2008/12/09 - Pl. ÚS 26/07: Administrative Expulsion of Alien

09 December 2008

HEADNOTES

According

to Art. 36 para. 2 of the Charter of Fundamental Rights and Basic

Freedoms (hereinafter the “Charter”), the review of decisions relating

to fundamental rights and basic freedoms in accordance with the Charter

may not be excluded from court jurisdiction. This right is formulated in

a general manner and not limited to citizens of the Czech Republic. If

then a decision on administrative expulsion is capable of infringing a

fundamental right or basic freedom of an alien, the provision of the Act

excluding a judicial review of such a decision no longer stands.

Even

though the subjective, constitutionally guaranteed right of aliens to

reside in the territory of the Czech Republic does not exist, rights

which might be aggrieved by expulsion are undoubtedly guaranteed to

aliens by the Charter. In relation to this, the Charter in no way

discriminates between whether an alien resides in the territory of the

Czech Republic with due authorisation or not. Even a decision on

administrative expulsion of an alien, one who resides in the territory

of the Czech Republic without due authorisation, may infringe a number

of their fundamental rights, such as the right to life, the right not to

be subjected to torture or to other degrading treatment or punishment,

the right to respect for private and family life, etc. The provisions of

the Act on the Residence of Aliens, which under this circumstance

exclude a judicial review of decisions on administrative expulsion, are

consequently in conflict with Art. 36 para. 2 of the Charter.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Constitutional Court Plenum, composed of Stanislav Balík, František

Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů,

Vladimír Kůrka, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým,

Pavel Rychetský (Justice Rapporteur), Miloslav Výborný, Eliška

Wagnerová, and Michaela Židlická, adjudicated the matter of a petition

filed by the Supreme Administrative Court, represented by JUDr. Petr

Příhoda, President of a Chamber of the Supreme Administrative Court,

concerning the annulment of the provisions of § 171 para. 1 clause c) of

Act No. 326/1999 Coll. on the Residence of Aliens in the Territory of

the Czech Republic and on Alterations to Some Acts, as amended by Act

No. 161/2006 Coll., with participation by the Chamber of Deputies and

the Senate of the Parliament of the Czech Republic, as follows:


The

provisions of § 171 para. 1 clause c) of Act No. 326/1999 Coll. on the

Residence of Aliens in the Territory of the Czech Republic and on

Alterations to Some Acts, as amended by Act No. 161/2006 Coll., shall be

annulled as of the date this Judgment is published in the Collection of

Laws.

 


REASONING


I.
Recapitulation of the petition
 

1.

By a petition filed in accordance with Art. 95 para. 2 of the

Constitution of the Czech Republic (hereinafter the “Constitution”) and §

64 para. 3 of Act No. 182/1993 Coll. on the Constitutional Court, as

amended by later regulations, the Supreme Administrative Court

(hereinafter also the “petitioner”) claimed that a Judgment be passed

whereby the provisions of § 171 para. 1 clause c) (hereinafter also the

“contested provisions”) of Act No. 326/1999 Coll. on the Residence of

Aliens in the Territory of the Czech Republic and on Alterations to Some

Acts, as amended by Act No. 161/2006 Coll. (hereinafter only “Act on

the Residence of Aliens”), be annulled. By the contested provisions,

decisions on administrative expulsion are excluded from a judicial

review, if, prior to the start of proceedings on the expulsion, the

alien stayed in the territory or in the transit area of an international

airport in an unauthorised manner. The petitioner believes that the

contested provisions are in conflict with Art. 36 para. 2 and Art. 10

para. 2 of the Charter of Fundamental Rights and Basic Freedoms

(hereinafter only the “Charter”).

2. The petition states that the

Supreme Administrative Court administers proceedings on a cassational

complaint on the merits, file No. 8 As 42/2006, in which the

complainants, Nguyen Xuan Thuy and Do Adamová, claim that the resolution

of the Municipal Court in Prague, file No. 8 Ca 339/2005-29 dated 18

May 2006, be annulled. The contested resolution dismissed their action

against a decision made by the relevant bodies on administrative

expulsion of the former complainant from temporary residence in the

territory of the Czech Republic, as specified by § 119 para. 1 clause a)

item 3, clause b) item 1, clause c) items 2, 3 of Act No. 326/1999

Coll.

3. The administrative expulsion was imposed as a result of

a residence check effected by the Alien Police on 22 June 2005. During

this check, Nguyen Xuan Thuy submitted a forged travel document

featuring another name. Following ascertainment of his true identity,

the relevant bodies also found out that administrative expulsion from

temporary residence in the territory of the Czech Republic had been

imposed on him earlier, with a term of validity from 26 January 2001 to

26 January 2004. Nguyen Xuan Thuy stated that he was living in a shared

household with his common-law wife Do Adamová, a citizen of the Czech

Republic, and that it was his intention to conclude marriage and have

children with her, and expulsion would represent an infringement of his

private and family life. The administrative body, in reasoning their

decision, stated that they took into account all identified acts which

the alien had committed in the territory of the Czech Republic, the

impact on his private life, and security of the Czech Republic and the

European Union, as well as protection against unlawful migration. They

concluded that imposition of administrative expulsion would not

constitute an inadequate infringement of the private life of the alien,

since, however he has a common-law wife here, he had known in the past

that he resided in the territory of the Czech Republic in contravention

of the law, and had not properly solved said situation himself. Upon an

appeal by the complainants, the appellate administrative body reviewed

the decision on administrative expulsion, after which the relevant

sections of the verdict of the contested decision remained unchanged.

