2004/10/25 - I. ÚS 668/04: End of Deadline

25 October 2004

HEADNOTE

 

The

deadline for submitting a petition for review of a decision under Act

No. 130/2000 Coll., on Elections to the Representative Bodies of the

Regions and on the Amendment of Certain other Acts, can be given a

constitutionally conforming interpretation such that the moment of its

fictional delivery (the third day following the display on the bulletin

board) is important for calculating the objective endpoint of the period

for the submission of the petition, not however its beginning.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


The

Constitutional Court, in a senate composed of JUDr. Vojen Güttler, its

Chairperson, and Justices, JUDr. František Duchoň and JUDr. Ivana Janů,

on the constitutional complaint of the complainant, U.S. – D.E.U. . . .

against the 27 September 2004 ruling of the Regional Court in Pilsen,

file no. 57 Ca 20/2004-36, with the participation of the Regional Court

in Pilsen as a party to the proceeding and the the Regional Office of

the Karlsbad Region . . . as a secondary party to the proceeding,

decided as follows:

 

I.

The 27 September 2004 ruling of the Regional Court in Pilsen, file no.

57 Ca 20/2004-36, resulted in the violation of the complainant’s

fundamental right to seek court review of the legality of a decision of a

public authority (Art. 36 para. 2 of the Charter of Fundamental Rights

and Basic Freedoms).


II. The 27 September 2004 ruling of the Regional Court in Pilsen, file no. 57 Ca 20/2004-36, is quashed.

 

 


REASONING

 

In

its timely submitted constitutional complaint, the complainant contests

the above-mentioned decision of the Regional Court in Pilsen

(hereinafter „Regional Court“).  As regards formal matters, the

complaint also meets further requirements laid down in Act No. 182/1993

Coll., on the Constitutional Court, as amended (hereinafter „the Act on

the Constitutional Court“).  In its constitutional complaint, the

complainant requested that its matter be heard as a priority matter. 

Therefore, the Constitutional Court considered first the urgency of this

matter and, after due consideration of all circumstances, came to the

conclusion that the requirements of § 39 Act on the Constitutional Court

have been met.  The matter is urgent as, in the proceeding preceding

the submission of the constitutional complaint, the Regional Court

adjudged whether there is an obligation to register the candidate list

for the election to the Representative Body of the Karlsbad Region,

which is to be be held on the 5-6 November 2004.  A decision on the

merits as regards that obligation could affect the course of the

preparations for the election.
 

In

its submission, the complainant stated that it has an interest in

engaging in the competition of political parties, both at the national

and at the regional level.  For this reason, it prepared a candidate

list for the elections to the Representative Body of the Karlsbad

Region, but this list was rejected on formal grounds by the secondary

party’s 16 September 2004 decision, file no. 4587/LS/KJ/PI/04.  On 16

September 2004, this decision was displayed on the official bulletin

board; on the day the decision at issue was announced, that is 16

September 2004, the complainant took delivery of it.  In order to

protect its rights, on 17 September 2004 the complainant submitted to

the Regional Court a petition requesting that it impose upon the

Regional Office of the Karlsbad Region the duty to register the

submitted candidate list.  In the ruling that is contested in this

proceeding, the Regional Court rejected the complainant’s petition on

formal grounds with the reasoning that the petition was submitted

already before the time period to seek the court’s protection had begun

to run.  The complainant objects to the Regional Court’s interpretation,

whereby it is appropriate to dismiss as prematurely initiated a

remedial procedure which, although submitted prior to the time period

for its submission has begun to run, was still submitted after the

actual in person delivery of the decision.  The complainant considers

this interpretation as so formalistic and dogmatic, that the

positivistic approach contained therein predominates over fundamental

legal principals to such a degree that these principles are entirely

refuted, which results, in its view, in the contested decision being

unconstitutional.
 

The

complainant objects that, as a result of the Regional Court’s means of

proceeding and of the contested decision, it was denied, in particular,

the rights enshrined in Art. 36 paras. 1 and 2 of the Charter of

Fundamental Rights and Basic Freedoms (hereinafter „Charter“) and that

there was also a violation of its rights established in the

constitutional order in the area of the exercise of political rights in

the broad sense of the word.  The contested decision purportedly also

resulted in the infringement of Art. 4 of the Constitution of the Czech

Republic (hereinafter „Constitution“), since the complainant was

allegedly denied the protection of the judicial power, and Art. 5 of the

Constitution, as the complainant was not able to engage in the

competition of political parties.
 

