2005/04/26 - Pl. ÚS 21/04: Administrative Proceeding´s Regulation

26 April 2005

HEADNOTES

The

Constitutional Court stated its legal opinion on constitutional aspects

of the issue of ruling out general regulations on administrative

proceedings in judgment file no. Pl. ÚS 14/96. It stated that meeting

the constitutional postulate under which state power can be exercised

only in cases, within the bounds, and in the manner provided by law

(Art. 2 par. 3 of the Constitution, Art. 2 par. 2 of the Charter), is a

guarantee against abuse of state power, and it results in a requirement

for a statutory basis for its application (in the present matter,

whether in the form of the Administrative Procedure Code or another

independent norm). According to the Constitutional Court, ruling out the

application of general regulations on administrative proceedings when

no others exist also creates inconsistency with Art. 36 par. 1 of the

Charter, which governs everyone’s right to due process in the exercise

of his rights.

The view that, given the absence of explicit regulation of

administrative proceedings, an administrative body is required to

observe the fundamental principles of administrative proceedings, and

these are recognizable not only from doctrine, but also a posteriori

from the case law of decisions in administrative court proceedings.

However, that concept conflicts with the constitutional maxim that state

power can be exercised only in the manner provided by law (Art. 2 par. 3

of the Constitution, Art. 2 par. 2 of the Charter). The maxim of a

statutory basis for the exercise of state power, or written procedural

law, does not rule out fine-tuning it through case law, or decisions by

administrative bodies; however, it makes constitutionally unacceptable

the absence of explicit statutory procedural regulation in its entirety.

If doctrine permits the use of analogy in administrative proceedings at

all, then it does so only limited by certain conditions – only in a

limited scope, for the purpose of bridging gaps in procedural

regulations, and only to the benefit of the rights of parties to the

administrative proceedings. However, one can not conclude from these

opinions that it could be considered acceptable to use analogy to create

procedural regulation for administrative proceedings in their entirety.


CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Plenum of the Constitutional Court, composed of JUDr. Stanislav Balík,

JUDr. František Duchoň, JUDr. Vojen Güttler, JUDr. Pavel Holländer,

JUDr. Ivana Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří Mucha, JUDr. Jiří

Nykodým, JUDr. Pavel Rychetský, JUDr. Miloslav Výborný, JUDr. Eliška

Wagnerová and JUDr. Michaela Židlická, decided on 26 April 2005 on a

petition from the Supreme Administrative Court seeking the annulment of

the phrase “3,” in § 44 of Act no. 20/1987 Coll., on State Historical

Preservation, as follows:

The

phrase “3,” in § 44 of Act no. 20/1987 Coll., on State Historical

Preservation, is annulled as of the day this judgment is promulgated in

the Collection of Laws.

 


REASONING


I.
Definition of the Matter and Recapitulation of the Petition
 

On

15 April 2004 the Constitutional Court received a petition from the

Supreme Administrative Court seeking the annulment of the phrase “3,” in

§ 44 of Act no. 20/1987 Coll., on State Historical Preservation.
 

The

petitioner did so under § 64 par. 3 of Act no. 182/1993 Coll., as

amended by later regulations, after, in connection with its decision

making activity in accordance with Art. 95 par. 2 of the Constitution,

it concluded that § 44 of Act no. 20/1987 Coll., on State Historical

Preservation, is inconsistent with Art. 2 par. 3 of the Constitution,

and Art. 2 par. 2 and Art. 36 par. 1 of the Charter of Fundamental

Rights and Freedoms (the “Charter”).
 

In

the matter file no. 6 A 102/2001, the Supreme Administrative Court is

deciding on a complaint from O.M., seeking the annulment of the decision

of the Ministry of Culture of 17 September 2001 file no. 5381/1998

designating a set of drawings and graphics owned by the plaintiff as a

cultural monument. The reasoning of that decision states that

proceedings to designate the set of items of personal property as a

cultural monument were opened at the proposal of the National Gallery in

Prague, which identified the set of drawings and graphics from the “M”

collection to be valuable works which can not be threatened with export.

The city hall of Prague and the State Institute for the Preservation of

Historic Monuments agreed with the designation as a cultural monument,

and the petitioner did not respond to the petition by the deadline

provided. On the basis of documents presented, the Ministry of Culture

concluded that selected works form the set meet the criteria of a

cultural monument, and are representative components of a historical

collection and an important document of the development of Czech and

European drawing and graphics in the period from the 16th to the 19th

centuries, as a result of which they were designated as a cultural

monument.
 

