47/2009 Sb.
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court ruled June 9. December 2008 in the plenary in the composition of Stanislav
Package, Francis Skinner, Vlasta Formankova, Turgut Güttler, Ivana Janů,
Vladimir Crust, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým,
Pavel Rychetský (reporter judge), Miloslav Výborný, Elisabeth Wagner
and Michael Židlická of the design of the Supreme Administrative Court, for which it is
JUDr. Petr Příhoda, Chairman of the Senate of the Supreme Administrative Court, the
repeal of the provisions of section 171, paragraph. 1 (a). (c)) of the Act No. 326/1999 Coll., on the
the stay of foreigners on the territory of the Czech Republic and on an amendment to certain acts, in
amended by Act No. 161/2006 Coll., with the participation of the Chamber of Deputies and the Senate
The Parliament of the Czech Republic,
as follows:
The provisions of section 171, paragraph. 1 (a). (c)) of the Act No. 326/1999 Coll., on stay of
foreigners in the territory of the Czech Republic and on an amendment to certain acts, as amended by
Act No. 161/2006 Coll., shall be cancelled on the date of publication of this finding in the collection
laws.
Justification
(I).
Recap of the proposal
1. the examination of the Proposal by article. paragraph 95. 2 of the Constitution of the Czech Republic (hereinafter the
"the Constitution") and § 64 paragraph. 3 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, the Supreme Administrative Court (hereinafter also
"the complainant") pushed for the release of the award by which the provisions of section 171, paragraph. 1
(a). (c)) (hereinafter ' the contested provisions ') of the Act No. 326/1999 Coll., on the
the stay of foreigners on the territory of the Czech Republic and amending some laws
(hereinafter referred to as the "law on the stay of foreigners"), as amended by Act No. 161/2006 Coll.
cancels. The contested provision excludes from judicial review of the decision of the
administrative expulsion, if, before the start of the procedure for the expulsion of the
the alien remained in the territory or in the transit area of the international
airport wrongly. The appellant sees the contradiction in the contested provisions
with the article. paragraph 36. 2 and with the article. 10, paragraph 1. 2 of the Charter of fundamental rights and freedoms
(hereinafter referred to as "the Charter").
2. From the proposal indicates that the Supreme Administrative Court of cassation proceedings leads
complaints. zn sp. 8 As 42/2006, in which the complainants, N. T. and D.
And, seek the annulment of the resolution the municipal court in Prague, no. 8 Ca
2005-339/29 of 18 November. 5.2006. The contested resolution was rejected
their action against the decision of the competent authorities on administrative expulsion
the first appointed from temporary residence on the territory of the Czech Republic in
pursuant to section 119 paragraph. 1 (a). and, (b), point 3). (b) in point 1, point (b)). (c) point 2, 3)
Act No. 326/1999 Coll.
3. the administrative removal order was granted following the tourist check
the tourist police carried out on 22. 6.2005. This check N.
X t. submitted falsified travel document to a foreign-sounding name. After
finding his true identity, the competent authorities also found him
have previously been granted administrative expulsion from the temporary residence on the territory of the
The CZECH REPUBLIC is valid from 26. 1.2001 to 26. 1.2004. N. T., said that the
He lives in a common household with the companion, and a citizen of the Czech Republic,
with which plans to marriage and family, and that the expulsion would constitute an intervention in the
his private and family life. Administrative authority in the justification of his
the decision stated that it considered all recorded deeds, which
the alien in the territory of the CZECH REPUBLIC committed to impact on his private life and
the safety of the Czech Republic and the European Union, and the protection against the illicit
migration. He came to the conclusion that the granting of administrative expulsion will not be
disproportionate interference in the private life of foreigners, since it is here
My mate, but in the past he knew that on the territory of the Czech Republic
staying in violation of the law, and this situation alone did not address properly. The Board of appeal
the administrative authority to review the decision on the appeal of the complainants in the administrative
the expulsion, the relevant parts of the statement remained contested
decision unchanged.
4. N. T. and D. And then sue to the municipal court in Prague,
It rejected with reference to § 171 (a). (c)) of the Aliens Act. In
justify its decision stated that it carried out the administrative and criminal
the management was satisfied that the N. T. before proceedings on the expulsion
He was kept on the territory of the Czech Republic on the basis of forged documents, i.e.,
wrongly, and that in the present case, the Court of review is excluded.
5. When discussing the cassation complaint the Supreme Administrative Court decided to
the conclusion that the contested provisions of the Aliens Act in contradiction with the
the above mentioned provisions of the Charter, and therefore handed to the Constitutional Court
a proposal for its abolition.