4.

Subsequently, Nguyen Xuan Thuy and Do Adamová brought an action to the

Municipal Court in Prague, which denied the same with reference to § 171

clause c) of the Act on the Residence of Aliens. In the reasoning for

their decision they stated that, on the basis of the effected

administrative proceedings and criminal proceedings, it had been proven

that Nguyen Xuan Thuy, prior to the commencement of the proceedings on

expulsion, resided in the territory of the Czech Republic on the basis

of forged documents, that is without due authorisation, and a review by a

court is excluded in the given case.

5. When dealing with the

cassational complaint on the merits, the Supreme Administrative Court

concluded that the contested provisions of the Act on the Residence of

Aliens are in conflict with the above-specified provisions of the

Charter, and consequently filed a petition to the Constitutional Court

concerning annulment of the same.

6. The petitioner states that

“in accordance with the provisions of Art. 36 para. 2 of the Charter, a

person who claims that their rights were curtailed by a decision of a

body of public power may turn to a court for review of the legality of

that decision, unless a law provides otherwise. Judicial review of

decisions affecting the fundamental rights and basic freedoms listed in

the Charter may not be removed from the jurisdiction of courts.” The

petitioner refers to Art. 14 para. 1 of the Charter according to which

the liberty of movement and the freedom of the choice of residence in

the territory of the Czech Republic are guaranteed, and points out that

an alien may be, in accordance with the fifth paragraph of the same

Article, expelled only in cases determined by law. The Supreme

Administrative Court also quotes Art. 10 para. 2 of the Charter,

establishing the right to be protected from any unauthorised intrusion

into private and family life.

7. The petitioner distinguishes

previous case law of the Constitutional Court, specifically Resolution

file No. III. ÚS 219/04 dated 23 June 2004 (U 39/33 SbNU 591), where the

Constitutional Court, according to the petitioner, “made a statement,

in connection with a review of an entitlement to be granted a visa, that

a subjective, constitutionally guaranteed right of aliens to reside in

the territory of the Czech Republic does not exist, since it is for a

sovereign state to decide under which (non-discriminatory) conditions it

allows residence of aliens in its territory. In accordance with the

explicit wording of the Act, there is no inherent legal entitlement to

be granted a visa.” The Constitutional Court thus, according to the

petitioner, “concluded that the issue of granting a visa is left to the

administrative discretion of the relevant administrative bodies.”

8.

However, according to the petitioner, in the case of administrative

expulsion on the basis of the contested provisions, the situation is

different: “Administrative expulsion as an administrative sanction is

not an issue of administrative discretion; this instrument is applied

when conditions for its imposition are fulfilled. The Act on the

Residence of Aliens, Section X, contains an exhaustive enumeration of

cases under which an alien may be expelled. The Act endeavours to

mitigate any potentially adverse consequences of administrative

expulsion by means of the provisions of § 122, which define conditions

for eliminating the severity of administrative expulsion. The existing

legal regulation disenabling a judicial review of such administrative

decisions creates, within the framework of the state administration, a

possibility for non-transparent decision-making to take place, with all

the effects resulting from the same concerning the quality of

administrative decisions and, in extreme cases, may lead to corruption.

There is no objective and impartial mechanism (in the case of state

administration bodies, an appellate review of individual administrative

acts) whereby it would be verified whether, in the given case, reasons

for expulsion determined by law (Art. 14 para. 5 of the Charter) are

truly fulfilled. Unlawful administrative expulsion may represent a

significant and difficult to rectify infringement of private and family

life guaranteed by Art. 10 para. 2 of the Charter, or the right to

engage in commercial and economic activity (Art. 26 para. 1 of the

Charter).”

9. In order to support their arguments, the petitioner

refers to conclusions expressed by the Supreme Court concerning the

possibility of imposing a sentence of expulsion. In a judgment dated 3

September 1997, file No. 2 Tzn 60/97 (No. 13/1998 of Collection of

Criminal Law Decisions) they stated that “the sentence of expulsion may

be imposed only ‘in cases in which the same is not made impossible by

personal circumstances of the defendant, in particular their family

relations and bonds to a locality in the Czech Republic where they have

lived a considerable part of their lives. Only in such a way it is

possible to ensure that the punishment imposed is not an inadequate

infringement of their lives (…). Only such a decision is then also in

harmony with Art. 8 of the Convention on the Protection of Human Rights

and Fundamental Freedoms (…).’” In the petitioner’s opinion, criminal

acts represent, from the viewpoint of level of risk posed to society,

such a category of unlawful acts which are “considerably more dangerous

for society than administrative offences.” The more so, according to the

petitioner, it is necessary to conclude that the same must apply to the

range of imposition of administrative expulsion, especially in light of

the fact that the impacts of the sentence of expulsion and

administrative expulsion on the private life of an individual are

similar. According to the petitioner “the right to a family life, or

potential considerable infringement of the same […] should also be taken

into account in cases of imposition of administrative expulsion. In the

instance of alleged infringements of fundamental rights, the law must

allow for judicial review of administrative decisions.”

