466/Sb.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court ruled under SP. zn. PL. ÚS 41/November 10, 17. September 2013 in plenary
consisting of Chairman Paul Rychetského and Stanislav Bumpkin
(Judge-Rapporteur), Louis David, Jaroslav Fenyka, Jan Filip,
Vlasta Formánkové, Ivana Janů, Vladimir Crust, Jan Jiří Musil,
Nykodýma, Catherine Šimáčkové, Milady Tomková, and Michaela Židlické on
the design of the Supreme Administrative Court lodged pursuant to article 4(1). 95 para. 2 of the Constitution
The United States to declare the unconstitutionality of § 32 para. 2
(a). c) of Act No. 325/1999 Coll., on asylum and on the amendment of Act No. 283/1991
Coll., on the police of the Czech Republic (asylum Act), as amended
legislation, with the participation of the Chamber of deputies of the Parliament of the United Kingdom and
Senate of the Parliament of the Czech Republic as the parties,
as follows:
The provisions of § 32 para. 2 (a). c) of Act No. 325/1999 Coll., on asylum, in
the version in force until 31 December 2006. 12.2011, would be contrary to the constitutional order.
Justification:
(I).
The definition of things and a recap of the proposal
1. The Constitutional Court was on 23. 8.2010 served the Senate 7 Azs
The Supreme Administrative Court (hereinafter "the applicant"), on the abolition of
the provisions of § 32 para. 2 (a). c) of Act No. 325/1999 Coll., on asylum, (hereinafter referred to
also the law on asylum "), [if the valid name of the law" on asylum and on the
Amendment of the Act No. 283/1991 Coll., on the police of the Czech Republic, as amended by
amended], hereinafter ' the contested provisions '. The appellant this
the proposal filed in connection with its decision-making activities on
the basis of the article. 95 para. 2 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution")
came to the conclusion that the contested provision is in conflict with the constitutional
policy.
2. the application for annulment of the contested provision was filed in connection with the
decision the claimant's appeal from the complainant and the complaint. B. L. B.
S., filed against resolutions of the regional court in Prague from June 10. 6.2009,
No. 46 Az 27/2009-10, which was rejected for tardiness, according to
the provisions of § 46 para. 1 (b). (b)) code of civil procedure of administrative ("with.
with. ") the complainant's action against the decision of the Ministry
the Home Office, Department for asylum and migration policy, of 10 June 1999. 4.2009, c. j.
OAM-107/LE-05-05-2009, in which it was decided that the request of a. B. L. B. S.
international protection is inadmissible pursuant to section 10a (e).
(e)) of the asylum Act, as well as the procedures for granting international protection
terminated under the provisions of section 25 (b). I) of the same regulation and was
found that bringing an action does not have suspensory effect within the meaning of § 32
paragraph. 3 of the law on asylum.
3. in the preamble to its resolution to the regional court in Prague came from the fact that
the Board decision was delivered to the complainant on 29. 4.2009, and that the
the claim was forwarded to the post on 11 July. 5.2009, following
the expiry of the statutory seven-day deadline for its submission. In cassation complaints
the complainant in particular pointed out that the reason for delay in bringing an action
his complex personal situation related to other procedures
against the complainant were held and long-lasting fear of returning to
his country, which had an adverse effect on his mental state. Therefore, the action
filed within the time limit referred to in the provisions of § 40 paragraph 2. 5. r. s. and only from the
because of the language barrier and the lack of an explanation of the legislation
The United States lodged an application for relief to be administered
of the action. The complainant further noted that currently is placed in the
Plzeň-Bory prison, where he was served with a letter from Austria, where
unknown sender threatening him for his sexual orientation. In the case of
the return to their homeland according to his words, there is a risk of the real risk of serious harm,
consisting mainly in serious or life-threatening human
dignity. They are so fulfilled the legal conditions for the grant of international
protection, at least the additional protection referred to in Article 14a
the asylum Act. With regard to the ongoing threats is therefore an extraordinary
interest in the hearing of the case of the regional court, while this option was
deprived of the contested resolution.
