159/1998 Coll.
FINDINGS


Constitutional Court
On behalf of the Czech Republic


Constitutional Court decided on 13 May 1998 at the plenary session on the proposal for TTV
repeal § 14 para. 1 point. f) and paragraph. 4, § 15 para. 2 and § 16 para. 3
Act no. 123/1992 Coll., on Residence of Aliens in the Czech and Slovak Federal Republic
, as amended, || |
Follows:

I. § 14 par. 1 point. f) of the Act no. 123/1992 Coll., on residence
foreigners in the Czech and Slovak Federal Republic, as
amended, shall be repealed on 13 May 1999.

II. § 14 par. 4 of the Act no. 123/1992 Coll., On the stay of foreigners on the territory
Czech and Slovak Federal Republic, as amended, is hereby repealed
day this Judgment in the Official Gazette.

III. The proposal to repeal § 15 para. 2 of Act no. 123/1992 Coll., On
stay of foreigners in the Czech and Slovak Federal Republic, in
as amended, is rejected.

IV. The proposal to repeal § 16 par. 3 of Law no. 123/1992 Coll., On
stay of foreigners in the Czech and Slovak Federal Republic, in
amended, refuses.
Reason


I.

Judgment under appeal, the Prague Municipal Court dismissed the action
complainant against a decision of the Police Presidium of the Czech Republic
Directorate of Alien and Border Police of 3
fourth 1996 ref. No. PPR-1517 / RCP-C-225-96, dismissing the appeal
complainant against an administrative decision of the Police of the Czech Republic,
Foreign Police department in Klatovy of 12. 2. 1996 no. j.
PZC-117 / / PCKT-c-96, which was the complainant in accordance with § 14 par. 1
point. f) of the Act no. 123/1992 Coll., as amended, banned
stay on the territory of the Czech Republic to 12. 2. 1999 according to § 15 para. 2
quoted law imposed an obligation to leave the territory of the Czech
Republic to 12. 3. 1996, with the instruction that an appeal against this decision has
under the cited law suspensive effect. Along with
decision on the merits and rejected the complainant's proposal to postpone enforcement
cited the decision of the Police of the Czech Republic.
The decision is further justified by the fact that the complainant has failed to fulfill an obligation
according to § 22 letter. a) Act no. 123/1992 Coll., as amended, because
13 4, 1995, has committed an offense under § 293 of the Act no. 13/1993 Coll.
(Customs Act) by obstructing customs control, for which she was
levied fines amounting to CZK 1,500, and that on 15. 9. 1995 and 26
10th 1995 committed an offense under the Act no. 634/1992 Coll., On protection
consumers because they sold products that were marked with price tags.
For misdemeanors she was also imposed fines amounting to 200
CZK 500 and CZK. All the fines paid by the complainant.

The constitutional complaint against the judgment complainant firstly
stated that it violated the principle of "ne bis in idem", as was said
repeatedly penalized for a breach of his duties, although no longer for them
It has been affected within misdemeanors proceedings. That said there was a breach of Article
. 4, paragraph. 1 of Protocol no. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms
(hereinafter the "Convention").
Removing the suspensive effect of her appeal and imposing an obligation to leave the Czech Republic even before
exhaustion and discussing its remedies are also
allegedly violated her rights enshrined in Art. 1 of Protocol no. 7 to the Convention.
Already in proceedings before a general court allegedly claimed that "
exercise of those decisions" before the exhaustion of remedies is violated
right to a public hearing in her presence, including the right to comment on the evidence presented by
Article . 38 par. 2 of the Charter of fundamental rights and
freedoms (the "Charter").

Together with the constitutional complaint, the complainant also filed a petition to annul
§ 14 par. 1 point. f) and paragraph. 4, § 15 para. 2 and § 16 para. 3
Act no. 123/1992 Coll., as amended. It said that
§ 14 paragraph. 1 point. f) of this Act to prohibit the stay of foreigners in the Czech Republic
if "violated
obligation stipulated by this Act or other generally binding legal regulation." This provision
that no criteria for severity, apparently allows
penalize infringements beyond transgression or criminal proceedings and
example. - In respect of possible rulings banning residence foreigners -
no distinction between committing a crime and trivial offense. listed

Provision is said to be in conflict with Art. 1 of the Constitution of the Czech Republic (hereinafter
"Constitution"), because "enacts legal uncertainty and provides for an unspecified
range of cases for which you can express prohibition of residence, without specifying
seriousness of the case and the degree of guilt. " The complainant finds
contradiction with the provisions of this Article. 4 of Protocol no. 7 to the Convention, since it allows
double punishment for the same thing delinquent conduct.

