The Constitutional Court found No. 229 / 2009 Coll.
The Constitutional Court's finding of 12 May 2009 on the application to declare unconstitutional the provision of § 124 paragraph 1 of Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic and on the amendment of certain laws, as amended by Act No. 217 / 2002 Coll.
Valid
The Constitutional Tribunal found
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229
FIND
The Constitutional Court
On behalf of the Republic
On 12 May 2009, the Constitutional Court decided on the plenary of the Judges Stanislav Balík, Vlasta Formánková, František Duchona, Military Güttler, Pavel Holländer, Ivana Janů, Vladimir Kronka, Dagmar Lastovecká, Jana Musil (Judge of the Rapporteur), Jiří Nykodým, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of the Supreme Administrative Court to declare the illegalisation of the provisions of § 124 paragraph 1 of Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic and on the amendment of certain laws, in the version of Act No. 217 / 2002 Coll., with the Chamber of the Parliament of the Czech Republic as parties to the proceedings
as follows:
The proposal to declare the unconstitutional provision of § 124 paragraph 1 of Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic and on the amendment of certain laws, as amended by Act No. 217 / 2002 Coll., is rejected.
Reasons
1. On 10 March 2008, the Constitutional Court received a motion from the Supreme Administrative Court pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') to declare the unconstitutional nature of the provisions of § 124 (1) of Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic and amending certain laws, as amended by Act No. 217 / 2002 Coll., (hereinafter referred to as" the Act on the residence of foreigners'). The appellant did so after, in the appeal proceedings of V. S., a citizen of Ukraine (in the appeal proceedings and in the text set out in the statement of reasons for that finding, also "the complainant '), registered under sp. zn. 2 As 22 / 2006, concluded that the contested provision to be applied in the resolution of the case was contrary to Article 1 of the Constitution and Article 1 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter') and that this contradiction could not be bridged by a constitutional interpretation.
Circumstances of the case
2. The complainant was sentenced to expulsion (judgment of 16 November 1999 No 1 T 69 / 1999- 203) in criminal proceedings conducted by the District Court in Kladno, but this sentence was not enforced and the complainant continued to stay in the Czech Republic. Then, by decision of the Police of the Czech Republic, Regional Directorate of the Foreign and Border Police Prague of 28 November 2003 No. SCPP-465 / PH-OPK4-SV, the complainant was ordered to receive administrative expulsion despite the already mentioned decision of the Regional Court in Kladno. Even then, the complainant did not leave the territory of the Czech Republic.
3. On 4 April 2005, the Regional Directorate of the Foreign and Border Police of Prague, under no. SCF-I63 / PH-OPK4-SV-2005, issued a decision to provide the complainant pursuant to § 124 (1) of the Aliens' Residence Act.
4. On the same day before the police, the complainant expressed his views on the matter by being sentenced to expulsion in criminal proceedings, but did not leave the territory of the Czech Republic, without a travel document, and therefore invented the new name V. P., which he used. He applied for asylum, but he was not granted asylum. He did not leave the Czech Republic because he did not want to. He also stated that he has a child in the Czech Republic whose mother does not live in the same household. He doesn't care about the baby, and he doesn't pay. The birth certificate of the child contains the fictitious name of Father V. P., as it indicated that name in asylum procedures.
5. In the justification for the decision of the Regional Directorate of the Service of Foreign Affairs and Border Police Prague of 4 April 2005 on the provision of the complainant pursuant to § 124 (1) of the Act on the residence of foreigners, it is stated that the complainant arrived in the Czech Republic in 1999 and has not left the territory until now and has not attempted to legalise his stay. He was aware that he was residing illegally, contrary to the judgment and decision on administrative expulsion. For these reasons, the police consider that there is a danger that an alien might obstruct or make it difficult to execute an administrative expulsion decision.
6. This decision of the Regional Directorate of the Service of Foreign Affairs and Border Police Prague of 4 April 2005 was challenged by the complainant by an action in which he stated that he had a child on the territory of the Czech Republic that he wanted to take care of and, given the length of the security, the child would not have sufficient care, which would be contrary to the principle of 6 Declaration of the Rights of the Child.
7. By judgment of 9 September 2005 No 7 Ca 187 / 2005-38, the Municipal Court in Prague dismissed the action of V. S.. In his reasoning of his decision, he stated that the content of the administrative file indicated that the Regional Directorate of the Service of the Foreign and Border Police of Prague acted in accordance with the law and duly assessed that the complainant could make it difficult to execute the decision on administrative expulsion, as he was in the territory of the Czech Republic illegally. The Court added that, moreover, the complainant was acting under a fictional name vis-à-vis the public authorities. As regards the complainant's plea that he would not be able to take care of his son at the time of the detention, the municipal court stated that the law on the residence of foreigners did not take account of the foreign security (unlike the administrative expulsion itself). It was also pointed out that securing a stranger himself is only a temporary decision, and the objections of the parties related in the Czech Republic are addressed only in a possible decision on administrative expulsion. The municipal court further added that the complainant himself stated in the police protocol that he did not care for and does not apply to the child, and therefore his reference to the Convention on the Rights of the Child is highly targeted.
8. The complainant lodged a complaint against the decision of the Municipal Court in Prague. In the complaint, the complainant argued that neither the administrative authority nor the administrative court were to assess the grounds for the expulsion penalty imposed in the criminal proceedings conducted by the District Court in Kladno (No 1 T 69 / 1999- 203), but it can nevertheless be concluded that marriage to a national citizen of the Czech Republic or any other relative relationship in a direct line is a reason for which the expulsion penalty is not granted. If such a sentence is still imposed, the sentenced person shall have the right to request, after three years, that the remainder of the sentence be waived. The complainant further stated that the Regional Directorate of Foreign and Border Police Prague decided by decision of 28 November 2003 No. SCPP-465 / PH-OPK4-SV to impose administrative expulsion, despite the judgment of the Regional Court in Kladno, already mentioned. The complainant further stated that it was related to a minor of V. P., a citizen of the Czech Republic, which was also in force at the time of administrative decision-making, and therefore there was a reason not to impose administrative expulsion. Administrative expulsion is, by its nature, superfluous, as well as the decision to secure a stranger under the provisions of § 124 (1) of the Aliens residence law. The complainant further stated that he was no longer in contact with his minor son in the Czech Republic. He therefore requests that it be decided that his administrative expulsion in 2003 and his subsequent detention under the Aliens residence law was illegal. The reasons for the complaint are then seen in the provisions of § 103 (1) (a), (b) and (d) of Act No 150 / 2002 Coll., the Administrative Rules of the Court (hereinafter referred to as "the Official Journal '). For these reasons, the complainant suggested that the judgment of the Municipal Court be annulled and the case brought back to him for further proceedings. At the same time, he requested that the appeal be given suspensory effect.
9. The appeal procedure was suspended by decision of the Supreme Administrative Court of 21 December 2007 No 2 As 22 / 2006-88 because the Supreme Administrative Court concluded that the legal provision to be applied in the resolution of the case was contrary to the constitutional order and therefore the case under Article 95 (2) of the Constitution was brought before the Constitutional Court and proposed that the provisions of Article 124 (1) of the Aliens' residence law be annulled.
10. It is further noted from the file of the Municipal Court in Prague sp. zn. 7 Ca 187 / 2005 (no. 1. 51) that, according to the communication from the Regional Directorate of the Service of Foreign and Border Police Prague of 13. 12. 2005 No. SCPP-14-5711 / PH-XIII- C- 2005, the complainant was expelled from the Czech Republic on 22 October 2005 with effect of administrative expulsion until 26 September 2015. He is currently likely to be in Ukraine.
Arguments of the appellant
11. The Supreme Administrative Court took the view that the statutory provision of § 124 (1) of the Act on the residence of foreigners in the operative text to be used in the resolution of the case was contrary to the constitutional order of the Czech Republic, since the limitation of personal freedom on the basis of the provisions in question was contrary to the constitutional imperatives of equality and proportionality. First of all, the Supreme Administrative Court considers that the limitation of personal freedom under the provisions of § 124 et seq. of the Act on the residence of foreigners constitutes a rational unfounded inequality. Even if the Constitutional Court had concluded that the principle of equality by the legal regulation had not been infringed, the Supreme Administrative Court would have considered that amendment incompatible with the principle of proportionality. Furthermore, the Supreme Administrative Court points out that this contradiction is not only an academic issue, but has a number of negative consequences which significantly interfere with the rights of persons secured.
12. The Supreme Administrative Court took the view that there was no reason to put an end to the application for annulment of the legal provision in question, although it did not dispute that the amendment made by Law No 428 / 2005 Coll. amended the provisions of Paragraph 124 (1) of the Act on the residence of foreigners. The Supreme Administrative Court points out that in the present case it is a procedure directly under Article 95 (2) of the Constitution, which is based on a functional distinction between general and constitutional justice. The General Court is bound by the law in the constitutional system of the Czech Republic, which applies it in its decision-making activities, and is obliged to interpret and apply it in a constitutional way. At the same time, there can be no dispute that the court is also bound by constitutional order, i.e. by a system of standards of excessive legal force. Therefore, if there is a situation in which a general court considers that a law or part thereof which it is obliged to apply in a particular case cannot be interpreted in a constitutional manner and since it is not conceivable in the conditions of a democratic rule of law for a court to proceed knowingly in accordance with unconstitutional standards, its only possibility of bringing a case before the Constitutional Court to assess the constitutionality of a particular law is that the subsequent legal opinion given by the Constitutional Court is binding on the general court.
13. The Supreme Administrative Court pointed out that the procedural comparable situation was dealt with by the Constitutional Court in a decision of 10 January 2001 sp. zn. Pl. ÚS 33 / 2000 (N 5 / 21 SbNU 29; 78 / 2001 Coll. *; This Decision is addressed to the Member States. Since the situation in the present case is comparable to the previously stated legal opinion of the Constitutional Court contained in the cited finding, the Supreme Administrative Court refers to the direct applicability of Article 95 (2) of the Constitution and proposes that the provisions of § 124 (1) of the Act on the residence of foreigners in the applied version, i.e. as before the amendment made by Act No 428 / 2005 Coll. and Act No 379 / 2007 Coll., be declared unconstitutional in full terms of that finding. The Supreme Administrative Court therefore considers that the Constitutional Court in this case, for reasons which it has consistently stated in the cited finding, is not entitled to proceed under the provisions of Paragraph 67 (1) of Law 182 / 1993 Coll., on the Constitutional Court, i.e. by order to terminate the proceedings. The fundamental principles of the rule of law include the prohibition of retroactive application of legislation, which is a direct consequence, inter alia, of the obligation of all law enforcement authorities (including general courts) to apply the legislation in the form in which they applied at the time when the relevant legal facts occurred. Therefore, whatever legislation may already be amended or even repealed at the time of the decision of the Constitutional Court, it must continue to apply to legal relations that were previously established during its period of validity and scope. If, in such cases, the Constitutional Court had denied a substantive assessment of the constitutionality of these provisions, referring to their subsequent derogation, it would have triggered a situation of conscious violation of the constitutionally guaranteed fundamental rights and freedoms of the parties, since the courts would have been left with nothing but those laws which they would have been convinced would have continued to rule on.
