Administrative Court for this adjustment

incompatible with the principle of proportionality. Furthermore, the Supreme Administrative Court

points to the fact that this conflict is not only an academic

the question, but it has a number of negative consequences that fundamentally


interfere with the rights of detainees.



12. The Supreme Administrative Court expressed the view that there is no reason to

termination of the proceeding concerning the application for annulment of the legal provisions,

though by no means does not deny that the amendments made by law No.

428/2005 Coll. has changed the provision of section 124 para. 1 of the law on residence

the aliens. The Supreme Administrative Court emphasises that, in the present case, it is a

the procedure referred to in article directly. 95 para. 2 of the Constitution, which is conceptually based on the

functional differentiation of the General and constitutional justice. The General Court is in

the constitutional system of the Czech Republic is bound by the law, which in its

the decision-making activities, and is obliged to always interpret it and

applied constitutionally Conformal manner. At the same time cannot be disputed,

the Court is also bound by the constitutional order, IE. system standards

nadzákonné of legal force. Therefore, if a situation arises when a General Court

leads to the belief that the Act or a part thereof, which is required at the

specific things apply, cannot be interpreted, and as constitutionally conformally in

conditions of the democratic rule of law it is not conceivable that a court

consciously follow banned standards, represents his only

the possibility of submitting the matter to the Constitutional Court to assess the constitutionality of

a specific law, with the subsequent legal opinion of the decided Constitutional

the Court is a General Court for a binding.



13. The Supreme Administrative Court pointed out that the process of comparable

the situation should be handled by the Constitutional Court in the award of 10 June 1999. January 2001, SP. zn. PL.

TC 33/2000 (N 5/21 SbNU 29; 78/2001 Coll. ^ *; This finding, as well as all

the following decisions of the Constitutional Court are available in electronic

the database on the Web at http://nalus.usoud.cz), which also ruled

on the proposal of the General Court, brojícím against certain legal provisions in

the time of the decision of the Constitutional Court has already adopted. Because of the situation

in the present case is now comparable with the previously expressed by the

the legal opinion of the Constitutional Court, contained in the cited award points

The Supreme Administrative Court on the direct applicability article. 95 para. 2 of the Constitution and

proposes to give the unconstitutionality of the provision of section 124 para. 1 of the law on

aliens in applied text, IE. in the version before the amendment

made by law no 428/2005 Coll. and Act No. 379/2007 Coll., in full

the intentions of this finding. The Supreme Administrative Court therefore considers that the

The Constitutional Court in this case, for reasons that convincingly expressed in

that finding is not entitled to proceed in accordance with the provisions of section 67 para.

1 Act No. 182/1993 Coll., on the Constitutional Court, IE. the resolution to stop

control. Among the basic principles of the rule of law are prohibition

retroaktivního effect of the legislation, which is a direct consequence of the

among other things, the obligation of all authorities with a right (including the General

courts) always use the law in a form in which were in force in

a time when there has been a decisive legal realities. Therefore, in any legal

prescription may be at the time the decision of the Constitutional Court has already changed or

even cancelled without compensation, must continue to be applied to the legal

earlier, relations arising during the period of its validity and scope.

If, in such cases, the Constitutional Court has denied the substance of the assessment

the constitutionality of these provisions with reference to their later, grant the derogation,

raised by this situation conscious violation of constitutionally guaranteed

fundamental rights and freedoms of the parties, since the courts would be left

anything other than pursuant to these laws, which would have been the constitutional

satisfied, decide to continue.



14. The Supreme Administrative Court pointed out that personal freedom, which is

protected article. 8 of the Charter, is one of the fundamental human freedoms, which is

reflected not only by the Charter, but also international treaties on human

rights.



15. Detention of a foreigner is regulated, in particular in paragraphs 124 to 129

Act No. 326/1999 SB. on residence of aliens in the territory of the Czech Republic and

amendments to certain laws, as amended. Under the provisions of

§ 124 of this Act the relevant text is the police empowered to ensure

a foreigner who has been served with the notice of the initiation of the administrative

the expulsion, there is a danger that it could compromise the security of the State,

seriously disrupt public order or obstruct or hinder

enforcement of administrative expulsion. Time ensuring it must not

exceed 180 days and is calculated from the time the limitation of personal freedom. In

the case of foreigners under the age of 18 years shall not exceed 90 days time to ensure

(article 125, paragraph 1, of Act No. 326/1999 Coll.). About the detention of a foreigner

shall be decided by the authority of the police, and his decision shall take legal force

service or after the alien refuses to accept the decision. After the legal

the decision can police the stranger. Detention must be without

undue delay, ended after the demise of the reason for detention. Whether the reasons

to ensure lasting, the police is obliged to examine all the time

the duration of the detention. Additionally, ensure the ends, if the Court decides in

Administrative Court of the annulment of the decision on the detention of a foreigner,

If the Court ordered in proceedings under special legislation (provisions

§ 200o-200u of Act No 99/1963 Coll., the code of civil procedure, as amended by

amended, hereinafter referred to as "o. s. l.") the release of the foreigners, if

aliens granted asylum or subsidiary protection or if aliens are allowed

in order to protect long-term residents in the territory. As regards the review of the

ensure, is against a decision regarding the securing of a claim may be submitted by the Board.

The Administrative Court then decides on the legality of the decision of the police.

In addition, it is possible to follow the code of civil procedure. On a proposal from

foreigners initiating proceedings pursuant to § 200o-200u o. s. l., in which the

the Court examines whether the last conditions for its security.



16. Legal provision detention of a foreigner found his constitutional term in article 2(1). 8

paragraph. 2 of the Charter, which provides that no one may be prosecuted or deprived of

liberty otherwise than on grounds and in the manner provided by law. This

the provisions establishing a general exception to the rule that personal freedom is

guaranteed (article 8, paragraph 1, of the Charter), and allows you to get rid of someone's personal

freedom of the grounds provided for by law in a way that also laid down

by law.



17. With regard to the Convention for the protection of human rights and fundamental freedoms (hereinafter referred to

"the Convention"), the situation is different. Limitation of personal freedom must occur only

of the reasons envisaged by the Convention. Limitation of personal liberty for other reasons

It would be inconsistent with the Convention. The Institute of detention of a foreigner is classifiable

under the provisions of article. 5 (3). 1 (b). (f)), of the Convention, which allows "legal

the arrest or detention of a person to prevent his effecting an

unauthorised entry into a territory or a person against whom action is being taken on

deportation or extradition ". Detention of a foreigner is not foreseen by the Convention and

the reasons and how to ensure they are regulated by law, but in accordance with the

the constitutional order and the Convention is to ensure, in the opinion Institute

the appellant only prima facie. A review of the constitutionality of the contested

the provisions cannot be reduced only to the assessment of the fulfillment of the formal

characters. The very fact that the adjustment is carried out by law, thus fulfilling the

Read article in isolation requirements. 8 (2). 2 of the Charter, is not sufficient to

that adjustment was found to be constitutionally Conformal. First of all you need to start

from the article. 4 (4). 4 of the Charter, which provides that, in applying the provisions of

the limits of fundamental rights and freedoms must be preserved and

the meaning of. The provisions of article. 8 (2). 2 of the Charter is clearly the provisions on

the limits of the fundamental freedoms. Additionally, you must be, in addition to the fulfillment of the formal

characters, legislation in accordance with the constitutional principles, which include

among other things, equality and proportionality. If the legislation concerned with

These principles, in compliance is not, it must be according to settled case-law,

The Constitutional Court cancelled [cf. e.g. Constitutional Court, SP. zn. PL.

TC 25/97 of 13 March. 5.1998 (N 53/11 SbNU 25; 159/1998 Coll.) or find

The Constitutional Court, SP. zn. PL. ÚS 6/2000 of 31 March 2000(1). 1.2001 (N 22/21 SbNU

195; 77/2001 Coll.)]. With both of these principles is the contested adjustment

opinion of the Supreme Administrative Court.



18. In the opinion of the Supreme Administrative Court modifying the provisions of § 124 and

subs. of the Aliens Act violates the principle of equality. The principle of the

equality is enshrined in particular in article. 1 of the Charter, which says that people are

free and equal in dignity and in rights. Equality is one of the

basic legal principles and found expression in a number of provisions of the

constitutional and podústavních regulations (preamble to the Constitution, article 1 of the Constitution and

article. 3 (2). 1 of the Charter). The principle of equality is undoubtedly also one of

requirements of rule of law. Equality in the concept of the Czech constitutional order

even the concept of other modern constitutions, however, is not an abstract category and

absolute. Equality of persons before the law is understood as a relative equality,

that only requires the removal of unjustified differences. It is for the State,

to decide that a certain group will provide fewer benefits than the other, but must

demonstrate that they are doing so in the public interest and for the public good. In other

words, it is for the legislature to see if one group of people more rights


than others, but if they do so, it is necessary that this resolution

comply with certain rules, and was rationally justified. Similar to the

the conclusion was already ratified by the Federal Constitutional Court [cf. find

The Constitutional Court of the Czech and Slovak Federal Republic SP. zn. Pl. ÚS

22/92 of 8 March. 10.1992 (collection of resolutions and of the findings of the Constitutional Court

Czechoslovakia, volume 1, year 1992, page. 38; also available on the

http://usoud.cz/)], and the Constitutional Court, SP. zn. PL. ÚS 4/95 (1)

7.6. 1995 (N 29/3 SbNU 209; 168/1995 Sb.). Equality is not seen

as a right in itself, but rather as a relative related category

always to the specific law.



19. in this case, the law in question a legal hit by editing the

personal freedom, as guaranteed by article. 8 of the Charter and article. 5 of the Convention. Although

the legislature may, on the basis of article 87(3)(c). 8 (2). 2 of the Charter to establish the reasons and

How to restrict personal freedoms by law must respect the constitutional imperative

equality. Formal equality de jure (or also "equality before the law")

implies that the legislature is required to access the same situations

as well, to comparable comparably and in differing differently. This, of course,

does not mean that it is required to access all the same.



20. Inequality in this case establishes the Supreme Administrative Court, in fact,

that comparable limitation of personal freedom cases are dealt with differently, and it

proves to be cheaper for other groups of people omezovaných at large.

The first question is that cases of limitation of personal freedom can be considered

comparable. Selecting the appropriate comparator in this case is very

difficult. However, it can be assumed that the purpose of this administrative

detention is the protection of society from harmful phenomena, i.e. before the

disruption of public order, national security threats or ztěžováním

enforcement of administrative expulsion (article 124, paragraph 1, of the Act on the stay

foreigners). Protection of society is also the purpose of the detention binding, and institutes

or "classic". A certain similarity can be traced even in

acceptance and possession in institutional health care, since the reason for this restriction

personal freedom under article. 8 (2). 6 of the Charter is often protection of the environment or

life and health (cf. section 23, paragraph 4, of Act No. 20/1966 Coll., on the care of

the health of the people, as amended). It's not just about the reason and

the purpose of the detention. The provisions of article. 8 of the Charter and article. 5 of the Convention guarantee personal

the freedom of all. It's about right (freedom of) any natural person. Most of the

cases, in particular if they match the reasons and purpose of limiting personal

freedom, you can therefore be considered comparable. Naturally, this does not mean that

in each case the limitation of personal freedom had to be solved as well, however, it is

necessary, in order for the differences there was a rational reason. It is, for example,

completely legitimate, that person may be taken into custody on a varying duration

Depending on what the offence is charged with. The seriousness of the crime and its

the danger to society is quite a legitimate reason for the significant

interference with personal freedom.



