In The Matter Of A Proposal For The Repeal Of § 32 Paragraph. 2 (A). And The Asylum Act)

Original Language Title: ve věci návrhu na zrušení § 32 odst. 2 písm. a) zákona o azylu

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=70162&nr=9~2F2010~20Sb.&ft=txt

9/2010 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided on 1 May 2004. December 2009 in Parliament consisting of the President of the

Pavel Rychetský Court and judges Stanislav ass-bag, of Franz Duchoně,

Vlasta Formánkové, Vojena Güttlera, Paul Holländera, Ivana Janů,

Vladimir Crust, Dagmar Lastovecké, Jan Nykodýma, Jiří Musil,

Miloslava Excellent, Wagnerové and Michaela Židlické Of the proposal

The Supreme Administrative Court to revoke the provisions of § 32 paragraph. 2 (a). and)

Act No. 325/1999 Coll., on asylum and on the amendment of Act No. 283/1991 Coll., on the

The police of the Czech Republic, as amended (the law on asylum)

as amended, with the participation of the Chamber of deputies of the Parliament

The CZECH REPUBLIC and the Senate of the Czech Parliament as parties to proceedings



as follows:



The provisions of § 32 paragraph. 2 (a). and Act No. 325)/1999 Coll., on asylum and on the

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

amended (asylum Act), as amended,

repealed on the date of publication of the finding in the journal of laws.



Justification:



(I).



The definition of things, the arguments of the appellant's



1. On 1 May 2004. July 2009, the Constitutional Court received the proposal to repeal section

Act No. 325/1999 Coll., on asylum and on the amendment of Act No. 283/1991 Coll., on the

The police of the Czech Republic, as amended, (asylum Act),

as amended by later regulations (hereinafter referred to as the "law on asylum"), and more specifically

§ 32 paragraph. 2 (a). zakotvujícího 7-day period) for submission to the administrative

action against the decision of the Ministry of the Interior on the application for the grant of

international protection for those cases where the application is rejected as

manifestly unreasonable.



2. the applicant stated that under the brand 1 Azs 72/2008

proceedings on the complaint of the Ukrainian national

action against the resolution of the regional court in Prague, which was rejected

his action against the decision of the Ministry of the Interior of the rejection of the application for

the granting of international protection as obviously unreasonable. The decision of the

the Department of Cassation delivered was the complainant the day 3. 3.2008. On 5 July 2004.

3.2008, attacked the action in which, inter alia, stated that it is not able to

properly construct itself, and therefore calls for the appointment of a representative for the Court

the proceedings, which would be its filing said. The District Court upheld and resolution

from day 1. 4.2008 the complainant instituted the representative; both then called to

within 5 days from the receipt of the request the action properly added, and instructed them

about the consequences of failure to meet the challenges. This resolution was a representative of the complainant

delivered 3 June. 4.2008. Day 10. 4.2008 the action was completed. On 23 December 2005.

4. the 2008 Regional Court refused, saying that the five-day period provided for

elapsed day 8. 4.2008. In a subsequent complaint the complainant

argued that the challenge was to reach his representative mentioned on Thursday

day 3. 4.2008, ended a five-day period in the Tuesday 8. 4.2008. Due to the

It provided for the Deputy during so short a time

the complainant personally meet and know the contents of the file, the Court

the time limit for completion of action to fulfil.



3. Because the Supreme Administrative Court concluded that section 32, paragraph. 2 (a).

and you cannot interpret constitutionally) conformally to the complainant was not reduced in the

the right to judicial protection, he turned to the Constitutional Court with a proposal for its

the cancellation.



4. Although the law on asylum does not contain the competency of exclusion, which would

judicial review of the decision rejecting the application for the award of the international

protection for the obvious nedůvodnost better, is referred to the provisions of the

due to the very short time limit for submission of claims under the Supreme Administrative

the Court of judicial protection of the applicants failed, inoperative. The basic law

guaranteed by article. paragraph 36. 2 of the Charter of fundamental rights and freedoms (hereinafter also

"the Charter") is then given to only iluzorně. The time limit itself to

as constitutionally may not appear to be a nonconformist, but its constitutionality is

should be considered in the process of its application, in the context of the standards

follow-up, as well as the social context in which it is set.



5. The Supreme Administrative Court points out that the administrative justice system, in which

mode of judicial review applications for the grant of international protection takes place,

controls the policy of the layout and the principle of concentration control. Among other things,

means that the action has not yet extended to nenapadené statements or decisions

It extended to other points of the plaintiff can only claim within the time limit for the submission of

Action (section 71, paragraph 2 of the administrative judicial procedure). Its a default judgment cannot be

waived (article 72, paragraph 4, of the judicial code of Administration). The existence of this

strictly pojímané the concentration of proceedings is in the administrative judiciary

the two-month period to offset a general action against

decision of the administrative authority. The plaintiff also regularly passed

dvouinstančním administrative procedures and disputes the decision of the Board of appeal

administrative authority. The law on asylum, however, drawn into this system

extends the special treatment that creates the jednoinstanční administrative procedure

concerning applications for international protection and provides significantly shorter time limits to

bringing actions against the decisions in these matters. The combination of this

short deadlines and the General rules of administrative justice leads in the final

effect of the restriction of the right to judicial protection.



