The Constitutional Court found No. 276 / 2001 Coll.

Part Five of the "Administrative Justice" (§ 244 - 250s) of Act No. 99 / 1963 Coll., Civil Code, as amended, is hereby repealed on 31 December 2002.

During the years 1999-2001, several proposals were submitted to the plenary of the Constitutional Court in order to declare the inconstitutionality of the specifically defined provisions of Part Five of Act No. 99 / 1963 Coll., the Civil Code of Judicial Procedure (hereinafter referred to as "o.s. ') on the Administrative Justice. The first is the proposal put forward by M. C., together with a constitutional complaint, on the annulment of the provisions of § 250d (3) and Article 250j (4) (c) of the proposal, the substance of the proposal is an objection to the inconstitutionality of a concept which does not allow any appeal against decisions given in the administrative proceedings, even in those cases where the decision given is not a decision on the substance of the case, but for example the procedure is terminated for alleged defects in the application, non-payment of the judicial fee, etc., without, contrary to the rules in force in the ordinary civil proceedings, it being clearly incorrect or hasty to be reparted. This is also related to the fact that these decisions, which in effect mean that the right to judicial protection is denied, are not decided by the Senate but by the President of the Chamber. At the public oral hearing of the Constitutional Court on 27 June 2000, and then by written letter of 5 September 2000, the appellant's lawyer changed and supplemented the application. First of all, he stated that after the submission of his application, the Civil Code was amended by Act No. 30 / 2000 Coll., including in the originally contested provision § 250d (3). Although this law will take effect on 1 January 2001, it appears to make its proposal unnecessary in this part, even if it is evidence that the legislator seems aware of the shortcomings of this provision. However, given that the relatively extensive amendment mentioned above did not affect the fundamental shortcomings of the entire administrative justice system, the Constitutional Court also suggested that the annulment of the entire part of the fifth one should be considered by the Constitutional Court in order to amend its proposal, in particular, that the legislator must be aware of the shortcomings that the current regulation of the administrative justice has had, and it is therefore surprising that in more than seven years' time it has failed to implement the Constitution of the Czech Republic (hereinafter referred to as" the Constitution ') and to establish the envisaged Supreme Administrative Court, while it may have joined the establishment of the Ombudsman, who does not know the Constitution. It stated that it did not call for a multi-stage procedure, but for a mechanism which would allow the apparent error of the administrative courts to be rectified, and in particular for the harmonisation of the case-law of those courts, since in a number of cases the regional courts decide the same thing quite differently. So today's situation is that only the Constitutional Court can make the correction of obvious errors, which is undoubtedly not his job. The appellant further stated that the mere deletion or cancellation of the provisions of Paragraph 250j (4) (s) (which was its original proposal) cannot in itself create a meaningful system. It is therefore convinced that it is necessary to compel the legislator to deal with this problem at last, and in his view this can only be achieved by abolishing the whole of the fifth part of the Treaty.

The proposal by R. P. submitted on 4 October 1999, together with the constitutional complaint, requires the Constitutional Court to abolish the word "lawfulness' (virtually the verbal connection in which the form of this concept occurs) in the specifically specified provisions of the fifth o. s. s. (the word lawfulness in § 244 paragraphs 1 and 2, in § 245 paragraph 1 of the word" lawfulness' and "lawfulness of the earlier administrative"). It is further proposed that the full provision of Paragraph 245 (2) be deleted, in § 247 (1) the words "the lawfulness of this', in Article 249 (2) the words" the lawfulness of the contested body ', in Article 250i (1) the words "lawfulness', in Article 250i (3) the words" the lawfulness of the contested body ', and finally, it proposes the annulment of the whole provision of Paragraph 250j (1).

