The Constitutional Court found No. 82 / 2013 Coll.
Findings of the Constitutional Court of 15 January 2013 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
03.04.2013
82
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 15 / 12 on 15 January 2013 in plenary composed of Stanislav Balík, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimir Krorka, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Excellent and Michaela Židlická on the proposal of the Supreme Administrative Court, filed under Article 95 (2) of the Constitution of the Czech Republic for the annulment of the provisions of Article 70 (d) of Act No. 150 / 2002 Coll., the Administrative Code, in the words "People's Health of the Parliament of the Czech Republic," and the Senate of the Parliament of the Czech Republic as parties to the proceedings,
as follows:
I. The application for annulment of the provisions of § 70 (d) of Act No. 150 / 2002 Coll., the Administrative Rules, in the words "the state of health of persons or" is rejected.
II. The decision to appeal against non-recognition for a person with disabilities within the meaning of § 67 (2) (c) of Act No. 435 / 2004 Coll., on Employment, is not excluded from judicial review under the provisions of § 70 (d) of the Administrative Code.
Reasons
1. On 11 May 2012, the Constitutional Court received the application of the extended Senate of the Supreme Administrative Court (hereinafter referred to as "the appellant ') to repeal the provisions of § 70 (d) of Act No. 150 / 2002 Coll., the Administrative Rules, in the words" the state of health of persons or' (hereinafter referred to as "the contested provision ').
2. The applicant submitted this proposal after having concluded, in the context of its decision-making activities (Case No 6 Ads 109 / 2009), in accordance with Article 95 (2) of the Constitution of the Czech Republic ("the Constitution ') that the contested provision is contrary to the constitutional order.
Proceedings before administrative authorities and administrative courts
3. At the request of Vladimir Pick, an administrative procedure was initiated to assess whether the designated person was a disabled person within the meaning of Section 67 (2) (c) of Act 435 / 2004 Coll., on Employment, as amended by 31.12.2011, ("the Employment Act '). The Labour Office in Olomouc, by its decision of 10 September 2007 No. OJ / 2007 / 61-OL, stated that the applicant was not such a person. The appeal of Vladimir Pick against this decision was rejected by the decision of the Ministry of Labour and Social Affairs (" the Ministry') of 20 March 2008 No 2007 / 62310-33.
4. By judgment of 6 February 2009 No 2, Cad 59 / 2008-30, the Municipal Court in Prague annulled the Ministry's decision of Vladimir Pick, because it concluded that the opinion of the opinion committee of the Ministry of Labour and Social Affairs drawn up to assess the applicant's health in the context of the appeal procedure was incomplete and unconvincing and was, moreover, processed by a committee in an incorrect composition. With this annulled judgment, the Municipal Court in Prague has given the defendant administrative authority an obligation to draw up an additional opinion and a new decision on the case. The defendant's judgment was complained against by the Ministry of Labour and Social Affairs in which it argued that the opinion of the opinion committee of the Ministry of Labour and Social Affairs dated 29 February 2008 did not suffer from the alleged defects.
5. The Sixth Chamber of the Supreme Administrative Court, in the context of the appeal proceedings, addressed the question whether the decision to grant the status of a disabled person is at all subject to judicial review. It concluded that, in its judgment of 17 February 2010 in Case 168 / 2009-86, the fourth Chamber of the same court ruled out the review of the decision to grant the status of a disabled person with reference to the provisions of § 70 (d) of the Administrative Rules of Procedure (hereinafter referred to as "p. '). Since the Sixth Chamber of the Supreme Administrative Court did not agree with this view, it submitted the case pursuant to Paragraph 17 of the extended Chamber. In the legal opinion of the Sixth Chamber of the Supreme Administrative Court, the decision on the recognition of a person who is disadvantaged under the provisions of Section 67 of the Employment Act cannot be excluded from judicial review. That decision interferes with the law under Article 29 (2) of the Charter of Fundamental Rights and Freedoms (" the Charter') and therefore the judicial review of the decision is guaranteed under Article 36 (2) of the Charter (even if the condition for exclusion under the contested provision would be formally fulfilled). In addition, the Sixth Chamber of the Supreme Administrative Court expressed the belief that a decision not to be recognised as a person with disabilities (or an appeal decision) constitutes an obstacle to the pursuit of an occupation, employment or business or other economic activity, as appropriate.
