291/1999 Coll.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled the day 3. November 1999 in the plenary on the draft N.,

spol. s r. o., on the cancellation of part of the provisions of § 248 paragraph. 2 (a). (e))

Act No. 99/1963 Coll., the civil procedure code, as amended

regulations,



as follows:



1. the application for annulment of article 248 paragraph 1. 2 (a). e) of Act No 99/1963

Coll., the civil procedure code, as amended,

the words "the preliminary nature of the decisions of administrative authorities" are rejected.



2. The remainder of the draft.



Justification



Decision-binding information Ministry of Finance-General

Directorate of customs of 25 June. June 1998 No. 5704/32-1764/98 was in the matter of

the request by the complainant (applicant) n. CZ, spol. s r. o., on tariff classification

the item "Intact demosana grape sugar vitamin C-candies made

compression "(manufacturer of the Intact Gmbh, Mnster, Germany) this product is included in the

combined nomenclature subheading 1704 90 81 as a confectionery produced by

compression.



The Ministry of finance decision of 20 May 1999. August 1998 No. 54 827/98

degradation has been brought on by n. CZ, spol. s r. o., rejected and

decision-binding information Ministry of Finance-General

Directorate of customs confirmed.



By order of the High Court in Prague of 30 May. November 1998 No. 7A

81/98-18 was in the case of the complainant (applicant) n. CZ, spol. s r. o., against

the Ministry of finance stopped a defendant to the action against

the defendant's decision of 20 April 2004. August 1998 No. 54 827/98. In

the preamble to its decision, the High Court in Prague in particular stated that according to

§ 248 paragraph. 2 (a). e) of Act No 99/1963 Coll., the code of civil procedure, in

as amended, (hereinafter referred to as "the row") courts nepřezkoumávají

among other things, the preliminary nature of the decisions of administrative authorities. Such

the decisions are for example. passion of a binding opinion, the decision to

prior consent. underlying the decision, etc.,

from which only is based on another decision is final in nature, which is the

interfered with the rights and obligations of a particular entity. Court-based

the appropriate action-review before this decision is final in nature,

While reviewing the legality of the previously made by the administrative

the decision from which the decision is based on, if for them

the earlier decision was binding, and if not for his review

established a special procedure (article 245, paragraph 1, of the row). The High Court in Prague

Furthermore, he stressed that "the decision of the administrative authority, which was released

binding information in accordance with section 46 of the Customs Act, is just such a

by a decision of a preliminary nature, from which only will be based on the final

decision issued under the Customs and fiscal management ", and therefore could not

to discuss the action. The High Court in Prague said it had to control under section

250 d of paragraph 1. 3. with the 5-stop, because "the action was directed against

the decision, which cannot be subject to review by the Court ".



In a constitutional complaint against the decision of the High Court in Prague

the complainant in particular pointed out that the procedure of the High Court in Prague has encountered a

violation of his fundamental rights and freedoms referred to in article 14(2). paragraph 36. 2 and article.

37 para. 2 of the Charter of fundamental rights and freedoms ("the Charter").

The High Court in Prague, in his opinion, also short of the provisions of article. 90 and

95 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), when the complainant

did not provide statutory protection of the right to a judicial review of the

the legality of a decision of a public authority. Furthermore, the complainant in the

evaluation of the opinion of the High Court in Prague says that section 245 of the row.

refers to the cases of the so-called. subsumovaných administrative acts, while the "binding

information-written by tariff information, issued pursuant to section

46 para. 2 to 4 of the Customs Act is undoubtedly a separate administrative

by a decision of a public authority-of the Ministry of Finance of the CZECH REPUBLIC,

General Directorate of customs "and not about" the underlying administrative

the Act, which would have been required to obtain the Office of himself ... ". According to his

the participant has the right to submit opinion against such a split decision

appeal, or decomposition, and this decision must, therefore, be subject to the "conceptually

judicial review, even if it is in relation to the final

the decision of a public authority by a decision of the preliminary ".



Because the complainant's alleged interference into the Constitution guaranteed

the right to judicial review of a decision of a public authority as a result of

the fact that the High Court in Prague in its decision applied to Section 248 paragraph.

2 (a). e) of s. l.-which excludes from judicial review also

decisions of administrative authorities preliminary nature, which cannot be a court

reviewed under section 245 paragraph. 1. s. l., and other such

review by the Court in the Act is not given by § 248 paragraph. 2 (a). (e)).

in breach of article 88(3). 90 of the Constitution and article. paragraph 36. 2 of the Charter.



Therefore, the complainant suggested that the resolution of the High Court in Prague from

on 30 November. November 1998 No. 7A/98-81-18 repealed, and along with that

He suggested that was canceled part of the provisions of § 248 paragraph. 2 (a). (e)).

row.