According to the complainant, the further provisions of § 14 para. 4, § 15 para.
2 and § 16 para. 3 of the Act, contrary to Art. 1 of Protocol no. 7 to
Convention, according to which foreigner be expelled only on the basis of performance
decision taken in accordance with the law and be able to a)
submit reasons against his expulsion; b) have his case reviewed;
C) to be represented for this purpose before competent authority or before the court of
or persons designated by that authority. The expulsion
before exercising these rights can only happen when such expulsion is necessary in the interests
public order or is grounded on reasons of national security
(paragraph 2 of the Convention provisions). According to § 14 para. 4 of the Act no. 123/1992
. However suspensive effect of the appeal against the decision to ban
stay excluded. This provision is therefore inconsistent with Art. 38 par. 2
Charter, because the complainant prevents personal access to the courts and
public hearing in her presence. According to § 16 of the same Act
be banished regardless of appeal, while
pursuant to paragraph 3 thereof, the decision on expulsion
excluded from the administrative proceedings. This provision is allegedly also inconsistent with Article
. 36 para. 1 of the Charter, under which everyone can claim
prescribed procedure, his rights before an independent and impartial court of
specified cases, before another body.

I. Resolution of the Constitutional Court dated 22. 7. 1997, file no. . I. ÚS 152/97
was proceeding on a constitutional complaint under § 78 para. 1
Act no. 182/1993 Coll., on the Constitutional Court suspended a proposal to repeal the provisions cited above
Law was passed
plenum of the Constitutional court for a decision under Article. 87 paragraph. 1 point. a) of the Constitution.

Chamber of Deputies of the Parliament of the Czech Republic in its statement
stated that the Act was approved by the necessary majority of deputies
Federal Assembly of the Czech and Slovak Federative Republic of 4
third 1992 was signed by the appropriate constitutional authorities and was duly promulgated
.

Deputies considers that one of the manifestations of state sovereignty
is the fact that state law establishes the conditions for entry and residence of foreigners
on its territory and departure of foreigners abroad.
It is apparently bound only by international treaties ratified and announced
.

As regards the contested provisions of § 14 para. 1 point. f) of the Act no. 123/1992 Coll
., said the discussion that is too broad and vague, and that does not admit the possibility
excessively broad interpretation to the detriment of foreigners.
In accordance with § 32 of the same law, however, the management of the ban
residence subject to general regulations on administrative proceedings (Administrative Code).

The provisions of § 14 para. 4 of the cited Act, under which an appeal against the decision to ban
residence is suspended, allegedly exported
provisions of § 32 par. 2 of the Act permits in such cases the court
review. Here we ultimately decided by an independent court and that
apparently is sufficiently protect the rights of foreigners against possible misuse
law or the incorrect application of administrative authority in
administrative proceedings.

§ 15 para. 2 of the said Act does not deviate from the usual
law and international practice. § 15 para. 1
additionally enables exceptionally allow a short stay in the Czech Republic,
if it is justified by humanitarian reasons, and especially not allowing
stay would unduly harsh attitude.

§ 16 par. 3 of Law no. 123/1992.
governs the procedure for the deportation of foreigners who illegally enter or
staying illegally on the territory of the Czech Republic. Since the state has the right to protect its territory and citizens
front of strangers knowingly in breach of the law, this provision is fully
spot. Moreover, it is clear that expulsion is regulated optional and is
it decided only if the alien has not met - eventually. can

Reasonable to assume that fails - the obligation to leave the country.

For all these reasons, the Chamber of Deputies considers the proposal to repeal
cited provisions of Act no. 123/1992 Coll. unjustified.

Interveners uniting with the petition and the arguments
contained therein. The decision to ban staying in their opinion
not be interpreted as an administrative measure, but as a criminal sanction
, "which is apparently equivalent to a sentence banning residence according to §
57a of the Criminal Code". Expulsion is apparently only the enforcement of the ban
residence, taking with him any remedies are excluded
means against the police. This supposedly gives you the possibility of arbitrariness
administrative authority. The contested provisions of the Act no. 123/1992 Coll.
therefore violate fundamental rights of foreigners, and therefore, the interveners seek
their abolition.