4. The Supreme Administrative Court in the application for annulment of the contested provisions in the
the preliminary hearing of the case considered, first, whether, in the present case cannot be
the provisions of § 32 para. 2 (a). (c)) of the asylum Act, together with the
the relevant provisions of s. l. p., unload the constitutionally conformally to
the complainant was not truncated on their right to judicial protection as a result of
an unreasonably short period of 7 days to bring an action against that decision.
After he came to the impossibility of such an interpretation, proceedings on appeal
the complaint and the matter before the Constitutional Court, considering that the
the contested provisions of the asylum Act is in conflict with the constitutional order,
specifically, article. paragraph 36. 2 of the Charter of fundamental rights and freedoms (hereinafter also
"The Charter") and article. 13 to the Convention for the protection of human rights and fundamental freedoms.
5. the applicant first of all emphasized that the protection granted to
unsuccessful applicants within the meaning of the provisions of § 32 para. 2 (a). (c)) of the Act
on asylum considered so ineffective that the right guaranteed by article. 36
paragraph. 2 of the Charter granted to them is "basically iluzorně". This is the case
Apparently, therefore, that this provision merely lays down the seven-day deadline for filing
of the action. The Supreme Administrative Court is aware of the fact that such
the period when it was in itself an abstract assessment may not seem like a
constitutionally-conformist, however legal standard and its constitutionality, however, according to the
the claimant cannot be considered in isolation but in the context of the standards
connecting to it. For this reason, it is in its view should be stressed
procedural and social context, in which the time-limit set.
Conclusion on the seven-day deadline to submit neústavnosti action in matters of
referred to in the provisions of § 32 para. 2 (a). (c)) the asylum Act can therefore be
make up to the evaluation of the other working circumstances in a contextually
which cannot be left aside a specific life situation, in which
most of the applicants for international protection.
6. the appellant further stated that the proceedings in the matters of international protection
the principle of concentration strictly controlled conceived, and in particular the requirement to
the formulation of the law on the points made by the applicants, that is,. on their own quality
page action, within the period of 7 days does not seem appropriate, since the existence of
Thus the concentration of proceedings is strictly conceived differently in the administrative
the judiciary is offset by the General two-month deadline to bring an action
against the decision of the administrative authority (article 72, paragraph 1, with the row s.). The rule of thumb is
According to the applicant that the applicant challenges the decision of the appeal to
administrative authority and that, therefore, already passed the dvojinstančním administrative proceedings.
Asylum Act, however, called the system extends into such special
by modifying the jednoinstančního proceedings on the application for international protection and
provides significantly shorter time limits for bringing actions against the decisions of the
the listed applications. These special period in combination with General arrangements
proceedings in the administrative justice system lead by the Supreme Administrative Court in
the final effect is to limit the right to judicial protection.
7. the Principle is then according to the applicant should be aware that they
standing in the vast majority of cases applicants for international protection
are located. This is usually for a person without the knowledge, or with only the
minimum knowledge of Czech language and Czech cultural and legal
environment, without orientation in the environment and circumstances of the United States, without
any background and contacts, that are fully dependent on external
assistance. The formal requirements for filing lawsuits in matters of international
protection for these people are not easily achievable. Accede to the
These difficulties, even a seven-day time limit for bringing an action against the administrative
the decision, in fact, necessarily has been reduced by at least two other non-working days
at the weekend, in which then the applicant must bring an action, this situation creates a
It already excessive pressure. In such a short time is in the opinion of the Supreme
Administrative Court for these individuals are very difficult, if not impossible, the action
qualified to handle and report by the statutory deadline for the relevant regional
the Court. Moreover, they often have to rely on themselves, in the best case on the
help either non-governmental organisations (which option, however, are far from
Unlimited), or designated representatives of ex officio. The applicant's response to this
for a short period then either the submission of blanketové action in order to capture
the statutory period, which is associated with the expectations of the invitation to tween
argument, or even bringing the proceedings after the expiry of the statutory period 7
days from the date of receipt of the decision of the Ministry of the Interior. The consequences of those
factors "are in many cases fatal".
