Found at the Constitutional Court of the Czech Republic No. 269 / 1996 Coll.

Paragraph 250f of Act No. 99 / 1963 Coll., Civil Code, as amended, is hereby repealed on 1 May 1997.

By order of sp. zn. IV. ÚS 252 / 95 of 13 June 1996, the IV Chamber of the Constitutional Court (hereinafter referred to as "the Chamber ') suspended proceedings in respect of the constitutional complaint by J. M. The complaint is directed against the judgment of the Regional Court in Brno No 29 Ca 393 / 94 - 24 of 7.8.1995. The reason for the suspension of proceedings was that the Chamber, after reconsidering all the facts in detail, and in particular taking into account the decisions of the European Court of Human Rights, concluded that the provisions of Paragraph 250f of the Civil Code (hereinafter referred to as" o.s.') are essentially unconstitutional and that this inconstitutionality cannot be eliminated solely by interpretation and appeal to its strict and sporadic use.

The above conclusion is based in particular on the fact that the administrative judiciary of the Czech Republic is designed as a one-stop procedure, without the possibility of any, albeit exceptional, appeal. To the common argument of the courts that the provision of Article 96 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) provides that the hearing before the Court is oral and public, but exceptions are provided by law, the Senate considers that this power of the legislature must be interpreted in all other contexts, in particular in the light of Article 38 (2) of the Charter of Fundamental Rights (hereinafter referred to as the Charter) and Article 6 (1) of the European Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention). That provision of the Constitution understands the Senate in such a way that the law may exclude the public and the participation of the person concerned only in certain stages, such as the appeal or appeal proceedings. However, the principle of public conduct must be respected in at least one instance. In this context, the Senate refers to the judgment of the European Court of Human Rights in the Hakansson case 1986 (A - 99) and to some other opinions of that court. In the opinion of the Chamber, it is not possible to accept the common objection of the courts that similar proceedings are, for example, proceedings under § 243a CS and some others, since these are proceedings where at least one instance has already been heard by the party.

Where the rules in force in the administrative justice sector, and in particular § 250f o. s. s., make it possible not to order proceedings, even if the administrative chambers of all stages of the courts are the first and only judicial tribunal to which the right of judicial protection is exercised, the Chamber considers that this provision is contrary to Article 38 (2) of the Charter and Article 6 (1) of the Convention.

Last but not least, the Senate argues that, in the absence of a public hearing and any appeal against a decision given in such proceedings, the participant is deprived of any possibility of seeking respect for the principles of the fair process, such as to object to the bias of the judge, to require an interpreter, etc.

For all the above reasons, the Senate decided, pursuant to § 78 (2) of the Law on the Constitutional Court, to stay the proceedings and made an application to the full court for annulment of the provisions of § 250f o.s.

The submission submitted by the Chamber of Deputies of the Parliament of the Czech Republic on 22 July 1996 and signed by the President of the House by Miloš Zeman states that the procedure according to Part Five of the Act is designed as a specific process in which the court is based on the legal situation which was here at the time of the administrative decision. The negative enumeration in § 248 o. s., constitutes a constitutional allowed breakthrough into the general principle, since it is prohibited from the jurisdiction of the court to exclude only the items referred to in Article 36 (2), second sentence of the Charter. In the opinion of the Chamber of Deputies, the provisions of § 250f o.s.j. break the principle of the immediate and oral procedure, but on the other hand it complies with the requirements of the appeal, where the taking of evidence is not carried out and the court is neither obliged to amend or confirm the administrative decision. However, the conditions for the application of this provision should be interpreted strictly and strictly. It is also necessary to interpret the whole provision in the context of § 250j (2) s. o. s. In the Chamber of Deputies' view, the problem is that the contested provision is likely to be used by the courts in a number of cases in an attempt to simplify and speed up the procedure, but in the end, such a procedure will prove incorrect. The Chamber of Deputies therefore considers it unconstitutional to apply the provisions of § 250f o.s., but not its own text.

