234/2012 Sb.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court decided under the SP. zn. PL. ÚS 24 June 23/11. April 2012
the plenary consisting of the Vice-President of the Court, Pavel Holländera and judges
Stanislav Ass-Bag, Of Franz Duchoně, Vlasta Formánkové, Vojena
Güttlera, Ivana Janů, Vladimir Crust, Dagmar Lastovecké, Jiří Mucha
Jan Musil, Jiří Nykodýma, Miloslava Excellent and Michaela Židlické on
design of the Supreme Administrative Court to repeal of section 171 (a). and Act No.)
326/1999 SB. on residence of aliens in the territory of the Czech Republic and amending
certain acts, as amended by law No 427/2010 Coll., respectively, on
voicing the unconstitutionality of section 171, paragraph. 1 (a). and Act No. 326)/1999
Coll. on the stay of foreigners on the territory of the Czech Republic and amending certain
laws, as amended, until 31 December 2006. 12.2010, with the participation of the Chamber of Deputies and
Senate of the Parliament of the Czech Republic as the parties,
as follows:
The proposal to repeal section 171 (a). and) 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
Law No 427/2010 Coll., refuses.
Motion of unconstitutionality of section 171, paragraph. 1 (a). and Act No.)
326/1999 SB. on residence of aliens in the territory of the Czech Republic and amending
certain laws, as amended, until 31 December 2006. 12.2010, is rejected.
Justification
(I).
The definition of things, the arguments of the appellant's
1. The Constitutional Court has turned the first Chamber of the Supreme Administrative Court
a proposal for the abolition of the Act No. 326/1999 Coll., on stay of foreigners on the
the territory of the Czech Republic and amending certain laws, (or just "law
the Aliens '), as amended by law No 427/2010 Coll., and specifically
the provisions of section 171 (a). and) excluded judicial review of the decision of the
the refusal of the visa. For the case of unconstitutionality, the Constitutional Court could not
the provisions of decisions, since its now valid texts is not the thing solved
before the Supreme Administrative Court, the plaintiff sought to pronounce applicable
the unconstitutionality of section 171, paragraph. 1 (a). and) 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
until 31 December 2006. 12.2010.
2. in the case of the petitioner under the mark 1 As 85/2010 pending
the cassation complaint, which turned on him, Mrs. s. r., State
women from Iraq, and that is directed against the resolutions of the regional court in
Brno, Czech Republic of 28 June. 4.2010 no j. 36 Az 39/2008-27. A regional court in this
the resolution rejected as inadmissible her action against the decision of the
the administrative body-the police of the Czech Republic, the Regional Directorate
the foreign police services in Brno, the Aliens ' Police Inspectorate Brno,
which the complainant was granted a visa. Regional Court came out of the provisions of the
section 171, paragraph. 1 (a). and) of the Aliens Act, judicial review
excludes, and refer to the decision of the Constitutional Court and Supreme
Administrative Court, according to which the exclusion of judicial review does not affect the
any constitutionally guaranteed fundamental right or freedom, because
the subjective right to constitutionally guaranteed for foreigners to stay in the territory of the Czech
the Republic does not exist.
3. The first Chamber of the Supreme Administrative Court are identified with the
Mrs. r. presented in its complaint, that if the already
the alien in the territory of the Czech Republic, comes the account of real threats
his constitutional rights, and the decision on the refusal of the visa cannot therefore be of
the Court of review ruled out. Because the disputed provisions of the law on residence
foreigners cannot unload constitutionally conformally to the plaintiff did not
has been reduced in the right to judicial protection, the proceedings on the complaint said
and he turned to the Constitutional Court for its annulment.
4. the proposal is supported by a comprehensive argument. The applicant first
points to the fact that according to § 51 paragraph. 2 of the Aliens Act,
as amended by law No 427/2010 Coll., on stay visas is not
a legal claim. The provision is perceived as an expression of State sovereignty, when
the State completely autonomously decide, who of foreign State
Members shall authorise the entry and residence on its territory. So also constantly
judikuje the Constitutional Court [ESP. find SP. zn. PL. ÚS 26/07 of 9 June. 12.
2008 (N 218/51 SbNU 709; 47/2009 Sb.)] and the Supreme Administrative Court.
The question of visas is left to the discretion of the competent administrative
authorities. Although in general the applicant agrees with it, automatically according to it
does not the constitutionality of the exclusion of judicial review. How
repeatedly reminded in their decisions, the Constitutional Court, the conditions
admission of aliens on the territory of the Czech Republic must be
non-discriminatory. This is true both in the plane of General legal standards and
in the plane of the decision-making practice of the administrative authorities. According to the appellant, however, is not
clear how the ban on discrimination and arbitrary decision making force without
the subjugation of the decision-making practice of the cognition of administrative courts, at least in
any excesses of administrative discretion. Even there, where the administrative
the authority has an absolute free reflection as to the outcome of its
decision making (which case decisions about the granting of visas is not), the Court
a review of the importance in the case of exceeding the framework of the constitutional order, as
the Constitutional Court also noted in finding SP. zn. IV. TC 49/04 of 16 June.
3.2006 (N 62/40 SbNU 607). In cases where the administrative authority has the
a wide discretion or indeterminate legal concepts applied, although the intervention
rather, the possibility of itself an exceptional judicial control eventual
prevent arbitrariness.
