Found at the Constitutional Court of the Czech Republic No. 1 / 1997 Coll.
Findings of the Constitutional Court of the Czech Republic of 27 November 1996 concerning the application for annulment of Article 21 (1) and (2) of Act No. 110 / 1964 Coll., on Telecommunications, as amended, § 7 (3) of the Ordinance of the Central Administration of Communications No. 111 / 1964 Coll., implementing the Telecommunications Act, as amended, and § 31 (11) of the second and third sentences and paragraph 12 of the First Ordinance of the Federal Ministry of Communications No. 108 / 1982 Coll., which is issued by the Telephone Regulations, as amended
Valid
1
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided on 27 November 1996 in plenary on the proposal of the Supreme Court in Prague to repeal § 21 paragraphs 1 and 2 of Act No. 110 / 1964 Coll., on Telecommunications, as amended, § 7 paragraph 3 of the Decree of the Central Management of Communications No. 111 / 1964 Coll., implementing the Telecommunications Act, as amended, and § 31 paragraph 11, second and third sentences, and paragraph 12 of the First Order of the Federal Ministry of Communications No. 108 / 1982 Coll., which is issued by the Telephone Code, as amended,
as follows:
I. The proposal to repeal the provisions of § 21 paragraphs 1 and 2 of Act No. 110 / 1964 Coll., on Telecommunications, as amended, is rejected.
II. The application for annulment of the provisions of § 7 (3) of the Ordinance of the Central Management of Communications No. 111 / 1964 Coll., implementing the Telecommunications Act, as amended, and the application for annulment of § 31 (11), second and third sentences and paragraph 12 of the First Ordinance of the Federal Ministry of Communications No. 108 / 1982 Coll., which is issued by the Telephone Regulations, as amended, is rejected.
Reasons
The Sixth Chamber of the Administrative College of the Supreme Court in Prague submitted a motion for annulment in connection with its decision-making activities under Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution)
(a) Paragraph 21 (1) and (2) of Act No. 110 / 1964 Coll., on Telecommunications, as amended,
(b) Paragraph 7 (3) of the Decree of the Central Management of Communications No. 111 / 1964 Coll., implementing the Telecommunications Act, as amended (Decree No. 92 / 1974 Coll. and Decree No. 148 / 1984 Coll.),
(c) Paragraph 31 (11), second and third sentences and paragraph 12, of the First Order of the Federal Ministry of Communications No. 108 / 1982 Coll., which is published in the Telephone Regulations, as amended,
with an indication that:
- provision (a) requires administrative authorities to take decisions on the rights and obligations of natural or legal persons (arising from the Telecommunications Act) under the administrative rules and to establish jurisdiction for decisions of public authorities. As a result, the law program is excluded. This provision therefore runs counter to the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the "Convention ') by conferring on the administrative authorities in their substance and by subjecting the administrative system to all decisions in cases under the Telecommunications Act, including decisions in civil matters, i.e. decisions on the obligation to pay compensation for the use of a telephone station. The contested provision therefore prevents independent and impartial authorities from deciding on such obligations of a civil nature in full jurisdiction. This is contrary to the requirement of Article 6 (1) of the Convention;
- the provisions of sub (b), according to which the statement of compensation for the performance of the connections and, where applicable, the fees not paid by the socialist organisations is evidence of the application of the recovery order for the service organisation. This provision allows, per analogiam Legis, the execution of administrative decisions and against a natural person operating under special regulations who owes another legal person a remuneration for telecommunications services in a situation where the debtor does not have the legal ability to call for protection on the order of law; This is contrary to the requirement of Article 6 (1) of the Convention;
- the provisions of sub (c) in paragraph 11 provide that objections to the telephone account shall be decided by the administration in accordance with the administrative procedure rules and an appeal shall be admissible against its decision on objections. This adaptation is contrary to Article 6 (1) of the Convention. The provision in question confers the power of a legal person ("administration 'in Paragraph 1 (1) is a ministerial organization of connections) to decide on the rights and obligations of natural persons and legal persons; Having regard to the amendment of the Telecommunications Act, the contested provisions lack legal basis and thus conflict with Article 2 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter'), according to which state authority may be exercised only in cases and within the limits laid down by the law, in the manner provided for by the law, and with Article 79 (1) of the Constitution, according to which ministries and other administrative bodies may be established and their powers laid down only by law. The contested provision makes the administrative authority from a legal person and transmits to it the exercise of the state administration without becoming a law. As regards the provisions of Paragraph 31 (12), the sentence of the first Decree No 108 / 1982 Coll., according to which the administration exercises enforcement of the decision on the basis of the statement of telecommunications charges due, is the same as those set out in the complaint against paragraph 11 of that decree.