The

wording of the relevant Articles of the Charter and Constitution which

regulate the fundamental rights to whose infringement the complainant

has objected, is as follows:

Art. 36 para. 1 of the Charter:
Everyone

may assert, through the legally prescribed procedure, his rights before

an independent and impartial court or, in specified cases, before

another body.

Art. 36 para. 2  of the Charter:
Unless a law

provides otherwise, a person who claims that her rights were curtailed

by a decision of a public administrative authority may seek court 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.

Art. 4 of the Constitution:
The fundamental rights and basic freedoms shall enjoy the protection of judicial bodies.

Art. 5 of the Constitution:
The

political system is founded on the free and voluntary formation of and

free competition among those political parties which respect the

fundamental democratic principles and which renounce force as a means of

promoting their interests.
 

Pursuant

to Art. 42 para. 4 of the Act on the Constitutional Court, within the

framework of the evidence taking carried out by the Constitutional

Court, it is necessary to request the parties, or even secondary

parties, to give their views on the constitutional complaint.
 

In

its statement of views, the Regional Court emphasized that § 52 para. 1

of Act No. 130/2000 Coll., on Elections to the Representative Bodies of

the Regions and on the Amendment of Certain other Acts (hereinafter

„Electoral Act“), lays down the right of parties to seek protection

against a decision rejecting its candidate list and also sets the

conditions and details for the assertion of this right, where it

provides that protection can be sought within two days of the delivery

of the decision, while it is stated in § 22 para. 4 that a decision

rejecting a candidate list is considered to be delivered on the third

day following its display upon the regional office’s official bulletin

board.  It draws attention to the fact that the term, „delivery“, is

defined entirely unequivocally and that, in light of § 65 of the

Electoral Act, which excludes the application of the Administrative

Procedure Code, any other interpretation of this term is ruled out.  In a

further passage of its statement, the Regional Court draws attention to

the fulfillment of the procedural conditions for the assertion of the

right in question, which flows from Act No. 150/2002 Coll., the

Administrative Court Procedure Code (hereinafter „ACPC“).  In this

respect it stated that the court must review whether the petition was

submitted prematurely or late, for in either case it is obliged,

pursuant to § 46 para. 1 lit. b) of the ACPC, to reject the petition on

preliminary grounds.  The court determines whether the submission is

premature or late in reference to the day it was submitted.  In the

Regional Court’s view, the complainant was entitled to submit the

petition either on 20 or 21 September 2004.  In view of the fact that it

was submitted on 17 September 2004, it was submitted prematurely;

therefore, pursuant to § 46 para. 1 lit. b) of the ACPC the court

rejected it on preliminary grounds.  The Regional Court added that the

two day time period for performing an act is in no sense unusual in the

Electoral Act.  In its view, the Electoral Act cannot be interpreted in

any other way, for the Act is worded unequivocally.  In reviewing the

timeliness of a petition, a court proceeds from § 52 para. 1 of the

Electoral Act, which delimits the moment in which an electoral party is

authorized to submit a petition to the court.  Should an electoral party

submit it earlier, then it was a prematurely submitted petition.  The

Regional Court affirms that the complainant was represented by an

attorney already on 16 September 2004.  It is solely the electoral party

who, cognizant of the Electoral Act and the ACPC, the enactments which

lay down the conditions for political parties to assert the right of

judicial protection against decisions rejecting a candidate list,

decides at which time to submit a petition to a court.  In the Regional

Court’s view, it could not accept the complainant’s arguments based on

the 18 September 1973 judgment of the Supreme Court of the SSR [the

Slovak Socialist Republic], case no. 1 Cz 84/73, as the Civil Procedure

Code did not then, and still does not now, contain the concept of a

premature application.  The Regional Court is convinced that the

complainant was not affected in its constitutional rights, in a case

where it did not yet have the right to seek the judicial protection

against the decision rejecting its candidate list.  On those grounds the

Regional Court proposed that the Constitutional Court reject the

complaint as manifestly unfounded.
 