In the appellant's view, the judicial review of an administrative decision limited only to the examination of its legality constitutes a fundamental step in the right to a fair trial. The Court of First Instance is required to discuss the matter in a comprehensive manner (that is to say, even in substance), as required by Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention). The provisions which are contested do not allow the Court to examine the factual and factual aspect of the decisions contested by the action, a situation which is contrary not only to the provision cited in the Convention but also to the case law of the European Court of Human Rights ("the ECHR '). In this regard, the appellant draws particular attention to the judgment in Albert et Le Compte (10.2.1983, A 58, § 29), in which the Court held that the decision of an administrative authority must be subject to subsequent control either by another body meeting the requirements of Article 6 (1) of the Convention or by a court which has so-called full jurisdiction. Similarly, the ECHR decided in the Ozturk case (21.2.1984, A 73, § 67) and, in the same sense, other cases were decided.

The appellant also recalls that the Constitutional Court of the Czech Republic, in its finding of 27.11.1996 sp. zn. Pl. ÚS 28 / 95 (No 1 / 1997 Coll.), also stated that, in our legal order, the right to a full review of the decisions of the administrative authorities by an independent and impartial tribunal which would meet the requirements of Article 6 (1) of the Convention, namely a tribunal which would find not only in matters of the legality of the administrative decision, but also in the state of fact (i.e. in full jurisdiction). In the same finding, the Constitutional Court also draws attention to the Resolution "On the protection of the individual in relation to administrative acts', approved within the Council of Europe by the Committee of Ministers on 28.9.1977, namely the principle I (1), which states that" Any administrative act which might affect the rights, freedoms and interests of the party concerned shall be given the opportunity to express its views on the facts and on the evidence '. Finally, the appellant recalls that the ESLP expressed its view on the Czechoslovak (and thus de facto on the current Czech legislation in the field of administrative justice) in the Lauko ca Slovak Republic judgment of 2 September 1998.

Finally, the appellant is also the Fourth Chamber of the Constitutional Court, which, in two cases, suspended the proceedings for a constitutional complaint pursuant to Article 78 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, and initiated proceedings for the assessment of the constitutionality of the two provisions of Part Five.

The first of the cases relates to the complaint by M. M., which linked to the constitutional complaint the proposal for the annulment of § 139 (c) of Act No. 50 / 1976 Coll., on zoning planning and construction (construction law), as amended, according to which only a neighbour who had a common boundary of the land with the builder could be considered a participant in the building process. The Constitutional Court complied with this proposal in a separate procedure under the sp. zn. Pl. ÚS 19 / 99 and the contested provision of the building law was annulled by the finding of 22 March 2000 No. 96 / 2000 Coll., on the date of the declaration of the finding in the Collection of Laws.

In the opinion of the Fourth Chamber of the Constitutional Court, however, in addition to the provision of the building law cited, the reason for the complainant's exclusion from the possibility of bringing an administrative action was also the provision of Paragraph 250 (2) (c), which the right to bring an action is linked to the condition of participation in an administrative procedure. This provision appears to be contradictory to Article 36 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter), for the following reasons:

The definition of the heading of the participants in the administrative procedure is laid down in Act No 71 / 1967 Coll., on Administrative Procedure (Administrative Regulation), § 14. In paragraph 1 of this provision, the general definition of a party to an administrative procedure shall be expressed as being the one whose rights, protected interests or obligations are to be dealt with in the proceedings, or whose rights, protected interests or obligations may be directly affected by the decision. A party shall also be a party to the proceedings who claims that a decision in its rights, protected interests or obligations may be directly affected until the contrary is proved. The scope of Article 36 (2) of the Charter, as defined in the Rules of Procedure, is undoubtedly conventional. Pursuant to Article 14 (2) of the Rules of Procedure, the party to the proceedings is also the party to whom the special rule confers such status. However, there are a number of special rules in the sectors of administrative law in which the concept of a party is specifically and often defined in a more narrow way than that which would correspond to the general definition contained in Paragraph 14 (1) of the Administrative Regulation. [As an example - except for the cases already under the Constitutional Court concerning certain types of construction proceedings - it is possible to mention, for example, § 17 (3) of Act No. 44 / 1988 Coll., on the Protection and Use of Mineral Wealth (Upper Law), as amended, where only the applicant is a party to proceedings for the establishment of a protected bearing area, or § 9 (8) of Act No. 229 / 1991 Coll., on the modification of property relations with land and other agricultural property, as amended, so-called the Land Act, which considers only a person entitled to be a party to the proceedings, and the Land Fund, but no longer, for example, to whom the rights attaching of a material burden of interest are conferred.]