6. the applicant States that "in accordance with the provisions of article. paragraph 36. 2 of the Charter has
Anyone who claims that he was on their rights is truncated by a decision of the authority
the public authority, the right to apply to the Court to review the legality of
such a decision, unless the law provides otherwise. Of such powers
the Court should not be excluded, however, review of decisions concerning the
fundamental rights and freedoms under the Charter. " Refers to the article. 14 paragraph. 1
Of the Charter, by which it is guaranteed freedom of movement and residence on the territory of the
The Czech Republic, and points out that the alien may be referred to the fifth
paragraph of the same article expelled only in cases provided for by law.
The Supreme Administrative Court also quotes the article. 10, paragraph 1. 2 of the Charter, dealing with
the right to protection from unauthorized zasahováním the private and
family life.
7. the applicant distinguishes the previous case law of the Constitutional Court, specifically
resolution SP. zn. III. TC 219/04 of 23 December 2003. 6.2004 (39/33 SbNU
591) ^ *, where the Constitutional Court by the petitioner "expressed in the context of
with the review of the claim on the visa, that subjective constitutionally guaranteed
the right of foreigners to stay in the territory of the CZECH REPUBLIC does not exist, because it is
sovereign State, under what conditions (non-discriminatory) shall be admitted
the stay of aliens in its territory. On the issue of visas is not according to the explicit text of the
law legal claim. " The Constitutional Court by the petitioner "came to the
the conclusion that the question of visas is left to administrative discretion
the competent administrative authorities. "
8. According to the applicant, however, in the case of administrative expulsion on the basis of the
the contested provisions of another situation: "Administrative expulsion as
administrative penalties is not a matter of administrative discretion, the Board, if they are
conditions for its imposition. The Act on the stay of foreigners provides in
Title X. an exhaustive list of cases in which foreigners can expel. Possible
adverse effects of administrative expulsion, the law seeks to alleviate
the provision of section 122, where the conditions are set out to eliminate the hardness
administrative expulsion. Existing legislation, non-judicial
the review of the administrative decision is based within the State administration
space for non-transparent decision making with all of the resulting
the consequences on the quality of administrative decisions, in marginal cases can lead
and for corruption. There is no objective and impartial mechanism (in the
the case of the Government it is the instance control
the individual administrative acts), which would be tested, whether they are in the
the case actually filled with reasons for expulsion laid down by law (article 14 of the
paragraph. 5 of the Charter). Illegal administrative expulsion can pose significant
and difficult to napravitelný intervention into the private or family life,
guaranteed article. 10, paragraph 1. 2 of the Charter, or of the right to do business or operate
other economic activities (article 26, paragraph 1, of the Charter). "
9. In support of its argument, the applicant refers to the conclusions expressed
The Supreme Court on the possibility of the imposition of the penalty of expulsion. In the judgment of
3.9. 1997, SP. zn. 2 I.e. 60/97 (No. 13/1998, ECR. tr.)
"the penalty of expulsion may be imposed only in the cases» which
do not exclude the personal circumstances of the accused, in particular, his family relationships and
personal ties to a specific location in the Czech Republic, where he spent the majority
part of his life. Only thus it is possible to ensure that the penalty imposed was not
excessive intervention in his life (...). Just such a decision is then
in accordance with the article. 8 of the Convention for the protection of human rights and fundamental freedoms
(...).«“ In the opinion of the appellant constitute criminal offences from the perspective of
the intensity of the social danger category of unlawful acts, which
they are "more dangerous than the socially significant administrative offences." By
rather, the appellant is required to conclude that the same must apply
in the area of storing administrative expulsion, despite the fact that the effects of the sentence
the expulsion and administrative expulsion to the private life of the individual are
similar. According to the appellant, the "right to family life, respectively.
significant interventions to him [...] should be taken into account, even in cases
storing administrative expulsion. In the case of the alleged interference in the basic
rights, the law must allow for judicial review of an administrative decision. "
10. the applicant also refers to the case-law of the European Court of
human rights (hereinafter "ECHR"). In the judgment of the ECHR in Berrehab case against
The Netherlands no 10730/84 of 21 April 2004. 6.1988, admitted that in the opinion of
the petitioner in this Court, the Convention on the protection of human rights and fundamental
freedoms (hereinafter referred to as "the Convention") "does not prohibit the Contracting States to regulate the entry of
and stay of foreigners in the country, but adopted restrictive measures should be
proportional in relation to the aim pursued. " The Court thus interpreted by the
the petitioner "was the legitimacy of the objective pursued and the severity of the intervention
to the right of the complainant to the protection of his family life. In that case then
He came to the conclusion that the non-renewal of a visa for a stay of the expulsion of the complainant and
would result in a serious intervention into his family life. " At the same time
the applicant States that it is aware of "case law of the [ECHR], in which the Court
comment so, that the prohibition of stay on the territory of a Member State shall not apply
article. 6, of the Convention [see e.g. judgment of the ECTHR in the case against France Maaouia No.
