2009/12/01 - Pl. ÚS 17/09: Administrative Action Concerning International Protection - Length of Term

01 December 2009

HEADNOTES

A term of the

action as such cannot be unconstitutional. It is for the legislature to

consider whether and which term they establish for the exercise of

rights. Not even the length of the term of the action alone can be

principally a reason for annulment of the same. The conclusion of its

(un)constitutionality may be reached only after the assessment of other

contextually working circumstances.

The

Constitutional Court, when assessing the seven-day term for filing an

administrative action against a decision of the Ministry of the Interior

on an application for granting international protection regarding cases

when such an application has been rejected as manifestly unjustified,

has examined whether the same does not unacceptably favour any group of

applicants for international protection, whether the same was not

established by the legislature in an arbitrary manner, and whether the

same is not inadequate.

From

the viewpoint of conditions for the possibility of making use of

judicial protection, applicants are divided into two categories. With

respect to the general requirement of principally equal access to

constitutional guarantees, it is therefore necessary to deal with the

issue of necessity and justifiability of such differentiation. The

purpose of such a term is to eliminate cases which “manifestly are not

of an asylum-related nature”. They burden the system, and

expeditiousness is, with respect to such cases, an important aspect.

However, the Constitutional Court sees no immediate link between these

arguments and the length of the term of the action. The aspect of

expeditiousness is surely important and was reflected in asylum law,

amongst other points, by shortening the general two-month term of the

action to a period of 15 days.

The

plaintiff is obliged, as early as in the action and at the latest

during the course of the term of the action, to define the scope to

which they contest the administrative decision, and at least in a basic

manner delineate reasons in which they perceive the unlawfulness of the

decision. An action in the administrative judiciary must contain a point

of the action within the term for filing the same. If it is not so,

such filing is a mere announcement of an intention to turn to an

administrative court with an action, which, however, has no relevant

effect, even upon an extensive interpretation of the term “point of the

action”. From the very beginning, demands are thus placed on the quality

of the argumentation of the plaintiff. Taking into account the fact

referred to by the petitioner, i.e. that the plaintiff is, as an

applicant for asylum, in a specific situation when they are usually not

familiar with the local conditions and legal order, do not know the

language, have no background or contacts here, and depend on external

help, such a formal requirement by the rules of procedure is not an easy

one to fulfil. When this is complemented by a seven-day term, factually

necessarily shortened by at least two more non-working days of the

weekend, within which the applicant-plaintiff must manage all this, then

they are subjected to inappropriate pressure.

The

Constitutional Court is aware of a possible objection that by annulling

the contested provisions, the term of the action in the case of

manifestly unjustified applications will be prolonged from seven to

fifteen days (§ 32 para. 1 of the Asylum Act), but a combination of

social factors in applicants for asylum, and principles governing the

administrative judiciary will continue to have such effect that a number

of applicants will not effectively receive a judicial review on the

merits. For surely it will still happen that applicants will file

blanket actions at the very end of the term of the action, and thus the

room for possibly amending the necessary requisites will remain minimal.

Nevertheless, the availability of a judicial review of the decision for

these applicants, when respecting the principle of vigilantibus iura,

will be greater. Without thus declaring that the fifteen-day term alone

is a sufficient one (this would be beyond the scope of the subject of

the proceedings defined by the petition), the Constitutional Court

states that proper initiation of a judicial review is more realistic for

persons holding the position of an applicant for asylum in the course

of this (fifteen-day) term.

The

provisions of the Asylum Act under consideration, by restricting the

right on the part of the applicant to claim with a court protection of

their rights by establishing an inadequately short term for filing an

action, in essence render the proclaimed judicial protection a mere

illusion (similarly in Judgment file No. Pl. ÚS 12/07, promulgated under

No. 355/2008 Coll.). Such provisions are therefore in conflict with

Article 36 para. 2 of the Charter of Fundamental Rights and Basic

Freedoms, according to which a person who claims that their rights were

curtailed by a decision of a public administrative authority may turn to

a court for review of the legality of that decision, unless the law

provides otherwise; however, judicial review of decisions affecting the

fundamental rights and basic freedoms listed in the Charter may not be

removed from the jurisdiction of courts; and with Article 13 of the

Convention on the Protection of Human Rights and Fundamental Freedoms,

guaranteeing the right to an effective remedy before a national

authority to anyone who has been affected in relation to the right

acknowledged by the Convention.
 


CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

IN THE NAME OF THE CZECH REPUBLIC


On

1 December 2009, the Constitutional Court Plenum, composed of Pavel

Rychetský, the President of the Constitutional Court, and Justices

Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler,

Pavel Holländer, Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká, Jan

Musil, Jiří Nykodým, Miloslav Výborný, Eliška Wagnerová and Michaela

Židlická, adjudicated on a petition by the Supreme Administrative Court

for annulment of the provisions of § 32 para. 2, clause a) of Act No.

325/1999 Coll. on Asylum and on Alteration to Act No. 283/1991 Coll. on

the Police of the Czech Republic, as amended by later regulations, (the

Asylum Act), as amended by later regulations; with participation by the

Chamber of Deputies of the Parliament of the Czech Republic and the

Senate of the Parliament of the Czech Republic as parties to the

proceedings; as follows:
 

The

provisions of § 32 para. 2, clause a) of Act No. 325/1999 Coll. on

Asylum and on Alteration to Act No. 283/1991 Coll. on the Police of the

Czech Republic, as amended by later regulations, (the Asylum Act), as

amended by later regulations, shall be annulled as of the date this

Judgment is published in the Collection of Laws.
 


REASONING


I.
Definition of the case, argumentation of the petitioner


1.

On 1 July 2009, the Constitutional Court received a petition for

annulment of a part of Act No. 325/1999 Coll. on Asylum and on

Alteration to Act No. 283/1991 Coll. on the Police of the Czech

Republic, as amended by later regulations, (the Asylum Act), as amended

by later regulations, (hereinafter referred to only as the “Asylum

Act”), specifically § 32 para. 2, clause a), establishing a seven-day

term for filing an administrative action against a decision of the

Ministry of the Interior on an application for granting international

protection regarding cases when such an application has been rejected as

manifestly unfounded.