10. The

petitioner also refers to the case law of the European Court of Human

Rights. In a judgment of the European Court of Human Rights in the case

of Berrehab v. the Netherlands No. 10730/84 dated 21 June 1988, the

Court, in the opinion of the petitioner, admitted that the Convention on

the Protection of Human Rights and Fundamental Freedoms (hereinafter

only the “Convention”) does not prohibit contracting states from

regulating the entry and residence of aliens in the country, however,

the restricting measures adopted should be proportional in relationship

to the pursued objective. According to the petitioner’s interpretation,

the Court has thus “assessed the legitimacy of the pursued objective and

significance of the infringement of the right of the complainant to the

protection of his family life. In the given case, the Court concluded

that non-extension of the residence visa and expulsion of the

complainant would result in a serious infringement of his family life.”

At the same time, the petitioner states that they are aware of “the case

law [of the European Court of Human Rights] in which the Court stated

that Art. 6 of the Convention [see, for example, judgment of the

European Court of Human Rights in the case of Maaouia v. France No.

39652/98 dated 5 October 2000] does not apply to a ban on residence in

the territory of a member country, since Art. 1 of Protocol No. 7 to the

Convention contains specific safeguards in proceedings on the expulsion

of aliens; and member countries of the Convention have clearly

expressed, through this Article, their will to remove these proceedings

from the field of application of Art. 6 para. 1 of the Convention

(clauses 36, 37 of the above-quoted decision). Other safeguards

(according to the Explanatory Report to Protocol No. 7) in place to

protect aliens in the territory of member countries who are threatened

by administrative expulsion, include Art. 3 of the Convention

(prohibition of inhuman or degrading treatment), and Art. 8 of the

Convention (protection of private and family life), both in connection

with Art. 13 of the Convention (right to an effective remedy against

violation of the rights and freedoms guaranteed by the Convention).”

According to the petitioner, “Art. 13 of the Convention […] is also

subsequently reflected by Art. 36 para. 2 of the Charter, however, this

principle has not been consistently reflected in the Act on the

Residence of Aliens in the Territory of the Czech Republic.”
 


II.
Course of the proceedings and recapitulation of the statements of the parties to the proceedings
 

11.

In accordance with § 69 of the Act on the Constitutional Court, upon a

request by the Constitutional Court, the Chamber of Deputies of the

Parliament of the Czech Republic, through its Chairperson, Ing. Miloslav

Vlček, submitted a statement. Also the Senate of the Parliament of the

Czech Republic, through its President, MUDr. Přemysl Sobotka, submitted a

statement.

12. In its statement, the Chamber of Deputies

firstly summarised the course of dealing with the contested provisions.

They pointed out the wording of the explanatory report, which had

commented on the proposed phrasing of § 171 of the Act on the Residence

of Aliens, that the same “excludes from a possible judicial review such

decisions not infringing fundamental rights and basic freedoms.” The

Chamber of Deputies, at the conclusion of its statement, stated that

“the legislative assembly acted in confidence that the adopted act is in

harmony with the Constitution, constitutional order, and legal order”,

and leaves it to “the Constitutional Court to assess the

constitutionality of the Act in connection with the submitted petition,

and issue an appropriate decision.”

13. The Senate, referring to

the above-quoted section of the explanatory report on the bill of the

Act, stated that “the bill was undoubtedly grounded on the traditional

postulate of the sovereignty of a state in terms of allowing or

disallowing aliens within its territory. Illegal residence of an alien

then, in such respect, seemed to be incapable of enjoying protection

resulting from the freedom of choice of residence (by illegal residence,

the alien effectively abandons such protection).” According to the

Senate, this legal regulation is not in conflict with procedural

safeguards relating to the expulsion of aliens, which are specified in

Art. 1 of Protocol No. 7 to the European Convention, which determines

the right to a judicial review only in the case of expulsion from

residence permitted by the receiving country. The provisions of § 119a

para. 2 of the Act on the Residence of Aliens then, according to the

Senate, represent “legal safeguards” of adherence to Art. 10 of the

Charter and Art. 8 of the European Convention (regulating the right to

respect for private and family life), when the same determine that a

decision on administrative expulsion may not be passed should the same

result in an inadequate intrusion into the private or family life of an

alien. The Senate remarked that exclusion of a judicial review, in spite

of numerous amendments to the Act on the Residence of Aliens, remained

unchanged.

14. The Senate also wished to emphasise a judgment by

the Supreme Administrative Court, dated 29 September 2006, file No. 4

Azs 419/2005-65 (published in the Collection of Decisions of the Supreme

Administrative Court under No. 1009/07), wherein, according to the

Senate, the Supreme Administrative Court considered exclusion of a

judicial review to be admissible, however, they repeatedly remarked that

should any doubts arise, this exclusion must be interpreted in a

restrictive manner, i.e. in favour of a judicial review.