In the complaint

for the administrative decision, O. M. claimed that § 44 of the Act on

State Historical Preservation, under which general regulations on

administrative proceedings do not apply proceedings to designate a thing

as a cultural monument, was unconstitutional. He finds it

unconstitutional in the lack of an opportunity for a party to the

administrative proceedings to file an appeal, as well as in the lack of

review by an independent and impartial body with full jurisdiction, as

at the time when the complaint was filed (before the Administrative

Procedure Code went into effect) courts could review only the legality

of administrative decisions. In addition, the plaintiff claimed that the

Act on State Historical Preservation was inconsistent with Art. 11 of

the Charter, i.e. inconsistent with the constitutionally guaranteed

protection of property. He proposed that a general court review the

submission of the matter to the Constitutional Court, because he

believed that in his case the decision was made on the basis of a law

which is inconsistent with the constitutional order.
 

In

its response to the complaint, the Ministry of Culture pointed to

Constitutional Court judgment file no. I. ÚS 35/94, from which it

concludes confirmation that the Act on State Historical Preservation is

constitutional. It also pointed to a decision by the High Court in

Prague, file no. 7 A 13/99, under which the Act on State Historical

Preservation can not be deemed to be inconsistent with the

constitutional order only on the grounds that the Act does not permit

two-level proceedings. It also points to the opportunity to have a

matter reviewed by an independent body under Art. 6 of the Convention

for the Protection of Human Rights and Fundamental Freedoms (the

“Convention”).
 

The matter of

O.M., conducted at the High Court in Prague under § 246 par. 2 of the

Civil Procedure Code, as in effect before 1 January 2003, was

transferred to the Supreme Administrative Court under § 132 of the

Administrative Procedure Code. While reviewing it, the Supreme

Administrative Court took the opinion that § 44 of Act no. 20/1987

Coll., on State Historical Preservation, which must be applied in the

matter, is inconsistent with the constitutional order insofar as it

provides that general regulations on administrative proceedings do not

apply to proceedings to designate a thing as a cultural monument.
 

The

Supreme Administrative Court believes that the mere ruling out of

generally regulations on administrative proceedings [meaning Act no.

71/1967 Coll., on Administrative Proceedings (the Administrative

Procedure Code)] can not, without anything further, be considered

unconstitutional, if this ruling out is compensated by the creation of a

set of special rules, more suitable for the given type of proceedings

(as, for example, in the case of Act no. 337/1992 Coll., on

Administration of Taxes and Fees, as amended by later regulations). It

sees the justification for the existence of special regulations for

administrative proceedings in the complexity and diversity of public

administration. However, in the petitioner’s opinion, if the law rules

out the general rules for administrative proceedings without replacing

them with others, that establishes the unconstitutionality of such a

framework. In its opinion, the result of the absence of another

procedural regulation which would apply to the matter is the fact that

an administrative body is not bound to protect the rights and interests

of the citizens, is not even obligated to consider the matter

conscientiously and responsibly, is not obligated to dispose of the

matter in time and without unnecessary delays, and does not have to take

care that the decision be based on the reliably determined facts of the

matter; on the contrary, the person whose rights are concerned in the

matter does not have the opportunity to defend such rights himself or to

respond to the bases for the decision. Likewise, according to the

Supreme Administrative Court, in such a case a number of other

obligations and rules do not apply: for example, in such proceedings

there is no party to the proceedings, the matter can be decided by an

employee of the administrative body who has a personal or material

interest in the outcome of the proceedings, no one need be permitted to

review the file, no one need be notified of the decision or have the

decision delivered to him, in fact the decision does not even need to be

prepared in writing, the decision is not bound by any preliminary

question, deadlines for issuing a decision do not exist, the decision

can not be appealed, an unlawful decision can not be annulled by

re-opening proceedings or by the procedure under § 65 of the

Administrative Procedure Code, and the decision does not even formally

go into legal effect.
 

In

this situation the petitioner considers the setting of rules for the

decision making procedure to be fully in the jurisdiction of the

appropriate administrative body. In this regard it points to an expert

opinion according to which in such cases there is no choice but to

analogously apply certain institutions from the administrative code and

perhaps also generally principles of administrative law (D. Hendrych a

kol., Správní právo. Obecná část., [D. Hendrych and collective of

authors, Administrative Law. General Part.], 4th edition, Prague 2001,

p. 247). However, it considers insufficient the arguments of an

administrative body which would claim that its procedure was

constitutional because it was based on analogous application of the

administrative code and the principles of administrative law. Some of

these principles can be found in the introductory provisions of the

Administrative Procedure Code, others can arise from provisions of other

laws, and yet others may be a generalization of administrative or

judicial decision making. However, there is no binding list of them, and

it is thus left to the discretion of the administrative body which of

the aggregate of generally recognized principles it will observe in its

decision making.
 