Therefore, in some cases, in some cases, there is no active legitimacy for bringing an administrative action for bodies whose rights or obligations have obviously been discussed or may have been affected in their rights by a decision of a public authority. It cannot be excluded that these rights can also be fundamental (in proportion to the above-mentioned special rules, in particular the right of ownership would be taken into account). Paragraph 250 (2) CS therefore creates inequality and is, in the opinion of the Chamber, not only contrary to Article 36 (2) of the Charter but also does not comply with the requirement under Article 6 (1) of the Convention, namely the requirement that everyone whose civil rights or obligations are concerned must be guaranteed the right of access to a court.

Finally, the Fourth Chamber of the Constitutional Court, in the context of the decision on the constitutional complaint of RNDr. S. D., suspended the proceedings and submitted to the plenary of the Constitutional Court for consideration the constitutionality of the provision of § 250a o. s. determining that only a lawyer (or notary pursuant to amendment No. 30 / 2000 Coll.) may be a binding representative before the administrative court. In the Chamber's view, in a situation where a significant part of the administrative court's agenda is tax matters and where Act No. 523 / 1992 Coll., on Tax Advice and the Chamber of Tax Advisers of the Czech Republic, states that the tax advisers are entitled and obliged to protect the rights and legitimate interests of their client while consistently using all legal means to protect their rights, this is a state of clear inconsistency of the laws of the same force, which should undoubtedly not exist in the rule of law. If, on the basis of the available means of protecting the rights of the client for tax advisors, the Chamber considers that such a restriction lacks reasonable grounds and is, by its essence, a restriction on the right to conduct business freely under Article 26 (1) of the Charter. Even if, pursuant to paragraph 2 of this Article, a law may lay down conditions and restrictions for the pursuit of certain professions or activities, the principles laid down in Article 4 (3) and (4) of the Charter must be respected when establishing such restrictions. Moreover, if the legislator wanted to exclude the right of tax advisers to act before a court, it should have done so explicitly in Act No. 523 / 1992 Coll. Thus, the inconstitutionality of the provisions of § 250a o. s. o. s., sees the IV Chamber of the Constitutional Court in the omission of the legislature to include in the list of persons authorised to represent tax advisors before administrative courts (of course only to the extent of authorisation under special regulations, as the amendment of the o. s. If he did not do so, this provision has the characteristics of libel when, from a group of persons undoubtedly qualified to provide legal assistance within the meaning of Article 37 (2), A group is excluded and, as a result of that exemption, the subject matter of its business laid down by another law is limited. For the sake of completeness, the Senate notes that the same applies to patent representatives (Act No. 237 / 1991 Coll., on Patent Representatives, as amended).

On 10 October 2000, the plenary of the Constitutional Court decided that all those proposals were to be joined together in a joint procedure and would continue to be conducted under a single sp. d.

Following the merger of cases, the Constitutional Court, together with a constitutional complaint, received a proposal from the Private Elementary School A. & J. s. s. r. o., on the annulment of § 250d (3) o. s. The Constitutional Court rejected the proposal on the grounds of litispendence and stated that the appellant had the right to take part in the hearing in sp. zn. Pl. ÚS 16 / 99 as an intervener. Similarly, the Constitutional Court decided by resolution sp. zn. Pl. ÚS 7 / 01 of 21.2.2001 on the proposal of Mr D. S. to repeal § 250i (1) o. s. s.