15. In

sections two and three of their statement, the Senate recapitulated the

course of the legislative process and stated that the bill of the Act,

as modified by amendments proposed by the Senate, was adopted by the

Senate “within the confines of powers determined by the Constitution and

in a constitutionally approved manner […], the majority expressing the

conviction that […] it is in harmony with the constitutional order of

the Czech Republic and the international commitments of the country.”

According to the Senate, it is for the Constitutional Court to assess

the constitutionality of the contested provisions by the petition and

make a decision.
 


III.
Recapitulation of statements of other entities in accordance with § 49 of the Act on the Constitutional Court
 

16.

In accordance with § 49 para. 1 of the Act on the Constitutional Court,

the Constitutional Court addressed the Minister of the Interior, the

Minister of Justice, and the Public Defender of Rights and provided them

with the opportunity to make statements concerning the petition.

17.

The Minister of the Interior considered the petition to be unjustified,

and consequently recommended the same to be dismissed in accordance

with the provisions of § 70 para. 2 of the Act on the Constitutional

Court. The Minister stated that the Act on the Residence of Aliens

allows a judicial review in cases when the alien resides in the

territory of the Czech Republic with due authorisation. With respect to

aliens who reside in the territory of the Czech Republic without due

authorisation (and who are thus affected by the contested provisions),

the Minister of the Interior stated that in the knowledge of the

Ministry, these aliens are “generally aware of their unlawful conduct

and their problematic standing. Establishment of family relations, be it

by concluding marriages or affirming paternity to a minor, in a

situation which is uncertain and mostly left unresolved by the alien,

cannot [in the Minister of the Interior’s opinion] be a circumstance

decisive for making a decision on administrative expulsion.” The

Minister stated that “the Ministry is well aware, on the basis of its

official operations, that in many cases marriages are concluded and

paternity affirmed purely expediently with the purpose of obtaining a

residency permit or legalising residence in the territory of the Czech

Republic, which would otherwise apparently not be achieved.”

18.

Furthermore, the Minister of the Interior referred to Resolution of the

Constitutional Court file No. III. ÚS 219/04 (quoted above under clause

7 of this Judgment). According to the Minister, within this resolution

the Constitutional Court “stated that a subjective, constitutionally

guaranteed right of aliens to reside in the territory of the Czech

Republic does not exist, since it is for a sovereign state to decide

under which conditions it allows residence of aliens in its territory.”

According to the Minister of the Interior, the Constitutional Court “in

the past made an unambiguous statement that [the Charter] provides

protection only to such rights which the given party is guaranteed by

the legal order.”

19. According to the Minister of the Interior,

a similar idea is also conveyed by the judgment of the Supreme

Administrative Court dated 29 September 2006, file No. 4 Azs 419/2005-65

(quoted above under clause 14 of this Judgment). The Minister in his

statement extensively quoted some sections of this decision:

[The

Supreme Administrative Court] starts from the point that the judicial

review of a decision of an administrative body on the issues of decision

making on public subjective rights of both natural persons and legal

entities is, as is determined by the valid legal regulation of

administrative judiciary, determined in particular by Act No. 150/2002

Coll., the Administrative Procedure Code, one of the fundamental and

regular safeguards of lawfulness of the execution of public

administration, through which Art. 36 of the Charter of Fundamental

Rights and Basic Freedoms (hereinafter the “Charter”) is brought into

effect. According to this Article, a person who claims that their rights

were curtailed by a decision of a public administration body may

(unless a law provides otherwise) turn to a court for review of the

legality of that decision. However, a judicial review of decisions

affecting the fundamental rights and basic freedoms listed in the

Charter may not be removed from the jurisdiction of the courts.

As

is implied from the case law of the European Court of Human Rights [for

example in the case of Maaouia v. France, quoted above under clause 10

of this Judgment], the international protection of fundamental human

rights and basic freedoms, of which the Charter is a national

reflection, does not construe the right of an alien to reside in a

certain territory as a fundamental human right, and thus the absence of a

judicial review of expulsion from the territory of a state does not

represent a lack in the standard of protection that should be enjoyed by

fundamental rights and basic freedoms. The European Court of Human

Rights inferred that the expulsion of an alien from the territory of a

state is not covered by Art. 6 of the Convention on the Protection of

Human Rights and Fundamental Freedoms relating to the right to a fair

trial (“In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair and

public hearing within a reasonable time by an independent and impartial

tribunal established by law”), but that the basic procedural safeguards

are governed by Art. 1 of Protocol No. 7 to the Convention [“An alien

lawfully resident in the territory of a State shall not be expelled

therefrom except in pursuance of a decision reached in accordance with

law and shall be allowed: a) to submit reasons against his expulsion; b)

to have his case reviewed; and c) to be represented for these purposes

before the competent authority or a person or persons designated by that

authority.”].

