82/2013 Sb.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court decided under the SP. zn. PL. ÚS 15/12 of 15 April. January 2013 in plenary
in the composition of Stanislav Package, Vlasta Formankova, Turgut Güttler, Pavel
Holländer, Ivana Janů, Vladimir Crust, Jiří Mucha, Jan Musil, Jiří
Nykodým, Pavel Rychetský, Miloslav Výborný and Michael Židlická,
the proposal submitted to the Supreme Administrative Court provided for in article. paragraph 95. 2 of the Constitution
The Czech Republic on abolition of the provisions of section 70 (a). (d)) of Act No. 150/2002
Coll., the administrative rules of court, in the words of "the State of health of persons or", for
the participation of the Chamber of deputies of the Czech Parliament and the Senate
The Czech Parliament as parties to the proceedings, with the consent of
Parties to the proceedings without oral proceedings,
as follows:
I. proposal for the repeal of the provisions of section 70 (a). d) of Act No. 150/2002 Coll.
the rules of the Board, in the words of "the State of health of persons or" is rejected.
II. Decision on the appeal against the non-acceptance of the disabled person
disadvantaged within the meaning of section 67, paragraph. 2 (a). c) of Act No. 435/2004 Coll., on
employment is not excluded from judicial review under the provisions of section 70
(a). (d)) of the judicial code administrative.
Justification:
(I).
1. The Constitutional Court was on 11 July. 5.2012 served the enlarged Board
The Supreme Administrative Court (hereinafter "the applicant"), on the abolition of
the provisions of section 70 (a). d) of Act No. 150/2002 Coll., the Administrative Court of law, in
the words "the State of health of persons or" (hereinafter "the contested
the provisions ").
2. the applicant has filed the proposal then, what in the context of its
the decision-making activities (case SP. zn. 6 Ads 109/2009) in accordance with the
the provisions of the article. paragraph 95. 2 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution")
came to the conclusion that the contested provisions are contrary to the constitutional
policy.
II.
The progress of the proceedings before the administrative authorities and the administrative courts
3. At the request of Vladimíry Pickova administrative proceedings were initiated, of which
the subject was assessing whether the person is appointed to the disabled
disadvantaged within the meaning of section 67, paragraph. 2 (a). c) of Act No. 435/2004 Coll., on
employment, as effective until 31 December 2006. 12.2011 (hereinafter referred to as "the law of
of employment "). The Labour Office in Olomouc in its decision of 10 June 1999. 9.
2007, c. j. SŘ/2007/61-OL expressed that the claimant is not such a person.
An appeal against this decision Vladimíry Pickova was rejected
by decision of the Ministry of labour and Social Affairs (hereinafter as
"the Ministry") of 20 June. 3.2008, no. 2007/62310-33.
4. By judgment of 6 June 2000. February 2009, no 2/2008 Cad 59-30 City
a court in Prague to the application the Ministry canceled the decision Vladimíry Pickova,
Since he came to the conclusion that the opinion of the Medical Commission of the Ministry of labour and
Social Affairs, drawn up to assess the State of health of the applicant in the
under the appeal procedure was incomplete and unconvincing and, moreover, was
processed by the Commission in the wrong composition. Following the judgment of the first instance annulling
committed to the city court in Prague the defendant administrative authority to draw up a
the supplementary report and the new decision on the matter. Against this
the judgment of the appeal in cassation was lodged by the defendant to the Ministry, in which he argued,
the Medical Commission of the Ministry of the opinion that the labour and Social Affairs of
29.2. 2008 vytýkanými defects do not suffer.