The Chamber of Deputies of the Parliament of the Czech Republic states in particular that Article 36 (2) The Charter expressly states that the judicial review of an administrative decision is based on a review of legality, namely that the court only reviews the legal assessment of the case. This principle of the Charter is then specified in the relevant provisions of the Act. On the proposal of the Fourth Chamber of the Constitutional Court for the annulment of § 250 (2) o. s., the Chamber of Deputies stated that Article 36 (2) of the Charter allows the Law of Review to exclude certain decisions, while at the same time determining that these must not be fundamental rights and freedoms. In accordance with this solution, some administrative decisions exclude examination. When considering Article 250 (2) (a) in relation to Article 36 (2) of the Charter, it cannot be concluded that it is unconstitutional, since it clearly states that anyone who claims to have been a party to an administrative procedure or was not, or should have, but should have been, and has been shortened by the administrative authority's decision in its rights may bring an action. The purpose of the review of administrative decisions is not to extend the range of participants to the administrative procedure which has already taken place because judicial control of the administration cannot be general. In the view of the Chamber of Deputies, the Court of First Instance does not rule directly on a law, but the subject of the procedure is an administrative act which is examined only in terms of legal compliance.

As regards the restriction of tax advisers to act before courts, the Chamber of Deputies considers them compatible with Article 26 (2) of the Charter. It states that while it is true that Law No 523 / 1992 Coll. refers to the provision of legal aid in the field of taxes, levies, charges and other similar payments, as well as in matters relating to taxes, the term "legal aid 'used here is not identical to the term" legal aid', which is laid down in Article 37 (2) of the Charter. The Chamber of Deputies considers only lawyers and notaries to be authorised to provide legal aid within the meaning of this Article in respect of civil proceedings. As part of the fifth o. s. o. As a support argument, the Chamber of Deputies also points out that a person with only a full secondary education can pass a qualification test for a tax advisor. For these reasons, the compulsory representation of § 250a o. s. CS does not consider that it is unconstitutional.

The Chamber of Deputies also drew attention to the latest extensive amendment of the o. s. s., discussed and approved by the Chamber of Deputies and the Senate, which responds not only to the necessary changes in the area of justice, but also seeks to remove the still problematic provisions that have often caused interpretative problems in judicial practice. The Senate of the Parliament of the Czech Republic commented only on the issue of compulsory representation by a lawyer when it stated that the purpose of the provision of § 250a o. s. s.), which was inserted into the law in the amendment at the end of 1991, was to ensure that the actions to review decisions of the administrative authorities were brought in a qualified manner and to avoid possible avalanche of lay submissions against administrative acts when they are all legally complicated cases for which legal education is necessary. At the same time, it appears to have been observed that the regulation of compulsory representation in the administrative judiciary does not differ from the similar institute in the appeal procedure and in the action for confusion. The conclusion of the Senate's observations states that, although it is in principle not impossible for the contested provision to be extended in such a way as to allow tax advisers to appear before the courts in matters relating to tax matters, this would, however, greatly affect the efforts of the legislators on qualified legal representation before the courts. The annulment of the contested provision could then lead to an increase in unqualified actions and an increased burden on the general courts.

On the other proposals, the Senate merely stated that it was not involved in the drafting of the contested provisions. These provisions have already been inserted by the Federal Assembly Act No. 519 / 1991 Coll., amending and supplementing the Civil Code and the notarial Order.

In its opinions on the various proposals, the Ministry of Justice stated in particular that the Charter in Article 36 (4) provided for a legal definition of the conditions and details under which the right to judicial review of decisions by a public authority could be claimed. It does so in its fifth part, defining the procedural conditions for the exercise of the rights of judicial review. Where that procedural provision provides, in the interests of the Court itself, for the possibility of action and of decision-making, for the requirements on the procedural requirements of the application, for the right of the court to request the removal of the defects of the action (where such a defect is prevented from being dealt with in substance) and for the court to stop the proceedings without taking a substantive decision on the application, such legislation shall not entail a disproportionate restriction on the right to judicial review pursuant to Article 36 (2) of the Charter. Similarly, this is the case in other cases where the law in Paragraph 250d (3) allows the court to terminate the proceedings. If that provision had not been included in the law, there would have been an insoluble situation, as the court should have done, for example, when the action was brought late, by an unauthorised person, or when the plaintiff took the action back, etc.