21. Furthermore, the Supreme Administrative Court has made a comparison of the detention of a foreigner and

his review with the above mentioned comparable cases of restriction of personal

freedom and also examined whether there are rational reasons

justify specific differences.



22. The Supreme Administrative Court especially compares the institutes to ensure

foreigners and binding. According to the article. 8 (2). 5 Charter shall be taken into

binding, except for reasons specified by law and on the basis of

the Court's decision. The custody must be decided only

by the Court, and not by the administrative authority. Proceedings of the binding is regulated in

Act No. 141/1961 Coll., on criminal court proceedings (code of criminal procedure), in

as amended, (hereinafter referred to as "tr."). Even during the duration of the

the binding is guaranteed periodic review.



23. Against the above decision on custody is possible to file a complaint (section

74 tr row). In detention matters is so guaranteed respect for the rights of the person

limited to the freedom on the one hand by the custody court, and

Furthermore, by keeping in custody must be decided periodically

the public prosecutor (in preliminary proceedings) or by the Court (in proceedings before the

a court). Both the Prosecutor and the court authorities, whose position

provides a greater degree of independence than in the case of the authority of the police.

This comparison so it shows that detention of a foreigner is much less

controlled by a court, and is thus more interference in the rights of the person limited to

freedom. Decision of the administrative authority does not provide such a guarantee

independence and respect for human rights as the Court's decision. A review of the

Moreover, not always, but only if it is filed.



24. in addition to the fact that the proceedings in the administrative judiciary and the

the initiation of proceedings pursuant to s. r. proposal is required foreigners, neobeznámeného with

Czech law, raises question marks and that the review is in progress

dvoukolejně. As for the lack of a solution, its inadequacy,

manifests itself in comparison with the binding. In the case of binding decides on withdrawal

to the custody of the same court, which decides on the reasons for its duration, the following

the filing of the indictment. In preliminary proceedings, namely, the reasons for its duration

the Prosecutor, however, decides on the complaint against his decision

Once again, is decided by the competent court.



25. The Supreme Administrative Court then compares the detention of a foreigner and taking into

Constitutional health care under the care of the health of the people. As far as

on the holding in institutional care, is judicial review started immediately and

will take place very quickly: the Court always decides within eight days from the beginning of

limitation of personal freedom. Even in this case, it is clear that the restrictions

fundamental freedoms is always subject to judicial oversight. Auto Court

the review of the so may exclude the excesses of administrative authorities. The role of the Court in this

the procedure is considered very important, indeed essential, as well as the constitutional

the Court [cf. e.g. Constitutional Court, SP. zn. PL. ÚS 24/97 (1)

30.9. 1997 (N 117/9 89 SbNU; 299/1997 Coll.)]. Detention of a foreigner and therefore

from this comparison is based on as more serious and less controlled intervention

to personal freedom.



26. with regard to detention under the criminal procedure code, it is a very limited time

limitation of personal freedom, which is based on already from article. 8 (2). 3 of the Charter. Person

the detainee accused or suspected of an offence must be immediately

informed of the reasons for detention, questioned and no later than 48 hours

released or turned over to the Court. The judge must question the detained person

within 24 hours of the committal and decide on custody or

released. It is thus clear that, in the case of detention of a person can be

limit on freedom without the consent of the Court only for a very short period of time (even

more noticeable is the difference between foreigners and the provision under section 14

Act No. 283/1991 Coll., on the police of the Czech Republic, as amended

regulations). In fact, such a person may be limited to freedom of 72 hours (48

+ 24), which is 60 times less than in the case of detention of a foreigner.

The reason why similar restrictions on does not apply and the detention of a foreigner, it is

(as he admits and explanatory memorandum) the fact that the obligation to show off

secured foreigners before a judge or other officer empowered to

by law to exercise the powers under the provisions of the Convention shall not apply to this case

(the stranger was not arrested for the purpose of bringing him before the competent judicial authority

for reasonable suspicion of a crime). From a material

point of view there is no reason to put up with the accused or suspected of

of the offence, has been incomparably more gently than with the person for whom

There is a risk that could compromise the security of the State, seriously

way to disrupt public order or obstruct or hinder the performance of the

a decision on administrative expulsion, or is registered in the register of adverse

persons.



27. the fact that between foreigners and for example. bond or holding in the

health care is making a difference in the constitutional and Convention (article 5, paragraph 1)

in the opinion of the Supreme Administrative Court. First, it is said to be

must be borne in mind that the Charter would be due to the fact that it is about more than 40

years younger than the Convention document and ensures a higher standard of protection

human rights, should provide greater protection to those restricted to the

freedom. To the status of aliens, it should be noted that in this

they say the law has made the area in the last few decades (particularly in the

connection with the development of international law) of the huge progress and strangers

in many ways, they have the same rights as citizens of the State. Although it is on the

one side of the normal and legitimate for the State between foreigners and citizens

distinguishes, as regards political rights and social rights, the distinction in

field of fundamental rights (in particular the right to life, the right not to be subjected to torture,

personal freedom, prohibition of forced labour) should be the most

minimized. Furthermore, it is important to note that the resolution in the Convention

does not mean that you can do whatever you want. Although the Convention for the

cases, provide a higher standard of protection binding, but between the holding in

Constitutional health and ensuring that foreigners do not make the difference. Yet

have been chosen for the latter cases of limitation of personal freedom

vastly different models. They say the question is whether there is a rational

the reason why the legislator has chosen in the case of the Czech Republic as


disproportionately less favourable model than in other cases of limitation of personal

freedom. The only visible difference between the aliens and the other

the two cases is that the Czech Republic applies only to

foreigners. Although a distinction based on nationality may be in

some cases justified (for example, for some political or

social rights), has the highest administrative court for being rational here

the reason given is not a criterion of nationality is discriminatory.

You cannot, of course, after lawmakers require to choose the same model

review for all cases of limitation of personal freedom, but is said to be

insist that the reasons for the distinction must be rationally justified.

If you have set a completely different model of the limitation of personal freedom, the length of this

restrictions and its review is necessary, in order for it to exist a rational

the reason and that between this reason and solutions there was a connection.

That the legislature was merely the formal criteria of the constitutionality,

It is clear from the explanatory memorandum is said to Act (explanatory memorandum of 28 June.

April 1999, PSP, printing, 204), which is traditionally stingy to the argument of

concerning compliance with the constitutional order. It can be concluded that

the legislature in contravention of the principle of equality and without any rational reason

in the case of the Czech Republic model limitation of personal freedom that

This is clearly borne by the detainees. In relation to comparable

cases of limitation of personal freedom is the detention of a foreigner either disproportionately

long (detention, security), or lacks an automatic and efficient

judicial review (as in the case of binding or holding in the constitutional

medical care).



28. the adjustment of the provision of section 124 et seq. of the Aliens Act, said

The Supreme Administrative Court, violates the principle of proportionality also.

The importance of the application of this principle in the assessment of the

of fundamental rights is enormous, which is confirmed by the constitutional

Court SP. zn. PL. ÚS 24/97 of 13 March. 5.1998 (N 53/11 SbNU 25;

159/1998 Coll.). To examine whether the legislation, in accordance with the principle of

proportionality, the Supreme Administrative Court recommends that you use the standard

the test of proportionality in the form used by the Constitutional Court.



29. the applicant acknowledges that the legal adjustment is a legitimate objective pursued,

that is essential in a free democratic society. The aim of the Institute

detention of a foreigner is the protection of society from harmful phenomena, i.e.

before the disruption of public order, national security threats or

ztěžováním enforcement of administrative expulsion.



30. the applicant acknowledges that, given the rational connection between the objective and the

the means chosen to advance the cause, since it can ensure a truly

effectively avert threats has to defend, i.e.. violation of public policy,

threat to State security and impede the enforcement of the decision of the administrative

the expulsion.



31. The Supreme Administrative Court considers, however, that legislation cannot

to succeed in the third step of the proportionality test because there are

alternative ways to achieve the objective, the use of which would make intervention in

the fundamental right of less intense. to eliminate it entirely. It is said to be

entirely evident from the fact that there are better alternatives than the review

a review of ex post on the proposal of the secured. For example, the model similar to

model custodial, when the Court pronounced consent with the restriction of personal freedom

and after some time investigating whether the terms of the restriction, or model similar to

procedure referred to in article 14(2). 8 (2). 6 of the Charter, the Court must, within a certain period

agree with the restriction of personal freedom. The role of the Court in these

models provides greater assurance of respect for fundamental rights and freedoms

secured, and these alternatives are so in terms of the principle of

of proportionality. You cannot, of course, after the legislature require

to choose the same model review for all cases of restriction of personal

freedom, however, it is necessary to insist that the reasons for the distinction must be

rationally justified, and the method of the interference of the guaranteed rights must

be the mildest of those that still are sufficient to meet the stated

legitimate aim, or should at least move in a reasonable amount of

the framework. As it is said to be evidence that such methods exist, and that the real

they work, they must be (or similar methods) the legislature use. The very

the choice of funds is naturally on it, but it must not be so excessive

as in this case. The current legal provision detention of a foreigner is therefore

they say he inconsistent with the principle of proportionality, since there are alternative

ways to achieve the objective pursued, the use of which would make intervention in

personal freedom is less intense.



32. The Supreme Administrative Court therefore considers that the provisions in question,

which is applied, is in conflict with the constitutional order of the Czech

States, since it violates the principles of equality and proportionality, and

This contradiction cannot be bridged even constitutionally Conformal interpretation. Constitutionally

Conformal interpretation would in this case necessarily consist not only in the

establishment of new duties to administrative authorities, but also in the creation of a new

the type of proceedings before the Court, including the determination of periods, the method of consultation,

decision making and the effects of the decision. This Court has gone out of his

competence, since the editing of such issues is the role of the legislature.



33. The Supreme Administrative Court also notes that the non-compliance of the Institute

detention of a foreigner with the constitutional order is not just an academic issue.