However the principles of a modern democratic

state negate any acts of arbitrariness shown by state bodies, states

are, within the scope of international protection of human rights and

freedoms, granted the right to control the entry and residence of aliens

in their territories, with the option of expelling an alien if such an

expulsion is in accordance with the law, if legitimate objectives are

pursued, and if it is necessary in a democratic country [see, for

example, judgment of the European Court of Human Rights in the case of

Dalia v. France No. 26102/95 dated 19 February 1998]. However, a

difference is made between aliens, depending on whether the state

approved (be it only implicitly) their residence in its territory or

whether they reside in the given territory without such approval. This

is also proven by the minimum procedural rules alone determined by Art. 1

of Protocol No. 7 to the Convention, which apply only to “an alien

lawfully resident in the territory of a State…”.

20. According to

the Minister of the Interior, it may be assumed that the contested

provisions are not in conflict with Art. 10 para. 2 of the Charter (the

right to be protected from any unauthorised intrusion into private and

family life), Art. 14 of the Charter (the liberty of movement and the

freedom of choice of residence), Art. 26 para. 1 of the Charter (the

right to free choice of profession), and Art. 36 para. 2 of the Charter

(the right to judicial and other legal protection).

21. The

Minister of the Interior further believes that it is necessary to

address the harmony of the contested provisions with Art. 13 of the

Convention (the right to an effective remedy against violation of the

rights and freedoms guaranteed by the Convention). According to the

Minister, the case of Maaouia v. France (quoted above under clause 10 of

this Judgment) stated that Art. 6 of the Convention, on the right to a

fair trial, does not apply to issues of asylum and immigration; however,

these issues are covered by Art. 13 of the Convention. This “may be

used only in connection with another right or freedom guaranteed by the

Convention, in other words, this is not an autonomous provision. The

case law of the Court defined certain requirements for the quality of

the review which must be fulfilled in order to satisfy the conditions of

Art. 13. Similarly, the conditions may also be applied to the

functioning of the basic procedural safeguards regulated in Art. 1 of

Protocol No. 7 to the Convention.” The Minister of the Interior believes

that “according to [the European Court of Human Rights], an effective

remedy must make it possible for the relevant body to deal with the

merits of the case and to be able to ensure effective rectification.

According to the Court, Art. 13 [of the Convention] does not specify to

which kind of remedy this relates, and does not require that the

decision making body be a court of justice. Nevertheless, powers and

procedural safeguards available to the given body are relevant in terms

of whether the same are effective remedies.” According to the Minister,

the European Court of Human Rights in many cases “accepted various

non-judiciary bodies as being in line with the requirements of Art. 13.”

The Minister stated that the European Court of Human Rights

“accentuated the powers of a body to provide an effective remedy over

the formal nature of the body,” and (without referring to a specific

decision of the European Court of Human Rights) specified the basic

parameters which the given body should possess. These include: 1.

independence of the body which allegedly committed the given violation;

2. possibility of the alien to pronounce their arguments in a similar

manner as if standing before a court of justice; 3. the decision making

body must issue binding decisions; and 4. the alien is able to

effectively utilise a victory won in their case. Absence of any of these

parameters may be, in the Minister’s opinion, replaced with a system of

remedies.

22. The following part of the statement from the

Minister of the Interior claims that the Czech legal regulation adheres

to the above-defined requirements, and thus it provides an effective

system of remedies as specified by the requirements of the European

Court of Human Rights. According to the Minister of the Interior,

decisions on administrative expulsion are issued, “generally speaking,

by an Alien Police department”, “[the decision] is handed over to the

alien in the presence of an interpreter, provided that the alien does

not understand Czech, and it contains a notification on the possibility

of filing an appeal against the given decision to the Directorate of the

Alien and Border Police Service [via] the body which passed the given

decision. Within their appeal, the alien has the chance to express all

their arguments and objections.” The Directorate of the Alien and Border

Police Service may dismiss the appeal, or may annul the given decision.

In the latter case, the Directorate either returns the case to be

re-heard by the body which issued the given decision (and such a body is

then bound by the legal opinion of the Directorate) or they annul the

given decision without taking any other measures. In such an instance,

the alien’s record in the registry of undesirable persons is deleted and

the originally issued decision has no effect on possible further

legalisation of residence in the Czech Republic. Even should the case be

returned to a new hearing, it is assessed anew, and the alien has again

the possibility of appealing to the Directorate of the Alien and Border

Police Service. According to the Minister of the Interior, the alien

may also use other institutes of the Administrative Procedure Code –

reopening the trial or review proceedings. Such proceedings are placed

under the powers of the Ministry of the Interior, which is a superior

administrative body over the Directorate of the Alien and Border Police

Service.

23. On the contrary, the Public Defender of Rights

supported the petition for annulment of the contested provisions. First

of all, the Public Defender of Rights believes that the contested

provisions are in conflict with Art. 36 para. 2 of the Charter.

24.