39652/98 of 5 February. 10.2000], as the article. 1 of Protocol No 7 to the Convention
contains specific guarantees in proceedings on the expulsion of aliens and the Member
States of the Convention, this article made it clear in his will to exclude this
control of the area of the application article. 6 (1). 1 of the Convention (paragraph 36, 37 of the
the decision). Other guarantees (according to the explanatory report to Protocol No. 7),
which are available to foreigners on the territory of the Member States, which is threatening
administrative expulsion to their protection, for example. article. 3 of the Convention (prohibition of
degrading and inhuman treatment) and article. 8 of the Convention (protection of private
and family life), both in the context of the article. 13 of the Convention (the right to
effective remedies for violations of the rights and freedoms guaranteed by the
Convention). " According to the appellant, it is "a reflection of the article. 13 Convention [...]
(I) article. paragraph 36. 2 of the Charter, but this principle no longer was not consistently
factored into the Act on the stay of foreigners on the territory of the Czech Republic. "
II.
The progress of the proceedings and a recap of the representation of the parties
11. The challenge of the Constitutional Court was lodged under section 69 of the Act on the Constitutional Court
through its President, Ing. Miloslav Vlcek representation
The Chamber of deputies of the Parliament of the Czech Republic. As he did so
through its President MUDr. Přemysl Sobotka, The Senate Of The Parliament Of
Of the Czech Republic.
12. The Chamber of deputies in its comments primarily summarizes the progress of the
discussion of the contested provisions. Draws attention to the text of the explanatory memorandum
the report, which is to the proposed wording of section 171 of the Aliens Act
expressed collectively, the "excluded from the possibility of judicial review of the
the decision that there is no interference in fundamental rights and freedoms. "
In conclusion, your representation of the Chamber of Deputies notes that "the legislative
the Corps acted in the belief that the law is adopted in accordance with the Constitution,
the constitutional order and the rule of law ", and leaves the" Constitutional Court to
in the context of the examination of the proposal to assess the constitutionality of this law and
issued the appropriate decision. "
13. The Senate with reference to the above-quoted passage from the explanatory memorandum to the draft
the law States that "no doubt the proposal relied on traditional postulate
the sovereignty of the State in recognizing or nepřipuštění aliens to its territory.
The illegal stay of a foreigner is then in this respect seem unfit for
the use of the protection resulting from the freedom (illegal residents it
the stranger as he refused to). " Under the Senate legislation is not in breach of
with the procedural safeguards relating to expulsion of aliens that are
addressed in the article. 1 of Protocol No 7 to the European Convention, which lays down the law
judicial review only for the case of removal of stay permitted
the beneficiary State. The provisions of section 119a, paragraph. 2 of the Aliens Act
then in the Senate represents a "legal guarantee" the respect of the article. 10
Of the Charter and article. 8 of the European Convention (right to protection of private governing
and family life), when it provides that a decision on administrative expulsion
cannot be issued if the result was excessive intervention in the
private or family life of a foreigner. The Senate notes that the lockout
judicial review, however, through numerous amendment of the Aliens Act
remained unchanged.
14. the Board also notes the judgment of the Supreme Administrative Court of
29.9. 2006, no. 4/2005 Azs 419-65 (published in the collection of the decision
The Supreme Administrative Court no no 1009/07) where in the opinion of the Senate
He took to the Supreme Administrative Court for judicial review of the exclusion
permissible, however, repeatedly reminded that in the case of doubt
required this exclusion interpreted restrictively, i.e.. in favour of the Court of
the review.
15. In the second and third parts of his representation of the Senate recapitulates the progress
the legislative process and notes that the draft law, as amended by
the Senate has approved the amendments, "within the limits of the Constitution laid down
competence and constitutionally specified way [...] in the majority
the belief that [...] in accordance with the constitutional order of the Czech Republic
and the international obligations of the State. " According to the Senate is on the Constitutional Court, in order to
examine the constitutionality of the contested provisions of the proposal and decided.
III.
A recap of the representation of the other bodies according to section 49 of the Act on the constitutional
Court
16. According to § 49 paragraph. 1 of the law on the Constitutional Court addressed the Constitutional Court
Minister of the Interior, the Minister of Justice and the Ombudsman and gave
them the opportunity to comment on the proposal.