Unsuitability and inadequacy of the chosen solution has resulted in the existence of

many practical problems. Without automatic control of the courts is not

sufficient to ensure compliance with the rights secured by the who, while they

the option to file a petition for review of the decision and the duration of the conditions ensure

but that option apparently almost do not use. The reason for this may be their

lack of language skills and the fact that police authorities do not fulfil their

obligations under the Act on residence of aliens (see e.g. report of the Ombudsman

of the device to ensure the visits of aliens of 14 July 2004. June 2007,

URwww.ochrance.cz). This obligation is under detention of a foreigner

totally a key, since in the absence of an automatic judicial oversight consists of

the fuse that the alien will not be secured without a reason.



34. In this context, he could not help but cast doubt on the performance of the

other obligations on the part of police authorities, particularly advise him

the obligations under the provisions of section 126 (a). (b)) of the Aliens Act.

If this obligation was fulfilled only formally, i.e. without

was a foreigner about how the review and their implementation indeed thoroughly

informed, it would mean a systematic non-compliance with the control when the

the obligations under the provisions of section 126 (a). and) of the Aliens Act

effective freeze-out of the review by the courts.



35. one of the downstream problems is the fact that foreigners from developing

countries often do not know the language in which they must be advised of the possibility of

review. While the inner order of the device must be issued in nine

foreign languages (paragraph 138, paragraph 3, of Act No. 326/1999

Coll., as amended by Act No. 428/2005 Coll.), the legal requirements of the lesson of

the possibility of judicial review of the legality of providing only count with eight

foreign-language versions, without the text of the Hindu [provisions of section 126 (a).

(b)) of the Act No. 326/1999 Coll., as amended, (note the red-

correct: the Vietnamese)]. The Supreme Administrative Court is aware that it can be

often very difficult to learn of a foreigner in a language they understand, but

the impossibility of this lesson must not be to the detriment of foreigners and must not impede the

effective defense against the restrictions of personal freedom. That the judicial review

the decision is not frequent, evidenced by the fact that apparently the Supreme Administrative Court

issued for the entire period of its existence only eight decisions on appeal

complaints about the detention of a foreigner, which is compared for example. with

hundreds of complaints with the asylum issue a very low number.



36. it is therefore said to be clear that at the present stage is the application of the rights

secured without the active cooperation of the administrative authorities only illusory. About

meet these obligations, then you can have with reference to the report of the Ombudsman

serious doubts. The Supreme Administrative Court is convinced that this State

is the consequence of inappropriately, disproportionately and unconstitutionally elected way

Institute of reinsurance and its review. Remedy the situation is without

the involvement of the courts in the process of securing and his review of a very

is unlikely to occur. In the case that the Constitutional Court will decide contested

statutory provisions to cancel, proposes to the Supreme Administrative Court, to

enforceability of the revoking of the finding, since some (but constitutionally

Conformal) adjustment of the detention of aliens it considers necessary. It is therefore necessary to give the

Lawmakers enough time to discuss and adopt a new, constitutionally

Conformal editing.



37. in view of the above reasons, the Supreme Administrative Court proposed that

The Constitutional Court held that the finding of the cited statutory provisions, in

contrary to the constitutional order.



IV.



Observations of the parties



38. the Constitutional Court pursuant to the provisions of § 69 para. 1 of the law on the constitutional

the Court has requested representation of the Chamber of Deputies and the Senate of the Czech


States as parties to the action was the design. Furthermore, the Constitutional Court

According to the provisions of § 49 paragraph 1. 1 of the law on the Constitutional Court asked for

Secretary of the Interior. Mgr. Ivan Langer and public defender

rights of JUDr. Otakar Motejl. The action was the proposal also expressed even the plk.

JUDr. Henry Urban, Director of the Directorate of foreign police services

Police of the Czech Republic.



39. the President of the Chamber of deputies of the Parliament of the Czech Republic-Ing.

Miloslav Vlcek in its observations to the Constitutional Court delivered on 25 April.

April 2008 pointed out that the provisions of section 124 para. 1 of the law on residence

Aliens refers to the entitlement of the police of the Czech Republic after the opening to ensure

proceedings on administrative expulsion of foreigners, for which there is a risk that it could

compromise the security of the State, public order or obstruct or hinder the performance of the

a decision on administrative expulsion. This provision has been from the beginning

part of the original Act No. 326/1999 Coll. and about 2 years later, it was

accompanied by the amendment to this law, which was published in the collection of laws

under number 217/2002 Coll., Act No. 326/1999 Coll., was in the Chamber of Deputies

discussed in 3. legislature under the print number 204. The Charter in article 6(2). 8

paragraph. 2 clearly allows it to be deprived of his liberty and the alien

by decision of the police of the Czech Republic, if it is based on the law.

Compliance is perceived as beginning with the Convention which anyone who is deprived of his liberty

by arrest or detention, confers the right to bring proceedings in the

which decided speedily by a court on the lawfulness of the deprivation of liberty and ordered

release if the detention is not lawful. The obligation to show off

secured foreigners before a judge or other officer empowered to

by law to exercise the powers under the provisions of the Convention shall not apply to this case

(the stranger was not arrested for the purpose of bringing him before the competent judicial authority

for reasonable suspicion of a crime).



40. Printing 204 was in the Chamber of deputies in reading on 8. June 1999

commanded by the Committee for the defence and Security Committee and the European

integration. During the hearing of the press was not in these committees 204

any amendment to the provisions of section 124 of the

paragraph. 1. Such a proposal not in progress II. reading this press,

that took place on 13 June. October 1999. The Bill was then approved in the

III. reading on 21. October 1999. The same day he was sent to the Senate, the Senate

He returned on 11 July. November 1999 the draft back to the Chamber of Deputies with the

amendments. On the proposal of the Act, as amended by the Senate, was in the Chamber of Deputies

the House voted on 30 June. November 1999 and the proposal was worded as follows

accepted, with 172 members present voted in favor to 171 and 1 was

against. After the signature of the President of the Republic on 14 June 2005. December 1999 a law was

on 23 December 2005. December 1999 promulgated in the collection of laws under no. 327/1999 Coll.



41. Printing 1164 concerning the amendment to the Act No. 326/1999 Coll. was in

The Chamber of deputies in reading on 7. December 2001, commanded by the Committee for

defence and security and the Committee on European integration. During

discussion of printing in the aforementioned committees 1164 have been filed no

the amendment relating to paragraph 1 of the provision of section 124. 1.

Such a proposal not in progress II. reading this print that

took place on 13 June. March 2002. The Bill was then approved in the III.

reading on 26 April. March 2002. On 9 April. April 2002 was the approved design

referred to the Senate. The Senate January 3. May 2002 approved the proposal as amended by the

transferred the Chamber of Deputies. After the signature of the President of the Republic day

May 15, 2002 this law was on 27. May 2002 declared in the collection

laws under number 217/2002 Sb.



42. From the foregoing, that both laws have been approved by the necessary

a majority of Deputies and senators, were signed by the respective constitutional

agents and have properly promulgated.



43. The President of the Senate of the Parliament of the Czech Republic. Přemysl Sobotka in the

the Constitutional Court delivered its observations on 24. April 2008 to the submitted

the proposal stated that the provisions of section 124 para. 1 of the Act No. 326/1999 Coll.

modifies the police detention (internment) of a foreigner for the purpose of the administrative

the expulsion, and that in cases where the alien presents a risk

national security, public order or the risk of obstruction of the

decision. The content of the essence of this provision is that since the adoption of

"Aliens Act" in 1999 maintained, although its text was in

the welter of completion but no 217/2002 Coll., no 428/2005 Coll. and no.

379/2007 Coll. of the other provisions to ensure it follows that time

ensure not to exceed 180 days. The police have an obligation to learn

secured in the language in which it is able to communicate, on the possibilities of

judicial review. Against the decision of the Board may be made to provide

the action. On the proposal of the alien, the Court (this time in proceedings under the code of civil

Code of civil procedure) will also examine whether the last detention conditions. This

very fast procedure of release may be secured to initiate every three

weeks ago. The Charter in article 6(2). 8 (2). 2 uniquely allows a foreigner

deprived of his liberty by the decision of the police, if it is based on the law. New

"Alien Act" at the end of the 1990s, introduced in the Senate

as a response to European immigration realities of coping with plenty of

the number of stays by foreigners without permits and the penetration of organized crime,

Therefore, as a response to serious security risks. Foreign law was in

the European context affected by trends in immigration regulation, tighten

to simplify or shorten the procedure of decision-making, to increase the efficiency of the

enforceability of a judgment, etc.



44. the draft of the law was in the legislative process

The Senate referred to the Chamber of Deputies on 27. October 1999. The Senate

forwarded a Bill (Senate document No No. 111) in the prescribed manner

discussed in its committees and then on its 11. Meeting 2. term of Office

period of the day 11. November 1999 decided about it. The Senate on the recommendation of the

one of the three committees whom the proposal was commanded by the Chamber of Deputies, he returned

the House of the law with amendments to its resolution No. 179

of 11 December 1997. November 1999. The Senate adopted the amendments, however,

nesměřovaly to the provisions of section 124 para. 1 and also the debate at

discussion of the draft law, Senate committees or plenary

the meeting is the issue of touch.



45. the reference section 124 para. 1 after the adoption "of the aliens

the law "on legislative activities substantively changed three times, and it

in the range of partial modification of its properties. Act No. 218/2002 Coll.

the provisions in question have been made more concrete reasons for ensuring

foreigners, by connecting the relatively specific, exhaustive

an ordered enumeration of cases of illegal behavior of foreigners in the past

(a homogeneous recurrence condition) or its official record.

This is for example. about political extremism, conduct dangerous to public

health, repeated obstruction of enforcement, illegal border crossings,

figurování in the register of undesirable persons (national registration or

The Schengen information system). This change has been significantly narrowed the space

for deciding the foreign police about the detention of a foreigner. The reasons for ensuring

so pretty much lose their existing discretionary potential.



46. Law No. 428/2005 Coll. was monitored the provision of section 124 para. 1

of the Aliens Act was amended in that the provision was expressly

an alien under 15 years of age shall be excluded. The amendment dealt with, inter alia,

the improvement of conditions in the detention facilities for the detention centre for the purpose of

the exercise of their administrative deportation or transfer to a foreign country (the provisions of §

130 to 149). The device was meant to be a fairer organization

the purpose it serves. The appellant called it closing (move away from

the prison "the Punisher" type). Special consideration should be subject to new

on nezletilce. In addition to the rules on the admissibility of the internment from the

15 years lays down the arrangements for the appointment of a guardian of unaccompanied children,

guarantees are compulsory school attendance of children, etc. Time to ensure

nezletilce must not exceed 90 days (compared with 180 days for adults).

Hardened mode of internment is limited to 30 days. Improve the conditions for

visit to secured. The police has continued to ensure only security

detention facilities and security regime. Hosting (custom

management according to the amendment takes over the civil) of the State as established by

The Ministry of the Interior. The Ministry of Interior has according to the amendment to exercise the above

an internment facility "supervision". Humanization was inspired by criticism

The European Committee for the prevention of torture and inhuman or degrading

treatment or punishment, expressed during his visit to the United States in

2002.