The proposal of the Sixth Chamber of the Administrative College of the Supreme Court in Prague is further justified as follows:
In the case sp. zn. 6 A 402 / 95 of the Supreme Court in Prague, on 16 June 1995 the proposal of the Ministry of Economic Affairs of the Czech Republic for a decision on a negative conflict of competence [§ 8a of the Civil Code (hereinafter "o.s. ')] between the Ministry of Economic Affairs and the Regional Court in Domažlice and the Regional Court in Pilsen as regards the decision on the remuneration of the telecom payments due. The applicant stated that he sued TELECOM, a. s., the region of Pilsen, the telephone participants for payment of CZK 4775 at the District Court in Domazlice in respect of the payment of the telephone charges due to R. and RNDr. J. P.. This court has suspended the proceedings by referring the case to the Ministry of Economy after the legal power of the order. In the preamble to the Decision, referring to Article 21 of the Telecommunications Act, it stated that the Court of First Instance, rather than the administrative body, was not given jurisdiction in the case. In its appeal proceedings, the Regional Court in Pilsen confirmed this decision. However, the Ministry of Economic Affairs rejected its competence to point out that the debtors did not apply a claim against a claim under Paragraph 31 (11) of the Telephone Regulations and therefore the administrative authority cannot decide on the case. This created a negative competent conflict between the state administration and the court and the Ministry of Economy submitted a proposal to resolve it.
In the case sp. zn. 6 A 269 / 93, the Supreme Court in Prague is in charge of an administrative action against SPT TELECOM, which seeks the annulment of the decision of the Minister of Economy, who changed the decision of the administrative body of the first degree by recognising that the telephone participant B. H. was obliged to pay a telephone fee of 105 CZK for the month of February 1993 (whereas the counter showed 5349 impulses).
In both cases, the Supreme Court in Prague took the view that the provisions of Paragraph 21 (1) and (2) of Act No. 110 / 1964 Coll., in the current version, as well as certain related provisions of the legislation issued for the implementation of this Act - to be used in the resolution of the question of jurisdiction on the matter - are contrary to the ratified and declared Convention. Therefore, in both cases, the court suspended the proceedings under § 109 (1) (b) o. s.
The fundamental doubt of the Supreme Court in Prague about the constitutionality of the legislation in force is the legal view that the obligation to pay the legal person fees for the use of a telephone station is a duty of civil law, not a duty of a public law nature. If the administrative authority and not the court (which is entrusted under the Czech law of the administrative justice only by the appeal of the lawfulness of the administrative authority's final decision and which is bound by the facts as established by the administrative authority), the provisions of Article 6 (1) of the Convention, which implies that in these cases the court must rule on the order of law in full jurisdiction, i.e. to also find matters of fact. As a result of the administrative authority deciding on the obligation for the user to pay telecommunications charges in administrative proceedings and its decision became final in this proceeding, both the user and the legal person providing telecommunications services may seek redress in court only in so far as the lawfulness of such a decision is concerned, by an action brought before a court under the administrative justice procedure. In this case, the Court of First Instance is bound by the facts as determined by the administrative authority (§ 250i (1) o. s.) and cannot carry out the taking of evidence (e.g. by an expert opinion) in which it finds the facts differently and decides on the substance. This situation is contrary to Article 6 (1) of the Convention, according to which "everyone has the right to have his case dealt with fairly, publicly and within a reasonable period of time by an independent and impartial court established by law which decides on his civil rights and obligations or on the validity of any criminal charges against him '. Respect for this article of the Convention does not provide for the legal order of the Czech Republic. The Supreme Court also stated that such a requirement would not be ensured even by enacting legal remedies against the decision of the administrative authority (the procedure under Title III of Part Five of the EC Treaty) in matters of private law. Even in this proceedings, the court is bound by the facts as determined by the administrative authority; the head of the third part of the fifth does not have any other special provisions on this, and therefore the principles of § 250i (1) o. s. s. No other procedure is possible; In fact, if the Court of First Instance found facts in the appeal proceedings against an administrative authority's decision, established the facts itself and, on the basis of that, decided on the substance of the case, it would probably make no sense at all to talk about the administrative decision; It would be a court decision. The Court would thus assume responsibility for the substantive correctness of the decision conferred on the administrative authority by the law, and such practice would in itself call into question the separation of the judiciary from the administration, in other words, the principle of division of power.
The Constitutional Court dealt with the question of the fulfilment of the conditions laid down in § 64 (4) of Act No. 182 / 1993 Coll., on the Constitutional Court, which authorises the court to apply for annulment of the law or its individual provisions in connection with its decision-making activities pursuant to Article 95 (2) of the Constitution. According to the contents of the files of the Supreme Court in Prague, the conformity of the provisions of Article 21 (1) and (2) of Act No. 110 / 1964 Coll. (as currently in force) with the constitutional laws was assessed by the Supreme Court in the proceedings for the action brought under sp. (6) A (269) / 93 and it concluded that the law to be applied in the resolution of the question of jurisdiction in the case was contrary to Article 6 (1) of the Convention (Article 10 of the Constitution). He was therefore entitled to file an application for annulment of the Act or its individual provisions pursuant to § 64 (4) of Act No. 182 / 1993 Coll.
The application to initiate the procedure was therefore received To the Chamber of Deputies of the Parliament of the Czech Republic with a request for comments.
The Chamber of Deputies of the Parliament of the Czech Republic, in its observations signed by the then President PhDr. Milan Udem, stated that the Supreme Court in Prague sought in its proposal the annulment of the provisions of Sections 21 (1) and (2) of Act No. 110 / 1964 Coll., as amended, which in the appellant's view is contrary to the provisions of Article 6 (1) of the Convention. These provisions were incorporated into the legal order on the basis of an amendment to the Telecommunications Act, Act No. 150 / 1992 Coll., amending and supplementing Act No. 110 / 1964 Coll., on Telecommunications, adopted on 12 March 1992.