17. Minister of the Interior considers the proposal for the nedůvodný, and therefore recommends that its
the refusal under the provisions of section 70 paragraph. 2 of the law on the Constitutional Court. Lists,
that the Aliens Act judicial review concedes in cases where
a foreigner has resided lawfully on the territory of the Czech Republic. For foreigners who
on the territory of the Czech Republic staying illegally (and which are, therefore,
covered by the contested provisions), the Minister of the Interior stated that according to the knowledge
his Ministry, these aliens are "generally aware of your
the infringement and its problematic status. Creating
family ties, whether by concluding marriage or paternity to prohlašováním
minor children, in such precarious and a stranger most neglect situation
cannot [in the opinion of the Minister of the Interior] be they decide circumstances for
deciding on administrative deportation. " The Minister States that "the Ministry is of the
his official activities known, that in many cases leads to the conclusion
Special purpose marriages and a declaration of paternity to obtain or legalize
stay on the territory of the CZECH REPUBLIC, which would otherwise probably not obtained. "
18. Minister of the Interior also refers to the resolution of the Constitutional Court SP. zn.
III. TC 219/04 (cit. above in point 7 of this award). According to Minister here
The Constitutional Court said that the subjective right of constitutionally guaranteed
the foreigners to stay in the territory of the CZECH REPUBLIC does not exist, when it is a matter of the sovereign
State, under what circumstances will admit the residence of aliens on its territory. " According to the
Minister of the Interior, the Constitutional Court has in the past clearly expressed that
[Charter] provides protection only to the law, which a participant, legal
order guarantees. "
19. Similarly, according to the Minister of the Interior and the judgment of the Supreme
Administrative Court of 29 June. 9.2006 no. 4 Azs 419/2005-65 (in the above sense.
section 14 of this award). In its comments, the Minister of this decision
extensively quoting his selected passages:
[The Supreme Administrative Court] is based on the fact that the judicial review of the decision of the
administrative authority in deciding the issues of public subjective
the rights of natural and legal persons, as is clear from the applicable legal
adjustment of the Administrative Justice Act No. 150/2002 Coll.
the judicial administrative regulations (hereinafter referred to as "s. l. s."), one of the fundamental and
regular guarantees the legality of the exercise of public authority, which is implemented
article. 36 of the Charter of fundamental rights and freedoms (the "Charter"), in accordance with
which who claim that their rights was truncated by a decision of the authority
public administration, may apply to the Court to review the legality of
such a decision, unless the law otherwise; from the jurisdiction of the Court, however,
must not be ruled out reviewing the decisions concerning the basic
in accordance with the Charter of rights and freedoms.
As is apparent from the case-law of the European Court of human rights [e.g., in
Maaouia things against France, cit. above in point 10 of this award]
the international protection of fundamental human rights and freedoms, the Charter
National reflection, does not understand the right of foreigners to take up residence in a specific
territories as a basic human right, and therefore the absence of judicial review
expulsion from the territory of a State is not a lack of standards of protection, which would
fundamental rights and freedoms should enjoy. The European Court of human rights
deduced that the expulsion of aliens from the territory of a State shall not apply to article. 6
Convention for the protection of human rights and freedoms concerning the right to
due process ("everyone has the right to his matter was
a fair, publicly and within a reasonable time by an independent and
impartial tribunal established by law, which shall decide on its civil
the rights or obligations or any of the criminal
the allegations against him. ") ..., but that basic procedural guarantees are
modified article. 1 of Protocol No 7 to the Convention ["an alien who is allowed
stay on the territory of a State may be expelled only on the basis of the
the performance of a decision taken in accordance with the law and must be able to: and)
objections against his expulsion; (b) to review your case);
(c)) to be represented for this purpose before the competent authority on or before
the person or persons designated by that authority. "].
However the principles of a modern democratic State are contrary manifestations
arbitrariness on the part of State authorities, even in the context of international protection
human rights and freedoms is granted States the right to control the entry and
the stay of aliens in its territory and, where appropriate, expel a foreigner if this is in
accordance with the law, if they are pursued legitimate objectives and if it is in
a democratic society the necessary [see e.g. judgment of the ECTHR in the case
Daliová against France no. 26102/95 of 19 May. 2.1998]. Among foreigners is
However, it made a difference in whether the State agreed (even if implicitly)
their residents on its territory, or whether its territory without
This consent. Proof of this are the very minimum the procedural
the rules provided for in article. 1 of Protocol No 7 to the Convention, which apply
only on "an alien who is allowed to stay on the territory of a State
...“.
