The Constitutional Court found no 234 / 2012 Coll.

The proposal to abolish § 171 (a) 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. 427 / 2010 Coll., is rejected.

The proposal to declare unconstitutional § 171 paragraph 1 (a) 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 31.12.2010, is rejected.

1. The Constitutional Court was consulted by the First Chamber of the Supreme Administrative Court on the proposal to repeal part of Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic and on the amendment of certain laws (hereinafter referred to as the "Act on the residence of foreigners'), as amended by Act No. 427 / 2010 Coll., namely the provision of § 171 (a) excluding judicial review of the decision not to grant a visa. In the event that the Constitutional Court is unable to rule on the unconstitutional nature of the provision, since the text currently in force is not applicable to a case pending before the Supreme Administrative Court, the appellant requests that Article 171 (1) (a) 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 31.12.2010.

2. The applicant under the file number 1 As 85 / 2010 is in the process of hearing a complaint lodged by Ms S. R., a national of Iraq, against the order of the Regional Court in Brno of 28 April 2010 No 36 Az 39 / 2008-27. With this resolution, the Regional Court rejected its action as inadmissible against the decision of the administration - Police of the Czech Republic, Regional Directorate of the Service of the Foreign Police Brno, Inspectorate of the Foreign Police Brno, by which the complainant was not given a visa. The Regional Court came out of the provisions of Paragraph 171 (1) (a) of the Law on the residence of foreigners, which excludes judicial review, referring to the decision of the Constitutional Court and the Supreme Administrative Court, according to which the exclusion from judicial review does not affect any constitutional fundamental right or freedom, since there is no subjective constitutional right of foreigners to reside in the Czech Republic.

3. The First Chamber of the Supreme Administrative Court fully agrees with Mrs R.'s view in her complaint that, if a stranger is already in the Czech Republic, the real threat to his constitutional rights is also considered, and the decision not to grant a visa cannot therefore be excluded from the judicial review. Since the contested provision of the Act on the residence of foreigners cannot be interpreted in a constitutional manner in such a way that the complainant is not deprived of the right to judicial protection, he suspended the appeal procedure and turned to the Constitutional Court for a motion to annul it.

4. The proposal is supported by a comprehensive argument. The appellant first points out that according to § 51 (2) of the Act on the residence of foreigners, as amended by Act No. 427 / 2010 Coll., there is no legal claim to the grant of a long-stay visa. The provision is seen as an expression of national sovereignty, whereby the State is completely autonomous in deciding which of the foreign nationals will allow entry and residence on their territory. The Constitutional Court also consistently judges [i.e. the finding of sp. zn. Pl. ÚS 26 / 07 of 9.12.2008 (N 218 / 51 SbNU 709; 47 / 2009 Coll.)] and the Supreme Administrative Court itself. The issue of issuing visas shall be left to the discretion of the competent administrative authorities. Although the appellant generally agrees, this does not automatically mean that the judicial review lockout in question is constitutional. As the Constitutional Court has repeatedly pointed out in its decisions, the conditions for the residence of foreigners in the Czech Republic must be non-discriminatory. This applies both to the level of general legal standards and to the level of administrative decision-making practice. However, according to the appellant, it is not clear how to enforce the prohibition of discrimination and arbitrariness of decision making without subjecting the practice of the judicial cog, at least as far as possible to excesses at the discretion. Even where the administrative authority has absolute discretion as to the outcome of its decision-making (which is not the case for decision-making on the issue of visas), the judicial review is of relevance in the event of a breach of the framework given by the constitutional order, as also stated by the Constitutional Court in its decision-making decision-making, page IV, ÚS 49 / 04 of 16.3.2006 (N 62 / 40 of SbNU 607). In cases where an administrative body has wide discretion or applies vague legal concepts, the intervention will be rather exceptional, but the possibility of judicial control itself will prevent any indiscretions.

5. Not only Czech citizens, but also other persons who are legally present in the Czech Republic, have legitimate expectations of protection by the state. Thus, even if foreigners do not have a subjective constitutional right to reside here, they have at least the right to a proper procedural procedure on the part of the administrative authorities which intend to make their further residence impossible. This procedure must be free from any discrimination or insolence. Before the amendment implemented by Act No. 427 / 2010 Coll., amending Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic and amending certain laws, as amended, 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, and other related laws, the application for a visa to stay beyond 90 days at the representative office of the Czech Republic was not made otherwise. Otherwise, in the case of a visa for stay over 90 days for the purpose of suffering, the law on the residence of foreigners provided for the application to the Police of the Czech Republic. The visa has been entered on the travel document in case of positive processing. If a visa has not been issued and the alien has already stayed in the territory, he has been granted a period of time to leave the territory and an exit order has been issued. By bringing an action against the outcome of the application proceedings, the alien could not defend himself or himself against the exit order. The Act on the Residence of Foreigners did not provide any possibility of review even in those notable cases where the decision of the Police of the Czech Republic due to the existence of special circumstances [e.g. binding opinion of the Ministry of Interior (hereinafter referred to as "the Ministry ') on the impossibility of travelling a stranger to the country of origin as in the case of Mrs R.] was clearly illegal. The administrative authorities thus create insoluble situations for foreigners when, on the one hand, they recognise the impossibility of travelling, but on the other, they refuse to legalize their residence. After the amendment by Act No. 427 / 2010 Coll. described visa procedure over 90 days for the purpose of staying without any major deviations, the procedure has passed over to the Ministry of Interior. However, in response to European Union legislation (Visa Code), a further amendment was introduced, namely a specific appeal entitled" a reassessment of the grounds for not granting a visa', where a special commission decides in defined cases. However, this does not meet the conditions of an independent judicial authority. The judicial review of the non-visa is no longer possible. On the contrary, according to the appellant, the current regulation in its implications means that there is a significant concentration of power in the decision-making process on visas with a single executive body; The logic of the sp. zn. Pl. ÚS 11 / 2000 of 12.7.2001 (N 113 / 23 SbNU 105; 322 / 2001 Coll.) can therefore be adequately applied. The obligation to leave the Czech Republic regularly represents a significant and difficult corrective intervention in private or family life.