5. The Sixth Chamber of the Supreme Administrative Court in the framework of the submitted
cassation complaint dealt with the question of whether the decision to grant the status of
a person disabled at all is subject to judicial review. It took the
to the conclusion that the Fourth Chamber of the same court, in its judgment of
17.2. 2010, no. 4 Ads 168/2009-86 review decisions granting
the status of disabled persons has ruled out with reference to the provisions of section
70 (a). (d)) s. l. s. As with this law Sixth Chamber
The Supreme Administrative Court, according to Fowles did not thing § 17 s. l.
with. the enlarged Board. According to the legal opinion, the Sixth Chamber of the Supreme
Administrative Court decisions on the recognition of the person as the person disabled
classified according to the provisions of section 67 of the Act on employment of the Court of
the review can't be ruled out. This is because the decision extends to the rights
in accordance with the provisions of article. 29. 2 of the Charter of fundamental rights and freedoms (hereinafter the
"the Charter"), and therefore is guaranteed by judicial review of decisions
the provisions of the article. paragraph 36. 2 of the Charter (though i would formally meet
the condition for exclusion referred to in the contested provisions). In addition, the sixth
the Senate of the Supreme Administrative Court expressed the belief that the decision on the
non-recognition as a person physically disadvantaged (or the decision of the Court of appeal)
creates an obstacle to the exercise of the profession, occupation or business
where appropriate, other economic activities.
6. An extended Chamber of the Supreme Administrative Court, by contrast, he said,
the decision on non-recognition as a person physically disadvantaged in itself
an obstacle for the exercise of a profession, occupation or business, where appropriate,
other economic activities. He said, however, the Sixth Chamber
The Supreme Administrative Court in the fact that this decision interferes with the rights of
granted by "constitutional provisions and international treaties",
Therefore, it is the exclusion of his judicial review constitutionally prohibited from. From
for this reason, an extended Chamber of the Supreme Administrative Court turned on
The Constitutional Court with a proposal to repeal the contested provisions.
III.
Recap of the proposal
7. His proposal to repeal the contested provisions justify extended
the Senate of the Supreme Administrative Court-as indicated above-by
decisions on the recognition of the person physically disadvantaged extends into the
the fundamental rights guaranteed by the provisions of the article. 29 of the Charter. The provisions of §
67 of the law on employment, on the basis of which decisions on recognition for
the disabled person is being disadvantaged, is from the petitioner's
implementation of the provisions of the article. 29. 1 and 2 of the Charter, inter alia, zakotvujícího
the right of persons with disabilities at increased health protection at work,
on special working conditions, on special protection in the working
relations and to assistance in the preparation for the profession. Therefore, the appellant decided
that this is a decision with regard to the fundamental rights and freedoms referred to in
The Charter, whose review cannot be excluded by law with regard to the
the provisions of the article. paragraph 36. 2 of the Charter. The complainant in this context
said that, in terms of the provisions of the article. paragraph 36. 2 of the Charter is not applicable,
whether and in which the head of the Charter is concerned, the basic law enshrined, which
to substantiate the references to the case-law of the Constitutional Court.
8. the applicant also-aware of the doctrine of the primacy of constitutionally Conformal
the interpretation of legal provisions before the derogations-stated that the
the contested provisions constitutionally Conformal interpretation not considered possible. In
this context, refused on the basis of the attached detailed argumentation and feedback
the sixth of the Senate of the Supreme Administrative Court, according to which the decision on the
non-recognition as a person physically disadvantaged (or the decision of the Court of appeal)
creates an obstacle to the exercise of the profession, occupation or business
where appropriate, other economic activities.
9. To remedy the protiústavního however, according to appellant's status is not to be
disturb the whole provisions of section 70 (a). (d)) s. l. s., but it is enough to merely his
cancellation in the words "the State of health of persons or". Such a derogation
statement will be sufficient to ensure that the decision of the Ministry of labour and
Social Affairs affecting the fundamental rights of the Vladimíry Pickova could
be reviewed.
IV.
Representation of the parties
10. The Chamber of deputies of the Parliament of the Czech Republic (hereinafter referred to as
"Chamber of Deputies") in the comments to the proposal of 20 December. July 2012,
signed by the Chairman of the House of Miroslavou Lang, said that the proposal
the judicial code of the Administrative Chamber of deputies presented the Government of the Czech
Republic on 1 May 2004. October 2001. The Government Bill was circulated to members
as the house printing No. 1080 4 June. in October 2001, III. the electoral period.