In this

regard the Supreme Administrative Court points to Constitutional Court

judgment file no. Pl. ÚS 14/96, which, it believes, applies fully to the

present matter and which states, among other things, that ruling out

the use of general regulations on administrative proceedings when no

others exist violates the guarantee of a statutory basis for the

exercise of state power under Art. 2 par. 3 of the Constitution and Art.

2 par. 2 of the Charter and also creates inconsistency with Art. 36

par. 1 of the Charter, which provides the right of every person to a

specified procedure when exercising his rights.
 

Based

on the foregoing, the Supreme Administrative Court believes that

completely excluding the Administrative Procedure Code from decision

making on the rights and obligations of natural persons and legal

entities in a situation where there is no other applicable framework

which the administrative body would be required to observe is

inconsistent with the constitutional order, specifically with Art. 2

par. 3 of the Constitution and the corresponding provision of Art. 2

par. 2 of the Charter, as well as with Art. 36 par. 1 of the Charter,

for which reason it proposed that the phrase “3,” in § 44 of Act no.

20/1987 Coll., on State Historical Preservation, be annulled.
 


II.

Recapitulation of Substantive Parts of the Statement from the Party to the Proceedings


The

Constitutional Court, under § 42 par. 4 a § 69 of Act no. 182/1993

Coll., on the Constitutional Court, as amended by later regulations,

sent the petition in question to the Chamber of Deputies. In his

statement of 24 February 2005, the Chairman of the Chamber of Deputies

of the Parliament of the Czech Republic, PhDr. Lubomír Zaorálek, points

in the introduction to the procedure followed by the Ministry of Culture

in the matter of the plaintiff O. M., during which he was informed in

writing about the filing of a petition to designate a set of personal

property as a cultural monument, and he was given an opportunity to

respond to the petition under § 3 par. 2 of the Act on State Historical

Preservation, from which the party to the proceedings before the

Constitutional Court concludes that the fundamental principles of

administrative proceedings were observed. The statement further provides

that although the Act on State Historical Preservation does not permit

an appeal against designation of things as cultural monuments, this does

not yet mean that it is inconsistent with the Constitution or with

international treaties by which the Czech Republic is bound. According

to the party to the proceedings, the Act on State Historical

Preservation does not rule out the possibility that a matter will be

reviewed by handled by an independent body.
 

The

Chairman of the Chamber of Deputies also refers to the arguments of the

Supreme Administrative Court, pointing to the legal opinion contained

in the decision of the High Court in Prague of 30 August 2001, file no. 7

A 13/99-28, concerning § 44 of the Act on State Historical Preservation

and ruling out application of the Administrative Procedure Code for

proceedings to designate things as cultural monuments, where by the

Supreme Administrative Court itself confirms that it agrees with the

view that in such proceedings an administrative body must observe the

fundamental principles of administrative proceedings.
 

The

Chairman of the Chamber of Deputies also confirmed that Act no. 20/1987

Coll. was passed by the necessary majority of deputies of the Czech

National Council on 30 March 1987, was signed by the appropriate

constitutionally required persons, and promulgated in the Collection of

Laws.
 

In the closing of the

statement, he then states that it is up to the Constitutional Court, in

connection with the petition to annul the phrase “3,” in § 44 of Act no.

20/1987 Coll., on State Historical Preservation, to evaluate the

constitutionality of that statutory provision and issue the appropriate

decision.
 

The Constitutional

Court, under § 42 par. 4 a § 69 of Act no. 182/1993 Coll., as amended

by later regulations, also sent the petition to the Senate of the

Parliament of the Czech Republic. In the introduction to his statement

of 22 February 2005, the Senate Chairman, MUDr. Přemysl Sobotka, states

that Act no. 20/1987 Coll., on State Historical Preservation, was passed

by the Czech National Council on 30 March 1987, before the Senate was

established, and none of the amendments to it concerned the contested §

44, so the Senate can not provide a statement which would be based on

its discussion of the relevant provision of the Act in the Senate.
 