5. Not only Czech citizens, but also other persons who, in the territory of the Czech
Republic rightly present, have legitimate expectations on the protection of
by the State. So even if the foreigners do not have subjective constitutionally guaranteed
the right to reside there, have at least the right to proper procedural steps from the
the administrative authorities of the parties, which they intend to stay for more. This
the process must be free from any discrimination or arbitrariness. Before the amendment to the
made by law No 427/2010 Coll., amending Act No. 326/1999
Coll. on the stay of foreigners on the territory of the Czech Republic and amending certain
laws, as amended, Act No. 325/1999 Coll., on asylum and
on the amendment of Act No. 283/1991 Coll., on the police of the Czech Republic, as amended by
amended, (asylum Act), as amended, and
other related laws, passed the application for a visa to stay
over 90 days at the Embassy of the Czech Republic, ceased to act
otherwise. Otherwise, the Act on the stay of foreigners established in the case of a visa to stay
over 90 days for the purpose of prolonging the, when the application served on our territory
The police of the Czech Republic. In the case of the positive settlement of the visa has pioneered
in the travel document. If the visa is issued and the alien already on the territory of the
He stayed, he was granted a period to leave the territory and granted exit
command. The filing against the outcome of the proceedings on the application, the stranger
defend could not and could also hinder the výjezdnímu command. The law on the
the aliens did not allow any possibility of review even in those
distinctive cases where the decision of the Police of the Czech Republic
due to the existence of special circumstances [e.g. a binding opinion
The Ministry of the Interior (hereinafter as the "Ministry") about the impossibility of
departure to the country of origin, as in the case of Mrs. R.] clearly
illegal. The administrative authorities for foreigners creates unsolvable situation,
If on the one hand they see the impossibility of his departure, on the other, but
refuse to legalize his stay. Following the amendment made by Act No.
427/2010 Coll. is procedure described for visas over 90 days for the purpose of prolonging the
stay the same without major deviations, just went on the competences of the
The Ministry of the Interior. In response to the legislation of the European Union (the visa
Code), however, has introduced another change, and that the specific remedy
called "a new assessment of the reasons for refusal of the visa", which in defined
cases shall be decided by a Special Commission. The conditions, however, the independent
authority of the type does not satisfy the. Judicial review of the refusal of visa or
still is not possible. On the contrary, the existing adjustment according to the appellant, in its
consequences means that in the process of making decisions on visas occur to considerable
the concentration of power at the single authority of the Executive Branch; You can therefore reasonably
to apply the logic of finding SP. zn. PL. ÚS 11/2000 of 12 January. 7.2001 (N
113/23 SbNU 105; 322/2001 Coll.). The obligation to leave the territory of the Czech Republic
While regularly represents a significant and difficult to napravitelný intervention in the
private or family life.
6. the applicant points to the approach of the European Court of human rights
(hereinafter "ECHR"), which in its case-law takes into account offshore
the effects of the article. 8 of the Convention for the protection of human rights and fundamental freedoms (hereinafter
"the Convention"). The ECHR HAS acknowledged that although the Convention does not prohibit the States from
to regulate the entry and residence of foreigners, but adopted restrictive measures should
be proportional to the objective pursued. He stated also that the
non-renewal of a visa to stay and expulsion can result in serious
intervention in family life. The ECHR HAS also dealt with the compliance to the
family life with the law and whether this right to provide protection
before the arbitrary intervention, with a guarantee against him is, inter alia,
the existence of a review of the decision by an independent authority. Furthermore, the appellant in the
in this context, recalls the finding of the Constitutional Court, SP. zn. Pl. ÚS
26/07 (see above) on the repeal of section 171, paragraph. 1 (a). (c)) of the residence Act
of aliens, as amended by Act No. 161/2006 Coll., concerning the exclusion of
a review of the decision on administrative expulsion of an alien who is in the territory of
The Czech Republic has delayed unduly. The legislation would not do
unjustified differences between persons in a comparable situation.
7. For the assessment of whether it has been affected by some of the fundamental rights of aliens
According to the applicant, where the alien at the time of submission of the application
located. Calls to the Embassy for a visa in their country of origin,
its not giving him any injury cause cannot, unless he was in the territory of the
the desired state of a family member, with which a joint family life
He could not realize elsewhere than in the territory of that State. The other is, of course,
the situation, when a foreigner on the territory of the receiving State legally residing. Then
It is likely and logical that there's family background and private could
create life. He's forced departure in case of refusal of a visa
seriously disturbed, and in the case of the claim of prejudice of basic rights
must become a judicial control of the relevant administrative decision.
In addition, in the particular case Mrs. R. There may be a violation of
of the Aliens Act, because the visa for prolonging her due to the
the existence of the opinion of the Ministry of the Interior about the inability to travel to
the country of origin should be granted.
8. According to the applicant cannot be in favor of the constitutionality of the contested provisions
argue that foreigners can get court protection in
following the negative outcome of the asylum procedure or the procedure for administrative
the expulsion. The decision on the refusal of a visa without further activates the release of
výjezdního command, when the alien is obliged, within the specified period of the Czech
Republic to leave. Asylum proceedings can start when the alien
other conditions. In any case, the subsequent judicial review of the asylum
the decision defined the subject of administrative proceedings and the decision on the
the refusal of the visa already under review. Similar also applies when
a review of the decision on administrative expulsion; the condition, however, is that
the foreigner will not respect the external command, and will be on the Czech territory
stay illegally, for which it cannot be forced. Anyway here are not
reviewed the reasons for refusal of the visa.
9. the applicant also recalls the views of doctrine, that the absence of
judicial review of the visa decision. It also pointed out,
the Czech Republic belongs to the minority of European countries that do not provide
no judicial protection against the refusal of a visa; the laws of Austria,
Lithuania, Germany, France, Sweden, Finland, the United Kingdom, Poland or
The Netherlands judicial review of a decision of this type in various forms
they know.
II.
The opinion of the participants in the proceedings and of the Ministry of the Interior
10. The Chamber of deputies of the Parliament of the Czech Republic in its comments
zrekapitulovala the course of the legislative process and voting, which
approval of the contested legislation preceding. The legislature acted in
the belief that the adopted legislation is in accordance with the constitutional order.
The assessment of the constitutionality of the editing leaves to the discretion of the Constitutional Court.