6. The appellant points out the approach taken by the European Court of Human Rights ("the ECHR '), which takes into account in its case-law the extraterritorial effects of Article 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms (" the Convention'). The ECHR admitted that while the Convention does not prohibit states from regulating the entry and residence of foreigners, the restrictive measures adopted should be proportionate to the objective pursued. He also stated that not extending visas to stay and expulsion could result in serious interference with family life. The ESLP also dealt with the compliance of family life with the law and whether that right provided protection against arbitrary interference, while the guarantee against it is, inter alia, the existence of a review of the decision by an independent body. Furthermore, the appellant reiterates in this connection the finding of the Constitutional Court sp. zn. Pl. ÚS 26 / 07 (see above) on the annulment of § 171 (1) (c) of the Act on the residence of foreigners, as amended by Act No. 161 / 2006 Coll., concerning the exclusion of the review of the decision on the administrative expulsion of a foreigner who was illegally present in the Czech Republic. Legislation should not make unjustified differences between persons in a comparable position.

7. In order to assess whether one of the fundamental rights of a stranger has been affected, it is, according to the applicant, decisive where the alien is at the time of the application. If he is applying for a visa at the representative office in his country of origin, his refusal cannot cause him any harm unless he has a family member in the territory of the requested State with whom he could not carry out his family life elsewhere than that of that State. But another is the situation where a stranger legally resides in the territory of the recipient state. Then it is likely and logical that you could create a family background and a private life here. The latter is seriously disturbed by forced travel in the event of non-issuance of the visa, and in the case of claims concerning the fundamental right concerned, the State must ensure the judicial control of the relevant administrative decision. In addition, in a particular case, Mrs R. is likely to have been in breach of the Aliens' residence law, since a visa for patience should have been issued to her due to the existence of an opinion by the Ministry of the Interior on the impossibility of travelling to the country of origin.

8. According to the appellant, it cannot be argued in favour of the constitutionality of the contested provision that foreigners may be granted judicial protection following the negative outcome of asylum or administrative expulsion proceedings. The decision not to issue a visa shall be activated without further delay by the issuing of an exit order, where the stranger is obliged to leave the Czech Republic within the prescribed time limit. The asylum procedure can be initiated by a stranger when other conditions are met. In any event, the subsequent judicial review of asylum decisions shall be the subject of administrative procedures and the decision not to grant a visa shall no longer be reviewed. The same applies in the review of the administrative expulsion decision; the condition is, however, that the alien will not respect the exit order and will reside illegally in the Czech territory, which cannot be forced to do so. In any case, the grounds for not granting a visa will not be examined here either.

9. The appellant also recalls the views of the doctrine which criticises the absence of a judicial review of visa decisions. He also pointed out that the Czech Republic belongs to a minority of European states which do not provide any judicial protection against the non-visa; the legal rules of Austria, Lithuania, Germany, France, Sweden, Finland, Great Britain, Poland or the Netherlands are familiar with the judicial review of this type of decision in different forms.

10. The Chamber of Deputies of the Parliament of the Czech Republic, in its observations, summarised the course of the legislative process and the vote that preceded the approval of the contested legislation. The legislature acted in the belief that the legislation adopted was consistent with the constitutional order. The assessment of the constitutionality of the regulation leaves the consideration of the Constitutional Court.

11. The Senate of the Parliament of the Czech Republic also described the procedure for adopting the rule in question, with the fact that the contested provision of the Aliens Act in question had the opportunity to deal repeatedly, the debate and amendments were never directed directly towards it. Continuously with government proposals, it was decided in the majority belief that the current long-term concept of a legal solution to exclude a decision not to grant a visa from judicial review was consistent with constitutional order and international commitments. The Senate also leaves the final decision to the Constitutional Court.

