The Constitutional Court found no 232 / 2000 Coll.

Motion denied.

The complainant, R. K., lodged a constitutional complaint against the judgment of the Municipal Court in Prague of 6.11.1998 No 28 Ca 378 / 97-54, rejecting his action against the decision of the Director of the Security Information Service, which dismissed him from the service. In addition to the constitutional complaint, he submitted a motion to repeal part of the provisions of Paragraph 250h (1) of the sentence behind the semicolon of the Civil Code (hereinafter referred to as the "o.s. '), expressed in words'; it may extend it only within the period provided for in Section 250b '.

The Fourth Chamber of the Constitutional Court, by order of 19.5.1999, sp. zn. IV. ÚS 146 / 99 suspended proceedings on a constitutional complaint when it concluded that part of the provisions whose constitutionality was contested together with the submission of a constitutional complaint had been applied in the proceedings.

In the preamble to the judgment under appeal, it is stated that if the applicant (the complainant), after two months of bringing the action and stating the pleas in law (§ 250b (1) o.s.cz), raised a new, pending plea, that is to say that, in its case, the expired two-month subjective time limit for the decision on dismissal laid down in § 40 (3) of Act No 154 / 1994 Coll., on the Security Information Service, cannot be taken into account for the expiry of the two-month period.

In the appellant's view, the contested provision, or part thereof, is contrary to Article 37 (3) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), which lays down the principle of equality between the parties. The appellant stated that the procedure before the administrative court was a review procedure and followed by an administrative procedure. The defendant is the administrative authority which issued the contested decision. Pending the initiation of proceedings before the courts, the administrative authorities shall have a superior position. By bringing an action, the administrative authority as defendant loses its superior position throughout the administrative procedure. Therefore, formally, the parties to the proceedings are of equal standing before the court, but in the appellant's view, it is only formally. The part of the provision of Paragraph 250h (1) of the sentence after the semicolon o.s. infringes the principle of equality of participants in the material sense. This provision, which is the subject of the application, constitutes a restriction on only one party to the proceedings, namely the applicant. In accordance with the provisions of Paragraph 249 (2) CS, the application must contain, in addition to the general requirements of the decision of the administrative authority which is challenging, a definition of the extent to which the decision is contested, an indication of the reasons, i.e. where the applicant sees the unlawful decision of the administrative authority and what final proposal it makes. According to the provisions of § 250h (1) o.s. of the applicant, the scope of the challenge may be limited to the decision of the court, but may be extended only within the legal two-month period for bringing the action. If the law on the application is only unilateral by law, part of the provision of Paragraph 250h (1) of the sentence after the semicolon o.s.that infringes in the Charter the principle of equality of parties in that it unilaterally limits only one of the parties to the proceedings, and that of the party whose position is significantly weaker in the course of the present proceedings (taking into account the administrative procedure which must always be preceded by the court). The defendant (in proceedings before an administrative court) also has a significant advantage in administrative proceedings by being a bearer of information and, consequently, evidence to which the applicant does not have access. This stands out in the complainant's case, where a substantial part of the file material of the administration is classified. Thus, many important information cannot often be obtained by the claimant before the defendant's case file material is requested by the court (on the basis of the application) or before the defendant's file material is served on the court. In practice, this is done within more than 60 days.

In its case, the appellant demonstrated that the contested part of the provision of § 250h (1) of the sentence behind the semicolon o.s.--essentially allows the "preservation 'of the manifestly unlawful procedure.

