The Constitutional Court found No 5 / 2010 Coll.
The Constitutional Court's finding of 19 November 2009 on the application to declare unconstitutional the provisions of § 139 paragraph 1 of Act No. 154 / 1994 Coll., on the Security Information Service, as amended by Act No. 362 / 2003 Coll.
Valid
5
FIND
The Constitutional Court
On behalf of the Republic
On 19 November 2009, the Constitutional Court, in plenary composed of the President of the Court of Paul Rychett and the Judges Stanislav Balík, František Duchona, Military Güttler, Pavel Holländer, Ivana Janů, Vladimir Krorka, Dagmar Lastovecký, Jiří Much, Jan Musil (Judge of the Rapporteur) and Jiří Nykodma, decided on the proposal of the Supreme Administrative Court to declare the inviolability of the provisions of § 139 paragraph 1 of Act No. 154 / 1994 Coll., on the Security Information Service, as amended, with the participation of the Chamber of Parliament of the Czech Republic as a party to the proceedings
as follows:
Paragraph 139 (1) of Act No 154 / 1994 Coll., on the Security Information Service, as amended by Act No 362 / 2003 Coll., ruled out the review power of the Court of First Instance in respect of claims applied pursuant to Article 124 of Act No 154 / 1994 Coll., was contrary to Article 1, Article 36 (1) and (2), Article 37 (3) of the Charter of Fundamental Rights and Freedoms and Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms.
Reasons
1. In the application, received by the Constitutional Court on 25 May 2007, the Supreme Administrative Court requested the Constitutional Court to decide that the provisions of Paragraph 139 (1) of Act No 154 / 1994 Coll., on the Security and Information Service (hereinafter referred to as "the BIS Act '), as effective until 31 December 2006, i.e. before the amendment made by Act No 362 / 2003 Coll., are contrary to Articles 1, 36 and 37 (3) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter'), i.e. to the constitutional order of the Czech Republic.
The draft contested provision was:
"The Court of First Instance shall not examine the decisions of the service body, except in the case of decisions on:
(a) discharge from service pursuant to § 40 (1) (c) or (d);
b) compensation for damages exceeding the required amount of CZK 5,000. "
2. The appellant submits that it makes the application in question in connection with its decision-making activities in the case brought before the Supreme Administrative Court under point 5 As 65 / 2006. In this complaint, Bc. E. R. challenged the appeal of the order of the Municipal Court in Prague of 30 May 2006 No 8 Ca 57 / 2006-27 rejecting its action against the Director of the Security and Information Service (hereinafter referred to as the Director of the BIS) of 10 January 2006 No 29- 7 / 2005BIS-1, which, as a delay, rejected its appeal against the BIS Director's decision of 7 November 2005 No 11-31 / 2005BIS-1 of the grant of the death. The City Court in Prague rejected the action as inadmissible because it was brought against a decision which is excluded from judicial review under Section 139 (1) of the BIS Act.
3. The Supreme Administrative Court, which is to decide on a complaint, concluded in the preliminary hearing that the provisions of Paragraph 139 (1) of the BIS Act, which has already been and will have to be applied in the case, cannot be interpreted in a constitutional manner, as it is contrary to the constitutional order of the Czech Republic. The Supreme Administrative Court therefore suspended the proceedings and, within the meaning of Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), proposes that the Constitutional Court declare the illegality of Paragraph 139 (1) of the BIS Act, as amended by Act No. 362 / 2003 Coll., that the Constitutional Court's legal opinion will be binding on it in further proceedings.
4. In support of its view and with reference to a "procedural similar situation ', the appellant points out the finding of the Constitutional Court sp. zn. Pl. ÚS 33 / 2000 of 10.1.2001 (N 5 / 21 CollNU 29; 78 / 2001 Coll.) *), in which the Constitutional Court also ruled on the proposal of the General Court which challenged the statutory provisions already amended at the time of the Constitutional Court's decision.
5. In addition to the proposal, the appellant refers to the wording of the provisions of Paragraph 67 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, which is based on the effects of ex nunc and not ex tunc in the deregulation of legislation in the standard control procedure. In his view, this rule cannot be seen mechanically, since in such a case the substance of regulatory regulation could be ignored.