14. The Supreme Administrative Court pointed out that personal freedom, which is protected by Article 8 of the Charter, is one of the fundamental human freedoms, which is reflected not only by the Charter, but also by international human rights treaties.
15. The provision of a stranger is regulated in particular in the provisions of § 124 to 129 of Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic and on the amendment of certain laws, as amended. According to the provisions of Section 124 of this Act, in the operative version, the police are entitled to arrange for a stranger to be served with a notice of initiation of an administrative expulsion procedure if there is a risk of a threat to the security of the State to seriously undermine public policy or to impede or impede the execution of an administrative expulsion decision. The period of detention shall not exceed 180 days and shall be calculated from the moment of the restriction of personal freedom. In the case of a stranger under the age of 18, the duration of the security may not exceed 90 days (provision § 125 (1) of Act No. 326 / 1999 Coll.). A police authority shall decide on the provision of a stranger, and his decision shall be given legal authority by service or after the alien refuses to take over the decision. After the legal power of decision, the police can provide a stranger. The collateral shall be terminated without undue delay after the reason for the collateral has ceased to exist. Whether the reasons for the security persist, the police are required to examine the duration of the security. Furthermore, the guarantee is terminated if the court in the administrative judiciary decides to revoke the decision to secure a foreigner, if the court has ordered the release of a foreigner, whether asylum or supplementary protection or long-term residence for protection in the territory is granted to foreigners in accordance with the provisions of § 200o to 200u of Act No. 99 / 1963 Coll., as amended. As regards the review of the collateral, an administrative action may be brought against the collateral decision. The administrative court shall then decide on the legality of the decision of the police authority. In addition, it is possible to follow the civil Code of Procedure. At the request of a foreigner, proceedings under § 200o to 200u o. s. s., in which the court examines whether the conditions of its detention continue.
16. The legal arrangements for securing a stranger find its constitutional term in Article 8 (2) of the Charter, which provides that no one may be prosecuted or deprived of liberty other than for the reasons and in the manner laid down by the law. This provision provides a general exception to the rule that personal freedom is guaranteed (Article 8 (1) of the Charter), allowing someone to be deprived of personal freedom for reasons laid down by law in a manner which is also provided for by law.
17. From the point of view of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '), the situation is different. Limitations on personal freedom must take place only for the reasons foreseen by the Convention. Limiting personal freedom for other reasons would be contrary to the Convention. The Alien Protection Institute shall be classified under the provisions of Article 5 (1) (f) of the Convention, which allows for" the lawful arrest or other deprivation of liberty of a person to prevent its unauthorised entry into the territory or against a person subject to expulsion or extradition proceedings'. While the provision of a stranger is foreseen by the Convention and the reasons and manner of collateral are governed by law, in accordance with the constitutional order and the Convention, the Institute of Security is in the opinion of the appellant only prima facie. The review of the constitutionality of the contested provisions cannot be limited to assessing the fulfilment of formal characteristics. The very fact that the amendment is made by law and thus meets the requirements of the isolated Article 8 (2) of the Charter is not sufficient to make the modification constitutional. First of all, it is necessary to draw on Article 4 (4) of the Charter, which provides that when applying the provisions on the limits of fundamental rights and freedoms, their substance and meaning must be investigated. Article 8 (2) The Charter is clearly a provision on the limits of fundamental freedom. Furthermore, in addition to fulfilling formal characteristics, legal arrangements must comply with constitutional principles, including equality and proportionality. If the legislation in question does not comply with these principles, the Constitutional Court's established case-law must be annulled [see, for example, the finding of the Constitutional Court sp. zn. In the view of the Supreme Administrative Court, the contested regulation is contrary to both principles.
18. In the view of the Supreme Administrative Court, the regulation of § 124 et seq. of the Act on the residence of foreigners infringes the principle of equality. The principle of equality is enshrined in particular in Article 1 of the Charter, which states that people are free and equal in dignity and in rights. Equality is one of the fundamental legal principles and finds expression in a number of provisions of constitutional and sub-constitutional regulations (including the preamble to the Constitution, Article 1 of the Constitution and Article 3 (1) of the Charter). The principle of equality is undoubtedly also one of the essentials of the rule of law. However, equality in the concept of Czech constitutional order and in the concept of other modern institutions is not an abstract and absolute category. The equality of persons before the law is seen as relative equality, which only requires the removal of unjustified differences. It is for the State to decide to grant a group less benefits than others, but it must prove that it does so in the public interest and for the public good. In other words, it is up to the legislator to grant more rights to a group of persons than to others, but if they do, it is necessary that this distinction respects certain rules and is justified rationally. A similar conclusion was made by the Federal Constitutional Court (cf. the Constitutional Court of the Czech and Slovak Federal Republic, sp. zn. Pl. ÚS 22 / 92 of 8.10.1992) and by the Constitutional Court of 4 / 95 of 7.6.1995 (N 29 / 3 of SbNU 209; 168 / 1995 Coll.). Equality is therefore not seen as a right in itself, but as a relative category always relating to a specific law.
19. In the present case, the legal regime in question is personal freedom, guaranteed by Article 8 of the Charter and Article 5 of the Convention. Although the legislator may, on the basis of Article 8 (2) of the Charter, lay down the grounds and manner for restricting personal freedom by law, it must respect the constitutional imperative of equality. Formal equality de jure (or "equality before the law") implies that the legislator is obliged to treat the same situations equally, to comparable comparable comparable situations and to different situations differently. Of course, this does not mean that he is obliged to treat everyone the same way.
20. The inequality in this case sees The Supreme Administrative Court, in the fact that comparable cases of restrictions on personal freedom are dealt with in a different way, in a disproportionate way, for other groups of persons restricted to freedom. The first question is which cases of restrictions on personal freedom can be considered comparable. The choice of an appropriate comparator in this case is very difficult. However, it can be assumed that the purpose of this administrative detention is to protect society against harmful phenomena, i.e. public policy disturbances, threats to the security of the state or the enforcement of administrative expulsion decisions (Section 124 (1) of the Foreign Code). Protection of society is also the purpose of the institutions of detention and detention or "classical" collateral. A certain similarity can also be observed in taking over and holding in constitutional health care, as the reason for the restriction of personal freedom under Article 8 (6) The Charter is often the protection of surroundings or life and health (cf. § 23 (4) of Act No. 20 / 1966 Coll., on the care of people's health, as amended). However, this is not just about the reason and purpose of the collateral. Both Article 8 of the Charter and Article 5 of the Convention guarantee personal freedom for all. It is the right (freedom) of any natural person. The majority of cases, in particular where the reasons and purpose of the restriction of personal freedom are in line, can therefore be considered comparable. Naturally, this does not mean that any case of restrictions on personal freedom must be dealt with in the same way, but there must be a rational reason for differences. For example, it is perfectly legitimate that a person can be taken into custody for a different length of time depending on the offence he is charged with. The seriousness of the act and its danger to society is a completely legitimate reason for a more significant interference with personal freedom.
21. The Supreme Administrative Court compared the security of the stranger and his review with the above-mentioned comparable cases of restrictions on personal freedom and also examined whether there were rational reasons to justify specific differences.
22. In particular, the Supreme Administrative Court compares the institutes of foreign security and detention. Article 8 (5) No one may be taken into custody, except for the reasons and for the period laid down by law and by decision of the court. Therefore, a decision must be taken only by a court and not by an administrative authority. The custody procedure is laid down in Act No. 141 / 1961 Coll., on Criminal Procedure of the Court (Criminal Code), as amended, (hereinafter referred to as "tr. ste '). A periodic review is also guaranteed during the duration of the binding.
23. A complaint may be lodged against the abovementioned detention decisions (§ 74 (3)). In the case of detention, respect for the rights of a person limited to freedom is thus guaranteed, on the one hand, by the decision of the court to take custody and, on the other hand, by the fact that the retention must be periodically decided by the prosecutor (in preparatory proceedings) or by the court (in court proceedings). Both the prosecutor and the court are bodies whose status ensures a higher degree of independence than in the case of a police authority. This comparison shows that the detention of a stranger is much less controlled by the court and thus is a greater interference in the rights of a person limited to freedom. The administrative decision does not provide such a guarantee of independence and respect for human rights as the court's decision. Moreover, the review does not always take place, but only if a proposal is made.
24. In addition to the fact that it is necessary to initiate proceedings in the administrative justice sector and to initiate proceedings under the o. s. s.), the proposal of a stranger, not familiar with the Czech legal order, raises questions about the fact that the review takes place in a two-way manner. It is a non-conceptual solution, and its insuitability is manifested just as compared to the link. In the case of detention, the same court shall decide on the grounds for its duration after the prosecution. In the preparatory procedure, although the reasons for its duration are decided by the prosecutor, the complaint against its decision is decided again by the competent court.
25. The Supreme Administrative Court further compares securing a stranger and taking over into constitutional health care under the People's Health Care Act. With regard to holding in constitutional custody, the judicial review shall start immediately and take place very quickly: the court shall always decide within eight days of the beginning of the restriction on personal freedom. Even in this case, it is clear that the restriction of fundamental freedom is always under judicial supervision. Automatic judicial review may thus exclude excesses of administrative bodies. The role of the court in this proceedings is considered to be very important, even essential, even by the Constitutional Court [cf. e.g. the finding of the Constitutional Court sp. zn. Pl. ÚS 23 / 97 of 30.9.1997 (N 117 / 9 SbNU 89; 299 / 1997 Coll.)]. Thus, ensuring a stranger also results from this comparison as a more serious and less controllable interference with personal freedom.