2. The petitioner stated that they

administered, under file No. 1 Azs 72/2008, proceedings on a cassational

complaint on the merits filed by a Ukrainian citizen, aimed against a

resolution of the Regional Court in Prague, whereby this citizen’s

action against a decision of the Ministry of the Interior on rejection

of an application for granting international protection as manifestly

unjustified was dismissed. The decision of the Ministry was delivered to

the cassational complainant on 3 March 2008. On 5 March 2008, this

Ukrainian citizen contested the same with an action, in which this

citizen specified, amongst other points, that he was not able to

properly draw it up himself and, therefore, asked for a representative

to be appointed for the judicial proceedings, who would amend his

filing. The Regional Court fulfilled this request and by a resolution

dated 1 April 2008 appointed a representative for the complainant; the

Court then asked both to properly amend the action within a term of 5

days from the delivery of the request, and notified them of the

consequences of failing to comply with the request. This resolution was

delivered to the representative of the complainant on 3 April 2008. On

10 April 2008, the action was amended. On 23 April 2008, the Regional

Court dismissed the action, stating that the established term of five

days had expired on 8 April 2008. In a subsequent cassational complaint

on the merits, the complainant claimed that, with said request being

delivered to his representative on Thursday 3 April 2008, the five-day

term ended on Tuesday 8 April 2008. With respect to the fact that the

appointed representative could neither meet the complainant in person

during such a short period of time, nor know the contents of the file,

the term established by the court for amendment of the action was

unfeasible.

3. Since the Supreme Administrative Court concluded

that § 32 para. 2, clause a) cannot be interpreted in a constitutionally

conforming manner in such a way that the complainant is not deprived of

his right to judicial protection, the Supreme Administrative Court

turned to the Constitutional Court with a petition for annulment of such

provisions.

4. Even though the Asylum Act does not contain a

jurisdictional exclusion whereby it would exclude from judicial review a

decision on rejection of an application for granting international

protection for the same being manifestly unfounded, the above

provisions, with respect to the very short term available for filing an

action, according to the Supreme Administrative Court, make judicial

protection of unsuccessful applicants ineffective. The fundamental right

guaranteed by Art. 36 para. 2 of the Charter of Fundamental Rights and

Basic Freedoms (hereinafter referred to also as the “Charter”) is then

conferred merely as an illusion. The term in itself does not necessarily

appear constitutionally nonconforming, but its constitutionality must

be evaluated within the process of application of the same, in context

with consequential norms, as well as social factors into which it is

embedded.

5. The Supreme Administrative Court points out that

the administrative judiciary, under the competence of which the judicial

review of applications for granting international protection takes

place, is governed by a dispositive principle and one of concentrated

proceedings. This means, inter alia, that the plaintiff may extend the

action to cover until then uncontested verdicts of the decision, or

extend the action with additional points of the same, only during the

term for filing an action (§ 71 para. 2 of the Code of Administrative

Justice). Default of time may not be waived (§ 72 para. 4 of the Code of

Administrative Justice). The existence of such a strictly conceived

concentration of proceedings is, under the administrative judiciary,

compensated for by a general two-month term for filing an action against

a decision of an administrative body. The plaintiff also, as is

standard, passed through administrative proceedings of two instances and

contests a decision of an appellate administrative body. The Asylum

Act, however, interferes in the system so conceived with a special

arrangement establishing administrative proceedings of one instance

regarding an application for international protection, and determines

considerably shorter terms for filing actions against decisions in such

matters. It is the very combination of such a short term and the general

rules of the administrative judiciary which leads, as a final

consequence, to the restriction of the right to judicial protection.

6.

The Supreme Administrative Court further refers to the position in

which the majority of applicants find themselves. The applicants are

usually persons who have no or minimal knowledge of the Czech language

and the Czech cultural and legal environment. If an application from one

such person is rejected as manifestly unjustified, the Ministry of the

Interior issues a decision within 30 days from the commencement of the

proceedings. Following delivery of the same, the applicants have only 7

days to file an action. In such a short period of time it is very

difficult to develop an action in a qualified manner. Moreover, the

applicants usually have to rely on assistance from non-governmental

organisations or legal representatives appointed ex officio. In any

case, the appointed representative has only as many days to extend the

action as are left from the statutory seven-day term which commences

upon delivery of the administrative decision. In the specific case now

being considered by the Supreme Administrative Court, this was only 5

days, of which three were working days; in other cases, it can be even

fewer. In relation to this it is necessary to take into account the time

necessary to contact the applicant, and possibly to obtain an

interpreter, to study the case and prepare argumentation. The

consequences in practice are such that the applicants, in many cases, do

not manage to file a proper action within the prescribed term, and even

if they do, the lack of time for developing the same necessitates its

inferior quality.

7. Taking into consideration the strictly

conceived principle of concentrated proceedings mentioned above, the

situation cannot be rectified through interpretation according to which

the court has the possibility or even the obligation to determine a

longer term for extension of the action. However benevolent the

interpretation of the term “a point of the action” in its case law is,

the existence of the same cannot be derived, for example, from blanket

actions which, in the very case of unsuccessful applicants for

international protection, are not exceptional.

8. The Supreme

Administrative Court further states that the existing disputable

seven-day term was incorporated into the Asylum Act by an amendment

effective from 1 January 2003. The motive for the establishment of a

restrictive arrangement, as is implied from the explanatory report, was

the acceleration of asylum proceedings in cases when an applicant

clearly does not fulfil the conditions, as well as financial and

security reasons; the Supreme Administrative Court believes that another

reason consisted of the need to respond to a considerable increase in

the number of applicants for international protection at the turn of the

century, which has caused apprehension over congestion experienced by

the given bodies. In any case, in its opinion, the procedure cannot be

accelerated at the expense of procedural rights of the parties. In

addition, curtailment of the term is not based on a reason of special

interest, as is the case, for example, regarding the judicial review of

election-related cases. Surely, curtailment cannot be justified by

financial aspects; also, applicants can not be generally seen as a

threat to security. In addition, since 2001, there has been a constant

decrease in the number of applicants, with the present situation being

comparable to that of the early 1990s. The Supreme Administrative Court

is of the opinion that the asylum procedure may be made more effective

also through other means; as an example they suggest the practice

adopted in some countries which solved the requirement for the existence

of remedies through the existence of special quasi-judicial tribunals

composed of experts in the issue of immigration. However, since the

Czech legislature has elected a method of review of such decisions under

the competence of the Code of Administrative Justice, in which the

espousal of rights and interests is, to a large degree, dependent on the

activity of the party at the moment of filing the action, then the

legislature cannot at the same time deprive such a party of the

possibility to advocate their rights effectively due to the legislature

having established such a short term of the action.



II.
Opinions of the parties to the proceedings and the Ministry of the Interior


9.