12. In view of the material of the proposal, the Constitutional Court considered it appropriate to request an opinion on the content of the proposal also from the Ministry of the Interior, which in the given section of the state administration exercises its competence. The Minister of Interior responded to the call for a communication that the current legislation is not contrary to the Constitution of the Czech Republic (hereinafter referred to as the Constitution), the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter) or international obligations, and there are therefore no grounds for repealing the contested provisions of the Act on the residence of foreigners. It reasoned its position as follows.

13. First, it deals with the specific case of Mrs R., from which the present proposal came. She arrived in the Czech Republic on 14 February 2007 on the basis of a residence visa, which expired on 1 March 2007. From 2 March 2007, they stayed here on the basis of a visa for the purpose of suffering, valid from 2 March 2007 to 29 February 2008. On 26 October 2007 an administrative procedure was opened on administrative expulsion from the territory of the Czech Republic, in the context of this procedure the Ministry of the Interior issued a binding opinion on the possibility of travelling abroad, according to which travel to the country of origin is not possible. The administrative expulsion procedure was therefore terminated for the lapse of the plea on 7 November 2007. On 12 March 2008, Mrs R. applied for permanent residence for reasons of special consideration; the application was considered inadmissible and the proceeding terminated. On 19 March 2008 she applied for temporary residence of a family member of an EU citizen; the application was rejected for non-compliance (no member of the EU's family was known to the Ministry of the Interior), the person appointed against the decision brought by an action which had not yet been decided at the time of the submission. On 18 August 2008, Mrs R. submitted an appointment for a visa for the purpose of suffering, which was rejected on 16 September 2008 (note: it was against this decision that Mrs R. tried to defend herself from administrative courts, which resulted in the proposal now under discussion). On 10 October 2008, she submitted a further visa application for a stay which was rejected again. On 16 October 2008, Mrs R. submitted an application for international protection, which is still under way. The description of the Ministry ends with the finding that the legislation in force provided sufficient legal guarantees to the stranger in all the proceedings conducted to protect his rights effectively. In the present context, the Ministry has also mentioned the circumstances in which Mrs R. travelled and stayed in Germany in 2007. already in itself this could have resulted in the expiry of the first visa for the purpose of suffering, in any case it was unfaithful to the claim of trying to live in the Czech Republic with its family. In addition, he adds that the family is made up of father and three brothers, without whom he lived in Iraq for a long time, and who are not entitled to family reunification within the meaning of the Aliens Act. On the contrary, a spouse of a complainant in a similar procedure was not allowed to reside in the Czech Republic when the relevant procedure ended in the rejection of his constitutional complaint. According to the Ministry, it follows from the case described that the complainant may have originally stayed in the Czech Republic for a full year. It was then able to apply for a long-term residence permit for the purpose of suffering (§ 43 (1) of the Act on the residence of foreigners, as amended) or in the future for another purpose (§ 42 (2) of the Act on the residence of foreigners, as amended by Act No. 165 / 2006 Coll.); the decision on a long-term residence permit is not excluded from judicial review. Or should a stranger have asked for international protection, which, after all, the reason for filing applications - the fear of returning to Iraq because of a poor security situation - would suggest. Also a binding opinion on the possibility of travel implies further residence of a stranger in the Czech Republic under the asylum law. When examining whether foreigners are provided with a sufficient guarantee of the protection of their rights in case of fear of returning to the country of origin, it is necessary to monitor the legislation on the entry and residence of foreigners in the Czech Republic in the wider sense, namely not only the law on the residence of foreigners, but also the law on asylum, which serves primarily for this purpose. The duplex of the system, namely the solution to the same residence status of foreigners in a particular position in both regulations, is not effective. The visa for the purpose of suffering pursuant to § 33 (1) (a) of the Act on the residence of foreigners, as amended, is then only an additional institution to be used in cases of short-term obstacles to travel in the order of months.

14. The judicial review of the decision not to grant a visa is excluded intentionally by the contested provision, as it is a request from foreigners who do not have any residence authorisation in the Czech Republic. In principle, it is not the need to travel abroad, but the question of meeting the conditions for granting a certain type of residence permit. The absence of a visa for the purpose of suffering in itself is not capable of affecting the rights of a stranger to protect life and health or the right to family life. This can only become a subsequent decision on administrative expulsion. Contrary to the appellant, the Ministry considers that the discretionary power of the administration is beneficial in the procedure under the Aliens residence law, since it allows for greater individualisation and protects against rigid application of legal conditions. It makes it possible, on the one hand, to protect foreigners whose case is different from others, but above all to prevent the decision of the administration from being contrary to the interests of the Czech Republic, which is a rightly protected value above the interest in protecting the private and family life of a stranger. The Ministry also does not agree that judicial review is the only possible guarantee that the conditions of non-discrimination against foreigners and the prohibition of indiscretions in decision-making may be maintained, and a possible defect can also be remedied in the use of corrective and supervisory means within the public administration. As regards the Commission for Decision-making concerning the residence of foreigners (hereinafter referred to as the "Commission '), which was entrusted with the review of administrative decisions not to grant a visa, although it is part of the organisational structure of the Ministry, its members are independent in their decision-making. The fact that there is no general belief of the need for judicial review is also demonstrated by Regulation (EC) No 810 / 2009 of the European Parliament and of the Council on the Community Code on Visas (Visa Code), according to which unsuccessful applicants have the right to appeal (Article 32 (3)), but to what type of remedy, whether judicial or administrative, is not ordered.