6. The Supreme Administrative Court also points out the position in which

most of the applicants is located. As a general rule, a person without the knowledge, or with just a

minimal knowledge of the Czech language and Czech cultural and legal

environment. If the request is manifestly unreasonable as a viable trading strategy, issue

The Ministry of the Interior decision within 30 days from the initiation of the proceeding. After his

delivery to only 7 days on bringing an action. In so short a time is

very difficult to competently handle the action. In addition, applicants are

as a rule, have to rely on the help of non-governmental organisations or ex officio member

appointed legal representatives. Anyway, the appointee has to

the extension of the action only so many days, how many are from the statutory seven day

period, which began to run the delivery of an administrative decision, left. So in the

the specific case now includes the highest administrative court it was only 5

days of work, but in other cases it may be even less

days. It is necessary to consider the time required to contact the applicant,

where appropriate, the provision of an interpreter, the arrangement of the case and the preparation of the

the argumentation. Implications for practice are such that applicants in many

cases within the prescribed period the proper application is not enough, respectively

Yes, but the lack of processing time are not necessarily reflected in its quality.



7. The situation of not having regard to the above mentioned strictly pojímanou

the concentration principle of correct interpretation, according to which the Court has the option or

even the obligation to provide for the extension of the application deadline. However

benevolent in its case-law interprets the concept of "point defence", his

existence cannot be inferred for example. from blanketních claims that in

the case of the unsuccessful applicants for international protection are not exceptional.



8. The Supreme Administrative Court also notes that the existing dispute

the seven-day time limit was introduced by an amendment to the asylum Act effective from

1.1. 2003. The motive of introducing restrictive modifications, as is apparent from the

the explanatory memorandum was the acceleration of the asylum procedure in cases where the

the applicant clearly does not meet the conditions, and financial and security

the reasons; The Supreme Administrative Court considers that another reason was

the need to respond to a significant increase in the number of applicants for international protection

in the years around the turn of the century, raising the concern of flooding affected

authorities. In any case, in his opinion, cannot accelerate the procedure to the detriment of

the procedural rights of the parties. To shorten the time limit is not, moreover, no reason

of special interest, as is the case for example in the judicial review of the things

the election. The reason for shortening the certainly cannot be the financial aspects and

also, in General, the applicant cannot be regarded as a security threat. In addition, from

the year 2001 is contrary to the constant decline in the number of applicants,

the current situation is comparable with the numbers from the beginning of the 1990s. years. The highest

the Administrative Court is of the opinion that streamlining asylum procedures can be

achieved by other means; as an example of the practice of some countries,

that the requirement of the existence of remedies resolves the existence of special

kvazisoudních tribunals, composed of experts on immigration

the issue. However, if the Czech legislature voted the way review of these

the decision in the judicial procedure of the administrative mode, in which the rights and

of interest to a large extent dependent on the activity of the participant in the moment of the submission of

action, then it cannot at the same time deprive their rights effectively options

defend the determination so short the claim period.



II.



The opinion of the participants in the proceedings and the Ministry of Interior of the CZECH REPUBLIC



9. The Chamber of deputies of the Parliament of the Czech Republic in its observations to the

the content of the proposal, said that the deadline was under consideration in asylum law

introduced by the amendment submitted by the Government, saying that the proposal is fully in

accordance with international obligations, in particular the Convention on the status of

refugees of 1951 (Note red.: published under no. 208/1993 Coll.), and

also the print newsletter said that the proposed adjustment is in the
accordance with EU law. Things are dealt with by the Committee for defence and security and

adopted a number of amendments, the relevant period shall, however, not attacked

was not. The law was then duly approved and announced. The Chamber of Deputies,

the objection period dealt with again in the context of discussing the Government's

a draft law amending certain laws in connection with the adoption of the

of the administrative code. It was stated that the present printing, which brought

the new wording of section 32 of the asylum law, in accordance with resolution on the minimum

guarantees for asylum procedures, and respecting the requirements of the ratified and

renowned international treaties on human rights and fundamental

freedoms, which the Czech Republic is bound within the meaning of article. 10 of the Constitution.

Constitutionally the legal Committee adopted a comprehensive amendment, to which, however,

is assumed by the new wording of section 32 of the asylum law. This part of the amendment taken

the asylum law was then presented in their original language in the framework of the

parliamentary amendment of another law and thus was received and

announced. The legislature acted in the belief that adopted laws

are in accordance with the constitutional order. The assessment of the constitutionality of the editing leaves

at the discretion of the Constitutional Court.



10. the Senate of the Parliament of the Czech Republic is the same beliefs, namely that

part of the asylum law is concerned, in accordance with constitutional order and the

international obligations. In its comments to the content of the proposal states that

the aim of the already mentioned several times, the amendment of the asylum Act should be

the tightening of the conditions for the granting of asylum in the sense of effective exclusion

cases of abuse of this right. Procedural tools (among others) are thus

should be adjusted to reflect the diverse behavior of the applicants and led to

to speed up things. A more effective approach was by the petitioner

dictated by the number of applications and a steep increase (in 2000 already 8788 cases

the development of the 2001 even suggested 20,000 cases). I was therefore

expanded the number of reasons "obvious nedůvodnosti", shortened the period for administrative

decision (from 90 to 30 days) or reduced repair process

the deletion of the possibility to file a corruption. After the referral of the draft amendment to the Senate

It discussed its committees; Some have recommended to return the Bill

with amendments that would require to alleviate some of the

unnecessarily strict asylum law, however right now

the investigated period, none of these proposals involved. It also leaves the Senate

the final decision on the reasoning of the Constitutional Court.



11. With regard to the material of the proposal considered by the Constitutional Court for the appropriate

Moreover, the opinion on the content of the request a proposal from the Ministry of the Interior,

on the section of the State administration shall perform its activities.



12. The Minister of the Interior, responded to the challenge of the detailed expression. The Ministry of

mainly from the introduction of the contested takes provisions to

the legal order of the Czech Republic concerning its compliance with the constitutional order

and does not identify with the appellant's argument that it cannot be interpreted

constitutionally Conformal manner. The case, from which the proposal under consideration

The Supreme Administrative Court, it is not the first case of řešícím

the issue of time limits according to the asylum Act, the plaintiff now has delivered on

a matter of different opinion. So for example. in the decision of the SP. zn. 2 Azs 117/2004 of 26. 10.