8. The Supreme Administrative Court in the application for annulment of the contested provisions
It also deals with the reasons which led the legislature to reduce the originally
30-day period on the seven-day period, made by law No. 2/2002
SB. with effect from 1 January. 1.2003, with analysis of the explanatory memorandum to the
novelizujícímu prescription deduced that the motive of the introduction of the restrictive
This adjustment was the acceleration of the asylum procedure in cases where the applicant
clearly does not meet the conditions, the financial and security reasons, and
then i need to respond to a significant increase in the number of applicants for
international protection, raising concern of flooding the institutions concerned.
The appellant, however, is convinced that the asylum procedure cannot accelerate
at the expense of the procedural rights of the parties. To shorten the time limit according to him is not even
the reason of special interest, as is the case for example when judicial review of things
election. The reason for shortening the certainly cannot be the financial aspects and
also, the applicant cannot generally be perceived as a security threat. In this
the continuity of the Supreme Administrative Court said that in addition, since 2001
occurs systematically drop in the number of applicants and the current situation is
comparable to that in the early 1990s. If the legislature
Choose the path of the review referred to the decision in the row, in which the
defend the rights and interests to a large extent dependent on the activity of the participant in the
the time of the bringing of the action, then by the conviction of the applicant "cannot
at the same time relieve the possibility to defend their rights effectively by setting short
the time limit for bringing an action ". The seven-day period does not give the applicant the granting
international protection of the real possibility to leave to undergo judicial
the control of administrative decisions on the granting of international management
protection stopped due to the inadmissibility of the application for international
the protection. This period therefore constitutes a restriction of the right to judicial protection,
to which there is no legitimate reason, and that is not in the Democratic
society is essential.
9. the applicant has marked as essential then the fact that the Constitutional Court
already expressed the nature of the seven-day deadline to submit the administrative action against
decision of the Ministry of the Interior, in which the application for the granting of international
protection is dismissed as manifestly unfounded, and in the award of 1 February. 12.2009,
SP. zn. PL. ÚS 17/09, which set aside the provisions of § 32 para. 2 (a). and)
the asylum Act the date of publication of the finding in the journal of laws. With regard to the
This fact is not according to the Supreme Administrative Court or from any other reason
for the continued existence of the seven-day time limit for bringing an action against a decision
administrative procedure which was stopped because of the inadmissibility of the application for
the granting of international protection, since the procedural problems and its
no constitutional difficulty are absolutely identical.
10. At the conclusion of its proposal, the Supreme Administrative Court proposed that the constitutional
the Court, the contested provisions of the asylum Act set aside.
11. the applicant from non-delivery 4. 9.2013, sua sponte, prima vista
changed its proposal, petit that now demands that the Constitutional Court
the provisions of § 32 para. 2 (a). (c)) of the asylum Act, as amended by
effective 31 December 1998. 12.2011 was unconstitutional, or not in accordance with the constitutional
policy, with the result that the Supreme Administrative Court's reasoning for these
the purpose remains otherwise unchanged.
II.
The progress of the proceedings and the expression of the parties ' recap
12. in accordance with section 69 of Act No. 182/1993 Coll., on the Constitutional Court, as amended by
amended (hereinafter referred to as the "law on the Constitutional Court"), has called on the constitutional
Court of the Chamber of deputies of the Parliament of the Czech Republic (hereinafter referred to as
"Chamber of Deputies") and the Senate of the Parliament of the Czech Republic (hereinafter referred to as
"The Chamber"), to comment on the proposal.
13. The Chamber of deputies in its observations of 24 April. 5, 2013.
through its Chair, Miroslava Nemcova described the legislative
the history of the adoption of the law on asylum and added that the contested provision was
the amendment twice, Act No. 165/2006 Coll. and Act No.
379/2007 Coll., when these amendments did not have a more pronounced effect on the sense of
the contested provisions, and in all cases it was the Government
the draft law. The Chamber of deputies also noted that the contested
provision was repealed by Act No. 303/2007 Coll., amending Act
No. 150/2002 Coll., the administrative court rules, as amended, and
some other laws, with effect from 1 January. 1.2012. Finding your
observations then gave way to the hearing and the adoption of law No.
303/2011 Sb.
