Klára Hamuľáková
The analysis of the models of justical
control of administrative bodies’ acts
in the Czech Republic
Studia Prawnoustrojowe nr 16, 45-52
2012
Klara Hamul’akova
D ep artm en t of Civil and Labour Law Palacky U niversity in Olomouc
The analysis of the models of judicial control
of administrative bodies’ acts
in the Czech Republic
T he R ig h t to J u d ic ia l P r o te c tio n
The rig h t to judicial protection an d fair tria l belongs to fundam ental h u m an rig h ts and as such it is g u a ra n tee d on the sta te con stitutional level as well as on in te rn atio n a l level. W ithout securing th e rig h t to judicial protection th e o th er fu n dam en tal h u m an rig hts would lose sense, redress would be unenforceable in case of violation an d sooner or la te r it would be nothing b u t “dead im peratives” for desired behavior. T hus th e rig h t to ju d i cial protection does not only include c e rtain catalogue of procedural laws which m u st be secured for th e legal persons in th e course of th e judicial proceedings, b u t also th e specific fu n d am en tal rig h t to access to court. The court m u st th e n h e a r th e case justly, publicly and w ithin a reasonable tim e limit.
The rig h t to judicial and o th er legal protection in th e Czech Republic arises from th e Article no. 36 of C h a rte r of fun dam ental rig h ts and basic freedoms, th e judicial control of ad m in istrativ e bodies’ acts is concretely regu lated in p a ra g ra p h 2 of th is article th a t states: U nless a law provides otherw ise, a person who claim s th a t h e r rig h ts were curtailed by a decision of a public ad m inistrativ e au th o rity m ay tu rn to a court for review of the legality of th a t decision. However, judicial review of decisions affecting th e fu n d am en tal righ ts and basic freedoms listed in th is C h a rte r m ay not be rem oved from th e jurisd ictio n of courts. “On th e in te rn atio n a l level, it is article 6 of th e E u ro p ean C onvention on H u m an Rights th a t reg u lates the rig h t to a fair tria l and is specified by th e case-law of th e E uropean Court of H um an R ights”.
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T h e le g a l r e g u la tio n o f ju d ic ia l c o n tr o l o f a d m in is tr a tiv e b o d ie s ’ a c ts in th e C zech R e p u b lic
The cu rren t, tw o-part, system of the judicial control of the adm inistrative bodies reassum ed to th e legal regulation valid in the tim es of so-called „First Republic”, which was (together w ith th e jurisprudence of the Suprem e adm ini strative court) of an extrem ely high-quality. A fter the Second World W ar and during the period of totality regime, th e judicial control of the adm inistrative bodies’ acts, especially the p a rt of the adm inistrative justice, slowly declined and finally ceased completely. In these days th ere was nobody com petent to control th e proceedings and th e decisions of the adm inistrative bodies in public law m atters. Obviously, this situation was untenable after th e Velvet revolution in 1989 and it was th e reason for the enactm ent of a “new” C hapter Five (called A dm inistrative justice) of th e Civil Procedure Code (Act no. 99/ 1963 Coll.) by the Act no. 519/1991 Coll. The provisions of this C hapter regula ted proceedings concerning cases which were decided by an adm inistrative body in both cases, when they concerned private law m atters and public law m atters. N evertheless, this regulation h ad a lot of deficiencies, which were criticized not only by th e C onstitutional court b u t also were ap p aren tly c o n trary to th e provisions of th e E uropean Convention on H u m an Rights.
The C onstitutional Court, influenced by this criticism solved th e s itu ation by complete annulm ent of C hapter Five of the Civil Procedure Code (judgment no. 276/2001 Coll.). Although the Constitutional Court judgem ent was very im portant there were also some deficiencies. The Constitutional Court annulled by its judgem ent the whole C hapter Five of th e Civil Procedure Code. It did not contain only unconstitutional provisions, however they were an n u l led as well. Therefore this attitu d e of th e C onstitutional court was obviously contrary to the sp irit of th e role of th e C onstitutional court in th e society.
The m ain reasons of th e C o nstitutional court judgem en t nullifying th e existing legal regulation of th e control of th e ad m in istrativ e bodies’ acts was th e discordance w ith th e obligations arising from th e provisions of th e E u ro pean Convention on H um an R ights, in concrete from its article 6 regulatin g th e rig h t to a fair tria l (due process) an d also the discordance w ith the jurisp ru d en ce of th e E u ro p ean C ourt of H u m an R ights. To th e oth er deficien
cies, which were criticised by th e C o nstitutional court, belonged p rim ary the non-existence of the Suprem e A d m inistrative Court, which was g u aran teed by the C onstitution of th e Czech Republic. This court shall en su re th e unifi cation of th e jurisp ruden ce in th e field of th e judicial control of th e adm ini stra tiv e bodies’ acts in public law m atte rs. Secondary it were also th e ab sen ce of th e legal regulation concerning the protection ag ain st illegal procedure or illegal interventio n of th e ad m in istrativ e authority, which do not have the c h a ra c te r of the decision an d th e absence of legal regulation concerning the protection from inactiveness of th e ad m in istrativ e authority.
In th is way th e C o nstitutional court solved th e situ a tio n of a lot of deficiencies in th e legal regulation of th e control of th e adm in istrativ e bodies’ acts th a t were contrary to our co n stitutional system b u t also co ntrary to provisions of th e E u ro p ean Convention on H um an Rights and a fte r the nullification of th e whole C h ap ter Five of th e Civil Procedure Code and as a consequence th e law m akers were forced to p rep are intensively new legal regulation. The ju d g m en t en tered into force on the 1s t of J a n u a ry 2003.