As

regards the claimed unconstitutionality of § 44 of Act no. 20/1987

Coll., as regards the petitioners arguments, the party to the

proceedings points to certain aspects related to the issue:
 

A

matter concerning designating a thing as a cultural monument (under § 3

of the Act on State Historical Preservation) is not a clear case of

ruling out general principles on administrative proceedings without any

statutory procedural framework at all. Certain procedural rules on

designating things as cultural monuments are provided precisely by § 3

of Act no. 20/1987 Coll., as well as by § 1 of Decree no. 66/1988 Coll.,

as amended by Decree no. 538/2002 Coll. Therefore, in the opinion of

the Chairman of the Senate, from that point of view, rather than

arguments about the non-existence of another legal framework it would be

appropriate to deal with the contents of § 3 of the Act as to whether

and on what grounds this statutory framework can be considered so

inadequate that in relation to it the part of § 44 expressed by the

number “3,” of the Act on State Historical Preservation can be

considered unconstitutional (also in view of previous court decisions in

analogous matters, e.g. decisions by the High Court in Prague of 30

August 2001, file no. 7 A 13/99 and the Supreme Administrative Court of

28 April 2004, file no. 6 A 106/2002). However, according to the party

to the proceedings, the present petition does not do so, and the entire

argument is basically built on the fact that in this matter there is no

other applicable legal framework which the administrative body would be

required to observe.
 

In the

conclusion of his statement, the Chairman of the Senate states that is

it up to the Constitutional Court to evaluate the constitutionality of

the contested provision of § 44 of Act no. 20/1987 Coll., on State

Historical Preservation, and make a decision in the matter.
 


III.
Wavier of Hearing

 

Under

§ 44 par. 2 of Act no. 182/1993 Coll., as amended by later regulations,

the Constitutional Court, with the consent of the parties, may waive a

hearing, if it can not be expected to clarify the matter further. In

view of the fact that all the parties, that is, the petitioner, in the

filing of 6 April 2005, and other parties in the statement from the

Chairman of the Chamber of Deputies of the Parliament of the Czech

Republic, dated 12 April 2005, and the statement from the Chairman of

the Senate of the Parliament of the Czech Republic, dated 8 April 2005,

agreed to waive a hearing, and also in view of the fact that the

Constitutional Court believes that a hearing can not be expected to

clarify the matter further, a hearing in this matter was waived.



IV.

Text of the Contested Legal Regulation


Under

§ 44 of Act no. 20/1987 Coll. “general regulations on administrative

proceedings do not apply to proceedings under § 3, 6, 8 and § 21 par. 2

and 4,” and § 3 of the Act, as amended by later regulations, regulates

designation of things as cultural monuments.
 


V.

Conditions for the Active Standing of the Petitioner


The

petition to annul the phrase “3,” in § 44 of Act no. 20/1987 Coll., on

State Historical Preservation was filed by the Supreme Administrative

Court under § 64 par. 3 of Act no. 182/1993 Coll., as amended by later

regulations.
 

As has already

been narrated, in the matter file no. 6 A 102/2001 the Supreme

Administrative Court is deciding on a petition from O. M., seeking the

annulment of a decision by the Ministry of Culture of 17 September 2001,

file no. 5381/1998, designating a set of drawings and graphics owned by

the petitioner as a cultural monument. The Supreme Administrative

Court, after concluding, in connection with its decision making activity

according to Art. 95 par. 2 of the Constitution, that the phrase “3,”

in § 44 of Act no. 20/1987 Coll., on State Historical Preservation,

which is to be applied in resolving the matter file no. 6 A 102/2001, is

inconsistent with Art. 2 par. 3 of the Constitution, Art. 2 par. 2, and

with Art. 36 par. 1 of the Charter, the Supreme Administrative Court,

by resolution of 5 April 2004, file no. 6 A 102/2001-37, suspended

proceedings in the matter under § 48 par. 1 let. a) of the

Administrative Procedure Code, and submitted the petition for review of a

norm to the Constitutional Court.
 

A

procedural requirement for the active standing of a general court,

under § 64 par. 3 of Act no. 182/1993 Coll., on the Constitutional

Court, as amended by later regulations, is that there be a relationship

between the proposed annulment of a statutes, or its individual

provisions, and the subject matter of the source proceedings which

establishes decision-making grounds for evaluation of the matter by the

general court. Under § 75, § 76, § 78 of the Administrative Procedure

Court, the review of a contested decision in proceedings on a complaint

against a decision by an administrative body includes review of the

claimed defects in the administrative proceedings, and § 44 of the Act

on State Historical Preservation is a fundamental starting point for

such evaluation in the proceedings in question. Therefore, we can state

that the petitioner has met the requirements for active standing in

proceedings on review of a norm.
 