6. In the context of the prohibition of retroactive application of legislation, the direct consequence of which is the obligation of all the authorities applying the right to apply the legislation in the form in which they were in force at the time when the relevant legal facts occurred, the appellant stresses that, although the legislation may be amended or even repealed at the time of the decision of the Constitutional Court, it must nevertheless continue to apply to legal relations arising from its validity and effectiveness. The appellant points out that, should the Constitutional Court refuse to deal with its proposal precisely because of the subsequent depreciation of the contested law, it would trigger a situation in which the parties' fundamental rights and freedoms would be infringed by such a procedure. Any protection of the constitutional rights of the parties to proceedings, which would be granted by the Constitutional Court only after the decision of the General Courts, appears to the appellant to be "inefficient 'and" unsystemic' as it is always necessary to rely on the content of Article 4 of the Constitution, which guarantees fundamental rights and freedoms of judicial protection. For this reason, the appellant insists that the Constitutional Court should not, in its decision, omit the interest of the entire system of general courts in the proper functioning of all its sub-articles.
7. The appellant is aware that the Constitutional Court, when applying the provisions of Paragraph 67 of the Law on the Constitutional Court in the framework of the so-called abstract control of standards [within the meaning of Article 64 (1) (a) and (b) of the Law on the Constitutional Court], is terminating the procedure if the contested provision of the Law expires. However, the appellant points out that the second of the cases of checking standards - a specific control of standards [§ 64 (1) (c) and (e) and (3) of the Law on the Constitutional Court] - is based on a completely different concept, the purpose of which is to exclude the unconstitutional application of the contested part of the law in a particular case.
8. In relation to the substance of the case, the appellant argues that it is impossible to protect the complainant's fundamental rights, since, under the contested provision, a judicial review of the BIS Director's decision is excluded, which, in his view, constitutes a flagrant breach of the complainant's fundamental rights within the meaning of Article 36 (1) and (2) of the Charter, namely the fundamental procedural right to have access to the Court under the conditions which are met and to seek protection for its right, including the right to a fair trial. From the point of view of constitutional protection in the field of administrative law, the appellant points to the second sentence of paragraph 2 of Article 36 of the Charter, which does not allow the possibility of excluding from judicial review cases in which a public authority has entered into conflict with some of the fundamental rights or freedoms. Exclusion from judicial review is possible when a public authority decides on subjective public rights, but not when a public authority decides on fundamental rights or freedoms guaranteed by the Charter. In this case, the issue of social law is as a fundamental right provided for in Article 30 (1) of the Charter, which states the right of citizens to adequate material security in the event of loss of the provider. Upon termination of service, certain benefits, such as a service allowance, severance pay, shall be paid to BIS members and, if the service is terminated, shall be paid to the survivors of death. The death toll in this case is a special form of security for survivors in the event of loss of the provider.
9. Where such a decision concerning basic social law was excluded from judicial review in accordance with the wording of the provision cited in the version effective until 31 December 2006, such an arrangement, according to the appellant, was not in accordance with the right to a fair trial and hence not with Article 36 of the Charter.
10. The appellant raises doubts as to the real possibility of objectively independent and impartial decision-making by the BIS Director, if the principles of a fair process are to be respected, in a situation in which the BIS Director, pursuant to Paragraph 135 (1) of the BIS Act, decides on an appeal against the BIS Director's decision.
11. The reasons which led the appellants to conclude on the inconstitutionality of the provisions of Section 139 (1) of the BIS Act, in its version effective until 31.12.2006, were previously used in the arguments concerning the decision of the plenary of the Constitutional Court of 26.4.2005 sp. zn.
12. Although the appellant admits that the guarantee provided for in Article 36 (2) The Charter does not mean an unconditional review of the decision only by a court (but is also possible by another tribunal), it must be insisted on being an independent body whose members are and can objectively be independent and impartial in their decision making. This issue was also addressed by the Constitutional Court, for example, in the find sp. zn.
