The Constitutional Court found no 47 / 2009 Coll.
The Constitutional Court found of 9 December 2008 on the application for annulment of § 171 paragraph 1 (c) of Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic and amending certain laws, as amended by Act No. 161 / 2006 Coll.
Valid
47
FIND
The Constitutional Court
On behalf of the Republic
On 9 December 2008, the Constitutional Court, in plenary composed of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Ivana Jan, Vladimir Krůk, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodém, Pavel Rychetský (Judge Rapporteur), Miloslav Excellent, Eliška Wagner and Michaela Židlická, decided on the proposal of the Supreme Administrative Court, for which JUDr Peter Act, President of the Senate of the Supreme Administrative Court, on the abolition of the provisions of § 171 paragraph 1 (c) of Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic of the Czech Republic, as amended by Act No 161 / 2006 Coll.
as follows:
Paragraph 171 (1) (c) 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. 161 / 2006 Coll., is deleted from the date of the publication of this finding in the Collection of Laws.
Reasons
Recital of the proposal
1. By a proposal submitted pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Supreme Administrative Court (hereinafter referred to as "the appellant") sought the issue of a finding repealing the provisions of Section 171 (1) (c) (hereinafter referred to as "the contested provision") of Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic and amending certain laws (hereinafter referred to as "the Act on the residence of foreigners"), as amended by Act No. 161 / 2006 Coll. The contested provision excludes from judicial review an administrative expulsion decision if, prior to the initiation of the procedure for such expulsion, an alien has been illegally present in the territory or transit area of an international airport. The appellant sees a contradiction between the contested provision and Article 36 (2) and Article 10 (2) of the Charter of Fundamental Rights and Freedoms ("the Charter ').
2. It follows from the application that the Supreme Administrative Court is in charge of the appeal proceedings sp. v. 8 As 42 / 2006 in which the complainants, N. XT. and D. A., seek the annulment of the order of the Municipal Court in Prague No. 8 Ca 339 / 2005-29 of 18.5.2006. By the contested order, their action against the decision of the competent authorities on the administrative expulsion of the first person from temporary residence in the Czech Republic within the meaning of § 119 (1) (a) (3) (b) (1) (c) (2) and (3) of Act No. 326 / 1999 Coll.
3. Administrative expulsion was granted following a residence check carried out by the foreign police on 22 June 2005. During this check, N. XT. submitted a forged travel document in a foreign name. After establishing his true identity, the competent authorities also found that he had previously been granted an administrative expulsion from temporary residence in the Czech Republic with a period of validity from 26.1.2001 to 26.1.2004. N. XT. stated that he lived in the same household as his partner D. A., a Czech citizen with whom he plans to marry and family, and that expulsion would constitute an intervention in his private and family life. In the justification of its decision, the administrative authority stated that it took into account all the facts found committed by a stranger in the Czech Republic, the impact on his private life and the security of the Czech Republic and the European Union and the protection against illegal migration. He concluded that the granting of an administrative expulsion would not be a disproportionate interference in the private life of a stranger, since he had a mate here, but had already known in the past that he was staying in the Czech Republic in violation of the law and had not dealt with this situation properly. The appeal authority examined the decision on administrative expulsion for the appeal of the complainants, while the contested decision remained unchanged in the relevant parts of the operative part.
4. N. X.T. and D. A. subsequently brought an action before the Municipal Court in Prague, which rejected it with reference to § 171 (c) of the Act on the residence of foreigners. In his reasoning of his decision, he stated that the administrative and criminal proceedings carried out had shown that N. X.T. had been in residence in the Czech Republic on the basis of forged documents, i.e. wrongly, and that, in the present case, the review was excluded by the court.
5. In the hearing of the appeal, the Supreme Administrative Court concluded that the contested provision of the Act on the residence of foreigners was contrary to the above-mentioned provisions of the Charter and therefore made an application to the Constitutional Court for its annulment.
