The Constitutional Court found No 466 / 2013 Coll.
The Constitutional Court found of 17 September 2013 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
31.12.2013
466
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 41 / 10 on 17 September 2013 in a plenary composed of the President of the Court of Paul Rychetský and the Judges Stanislav Balík (Judge Rapporteur), Louis David, Jaroslav Fenyk, Jan Filip, Vlasta Formánková, Ivana Janů, Vladimir Krářka, Jan Musil, Jiří Nykodemí, Kateřina Šimáková, Milady Tomková and Michaela Židlická on the proposal of the Supreme Administrative Court of the Czech Republic, in accordance with Article 95 (2) of the Constitution of the Constitution on the Declaration of Anti-Constitutional Act, as amended by the Act, with the Parliament of the Czech Republic and the Senate of the Parliament of the Czech Republic as participants in the procedure of Law No 283 / 1991 Coll.
as follows:
Paragraph 32 (2) (c) of Act No. 325 / 1999 Coll., on asylum, as effective until 31.12.2011, was contrary to the constitutional order.
Reasons
Definition and recap of the proposal
1. On 23 August 2010, the Constitutional Court received notification of the motion of Senate 7 Azes of the Supreme Administrative Court (hereinafter referred to as "the appellant ') to repeal the provisions of § 32 (2) (c) of Act No. 325 / 1999 Coll., on Asylum, as amended, (hereinafter referred to as" the Act on Asylum'), [the law in force at that time was "on asylum and amending Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended, hereinafter referred to as" the contested provision ']. The applicant submitted this proposal after having concluded, in the context of its decision-making activities under Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution'), that the contested provision is contrary to the constitutional order.
2. The application for annulment of the contested provision was lodged in connection with the appellant's decision on the appeal of the complainant, A. B. B. B. S., brought against the order of the Regional Court in Prague of 10.6.2009 No 46 Az 27 / 2009-10, which was rejected for delay under the provisions of § 46 (1) (b) of the Administrative Code (hereinafter referred to as "S. S. ') of the complainant's action against the decision of the Ministry of the Interior, the Department of Asylum and Migration Policy, of 10.4.2009 No OAM- 107 / LE- 05- 05- 2009, by which it was decided that the application by A. B. B. S. for international protection is inadmissible under the provisions of § 10a letter. (e) the Asylum Act and that the procedure for granting international protection is terminated pursuant to the provisions of Section 25 (1) of the Act. (i) the same provision, which stated that the bringing of an action had no suspensory effect within the meaning of Article 32 (3) of the Asylum Act.
3. In the justification of its order, the Regional Court in Prague came from the fact that the administrative decision was delivered to the complainant on 29 April 2009 and that the action was brought for postal transport on 11 May 2009, i.e. after the legal seven-day deadline for its submission. In the complaint, the complainant pointed out, in particular, that the reason for the late bringing of the action was that he had a difficult personal situation relating to the other proceedings which had been brought against the complainant and a long-standing concern about returning to his country, which had an adverse effect on his mental state. He therefore brought the action within the time limit set out in Paragraph 40 (5) of the Rules of Procedure and did not submit a request to forgive the delay in bringing the action solely because of the language barrier and the lack of explanation of the Czech legislation. The complainant further noted that it is currently located in Plzeň-Bory Bory, where he received a letter from Austria, in which the unknown sender threatened him for sexual orientation. In the event of his return to his country, he said that there is a real danger of serious harm, consisting primarily of a serious threat to life or human dignity. The legal conditions for granting international protection are thus met, at least additional protection under the provisions of Section 14a of the Asylum Act. Therefore, in view of the continued threats, it has an exceptional interest in hearing the case by the Regional Court, which has been deprived of that possibility by the contested resolution.
4. In the application for annulment of the contested provision, the Supreme Administrative Court first considered whether, in the present case, the provisions of Paragraph 32 (2) (c) of the Asylum Act, together with the relevant provisions of p. S, could not be interpreted in a constitutional manner so that the complainant could not be shortened on his right to judicial protection as a result of an excessively short period of 7 days to bring an action against this decision. Following the impossibility of such interpretation, he suspended the appeal procedure and brought the matter before the Constitutional Court, claiming that the contested provision of the Asylum Act is contrary to the constitutional order, namely Article 36 (2) of the Charter of Fundamental Rights and Freedoms ("the Charter ') and Article 13 of the Convention on the Protection of Human Rights and Fundamental Freedoms.