In their statement concerning the contents of the petition, the Chamber

of Deputies of the Parliament of the Czech Republic specified that the

term under examination had been incorporated into the Asylum Act by an

amendment submitted by the Government, in the belief that the bill is

fully compatible with international commitments, in particular with the

Convention relating to the Status of Refugees from 1951 (editorial

comment: promulgated under No. 208/1993 Coll.). Also, the rapporteur

introduced the relevant Print by saying that the proposed arrangement is

in harmony with EU law. The matter was dealt with by the Committee on

Defence and Security which adopted a number of amendments, however, the

term under consideration was not contested. The Act was then properly

approved and promulgated. The Chamber of Deputies dealt with said term

again in connection with addressing the government bill of an act

whereby some acts are altered in connection with adopting the

Administrative Procedure Code. It was stated that said Print, which

introduced the new wording of § 32 of the Asylum Act, is in line with

the Resolution on Minimum Guarantees for Asylum Procedures, and honours

requirements of ratified and promulgated international treaties on human

rights and fundamental freedoms, by which the Czech Republic is bound

pursuant to Art. 10 of the Constitution. The Committee on Constitutional

and Legal Affairs adopted a comprehensive amendment, into which,

however, they did not incorporate the new wording of § 32 of the Asylum

Act. This non-adopted part of the amendment to the Asylum Act was

thereafter submitted in the original wording within the scope of the

amendment proposed by the Deputies regarding another act, and was so

adopted and promulgated. The legislative assembly has acted in the

conviction that the acts adopted are in harmony with the constitutional

order. They leave it to the Constitutional Court to assess the

constitutionality of the arrangement.

10. The Senate of the

Parliament of the Czech Republic is of the same conviction, which is

that said part of the Asylum Act is in harmony with the constitutional

order as well as international commitments. In their statement on the

contents of the petition they specify that the objective of the

amendment to the Asylum Act, the same amendment as is mentioned several

times above, was to tighten conditions for granting asylum in terms of a

more effective elimination of cases of misuse of such a right.

Procedural instruments (in addition to other items) were thus to be

adjusted in such a way that they correspond to the varied conduct of

applicants and lead to an expeditious settlement of cases. According to

the sponsor, this more effective attitude was also necessitated by a

steep rise in the number of applications (as many as 8,788 cases in

2000; during 2001 as many as 20,000 cases were indicated). Also for this

reason, the number of causes for “manifest unfoundedness” was expanded,

the term for administrative decision was shortened (from ninety to

thirty days), and the remedial process was reduced by omitting the

possibility of filing a remonstrance. After passing the bill of the

amendment to the Senate, the Senate’s Committees dealt with the same.

Some of them recommended returning the bill of the act with proposed

amendments aimed at mitigating some unnecessarily severe conditions of

the Asylum Act, however, none of these proposals applied directly to the

term now under consideration. Likewise, the Senate has left the final

decision to the Constitutional Court.

11. With respect to the

subject of the petition, the Constitutional Court considered it

practical to request a statement on the contents of the petition

additionally from the Ministry of the Interior, which exercises

authority in the given field of state administration.

12. The

Minister of the Interior responded with a detailed explication. First of

all, the Ministry holds the opinion, ever since the actual

establishment of the contested provisions into the legal order of the

Czech Republic, that the same are in harmony with the constitutional

order, and does not identify itself with the argument of the petitioner

that the same cannot be interpreted in a constitutionally conforming

manner. The case on which the examined petition by the Supreme

Administrative Court was based is not the first to deal with the issue

of terms according to the Asylum Act; the petitioner has only adopted a

different view of the given matter now. So, for example, in decision

file No. 2 Azs 117/2004, dated 26 October 2004, the Supreme

Administrative Court stated that already a dismissal by the Regional

Court of a filing was incorrect if such a court did not take into

consideration an amendment to such a filing made after the specified

term. The point is that such a term is a judicial one, and thus it is

not possible to automatically infer, from ineffectual expiry of the

same, an obligation not to take into account a subsequent amendment.

Similarly, in decision file No. 9 Azs 1/2009, dated 12 February 2009,

the Supreme Administrative Court found that the procedure by the

Regional Court which dismissed a filing for defects therein without

taking into consideration that the term for remedying the same was

unrealistic with respect to the specific obstacles regarding the

petitioner, constituted a denial of justice. The case law thus,

according to the Ministry, has found a constitutionally conforming

solution, even without the need to interfere in the contested

provisions. It is then impossible to infer from the given petition why

the petitioner had to deviate from this solution.

13. In

relation to the right to judicial protection, the Ministry believes it

appropriate to accentuate as a basic premise the fact that the contested

provisions of the Asylum Act do not disallow a judicial review by an

independent court of said decisions in the case of international

protection and that the Asylum Act even confers the effects of deferral

to the majority of actions filed.

14. With reference to the

conclusion of the Constitutional Court presented in Judgment file No.

IV. ÚS 553/06, dated 30 January 2007 (N 17/44 SbNU 217) and opinions

held by legal theory, the Ministry denies the opinion expressed in the

petition, according to which decision making on applications for

granting international protection represents that relating to

fundamental rights and basic freedoms.