The Ministry of Justice further stated that it is beyond doubt that an appeal against a judicial decision is an important instrument in order to allow for the correction of flawed judicial decisions and thus to bring about a unification of judicial decisions. Therefore, one of the aims of the reform steps in the administrative judiciary is to establish an appeal, since, although multi-instance judicial decisions do not result directly from the Constitution and the Charter, it is necessary that the procedural regulation allows individual errors to be rectified and the uniformity of decisions within the administrative justice itself, and the correction of errors is therefore not transmitted via the Institute of Constitutional Complaints to the Constitutional Court. However, the legal amendment cannot be linked only to the provisions of § 250j (4) o. s. s., since, with the exception of the proceedings in cases referred to in § 250s (2) o. s.

The Ministry of Justice also stated from the point of view of de lehferend that, as regards legislative purposes in the field of administrative justice, it is aware that the current legislation is not satisfactory and must be replaced by a new one which meets both the requirements of the Convention and the constitutional order of the Czech Republic and that it must be a functioning, interconnected regulation with the reform of the public administration and the recdification of administrative procedures, and that it is acceptable from the point of view of expenditure from the state budget which such a project will require. The legislation in force reflects the time of its birth when the administrative justice system had to be established as an institution as quickly as possible and therefore the existing judicial system had to be used and the possibility of its burden-bearing. In the establishment of an administrative justice system, the consequences of the Convention, and in particular Article 6 (1) thereof, have not been fully foreseen for this judicial sector. The difficulties in finding an optimal and, at the same time, tolerable solution to the obligations arising from this provision were the main reason for delaying the establishment of the Supreme Administrative Court, as the administrative judiciary required a comprehensive solution. The provisions in force constitute an interconnected whole and intervening in the various provisions without amending the provisions in the following would make the adjustment impossible.

The Ministry of Justice further mentioned the discrepancy between Article 36 (2) of the Charter and Article 6 (1) of the Convention. It recalls that the ECHR has not submitted an abstract definition of the concept of "civil rights and obligations' and must therefore be based on the various decisions of this court, according to which a wide range of things that are still seen as public law are to be included in this concept. In so doing, the application of Article 6 (1) of the Convention tends to become increasingly widespread in the case-law of that court.

As regards Section 250 (2) CS, the Ministry of Justice does not have any doubts as to the constitutionality of this regulation in relation to decisions given in the administrative procedure in which the group of parties to this procedure is governed by the definition laid down in Section 14 (1) of the Administrative Regulation. It is clear, however, that many proceedings which are followed in accordance with the administrative rules are limited to the number of participants compared to the provisions of Section 14 of the administrative order, in such a way that not all persons affected by rights and obligations or whose rights are involved in the proceedings are participants in proceedings before the administrative authority and may defend their rights there, and it cannot be seen that there is inequality in these cases. However, in the view of the Ministry of Justice, the correction of this situation should be ensured by adjusting the specific provisions of administrative law in which persons concerned in their rights to participate in a particular type of administrative procedure are excluded.

As regards the issue of compulsory representation by a lawyer, the Ministry of Justice takes the view that the lack of orientation in the area of procedural law could be prejudicial to the person claiming an action or an appeal for judicial review. Therefore, the qualification conditions laid down by Law No 523 / 1992 Coll. for the exercise of the activities of a tax advisor appear to be insufficient for the Ministry of Justice for the administrative justice sector.

