2001/06/27 - Pl. ÚS 16/99: Administrative Judiciary

27 June 2001

HEADNOTE

The current

regulation of the administrative judiciary shows serious constitutional

law deficiencies. Primarily, certain activities of the public

administration, like its potential inactivity, are not under the review

of the judicial power at all. Further, not everyone whose rights may be

affected by an administrative decision has the right to turn to the

courts. Even if he does have that right, he is not a party to a fully

fair trial under Art. 6 par. 1 of the Convention, although that should

be the case in a number of matters. An issued court decision is then

final and (with the exception of a constitutional complaint)

non-reversible, which leads to inconsistent case law, as well as to an

unequal position for the administrative body, i.e. to a situation in

conflict with the requirements of a state governed by the rule of law.

The finality of certain decisions (stopping proceedings) can then even

lead to a denial of justice. Finally, the exercise of the administrative

judiciary is organized in a manner which ignores the fact that Art. 91

of the Constitution1) states that the Supreme Administrative Court is

part of the court system.

The Plenum of the

Constitutional Court decided in the matter of joined petitions for the

annulment of certain provisions of part five “The Administrative

Judiciary” of Act no. 99/1963 Coll., the Civil Procedure Code, as

amended by later regulations, or for annulment of this entire part of

the Act, which was filed by M. C., represented by attorney, R. P., ,

represented by attorney and Panel IV of the Constitutional Court, with

the participation of the Parliament of the Czech Republic and the

additional participation of  D. S.,  represented by  attorney, and the

private elementary school Acorn’s & John’s school, s.r.o., 

represented by  attorney , as follows:

Part five “The

Administrative Judiciary” (§ 244-250s) of Act no. 99/1963 Coll., the

Civil Procedure Code, as amended by later regulations,2) is annulled as

of 31 December 2002.



REASONING
 


During 1999-2001 the Plenum of the Constitutional Court received

several petitions to pronounce unconstitutional specifically identified

provisions of part five of Act no. 99/1963 Coll. the Civil Procedure

Code (the “CPCP), on the Administrative Judiciary. The first is the

petition filed by M. C. together with a constitutional complaint for the

annulment of § 250d par. 33) and § 250j par. 44) of the CPC. The

essence of this petition is the objection of unconstitutionality of a

concept which does not admit any appeal at all against decisions issued

in the administrative judiciary, even in those cases where the issued

decision is not a decision in the matter itself, but, for example, the

proceedings are stopped for alleged defects in the petition, failure to

pay court fees, etc., without it being possible, unlike the rules

applied in ordinary civil proceedings, to correct evidently erroneous or

hasty court decisions. This is also related to the fact that these

decisions, whose consequences in reality mean a denial of the right to

judicial protection, are not decided by a panel but the chairman of the

panel. The petitioner’s attorney amended and supplemented this petition

during the public oral sessions of the Plenum of the Constitutional

Court on 27 June 2000 and by a written submission of 5 September 2000.

He stated above all that after his petition was filed Act no. 30/2000

Coll. amended the Civil Procedure Code, including the originally

contested § 250d par. 33). This Act will not go into effect until 1

January 2001, but it clearly makes this part of the petition

unnecessary, although it is documentation of the fact that the

legislature was evidently aware of the shortcomings of this provision.

However, in view of the fact that the cited, relatively extensive

amendment of the CPC did not affect the basic shortcomings in the entire

system of the administrative judiciary, he simultaneously proposed that

the Constitutional Court consider annulling the entire part five of the

CPC. He then stated, concerning this change of the petition, that the

legislature must be aware of the shortcomings which the current

regulation of the administrative judiciary contains, and that it is

therefore surprising that in more than seven years it was unable to get

to the implementation of the Constitution of the Czech Republic (the

“Constitution”) and establish the Supreme Administrative Court which it

envisages, where it was able to get to creating the institution of the

Public Ombudsman, which the Constitution does not contain. He stated

that he is not calling for multi-level proceedings, but for

implementation of a mechanism which would make it possible to correct

evident errors by the administrative courts and, in particular, permit

the unification of the jurisprudence of these courts, as in a number of

cases regional courts have decided the same matter completely

differently. Thus, the situation today is such that evident mistakes can

be corrected only by the Constitutional Court, which is undoubtedly not

its job. The petition also stated that merely deleting or annulling

only § 250j par. 4 of the CPC 4) (which was his original petition) can

not, in and of itself, create a sensible system. Therefore, he is

convinced that it is necessary to force the legislature to finally

concern itself with this problem, and that, in his opinion, can be

achieved only by annulling the entire part five of the CPC.