15. The Ministry denies

that the seven-day term means an illusoriness of the right to judicial

protection. This term does not apply to all actions in cases of

international protection, but only to those when expeditiousness of the

proceedings aims to eliminate cases which manifestly are not of an

asylum-related nature. These are cases which are not related to

international protection, and which only abuse asylum instruments for

other purposes, in particular legalisation of stay, which purpose,

however, is served by mechanisms regulated in Act No. 326/1999 Coll. on

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

Alterations to Some Acts. Therefore, they merely burden the system and

the short term allocated is thus appropriate. A similar arrangement

resulting from varied lengths of terms for individual asylum procedures

is common in other EU countries as well, for example, Germany, France,

Great Britain, Belgium and so on; in some countries, the given term is

even shorter. Otherwise, the length of the term fits the context of

specially determined terms in alien law; with respect to this, the

Ministry refers to resolution file No. I. ÚS 609/01, dated 5 March 2002

(not published in the Collection of Judgments and Rulings), in which the

Constitutional Court dealt with the constitutionality of a shortened

thirty-day term for filing an administrative action against a decision

pursuant to Act No. 326/1999 Coll. Similarly the Supreme Administrative

Court, in decision file No. 5 As 7/2009, dated 16 April 2009, stated

that statutory ten-day term for filing an action against a decision by

an administrative body on expulsion of an alien, even though it is

considerably shorter than the general term, does not aggravate in an

excessive way the alien’s exercise of their right to a judicial review

of such a decision, since terms are compensated for by providing the

action with the effects of deferral. In addition, determination of a

shorter term pursues a legitimate objective in the form of limiting the

residence of an expelled person merely to a necessary period of time. It

is, therefore, not in conflict with Art. 36 para. 2 of the Charter or

Art. 1 of Protocol No. 7 to the Convention on the Protection of Human

Rights and Fundamental Freedoms (hereinafter also referred to as the

“Convention”). As for argumentation of the petitioner with the effects

of the principle of concentrated proceedings on the status of the

plaintiff, the Ministry refers to the fact that the solution consists,

pursuant to the conclusions of Judgment of the Constitutional Court file

No. IV. ÚS 2170/08, dated 12 May 2009, of an extensive interpretation

of the term “point of the action”. In addition, the concept of the

principle of concentrated proceedings, as it is presented in the

petition by the Supreme Administrative Court, i.e. that the legal

representative may be permitted only as many days for amending the

action as are left from the seven-day term for filing the same, is,

according to the Ministry, overly restrictive. Furthermore, the Ministry

does not concur with the opinion that at present, when the numbers of

applicants are on the decrease, the arrangement under consideration is

unnecessary. The given legislative alteration was not motivated by a

sharp rise in agenda, but by an effort to make proceedings more

effective and to eliminate cases in which the asylum system is only

abused.

16. According to the Ministry, by annulling the contested

provisions, the difference between rejecting a petition as manifestly

unjustified and between typical proceedings would be removed, which is

undesirable and in conflict with the meaning and purpose of the legal

arrangement. It would also be in contravention of the present trend in

European law, to which the present arrangement of the asylum procedures

corresponds. Therefore, the Ministry recommends rejecting the petition.
 


III.
Wording of the contested provisions


17.

The provisions of § 32 para. 2, clause a) of the Asylum Act read as

follows: “Within 7 days of the serving of the decision, an action may be

filed against the decision on the application for granting

international protection which rejects the application as manifestly

unfounded”.
 


IV.
Conditions for the active standing of the petitioner; the constitutional conformity of the legislative process
 

18.

The petition was filed by the Supreme Administrative Court in

connection with the proceedings taking place at the same Court, and the

procedural provision of the Asylum Act proposed for annulment is one of

the provisions the same Court must apply. The Supreme Administrative

Court’s active standing is thus supported by the provisions of § 64

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

amended by later regulations (hereinafter referred to only as the “Act

on the Constitutional Court”).

19. The Constitutional Court,

pursuant to the provisions of § 68 para. 2 of the Act on the

Constitutional Court, dealt with the manner of adoption and publication

of Act No. 2/2002 Coll. whereby the Asylum Act and Some Other Acts are

Altered, whereby the contested provisions were inserted into the Asylum

Act. The statements by both parties, as well as relevant web pages

(www.psp.cz), imply that the Chamber of Deputies of the Parliament of

the Czech Republic discussed the bill as Print No. 921. The first

reading took place on 16 May 2001, the second on 19 September 2001 and

the third on 21 September 2001, when the bill of the act was approved

and advanced to the Senate. The Senate returned the same during its 10th

session on 25 October 2001 (Resolution No. 189), to the Lower House

with some proposed amendments, when of the 66 Senators present, 60 voted

for such a return, 3 voted against it and 3 abstained from voting. On

27 November 2001, at their 43rd session, the Chamber of Deputies

discussed the bill again and approved the same in the wording approved

by the Senate (Resolution No. 1866); of the 168 members present, 110

voted for and 53 voted against the bill. The President of the Republic

signed the act on 14 December 2001, and on 7 January 2002, the Act was

properly promulgated in the Collection of Laws.

20. The

Constitutional Court stated that the Act under consideration was adopted

through a constitutionally conforming legislative procedure.



V.
The actual review


21.

The Constitutional Court has evaluated the petition and for the reasons

specified below concluded that there is a reason to annul the contested

provisions of the Asylum Act.

22. First of all it is necessary

to point out that the Constitutional Court is a body responsible for the

protection of constitutionality (Art. 83 of the Constitution of the

Czech Republic). In proceedings on annulment of acts and other legal

regulations, the Constitutional Court holds the position of a “negative

legislature”, and its task is to evaluate the constitutionality of

contested legal regulations or specified parts thereof, and possibly to

evaluate whether or not it is possible to interpret and apply the

contested regulations in a constitutionally conforming manner. The

Constitutional Court in this is not entitled to evaluate the

suitability, practicality or doctrinal purity of a legal norm, since

such powers always pertain solely to the legislature.

23.

Therefore, as was implied from the narrative section of the reasoning,

the Constitutional Court is facing a task of assessing whether the

seven-day term of the action still provides the plaintiff with a

realistic opportunity to have the decision on rejecting the application

for granting international protection as manifestly groundless examined

by an administrative court, or whether the length of the term for

initiation of proceedings actually turns the right to a judicial review

merely into an empty gesture.

24. In its case law, the

Constitutional Court has dealt with the issues of terms and their

connections with constitutional guarantees several times.

25.

So, for example, in Judgment file No. Pl. ÚS 33/97, dated 17 December

1997 (N 163/9 SbNU 399; 30/1998 Coll.), the Constitutional Court stated,

concerning the concept of a term at a general level, the following:

“The purpose of the legal institute of a term is to reduce entropy

(equivocality) in exercising rights or powers, to limit in terms of time

the condition of uncertainty in legal relationships (which plays a

particularly important role from the viewpoint of evidence in cases of

disputes), to accelerate the processes of decision making with the aim

of realistic achievement of intended objectives. These reasons resulted

in the establishment of terms as far back as thousands of years ago.”

26.

The scope of the constitutional review of statutory provisions

establishing terms was then defined by the Constitutional Court in

Judgment file No. Pl. ÚS 46/2000, dated 6 June 2001 (N 84/22 SbNU 205;

279/2001 Coll.), where the Court stated: “The mission of the

Constitutional Court consists of the control of constitutionality.

Within this scope, the Court may only annul unconstitutional

regulations, or parts of the same, however, it is not the Court’s task

to rectify consequences which have occurred through the petitioner

failing to exercise their rights within the determined term. Annulment

of terms violates principles of a law-based state, since the same

considerably interferes in the principle of legal certainty, which is

one of the basic elements of current democratic legal systems. The term

alone cannot be unconstitutional. However, it may appear to be such with

respect to the given specific circumstances.”

27. The

conclusions above then served as the basis for the Constitutional

Court’s Judgment file No. Pl. ÚS 6/05, dated 13 December 2005 (N 226/39

SbNU 389; 531/2005 Coll.). Therein the Court again stated that “a

deadline, prima facie, without anything further, does not and can not

demonstrate elements of unconstitutionality” and that “the

unconstitutionality of a term may be stated only in a dialogue with

specific circumstances of the matter being evaluated”. The

Constitutional Court declared, taking into account its hitherto case

law, that these specific circumstances, i.e. viewpoints for contextual

evaluation of the constitutionality of a term, are as follows:
“1.

disproportionality of the deadline in relation to the time-limited

possibility for exercising a constitutionally guaranteed right (claim),

or to the defined time period for limitation of a subjective right”.