14. The Senate in its statement of 23 May 1995. 5.2012 through its
President Milan Štěcha also focused on the genesis of the contested legislation
the provisions, in particular with regard to the consideration of bills
the contested provision related to the Senate. The Senate pointed out
that, when discussing the draft law no 350/2005 Coll., which was
the contested provision into the law on asylum in the first place, the question remained
the insufficiency of the time-limits for bringing an action on the ground that the proceedings were
stopped as inadmissible the application for asylum, excluding attention
The Senate. In conclusion, the Chamber noted that when discussing the amendment of the asylum
Act No. 303/2006, in which the main subject of the design innovation
Code of civil procedure, Administrative Chamber on 4 December 2002. 8.2011 unreservedly with the
full cancellation "short version of the time-limits for bringing an action in all
prescribed reasons ", while cancelling all § 32 para. 2 of the law on
asylum has been explicitly justified (motivated) legislative respect for
Constitutional Court SP. zn. PL. ÚS 17/09 of 14 July 2004. 1.2010.
15. the Constitutional Court to annul the contested provisions of the Government or
to the Ombudsman within the meaning of § 69 para. 2 and 3 of the law on the constitutional
Court not accept, because these provisions with respect to the commencement of the
control, and is not covered by the nature of things on the proceedings initiated before the acquisition
the effectiveness of law no 404/2012 Coll., which was the law on the constitutional
the Court is inserted, i.e.. 1. 1.2013 (see section 3 of the notice of the Constitutional Court
published in the collection of laws under no. 469/2009 Sb.).
16. The Constitutional Court to hear the case, an oral hearing, as ordered by
This meeting-and with regard to the representation of all the parties-
He did not expect further clarification of the matter (section 44 of the Act on the Constitutional Court; item 1
communication from the Constitutional Court, published in the collection of laws under no. 469/2012
SB.).
III.
The diction of the contested provisions and its genesis
17. the contested provisions of the asylum Act was inserted by article 1(1).
(I) section 24 of Act No 350/2005 Coll., amending Act No. 325/1999 Coll.
on asylum and on the amendment of Act No. 283/1991 Coll., on the police of the Czech Republic, in the
as amended, (asylum Act), as amended
regulations, and some other laws, such as the new provisions of § 32 para. 2
(a). (d)) the asylum Act and sound:
"§ 32
(2) within 7 days from the date of notification of the decision to bring an action against the
decision on the application for asylum
(d)) by which the asylum procedure was stopped due to inadmissibility
requests for asylum. "
18. Law No. 165/2006 Coll., amending Act No. 325/1999 Coll., on the
asylum and amending Act No. 283/1991 Coll., on the police of the Czech Republic, in the
as amended, (asylum Act), as amended
regulations, and some other laws, it was with effect from 1. 9.2006, words
"asylum" in § 32 para. 2 (a). (d)) the asylum Act replaced by the words
"international protection" (cf. article. (I) section 15 of law No. 165/2006
Coll.), the contested provision newly sounded as follows:
"§ 32
(2) within 7 days from the date of notification of the decision to bring an action against the
the decision on the application for international protection
(d)) which was the procedure for granting international protection, stopped due to
the inadmissibility of the application for international protection. "
19. Act No. 379/2007 Coll., amending Act No. 326/1999 Coll., on the
the stay of aliens in the territory of the Czech Republic and amending certain acts, in
as amended, Act No. 325/1999 Coll., on asylum and on changing the
Act No. 283/1991 Coll., on the police of the Czech Republic, as amended
Regulations (asylum Act), as amended, and some
other laws, there is a legislatively-technical amendment of the contested
the provisions in that direction, that with effect from 21. 12.2007 cancelled
the provisions of § 32 para. 2 (a). (b)) the asylum Act, saying that the existing
subparagraph (d)) has been newly identified as the letter c), while his diction, no
In contrast to changes (cf. article. (III) paragraph 28 of Act No. 379/2007 Sb.).
20. Act No. 303/2006 was abolished from 1. 1. the provisions of section 2012
32 para. 2 asylum Act repealed (cf. article. In section 1 of Act No. 303/2011
SB.).
IV.