The Chamber of Deputies discussed the Government's proposal of the administrative judicial procedure in
first reading on 25. October 2001 and ordered it to discuss the constitutionally
the legal Committee, 29 April 2004. January 2002 to discuss and set
the resolution, which was posted as missing print no 1080/1. Chamber
the Chamber of Deputies discussed the proposal of the administrative judicial procedure at second reading in the
the days of 30. January 2002 and 8. February 2002. The amendments to the draft
of the Act were processed and published under number printing house
1080/2. In the third reading on 15. February 2002 was adopted a resolution, which
The Chamber of Deputies agreed with the Government's proposal of the judicial code
administrative texts approved amendments. The contested provisions
administrative judicial procedure without the amendments approved
The Chamber of deputies in the third reading the content. Chamber
the Chamber referred the Bill of the Senate of the Czech Republic
(hereinafter referred to as the "Senate") on 25. February 2002. Senate Bill said
22 December. March 2002 (March 21, note. The Constitutional Court)
the consent. The law was 26 March. in March 2002, the President of the Republic, delivered
to 28 February. in March 2002, he signed. 17 May. April 2012 was the law
declared in the collection of laws under no. 150/2002 Coll.
11. in a statement to the Senate proposal of 13 October. July 2012, signed
the Chairman of the Senate of Milan Štěchem, said that the draft code of civil procedure
the Administrative Chamber has been served on 25 June. February 2002 and in the Senate the register 3.
term of Office, he was assigned the number 223 printing. Constitutionally the legal
Committee and the Committee for territorial development recommended the Senate approve the Bill
in the text of a transferred the Chamber of Deputies. 21 June. in March 2002 the Senate
15. meeting 3. term of Office has approved the draft law, as amended by
transferred the Chamber of Deputies. The Senate, in its submission to the Constitutional
the Court expressed the belief that the limits laid down in the Constitution have proceeded
competence and constitutionally prescribed way.
12. With regard to the assessment of the litigation, said the Senate proposal, in
under consideration of the code, not the individual potentially controversial
the provisions discussed in detail and that a decision on the compliance of the contested
the provisions of the constitutional order is entirely up to the Constitutional Court.
13. the Representation of the Government and the Ombudsman has not been requested (cf..
communication from the Constitutional Court Org. 72/12 of 18 April. December 2012, item 3.,
posted under no 469/2012 Sb.)
In the.
The abandonment of an oral hearing
14. The Constitutional Court did not expect from an oral hearing, further clarification of the matter,
therefore dropped from him according to the provisions of § 44 sentence first Act No. 182/1993
Coll., on the Constitutional Court, as amended by later regulations (hereinafter referred to as "the law of
The Constitutional Court ") (cf. also communication cited above in section 13).
VI.
The diction of the contested provisions
15. the provisions of section 70 (a). d) of Act No. 150/2002 Coll., the rules of court
the Board is (the part of the contested provisions highlighted):
section 70
Of judicial review are excluded acts of the administrative authority
(...)
(d)) whose release depends exclusively on the health assessment of individuals
or technical condition of things, if you mean legal in itself
an obstacle to the exercise of a profession, occupation or business, or other
economic activities, unless otherwise provided by special law
(...).
VII.
Assessment of the competence of the Constitutional Court for consideration of the proposal, and the active
the appellant's evidence
16. in particular, the Constitutional Court had to consider whether they are infused with the procedural
the conditions for the consideration of the application of the proposal; in this context, the focus
initially the question was whether the widespread appeal to the Supreme Administrative Court
submission of proposal actively legitimován.
17. In accordance with the provisions of article. paragraph 95. 2 of the Constitution if the Court concluded that the
the law, which is to be used in solving the case, is in contradiction with the constitutional
policy, shall refer the matter to the Constitutional Court for consideration. Furthermore, this modification
elaborating on the provisions of § 64 paragraph. 3 the law on the Constitutional Court, according to which the
the proposal to repeal the law or its individual provisions shall be entitled to
submit also the Court in relation to its decision-making activities referred to in article. 95
paragraph. 2 of the Constitution.