5. The appellant first pointed out that the judicial protection granted to unsuccessful applicants within the meaning of Article 32 (2) (c) of the Asylum Act was so inefficient that the law guaranteed by Article 36 (2) They are granted "essentially illusory." This is because this provision only provides for a seven-day period for bringing an action. The Supreme Administrative Court is aware of the fact that such a period in itself, in its abstract assessment, may not appear to be constitutionally unconformal, but the legal standard and its constitutionality, according to the appellant, cannot be assessed in isolation but in the context of the standards underlying it. For this reason, it is his view that the procedural and social context in which the deadline is set should be highlighted. Therefore, the conclusion on the non-constitutionality of the seven-day period for bringing an action in the cases referred to in Paragraph 32 (2) (c) of the Asylum Act can only be reached after an assessment of other contextual circumstances in which there is no possibility of leaving aside the specific life situation in which most applicants for international protection are present.
6. The appellant further argued that the international protection proceedings are governed by the strictly designed principle of concentration, in particular the requirement of the wording of the pleas in law by the applicants, i.e. on their own qualitative side of the action, does not appear to be appropriate within 7 days, since the existence of such a strictly established concentration of proceedings is otherwise compensated by a general two-month period for bringing an action against an administrative decision (§ 72 (1) of the EC Treaty). According to the appellant, the rule is also that the plaintiff does not challenge the decision of the appellate administrative authority and has therefore already undergone a two-way administrative procedure. However, the Asylum Act interferes with the system so designed by special arrangements for a one-stop procedure for an application for international protection and lays down significantly shorter time limits for bringing actions against decisions on those applications. According to the Supreme Administrative Court, these special time limits, combined with the general regulation of administrative proceedings, ultimately lead to a limitation of the right to judicial protection.
7. As a matter of principle, according to the appellant, it is necessary to draw attention to the status of applicants for international protection in the vast majority of cases. These are usually persons without knowledge, or only with minimal knowledge of the Czech language and the Czech cultural and legal environment, without orientation in the environment and conditions of the Czech Republic, without any background and contacts that are fully linked to external assistance. Therefore, the formal requirements for bringing actions for international protection are not easily met for these persons. In fact, if the seven-day period for bringing an action against administrative decisions accedes to these difficulties, it is necessarily reduced by at least another two non-working days of the weekend, in which the applicant must then bring an action, the situation creates a disproportionate pressure on him. In such a short period of time, the Supreme Administrative Court considers it very difficult for these persons, if not impossible, to process the action in a qualified manner and file it before the relevant Regional Court within the legal period. Moreover, they are often dependent on themselves, in a better case to help either NGOs (whose options are far from unlimited) or ex-offo appointed representatives. The applicant's response to this short period is either to file a blank action in order to capture the legal period, which is linked to the expectation of a call to supplement the argument, or even to bring an action after the legal period of 7 days from the date of service of the decision of the Ministry of Interior. The consequences of these factors are "fatal in many cases."
8. The Supreme Administrative Court also addressed in the application for annulment of the contested provision the reasons which led the legislature to shorten the initially 30-day period for the seven-day period, which took place by Act No 2 / 2002 Coll., with effect from 1.1.2003, and the analysis of the explanatory memorandum to the amending regulation indicated that the motive for introducing restrictive arrangements was the acceleration of asylum procedures in cases where the applicant clearly does not meet the conditions, the financial and security reasons and, consequently, the need to respond to a significant increase in the number of applicants for international protection, causing concern for the congestion of the authorities concerned. However, the appellant believes that the asylum procedure cannot be accelerated at the expense of the procedural rights of the participants. Nor is there any reason of particular interest in reducing the deadline, as is the case, for example, in the judicial review of electoral matters. The reason for the shortening cannot be either financial aspects, nor can the applicant be generally perceived as a security threat. In this connection, the Supreme Administrative Court noted that, moreover, since 2001, the number of applicants has been steadily declining and the current situation is comparable to that of the early 1990s. If the legislature opted for a review of those decisions under the scheme, p. ÍS, in which the defence of rights and interests is largely dependent on the activity of the party at the time of the action, then, according to the appellant's belief, "it cannot, at the same time, deprive it of its right to defend effectively by setting a short time limit for bringing the action '. The seven-day period does not give the applicant for international protection a real opportunity to have judicial control of the administrative decision suspending the procedure for granting international protection because of the inadmissibility of the application for international protection. That period therefore constitutes a restriction on the right to judicial protection for which there is no legitimate reason and which is not necessary in a democratic society.