By resolution of the Senate and the Constitutional Court of 30 June. March 1999, SP. zn. (I).

TC 48/99 of the proceedings on constitutional complaints according to § 78 para. 1 of law No.

182/1993 Coll., on the Constitutional Court, (hereinafter referred to as the "law on the Constitutional Court")

broken and the proposal to abolish the provisions of the Act was referred to the full Court

The decision of the Constitutional Court according to article. 87 para. 1 (b). a) of the Constitution.



The draft expressed the parties-Parliament

The United States (section 69 of the Act on the Constitutional Court), the High Court in Prague and

The Ministry of Justice (article 48, paragraph 2, section 49, paragraph 1, of the Act on emotion.

The Constitutional Court).



The Chamber of deputies in particular stated that article. 90 of the Constitution along with the article. 36

The Charter sets out the basic jurisdiction of the courts, which has a constitutional basis, and

represents the protection of subjective rights granted by the courts in a manner

which lays down the law. This way of protection shall be determined by orders of magnitude, and some

other regulations and must be everyone who seeks in court protection of their

rights respected. Article. paragraph 36. 2 of the Charter covers cases where the

subjective law shall be decided by a public authority, and anyone who claims,

that was on their rights is truncated his decision, may apply to the

Court to review the legality of such a decision. Judicial proceedings under the

part five of the row has in these cases, specific nature, as it

the administrative decision is reviewed only in the scope in which it intervenes

to the subjective right, and only from the point of view of legality. Article. 36 of the Charter of

at the same time, however, admits the possibility that on the basis of the exceptions provided for

expressly by law was excluded from the review of certain decisions.

The Chamber of Deputies pointed out that this option uses § 248

paragraph. 2. s. l., which provides an exhaustive list of decisions of administrative

authorities, in respect of which judicial review is excluded and "judicial protection is in

these cases participants denied even in cases where the decision of the

intervened in their rights and duties in an unlawful manner ". In accordance with the

that provision of the Charter in the expression says that the authority of the

the Court, however, must not be excluded a review of a decision relating to the

fundamental rights and freedoms under the Charter.



In the following article. 95 para. 1 of the Constitution, which, inter alia, expresses

the linking of the Court by law, the Chamber of Deputies stated that even

cases where the text of the law is not entirely clear and admits a variety of

interpretations, it is not possible, the Court refused to rule on the case because of the

lack of clarity or incompleteness of the Act. The Court must, therefore, in these cases,

apply the law based on his own interpretation. It was based on (i) Top

a court in Prague when the qualification decision of the administrative authority, which was

the binding information is issued pursuant to section 46 of the Customs Act, as the decision

the underlying, i.e.. the decision of a preliminary nature in administrative proceedings in

relation to the next administrative decision is final in nature. The Court, therefore, on

the basis of the action under review before this decision is final in nature.



Application of § 248 paragraph. 2 (a). e) of s. r. High Court in Prague,

decided on the basis of their interpretation and practice, was identified by the Chamber of Deputies

beyond the court procedure under art. paragraph 36. 2 of the Charter, from the standpoint of

the constitutional guarantees.



Chamber of deputies of nepřisvědčila reasons to the complainant concerning the

violation of his fundamental rights and freedoms referred to in article. paragraph 36. 2 and article. 37

paragraph. 2 of the Charter together with the article. 90, 95 and 96 of the Constitution, as the Supreme Court in

Prague only took advantage of the option, which gives it the law, i.e. decided that the

the decision of the Ministry of finance is from the review under section 248 paragraph. 2

(a). e) of s. r. excluded. These provisions of the code of civil procedure,

as amended by Act No. 519/1991 Coll., therefore not in conflict with the constitutional

policy in the United States or with international treaties by which the Czech

Republic.



Act No. 519/1991 Coll. was according to the Chamber of Deputies approved

required majority of members of the Federal Assembly on 5 December. November

1991, signed by the competent constitutional factors and properly declared.



The Chamber of Deputies expressed the opinion that the legislature acted in

the belief that the law is adopted in accordance with the Constitution and the rule of law.




The Ministry of Justice in its statement pointed out in the first place

the content of the constitutional complaint, from which it is evident that the complainant seeks the

cancellation of only that part of the provisions of § 248 paragraph. 2 (a). e) o. s. l.,

that lies in the words "the preliminary decisions of administrative authorities.

nature ". The contested provision constitutes, in the opinion of the Ministry of

Justice one of law defined cases. lock-outs, i.e..

in cases where the courts does zkoumávají decisions of administrative authorities.