11. the Senate of the Parliament of the Czech Republic also described the procedure for the adoption of
the rules concerned with the fact that the contested provisions of the law on the question
the aliens had the ability to deal with repeatedly, debate or
the amendments directly to him, never nesměřovaly. Continuously with
the Government proposals are so usnášel in the majority belief that the existing
long used the concept of the rule of the exclusion decision solutions
the refusal of the visa of the judicial review is in accordance with constitutional order and the
international obligations. The Senate also leaves the final decision on the
consideration by the Constitutional Court.
12. With regard to the material of the proposal considered by the Constitutional Court for the appropriate
to request an opinion on the content of the proposal, in addition, also from the Ministry of the Interior,
on the section of the State administration shall perform its activities. The Minister
the Home Office responded to a call that the current legislation is not in
inconsistent with the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), by the Charter of
fundamental rights and freedoms (the "Charter") or international
commitments, and to the annulment of the contested provisions of the Aliens Act
Therefore, there are reasons. Its opinion on the case for the following
in a way.
13. First observations dedicated to a particular case Mrs. r., from which
the present proposal. Designated arrived in the Czech Republic
on 14 June 2004. 2.2007 on the basis of a visa for a stay whose validity ended the day 1.
3.2007. From the 2. 3.2007 here on the basis of a visa for the purpose of prolonging the with
effect from 2. 3.2007 to 29. 2.2008. 26 March. 10.2007 was initiated
the administrative proceedings in the case of administrative expulsion from the territory of the Czech Republic, in the
under this management published by 29 April 2004. 10.2007, the Ministry of the Interior of the binding
opinion on the options for travel, according to which foreign women travel to
the country of origin is not possible. Proceedings on administrative expulsion was for
the apostasy because on 7 December. 11.2007 stopped. On 12 June 2006. 3.2008 asked Mrs
R. for permanent residence for reasons of particular interest; the application has been evaluated
as inadmissible and the proceedings terminated. 19 July. 3.2008 asked for
a temporary stay of the family member of an EU citizen; the request was for
nedoložení the terms rejected (Ministry of the Interior, no family
Member of the EU was not known), appointed by the decision appealed against, the action
which at the time of the processing of representation has not yet been decided. On 18 July 2005. 8.
2008 filed a visa application, appointed for the purpose, which was the day
16.9. 2008 rejected (Note: it is against this decision, Mrs R.
She tried to defend before the administrative courts, which resulted in a proposal now
the present). Day 10. 10.2008 filed a further request for a visa for the purpose of
prolonging the stay, which was again rejected. Day 16. 10.2008 handed Lady
R. a request for international protection, the management of which is still ongoing. Description
Ministry ends by stating that the applicable legislation provided
foreigners in the context of all proceedings conducted sufficient legal guarantees for the
effective protection of its rights. In the context of the Ministry yet
referring to the circumstances under which Mrs. r. in 2007 left and
resided in the Federal Republic of Germany; already this in itself could be considered
result in the termination of the validity of the visa for the purpose of prolonging the first, anyway, it
znevěrohodnilo claims about trying to live in the Czech Republic with his family. To
It then adds that the family in the concept of the claimant and the design argument
make up the father and three brothers, without which, however, had lived in Iraq for a long time and
who, within the meaning of the Aliens Act are not carriers permission to
family reunification. On the contrary, husband of the claimant in a similar control enabled
stay on the territory of the Czech Republic, when the appropriate control over
by rejecting his constitutional complaint. According to the Ministry of the marking
the case shows that the plaintiff could have on the territory of the Czech Republic originally
one whole year stay undisturbed. She was then able to apply for authorisation to
long-term stay for the purpose of prolonging the (§ 43 (1) of the Act on the stay of
of aliens, as amended), or in the future for other
purpose (article 42, paragraph 2, of the Aliens Act, as amended by Act No.
165/2006 Coll.); the decision on the long-term residence permit from the Court of
the review is not out of the question. Or should a foreigner qualify for the international
protection, which would, moreover, the reason for the submission of applications-fear of returning to
Due to the bad security situation in Iraq-said. Also binding
opinion on the travel options for more alien's stay on the assumed
the territory of the Czech Republic in the mode of the asylum Act. When examining whether the
foreigners provided a sufficient guarantee of protection of their rights in the event of
fears of a return to the country of origin, it is necessary to follow the legislation in
the area of entry and stay of aliens in the territory of the Czech Republic in the wider
meaning, not only of the Aliens Act, but also the law on asylum, which
just used primarily for this purpose. Institutions of the system, i.e.
the solution of the same refugee status to aliens residing in a particular
status in both provisions, is not effective. Visa for the purpose of prolonging the according section
paragraph 33. 1 (a). and) of the Aliens Act, as amended
legislation is then only an additional Institute, which is to be used in the
cases of short-term obstacles to travel in a matter of months.
14. Judicial review of the decision on the refusal of the visa is the contested provisions of the
excluded deliberately, because the application of foreigners to whom the Czech
the Republic does not indicate any residence permission. In principle, it is not about
the need for foreigners to leave, but the question of the fulfilment of the conditions for the grant of
a certain type of residence permission. The refusal of a visa for the purpose of prolonging the
in and of itself is not likely to intervene to protect the rights of alien life and the
health or the right to family life. So he can become only the downstream
a decision on administrative expulsion. Unlike the petitioner shall
the Ministry believes that in proceedings under the law on aliens is
discretion of the administrative authority benefit as it allows greater
individualization and protects against the rigid application of the statutory conditions.
To protect foreigners, whose case is different from the others,
but, above all, so that the decision of the administrative authority was in breach of
with the interests of the Czech Republic, which is a right protected by the value of
interest in the protection of private and family life. The Ministry of
also disagree that judicial review is the only possible guarantee
maintaining the conditions of non-discrimination of foreigners and the ban on arbitrariness when
decision making, and any defect can be remedied, even when using the patch and
supervisory resources within the public administration. As regards the Commission for
decision-making in matters of residence of aliens (referred to hereinafter as "the Commission"), which was
review of administrative decisions entrusted to the refusal of visa, it is
part of the organizational structure of the Ministry, but its members are on the
it independent in its decision making. The fact that there is no general
beliefs about the necessity of judicial review, is demonstrated by the regulation of the European
Parliament and of the Council (EC) no 810/2009 establishing a Community code on visas
(Visa code), under which unsuccessful applicants the right to appeal
(article 32, paragraph 3), however, on what type of correction procedure, whether judicial or
the Board, ordered.