18. The Constitutional Court notes that the locus standi of the enlarged Board
The Supreme Administrative Court to hear the case (and, therefore, to submit a proposal
According to the article. paragraph 95. 2 of the Constitution) can be established only if he
the matter referred to it in accordance with the provisions of section 17 s. l. s. From on-demand file
SP. zn. 6 Ads 109/2009, the Constitutional Court found that the case was extended
the Senate of the Supreme Administrative Court referred to the sixth appeal in the same
of the Court. While there was no doubt about the fact that the contested
provisions, or his interpretation, for a decision on the merits of key
the importance of. Advancing in the Senate order primarily asked to
the decision, which has not been granted the status of persons with
handicaps, was considered the decision meaning an obstacle for
the performance of a profession or employment within the meaning of the provisions of section 70 (a). (d)) with the line.
s.; nedomáhal is thus extended to the Senate handed the proposal to repeal
This provision, or part thereof (which would, moreover, with regard to the provisions of the
article. paragraph 95. 2 of the Constitution could do alone without consultations with the extended
the Senate). A substantial part of the reasoning contained in the order report
However, she had to challenge the constitutional conformity of such interpretation
the contested provisions, according to which the decision in question was not
judicially reviewable.
19. in a situation in which an extended interpretation of the Senate the Senate featured the sixth
The Supreme Administrative Court did not accept, it was highly likely that the
by the sixth Senate after returning things myself to the Constitutional Court a proposal for
cancellation provisions. If the Constitutional Court insisted on the
that, in such cases, the Senate proposal extended pursuant to article. 95
paragraph. 2 of the Constitution, it would be a manifestation of the přepjatého formalism, in its
as a result, only the elongating proceedings before the courts (it is necessary to have the
aware that, in the present case is the specific control standards and
the procedure before the administrative courts itself lasts for several years).
20. all of the above reasons, therefore, the Constitutional Court concluded,
the Senate extended the Supreme Administrative Court, if he came to the conclusions
in the proposal landed, was actively legitimován to submit a proposal for the abolition of the
the contested provisions.
VIII.
Review of the procedure of adoption of legal provisions under review
21. The Constitutional Court, how he stores provisions of section 68, paragraph. 2 of the law on
The Constitutional Court then examined whether the contested provision was adopted
within the limits of the Constitution laid down the competence and the constitutionally prescribed way.
Came out from further cited těsnopiseckých messages and of the observations of both
the Chambers of the Parliament.
22. From the těsnopisecké message from 46. the Chamber of Deputies held a meeting day
February 15, 2002, the Constitutional Court found that the Act No. 150/2002 Coll.
submitted by the Government of (print no. 1080) was adopted by the Chamber of deputies in
third reading vote no. 589, with 157 of the present deputies for
the draft voted 103 deputies and against 44 members.
23. From the těsnopisecké message from the 15. Senate meeting held on 21. March
2002, shows that the Bill was referred to the Senate April 25. February 2002.
15. a meeting of the Senate was on 21. 3. the 2002 bill approved in the text of the
transferred the Chamber of Deputies (Senate resolution No. 326); in the voting
No 94 from 65 senators present for the proposal 52 senators and
against proposal 1 Senator.
24.26 March. in March 2002, the law was delivered to the President of the Republic; the it
28 June. March of the same year.
25. June 17. April 2002 was promulgated in the collection of laws under the amount of 61
the number 150/2002 Sb.
26. The Constitutional Court stated that Act No. 150/2002 Coll., which is
the contested provisions included, was accepted and published in the limits of a constitutionally
established competence and constitutionally prescribed way.
IX.
A substantive review of the proposal
27. after the examination of the constitutionality of the procedure of adoption of the contested act is
The Constitutional Court focused on its substantive compliance with the constitutional order.
28. the provisions of section 70 (a). (d)) s. l. s. in the range in which the contested
According to interpretation advanced by the Senate means, the Supreme Administrative Court
precludes judicial review of the decision on the recognition of the disabled person
classified under section 67, paragraph. 2 (a). (c) the Employment Act). This is
a decision which meets the conditions of the contested provisions,
Since the issue is dependent solely on the health assessment and
at the same time it is not a decision that would in itself constitute
the legal obstacle for the exercise of a profession, occupation or business
where appropriate, other economic activities. In other words, decisions on the recognition of
for a person disabled disadvantaged touches the legal sphere of the individual,
or his public subjective rights (in the opposite case, or
decision within the meaning of § 65 s. l. s.), but not benefits of the
the review is denied to the person concerned.