6. The appellant submits that "pursuant to Article 36 (2) Any person claiming to have been shortened on his rights by a decision of a public authority shall have the right to apply to the court to examine the lawfulness of such a decision, unless otherwise provided by the law. However, such jurisdiction of the court shall not preclude the review of decisions relating to fundamental rights and freedoms under the Charter. '. It refers to Article 14 (1) of the Charter, according to which freedom of movement and residence is guaranteed in the Czech Republic, and points out that, according to the fifth paragraph of that Article, an alien can only be expelled in cases provided for by law. The Supreme Administrative Court also cites Article 10 (2) of the Charter laying down the right to protection against unauthorised interference in private and family life.
7. The appellant distinguishes the previous case-law of the Constitutional Court, namely the order in point III. ÚS 219 / 04 of 23.6.2004 (U 39 / 33 SbNU 591) *, where the Constitutional Court, according to the appellant, "expressed in connection with the examination of the entitlement to the visa that there is no subjective constitutional guarantee of the right of foreigners to reside in the Czech Republic because it is a matter of a sovereign state under which (non-discriminatory) conditions the residence of foreigners in its territory will be permitted. There is no legal right to issue a visa under the explicit text of the law. 'The Constitutional Court thus" concluded, according to the appellant, that the issue of issuing visas is left to the administrative discretion of the competent administrative authorities'.
8. However, according to the appellant, in the case of administrative expulsion under the contested provision, the situation is different: "An administrative expulsion as an administrative sanction is not a matter of administrative discretion if the conditions for its imposition are met. The Act on the residence of foreigners contains in Title X a exhaustive list of cases where foreigners can be expelled. The law seeks to mitigate the possible adverse consequences of administrative expulsion under § 122, where conditions are laid down to eliminate the hardness of administrative expulsion. The current legislation, which does not allow judicial review of such administrative decisions, provides for a scope for non-transparent decision-making within the framework of the administration, with all the resulting implications for the quality of administrative decisions, may lead to corruption in marginal cases. There is no objective and impartial mechanism (in the case of government bodies, an instance check of individual administrative acts) to verify whether the grounds for expulsion laid down by law are actually fulfilled in the present case (Article 14 (5) of the Charter). Illegal administrative expulsion may constitute a significant and difficult to correct intervention in private or family life guaranteed by Article 10 (2) of the Charter or the right to conduct other economic activities (Article 26 (1) of the Charter). '
9. In support of its argument, the appellant points to the conclusions expressed by the Supreme Court on the possibility of imposing expulsion sentences. In its judgment of 3.9.1997 in Case C-60 / 97 (No 13 / 1998 Coll. rozh. tr.), he stated that "the expulsion penalty can only be imposed" in cases where this does not preclude the defendant's personal circumstances, in particular his family relations and personal ties to a certain place in the Czech Republic, where he has lived the bulk of his life. It is only in this way that it is possible to ensure that the punishment imposed is not a disproportionate interference in his life (...). Only such a decision is then in accordance with Article 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms (...). 'In the appellant's view, crimes from the point of view of the intensity of social hazard constitute a category of unlawful acts that are "significantly more socially dangerous than administrative offences." All the more so, according to the appellant, it is necessary to conclude that the same must apply in the area of the imposition of administrative expulsion, not to mention that the consequences of expulsion and administrative expulsion into the private life of an individual are similar. According to the appellant, "the right to family life or possible significant interference with it, [...] should also be taken into account in cases of administrative expulsion. In the case of alleged interference with fundamental rights, the law must allow judicial review of administrative decisions.'