13. In conclusion, the appellant points out that, in the administrative judiciary, disputes between the executive bodies of the State and individuals of private law are most often decided (as is the case in the present case), which requires sufficient effective guarantees of the maintenance of independence and impartiality of decisions, without parallel ties to executive power. These criteria are met with judges; This is not the case in the exercise of the right of procedural defence of the appellant against the decision of the Director of the BIS, which the appellant finds contradictory to Article 1, Article 36 and Article 37 (3) of the Charter.
14. It is noted from the attached file of the Supreme Administrative Court under sp. zn. 5 As 65 / 2006 (to which was attached the file of the Municipal Court in Prague sp. v. 8 Ca 57 / 2006) that Bc. E. R. (in the earlier proceedings in the applicant's procedural capacity) sought the annulment of the decision of the Director of the BIS of 10 January 2006 No 29-7 / 2005BIS-1, which was rejected by the complainant against the decision of the Director of the BIS of 7 November 2005 on the award of a death following her deceased spouse of CZK 112 491 (according to the provisions of Section 124 of the BIS Act), which was awarded to her (and to her two minor children). The applicant did not agree with this allocation of the amount granted because, in its view, the amount of death should have been granted to each of the survivors and not to a proportion of them.
15. The applicant stated that the decision taken by the Director of the BIS on 7 November 2005 was confirmed by its signature only on 7 December 2005, although it had already been informed of the text. The appeal was lodged for the postal service on 22.11.2005, in its view within the legal period.
16. By decision of the Director of the BIS of 10.1.2006 No 29- 7 / 2005BIS-1, the applicant's appeal (received by the Director of the BIS on 28.11.2005) was rejected on the grounds of the "limitation of the period of appeal."
17. As stated in its reasoning, the applicant took over the BIS Director's decision of 7.11.2005 No 11-31 / 2005BIS-1 against the signature of 8.11.2005. The 15-day period for appeal therefore started on 9 November 2005 and ended on 23 November 2005. If the appeal was delivered to the Director of the BIS on 28.11.2005, it was only after the legal period of appeal.
18. The Municipal Court in Prague rejected the action by order of 30 May 2006 No 8 Ca 57 / 2006-27 (operative part I). The reason for the rejection was that the case was not a decision by the service authority to be dismissed under § 40 (1) (c) or (d) of the BIS Act, nor was it a decision to compensate for damages of more than CZK 5,000. Since the review of other decisions of the service body is not possible (Section 139 (1) of the BIS Act) and the action was brought against a decision which is excluded from the review of the court, the Municipal Court in Prague found the action inadmissible [Sections 68 (e) and 46 (1) (d) of the Administrative Code].
19. The applicant, on the ground set out in Paragraph 103 (1) (e) of the Administrative Rules, challenged the order of the Municipal Court in Prague.
20. The Chamber of Deputies of the Parliament of the Czech Republic stated in its observations on the proposal signed by its President, Ing. Miloslav Vlček, that the contested provision of Paragraph 139 (1) of the BIS Act was an unchanged part of the Act until its annulment by Act No. 362 / 2003 Coll. with effect from 1 January 2007. The BIS Act (House Press 1015) was passed at the 21st meeting of the Chamber of Deputies on 7 July 1994 and was published in the Collection of Laws on 27 July 1994 under No 154 / 1994 Coll.
21. Act No. 362 / 2003 Coll., on the amendment of laws related to the adoption of the Act on the Service Ratio of Members of the Security Corps, (House Press 257) was approved on 2 July 2003 at the 18th meeting of the Chamber of Deputies and was published in the Collection of Laws on 31 October 2003 under No. 362 / 2003 Coll., with effect on 1 January 2007 (Article II of Act No. 530 / 2005 Coll.). Both laws, both the BIS and Act No. 362 / 2003 Coll., were properly adopted, signed and declared. The legislature was based on the belief that the legislation adopted was in line with the constitutional order of the Czech Republic, even though the contested provision of the BIS Act was later repealed by the legislator.