Municipal Court in Prague as an intervener in its statement said that
found no grounds to annul § 14 par. 1 point. f) and paragraph. 4 and
§ 15 par. 2 Act no. 123/1992 Coll., as it believes that they are not in contradiction with the constitutional
laws or international treaties under Art. 10 of the Constitution
. § 16 par. 3 of emotion. Law said in this case that was not used at all
.

Interior Ministry as the basis of his statement marked primarily
view that the term "expulsion" in Art. 1 of Protocol no. 7 to the Convention
involve the prohibition of residence (§ 14 and 15 of the Aliens Act
on the territory of the Czech and Slovak Federal Republic) and deportation (§ 16-18
Act). The starting point is based on the fact that both institutions have said
same impact on the freedoms of foreigners - expulsion and subsequent
leaving the country.

Ministry of Interior is generally stated that the complainant in the definition
their legal status, based on a misinterpretation of the "ne bis in idem
" because the purpose of this policy is that once a final
decided not matter be decided in the same procedure again. This principle
said, however, preclude it after a misdemeanor
rulings banning residence.

Similarly, apparently removing the suspensive effect of appeals and the imposition of duties
leave the territory before the exhaustion of remedies are not automatically
violated rights of the petitioner in accordance with Art. 1 of Protocol no. 7 to the Convention
. From that article, inter alia, that a foreigner may be deported
before it exhausts the opportunity to oppose his expulsion
when such expulsion is necessary in the interests of public order or
is justified by national security interests; . In doing so, the material character
misdemeanor culpable conduct that violates or threatens the interest
society and under this interest may be classified as public order.
When applying this procedure, it is necessary to significantly weigh
ratio between the interest in protecting public order and interest in protecting freedoms
foreigners, the injury that the public interest would be created early
non-refoulement must be greater than the damage that occurs when foreigners
implementation of the suggested procedure. § 14 par. 4 of the Act no. 123/1992
. But similar "weighting ratio" does not expressly and in
it can be seen the lack thereof. It said, however, questionable whether the decision to ban
stay, eventually. the expulsion can not be considered a penalty
because it can be rather characterized as a measure to protect the public interest
.

The provisions of § 14 para. 1 point. f) of the Act no. 123/1992 Coll.
The Ministry of Interior said that in each case the prohibition of residence keeps proper management
Administrative Code, which is reviewable by a court. This procedure
not necessarily lead to a decision on the prohibition of residence and it is also possible
band dangerousness hearing foreigners determination of various lengths ban
stay. These facts apparently indicate that the cited provision does not
inconsistent with the constitutional order of the Czech Republic with its international obligations
.

From the provisions of § 14 para. 4 of the Act no. 123/1992 Coll. - Which is
Interior Ministry has already alluded to in the general part of his statement - although
that every first instance decision will result in the forced expulsion
before final decisions. Art. Protocol No. 1.
7 of the Convention, however, assumes such a possibility only if
threat to public order or national security. Application Practice allegedly

Stabilized at that residence ban can be expressed for example.
Because of "crossing the red," but when repeatedly committing offenses.
If that provision were repealed, there would apparently be ensured
departure of foreigners even if it threatened public order.

§ 15 para. 2 of the Act constitutes a lawful warrant
for state authority to be able to set a deadline for departure.

§ 16 par. 3 of the Act, under which the management of
expulsion apply administrative order, based on statements by the Interior Ministry
from the fact that illegal entry and illegal residence (roz.
On territory) are objective facts that need not be subjected
review. The law specifies the conditions under which it may reasonably
enter and reside on the territory of the Czech Republic, the breach "has
result of unauthorized entry and residence.
Decision on expulsion only person communicate that it will .. . expelled "and more
procedural regulation is not necessary.

Finally, the Interior Ministry said it is aware that "
arguments mentioned in the previous sections are not always constitutionally compelling" and that
current legislation is inadequate, so were initiated legislative work on new
legislation residence of foreigners. However, because the territory of the Czech Republic
abode of foreigners, who during his stay
act in contradiction with the legal order of the Czech Republic, considers
Ministry of Interior when granting the petition to annul certain provisions of Act No.
. 123/1992 Coll. appropriate to determine the effectiveness of deferred finding for one year.