10. The appellant also refers to the case law of the European Court of Human Rights ("ECHR '). In the judgment of the ECHR in Berrehab v Netherlands, No 10730 / 84 of 21 June 1988, the appellant acknowledged that the Convention on the Protection of Human Rights and Fundamental Freedoms (" the Convention') "does not prohibit the contracting States from regulating the entry and residence of foreigners in the country, but the restrictive measures adopted should be proportionate to the objective pursued. 'Thus, according to the appellant's interpretation, the Court" measured the legitimacy of the objective pursued and the seriousness of the intervention in the complainant's right to protect his family life. In the present case, he concluded that not extending the visa to stay and expelling the complainant would result in serious interference with his family life.' At the same time, the appellant submits that he is aware of the "case law [ESLP] in which the Court stated that the prohibition of residence in the territory of a Member State is not covered by Article 6 of the Convention (see, for example, the judgment of the ECLP in Maaouia v France No 39652 / 98 of 5.10.2000), since Article 1 Protocol 7 to the Convention contains specific guarantees in procedures for expulsion of aliens and the Member States of the Convention have made clear their intention to exclude such proceedings from the scope of application of Article 6 (1) of the Convention (point 36, 37 of the Decision cited). Other guarantees (according to the explanatory memorandum to Protocol No 7) available to foreigners in the territories of the Member States at risk of administrative expulsion are, for example, Article 3 of the Convention (prohibition of degrading and inhuman treatment) and Article 8 of the Convention (protection of private and family life), both in connection with Article 13 of the Convention (right to effective redress in respect of violations of the rights and freedoms guaranteed by the Convention). 'According to the appellant," the reflection of Article 13 of the Convention [...] is consequently also Article 36 (2) of the Charter, but this principle was no longer consistently reflected in the Act on the residence of foreigners in the Czech Republic. "
Proceedings and recap of the observations of the parties
11. On the invitation of the Constitutional Court, the Chamber of Deputies of the Parliament of the Czech Republic submitted observations in accordance with Section 69 of the Law on the Constitutional Court through its President, Ing. Miloslav Vlčka. The Senate of the Parliament of the Czech Republic did likewise through its President MUDr.
12. The Chamber of Deputies, in its observations, summarises in particular the course of the hearing of the contested provision. It draws attention to the wording of the explanatory memorandum which, on the proposed text of Section 171 of the Aliens residence law, has been expressed in a summary sentence that "excludes from the possibility of judicial review those decisions which do not interfere with fundamental rights and freedoms'. In conclusion, the Chamber of Deputies notes that" the legislature has acted in the belief that the adopted law is in accordance with the Constitution, the Constitution and the Rules of Procedure 'and leaves it to the "Constitutional Court to assess the constitutionality of the law in the context of the proposed proposal and to give its decision'.
13. The Senate, referring to the above mentioned passage from the explanatory memorandum to the draft law, notes that "the proposal was undoubtedly based on a traditional postulate of state sovereignty in the admission or acceptance of a stranger to its territory. In this respect, the illegal residence of a stranger appeared to be unfit for the use of the protection resulting from the freedom of residence (the illegal residence of a stranger seemed to reject it)." According to the Senate, this legislation is not contrary to the procedural guarantees concerning the expulsion of foreigners, as provided for in Article 1 Protocol No 7 to the European Convention, which provides for the right of judicial review only in the event of expulsion from residence authorised by the recipient State. According to the Senate, Paragraph 119a (2) of the Act on the Residence of Foreigners constitutes a "legal guarantee 'of respect for Article 10 of the Charter and Article 8 of the European Convention (governing the right to the protection of private and family life) when it provides that a decision on administrative expulsion cannot be given if it results in disproportionate interference with the private or family life of a stranger. The Senate notes, however, that the exclusion of judicial review has remained unchanged despite the numerous amendments to the Act on the residence of foreigners.
14. The Senate also recalls the judgment of the Supreme Administrative Court of 29 September 2006 No 4 Azs 419 / 2005-65 (published in the ECR under No 1009 / 07), where the Supreme Administrative Court considered the exclusion of judicial review to be admissible, but repeatedly pointed out that, in the event of doubt, it is necessary to interpret this exclusion strictly, i.e. in favour of judicial review.
15. In the second and third parts of its observations, the Senate takes note of the progress of the legislative process and notes that the draft law, as amended by the Senate amendments, has "approved, within the limits of the Constitution, the established competence and the constitutional framework [...] in the majority belief that [...] is in line with the constitutional order of the Czech Republic and the international obligations of the State." According to the Senate, it is up to the Constitutional Court to assess the constitutionality of the draft contested provision and to rule.
Recital of observations of other bodies under Section 49 of the Constitutional Court Act
16. According to Article 49 (1) of the Constitutional Court Act, the Constitutional Court addressed the Minister of the Interior, the Minister of Justice and the Ombudsman and gave them the opportunity to comment on the proposal.