47. Finally, the provisions of § 124 paragraph in question. 1 "the aliens

the Act amended the law "No 379/2007 Coll. Formally this change

the existing text of the replacement, but substantively, underwent the

the provisions in principle, no changes. The aim of the legislature here was only

legislatively-technical transcription (arrangement) in favour of a

the clarity of the provisions. From the circle of the rules relating to the

ensure it is recalled the amendment introduced an incentive tool to


simplify the enforcement of expulsion. An alien who is to be expelled, may

ask for a voluntary return to the foreign country. Minister of the Interior in

the presentation of the Bill in the Senate has accentuated the idea that the amendment is

contribution to the careful balance of the two sites, namely, the immigration policy

kindness to those who need help against persecution, and the hardness of the

to foreigners who want just misuse the benefits provided

the host country.



48. the Minister of the Interior in its observations to the Constitutional Court delivered on 24.

April 2008 in the introduction he pointed out the fact that the Supreme Administrative Court

challenges the constitutionality of the provision of section 124 para. 1 of the Act No. 326/1999 Coll., on

amended by Act No. 218/2002 Coll., amended by Act, therefore, effective in 23. November

2005. Since that time, however, there has been a significant amendment to this provision, and

law no 428/2005 Coll. and no 379/2007 Coll., in consequence of which was

strengthened protection of the rights of secured foreigners. In this context, however,

does not dispute the view of the Supreme Administrative Court, according to which the Constitutional

the Court is obliged to decide on the constitutionality of laws that have been in

the time of the decision of the Constitutional Court has already cancelled or changed, however, are

still applicable. The Ministry of the Interior, as the submitter

the draft law on residence of aliens in the territory of the Czech Republic, from the very

early took the view that an adjustment of detention of a foreigner (article 124

up to 129) is in line with the constitutional order of the Czech Republic. In this

context, it was noted that the Charter under article. 8 (2). 2 allows,

to be deprived of his liberty by the decision of the alien police, if it relies

about the law. This Act is the law on aliens, which defines the

the specific reasons for which it is possible to use a foreigner for the Institute to ensure

to limit his personal freedom. Compliance was found and with the Convention.



49. In terms of ensuring legal protection of secured foreigners are

significant provisions of the section, in particular, paragraph 124. 4 and 5, § 125, 126, 127, 128 and

148 of the Aliens Act. According to these provisions. Police

shall without delay after securing learn of secured foreigners in the language in

which the alien is unable to communicate, the possibility of judicial review

the legality of the seizure and the whole time is obliged to examine whether the

the reasons for ensuring continued to persist. Secured foreigner is entitled to according to the

Code of civil procedure to request the cancellation of their collateral and if

the Court shall decide on the release of the foreigners, is to ensure immediately terminated.



50. the Minister of the Interior stated that the provisions of section 124 para. 1 of the law on residence

Aliens relies on several starting points: there is no subjective constitutionally

guaranteed the right of foreigners to reside on the territory of the Czech Republic-is a matter of

a sovereign State, under what circumstances will admit the entry and residence of aliens in the

within its territory. Administrative expulsion is not criminal in nature within the meaning of article 87(1). 6

paragraph. 1 of the Convention following the adoption of Protocol 7 (article 1), but is by its very nature

specific measures in the field of control of immigration. Administrative

the expulsion and detention of a foreigner has a single purpose, namely to ensure that the

a foreigner who does not reside on the territory of the Czech Republic in accordance with its

the legal order of the Czech Republic has left if possible as soon as possible.

Whereas it is not always a foreigner travelling on a voluntary basis, it is necessary to

ensure the departure from the territory of the Czech Republic forced, i.e.. for

assists the police of the Czech Republic, and in order to limit the personal

the freedom of foreigners, in order to frustrate the purpose of administrative expulsion.



51. the Minister of the Interior, adding that not every stranger is vyhošťovaný

secured, since the fact that proceedings have been initiated with a stranger about

administrative expulsion, cannot of itself justify the detention of a foreigner.

The decision on the detention of a foreigner is limiting his personal freedom and, therefore,

must be properly and specifically justified. About the de facto use of the Institute

ensure the Directorate statistics testify to the foreign police

-in 2007 the services of foreign police services have issued a total of 5 438

a decision on administrative expulsion. Of this number, it was in this period to the

facilities for detention centre located only 524 of foreigners. The average

ensure time amounted to 103.5 days (the shortest period was 3 days ago, the longest

180 days). The length of time for which an alien may be locked in the device

(i.e. 180 days), according to the Minister of the Interior was set deliberately and reasonably.

In the device to ensure foreigners are not admitted only to aliens,

which have been about their expulsion to a final decision, and de

facto, only waiting for the execution of this decision, but also foreigners, for which

is a reasonable fear that they may stay in the territory of the Czech Republic

compromise the security of the State or undermine public order, and which have been

only served the notice on the initiation of proceedings on administrative expulsion. In

this case, it is necessary to first took control of the administrative

expulsion and for its venue was the alien secured under the provisions of section

paragraph 124. 1 of the Aliens Act.



52. the Minister of the Interior, points out that the police are obliged to immediately after

ensure the learn of secured foreigners in the language in which the alien

able to communicate, on the possibility of judicial review of the legality of reinsurance

and all the while ensuring it is obliged to examine whether the grounds for the

continue to persist. Judicial protection of the rights of a secured foreigner is secured, and

even in two ways. A secured foreigner is entitled to file an

administrative action against the decision of an administrative authority on the detention of a foreigner,

First, it is entitled to according to the code of civil procedure to submit an application to the Court,

to order his release on the grounds that they are not satisfied

conditions for the duration of his detention. This is secured, the double

protection, which is the solution to some extent lack, but their

also, because it gives foreigners the possibility of rotating

Choose a way to redress his rights in a manner which, in the

the most convenient situation. Also NGOs this right in

benefit of secured foreigners.



53. The proposal for the Supreme Administrative Court on the introduction of automatic

judicial review of the limitation of personal freedom of all foreigners who have been in accordance with

the provision of section 124 para. 1 of the Act No. 326/1999 Coll., delivered a communication on

initiation of proceedings on administrative expulsion or extradition

It has already been a final decision, the Minister of Interior, dismissive attitude.

Since that time some foreigners takes only a few

days, it would be necessary to introduce, in the case of judicial review such rules,

that would make the decisions of the courts in the periods of days or hours,

which, given the number of secured foreigners would be of significant and

unjustified burden on the courts.



54. in addition, the Interior Minister stated that at the present time is in the framework of the European

the Union prepared a directive of the European Parliament and of the Council on minimum

standards and practices in the Member States in the event of return of illegally

staying third-country nationals. The proposal foresees that decisions

to ensure not only the Court would be issued, but also administrative authorities. In the case of

the decision on the detention of a foreigner by an administrative authority, it is proposed that the

the alien the right to lodge a petition for the Court to review this decision.

Judicial review of the decision should be made under an accelerated procedure.

The draft of this provision is based on a document of the Council of Europe 4.

May 2005 "twenty rules for forced return", which, in its article 9

-Court of appeals-provides that secured a foreigner has the right to

apply to the Court for a review of the legality of detention. The Court's decision will be

released quickly (i.e., there is no specific time limit). The preparation of the

the final draft of the directive and drafting the opinions of the Czech

the parties in this matter closely cooperates with the Ministry of the Interior

The Ministry of Justice.



55. If the Supreme Administrative Court establishes the unconstitutionality of the provisions of §

paragraph 124. 1 of the Aliens Act also in breach of the principle of

of proportionality, provides that the Minister of Interior, while there are generally other

the ways in which it could be that objective, namely the limitation of personal

the freedom of foreigners representing a risk to national security, public

policy or the proper performance of the decision on administrative expulsion, reach,

but the Ministry does not believe that such methods would have been as well

effective and reliable due to the intended target.



56. In view of the above, the Ministry of the Interior is of the opinion,

the provisions of section 124 para. 1 of the Aliens Act is in accordance with the

the constitutional order and cannot be seen as a violation of the Constitution in it

guaranteed the principle of equality or the principle of proportionality.



57. the Director of the Directorate of foreign police services. JUDr. Henry

Urban in its observations to the Constitutional Court delivered on 14 July. April 2008

He pointed out that on the basis of the Ombudsman's recommendations

she stepped up the police of the Czech Republic, foreign police and service

border police in 2006 to a range of actions to

raise awareness of secured foreigners. The entire proceedings to ensure

the alien is currently conducted in the language in which the alien

able to communicate among themselves, and with the participation of an interpreter appointed in accordance with the


Act No. 500/2004 Coll., the administrative code, as amended.

The decision to provide includes, in accordance with the provisions of section 124 para. 5

Act No. 326/1999 Coll., lessons, in which the alien is informed of

the possibility of submitting the design according to the provisions of § 200o et seq.. o. s. l., in which the

the Court decides about the detention or order his release if the

the legal grounds for detention have ceased to apply. Further lessons contains

information on the possibility to appeal against a decision regarding the securing of an action

Administrative Court pursuant to the provisions of section 65 et seq.. with the row with the Text.

the Police Department has said the lessons learned in the device available in 33

languages.



58. the Director Dr. Urban also States that the Police Department, which took the

detention of a foreigner, the whole time ensure examines whether the reasons for ensuring

persist. Will terminate if the reasons for detention of a foreigner on the device, the Department

the police, who decided about the detention of a foreigner, without undue delay,

the collateral in accordance with section 127 of the Aliens Act ends.

The possibility of exercising the rights of the alien should be further added that

facilities for detention centre are regularly visited by non-governmental

organisations, such as the. Association of citizens dealing with the emigrants

(SOZE) or the Organization for aid to refugees (OPU), whose personnel

provide secured foreigners legal aid and advice.



59. In the opinion of foreign police services Directorate of the Supreme Administrative

the Court in its proposal unfairly compares the number of appeal complaints

secured by aliens with the numbers of complaints in the asylum appeal.

In case of international protection pursuant to Act No. 325/1999 Coll., on the

asylum and amending Act No. 283/1991 Coll., on the police of the Czech Republic, in the

as amended, (asylum Act), as amended

regulations, the decision is taken to the granting of protection and on the right of residence on the

the territory of the Czech Republic. Interested in foreigners in asylum procedures is, therefore, to take advantage of

any option that will extend his stay on the territory of the United

States, therefore, the number of complaints lodged appeal higher. Essential

the difference is then in effect submitted appeals. In the asylum

control is an alien authorized to reside in the territory of the Czech Republic for a period of

the whole procedure, including the procedure for cassation complaints. The Supreme Administrative Court

It was based on only one of the forms of appeal, another in the design

does not assess or statistically does not represent. In this context, it should be

noted that, in the course of securing device is an alien entitled to

concurrently two motions to the courts, and that a proposal for their collateral for

the reasons and the proposal for the review of the legality of the reasons for detention.

Can take place in parallel to the action against the decision of the administrative

the expulsion.



