232/2000 Sb.
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court ruled June 27. June 2000 in plenary on the proposal to repeal
part of the provisions of section 250 h of paragraph 1. 1 sentence for a semicolon to Act No 99/1963
Coll., the civil procedure code, as amended, as follows:
The proposal is rejected.
Justification
The complainant r. k. handed the constitutional complaint against the judgment of the municipal court
in Prague, from 6. 11.1998 No. 28 Ca 378/97-54, which was rejected by his
the action against the decision of the Director of the security information service, which
He was discharged from the service. Along with constitutional complaints filed
proposal to repeal part of the provisions of section 250 h of paragraph 1. 1 sentence for a semicolon
Code of civil procedure (hereinafter referred to as "o.s.ř.") expressed in words ";
It may just within the time limit under section 250b ".
The Fourth Chamber of the Constitutional Court by a resolution of the 19. 5.1999, SP. zn. IV. THE TC
146/99 of the proceedings on constitutional complaints said, when he came to the conclusion that the
part of the provision, the constitutionality of which was, together with the filing of a constitutional complaint
attacked, was applied in the proceedings.
In the grounds of the contested judgment, it is stated that if the
the plaintiff (complainant) after the expiry of two months after the filing of the application and putting
pleas in law (§ 250b 1 o.s.ř.) said a new yet neuplatněnou
the statement of claim, i.e.,. in his case, has not been observed propadná
the two-month period for the subjective decision about dismissal of staff
the ratio provided for in § 40 paragraph. 3 of Act No. 154/1994 Coll. on Safety
the information service cannot be taken to the opposition for the expiry of the
the two-month period.
By navrhovatelova view the contested provisions, or part thereof in the
contrary to the article. paragraph 37. 3 of the Charter of fundamental rights and freedoms (hereinafter referred to as
"The Charter"), which enshrines the principle of the equality of participants in court proceedings.
The appellant stated that the proceedings before the Administrative Court is the management review
and builds on the Management Board. The defendant is the administrative authority which issued the
the contested decision. To initiate proceedings before the Court have the administrative authorities
the parent position. The filing of an administrative authority as the defendant of its
the parent position which had throughout the administrative procedure,
loses. Formally have the participants in the proceedings before the Court of equal
the position, according to the opinion, however, the navrhovatelova actually just formally. The part of the
the provisions of section 250 h of paragraph 1. 1 sentence for a semicolon o.s.ř. infringes the principle of
the equality of participants in the material sense quite clearly. This
the provisions, which is the subject of a proposal that represents the restrictions only for
one party to the proceedings, and that for the applicant. In accordance with the provisions of section 249
paragraph. 2 o.s.ř. action must contain, in addition to the General requirements
reference to the decision of the administrative authority, which challenges the definition of the extent to which
the scope of this decision, the grounds, i.e.. in what the applicant
the illegality of the decision of the administrative authority sees and what the final proposal
makes. According to the provisions of section 250 h of paragraph 1. 1 o.s.ř. the plaintiff may range attack
the decision to limit to the decision by the Court, extend, however, can only
the legal two-month time limit for bringing an action. If the layout right with
action is the only act of unilateral, then the part of the provisions of section 250 h
paragraph. 1 sentence for a semicolon o.s.ř. violates the principle enshrined in the Charter of
the equality of the parties in that it unilaterally limited one
of the parties to the proceedings, and that of the person whose position is in
during the earlier proceedings significantly weaker (takes in account the administrative
management, which must always be preceded by proceedings before a court). Defendant (in the
the proceedings before the Administrative Court) is in the administrative procedure in the considerable advantage, also
that is the bearer of information and hence the evidence to which the plaintiff is not
access. It stands out in the stěžovatelově case, where a substantial part of
-keeping of administrative authority is subject to confidentiality. Many important
the information therefore often cannot obtain the plaintiff before filing the material
the defendant, the Court (on the basis of claim) will require, respectively, than the
the court filing the material delivered to the defendant. In practice, this is done in the
periods longer than 60 days.
In their case, then the claimant has demonstrated that the contested part of the
the provisions of section 250 h of paragraph 1. 1 sentence for a semicolon o.s.ř. basically allows you to
"conservation" is clearly illegal procedure.
