In The Matter Of The Application For Revocation Of Section 70 Of The Regulations Of The Administrative

Original Language Title: ve věci návrhu na zrušení části § 70 soudního řádu správního

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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.

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