60. for the illustration shows the Director Dr. Urban data for the year 2007, in which

a total of 1 878 aliens filed applications for asylum, was released a total of 5 438

decision of the administrative expulsion of foreigners from the territory of the Czech Republic and

a total of 524 foreign nationals is ensured by the provision of section 124 para. 1 of law No.

326/1999 Coll., on the basis of these data it can be concluded that the comparison

The Supreme Administrative Court does not reflect the status of the matter comprehensively. In 2007

It was to a detention centre to ensure the services of foreign

police pursuant to section 124 para. 1 of the Act No. 326/1999 Coll., 524

the aliens, which is about 10% of foreigners, which was released in 2007 by the services of

Alien Police of the decision on administrative expulsion from the territory of the United

of the Republic. It follows that about 90% of foreigners with issued

a decision on administrative expulsion may have changed from the territory of the Czech Republic

to leave voluntarily within the prescribed period. To the device in order to ensure

foreigners were in 2007 pursuant to section 124 para. 1 of law No.

326/1999 Coll., in particular, by the foreigners who have crossed the State

boundaries in hiding or about such negotiations, crossed the State

the border outside border crossing, or strangers who would obstruct or

complained about the performance of a decision on administrative expulsion. These aliens, before

by ensuring they are staying in the territory of the United States without a valid visa or without

a valid residence permit and, moreover, do not possess a valid travel

document. Ensure the aliens in proceedings on administrative deportation and to ensure

often deliberately mention to him false information concerning their

identity and by extending the period of their collateral facilities for

detention centre.



61. After an evaluation of the entire material and the State of Affairs Directorate

foreign police notes that the Supreme Administrative Court in processing

design of current data and at the same time the amendment to nezhodnotil

of the Aliens Act made by law No 379/2007 Coll., which

revised text of the provision of section 124 para. 1 of the Act.



62. The Ombudsman JUDr. Otakar Motejl in its observations

The Constitutional Court delivered on 20 April. November 2008 stated that the proposal

The Supreme Administrative Court supports and agrees with the arguments of the Supreme

Administrative Court. At the same time points to the problems related to the provision of section 124

paragraph. 1 of the Aliens Act from the perspective of constitutional and

international legal guarantees for applicants for international protection.

For the deficit, the Ombudsman considers that the former legislation

(IE. the texts of the provisions of section 124 (1) prior to the amendments made by law

No 428/2005 Coll.) from the perspective of the application of the exclusion of the former administrative

order [law No. 71/1967 Coll., on administrative proceedings (administrative code), in the then

as amended]. Before the adoption of the new code of administrative procedure (Act No. 500/2004

SB.) Indeed, the provisions of § 168 of the Aliens Act excludes in

the case of ensuring the application of the then administrative procedure as

the whole, without, however, the procedure for ensuring legislation contained

comprehensive adjustment at least as fundamental principles of management

the administrative procedure, and that in a situation where the decision to ensure the

no defining characteristics of administrative proceedings within the meaning of the then

the provisions of § 1 (1). 1 of Act No. 71/1967 Coll.



63. JUDr. Motejl stresses that ensuring represents a serious interference with the

the right to freedom of movement. The protection of personal liberty provides to article. 8

Of the Charter, it is a fundamental human right that is granted to all

persons without distinction, including foreigners, and can be invoked directly in it,

not only within the limits of the laws transposing this provision. At the same time

meaning of article 87(1). 4 (4). 4 of the Charter must be taken while using the provisions on the limits of the

fundamental rights and freedoms investigated their essence and meaning and this

restrictions must not be used for purposes other than those for which it was

established. The proceedings under section 124 para. 1 of the law on residence

foreigners at the same time fully turns out article. 5 (3). 1 (b). f) of the Convention, as amended by

subsequent protocols. The right to freedom and personal safety, contained in the

article. 5 of the Convention, in addition to the right to life is the second most important law,

that catalogue of rights enshrined in the Convention. Exceptions to the right to freedom of

and personal security contained in the article. 5 (3). 1 of the Convention are exhaustive, and

only a narrowing (restrictive) interpretation of these exceptions is in accordance with the

the purpose of this provision, so that no one has been unlawfully deprived of his liberty

(see for example. Vasileva against Denmark, judgment of the ECtHR of 25. September 2003, § 33).

At the same time according to the constant case law of the European Court of human rights

only such deprivation of liberty, which takes place in the context of

the ongoing proceedings for deportation or extradition, is considered

justified within the meaning of article 87(1). 5 (3). 1 (b). f) of the Convention. If such

procedure is not conducted with due care, it ceases to be admissible pursuant to article 4(1). 5

paragraph. 1 (b). f) of the Convention.



64. There is a need to further understand the Ombudsman observes that

decide on detention of a foreigner, and thus get rid of him the freedom of movement, and

in fact, so derogovat one of the fundamental human rights, allows you to

the provision of section 124 para. 1 of the Aliens Act alien to the police in the

the time of delivery of the notice of initiation of proceedings on administrative expulsion,

not at the moment, when it was at least nepravomocně of the administrative

the expulsion of police decided. In other words, the limitations of the basic

the human rights of foreigners can occur even before a decision is made about

administrative expulsion, which for this limit determined by a single, exclusive

the reason (to ensure the efficient running of the Institute to the expulsion of foreigners).



65. JUDr. Motejl considered even more serious that the administrative

the expulsion may not be held, and even nepravomocně, all

maximum 180-day period of detention. And even though the law on residence of aliens

stores the police decide on administrative expulsion within seven days from the start of

control, this time limit may not be definitive. The law allows police in

If they cannot decide on this seven-day period, the time limit

extend and only secured foreigners, indicating the reasons

realize. The Act on the residence of aliens so that you can significantly affect the

the right to freedom of movement, without having taken at least

nepravomocně, if any, on the part of foreigners to conduct constituting the

the reason for deportation or detention.



In the.



The abandonment of an oral hearing




66. According to the provisions of § 44 para. 2 of the Act on the Constitutional Court may by the constitutional

the Court, with the consent of the participants of the oral proceedings, to refrain from it cannot be

expect further clarification of the matter. Because, as the applicant in its proposal,

and, the parties have expressed their agreement with the abandonment of the oral

negotiations and also due to the fact that the Constitutional Court had considered that, since the

negotiations cannot be expected to further clarification of the matter, it was from the oral proceedings in the

the case dropped.



Vi.



Locus standi of the applicant



67. The Constitutional Court first dealt with the question of whether the petitioner is

authorized motion of unconstitutionality of the contested provisions

Lodge. Concluded positive. It is obvious that the General Court shall

the contested provisions apply on your progress in the judicial proceedings, and

the applied legislation directly interferes with the rights of the complainant. Referred to

the proposal relates to the decision-making activities of the General Court, which is therefore

authorized by the applicant (article 64, paragraph 3, of the law on the constitutional

of the Court).



68. now the employment the claimant has complied with the conditions of article 81(3). 95 para.

2 of the Constitution, since it seeks to give the unconstitutionality of the provisions of §

paragraph 124. 1 of the Act No. 326/1999 SB. on residence of aliens in the territory of the United

Republic and amending certain laws, as amended by Act No. 218/2002 Coll.

that was in the subject matter applied, and in proceedings on a complaint of Cassation

the applicant will be the accuracy of this application to review.



69. Pursuant to the provisions of section 67 para. 1 of the law on the Constitutional Court is given by

the reason for the termination of the proceeding, if the law, other legislation or their

individual provisions, whose annulment is sought, shall

force before the end of the proceedings before the Constitutional Court; However, as the constitutional

the Court has already stated in the award SP. zn. PL. ÚS 38/06 of 6. 2.2007 (N 23/44

SbNU 279; 84/2007 Coll.), as well as in finding SP. zn. PL. ÚS 12/07 of 20 December.

5.2008 (355/2008 Coll.), according to a legal opinion from the award sp.

Zn. PL. ÚS 33/2000 of 10 July. 1.2001 (N 5/21 SbNU 29; 78/2001 Coll.), the

that is referenced in the preamble of the award SP. zn. PL. ÚS 42/03 of 28 June.

3.2006 (N 72/40 SbNU 703; 280/2006 Coll.), if there is a judge of the General

the Court concluded that the law, which is to be used when resolving the matter-so

not only valid at that time, but also in that time, no longer valid, but

still applicable-is in conflict with the constitutional law, is obliged to

refer the matter to the Constitutional Court. If the Constitutional Court refused to provide

assistance to the General Court, in its decision on the constitutionality or unconstitutionality

applicable law, intractable situation an artificial legal

the vacuum; the decision of the General Court itself on the unconstitutionality

applied provisions would be contrary to the principle of concentrated

constitutional justice.



70. in finding SP. zn. PL. ÚS 38/06 (see above), the Constitutional Court dealt with the

the question whether the procedure under art. 95 para. 2 of the Constitution, which opens up the space

for the assessment of the earlier legal facts from the later, but already

constitutionally, a conforming legislation, showing the characters right-retroactivity,

It is souladný with the principle of the rule of law (article 1, paragraph 1, of the Constitution); distinguish

cases of vertical and horizontal effect of fundamental rights and

to formulate the conclusion, according to which the right in the case;

give the unconstitutionality of the law and the assessment has already cancelled the previous

facts of constitutional law with effects of Conformal ex tunc on the

the side of the public authority does not constitute a violation of the principle of the protection of the citizens ' confidence in the

the right to, or interference with the legal certainty and acquired rights. The constitutional

the Court is based on article. 95 para. 2 of the Constitution, shall be obliged to undertake a review

the constitutionality of the contested provisions, even though it was no longer in force (modified),

provided that the addressee of the tempered reason of unconstitutionality is a public power.

This is also in the present case (when the contested provision was

later amended), and therefore opinions expressed in the context of the legal

in the above findings, the conditions are met for substantive

consideration of the application.



VII.



The constitutional conformity of the legislative process



71. The Constitutional Court, in accordance with the provisions of § 68 para. 2 of the Act on the constitutional

the Court examined whether the Act, whose provisions is assessed in terms of

constitutionality, was accepted and published within the limits of the Constitution laid down the competence and

constitutionally prescribed way.



72. given that the applicant did not object to the legislative defects

process, the Constitutional Court only takes account of the observations submitted by the

The Chamber of Deputies and the Senate, and notes that the Act on the stay of foreigners

including its amendment was adopted by the constitutionally prescribed way, within the limits of

The Constitution laid down the competence and in compliance with the rules laid down in article 4(1).

paragraph 39. 1 and 2 of the Constitution.



VIII.



The diction of the contested provisions



73. the provisions of section 124 para. (l) Act No. 326/1999 SB. on residence of aliens

on the territory of the Czech Republic and amending certain laws, as amended by Act No.