The Chamber of deputies in its comments to the draft pointed out in particular that,
proceedings under part of the fifth of l. is conceived as a specifically
the modified process. The Court is based on the legal situation, which was at the time of
the issue of an administrative decision. Management is controlled by the disposition principle, which
means, above all, that the initiation of proceedings and the definition of its subject is in
available only to authorised persons, i.e.. the guy who claims that he was
by decision of the administrative authority, truncated to their rights, or who
claims that it was not treated as a participant in an administrative proceeding,
Although it should be thus treated. The applicant may invoke the protection of the
only those rights that belong to him, and the Court shall review the decision only in the
those guidelines, which are set by the action, unless the fact to the
which must be taken into account ex officio. To extend the scope of the attack
administrative decision the claimant can only until the end of the period laid down by law,
(§ 250b o.s.ř.), IE. within two months of notification of the decision of the administrative
the authority in the last stage, where the special law does not provide otherwise.
Deadline cannot be waived. Failure to comply with the time limit has resulted in the loss of
options to perform. It follows from this that, after expiry of this period cannot be
in the course of proceedings against an administrative notice to float the decision.
The plaintiff in this case is bound not only to the period for submission of claims, but also
the deadline for the application of the reservations against the contested decision.
The Chamber of deputies also said that the possibility of extending the scope of the attack
administrative decisions only within the time limit under section o.s.ř. is also 250b
guarantee for the parties to the proceedings in the sense that the court proceedings cannot be
constantly renewed. Therefore, the strengthening of legal certainty means participants
the proceedings. In conclusion, the representation of the Chamber of Deputies, said that the law was
approved the necessary majority of members of the Federal Assembly on 5 December.
November 1991, was signed by the respective constitutional actors and was properly
declared.
The Senate responded to the call for expression of communication data, when he began to act, from
which deduced that it is not for him to comment on the proposal to repeal
the provision, which was added by Act of o.s.ř. in 1991.
The Ministry of Justice in its opinion on the draft, said in particular,
that part of the provisions of section 250 h of paragraph 1. 1 sentence for a semicolon o.s.ř. is
set of the so-called. the disposition of the policy. If it is fully at the discretion of the plaintiff, whether
Sue, and so the final decision authority disputes the public
Administration or not, must be in his and the determination of the limits of the review
the Court, not only quantitatively, the designation statements, but also
qualitatively, thus giving the pleas, in which the focus of your
legal complaints against the contested decision. In the interests of legal certainty, it is
necessary that the law was defined by the time in which you can Board
the decision to challenge an action or appeal to the Court in
the administrative judiciary. O. s. l., therefore, in the case of actions against final
by decision of the administrative authorities shall in General two-month time limit section 250b
from the delivery of administrative decision, in which it is necessary to consider the possible
submission of the application, and at the same time creates a space for it, that for cases
where that time limit is not satisfactory, it was possible to set a time limit to the law
action by way of derogation. If, however, at the same time this deadline has not been
limited permission to extend the action of the plaintiff on the other statements of the contested
the administrative decision and extend the pleas in law, the determination of the
the deadline for the submission of the claim lacked a sense, since it was not clear what
actually, to be the subject of judicial review, would create space
for unlimited, or even special stretching of the court proceedings, which would
in its consequences led to the extension of the State of legal uncertainty.
Furthermore, the Ministry of Justice stated that the right to bring an action is the right
exclusively linked to by, who claims that he was on their rights is truncated
by decision of the administrative authority; before filing such a lawsuit is initiated
judicial proceedings to which the principle of equal status of the participants,
the statutory rules applicable to these proceedings
not only formally, but even in the material sense.
Disposition the plaintiff with a range of action is therefore not limits one
the parties to this proceeding, but on the contrary the law exclusively associated with one
Party of the proceedings-plaintiff. Therefore, the Ministry of Justice
does not consider the legislation contained in section 250 h of paragraph 1. 1 sentence with a semicolon
o. s. l. for adjustment, which would infringe article. paragraph 37. 3 of the Charter.
On the merits of the Constitutional Court has come to the following conclusions:
According to the article. paragraph 36. 2 of the Charter, everyone, who claims that he was on their
the rights of the truncated by a decision of the public authorities, the right to apply to the
Court to review the legality of such a decision, unless the law
otherwise (the so-called general clause with negative enumerací). From
the powers of the Court must not be excluded a review of decisions
the fundamental rights and freedoms under the Charter. The law (o.s.ř.) then these
the constitutional principles of getting divorced in the fifth-the administrative justice system. Law
in particular, who is to submit the so-called legitimován. administrative action. The one,
who is entitled to lodge a claim must do so quite specific
in a way. Here comes the application of the contested part of the provisions of section 250 h
paragraph. 1 the sentence with a semicolon for the o.s.ř., in which, in conjunction with the provisions of the
section 249, paragraph. 2 o.s.ř. and others, expressed the principle, that is, not
exactly, referred to as the principle of disposition. Upon closer analysis is
Obviously, that is not so, who determines what will be treated,
rather, what will be consulted and at what period can the scope of the review
define, rather then the management concentration.