26. With regard to detention under the Code of Criminal Procedure, the period of limitation of personal freedom is very limited, which is already based on Article 8 (3) of the Charter. The person arrested or suspected of a criminal offence shall be immediately informed of the grounds for detention, heard and, at the latest, released to freedom or surrender within 48 hours. The judge must interview the detained person within 24 hours of taking over and decide whether to arrest him or release him or her. It is therefore clear that in the case of detention, the person can be restricted to freedom without the consent of the court only for a very short time (even more obvious is the difference between securing a stranger and securing pursuant to § 14 of Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended). In fact, a person can be limited to freedom for 72 hours (48 + 24), which is 60 times less than in the case of providing a stranger. The reason why a similar restriction does not apply to the provision of a stranger is (as the explanatory memorandum also admits) the fact that the obligation to bring a secured stranger before a judge or any other official empowered by the law to exercise jurisdiction under the Convention does not apply to this case (the alien was not arrested for the purpose of being brought before the competent judicial authority for a reasonable suspicion of the commission of a criminal offence). From a material point of view, there is no reason to treat the accused or suspected of a crime in a comparable manner to a person who is in danger of endangering the security of the State, seriously undermining public policy or obstructing or making it difficult to execute an administrative expulsion decision or is registered in the register of undesirable persons.
27. The fact that, in the view of the Supreme Administrative Court, the Convention also makes a difference between the provision of foreigners and, for example, the connection or holding in constitutional health care (Article 5 (1)). On the one hand, it should be borne in mind that the Charter should provide greater protection for persons limited to freedom, given that it is more than 40 years younger than the Convention and guarantees a higher standard of human rights protection. It should be noted that it is in this area that it has been the law in recent decades (especially in the context of the development of international law) that has made huge progress, and in many ways foreigners have the same rights as citizens of the state. Although it is common and legitimate, on the one hand, that the state distinguishes between foreigners and citizens in terms of political rights or social rights, the distinction in fundamental rights (in particular the right to life, the right not to be tortured, personal freedom, the prohibition of forced labour) should be minimised as much as possible. Furthermore, it should be said that the distinction itself in the Convention does not mean that any adjustment can be made. While the Convention thus provides for a higher standard of protection for cases of attachment, it does not make a difference between holding in constitutional health care and securing foreigners. Nevertheless, the latter cases of restrictions on personal freedom have been selected by diametrically different models. The question is, is there a rational reason why the legislator chose such a disproportionately less advantageous model in the case of securing foreigners than in other cases restrictions on personal freedom? The only obvious difference between securing foreigners and other comparable cases is that securing foreigners only applies to foreigners. Although a distinction on grounds of nationality may be justified in some cases (for example, for certain political or social rights), the Supreme Administrative Court considers that there is no rational reason and the criterion of nationality is discriminatory. Of course, the legislator cannot be asked to choose the same review model for all cases of restrictions on personal freedom, but it is said that the reasons for the distinction must be justified rationally. If an entirely different model of restrictions on personal freedom is chosen, the length of that restriction and its review, there must be a rational reason for this and a link between that reason and the solution chosen. The fact that the legislature was guided by only formal criteria of constitutionality also results from the explanatory memorandum to the law (the explanatory note of 28 April 1999, PSP, Press 204), which traditionally buys them from arguments concerning compliance with the constitutional order. Thus, it can be concluded that, contrary to the principle of equality and without rational reason, the legislator chose a model of restrictions on personal freedom, which is unequivocally linked to the burden of the persons secured. In relation to comparable cases of restrictions on personal freedom, the detention of a stranger is either excessively long (detention, detention) or lacks automatic and effective judicial review (as is the case in the case of custody or detention in constitutional healthcare).
28. The amendment of the provisions of § 124 et seq. of the Act on the residence of foreigners, mentioned by the Supreme Administrative Court, also violates the principle of proportionality. The importance of applying this principle in the assessment of interference with fundamental rights is enormous, as is confirmed by the finding of the Constitutional Court sp. zn. Pl. ÚS 25 / 97 of 13.5.1998 (N 53 / 11 CollNU 25; 159 / 1998 Coll.). In order to examine whether legal arrangements are in line with the principle of proportionality, the Supreme Administrative Court recommends using the standard proportionality test in the form used by the Constitutional Court.
29. The appellant recognises that a legitimate objective, which is necessary in a free democratic society, is pursued by legal regulation. The aim of the Alien Protection Institute is to protect society from harmful phenomena, i.e. public order disturbances, threats to state security or difficulties in the execution of administrative expulsion decisions.
30. The appellant recognises that there is a rational link between the objective and the means chosen to enforce it, since the security can effectively avert the threats it is intended to prevent, i.e. public order breaches, threats to the security of the State and the imposition of administrative expulsion decisions.
31. However, the Supreme Administrative Court considers that the legal regulation cannot succeed in the third step of the proportionality test, because there are alternative ways of achieving the objective, the use of which would make it less intensive to intervene in the fundamental law or exclude it entirely. This is clearly apparent from the fact that there are more suitable alternatives to the review than the ex post review on the proposal secured. It is, for example, a model similar to a binding model where the court gives its assent to the restriction of personal freedom and, after a certain period of time, examines whether the conditions of the restriction persist or a model similar to the procedure provided for in Article 8 (6) of the Charter, when the court must give its consent to the restriction of personal freedom within a certain period of time. The Court's role in these models provides greater guarantees of respect for the fundamental rights and freedoms guaranteed, making these alternatives more appropriate for the principle of proportionality. Of course, the legislator cannot be asked to choose the same model of review for all cases of restrictions on personal freedom, but it must be maintained that the reasons for the distinction must be rationally justified and the chosen way of intervening in guaranteed rights must be the most moderate of those still sufficient to meet the legitimate objective set or should at least be within a reasonable framework. As it is shown that such methods exist and work effectively, the legislator must use them (or similar methods). The choice of means itself is naturally up to him, but it must not be as extreme as in this case. The current legal regulation of securing a stranger is therefore contrary to the principle of proportionality, as there are alternative ways of achieving the objective pursued, the use of which would make interference with personal freedom less intense.
32. The Supreme Administrative Court therefore considers that the provision in question, which is applied in the case, is contrary to the constitutional order of the Czech Republic as it infringes the principles of equality and proportionality, and this contradiction cannot be bridged by a constitutional interpretation. In this case, a constitutional interpretation would necessarily consist not only of establishing new obligations for administrative authorities, but also of creating a new type of court proceedings, including the setting of time limits, the way in which the decision is to be dealt with, and the effects of the decision. This would leave the court out of its jurisdiction, since the regulation of such matters is the role of the legislator.
33. The Supreme Administrative Court further notes that the inconsistency of the Institute of Alien Security with the constitutional order is not merely an academic subject. The inadequacy and inadequacy of the chosen solution results in many practical problems. Without automatic control by the courts, compliance with the rights guaranteed is not sufficiently ensured, although they have the possibility of applying for a review of the decision as well as the duration of the conditions of the guarantee, but are hardly used. This may be due to their lack of language equipment and the fact that police authorities do not fulfil their obligations under the Foreign residence law (cf. e.g. the ombudsman's report from visits to the Aliens' Facilities of 14 June 2007, www.protection.cz). This obligation is absolutely crucial in securing a stranger, because in the absence of automatic judicial supervision, it is an insurance that the alien will not be secured without a reason.
34. In this context, it is said that doubts about the fulfilment of additional obligations by police authorities, in particular the obligation to teach in accordance with the provisions of § 126 (b) of the Act on the residence of foreigners, cannot be avoided. If this obligation were to be fulfilled only formally, that is to say, without the alien being informed of the possibilities of the review and their application being effectively informed, this would mean, in the absence of a continuous failure to comply with the obligation under Section 126 (a) of the Aliens' residence law, an effective way of preventing judicial review.
35. One of the following problems is that foreigners from developing countries often do not know the language in which they must be taught the possibility of judicial review. While the internal rules of the establishment must be issued in nine foreign language mutations (provision § 138 (3) of Act No. 326 / 1999 Coll., as amended by Act No. 428 / 2005 Coll.), the legal requirements of the instruction on the possibility of judicial review of the lawfulness of the collateral are only counted on eight foreign language versions, without the wording of the Hindi version (provision § 126 (b) of Act No. 326 / 1999 Coll., as amended, (reg. - correct: Vietnamese). The Supreme Administrative Court is aware that it can often be very difficult to educate a stranger in a language he understands, but the impossibility of such a lesson must not be detrimental to a stranger and must not be prevented from effectively defending him against restrictions on personal freedom. The fact that the judicial review of the decision is not frequent is also evidenced by the fact that, throughout its existence, the Supreme Administrative Court issued only eight decisions on the appeal complaint concerning the detention of a stranger, which is a very low figure compared to hundreds of complaints about asylum.
36. It is therefore clear that, in the current situation, the application of rights secured without active cooperation by administrations is merely illusory. These obligations may then be subject to serious doubts with reference to the ombudsman report. The Supreme Administrative Court is convinced that this situation is the result of an inappropriately, disproportionately and unconstitutionally chosen method of detention and its review. The remedy is highly unlikely without the involvement of the courts in the reinsurance process and its review. In the event that the Constitutional Court decides to repeal the contested legal provision, the Supreme Administrative Court proposes that the enforceability of the annulled finding be postponed, since it considers a certain (but constitutionally conformal) regulation of the detention of foreigners necessary. It is therefore necessary to give the legislator sufficient time to discuss and adopt a new, constitutionally conformal regulation.
37. In view of the above reasons, the Supreme Administrative Court has proposed that the Constitutional Court decide by finding that the statutory provision cited is contrary to the constitutional order.
Observations of participants
38. According to the provisions of Section 69 (1) of the Law on the Constitutional Court, the Constitutional Court requested the observations of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic as participants in the proceedings for the submitted application. Furthermore, according to the provisions of Section 49 (1) of the Constitutional Court Act, the Constitutional Court requested the expression of the Minister of the Interior of MUDr. Mgr. Ivan Langer and the Ombudsman JUDr. Otakar Motěl. Col. JUDr. Henry Urban, Director of the Directorate of the Service of Foreign Police of the Czech Republic, also commented on the proposal.
39. The President of the Chamber of Deputies of the Parliament of the Czech Republic Ing. Miloslav Vlček, in his observations to the Constitutional Court delivered on 25 April 2008, pointed out that the provisions of Paragraph 124 (1) of the Act on the residence of foreigners governed the authorisation of the Police of the Czech Republic to arrange for the administrative expulsion of a stranger, who is in danger of endangering the security of the state, public order or obstructing the execution of decisions on administrative expulsion. This provision was initially part of the original Act No. 326 / 1999 Coll. and two years later was supplemented by an amendment to the Act, which was published in the Collection of Laws under No. 217 / 2002 Coll. Act No. 326 / 1999 Coll. was discussed in the Chamber of Deputies in the 3rd parliamentary term under the number of Press 204. The Charter in Article 8 (2) clearly allows a stranger to be deprived of his freedom even by decision of the Police of the Czech Republic if this is based on the law. Compliance is also found with the Convention, which confers on anyone who has been deprived of his or her freedom of arrest or otherwise, the right to bring an application for proceedings in which the Court of First Instance would promptly rule on the lawfulness of deprivation of liberty and order his or her release if the deprivation of liberty is illegal. The obligation to bring a secured alien before a judge or other official authorised by law to exercise jurisdiction under the Convention does not apply to this case (the alien has not been arrested to be brought before the competent judicial authority for a reasonable suspicion of the commission of a criminal offence).