22. The Chamber of Deputies does not share the legal interpretation of Article 95 (2) of the Constitution, which is mainly contained in the Constitutional Court's finding, sp. v. Pl. ÚS 33 / 2000 (to which the Supreme Administrative Court also opted). By this interpretation, the Constitutional Court was "given the competence not provided for in Article 87 of the Constitution ', and it is alleged that such a legal interpretation does not take into account the intention of the legislature to place the article cited in the Constitution in a specific constitutional context further extended by the Law on the Constitutional Court.
23. In the other part of the observations, criticises are given to the appellant's arguments by which he sought to support his view on the necessity and impartiality of the role of the Constitutional Court in examining a proposal to declare the unconstitutionality of a specific provision of the law. The party to the proceedings argues that even if the legislator adopts legislation that proves to be "inefficient ', it is (only) up to the legislator to evaluate the effectiveness of the regulation and then replace it with another, more perfect, regulation.
24. However, the general courts do not give the right to not apply the legislation by decision, even if it appears to them to be ineffective. It is not for the court (general) to judge, according to its internal belief, "what is and is not in accordance with constitutional order." In this context, the argument put forward by the appellant is reduced to the construction of the imported direct application of Article 95 (2) of the Constitution, i.e. "the authorisation of general courts to consult the Constitutional Court '. If the legislature has not provided such competence to the Constitutional Court, there is no legal possibility to rely on it by general courts.
25. The legal situation in the present case is compared by a party to proceedings similar to the one dealt with by the Constitutional Court, sp. v. Pl. ÚS 33 / 2000, and indicates that the General Court should first of all examine whether the contested provision could not be interpreted in a constitutional manner, or whether its application in the present case is necessary and correct. It then accuses the appellant that he has chosen a complex procedure if, from the possible interpretations of the so-called ordinary law, he chooses to apply an already invalid provision of the BIS Act on the exclusion of judicial review, in order to then establish the contradiction of the contested provision with the constitutional order of the Czech Republic and to initiate its review by the Constitutional Court with a single objective - the contested provision in the case in question not to apply it. The appellant did not sufficiently take account of the fact that the contested provision was no longer in force at the time of its assessment and the new legislation contained in Act No 362 / 2003 Coll., effective from 1 January 2007, no longer excludes judicial review in similar cases.
26. Although the party to the proceedings is based on the legislation in force providing that the court, when examining the administrative authority's decision, is based on the factual and legal situation which was there at the time of the administrative decision, it considers that, following the annulment of the legislation in force, it should no longer be bound by the decision-making court if "its use is not imposed by the transitional provisions of the new legislation." In the light of these considerations, the party to the proceedings considers that it is not clear what the value of the rule of law or what fundamental rights and freedoms the appellant would have infringed if, in the light of the new legislation, it had allowed a judicial review of the administrative decision which could not be reviewed under the existing legislation.
27. The party to the proceedings considers the appellant's proposal to declare unconstitutional the provisions of Paragraph 139 (1) of the BIS Act to be inadmissible.
28. According to the provisions of Paragraph 44 (2) of the Constitutional Court Act, the Constitutional Court may, with the consent of the parties, refrain from oral proceedings if it cannot be expected to further clarify the case. Since both the appellant in his proposal and the President of the Chamber of Deputies of the Czech Parliament expressed their agreement to abandon the oral hearing and the Constitutional Court considered that further clarification could not be expected from the hearing, the oral hearing in the case was abandoned.
29. First, the Constitutional Court dealt with the assessment of whether it was responsible for the substantive examination of the application, since the appellant did not seek the annulment of the contested legal provision, but merely to declare its unconstitutionality. Such petition affected the fact that on 31 October 2003 it entered into force and on 1 January 2007 Act No. 362 / 2003 Coll., on the amendment of the laws related to the adoption of the Act on the service relationship of members of the Security Corps, which changed not only the BIS Act but also a number of other laws.