9. The appellant then referred to the fact that the Constitutional Court had already expressed its opinion on the nature of the seven-day time limit for bringing an administrative action against the decision of the Ministry of Interior rejecting the application for international protection as manifestly unfounded, in the decision of 1.12.2009 sp. zn. In view of this, neither the Supreme Administrative Court nor any reason for the further existence of a seven-day period for bringing an action against a decision terminating the administrative procedure because of the inadmissibility of the application for international protection, since the procedural issue and its constitutional problems are entirely identical.
10. At the end of its proposal, the Supreme Administrative Court proposed that the Constitutional Court annul the contested provision of the Asylum Act.
11. By letter of 4 September 2013, prima vista sponte sua, the appellant changed the petit of his proposal by requiring the Constitutional Court to state that the provisions of Paragraph 32 (2) (c) of the Asylum Act, as effective by 31 December 2011, were unconstitutional or contrary to the constitutional order, with the argument of the Supreme Administrative Court remaining otherwise unchanged for these purposes.
Proceedings and recap of the observations of the parties
12. In accordance with Article 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (the Constitutional Court Act), the Constitutional Court invited the Chamber of Deputies of the Parliament of the Czech Republic (the Chamber of Deputies) and the Senate of the Parliament of the Czech Republic (the Senate) to comment on the proposal.
13. The Chamber of Deputies, in its observations of 24 May 2013 through its President Miroslava, described the legislative history of the adoption of the Asylum Act and added that the contested provision was amended twice in total by Act No 165 / 2006 Coll. and Act No 379 / 2007 Coll., where these amendments did not have a greater impact on the meaning of the contested provision, in all cases it was a government bill. The Chamber of Deputies further noted that the contested provision was repealed by Act No. 303 / 2011 Coll., amending Act No. 150 / 2002 Coll., the Administrative Rules of Procedure, as amended, and certain other laws, with effect from 1 January 2012. The conclusion of its observations was then devoted to the procedure for discussing and adopting Act No. 303 / 2011 Coll.
14. In its observations of 23 May 2012, the Senate also focused on the legislative genesis of the contested provision through its President Milan Štách, in particular with regard to the consideration of draft laws relating to the contested provision on the Senate. The Senate pointed out that, when discussing the draft Act No. 350 / 2005 Coll., which incorporated the contested provision into the Asylum Act, the issue of the inadequacy of the deadline for bringing an action on the ground that the procedure was terminated for the inadmissibility of the asylum application remained outside the attention of the Senate. In conclusion, the Senate noted that, when discussing the amendment to the Asylum Act No. 303 / 2011 Coll., in which the main subject matter of the proposal was the innovation of the Administrative Rules, the Senate unreservedly agreed to abolish "a short version of the deadline for bringing an action in all the grounds laid down so far," the annulment of Article 32 (2) of the Asylum Act was expressly justified (motivated) by the legislative respect for the Constitutional Court's finding, sp. pl. ÚS 17 / 09 of 1.12.2009.
15. The Constitutional Court did not send an application for annulment of the contested provision to the Government or to the Ombudsman within the meaning of Article 69 (2) and (3) of the Constitutional Court Act, since those provisions are bound at the time of the initiation of the proceedings and do not, by reason of the nature of the case, apply to proceedings initiated before the entry into force of Act No 404 / 2012 Coll., which were entered into the Law on the Constitutional Court, i.e. before 1 January 2013 (see point 3 of the Constitutional Court Notice published in the Collection of Acts under No 469 / 2012 Coll.).