15. The provisions of the Act on the residence of foreigners, the bold part of which is challenged by the proposal, read as follows:

- as effective until 31.12.2010 (i.e. as applicable to the complainant's case):

(1) The review by the court shall exclude:

(a) decision not to issue a visa;

(b) the decision to refuse entry;

(c) deleted:

(d) the termination decision if the alien has been illegally present in the territory or transit area of an international airport prior to the start of the termination procedure;

(e) a decision not to issue a green card.

(2) Where a citizen of the European Union or his family member is involved, decisions refusing entry or administrative expulsion shall be excluded from review by the court during the period of validity of the previous decision on his administrative or judicial expulsion.

- as amended (as amended by Act No. 427 / 2010 Coll.):

No review by the court

(a) a decision not to issue a visa; This does not apply if the visa is not granted to a family member of a European Union citizen,

(b) a decision to refuse entry; This does not apply if it is to refuse entry of a European Union citizen or his family member,

(c) deleted:

(d) the termination decision if the alien has been illegally present in the territory or transit area of an international airport prior to the start of the termination procedure;

(e) a decision not to issue a green card. Within 7 days of the date of service of the decision, an action may be brought against a decision on an application for international protection rejecting the application as manifestly unfounded.

16. As mentioned above, the provisions of § 171 (a) of the Act on the residence of foreigners, as amended by Act No. 427 / 2010 Coll. The Constitutional Court first examined whether, pursuant to the provisions of § 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the appellant was entitled to make such a proposal (hereinafter referred to as "the Law on the Constitutional Court '). According to the code of the provision cited, the application for annulment of the law or its individual provisions is also entitled to be lodged by a court in the context of its decision-making activities under Article 95 (2) of the Constitution. The precondition for the Court's active legitimacy is that it must apply the proposed provision to the annulment of the proceedings before it. This assumption is not fulfilled here, as in the present proceedings the Supreme Administrative Court is to apply the rule as amended by Act No. 427 / 2010 Coll. Without the rest, what the Constitutional Court has said in the resolution sp. zn. Pl. ÚS 3 / 07 of 22.8.2007 (available at http: / / nalus.ujud.cz /):" Even though it may be a change from the point of view of the appellant which is not essential, the Constitutional Court under such a procedural situation is not entitled to give an authoritative statement on the constitutional conformity of the provisions of § 708 of the Civil Code, as amended by Act No. 107 / 2006 Coll., even from the point of view expressed by the Constitutional Court in the judgment of the Constitutional Court of First Instance [see, for example, the Constitutional Court of 10.1.2001 (N 5 / 21 of the SbNU 29; 78 / 2001 Coll.), even from the opinion of the Constitutional Court of the Constitutional Court of Justice [see, for example the Constitutional Court of the Constitutional Tribunal of 5 / 2006]. In order for the court to question the constitutionality of any law or part of it, it is necessary to apply it as a matter of fact to the perpetrators. However, this is not the case here. "Since the answer to the question raised by the parties authorised by the court is negative (although the Constitutional Court is aware that only the structure of the contested provision has changed and its content remains exactly the same), the application in this section had to be regarded as being made by someone manifestly unjustified and, under the provisions of § 43 (2) (b) of the Law on the Constitutional Court for the reason set out in § 43 (1) (c) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Law No 77 / 1998 Coll. Otherwise, it would exercise State power outside the limits laid down by law (see Articles 2 (3) and 87 of the Constitution, Article 2 (2) of the Charter).

17. In the event that the Constitutional Court is unable to rule on the unconstitutional nature of the provision, since the text currently in force is not applicable to a case before the Supreme Administrative Court, the appellant requests that Article 171 (1) (a) of the Act on the residence of foreigners, as amended by 31 December 2010, be declared unconstitutional. The Constitutional Court has already made repeated comments on the possibility of reviewing legislation which has expired in its caselaw. As a general rule, this possibility was recognised in the decision sp. zn. However, if it is concluded that the law to be applied in the resolution of the case (i.e. not only at that time valid but also at that time no longer valid but still applicable law) is contrary to constitutional law, it is obliged to bring the case before the Constitutional Court (Article 95 (2) of the Constitution). From that provision, the Constitutional Court then assumed its obligation to decide on the application. '. This rule was later refined by the findings of the sp. zn. Pl. ÚS 42 / 03 of 28.3.2006 (N 72 / 40 SbNU 703; 280 / 2006 Coll.) or sp. zn. In the present case, this is an exclusion from judicial review, so the addressee of the alleged unconstitutionality is state power. In that version until 31.12.2010, the contested provision was, or should be, applied. The conditions for reviewing the second part of the petition are therefore fulfilled.