In general, the Ministry of Justice, in the event that the Constitutional Court came to the conclusion that the provisions under examination were unconstitutional, pointed out the need to retain the necessary time to implement the necessary legislative changes, if possible in a comprehensive way, in the context of administrative judicial reform.

On 7 June 2001, the Minister of Justice informed the President of the Constitutional Court of the state of the art of legislative work in the reform of the administrative justice system that the reform of the administrative justice system constitutes an extremely demanding legislative project not only in terms of the scope of the legislative draft itself, but above all in terms of finding optimal substantive solutions, as it will substantially affect both the rights of persons who can call for judicial protection and the activities of public authorities. The Ministry of Justice therefore prepared "Initial thesis for preparation of the concept of administrative justice and possible variants of its organisational structure" in 2000. This background was presented by the Government to both chambers of Parliament in July last year, and after the Chamber of Deputies recommended by its resolution of 24 January 2001 to the Government a variant which received majority support, work on the drafting of the bill could be launched. A committee consisting of leading experts in legal theory and practice was set up and the constitutional committees of both chambers of Parliament were asked for cooperation. Work proposals for legislative curricula are currently being discussed and the Minister assumes that the proposals will be submitted to the Government for consideration in August this year. The new legislation on the administrative justice sector is expected to come into effect on 1 January 2003.

After considering the arguments and opinions set out above and after hearing the statements of the Minister of Justice and the representative of R. P. at the oral hearing, the Constitutional Court concluded that part of the fifth o. s. s. It followed the following considerations.

There is no dispute that the way in which the administrative judiciary was restored by the amendment of 1991 was understood as a temporary solution at the time of its creation, knowing the necessity of carrying out the overall recdification of proceedings and the creation of a meaningful system of administrative courts. Given that commitments under the Convention (No 209 / 1992 Coll.) have been accepted without reservation in a short time, which makes the area of judicial control of the public administration's activities significantly wider, the provisional provisions have become even more problematic on many points.

The fact that the Constitution has explicitly incorporated the Supreme Administrative Court into the system of courts without delaying or imposing specific tasks on specific authorities in the transitional and final provisions of the Constitution, as well as the time limits for the establishment of constitutional status, has been added to this situation. The constitutional order therefore envisages the peak of the system of administrative courts, while the law governing the judicial sector (part five (a)) is built quite differently when it creates three independent levels of decision-making on its own, with the exception of pension matters being final.

Furthermore, the current system does not provide judicial protection against unlawful practices or public administration interventions which do not have the character and form of an administrative decision (in particular, immediate interventions or interventions, certification with often significant legal consequences, etc.), is not a means of judicial protection against administrative inaction, administrative courts cannot decide directly on the validity of public administration acts (e.g. whether it is a minor act or whether the decision granting authorisation or imposing an obligation has expired - e.g. over time, etc.). In these cases, too, the Constitutional Court is often subdued.

A separate problem is the so-called administrative punishment, where, although the Constitutional Court found out from 17.1.2001 sp. zn. Pl. ÚS 9 / 2000 (No 52 / 2001 Coll.) on the abolition of Paragraph 83 (1) of Act No. 200 / 1990 Coll., on infringements, as amended, which excluded from the judicial review of decisions which penalised the least serious infringements, has moved the matter somewhat forward, but nevertheless this area is not in line with the Convention, since, according to the ECHR case law, the "criminal charges' within the meaning of Article 6 (1) are practically the proceedings of any penalties imposed by the administrative authorities for misconduct or other administrative misconduct, as well as well as well as well as the penalties imposed in disciplinary or disciplinary proceedings (civil servants, soldiers, police officers, etc.), or imposed in the earlier proceedings by law. The Court must then be given the power to consider not only the legality of the sanction but also its proportionality.