Furthermore, the Public Defender of Rights states that “even when Art. 8

[of the Convention] contains no absolute right of any category of

aliens not to be expelled, the case law of the European Court of Human

Rights proves that a decision to expel an alien from a country in which

close members of the alien’s family live may represent, in addition to

an infringement of Art. 3, a violation of the alien’s right to respect

for their private and family life” as specified [by the quoted

provisions of the Convention].” The Public Defender of Rights refers to

the following judgments of the European Court of Human Rights: in the

case of Moustaquim v. Belgium, No. 12313/86, dated 18 February 1991; in

the case of Beldjoudi v. France, No. 12083/86, dated 26 March 1992; in

the case of Boultif v. Switzerland, No. 54273/00, dated 2 August 2001;

in the case of Amrollahi v. Denmark, No. 56811/00, dated 11 July 2002;

in the case of Yilmaz v. Germany, 52853/99, dated 17 March 2003; and in

the case of Keles v. Germany, No. 32231/02, dated 27 October 2005.

25.

According to the Public Defender of Rights, protection against

unauthorised intrusion into private and family life is additionally

provided by Art. 10 para. 2 of the Charter. If the right to this

protection is actually one of the fundamental rights and basic freedoms,

then, according to the Public Defender of Rights, a decision on

expulsion must not be excluded from a judicial review, irrespective of

whether the alien resides in the territory of the Czech Republic with or

without due authorisation. The same argumentation may also be used,

according to the Public Defender of Rights, for Art. 3 and Art. 8 of the

Convention, in connection with Art. 13, and “with respect to the

absolute nature [of the formerly named right], the lack of a judicial

review with respect to the contested violation may be even more

serious.” The Public Defender of Rights stated that “on the basis of

examining the entire range of suggestions directed at this issue [they

do not consider], with respect to the nature of the right threatened by

expulsion, the standard appellate proceedings to the superior

administrative body (the Directorate of the Alien and Border Police

Service) to be an effective remedy as specified by Art. 13 of the

Convention,” and they remark that “in relation to Art. 3 [of the

Convention], this deficiency is even more remarkable.” In spite of some

changes in legal regulation, the Public Defender of Rights does not

consider as suitable “the present mechanism for protecting the alien

being expelled, based upon their previous unauthorised residence, with

respect to possible infringement of the right for protection of their

private and family life. He [lacks] a safeguard in the very form of a

judicial review”. The Public Defender of Rights “henceforth [considers],

in individual cases on the part of administrative bodies, the

application and knowledge of case law [of the European Court of Human

Rights], and with respect to citizens of the EU and their family

members, also of case law of the Court of Justice of the European

Communities, to be insufficient.”

26. According to the Public

Defender of Rights, “the deficit he described does not apply to citizens

of the EU and their family members, or family members of citizens of

the Czech Republic (§ 15a of the Act on the Residence of Aliens in

connection with the provisions of § 171 para. 2 of the same Act).”

Nevertheless, even in this case the Public Defender of Rights does not

consider “the legal regulation to be incontestable from the viewpoint of

acquis communnautaire, since limitation of the right to a judicial

review, which is permitted in certain cases by the provisions of § 171

para. 2, is not in harmony with [Directive 2004/38/EC of the European

Parliament and of the Council of 29 April 2004 on the right of citizens

of the Union and their family members to move and reside freely within

the territory of the Member States amending Regulation (EEC) No. 1612/68

and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC,

73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC

(Official Journal L 158, p. 77; Special edition 05/05, p. 46) (see

clause 26 of the Introduction and Article 31 of the Directive)].”

27.

The Minister of Justice stated that the Act on the Residence of Aliens

does not number amongst the functions of the Ministry and, therefore,

they only issued a general statement. In this statement they “are

inclined towards the arguments specified by the petitioner […] since

they are directed, in addition to other points, at a greater

transparency of decision making by state administration bodies, and

contribute to the removal of a conflict between the above-specified

provisions and [the Charter], and to fulfilment of the rights guaranteed

by the Charter.” On the basis of this, the Ministry supports the

petition.
 


IV.
Wording of the contested provisions of legal regulation
 

28. The contested provisions of the Act on the Residence of Aliens read as follows:
Judicial review
§ 171
(1) The following will be excluded from a judicial review:
[…]
c) decisions on administrative expulsion, if, prior to the start of proceedings on the expulsion,
the alien stayed in the Territory or in the transit area of an international airport in an unauthorised manner; […]
 


V.
Active standing of the petitioner
 

29.

The petitioner infers their active standing for filing the petition

under assessment from Art. 95 para. 2 of the Constitution. According to

this provision, if a court of justice concludes that an act which is to

be used when dealing with a case is in conflict with the constitutional

order, such a court shall submit the case to the Constitutional Court.

The right of the court is specified in closer detail in § 64 para. 3 of

the Act on the Constitutional Court as a right to file a petition

proposing the annulment of a statute or individual provisions thereof.

That means the active standing of a court of justice to file a petition

for annulling a statute, or the individual provisions thereof, is

derived from the subject of the dispute and its legal definition. In

other words, the court may file a petition for annulling only such a

statute or individual provisions of the same which are to be applied in

the settlement of a dispute administered before a general court. The

deliberation on such an application must be justified and derived from

the fulfilment of conditions of the proceedings, including due legal

standing of the parties, and if a substantive law regulation is

concerned, it must be ascertained unambiguously that such a regulation

is to be applied [see Judgment file No. Pl. ÚS 50/05, dated 16 October

2007 (2/2008 Coll.), clause 11].