6. On the other hand, the enlarged Chamber of the Supreme Administrative Court stated that the decision not to be recognised as a disabled person in itself did not create an obstacle to the pursuit of a profession, employment or business or other economic activities. However, it attracted the Sixth Chamber of the Supreme Administrative Court to the fact that this decision interferes with the law conferred by the "constitutional regulations and international treaties', thus excluding its judicial review is constitutionally prohibited. For this reason, the enlarged Senate of the Supreme Administrative Court has referred the Constitutional Court to the application for annulment of the contested provision.
Recital of the proposal
7. The extended Chamber of the Supreme Administrative Court, as indicated above, justified its application for annulment of the contested provision by interfering in the fundamental rights guaranteed by Article 29 of the Charter. Paragraph 67 of the Employment Act, on the basis of which the decision on recognition as a disabled person takes place, states that, according to the appellant, Article 29 (1) and (2) of the Charter, which lays down, inter alia, the right of disabled persons to improve their health at work, to special working conditions, to special protection in working relations and to help prepare for employment. Therefore, the appellant considered that this was a decision affecting fundamental rights and freedoms under the Charter, the review of which cannot be ruled out by law in the light of Article 36 (2) of the Charter. In this context, the appellant stated that, in view of the provisions of Article 36 (2) of the Charter, it is not decisive whether and in which case the fundamental right in question is enshrined, which was supported by references to the case law of the Constitutional Court.
8. The appellant also - aware of the doctrine of priority of constitutionally conformal interpretation prior to the deregulation of a legal provision - noted that the constitutionally conformal interpretation of the contested provision was not considered possible. In this context, he rejected the opinion of the Sixth Chamber of the Supreme Administrative Court on the basis of the attached detailed argument, according to which the decision not to be recognised as a person with disabilities (or an appeal decision) constitutes an obstacle to the pursuit of a profession, employment or business or other economic activity, as appropriate.
9. However, in order to remedy the unconstitutional state, it is not necessary, according to the appellant, to abolish the entire provision of Paragraph 70 (d) (d) (ii) (ii) (ii) (iii) (iv) (iv) (iv) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v). Such a derogatory statement will be sufficient for the decisions of the Ministry of Labour and Social Affairs concerning the fundamental rights of Vladimir Pick to be reviewed.
Observations of the parties
10. The Chamber of Deputies of the Parliament of the Czech Republic (hereinafter referred to as the Chamber of Deputies), in its observations on the proposal of 20 July 2012, signed by the President of the House of Miroslava Nemcová, stated that the motion for an administrative court order was submitted to the Chamber of Deputies by the Government of the Czech Republic on 1 October 2001. The government bill was distributed to Members as House Press No. 1080 on 4 October 2001 in the III parliamentary term. The Chamber of Deputies debated the Government's proposal for the Administrative Order at first reading on 25 October 2001 and ordered it to be discussed by the Constitutional Legal Committee, which discussed it on 29 January 2002 and issued a resolution published as House Press No. 1080 / 1. The Chamber of Deputies discussed the draft Administrative Rules at second reading on 30 January 2002 and 8 February 2002. The amendments to the draft law were drafted and published under the number of the House Press 1080 / 2. At the third reading on 15 February 2002, a resolution was adopted by which the Chamber of Deputies gave its assent to the Government's motion for an administrative order, as amended by the approved amendments. The contested provision of the Administrative Rules was not affected by amendments approved by the Chamber of Deputies at third reading. The Chamber of Deputies passed the bill to the Senate of the Parliament of the Czech Republic (Senate) on 25 February 2002. The Senate agreed with the draft law on 22 March 2002 (correctly on 21 March, note of the Constitutional Court). The Act was served on 26 March 2002 on the President of the Republic, who signed it on 28 March 2002. On 17 April 2012 the Act was published in the Collection of Laws under No. 150 / 2002 Coll.
11. In its observations on the proposal of 13 July 2012, signed by the President of the Senate, Milan Štěm, the Senate stated that the draft Code of Administrative Procedure had been served on the Senate on 25 February 2002 and had been assigned a press number 223 in the Senate register of the 3rd term of office. The Constitutional Legal Committee and the Committee on Territorial Development recommended that the Senate approve the draft law as referred to by the Chamber of Deputies. On 21 March 2002, at the 15th meeting of the 3rd term, the Senate approved the draft law, as referred to by the Chamber of Deputies. In its submission to the Constitutional Court, the Senate expressed its belief that it had acted within the limits of the Constitution laid down competence and in a constitutional manner.