These reservations, together with the fact that our administrative courts have their decision-making process adapted in accordance with Part Five, p. 1, justify the fact that the current administrative judiciary in the Czech Republic, in terms of process and competence, is generally in line with the Constitution and the Charter, but does not comply with Article 6 (1) of the Convention when the Convention clearly requires a court or tribunal to rule on the law (i.e. on the substance and not on the legality of the previous administrative act). Thus, in our regulation, the court can remove only an illegal decision, but not a factually defective one. In other words, the administrative discretion of the dependent authority cannot be replaced by an independent judicial consideration. If this is the case in matters of 'civil rights and obligations' and 'administrative punishment' within the meaning of the Convention, this situation is unconstitutional, it will stand up in other matters.

It follows from that analysis of the current situation that it is possible to attest to those appellants who state that, in their part of the fifth governing administrative justice, whatever the specific nature of the matter, they are satisfied with the mere control of legality and in their provisions only with this control, they are contrary to Article 6 (1) of the Convention and, therefore, to the constitutional order of the Czech Republic. In the view of the Constitutional Court, this deficit cannot be resolved in any other way than by a fundamental change in the concept of administrative justice, and it will be the case for the legislator, in particular in the light of the rich case-law of the ECHR, to ensure full judicial control in all areas considered by that case-law as "civil rights or obligations' within the meaning of Article 6 (1) of the Convention, or classified under the term" any criminal charges'.

As regards the issue of the constitutionality of the procedural regulation, which the administrative judiciary limits to one degree in most cases, it should be noted that neither the Constitution nor the Charter of Multi-Level Judgments undermines as a fundamental right. Nor can such a right be derived from international agreements. Article 2 Protocol 7 to the Convention provides for the right to at least one remedy before a court of a higher degree only in more serious criminal matters. The same law in criminal proceedings provides the condemned by Article 14 of the International Covenant on Civil and Political Rights (No 120 / 1976 Coll.). On the other hand, however, it cannot be disputed that the requirement to establish a mechanism for the unification of caselaw (even if only by way of a complaint or another special appeal) arises from the requirements imposed on a State which defines itself as a State of law. The absence of such a mechanism in its consequences also leads to insufficient pressure on the cultivation of the public administration as a whole and to the feelings of the authorities of that administration, often justified by the fact that they are subject to judicial control, which lacks a unifying function. In addition, the absence of any means of unifying the case-law of the administrative courts leads to the Constitutional Court acting as "unionators' contrary to its position. This situation creates a fundamental inequality between legal and natural persons, on the one hand, and administrative authorities, as the State has no means of preventing itself from sometimes diametrically different decisions by administrative courts. In other words, the executive is not allowed to initiate an assessment of administrative caselaw by a judicial authority, if he considers that he is contrary to the law.

As regards the proposal of the Fourth Chamber of the Constitutional Court to abolish Paragraph 250 (2) (a), it is clear from the present regulation that the condition of active legitimacy for bringing an administrative action by a prior party to an administrative procedure may in some cases lead to a situation where, in the right of access to a court, the parties whose rights or obligations have obviously been negotiated or may be affected in their rights by a decision of the public authority (and it cannot be excluded that it may be a fundamental right, such as the right of ownership). There is therefore an unequal position between the persons concerned in their rights by an administrative decision. Such a situation is contrary to Article 36 (2) of the Charter as well as to the requirements arising from Article 6 (1) of the Convention, since the requirement that everyone whose civil rights or obligations are concerned must be guaranteed the right of access to a court is not fulfilled. This unconstitutional situation can undoubtedly be addressed in the manner proposed by the Ministry of Justice in its observations, namely by amending the provisions of the administrative law regulations which exclude persons who may be affected by an administrative decision from participating in administrative proceedings. Such a solution would certainly be effective and therefore desirable, as the possibility of defending its rights should be granted to all the persons concerned in the administrative procedure itself. It should be noted and assessed positively that the legislature itself has already corrected certain specific provisions in this respect (e.g. extended the definition of the participants in the building closure proceedings or the protected area in the construction law). Also, the Constitutional Court, in a finding of 22.3.2000 sp. zn.