2004 the Supreme Administrative Court held that the wrong has already been

refusal to provide the regional court if that Court regard to his

Tween after the deadline. This is the period of judicial and

Therefore the obligation of fruitless expiry of automatically disregard to supplement

cannot be inferred at a later date. Similarly, in decision SP. zn. 9 Ip 1/2009 of the

12.2. 2009 reviewed by the Supreme Administrative Court as a denial of Justice

the procedure of a regional court, which rejected the submission for its shortcomings, without

would take into account that the time limit for their removal was due to specific

obstacles for persons the petitioner unrealistic. Therefore, according to the case-law

the Ministry of the Conformal solutions without the constitutionally required in the contested

the provisions seeking to intervene. From the design cannot be inferred, why

the appellant had to depart from this solution.



13. in relation to the right to judicial protection, the Ministry considers it appropriate

pick up as the basic premise that the contested provisions of the law on

asylum, judicial review of the decision in a case marked by international protection

an independent Court of law does not preclude, and that even most of the asylum Act

submitted actions accorded suspensive effect.



14. With reference to the conclusion of the Constitutional Court, presented in resolution sp..

IV. TC 533/06 of 30 October. 1.2007 (N 17/44 SbNU 217) ^ * and the views of the legal

theory, the Ministry denies the proposal the decided opinion, according to which

represents the deciding on applications for the grant of international protection

decisions concerning fundamental rights and freedoms.



15. The Ministry denies that the seven-day period means iluzornost rights

on the judicial protection. This time limit does not apply to all actions in matters

international protection, but only those where the speed control for target

eliminate the cases that clearly don't have asylum. As to the

cases which are not related with international protection, and the only abusers

asylum instruments for other purposes, in particular the legalization of their stay, which

However, the use of the mechanisms provided in the Act No. 326/1999 Coll., on stay of

foreigners in the territory of the Czech Republic and amending certain laws. Therefore, the only

a burden on the system, and a short period is therefore on the spot. A similar adjustment

based on the different length of the time limits for individual asylum procedures

common in other EU countries, for example. Germany, France, Great Britain,

Belgium, etc.; in some countries, the period in question even more

shorter. Otherwise, the length fits into the context of specifically defined time limits

in the cizineckém law; the Ministry refers to find sp.. I. ÚS

609/01 of 5. 3.2002 (published in SbNU), in which the Constitutional Court

dealing with ústavností shortened, the 30 day period for the filing of administrative action

against the decision according to the Act No. 326/1999 Coll., mutatis mutandis, the Supreme Administrative

the Court in the decision of the SP. zn. 5 As 7/2009 of 16. 4.2009 stated that

statutory time limit for the submission of 10 day action against the decision of the administrative

authority on the expulsion of foreigners, though it is significantly shorter than the time limit,

the application of the law on foreigners, a judicial review of such a decision

excesívním way does when shortening the period balances by providing

suspensive effect the application. In addition, the determination of the shorter tracks

a legitimate target in the form of limits on the time a person just exiled

strictly necessary. It is therefore not in breach of article. paragraph 36. 2 of the Charter nor the article. 1

Protocol No. 7 to the Convention for the protection of human rights and freedoms (hereinafter as

"The Convention"). To the appellant's argument concerning the impact of the principle of concentration of control

on the position of the plaintiff, the Ministry points out that the solution is in the

the meaning of the findings of the Constitutional Court finding SP. zn. IV.-2170/08 from 12. 5.

2009 an extensive interpretation of the claim. In addition, the concept of policy

the concentration of proceedings, as it presents itself in the design of the Supreme Administrative Court,

Therefore, the legal representative can provide to supplement the action only as many

days, the rest of the seven-day deadline for its submission, it is referred to in

the Ministry considers too restrictive. Furthermore, the Ministry does not agree with the

the view that at the present time, when the number of applicants are falling, is already

the adjustment under consideration. The legislative amendment was not

motivated by the sharp increase in the agenda, but the effort to streamline the management and

to exclude cases where the asylum system is abused only.



16. Cancellation of the contested provisions, according to the Ministry in violation of the

the sense and purpose of the legislation was to inadvertently delete the difference

between refusing an application as manifestly unfounded and the classic. It was

It would also be against the current trend of European law, which

the existing asylum procedures corresponding to the adjustment. The Ministry therefore

It is recommended that the proposal be rejected.



III.



The diction of the contested provisions



17. the provisions of § 32 paragraph. 2 (a). and) the asylum Act reads: "In the period 7

days from the date of notification of the decision to bring an action against a decision of the

the application for the grant of international protection, which this request is rejected as

manifestly unreasonable. "



IV.



The conditions of the appellant's evidence, active constitutional conformity

the legislative process



18. the proposal he handed the Supreme Administrative Court in connection with the management of that

It is in progress, and to the cancellation of the proposed procedural provisions of the Act

the asylum is one of those who must apply it. His locus standi

so based on the provisions of § 64 paragraph. 3 of Act No. 182/1993 Coll., on the

The Constitutional Court, as amended by later regulations (hereinafter referred to as "the law of

The Constitutional Court ").



19. The Constitutional Court within the meaning of the provisions of section 68, paragraph. 2 of the law on the constitutional

the Court dealt with the way the adoption and release of law No. 2/2002 Coll., which

amended asylum Act and certain other acts, which was contested

the provisions of the law on asylum. From the expression of both participants, as well as

and its Web site (www.psp.cz) shows that the Chamber

the Chamber of deputies of the Parliament of the Czech Republic discussed the proposal as no. 921.