40. Press 204 was commanded by the Defence and Security Committee and the Committee on European Integration in the Chamber of Deputies at first reading on 8 June 1999. No amendment has been tabled to the provisions in Section 124 (1) in those committees during the discussion of press 204. Such a proposal was not made during the second reading of this press, which took place on 13 October 1999. The bill was subsequently passed at the III reading on 21 October 1999. On the same day, the Senate was referred back to the Chamber of Deputies on 11 November 1999 with amendments. The Senate's draft law was voted on in the Chamber of Deputies on 30 November 1999 and the draft was adopted in that version, with 172 Members 171 in favour and 1 opposed. After the signature of the President of the Republic on 14 December 1999, the Act was published in the Collection of Laws under No 326 / 1999 Coll.
41. Press 1164 on the amendment to Act No. 326 / 1999 Coll. was ordered by the Committee on Defence and Security and the Committee on European Integration at the Chamber of Deputies on 7 December 2001. No amendment concerning the provision in question in Section 124 (1) was tabled in those committees during the press hearing. Such a proposal was not made during the second reading of this press, which took place on 13 March 2002. The draft law was subsequently passed at the III reading on 26 March 2002. On 9 April 2002, the approved proposal was forwarded to the Senate. On 3 May 2002, the Senate approved the proposal, as referred to by the Chamber of Deputies. After the signing of the President of the Republic on 15 May 2002, this Act was published in the Collection of Laws under No. 217 / 2002 Coll.
42. It follows from the above that both laws have been passed by the necessary majority of Members and Senators, have been signed by the relevant constitutional authorities and have been duly declared.
43. The President of the Senate of the Parliament of the Czech Republic MUDr. The content of this provision has been preserved since the adoption of the "Foreign Act" in 1999, although its text was supplemented by Amendments No 217 / 2002 Coll., No 428 / 2005 Coll. and No 379 / 2007 Coll. It follows from other provisions on collateral that the duration of the collateral may not exceed 180 days. The police have an obligation to instruct the secured in the language in which they are able to understand the possibilities of judicial review. An administrative action may be brought against a freezing decision. At the request of a foreigner, the court (this time in civil procedure) will also examine whether the conditions of detention continue. This very urgent discharge procedure can be initiated every three weeks. The Charter in Article 8 (2) clearly allows a stranger to be deprived of his or her freedom and of police decisions, if this is based on law. The new "foreign law" was presented in the Senate at the end of the 1990s as a response to the European immigration reality of coping with small numbers of foreigners without the permission and penetration of organised crime, i.e. a response to serious security risks. Foreign law has been affected in the European context by a tendency to tighten immigration regulation, simplify or shorten decision-making procedures, increase the effectiveness of enforcement, etc.
44. The draft law in question was referred to the Chamber of Deputies on 27 October 1999 in the relevant legislative process of the Senate. The Senate, which was referred to the bill (Senate Document No 111), discussed it in the prescribed manner in its committees and then decided on it at its 11th meeting of the second term of office on 11 November 1999. On the recommendation of one of the three committees to which the proposal was ordered, the Senate returned the Law in question to the Chamber of Deputies with amendments by its Resolution No 179 of 11 November 1999. However, the amendments adopted by the Senate did not refer to the provision in Section 124 (1), and the debate in the Senate committees or in its plenary session did not affect the issue.
45. The provision of Paragraph 124 (1) was further amended three times by legislative action following the adoption of the "Foreign Act", to the extent that it was modified by partial modifications of its characteristics. By Law No 217 / 2002 Coll., the reasons for securing a stranger were specified in the provision in question, by adding a relatively concrete, demonstratively arranged list of cases of illegal behaviour of a stranger in the past (a condition of a uniform recurrence) or its official record. These include, for example, political extremism, acts dangerous to public health, repeated obstruction of the enforcement of decisions, illegal border crossing, tampering with the register of undesirable persons (national registration or Schengen Information System). This change has greatly narrowed the scope for decision-making by the foreign police on securing a stranger. The reasons for the collateral are more or less losing the existing discretionary potential.
46. By Act No. 428 / 2005 Coll. the provision of Paragraph 124 (1) of the Aliens' residence law was amended by the fact that a stranger under 15 years of age was explicitly excluded from security. The amendment concerned, inter alia, the improvement of conditions in the internment facility for the purpose of the exercise of their administrative expulsion or transfer abroad (§ 130 to 149). The installation should have become its arrangement of a more proportionate purpose to which it serves. The appellant called it humanization (departure from the prison "punishing" type). Special consideration should have been given to minors. In addition to that rule on the admissibility of internment from the age of 15 onwards, provision is made for a scheme for establishing a guardian in unaccompanied children, compulsory schooling of children is guaranteed, etc. The period of detention of a minor must not exceed 90 days (compared to 180 days for adults). Tightened internation mode is limited to 30 days. The conditions for visits secured are improving. The police are to continue to secure only the security of the internment facility and the security regime. The operation (own administration), according to the amendment, is taken over by the civil organisation of the State established by the Ministry of Interior. According to the amendment, the Ministry of the Interior is to exercise "supervision" over the internment facility. Humanisation was inspired by the criticism of the European Committee for the Prevention of Torture and inhuman or degrading treatment or punishment expressed during its visit to the Czech Republic in 2002.
47. Finally, the provision in question was amended by Act No. 379 / 2007 Coll. The formal amendment is a complete replacement of the existing text, but in substance the provision in question did not substantially recognise any amendments. The legislator's aim here was only a legislative transcription (arrangement) to improve the clarity of the provisions. From the heading of the rules relating to the provision, it is necessary to recall the amended incentive instrument introduced to facilitate the exercise of expulsion. A stranger to be expelled may request a voluntary return abroad. In submitting the Senate law, the Home Secretary accentuated the idea that the amendment is a contribution to the careful balance of two aspects of immigration policy, namely kindness to those who need help against persecution and hardness towards foreigners who want only to abuse the benefits provided by the host country.
48. The Minister of the Interior, in his observations to the Constitutional Court served on 24 April 2008 at the outset, pointed out that the Supreme Administrative Court challenged the constitutionality of § 124 paragraph 1 of Act No. 326 / 1999 Coll., as amended by Act No. 217 / 2002 Coll., i.e. the text of the Act effective until 23 November 2005. Since then, however, this provision has been significantly amended, by Act No. 428 / 2005 Coll. and No. 379 / 2007 Coll., as a result of which the protection of the rights of the secured stranger has been strengthened. In this context, however, it does not dispute the view of the Supreme Administrative Court that the Constitutional Court is also obliged to rule on the constitutionality of legislation which was already abolished or amended at the time of the Constitutional Court's decision, but which is still applicable. The Ministry of the Interior, as the promoter of the draft law on the residence of foreigners in the Czech Republic, took the view from the very outset that the regulation of securing a stranger (§ 124 to 129) was in line with the constitutional order of the Czech Republic. In this context, it was noted that the Charter provided for in Article 8 (2) allows a stranger to be deprived of his freedom and of the police's decision, if it is based on the law. This law is the law on the residence of foreigners, which defines specific reasons for limiting a stranger to his personal freedom, using the Institute of Security. Compliance has also been found with the Convention.
49. In particular, the provisions of Sections 124 (4) and (5), 125, 126, 127, 128 and 148 of the Aliens' Residence Act are relevant in order to ensure the legal protection of the secured alien. According to these provisions, the police are required, inter alia, to inform the secured stranger immediately after the detention, in the language in which the alien is able to communicate, of the possibility of judicial review of the lawfulness of the detention and, throughout the period of detention, to examine whether the reasons for the detention continue to exist. A secured alien shall be entitled, under civil law, to file an application for revocation of his security and, if the court decides to release the alien, the security shall be terminated without delay.
50. The Minister of the Interior states that the provision of § 124 (1) of the Act on the residence of foreigners is based on several bases: there is no subjective constitutional guarantee of the right of foreigners to reside in the Czech Republic - it is a matter of a sovereign state under which they allow the entry and residence of foreigners in their territory. Administrative expulsion shall not be of a criminal nature within the meaning of Article 6 (1) of the Convention after the adoption of Protocol No 7 (Article 1), but shall, by its nature, constitute a specific immigration control measure. Administrative expulsion and detention of a stranger has the sole purpose of ensuring that a stranger who does not reside in the Czech Republic in accordance with its legal order leaves the Czech Republic as soon as possible. Since a stranger does not always travel voluntarily, it is necessary to ensure the travel of a stranger from the territory of the Czech Republic forced, i.e. with the assistance of the police of the Czech Republic, and to this end limit the personal freedom of a stranger in order not to undermine the purpose of administrative expulsion.
51. The Minister of the Interior adds that not every foreign expulged is secured because the fact that an administrative expulsion procedure has been initiated with a stranger cannot in itself justify the detention of a stranger. The decision to secure a stranger is a restriction on his personal freedom and must therefore be duly and specifically justified. In 2007, the services of the foreign police were issued a total of 5,438 decisions on administrative expulsion. Of this number, only 524 foreigners were placed in the facility for securing foreigners during this period. The average period of reinsurance was 103,5 days (the shortest was 3 days, the longest was 180 days). According to the Minister for the Interior, the length of time for which an alien can be secured in an installation (i.e. 180 days) has been determined intentionally and reasonably. In fact, it is not only foreigners who have already been ordered to expel them, and who are de facto only waiting for the execution of this decision, but also foreigners who have a reasonable concern that they may endanger the security of the state or distort public order by their residence in the Czech Republic, and who have only received a notice of initiation of the administrative expulsion procedure. In such a case, it is necessary that an administrative expulsion procedure be carried out first and during the duration of the expulsion procedure the alien has been secured in accordance with the provisions of § 124 (1) of the Aliens residence law.