12. As regards the substantive assessment of the proposal, the Senate noted that the individual potentially controversial provisions had not been discussed in detail in the framework of the Code negotiations and that the decision to comply with the contested provision with the constitutional order was entirely up to the Constitutional Court.
13. The observations of the Government and the Ombudsman were not requested (cf. Communication from the Constitutional Court Org. 72 / 12 of 18 December 2012, paragraph 3, published under No 469 / 2012 Coll.)
Abandonment of oral proceedings
14. The Constitutional Court did not expect further clarification of the case from the oral proceedings, therefore it waived it under the provisions of § 44 of the First Law No 182 / 1993 Coll., on the Constitutional Court, as amended (hereinafter referred to as the Law on the Constitutional Court) (cf. also the communication cited above in paragraph 13).
Derogation of the contested provision
15. Paragraph 70 (d) of Act No. 150 / 2002 Coll., the Administrative Rules of the Court, is worded (the contested part of the provision highlighted):
Competitive exclusions
Acts of an administrative authority shall be excluded from judicial review.
(...)
(d) the issue of which depends solely on the assessment of the state of health of persons or of the technical state of affairs, provided that they do not in themselves constitute a legal obstacle to the pursuit of the profession, employment or business or other economic activities, unless otherwise provided for in a special law
(...).
Assessment of the jurisdiction of the Constitutional Court to discuss the application and the applicant's active legitimacy
16. In particular, the Constitutional Court had to consider whether the procedural conditions for the hearing were fulfilled; In this context, he focused primarily on the question of whether the extended Senate of the Supreme Administrative Court was actively legitimised for the application.
17. According 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 for consideration. The provisions of Paragraph 64 (3) of the Law on the Constitutional Court further extend this provision, according to which the application for annulment of the law or its individual provisions is also entitled to be lodged by the Court in the context of its decision-making activities under Article 95 (2) of the Constitution.
18. The Constitutional Court notes that the active legitimacy of the enlarged Senate of the Supreme Administrative Court for hearing a case (and thus also for bringing an application pursuant to Article 95 (2) of the Constitution) can be established only if the case has been referred to it in accordance with § 17 of the Rules of Procedure. The Constitutional Court found that the case was referred to the enlarged Chamber of the Supreme Administrative Court by the sixth Chamber of the same court. There was no doubt that the contested provision, or its interpretation, was of key importance to the decision on the matter. The referring Chamber in the order for reference requested, in particular, that a decision which had not been granted the status of a person with a medical disability should be regarded as an obstacle to the pursuit of a profession or employment within the meaning of Article 70 (d) (c) (ii) (c) of the Constitution; it therefore did not have the effect of making a proposal for the annulment of that provision or part thereof (which, in the light of the provisions of Article 95 (2) of the Constitution, it could do without consulting the enlarged Chamber). However, a substantial part of the argument contained in the reference report was aimed at calling into question the constitutional conformity of the interpretation of the contested provision in question, according to which the decision in question would not have been subject to judicial review.
19. In a situation in which the enlarged Chamber did not accept the interpretation offered by the Sixth Chamber of the Supreme Administrative Court, it was so highly likely that the Sixth Chamber, after a possible referral to the Constitutional Court, would itself submit an application for annulment of the provision in question. If the Constitutional Court were to insist that, in such a case, the enlarged Senate could not submit a proposal pursuant to Article 95 (2) of the Constitution, it would be a manifestation of overstretched formalism, as a result of which only an extension of the procedure before the courts (it must be borne in mind that, in the present case, it is a specific control of the standard and that the proceedings themselves have been held before administrative courts for several years).
20. For all the above reasons, the Constitutional Court therefore concludes that the enlarged Chamber of the Supreme Administrative Court, if it has reached the conclusions of the proposal set out above, has been actively authorised to file an application for annulment of the contested provision.
Review of the procedure for the adoption of the legislative provision under review
21. The Constitutional Court, as required by Paragraph 68 (2) of the Law on the Constitutional Court, subsequently examined whether the contested provision had been adopted within the limits of the Constitution laid down in competence and in a constitutional manner. It has been based on further cited shortwriting reports and on the statements of both chambers of Parliament.
22. From the shorthand report of the 46th meeting of the Chamber of Deputies held on 15 February 2002, the Constitutional Court found that Law No 150 / 2002 Coll. tabled by the Government (Press No 1080) was adopted by the Chamber of Deputies at third reading in vote No 589, with 103 Members voting in favour of the proposal from 157 Members present and 44 voting against it.