The first reading took place on 16. 5. in 2001, the second of the day 19. 9. in 2001, and the third

reading on 21. 9. in 2001, when the Bill was approved and referred to the
The Senate. The it on your 10. the meeting of 25 October. 10.2001 (resolution No. 189)

return the lower Chamber with amendments, when from the present 66

Senators voted 60 to return, 3 were against and 3 voting

were delayed. 27 June. 11.2001 at their 43. a meeting of the Chamber of Deputies acted

the proposal again and approved it in the version approved by the Senate (resolution

No. 1866); for the 168 Members voted from the present 110, against 53.

The President of the Republic signed the law March 14. 12.2001 and 7 May. 1.2002

the law was duly promulgated in the collection of laws.



20. The Constitutional Court has stated that the reference constitutional law was adopted

Conformal legislative procedure.



In the.



Your own review



21. The Constitutional Court has examined the proposal and the reasons given below, came to the

the conclusion that the annulment of the contested provisions of the law on asylum is the reason.



22. First, it should be recalled that the Constitutional Court is the body protection

the constitutionality (article 83 of the Constitution of the CZECH REPUBLIC.). In proceedings for the annulment of laws and other

legislation acts in the position of the so-called. the negative of the legislature and

its task is to assess the constitutionality of the contested legislation or

their limited parts, possibly to assess whether the contested

interpret and apply the legislation constitutionally Conformal manner. The constitutional

the Court is not entitled to assess the appropriateness, effectiveness, or doctrinal

the purity of the legal standards, as this competence is the responsibility of always

lawmakers.



23. Thus, as revealed in the narrative part of the grounds, is the Constitutional Court

before the task to assess whether the seven-day claim period gives even the applicants

the real possibility to submit the decision rejecting the request for

the granting of international protection as a manifestly unjust administrative control

Court, or whether the length of the time limits for the initiation of the proceedings shall be the law of the Court of

a review of only a blank proclamation.



24. The issue of time limits and their linkages to the constitutional guarantees,

The Constitutional Court in its case-law has already dealt with more than once.



25. So for example. in finding SP. zn. PL. ÚS 33/97 of 17 February 1997. 12.1997 (N

163/9 SbNU 399; No. 30/1998 Coll.) The Constitutional Court of the concept of limits in General

the plane said: "the purpose of the Institute is to reduce the legal time limits

entropy (uncertainty) in the application of the rights or powers of time

limitations the State of uncertainty in legal relations (which plays, in particular,

an important role in terms of the taking of evidence in cases of disputes), speeding up

the decision-making process in order to achieve the intended objectives of a real. These

the reasons have led to the introduction of time limits already thousands of years ago. "



26. the scope of the constitutional review of the legal provisions of the zakotvujících period

then, the Constitutional Court had defined in finding SP. zn. PL. ÚS 46/2000 of 6 September 2000. 6.

2001 (N 84/22 SbNU 205; no 279/2001 Coll.), which stated: "the Mission of the constitutional

the Court is in the control of constitutionality. In this context, this Court may

only disturb the unconstitutional provisions, or parts of them, however, is not his

the task of the reparovat the consequences that arose from the fact that the plaintiff has not exercised

his right within a specified period. Cancellation time limits violates the principles of the rule of

the State as it significantly interferes with the principle of legal guarantees, which is

one of the fundamental elements of contemporary democratic legislation

systems. The period cannot in itself be unconstitutional. You may, however, as follows

appear with regard to the particular circumstances. "



27. On those conclusions, then, the Constitutional Court has established the award SP. zn. Pl. ÚS

6/05 of 13 June. 12.2005 (N 226/39 SbNU 389; no 531/2005 Coll.). Again

here stated that "prima facie period without further cannot show

the characters of unconstitutionality, "and that" the unconstitutionality of the deadline may be pronounced

only in the dialogue with the specific circumstances of the considered things ". For

the particular circumstances, or contextual aspects assessing

the constitutionality of the period, having regard to its previous case-law of the Constitutional Court

marked:



"1. inadequacy of (disproporcionalitu) the time limits in relation to the time it

limited application of the constitutionally guaranteed rights (right),

as defined by time constraints of subjective rights ".

Here to find SP. zn. PL. ÚS 5/03 dated 9. 7.2003 (N 109/30

SbNU 499; no 211/2003 Coll.) jamming the provisions of § 3 and § 6 of the law No.

290/2002 Coll., which constituted a disproportionate restriction of ownership rights,

violation of article. 11. 1 in conjunction with article. 4 (4). 4 of the Charter of fundamental

of rights and freedoms (Constitutional Court considered in Conformal rozhodovaném

the context of such legislation, which would limit was based only in

completely necessary time range, which you can understand only the minimum

time, and it's clearly prima facie "transitional" period, but not the period

ten years);



"2. the arbitrariness of the legislature in the determination of the period (its anchoring or

cancellation) ". Within the meaning of this perspective, the assessment of the constitutionality of the period

the Court proceeded in case sp.. PL. ÚS 2/02-find of 9 June. 3.2004

(N 35/32 SbNU 331; no 278/2004 Coll.), which called for the unconstitutional

repeal of the provisions of section 879c to section 879e of the Civil Code made by the

Act No. 229/2001 Coll., which the legislature intervened to legitimate

expectations of the exact circuit operators just one day before the

the expiry of the period within which an acquisition of ownership in

as a result of the bodies which act in confidence in advance of the State

the conditions were just a day before the expiry of the said time limit

confronted with arbitrary procedure;



"3. the constitutionally neakceptovatelnou inequality of two groups of subjects, which is

the result of the cancellation of certain legal conditions for the application of law for the

the unconstitutionality, while this clearing for the operators

as a result of the expiry of the time limits due to the possibility of derogation without further

the application of the rights does not open ". Here it was dependent on the findings of the SP. zn. Pl. ÚS

3/94 of 9 December 1999. 3.2004 (N 38/1 SbNU 164/1994, no. 164/1994 Coll.) and sp.