The

petition of R. P., filed on 4 October 1999 together with a

constitutional complaint, asks that the Constitutional Court issue a

judgment annulling the word “legality” (or phrases in which forms of

this concept appear) in specifically identified provisions of part five

of the CPC (these are the word “legality” in § 244 par. 1 and 2, in §

245 par. 1 the word “legality” and “the legality of a previously made

administrative”). He also proposes annulling the entire § 245 par. 2,5)

in § 247 par. 1 annulling the words “the legality of this”, in § 249

par. 2 the words “in which the plaintiff sees the illegality of the

administrative body’s decision,” in § 250i par. 1 13) the word

“legality”, in § 250i par. 3 the words “the legality of the contested”

and finally proposes annulling the entire § 250j par. 1.6)

In

the petitioner’s opinion, judicial review of an administrative decision,

restricted only to reviewing its legality, is fundamental interference

in the right to a fair trial. The court is required to review the matter

comprehensively (i.e. including the substantive aspect), as is required

of it primarily by Art. 6 par. 1 of the Convention for the Protection

of Human Rights and Fundamental Freedoms (the “Convention”). The

provisions which he contests do not permit a court to review the

substantive and factual aspects of a decision contested by a complaint,

which is a situation that is in conflict not only with the cited

provision of the Convention, but also with the case law of the European

Court of Human Rights (the “ECHR”). In this regard the petitioner

points, in particular, to the decision in the matter of Albert et Le

Compte (10 February 1983, A 58, § 29), in which the court stated that a

decision by an administrative body must be subject to subsequent review

either by another body which meets the requirements of Art. 6 par. 1 of

the Convention or by a court which has “full jurisdiction.” The ECHR

decided analogously in the matter of Ozturk (21 February 1984, A 73, §

67) and decided in the same vein in other matters as well.

The

petitioner also points out that in any case the Constitutional Court of

the Czech Republic also, in its judgment of 27 November 1996 file no.

Pl. ÚS 28/95 (no. 1/1997 Coll.), stated the opinion that our legal order

does not evidently and clearly establish a right for full review of an

administrative decision by an independent and unbiased tribunal which

would meet the requirements of Art. 6 par. 1 of the Convention, i.e. a

tribunal which would make findings not only on questions of the legality

of the administrative decision, but also concerning the factual state

of affairs (i.e. with “full jurisdiction”). In the same judgment the

Constitutional Court also points to the Resolution “On the Protection of

the Individual in Relation to the Acts of Administrative Authorities”

approved on 28 September 1977 by the Committee of Ministers of the

Council of Europe, specifically to principle I point 1, under which “In

response to each administrative act which could affect the rights,

freedoms and interests of a party to the proceedings, the party is to

have an opportunity to state an opinion on the actual state of the

matter and the evidence.” In conclusion the petitioner points out that

the ECHR stated its opinion on Czechoslovak (and thus de facto the

current Czech legislation in the field of the administrative judiciary)

in its decision in the matter of Lauko vs the Slovak Republic of 2

September 1998.

Finally, another petitioner in this matter is

Panel IV of the Constitutional Court, which in two cases interrupted

proceedings on a constitutional complaint under § 78 par. 2 of Act no.

182/1993 Coll., on the Constitutional Court, and initiated the opening

of proceedings to evaluate the constitutionality of two provisions of

part five of the CPC, which, in its opinion, go beyond constitutional

bounds.

The first of these cases is connected to the complaint

of Marie Melezínková, who joined to her constitutional complaint a

petition to annul § 139 let. c) of Act no. 50/1976 Coll., on Zoning

Planning and the Building Code (the Building Code), as amended by later

regulations, under which only a neighbour whose plot of land had a

common border with a builder could be consider a party to building

proceedings. The Constitutional Court granted this petition in separate

proceedings under file no. Pl. ÚS 19/99 and annulled the contested

provision of the Building Code by its judgment of 22 March 2000, no.

96/2000 Coll., as of the day of promulgation in the Collection of Laws.

However, in the opinion of Panel IV, the grounds for excluding the

petitioner from the opportunity to file an administrative complaint

included, in addition to the cited Building Code provision, § 250 par. 2

7) of the CPC, which ties the authorization to file a complaint to the

condition of being a party to the administrative proceedings. This

provision seems to the panel to be in conflict with article 36 par. 2 of

the Charter of Fundamental Rights and Freedoms (the “Charter”),8) for

the following reasons:

The definition of the circle of parties

to administrative proceedings is given by Act no. 71/1967 Coll., on

Administrative Proceedings (the Administrative Procedure Code) in § 14.

In par. 1 of that section the general definition of a party to

administrative proceedings states that it is someone whose rights,

legally protected interests or obligations are to be addressed in the

proceedings, or someone whose rights, legally protected interests or

obligations can be directly affected by the decision. A party to the

proceedings is also someone who claims that he can be directly affected

in his rights, legally protected interests or obligations by the

decision, until such time as the contrary is proved. The circle of

parties to proceedings thus defined undoubtedly fits with Art. 36 par. 2

of the Charter.8) Under § 14 par. 2 of the Administrative Procedure

Code a party to the proceedings is also someone who is given that status

by a special regulation. However, there are several special regulations

in the field of administrative law in which the concept of a party to

the proceedings is approached specifically and is often defined more

narrowly than would correspond to the general definition in § 14 par. 1)

of the Administrative Procedure Code. (We can cite as examples – in

addition to the cases already adjudicated by the Constitutional Court,

concerning certain kinds of buildings proceedings – § 17 par. 3 of Act

no. 44/1988 Coll., on Protection and Exploitation of Mineral Wealth (the

Mining Act), as amended by later regulations, where only the petitioner

is a party to the proceedings to establish a protected mineral deposit

territory, or § 9 par. 8 of Act no. 229/1991 Coll., on Regulation of

Ownership of Land and Other Agricultural Property, as amended by later

regulations, the so-called Land Act, which considers only the entitled

party, the obligated person and the land fund to be parties to the

proceedings, but not, for example, persons for whose benefit rights

corresponding to an easement exist).