Such a legal option provides the article. paragraph 36. 2 of the Charter.



In the opinion of the Ministry of Justice was the provision on the

the inadmissibility of the judicial review of decisions of administrative authorities, the preliminary

the nature of virtue to row precisely because "it is a decision that

provisional in nature, in other words not definitive ". There is therefore no

the reason for the Court to review the decision already has been subjected to

administrative authority, preliminary nature, when the Court is ensured by law

review of the final (on merits) decision of the administrative authority.

The Department of Justice therefore considers the contested legislation for

constitutionally, compatible and compliant with art. paragraph 36. 2 of the Charter.



The High Court in Prague to the application for annulment under article 248 paragraph 1. 2

(a). e) of s. r. stated that "legislation contained in the present

the provisions are not in conflict with the Constitution, for cases where it cannot be certain

the decision to undergo judicial review can be defined by the law ".



Custom analysis of things



The complainant is the examination of the proposal seeks the annulment of part of the provisions of § 248

paragraph. 2 (a). e) o. s. l. According to this provision, the courts further

nepřezkoumávají decisions of administrative authorities preliminary, procedural or

riot police including decisions concerning the nature of the penalties.



1. The Constitutional Court of 18 reports. joint meeting of the House of the people and

The Chamber of deputies of the Federal Assembly of the CSFR Nations found that on 5 December.

November 1991 was Act No. 519/1991 Coll., which amends and supplements the

Code of civil procedure and the notarial regulations, approved by the required majority

members of Parliament in the House of peoples (for the 88 deputies, against no one, the vote

delayed 5 members) and in the House of the people (for, 91 against no one, voting

abstentions 6 members). In the same record is Editor's Note referring

on the resolution of the FS # 219, SN # 373, SL No. 355. Then a law was signed

respective constitutional factors and properly declared in the collection of laws in

the amount distributed to the 18 June 99. December 1991.



2. After the substantive Constitutional Court notes that, in decision making

According to the article. 87 para. 1 (b). and is mainly based on the Constitution of) examining whether

the contested provision is in accordance with the constitutional law or international

the Treaty pursuant to article. 10 of the Constitution (so its cancellation is not necessary) or

If this provision is not constitutionally compliant. In that case, the constitutional

the Court had no choice but to cancel the contested provisions.



The complainant specifically argues (as is evident from the content of a constitutional complaint),

the contested provision excludes from judicial review of the decision to

administrative authorities of preliminary nature, which cannot be reviewed by the Court

pursuant to section 245 paragraph. 1. s. l., and another review of such

the decision by the Court is not in the law.



The Constitutional Court does not share this view.



The Constitutional Court primarily dealt with whether it is § 248 paragraph. 2 (a). (e)).

with row in breach of article. 90 of the Constitution and article. paragraph 36. 2 of the Charter.



According to the article. 90 the first sentence of the Constitution the courts are called upon in particular to

to the law laid down by way of providing protection to the rights. According to the article.

paragraph 36. 2 of the Charter, who claim that their rights was truncated

by a decision of a public authority, may apply to the Court to

reviewed the legality of such a decision, unless the law provides otherwise.



You can undoubtedly conclude that anyone who seeks to protect her in court

subjective right, must respect the law as determined by the method of its

protection, which is generally regulated in part five of the row (the administrative

of the judiciary). Of section 244 of the row follows that courts review decisions

the public authorities intervene in so far as the subjective rights. It

It is explicitly expressed in § 244 paragraph. 3. in the row, which speaks of a

decisions issued in administrative proceedings and other decisions

based, changes or cancels the permission of natural or legal persons.

The subject of the review of the legality of these decisions is merely a (section 244 (2)

o. s. l.). Article. paragraph 36. 2 of the Charter permits subject to that of the

jurisdiction of the Court should not be precluded the examination of decisions on

the fundamental rights and freedoms under the Charter-the possibility of exceptions to the General

the review properly the jurisdiction. Some decisions of public authorities

Therefore, the Administration may be on the basis of the exceptions provided for expressly by law

excluded from the review. An exhaustive list of decisions of the administrative

authorities, in respect of which judicial review is not acceptable, it is in a row with embedded

in the first row in Section 248 paragraph. 2. Among these exceptions are in (e))

also decisions of administrative authorities preliminary, procedural or

riot police including decisions concerning the nature of the penalties.