29. In accordance with the provisions of article. paragraph 36. 2 of the Charter can be a Court of
review of a decision of a public authority shall be excluded (article 36, paragraph 2,
Of the Charter, first sentence
in fine
), from the jurisdiction of the Court must not, however, be ruled out reviewing the decision of the
relating to the fundamental rights and freedoms under the Charter (article 36, paragraph 2,
Charter, second sentence). The concept of "fundamental rights and freedoms under the Charter", in
the meaning of the provisions of the article. paragraph 36. 2 of the Charter was in the case law of the
The Constitutional Court has previously interpreted so that it turns out even on the rights enshrined in the
the head of the fourth Charter (cf. find SP. zn. PL. ÚS 11/2000 of 12 January. 7.
2001 N 113/23 SbNU 105, 322/2001 Coll.). If, therefore, the Constitutional Court
He came to the conclusion that the decision of the (non) recognition of the disabled person
classified under section 67, paragraph. 2 (a). (c) the Employment Act)
touching one of the fundamental rights under the Charter, it would be the exclusion of
his judicial review must be considered unconstitutional.
30. The Constitutional Court identifies with the petitioner's legal opinion, according to the
which the provisions of section 67 of the Act on employment, on the basis of
decisions on the recognition of the disabled person is being legally classified,
the realization of the article. 29. 1 and 2 of the Charter, inter alia, the right of persons zakotvujících
disabled on the increased protection of health at work, on special
working conditions, to special protection in labour relations and to help
in preparation for the profession. In this regard, the appellant's argument
appropriate, as well as the views of implicite, respectively. explicite expressed in
the judgment of the municipal court in Prague or in resolution 6. the Senate of the Supreme
the Administrative Court (cited above in sections 4 and 5). You cannot even
overlook that in the proceedings from which derogation opinion came, the absence of
no doubt, none of the exclusions not only critical of the courts, but even
The Ministry of labour and Social Affairs, against the judgment of the
Municipal Court in Prague, an appeal in cassation, since the latter was leaning on a completely
another line of argument.
31. The decision on the recognition of the person physically disadvantaged determines,
whether a person is disabled, which is a special holder constitutionally
guaranteed rights within the meaning of article. 29 of the Charter, in fact, claim the increased
protection of specific measures in the plane, expressed in podústavního rights
(e.g. in the area of rehabilitation), or whether it will be for the wearer
the basic law for the purpose of implementing the laws considered. Negative
decision in this case, therefore, the person concerned may constitutionally guaranteed
protection to prepare.
32. The decision on the recognition of the person physically disadvantaged, according to the
The Constitutional Court is touching and the right to protection of health according to the article. 31 of the Charter,
However, the provisions of article. 29. 1 is in the area of the status of disabled persons
people with disabilities in labour relations can be considered as lex
a lex specialis to the provisions of article. 31 of the Charter (cf. also j. Wintr, comment on the article.
29, in: Wagner, e. and wheels. The Charter of fundamental rights and freedoms.
Comment. Prague: Wolters Kluwer, 2012, pp. 620 and 621).
33. For these reasons, the Constitutional Court concluded that the decision of the
the (non) recognition of the disabled person (or disadvantaged.
appeal against him) is the decision of the basic rights under the
Instrument within the meaning of the provisions of the article. paragraph 36. 2, therefore the exclusion
This decision of the judicial review it would be unconstitutional.
34. The Constitutional Court also focused on the assessment of the question whether the conclusion concerns the
expressed as follows (point 33) must necessarily lead to grant the contested
the provisions. Here concluded that the contested legal provisions (relating to-
Let it be recalled again-just a review of the health status) is not
unconstitutional in all its breadth (as such it was, after all, throughout the
a decade without much doubt applied), but "only" is
unconstitutionally when (some) focus on specific decisions affecting
with fundamental rights; This occurred in the present case the highest
Administrative Court and before the municipal court in Prague.