III.
The diction of the contested provisions, petit design
15. the provisions of the Aliens Act, whose bold the highlighted portion is
the design challenged, as follows:
-in the version effective until 31 December 2006. 12.2010 (i.e. as aplikovatelném on the
stěžovatelčinu thing):
Judicial review
§ 171
(1) the review by the Court are excluded
and the decision on the refusal of a visa),
(b)) the decision on refusal of entry,
(c))
(d) the decision on the termination of the stay), if a foreigner before proceedings
of their stay on the territory or remained in the transit area
the international airport of unduly,
e) decision refusing the green card.
(2) in the case of a citizen of the European Union or a member of his family, are
the Court excluded from the review of the decision on refusal of entry or
administrative expulsion after the period of validity of a previous decision of its
administrative or judicial expulsion.
-in the current version (as amended by law No 427/2010 Sb.):
Judicial review
§ 171
From the review by the Court are excluded
and the decision on the refusal of a visa); This does not apply, if the refusal of a visa
a family member of citizen of European Union
(b) the decision on refusal of entry); This does not apply in the case of refusal of entry
citizens of the European Union or his family member,
(c))
(d) the decision on the termination of the stay), if a foreigner before proceedings
of their stay on the territory or remained in the transit area
the international airport of unduly,
e) decision refusing the green card. Within 7 days from the date of delivery of the
the decision to bring an action against the decision on 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
16. As mentioned above, it is proposed to repeal the provisions of § 171
(a). and) of the Aliens Act, as amended by law No 427/2010 Sb.
The Constitutional Court examined first whether it is under the provisions of § 64 paragraph.
3 of Act No. 182/1993 Coll., on the Constitutional Court, as amended
Regulations (hereinafter as the "law on the Constitutional Court"), the plaintiff shall be entitled to
to submit such a proposal. According to the cited provisions of the proposal of the
repeal of the law or its individual provisions to submit also the
the Court in the context of its decision-making activities referred to in article 95, paragraph. 2
Of the Constitution. A prerequisite for locus standi of the Court is that, in proceedings for
It takes place, it must apply to the cancellation of the proposed provisions. This
the assumption here, as it is not populated in the control has the highest
the administrative court to use prescription as to the amendments made by law No.
427/2010 Sb. Fully applies here, as the Constitutional Court expressed in its resolution
SP. Zn. PL. TC 3/07 of 22 December. 8.2007 (available on the
http://nalus.usoud.cz/): "Although from the perspective of the claimant may act
about a change that is not fundamental, Constitutional Court for this ongoing process
the situation is not authorized to speak to the authoritatively constitutional conformity
the provisions of section 708 of the civil code, as amended following the amendment made by the
Act No. 107/2006 Coll., and even from the perspective of the views expressed by the constitutional
the Court in finding SP. zn. PL. ÚS 33/2000 of 10 November 2000. 1.2001 (N 5/21 SbNU
29; 78/2001 Coll.), respectively the views to this award presented in the
different opinions of the six judges of the Constitutional Court [see e.g. find
The Constitutional Court, SP. zn. PL. ÚS 75/04 of 13 February 2003. 6.2006 (N 119/41 SbNU
485; 452/2006 Sb.)]. To ensure that the Court could challenge the constitutionality of
any law or any part thereof, is necessary to its inevitable
in the text of the application to the case of the incident. However, in the case
the present case is not ". Because the answer to the předestřenou question of the parties
permission of the Court to submit such a proposal is negative (though it's Constitutional Court
aware that only the changed structure of the contested provisions and its contents
He stayed exactly the same), in this part of the proposal had to be assessed as filed
someone apparently unauthorized to do so and in accordance with the provisions of section 43, paragraph. 2 (a).
(b) the law on the Constitutional Court) it from the grounds set out in section 43, paragraph. 1 (a).
(c)) of the law No. 182/1993 Coll., on the Constitutional Court, as amended by Act No. 77/1998
Coll., refuse. Otherwise, apply the State power out of bounds
laid down by law (cf. Article 2, paragraph 3, and article 87, article 2 of the Constitution, paragraph 2
Of the Charter).
17. In case that the Constitutional Court could not on the unconstitutionality of the provisions
to decide, because its now valid texts is not the thing solved before
The Supreme Administrative Court, the plaintiff sought to pronounce applicable
the unconstitutionality of section 171, paragraph. 1 (a). and) of the Aliens Act, as amended by
until 31 December 2006. 12.2010. The Constitutional Court is to review the issue of options
the legislation, which expired validity, in its case-law has spoken
repeatedly. This option generally admitted in finding SP. zn. Pl. ÚS
33/2000 of 10 November 2000. 1.2001 (N 5/21 SbNU 29; 78/2001 Coll.), where
He stated that the "judge of the General Court is bound by the law when deciding
and assesses the compliance of another legal act of the law. However, if the
the conclusion that the law, which is to be used in solving the things (i.e. not
only valid at that time, but also in that time, the invalid, but still
applicable law), is in conflict with constitutional law, is obliged to
refer the matter to the Constitutional Court (article 95, paragraph 2, of the Constitution). From this
the provisions of the then Constitutional Court ruled its obligation on the proposal
decide. ". This rule later zpřesnily for example. the findings of the SP. zn. PL.
TC 42/03 of 28 February. 3.2006 (N 72/40 SbNU 703; 280/2006 Coll.) or SP. zn.