Ministry of Foreign Affairs said in its statement that Article. 4 paragraph.
1 of Protocol no. 7 to the Convention applies only to criminal proceedings.
In the explanatory memorandum to this provision is also mentioned that the same act
may be in addition to criminal proceedings also subject to disciplinary or administrative proceedings
. From the case said that the decision on infringement
immigration legislation should not be considered a decision on criminal charges and
saved him expulsion from the country for a penal sanction.
[Zamir v. United Kingdom, D. a. R 29 (1982), pp. 153].

According to the explanatory memorandum to Art. 1 paragraph. 1 of Protocol no. 7 to the Convention must apparently be
term "expulsion" regarded as an independent concept that is completely independent of
national definition refers to any measure || | forcing departure of foreigners from the country, with the exception of extradition. Art. 1
does not require that the person concerned stayed on the territory until a decision on
appeal against the decision to review her case.
Method of examination is entirely entrusted to national legislation is not
required to reviewing body was different from the authority that issued the original decision
, and fully adequate is considered autoremedy.
As regards the right to be represented before the competent authority or court
interpretative report states that does not include the right of the person concerned
attend meetings before such bodies. Nor is it required
oral hearing of the case and the written procedure is considered
sufficient. From case to Art. 6 Sec. 1 of the Convention shows that
apply to proceedings relating to residence permits and deportation of foreigners
if it does not prejudice respect for family life as a "civil right
". In relation to Art. 6 Sec. 1 of the Convention is thus Art. 1 of Protocol no. 7 to the Convention
lex specialis, which is not the case that the outcome of the expulsion
is decisive for a civil right guaranteed by the Convention.
When should therefore lead to the expulsion of persons to a country's nationals
authorities a legal obligation not to deport her to a country where they could be
violated her fundamental rights (eg. The right to life, the right not to be | || subjected to torture), but this person has no opportunity to challenge the decision
which did not respect this obligation, since the proceedings
expulsion is excluded from the scope of the administrative Code and special legal
finish his course there. In the proceedings on the prohibition of residence
this person did have the possibility to challenge the decision of a state authority, but this decision has not yet
encroach on their rights. This intervention occurred
expulsion orders against which did not appeal
exist.

From the context of the Ministry of Foreign Affairs also shows that

In his opinion, in order to expel necessary in a particular case to examine whether
interference with the rights of the individual concerned represents only the expulsion itself
or whether they have already been affected by the imposition of stay. If
was an intrusion into individual rights guaranteed by the relevant contract
limited only to proceedings on imposing a ban on residence, from the perspective of these
provision for expulsion should be seen merely as an "execution"
rulings banning residence and Art. 1 of Protocol no. 7, Art. 6 paragraph.
1 of the Convention and Article. 14 paragraph. 1 of the International Covenant on civil and political rights
the removal procedures do not apply. However, if the expulsion constitutes
such interference in individual rights, not resulting from a decision to ban
stay, but to expulsion itself, it is necessary to expel
seen not as a mere exercise judgment, but as a "deportation" by Art. 1
Protocol no. 7 to the Convention.

According to the belief of the Ministry of Foreign Affairs of the submission of the complainant
clear that the complaint is merely a decision on imposing a ban
stay, the petitioner does not claim that
constitute an interference with their civil rights under Art. 6 Convention.
On her case and therefore subject to Art. 1 of Protocol no. 7, but a violation of subparagraph 1
- as is clear from the above interpretation based
interpretative memorandum to the Protocol - apparently not.

II.

The Constitutional Court first examined the question whether the formal preconditions
validity of the contested provisions of the Act no. 123/1992 Coll., As amended
. In this direction was the Report on the 21st
joint session of the House of People and House of Nations VI. term, part 2, found that on
4. 3. 1992 a government bill on the Aliens
Czech and Slovak Federal Republic approved in the House of Nations
majority vote (105 in favor, none against, two abstentions) and in the House people also
majority vote (95 in favor, 1 against and 11 abstentions
vote). The law was duly signed by the appropriate constitutional authorities and
promulgated in the Official Gazette. Therefore, the Constitutional Court concluded that
Act was passed and issued within the bounds of constitutionally prescribed competence
a constitutionally prescribed manner (§ 68 para. 2 of Act no. 182/1993 Coll.).