30. The information specified

above implies that the contested provisions are decisive for the success

of either party in proceedings before the petitioner. The petitioner

thus meets the conditions specified in the previous clause for active

standing for filing the given petition to the Constitutional Court.
 


VI.
Constitutional conformity of legislative process
 

31.

In accordance with § 68 para. 2 of the Act on the Constitutional Court,

the Constitutional Court, in addition to assessing the compliance of

the contested act with constitutional acts, is to find out whether the

act was adopted and issued within the confines of powers determined by

the Constitution and in a constitutionally prescribed manner.

32.

With respect to the fact that the petitioner claimed neither a defect

in the legislative process nor a transgression of the powers on the part

of the legislature determined by the Constitution, it is not necessary,

with respect to the principles of procedural economy, to examine this

issue in closer detail; in addition to taking into account the

statements submitted by the Chamber of Deputies and the Senate (see

clauses 12 and 15 of this Judgment), formal verification of the

legislative process is sufficient from a publicly accessible information

resource at www.psp.cz.

33. From this resource, the

Constitutional Court ascertained that the bill of the Act, which was

subsequently promulgated under No. 326/1999 Coll. (Print of the Chamber

of Deputies No. 240, Chamber of Deputies 1998-2002, 3rd election term),

was returned to the Chamber of Deputies by the Senate with some proposed

amendments, and then approved by resolution No. 605 at the 32nd meeting

of the Chamber of Deputies on 30 November 1999 in the wording approved

by the Senate, when 172 members were present, of which 171 voted in

favour of the bill of the Act, 1 voted against. The Act was signed by

the relevant constitutional representatives and promulgated in Item 106

of the Collection of Laws, which was distributed on 23 December 1999

under number 326/1999 Coll.

34. The Constitutional Court states

that Act No. 326/1999 Coll. was adopted and issued within the confines

of powers determined by the Constitution and in a constitutionally

prescribed manner, or, that the Constitutional Court in these

proceedings ascertained nothing that would testify for a contrary

conclusion.
 


VII.
Evaluation of the Constitutional Court
 

35.

The Constitutional Court firstly examined the compliance of the

contested provisions with Art. 36 para. 2 of the Charter, according to

which the review of decisions relating to fundamental rights and basic

freedoms in accordance with the Charter may not be excluded from court

jurisdiction. This right is formulated in a general manner, and not

limited to citizens of the Czech Republic. If the Constitutional Court

concluded that administrative expulsion is capable of infringing the

fundamental rights or basic freedoms of an alien, it would be necessary

to annul the contested provisions which exclude a judicial review of

such an expulsion.

36. In their previous case law, the

Constitutional Court clearly defined that, in accordance with Art. 36

para 1 of the Charter, since everyone may assert their rights before a

court or another body, and the conditions and rules for executing such a

right are determined by law, then such law issued on the basis of

constitutional authorisation cannot completely negate the claim of each

person to assert their rights before a court or another body in any

given situation, and thus also deny a constitutionally guaranteed

fundamental right, be it merely in certain cases. The provisions of Art.

36 para. 1 of the Charter constitutionally guarantee everyone the

possibility of demanding protection for their rights before a court or

another body in all cases when such rights are violated (there is no

constitutional restriction here). In other words, no person may be

completely excluded by law from the possibility of asserting protection

for their rights, be it only in certain cases, since their rights

according to Art. 36 para. 1 of the Charter would be nullified. A

contrary interpretation would also mean that establishment of the right

of every person to turn to judicial and other protectional bodies for

protection of their rights (effected by the constitutional framer and

endowed with supreme legal force) would principally make no sense, since

it could be, for any given situation, nullified by the will of mere

legislature. The Constitutional Court also referred to the fact that

even when the constitutional framer, in the second sentence of Art. 36

para. 2 of the Charter, delegates to legislature allowance for some

exemptions from reviewability of administrative decisions by a court,

such constitutional authorisation is limited by the fact that exclusion

from the reviewing powers of a court must not apply to a decision

relating to the fundamental rights and basic freedoms guaranteed by the

Charter. In this, the constitutional framer clearly reflected the

differing relevance of fundamental rights and basic freedoms and

“ordinary” rights and freedoms; more significant rights logically enjoy

(on the basis of their distinct nature) a greater protection [Judgment

file No. Pl. ÚS 12/07 dated 20 May 2008, clauses 27 and 30, Judgment

file No. Pl. ÚS 72/06 dated 29 January 2008 (291/2008 Coll.), clauses 40

and 41, both available at nalus.usoud.cz].

37. The

Constitutional Court emphasises that they in no way doubt their previous

conclusions regarding the non-existence of a subjective,

constitutionally guaranteed right of aliens to reside in the territory

of the Czech Republic. The Constitutional Court continuously confirms

that it is for a sovereign state to decide under which

(non-discriminatory) conditions it allows residence of aliens in its

territory – cf. (in addition to Resolution file No. III ÚS 219/04 quoted

above under clause 7 of this Judgment, referred to by both the

petitioner /see clause 7 of this Judgment/ and the Minister of the

Interior /see clause 18 of this Judgment/) also Resolution file No. I.