52. The Minister of the Interior stresses that the police are required to inform the secured stranger immediately after the detention in the language in which the stranger is able to communicate, about the possibility of judicial review of the lawfulness of the detention and, throughout the period of detention, to examine whether the reasons for the detention continue to exist. The judicial protection of the rights of an outsider is ensured, even in two ways. On the one hand, the secured alien is entitled to bring an administrative action against an administrative authority's decision to secure a stranger, and, on the other hand, is entitled to submit a motion to the court under civil law to order his release for freedom on the ground that the conditions for the duration of his detention are not fulfilled. Thus, double protection is ensured, which is a solution to some extent unconceptual, but also in a way above standard, as it gives a secure stranger the opportunity to choose the way to claim his rights in the way that suits him most in the situation. NGOs also use this right for the benefit of a secured alien.
53. On the proposal of the Supreme Administrative Court to introduce an automatic judicial review of the restrictions on the personal freedom of all foreigners, to whom pursuant to the provisions of § 124 (1) of Act No. 326 / 1999 Coll. a communication on the initiation of an administrative expulsion procedure or the administrative expulsion of which has already been decided in a final decision, has been served by the Minister of the Interior. In view of the fact that the duration of the detention of certain foreigners is limited to a few days, rules should be introduced in the event of judicial review to ensure that the courts decide within a period of days or tens of hours, which, given the number of foreigners secured, would entail a significant and unfounded burden on the courts.
54. Furthermore, the Minister for the Interior states that a Directive of the European Parliament and of the Council on the minimum standards and procedures of Member States in the event of the return of illegally staying third-country nationals is currently being prepared within the European Union. The proposal assumes that a decision on collateral would be made not only by the judicial but also by the administrative authorities. In the case of a decision to secure a foreigner by an administrative authority, it is proposed that a foreigner should have the right to submit an application to the court for review of that decision. The judicial review of the decision should be carried out in an expedited procedure. The proposal for this provision is based on the Council of Europe document of 4 May 2005 "Twenty rules on forced return ', which, in its Article 9 - judicial remedies - provides that a secured alien has the right to request a court to review the legality of the collateral. The court decision will be given quickly (hence no specific time limit is set). The Ministry of the Interior is working closely with the Ministry of Justice to prepare the final draft of the directive cited and to draw up the opinions of the Czech Party on this issue.
55. The Supreme Administrative Court sees the unconstitutionality of the provision of § 124 (1) of the Aliens' residence law also in breach of the principle of proportionality, the Minister of the Interior states that while there are generally other ways of limiting the personal freedom of a foreigner posing a risk to the security of the State, public policy or the proper execution of an administrative expulsion decision, the Ministry is not convinced that such methods would be equally effective and reliable in view of the stated objective.
56. In view of the above, the Ministry of the Interior takes the view that the provision of Section 124 (1) of the Foreign Code is in line with the constitutional order and cannot be seen as a breach of the Constitution by the guaranteed principle of equality or the principle of proportionality.
57. The Director of the Foreign Police Directorate, Colonel Jindřich Urban, pointed out in his observations to the Constitutional Court delivered on 14 April 2008 that, on the basis of the Ombudsman's recommendation, the Police of the Czech Republic, the Foreign Police Service and the Border Police had joined in 2006 a number of measures to raise awareness of secured foreigners. The entire procedure for securing the alien is currently conducted in the language in which the alien is able to communicate and with the participation of an interpreter established in accordance with Act No. 500 / 2004 Coll., the Administrative Code, as amended. The freezing decision contains, in accordance with the provision of § 124 (5) of Act No. 326 / 1999 Coll., the instruction in which the alien is informed of the possibility of filing the application under the provisions of § 200o et seq., in which the court decides on the duration of the security or orders release if the legal reasons for the duration of the security have ceased. In addition, the instruction contains information on the possibility of bringing an administrative action against a decision in accordance with the provisions of § 65 et seq., p.
58. The Director of Dr Urban further states that the police department which has decided to secure a stranger shall, throughout the period of the detention, examine whether the reasons for the detention remain. If the reasons for securing a stranger in an establishment are lost, the police department, which decided to secure a stranger, without undue delay, will terminate the provision of § 127 of the Aliens residence law. Furthermore, in view of the possibility of applying the rights of aliens, it should be added that the facilities for securing foreigners are regularly visited by non-governmental organisations, such as the Association of Immigrants Citizens (SOZE) or the Organisation for Refugee Assistance (OPU), whose personnel provide legal assistance and advice to insured foreigners.
59. In the opinion of the Directorate of Foreign Police, the Supreme Administrative Court inadequately compares the number of appeals lodged by foreigners with the number of appeals in asylum matters. In the international protection proceedings under Act No. 325 / 1999 Coll., on Asylum and Amendment to Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended, (Act on Asylum), as amended, it is decided on the granting of this protection and on the right of residence in the Czech Republic. The interest of a stranger in asylum procedures is therefore to take advantage of any possibility which will prolong his stay in the Czech Republic, so the number of complaints lodged is higher. The fundamental difference is then in the effects of appeals. In the asylum procedure, the alien is entitled to reside in the Czech Republic throughout the entire procedure, including the appeal procedure. The Supreme Administrative Court based only on one form of appeal, the other does not evaluate or make a statistically clear statement in the application. In this context, it should be noted that during the period of detention at the establishment, the alien is entitled to submit simultaneously two proposals to the courts, namely a proposal to terminate the detention of the grounds and a proposal to examine the legality of the grounds for detention. An action against an administrative expulsion decision may be brought simultaneously.
60. For illustration, the Director of Dr. Urban reports data for 2007, in which the foreigners submitted a total of 1 878 applications for asylum, a total of 5 438 decisions on administrative expulsion from the Czech Republic was issued to foreigners and 524 foreigners were secured in total according to the provisions of § 124 paragraph 1 of Act No. 326 / 1999 Coll. On the basis of the above, it can be concluded that the comparison of the Supreme Administrative Court does not make a comprehensive statement. In 2007, the foreign police services were provided to the establishment for securing foreigners according to the provisions of § 124 (1) of Act No. 326 / 1999 Coll. 524 foreigners, which is about 10% of foreigners, who in 2007 were given a decision on administrative expulsion from the Czech Republic. It follows that about 90% of foreigners with an administrative expulsion decision may have left the Czech Republic voluntarily within the prescribed period. In 2007, in accordance with the provisions of Section 124 (1) of Act No. 326 / 1999 Coll., foreigners who have crossed the national border in hiding or attempted such conduct, crossed the national border outside the border crossing point, or foreigners who would thwart or complain about the execution of an administrative expulsion decision were placed in the detention facility. These foreigners are resident in the Czech Republic without a valid visa or a valid residence permit and, moreover, do not hold a valid travel document. In administrative expulsion and detention proceedings, secured aliens often intentionally give false information about their identity to their person and thus extend the period of detention in the detention facility.
61. After assessing the whole material and condition of the case, the Foreign Police Service Directorate notes that the Supreme Administrative Court did not base its processing of the proposal on current data and at the same time did not evaluate the amendment to the Act on the residence of foreigners implemented by Act No. 379 / 2007 Coll., which amended the wording of the provisions of § 124 (1) of the Act cited.
62. The Ombudsman stated in his observations to the Constitutional Court served on 20 November 2008 that he supported the proposal of the Supreme Administrative Court and agreed with the arguments of the Supreme Administrative Court. At the same time, it points to the complexity of the provisions of Section 124 (1) of the Aliens' residence law, as well as the constitutional and international guarantees for applicants for international protection. The Ombudsman considers the legislation at that time (i.e. the wording of the provision of Paragraph 124 (1) before the amendment of Act No. 428 / 2005 Coll.) to be a deficit, also from the point of view of excluding the application of the then administrative order [Act No. 71 / 1967 Coll., on Administrative Procedure (Administrative Order), in the then applicable version]. Before the adoption of the new administrative order (Act No 500 / 2004 Coll.), the provision of § 168 of the Act on the residence of foreigners excluded the application of the then administrative order as a whole in the case of the procedure, without, however, including a comprehensive regulation of the procedure corresponding to at least the basic principles of the administrative procedure, in a situation where the decision on the protection complied with the definitive characteristics of the administrative procedure within the meaning of the then provision § 1 (1) of Act No 71 / 1967 Coll.
63. JUDr. Motěl stresses that collateral is a serious interference in the right to freedom of movement. The protection of personal freedom is provided by Article 8 of the Charter, while it is a fundamental human right which is granted to all persons without distinction, including foreigners, and can be relied upon directly and not within the limits of the laws implementing this provision. At the same time within the meaning of Article 4 (4) The Charter must be examined in the application of the provisions on the limits of fundamental rights and freedoms in their substance and meaning and must not be used for purposes other than those for which it has been established. At the same time, Article 5 (1) (f) of the Convention, as amended by the subsequent Protocols, is fully affected by the procedure provided for in Section 124 (1) of the Aliens' Residence Act. The right to freedom and personal security contained in Article 5 of the Convention is, in addition to the right to life, the second most important right known to the Convention's catalogue of rights. The exceptions to the right to freedom and personal security contained in Article 5 (1) of the Convention are exhaustive, and only a narrow (restrictive) interpretation of those exceptions is consistent with the purpose of that provision so that no one is illegally deprived of liberty (see, for example, Vasilev against Denmark, ECHR judgment of 25 September 2003, § 33). At the same time, according to the constant case law of the European Court of Human Rights, the only freedom waiver which takes place in connection with the pending expulsion or extradition proceedings is considered justified within the meaning of Article 5 (1) (f) of the Convention. If such proceedings are not conducted with due care, they shall cease to be admissible under Article 5 (1) (f) of the Convention.
64. It should be further noted that the Ombudsman states that the decision to secure a stranger, thereby depriving him of his freedom of movement and, in fact, to derogate from one of the fundamental human rights, allows for the provision of Paragraph 124 (1) of the Alien Police Stay Act at the time when the communication on the initiation of an administrative expulsion procedure was received, and not until at least the decision on administrative expulsion has been unjustly decided by the police. In other words, restrictions on the fundamental human right of a stranger may occur before a decision is made on administrative expulsion, which gives the sole exclusive reason for that restriction (ensuring that the Institute is an effective implementation of expulsion of a stranger).
65. JUDr. Motěl considers it even more serious that administrative expulsion may not be decided, even unjustly, for a maximum of 180 days. And even though the Aliens' Residence Act requires the police to decide on administrative expulsion within seven days of the initiation of the proceedings, that period may not be final. The law allows the police, if they are unable to decide within this seven-day period, to extend this period and only to inform the secured stranger of the reasons. Thus, the Act on the residence of foreigners allows a significant interference in the right to freedom of movement without a decision being made, at least unjustly, whether there has been any action by a stranger to establish a reason for administrative expulsion or security.