PL. ÚS 38/06 of 6. 2.2007 (N 23/44 SbNU 279; 84/2007 Coll.) so that
the constitutionality of a cancelled or amended law, the Constitutional Court shall review for
provided that the addressee of alleged reason of unconstitutionality is the public power,
and not the body of private law. In the now of things considered as to the exclusion
of judicial review, the addressee of alleged unconstitutionality is the State
too much. In this text by 31. 12.2010 was, respectively, to be contested
the provisions applied. Prerequisites for examination of the second part of the small print
they are therefore fulfilled.
18. Furthermore, the Constitutional Court within the meaning of the provisions of section 68, paragraph. 2 of law No.
182/1993 Coll., on the Constitutional Court, as amended by Act No. 48/2002 Coll.,
in the manner of acceptance and release of the Aliens Act or of law No.
427/2010 Coll., which was the relevant part of the Aliens Act
amended. From the expression of both participants, as well as the relevant Web
the site (www.psp.cz) shows that the Chamber of Deputies discussed as
print no. 204 Government draft law on the stay of foreigners on the territory of the Czech
Republic and on amendment to certain laws. The first reading took place on 8. 6.
1999, second day 13. 10. the 1999 and the third reading on 21. 10. in 1999, when he was
the draft law approved by the majority of the 177 members of the 179 present and
referred to the Senate. The it on your 11. meeting on 11 July. 11.1999 (resolution
No 179) returned by the lower Chamber with amendments, when from 66
present senators voted 59 to return, 1 against and 6
abstentions. The contested provisions of the amendments
were not related. 30 March. 11.1999 on their 43. a meeting of the Chamber of Deputies
Act on the proposal again and approved it in the version approved by the Senate
(resolution No. 605); for 171 of 172 votes of the members.
The President of the Republic signed the law March 14. 12.1999 and 23 February. 12.1999
the law was duly promulgated in the collection of laws. As print no. 70 then
The Chamber of Deputies discussed the Government Bill amending the
Act No. 326/1999 Coll., on stay of foreigners on the territory of the Czech Republic and the
amendment to certain acts, as amended, Act No. 325/1999
Coll., on asylum and on the amendment of Act No. 283/1991 Coll., on the police of the Czech
Republic, as amended, (asylum Act), as amended by
amended, and other related laws. The first reading was
21 June. 9.2010, the second of the day 29. 10.2010, and the third reading on 9. 11.2010,
When the Bill was approved by a majority of the members of the 169 104 present and
referred to the Senate. It on their 2. the meeting of 8 June. 12.2010 (resolution No.
25) returned the lower Chamber with amendments, when from the present 73
Senators voted 71 to return, and none were against. The contested
the provisions of the amendments were not related. 21 June. 12.2010 at their 11.
a meeting of the Chamber of Deputies discussed the proposal and approved it again in the
as adopted by the Chamber of Deputies (resolution No. 260); for vote
109 of 192 members, 9 voted against the proposal. The President of the
Republic Act signed on 23 June. 12.2010 and 30 October. 12.2010 was the law
duly promulgated in the collection of laws.
19. The Constitutional Court has stated that the reference law was adopted and published in the
the limits of the Constitution laid down the competence and the constitutionally prescribed way.
In the.
Your own review
20. The Constitutional Court has examined the proposal and the reasons given below, came to the
the conclusion that the contested provisions of the voicing of unconstitutionality of the law on
the aliens is not the reason.
21. First, it should be recalled that the Constitutional Court is the body protection
the constitutionality (article 83 of the Constitution.). In proceedings for the annulment of laws and other legal
legislation in the position of the so-called. the negative of the legislature and its task
is to consider the constitutionality of the contested legislation or their designated
parts, possibly to assess whether the contested provisions
to interpret and apply the constitutionally Conformal manner. The Constitutional Court
in doing so, is not entitled to assess the appropriateness, effectiveness, or doktrinární
the purity of the legal standards, as this competence is the responsibility of always
lawmakers.
22. The issue of deciding on the refusal of the visa, or
non-renewal of visas in relation to fundamental rights, the Constitutional Court in the
the past has already been dealt with in a number of cases. All his previous decision
It stands on the thesis that the visa (and also the extension of the period
the validity of the visa) is not a legal right. Therefore, there is no reason this decision
exempt from the reach of the rules excluded their judicial review. This
way gradually judikovaly all the boards of the Constitutional Court.
23. the constitutional complaints against a decision issued by the matters of
(not) grant (or not) the extension of the visa decisions the Constitutional Court in proceedings
concluded by resolutions SP. zn. II. the TC 33/11 (the complainant in this matter
He was the husband of Mrs. R.) of 21 April 2004. 4.2011, SP. zn. III. TC 2819/10 dated
5.1. 2011, SP. zn. III.-2909/09 of 18 April. 3.2010, SP. zn. I. ÚS
394/2006 of 8 December. 11.2006, SP. zn. I. ÚS 38/04 of 12 January. 7.2005, sp.
Zn. I. ÚS 17/04 of 15 January. 12.2004, SP. zn. I-65/04 of 15 January. 12.
2004, SP. zn. I. ÚS 417/04 of 27 June. 10.2004, SP. zn. III. TC 219/04
of 23 December 2003. 6.2004 (39/33 SbNU 591), SP. zn. III. TC 260/04 of 9 June.
6.2004, SP. zn. I-290/04 of 26 March. 5.2004 (34/33 SbNU 539)
SP. zn. IV. TC 85/04 of 13 February 2003. 5.2004, SP. zn. I. ÚS 602/03 of 6.
5.2004, SP. zn. III. the TC 99/04 of 29 June. 4.2004, SP. zn. II. THE TC
345/2000 of 19 June 2000. 12.2000; the resolution, as well as all the others in the
the award referred to the decision of the Constitutional Court are available on the
http://nalus.usoud.cz. All complaints rejected, saying that there is no
the subjective right to constitutionally guaranteed for foreigners to stay in the territory of the Czech
of the Republic. Each State can decide under what conditions
admit to stay on its territory. None of the rights enshrined in the
The Charter does not establish a claim of foreigners to stay in the territory of the Czech Republic.