B. an exhaustive list of decisions of public authorities whose decisions

courts on nepřezkoumávají, therefore, represents an exception (s) from the General

the rules expressed in the idea of the so-called. (positive) the general clause,

i.e.. in the application of the principle, according to which anyone who claims that

on their rights was truncated by a decision of a public authority, contact

on the Court to review the legality of such a decision (article 36, paragraph 2,

part of the first sentence of the Charter). These exceptions to the general principle clause

are only possible while respecting the conditions set out in the Charter. Those

assume that the authority of the Court should not be precluded the examination of

decisions concerning fundamental rights and freedoms under the Charter (article 36

paragraph. 2 the second sentence of the Charter), the limits of fundamental rights and freedoms can be

under the conditions laid down by the Charter modified only by law (article 4, paragraph 2,

Of the Charter) and that by using the provisions on limits of fundamental rights and

freedoms must be preserved, the nature and the meaning of, and these restrictions

must not be abused for purposes other than for which it was established

(article 4, paragraph 4, of the Charter).



Exceptions to the General rules (so-called positive general clause)

Therefore, the ústavodárce to in article edits. paragraph 36. 2 the last part of the first sentence

Of the Charter only under the condition that the law so provides. This is the application of the

the so-called. negative enumeration to, IE. by the law of that enumeration of exceptions

review of decisions of public authorities the Court accepted for

provided that it is not a review of a decision relating to the

fundamental rights and freedoms under the Charter.



(C). These considerations, a more general nature, you can further specify (and supplement)-

with regard to the limits of the so-called. negative enumeration to [expressed in a specific case in the

§ 248 paragraph. 2 (a). e) of s. l.] with regard to the article. 4 (4). 4 and article. 36

paragraph. 2 of the Charter-as follows.



I. Article. 4 (4). 4 of the Charter says that by using the provisions on the limits of the

fundamental rights and freedoms must be preserved, the nature and the meaning of.

The limits of fundamental rights and freedoms-with regard to judicial review of the decision

public authorities-are given by:



and the Charter itself in article). paragraph 36. 2 the first sentence in fine (' who says,

that was in their rights is truncated by a decision of a public authority, may

to apply to the Court to review the legality of such a decision,

unless the law provides otherwise. ")



(b)) code of civil procedure (law) in article 248 paragraph 1. 1, 2 and 3, where

are cases where courts of decisions of administrative authorities

nepřezkoumávají.



In Mr. stuff is about the use of Section 248 paragraph. 2 (a). e) o. s. l.,

which excludes from judicial review of, inter alia, the decision of the administrative

authorities preliminary nature. According to the beliefs of the Constitutional Court by the use of

This provision (which creates a bound of the fundamental right to judicial protection

According to the article. 36 of the Charter) are not the essence and meaning of this fundamental right

without prejudice to the. This is because it is the right of natural and legal persons to the Court

adequate protection in that it is within the competence of the courts to review the

decision of the administrative authorities, which have the nature of a final decision.



Ii. Article. paragraph 36. 2 the second sentence of the Charter says that the authority of the Court, however,

may not be excluded examination of decisions concerning the basic

According to the Charter of rights and freedoms. This provision follows the first sentence of the article.

paragraph 36. 2 of the Charter. From the comparison of both sentences of this paragraph can be concluded,

that the second sentence of the article. paragraph 36. 2 of the Charter has in mind other fundamental rights and

freedom (according to the Charter) than the basic right to judicial protection; otherwise,

Indeed, the exclusion of the right to judicial protection is always contrary to the Charter

and to echo article. paragraph 36. 2 the first sentence of the Charter ("unless the law

else ") would not make sense.



The intention of the legislator undoubtedly is-in a given context-fundamentally

provide the law laid down by way of judicial protection. At the same time, however, in

accordance with article 6(1). paragraph 36. 2 of the Charter, in article 248 paragraph 1. 2. r. calculates the

decision of the administrative authorities, in respect of which judicial review is excluded. Is

clearly, therefore, that section 248 paragraph. 2 (a). e) o. s. l., which refers to the outside


other preliminary decisions of administrative authorities is not in the nature of the contested

the range with the article. 90 of the Constitution and article. paragraph 36. 2 of the Charter, in violation of.



Therefore, the Constitutional Court annulment under article 248 paragraph 1. 2

(a). e) of Act No 99/1963 Coll., the code of civil procedure, as amended by

amended, as expressed by the words "decisions of administrative authorities

preliminary nature ".



As regards the remaining part of Section 248 paragraph. 2 (a). e) o. s. l.,

talking about the exclusion of decisions of administrative authorities process or riot

nature including decisions on fines by the police of judicial review,

This provision was not applied in the contested decision. It was therefore in the

to this extent, the application for annulment of the legal provisions of the rejected

Since it was filed by a person clearly ineligible [§ 43 para. 1 (b) (c)), § 74

the law on the Constitutional Court, arg. and minori ad maius].



The President of the Constitutional Court:



JUDr. Kessler v. r.