Abandonment of oral proceedings
66. According to the provisions of Paragraph 44 (2) of the Constitutional Court Act, the Constitutional Court may, with the consent of the parties, refrain from oral proceedings if it cannot be expected to further clarify the case. Since both the appellant in its application and the parties to the proceedings expressed their agreement to refrain from oral proceedings and, since the Constitutional Court considered that further clarification could not be expected from the hearing, the oral hearing in the case at hand was abandoned.
Active ID of the applicant
67. The Constitutional Court first addressed the question of whether the appellant is entitled to make an application to declare the unconstitutional nature of the contested provision. He came to a positive conclusion. It is clear that the General Court must apply the contested provision to its action in the present legal proceedings and that the legislation applied directly affects the rights of the complainant. This proposal relates to the decision-making activities of the General Court, which is therefore a legitimate appellant (provision of Section 64 (3) of the Constitutional Court Act).
68. The appellant has now fulfilled the conditions of Article 95 (2) of the Constitution, as it seeks to declare the inconstitutionality of the provision of § 124 (1) of Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic and on the amendment of certain laws, as amended by Act No. 217 / 2002 Coll., which was applied in the present case, and in the appeal proceedings, the appellant will examine the correctness of the application.
69. According to Article 67 (1) of the Law on the Constitutional Court, there is a reason for the termination of proceedings where the law, other legislation or individual provisions which are proposed to be annulled expire before the end of the proceedings before the Constitutional Court; However, as already stated by the Constitutional Court in the finding of sp. zn. If the Constitutional Court refused to provide assistance to the General Court by its decision on the constitutionality or non-constitutionality of the applicable law, an insoluble situation of an artificial legal vacuum would arise; the decision of the General Court itself on the unconstitutionality of the provisions applied would be contrary to the principle of concentrated constitutional justice.
70. In the decision sp. zn. distinguished the cases of vertical and horizontal application of fundamental rights and formulated the conclusion that the genuine retroactivity in the event of the declaration of the unconstitutionality of an already repealed law and the assessment of previous acts by constitutionally conformal legislation with the effects of ex tunc on the public side does not constitute a breach of the principle of protection of citizens' trust in law, possibly interference with legal certainty or acquired law. The Constitutional Court is pursuant to Article 95 (2) The Constitution is required to examine the constitutionality of the contested provision as a matter of principle, even if it has already been repealed (amended), on condition that the public authority is the addressee of the alleged reason for the non-constitutionality. This is also the case in the present case (when the contested provision was subsequently amended) and, therefore, in the context of the legal opinions expressed in the above findings, the conditions for a substantive discussion of the submitted proposal are met.
Constitutional conformity of the legislative process
71. The Constitutional Court, in accordance with Paragraph 68 (2) of the Law on the Constitutional Court, examined whether a law whose provision is assessed from a constitutional point of view had been adopted and issued within the limits of the Constitution laid down by competence and by a constitutional procedure.
72. Since the appellant did not object to the defects in the legislative process, the Constitutional Court merely took into account the observations submitted by the Chamber of Deputies and the Senate and notes that the Act on the residence of foreigners, including its amendment, was adopted in a constitutionally prescribed manner, within the limits of the constitutional competence provided for and subject to the rules laid down in Article 39 (1) and (2) of the Constitution.
Derogation of the contested provision
73. Paragraph 124 (1) of Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic and on the amendment of certain laws, as amended by Act No. 217 / 2002 Coll., read:
"The police are entitled to provide for a stranger who has received a notice of initiation of an administrative expulsion procedure, if there is a risk that he or she could jeopardise the security of the State, to seriously undermine public policy or to impede or impede the execution of an administrative expulsion decision, in particular if he or she has been found to have committed in the past the conduct referred to in Article 119 (1) (a) or (b) (6) or (7), is registered in the register of undesirable persons (§ 154) or is an undesirable person included in the information system of the Contracting States. '.
74. The reasons set out in § 119 (1) (a) or (b) (6) or 7 of the Act cited are as follows:
- if there is a reasonable risk that an alien may endanger the security of the State while staying in the territory by using force to promote political objectives, by carrying out activities that threaten the foundations of a democratic state or by undermining the integrity of the territory or by any other similar means, or
- if there is a reasonable risk that an alien may seriously disturb public policy while in the territory, or
- if the alien repeatedly intentionally violates or obstructs the execution of judicial or administrative decisions, or
- if the alien crosses the national border in hiding or tries to do so, or
- if the alien crosses the state border outside the border crossing point.
75. For the sake of completeness, it should be noted that the amendment of Act No. 326 / 1999 Coll. implemented by Law No. 217 / 2002 Coll. was amended by adding the following words at the end of paragraph 1: "In particular, if it is found that an alien has in the past committed the conduct referred to in § 119 (1) (a) or (b) (6) or (7), he is registered in the register of undesirable persons (§ 154) or is an undesirable person included in the information system of the Contracting States'.
76. It can be added that even after the adoption of Act No. 217 / 2002 Coll. the Act on the residence of foreigners has been amended several times. On the date on which the Constitutional Court takes its decision, the text of the provisions of § 124 (1) of Act No. 326 / 1999 Coll., as amended, is as follows:
"The police are entitled to provide for a stranger aged 15 or over who has received a notice of the initiation of an administrative expulsion procedure or whose administrative expulsion has already been decided by a final decision if the risk of a threat to the security of the state is to seriously undermine public policy or to obstruct or complicate the execution of an administrative expulsion decision, in particular if it is found that an alien:
(a) has committed the conduct referred to in § 119 (1) (a) or (b) (6) or (7);
(b) is registered in the register of undesirable persons (§ 154); or
(c) is an undesirable person included in the information system of the Contracting States. ';
77. However, the Constitutional Court, in its current proceedings concerning the specific control of constitutionality, assesses the legal text in the version applicable to decisions of administrative bodies and general courts in the specific case of V. S. This relevant text is the previous text of § 124 paragraph 1 of Act No. 326 / 1999 Coll. after amendment by Act No. 217 / 2002 Coll.
Evaluation of the Constitutional Court
78. According to the contested provision, the police are entitled to arrange for a foreigner to be served with a notice of initiation of an administrative expulsion procedure if there is a risk that he might jeopardise the security of the State to seriously undermine public policy or to impede or impede the execution of an administrative expulsion decision.
79. That provision is a response to serious security risks and is intended to ensure that foreigners who reside in the territory of the Czech Republic are not in breach of its law and are awaiting enforcement of an administrative expulsion decision, but have only just received the notice of initiation of an administrative expulsion procedure, cannot thwart the purpose of the administrative expulsion and leave the territory as soon as possible. It should be noted that that provision provides for the authorisation of the police, but does not impose an obligation on it to do so. This means that it is at the discretion of the police whether, in a particular case, it is concluded that there is a reasonable concern that a foreigner might jeopardise the security of the state by his residence in the Czech Republic or seriously undermine public policy or obstruct or impede the execution of an administrative expulsion decision, and decides to secure a stranger.
80. In the sp. zn. IV. ÚS 289 / 2000 of 27.11.2000 (N 177 / 20 SbNU 249) The Constitutional Court has stated that personal freedom is one of the fundamental human rights protected by the Charter and by international human rights treaties. Ensuring an alien for the purpose of administrative expulsion is an intervention in his personal freedom and can therefore only be carried out in accordance with the laws, the Constitution and the Charter, and not least with the Convention to which the Czech Republic is bound.
81. Article 8 (1) of the Charter reads: "Personal freedom is guaranteed."
Article 8 (2) of the Charter reads: "No one may be prosecuted or deprived of liberty other than for reasons and in a manner laid down by law. No one shall be deprived of liberty solely because of the failure to comply with the contractual obligation. '
82. Article 14 of the Charter reads:
"(1) Freedom of movement and residence is guaranteed.
(2) Anyone who is legally present in the territory of the Czech and Slovak Federal Republic has the right to leave them freely.
(3) Such freedoms may be restricted by law if this is necessary for the security of the state, for the maintenance of public order, for the protection of health or for the protection of the rights and freedoms of others and for the protection of nature in designated territories.
(4) Every citizen has the right to free entry into the territory of the Czech and Slovak Federal Republic. A citizen cannot be forced to leave his country.
(5) A stranger may be expelled only in cases provided for by law. "
83. Article 5 (1) (f) of the Convention reads: "Everyone has the right to freedom and personal security. No person may be deprived of liberty except in the following cases, if this occurs in accordance with the procedure laid down by law:...
(f) the lawful arrest or other deprivation of liberty of a person in order to prevent his or her unauthorised entry into the territory or person against whom an expulsion or extradition procedure is pending. ';
84. Article 5 (2) of the Convention reads: "Anyone who is arrested must be informed without delay and in a language which he understands, of the grounds for his arrest and of any charge against him."
85. Article 5 (4) of the Convention reads: "Anyone who has been deprived of his or her freedom of arrest or otherwise shall have the right to bring an application for proceedings in which the Court of First Instance would promptly rule on the legality of his or her deprivation of liberty and order his or her release if the deprivation of liberty is unlawful."
86. Protocol 4 to the Convention provides for freedom of movement:
"1. Anyone legally staying in the territory of a Member State shall have the right to choose his place of residence in that territory.
2. Everyone is free to leave any country, even their own.
3. No restrictions may be imposed on the exercise of these rights except those laid down by law and necessary in a democratic society in the interests of national security, public security, maintaining public order, preventing crime, protecting health or morale, or protecting the rights and freedoms of others.
4. The rights referred to in paragraph 1 may be subject in certain areas to restrictions laid down by law and justified public interest in a democratic society. ';
87. Protocol 7 to the Convention provides for procedural guarantees concerning expulsion of aliens:
"1. A stranger who is authorised to stay in the territory of a Member State may be expelled only on the basis of the enforcement of a decision taken in accordance with the law and shall be entitled to:
(a) object to their expulsion;
(b) have his case examined;
(c) be represented for that purpose before or before a person or persons designated by that authority.
2. An alien may be expelled before the exercise of the rights referred to in paragraphs 1 (a), (b) and (c) of this Article if such expulsion is necessary in the interests of public policy or the interests of national security are justified. "
88. As part of the constitutional order of the Czech Republic, the Charter guarantees personal freedom. Article 8 (2) The Charter allows for the waiver of personal freedom if this is done under the conditions laid down by law. This law is precisely the law on the residence of foreigners in the present case. The Institute of Security also governed at the relevant time Act No. 283 / 1991 Coll., in particular in the provision of § 14 paragraph 1 (now Act No. 273 / 2008 Coll., on the Police of the Czech Republic). The legislation thus at the relevant time allowed (and also at present) for the alien to be deprived of his freedom and the police decision if the decision is based on Act No. 283 / 1991 Coll. (Paragraph 14 (1)) and on the provisions of § 124 et seq.