VI.

Constitutionality of Jurisdiction and the Legislative Process
 

Under

§ 68 par. 2 of Act no. 182/1993 Coll., as amended by later regulations,

the Constitutional Court, when making decisions in proceedings to annul

statutes and other legal regulations, evaluates the content of these

regulations in terms of their consistency with the constitutional order,

or statutes, in the case of a different legal regulation, and

determines whether they were passed and issued within the bounds of

constitutionally provided jurisdiction and in a constitutionally

prescribed manner.
 

If the

Constitutional Court, when reviewing a norm, assesses the jurisdiction

of a norm-creating body and the constitutionality of the norm-creating

process, its starting point is § 66 par. 2 of the Act on the

Constitutional Court, under which a petition in proceedings to annul

statutes and other legal regulations is impermissible if the

constitutional act or international treaty with which the reviewed

regulations are claimed to be inconsistent by the petition ceased to be

in effect before the petition was delivered to the Constitutional Court.

It follows from this that with legal regulations issued before the

Constitution of the Czech Republic, no. 1/1993 Coll. went into effect,

the Constitutional Court is authorized to review only whether their

content is consistent with the existing constitutional order, but not

the constitutionality of the process of their creation and observance of

norm-creating jurisdiction (see judgments file no. Pl. ÚS 9/99, Pl. ÚS

10/99, Pl. ÚS 7/2000, and Pl. ÚS 40/02).
 

Thus,

after making that finding in this matter, the Constitutional Court

limits itself to stating that Act no.. 20/1987 Coll., on State

Historical Preservation, went into effect on 1 January 1988, in the

period before the Constitution of the Czech Republic, no. 1/1993 Coll.

went into effect, and none of the amendments to it apply to the

contested § 44.
 


VII.

Consistency of Content of the Contested Statutory Provision with the Constitutional Order
(Constitutionality of Ruling Out General Regulations on Administrative Proceedings)


The

Constitutional Court stated its legal opinion on constitutional aspects

of the issue of ruling out general regulations on administrative

proceedings in judgment file no. Pl. ÚS 14/96. It stated that meeting

the constitutional postulate under which state power can be exercised

only in cases, within the bounds, and in the manner provided by law

(Art. 2 par. 3 of the Constitution, Art. 2 par. 2 of the Charter), is a

guarantee against abuse of state power, and it results in a requirement

for a statutory basis for its application (in the present matter,

whether in the form of the Administrative Procedure Code or another

independent norm). According to the Constitutional Court, ruling out the

application of general regulations on administrative proceedings when

no others exist also creates inconsistency with Art. 36 par. 1 of the

Charter, which governs everyone’s right to due process in the exercise

of his rights.
 

As already

stated, Act no. 20/1987 Coll., on State Historical Preservation, was

passed by the Czech National Council on 30 March 1987, and went into

effect on 1 January 1988, and none of the amendments to it after the

fall of the communist regime applied to the contested § 44.
 

According

to the background report to § 44 of the government draft of the Czech

National council Act on State Historical Preservation (publication no.

8, Czech National Council 1986-1990): “designating a thing as a cultural

monument does not affect the specific rights of its owners, and

therefore there are no grounds for applying the Administrative Procedure

Code. In addition, the communist society has a special interest in the

preservation and culturally political application of cultural monuments

which can not be subject to the  position and the personal viewpoints of

their owners. Nevertheless, even if general regulations on

administrative proceedings are ruled out, the relevant provisions of the

Act set forth the entitlement of the owners to respond to a petition to

designate things as cultural monuments or the basis for doing so.”
 

The

entire concept of the Act on State Historical Preservation, reflecting

period and ideological axioms, arises from the absolute prevalence of

the public (state) interest and denial of protection of individual

rights, in this context property rights. This approach led to the

contradictory position that designation of a thing as a cultural

monument, which is connected to restriction of the owners rights to use

or dispose of it, “does not affect the specific rights of its owners,”

due to which the legislature at the time found no grounds to apply the

Administrative Procedure Code in the proceedings. Another argument in

the concept at the time, which contradicts the first argument, under

which restriction of an owner’s right to use or dispose of a thing does

not affect his property rights, is the argument of the clear dominance

of the “communist society’s special interests” which  “can not be

subject to the  position and the personal viewpoints of their owners.”
 