20. According to the Minister of the Interior, therefore it can be assumed that the contested provisions of the
is not in conflict with article. 10, paragraph 1. 2 of the Charter (the right to protection against
unauthorized zasahováním to private and family life), article. 14
Of the Charter (freedom of movement and residence). 26 paragraph. 1 of the Charter (the right to
the free choice of profession) and article. paragraph 36. 2 of the Charter (right to judicial and
another legal protection).
21. Minister of the Interior also believes that needs to be paid to the conformity
the contested provisions with article. 13 of the Convention (right to effective remedies
resources in violation of the rights and freedoms guaranteed by the Convention). According to the
the Minister was in the case against France (cit Maaouia. above in point 10
This award) stated that article. 6 Convention on the right to a fair
the process does not apply to asylum and immigration area, turns out, however, the article on them.
13 of the Convention. This "can only be used in conjunction with another right or freedom,
which the Convention guarantees, not an autonomous provision. The case-law
the Court has identified certain requirements on the quality of the review, which must be
met in order to satisfy the conditions of article. 13. Similarly, the conditions
applied to the functioning of the basic procedural guarantees provided for in article. 1
Protocol No. 7 to the Convention. " The Minister of the Interior, believes that "under the [ECHR]
must be effective means to enable the competent authority to be dealt with
the essence of the case and could make an effective remedy. According to the Court, article. 13
[The Convention] does not specify what kind of appeal must act, and
not required or to the deciding authority was the Court. However, the powers and
the procedural guarantees, which the authority has, are relevant in this
direction, whether it is an effective remedy. " In many cases, the ECTHR
in the opinion of the Minister "accepted the disparate authorities nesoudního type as the
complying with the requirements of article. 13. "according to Minister of the ECTHR" emphasized the competence of
authority to provide an effective remedy before a formal
the character of the institution, "taking (without that pointed out the specific
the decision of the ECTHR) stated the basic characteristics that should the
the Authority reported. They are 1. the independence of the authority, which had
commit violations, 2. the possibility of foreigners to pronounce their arguments like,
as he could make in court, 3. the determining authority must issue a binding
decision and, finally, 4. the alien can effectively benefit from the success of its
things. The absence of some of these characteristics may in the opinion of
Minister to be replaced by a system of appeals.
22. The following parts of your expression of Interior Minister argues that
Czech legislation meets the requirements as defined above, and therefore it is
an effective system of appeal within the meaning of the requirements of the European
Court of human rights. According to the Minister of the Interior issued a decision on the
administrative expulsion, "generally speaking, the Aliens ' Police Department ',
[the decision] is passed with the participation of foreigners, an interpreter if you do not understand
English, and includes lessons on the possibility to appeal against the decision of the appeal to the
The Directorate of aliens and border police, [via]
the authority that issued the decision. In the appeal the alien has the opportunity
all of your arguments and objections. "the Directorate can refuse the appeal,
further, the decision to cancel, with either the thing returns to discuss the authority,
that is issued (that is then bound by the legal opinion of the Directorate), or
the decision clears without further. In this case, the aliens erased
entry in the register of undesirable persons and originally released decision does not
no effect on possible future legalization of their stay in the Czech Republic. Even in the
When the case returns to the new discussion, however, is the case of newly
assessed and the alien has the right to appeal once again to the Directorate. According to the
Minister of the Interior may use other alien institutes administrative procedure-
recovery or management of the review procedure. To such proceedings, it is appropriate
The Ministry of the Interior, which is superior to the Directorate of administrative
authority.
23. The Ombudsman, by contrast, the proposal to repeal the contested
provisions of the support. Above all, it is considered that the contested provisions in the
contrary to the article. paragraph 36. 2 of the Charter.
24. Further, the Ombudsman stated that "even though the article. 8 [of the Convention]
does not have an absolute right for any category of aliens not to be
exiled, case law European Court of human rights shows that
the decision on the expulsion of foreigners from the country where they live close to the members of his
the family can be in addition to intervention in the article. 3 and the violation of his rights
on respect for private and family life "within the meaning of [the cited
the provisions of the Convention]. " The Ombudsman refers to the judgments of the
ECHR: in the Moustaquim case against Belgium No. 12313/86 of 18 June. 2.1991,
in the Beldjoudi case against France no 12083/86 of 26 May. 3. in 1992, in the case
Boultif against Switzerland no. 54273/00, of 2 July. 8. in 2001, in the case
Amrollahi against Denmark no 56811/00 of 11 February 1999. 7.2002, Yilmaz
against Germany 52853/1999 of 17 May 1999. 3. in 2003, and in the matter of Keles against Germany
No. 32231/02 of 27 June 1994. 10.2005.