17. The Minister of the Interior considers the proposal unfounded and therefore recommends its rejection under the provisions of Paragraph 70 (2) of the Constitutional Court Act. It states that the Act on the residence of foreigners allows judicial review in cases where a stranger was legally resident in the Czech Republic. To foreigners residing in the Czech Republic illegally (and thus covered by the contested provision), the Minister of the Interior states that, according to the knowledge of his Ministry, these foreigners are "generally aware of their infringement and their problematic position. The creation of family ties, whether by marriage or by claiming fatherhood to minor children, in such a precarious and foreign situation, [in the opinion of the Minister of the Interior], cannot be decisive in deciding on administrative expulsion." The Minister states that "the Ministry is known from its official activities that in many cases there are special-purpose marriages and declarations of paternity in order to obtain or legalize residence in the Czech Republic which would not otherwise have been obtained."
18. The Minister for the Interior also refers to the order of the Constitutional Court, sp. zn. III. ÚS 219 / 04 (cited above in point 7 of this decision). According to the Minister, the Constitutional Court stated here "that the subjective constitutional guarantee of the right of foreigners to reside in the Czech Republic does not exist when it is a matter of a sovereign state under which conditions they will allow foreigners to reside in their territory." According to the Minister of the Interior, "in the past, the Constitutional Court has clearly stated that [the Charter] provides protection only to the right guaranteed by the rule of law to the participant."
19. Similarly, according to the Minister of the Interior, the judgment of the Supreme Administrative Court of 29.9.2006 No 4 Azs 419 / 2005-65 (cited above in paragraph 14). In his observations of this decision, the Minister cites widely his selected passages:
[Supreme Administrative Court] takes the view that the judicial review of decisions of an administrative authority on decisions concerning the public subjective rights of natural and legal persons is, as is apparent from the applicable rules of the administrative justice given in particular by Act No 150 / 2002 Coll., the administrative system (hereinafter referred to as "SA.S. '), one of the fundamental and regular guarantees of the legality of the exercise of the public administration, which is implemented by Article 36 of the Charter of Fundamental Rights (hereinafter referred to as" the Charter'), according to which he claims to have been shortened on his rights by a decision of the public authority, may refer to the court to examine the lawfulness of such a decision, unless otherwise provided for by the law; However, the review of decisions relating to fundamental rights and freedoms under the Charter shall not be excluded from the jurisdiction of the court.
As is apparent from the case law of the European Court of Human Rights [e.g. in Maaouia v France, cited above in paragraph 10 of this decision], the international protection of fundamental human rights and freedoms, which is the Charter of National Reflection, does not understand the right of an alien to reside in a particular territory as a fundamental human right, and therefore the absence of judicial review of expulsion from the territory of the State is not a lack of standards of protection that fundamental rights and freedoms should enjoy. The European Court of Human Rights concluded that the expulsion of an alien from the territory of a State is not covered by Article 6 of the Convention on the Protection of Human Rights and Freedoms relating to the Right of Justice ("Everyone has the right to have his case dealt with fairly, publicly and within a reasonable time by an independent and impartial court established by law, which decides on his or her civil rights or obligations or on the legality of any criminal charges against him. '), but that the basic procedural safeguards are governed by Article 1 of Protocol No 7 to the Convention [" An alien who is permitted to reside in the territory of a State may be expelled only on the basis of the enforcement of a decision taken in accordance with the law and must have the possibility of: (b) have his case examined; (c) be represented for that purpose before or before the person or persons designated by that authority. "]
Although the principles of a modern democratic state contradict the expression of insolence by state authorities, even in the framework of international protection of human rights and freedoms, states are granted the right to control the entry and residence of foreigners in their territory and, where appropriate, to expel foreigners, if legitimate objectives are pursued and necessary in a democratic society (see, for example, the ECHR judgment in case Dali v France of 19 February 1998). However, there is a difference between foreigners in whether the State has agreed (even if it is consistent) to stay in its territory or to reside in its territory without such consent. The minimum procedural rules laid down in Article 1 are also evidence of this. Protocol No 7 to the Convention which applies only to "a foreigner authorised to reside in the territory of a State... '.