30. Law No 362 / 2003 Coll. annulled the contested provision § 139 (1) of the BIS Act (cf. Part Four of Article IV (3)). This issue is now regulated by another law, namely Act No. 361 / 2003 Coll., on the service relationship of members of the Security Corps, which allows the review of all decisions which have been given in proceedings under this Act by a court in Paragraph 196 (1). According to the appellant, the contested provision of Paragraph 139 (1) of the BIS Act was applied in the proceedings before the Municipal Court in Prague, as before the amendment, and thus also in the appeal proceedings, the application of the contested provision would have to be examined, which was the fundamental reason why the appellant referred to the Constitutional Court pursuant to Article 95 (2) of the Constitution.
31. The Constitutional Court has already concluded in previous Judiciaries that from Article 95 (2): It follows that its obligation is to examine the constitutionality of the contested provision of the law, even if it has already been repealed (amended), provided that the addressee of the alleged reason for the unconstitutionality is public authority, that is to say not a private law body, and that the contested provision of the law is to be used by a general court to deal with the pending case. Such legal opinion is expressed, for example, in the finding of 10.1.2001 sp. zn.
32. These conditions are met in the present case.
33. In the present case, it is necessary to answer the question whether the contested provision was actually applied to the extent proposed by the review of the case in the case brought by the Municipal Court in Prague under point 8 Ca 57 / 2006 and, if not, in the preamble to the resolution of the Municipal Court in Prague of 30 May 2006 No 8 Ca 57 / 2006-27, it is referred to whether and to what extent it is necessary to grant relevance in the procedure for checking the standards before the Constitutional Court.
34. As is apparent from the description of the procedure in question at the General Court, it is clear that the subject of the proceedings in the substance of the case was the death penalty awarded to the survivor of the BIS, which, in the light of the legislation laid down in Title Eight of the fourth BIS Act, in its version effective until 31.12.2006, is between the requirements relating to termination of service [§ 124 in relation to the provision of § 38 (e) of the Act cited].
35. The Constitutional Court therefore concludes that the Supreme Administrative Court is a legitimate appellant and thus the conditions of its active legitimacy in the standard control procedure in relation to the provisions of Section 139 (1) of the BIS Act are fulfilled.
36. The Constitutional Court has also taken into account that not all of the provisions of Paragraph 139 of the BIS Act, but only paragraph 1 of the BIS Act, which provides for an exception to the rule that the court does not review the decisions of the service body, is challenged by the Constitutional Court.
37. Exemptions from the rule not to review the decisions of the Staff Authority are clearly related to the area of claims related to the termination of service of a BIS member on his release (Sections 38 and 40 of the BIS Act); in connection with the termination of a BIS member's service, entitlement to payment of certain benefits, such as severance pay (§ 116), pay compensation (§ 117), service allowance (§ 119); if the service of a BIS member is terminated by death, the deceased shall be paid (§ 124).
38. The issue of the service contribution and the service contribution has already been addressed by the Constitutional Court in its decisions several times [see for example the finding of the Constitutional Court sp. zn. Pl. ÚS 9 / 95 of 28.2.1996 (N 16 / 5 SbNU 107; 107 / 1996 Coll.), resolution sp. zn. II. ÚS 164 / 01 and sp. zn. III. ÚS 209 / 01 (in SbNU not published, available at http: / / nalus.ujud.cz), and the finding sp. IV. ÚS 150 / 01 of 9.10.2003 (N 117 / 31 SbNU 57)].
39. In the decision sp. zn. They shall form part of social benefits relating to the termination of the service of members of these choirs'.
40. In the sense set out above, the death grants may, without doubt, be considered as one of the social benefits. The death toll shall be part of the right to adequate material security in the event of loss of the provider, protected by Article 30 (1) of the Charter.
41. Article 4 (2) The Charter may be governed by the limits of fundamental rights and freedoms under the conditions laid down by the Charter only by law, the substance and meaning of fundamental rights and freedoms being investigated (Article 4 (4) of the Charter). Subject to the examination of fundamental rights and freedoms, such legislation is not compatible which excludes judicial review of decisions of a service body on social claims.