Here, the Constitutional Court referred to Judgment file no. Pl. US

5/03, dated 9 July 2003 (N 109/30 SbNU 499; 211/2003 Coll.), annulling

the provisions of § 3 and § 6 of Act No. 290/2002 Coll., which

represented a disproportionate restriction of property rights, violation

of Art. 11 para. 1 in connection with Art. 4 para. 4 of the Charter of

Fundamental Rights and Basic Freedoms (in the given context, the Court

considered constitutionally conforming such a legal arrangement which

would establish such a restriction only to a completely essential scope

of time, which can be understood merely as a minimum period of time,

clearly prima facie a “transitional” one, but not a period of ten

years);
“2. arbitrariness by the legislature when setting the

deadline (establishing or cancelling it).” Pursuant to this viewpoint of

assessment of constitutionality of the term, the Court proceeded in

case file No. Pl. ÚS 2/02 – Judgment dated 9 March 2004 (N 35/32 SbNU

331; 278/2004 Coll.), in which it found unconstitutional the annulment

of provisions of § 879c to § 879e of the Civil Code implemented by Act

No. 229/2001 Coll., whereby the legislature interfered in the legitimate

expectation of a precisely defined circle of entities just one day

before the expiration of the term in which property rights would have

been acquired, as a result of which entities that acted in confidence in

the conditions previously set by the state were, just one day before

the expiration of the term mentioned above, confronted with the

arbitrary steps taken by the state;
“3. the constitutionally

unacceptable inequality of two groups of subjects which results from the

annulment of a certain statutory condition for exercising a right due

to unconstitutionality, where this annulment does not, without anything

further, create an opportunity to exercise rights for the affected group

because of the expiration of deadlines as a result of derogation”.

Here, reference was made to Judgment file No. Pl. ÚS 3/94, dated 12 July

1994 (N 38/1 SbNU 279; 164/1994 Coll.), and Judgment file No. Pl. ÚS

24/97, dated 3 June 1998 (N 62/11 SbNU 111; 153/1998 Coll.), whereby, by

annulling the provisions setting the commencement of the term for

exercising a restitution claim, an opportunity was created to exercise

the same also for those persons entitled who, as a result of the

condition of permanent residence, could not successfully exercise their

claims by the original deadlines.

28. On the basis of these

propositions, declared in the past and applicable even today, the

Constitutional Court therefore states that the contested term of the

action as such cannot be unconstitutional. It is for the legislature to

consider whether and which term they establish for the exercise of

rights. Besides, this is in fact not questioned, since the petitioner

views the unconstitutionality of the term exclusively in the length of

the same; that is in the fact that the same is too short. However, not

even the length of the term of the action alone can be principally a

reason for annulment of the same. The conclusion of its

(un)constitutionality may be reached only after the assessment of other

contextually working circumstances. In this sense, the petitioner refers

to the principles governing the administrative judiciary, these being

the dispositive principle and the principle of concentrated proceedings,

which, in connection with a short term, considerably hinder the

applicant for international protection in the possibility of

implementing a judicial review, and in some cases even preclude the

same. A specific situation in life in which the majority of applicants

for international protection find themselves is also impossible to omit.

29.

The Constitutional Court has carefully considered these reservations

when assessing the term from the viewpoints specified above; that is

whether the same does not unacceptably favour any group of applicants

for international protection, whether the same was not established by

the legislature in an arbitrary manner, and whether the same is not

inadequate.

30. It remains to be added that the issue of

constitutionality of a special term of the action was dealt with by the

Constitutional Court earlier in resolution file No. I. ÚS 609/01

(available at nalus.usoud.cz/). In this resolution, the Court

decided on a constitutional complaint related to a petition for

annulling the provisions of § 172 para. 1 of Act No. 326/1999 Coll. on

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

Alterations to Some Acts, according to which “An action against an

administrative decision must be filed within 30 days from delivery of

the decision of the administrative body of the last instance or from the

date of notification of another decision of an administrative body,

unless hereinafter specified otherwise. Failure to comply with the term

cannot be condoned.” The complainant stated that, as a result of this

arrangement, foreigners are discriminated against as for their right to

judicial protection, since the established term of 30 days for filing an

action is – just with respect to the fact that foreigners often

unfamiliar with the Czech language are involved – inadequately short.

The Constitutional Court dismissed the petition as manifestly unfounded,

stating that the contested provisions are not in contradiction with any

of the constitutional principles. In the reasoning, the Court stated

that “from the viewpoint of constitutional law, it is principally up to

the legislature whether and in which fields of administrative-law

regulation they determine, by a special act, a term for filing an

administrative action; that is a term different from the general term of

two months from the delivery of a decision of an administrative body of

the last instance, which is established in the provisions of § 250b

para. 1, first sentence, of the Civil Procedure Code. The establishment

of the special term alone (different from the general arrangement

according to the above-quoted provisions of the Civil Procedure Code) –

which can be seen in the form of a thirty-day term, for example, in the

provisions of § 17 para. 6 of Act No. 526/1990 Coll. on Prices, or in

the provisions of § 16 para. 4 of Act No. 498/1990 Coll. on Refugees, as

amended by later regulations – cannot be considered to contravene

constitutional principls, as, from the viewpoint of constitutional law,

only whether or not this special term for filing an administrative

action respects the constitutionally guaranteed fundamental rights of

the persons concerned must be considered determining. The Constitutional

Court believes that a different (thirty-day) term established by a

special act does not prevent the exercise of the fundamental right to

judicial protection in accordance with the provisions of Art. 36 of the

Charter. Solely the general term for filing an administrative action

cannot be guaranteed even from the viewpoint of constitutional law,

since this would constitute a disownment of the right of the state to

regulation of a special term by a special Act No. 326/1999, which, in

terms of the subject of legal arrangement (and personal effect), relates

to (the stay of) aliens in the territory of the Czech Republic.

