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In The Matter Of The Application For Revocation Of Ustanov. Code Of Civil Procedure

Original Language Title: ve věci návrhu na zrušení části ustanov. občanského soudního řádu

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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.