The provisions of the article. 14 paragraph. 4 of the Charter guarantees the right of such citizens only
The Czech Republic (and now also the EU citizens), while other foreigners
they only have the right freely to leave the territory of the Czech Republic (article 14, paragraph 4,
Of the Charter). The same conclusion expressed by the Constitutional Court and in other similar
proceedings affecting the rights of aliens, in which review for more
category of decisions. It was at least the resolution sp.. II. THE TC
2336/10 of 16 April 2003. 11.2010, SP. zn. II.-2332/10 of 7 May 2002. 10.2010,
SP. zn. II.-2345/10 of 7 May 2002. 10.2010, SP. zn. I. ÚS 2318/10 dated
29.9. 2010, SP. zn. III.-2954/09 of 17 December. 12.2009, and in particular
find SP. zn. PL. ÚS 10/08 of 12 June. 5.2009 (N 115/53 SbNU 427;
229/2009 Coll.), paragraph 117: "the Constitutional Court has in the past clearly
comment the fact that the Charter provides only the right to judicial protection,
that the rule of law guarantees [find SP. zn. PL. ÚS 36/93 of 17 December. 5.
1994 (N 24/1 SbNU 175; 132/1994 Coll.), resolution SP. zn. IV. TC 85/04 of
day 13. 5.2004]. The Constitutional Court in its case-law has repeatedly said that the
the subjective right to constitutionally guaranteed for foreigners to stay in the territory of the Czech
the Republic does not exist, because it is a sovereign State, under what
(non-discriminatory) terms will admit the residence of aliens on its territory-On
Visa is not according to the explicit text of the law (legal claim provisions
§ 51 paragraph. 2 of the Aliens Act). None of the rights enshrined in the
The Charter does not establish a claim of foreigners to stay in the territory of the Czech Republic.
Such a right is given only to citizens of the Czech Republic (after the accession of the Czech
Republic to the European Union, whether or not the EU citizens), and this article. 14 paragraph. 4
Of the Charter, while paragraph 2 of the same article, which applies to other
foreigners, based only on their right freely to the territory of the Czech Republic
leave. ".
24. In relation to the judicial review of the decision on the refusal of the visa of the constitutional
the Court stated (see, in particular, already mentioned above, the resolution of the SP. zn. II. THE TC
33/11, SP. zn. III.-2909/09 or SP. zn. I-394/06) that "-protection
public subjective rights shall be effected under the conditions laid down
the law, however, applies, that certain public subjective rights
judicial protection is not granted; as the rules of Court of the administrative form
competency lockouts (section 70 of Act No. 150/2002 Coll., the administrative court rules)
and the special laws, identify some of the acts of the administrative authority ',
of the review in the administrative judiciary is excluded, and this is also in the
the case of the administrative decision, in which it was decided to refuse visas [§
paragraph 171. 1 (a). and) of the Aliens Act]. According to the article. paragraph 36. 2
The instrument must not be excluded from the jurisdiction of the Court of review
decisions concerning fundamental rights and freedoms under the Charter, but
of such a right in a given case,-".
25. Even twice already (see resolution SP. zn. I-394/06 and SP. zn. (I).
TC 602/03), the Constitutional Court dealt with an application for cancellation
provisions on exclusion associated with the constitutional competence of the complaints. He came to the
the conclusion that, given the views of the above rekapitulovaným cannot be inferred
the unconstitutionality of section 171, paragraph. 1 (a). and) of the Aliens Act.
26. Finding SP. zn. PL. ÚS 26/07 (see above), the Constitutional Court for conflict with
Article 36 paragraph. 2 of the Charter annulled the provisions of section 171, paragraph. 1 (a). (c))
of the Aliens Act, as amended by Act No. 161/2006 Coll., which
precludes judicial review of the decision on administrative expulsion, if
before starting the procedure for the expulsion of the alien resided on the territory of
or in the transit area of an international airport. In
the justification stated: "the Constitutional Court first dealt with the compliance
the contested provisions with article. paragraph 36. 2 of the Charter, according to which shall not be
excluded from the jurisdiction of the Court of review of a decision relating to the
fundamental rights and freedoms under the Charter. This right is formulated
in General, it is not limited to citizens of the Czech Republic. Therefore, if the Constitutional
the Court concluded that it is possible to intervene in the administrative removal
fundamental rights and freedoms of foreigners, it would be necessary to the contested provisions,
that excludes its judicial review, cancel. -As subjective
constitutionally guaranteed the right of foreigners to stay in the territory of the Czech Republic
There is, no doubt, the Charter guarantees the rights of foreigners, which may be
removal of prejudice. They are, for example, the right to life and prohibition of torture and the
cruel, inhuman or degrading treatment (article 6 and 7
Of the Charter), which protects foreigners against expulsion to a country where this his
rights have been compromised, or the right to protection against unauthorized
zasahováním to private and family life (article 10 (2)), which
expulsion may defend, if it has been affected by excessive
-no way the instrument does not differentiate between whether a foreigner
staying on the territory of the Czech Republic, legitimately or not,-".