Thus

conceived, the purpose of § 44 of the Act on State Historical

Preservation can only be considered inconsistent with the constitutional

protection of property rights under Art. 11 of the Charter and Art. 1

of the Protocol to the Convention.
 

The

Constitutional Court is aware of the constitutional protection of

cultural wealth, in the sense of protection of a public good or interest

(Art. 34 par. 2 of the Charter). In a number of its decisions it has

expressed the opinion that conflict arises at the constitutional law

level not only between the fundamental rights and freedoms themselves,

but also between the fundamental rights and freedoms and other

constitutionally protected values – public goods or interests (file no.

Pl. ÚS 15/96, III. ÚS 256/01). This conflict is evaluated by applying

the principle of proportionality, a necessary component of which is the

maxim arising from Art. 4 par. 4 of the Charter, under which, even if

fundamental rights and freedoms are restricted due to a conflicting

public good or interest taking precedence, their essence and

significance must be preserved.
 

It

follows from the foregoing that the exclusion of general regulations

for administrative proceedings from decision making on designating a

thing as a cultural monument, as established in § 44 of the Act on State

Historical Preservation, is also inconsistent with the consequences of

evaluating that legal regulation according to the principle of

proportionality and Art. 4 par. 4 of the Charter.
 

The

party to the proceedings makes two arguments supporting the

constitutionality of § 44 of Act no. 20/1987 Coll. The first is a

reference to the case law of the general courts and of the

Constitutional Court; the first is a claim that ruling out general

regulation of administrative proceedings when deciding on designating a

thing as a cultural monument does not result in a complete absence of

procedural regulation, because § 3 of Act no. 20/1987 Coll., as amended

by later regulations, as well as § 1 of Decree no. 66/1988 Coll., as

amended by Decree no. 538/2002 Coll., set forth certain clauses in this

context.
 

Insofar as the

Senate’s statement refers to Constitutional Court judgment file no. I.

ÚS 35/94, it must be emphasized that the subject of that judgment was

evaluation whether the institution of designating a thing as a cultural

monument was materially consistent with Art. 11 of the Charter, but not

the question of ruling out the general regulations of administrative

proceedings without replacing them with special regulations.
 

In

its decision of 30 August 2001, file no. 7 A 13/99, the High Court in

Prague concluded that “ the fact that Act no. 20/1987 Coll., on State

Historical Preservation, does not permit an appeal against a decision

designating a thing as a cultural monument (§ 3 and § 44 of the Act)

does not make the Act inconsistent with the Constitution or with

international treaties, specifically with Article 6 of the Convention,”

because “Act no. 20/1987 Coll. does not rule out the possibility of the

matter being evaluated by an independent body under Article 6 of the

Convention (in the context of the Czech Republic, by a court).”

Generally, as regards proceedings to designate a thing as a cultural

monument, the court concluded that “even if § 44 of Act 20/1987 Coll.,

on State Historical Preservation, rules out application of the

Administrative Procedure Code to proceedings to designate things as

cultural monuments (§ 3 of the Act), an administrative body in such

proceedings must observe the fundamental principles of administrative

proceedings.”
 

In its

judgment of 28 April 2004, file no. 6 A 106/2002, in response to the

plaintiff’s objection that the legal regulation of designation of a

thing as a cultural monument is very incomplete and rules out

application of the Administrative Procedure Code, the Supreme

Administrative Court referred to the legal opinion in the decision of

the High Court in Prague of 30 August 2001, file no. 7 A 13/99-28.

Therefore, in the adjudicated matter it considered relevant not the act

whether the defendant (the Ministry of Culture) acted according to the

Administrative Procedure Code, but whether it respected the rights of

the owner of the building in question (the plaintiff), finding support

precisely in the fundamental principles of administrative proceedings.

In this regard, the Supreme Administrative Court determined that the

defendant informed the plaintiff in writing that a petition had been

filed to designate the building as a cultural monument (§ 3 par. 2 of

the Act on State Historical Preservation), permitted him to present his

arguments and submit evidence, which it subsequently duly considered,

and therefore the Court concluded that the defendant observed the

fundamental principles of administrative proceedings..
 

In

its case law, the Constitutional Court has spoken on the question of

the constitutionality of the system of appeals. In its judgment file no.