Thus, in some cases persons

whose rights or obligations were clearly addressed, or whose rights

could be affected by a decision of the state administration body, do not

have active standing to file an administrative complaint. It cannot be

ruled out that these could be fundamental rights (Compared to the

abovementioned examples of special regulations, this could be, in

particular, the right of ownership). The provision of § 250 par. 2 of

the CPC 7) thus creates inequality, and in the opinion of the panel not

only is in conflict with Art. 36 par. 2 of the Charter,8) but also does

not meet the requirements arising from Art. 6 par. 1 of the Convention,

i.e. the requirement that everyone whose civil rights or obligations are

at issue must be guaranteed the right of access to the courts.

Finally, Panel IV of the Constitutional Court, in connection with the

decision about the constitutional complaint of  S. D.l, interrupted

proceedings and submitted to the Plenum of the Constitutional Court for

review the constitutionality of § 250a of the CPC,9) which provides that

the obligatory representative before an administrative court can only

be an attorney (or notary, under the amendment of the CPC made by Act

no. 30/2000 Coll.). In the Panel ’s opinion, in a situation where a

considerable part of the administrative courts’ agenda consists of tax

matters and where Act no. 523/1992 Coll., on Tax Advisors and the

Chamber of Tax Advisors of the Czech Republic provides in § 6 that tax

advisors are authorized and required to protect the rights and justified

interests of their client and, in doing so, to fully use all legal

means for the protection of his rights, there is a situation of apparent

lack of accordance between legal regulations of the same legal force,

which should undoubtedly not exist in a state governed by the rule of

law. If the CPC removes an administrative complaint from the means

available to tax advisors to protect the rights of their client, the

Panel is of the opinion that such a restriction lacks reasonable

grounds, and is basically a restriction of the right to freely conduct

business under Art. 26 par. 1 of the Charter.10) Even though, under par.

2 10) of that Article the law may set conditions and restrictions for

the conduct of certain professions or activities, in setting such

restrictions the principles set by Art. 4 par. 3 and 4 of the Charter

11) must be respected. Moreover, if the legislature wanted to remove the

right to act before a court from the powers of tax advisors, it should

have done so expressly in Act no. 523/1992 Coll. Panel IV thus sees the

unconstitutionality of § 250a of the CPC 9) in the legislature’s

omitting to include tax advisors in the list of persons entitled to

represent someone before the administrative courts (of course, only in

the scope of authorization under special regulations, as the amendment

of the CPC provided for notaries). If it did not do so, this provisions

has signs of arbitrary will, when a particular group is removed from the

group of persons undoubtedly qualified to provide legal assistance

under Art. 37 par. 2 of the Charter 12) and, as a result of that

removal, the subject of its business activity provided by another law is

restricted. For completeness, the Panel emphasizes that the same

applies to patent representatives (Act no. 237/1991 Coll. on Patent

Representatives, as amended by later regulations).

On 10 October

2000 the Plenum of the Constitutional Court decided that all the cited

petitions would be joined for joint proceedings and would subsequently

be conducted under the single file no. Pl. ÚS 16/99.
 
After

joining the matters the Constitutional Court received, together with a

constitutional complaint, a petition from the private elementary school

Acorn’s & John’s school, s.r.o., with its registered office in

Přerov, for the annulment of § 250d par. 33) of the CPC. By decision

file no. Pl. ÚS 4/01 of 2 February 2001 the Constitutional Court denied

this petition on the grounds of a pending suit and stated that the

petitioner had the right to take part in the proceedings in the matter

Pl. ÚS 16/99 as a secondary party. The Constitutional Court decided

analogously by decision file no. Pl. ÚS 7/01 of 21 February 2001 on the

petition from  D. S. for the annulment of § 250i par. 1 of the CPC. 13)

The statement of the Chamber of Deputies of the Parliament of the Czech

Republic states that Art. 36 par. 2 of the Charter 8) expressly

provides that the institution of judicial review of an administrative

decision is based on the review of legality, i.e. that the court reviews

only the legal evaluation of the matter. This principle of the Charter

is then made concrete in the relevant provisions of the CPC. The Chamber

of Deputies therefore does not share the opinion on the

unconstitutionality of those provisions of the CPC which restrict the

activity of the court to review of the legality of the decision by a

public administration body. Concerning the petition of Panel IV of the

Constitutional Court for the annulment of § 250 par. 2 of the CPC 7) the

Chamber of Deputies stated that Article 36 par. 2 of the Charter 8)

permits the law to exclude certain decisions from review and

simultaneously provides that these may not concern fundamental rights

and freedoms. In accordance with this treatment the CPC excludes some

administrative decisions from review. If § 250 par. 2 of the CPC 7) is

evaluated in relation to Art. 36 par. 2 of the Charter,8) one cannot

conclude that it is unconstitutional, as it unambiguously states that

everyone who claims that he was a party to administrative proceedings,

or was not but should have been, and was deprived of his rights by a

decision by an administrative body, may file a complaint. The purpose of

review of administrative decisions is not for the CPC to expand the

circle of parties in administrative proceedings which have already taken

place, because judicial review of administration can not be general. In

the opinion of the Chamber of Deputies, the court does not decide

directly about a certain right, but the subject of the proceedings is

the administrative act, which it reviews only from a legal point of

view, i.e. in terms of its compliance with the law.