18. The Constitutional Court also addressed, within the meaning of the provisions of § 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the manner in which the Act on the residence of foreigners was adopted and the Act on the residence of foreigners, or Act No. 427 / 2010 Coll., which amended the relevant part of the Act on the residence of foreigners. It follows from the observations of both participants as well as the relevant websites (www.psp.cz) that the Chamber of Deputies has discussed the Government Bill on the residence of foreigners in the Czech Republic and on the amendment of certain laws. The first reading took place on 8.6.1999, the second on 13.10.1999 and the third reading on 21.10.1999, when the bill was approved by a majority of 177 Members of the 179 present and referred to the Senate. He returned it at his 11th meeting on 11 November 1999 (Resolution No 179) with amendments when out of the 66 senators present, 59 voted in favour, 1 opposed and 6 abstained. The contested provision did not concern amendments. On 30 November 1999, at its 43rd session, the Chamber of Deputies renegotiated the proposal and approved it as approved by the Senate (Resolution No 605); 171 of the 172 Members present voted in favour. The President of the Republic signed the Act on 14.12.1999 and on 23.12.1999 the Act was duly declared in the Collection of Laws. As Press No. 70, the Chamber of Deputies then discussed a government bill amending Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic and on the amendment of certain laws, as amended, Act No. 325 / 1999 Coll., on asylum and amending Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended, (Act on asylum), as amended, and other related laws. The first reading took place on 21 September 2010, the second on 29 October 2010 and the third reading on 9 November 2010, when the bill was approved by a majority of 104 Members from 169 present and referred to the Senate. He returned it at his second meeting on 8 December 2010 (Resolution No 25) with amendments when 71 of the 73 senators present voted for repayment and none opposed it. The contested provision did not concern amendments. On 21 December 2010, at its 11th session, the Chamber of Deputies renegotiated the proposal and approved it as approved by the Chamber of Deputies (Resolution 260); in favour of 109 of the 192 Members present, 9 voted against the proposal. The President of the Republic signed the Act on 23 December 2010 and on 30 December 2010 the Act was duly declared in the Collection of Laws.

19. The Constitutional Court found that the Law under examination was adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.

20. The Constitutional Court has examined the proposal and, for the reasons set out below, concluded that there is no reason to state the unconstitutional nature of the contested provision of the Act on the residence of foreigners.

21. It should first be recalled that the Constitutional Court is a body for the protection of constitutionality (Article 83 of the Constitution). In its proceedings for the repeal of laws and other legislation, it acts as a so-called negative legislator and its task is to assess the constitutionality of the contested legislation or its defined parts, possibly to assess whether the contested legislation can be interpreted and applied in a constitutional manner. At the same time, the Constitutional Court is not entitled to assess the appropriateness, effectiveness or doctrine of the rule of law, since this competence is always for legislators.

22. The issue of deciding not to grant a visa, possibly not to extend a visa in relation to fundamental rights, has been dealt with in many cases in the past by the Constitutional Court. All his decisions so far are based on the argument that there is no legal entitlement to the issue of a visa (and also to extend the period of validity of the visa). Therefore, there is no reason to exclude these decisions from the scope of the rule excluding their judicial review. In this way, all the chambers of the Constitutional Court were gradually judged.

23. Constitutional complaints against decisions given in cases (no) granting or (no) extending the visa were decided by the Constitutional Court in proceedings concluded by resolutions sp. zn. II. ÚS 33 / 11 (the complainant in this case was the spouse of Ms R. of 21.4.2011, sp. zn. III. ÚS 2819 / 10 of 5.1.2011, sp. zn. III. ÚS 2909 / 09 of 18.3.2010, sp. zn. I. ÚS 394 / 06 of 8.11.2006, sp. zn. I. ÚS 38 / 04 of 12.7.2005, sp. I. ÚS 17 / 04 of 15.12.2004, sp. the decisions taken by the Constitutional Court are available at http: / / nalus.ujud.cz. He refused all complaints with no subjective constitutional right of foreigners to stay in the Czech Republic. Each state can decide itself under what conditions it will allow foreigners to reside in its territory. None of the rights enshrined in the Charter give rise to the right of foreigners to reside in the Czech Republic. Article 14 (4) The Charter guarantees such a right only to citizens of the Czech Republic (and now also to EU citizens), while other foreigners have only the right to leave the territory of the Czech Republic freely (Article 14 (4) of the Charter). The same conclusion was reached by the Constitutional Court in other similar proceedings concerning foreign law in which it examined other categories of decisions. It was at least resolution sp. zn. II. ÚS 2336 / 10 of 16.11.2010, sp. zn. II. ÚS 2332 / 10 of 7.10.2010, sp. zn. II. ÚS 2345 / 10 of 7.10.2010, sp. zn. I. ÚS 2318 / 10 of 29.9.2010, sp. zn. III. ÚS 2954 / 09 of 17.12.2009 and in particular the find sp. zn. Pl. ÚS 10 / 08 of 12.5.2009 (N 115 / 53 SbNU 427; In the past, the Constitutional Court has made clear that the Charter provides judicial protection only to the right guaranteed by the legal order [the Pol. ÚS 36 / 93 of 17.5.1994 (N 24 / 1 of the SbNU 175; 132 / 1994 Coll.), Resolution sp. zn. IV of the ÚS 85 / 04 of 13.5.2004]. 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, as it is a matter of a sovereign state under which (non-discriminatory) conditions the residence of foreigners in its territory... 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 while paragraph 2 of the same article, which applies to other foreigners, establishes only their right to leave the Czech Republic freely. "