35. The Constitutional Court has no objections against the legal opinion of the appellant, in accordance with
which negative decisions in respect of the recognition of the disabled person
disadvantaged in itself does not constitute a legal obstacle to the exercise of the profession of
or employment; The Constitutional Court agreeing to the claimant and that the opposite
the interpretation of the contested provisions would not have been a good solution of the outlined
protiústavního State. Indeed, the appellant correctly observed, that in such a
the interpretation would be unconstitutional impact of the exclusion of judicial review was
removed, but only at the cost of the interpretation of the statutory provisions
Contra legem
; resort to this option is acceptable only exceptionally, and it
still only in a situation that otherwise cannot resolve the unconstitutionality. Will
further explained that this is not the case now, the present.
36. Through the mentioned, the Constitutional Court notes that the contested provisions of the
not only can be, but is directly necessary to interpret so that it enshrined
lockout, although in many cases other justified, must not turn out with
regard to the provisions of the article. paragraph 36. 2 of the Charter to such decision,
which affect the fundamental rights guaranteed by the Charter. This
interpretation of the neargumentuje with the nepřiléhavým (see point 35) reference
the provisions of section 70 (b) itself. (d)) s.ř.s., but the interpretation of a particular concept of
applied in the contested provisions following the rule resulting from the regulation
the higher legal force (cf. find SP. zn. IV.-1554/08 of 15 July.
1.2009, N 12/52 SbNU 121, paragraph 24). The result of the said interpretation
the contested legal provisions is the conclusion of the vyjádřitelný as follows:
The acts of the administrative authority, whose release depends exclusively on the assessment of the
the State of health of persons, are excluded from judicial review,
-unless they themselves have constituted a legal obstacle to the exercise of a profession,
employment or entrepreneurial or other economic activity,
-or unless it was the acts affecting the fundamental rights guaranteed
By the Charter.
37. The Act whereby the administrative authority decides on the question of (non) recognition of a person
the person physically disadvantaged, it is just an Act, namely
itself does not imply any legal obstacles referred to in the provisions
section 70 (a). (d)) s. l. s., but without a doubt, affects the fundamental rights of the
considered a person.
38. the proposal for the Constitutional Court to grant evaluations
the legal provisions at the same time, however, due to the establishment of a legal
interpretative statement nálezový joined the security guarantee (not only for
the case of the claimant but the indisputable right to constitutionally) review
the decision, which the appellant correctly reasoned that touches the constitutionally
guaranteed the fundamental rights of the individual.
39. In this context, the Constitutional Court also adds that if, in the
the present case, have preferred to grant before the above outlined solution,
She opened the possibility of a review of the entire series of medical assessments (respectively.
more precisely, the decision resulting therefrom), which are fundamental rights of the
individuals without prejudice; such access to the Constitutional Court expressed the
He (albeit indirectly) already in its earlier case law (cf..
find SP. zn. PL. ÚS 11/08 of 23 December 2003. 9.2008, N 155/50 SbNU 365 ESP..
point 35).
40. The Constitutional Court emphasises that that in itself does not prejudice, in
to what extent will the judicial review of decisions depend on the professional
health assessment is carried out; You can naturally assume that
judicial review in this matter will serve merely to eliminate the excesses
where appropriate, supervision over the legality of the decision and the process by which the issue
the decision was preceded by a (including the method of discovery health
considered a person), but not to support the factual conclusions of the polemics
contained in the decision, or in the medical report, which was
against the decision.
X.
The conclusion of the
41. The Constitutional Court thus concluded that the decision on recognition as a person
disabled the disadvantaged and the decision on the appeal against him are
decisions relating to the basic law in accordance with the instrument within the meaning of
the provisions of the article. paragraph 36. 2, is the exclusion of these decisions
judicial review of unconstitutional. With regard to the principle of the primacy
constitutionally, however, the Conformal interpretation before the Constitutional Court of the derogations in the proposal
annulment of the contested provisions dismissed under the provisions of section 70 paragraph. 2
the law on the Constitutional Court. Negative statement, however, said the verdict
interpretativním, that places administrative courts provide benefits
judicial review of administrative action against the persons who brojícím the decision on the
appeal against non-recognition as a person physically disadvantaged within the meaning of section 67
paragraph. 2 (a). (c) the Employment Act).
The President of the Constitutional Court:
JUDr. Rychetský, in r.