Concerning

the restriction of tax advisors from acting before the courts, the

Chamber of Deputies considers it to be in accordance with Art. 26 par. 2

of the Charter.10) It states that although it is true that Act no.

523/1992 Coll. speaks of the provision of legal assistance in the field

of taxes, deductions, fees and other similar payments, as well as in

matters related to taxes, the term “legal assistance” used here is not

the same as the term “legal assistance” which is governed by Art. 37

par. 2 of the Charter. 12) The Chamber of Deputies considers persons

authorized to provide legal assistance under this Article, in civil

court proceedings, to be only attorneys and notaries. In view of the

fact that part five of the CPC, on the administrative courts, regulates

specific proceedings, where an administrative act is reviewed only in

legal terms and the court does not concern itself with evaluating the

factual state of affairs, the Chamber of Deputies does not consider a

tax advisor, particularly in view of his insufficient legal education,

to be a person who could represent someone in these proceedings. The

Chamber of Deputies also states, as a supporting argument, the fact that

the qualifying exams for tax advisors can also be taken by a person who

has only completed secondary education. For these reasons, it does not

consider the treatment of obligatory representation in § 250a of the CPC

9) to be unconstitutional.

The Chamber of Deputies also

pointed to the last extensive amendment of the CPC, discussed and

approved by the Chamber of Deputies and the Senate, which responds not

only to necessary changes in the judiciary but also tries to remove

problematic provisions which often caused interpretation problems in

court practice.

The Senate of the Parliament of the Czech

Republic made a statement only on the issue of obligatory representation

by an attorney when it stated that the purpose of § 250a of the CPC, 9)

which was inserted in the law by an amendment at the end of 1991, was

the legislature’s attempt to ensure that complaints for review of

decisions by administrative bodies would be filed by a qualified person

and to prevent a possible avalanche of lay filings against

administrative acts, since overall these are legally complicated cases,

for the evaluation of which a legal education is necessary. It was

apparently also intended that the regulation of obligatory

representation in the administrative courts not differ from the similar

institution in appeal proceedings and in proceedings on a complaint due

to confusion. The conclusion of the Senate’s statement says that

although it is not ruled out in principle for the contested provision to

be expanded so as to permit tax advisors to appear before the courts in

matters concerning tax issues, this would to a great extent negate the

legislature’s attempt to achieve qualified legal representation before

the courts. Annulment of the contested provision could lead to an

increase in non-qualified petitions and an increased burden on the

general courts.

Concerning the other petitions the Senate only

stated that it did not take part in the creation of the contested

provisions. These provisions were inserted into the CPC by Federal

Assembly Act no. 519/1991 Coll., which Amends and Supplements the Civil

Procedure Code and the Notarial Code.

In its position statements

on the individual petitions, the Ministry of Justice stated that Art.

36 par. 4 of the Charter assumes statutory delimitation of the

conditions and details under which one can exercise the right for court

review of the legality of decisions by public administration bodies. The

CPC does so in part five, where it delineates procedural conditions for

exercising rights for judicial review. Insofar as this procedural

regulation provides, in the interests of the court’s ability to act and

decide, the requirements for the particulars of a complaint, if it

establishes the court’s right to require removal of defects in the

complaint (if such defects prevent handling the substance of the matter)

and if it provides that, if the court’s requests to remove defects in

the complaint are not respected, the court shall stop the proceedings

without making a substantive decision on the complaint, such a legal

regulation cannot be seen as disproportionate restriction of the right

to judicial review under Art. 36 par. 2 of the Charter.8) The situation

is similar in other cases in which the Code, in § 250d par. 3,3) permits

a court to stop proceedings. If the Code did not contain this

provision, an unsolvable situation would arise; how should the court

proceed, for example, in a case where a complaint was filed late, by an

unauthorized person, or in a case where the plaintiff withdrew the

complaint, etc.

The Ministry of Justice also stated that it is

beyond any doubt that an appeal against a court decision is an important

tool, through which erroneous court decisions can be corrected and thus

judicial decision-making can be unified. Therefore one of the aims of

reform steps in the administrative judiciary is to establish an appeal,

as, even if multi-level judicial decision-making does not arise directly

from the Constitution, it is necessary for a procedural regulation to

permit correction of individual erroneous decisions and unity of

decision-making within the administrative judiciary itself, and for

correction of erroneous decisions thus not to be transferred to the

Constitutional Court through the institution of a constitutional

complaint. However, a statutory change can not be tied only to § 250j

par. 4 of the CPC,4) because, with the exception of proceedings in

matters provided in § 250s par. 2 of the CPC, 14) part four of the CPC

on appeals cannot be used in matters of the administrative judiciary.