According to the original version of the Telecommunications Act 1964, administrative authorities decided on the rights, legitimate interests or obligations of citizens and administrative organisations. However, these authorities were part of state enterprises, i.e. the economic sphere. As stated in the explanatory memorandum to Act No. 150 / 1992 Coll., the planned transition to liberalisation of certain services, statehood and privatisation must lead to separation of economic activities from administrative activities. The proposed amendment fully respected this requirement and entrusted administrative decision-making to newly set-up independent administrations which are independent of the economic activities of telecommunications service providers.
With regard to the application for annulment of the provisions of § 7 (3) of Decree No. 111 / 1964 Coll., as amended, and to the annulment of the provisions of § 31 (11), second and third sentences and paragraph 12 of the First Order No. 108 / 1982 Coll., as amended, it is not possible to comment on it as this proposal concerns executive powers. Article 79 (3) The Constitution may, by law and within its limits, legislate by ministries, other administrative authorities and local authorities, provided that they are empowered by law to do so.
In this context, the President of the Chamber of Deputies of the Parliament of the Czech Republic expressed the view that the legislature - the former Federal Assembly of the Czech and Slovak Federal Republic - acted in the belief that the adopted amendment to the Telecommunications Act was in line with the Constitution and our legal order, as well as with the international treaties that the Czech and Slovak Federal Republic was bound by. Finally, he stated that the law was passed by the necessary majority of Members of the House of Nations and the House of the People of the Federal Assembly on 12 March 1992, signed by the relevant constitutional authorities and was duly declared.
The Constitutional Court also requested the opinion of the Ministry of Justice of the Czech Republic (Paragraph 49 (1) of Act No. 182 / 1993 Coll.), which stated that Article 6 (1) of the Convention, to which the Czech Republic is bound, gives it an obligation to ensure "any right to ensure that its case is dealt with fairly, publicly and within a reasonable period by an independent and impartial tribunal established by the law which decides on its civil rights or obligations or on the legality of any criminal charges against it '. The definition of" civil law or commitment' is covered by the extensive case-law of the European Court of Justice; Although the Ministry of Justice is not aware of a specific decision relating to decisions on telecommunications charges, it appears to be inferred that relations between a telephone participant and a legal person providing telecommunications services in return for payment are to be placed under the term "civil law or commitment 'within the meaning of the Convention. It is also clear from the case-law of the European Court of Justice that an independent tribunal which is to decide on civil rights or obligations or criminal charges should have jurisdiction not only from a legal point of view but also from a factual point of view, i.e. in full jurisdiction (see, for example, the judgment in Le Compte at. al., 1981, A - 43).
In this context, the Ministry of Justice referred to the case law relating to the body to be decided within the meaning of Article 6 (1) of the Convention, "which implies that this impartial and independent tribunal may, but may not, be integrated into the judicial system of general courts by a court of a classical jurisdiction. It may also be an executive body in the sphere of power if it meets the characteristics and offers guarantees of impartiality and independence (see, for example, the Campbell judgment of 1984, A - 80). 'However, the caselaw admits decisions by administrative authorities in the sphere of civil rights, obligations or criminal charges which, by their nature, do not comply with the requirements of Article 6 (1) of the Convention. It requires, however, that these decisions be subject to follow-up by independent and impartial tribunals with full jurisdiction (see, for example, Le Compte, 1983, A - 58).
Decision of the Administrative Office on the obligation of the user to pay the payment of telecommunications charges in administrative proceedings pursuant to Article 21 (1) and (2) of Act No. 110 / 1964 Coll. is a decision of an administrative authority which is not a decision within the meaning of Article 6 (1) of the Convention. Similarly, the possible subsequent review of the decision by the administrative body by a court pursuant to Part Five (o. s.) does not fully meet the requirements of this Article as the judicial review is limited to a review of the legality of such decision.
In the opinion of the Ministry of Justice, however, the non-compliance of the Czech Republic's legal order with Article 6 (1) of the Convention does not mean that this provision excludes the possibility for an administrative authority to rule on civil rights, obligations or criminal charges or also excludes an "supranational element where the decision of an independent tribunal pursuant to Article 6 (1) of the Convention is excluded. The Convention could still be reviewed from the point of view of its legality by the Court of Justice '. This discrepancy should therefore be seen in the absence of an interlink - that is to say, in the absence of a legal regulation which is based on the right to review a decision of an administrative authority issued pursuant to Paragraph 21 (1) and (2) of Law No 110 / 1964 Coll. by an authority complying with the requirements of Article 6 (1) of the Convention which cannot be removed by the repeal of the provisions in question.
The Ministry of Justice also recommended, in the context of the proposal for the annulment of certain provisions of Decree No. 111 / 1964 Coll. and No. 108 / 1982 Coll. (as amended), that the list of bodies to which Article 64 (2) of Law No 182 / 1993 Coll. gives rise to the right to submit a proposal for the annulment of another law or its individual provisions is of a taxative nature. However, the provisions of Article 95 (2) of the Constitution and of Article 64 (4) of Law No 182 / 1993 Coll. cannot give rise to such an authorisation of a general court.