The problem indicated could be solved by the immediate deregulation of the part of the sentence of the first provision of Paragraph 250 (2) o. s., expressed as "as a party to the administrative procedure ', as well as by the cancellation of the sentence of the second paragraph, which is, moreover, superfluous, since whether a party is a party to the administrative procedure does not depend on whether the administrative authority treats it as such. Moreover, that provision seems to disregard the fundamental condition of the procedure of the need for the legal power of the contested decision. On the other hand, the Constitutional Court was aware that the restriction of participation to the plaintiff and defendant (§ 250 (1) o. s.) is a step backwards from the first publication, which, moreover, admits an official comment to the o. s. s.) when it says that this provision raises doubts from a constitutional point of view and de Lehferenda will require an effective remedy. It is clear that it should be a matter of general interest for the administrative court to deal not only with the defendant's objections, but rather to see that all persons involved in the case are given the opportunity to defend their rights in court.

Finally, as regards the reservations of the Fourth Chamber of the Constitutional Court on the constitutionality of the provisions of § 250a o. s. s., it should be noted that compulsory representation, whether by a lawyer or by other specialists (tax advisors, auditors, patent representatives, etc.), is not common before administrative courts of fundamental degrees in Europe. Despite this exceptional and de facto rigour of Czech legislation, however, the current concept cannot be ruled out as a contradiction with constitutional order. A possible objection to the restriction of access to the court may be argued by seeking to ensure equality between the parties in the proceedings before the administrative court, that is to say that the applicant is not disadvantaged against the defendant administrative authority, which is normally represented by a qualified civil servant. Compulsory legal representation is generally intended to be used to implement the principle of equality of arms, as a sign of a fair process. It will be up to the legislator to consider the necessity of the necessary legal representation in general in the new codification, as well as whether the legal aid, or the right to such assistance, provided for in Article 37 (2) of the Charter, can only be provided by persons with higher education. In this context, the Constitutional Court further points out that, in the case of compulsory legal representation, it is necessary to ensure that such representation is made more accessible to the socially weak.

The Constitutional Court concludes and summarises that the current regulation of the administrative judiciary shows serious constitutional deficits. In particular, some of the public administration's activities, as well as its possible inaction, are not under the control of the judiciary at all. Furthermore, not everyone who can be affected in their rights by an administrative decision has the right to refer to a court. If he then has such a right, he is not a party to the full fair process within the meaning of Article 6 (1) of the Convention, although this should be the case in a number of matters. The decision given is then final and, with the exception of a constitutional complaint, irreformable, resulting in a discrepancy of caselaw and an unequal position of the administrative office, i.e. a state of conflict with the requirements of the rule of law. The finality of certain decisions (termination of proceedings) may then also lead to a refusal of justice. Finally, the exercise of administrative justice is organised in a way that ignores the fact that the Constitution lists the Supreme Administrative Court as part of the system of courts in Article 91.

For the reasons set out above, the plenary of the Constitutional Court decided to abolish the entire part of the fifth o. s. s. It does so, knowing that many of the provisions of this section and of the institutes in which it is regulated are not constitutional and will be present in one form or another in the new version. Similarly, the Constitutional Court is aware of the legislative difficulty of dealing with the constitutional deficits described, but on the other hand it is forced to recall that the inconstitutionality of the partial problems was pointed out in a number of its Senate and Plenary decisions, in particular by reminding it that it is not the task of substituting a non-existent Supreme Administrative Court, interpreting ordinary, in particular administrative law, and providing judicial protection as a single judicial instance. Therefore, having considered all the appeals he had made in the past in the direction of executive and legislative power, and having taken note of the state of work on the reform of the administrative justice system, he decided to postpone the enforceability of the operative sentence until 31 December 2002. In doing so, the Constitutional Court is convinced of the need for a longer legiskance for such a fundamental change, which implies that the adoption of a new regulation is still a task for this legislature.