20. According to the Minister of the Interior, it can therefore be considered that the contested provision is not contrary to Article 10 (2) of the Charter (right to protection against unauthorised interference in private and family life), Article 14 of the Charter (freedom of movement and residence), Article 26 (1) of the Charter (right of free choice of profession) and Article 36 (2) of the Charter (right to judicial and other legal protection).
21. The Minister of the Interior also considers that the provisions of the contested regulation should be dealt with in accordance with Article 13 of the Convention (the right to effective remedies in the violation of the rights and freedoms guaranteed by the Convention). According to the Minister, in the case of Maaouia against France (cited in paragraph 10 above), it was stated that Article 6 of the Convention on the right to a fair trial does not apply to asylum and immigration areas, but is affected by Article 13 of the Convention. This "can only be used in conjunction with another law or freedom guaranteed by the Convention, therefore it is not an autonomous provision. The Court's caselaw has identified certain quality requirements for the review, which must be fulfilled in order to comply with the conditions of Article 13. Similarly, the conditions may be extended to the functioning of the basic procedural guarantees provided for in Article 1 of Protocol No 7 to the Convention. '; The Minister of the Interior considers that" according to the [ESLP], an effective means must enable the competent authority to deal with the substance of the case and be able to make an effective remedy. According to the Court of First Instance, Article 13 [Convention] does not determine the type of appeal that must be dealt with and does not require the court to be the determining authority. However, the powers and procedural guarantees available to the institution are relevant in relation to whether this is an effective remedy.'; In many cases, the ESLP, in the opinion of the Minister, "accepted diverse non-judicial bodies as complying with the requirements of Article 13." According to the ESLP, "it accentuates the power of the institution to provide an effective remedy before the formal nature of the institution ', whereby (without referring to a specific decision by the ESLP) it has set out the essential characteristics that the institution should have. It is 1. Independence from the authority that should have committed the infringement, 2. The possibility for a stranger to make his arguments in the same way that he could have made in court, 3. The determining authority must make binding decisions, and finally, the 4th. The absence of any of these characteristics may, in the opinion of the Minister, be replaced by a system of remedies.
22. In the following part of his statement, the Minister for the Interior argues that the Czech legislation meets the above-mentioned requirements and is therefore an effective system of remedies within the meaning of the requirements of the European Court of Human Rights. According to the Minister of Interior, the decision on administrative expulsion "generally speaking, the Department of Foreign Police, [decision] is handed over to foreigners with the participation of an interpreter, if he does not understand Czech, and contains a lesson about the possibility of bringing an appeal against the decision to the Directorate of Service of Foreign and Border Police [through] the authority which issued the decision. In the appeal, the stranger has the opportunity to express all his arguments and objections. 'The Directorate may reject the appeal and may revoke the decision, either returning the case to the body which issued it (which is then bound by the Directorate's legal opinion) or rescinding the decision without further delay. In such a case, an alert in the register of undesirable persons is deleted and the decision originally issued has no effect on the possible further legalisation of the stay in the Czech Republic. Even if the case returns to renegotiation, the case is reassessed and the stranger has the right to appeal to the Directorate again. According to the Minister of the Interior, the alien can also use other institutions of the administrative order - renewal of proceedings or review proceedings. The Ministry of the Interior is responsible for such proceedings, which is a superior administrative body vis-à-vis the Directorate.
23. The Ombudsman, on the other hand, supports the application for annulment of the contested provision. In particular, it considers that the contested provision is contrary to Article 36 (2) of the Charter.
24. The Ombudsman also states that "although Article 8 of the [Convention] does not contain an absolute right for any category of foreigners not to be expelled, the case law of the European Court of Human Rights shows that a decision to expel a stranger from a country where close members of his family live may, in addition to intervening in Article 3, constitute an infringement of his right to respect for private and family life within the meaning of the [cited provisions of the Convention]. 'The Ombudsman refers to the following judgments of the ECHR: in Moustaquim v Belgium No 12313 / 86 of 18.2.1991, in Beldjoudi v France No 12083 / 86 of 26.3.1992, in Boultif v Switzerland No 54273 / 00 of 2.8.2001, in Amrollahi v Denmark No 56811 / 00 of 11.7.2002, in Yilmaz v Germany No 52853 / 99 of 17.3.2003 and in Keles v Germany No 32231 / 02 of 27.10.2005.