The Constitutional Court also requested the expression of the Supreme Court of the Czech Republic, which stated that it considered the proposal of the Supreme Court in Prague as one of the possible solutions to the question of whether and when to be the subject of decisions by administrative bodies of rights and obligations of relations whose nature is civil law. The legislation contained in the provisions of § 21 paragraphs 1 and 2 of Act No. 110 / 1964 Coll., § 7 paragraph 3 of Decree No. 111 / 1964 Coll., or § 31 paragraphs 1 and 2 of Decree No. 108 / 1982 Coll. (noted correctly: § 31 paragraphs 11 and 12...) is not a unique regulation, in particular where there are recurring payments for various types of services provided. This special regulation, however, is also envisaged by the provisions of § 247 (1) o. s. s.) (even as amended by Act No 238 / 1995 Coll.), which foresees the existence of administrative decisions dealing with decisions on the rights of natural and legal persons, the provision does not imply that it is merely a decision in administrative relations. It is therefore clear that the legislation contained in the provisions on telecommunications is not only given by these special rules, but also corresponds to the general provision of § 247 (1) (a), which also provides for the application of actions against administrative decisions, the purpose of which is also to resolve the issues of the rights and obligations of natural and legal persons which, by their nature, are civil as far as the legislation confers upon administrative authorities.
Finally, the Constitutional Court requested the opinion of the Ministry of Economic Affairs, the Czech Telecommunications Office, which considered the proposal of the Sixth Chamber of the Administrative College of the Supreme Court in Prague from the following aspects:
1. Compliance of the contested provisions with the Constitution.
Article 36 (1) and (2) The Charter expressly allows the law to provide that certain rights are not to be decided by a court, but by another body (e.g. the Ministry of Telecommunications). The lawfulness of its decisions is subject to review by a court, "which does not require Article 36 (2) of the Charter, even in the case of any review of decisions on non-fundamental rights and freedoms under the Charter '. In 1992, the Federal Assembly of the CSFR took into account two fundamental aspects when agreeing to the dictation of Article 21 of the amendment to the Telecommunications Act:
(a) The procedure under the general rules on administrative procedures is optimal for decisions on the rights and obligations of natural and legal persons in matters covered by the Telecommunications Act, since it is necessary in fact to examine a number of complex technical problems, the solutions of which are provided by the administrations of telecommunications to experts and the relevant technology; the assessment of these problems would be beyond the discretion of the courts, including in view of the fact that the number of such cases is significant and would be extremely burdensome to the judicial authorities.
(b) Decisions of public authorities shall be reviewed by a court which shall determine whether the administrative authorities have respected the legality of the decision.
2. Legislative and legal aspects.
The repeal of the provisions of Paragraph 21 (1) and (2) of the Telecommunications Act would mean that the legal basis for the decision of the State Telecommunications Authority on the matters referred to in Section 21 (3), which provides that the Federal Ministry of Communications decides:
(a) authorisation to establish and operate specified parts of the single telecommunications network;
(b) the approval of the competence of telecommunications equipment;
(c) the granting of authorisations for the establishment and operation of telecommunications equipment outside a single telecommunications network where their operation crosses the borders of the State or of the Republic;
(d) the granting of authorisations for the provision of telecommunications services outside a single telecommunications network crossing national or Republic borders;
(e) the allocation of frequencies and frequency bands, the performance of State supervision of their compliance;
(f) the granting of authorisations for the establishment and operation of radio broadcasting equipment of mobile or fixed services;
(g) the imposition of fines under this law and the handling of offences in the matters in which it decides;
(h) a permit for radio and television broadcasting equipment, provided that the operator has been granted an authorisation to disseminate radio or television programmes and that the equipment is established in accordance with the radio and television frequency plan;
(ch) authorisation for broadcasting radio stations of representative offices of foreign states, subject to the approval of the Federal Ministry of Foreign Affairs and subject to reciprocity.
The repeal of this provision is not proposed. Paragraph 21 (1) of the Act cited further states (similar to Article 45 (1) of Act No 222 / 1994 Coll., on the terms and conditions of business and on the exercise of state administration in the energy sector and on the State Energy Inspection) that the administrative authorities of telecommunications are to proceed in their decision making in accordance with the general administrative rules. The repeal of this provision would leave the administration of telecommunications solely to decide without any procedural rules, which would be contrary to Article 36 (1) of the Charter, which provides that everyone may claim their right under a procedure. The repeal of the provisions of Paragraph 21 (1) of the Telecommunications Act would therefore lead to the absence of any procedure for decision-making by telecommunications administrations, which is contrary to the constitutional principles of the Czech Republic and, in consequence, to international treaties and documents of the European Communities.