In its observations on the proposal, the Chamber of Deputies pointed out, in particular, that the procedure under Part Five of the CoR is designed as a specific process. The Court of First Instance is based on the legal situation at the time of the administrative decision. The procedure is governed by the disposing principle, which means, in particular, that the initiation of the procedure and the definition of its subject matter are only available to authorised persons, i.e. those who claim to have been shortened by the administrative authority's decision on their rights, or those who claim that it was not treated as a party to the administrative procedure, although it should have been treated as such. The applicant may seek protection only from those rights which belong to him, and the court shall examine the decisions only in those directions which are set out by the action, unless the facts to be taken into account are the subject of official proceedings. The applicant may extend the scope of the appeal of an administrative decision only until the end of the period laid down by the law (§ 250b o.s..europa.eu), i.e. within two months of service of the decision of the administrative authority at the last step, unless the special law provides otherwise. The delay cannot be forgiven. Failure to comply with the time limit shall result in the loss of the possibility of action. It follows that further reservations may not be raised in the course of the procedure against an administrative decision after the expiry of that period. In this case, the applicant is bound not only by the time limit for bringing the action, but also by the time limit for making reservations against the contested decision.

Furthermore, the Chamber of Deputies stated that the possibility of extending the scope of the appeal to an administrative decision only within the time limit laid down in Article 250b o.s. is also a guarantee for the parties to the proceedings in the sense that the court proceedings cannot be extended at all times. It therefore means strengthening the legal certainty of the parties. Finally, the Chamber of Deputies stated that the law was passed by the necessary majority of the Members of the Federal Assembly on 5 November 1991, signed by the relevant constitutional authorities and duly declared.

The Senate responded to the call for expression by communicating the date on which it began to act, which it concluded that it was not for it to comment on the proposal for annulment of the provision which supplemented the 1991 Law.

In its opinion on the proposal, the Ministry of Justice stated, in particular, that part of the provision of Paragraph 250h (1) of the sentence behind the semicolon o.s. If it is at the sole discretion of the claimant to bring an action and thus call into question a final decision of a public authority or not, it must also be made available in that decision to establish the limits of the review by the court, not only quantitatively, by indicating the statements which it contests, but also qualitatively, namely the pleas in law in which it concentrates its pleas against the contested decision. For the sake of legal certainty, it is necessary that the legal way defines the period in which an administrative decision can be challenged by an action or by an appeal before a court in an administrative justice. As a result, in the case of actions against final decisions by the administrative authorities, Article 250b provides for a general two-month period from service of an administrative decision in which a possible bringing of an action should be considered, while at the same time providing for the possibility that, in cases where that time limit is not satisfactory, the law may provide for a time limit for bringing an action by way of derogation. However, if, at the same time, the applicant's right to extend the action to further statements of the contested administrative decision and to extend the pleas in law were not limited by that deadline, the determination of the time limit for bringing the action would make no sense, since it would not be clear what would actually be the subject of judicial review, there would be room for unlimited and, where appropriate, purposeful extension of the procedure, which would, in consequence, lead to an extension of the state of legal uncertainty.

Furthermore, the Ministry of Justice stated that the right to bring an action is a right exclusively linked to those who claim to have been shortened on their rights by a decision of the administrative authority; only by bringing such an action is a judicial procedure which is governed by the principle of equal status of the parties, which does not only define the legal rules applicable to such proceedings formally, but also fulfils in the material sense. Consequently, the right of disposal of the applicant with the scope of the action is not a restriction of one party to the proceedings, but rather a right exclusively linked to one party to the proceedings - the applicant. The Ministry of Justice therefore does not consider the legislation contained in § 250h (1) of the sentence to be a semicolon.

The Constitutional Court itself has reached the following conclusions:

Article 36 (2) Everyone who claims to have been shortened on his rights by a decision of public authorities has the right to refer to the court to examine the legality of such a decision, unless otherwise provided for by the law (so-called general clause with negative enumeration). In so doing, a review of decisions relating to fundamental rights and freedoms under the Charter shall not be excluded from the jurisdiction of the court. The Act (o.s.) then distributes these constitutional principles in Part Five - Administrative judiciary. In particular, the law sets out who is legitimate in bringing the so-called administrative action. Whoever is entitled to bring an action must do so in a very specific way. Here the application of the contested part of the provision of § 250h (1) of the sentence after the semicolon o.s. is already in place, in which, in conjunction with the provision of § 249 (2) o.s. and others, the principle which is, not quite precisely, referred to as the disposing principle is expressed. It is clear from the closer analysis that it is not so much a question of who determines what will be discussed, as rather what will be discussed and within what time limit this scope of review can be defined, so rather it is a concentration of proceedings.