25. According to the Ombudsman, Article 10 (2) of the Charter provides protection against unauthorised interference in private and family life. If the right to such protection is among the fundamental rights and freedoms, then the expulsion decision, according to the Ombudsman, must not be excluded from judicial review, whether or not it is a foreigner residing in the Czech Republic. According to the Ombudsman, the same reasoning can then be applied to Articles 3 and 8 of the Convention, in conjunction with Article 13, whereas "having regard to the absolute nature of the [former law], the judicial review deficit for the alleged infringement may be even more serious." The Ombudsman states that "on the basis of an inquiry into a number of initiatives in this field [because of the nature of expulsion of the endangered right, the standard appeal procedure to the superior administrative body (Directorate of Foreign and Border Police Service) is not considered an effective remedy within the meaning of Article 13 of the Convention ', pointing out that" in relation to Article 3 of the Convention, this deficiency is even more marked'. Despite some changes in legislation, the Ombudsman does not consider "the existing mechanism for protecting a deported alien with a previous illegal stay - as far as possible interference with the right to the protection of private and family life - satisfactory and [lacks] insurance precisely in the form of judicial review." The Ombudsman continued to "continue [finding], in individual cases, the lack of application and knowledge of the [ESLP] case-law and, in the case of EU citizens and their family members, the case-law of the European Court of Justice."
26. According to the Ombudsman, "the deficit described by him does not concern EU citizens and their family members or family members of Czech citizens (§ 15a of the Act on the residence of foreigners in conjunction with § 171 (2) of the same law)." However, even in this case, the Ombudsman does not consider the rule of law to be unquestionable from the point of view of Community law, since the restriction of the right to judicial review, which in certain cases allows for Article 171 (2) of Regulation (EEC) No 1612 / 68 and repealing Directives 64 / 221 / EEC, 68 / 360 / EEC, 72 / 194 / EEC, 73 / 148 / EEC, 75 / 34 / EEC, 75 / 35 / EEC, 90 / 364 / EEC, 90 / 365 / EEC and 93 / 96 / EEC (OJ L 158, p. 77).
27. The Minister of Justice notes that the Act on the residence of foreigners does not fall within the gesture of his Ministry, therefore it is limited to a general statement. In this case, "it relies on the argument put forward by the appellant [...], as it pursues, inter alia, greater transparency in the decision-making of the public authorities and is intended to contribute to the elimination of the contradiction of that provision with the [Charter] and to the fulfilment of the rights of the Charter guaranteed. 'On this basis, the Ministry supports the proposal.
Derogation of the contested provision
28. The contested provision of the Foreign residence Act reads:
Judicial review
(1) The review by the court shall exclude:
[...]
(c) an administrative expulsion decision where, prior to the initiation of the procedure for such expulsion, an alien has been illegally present in the territory or transit area of an international airport, [...]
Active ID of the applicant
29. The applicant imports the active legitimacy to submit the proposal under consideration from Article 95 (2) of the Constitution. If the court, under this provision, concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it shall bring the matter before the Constitutional Court. The law of the Court is laid down in Paragraph 64 (3) of the Law on the Constitutional Court as the right to file an application for annulment of the law or its individual provisions. This means that the Court's active legitimacy to file a motion for annulment of the law or individual provisions of the law depends on the subject matter of the dispute and its legal qualifications. In other words, the court may apply only for the annulment of such a law, or its individual provisions, to be applied when the dispute pending before the General Court is resolved. The consideration of such an application must be justified, must be derived from the fulfilment of the conditions of the procedure, including the substantive legitimacy of the participants, and, if it is a substantive provision, from the unambiguous finding that such a regulation is to be applied [see sp. zn.
30. It follows from the foregoing that the contested provision is decisive for the success of one of the parties in the proceedings before the appellant. The appellant thus fulfils, at the previous point, the defined conditions of active legitimacy for the application to the Constitutional Court.