In summary, the administrative judiciary is based on the principle (whether it
We however), that the Administrative Court does not examine of its own motion
administrative decision beyond the scope as defined by the applicant, and therefore does not replace
the applicant's second initiative. From doktrinárních one can conclude that the Court of
so perhaps do not or may not even, as for example. the provisions of §
250j paragraph. 1 o.s.ř. for a strict point of view does not speak ("If there is a court to
the conclusion that the contested decision is in accordance with the law... ").
The peculiarity of the process is further required legal representation of the applicant, the principle of
obligation of the Court identified facts and many others.
Limitations and specific process raise the question of whether they are
individually and in its context of constitutionally acceptable and
podřaditelné under the requirement arising from the article. paragraph 36. 1 of the Charter, i.e.,
that an independent and impartial court is essential to their rights to pursue
laid down in a way. Especially in this context is to be
to answer the question of whether the disposition principle in some cases
necessarily is, therefore, in particular, that the Court must to do something, and if so, to
What, take into account, even if the applicant did not dispute it-therefore, ex officio.
From the comments and the case-law to the provisions of section 250 h o.s.ř. shows that it is not
no doubt about the need for such intervention by the Court in the case of administrative acts nulitních.
However, the Constitutional Court shares this view, it is not so completely
What is to be considered for such acts. Comment to o.s.ř. (Bures,
Drápal, Scone, c. h. Beck Prague) admits that the practice will be even
other questions that will have to take account of the administrative courts to be able to
the official, and that it's not so much about the inability to examine the principle of administrative
the decision beyond the defined by the applicant, as a proper and stable
the determination of the radius of the issues important for the decision, to which the Court must
taken into account, even if the applicant did not dispute it. Also, this view of the Constitutional Court
shares and only considers it necessary to remind you that each of the provisions,
This formalizes the administrative control of the judiciary, provides for de
facto limits access to court, thus one of the fundamental constitutional limits
rights-the right to judicial protection. All such provisions, and the contested
provisions is one of them, it is therefore necessary to interpret the spirit of the article. 4
paragraph. 4 of the Charter, that is, when the application of such provisions to conserve the essence of
and the meaning of fundamental rights and freedoms. In other words, there is no doubt
more situations than just the nullity of the administrative act, that will have to take
Administrative Court of account, even without a draft, or on the basis of the late
warning, therefore, ex officio or, rather, better expressed-ex aequo et
Bono.
The Constitutional Court assumes that in the indicated direction will be case-law
administrative courts. Itself will then be forced to discuss the constitutional
the complaint itself to deliver an opinion on the question of whether it is the duty of the courts
the proposal to take into account, even without any preclusion. In doing so, he is forced to
again stated that such an interpretative role would primarily due
the Court, which according to the Constitution, but not de facto-Supreme
Administrative Court.
The Constitutional Court shall examine the contested provisions as in-to-interpret
constitutional limits, did not find in it the disposition principle enshrined, respectively.
the principle of concentration control in the administrative justice system unconstitutional because, even
If he can be criticized for, that drifts away from the principle of material
the truth, you cannot see that primarily and unquestionably contributes to the
the fulfillment of the constitutional law on the consideration and decision of the case within a reasonable
period of time, or without undue delay (article 6, paragraph 1 of the Convention for the protection
human rights and fundamental freedoms, article. paragraph 38. 2 of the Charter).
On the other hand, however, the Constitutional Court considers his duty again
noted that the administrative justice system, in which the contested provisions of the plays
only a partial role, as a whole, does not correspond to the principles enshrined in article. 6
paragraph. 1 of the Convention and as a system created in the period předústavním
in conflict with the Constitution is already the same absence of the Supreme Administrative Court.
There is no dispute about the fact that in contemporary industrialized democracies is the completion of
the system of administrative courts, the Court of the common parent instances
standard and an essential part of the proper functioning of the public administration and
the fulfillment of the principles of the rule of law. If there are, however, several years of appeals,
The Constitutional Court of the legislature sufficient motivation for the fulfillment of the Constitution,
Constitutional Court declares that it will be in their decision-making activities consistently
search resources and capabilities, as this status change.
The President of the Constitutional Court:
JUDr. Kessler v. r.