With regard to the proposal of the Supreme Court in Prague to repeal certain provisions of the regulations issued for the implementation of the Telecommunications Act, it is said that this proposal is entirely irrelevant because
- the courts are not bound by the provisions of the Decree (cf. the Constitutional Court found No 26 / 94 Collection of finds and the Constitutional Court order),
- pursuant to the provisions of § 6 (1) of Constitutional Act No. 23 / 1991 Coll., establishing the Charter of Fundamental Rights and Freedom as the Constitutional Law of the Federal Assembly of the Czech and Slovak Federal Republic, the provisions of laws and laws which were not in conformity with the Charter were no longer effective on 31 December 1991. Such a provision was also provided by § 21 (2) of the Telecommunications Act and that part of § 1 (1) of Decree No. 108 / 1982 Coll., which introduced the legislative abbreviation "administration 'for the organization of connections providing telephone services and thus became a contradiction with Article 36 of the Charter. The organisation of communications pursuant to Article 21 (2) of the Telecommunications Act and Article 1 (1) of the Telephone Regulations could not be regarded as public authorities referred to in Article 36 of the Charter. It is therefore quite indisputable that the word" administration "is understood in paragraphs 31 (11) and (12) of the Telephone Regulations as from the effective date of Amendment No 150 / 1992 Coll. by the authorities of the State Telecommunications Administration there and no other,
- all substatutory implementing regulations for telecommunications are subject to full amendment in the current period. Decree No. 108 / 1992 Coll. is intended, for example, to replace the Order on the Telephone Service.
3. The viewpoint of general interest.
Administrative proceedings in telecommunications matters in the Czech Republic are proven to be extremely beneficial in situations where:
(a) the judicial authorities are extremely overloaded in the realisation of their competences;
(b) administrative bodies shall be provided with mechanisms for the rapid acquisition of evidence enabling them to take a decision within a reasonable period of time, with particular regard to the protection of the rights of users of telecommunications services at a time when technical and technological obsolete telecommunications networks and equipment remain and when natural and legal persons cannot themselves obtain evidence of specific defects in telecommunications services;
(c) it is clear from the statistics for the first half of 1995 that 1491 objections to the amount of the bill of charges (+ 597 cases from the previous period) were lodged during this period, which were dealt with as follows:
| kladně | záporně | vráceno | postoupeno | nevyřízeno |
| 194 | 451 | 22 | 255 | 1166. |
It is clear from this that two-stage administrative management ensures optimum public protection in telecommunications relations.
The new Telecommunications Act, the intention of which is already being processed and which is to be submitted by 1998 to the legislature, will ensure that decisions on private-law relations in telecommunications are brought into the jurisdiction of the courts. At that time, the necessary data (which forms the basis for the billing of these services) will be collected by central computer processors, so that the courts will no longer have to face the evidentiary distress faced by the participants in today's administrative proceedings.
The Constitutional Court also examined the proposal in a broader context and examined the content of the legislation in certain comparable countries as to whether courts in the administrative judiciary have the right to examine and supplement the facts (so-called full jurisdiction), or whether - like the Czech Republic - they cannot examine the facts.
Administrative judiciary in Germany:
The administrative justice system in Germany is complicated by the fact that it is a federal state and therefore it is necessary to distinguish between judicial authorities and legislation at federation and federal level. Since 1960, administrative courts have had three levels:
- administrative courts,
- supreme administrative courts,
- Federal Administrative Court.
The Federal Administrative Court is a federal court, the supreme administrative courts and the administrative courts are the courts of the Land. Proceedings before administrative courts are governed by the Law on proceedings before administrative courts (Verwaltungsgerichtsordnung) of 1960. The administrative justice is intended to serve the protection of subjective rights, therefore the initiation of proceedings is only possible on the basis of a request from the person concerned, but the Court of Justice, acting on an official basis, examines the facts without being bound by the parties' proposals. An appeal shall be admissible against the decision of the Administrative Court and shall be decided by the Supreme Administrative Court. The Court of First Instance shall examine both the facts and the legal aspects of the case. The decision of the Supreme Administrative Court is an appeal for revision only where it has been expressly admitted to the judgment. The Federal Administrative Court shall be responsible for the revision, which shall examine the judgment under appeal only from the point of view of formal law.
Administrative judiciary in France:
Under the Administrative Courts Act, administrative proceedings are pending before the competent administrative court. Law No 1127 of 31 December 1987 established (and since 1989) the administrative courts of appeal as an instance of appeal. Upon registration of a request to initiate legal proceedings against decisions or acts of local authorities, the President of the court or in Paris, the President of the department to which the request has been submitted, shall designate a rapporteur who shall set a time limit for the parties to submit additional dispositions, observations, defence or reply. The Parties may request all documents and documents useful to resolve the dispute. The French Law on Administrative Courts in Article R.172 states that a court or court may, either at the request of the parties or on its own initiative, order an examination of the facts which it finds useful for investigating the case. The proceedings before administrative courts are therefore two-way. The hearing of administrative courts and appeals of administrative courts shall be public. Following a report by a member of a judicial authority on each case, the parties may make oral submissions in support of their written proposals. The proceedings shall end with the public delivery of a judgment or decision.
By comparing these rules of the administrative justice system with those of the Czech Republic, it is clear that in some developed countries of Europe, the administrative justice system - unlike the Czech Republic - is competent to examine and supplement the facts of the case.
The provisions of the law and other legislation which the appellant seeks to abolish shall read as follows:
- Act No. 110 / 1964 Coll., as amended, § 21 paragraphs 1 and 2:
(1) Decisions on the rights and obligations of natural or legal persons under this Act shall be taken in accordance with the general administrative rules.