The individual provisions of the Act no. 123/1992 Coll., The abolition
petitioner proposed that the Constitutional Court states the following:

First § 14 par. 1 point. f) provides: Foreigners can be banned
stay in the Czech Republic for at least one year if breached
obligation stipulated by this Act or other generally binding legal regulations
.

Complainant against this provision argued that the criteria are not
severity, which supposedly allows penalize infringements beyond
misdemeanors or criminal proceedings and such. - In terms of potential
decision to ban the foreigner's residence - does not distinguish between
committing crime and trivial offense. That provision is said to be in conflict with Art. 1
Constitution because "enacts legal uncertainty and provides for an unspecified
range of cases for which you can express prohibition of residence, without specifying
seriousness of the case and the degree of guilt." The complainant believes
contradiction with the provisions of this Article. 4 of Protocol no. 7 to the Convention, since it allows
double punishment for the same thing delinquent conduct.

In its observations on this provision Deputies said that
although it may be seen as too general and vague, but according to the provisions
§ 32 of the same law is applicable to the prohibition of residence subject to general regulations on
administrative proceedings (administrative Code). Also
Ministry of Interior in its statement said that in each case the ban is staying
keeps proper management, which is a "judicial review". Within its framework can be
found that the reason that led to the initiation of proceedings does not in proportion to
interference with the freedom of foreigners so substantial as to impose a ban stay
had occurred.

According to Art. 2. 2 of the Charter of state power may be exercised only in cases and
within the limits set by law and in a manner prescribed by law. According to Article
. 14 of the Charter's freedom of movement and residence guaranteed (paragraph 1).
These freedoms may be limited by law if it is inevitable for
national security, public order, health or
protect the rights and freedoms of others, and in demarcated areas also for

Conservation (paragraph 3). It is clear that the Charter while
admits legal restrictions on freedom of movement and residence, but this restriction
applicable only in the cases exhaustively defined. Article 4 paragraph.
4 of the Charter finally stipulates that when applying provisions on limits
fundamental rights and freedoms must be preserved to their essence and meaning.
Such limitations shall not be misused for purposes other than those for which
been determined. All this naturally comes into consideration only if
foreigner living in the Czech Republic on the basis of an official decision on
residence permits, thus not unduly.

Contested provision of § 14 para. 1 point. f) of the Act no. 123/1992 Coll.
suffer in the opinion of the Constitutional Court, the fundamental flaw of being too
general. Therefore it allows such an interpretation and application, which in its
consequences of freedom of movement and residence to limit (or may limit) beyond, which
Charter admits. One of the essential characteristics of law is
namely the principle of proportionality, which presupposes that a measure restricting
fundamental human rights and freedoms may not have negative consequences
exceed the positive, which represents the public interest in these measures
. This approach is comparable to the jurisprudence of the European
Court of Human Rights, according to which decisions of state bodies in
Aliens regime must be "necessary in a democratic society, that is.
Justified by a pressing social need and, in particular, must be reasonable
the legitimate purpose. "(cf. judgment of the European court of human rights in
things Beldjoudi 1992, a 234-a: Jan Capek
European court and European Commission of human rights, Linde, Prague 1995 ,
p. 67).

Cited § 14 par. 1 point. f) of the Act no. 123/1992 Coll.
however, it is - as already mentioned - very general and does not exclude the possibility
arbitrariness. The Constitutional Court took note of the opinion of the Chamber of Deputies and
Interior Ministry, according to which the necessary
individualization and concretization of this provision will ensure its application administrative authority
respectively. court, but this view does not endorse.
The Constitutional Court considers that the constitutional principle of respect for the rights and freedoms of man and citizen
- which is also an essential element of the democratic rule of law
within the meaning of Article 1 of the Constitution - implies that in matters such
essential to fundamental rights and freedoms of individuals, such
decide to prohibit the stay is unquestionably been already own legal rights
sufficiently accurate and representative of the foreseeable consequences of the behavior of natural persons
. Assessment of proportionality between the public interest in prohibiting foreigners staying
on the one hand and the interest in protecting the fundamental rights and freedoms
on the other hand, can hardly be entrusted only to public authorities -
deciding in a particular case - if supported by the law, whose
conditions and boundaries are not in this direction adequately defined.

That view is also supported legislation residence of foreigners in legal orders
some other comparable democratic countries.

