In The Matter Of The Application For Revocation Of Section 171 Of The Aliens From. In The Czech Republic

Original Language Title: ve věci návrhu na zrušení části § 171 z. o pobytu cizinců v ČR

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=68063&nr=47~2F2009~20Sb.&ft=txt

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