25. Protection from unauthorized interference in private and family life
to the Ombudsman and to the article. 10, paragraph 1. 2 of the Charter.
If the right to such protection is among the fundamental rights and freedoms, then
must not be a decision on expulsion by the Ombudsman
excluded from judicial review, regardless of whether it is a
foreigners lawfully resident on the territory of the CZECH REPUBLIC, or not. The same
the argument then the Ombudsman can be used for the article. 3 and
8 of the Convention in conjunction with article. 13 of the Convention, and with "regard to the absolute
the character of [the first appointed by law] may be a deficit of judicial review
for namítaného even more serious violations. " The Ombudsman reports
that "on the basis of the investigation, a whole series of initiatives aimed at in this area
[shall not be] with regard to the nature of the removal of the affected rights standard
the appeal to a superior administrative authority (Directorate of services
the foreign and border police) for an effective legal remedy in the
the meaning of the article. 13 of the Convention, "and notes that" in relation to the article. 3 [of the Convention]
It is this lack of even more significant. " Despite some changes in the legal
modify the Ombudsman does not consider "the existing mechanism of protection
vyhošťovaného foreigners with previous unauthorized residents to possible
the intervention of the law on the protection of private and family life-for
matching and [devoid of] the fuse just in the form of judicial review. "
The Ombudsman and "continue [finds] in individual cases
on the part of the administrative authorities lack of application and knowledge of case law
[ECHR], or for EU citizens and their family members and the case-law
European Court of Justice. "
26. According to the Ombudsman, it "does not concern citizens ' deficit, described
The EU and their family members, or family members of citizens of the
CZECH REPUBLIC (§ 15a of the Aliens Act in connection with the provision of section 171, paragraph.
2 of the same law). " However, even in this case, does not consider the public
Defender of rights "legislation for an undisputed from the perspective of the community
rights, for limiting the right to judicial review, which, in certain
cases, the provisions of section 171, paragraph. 2 allows, is not in accordance with the
[European Parliament and Council Directive 2004/38/EC of 29 April 2004
on the right of citizens of the Union and their family members to
move and reside within the territory of the Member States, amending Regulation (EEC) No.
1612/68 and repealing directives 64/221/EEC, 68/360/EEC, 72/194/EEC,
73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC
(OJ l, p. L 158, p. 77; Strang. 05/05, p. 46) (see twenty-sixth point
recital and article. 31 of this directive)]. "
27. The Minister of Justice notes that the Act on the stay of foreigners
does not belong to the remit of his Ministry, therefore, is limited to the General
expression. In it "is inclined to reasoning referred to by the applicant
[...], as follows, in addition to another even greater transparency in decision making
the organs of State administration and to contribute to the Elimination of conflict referred to
the provisions of [the Charter] and to the fulfillment of the rights guaranteed by the Charter. " On
that basis, the Ministry supports the proposal.
IV.
The diction of the contested provisions of the legislation
28. The contested provisions of the Aliens Act:
Judicial review
§ 171
(1) the review by the Court are excluded
[...]
(c) a decision on administrative expulsion) If, before the start of the procedure for
This delayed the expulsion of an alien on the territory or in the transit area
the international airport wrongly, [...]
In the.
Locus standi of the petitioner
29. The active consideration of the proposal to submit the evidence concludes
the proponent of the article. paragraph 95. 2 of the Constitution. If the Court, pursuant to this
provisions, concluded that the law, which is to be used in solving the things,
is in conflict with the constitutional order, refer the matter to the Constitutional Court. The right to
the Court is instantiated in § 64 paragraph. 3 the law on the Constitutional Court as a
the right to submit a proposal to repeal the law or its individual provisions.
This means that the locus standi of the Court to request the cancellation of the law
or individual provisions of the law depends on the subject matter of the dispute and its
legal qualification. In other words, the Court may make a proposal to repeal
only such a law, or of its individual provisions that have
be applied in resolving a dispute in progress before the General Court.
Consideration of such application must be justified, must be derived from the
compliance with the conditions of the procedure, including the factual evidence of the participants, and, in the case of
substantive regulation, from a clear finding that the regulation has
be applied [see find SP. zn. PL-50/05 of 16 February. 10.2007
(2/2008 Coll.), item 11].
30. From the above, that the contested provision is crucial for the
the success of one of the parties in the proceedings before the complainant. The petitioner thus
satisfies the conditions defined in the previous section to submit evidence of the active
the present proposal to the Constitutional Court.
VI.
The constitutional conformity of the legislative process
31. Under section 68, paragraph. 2 of the law on the Constitutional Court, the Constitutional Court has, in addition to
assessment of compliance of the contested law with constitutional law, to determine whether
He was accepted and published in the limits of the Constitution laid down the competence and constitutionally
in the prescribed manner.