27. Accordingly, with regard to access to the exclusion of the relevant decision of the
judicial review, yet judikoval and the Supreme Administrative Court. From the series
the decision can be noted as an example the judgment SP. zn. 2 As 87/2010
(URwww.nssoud.cz), according to which the statutory exclusion of judicial review
the decision on the refusal of a visa is based on the assumption that it does not
intervention into fundamental rights and freedoms. None of the articles of the Charter shall not constitute
claim (subjective) foreigners to stay in the territory of the Czech Republic,
because it is given only to its citizens (article 14 (4)). Also no
catalogue of internationally protected human rights, does not contain the right to foreigners
on the entry and residence in the territory of a foreign State; some international guarantees are
only in the cases culminating in the State of residence. The highest
Administrative Court nepřisvědčil the complainant, that the decision on the refusal of a visa
to stay over 90 days could cause interference with his right to life and to the
the right to family and private life, and that, therefore, this decision should be
subject to judicial review. The conditions for the substantive review of the action
the contested decision on the refusal of the visa, therefore, in the present case were not
made, since the complainant does not have a legal right to a visa. "The Lockout
the decision on the refusal of a visa of judicial review is not in conflict with
the constitutional order, the Supreme Administrative Court therefore did not find reason to
the submission of the proposal to the Constitutional Court for annulment of the provisions of the
of the Aliens Act ". Similarly, the legal sentence judgment SP. zn. 9 As
95/2008 (no 1955/2009 Sb. NSS) reads: "the refusal of entry to the territory of the Czech
Republic in the form of the decision on the refusal of a visa for a stay over 90 days
the purpose of employment represents the performance of the discretionary power of the State, and if in the
the present case is not the foreigners cannot be guaranteed judicial protection, it
be regarded as inconsistent with the article. paragraph 36. 2 of the Charter. Foreigners are constitutionally
the guaranteed right of entry and residence in the territory of the Czech Republic does not indicate, and
Therefore, the refusal of the visa cannot without further violate his right to
family life. " At the conclusion of this judgment, the Supreme Administrative
the Court found that "-with regard to future developments, in particular the community
the legislation does not exclude that it will be appropriate for the futuro is building
judicial lockout (and, in particular, its impacts) and search for new
solution. ". As to the nature of the visa decision, and their review of the
the courts also expressed in the judgment approved for publication, SP. zn. 2 As
29/2003 (no 224/2004 Coll., NSS).
28. According to the article. paragraph 36. 1 of the Charter, each can claim laid down
the procedure of its right to an independent and impartial court and in specified
cases with another authority. According to the article. paragraph 36. 2 of the Charter may be the one
who claim that their rights was truncated by a decision of the public authority
management, apply to the Court to review the legality of that decision,
unless the law otherwise. From the jurisdiction of the Court, however, may not be excluded
review of decisions concerning fundamental rights and freedoms referred to in
Of the Charter. According to the article. 4 of the Constitution are fundamental rights and freedoms under the protection of
the judicial power. In the same area of the article continues. 6 (1). 1 of the Convention
guaranteeing the right of everyone to his affair was a fair, publicly
and within a reasonable time by an independent and impartial tribunal
established by law, which shall decide on its civil rights or
commitments or the validity of any of the criminal charges against him.
The Constitutional Court of first instance notes that the cited article 36 paragraph. 2
The instruments (and, mutatis mutandis, also article 6, paragraph 1, of the Convention) represents a General
guarantee of the right to a fair trial, and therefore judicial review
the decision of the public authorities, but at the same time provides lawmakers
the space that the judicial review of the legality of a decision of a public authority
the law eliminated. Or in the form of the law, however, it is not possible to exclude the
review of decisions concerning fundamental rights and freedoms referred to in
Of the Charter.
29. The material for the decision on the application, then, is the answer to the question of whether the
the decision on the refusal of a visa may intervene in any of the basic
the rights or freedoms guaranteed by the Charter or constitutional order. For
the interpretation of the exclusion limits of competency that represents the subjective public
the right to judicial review of the decision of the public authority within the meaning of
the cited article of the Charter, and in their use must be examined his
the essence and the meaning of, and must not be diverted to purposes other than for the
which have been established. Cannot interpret them extensively, but
restrictively, in doubt about whether an act may be
subject to a review, or not, it is always necessary to adhere to the
the conclusion that it can be reviewed. Procedural law, moreover, does not have to ask
participants in the management of the obstacles, but it has to provide fair protection
their subjective rights [see find SP. zn. III.-2556/07 dated
22.7. 2009 (N 164/54 SbNU 93)].
30. As outlined above, the overview of relevant case law,
all the time the effectiveness of the Aliens Act is the decision-making practice
The Constitutional Court and the Supreme Administrative Court settled on that from the
The instrument or from the international treaties on human rights does not imply the foreigners
the right of residence on the territory of the Czech Republic. They do not therefore entitled to
granting refugee visas. In that finding, SP. zn. PL. ÚS 26/07 (see
the above), the Constitutional Court ruled that the Charter guarantees foreigners the right to
which can be hit by a decision on administrative expulsion. It even
finding the appropriate competency statement jamming this lockout. Compared to the stuff now
Here, however, is considered a crucial difference corresponding to the divergence of the two
types of control. The material is the difference between the consequences of the decision on the
administrative expulsion and the consequences of the decision to refuse residence
the permissions that are in the case of administrative expulsion steeper. While
in the case of administrative expulsion, it is about their stay of an alien in
the territory, which is associated with the fixing of the time and the time he leaves the territory,
You cannot allow foreigners to enter the territory (article 118, paragraph 1, of the law on
the stay of aliens, as amended by later regulations), not residential
permission (Visa, including visas for tolerating) the consequences of such a prima facie
It does not have. A forced departure, which could be linked to a violation of the
fundamental rights and freedoms of foreigners, happening on the basis of the decision of the
administrative expulsion is subject to judicial review, and that the effect of the award
SP. zn. PL. ÚS 26/07 (see above) without the restrictions of a criterion of eligibility
the stay. A direct result of the refusal of a visa is not forced to return to the
the home State, and with it the risk of ill-treatment or injury
Home State. To draw up the decision on administrative expulsion. Without
the release of this decision cannot be alien to the home State.
If it is so decided in the future, the foreigner has access to judicial
protection by means of an action against a decision on administrative expulsion.
Action brought against the decision of expulsion of foreigners has also-with the exception of
the expulsion because of a threat to State security-the suspensory effect on the
the enforcement of decisions (article 172, paragraph 3, of the Aliens Act, in
amended by Act No. 161/2006 Coll.). The applicant can agree that the management
on administrative expulsion and the procedure for granting visas are proceeding with various
the subject and in the management of administrative expulsion will be primarily
review the reasons for the refusal of a visa. Of the Act on residence of aliens in
as amended, it does not follow, however, (particularly to the provisions of section 171 and
172) that the claimant was somehow limited to the objections of the parties circumstances
the refusal of the visa, and i found the fault in the refusal of the administrative authority
Visa, the applicant can establish procedural success.