It can be summarised that the administrative justice is based on a principle (whatever we call it), that the administrative court does not, on its own initiative, examine the administrative decisions beyond those defined by the applicant and thus replace the applicant's initiative. It can be concluded from the doctrine that the court may or may not do so, although, for example, the provision of Paragraph 250j (1) does not speak for such a strict opinion ("if the court concludes that the contested decision complies with the law,...").

Furthermore, the specific nature of the process is the compulsory legal representation of the applicant, the principle of the court's commitment to the facts and a number of others.

Those restrictions and the specific process raise the question of whether, individually and in their context, they are constitutionally acceptable and substitutable under the requirement under Article 36 (1) of the Charter, i.e. that it is necessary to seek their rights in a independent and impartial court in a specified manner. First of all, in this context, it is necessary to answer the question whether, in some cases, the disposition principle is necessarily broken, in particular, whether the court must take account of something and, if so, what, even if the applicant does not object - that is, ex officio.

It is clear from the comments and case-law on the provisions of § 250h o.s. that there is no doubt that such intervention by the Court in administrative acts is necessary. However, it is accepted, and the Constitutional Court shares this view, that it is not so clear what is to be regarded as such acts. The commentary on o.s.z. (Bures, Drápal, Mazanec, C. H. Beck Praha) admits that there will also be other issues that the administrative courts will have to take into account from the power of authority and that this is not so much a fundamental impossibility to examine administrative decisions beyond the framework defined by the applicant, as well as the correct and stable determination of a range of matters relevant to decisions to which the court must take into account, even if the applicant does not object. This view is also shared by the Constitutional Court and it merely considers it necessary to recall that any provision which, by formalising administrative proceedings, sets de facto limits to access to the Court, namely the limits of one of the fundamental constitutional rights - the right to judicial protection. All such provisions, and the contested provision is one of them, therefore it is necessary to interpret in the spirit of Article 4 (4) of the Charter, namely, when applying such provisions, to examine the substance and the meaning of fundamental rights and freedoms. In other words, there are undoubtedly more situations than the nullity of an administrative act, which will have to be taken into account by the administrative court on its own initiative or on the basis of a late notice, i.e. ex officio or rather, better expressed - ex aequo et bono.

The Constitutional Court assumes that the case law of the administrative courts will develop in the indicated direction. He himself will then be forced to take a position on whether it is the duty of the courts to take into account, on his own motion, a possible presumption of law. In doing so, he is forced to say again that such an interpretative role would be primarily due to a court which exists under the Constitution, but not de facto - to the Supreme Administrative Court.

The Constitutional Court considers the contested provision to be interpretable within the constitutional limits, it does not find that it has established a disposing principle, or that the principle of concentration of proceedings in the administrative judiciary is unconstitutional, since, although it may be criticised for deviating from the principle of material truth, it cannot be seen that it, above all and without doubt, helps to fulfil the constitutional right to hear and decide a case within a reasonable time or without undue delay (Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms, Article 38 (2) of the Charter).

On the other hand, the Constitutional Court considers it its duty to reiterate that the administrative judiciary, in which the contested provision plays only a partial role, as a whole, does not comply with the principles enshrined in Article 6 (1) of that Convention and is, as a system created during the pre-constitutional period, contrary to the Constitution, the very absence of the Supreme Administrative Court. There is no dispute that in the current advanced democracies, the conclusion of a system of administrative courts is a common superior judicial instance of standard and inherent part of the proper functioning of public administration and the fulfilment of the principles of the rule of law. However, if several years of appeal from the Constitutional Court to legislators is not enough to motivate the implementation of the Constitution, the Constitutional Court declares that it will consistently seek in its decision-making activities the means and opportunities to change this situation.