From the point of view of de lege ferenda the Ministry of Justice also

stated that, as far as legislative intentions in the area of

administrative judiciary are concerned, it is aware that the current

legal regulations are not satisfactory and needs to be replaced by new

regulations, which would meet both the requirements of the Convention

and of the constitutional order of the Czech Republic, as well as the

fact that it must be a regulation which is functional, interconnected

with reform of public administration and recodification of

administrative proceedings, and at the same time also manageable in

terms of the costs to the state budget which such a project will

require. The current legal regulation reflects the time of its creation,

when it was necessary to establish the administrative judiciary as an

institution as quickly as possible, and therefore it was necessary to

use the existing court system and take the possibilities of burdening it

as a starting point. In establishing the administrative judiciary the

consequences which arise for this branch of the judiciary from the

Convention, particularly Art. 6 par. 1, were evidently not fully

anticipated. The difficulties in finding an optimal and simultaneously

manageable solution of commitments arising from this provision were the

main reason for postponing the establishment of the Supreme

Administrative Court, as the administrative judiciary required a

comprehensive solution. The current treatment creates an interconnected

whole, and intervention in individual provisions without change related

provisions would make this treatment unusable.

The Ministry of

Justice also cited the inconsistency between Art. 36 par. 2 of the

Charter 8) and Art. 6 par. 1 of the Convention. It points out that the

ECHR did not provide an abstract definition of the term “civil rights

and obligations,” and therefore it is necessary to rely on the

individual decisions of this court, under which this term is to include a

wide circle of things which are still seen as public law matters in

this country. The case law of this court tends to a constantly wider

application of Art. 6 par. 1 of the Convention.

Concerning § 250

par. 2 of the CPC,7) the Ministry of Justice has no doubts about the

constitutionality of this regulation in relation to decisions issued in

administrative proceedings in which the circle of parties to the

proceedings is governed by the definition under § 14 par. 1 of the

Administrative Procedure Code. However, it is evident that many

proceedings which are conducted under the Administrative Procedure Code

have a circle of parties which is restricted, in contrast to § 14 of the

Administrative Procedure Code, so that not all persons whose rights and

obligations are affected or whose rights are concerned in the

proceedings are parties to the proceedings before the administrative

body and can defend their rights there, and it is impossible not to see

that in this cases the legal treatment establishes inequality. In the

opinion of the Ministry of Justice, however, correction of this

situation should be ensured more by amendment of specific administrative

law regulations which exclude persons whose rights are affected from

participation in a certain type of administrative proceedings.
 

Concerning the issue of mandatory representation by an attorney, the

Ministry of Justice takes as its starting point the opinion that

insufficient familiarity with the area of procedural law could be to the

detriment of the person who seeks judicial review through a complaint

or an appeal. Therefore, the qualification prerequisites provided by Act

no. 523/1992 Coll. for performance of the activities of a tax advisor

appear to the Ministry of Justice to be insufficient for the area of the

administrative judiciary. At a general level, in the event that the

Constitutional Court should conclude that the evaluated provisions of

the CPC are unconstitutional, the Ministry of Justice then pointed to

the need to allow sufficient time to implement the necessary legislative

changes, insofar as possible comprehensively, as part of reform of the

administrative judiciary.

In response to the question of the

chairman of the Constitutional Court of 7 June 2001, asking what is the

present state of legislative work on reform of the administrative

judiciary, the minister of justice stated that reform of the

administrative judiciary is an exceptionally demanding legislative

project, not only in terms of the draft law itself, but primarily in

terms of finding optimal substantive solutions, as it will fundamentally

affect both the rights of persons who can appeal for judicial

protection and the activities of public administration bodies.

Therefore, in 2000 the Ministry of Justice prepared an “Initial Thesis

for the Preparation of a Concept of the Administrative Judiciary and

Possible Variations of its Organizational Structure.” In July last year

the government submitted this document to both houses of Parliament and

after the Chamber of Deputies, by resolution of 24 January 2001,

recommended to the government a variation which would receive majority

support, it was possible to begin work on preparation of a draft law. A

commission was formed, composed of prominent experts in legal theory and

practice, and the constitutional law committees of both houses of

Parliament were asked to work with it. At the present time working

drafts of legislative outlines are being discussed, and the minister

expects that the drafts will be submitted to the government for

discussion in August of this year. It is expected that the new legal

regulation of the administrative judiciary will go into effect on 1

January 2003.
 
After weighing the foregoing arguments and

positions, the Constitutional Court reached the conclusion that it is

necessary to annul part five of the CPC. It was guided by the following

considerations.
 
It is undisputed that the method of renewing

the administrative judiciary by amendment of the CPC in 1991 was

understood, at the time, as a temporary solution, with the awareness

that it was necessary to perform a complete recodification of

proceedings and create a sensible system of administrative courts. In

view of the fact that, in a short time, obligations arising from the

Convention (no. 209/1992 Coll.) were accepted without reservation, and

that the Convention places substantially wider demands on the area of

judicial review of the activities of public administration, this

temporary arrangement became even more problematic in many points.
 

To this situation was added the fact that the Constitution expressly

included a Supreme Administrative Court in the system of courts, without

postponing the establishment of this court in its transitional and

final provisions, or assigning specific tasks to specific bodies, as

well as deadlines for implementing the constitutional state of affairs.