23. It follows from the report of the 15th meeting of the Senate on 21 March 2002 that the bill was passed on to the Senate on 25 February 2002. At the 15th meeting of the Senate, the bill was passed on 21 March 2002 in the version referred to by the Chamber of Deputies (Senate Resolution 326); in vote 94, of the 65 senators present, the Senators voted in favour of proposal 52 and against proposal 1.
24. On 26 March 2002 the law was served on the President of the Republic; he signed it on 28 March of the same year.
25. On 17 April 2002 the law was declared in the amount of 61 Collection of Laws under the number 150 / 2002 Coll.
26. The Constitutional Court held that Act No. 150 / 2002 Coll., of which the contested provision is part, was adopted and issued within the limits of the constitutional competence and the constitutional procedure.
Meritorious review of the proposal
27. After assessing the constitutionality of the procedure for the adoption of the contested law, the Constitutional Court focused on its substantive compliance with the constitutional order.
28. Paragraph 70 (d) (d) (ii), to the extent that it was contested, rules out judicial review of the decision on recognition as a person disadvantaged under Paragraph 67 (2) (c) of the Employment Act, according to the interpretation of the extended Chamber of the Supreme Administrative Court. It is a decision which fulfils the conditions of the contested provision, since the issue is solely dependent on the assessment of the state of health and is not in itself a decision which constitutes a legal obstacle to the pursuit of a profession, profession or business or other economic activity. In other words, the decision to be recognised as a disabled person concerns the legal sphere of the individual or his public subjective rights (otherwise the decision within the meaning of Paragraph 65 of the EC Treaty would not be taken), but the benefit of judicial review is denied to the person concerned.
29. According to Article 36 (2) Although the judicial review of a decision of a public authority may be excluded (Article 36 (2) of the Charter, first sentence in fine), the review of decisions concerning fundamental rights and freedoms under the Charter (Article 36 (2) of the Charter, second sentence) may not be excluded from the jurisdiction of the court. The term "fundamental rights and freedoms under the Charter 'within the meaning of Article 36 (2) In the case-law of the Constitutional Court, the Charter was already interpreted as affecting the rights enshrined in the title of the Fourth Charter (cf. Case 11 / 2000 ÚS of 12.7.2001, N 113 / 23 SbNU 105, 322 / 2001 Coll.). Therefore, should the Constitutional Court conclude that the decision on (no) recognition as a person disadvantaged under Paragraph 67 (2) (c) of the Employment Act affects one of the fundamental rights under the Charter, the exclusion of its judicial review should be regarded as unconstitutional.
30. The Constitutional Court agrees with the appellant's legal opinion, according to which the provision of Section 67 of the Employment Act, on the basis of which the decision on recognition as a disabled person takes place, is the legal implementation of Article 29 (1) and (2) of the Charter, including the right of persons with disabilities to improve health at work, to special working conditions, to special protection in employment relations and to assist in the preparation of the profession. In this respect, the appellant's argument is as appropriate as the implicit or explicit views expressed in the judgment of the Municipal Court in Prague or in the resolution of the 6th Chamber of the Supreme Administrative Court (cited above in paragraphs 4 and 5). Nor can it be overlooked here that in the proceedings from which the derogatory view arose, not only did none of the decisive courts, but neither did the Ministry of Labour and Social Affairs, which lodged a complaint against the judgment of the Municipal Court in Prague, as it was backed by a completely different line of reasoning.
31. The decision on recognition as a disabled person determines whether a disabled person, who is a special holder of constitutionally guaranteed rights within the meaning of Article 29 of the Charter, is effectively able to obtain increased protection, expressed by specific measures, in the level of subconstitutional law (e.g. in the field of occupational rehabilitation), or whether he will be regarded as a bearer of basic law for the purposes of implementing laws. Therefore, a negative decision in this case may deprive the person concerned of the constitutionally guaranteed protection.
32. According to the Constitutional Court, the decision on recognition as a disabled person also affects the right to health under Article 31 of the Charter, but the provisions of Article 29 (1) may be regarded as a lex specialis for the provision of Article 31 of the Charter (cf. Comment. Praha: Wolters Kluwer, 2012, str. 620 and 621).
33. For the reasons set out above, the Constitutional Court concluded that the decision on (no) recognition as a person with disabilities (or the decision to appeal against it) was an act relating to a fundamental right under the Charter within the meaning of Article 36 (2) of the Charter, and therefore excluding that decision from judicial review would be unconstitutional.