The Constitutional Court did not consider it necessary to ascertain the secondary party’s position.
 

The

Constitutional Court ascertained from the Regional Court’s file that on

17 September 2004 the complainant had submitted against the secondary

party a petition (complaint) seeking a declaration of its duty to

register the candidate list.  It stated that it had prepared the

candidate list for the election to the Karlsbad Region Representative

Body, and submitted it, in the statutorily prescribed form and before

the deadline therefor, to the registry of a contributory organization,

the Directorate of Freeways and Highways of the Czech Republic, the

Karlsbad Administrative Office.  On 16 September 2004, the secondary

party issued a decision rejecting the complainant’s candidate list, in

principle due to the fact that it was submitted late.  In its statement

of views on the complaint, the secondary party proposed it be dismissed

as unfounded with reference to § 22 para. 3 of the Electoral Act, which

provides the basic conditions for the registration of candidate lists,

namely their submission to the regional office (not merely their

preparation).  It further remarked that the candidate list was submitted

at 10:30 a.m. on 1 September 2004 and that the Electoral Act does not

intend for the submission of the candidate list to some other subject

(i.e., Directorate of Freeways and Highways of the Czech Republic, the

Karlsbad Administrative Office) to have any legal effect.  In taking

evidence, the Regional Court ascertained that the secondary party’s

decision was issued and displayed on the official bulletin board on 16

September 2004; the complainant took delivery of the decision on the

same day.  In conformity with the legal fiction contained in the last

sentence of § 22 para. 4 of the Electoral Act, the decision rejecting

the candidate list was delivered on the third day following its display,

that is, on 21 September 2004; therefore, the complainant was entitled

to submit the petition on either the 20th or 21st of September 2004.  In

view of the fact that the complainant submitted its petition on 17

September 2004, thus earlier than the time period for the possibility to

seek judicial protection had begun to run, the Regional Court concluded

that the petition was submitted prematurely; thus, in the contested

ruling it rejected the petition on procedural grounds, without

considering the merits of the matter.
 

After

taking evidence, the Constitutional Court has come to the conclusion

that the complainant’s petition is well-founded.  In a proceeding before

the Constitutional Court the condition for a complaint to be

well-founded is that the complainant’s fundamental rights or basic

freedoms were infringed in the contested decision.

 

In

its jurisprudence, the Constitutional Court has repeatedly emphasized

that, in principle, it is not authorized to intervene into the ordinary

courts‘ decision-making, as it does not stand at the summit of their

court system (compare Art. 81 and Art. 90 of the Constitution).  As long

as the courts proceed in accordance with the content of Part Five of

the Charter (Art. 83 of the Constitution), the Constitutional Court

cannot arrogate to itself the right of review over their activities.  On

the other hand, it has repeatedly acknowledged that quite often the

interpretation and application of legal enactments by ordinary court can

be extreme to such a degree that it oversteps the bounds of Part Five

of the Charter and intrudes upon one of the constitutionally guaranteed

basic rights.  In such cases, however, the Constitutional Court has

jurisdiction.
 

With respect

to the content of the constitutional complaint, the Constitutional Court

dealt primarily with the constitutionality of the manner in which the

court interpreted and applied § 46 para. 1 lit. b) of the APC in

conjunction with §§ 52 para. 1 and 22 para. 4 of the Electoral Act, that

is, the norms regulating the procedure for the registration of

candidate lists and the rules for judicial review of decisions by the

competent bodies of public administration.  According to these

provisions, it applies that the regional office shall without delay

prepare decisions on the rejection of candidate lists for formal reasons

and send them on to the person who is authorized to seek protection

before a court, for example, the political party.  At the same time, it

shall without delay display the decision on the regional office’s

official bulletin board.  The decision is considered to be delivered on

the third day following its display on the bulletin board (§ 22 para. 4

of the Electoral Act).  Pursuant to a separate act (§ 52 of the

Electoral Act), the political party may, within 2 days of the delivery

of the decision, seek protection before a court against the decision

rejecting the candidate list on formal grounds.  With effect from 1

January 2003, that separate act has been the Administrative Procedure

Code.  One of the conditions for granting judicial protection is the

submission of a complaint within the designated time period as, pursuant

to § 46 para. 1 lit. b) of the APC, the court shall reject the petition

on formal grounds if it was submitted either prematurely or late.
 