24. In relation to the judicial review of the decision not to grant a visa, the Constitutional Court stated (see in particular the above-mentioned resolutions, sp. zn. II. ÚS 33 / 11, sp. zn. III. ÚS 2909 / 09 or sp. zn. I. ÚS 394 / 06) that... the protection of public subjective rights is carried out under the conditions laid down by the laws, but that certain public subjective rights are not granted to judicial protection; both the administrative rules in the form of the administrative exclusions (§ 70 of Act No. 150 / 2002 Coll., the Administrative Rules) and the special laws identify certain acts of the administrative authority 'which are excluded from the review in the administrative judicial system, and this is the case also in the case of an administrative decision which decided not to grant a visa [§ 171 (1) (a) of the Foreign Code]. Article 36 (2) While the Charter may not be excluded from the jurisdiction of the Court of Justice from examining decisions relating to fundamental rights and freedoms under the Charter, such a right is not the subject of the case...'.

25. Even twice (see resolution sp. zn. I. ÚS 394 / 06 and sp. zn. I. ÚS 602 / 03), the Constitutional Court dealt with the proposal to abolish the provision in question concerning the exclusion of competence associated with the constitutional complaint. It concluded that, in view of the views expressed above, the inconstitutionality of Paragraph 171 (1) (a) of the Aliens residence law cannot be inferred.

26. By finding sp. zn. Pl. ÚS 26 / 07 (see above), the Constitutional Court for the Conflict with Article 36 (2) of the Charter annulled the provision of § 171 (1) (c) of the Act on the residence of foreigners, as amended by Act No. 161 / 2006 Coll., which excluded the judicial review of the decision on administrative expulsion, if, prior to the initiation of the procedure for such expulsion, the alien was illegally present in the territory or transit area of an international airport. In the preamble, he stated: "The Constitutional Court first dealt with the compliance of the contested provision with Article 36 (2) of the Charter, under which the Court of First Instance must not rule out the review of decisions relating to fundamental rights and freedoms under the Charter. This right is formulated in general, not limited to citizens of the Czech Republic. Therefore, should the Constitutional Court conclude that it is possible by administrative expulsion to intervene in the fundamental rights and freedoms of foreigners, the contested provision which precludes its judicial review should be annulled.... Although the subjective constitutionally guaranteed right of foreigners to stay in the Czech Republic does not exist, the Charter undoubtedly guarantees foreigners rights that may be affected by expulsion. For example, they are the right to life and the prohibition of torture and cruel, inhuman or degrading treatment (Article 6 and Article 7 of the Charter), which protects foreigners from expulsion into a country where such rights would be threatened, or the right to protection against unauthorised interference in private and family life (Article 10 (2)), which may prevent expulsion if it is affected unduly... The Charter does not make any distinction between whether or not an alien resides in the Czech Republic."

27. The Supreme Administrative Court has so far also judged the same as regards access to the exclusion of the judgments in question from the judicial review. A number of decisions can give an example of the judgment in Case 87 / 2010 (www.nsjus.cz), according to which the legal suspension of the judicial review of the decision not to grant a visa is based on the assumption that it does not interfere with fundamental rights and freedoms. None of the articles of the Charter give rise to the right (subjective right) of a stranger to stay in the Czech Republic, as this is given only to its citizens (Article 14 (4)). Nor does any catalogue of internationally protected human rights contain the right of a stranger to enter and stay in the territory of a foreign State; certain international guarantees are preserved only in the case of a state-terminated foreign residence. The Supreme Administrative Court has not convinced the complainant that a decision not to grant a visa over 90 days could have interfered with his right to life and the right to family and private life, so that this decision should be subject to judicial review. Therefore, the conditions for a substantive review of the contested decision not to grant a visa were not imposed in the present case as the complainant is not entitled to receive a visa. "The exclusion of a decision not to grant a visa from judicial review is not contrary to the constitutional order, so the Supreme Administrative Court found no reason to submit a motion to the Constitutional Court for the annulment of the provisions of the Act on the residence of foreigners'. Similarly, the legal sentence of the judgment in sp. zn. 9 As 95 / 2008 (No 1955 / 2009 Coll. NSS) reads:" The refusal to enter the Czech Republic in the form of a decision not to grant a visa for a stay of more than 90 days for the purpose of employment constitutes the exercise of a discretionary power of the State and, in the present case, if the alien is not guaranteed judicial protection, this cannot be regarded as contradictory to Article 36 (2) of the Charter. Strangers of the constitutionally guaranteed right of entry and residence on the territory of the Czech Republic do not testify, and therefore the non-visa itself cannot without further breach its right to family life. "At the end of the preamble to that judgment, the Supreme Administrative Court stated that..." in the light of future developments, in particular Community legislation does not rule out the need for futuro to deal with and seek new solutions to the legal exclusion in question (and in particular its effects). "Similarly, the nature of the visa decisions and their review were also expressed by the courts in the judgment approved for publication sp. zn. 2 As 29 / 2003 (No 224 / 2004 Coll. NSS).