217/2002 Coll., was:



"The police is empowered to ensure that the alien who has been served with the notice of

initiation of proceedings on administrative expulsion, there is a danger that it could

compromise the security of the State, seriously disturb public order

or obstruct or hinder the enforcement of administrative expulsion,

in particular, if it is established that the alien has committed in the past negotiations

referred to in section 119 paragraph 1. 1 (b). or (b)). (b)), section 6, or 7, is

registered in the register of undesirable persons (§ 154), or is unwanted by the person

included in the information system of the Contracting States. ".



74. the grounds provided for in § 119 of paragraph 1. 1 (b). or (b)). (b))

section 6 or 7 of the Act are the following:



-There is a reasonable risk that the alien could stay on the territory of the

compromise the security of the State by the use of force in pursuit of political goals,

the implementation of activities threatening the foundations of a democratic State or

pointing to the integrity of the territory of the violation or any other similar way,

or



-There is a reasonable risk that the alien could stay on the territory of the

seriously disrupt public order, or



-If the alien intentionally repeatedly violating legal regulations or undermined

the performance of the judicial or administrative decision, or



-If the alien State border in hiding or about such negotiations

attempts to, or



-If the alien State border outside border crossing.



75. For completeness, it should be noted that the amendment to the Act No. 326/1999 Coll.

carried out by Act No. 218/2002 Coll. has been the provision of section 124 para. 1

amended so that at the end of paragraph 1 has been supplemented by the following words: ",

in particular, if it is established that the alien has committed in the past negotiations

referred to in section 119 paragraph 1. 1 (b). or (b)). (b)), section 6, or 7, is

registered in the register of undesirable persons (§ 154), or is unwanted by the person

included in the information system of the Contracting States ".



76. It is possible to add that even after the adoption of Act No. 218/2002 Coll., Act of

the aliens several times amended. The date on which the Constitutional

the Court decided, is a valid text of the provisions of section 124 para. 1 of law No.

326/1999 Coll., as amended, of the following:



"The police is authorized to ensure the alien legacy 15 years who has been

delivered notice of initiation of proceedings on administrative expulsion or on whose

administrative expulsion have already been finally decided, there is a danger that

could compromise the security of the State, seriously undermine the public

order or obstruct or hinder the enforcement of the administrative

the expulsion, in particular where it is found that the alien



and) is guilty of conduct referred to in section 119 paragraph 1. 1 (b). or (b)). (b))

section 6 or 7,



(b) is recorded in the register) of undesirable persons (§ 154), or



(c)) is undesirable person included in the information system of the

States. ".



77. the Constitutional Court, however, in the present proceedings, concerning the specific

control of constitutionality, assesses the legal text in the version applicable to

decisions of the administrative authorities and the ordinary courts in the specific case of S V.

The relevant text is the previous text of section 124 para. 1 of law No.

326/1999 Coll. amending the Act when made 217/2002 Sb.



IX.



Reviews of the Constitutional Court



78. According to the contested provisions is the police empowered to ensure foreigners,

which you have received a notice of initiation of proceedings on administrative expulsion,

If there is a risk that could compromise the security of the State, seriously

to disrupt public order or obstruct or hinder the enforcement of

administrative expulsion.



79. That provision is a response to serious security risks and has

to ensure that foreigners who are resident in the territory of the Czech Republic in

contrary to the legal order and are waiting for the execution of the decision of the administrative

the expulsion, which, however, has been served notice of the initiation of

administrative deportation, could not thwart the purpose of the administrative expulsion and to the territory of the

they left as soon as possible. It should be noted that that provision

establishes the permissions it does not, however, the police duty in this way

to do this. This means that it is at the discretion of the police, whether in a particular

the case leads to the conclusion that it is given a reasonable fear that the alien her

the stay on the territory of the Czech Republic could threaten the security of the State or


seriously disrupt public order or obstruct or hinder

enforcement of administrative expulsion, and decide about the detention of a foreigner.



80. in finding SP. zn. IV. TC 289/2000 of 27 November. 11.2000 (N 177/20 SbNU

249) Constitutional Court held that personal freedom is one of the

fundamental human rights protected by the Charter as well as international treaties

on human rights. Detention of a foreigner for the purpose of administrative expulsion is

encroachment on the personal freedom, and therefore can only be done in

accordance with the laws, the Constitution and the Charter, and not least with the Convention,

which the Czech Republic is bound.



81. The provisions of article. 8 (2). 1 of the Charter reads: "Personal freedom is

guaranteed. ".



The provisions of article. 8 (2). 2 of the Charter reads: "no one shall be prosecuted or

deprived of his liberty otherwise than on grounds and in the manner provided by law.

No one shall be deprived of his liberty solely for failure to live up to the contract

commitment. ".



82. The provisions of article. 14 of the Charter reads as follows:



"(1) freedom of movement and residence is guaranteed.



(2) any person who is legitimately staying on the territory of the Czech and Slovak

The Federal Republic has the right to freely leave them.



(3) these freedoms may be restricted by law if it is inevitable

for national security, maintenance of public order, health, or

protection of the rights and freedoms of others and for defined areas whether or not due to the

the protection of nature.



(4) every citizen has the right to free entry on the territory of the Czech and Slovak

Federal Republic. A citizen cannot be forced to leave their homeland.



(5) an alien may be expelled only in cases provided for by law. ".



83. The provisions of article. 5 (3). 1 (b). f) of the Convention reads: "everyone has the right to

freedom and personal safety. No one shall be deprived of his liberty save in the

the following cases and in accordance with the procedure

prescribed by law:-



f) the lawful arrest or detention of a person in order to avoid

unauthorised entry into the country or of a person against whom the action is being

the procedure for deportation or extradition. ".



84. The provisions of article. 5 (3). 2 of the Convention reads: "anyone who is arrested shall

to be informed promptly, in a language he understands, of the reasons for his arrest

and with every charge against him. ".



85. The provisions of article. 5 (3). 4 of the Convention reads: "everyone who is deprived of his liberty

by arrest or detention has the right to submit a proposal to the proceedings in which

decided speedily by a court on the lawfulness of his detention and ordered

release if the detention is not lawful. ".



86. In article. 2 of the Protocol No. 4 to the Convention enshrined freedom of movement:



' 1. everyone lawfully within the territory of a State, it has to

that territory the right to freedom of movement and freedom to choose their place of residence.



2. everyone has the freedom to leave any country, including his own.



3. No restrictions shall be placed on the exercise of these rights other than those

which are prescribed by law and are necessary in a democratic society in the interests of

national security, public safety, maintaining public order,

the prevention of crime, for the protection of health or morals, or the protection of the rights of

and freedoms of others.



4. The rights referred to in paragraph 1 may in some areas be made subject to

the limits laid down by law and justified by the public interest in

of a democratic society. ".



87. In article. 1 of Protocol No 7 to the Convention are set out procedural safeguards

concerning the expulsion of aliens:



"1. An alien who is allowed to stay on the territory of a State may be

expelled only based on the performance of a decision taken in accordance with the

by law and must be able to:



and objections against its) expulsion;



(b) to review your case);



(c)) to be represented for this purpose before the competent authority or before

the person or persons designated by that authority.



2. An alien may be expelled before the exercise of the rights referred to in paragraph 1

a), b) and (c)) of this article, when such expulsion is necessary in the interests

public order or is justified by the interests of national security. ".



88. the Charter as part of the constitutional order of the Czech Republic guarantees

personal freedom. In the article. 8 (2). 2 of the Charter allows for deprivation of

freedom, if that happens, under the conditions laid down by law. This

the law is currently in the present case the law on aliens. Institute

ensure the edited at the material time on Act No. 283/1991 Coll.,

in particular, the provisions of § 14 para. 1 (now the law No 273/2008 Coll., on

Police of the Czech Republic). Therefore, the law at the time allowed

(and also currently provides), that the alien has been deprived of his liberty and

the police decision, if the decision is based on Act No. 283/1991 Coll.

(article 14, paragraph 1) and the provisions of § 124 et seq. Residence Act

the aliens.



89. The legal regulation of the Institute for the purpose of administrative detention of a foreigner

the expulsion is not in conflict with the Convention, which in article. 5 (3). 1 (b). (f))

It establishes the possibility of deprivation of liberty by arrest or detention

This, against whom proceedings are pending on the expulsion. Anyone who is arrested,

shall be informed promptly, in a language he understands, of the reasons for its

arrest and of any charge against him (article 5, paragraph 2, of the Convention). Convention

further provides that a person who was deprived of his liberty by arrest or other

in a way, it may submit a proposal to initiate the procedure, in which the Court

be decided speedily the lawfulness of his detention and ordered

release if the detention is illegal (article 5, paragraph 4, of the Convention).

Legislation ensuring the foreigners contained in the Act on residence of aliens (in the

applicable version) lays down the conditions to ensure its reasons for

ensure information obligations of the police, police throughout the

the period of detention of a foreigner, the reasons for their seizure and judicial review

the decision on the detention of a foreigner.



90. the detention of a foreigner for the purpose of administrative expulsion according to the provisions of §

124 et seq. of the Aliens Act is possible only under the conditions and

the reasons provided by law. The Act on the stay of foreigners provides that

time ensuring not to exceed 180 days and is calculated from the time restriction

personal freedom. The police are obliged to immediately ensure the lessons

secured foreigners in the language in which the alien is able to

communicate, on the possibility of judicial review of the legality of detention. If you cannot

This language to find out, and you cannot make this introduction or other

in a way, the police will instruct foreigners by passing the instruments in writing lessons in

languages Czech, English, French, German, Chinese, Russian,

the Arabic and Spanish texts on the possibility of judicial review of the legality of

collateral. The police is required throughout the period of detention of a foreigner to examine

whether the reasons of ensuring lasting. Detention must be, without undue delay

terminated after the demise of the reason for the seizure, if the Court decides in administrative

the judiciary about the cancellation of the decision on the detention of a foreigner, or if ordered

the Court in the proceedings under a special legal regulation of the release of the foreigners

or if the foreigners granted asylum.



91. Judicial protection of the rights of secured foreigners is ensured, even

in two ways. An alien is entitled to guaranteed against decisions of the

the administrative authority for the detention of a foreigner to lodge an administrative lawsuit in accordance with

the provisions of section 65 et seq.. s. l. p., and ask the Court to review the legality of

ensure both is permissible against the decision of the Administrative Court of Cassation

a complaint to the Supreme Administrative Court. Furthermore, there is an alien

authorized under the provisions of § 200o et seq.. o. s. l. to submit an application to the Court,

to order his release on the grounds that they are not satisfied

conditions for the duration of his collateral provided by law on the residence of aliens.

The Court will examine whether the last detention conditions, and will decide on the duration

providing or ordering the release, if the legal grounds for the duration of

ensure they have passed. This procedure can initiate secured every three

weeks from the decision. 92. the fact that foreigners in practice

make use of their right to judicial review of the relatively rarely and that

Court proposal is required, it is not an argument of foreigners

which determines the unconstitutionality of the contested provisions.