Thus, the constitutional order assumes a supreme body in the

administrative court system, while the law governing this branch of the

judiciary (part five of the CPC) is constructed completely differently,

as it creates three independent levels of decision-making, and this

decision-making is, with the exception of pension matters, final.

The present system also does not provide judicial protection from

illegal procedures or intervention by the public administration which do

not have the character and form of an administrative decision (in

particular direct intervention or interference, issuing certifications,

often with significant legal consequences, etc.), there is no means for

judicial protection from the inactivity of an administrative office, the

administrative courts cannot directly decide on the validity of actions

of the public administration (e.g. about whether an act is null or

whether the validity of a decision which recognizes a right or imposes

an obligation ceased to exist – e.g. by the passage of time etc.). In

these cases as well the Constitutional Court often fills in.
 
A

separate problem exists in the so-called administrative punishment,

where, although the Constitutional Court, by judgment of 17 January

2001, file no. Pl ÚS 9/2000 (no. 52/2001 Coll.) on the annulment of § 83

par. 1 of Act no. 200/1990 Coll. on Minor Offences, as amended by later

regulations, which excluded from judicial review decisions which

penalized the least serious minor offences, moved matters somewhat

forward, nonetheless this area is not in accordance with the Convention,

as “accusations of a crime” under Art. 6 par. 1, under the case law of

the ECHR, include in practice proceedings on all sanctions imposed by

administrative offices on natural persons for a minor offence or other

administrative delict as well as on sanctions imposed in disciplinary or

censure proceedings (on state employees, soldiers, police officers), or

imposed in analogous proceedings on members of chambers with mandatory

membership. The court must then be endowed with the power to evaluate

not only the legality of the sanction, but also its reasonableness.

These cited reservations, together with the fact that our

administrative courts have their decision-making process regulated in a

manner under part five of the CPC, permit us to state that the current

administrative judiciary in the Czech Republic, as far as process and

jurisdiction are concerned, generally corresponds to the Constitution

and the Charter, but does not correspond to Art. 6 par. 1 of the

Convention, as the Convention clearly requires that a court or similar

body decide on the law (that is, on the matter itself, and not only the

legality of the foregoing administrative act). Thus, in our system, a

court can only remove an illegal decision, but not one which is

substantively defective. In other words, at this time the administrative

discretion of a dependent body cannot be replaced by independent

judicial consideration. If this is so in matters of “civil rights and

obligations” and administrative punishment under the Convention, this

situation is unconstitutional, though it will stand in other matters.

The foregoing analysis of the present situation indicates that we can

agree with those petitioners who state that the Civil Procedure Code, by

the fact that it regulates the administrative judiciary in part five,

contents itself, without regard to the specific nature of a matter, with

mere review of legality and in its provisions more closely regulates

only this review, is in conflict with Art. 6 par. 1 of the Convention,

and thus generally also with the constitutional order of the Czech

Republic. In the opinion of the Constitutional Court, this deficiency

cannot be solved otherwise than by a fundamental change in the concept

of the administrative judiciary, in which it will be a matter for the

legislature, taking into account the wealth of case law of the ECHR, to

ensure full judicial control in all areas which this case law considers,

under Art. 6 par. 1 of the Convention, to be “civil rights or

obligations” or which are classified under the term “any criminal

complaint”.

Concerning the problem of the constitutionality of

the procedural regulations, which restricts the administrative judiciary

in most cases to one level, it must be stated that the Constitution and

the Charter do not guarantee a multi-level judiciary as a fundamental

right. Such a right also can not be drawn from international treaties.

Art. 2 of Protocol no. 7 to the Convention ensures the right to at least

one appeal before a court of a higher level only in more serious

criminal matters. The same right in criminal proceedings is provided to a

convicted person by Art. 14 of the International Convention on Civil

and Political Rights (no. 120/1976 Coll.). On the other hand, however,

there can be no dispute about the fact that the requirement to form a

mechanism for unifying case law (if only through the form of a cassation

complaint or other extraordinary means of appeal) arises from the

requirements placed on a state which defines itself as a state governed

by the rule of law. The consequences of the non-existence of such a

mechanism then also lead to insufficient pressure on the cultivation of

public administration as a whole and to the feelings of bodies of that

administration, often justified, that they are exposed to judicial

review which lacks a unifying function. In addition, the absence of any

means of unifying the case of law of the administrative courts leads to

the situation where the Constitutional Court finds itself in the role of

the “unifying body,” in conflict with its position. This situation

creates a fundamental inequality between legal entities and natural

persons, on one side, and administrative authorities, as the state has

no means to defend itself against the sometimes diametrically opposed

decision-making of the administrative courts. In other words, the

executive has no opportunity to call for evaluation of administrative

case law by the supreme body of the judicial power if it believes that

it is in conflict with the law.
 