The law of the Federal Republic of Germany on the entry and residence of foreigners in the territory
Society (Ausländergesetz from 9. 7. 1990 BGBl. I S. 1354 as amended)
states that expulsion ( "Ausweisung" - note : institutes 'ban
residence "and" expulsion "German legislation does not differentiate) falls in
consideration if foreigners' residence threatens public security and order
or other important interests of the Federal Republic of Germany (§ 45); reasons for expulsion are especially
threatening liberal democratic foundations or national security
participation in the use of force in pursuit of political objectives, rather than sporadic
or insignificant infringements, judicial or official
decision committing crimes outside German territory, endangering
public health, long-term homelessness and the like. (§ 46).

Austrian Federal Law on the entry, stay and departure of foreigners
(Fremdengesetz of 14. 7. 1997 BGBl. I 75/1997), provides that foreigners
may be prohibited to stay in Austria, if it is to based on "certain facts
" justified assumption that his residence threatens the peace, order and security
or other public interest referred to in Article. 8, paragraph. 2 of the Convention.
Under the impression of "certain facts" law mean in particular the condemnation
unconditional imprisonment of at least three months
sentenced to a suspended term of imprisonment of at least six

Months, conviction for repeated identical crime
repeated convictions for administrative offenses prescribed by the laws cited herein
or conviction for a serious breach of the law on border control
Notification Act and the employment of foreigners violation
financial and foreign exchange regulations, convictions for prostitution and so on. (§ 36).

Of the foreign legislation is clear that in legal
regulation banning residence (or. Expulsion) leave no room for too
free examination of the case, but rather strictly define in which cases the prohibition
stay may occur. § 14 par. 1 point. f)
Act no. 123/1992 Coll. similarly strict concept of being watched, because
admits the decision to ban the stay at any "breach of duty"
set even generally binding legal regulation, so
distinguish truly serious violations of laws of the Czech Republic from other violations
, which can be described as less socially dangerous.
In this respect, for example, we can point to some cases of violation of the reporting obligations
residence pursuant to § 19 and 22 feel. Act.

In this situation, the Constitutional Court concludes that the provisions of § 14 para. 1
point. f) of the Act no. 123/1992 Coll. is contrary to Art. 1 of the Constitution and Article.
14 paragraph. 1 of the Charter in connection with Art. 4 par. 4. Given
it has already dealt with the alleged violation of Art. 4 of Protocol no. 7 to the Convention,
because he considered it superfluous.

(Beyond this argument, the Constitutional Court adds that currently
ongoing legislative work on the new Aliens Act
in the Czech Republic, whose legislative intention to no longer count
with the department Institute prohibition of residence from the Institute expulsion proposal
speak only of expulsion. the reasons for expulsion are not defined so generally
as in the current legislation, but the proposal is quite clearly specifies
plus distinguishes different lengths depending expulsion
on the severity of different reasons. it is obvious that draft and processors
you are aware of the shortcomings of the current proposal and said monitors
remove them.)

Therefore, the Constitutional Court annul the entire § 14 par. 1 point. f) Act No.
. 123/1992 Coll. The solution would not only cancel the second part of the cited provisions
(the words "or other generally binding legal regulation") and its
not stopping the first part (the word "violated the obligation stipulated by this law
"). In application of § 22 letter. a) of the Act (the Aliens
on the territory of Czechoslovakia) is, inter alia, that "
foreigner is obliged to respect the laws and generally binding legal regulations in force in the Czech Republic
" so that the launch only the second the provisions of §
14 paragraph. 1 point. f) if the legislation is basically unchanged;
reason for the decision to ban staying infringement set
other generally binding legislation relying on the unbroken part
§ 14 par. 1 point. f) in connection with § 22 point. a) Act
which affect all of the above constitutional objections.

Second § 14 par. 4 stipulates:

Appeal against the decision to ban the residence does not have suspensive effect.

The complainant considers that this provision is violated her
rights enshrined in Art. 1 of Protocol no. 7 to the Convention, while
right to a public hearing in her presence, including the right to express themselves carried
evidence pursuant to Art. 38 par. 2 of the Charter.
Therefore proposes its abolition.