Locus standi of the applicant
21. According to the article. 95 para. 2 of the Constitution, if the Court concluded that the law,
to be used in solving the case, is in contradiction with the constitutional order,
refer the matter to the Constitutional Court. This permission is also given
also in § 64 para. 3 of the law on the Constitutional Court, and the condition
discussion on merits of such a proposal is the fulfillment of the diction of the article. 95 para. 2
The Constitution, in the sense that it must be about the law, which has solution
stuff used, IE. Act or its provisions it is proposed to
the withdrawal, to be directly applied by the applicant to address a specific
the dispute. The Constitutional Court found this condition, because the application
the contested provisions of the plaintiff, in the review of the legal assessment
that case appears to be the inevitable, as is clear from the above that were made
recap of the proceedings conducted before general courts. At the same time it is apparent from this
I conclude that the appellant has, therefore, to use when making decisions about submitted
the appeal, that the contested provision is no longer valid.
22. The Constitutional Court has yet to issue options review
the rules, which are no longer valid (§ 66 and section 67 of the Act on the Constitutional Court,
on the Constitutional Court, as amended by Act No. 48/2002 Coll.), in its case law
repeatedly expressed. In General, this possibility is admitted in the award of 10 June 1999.
1.2001, SP. zn. PL. ÚS 33/2000 (N 5/21 SbNU 29; 78/2001 Coll.), where
the Court held that "a judge of the General Court is bound by the law when making decisions
and assess the consistency of other legislation with the law. However, if the
the conclusion that the law to be applied in solving the things (that is, not
only valid at that time, but also in that time, no longer valid, but still
applicable law), is in conflict with the 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 drew its obligation on the proposal
decide. ". This rule later decisions issued under the zpřesnila sp.
Zn. PL. ÚS 42/03 of 28 June. 3.2006 (N 72/40 SbNU 703; 280/2006 Coll.)
SP. zn. PL. ÚS 38/06 of 6. 2.2007 (N 23/44 SbNU 279; 84/2007 Coll.)
SP. zn. PL. ÚS 14/09 of 25 March. 10.2011 (N 184/63 SbNU 117; 22/2012
Coll.), resolution SP. zn. PL. ÚS 1/10 of 9 February. 2.2011 (SbNU
unpublished, available at http://nalus.usoud.cz) or SP. zn. Pl. ÚS
23/11 of 24 July 2003. 4.2012 (N 86/65 SbNU 161; 234/2012 Coll.) so that
the constitutionality of the cancelled or amended the law in Constitutional Court shall examine the
provided that the addressee of the tempered reason of unconstitutionality is the public power,
and not a body governed by private law. In the case of vertical relationships (between
the individual and the State) it is necessary to give priority to the protection of fundamental rights
before the legal certainty and confidence in law; in the case of those relationships put
The Constitutional Court thus found that the vote of neústavnosti will have an impact on the
rights based on such neústavního legislation.
In the.
Review of the procedure of adoption of the contested provisions
23. The Constitutional Court, how he stores provisions of § 68 para. 2 of the law on
The Constitutional Court then examined whether the law no 350/2005 Coll., which
the asylum Act was inserted in the contested provision, adopted within the limits of
The Constitution laid down the competence and constitutionally prescribed manner; came out
in so doing, of the cited stenozáznamů available on the website
website of the Chamber of Deputies (URwww.psp.cz), as well as of the
the expression of both chambers of the Czech Parliament.
24. Of the above materials, the Constitutional Court found that the law no 350/2005
SB. presented by the Government of (print No 882/0) was adopted by the
the House at 45. meeting of 24 April 2001. 6.2005 in third reading in a vote taken.
# 352, with 168 of the present deputies voted 125 design
members of Parliament voted against 3 MEPs.
25. The Chamber of Deputies referred the 12 October. 7. the 2005 Senate Bill
as printing 108/0. The Bill was approved on a 7. a meeting of the Senate on 5 July 2004.
8.2005 as amended by the Chamber of Deputies, when transferred from voting
sequence. # 171 of 58 senators present voted for the approval of 44
Senators voted 5 senators.
26. On 16. 8.2005 a law was delivered to the President of the Republic; one day it
25.8. 2005. On 13 November. 9.2005 was promulgated in the amount of 122
The collection of laws under no. 350/2005 Sb.