89. The legislation of the Institute for the Protection of Aliens for the purpose of administrative expulsion is not contrary to the Convention, which provides for the possibility of deprivation of liberty in Article 5 (1) (f) by arrest or by any other means against which expulsion proceedings are pending. Anyone who is arrested must be informed without delay and in the language to which he understands, of the reasons for his arrest and of any charges against him (Article 5 (2) of the Convention). The Convention also provides that a person who has been deprived of his or her liberty by arrest or otherwise may file a motion for the initiation of proceedings in which the Court of First Instance would promptly rule on the lawfulness of his or her removal of liberty and order his or her release if his or her freedom is unlawful (Article 5 (4) of the Convention). The law governing the detention of a stranger contained in the Act on the residence of foreigners (as applicable) sets out the terms of the detention, its reasons, the period of detention, the information obligations of the police, the duties of the police throughout the period of detention of a stranger, the grounds for termination of the detention and also the judicial review of the decision on the detention of a stranger.
90. The provision of an alien for the purpose of administrative expulsion pursuant to the provisions of § 124 et seq. of the Act on the residence of foreigners is only possible under the conditions and for the reasons provided for by this law. The Act on the residence of foreigners provides that the duration of the security may not exceed 180 days and shall be calculated from the moment of the restriction of liberty. The police are obliged to inform the secured stranger immediately after the detention in the language in which the stranger is able to communicate about the possibility of judicial review of the lawfulness of the detention. If this language cannot be ascertained and cannot be made known in any other way, the police will instruct the stranger by giving a written lesson in the languages of the Czech, English, French, German, Chinese, Russian, Arabic and Spanish language on the possibility of judicial review of the lawfulness of collateral. The police are required to investigate the reasons for the detention throughout the period. The guarantee must be terminated without undue delay after the grounds for the guarantee have been annulled, if the court in the administrative judiciary decides to revoke the decision to secure the alien or ordered the court to release the alien or to grant asylum under special legislation.
91. The judicial protection of the rights of a secured stranger is ensured in two ways. On the one hand, the secured alien is entitled to bring an administrative action pursuant to the provisions of § 65 et seq., and to ask the court to review the lawfulness of the provision, and, on the other hand, against the decision of the administrative court, an appeal against the Supreme Administrative Court. Furthermore, the secured alien is entitled under the provisions of § 200o et seq. o. s., to submit a motion to the court to order his release for freedom on the ground that the conditions for the duration of his detention laid down by the Act on the residence of foreigners are not fulfilled. The Court of First Instance shall examine whether the terms of the security continue and decide on the duration of the security or order release if the legal reasons for the duration of the security have ceased. Such proceedings may be initiated every three weeks from the legal authority of the decision.
92. The fact that foreigners use their right to judicial review relatively rarely in practice and that a foreign proposal is necessary to initiate legal proceedings does not constitute an argument as to the inconstitutionality of the contested provision.
93. In its proposal, the Supreme Administrative Court seeks the declaration of unconstitutionality of the provision of § 124 (1) of the Act on the residence of foreigners, as amended by Act No. 217 / 2002 Coll., also for its alleged contradiction with Article 1 of the Constitution and Article 1 of the Charter.
94.
"(1) The Czech Republic is a sovereign, united and democratic rule of law based on respect for the rights and freedoms of man and citizen.
(2) The Czech Republic complies with its obligations under international law. "
95. Article 1 of the Charter states:
"People are free and equal in dignity and in law. Fundamental rights and freedoms shall be inalienable, inalienable, unbiased and unbreakable. '
96. The Supreme Administrative Court, in its proposal, compares the rules governing the detention of a stranger for the purposes of his expulsion with the rules governing custody in criminal proceedings, as well as the rules governing the admissibility of the removal and possession in a health care institution under civil law, and considers that the contested provision of the Act on the residence of foreigners (as applicable) infringes the constitutional principle of equality.
97. The Supreme Administrative Court does not challenge the Institute itself to provide for a stranger, which is governed by the provisions of § 124 (1) of the Aliens residence law. Rather, what they are opposed to is a lack of more detailed legislation, a lack of automatic, regular and effective judicial review. Another reason for the alleged unconstitutionality is to be the length of the stay of a stranger in an establishment for the provision of foreigners (the provision of a stranger is, according to the applicant, excessively long).
98. The Constitutional Court notes that the task of the Constitutional Court is to protect constitutionality, not ordinary legality. In accordance with Article 87 of the Constitution and with Article 64 (3) of the Law on the Constitutional Court, the Constitutional Court decides to repeal laws and other legislation if they are contrary to constitutional order. The Constitutional Court thus acts as a negative legislator and is entitled to repeal the anti-constitutional legislation and its individual provisions. However, the Constitutional Court is no longer entitled to replace the repealed laws and other legislation with new, i.e. its own legislative activity, gaps in the applicable legal order.
99. Arguments of the Supreme Administrative Court, alleging a violation of the principle of equality, are misleading. The principle of equality, as enshrined in Article 1 of the Charter, can be compared only to the rights and obligations of persons in comparable situations (e.g. taking into account traditionally prohibited criteria of differentiation - cf. Article 3 of the Charter). A comparison of the legislation of two or more institutes, applied in different situations, cannot be regarded as a matter of equality between persons.
100. Article 1 The Constitution is a sovereign, united and democratic rule of law based on respect for the rights and freedoms of man and citizen. According to Article 1 of the Charter, people are free and equal in dignity and in rights. Article 3 (1) of the Charter establishes equality in relation to the guarantees of fundamental rights and freedoms. Article 4 (3) The Charter must apply the same legal restrictions on fundamental rights and freedoms to all cases which fulfil the conditions laid down. The principle of equality in rights must also be seen in the light of Article 26 of the International Covenant on Civil and Political Rights, according to which all are equal before the law and have the right to equal protection of the law without discrimination, and the law is to prohibit any discrimination and guarantee all persons equal and effective protection against discrimination for any reason, such as race, colour, sex, language, religion, political or other beliefs, national or social origin, property and family.
101. The Constitutional Principle of Equality, enshrined in Article 1 of the Charter, according to which people are free and equal in dignity and rights, and complementary to Article 3 of the Charter, which provides for a prohibition of discrimination in granted fundamental rights, interprets the Constitutional Court in its case-law of 4 June 1997 [e.g. the findings of the Constitutional Court sp. zn. Pl. Pl. Pl. ÚS. The first is due to the requirement of the legislature to rule out the libel in the procedure of differentiating groups of entities and their rights, and the second to the requirement of the constitutionality of the aspects of differentiation, i.e. the inadmissibility of a fundamental right and freedoms by the legislator.
102. In its case-law, the Constitutional Court holds, on the one hand, the concept of equality, i.e. equality, in relation to another fundamental right or freedom, and, on the other hand, the concept of equality, that is, universal equality before the law. It understands equality not absolutely but relatively: the principle of equality in rights must be understood as meaning that legal distinction between entities in access to certain rights must not be an expression of pleasure [cf. the findings of the Constitutional Court sp. zn.
103. Equality is relative to other categories: only in relation between at least two persons in the same or comparable position can be considered in the equality category [cf. Determine the groups of persons that can be compared in terms of maintaining the principle of equality are among the most difficult tasks in using this argument [cf. the finding of the Constitutional Court sp. zn. The basic guide is a list of objectivised attributes on the basis of which any distinction or different treatment is inadmissible (cf. Article 3 (1) of the Charter and similar anti-discrimination provisions in many international human rights instruments).
104. The Constitutional Court notes that the appellant confuses the category of equality in the above-mentioned concept, which relates consistently to legal entities, as "equality 'between legal institutes. It is based on the assumption that there are unfounded differences between the rules governing the expulsion of a foreigner and the rules governing the detention and possession of custody in a health care institution under civil law. However, comparing these legal institutes is impossible in the context of the principle of equality.
105. Moreover, the appellant's argument about these institutes, the content and conditions of which are substantially different, is only in the level of appropriateness of the legislative solution chosen in relation to one or the other situation in which there is a need for restrictions on personal freedom. It is not for the Constitutional Court to assess the legal regulation according to the reference criterion of suitability.
106. The contested provision does not constitute an intervention in the constitutionally protected principle of equality, as it is not a distinction between the rights and obligations of individuals in view of the traditionally responsible criteria (see Article 3 (1) of the Charter) or a different status. "Inequality may not be objected where the law provides for the same conditions of entitlement for all entities which may be included in the personal scope of the law '(see the sp. zn. In terms of the principle of equality, it is essential that all foreigners have the same conditions under the law as regards their stay in our territory, virtually having the same rights and obligations regardless of their sex, race, colour, language, faith and religion, political or other sentiments, national or social origin, membership of a national or ethnic minority, property, gender or other similar status. Similarly, the Constitutional Court expressed its views on the issue of equality in its finding of 28 March 2006, sp. zn.
107. In addition to the present case, it should be noted that there is a difference between the detention of foreigners under Article 5 (1) (f) of the Convention and, for example, the link between [Article 5 (1) (c) of the Convention] or the holding in constitutional health care [Article 5 (1) (e) of the Convention]. Both the Charter and the Convention provide for a higher level of legal protection for the accused or suspected of committing a crime in deprivation of liberty, in particular for automatic and regular judicial review.
108. In relation to the accused or suspected of committing a criminal offence (that is to say, in addition to the legislation contained in Article 5 (2) and (4) of the Convention, which applies to both types of proceedings, i.e. administrative expulsion proceedings and criminal proceedings), a number of other variants of the legal restriction of personal freedom are enshrined in the Convention: lawful imprisonment following conviction by the competent court; the lawful arrest or other deprivation of liberty of a person because it did not comply with a judgment given by a court under the law or in order to guarantee compliance with the obligation laid down by the law; the lawful arrest or other deprivation of liberty of a person for the purpose of being brought before the competent judicial authority for a reasonable suspicion of the commission of a criminal offence, or where there are reasonable grounds to believe that it is necessary to prevent the commission of a criminal offence or to flee after its commission; other deprivation of the liberty of a minor on the basis of a statutory decision for the purposes of educational supervision or its lawful deprivation of liberty for the purposes of its presentation to the competent authority.