42. The amendment to the BIS Act implemented by Law No 362 / 2003 Coll. with effect from 1 January 2007, the provisions of Sections 22 to 146a, including footnote 8) to 28) and 30) were repealed, including the contested provision of Section 139 (1) of the BIS Act. It is therefore clear that the legislature, aware of the unequal position of the members of the security corps with other civil servants, has made it possible for the new legislation to examine all the final decisions of the service authorities given in proceedings under the law marked by the court.
43. Although, in the field of economic, social, cultural and minority rights, it is a State which is allowed preferential treatment of certain groups in a different way, socially, culturally, professionally or otherwise stratified, while the legislature implements its notion of the permissible limits of de facto inequalities within the company, it is increasingly apparent that it seeks to guarantee the members of the Security Corps the same standard of protection for their procedural rights as for other civil servants, and to provide them with the possibility of safeguarding their fundamental rights within the meaning of Articles 1, 36 (1) and (2) and 37 (3) of the Charter in an independent and impartial court. Such a standard in the contested provision § 139 (1) (a) of the BIS Act was not respected. The new legislation expressed the view of the legislator that there are no relevant reasons for the continued duration of the different approach in this field.
44. The Constitutional Court, in its decision of 9 October 2003 in sp. zn. IV. ÚS 150 / 01 (see above), in which it dealt with the issue of the service contribution and its impact on the legal sphere of the complainant, took the view that, if the current legislation (i.e. 31 December 2006) does not allow all decisions of the administrative authorities on civil rights and obligations to be subject to review by a court or other independent body as referred to in Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention," the Convention "), such a procedure may be considered as an undesirable excession.
45. The Constitutional Court referred to the question whether the judicial exclusion of the review of decisions of a functional body in respect of death claims pursuant to Section 124 of the BIS Act (with the exceptions set out in the contested provision of Section 139 (1) of the BIS Act) guaranteed the parties the independence and impartiality of the decision and thus the fairness of the proceedings under the BIS Act and concluded that this was not the case. The executive body, which represents its interests in the field of professional relations, made not only a first-instance decision, but at the same time decided in the second instance on the appeal against it. In a situation in which there was no review by an independent and impartial body, the decision was dependent on the will of a single institution which, by the nature of the case, could no longer be regarded as independent or impartial. It is clear that such arrangements contradict the generally recognised meaning and purpose of Article 36 (2) of the Charter, as well as Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms and Article 4 of the Constitution, which provides that fundamental rights and freedoms are protected by judicial authority.
46. The Constitutional Court is aware of the specific features of decisions on professional matters relating to members of the intelligence services. The information received during such decision-making affects the security risks and interests of the State, which may be reflected in the restriction of the guarantees of some ordinary procedural guarantees of a proper and thus fair process such as public conduct. A similar situation was assessed by the Constitutional Court in its decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making. From the point of view of the protection of fundamental rights and freedoms, the public interest in the non-disclosure of these specific circumstances cannot constitute a complete resignation to protect fundamental human rights and freedoms, in particular the judicial review of administrative decisions.
47. The Constitutional Court concluded, for the reasons set out above, that the provisions of § 139 (1) of Act No 154 / 1994 Coll., on the Security Information Service, as amended by Act No 362 / 2003 Coll., on the amendment of the laws relating to the adoption of the Law on the Service Ratio of Members of the Security Corps, are contrary to Articles 1, 36, 37 (3) of the Charter and Article 6 (1) of the Convention, and therefore complied with the proposal of the Supreme Administrative Court pursuant to Article 95 (2) of the Constitution.
48. Having regard to Article 89 (2) The Constitution is obliged by the public authorities to reflect the consequences of the unconstitutionality found in their decision-making practice, i.e. not to apply the provisions cited in the resolution of specific cases.
President of the Constitutional Court:
JUDr. Rychetský v. r.
*) NB: Collection of finds and orders of the Constitutional Court, Volume 21, Found No. 5, p. 29 et seq., issued under No. 78 / 2001 Coll.
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Regulation Information
| Citation | The Constitutional Court found no. 5 / 2010 Coll., on the application to declare unconstitutional the provisions of § 139 paragraph 1 of Act No 154 / 1994 Coll., on the Security Information Service, as amended by Act No 362 / 2003 Coll. |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 08.01.2010 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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