Besides, the complainants in their constitutional complaint associate

the discrimination claimed against aliens – in relation to their right

to judicial protection – with an alleged inadequately short thirty-day

term for filing an administrative action by persons who are often

unfamiliar with the Czech language. The Constitutional Court, however,

believes that by establishing a special thirty-day term for filing an

administrative action, public power does not fail to preserve the

constitutionally guaranteed fundamental right of an alien to judicial

protection, since such a term does not disturb or alter the above

fundamental right, and does not make it inaccessible to aliens. To the

contrary, from the viewpoint of constitutional law, public power

creates, for the exercise of this fundamental right in relation to all

natural persons (affected by this act), equal conditions without

discrimination. The Constitutional Court, therefore, concludes that the

provisions of § 172 para. 1 on a term for filing an administrative

action are manifestly constitutionally conforming and there is no reason

for annulling the same.” A proposition according to which it is not

possible to infer a constitutional guarantee for a general term for

filing an administrative action, and according to which the only

determinant is whether the special term respects constitutionally

guaranteed fundamental rights, is automatically applicable also to the

petition now being evaluated. However, in other points, the

Constitutional Court responded, by the resolution specified above, to

specific interrelations of special provisions of the Act on the

Residence of Aliens; first of all, the resolution considered the

thirty-day term, now the constitutionality of a term of seven days, i.e.

a considerably shorter one, is being reviewed. In addition, proceedings

under the Act on the Residence of Aliens are not strictly administered

in one instance only, as is the case with asylum administrative

proceedings, which makes it possible to assess the tightening of

conditions of access to an administrative court, as compared to the

standard arrangement, to a certain extent in a more benevolent way.

31. The term from the viewpoint of the individual groups of asylum seekers.

32.

The subject of the Asylum Act also includes the arrangement of

proceedings on granting international protection in the form of asylum

or subsidiary protection, and proceedings on withdrawal of asylum or

subsidiary protection [§ 1 clause b) of the Asylum Act]. Asylum

proceedings are administrative proceedings, in which the Ministry of the

Interior is in charge of taking the decision. Should the Ministry, in

their decision making, discover that reasons for granting asylum have

been fulfilled, they will grant international protection in the form of

asylum or subsidiary protection (§ 28 para. 1). In the contrary case,

i.e. when the Ministry finds no reason for granting either form of

international protection, the Ministry will reject the application (§ 28

para. 2). Negative decisions may be divided into two categories.

Firstly, these are cases when the complainant does specify reasons for

which asylum is granted, but in the given case such reasons are not

identified and confirmed. Alternatively, the Ministry may reject an

application as manifestly unjustified, this in cases exhaustively

enumerated in § 16 of the Asylum Act. These are cases when the applicant

endeavours to circumvent or abuse the right of asylum for the purpose

of legalisation of stay in the territory of the Republic, or for other

reasons. In relation to a qualitatively completely different nature of

reasons for rejecting the application, different lengths for the terms

for filing an administrative action are also determined. Generally, this

term is 15 days, however, when an application is rejected as manifestly

unjustified, an action may be only filed within a term of 7 days from

the date of delivery of the decision; the same system applies to cases

when the decision making covered an application filed in facilities for

detention of aliens or when proceedings were discontinued for the reason

of inadmissibility of the application for granting international

protection.

33. From the viewpoint of conditions for the

possibility of making use of judicial protection, applicants are thus

divided into two categories. With respect to the general requirement of

principally equal access to constitutional guarantees, it is necessary

to deal with the issue of necessity and justifiability of such

differentiation. According to the statement provided by the Ministry,

the purpose of such a term is to eliminate cases which “manifestly are

not of an asylum-related nature”. They burden the system, and

expeditiousness is, with respect to such cases, an important aspect.

However, the Constitutional Court sees no immediate link between these

arguments and the length of the term of the action. The aspect of

expeditiousness is important and was reflected in asylum law, amongst

other points, by shortening the general two-month term of the action to a

period of 15 days. The category of manifestly unjustified applications

is surely qualitatively different from other applications, and some

procedural peculiarities, such as a closed range of reasons for which it

is possible to decide on such an application in such a manner, and

shortening the term for the issue of an administrative decision to a

period of 30 days from the date of commencement of the proceedings on

granting international protection, are thus justifiable. A closed

enumeration of reasons then leads to lesser demands for presenting

evidence for and reasoning of the decision. These are acceptable

consequences of the above-specified categorisation of applications,

which in principle accelerate and facilitate proceedings in cases

lacking an asylum-related nature; this is also a manifestation of

elimination of such cases. However, if the very conclusion that the

asylum-related nature is truly lacking in a given case is to be

subjected to a judicial review, mere access to a court only to such a

group of applicants cannot be restricted through further shortening the

term of the action.

34. The Ministry in its explication

specifies that using various lengths of terms for “standard asylum

procedures” and accelerated proceedings is very common also in other

member countries of the EU, and even shorter terms can be found. In

relation to this, the Constitutional Court states that they left aside

the comparative argument of foreign legal arrangements, since, as was

declared, evaluating the constitutionality of the term is a contextual

evaluation. Other legal rules are of crucial significance, such ones

influencing submission of the case to a court, i.e. actually how the

term is reflected in the circumstances in the Czech Republic, where

administrative proceedings in asylum-related cases are based on one

instance, and the administrative judiciary is governed by the

dispositive principle and the principle of concentrated proceedings,

which places specific demands on the action. As an example in this

connection, it is possible to include relevant sections of the

arrangement of asylum proceedings and the subsequent judicial review in

the Federal Republic of Germany (see an article by Petr Lavický and

Sylva Šiškeová: Nad novou úpravou řízení o kasační stížnosti v azylových

věcech /On the new arrangement of proceedings on a cassational

complaint on the merits in asylum-related cases/, Právní rozhledy /Legal

Review/ 19/2005). There, the given matter is regulated by the Act on

Asylum Proceedings (Asylverfahrensgesetz, BGBI. I 1992, 1126). The

proceedings are based on a single instance and are administered before

the Federal Office for Migration and Refugees. Its decisions may be

contested by an action filed with an administrative court. The term of

the action amounts to two weeks from the delivery of the decision, and

facts may be declared and evidence proposed within a period of one

month; the court is not obliged to analyse evidence and take into

consideration statements made following the expiry of such a term, but

this only under the condition that admission of the same would cause

procrastination in proceedings, the delay was not properly excused, and

the party was instructed on the implications of failing to comply with

the term.

35. On the issue of arbitrariness of the legislature when establishing the term.

36.

The arrangement of a judicial review of asylum decisions is continual.

According to Act No. 498/1990 Coll. on Refugees, effective since 1

January 1991, proceedings on granting the status of a refugee were

administered by the Ministry of the Interior; remonstrance was

originally allowed against the Ministry’s decision in all cases, and

after 31 December 1993, merely in cases of specified types of decisions.

The Act allowed the filing of a petition for review of a decision by a

court, but merely with respect to decisions of the Minister of the

Interior issued in proceedings on the remonstrance. On 1 January 2000,

the present Asylum Act became effective. The proceedings on granting

asylum according to this regulation were originally of two instances in

cases of decisions on not granting asylum and decisions on rejecting a

petition for the commencement of proceedings on granting asylum as

manifestly unjustified, when the Act allowed a remonstrance to be filed.