93. In its proposal to the Supreme Administrative Court seeking the vote of

unconstitutionality of the provision of section 124 para. 1 of the Aliens Act, in

amended by Act No. 218/2002 Coll., for his alleged conflict with the article. 1 of the Constitution

and with art. 1 of the Charter.



94. In article. 1 of the Constitution states:



"(1) the Czech Republic is a sovereign, unified and democratic legal State

based on respect for the rights and freedoms of man and citizen.



(2) the Czech Republic complies with the obligations under the

of international law. ".



95. In article. 1 of the Charter states:



"People are free and equal in dignity and in rights. The fundamental rights and

freedoms are inalienable, not subject to alienation, nepromlčitelné and

irrevocable. ".



96. the proposal submitted by the Supreme Administrative Court compares the legislation

detention of a foreigner for the purpose of expulsion with binding legislation in the

criminal proceedings and legislation management about voicing the admissibility of

taking and holding in the Institute of health care according to the code of civil procedure

and concludes that the contested provisions of the Aliens Act (in the Governing

the text of the constitutional principle of equality) violates.



97. The Supreme Administrative Court contesting the detention of a foreigner, the Institute itself


that is modified provisions of section 124 para. 1 of the Aliens Act. It,

what they oppose, it is rather the lack of more detailed legislation,

the lack of automatic, periodic and effective judicial review.

Another reason for the alleged unconstitutionality is supposed to be the length of stay of the alien in the

facilities for detention centre (detention of a foreigner is appellant

unreasonably long).



98. The Constitutional Court notes that the task of the Constitutional Court is to protect the

constitutionality, not normal. In accordance with article 6(1). 87 of the Constitution, and with the

the provisions of § 64 para. 3 of the law on the Constitutional Court, the Constitutional Court decides

on the abolition of laws and other legislation, where they are in conflict with the

the constitutional order. The Constitutional Court thus performs the function of the negative

the legislature is entitled to cancel the unconstitutional legislation and their

individual provisions. The Constitutional Court, however, is no longer entitled to the repealed

laws and other legal regulations to replace the new, that is, a custom

regulatory activities to fill in gaps in the current legal order.



99. The arguments the Supreme Administrative Court, objecting to infringement

the principle of equality, is misleading. Compare in terms of the principle of

equality, enshrined in an article. 1 of the Charter, can be only the rights and obligations of

people in comparable situations (e.g. with regard to the traditionally zapovězená

the criteria of discernment-cf. article. 3 of the Charter). Comparison of legislation

two or more institutions, expertise in different situations, you cannot

issue a matter of equality between the parties.



100. According to the article. 1 the Constitution of the Czech Republic is a sovereign, unified and

the democratic rule of law based on respect for the rights and freedoms of man and the

citizen. According to the article. 1 of the Charter, people are free and equal in dignity and

in the rights. The provisions of article. 3 (2). 1 of the Charter enshrines equality in relation

the guarantees of fundamental rights and freedoms. According to the article. 4 (4). 3 of the Charter must

legal restrictions of fundamental rights and freedoms apply equally to all

cases that meet the specified conditions. The principle of equality in the rights of the

yet to be seen, even in the wake of the article. 26 of the International Covenant on

Civil and political rights, which States that all prior

by law, equal and are entitled to equal protection of the law without any

discrimination, and the law is to prohibit any discrimination and guarantee

to all persons equal and effective protection against discrimination on any

reasons, for example. based on race, colour, sex, language, religion,

political or other conviction, national or social

origin, property and family.



101. the constitutional principle of equality, enshrined in article. 1 of the Charter, according to which the

people are free and equal in dignity and rights, and finance in a complementary

expressed in article. 3 of the Charter, guaranteeing non-discrimination in the allocated

fundamental rights, interprets the Constitutional Court in its case law of

dual-perspective [e.g. the findings of the Constitutional Court, SP. zn. PL. ÚS 16/93 of

24 September. 5. the 1994 (N 25/1 SbNU 189; 131/1994 Coll.), pl. TC 36/93 of

17.5. 1994 (N 24/1 SbNU 175; 132/1994 Coll.), pl. ÚS 5/95 of 8 June. 11.

1995 (N 74/4 SbNU 205; 6/1996 Coll.), pl. ÚS 9/95 of 28 June. 2. the 1996 (N

16/5 SbNU 107; 107/1996 Coll.), pl. TC 33/96 (1) 4. 6.1997 (N 67/8

SbNU 163; 185/1997 Coll.), pl. ÚS 9/99 of 6 September. 10.1999 (N 135/16 SbNU

9; 289/1999 Coll.), pl. ÚS 73/06 of 29 April. 1.2008 (297/2008 Coll.)].

The first requirement for exclusion is given in the procedure of the legislature when the arbitrariness

distinguish between the parties and their rights, the second requirement of the

constitutional aspects of the differentiation, i.e. plausibility. inadmissibility

prejudice to one of the fundamental rights and freedoms of odlišováním entities and

rights on the part of the legislature.



102. In its case law the Constitutional Court holds, firstly, the concept of equality

incidental in nature, IE. equality in relation to another fundamental right or

freedom, and the concept of equality, i.e. neakcesorické. universal equality

before the law. In doing so, he understands the equality not absolutely, but relatively:

the principle of equality in the rights it is necessary to understand the way that legal distinction

between the operators ' access to certain rights may not be a sign of arbitrariness

[cf. the findings of the Constitutional Court, SP. zn. PL. ÚS 16/93 of 24 June 1993. 5. the 1994

(N 25/1 SbNU 189; 131/1994 Coll.), pl. TC 36/93 of 17 February. 5. the 1994 (N

24/1 SbNU 175; 132/1994 Coll.), pl. ÚS 4/95 of 7 July. 6.1995 (N 29/3

SbNU 209; 168/1995 Coll.), pl. ÚS 5/95 of 8 June. 11.1995 (N 74/4 SbNU

205; 6/1996 Coll.), pl. ÚS 9/95 of 28 June. 2. the 1996 (N 16/5 SbNU 107;

107/1996 Coll.), pl. TC 33/96 (1) 4. 6.1997 (N 67/8 SbNU 163;

185/1997 Coll.), pl. ÚS 15/02 dated June 21. 1.2003 (N 11/29 SbNU 79;

40/2003 Coll.)].



103. Equality is the definition of categories of relative in another sense:

considered in the category of equality can only be in the relationship between at least two

persons in the same or a comparable position, [cf. Constitutional

the Court of the CSFR SP. zn. PL. ÚS 22/92 (see above)]. To specify a group of people that

It can be in terms of preserving the principle of equality to be compared, belongs to the

most difficult tasks when using this argument [cf. find

The Constitutional Court, SP. zn. PL. ÚS 47/95 of 2 May. 4.1996 (N 25/5 SbNU

209; 122/1996 Coll.)]. The basic guideline is to enumerate the objectified

epithets, on whose basis is unacceptable any distinction

or different treatment (cf. Article 3, paragraph 1, of the Charter, and similar

anti-discrimination provisions in a number of international instruments on

human rights).



104. the Constitutional Court notes that the applicant is confusing the category

equality in the above-mentioned concept, which applies consistently to

bodies for "equality" between the legal institutions. Comes from

provided that between legislation ensuring the foreigner for the purpose

the expulsion on the one hand, and the legislation of the bindings in the criminal proceedings and

the legislation for the vote on the admissibility of taking control and possession at the Institute

health care according to the code of civil procedure on the other side are

unfounded differences. Compare these legal institutions is, however, in

the context of the principle of equality of inappropriate.



105. The argument of the applicant with respect to these institutes, whose content and

the conditions of application are substantially different, moreover, moving only in

the plane of the suitability of the chosen legislative solutions in relation to this or that

a situation in which the need arises to limit personal freedom. The Constitutional Court

assess legal according to the reference criteria

fitness.



106. The contested provision does not constitute an interference with constitutionally protected

the principle of equality, since it is not a distinction between the rights and obligations

individuals due to the traditionally answered the criteria (see article 3, paragraph 3.

1 of the Charter) or relative to another position. "It cannot be argued, inequality

where the law lays down for all the entities that can be included under the

personal scope of the legislation, the same entitlement conditions. " (see find

SP. zn. PL. ÚS 47/95). In terms of the principle of equality, it is essential that the

under the law, all aliens have the same conditions, in respect of their

stay in our territory, and have the same rights and obligations, regardless of

on their sex, race, colour of skin, language, faith and religion, political

or other opinion, national or social origin, membership of a

national or ethnic minority, property, or other similar

position. Similarly, on the question of equality expressed by the Constitutional Court in its

the award of 28 June. March 2006, SP. zn. PL. ÚS 42/03 (N 72/40 SbNU 703;

280/2006 Coll.).



107. Beyond said to the present case, it should be noted that the

between the aliens referred to in article. 5 (3). 1 (b). f) of the Convention.

binding [article 5, paragraph 1 (b) (c)) of the Convention] or by holding in the constitutional

medical care [article 5, paragraph 1 (b), (e)), of the Convention] is making a difference to

The Charter, as well as the Convention. The Charter also accused or suspected of

committing of an offence when the deprivation of liberty are more

the degree of legal protection, in particular to ensure automatic and regular judicial

review.



108. In the Convention is in relation to persons accused or suspected of having committed

of the offence (i.e. in addition to the rules contained in article 5, paragraph 2, and 4

The Convention, which applies to both types of proceedings, i.e.. for the management of the administrative

expulsion for criminal proceedings) enshrined a number of other variants

the legal limitation of personal freedom: the lawful incarceration after conviction

the competent court; the lawful arrest or detention of a person

because the lawful order of a decision issued by a court under the Act, or

Therefore, in order to guarantee compliance with the obligations laid down by law; legal

the arrest or detention of a person for the purpose of bringing him before the

the competent judicial authority for reasonable suspicion of a crime

or if there are reasonable grounds to believe that it is necessary to prevent her in

committing an offence or fleeing after committing; the other waiver

freedom of the minor on the basis of a legal decision for the purposes of

educational supervision or his lawful detention for the purpose of its

bringing him before the competent authority.



109. everyone who is arrested shall be informed promptly, in a language

He understands, of the reasons for his arrest and of any charge against him

(article 5, paragraph 2, of the Convention). Everyone who is arrested or otherwise deprived of his freedom

in accordance with the provisions of paragraph 1 (b). c) of this article, it must be

immediately brought before a judge or other officer authorised by law to


the exercise of judicial powers and has the right to be tried within a reasonable time, or

released during the proceedings. Release may be conditioned by guarantees that

the person concerned appear for trial (article 5, paragraph 3, of the Convention). Anyone who

He was deprived of his liberty by arrest or detention has the right to submit a proposal

the procedure in which decided speedily by a court on the lawfulness of his

deprivation of liberty and his release ordered if the detention is unlawful

(article 5, paragraph 4, of the Convention).