16. The Constitutional Court did not order oral proceedings to be heard because it did not expect further clarification of the case (Paragraph 44 of the Law on the Constitutional Court; paragraph 1 of the Notice of the Constitutional Court published in the Collection of Laws under No 469 / 2012 Coll.).
Dedication of the contested provision and its genesis
17. The contested provision was inserted into the Asylum Act by the provisions of Article 4 (1) (a) (ii) of the Act of Accession. I point 24 of Act No. 350 / 2005 Coll., amending 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 some other laws, such as the new provision of Section 32 (2) (d) of the Asylum Act, and it read:
(2) Within 7 days of the date of service of the decision, proceedings may be brought against the decision on the application for asylum.
(d) the procedure for granting asylum has been terminated because of the inadmissibility of the application for asylum. "
18. Act No. 165 / 2006 Coll., amending 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 certain other laws, with effect from 1 September 2006, the words "granting of asylum" in § 32 (2) (d) of the Act on Asylum were replaced by the words "granting of international protection" (cf. Article I (15) of the Act No. 165 / 2006 Coll.) and the contested provision was renumbered as follows:
(2) 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:
(d) the procedure for granting international protection has been terminated because of the inadmissibility of the application for international protection. "
19. Act No. 379 / 2007 Coll., amending Act No. 326 / 1999 Coll., on the residence of foreigners in the territory of the Czech Republic and amending 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 some other laws, there has been a legislative and technical change to the contested provision in that, with effect from 21. 12. 2007, the provisions of Paragraph 32 (2) (b) of the Asylum Act was repealed, with a new designation as point (c) of Article III, paragraph 28 of Act No. 379 / 2007 Coll.).
20. By Act No. 303 / 2011 Coll. with effect from 1 January 2012, the provision of Paragraph 32 (2) of the Asylum Act was repealed (cf. Article V (1) of Act No. 303 / 2011 Coll.).
Active ID of the applicant
21. Pursuant to Article 95 (2) of the Constitution, if the court concludes that the law to be applied in the resolution of the case is contrary to constitutional order, it shall bring the matter before the Constitutional Court. This authorisation is also specified in § 64 (3) of the Law on the Constitutional Court, with the fulfilment of Article 95 (2) of the Code as a precondition for the substantive examination of such a proposal. The Constitution, in the sense that it must be a law to be applied in the resolution of the case, i.e. the law or its provision which is proposed for annulment, is to be applied directly by the appellant in the resolution of a particular dispute. The Constitutional Court found this condition fulfilled because the application of the contested provision by the appellant appears inevitable in the examination of the legal assessment of that case, as is clear from the above-mentioned recap of the proceedings before the general courts. At the same time, it is also concluded that the appellant should therefore apply the contested provision which is no longer in force when deciding on the appeal.
22. The Constitutional Court made repeated comments on the possibility of reviewing legislation which expired (Sections 66 and 67 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.) in its caselaw. As a general rule, this possibility was recognised in the decision of 10.1.2001 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 specified by the decisions given under sp. zn. Pl. ÚS 42 / 03 of 28.3.2006 (N 72 / 40 SbNU 703; 280 / 2006 Coll.), sp. zn. Pl. ÚS 38 / 06 of 6.2.2007 (N 23 / 44 SbNU 279; 84 / 2007 Coll.), sp. zn. Pl. Pl. ÚS 14 / 09 of 25.10.2011 (N 183 / 63 SbNU 117; 22 / 2012 Sb.), resolution sp. Pl. Pl. ÚS 1 / 10 of 9.2.2011 (in SbNU not published, available at http: / / nalus.ujud.cz) or sp. In the case of vertical relations (between an individual and a State), priority should be given to protecting fundamental rights over legal certainty and trust in law; In the case of these relations, the Constitutional Court has therefore made clear that the declaration of non-constitutionality will also have an impact on rights based on such non-constitutional legislation.
Review of the procedure for the adoption of the contested provision
23. The Constitutional Court, as required by § 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., subsequently examined whether Act No. 350 / 2005 Coll., by which the contested provision was introduced into the Act on Asylum, was adopted within the limits of the Constitution established competence and in a constitutional manner; This was based on further quoted stenograms available on the Parliament of Deputies' website (www.psp.cz), as well as on the statements made by the two chambers of Parliament of the Czech Republic.