28. Article 36 (2) The Charter may be invoked by any person in accordance with the procedure laid down in his or her right in an independent and impartial court and in specified cases by another authority. Article 36 (2) The Charter may be applied to the court to examine the lawfulness of such a decision, unless otherwise provided for in the law, who claim to have been shortened on his rights by a decision of a public authority. However, the review of decisions relating to fundamental rights and freedoms under the Charter shall not be excluded from the jurisdiction of the court. Article 4 The Constitution is fundamental rights and freedoms under the protection of judicial authority. Article 6 (1) of the Convention, guaranteeing the right of any person to have his case dealt with fairly, publicly and within a reasonable period of time by an independent and impartial tribunal established by law, which shall decide on his or her civil rights or obligations or the validity of any criminal charges against him. First of all, the Constitutional Court notes that the cited Article 36 (2) of the Charter (and, mutatis mutandis, Article 6 (1) of the Convention) constitutes a general guarantee of the right to a fair trial and therefore also of judicial review of decisions of public authorities, but also provides the legislator with the possibility to rule out judicial review of the lawfulness of decisions of a public authority by law. However, even in the form of a law, it is not possible to exclude the examination of decisions relating to fundamental rights and freedoms under the Charter.

29. It is therefore essential for the decision on the proposal to answer the question whether the decision not to grant a visa may interfere with a fundamental right or freedom guaranteed by the Charter or by constitutional order. In order to interpret a competent exclusion which constitutes the limits of a subjective public right to judicial review of a decision of a public authority within the meaning of the Article of the Charter, and in its application, its substance and its meaning must be investigated and not be misused for purposes other than those for which they were established. They cannot be interpreted extensively but strictly, with doubts as to whether or not an action can be reviewed, it is always necessary to conclude that it can be reviewed. Moreover, the procedural right should not hinder the parties, but should provide fair protection for their subjective rights [see page III of ÚS 2556 / 07 of 22.7.2009 (N 164 / 54 of the SbNU 93)].

30. As is apparent from the above outline of the relevant case-law, throughout the period of application of the Law on the residence of foreigners, the decision-making practice of both the Constitutional Court and the Supreme Administrative Court is established that there is no right of residence in the Czech Republic from the Charter or from international human rights treaties. They are therefore not entitled to a residence visa. In the quoted finding of sp. zn. Pl. ÚS 26 / 07 (see above), the Constitutional Court concluded that the Charter guarantees foreigners rights in which they can intervene by decision on administrative expulsion. This was also the case with the statement of the finding that the relevant competent lockout was abolished. Contrary to the matter now under consideration, however, there is a fundamental difference corresponding to the differences between the two types of proceedings. The difference between the consequences of an administrative expulsion decision and the consequences of a decision not to grant a residence permit is essential, which are more obvious in the case of an administrative expulsion. Whereas, in the case of administrative expulsion, the termination of the stay of a foreigner in the territory, which is linked to the establishment of the time of departure from the territory and the period during which it is not possible for a stranger to enter the territory (§ 118 (1) of the Aliens' residence law, as amended), does not have such consequences of prima facie residence (visa, including a visa). Forced travel of a stranger, which could be linked to a violation of the fundamental rights and freedoms of a stranger, which is subject to judicial review on the basis of an administrative expulsion decision, following the effects of the finding in point Pl. The direct consequence of the non-issuance of the visa is not forced return to the home State and the associated risk of maltreatment or harm in the home State. That's what the decision on administrative expulsion is all about. Without this decision, a stranger cannot be extradited to the home state. If decided in the future, the alien shall have access to judicial protection through an action against an administrative expulsion decision. In addition, the action against the expulsion decision has a suspensive effect on the enforceability of the decision (§ 172 (3) of the Aliens' Residence Act, as amended by Act No 161 / 2006 Coll.), with the exception of expulsion on grounds of a threat to state security. The applicant may agree that the administrative expulsion procedure and the procedure for issuing the visa are procedures with different subjects and that the grounds for not granting the visa will not primarily be examined in the administrative expulsion procedure. However, the Act on the residence of foreigners, as amended, does not imply (see § 171 and 172) that the applicant is in any way limited in the objections of the parties to the circumstances of the non-issuance of the visa, and even the misconduct of the administrative authority in the non-granting of the visa may give rise to the applicant's procedural success.