Concerning the petition of

Panel IV for annulment of § 250 par. 2 of the CPC,7) under the present

legal regulation it is evident that conditioning active standing to file

an administrative complaint on previous participation in administrative

proceedings can, in some cases, lead to a situation where the right to

file a complaint – i.e. the right to access to the court – does not

apply to entities whose rights or obligations were evidently concerned,

or whose rights could be affected by a decision of the public

administration body (and it cannot be ruled out that this could be a

fundamental right, e.g. the right of ownership). This leads to persons

whose rights are affected by an administrative decision being in unequal

positions. This situation is in conflict with Art. 36 par. 2 of the

Charter 8) and with the requirements arising from Art. 6 par. 1 of the

Convention, as it does not meet the requirement that everyone whose

civil rights or obligations are concerned, must be guaranteed the right

of access to the courts. This unconstitutional situation can undoubtedly

be resolved in the manner which the Ministry of Justice proposes in its

statement, i.e. by changing those provisions of administrative law

regulations which exclude from participation in administrative

proceedings persons whose rights could be affected by an administrative

decision. Such a solution would certainly be effective, and thus also

desirable, as the opportunity to defend one’s rights should be provided

to all affected persons in the administrative proceedings themselves. It

must be stated, and positively evaluated, that in this regard the

legislature itself has already corrected some special regulations (e.g.

it expanded the definition of participants in proceedings on building

bans or protected areas in the Building Code). The Constitutional Court

also acted in this spirit, in its judgment of 22 March 2000, file no.

Pl. ÚS 19/99 (no. 96/2000 Coll.), in which it annulled the definition of

the term “neighbour” in § 139 let. c) of the Building Code, as well as

in its judgment of 22 March 2000, file no. Pl. ÚS 2/99 (no. 95/2000

Coll.), which annulled § 78 par. 1 of the same Code, determining

participants in final occupancy proceedings.
 

This

problem could be solved by immediate derogation or the part of the

first sentence of § 250 par. 2 of the CPC,7) expressed in the words “as a

party to administrative proceedings”, as well as annulment of the

second sentence of that paragraph, which is in any case redundant, as

the fact of whether someone is a party to administrative proceedings

does not depend on whether the administrative office treats him as such.

Moreover, this provision seems to ignore the basic condition of

proceedings, consisting of the necessity for the contested decision to

have gone into effect. On the other hand, however, the Constitutional

Court was aware that even restricting participation to the plaintiff and

the defendant (§ 250 par. 1 of the CPC 15)) is a step backwards

compared to the regulation under the First Republic, which is also

admitted by the official commentary to the CPC, as it speaks about the

fact that this provisions evokes doubts from a constitutional viewpoint

and de lege ferenda will require effective correction. It is clear that

it should be a matter of general interest for the administrative court

to not only concern itself with the plaintiff’s objections but to see to

it that all person who were somehow involved in the matter receive the

opportunity to defend their rights before a court.
 

Finally,

concerning the reservations of Panel IV about the constitutionality of §

250a of the CPC, 9) it must be stated that mandatory representation,

whether by an attorney or other specialists (tax advisors, auditors,

patent representatives, etc.), is not usual before the first level

courts in Europe. However, despite this unusual situation and factual

strictness in the Czech legal system, the current concept cannot be

criticized for being in conflict with the constitutional order. An

argument against the possible objection of restricting access to the

courts is the attempt to ensure equality of the parties in proceedings

before the administrative court, i.e. that the plaintiff not be at a

disadvantage against the defendant administrative body, which is usually

represented by a qualified state official. Mandatory legal

representation should generally serve to effect the principle of equal

weapons, as an element of a fair trial. It will be a matter for the

legislature, in the new codification, to evaluate the necessity of

required legal representation generally, as well as whether legal

assistance, or the right to such assistance, provided in Art. 37 par. 2

of the Charter,12) can be ensured only by persons with a university

level legal education. In this regard the Constitutional Court also

points out that in the case of mandatory legal representation it is

necessary to ensure, better than has heretofore been done, the

availability of such representation for socially disadvantaged persons.

The

Constitutional Court closes and summarizes that the present regulation

of the administrative judiciary demonstrates serious constitutional law

deficiencies. Primarily, certain activities of the public

administration, just like its possible inactivity, are not under the

review of the judicial power at all. Further, not everyone whose rights

can be affected by an administrative decision has the right to turn to a

court. If he does have that right, he is not a party in a fully fair

trial under Art. 6 par. 1 of the Convention, although in a number of

cases that should be so. The issued court decision is final and (with

the exception of a constitutional complaint) non-reversible, which leads

to non-unified case law as well as to an unequal position for the

administrative office, i.e. to a situation in conflict with the

requirements of a state based on the rule of law. The finality of some

decisions (stopping proceedings) can also lead to a denial of justice.

Finally, performance of the administrative judiciary is organized in a

manner which ignores the fact that the Constitution, in Art. 91,

provides for the Supreme Administrative Court as a component of the

court system.

For these reasons, the Plenum of the

Constitutional Court decided to annul the entire part five of the CPC,

as, in its opinion, these deficiencies in constitutionality can not be

meaningfully resolved by partial derogations. It does so with the

awareness that a number of the provisions in this part and the

institutions regulated in it are not unconstitutional and will also be

present in the new regulation in one form or another. Likewise, the

Constitutional Court is aware of the legislative difficulty of solving

the constitutional deficiencies described; on the other hand, however,

it is forced to point out that it pointed to the unconstitutionality of

problem parts in a number of its panel and plenary decisions, where it

pointed out, in particular, that it is not its task to replace the

non-existent Supreme Administrative Court, interpret general,

particularly administrative law, and provide judicial protection as the

only judicial level. Therefore, after weighing all the calls which it

made in the past toward the executive and legislative powers, and after

taking cognizance of the work in progress on reform of the

administrative judiciary, it decided to postpone the enforceability of

the annulment verdict until 31 December 2002. The Constitutional Court

is convinced of the need for a lengthier vacantia legis for such a

fundamental change, from which it follows that passing new regulations

is a task for the present legislative assembly.