Zn. PL. ÚS 24/97 of 3 December 2004. 6.1998 (N 62/11 SbNU 111; no 153/1998),

which was the abolition of provisions defining the beginning of the period for the

the application of the restitution claim open to the possibility of their application for

those authorized persons who as a result of the conditions of permanent residence in the

the time limits of the original claims successfully assert could not.



28. In following up on these in the past, made the proposition, which are even now

applicable, i.e. the Constitutional Court notes that the contested statement period

as such cannot be unconstitutional. It is for consideration whether the legislature and

What is the time limit for the implementation of the law provides. Indeed, it is not even

disputed, since unconstitutionality period the appellant sees exclusively in

its length, or that it is too short. But not even the length of the claim

time limits itself fundamentally cannot be the reason for its cancellation. Conclusion on the

her (not) the constitutionality can be done except after evaluating other contextually

operating circumstances. The appellant in this sense refers to the principle of

controlling the administrative judiciary, and that the principle of the disposition and the principle of

the concentration of management, which, in conjunction with a short notice to the applicant of the

the granting of international protection to realize the possibility of judicial review to considerably

make it difficult, and in some cases even impossible. Also ignore

cannot be a specific life situation, in which most of the applicants for

international protection is located.



29. The Constitutional Court has considered carefully these objections when assessing the period of

aspects of the above defined, i.e. whether neakceptovatelně discriminates

one group of applicants for international protection, whether the legislature

determined arbitrarily and whether it is not excessive.



30. There remains the question of the constitutionality of that particular claim period

the Constitutional Court has already dealt with in resolution SP. zn. I. ÚS 609/01

(available at http://nalus.usoud.cz/). It ruled on the constitutional

complaints related to the proposal to repeal the provisions of section 172, paragraph. 1 of the law

No. 326/1999 Coll., on stay of foreigners on the territory of the Czech Republic, according to which

"the action against an administrative decision must be made within 30 days from the

notification of the decision of the administrative authority in the last stage, or from the date of

communication from another decision of the administrative authority, if not further defined

otherwise. Deadline cannot be waived. " The complainant claimed that in

as a result of this adjustment occurs to the discrimination against foreigners, as regards their

the right to judicial protection, as provided for in a 30 day time-limit for bringing an action

It is precisely with regard to this, that this is a foreigner often not familiar with the Czech

language-unreasonably short. The Constitutional Court as manifestly

unfounded refused, arguing that the contested provisions of any of the constitutional

kautel is not contrary. In a recital stated that "of the constitutional law

the viewpoint is fundamentally in the present legislature, whether, and in what areas

right of legal regulation lays down the special law, the deadline for submitting

administrative action, i.e.. the time limit is different from the General time limit of two months from the

notification of the decision of the administrative authority in the last stage, which is

enshrined in the provisions of section, paragraph 250b. 1 the first sentence of The l.

the determination of the special period (different from General editing according to the cited

the provisions of s. l.) -which can be found in the form of a 30-day

for example, in the period the provisions of § 17 paragraph. 6 of Act No. 526/1990 Coll.

prices or in the provisions of section 16. 4 Act No. 498/1990 Coll., on

refugees, as amended-cannot be considered a standing

contrary to constitutional kautelami, as constitutionally the legal point is
to be considered as determining only whether this specific time limit for the submission of

administrative action respects the constitutionally guaranteed fundamental rights concerned

persons or not. The Constitutional Court considers that a special law

provided for different (30 days), the time limit shall not prevent the implementation of the basic

the right to judicial protection, in accordance with the provisions of the article. 36 of the Charter. Or from the

in terms of the Constitution cannot be guaranteed only by a general time limit for the

submission of administrative actions, as if it were a denial of the rights of the State to

editing a special period in the Special Act No. 326/1999,

the point of view of the subject of the legislation (and personal scope) refers to (stay)

foreigners in the territory of the Czech Republic. Indeed, the complainants in the constitutional

the complaint alleged discrimination of foreigners-link in relation to their

the right to judicial protection-with the allegedly disproportionately short 30-day

the deadline for the submission of administrative action, those who are often lack

the Czech language. The Constitutional Court, however, believes that the establishment of

a special 30-day period to submit the administrative action does not occur,

that the public authorities had spared the constitutionally guaranteed the basic right of foreigners to

the Court of protection, since this period referred to the basic law, does not change the

or make an inaccessible to foreigners. On the contrary, from the constitutional point of view

creates for the realization of this fundamental right in relation to all (this

the law affected) individuals of the same conditions without discrimination.

The Constitutional Court therefore concludes that the provisions of section 172, paragraph. 1 on the time limit for

submission of administrative action is clearly not constitutionally and is therefore a conformist

disturb. " The proposition, according to which the constitutional guarantee cannot be inferred the General time limit for

submission of administrative action and that the determinant is only whether the Special

period respects the constitutionally guaranteed fundamental rights, without further

applicable also for the proposal now under consideration. In others, however, responded

The Constitutional Court referred to the resolution on the specific context of the Special

the provisions of the Aliens Act; the resolution is mainly covered the 30

day period, reviewed the constitutionality of the period is now 7-day, therefore,

significantly shorter. In addition, under the management of the Aliens Act is not

strictly jednoinstanční, as in the case of asylum administrative

control, which allows you to evaluate the conditions of access to administrative

the Court compared to modify the standard to a certain extent benevolentněji.



31. the period from the point of view of the individual groups of asylum seekers.