In the case that the remonstrance was admitted, which is statistically

true in the majority of cases, filing an administrative action was

admissible only against a decision on such a remonstrance; however,

filing an action was, unlike in the earlier legal arrangement, no longer

dependent on the verdict of the decision, and all decisions could be

contested by an action. The action filed was associated with the effects

of deferral. By adopting Act No. 2/2002 Coll., the possibility of

review of decisions of the Ministry of the Interior in remonstrance

proceedings was completely removed, with effectiveness from 1 February

2002. Applicants continued to turn to the court not with an action, but

with a remedy against a decision of an administrative body, when such a

decision was not yet legally effective. The term for filing a remedy

was, compared to the general one, shortened to 15 days from the date of

delivery of the decision and, in exhaustively defined cases, e.g. in the

case of rejection of an application for granting asylum as manifestly

unjustified, to 7 days. Starting from 1 January 2003, when Act No.

217/2002 Coll. became effective, the legislature returned to the model

of reviewing a legally effective decision of the Ministry by a court on

the basis of an action.

37. Conditions for a judicial review,

including terms for filing an action (petition), have changed over time,

but gradually, without any sudden leaps or shifts into extreme

positions, for example, from a wide review according to general rules to

complete elimination of the same. Through the now contested provisions,

the legislature did not interfere in the system of reviewing

asylum-related decisions in any principal and unexpected way, and did

not subvert a well-proven and established pattern. The legislature

reasoned by the need for expeditiousness and effectiveness of the asylum

procedure, referred to the practice (not specified or explained in any

detail) of legal arrangements for asylum in the countries of the

European Union. It is not possible to say that the term under

consideration was established in the Asylum Act through a procedure

showing signs of arbitrariness on the part of the legislature. The

arrangement is not unintelligible or internally inconsistent, and the

legislature did not proceed in an unpredictable manner. Undoubtedly, by

establishing a shorter term of the action for the given group of

applicants, for the reason of making the asylum procedure more effective

and expeditious, the legislature did not aim primarily at their factual

elimination from the range of those who may find protection of their

rights with a court. Complications in the application of such an

arrangement were revealed as late as in practice (here meaning the

information from the petitioner that there is an increasing number of

cases such as that which has led them to submit the petition under

consideration; that is cases when the applicant, within the term,

manages only to announce their intention to file an action, however,

does not manage to add any reasons).

38. Adequacy of the term.

39.

The term for filing an action established by the contested provisions

is a statutory term, the length of which cannot be altered by the court.

Neither can failure to comply with such a term be waived, since such a

procedure is forbidden by the Code of Administrative Justice (§ 72 para.

4). Unfavourable consequences of failing to comply with the term for

filing the action, therefore, cannot be averted in any way. On the other

hand, relatively great demands are placed on the person developing the

action; in addition to the general requisites of a filing (§ 37 para. 2

and para. 3 of the Code of Administrative Justice), i.e. in particular

specifying the subject of the action, who is filing the action, against

whom such an action is directed and what is thereby proposed, signature

and date, the same must also include particular requisites (§ 71 para. 1

of the Code of Administrative Justice), which is designation of the

contested decision and the date of delivery or other announcement of the

same to the plaintiff, designation of the persons taking part in the

proceedings, if such persons are known to the plaintiff, identification

of verdicts of the decision which the plaintiff contests, points of the

action from which it must be clear for which reasons – factual and legal

– the plaintiff deems the contested verdicts of the decision to be

unlawful or null, which evidence the plaintiff proposes to be presented

to prove their statements, and finally the proposed verdict of the

judgment. The plaintiff may extend the action to include verdicts of the

decision which have not been contested until then or extend the action

with additional points only within the term for filing the action (§ 71

para. 2, third sentence of the Code of Administrative Justice). The

proceedings are thus governed by a strictly conceived principle of

concentration. The Constitutional Court commented on principles

governing the administrative judiciary (even though this was at the time

prior to the adoption of the Code of Administrative Justice) in

Judgment file No. Pl. ÚS 12/99, dated 27 June 2000 (N 98/18 SbNU 355;

232/2000 Coll.). The Constitutional Court stated that “… any provision

which, by formalising proceedings in the administrative judiciary, de

facto determines limits for access to the court; that is limits of one

of the fundamental constitutional rights – the right to judicial

protection. All such provisions … must, therefore, be interpreted in

line with Art. 4 para. 4 of the Charter, i.e. in the application of such

provisions to preserve the essence and meaning of the fundamental

rights and basic freedoms.… The Constitutional Court thus evaluates the

contested provisions as those interpretable within the constitutional

limits, did not find the ‘dispositive principle’, or principle of

concentrated proceedings in the administrative judiciary, established

therein to be unconstitutional, since, even though the Court may be

criticised for departing from the principle of material truth, it cannot

be omitted that the same firstly and beyond doubt helps to fulfil the

constitutional right to have one’s case considered and decided within a

reasonable term, or without unnecessary delay (Art. 6 para. 1 the

Convention on the Protection of Human Rights and Fundamental Freedoms,

Art. 38 para. 2 of the Charter).” The Constitutional Court dwells on

this conclusion even at present. Therefore, the problem cannot be solved

by breaking the principle of concentration.

40. The plaintiff

is obliged, as early as in the action and at the latest during the

course of the term of the action, to define the scope to which they

contest the administrative decision, and at least in a basic manner

delineate reasons in which they perceive the unlawfulness of the

decision. With respect to plaintiffs, no practical problems may be

principally expected with defining the scope of such contesting, but the

situation is different with respect to formulating reasons for the

action. This means defining factual and legal reasons for which the

plaintiff deems the decision to be unlawful and null. The first

difficulty is the very interpretation of this condition, as is proven by

Judgment file No. IV. ÚS 2170/08 (available at nalus.usoud.cz/),

in which the Constitutional Court pointed out the differences in

interpretation of the term “point of the action” in decisions of the

individual chambers of the Supreme Administrative Court. In any case,

accord is found in the fact that an action in the administrative

judiciary must contain a point  of the action within the term for filing

the same. If it is not so, such filing is a mere announcement of an

intention to turn to an administrative court with an action, which,

however, has no relevant effect, even upon an extensive interpretation

of the term “point of the action”. From the very beginning, demands are

thus placed on the quality of the argumentation of the plaintiff. Taking

into account the fact referred to by the petitioner, i.e. that the

plaintiff is, as an applicant for asylum, in a specific situation when

they are usually not familiar with the local conditions and legal order,

do not know the language, have no background or contacts here, and

depend on external help, such a formal requirement by the rules of

procedure is not an easy one to fulfil. When this is complemented by a

seven-day term, factually necessarily shortened by at least two more

non-working days of the weekend, within which the applicant-plaintiff

must manage all this, then they are subjected to inappropriate pressure.