(2) In administrative proceedings under this law, the Federal Ministry of Communications and the State Telecommunications Administration, which provides for the laws of national councils, decides.
[Act No. 474 / 1992 Coll. established that the Ministry of Economy is the central authority of the State Administration for Postal and Telecommunications. At the same time, there was an indirect amendment to those provisions of the Telecommunications Act which entrusted decisions to the Federal Ministry of Communications (in particular paragraphs 2, 3, 4, 22 (1) and 22a thereof). Paragraph 1 (5) (a) (1) of Act No. 272 / 1996 also provides that the existing scope resulting from laws and other legislation is to be transferred from the Ministry of Economic Affairs to the Ministry of Transport and Communications in respect of telecommunications and post offices.]
- Decree No. 111 / 1964 Coll., as amended, § 7 (3):
(3) The statement of remuneration for the performance of the connections and, where applicable, the fees not paid by socialist organisations is evidence of the application of the recovery order of the service organisation.
- Decree No. 108 / 1982 Coll., as amended, § 31 (11), second and third sentences:
The administration shall decide on objections (understand against the account) under the administrative rules. An appeal is admissible against a decision on objections.
Paragraph 31 (12), first sentence:
Unpaid remuneration shall be enforced by the administration on the basis of a statement of telecommunications charges due.
Own analysis of legal issues
1. The Constitutional Court first examined whether the formal conditions for the validity of the contested provisions of Act No. 110 / 1964 Coll., as amended, in particular Act No. 150 / 1992 Coll., were fulfilled. In this regard, it was found from a short-term record from the 21st Joint Meeting of the House of the People and the House of Nations of the Federal Assembly of 12 March 1992 that the Act (amendment) was approved by a majority in the House of the People (consent 75 Members, disagreement 1, abstention 7 Members) as well as in the House of Nations (consent 84 Members, disagreement 1, abstention 16 Members). In the same entry, the editorial note refers to Resolution FS No 321, SN No 505, SL No 489. The law was signed by the relevant constitutional authorities and was duly declared in the Collection of Laws (amount 33 of 1992). The Constitutional Court therefore concluded that the Law was adopted and issued within the limits of the Constitution established competence and in a constitutional manner (§ 68 (2) in fine of Act No. 182 / 1993 Coll.).
2. The Constitutional Court also dealt with the content of the contested provisions of the law in terms of their compliance with constitutional laws and international treaties pursuant to Article 10 of the Constitution.
The proposal to abolish the contested provisions of the Telecommunications Act is based, in particular, on the argument that these provisions confer on the administrative authorities in their substance and subject the administrative system to all decisions under the Telecommunications Act, including decisions on the obligation to pay compensation for the use of the telephone station. The appellant's fundamental doubts as to the constitutionality of the legislation in force is the legal opinion that the obligation to pay the legal person the charges for the use of a telephone station is a duty of civil law, not a public law obligation. If the administrative authority and not the court (to which it is entrusted under the Czech law of the administrative justice system only the appeal of the lawfulness of an already final decision of the administrative authority, and which is bound by the facts as established by the administrative authority), it is alleged that Article 6 (1) of the Convention, which implies that in these cases the court must rule on the order of law in full jurisdiction, i.e. also find matters of fact. As a result of the administrative authority deciding on the obligation for the user to pay telecommunications charges in administrative proceedings, both the user and the legal person providing telecommunications services may seek redress in court only in so far as the lawfulness of such a decision is concerned, by an action brought by the Court of Justice under the administrative justice procedure (part five of Title II of the Rules of Procedure). In this case, the Court of First Instance is bound by the facts as determined by the administrative authority (§ 250i (1) o. s.) and cannot give evidence (e.g. by an expert opinion) in which it finds the facts otherwise and decides on the substance.
[Note: For the sake of completeness, the above view of the Supreme Court in Prague is not fully in line with the well-known professional literature. The publication of the Civil Code, Comments (Bures, Drápal, Mazanec, C. H. Beck II. edition 1996, p. 752) states that the provisions of Paragraph 250i (1) (a) above, in part after the semicolon, in the words "not to be proved," cannot be interpreted as not to be done. The legislator merely "expresses" that, as a general rule, taking into account the binding nature of the facts, there is no need for evidence. However, the Court of First Instance shall order the hearing and give evidence thereof, if necessary or desirable, for example because it is a strictly professional matter requiring the present presence of all parties, in order to ensure that the court is as clear as possible as to what is the substance of the applicant's reservations against the act and on which documents of the often bulky and opaque file the defendant relies on his argument. In this context, it is also claimed that the provisions of § 250g o. s. s., which, in cases where no decision is taken without an order of conduct (§ 250f o. s. s.), require the President of the Chamber to call the parties to the hearing; it may request the necessary supporting documents and, where appropriate, other written observations by the parties. This argument makes it clear that the fact that the court is bound by the facts as determined by the administrative authority (§ 250i o. s. s.) does not preclude the execution of the evidence necessary for the court's decision.]
According to the conviction of the Constitutional Court, the argument of the Supreme Court in Prague from the point of view of the constitutionality of the contested provision § 21 paragraphs 1 and 2 of Act No. 110 / 1964 Coll., as amended, is irrelevant.