Pl. ÚS 15/01 it stated in this regard: “The system of appeals levels is

the result of balancing, on the one hand, the effort to achieve the

sovereignty of law, and on the other hand, efficiency in decision making

and legal certainty.” The Constitutional Court thus shares the opinion

of the High Court in Prague that the lack of two levels in

administrative proceedings, given the existence of judicial review, does

not by itself make that procedural framework inconsistent with the

safeguards contained in Art. 6 of the Convention and Art. 36 of the

Charter (this maxim is illustrated in court proceedings by the

unconstitutionality of so-called “surprise decisions,” which, by

eliminating a second level of review, deprive the parties to proceedings

of the right to present factual and legal arguments (see judgments file

no. III. ÚS 139/98, I. ÚS 336/99, III. ÚS 377/01, II. ÚS 532/02, I. ÚS

220/04 and others)). However, the view that the lack of two levels in

administrative proceedings is not in itself unconstitutional does not

lead to the conclusion that, consequently, ruling out general

regulations on administrative proceedings combined with the lack special

regulations likewise does not establish inconsistency with the legal

order. The reason for the distinction is the fact that the lack of

two-level proceedings in itself is not unconstitutional in the case of

explicit regulation of administrative proceedings, while the subject of

the adjudicated matter is the constitutionality of the absence of

explicit regulation of administrative proceedings in their entirety.
 

Both

of these decisions also state the view that, given the absence of

explicit regulation of administrative proceedings, an administrative

body is required to observe the fundamental principles of administrative

proceedings, and these are recognizable not only from doctrine, but

also a posteriori from the case law of decisions in administrative court

proceedings.
 

This argument

comes from the concept of an unwritten framework for the entire complex

of procedural law. However, that concept conflicts with the

constitutional maxim that state power can be exercised only in the

manner provided by law (Art. 2 par. 3 of the Constitution, Art. 2 par. 2

of the Charter). The maxim of a statutory basis for the exercise of

state power, or written procedural law, does not rule out fine-tuning it

through case law, or decisions by administrative bodies; however, it

makes constitutionally unacceptable the absence of explicit statutory

procedural regulation in its entirety.
 

The

absence of procedural regulations for administrative proceedings can be

compensated for by the decision making activities of administrative

courts and the case law of courts through the use of analogy. However,

in this regard legal doctrine takes very diverse positions. Petr Průcha

rejects analogy generally: “For the application and interpretation of

norms in administrative law, the use of analogy does not come into

consideration, which in a way arises directly from their nature.” (P.

Průcha, Správní právo. Obecná část. [Administrative Law. General Part.]

Brno 2003, p. 70). Petr Hajn also takes a restrained attitude to analogy

in administrative law: “Analogy as a legal institution serves to bridge

gaps in the law and is applied particularly in private law. In public

law and in administrative proceedings, we must observe considerable

restraint when applying this institution ." (P. Hajn, Analogie jako

právní institut a jako způsob usuzování. Několik poznámek k analogii v

právu (nejen) správním. [Analogy as  a Legal Institution and as a Method

for Deciding. Some Comments on Analogy in Administrative (and Other)

Law]. Právník [The Lawyer], no. 2, 2003, p. 123). With regard to Art. 2

par. 3 of the Constitution and Art. 2 par. 2 of the Charter, Milan Kindl

formulates the principle that “in public law analogy can not be used to

the disadvantage of someone who does not exercise public power,” from

which it follows that “it may be used to his benefit” (M. Kindl, Malá

úvaha o analogii ve veřejném právu [A Few Thoughts on Analogy in Public

Law]. Právník [The Lawyer], no. 2, 2003, p. 133). A similar position is

taken by Vladimír Sládeček: “It may seem that the scope for using

analogy in administrative or public law is hopelessly limited, or

completely eliminated by the enshrining of constitutional principles –

the limits for exercising public (state) power (namely, Art. 2 par. 3 of

the Constitution, Art. 2 par. 2 and Art. 4 par. 1 of the Charter).

However, that does not mean it is completely impossible to apply

analogy, thought it evidently should not be a frequent phenomenon ...

the use of analogy of statutes or analogy of laws in administrative law

(whether substantive or procedural) can be considered if it is (clearly)

to the advantage of the party to the proceedings or the legal

relationship of administrative law.” (V. Sládeček, Obecné správní právo

[General Administrative Law]. Prague 2005, p. 130). According to

Vladimír Vopálka, “if the regulations are insufficient, there is no

choice but to rely, using analogy, on certain institutions of the

Administrative Procedure Code, provided, of course, that this is not

ruled out by the nature of the matter, and on certain principles of

administrative (procedural) law (D. Hendrych and collective of authors,

Správní právo. Obecná část [Administrative Law. General Part]. 5th ed.,

Prague 2003, p. 359).
 