Deputies considers that this provision is offset by
provisions of § 32 par. 2 of Act no. 123/1992 Coll., Which in these cases
permits judicial review. Ultimately decides
independent court, which is apparently enough to protect the rights of foreigners
against possible misuse of the law or the incorrect application
administrative authority in administrative proceedings. Interior Ministry believes that it is necessary to weigh
ratio between the interest in protecting public order and interest in protecting freedoms
foreigners, the injury that the public interest would be created
early non-refoulement must be greater than the harm that
aliens arises in implementing the outlined procedure. The contested provision, although similar
"weighting ratio" does not explicitly - which can be seen the lack
- it is said, however, questionable whether the decision to ban the residence, respectively.

The expulsion has not punitive nature, it is possible to characterize
rather as a measure to protect the public interest.

Art. 1 of Protocol no. 7 to the Convention, which the complainant alleges is:

(1) An alien who is lawfully resident in the territory of a State may be expelled only
based on the performance of a decision taken in accordance with
law and must be able to:

A) to submit reasons against his expulsion;

B) have his case reviewed;

C) to be represented for this purpose before competent authority or before the court of
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 grounded on reasons of national security.

The first question which the Constitutional Court in this respect, consideration was
assessing whether the term "expulsion" (expulsion, expulse), with whom
Convention provisions cited works can be understood and prohibition decisions
residence pursuant to § 14 par. 4 of the Act no. 123/1992 Coll.
whether or not to do so because the law regulates the institute of expulsion
separately.

When considering this issue, the Constitutional Court several facts. In
notes first of all that the concept of "expulsion" (expulsion, expulse)
as it uses the convention, the concept of international and national law, not
. From acclaimed literature on this provision
that the term "expulsion" must be understood as an autonomous institute
independent of the definition under national law and representing
"any measure that enforces departure of foreigners from the territory, except for extradition" || | (cf. P. van Dijk / GJH van Hoof, Theory and Practice of the
European Convention on Human Rights, 2nd edition, Kluwer Law and Taxation
Publishers, Deventer - Boston, 1990, p. 505) .
Also can not overlook the fact that some countries (eg. Germany) the concept of prohibition of residence unknown, and
Institute expulsion replacing it. And from this it is clear that the concept
expulsion (expulsion, expulse) under international law can not be
mechanically equated with the concept of expulsion under domestic law, international
since its conception - in accordance with Art. 1 of Protocol no. 7 to Convention -
is broader and includes - with the exception of extradition - any measures
departure forcing foreigners in the Czech Republic thus Institute
of stay. In this respect, there is no reason to deviate from the opinion
Ministry of Foreign Affairs.

Therefore, the Constitutional Court concluded that the treatment regime expulsion under Article
. 1 of Protocol no. 7 to the Convention shall also apply to legislation ban
residence pursuant to § 14 of Act no. 123/1992 Coll. Indeed, from that
based on the observations of the Ministry of Interior.

After the substance of the complainant, however, if it relies Art. 1 of Protocol No.
. 7, can not agree. Art. 1 of Protocol no. 7 to the Convention, although foreigners
be deported, ensures the right to oppose, put
examine his case and to be represented, but this provision does not explicitly
his right to personally appeal hearing participate in (to see
. Frowein / Peukert, Europäische Menschenrechtskonvention - comments
second edition, Kehl am Rhein 1996, p. 857).
Also can not be clearly concluded that cited the rights protected by this Article shall be without prejudice to the fact that
appeal against the decision to ban the residence does not have suspensive effect;
their application is not meant to exclude. In addition, pursuant to paragraph 2 of this Article
alien may be expelled before the exercise of their rights - which are listed above
- "when such expulsion is necessary in the interests of public order or
is justified by national security interests."

That, in the opinion of the Constitutional Court that the provisions of § 14 para. 4
Act no. 123/1992 Coll. with Art. 1 of Protocol no. 7 to the Convention is not in conflict.

Constitutional Court the constitutionality of the contested provision also assessed with regard to the national standards
constitutional law.