32. Given that the applicant did not defect to the legislative
process, or breaching the Constitution laid down the competence of the legislature, is not
with regard to the principles of procedural economy to examine this question more closely
and will, in addition to taking into account the observations of the submitted by the
the Chamber of Deputies and the Senate (see above paragraphs 12 and 15 of this award), formal
verification during the legislative process from the publicly available
information resources on http://www.psp.cz.
33. The Constitutional Court, it found that the Bill, which was then
promulgated under no. 326/1999 Coll. (printing 240 deputies
1998-2002, 3. the election period), it was after the Senate returned Of
the House with amendments, approved by resolution No. 605 on 32.
a meeting of the Chamber of Deputies on 30. November 1999, in the version approved
The Senate, where 172 of the present deputies voted for the proposal, against 171
1. The law was signed by the respective constitutional actors and was declared in
the amount of 106 collection of laws, which was circulated to 23. in December 1999, under the
number 326/1999 Coll.
34. The Constitutional Court notes that Act No. 326/1999 Coll. was adopted and
issued within the limits of the Constitution laid down the competence and the constitutionally prescribed
in a way, or that, in this proceeding did not detect anything that spoke for the
the opposite conclusion.
VII.
Evaluation of the Constitutional Court
35. The Constitutional Court first dealt with the compliance of the contested provisions with
article. paragraph 36. 2 of the Charter, according to which the jurisdiction of the Court shall be of the
ruled out reviewing the decisions relating to fundamental rights and
freedoms under the Charter. This law is formulated in General, not limited to the
citizens of the Czech Republic. Therefore, if the Constitutional Court came to the conclusion that the
is the administrative expulsion can be hit to the fundamental rights and freedoms
foreigners, it would be necessary to the contested provisions, which his judicial review
excludes, cancel.
36. The Constitutional Court in its previous case-law clearly stated that if the
each according to the article. paragraph 36. 1 of the Charter the right to seek the protection of their rights at the
Court or other authority, with the conditions and rules for the implementation of this
the law lays down the law, then such law, issued on the basis of the constitutional
mandate, cannot claim any claim the protection of their rights in court or
another authority in the situation completely negate and thus constitutionally
guaranteed the basic right, even if only in certain cases, to deny.
The provisions of the article. paragraph 36. 1 of the Charter is constitutionally guaranteed to everyone
the option to seek the protection of his rights in the Court or other authority in the
of all the situations the violation (there are constitutional restrictions).
In other words, no person by law cannot be totally excluded from the
the option to pursue the protection of their rights, even if only in a specific case,
Since its right according to article. paragraph 36. 1 of the Charter would be voided. The opposite
the interpretation would also be represented, that the entrenchment of the rights of every trend on the Court
and other authorities for the protection of their rights protection made ústavodárcem-
gifted the highest legal force-would essentially lose sense, since it would
could be for the situation reversed, only the will of the legislature.
The Constitutional Court also pointed out that even if the ústavodárce in the second sentence, the
article. paragraph 36. 2 of the Charter delegates to the legislature admit of exceptions
possibility of the administrative decision by the Court, is this constitutional mandate
limited in the fact that the review of the jurisdiction of the Court should not be excluded
decisions concerning fundamental rights and freedoms guaranteed by the Charter.
Ústavodárce seem to reflect a different relevance essential
rights and freedoms and the "ordinary" rights and freedoms; those important rights
of their different nature, logically higher protection [find SP. zn.
PL. ÚS 12/07 of 20 December. 5.2008, paragraphs 27 and 30, find SP. zn. Pl. ÚS
72/06 of 29 June. 1.2008 (291/2008 Coll.), paragraphs 40 and 41, both available at
http://nalus.usoud.cz].
37. The Constitutional Court emphasises that in no way does not question their previous
conclusions regarding the absence of the constitutionally guaranteed rights of the subjective
foreigners to stay in the territory of the Czech Republic. The Constitutional Court, constantly
confirms that it is a sovereign State, under which (non-discriminatory)
the conditions of stay of foreigners admitted on its territory-cf. In addition to the resolution
SP. zn. (III) the TC 219/04. above in point 7 of this award, which mentions the
as the appellant (see point 7 of this award), Minister of the Interior (see point
18 this finding), also the resolution of the SP. zn. I-394/06 dated 8. 11.