32. The subject of the asylum Act, inter alia, the procedure for granting

international protection in the form of asylum or subsidiary protection and the management of

the withdrawal of asylum or subsidiary protection [§ 1 (b)) the asylum Act].

The asylum procedure is an administrative proceeding, which shall be decided by the Ministry of

of the Interior. If the Ministry finds in its decision, that are filled with

the reasons for the granting of asylum, international protection in the form of asylum or

supplementary protection grants (section 28 (1)). In the opposite case, i.e.

If he does not find reasons to grant or one of the forms of international protection,

the request shall be refused (article 28 (2)). Adverse decisions can be divided into two

categories. On the one hand can go about cases where the complainant, although grounds

for which asylum granted, but in his particular case detected and

are not confirmed. The Ministry may reject the application, or as a clearly

unfounded, and that in the cases exhaustively listed in section 16 of the Act on the

asylum. As to the cases in which the applicant seeks to circumvent or exploit the asylum

the rights for the purpose of legalization of stay on the territory of the Republic or from other

reasons. In the link to qualitatively quite different character of the reasons

rejection of the application is determined and the length of the period for the submission of the Board

the action. In general it is 15 days, but if the request was rejected as manifestly

unreasonable, may be brought only within 7 days from the date of delivery of the

the decision; the same regime applies to cases where the decision of the

applications submitted in the securing device for aliens or if management

stopped due to the inadmissibility of the application for the granting of international

the protection.



33. With regard to the conditions for the possibility of using the judicial protection are, therefore,

applicants classified into two categories. Given the general requirement

principle of equal access to constitutional guarantees, it is therefore necessary to deal with

the social need and the ospravedlnitelností of such a Division. According to the

the purpose of this Ministry is the deadline to eliminate the cases that "clearly

they do not have the substance of asylum ". A burden on the system and the speed of execution is

an important aspect of this type of cases. Between these arguments and the length of the

the claim period, the Constitutional Court, however, does not see the immediate connection. Aspect

speed is important and in the asylum law was reflected, inter alia, by

that was reduced to a two-month period, the general statement of 15 days. Category

manifestly unfounded applications is certainly qualitatively from other applications

different and some procedural peculiarities, such as the closed enumeration of reasons for

You can decide on the application, and thus shortening the time limit for the issue of

administrative decision for 30 days from the date of initiation of the proceedings for grant

international protection, are therefore justified. Closed enumeration of reasons

then leads to less demands on the taking of evidence and the reasons for the decision. This

the consequences of that are acceptable categorization of applications, which, in its

basically speed up and facilitate the proceedings in cases lacking a

the essence of asylum; This also manifests itself in the Elimination of these cases.

However, if it is to be subjected to judicial review and concluded that the asylum

the essence of the specific case actually is missing, cannot be a mere

access to court only for this group of applicants is limited further by reducing the

the claim period.



34. The Ministry in its opinion stated that the practice of different time-limits for

the so-called. standard asylum procedures and accelerated procedures is absolutely normal

in other EU Member States, and can be found even shorter deadlines. To

the Constitutional Court notes that the comparative argument foreign

laws left the party, because, as has been said, the guest

the constitutionality of the period is the evaluation of the kontextuálním. Of fundamental importance to

other legal rules that affect the presentation of the case to the Court, and therefore

how it is manifested in our period of Czech life, where is the administrative

proceedings in the matters of asylum jednoinstanční and administrative judiciary controlled by the

the principle of disposition and management of concentration, which the lawsuit puts the specific

claims. For example, let it be given in this context to relevant parts of

adjustments to the asylum procedure and the subsequent judicial review in the Federal

Republic of Germany (see article Petra Lavického and Sylva Šiškové: Over a new

by modifying the procedure for cassation complaints in asylum matters, Právní rozhledy

19/2005). The fabric there is regulated by law on asylum procedures

(Asylverfahrensgesetz, BGBI. And 1992,1126). Management is the single stage,

leads before the Federal Office for migration and refugees. His decision

You can challenge the action, have been brought to the Administrative Tribunal. The claim period is

two weeks from the notification of the decision, state the facts and to propose evidence

You can within the time limit of one month; the Court may not make the evidence and take into account the

claims made after the expiry of this period, but only under the condition that would

their admission has caused a delay in the proceedings, the delay was not

done enough and the participant has been advised of the consequences of missed periods.



35. On the issue of arbitrariness in determining the limits of the legislature.



36. the adjustment of judicial review of the asylum decision is continuous. According to the

Act No. 498/1990 Coll., on refugees, effective since 1. 1.1991, led

the procedure for recognition of refugee status, the Ministry of the Interior, and against his

the decision was originally accepted in all things decay, after 31 December 2006. 12.

1993 then only in case of the listed types of decision. Law

He admitted the submission of the proposal on the review of the decision by the Court, but only

against the decision of the Minister of the Interior issued in proceedings on decomposition. On 1 January 2005.

1.2000 took effect, the existing law on asylum. The procedure for granting asylum

According to this regulation was originally a two-stage decision in the cases

on the refusal of asylum, and the decision to reject the proposal on the initiation of

the grant of asylum as manifestly nedůvodného, when the law permitted the filing of

the decomposition. In the event that the degradation has been accepted, thus statistically in the

most of the cases, it was the submission of administrative action to be admissible against

the decision about it; However, the action was not unlike previous

legislation dependent on the scope of decision and action can be

to challenge any decision. Filed the lawsuit was granted the suspensory

effect. The adoption of law No. 2/2002 Sb. with effect from 1. 2.2002

the complete elimination of the possibility of a review of the decision of the Ministry of the Interior in

rozkladovém control. On the Court, the applicants continued to be turned, not with

action, but with the remedy facing against the nepravomocnému

decision of the administrative authority. The time limit for filing the appeal was

compared to General reduced to 15 days from the date of notification of the decision and, in

exhaustively defined cases, inter alia, also just in case the rejection

applications for asylum as manifestly unfounded, for 7 days. Starting with 1. 1.