Finally, it is noted that the law was approved by the necessary majority of the Members of the Federal Assembly on 5 November 1991, signed by the relevant constitutional authorities and duly declared. In an additional statement of 6 September 1996, the Chamber of Deputies of the Parliament of the Czech Republic agreed to take a decision on the matter without oral hearing, as provided for in Paragraph 44 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court.

The observations submitted by the Ministry of Justice of the Czech Republic at the request of the Constitutional Court on 22 July 1996 and signed by the Director of the Legislative Department JUDr. Milan Kamlach state that the contested provision is based on the needs of the administrative justice as a judicial appeal check on the legality of the administrative decision and on the fundamental differences of the administrative justice from civil and criminal proceedings. This fundamental difference is mainly that the facts are stabilised at the time of the action and cannot be altered. The Court of First Instance is bound by the facts as asascertained by the administrative authority, it cannot itself make new factual findings and, on the basis of them, rule on the substance of the case. If the factual findings were insufficient and did not allow an assessment of whether a decision was given in accordance with the law, the court should repeal such a decision even if the parties would make proposals to supplement the evidence. It also points out the need to examine the contested provision in the context of the provision of Paragraph 250j (2) EC, when the court decides after the hearing.

It is further noted in the opinion of the Ministry of Justice that § 250f o. s. CS applies not only to simple cases, but also to cases where the contested decision is unverifiable for inclarity or lack of reasons. As regards the "simple case ', judicial practice underlines this concept and cases where, on the contrary, it is clear that the facts were not correctly established by the public authority. With regard to the annulment of the decision on grounds of its non-examination for incomprehensiveness, the judicial practice includes a variety of substantive and procedural defects in administrative acts which are common to them that it cannot be ascertained reliably whether and how they intervened in the rights and obligations of the applicants. In the group of unexamined decisions, for lack of grounds, the judicial practice includes, in particular, cases where the reasoning is missing, although the procedural regulation provides for that requirement in a particular case, as well as cases where the administrative authority could and should have taken advantage of the discretion but did not make the necessary findings on that consideration.

In the view of the Ministry of Justice, the purpose of § 250f o.s.z. is not to withdraw the right to public consultation where the direct participation of the parties concerned can be of any benefit to the case, but the purpose is to limit the hearing where it is clear that the hearing would be pointless and could have no effect on the outcome of the proceedings. From this point of view, this provision can therefore be regarded as a legal exception within the meaning of Article 96 (2) of the Constitution, without contrary to the purpose of the rights guaranteed by Article 38 (2) of the Charter. There is no doubt that the system of administrative justice of the Czech Republic is not in full compliance with Article 6 (1) of the Convention, which the Czech Republic, as a Member State of the Council of Europe, is bound by, since the review of the legality of decisions of administrative bodies by general courts pursuant to Part Five CS is not sufficient unless it is preceded by decisions of an independent and impartial body which would have the power to decide not only from a legal and factual point of view. However, the solution to this problem is extremely difficult, related to the functioning of the entire executive, to its structure, to the territorial order of the State and to the definition of the jurisdiction of the Supreme Administrative Court. It is therefore common ground that the repeal of the provision itself, § 250f o.s., would not, in itself, result in the strengthening of the principles of a fair trial in the administration of the judiciary, but would often only lead to formal acts which would, however, significantly burden the courts. For all these reasons, the Ministry of Justice recommends careful consideration of the Senate proposal. In the event that the Constitutional Court concludes that the contested provision is unconstitutional, the Ministry of Justice considers it necessary to provide a longer period for the establishment of the conditions for the proper administration of the administrative justice.