First of all, it must be pointed out that the provisions of Article 36 (1) and (2) of the Charter expressly allow the law to provide that certain rights are not to be decided solely by the court, but also by another authority. Such a law is, for example, the Telecommunications Act, and the "other body" is the Ministry in charge of the telecommunications sector. The legality of its decisions is revisable by the Court, which does not even require Article 36 (2) of the Charter to review decisions on non-fundamental rights and freedoms under the Charter. From this point of view, the legislator cannot be accused of conferring powers on the administrative authority in administrative proceedings on the rights and obligations of natural or legal persons under the Telecommunications Act. (In this context, it can also be pointed out that the judgment of the European Court of Human Rights in Le Compte, A - 58, according to which, pursuant to Article 6 (1) of the Convention, a decision by an administrative authority which does not in itself comply with the requirements of that provision is subject to subsequent control by a judicial authority with full jurisdiction.)
In addition, account should be taken of the fact that, by abolishing the contested provision of Paragraph 21 (1) and (2) of the Telecommunications Act, the legal basis for decision-making in cases which are covered by Paragraph 21 (3) of the cited Act, which was not proposed to be annulled, would have disappeared. This is a fundamental competence of an administrative authority without which telecommunications could not exist and which, given their nature (to a large extent of technical nature), could hardly be entrusted to any authority other than the administrative authority of the relevant professional orientation. In addition, it can also be pointed out that Paragraph 21 (1) of that Law in fine, which states that decisions... under that law are governed by general administrative rules. Therefore, the repeal of that provision would mean that the Authority would decide without relying on certain procedural rules. This would appear to be contrary to Article 36 (1) of the Charter, according to which anyone may claim his or her right in an independent and impartial court and, in specified cases, another authority.
The Constitutional Court also took into account Directive 95 / 62 / EC of the European Parliament and of the European Council of 13 December 1995 on the application of the provisions on open networks in the area of voice telephony. This directive also suggests a trend in legislation in the Czech Republic, which seeks membership of the European institutions. Article 27 (1) of the Directive provides for a procedure for the dispute settlement in the field of telecommunications as follows: "Member States must ensure that any party, including users, service providers, consumers or other telecommunications organisations having an unresolved dispute with telecommunications organisations concerning alleged infringement of the Directive, has the right to appeal to the relevant national managing authority or other independent authority. At national level, it is necessary to create conditions for an easily accessible and essentially indiscriminate procedure in which such a dispute is decided in a fair and comprehensible manner and in a timely manner. Such procedures shall also apply where users are in dispute with telecommunications organisations regarding their telephone accounts. '; It appears from that wording that the directive cited does not preclude the ruling of these disputes in administrative proceedings, but requires that the administrative decision be subject to review by an independent tribunal. The Czech legislation corresponds to this requirement only as far as the decision of the administrative authority is concerned, but it does not comply with it if it does not allow the review of the decision of that authority by an independent and impartial tribunal which decides in full jurisdiction.
The Constitutional Court thus concludes that Article 6 (1) of the Convention, which the Supreme Court of Prague refers to, does not in consequence imply the obligation of States which later acceded to the Convention in 1950 to exclude administrative decisions on the rights and obligations of natural and legal persons from their legal systems. This is demonstrated, for example, by Resolution / 77 / 31 "On the protection of individuals in relation to administrative acts' approved within the Council of Europe by the Committee of Ministers on 28 September 1977 at the 275th meeting of representatives of ministers. This document, which has been published, for example in Administrative Law No 5 / 1995, lays down certain principles of administrative practice of the Member States of the Council of Europe relating to the protection of natural and legal persons in administrative proceedings relating to any individual measure or decision in the framework of the exercise of public administration which is the nature of direct interference with their rights, freedoms or interests (administrative acts). This is, in particular, specified in point I (1), according to which" in respect of any administrative act which might affect the rights, freedoms and interests of a party, the party has the opportunity to comment on the facts of the case and on the evidence '... and, in principle, point IV., that, if the administrative act affects the rights, freedoms and interests of the party, the party must be informed of the reasons on which the act is based. The comment on these principles under point 2 states that the protection of a citizen in view of the procedural aspects of administrative matters which are affected is part of the protection of the fundamental rights and freedoms of an individual, which is one of the fundamental tasks entrusted to the Council of Europe by its Statute. It can therefore also be concluded from this document that Article 6 (1) of the Convention does not intend to exclude administrative decisions on the rights of natural and legal persons from national law.