31. It is true that leaving the territory may be an indirect consequence of the decision of the
on the refusal of the visa, because the foreigner does not have a title, on the basis of which the
would have stayed here, and the obligation to leave the territory therefore follows directly from the diction
itself of the Aliens Act, as amended,
(the provisions of section 17 and 65 and the other). But what has been said above,
so that from the side of state coercion occurs, leave the territory up to as a result of
the issue of a decision on administrative expulsion. For a comprehensive view of the relationship
the alien and the State or to defend the alien administration options
the procedure of the State, it is essential that the final act that is actually real
qualified-as already mentioned, the Constitutional Court has repeatedly ruled in the award-
hit some right from the category of fundamental rights, may be
to submit to an inspection by an independent court. Although not all the steps
State power, but the key Yes. In the plane of these considerations, it seems as
adequate and sufficient, if the proceedings in the plane
administrative. Such procedural edit does not necessarily mean an unacceptable
the concentration of power in the Ministry of the Interior, or the organizational part. In
finding SP. zn. PL. ÚS 11/2000 (see above), the Constitutional Court stated that:
"The current legislation had, in effect, means that in the process of
implementation of security screening there is a considerable concentration of power at the
a single executive authority, and his decision may significantly
intervene in individual sphere of the person in question. The authority conducting the
security clearance, whose task is to verify the conditions for the issue of
certificate-and that, therefore, in this respect, the service implements ' State
and clearly represents its interests-at the same time, decide on
the issue of an administrative decision and appeal against it. For
the situation, when there is a review of the independent and impartial authority, is
cleared person practically subjected to the will of a single institution, which already
from the nature of things cannot be considered independent or impartial. -It is therefore
the obvious, that the contested legislation (i.e., section 73, paragraph 2, of Act No. 148/1998
SB.) in principle, contradicts the meaning of the article itself. paragraph 36. 2 of the Charter ". In
examined the issues of law that referred to
conclusion-the lack of review of the intervention to the individual sphere of independent and
impartial body-in a comprehensive perspective on the management of the met. Above the
the framework can deliver that, starting from 1. 1.2011 was a review of the administrative
the decision on the refusal of a visa has been entrusted to the Commission for decision making in matters
the stay of aliens. This is part of the Ministry of the Minister's organizational and
the Interior is appointed and dismissed by the President and the other members of the Commission (§ 170a paragraph.
1 and 3, of the Aliens Act, as amended by law No 427/2010 Sb.)
its members are in their decision making in the Ministry of the independent
(paragraph 9 of the same provisions). Independence of decision making is strengthened and
the organizational arrangement of the Commission; the Act and decides on the three-Member
Chambers, with most members of the Senate must be experts, who are not
enrolled in the Ministry (section 170b of the Aliens Act, as amended by
Law No 427/2010 Sb.).
32. As regards the argument that the decision on the refusal of a visa can lead to
violations of the rights guaranteed by article. 10, paragraph 1. 2 of the Charter, as if the
the alien on the territory of the longer period of time, can you create a family bond, you can
also follow up on the above. In private and family life can
in fact, the decision to intervene immediately, leading to the forced
leaving the country, which only created links cutting across. The refusal
Visa does not have this effect. It is also a testament to the underlying case, Mrs. r.,
which arrived on the territory of the Czech Republic at the beginning of 2007, and since then
It was time for the applications repeatedly decided to refuse the visa.
Yet there still is staying, and therefore a negative decision on its private
bonds created did not affect.
33. specific control of constitutionality of provisions of the rule covers
code used in a particular procedure, in the review, however, the Constitutional Court
deals with its general impact on legal relations in addition, without limitation,
the underlying case. But of course you can, although in General
the context of the provisions do not appear to be-institutional, its defect. In
the underlying case, Mrs. r. found nothing of the sort. On the contrary, description
her case, and the enumeration of the proceedings that took place within it, demonstrates that
the guarantee provided by its rights are sufficiently effective. The validity of the
the last visa issued for the purpose of prolonging the ended on June 29. 2.2008. And
It is, moreover, a visa for the purpose of prolonging the a only an additional
the Institute, which is to be used as a general rule, it is guaranteed to persons
short term barriers to travel to the country of origin (see § 33 paragraph.
1 of the Aliens Act, as amended; explanatory memorandum
the report has identified such obstacles příkladmo long-term draw on the
bed or waiting for transport). Nevertheless, appointed in the Czech
Republic still resides and is attempting to legalize their stay on the way
range of institutes offered her a of the Aliens Act or the Act on
asylum. All these applications are relevant to the proceedings. The management of the
administrative expulsion was in the very beginning due to the opinion of the
The Ministry of the Interior about the inability to travel due to security
the situation in the home country. There is therefore nothing to indicate that the
set the model has failed and that it would be in the underlying case was already in the phase of
the previous management of administrative expulsion without prejudice to fundamental rights
foreign women. The Constitutional Court therefore concludes that the traktovaném have not yet concluded, according to the
which in the case of a decision on the refusal of the visa cannot occur to the
fundamental rights and freedoms. It is therefore within the competence of the legislature of this
exclude from the proceedings of the Court of review, without getting into conflict
with the diction of article. paragraph 36. 2 of the Charter.
34. Also could not be entirely disregarded the fact that the voicing
neústavnosti the contested provisions would come on visas not granted
foreigners applying for them abroad, a decision but not the
eligible to hit the fundamental rights of aliens, nor the opinion of the appellant.
35. The reasons led the Constitutional Court to the conclusion that the proposal should be in accordance with
section 70 paragraph. 2 of the law on the Constitutional Court to reject.
36. the oral procedure 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:
in the z.. Holländer in r.
Vice-Chairman of the
Different opinion, pursuant to section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, the decision of the plenum of the judge Miloslav
Excellent.