After having examined all the above opinions and observations, the plenary of the Constitutional Court concluded that the draft Chamber was justified. The inconstitutionality of the provisions of § 250f o.s. does not result from the analysis of this provision itself, but in particular from the nature of the existing rules of the administrative justice in the Czech Republic. The administrative justice system is designed as a one-stop procedure, without the possibility of proper or exceptional remedies. Thus, the administrative chambers of the general courts of all grades are the first but also the only judicial tribunal with the right to judicial protection. If the legislation in force, in particular § 250f o.s., allows for this organisation of the administrative judiciary not to order proceedings, depending on the court's reasoning, and the opinion of the parties on the need or the need for their hearing is irrelevant, such a situation does not respect the provisions of Article 38 (2) of the Charter and Article 6 (1) of the Convention.

In this view, neither can the Constitutional Court change the fact that, in the administrative judiciary, the courts examine only the legality of the decision and are bound by the facts as established by the administrative authorities. In the administrative judiciary, the findings of fact cannot be disregarded or limited to the examination of the legality of the decision, without the court also dealing with matters of fact. This results, inter alia, from the provision of § 250j (2) o. s. s., which requires the court to assess whether the finding of the facts is sufficient to assess the case and whether the finding of the facts on which the administrative decision was based is not contrary to the content of the files. If that is not the case, the court must revoke the contested administrative decision and refer the case back to the administrative authority for further proceedings. In such an evaluation and survey, the direct participation of the parties concerned may be for the sole benefit of the matter. In this respect, reference can also be made to the judgment of the European Court of Human Rights of 1994 in Fredin (A - 280), where, despite the State's objection, the Supreme Administrative Court can only annul the decision, but cannot replace it by any other decision, and can therefore only decide on the basis of the files and without hearing the complainant, clearly state that, if the Supreme Administrative Court is the first and only judicial tribunal to decide on the case, the non-public hearing of the case is a breach of Article 6 (1) of the Convention. The Court of First Instance also found that the assessment of legal issues was not possible without taking into account the relevant issues of fact.

The public is protecting the parties from a secret justice out of control and is also one of the means of creating and maintaining confidence in the courts (judgment of the European Court of Human Rights in Pretto, 1983, A - 71). From a constitutional point of view, it can be accepted that negotiations should not be ordered in cases where the parties expressly or silently waive that right (see likewise the judgment of the European Court of Human Rights in Hakansson and Sturesson, 1990, A - 171) - e.g. in the manner in which Law No 182 / 1993 Coll., on the Constitutional Court, is dealt with in Paragraph 44 (2).

The Constitutional Court's Board also agrees with the opinion expressed by the Senate at the end of its order to stay proceedings, i.e. that the non-public hearing of the case and the absence of any appeal against the decision given in such proceedings deprives the party of the possibility of requesting respect for the principles of the fair process, such as to object to the bias of the judge, requesting interpretation in the mother tongue, etc. In this context, the plenary of the Constitutional Court merely notes that this constitutional problem arises also in private negotiations in other branches of the judiciary.

On the other hand, the Constitutional Court is aware that, from the point of view of respect for fundamental human rights, the existing system of administrative justice in the Czech Republic is particularly problematic, in which the absence of an independent body which decides "the law itself," in conjunction with the limited jurisdiction of the courts, is contrary to the obligations arising for the Czech Republic under Article 6 (1) of the Convention. The Constitutional Court is fully aware that such an institution can hardly become the administrative chambers of the general courts in today's form. It also does not consider that the correction of the existing situation can only bring about the abolition of the provisions of § 250f or other sub-provision o. s. s., it is also aware that the adjustment is likely to be necessary if, from the point of view of the constitutional authority, the annulment of an administrative decision without any action in matters of unexamined and lacking justification, as well as the procedure in this way with explicit or otherwise expressed consent of the parties. Last but not least, it is also clear that the annulment of the contested provision will entail an increase in their burden for the courts, even if accompanied by that positive regulation.

However, in the view of the Constitutional Court, all the problems and context indicated are merely grounds for delaying the operative part of the operative part of the annulment of the provisions of § 250f o.s., However, nothing changes the fundamental view that, for the reasons set out above, this provision should be repealed as unconstitutional.