ÚS 394/06, dated 8 November 2006 (http://nalus.usoud.cz), where the

Constitutional Court explicitly confirmed this conclusion expressed in

the previous resolution; Resolution file No. II. ÚS 59/06 dated 4 May

2006 (http://nalus.usoud.cz), and other resolutions.

38. Even

though the subjective, constitutionally guaranteed right of aliens to

reside in the territory of the Czech Republic does not exist, rights

which might be aggrieved by expulsion are undoubtedly guaranteed to

aliens by the Charter. These include the right to life and prohibition

of torture and cruel, inhuman, or degrading treatment (provisions of

Art. 6 and Art. 7 of the Charter), which protects aliens from expulsion

to a country in which such rights of the aliens would be endangered, or

the right to be protected from any unauthorised intrusion into their

private and family life (Art. 10 para. 2), which may prevent expulsion

if this right is infringed in an inadequate manner (cf., in this sense,

Judgment file No. IV. ÚS 553/06 dated 30 January 2007, available at

nalus.usoud.cz, clauses 30 to 35).

39. In relation to

this, the Charter in no way discriminates between whether an alien

resides in the territory of the Czech Republic with due authorisation or

not, unlike the Convention which provides aliens residing in the

territory of a contracting state under due authorisation with procedural

safeguards by way of Protocol No. 7 to the Convention, and, in a

contrary case, through Art. 13 which guarantees the right to an

effective remedy to each person whose rights as guaranteed by the

Convention are violated (cf. e.g. judgment Lupsa v. Romania, No.

10337/04, dated 8 June 2006, clause 52, and the case law quoted

therein). In this respect, the Constitutional Court cannot consider as

relevant the arguments submitted by the Minister of the Interior (see

clause 17 of this Judgment).

40. This conclusion is also

approved by the case law of the European Court of Human Rights, which is

referred to by the petitioner, the Minister of the Interior, and the

Public Defender of Rights (see clauses 10, 19 and 24 of this Judgment),

even though they derive mutually opposing conclusions from the same. The

European Court of Human Rights did acknowledge “the Contracting States’

concern to maintain public order, in particular in exercising their

right, as a matter of well-established international law and subject to

their treaty obligations, to control the entry, residence and expulsion

of aliens”, but at the same time they pointed out that “in cases where

the relevant decisions would constitute an interference with the rights

protected by paragraph 1 of Article 8, they must be shown to be

‘necessary in a democratic society’, that is to say justified by a

pressing social need and, in particular, proportionate to the legitimate

aim pursued” (Moustaquim v. Belgium, quoted above under clause 24 of

this Judgment, clause 43, and related case law of the European Court of

Human Rights). Thus the European Court of Human Rights confirmed that

the autonomy of the contracting states in making decisions on the

expulsion of an alien is limited by the fundamental rights of such

aliens, e.g. the right to protection from interference with personal and

family life as determined by Art. 8 of the Convention (as was the case

in Moustaquim v. Belgium), the right to life and prohibition of torture

and cruel, inhuman, or degrading treatment or punishment, protected on

the basis of Art. 2 and Art. 3 of the Convention, where an expelled

alien might possibly be exposed to the same in the country to which they

are expelled (see, for example, the judgment of the European Court of

Human Rights in the case of Mamatkulov and Askarov v. Turkey Nos.

46827/99 and 46951/99 dated 4 February 2005).

41. The fact that

the European Court of Human Rights left contracting states with wide

autonomy in decision making on the expulsion of an alien and expressly

confirmed that the right to access to a court of justice, contained in

Art. 6 para. 1 of the Convention, does not apply to making decisions on

the expulsion of an alien (see Maaouia v. France, quoted above under

clause 10 of this Judgment, clauses 34 to 40, or Mamatkulov and Askarov

v. Turkey quoted in the previous clause of this Judgment, clause 82),

plays no role in interpreting Art. 36 para. 2. When interpreting this

provision, it is decisive that there is a possibility a decision on

administrative expulsion would infringe the fundamental rights of the

alien, and the above-specified case law of the European Court of Human

Rights confirms the existence of such an eventuality. There is no reason

to decrease the level of procedural protection of fundamental rights

guaranteed by the Charter only due to the fact that the Convention

regulates the same in another manner, the more so when the Charter

guarantees the same absolutely unambiguously, as was specified above in

clause 36 of this Judgment (similarly cf. Judgment file No. IV. ÚS

553/06, quoted above in clause 38 of this Judgment, clause 40).

42.

For the reasons specified above, the Constitutional Court concluded

that the contested provisions of § 171 para. 1 clause c) of Act No.

326/1999 Coll. on the Residence of Aliens in the Territory of the Czech

Republic, as amended by Act No. 161/2006 Coll., are in conflict with

Art. 36 para. 2 of the Charter, and consequently the Constitutional

Court annulled the same as of the date this Judgment is published in the

Collection of Laws.

Note: Decisions of the Constitutional Court cannot be appealed.