It is then quite understandable that the plaintiff responds to such a

short term by filing a blanket action for the purpose of meeting the

statutory term, this being associated with an expectation of a request

to amend their argumentation.

41. The Constitutional Court is

aware of a possible objection that by annulling the contested

provisions, the term of the action in the case of manifestly unjustified

applications will be prolonged from seven to fifteen days (§ 32 para. 1

of the Asylum Act), but a combination of social factors in applicants

for asylum, and principles governing the administrative judiciary will

continue to have such effect that a number of applicants will not

effectively receive a judicial review on the merits. For surely it will

still happen that applicants will file blanket actions at the very end

of the term of the action, and thus the room for possibly amending the

necessary requisites will remain minimal. Nevertheless, the availability

of a judicial review of the decision for these applicants, when

respecting the principle of vigilantibus iura, will be greater. Without

thus declaring that the fifteen-day term alone is a sufficient one (this

would be beyond the scope of the subject of the proceedings defined by

the petition), the Constitutional Court states that proper initiation of

a judicial review is more realistic for persons holding the position of

an applicant for asylum in the course of this (fifteen-day) term.

42.

Furthermore, it is not possible to accept the argument that the shorter

term of the action is balanced out by making the action have the effect

of deferral. The administrative judiciary has been conceived in such a

way that a crucial role is played by just the initial stage of

proceedings, when the plaintiff must specify the scope and also define

at least the basic focus of the argumentation itself. An applicant who

(as a result of the inappropriately short term) did not file a proper

action, does not profit from the benefits of the effects of deferral.

43.

Another circumstance which had to be taken into consideration when

evaluating the proportionality of the term is the fact that an action

is, for unsuccessful applicants, the only procedural means of remedy

available for consideration. Also for this reason it is necessary to

proceed in a conservative manner when constructing formal obstacles for

application of the same.

44. Finally, mention must be made

regarding the issue of the language problem. An applicants is, in

accordance with the provisions of § 22 of the Asylum Act, provided with

the assistance of an interpreter, but naturally only in the

administrative proceedings; the administrative decision is not

translated, the applicant is, through the interpreter, only familiarised

with the contents of the same. An administrative action must then be

developed in Czech. This is necessarily another complication for their

procedural steps and makes them dependent on specialised assistance,

which they must obtain.

45. The Constitutional Court had further

to consider whether the contested provisions could be interpreted in a

constitutionally conforming manner. When the Constitutional Court

concluded that the duration of the term under consideration, in

combination with the arrangement of review of the decision on rejection

of an application for granting international protection as manifestly

unjustified, is so short that the action cannot be considered an

effective procedural means of remedy, then the Constitutional Court

would not annul the contested provisions only in such a case that the

given deficit could be bridged through interpretation. Through such

interpretation, the factual prolongation of the term under examination

would have to be achieved.

46. Such “prolongation” technically

comes into consideration only in such a way that filing an action (this

meaning any action, including a blanket one) will represent compliance

with the term of the action, and an obligation on the part of the court

to request the petitioner to rectify the defects, or amend the filing.

In this, the length of the term provided by the court for such a

rectification could not be limited to a seven-day period, rather the

court would provide an “adequate” term, i.e. such during which,

according to the court’s opinion and experience, an unsuccessful

applicant would be realistically able to respond in a qualified manner.

However, the Constitutional Court considers this impermissible and

incompatible with the generally acknowledged concept of the principle of

concentrated proceedings. Even if such a possibility of factually

extending the short term of the action through a judicial request were

limited only to asylum-related cases (which is in itself hard to defend

and sustain), this would in a material way undermine the very concept of

the administrative judiciary. However, this concept cannot be

sacrificed in order to mitigate the effects of too short a term on the

parties to one form of administrative proceedings. In addition, making

the principles of the administrative judiciary unstable would be

inadequate to the consequences of annulling the contested provisions.

47.

The Ministry in its opinion pointed out the course of action which was

chosen by the Supreme Administrative Court in decision file No. 2 Azs

117/2004, dated 26 October 2004; this Court thereby criticised the

Regional Court that they, in conflict with § 37 para. 5 of the Code of

Administrative Justice, had not taken into consideration the amendment

of the party’s filing made after the term established by the court but

prior to the issue of the decision on the matter, and dismissed the

filing. The Constitutional Court does not approve of this. The

application of provisions of § 37 para. 5, second sentence of the Code

of Administrative Justice determines the consequences of failing to

comply with a request for rectification of defects in or amendment to

the filing. Even if such an interpretation were adopted that the

administrative courts would take into account corrections and amendments

to filings received following the term but prior to a decision on such a

filing being made, the status of the applicant would remain insecure.

Whether or not such filing would be taken into consideration would

depend solely on how quickly after the end of duration of the term the

court would take their decision.

48. The contested provisions

cannot be interpreted in such a way that they would provide the

unsuccessful applicant with a warranty of an effective remedy.

49.

It thus may be concluded that the provisions of the Asylum Act under

consideration, by restricting the right on the part of the applicant to

claim with a court protection of their rights by establishing an

inadequately short term for filing an action, in essence render the

proclaimed judicial protection a mere illusion (similarly in Judgment

file No. Pl. ÚS 12/07, promulgated under No. 355/2008 Coll.). Such

provisions are therefore in conflict with Article 36 para. 2 of the

Charter of Fundamental Rights and Basic Freedoms, according to which a

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

public administrative authority may turn to a court for review of the

legality of that decision, unless the law provides otherwise; however,

judicial review of decisions affecting the fundamental rights and basic

freedoms listed in the Charter may not be removed from the jurisdiction

of courts; and with Article 13 of the Convention on the Protection of

Human Rights and Fundamental Freedoms, guaranteeing the right to an

effective remedy before a national authority to anyone who has been

affected in relation to the right acknowledged by the Convention.


VI.


50.

The reasons specified above have led the Constitutional Court to the

conclusion that, pursuant to § 70 para. 1 of the Act on the

Constitutional Court, the petition must be granted.

51. Pursuant

to § 44 para. 2 of the Act on the Constitutional Court, the

Constitutional Court dispensed with an oral hearing, since further

clarification of the matter could not be expected from the same, and all

parties expressed their approval with such a dispensation.

Notice: Decisions of the Constitutional Court cannot be appealed.