2003, which came into effect Act No. 217/2002 Coll., the legislature returned
the model review final decision of the Ministry of the Court on

the basis of the action.



37. the conditions of judicial review including the deadlines for bringing actions (proposal)

so, while in a time of change, of course, without sudden twists or shifts in the

extreme positions, for example, from a broad review by the General rules of

After its exclusion. The legislature now in the contested provisions of the

missed some crucial and in unexpected ways in the mode

the examination of the asylum decision, nerozvrátil proven and established

the model. Lawmakers argued the need for speed and efficiency

asylum procedures, referred to (closer to the unspecified and nerozvedenou)

practice laws of asylum States of the European Union. You cannot say that the

the period under consideration has been enshrined in the law on asylum procedure, the reporting

zákonodárcovy characters of arbitrariness. The modification is incomprehensible or internally

contradictory, the legislature passed and no doubt unpredictably

the introduction of shorter time limits for claim that group of applicants under the pretext of

streamlining and acceleration of asylum procedures did not follow their primarily

the effective disposal of those who may claim the protection of their

rights in court. Complications in its application to the practice (meant to be revealed

information of the petitioner, that is increasing as is the one that it

led to the submission of the proposal under consideration, i.e. those where the applicant within the time limit

females can only announce its intention to bring an action, add any reasons

But enough already).



38. The adequacy of the period.



39. By the contested provisions enshrined the period for bringing an action is legal

period, whose length cannot be changed by the Court. And cannot be

remitted her judgment, since it excludes the administrative court rules (section 72

paragraph. 4). Adverse effects of the deadline for the submission of the application, therefore, cannot be

ward off in any way. On the other hand are processors of claims

subject to relatively large claims; In addition to the General requirements for filing (section 37

paragraph. 2 and 3 of the judicial code), in particular the administrative placing of what

the action relates to who makes it, against whom and what it suggests,

the signature and the date, and a special Essentials shall have (§ 71 (1)

administrative judicial procedure), and the designation of the contested decision and the day

his delivery or other notification to the plaintiff, the designation of persons to the management

involved, if known to the applicant, the decision that the designation statements

the applicant challenges the claim, the points of which must be perceptible, from which

the factual and legal reasons, the applicant considers that the contested statements

the decision for the illegal or trivial, what evidence to prove their

the claim, the applicant proposes to carry out, and finally the draft judgment.

To extend the action to nenapadené statements yet of the decision or to expand it

on the other, the applicant may only claim points within the time limit for bringing an action (section 71

paragraph. 2, the second sentence of the order administrative). Therefore, strictly controls the management

conceived the principle of concentration. The principles of controlling the administrative judiciary

(though still in time before the adoption of the administrative judicial procedure) is the constitutional

the Court expressed in finding SP. zn. PL. ÚS 12/99 of 27.6.2000 (N 98/18

SbNU 355; No 232/2000 Coll.). Said here that "... any provision which

the fact that formalizes the administrative control of the judiciary, provides for de facto

the limits of access to the Court, therefore, the limits of one of the fundamental constitutional rights-

the right to judicial protection. All such provisions ... is therefore

necessary to interpret the spirit of the article. 4 (4). 4 of the Charter, that is, when the application

such provisions, conserve nature and sense of fundamental rights and freedoms.

... The Constitutional Court therefore assesses the contested provisions as

-to-interpret in constitutional limits, did not find it embedded

"disposition", or the principle of concentration control in the administrative

the judiciary is unconstitutional because, even though they may be criticized for that

moving away the principle of material truth, cannot see that particular and completely

undoubtedly contributes to the fulfillment of the constitutional law on the examination and

the decision of the matter within a reasonable time or without undue delay (article 6 of the

paragraph. 1 to the Convention for the protection of human rights and fundamental freedoms, article. 38

paragraph. 2 of the Charter). " To this end, the Constitutional Court remains even now.

Breach of the principle of concentration, therefore you cannot solve the problem.



40. The applicant is obliged to already in the application, at the latest, in the statement of the period,

define the scope in which the administrative decision, and at least a basic

way to define the grounds on which the illegality of the decision. How

in principle, applicants cannot be expected from the practical problems with the definition of the scope of

assault, with the formulation of the pleas in law is different. Means the delimitation of

the factual and legal reasons for which the applicant considers that the decision for the

illegal and meaningless. The first difficulty is no longer alone in this interpretation

conditions, as proved by find sp.. IV.-2170/08 (available on the

http://nalus.usoud.cz/), in which the Constitutional Court pointed out the differences in the

the interpretation of the concept of the claim in the decisions of the boards point Supreme

Administrative Court. In any case, the consensus is that the action in the administrative

the judiciary must point the claim within the time limit for bringing an action. If

This is not so, the request is simply a notice of intent to apply to the administrative

the court action, which, however, does not have even when extensive interpretation of the concept of

statement of point no relevant effects. From the very beginning are so placed

quality requirements for the argument of the plaintiff. With regard to what

the applicant points out, therefore, that the plaintiff is as an asylum seeker in the

specific situation, when the usually focused in these circumstances

and the legal order, does not know the language, has no background, contacts and

depends on external assistance, it is not a formal requirement of the procedure

easily reachable. If the seven-day period, effectively

necessarily shortened by at least two other non-working days at the weekend, in which so

the applicant must make the applicant creates-is already excessive pressure.

It is then quite understandable that the reaction of the applicant for a short period

submission of blanketové action in order to underpin the statutory period, which is

associated with the expectations of challenges to complete the argument.