109. Anyone who is arrested must be informed without delay and in the language to which he understands, of the reasons for his arrest and of any charges against him (Article 5 (2) of the Convention). Any person arrested or otherwise deprived of liberty in accordance with the provisions of paragraph 1 (b). (c) this Article shall be brought immediately before a judge or other official person empowered by law to exercise jurisdiction and shall have the right to be tried within a reasonable period of time or to be dismissed during the proceedings. The release may be subject to a guarantee that the person concerned will appear for trial (Article 5 (3) of the Convention). Anyone who has been deprived of his freedom of arrest or otherwise has the right to bring an application for proceedings in which the court would decide promptly on the lawfulness of his deprivation of liberty and order his release if the deprivation of liberty is illegal (Article 5 (4) of the Convention).
110. The European Court of Human Rights (hereinafter referred to as the Court of First Instance) has stated that deprivation of liberty under Article 5 (1) (f) of the Convention may only be justified by pending expulsion or extradition proceedings. If such proceedings are not conducted with due care, the link ceases to comply with this provision (Chahal case against the United Kingdom, § 112, 1996). In each court period under examination, the link must correspond to Article 5 (1) of the Convention, protecting an individual against arbitrary deprivation of liberty, and it is for the court to establish that national law complies with the Convention and the principles contained therein (Shamsa case against Poland, 2003).
111. In this context, it should be pointed out that Chonka and Others have been brought to the proceedings against Belgium (2002), in which the expulsion is the subject of a complaint. In this case, the complainants questioned whether their arrest was necessary in order to expel them from Belgian territory. In this case, the Court noted that there was no dispute between the parties that an incriminated arrest took place in order to expel the complainant from Belgian territory, so that it is applicable in the present case. The Court of First Instance stated that Article 5 (1) (f) of the Convention does not require that the freedom of the person against whom an expulsion procedure is pending be waived, for example in order to prevent him from committing a criminal offence or fleeing; in this respect, Article 5 (1) (f) does not provide for the same protection as Article 5 (1) (c) of the Convention. Indeed, it only requires that an 'expulsion procedure' be carried out (see Chahal against the United Kingdom, 1996; see also Kaya against Romania, 2006).
112. In the Nasrulloyev case against Russia (2007) The Court noted that both parties agree that the complainant was in custody for extradition from Russia to Tajikistan. Article 5 (1) (f) of the Convention is therefore applicable to this case. This provision does not require the detention of a person for whom extradition is decided to be found necessary in order, for example, to prevent the commission of a criminal offence or to avoid proceedings. In this context, Article 5 (1) (f) provides for a degree of protection other than Article 5 (1) (c): subparagraph (f) is required that an "expulsion or extradition procedure '(see also Chahal against the United Kingdom, § 112).
113. The Court of First Instance also stressed that it had the task of examining whether the complainant's link was "lawful 'for the purposes of Article 5 (1) (f) of the Convention, with particular regard to the guarantees provided by the national system. Where the" legality' of a link is assessed, including the question of whether it has been "followed in accordance with the procedure laid down by law ', the Convention refers to national law and establishes an obligation to comply with the substantive and procedural rules of national law. It also requires that any waiver of liberty should take place in the light of the purpose of Article 5 of the Convention, which is to protect against arbitrage (see Amuur against France, § 50).
114. The Court of First Instance further held that, as regards the "legality 'of the waiver of liberty, including compliance with the" procedure laid down by law', the Convention refers in principle to the obligation to comply with the substantive and procedural standards of national legislation, but also requires the compatibility of any waiver of liberty with the aim of Article 5 of the Convention: to protect individuals against arbitrage (see, among others, Bozano against France, 1986, Chahal against the United Kingdom, § 112).
115. The Court of First Instance left the Contracting States wide autonomy in deciding to expel a stranger and expressly confirmed that the right of access to a court, contained in Article 6 (1) of the Convention, does not apply to decisions to expel a stranger (see Maaouia against France or Mamatkulov and Askarov against Turkey).
116. Under international law, under its sovereignty, the State has the right to control the entry and residence of foreigners in its territory. It is also an established rule that the Member States of the Convention are supposed to restrict the free exercise of their rights under general international law to the extent and within the limits of their obligations under the Convention (see the Saadi case against the United Kingdom, 2006).
117. In the past, the Constitutional Court has made clear that the Charter provides judicial protection only to the right guaranteed by the law [finding sp. zn. The Constitutional Court has repeatedly stated in its case-law that the subjective constitutional right of foreigners to reside in the Czech Republic does not exist because it is a matter of a sovereign State under which (non-discriminatory) conditions the residence of foreigners in its territory [Resolution sp. zn. IV. ÚS 85 / 04 of 13.5.2004, Resolution sp. zn. III. ÚS 99 / 04 of 29.4.2004, Resolution sp. zn. III. ÚS 219 / 04 of 23.6.2004 (U 39 / 33 SbNU 549), Resolution sp. There is no legal claim to the issue of a visa under the explicit text of the law (Paragraph 51 (2) of the Aliens' Residence Act). None of the rights enshrined in the Charter give rise to the right of foreigners to reside in the Czech Republic. Such a right is given only to the citizens of the Czech Republic (after the accession of the Czech Republic to the European Union also to EU citizens), Article 14 (4) of the Charter, whereas paragraph 2 of the same article, which applies to other foreigners, establishes only their right to leave the Czech Republic freely.
118. First of all, it should be pointed out that, in criminal proceedings, a detainee or accused of committing a crime is limited to personal freedom against his will and has no choice, while a stranger secured for the purpose of his administrative expulsion may voluntarily leave the country of residence at any time.
119. When summarising the above, the Constitutional Court concludes that it is not possible to compare deprivation of liberty for the purpose of its administrative expulsion and deprivation of liberty by binding in ongoing criminal proceedings; the distinction between the two procedures is made by both the Charter and the Convention.
120. In this context, it should be noted that the references to the case law of the European Court of Human Rights contained in the submissions of the parties concerning the waiver of liberty in connection with the connection to criminal proceedings cannot be applied unreservedly to the issue of restrictions on liberty in the course of expulsion proceedings.
121. The Supreme Administrative Court further contends that the contested provision infringes the principle of proportionality. However, the Constitutional Court concludes that the argument of the appellant requesting the implementation of the proportionality test is incorrect. Even if such a test had been carried out, the contested provision would have stood.
122. The appellant itself recognises that this legal regulation pursues a legitimate objective which is necessary in a free democratic society. The aim of the Alien Protection Institute is to protect society from harmful phenomena, i.e. public order disturbances, threats to state security or difficulties in the execution of administrative expulsion decisions.
123. Also on the second question of the proportionality test, whether there is a rational link between the objective and the means chosen to enforce it, the appellant himself is in a positive position and recognises that the collateral can effectively avert the threats it is intended to prevent. A secured alien cannot interfere with public policy, state security or make it difficult to enforce administrative expulsion decisions.
124. Doubt is expressed by the appellant on the answer to the third question of the proportionality test, as there are alternative ways of achieving the objective, the use of which would make the interference in the fundamental law less intense or totally impossible. The appellant considers that the answer to this question is positive, arguing by adjusting the conditions for restrictions on personal freedom and by adjusting the procedural procedure for decisions on detention in criminal proceedings or by adjusting the procedure for holding in constitutional healthcare.
125. However, the Constitutional Court does not share the appellant's view. In the view of the Supreme Administrative Court, the less restrictive alternative is to be decided by another institution (a court rather than a police authority) and for the appellants in a more appropriate procedural regime. However, this cannot be considered as a less restrictive alternative, as it is still the same measure - a restriction of personal freedom by collateral. The argument of the Supreme Administrative Court relates to the regime of subsequent legal protection, not to the question of whether any less restrictive alternative can be achieved so that the personal freedom of a stranger is not restricted at all or to a lesser extent or otherwise, to which the search for less restrictive alternatives should be directed.
126. Moreover, the Constitutional Court recalls that, when considering this issue, the fact that it is entirely in the hands of a stranger himself is of fundamental importance whether he wants to avoid his security by voluntarily leaving the Czech Republic. If he does not do so, he makes it clear that he is willing to abide by restrictions on personal freedom under the conditions laid down in the domestic law.
127. The Constitutional Court finds that the right to judicial control of the lawfulness of deprivation of liberty, guaranteed by Article 5 (4) of the Convention, is sufficiently guaranteed, in the case of securing a stranger under the provisions of § 124 (1) of the Foreign Code, by the Institute of Administrative Procedure under the provisions of § 65 et seq., and, secondly, by the possibility to refer to the court for the application for freedom under § 200o.
128. Finally, the Constitutional Court states that it is aware of the judgment of the European Court of Human Rights in the Rashed case against the Czech Republic of 27 November 2008 (complaint No 298 / 07), which refers to the question of whether the Czech legislation provided the complainant - the applicant for international protection, located at the reception centre in the transit zone of an international airport - with an effective remedy that could challenge the illegality of his deprivation of liberty. In the light of Article 5 (4) of the Convention, the Court of First Instance, having found that the complainant had the right to an expedited and effective judicial review, even though he had been deprived of his former freedom under Article 73 of the Asylum Act, without any authority having given a formal decision on its location, concluded that the complainant had no remedy complying with the requirements of Article 5 (4) of the Convention. However, this is not the case in the present case, as the facts of the case were different here and the complainant was referred and decided to be secured in accordance with the provisions of § 124 (1) of the Aliens Act and not under the Asylum Act.
129. The Constitutional Court points out that it is bound by the petition in its decision-making activities. Neither Paragraph 125 nor 168 of the Act on the residence of foreigners are contested by the present proposal and therefore the Constitutional Court was unable to deal with the constitutionality of those provisions when examining the proposal.
130. In conclusion, the Constitutional Court adds that, however, the rejection of the proposal does not preclude the need for futuro to deal with the effectiveness and effectiveness of existing legislation and to seek new solutions which will more sensitively approach the restriction or deprivation of the personal freedom of foreigners in the context of the ongoing administrative expulsion procedure, e.g. by introducing an automatic judicial review of collateral at certain time intervals.
131. When summarising the above mentioned Constitutional Court motion to declare the unconstitutional provision § 124 paragraph 1 of Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic and on the amendment of certain laws, as amended by Act No. 217 / 2002 Coll., under the provisions of § 70 paragraph 2 of the Law on the Constitutional Court.
President of the Constitutional Court:
v. JUDr. Holländer v. r.
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Regulation Information
| Citation | The Constitutional Court found no. 229 / 2009 Coll., in the case of a motion to declare unconstitutional the provision of § 124 paragraph 1 of Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic and amending certain laws, as amended by Act No. 217 / 2002 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 27.07.2009 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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