Constitutional conformity of the legislative process
31. According to Article 68 (2) of the Law on the Constitutional Court, the Constitutional Court is to determine, in addition to assessing the compliance of the contested law with the constitutional laws, whether it has been adopted and issued within the limits of the Constitution laid down in competence and in a constitutional manner.
32. Given that the appellant did not object to a defect in the legislative process or to a breach of the legislature's constitutional competence, it is not necessary to examine this issue further in the light of the principles of procedural economics, and it is sufficient, in addition to taking into account the observations put forward by the Chamber of Deputies (see paragraphs 12 and 15 above), to formally verify the conduct of the legislative process from a publicly available source of information at http: / / www.ps.cz.
33. The Constitutional Court found that, after the Senate returned it to the Chamber of Deputies with amendments, it was approved by Resolution No 605 at the 32nd session of the Chamber of Deputies on 30 November 1999, as approved by the Senate, when 172 Members present voted in favour of the Bill 171, against 1. The law was signed by the relevant constitutional authorities and was declared in the amount of 106 Collection of Laws which was distributed on 23 December 1999 under the number 326 / 1999 Coll.
34. The Constitutional Court notes that Law No 326 / 1999 Coll. was adopted and issued within the limits of the Constitution established competence and the constitutional procedure, or that it did not find anything in this procedure that would suggest otherwise.
Evaluation of the Constitutional Court
35. The Constitutional Court first dealt with the conformity of the contested provision with Article 36 (2) of the Charter, under which the Court's jurisdiction must not exclude the examination 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.
36. In its previous case-law, the Constitutional Court has made it clear that everyone has: The Charter of the right to seek the protection of its rights in a court or other body, with the conditions and rules governing the exercise of that right laid down by law, such a law, issued on the basis of a constitutional mandate, cannot deny anyone's right to seek the protection of their rights in a court or other body in which the situation is completely negligent and thus a constitutionally guaranteed fundamental right, even in certain cases. Article 36 (1) Each Charter is constitutionally guaranteed the possibility of seeking protection of its right in a court or other body in all situations of infringement (there is no constitutional restriction). In other words, no person can be completely excluded by law from the possibility of seeking protection of his right, even if only in a specific case, since his right under Article 36 (1) of the Charter would be annulled. The opposite interpretation would also indicate that the anchoring of everyone's right to appeal to judicial and other bodies of protection for the protection of their rights made by the legislator - gifted by the highest legal force - would in fact lose meaning, since it could only be annulled by the legislator's will for the situation. The Constitutional Court also pointed out that, although the legislator in the second sentence of Article 36 (2) The Charter delegates to the legislature the granting of exceptions to the review of administrative decisions by the court, this constitutional authorisation is limited to the fact that a judgment on fundamental rights and freedoms guaranteed by the Charter must not be excluded from the review powers of the Court. The Constitution clearly reflected the different relevance of fundamental rights and freedoms and "ordinary 'rights and freedoms; the greater rights are due to their different nature to the logically higher protection [finding sp. zn. Pl. ÚS 12 / 07 of 20.5.2008 (published under No 355 / 2008 Coll.), paragraphs 27 and 30, finding sp. zn. Pl. ÚS 72 / 06 of 29.1.2008 (published under No 291 / 2008 Coll.), paragraphs 40 and 41, both available at http: / / nalus.ujud.cz].
37. The Constitutional Court stresses that it does not in any way question its previous conclusions on the absence of a subjective constitutional guarantee of the right of foreigners to reside in the Czech Republic. The Constitutional Court consistently confirms that it is a matter for a sovereign state under which (non-discriminatory) conditions to allow the residence of foreigners in its territory - in addition to the resolution sp. zn. III. ÚS 219 / 04, cited above in paragraph 7 of this decision, which refers both to the appellant (see paragraph 7 of this decision) and to the Minister of Interior (see paragraph 18 of this decision), also to the resolution sp. zn. I. ÚS 394 / 06 of 8.11.2006 (http: / / nalus.ujud.cz), where the Constitutional Court expressly confirmed this conclusion in the previous resolution, Resolution sp. zn. II of the ÚS 59 / 06 of 4.5.2006 (http: / nalus.ujud.cz) and others.