2006 (http://nalus.usoud.cz), where the constitutional court sentencing in this conclusion
the previous resolution explicitly confirmed the resolution SP. zn. II. the TC 59/06 of
4 March. 5.2006, (http://nalus.usoud.cz), and more.
38. However, although constitutionally guaranteed right to a subjective foreigners to stay on
the territory of the CZECH REPUBLIC does not exist, the Charter guarantees the rights of foreigners, no doubt, that
expulsion may be affected. They are, for example, the right to life and
prohibition of torture and cruel, inhuman or degrading treatment
(article 6 and 7 of the Charter), which protects foreigners prior to the
the country, where this would be its rights has been compromised, or the right to protection against
unauthorized zasahováním to private and family life (article 10, paragraph 1.
2), which can prevent the expulsion, if it was affected by
unreasonable manner (cf. in this sense find SP. zn. IV. TC 553/06
of 30 March 2004. 1.2007, available at http://nalus.usoud.cz, paragraphs 30 to 35).
39. the Charter no distinction between whether the alien resides
on the territory of the CZECH REPUBLIC, legitimately or not, unlike the Convention, foreigners,
on the territory of a Contracting State who are residing lawfully, provides procedural
guarantees in its Protocol No 7 and otherwise, then through
HL. 13, which guarantees the right to effective legal protection
anyone whose rights guaranteed by the Convention are violated (cf. for example.
judgment against Romania Lupsa No. 10337/04 of 8 May. 6.2006, paragraph 52 and the
the case-law there cited). In this respect, therefore, the Constitutional Court cannot
be considered relevant the arguments presented by the Minister of the Interior (see point
17 of this award).
40. This conclusion is confirmed by the case law of the European Court of human
the law, which the appellant, Minister of the Interior and the Ombudsman (see
points 10, 19 and 24 of this award) allege, as is mutually
conflicting conclusions. The European Court of human rights namely, although acknowledged
"the interest of the Contracting States to maintain public order, in particular in the exercise of
their right to control the entry, residence and expulsion of aliens, which is based on
from a steady international and rights is limited only by their obligations
resulting from the Treaty, "but stressed that" in cases where the
the relevant decision would represent interference in rights protected
paragraph 1 of article 8, it must be demonstrated that they are» necessary in
a democratic society, which means that they are justifiable on
the basis of the urgent social needs and, in particular, that are appropriate to the
given the legitimate objective which they pursue "(Moustaqui against Belgium,
cit. in paragraph 24 of the above finding, point 43 and related case law
The European Court of human rights). The European Court of human rights
confirmed that the autonomy of the States parties, when deciding on the expulsion of
foreigners is limited by the fundamental rights of aliens, for example. the law on the
protection from unauthorized interference in personal and family life
laid down in article 4(1). 8 of the Convention (as was the case against Moustaqui
Belgium), the right to life and the prohibition of torture and inhuman or degrading
treatment or punishment, protected on the basis of article. 2 and 3 of the Convention, which
should alien deportation could be possibly exposed in the country in which it is
expelled (see for example judgment of the European Court of human rights in the case
Mamatkulov and Askarov against Turkey no. 46827/99 and 46951/99 of 4 December. 2.
2005).
41. the fact that the European Court of human rights retained by the Contracting
States a wide autonomy in deciding on the expulsion of foreigners, and specifically
confirmed that the right to access to court, contained in the article. 6 (1). 1
The Convention, in deciding on the expulsion of foreigners does not apply (see Maaouia
against France, the sentiment above in point 10 of this award, points 34 to 40, or
Mamatkulov and Askarov against Turkey cited in the previous paragraph of this
the award, point 82), not playing for the interpretation of the article. paragraph 36. 2 no role. For
the interpretation of this provision, it is crucial for the existence of options, that will be
a decision on administrative expulsion of exposed to the fundamental rights of foreigners, and
referred to the case-law of the European Court for human rights, the existence of this
the options confirms. There is no reason to reduce the level of procedural protection
the fundamental rights guaranteed by the Charter, only because the Convention
modifies the other way, moreover, if the Charter guarantees absolutely
clearly, as mentioned above in 36 this finding (see, mutatis mutandis.
find SP. zn. IV. TC 553/06, cited above in paragraph 38 of this finding, the point
40).
42. For the above reasons, therefore, the Constitutional Court concluded that the
the contested provisions of section 171, paragraph. 1 (a). (c)) of the Act No. 326/1999 Coll., on the
the stay of foreigners on the territory of the Czech Republic, as amended by Act No. 161/2006
Coll., is in contradiction with article. paragraph 36. 2 of the Charter, and is therefore set aside the day
the publication of this finding in the collection of laws.
The President of the Constitutional Court:
JUDr. Rychetský in r.
* URpozn.red: collection of findings and resolutions of the Constitutional Court, Volume 33, usn.
No 39