27. The Constitutional Court therefore concluded that the law no 350/2005 Sb.
adopted and published within the limits of constitutionally established competence and constitutionally
in the prescribed manner. At the same time, the Constitutional Court did not address the constitutional
konformitou the legislative process in the case of the novelizujících of laws (No.
165/2006 Coll. and no 379/2007 Coll.), as these amendments are the nature and
the meaning of the contested provisions did not impact in any way, if in the first case
It's all about the replacement of the concept of asylum in a similar concept of international content
protection and in the second case it is a legislatively-technical
change in § 32 para. 2 the specified sequence of conditions under which an action can be
against the decision of the Ministry of the Interior in case of international protection.
Vi.
The substance of the design review
28. The Constitutional Court considered the argument of the applicant and concluded that the
the proposal is justified.
29. With regard to the assessment of the conformity of the contested provision is constitutional
significant, above all the fact that the Constitutional Court has already assessed the constitutionality of
the seven-day time limit for bringing an action against the decision of the Ministry of the Interior
in the case of international protection, in respect of applications denied, as
manifestly unfounded pursuant to § 32 para. 2 (a). and) the asylum Act effective to
13.1. 2010. The Constitutional Court in here already cited finding SP. zn. Pl. ÚS
17/09 from day 1. 12.2009 [No. 9/2010 Sb.; N 250/55 415 SbNU] set aside on
the design of the same applicant at other things provisions of § 32
paragraph. 2 (a). and) on the grounds that-among other things-of the provisions under consideration
the asylum Act restricts the right of the applicant to seek in court to protect their
rights by setting unreasonably short time limits for bringing an action, and so on
its essence is shaped the legal protection only illusory, which is in the
contrary to article 36 paragraph 1. 2 of the Charter.
30. In terms of supporting argumentačních reasons, the Constitutional Court in particular
He pointed out that the contested the claim deadline cannot as such be
each other unconstitutional, its unconstitutionality may, however, show only after
evaluate other contextually operating circumstances for which the Constitutional
the Court described the particular principles of the controlling administrative, and judicial
the principle of the disposition and the principle of concentration control, which, in conjunction with the
for a short period to an applicant for international protection option
implement judicial review considerably difficult and in some cases
even make it impossible, and also cannot ignore the specific life
a situation in which the majority of applicants for international protection lies,
an analysis of the conclusions of the Constitutional Court in the grounds of its decision, the closer
divorced.
31. Now form the subject of a review of the question of the adequacy of the seven-day deadline for the
bringing an action against the decision of the Ministry of the Interior, which the proceedings were
on the granting of international protection, stopped due to the inadmissibility of the application
for international protection. The Constitutional Court in this connection
in the context of this case must be found that between the situation where the
application for the grant of such protection is rejected as manifestly unfounded, and
situations where there is a procedure for granting such protection stopped for
inadmissibility of the application, not in terms of the criteria applicable to
the adequacy of the period, no difference, since the contested provision was
shaped the judicial protection also illusory, if not cases
the inadmissibility of the application for international protection cannot per se
eliminate interference with constitutionally protected rights and freedoms of the potential
of the applicants. In these circumstances, therefore, there is no sensible reason why
should the Constitutional Court to assess the reasonableness of the seven-day time limit for bringing an action
against the decision of the Ministry of the Interior, which has been the procedure for granting
international protection, stopped due to the inadmissibility of the application for an
international protection, otherwise. The Constitutional Court does not consider it necessary to again
to recap in detail the reasons that led to the adoption of the award SP. zn.
PL. ÚS 17/09 (declared under no. 9/2010 Sb.) and give it
binding legal opinions, and thus to them completely referenced.
32. Having regard to all of the above reasons, the Constitutional Court upheld the design and
reasonable application of section 70 of Act No. 182/1993 Coll., on the Constitutional Court, in
amended by Act No. 48/2002 Coll., proceeded to give the unconstitutionality
the provisions of § 32 para. 2 (a). c) of Act No. 325/1999 Coll., on asylum, in
the version in force until 31 December 2006. 12.2011.
The President of the Constitutional Court:
JUDr. Rychetský, v. r.