41. The Constitutional Court is aware of the possible objections, that while the abolition of the contested

the provisions of the statement of the period in the case of manifestly unfounded applications

be extended from seven to fifteen days (section 32 (1) of the asylum Act),

the combination of social factors for applicants for asylum and the principles of controlling

the administrative justice system will continue to operate, that a number of applicants of the litigation

judicial review in fact conduct. Still will be sure to experience the

the fact that the applicants submit their application will be blanketové at the very end

the claim period, making room for possible additions necessary formalities

remains minimal. However, the availability of judicial review

the decision will be, while respecting the principles of vigilantibus is for these

the applicant later. Without this, the Constitutional Court declared that

a 15-day period is a period of sufficient (it would be already beyond

the proposal defined the subject of the proceedings), notes that for persons in the

position of the applicant for asylum is in this (15-day) period

more real judicial review properly initiate.



42. You cannot accept the argument that shorter period balances the claim

grant suspensive effect the application. The administrative judiciary is designed

so that the central importance of the initial phase of the proceedings, just when must

the plaintiff not only to define the scope, but it must also concentrate at least

Basic direct argumentation itself. The applicant, who (as a result of

unreasonably short deadlines) duly nezažaloval, boon suspensive

effect any good.



43. Other circumstances, to which it was necessary in the assessment of the reasonableness of the period

taken into account, is that the claim is only for the applicant's failure into account

the coming of the procedural remedy. Therefore, it is necessary to

the construction of formal barriers to its application to proceed with restraint.



44. Finally, it is necessary to mention the problem of language. The applicant is in line with the

the provisions of section 22 of the Act on asylum, the assistance of an interpreter, but

of course, only in the administrative procedure, the administrative decision is then

does not resolve, with the help of an interpreter is only familiar with its contents. Administrative

action then must be drawn up in English. Even his procedural steps necessarily

complicates and makes it dependent on support, you must

to procure.



45. Furthermore, the Constitutional Court had to consider whether the contested provisions cannot be

unload the constitutionally Conformal manner. He came to the conclusion that the length of the

the period considered, in combination with the editing of a review of the decision rejecting the

the application for the grant of international protection as unfounded, apparently is so

short, that action cannot be regarded as an effective procedural means

axle, then the contested provisions did not disturb just in case, that the

the deficit can be overcome. It would have to be achieved through the effective

the extension of the period examined.



46. Such "extension" comes into consideration unless it is technically

in a way, that the submission of the application (and any, blanketové) will be

refer to the conservation of the claim period and the obligation of the Court to invite the petitioner

to eliminate the defects, or supplement the submission. The length of the time limits provided by the Court
for such a remedy should not be limited to seven days, but the Court

provide a "reasonable" period, that is, one in which according to its

the view and experience of the unsuccessful applicant could realistically make

to respond. This, however, the Constitutional Court deems unacceptable and contrary to the

in General, the concept of concentration control policies to be adopted. Even if it was

in fact, such a possibility to extend the deadline by a short statement of judicial

challenge limited on asylum Affairs (which in itself is difficult to

defensible and sustainable), fundamentally it would crush on Samos

the concept of administrative justice. Here, however, cannot be sacrificed, to were

relaxed deadlines too short on the impacts of the participants of one type of administrative

the proceedings. In addition, topple the principles of administrative justice, it would be

disproportionate effect, annulment of the contested provisions.



47. Ministry pointed out in its comments on the procedure chosen by the

The Supreme Administrative Court in the decision of the SP. zn. 2 Azs 117/2004 of 26 March 2004.

10.2004; rebuked by the regional court, contrary to section 37, paragraph. 5

the court order administrative regard to supplement the Outlook of administration

While the Court made after the deadline, but before the release of the

the decision in the case, and the Administration has rejected. The Constitutional Court does not agree with it.

The application of the provisions of section 37, paragraph. 5 the second sentence of the judicial code of the administrative

provides for the consequences of non-compliance of the invitation to correct a defect or supplement the submission.

Even if such an interpretation were adopted, that the administrative courts will be

take into account the corrections and submissions received at the after the deadline, but still

before the decision, the applicant's status would remain uncertain. Whether

such a filing was or was not taken into account, would be

depend only how quickly after the end of the time limit, the Court shall decide.



48. The contested provisions cannot be interpreted so as to make it unsuccessful applicants

gave guarantee an effective appeal.



49. It is therefore concluded that the provisions of the asylum Act under consideration by

limits the right of the applicant to pursue in court protection of their rights by establishing the

unreasonably short time limits for the submission of claims, in essence, makes the

the judicial protection of their professed only illusory (similarly find SP. zn. PL.

TC 12/07, promulgated under no 355/2008 Coll.). It is therefore inconsistent with article

paragraph 36. 2 of the Charter of fundamental rights and freedoms, according to which anyone who

claims that he was on their rights by a decision of a public authority, truncated

the Administration may apply to the Court to review the legality of such

the decision, unless the law otherwise, from the jurisdiction of the Court must not

be excluded examination of decisions concerning fundamental rights and

freedoms under the Charter, and article. 13 to the Convention for the protection of human rights and

fundamental freedoms of the garantujícího the right to an effective remedy before the

National Authority for anyone who was in the law of the Sea Convention, without prejudice to the admitted.



VI.



50. The reasons led the Constitutional Court to the conclusion that the proposal should be

under section 70, paragraph. 1 of the law on the Constitutional Court.



51. From the oral proceedings was under section 44, paragraph. 2 of the law on the Constitutional Court

abandoned, since from him could not be expect further clarification of the matter, and

all of the participants agreed with this procedure.



The President of the Constitutional Court:



JUDr. Rychetský in r.