According to the Constitutional Court, the substance of the case is not that the contested provision of Paragraph 21 (1) and (2) of the Telecommunications Act is unconstitutional, and the inconsistency of the Czech legal order with Article 6 (1) of the Convention is not caused by the fact that the Convention excludes the competence of administrative authorities to rule on civil rights, obligations or criminal charges of a citizen. In this context, it is appropriate to refer to the provisions of § 247 o. s.), which implies that it itself envisages bringing actions against administrative decisions which deal with the rights and obligations of natural and legal persons, which by their nature are civil rights and obligations. After all, not only the Telecommunications Act, but also other laws establish the power of administrative authorities to decide on the rights and obligations of natural and legal persons. This is the case, for example, in the provision of § 12 paragraph 1 of Act No 222 / 1946 Coll., on the post office which regulates the cases in which the post office decides on the claims arising from the liability of postal items carried by mail (see § 65 of Decree No. 78 / 1989 Coll., as amended by Decree No. 59 / 1991 Coll. - Postal Regulations). Similarly, Article 14 (2) of Act No. 543 / 1991 Coll., amending and supplementing Act No. 62 / 1988 Coll., on Geological Works and the Czech Geological Office, according to which, if there is no agreement between the organisation and the owner of the property on the scope, method or time of enforcement of the authorisation to enter into foreign real estate for the purposes of the design, execution and evaluation of geological works, the district office in whose territorial district the property is or the larger part of it shall decide accordingly.
The failure of the Czech Republic to comply with Article 6 (1) of the Convention, which the appellant refers to, may be considered, in the opinion of the Constitutional Court, to the extent that there is no legal provision which would clearly and clearly establish the right to a full review of an administrative authority's decision - in this case, issued under § 21 (1) and (2) of Act No. 110 / 1964 Coll. - by an independent and impartial tribunal which would comply with the requirements of Article 6 (1) of the Convention, namely a tribunal which would find not only in matters of the legality of an administrative decision, but also in the state of fact (so-called full jurisdiction). This seems to be prevented at present by the Czech concept of administrative justice based on the examination of the legality of the decisions of the public authorities, which seems to exclude the change in the facts by the court (cf. paragraphs 1 and 2, § 247 (1), § 250 (i)) and only admit the annulment of the contested decision by the administrative authority if the finding of the facts on which the administrative decision was based is contrary to the content of the files or if the finding of the facts is insufficient to assess the case (§ 250 (2) (s). However, an application for annulment has not yet been made. The said non-compliance with Article 6 (1) of the Convention - which can be imported from the legal order of the Czech Republic - cannot be eliminated simply by the annulment of Paragraph 21 (1) and (2) of the Telecommunications Act. Thus, according to the Constitutional Court, the contested legal provision - in itself - is not contrary to Article 6 (1) of the Convention (which the appellant refers to) or to other provisions of constitutional laws or international treaties on human rights and fundamental freedoms under Article 10 of the Constitution.
3. Finally, the Constitutional Court also addressed the appellant's proposal to abolish the provisions of § 7 (3) of Decree No. 111 / 1964 Coll., as amended, and to repeal the provisions of § 31 (11), second and third sentences, and paragraph 12 of the First Order No. 108 / 1982 Coll., as amended. He considered that the General Court was not entitled to such a proposal. Paragraph 64 (2) of Act No 182 / 1993 Coll. lists the authorities which are entitled to apply for annulment of another law or its individual provisions pursuant to Article 87 (1) (b) of the Constitution. The Court of First Instance is not mentioned between those institutions. The extensive interpretation of Article 95 (2) of the Constitution and the provision of Article 64 (4) of Law No 182 / 1993 Coll. is excluded in the view of the Constitutional Court. After all, the Constitutional Court has already consistently ruled in the Pl. ÚS 1 / 93, to which this finding refers.
According to the Constitutional Court, it is irrelevant whether the General Court makes an application for the annulment of a "other law 'individually or at the same time as the application for annulment of the law or its individual provision. In this context, the Czech Telecommunications Authority has rightly argued that the absence of the right of general courts to file applications for the annulment of so-called other legislation (other than the law) also results from the fact that general courts are not bound by the provisions of substatutory standards (Article 95 (1) of the Constitution). For the sake of completeness, it is appropriate to state that, if the Constitutional Court itself abolishes the law, it shall at the same time state which implementing provisions or, where appropriate, which of their individual provisions shall cease to be in force at the same time as the law. In this case, too, this is not a cancellation.
It follows from these considerations that the application for the annulment of those statutory provisions was made by someone who was manifestly unjustified, so that there is reason to reject it under the provisions of § 43 (1) (d) of Act No 182 / 1993 Coll. Although the Judge-Rapporteur decides to reject the application under this provision, the Constitutional Court states that it is all the more likely to do so by the plenary of the Constitutional Court, which, as the assembly body, also decides on the application for annulment of the provisions of § 21 paragraphs 1 and 2 of Act No. 110 / 1964 Coll. (arg. a minori ad maius).
President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
The right to give a different opinion on the finding in the Protocol on the Act on the Act on the Constitutional Court of the Czech Republic and to join it in the decision with its name pursuant to Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, was exercised by the judge of the Constitutional Court of the Czech Republic, Dr. Pavel Holländer.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | Findings of the Constitutional Court of the Czech Republic No. 1 / 1997 Coll., on the application for annulment of § 21 paragraphs 1 and 2 of Act No. 110 / 1964 Coll., on Telecommunications, as amended, § 7 paragraph 3 of the Decree of the Central Management of Communications No. 111 / 1964 Coll., implementing the Telecommunications Act, as amended, and § 31 paragraph 11 of the second and third sentences and paragraph 12 of the First Ordinance of the Federal Ministry of Communications No. 108 / 1982 Coll., which is issued by the Telephone Regulations, as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 15.01.1997 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0