38. Although there is no subjective constitutional guarantee of the right of foreigners to reside in the Czech Republic, the Charter undoubtedly guarantees foreigners rights that may be affected by expulsion. These include, for example, 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 these 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 in a disproportionate manner (cf. point IV of the Opinion in sp. v.
39. The Charter does not make any distinction between whether an alien is legally staying in the territory of the Czech Republic or not, as opposed to the Convention which provides procedural guarantees to foreigners who are legally staying in the territory of the Contracting State in its Protocol No 7 and, otherwise, by virtue of Article 13, which guarantees the right to effective means of legal protection for any person whose rights guaranteed by the Convention are infringed (see, for example, Lupis judgment against Romania No 10337 / 04 of 8.6.2006, paragraph 52 and the caselaw cited therein). In this respect, therefore, the Constitutional Court cannot consider the relevant arguments put forward by the Minister for the Interior (see paragraph 17 of this judgment).
40. This conclusion is also confirmed by the case law of the European Court of Human Rights, which the appellant, the Minister of the Interior and the Ombudsman (see paragraphs 10, 19 and 24 of this finding), although making it mutually contradictory. Although the European Court of Human Rights recognised "the interest of the Contracting States in maintaining public order, in particular in the exercise of their right to control the entry, residence and expulsion of aliens, which is based on established international law and is limited only by their obligations under the Treaty ', it also pointed out that" in cases where the relevant decisions constitute an intervention in the rights protected by paragraph 1 of Article 8, it must be demonstrated that they are "necessary in a democratic society', which means that they are justified on the basis of an urgent social need and, in particular, that they are proportionate to the legitimate objective which they pursue '(Moustaqui against Belgium, cited in paragraph 24 of that finding, paragraph 43 and subsequent caselaw of the European Court of Human Rights). Thus, the European Court of Human Rights confirmed that the autonomy of the Contracting States in deciding to expel a stranger is limited to the fundamental rights of those aliens, such as the right to protection against unauthorised interference in personal and family life provided for in Article 8 of the Convention (as was the case in the Moustaqui case against Belgium), the right to life and the prohibition of torture and inhuman or degrading treatment or punishment, protected under Articles 2 and 3 of the Convention, to which an exiled alien could possibly be exposed in the country to which he is expelled (see, for example, the judgment of the European Court of Human Rights in the Matkulov and Askerov case of Turkey No 46827 / 99 and 46951 / 99 of 4 February 2005).
41. The fact that the European Court of Human Rights has left the Contracting States wide autonomy in deciding to expel a stranger and has explicitly confirmed that the right of access to a court, contained in Article 6 (1) of the Convention, does not apply to decisions to expel a stranger (see Maaouia v France, cited in paragraph 10 of this Decision, paragraphs 34 to 40, or Mamatkulov and Askarov against Turkey, cited in the preceding paragraph of this Decision, paragraph 82), does not play a part in the interpretation of Article 36 (2). In order to interpret this provision, the possibility of an administrative expulsion decision being affected by the fundamental rights of a stranger is crucial, and that case law of the European Court of Human Rights confirms the existence of that possibility. There is no reason to reduce the level of procedural protection of fundamental rights guaranteed by the Charter only because the Convention amends it in a different way, in addition to the fact that the Charter guarantees it quite clearly, as mentioned in point 36 of this Found above (see, mutatis mutandis, the find sp. zn. IV. ÚS 553 / 06, cited above in point 38 of this Found, paragraph 40).
42. For the above reasons, the Constitutional Court therefore concludes that the contested provision of § 171 (1) (c) 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. 161 / 2006 Coll., is contrary to Article 36 (2) of the Charter and is therefore annulled by the date of the publication of this finding in the Collection of Acts.
President of the Constitutional Court:
JUDr. Rychetský v. r.
* NB: Collection of finds and resolutions of the Constitutional Court, Volume 33, Document No. 39
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Regulation Information
| Citation | The Constitutional Court found No. 47 / 2009 Coll., on the application for annulment of § 171 paragraph 1 (c) of Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic and amending certain laws, as amended by Act No. 161 / 2006 Coll. |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 13.02.2009 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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