According to Art. 38 par. 2 of the Charter, "everyone has the right to have his case
considered in public without unnecessary delay and in his presence and that
be able to comment on all the evidence. The public may be | || excluded only in cases specified by law. "

From the above text it is clear that the cited provision is wider and broader than
Art. 1 of Protocol no. 7 to the Convention. It explicitly does not allow
a statutory provision which would exclude the presence of a lump sum

Litigant at the hearing. The contested § 14 par. 4 of the Act no. 123/1992
. However, the fact that an appeal against the decision prohibiting residence
does not grant suspensive effect, virtually the presence of him who was banned
stay excluded because the appeal procedure is usually held after
such a person had to Czech Republic forsake. This is also
it impossible to respond to all the evidence presented, respectively.
evidence suggesting even further. This person is therefore in the proceedings against the State
unequal status, which violates one of the basic conditions for a fair
process - the principle of equality of arms. It should also be contested provision
understood in the context of other regulations, particularly with § 14 para. 1 point.
F), by which it is possible to ban foreigners stay, if breached any duty
set even simply
generally binding legal regulation. That provision - as mentioned above -
Constitutional Court as unconstitutional norm.

With regard to the Constitutional Court concluded that the contested provisions
§ 14 par. 4 of the Act no. 123/1992 Coll. It is in conflict with Art. 38 par. 2
Charter and is therefore canceled.

Third § 15 para. 2:

Foreigners who have been banned from the Czech Republic, may determine
to travel abroad appropriate, for a maximum 30-day period.

Complainant in constitutional complaint stated that this provision is contrary to Article
. 1. 1 and 2, Art. 4, paragraph. 1 of Protocol no. 7 to the Convention, with Article
. 14 paragraph. 1 of the International Covenant on Civil and Political Rights, Article
. 1 of the Constitution and Art. 36 para. 1 and Art. 38 par. 2 of the Charter.
Any argument regarding this claim, however, the constitutional complaint is missing.

Chamber of Deputies, in its observations, taking the view that the contested provisions
deviate from customary law and international practice.
Interior Ministry sees the meaning of this provision in the legal
mandate for governments to be able to set a deadline for leaving the Republic
.

Also, the Constitutional Court found unconstitutional the cited provision, which is, moreover
- in terms of principles - comparable with similar provisions
in certain other jurisdictions (eg. § 42 par. 3 of the Federal Aliens
Republic of Germany).

Why the Constitutional Court for the annulment of § 15 para. 2 of Act no. 123/1992
. dismissed.

Fourth § 16 par. 3:

The expulsion proceedings are not subject to general regulations on administrative proceedings.

According to § 74 Act no. 182/1993 Coll. together with a constitutional complaint may be filed
proposal to repeal the law or other legal regulation
or individual provisions, the application of which occurred
fact that the subject of the constitutional complaint, if by
complainant's allegations are inconsistent with constitutional law or international treaty
under Article. 10 of the Constitution or a statute, if it is a different
legislation.

In the present matter, the Constitutional Court found that the conditions cited
provisions are not made because the authorities decided to ban only
residence of the complainant under national law. The contents of the file
does not imply that there would be "expulsion proceedings" so that the contested provisions
§ 16 paragraph. 3 of Law no. 123/1992. was not applied.

Why the Constitutional Court this part of the complainant's proposal was rejected by [§ 43 para. 1
point. c) Act no. 182/1993 Coll., as amended by Act no. 77/1998 Coll.]
using the argument a minori ad maius.

The Constitutional Court finally dealt with the enforceability of this judgment, which is
§ 14 par. 1 point. f) of the Act no. 123/1992 Coll. deleted.
Is aware that this is a crucial and sensitive issue that
will require new and rigorous legislative process. Therefore, the Constitutional Court
in accordance with the opinion of the Ministry of the Interior decided that the said provision repeals
up on 13 May 1999 (§ 58 para. 1, § 70 para. 1
Act no. 182/1993 Sb.).

With regard to the provisions of § 14 para. 4 of the cited Act, the situation is different
partly because its applications in that period (ie.
From 13 May 1998 to 13 May 1999) could give rise to consequences which would be practically difficult
satisfiable. Indeed, the provisions of § 55 paragraph. 2
Law no. 71/1967 Coll., On administrative proceedings (Administrative Code), provides
administrative authority sufficient space to suspensive effect

Decision in justified cases excluded. This possibility is given by the fact that
special regulation (ie § 14 par. 4 of the Act no. 123/1992
.) Was canceled this finding.

Chairman of the Constitutional Court:

JUDr. Kessler vr

Rights putting dissenting opinion to the point I. findings in the report
negotiations and its connection to the decision must bear their names according to §
14 of Act no. 182/1993 Coll., On the Constitutional Court, took judge JUDr. Paul
Varvařovský.