The

purpose of the institute of untimeliness rests on the aim of limiting

the submission of petitions in situations where the complainants could

not as yet become sufficiently familiar with the statement of decision

and its reasoning; equally, the content of the remedial procedure (that

is, also a complaint) might not be of sufficient quality, and the court

would be excessively burdened with the procedure laid down for the

curing of defects.
 

The

electoral process, including the preparation for elections, represents

an extraordinarily complex set of interlaced stages and transactions. 

Accordingly, in framing the legal regulation of the electoral process,

it is appropriate for the legislature to make use of such institutes as

are expected to exclude doubts, delays, obstruction, etc.  Such

institutes include the institute of delivery by display on the official

bulletin board, the laying down of precise deadlines for subjects to

take action and for relevant state bodies to take decisions, or the

inadmissibility of cassational complaints in electoral matters. 

Emphasis on precision, however, does not give free rein to an excessive

attachment to limiting formal conditions; in particular, the possibility

for subjects effectively to seek the protection of their individual

rights cannot be excluded.  Among the features peculiar to the Electoral

Act is the fiction of delivery of a decision with a parallel „sending“

of it to the party.  It is evident that such a decision is written up,

is binding on the deciding body, and is addressed to the parties.  The

function of the fiction of delivery is to act as an impediment to any

possible difficulties with the decision becoming final and enforceable. 

At the same time, regardless of finality, it is clear that the body

which issued such a decision may no longer on its own revise it.  This

certainty gives to the parties the opportunity to formulate their

objections to the decision and duly to assert them.  The legislature is

authorized to limit the period for submitted objections, made within the

formal framework of a remedial procedure.  This can be done by

designating the time line for submitting such a petition.  In the case

under consideration, the legislature limited the period for submitting

the petition by designating a deadline „within two days“ of the delivery

of the decision.  In conjunction with the fiction of the delivery, this

deadline expires at the end of the second day following the end of the

third day from the date of the decision’s display on the bulletin

board.  Thus, the deadline for the submission of the petition to review a

decision under the Electoral Act can be given a constitutionally

conforming interpretation such that the moment of the fictional delivery

(the third day following the display on the bulletin board) is

important for calculating the objective endpoint of the period for the

submission of the petition, not however its beginning.  In consequence

thereof a party to the proceeding pursuant to the Electoral Act has the

opportunity to seek judicial protection within the time interval between

the delivery of the petition by „posting“ up until the second day

following the third day after its display on the bulletin board.  The

formalistic interpretation adopted by the Regional Court, namely, that

the petition could be submitted after the completion of the fictional

delivery at the earliest, leads in consequence to the restriction of the

complainant’s right to petition a court for review of the decision of a

public administrative body.  In the matter under consideration, this

could lead to the consequent restriction of its right enshrined in Art.

22 of the Charter.  The Constitutional Court recalls the significance of

this provision, according to which, any statutory provisions relating

to political rights and freedoms, as well as the interpretation and

application of them, must make possible and protect the free competition

among political forces.
 

For

the given reasons, due to the violation of Art. 36 para. 2 of the

Charter, the Constitutional Court has, pursuant to § 82 para. 2 lit. a)

of Act No. 182/1993 Coll., on the Constitutional Court, as amended,

granted the constitutional complaint and, pursuant to § 82 para. 3 lit.

a) of that Act, quashed the contested ruling.  It reached its decision

without an oral hearing, as the parties to the proceeding consented

thereto and it is evident that further clarification of the matter

cannot be expected from such a hearing (§ 44 para. 2 of the cited Act). 

The Constitutional Court did not seek the consent of the secondary

party to dispensing with the oral hearing, since the grounds upon which

the contested ruling are being quashed are different from those for

which the secondary party refused to register the complainant’s

candidate’s list.

Notice: Decisions of the Constitutional Court cannot be appealed.

Brno, 25 October 2004