31. It is true that leaving the territory may be the indirect consequence of a decision not to grant a visa, as the alien does not have the title on which he would reside and therefore the obligation to leave the territory stems directly from the jurisdiction of the law itself on the residence of foreigners, as amended, (§ 17 and 65 and contrario). However, what has been said above is that the State is forced to leave the territory only as a result of a decision on administrative expulsion. In a comprehensive view of the relationship between a stranger and a state, or the possibility of a stranger to resist the administrative procedure of the State, it is essential that the final act, which is truly truly capable - as the Constitutional Court has already pointed out in the repeated finding - of intervening on some of the rights of the fundamental rights category, can be subject to the control of an independent court. So not all the partial steps of state power, but the key ones do. The level of these considerations appears to be adequate and sufficient if the procedure in question was carried out in an administrative level. Such procedural arrangements do not necessarily mean an unacceptable concentration of power at the Ministry of the Interior or its organisational part. In the finding of sp. zn. The Security Clearing Authority, which is responsible for verifying the conditions for issuing the certificate - and which therefore carries out a certain service to the State and clearly represents its interests - also decides on the issue of an administrative decision and the appeal against it. In a situation where there is no review by an independent and impartial body, the person examined is practically subject to the will of a single institution which, by the nature of the case, cannot be regarded as independent or impartial.... It is therefore clear that the contested legal regulation (i.e. Article 73 (2) of Act No 148 / 1998 Coll.) essentially contradicts the very meaning of Article 36 (2) of the Charter '. In the question of foreign law under examination, the assumption of that conclusion - the absence of a review of the intervention into the individual sphere by an independent and impartial body - is not met in a comprehensive view of the management. In addition, it can be added that as of 1 January 2011 the review of the administrative decisions not to grant a visa has been entrusted to the Commission for decision-making on the residence of foreigners. Although it is an organisational part of the Ministry and the Minister of Interior appoints and rescues the Chairman and other members of the Commission (Section 170a (1) and (3) of the Act on the residence of foreigners, as amended by Act No. 427 / 2010 Coll.), its members are independent in their decision-making at the Ministry (paragraph 9 of the same provision). The independence of decision-making is also strengthened by the organisation of the Commission; the latter acts and decides in the three-member chambers, with the majority of the members of the Chamber being experts not included in the Ministry (Section 170b of the Act on the residence of foreigners, as amended by Act No. 427 / 2010 Coll.).

32. As regards the argument that a decision not to grant a visa may result in a breach of the rights guaranteed by Article 10 (2) of the Charter, since if a stranger stays on the territory for a longer period of time, he may establish a family link there, he may also rely on the above. In fact, it can only intervene in private and family life if a decision directly leads to the forced abandonment of a country that is only yet to be broken. The absence of a visa itself does not have that effect. This is evidenced by the background case of Mrs R., who arrived in the Czech Republic at the beginning of 2007, and since then her applications have been repeatedly decided not to issue a visa. Nevertheless, it is still here, and the negative decision therefore did not affect its private links here.

33. Although the specific control of constitutionality relates to the provisions of the law used in a particular procedure, the Constitutional Court deals with its general effects on legal relations in the review, without limitation in the case at hand. But, of course, even though the provisions do not appear unconstitutional in the general context, they may reveal its flaw. In the background case, Mrs R. was not found to be such. On the contrary, the description of her case and the list of proceedings which have taken place within it demonstrate that the guarantees granted to her rights are sufficiently effective. The last issued visa for the purpose of suffering expired on 29 February 2008. In addition, this is a visa for the purpose of suffering only by an additional institution to be used as a rule when persons declare short-term obstacles to travel to the country of origin (see Section 33 (1) of the Aliens' residence law, as amended; The reason report has exemplary marked long-term bedridding or waiting for the transport link). Nevertheless, the appointed person is still in the Czech Republic and tries to legalize his stay through a range of institutes offered by the Act on the residence of foreigners or the Asylum Act. All such applications shall be subject to the appropriate procedure. The administrative expulsion procedure was stopped at the very beginning due to the opinion of the Ministry of the Interior on the impossibility of travel due to the security situation in the home country. Therefore, there is no indication that the model set has failed and that, in the underlying case, the fundamental rights of foreign persons would already be affected at the stage preceding the administrative expulsion procedure. The Constitutional Court therefore concludes that it is insisting on the conclusion that, in the case of a decision not to grant a visa, there is no possibility of interference with fundamental rights and freedoms. It is therefore the legislature's competence to exclude this procedure from judicial review without thereby contravening Article 36 (2) of the Charter.

34. It was also impossible to fully ignore the fact that the declaration of the unconstitutional nature of the contested provision would also have resulted in visas not awarded to foreigners applying for them abroad, which, however, are not capable of affecting the fundamental rights of foreigners or the appellant's opinion.

35. These grounds led the Constitutional Court to conclude that the application should be rejected under Paragraph 70 (2) of the Constitutional Court Act.

36. The oral hearing was abandoned under Paragraph 44 (2) of the Constitutional Court Act as it could not be expected to further clarify the case and all participants agreed to this procedure.