24. From the above materials, the Constitutional Court found that Act No. 350 / 2005 Coll. tabled by the Government (House Press No. 882 / 0) was adopted by the Chamber of Deputies at the 45th session of 24 June 2005 at the third reading in vote No 352, with 125 Members voting in favour of the motion of 168, three votes against.
25. The Chamber of Deputies referred on 12 July 2005 to the Senate Bill as print 108 / 0. The bill was passed at the 7th Senate meeting on 5.8.2005, as referred to by the Chamber of Deputies, when the number 171 of the 58 senators present voted in favour of its approval by 44 senators, five senators voted against.
26. On 16.8.2005 the law was delivered to the President of the Republic; he signed it on 25 August 2005. On 13 September 2005 the law was declared in the amount of 122 Collection of Laws under the number 350 / 2005 Coll.
27. The Constitutional Court therefore concluded that Law 350 / 2005 Coll. was adopted and issued within the limits of the constitutional competence and the constitutional procedure. At the same time, the Constitutional Court did not address the constitutional conformity of the legislative process in the case of amending laws (No 165 / 2006 Coll. and No 379 / 2007 Coll.), since these amendments did not affect the nature and meaning of the contested provision in any way when, in the first case, it was merely a replacement of the concept of asylum with a similar concept of international protection, and in the second case, it was merely a legislative-technical amendment in § 32 (2) of the Rules of Procedure under which the action against the decision of the Ministry of Interior on international protection could be brought.
Meritorious review of the proposal
28. The Constitutional Court considered the appellant's argument and concluded that the application was justified.
29. In particular, in view of the assessment of the constitutional conformity of the contested provision, the fact that the Constitutional Court has already assessed the constitutionality of the seven-day period for bringing an action against the decision of the Ministry of Interior on international protection is important in relation to applications rejected as manifestly unfounded under Paragraph 32 (2) (a) of the Asylum Act effective until 13 January 2010. The Constitutional Court, in the case already cited, sp. zn.
30. In particular, the Constitutional Court pointed out that the contested legal period as such cannot be unconstitutional in itself, but its inconstitutionality can only prove to be difficult after assessing other contextual circumstances, for which the Constitutional Court referred in particular to the principles governing the administrative justice, namely the principle of the disposition and the principle of concentration of proceedings, which, in conjunction with a short period of time, make it difficult for the applicant to carry out an international protection investigation and in some cases even make it impossible to rule out the specific life situation in which most applicants for international protection find themselves, which the Constitutional Court's conclusions in the statement of reasons of its decision are further advanced.
31. The subject of the review is now the question of the adequacy of the seven-day period for bringing an action against the decision of the Ministry of the Interior, which has been terminated because of the inadmissibility of the application for international protection. In this context, the Constitutional Court considers that, in the context of this case, there is no difference between the situation where the application for such protection is rejected as manifestly unfounded and the situation where the procedure for granting such protection is terminated for the inadmissibility of the application, there is no difference between the criteria for the proportionality of the time limit, since the provisions currently under appeal have also been declared illegitimate when even cases of inadmissibility of the application for international protection cannot be ruled out by interference in the constitutionally protected rights and freedoms of potential applicants. In these circumstances, therefore, there is no reasonable reason why the Constitutional Court should assess the adequacy of the seven-day period for bringing an action against a decision of the Ministry of Interior which has been terminated because of the inadmissibility of the application for international protection, otherwise. The Constitutional Court does not consider it necessary to recap in detail the reasons which led it to accept, and therefore, to make a full reference to, the finding of Pl. ÚS 17 / 09 (published under No 9 / 2010 Coll.).
32. In the light of all the above reasons, the Constitutional Court complied with the proposal and for the appropriate application of § 70 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the provision of § 32 (2) (c) of Act No. 325 / 1999 Coll., on asylum, as amended by Act No. 31 December 2011, acceded to the declaration of unconstitutionality.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | Findings of the Constitutional Court No. 466 / 2013 Coll., on the proposal to declare the inconstitutionality § 32 paragraph 2 (c) of 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 |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 31.12.2013 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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