Instruction: A decision of the Constitutional Court can not be appealed.

In Brno, 27 June 2001
 




Pl. US 16/99
Overview of the most important legal regulations
1)  

 Art. 91 of Act no. 1/1993 Coll., the Constitution of the Czech

Republic, provides that the court system comprises the Supreme Court,

the Supreme Administrative Court, high, regional, and district courts.

They may be given a different denomination by statute.
2)    The

regulations in part V of the Civil Procedure Code, "The Administrative

Court System", annulled as of 31 December 2002, is replaced by Act no.

150/2002 Coll., The Administrative Procedure Code, with effect as of 1

January 2003.
3)    § 250d par. 3 of Act no. 99/1963 Coll., the

Civil Procedure Code, provides that the presiding judge shall stay the

proceedings if the complaint was filed late, or if it was filed by an

unauthorized person, or if it contests a decision, which cannot be the

subject of a review by the court, or if the complainant failed to

rectify faults in his complaint, even though the court has ordered their

rectification, and these hinder the processing of such complaint in

respect of its subject, or if the complaint has been withdrawn [section

550h(2)].
4)    § 250j par. 4 of Act no. 99/1963 Coll., the Civil

Procedure Code, provides that no legal remedy is admissible against such

decision of a court (i.e. decision of the court on a complaint against

the decisions of the administrative organs)
5)    § 245 par. 2 of Act

no. 99/1963 Coll., the Civil Procedure Code, provides that in the case

of a decision which an administrative organ issued on the basis of its

free consideration as permitted by the law, the court shall only review

whether such decision is within the limits and rules stipulated by the

law.
6)    § 250j par. 1 of Act no. 99/1963 Coll., the Civil

Procedure Code, provides that if the court concludes that the contested

decision complies with the law, it shall deny the complaint in a

judgment.
7)    § 250 par. 2 of Act no. 99/1963 Coll., the Civil

Procedure Code, provides that the complainant may be an individual or a

legal entity averring that he (it), as a party to administrative

proceedings, was curtailed in his (its) rights. A complaint may also be

lodged by an individual who, or a legal party which, was left out of the

administrative proceedings, even though this individual or legal entity

should have been a party thereto.
8)    Art. 36 par. 2 of Act no.

2/1993 Coll., the Charter of Fundamental Rights and Freedoms, provides

that unless a law provides otherwise, a person who claims that her

rights were curtailed by a decision of a public administrative authority

may turn to a court for review of the legality of that decision.

However, judicial review of decisions affecting the fundamental rights

and basic freedoms listed in this Charter may not be removed from the

jurisdiction of courts.
9)    § 250a of Act no. 99/1963 Coll., the

Civil Procedure Code, provides that the complainant must be represented

by an advocate or a commercial lawyer, unless he has a legal education

himself, or unless the complainant s employee (member) who acts for the

complainant at the court has a legal education; this shall not apply to

cases in which district courts are competent because of the subject of

such cases, or to a review of a decision on sickness insurance or

pensions (pension security).
10)    Art. 26 par. 1 of Act no. 2/1993

Coll., the Charter of Fundamental Rights and Freedoms, provides that

everybody has the right to the free choice of his profession and to the

training for that profession, as well as to engage in commercial and

economic activity. Par. 2 of this provision provides that conditions and

limitations may be set by law upon the right to engage in certain

professions or activities.
11)    Art. 4 par. 3 of Act no. 2/1993

Coll., the Charter of Fundamental Rights and Freedoms, provides that any

statutory limitation upon the fundamental rights and basic freedoms

must apply in the same way to all cases which meet the specified

conditions. Par. 4 of this provision provides that in employing the

provisions concerning limitations upon the fundamental rights and basic

freedoms, the essence and significance of these rights and freedoms must

be preserved. Such limitations are not to be misused for purposes other

than those for which they were laid down.
12)    Art. 37 par. 2 of

Act no. 2/1993 Coll., the Charter of Fundamental Rights and Freedoms,

provides that in proceedings before courts, other state bodies, or

public administrative authorities, everyone shall have the right to

legal assistance from the very beginning of such proceedings.
13)  

 § 250 par. 1 of Act no. 99/1963 Coll., the Civil Procedure Code,

provides that when the court reviews the contested decision complied

with the law, it shall do so according to the situation at the time when

the contested decision was issued; evidence is not examined.
14)  

 § 250s par. 2 of Act no. 99/1963 Coll., the Civil Procedure Code,

provides that an appeal may be filed against a decision of the regional

court on a matter concerning social security and social insurance, and

such appeal shall be decided by the high court under the provisions of

Part IV this Code; recourse shall be admissible only under the

conditions stipulated in Part IV of this Code.
15)    § 250 par. 1 of

Act no. 99/1963 Coll., the Civil Procedure Code, provides that the

parties to the proceedings are the complainant and the defendant.