Even

from this overview of doctrinal opinions, in all their variety, one can

conclude that if doctrine permits the use of analogy in administrative

proceedings at all, then it does so only limited by certain conditions –

only in a limited scope, for the purpose of bridging gaps in procedural

regulations, and only to the benefit of the rights of parties to the

administrative proceedings. However, one can not conclude form these

opinions that it could be considered acceptable to use analogy to create

procedural regulation for administrative proceedings in their entirety.
 

The

Constitutional Court’s legal opinion stated in judgment file no. Pl. ÚS

14/96 is thus in agreement with the general results of doctrinal

positions.
 

Finally, the

party to the proceedings objects against the justification of the

petition from the Supreme Administrative Court with the claim that

ruling out the general framework of administrative proceedings in

deciding on designating a thing as a cultural monument does not result

in complete absence of statutory procedural regulation because § 3 of

Act no. 20/1987 Coll., as amended by later regulations, as well as § 1

of Decree no. 66/1988 Coll., as amended by Decree no. 538/2002 Coll.,

provides certain clauses in this regard.
 

Under

§ 3 par. 2 of the Act on State Historical Preservation the Ministry of

Culture shall notify the owner in writing that a petition has been filed

to designate a thing as a cultural monument, or that it intends to

designate a thing as a cultural monument on its own initiative, and

shall permit him to respond to the petition or other instigation.

Paragraph 4 of that section provides the obligation of the Ministry of

Culture to give written notice of designation of a thing as a cultural

monument to its owner, the Regional Office, the Municipal Office of a

municipality with expanded jurisdiction, and the expert organization of

state historical preservation, and, in the case of archeological finds,

also the Academy of Sciences of the Czech Republic; The Ministry has

this obligation also if it did not find grounds to designate a thing as a

cultural monument. Paragraph 5 establishes the owner’s obligation to

cooperate in providing relevant information to the Ministry for purposes

of designating things as cultural monuments, and paragraph 6 of the Act

on State Historical Preservation contains a reference to more detailed

procedural regulation by a general legal regulation. The party to the

proceedings considers that to be § 1 of Decree no. 66/1988 Coll., as

amended by Decree no. 538/2002 Coll., under which the Ministry of

Culture designates real and personal property, or sets of its, as

cultural monuments on its own initiative or that of others; before

designating a thing as a cultural monument it may, in addition to a

statement under § 3 par. 1 of the Act, also require an assessment from

expert, scientific, and artistic organizations. It also provides details

on the mandatory cooperation of the owner under § 3 par. 5 of the Act

on State Historical Preservation.
 

Although

§ 3 of the Act on State Historical Preservation contains certain

procedural norms, in terms of the complete content of regulation of

administrative proceedings this is only a torso; it is a minimal part of

such regulation, which can not under any circumstances claim that it

aims to be complete (possibly with the presence of certain gaps). The

provision of § 1 of Decree no. 66/1988 Coll., as amended by Decree no.

538/2002 Coll., does not meet the requirement arising from Art. 2 par. 2

of the Constitution and Art. 2 par. 2 of the Charter regarding the

legal force of a legal regulations which sets forth the manner of

exercising state power.
 

Thus,

since even the incomplete regulation contained in § 3 of the Act on

State Historical Preservation changes nothing about the fundamental

absence of special regulations for proceedings to decide on designating a

thing as a cultural monument (after ruling out the application of

general regulations of administrative proceedings), this incomplete

statutory regulation is not capable of reversing the conclusion that the

phrase “3,” in § 44 of Act no. 20/1987 Coll. is inconsistent with Art. 2

par. 3 of the Constitution and Art. 2 par. 2 of the Charter.
 

On

the basis of the grounds thus set forth, the ruling out of general

regulations for administrative proceedings in decision making on

designating a thing as a cultural monument must be considered

inconsistent Art. 11 par. 1 and Art. 1 of the Protocol to the Convention

read in connection with Art. 4 par. 4 of the Charter, as well as with

Art. 2 par. 3 of the Constitution and with Art. 2 par. 2 of the Charter.
 

Based

on the foregoing, the Constitutional Court annulled the phrase “3,” in §

44 of Act no. 20/1987 Coll. as of the day this judgment is promulgated

in the Collection of Laws.

Notice: Decisions of the Constitutional Court cannot be appealed.

Brno, 26 April 2005