34. In addition, the Constitutional Court focused on examining whether the conclusion thus expressed (paragraph 33) must necessarily lead to the derogation of the contested provision. He concluded here that the contested legal provision (concerning - let us recall - health review only) is not unconstitutional in its entirety (as such, it has been applied for decades without greater doubt), but "only 'acts unconstitutional in relation to (some) specific decisions affecting fundamental rights; This happened in the case discussed by the Supreme Administrative Court and before the Municipal Court in Prague.
35. The Constitutional Court has no objection to the appellant's legal opinion that a negative decision on recognition as a disabled person does not in itself constitute a legal obstacle to the pursuit of a profession or employment; The Constitutional Court also attracts the appellant that the contrary interpretation of the contested provision would not be an appropriate solution to the outlined unconstitutional state. Indeed, the appellant rightly observed that such an interpretation would remove the unconstitutional impact of the exclusion of judicial review, but only at the cost of the interpretation of the legal provision in question by contra legem; It is only exceptionally acceptable to resort to this possibility, and only in a situation where there is no other way to resolve the unconstitutional situation. It will also be explained that this is not the case now under discussion.
36. In spite of that, the Constitutional Court notes that the contested provision can not only be interpreted but must be interpreted as meaning that, although justified in many other cases, it must not, in the light of the provisions of Article 36 (2) of the Charter, affect fundamental rights of the Charter guaranteed. This interpretation does not therefore argue with the adversarial (cf. paragraph 35) by reference to the very provision of § 70 (d) s., but the interpretation of the specific concept used in the contested provision is supplemented by the rule resulting from the regulation of higher legal force (cf. IV. ÚS 1554 / 08 of 15.1.2009, N 12 / 52 SbNU 121, paragraph 24). As a result of that interpretation of the contested legal provision, the conclusion is as follows:
The actions of an administrative authority the issue of which depends solely on the health assessment of persons shall be excluded from judicial review,
- unless they themselves constitute a legal obstacle to the pursuit of a profession, profession or business or other economic activity,
- or unless such acts concern fundamental rights guaranteed by the Charter.
37. The act by which the administrative authority decides on the question (not) of recognition of a person as a person with disabilities is precisely that which, although in itself does not constitute any of the legal obstacles referred to in § 70 (d) (d) (ii) (ii) (ii) (ii) (iii) (iii) (iv) (iv) (iv) (iv) (iv) (iv) (iv) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v (v (v) (v) (v) (v) (v (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v
38. For that Constitutional Court, he rejected the application for the deregulation of the legislative provision under review, but at the same time, because of the establishment of legal certainty, he added an interpretative finding statement guaranteeing (not only in the case of the appellant addressed) a constitutional right to review a decision which the appellant rightly considered to affect the constitutionally guaranteed fundamental rights of the individual.
39. In this context, the Constitutional Court also adds that if, in the present case, it had preferred derogation to the above-mentioned solution, it would have opened up the possibility of reviewing a number of medical opinions (or, more precisely, decisions derived from them) which do not affect the fundamental rights of the individual; The Constitutional Court has already expressed itself very reserved (albeit indirectly) in its earlier caselaw (cf. sp. zn.
40. The Constitutional Court points out that it does not in itself prejudge to what extent a judicial review of a decision based on a professional health assessment will be carried out; It can naturally be assumed that the judicial review in this case will serve only to eliminate excesses, or to supervise the lawfulness of the decision and the procedure preceding the decision (including the method of determining the state of health of the person under consideration), but not to expert controversy with the factual conclusions contained in the decision or in the medical opinion on which the decision was based.
Conclusion
41. The Constitutional Court therefore summarises that the decision to be recognised as a person with disabilities and the decision to appeal against it are decisions relating to a fundamental right under the Charter within the meaning of Article 36 (2) of the Charter, therefore excluding such decisions from judicial review is unconstitutional. However, in view of the principle of priority of constitutionally conformal interpretation prior to deregation, the Constitutional Court rejected the application for annulment of the contested provision pursuant to Paragraph 70 (2) of the Constitutional Court Act. However, the negative statement supplemented the statement by interpretative, binding administrative courts to grant the benefit of judicial review to persons seeking administrative action against the decision to appeal against non-recognition as a person disadvantaged within the meaning of Article 67 (2) (c) of the Employment Act.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No. 82 / 2013 Coll., on the application for annulment of Section 70 (d) of Act No. 150 / 2002 Coll., Administrative Rules |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 03.04.2013 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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