110. the European Court of human rights (hereinafter referred to as "the Court") that

deprivation of liberty under article. 5 (3). 1 (b). (f)), of the Convention can be

to justify the ongoing vyhošťovacím only or issuing proceedings.

If such proceedings are not conducted with due care, binding stops

be in accordance with that provision (case Chahal v United

Kingdom, § 112, 1996). In any Court of the analysis period, the binding must

match the article. 5 (3). 1 of the Convention, individuals against arbitrary chránícímu

deprivation of liberty, and the task of the Court is to ascertain that the national

the law is in accordance with the Convention and with the principles that are contained in it

(case Shamsa against Poland, 2003).



111. In this connection, it should be pointed out the thing and the other against Čonka

Belgium (2002), in which was the subject of the complaint, the binding of the expulsion. In

in this case the complainants questioned whether their arrest with a view to their

removal from Belgian territory was necessary. The Court in this matter

He noted that there is no dispute between the parties about how to

inkriminovanému arrest occurred in order to expel the complainant from the Belgian

the territory so that it is applicable in the present case. The Court stated that

the provisions of article. 5 (3). 1 (b). f) of the Convention does not require that the waiver

freedom of a person against whom action is being taken on the expulsion, it was necessary

for example, in order to be prevented from committing the offence, or

in the run; in this regard, article. 5 (3). 1 (b). (f)) does not foresee the same

protection as the article. 5 (3). 1 (b). (c)) of the Convention. Indeed, it requires only that the

"the procedure for expulsion" (see Chahal v United Kingdom,

1996; also see Kaya against Romania, 2006).



112. In case Nasrullojev against Russia (2007) the Court noted that both

the parties agree that the applicant was in custody for the purposes of the issue of

Russia to Tajikistan. The provisions of article. 5 (3). 1 (b). f) of the Convention is

Therefore, in this case applicable. This provision does not require that

the binding of the person, which shall decide on the issue, had to be found to be necessary

in the light of eg. on preventing the perpetration of the criminal offence or avoiding

control. In this context, the article provides. 5 (3). 1 (b). (f)) another degree

of protection than article. 5 (3). 1 (b). (c)): subparagraph (f))

required to "deportation or extradition proceedings" (see also

Chahal v United Kingdom, paragraph 112).



113. The Court further pointed out that has the task to examine whether the

app's "legal" for the purposes of article. 5 (3). 1 (b). (f)), of the Convention

with specific regard to the guarantees provided by the national system. There,

where it is considered "legality" including whether binding was observed

"in accordance with the procedure prescribed by law", the Convention relies on

national law and the obligation to comply with the substantive and

procedural rules of national law. In addition, it requires

any deprivation of liberty should be carried out having regard to the purpose of the article. 5

The Convention, which is protection from arbitrariness (see the Amuur against France, § 50).



114. The Court further said that as far as the "legality" of detention,

including compliance with the "procedure provided for by law", the Convention is in principle refers to the

the obligation to comply with the substantive and procedural norms of the national

legislation, but also requires the compatibility of any waiver of the

freedom to article. 5 of the Convention: to protect individuals against arbitrary decisions (see

among other Bozano against France, 1986, Chahal v United

Kingdom, paragraph 112).



115. the Court left the Contracting States a wide autonomy in deciding on the

the expulsion of foreigners, and expressly confirmed that the right of access to a court,

contained in the article. 6 (1). 1 of the Convention, in deciding on the expulsion of foreigners

not applicable (see Maaouia against France or against Askarov Mamatkulov as well and

Turkey).



116. Under international law, the State has the right, on the basis of their sovereignty

control the entry and residence of foreigners in its territory. Also is an established

as a rule, that the Member States of the Convention, it is assumed that it will limit

the free exercise of their rights under general international law and to the extent that

within the limits of their responsibilities, to which they have committed themselves under the Convention (see case Saadi

against the United Kingdom, 2006).



117. The Constitutional Court has in the past clearly expressed the

The Charter provides protection only to the law of the Court that the rule of law

guarantees [find SP. zn. PL. ÚS 36/93 of 17 February. 5. the 1994 (N 24/1 SbNU

175; 132/1994 Coll.), resolution SP. zn. IV. TC 85/04 of 13 February 2003. 5.2004].

The Constitutional Court in its case law has repeatedly expressed that subjective

constitutionally guaranteed the right of foreigners to reside on the territory of the Czech Republic

does not exist, because it is a matter of a sovereign State, under what

(non-discriminatory) terms and conditions accepting on its territory the residence of aliens

[resolution SP. zn. IV. TC 85/04 of 13 February 2003. 5.2004, resolution SP. zn.

III. TC 99/04 of 29 April. 4.2004, resolution SP. zn. III. TC 219/04 on

on 23 December 2005. 6.2004 (U 39/33 SbNU 591), resolution SP. zn. III. TC 260/04 of

on 9 April. 6.2004]. On the issue of visas is not according to the explicit text of the Act

legal claim (article 51, paragraph 2, of the Aliens Act). None of the

the rights enshrined in the Charter shall not give rise to reside on the territory of aliens

Of the Czech Republic. Such a right is given only to citizens of the United States (after the

the entry of the Czech Republic into the European Union by EU citizens also) and this article.

14. 4 of the Charter, while paragraph 2 of the same article, which applies

the other foreigner, based only on their right freely to the territory of the United

the Republic to leave.



118. It must first be pointed out that in criminal proceedings the detainee

or accused of having committed a criminal offence is limited to personal freedom

against his will and choice, while the alien secured for

the purpose of administrative expulsion may voluntarily from the country of residence at any time

to travel.



119. in the summary above, the Constitutional Court concludes that it cannot be

comparison of the deprivation of liberty during detention of a foreigner for the purpose of

administrative expulsion and detention-bound within the

the ongoing criminal proceedings; the difference between the two procedures is how

The Charter, as well as the Convention.



120. In this context, it should be noted that the references to the case-law

The European Court of human rights, contained in the submissions of the participants

proceedings relating to deprivation of liberty in connection with the binding in the

criminal proceedings, cannot be applied to the issue of limitations unreservedly

personal liberty during the proceedings on the expulsion of aliens.



121. The Supreme Administrative Court also argues that the contested provisions infringe

the principle of proportionality. However, the Constitutional Court concludes that

the argument of the applicant, the applicant shall perform a test

of proportionality, is not correct. Even if such a test has been carried out,

the contested provisions would hold up.



122. the applicant itself acknowledges that this legal adjustment is being monitored

legitimate aim, which is essential in a free democratic society.

The aim of the Institute is to ensure protection of society against foreigners

harmful phenomena, i.e. before the disruption of public order, the

security of the State or ztěžováním enforcement of administrative expulsion.



123. Also on the second question, whether the proportionality test is given by

a rational connection between the objective and the means chosen to promote,

the applicant itself corresponds to the affirmative and recognises that ensuring may indeed

effectively avert threats has to defend. Secured a foreigner cannot

to disrupt public order, national security or impede enforcement

on administrative expulsion.



124. the claimant regarding the response expresses doubt as to the third question

proportionality test, namely whether there are alternative ways of achieving

objectives, the use of which would make the law less interference with the fundamental

intense, respectively. to eliminate it entirely. The rapporteur believes that the

This question, the answer is in the affirmative, and argues conditions

limitation of personal freedom, and by modifying the progress in deciding on the

custody in criminal proceedings or by modifying the procedure for the holding of the constitutional

medical care.



125. the Constitutional Court, however, does not share this opinion navrhovatelův. In the opinion of

The Supreme Administrative Court a less restrictive alternative has focus on the

the fact that a limitation of personal liberty decides to another authority (a court instead of

the police authority) and for the plaintiff in a more appropriate procedural regime.

Referred to, however, cannot be regarded as a less restrictive alternative, since it still

It's about the same measures-limitation of personal freedom. Argumentation

The Supreme Administrative Court applies the system of subsequent legal

protection, not to the question of whether a less restrictive alternative

We can make that personal freedom of foreigners is not restricted at all

or to a lesser extent or in some other way, which has less search

restrictive alternatives to lead.




126. The Constitutional Court Furthermore recalls that when considering this question has

crucial importance, the fact that it is completely in the present itself

foreigners, whether it wants to avoid its ensuring that from the territory of the United

States on a voluntary basis. Failure to do so gives a clearly

clear that it is willing to suffer the limitation of personal freedom by ensuring that, under the

conditions laid down by the domestic legal order.



127. The Constitutional Court notes that the right to judicial review of the legality of

deprivation of liberty, guaranteed by article. 5 (3). 4 of the Convention, in the case of

detention of a foreigner under the provisions of section 124 para. 1 of the law on residence

sufficiently guaranteed both by aliens of administrative actions in accordance with

the provisions of section 65 et seq.. s. r. s., on the one hand the possibility to go to court with the

for release to freedom according to the provisions of § 200o o. s. l.



128. The Constitutional Court finally mentions that he is known to the judgment of the European

Court of human rights in the case of Ray ban against the Czech Republic on 27.

November 2008 (complaint No. 298/07), which is expressed on the question whether

Czech legislation provide the complainant-applicants for international

protection, that is located in the reception center in the transit zone

the international airport, an effective remedy, which could

to challenge the lawfulness of their detention. In terms of the article. 5

paragraph. 4 of the Convention, the Court, having found that the complainant had the right to

the accelerated and efficient judicial review, even if he was deprived of his liberty ex lege on

under section 73 to the asylum Act, without any authority has issued a formal

a decision on its location, has come to the conclusion that the complainant did not have to

remedy available to satisfy the requirements of article. 5 (3). 4

Of the Convention. Now in the present case, however, this is not the case, since the

the facts of the case were different, and be able to follow and

decided to provide to the complainant pursuant to section 124 para. 1

of the Aliens Act, and not under the law on asylum.



129. The Constitutional Court points out that in its decision-making activity is

Petite-bound design. The provisions of § 125, or 168 of the Aliens Act

the proposal challenged are not, and that is why the Constitutional Court ústavností

those provisions in the assessment of this proposal could not deal with.



130. In conclusion, the Constitutional Court adds that the rejection of the application, however,

does not exclude that it will be appropriate for the futuro is effectiveness and efficiency

the existing legislation to deal with and look for new xešení, which will be

more access restriction or deprivation of liberty of aliens in

context of the ongoing proceedings on administrative expulsion, eg.

the introduction of an automatic judicial review of the order made in the certain time

intervals.



131. in the summary above, the Constitutional Court motions

unconstitutionality of the provision of section 124 para. 1 of the Act No. 326/1999 Coll., on the

the stay of aliens in the territory of the Czech Republic and amending certain acts, in

amended by Act No. 218/2002 Coll., according to the provisions of § 70 para. 2 of the law on

The Constitutional Court has rejected.



The President of the Constitutional Court:



in the z.. Holländer in r.



Vice Chairman



* Note. Red: a collection of findings and resolutions of the Constitutional Court, volume 21, finding

# 5, str. 29, declared under no. 78/2001 Sb.