For economic as well as legal reasons th e model of dual judicial control of ad m in istrativ e bodies’ acts was eventually found as optim al. The new legal reg ulation of th e control of th e ad m in istrativ e bodies’ acts is now based on th e sam e principles as the reg u lation in th e period of th e F irs t Republic. The decisions of th e ad m in istrativ e bodies in public law m a tte rs are revie wed by ad m in istrativ e courts (according to A dm inistrative Procedure Code, Act no. 150/2002 Coll.) an d th e decisions of th e ad m in istrativ e bodies in p rivate law m a tte rs (e.g. th e rig h ts in rem reg istratio n s in the Land Regi ster) are reviewed by th e civil courts, according to C h ap ter Five of th e Civil Procedure Code (Act no. 99/1963 Coll.).
Legal R egulation of Ju d icial Control of A dm inistrative Bodies’ Acts in th e Czech Republic from th e Viewpoint of Article 6 of th e E uropean Conven tion on H um an Rights
H earing and rulin g in cases concerning civil rights, obligations or ju stifi cation of any crim inal charge in so called full jurisdiction is one of the fu n d am en tal g u aran tees of th e rig h t to a fair trial. Even though th e req u ire m en t for decision-m aking in full jurisd ictio n is not explicitly sta te d in the article 6 of th e E u ro p ean Convention on H um an Rights it resu lts from a wide case-law of th e E uro pean C ourt of H um an R ights1. A lthough the
ju d ic a tu re of th is court is in m any respects different, it is possible to infer th a t in order to m eet th is req u irem en t it is enough if the court carrying out th e control of ad m in istrativ e bodies’ decisions is authorized to judge the problem complexly, from th e factual as well as legal view point and in this respect it can also carry out evidence. However, double instan ce proceeding2
is not required and in th e m a tte rs of civil righ ts and obligations th e possibili ty to change th e decision is not required either. The cassation system of
1 A ccording to th e ju d g m e n t o f th e E u ro p e a n C o u rt of H u m a n R ig h ts in th e case o f A lb ert a n d Le C o m p te (A lb ert a n d Le C o m p te v. B elg iu m o f 10.10.1983. C o m p la in t 7299/75 a n d 7496/ 76) it is su ffic ie n t if th e decisio n of th e a d m in is tra tiv e body c a n s u b s e q u e n tly be su b je cted to co n tro l c o n d u cted b y in d e p e n d e n t a n d im p a r tia l tr ib u n a l w ith full ju ris d ic tio n .
2 E v e n th o u g h th e d o u b le in s ta n c e p ro c ee d in g does n o t b elo n g to th e fu n d a m e n ta l e le m e n ts o f th e r ig h t to a fa ir tr ia l a n d is g u a ra n te e d b y a r t. 6 sec. 1 o f th e E u ro p e a n C o n v en tio n on H u m a n R ig h ts a n d a r t. 2 sec. 1 o f th e Protocol no. 7 o f th e E u ro p e a n C o n v e n tio n o n ly in th e c rim in a l pro ceed in g s, it is o b viously d e sira b le if n o t e s s e n tia l in o rd e r to se c u re p ro p e r ju d ic ia l p ro tec tio n . See F. M a tsc h er, T h e r ig h t to a fa ir tr ia l in the case-law o f th e o rg a n s o f the
E u ro p e a n C o n ven tio n on H u m a n R ig h ts , [in:] T h e r ig h t to a fa ir tria l, C ouncil o f E u ro p e
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control is sufficient if th e ju d gm en t of th e court is binding on th e a d m in istra tive body to which th e case was re tu rn e d3.
However, th is level of protection is only required in th e m a tte rs of civil rig h ts and obligations an d ju stificatio n of any crim inal charge, b u t not in o th er cases. At th e sam e tim e it is necessary to point out th a t th e m eaning of th e expression civil rig h ts an d obligations does not overlap w ith th e m eaning of th e expression p riv ate rig h ts, or in oth er words w ith th e power of civil courts defined in § 7 sec. 1 an d 2 of th e Czech Civil Procedure Code. The civil rig h ts and obligations are in te rp re te d by the case-law of th e E uropean Court for H um an R ights in a bro ader context, including even those m a tte rs which according to our law belong to th e category of public affairs.
For th is reason c e rtain cases w hich are considered u n d er th e case-law of th e E uropean C ourt of H um an R ights as a p a rt of civil rig h ts and obligations an d about which th e ad m in istrativ e bodies previously decided, are subject to th e control of civil courts according to th e ch ap ter five of th e Civil Procedure Code and the re st of these cases along w ith other public m a tte rs are subject to review by th e adm in istrativ e justice. Thus, full jurisdictio n m u st be provi ded even by th e ad m in istrativ e courts in these m atters.
This req u irem en t is fully satisfied in private law cases as th e p a rties to th e proceedings are provided w ith even higher level of protection th a n is required. If th e court, according to sec. 5 of th e Civil Procedure Code, re aches a conclusion th a t the decision of th e ad m in istrativ e body was not ap propriate, th e court will solve th e specific case by delivering its own judgm ent. This judg m ent shall replace the decision of th e ad m in istrative body to th a t ex ten t w hich fits the im portance of the judgm ent. W ith respect to th e reasonable application of th e provision of th e first to fou rth chap ters of th e Civil Procedure Code th e proceeding concerning cases w hich were decided by a different body (proceeding according to th e ch ap ter five of th e Civil Procedure code) is a two-level proceeding. T hus th e p arties to the ad m in istrativ e proceeding, th e subject of w hich was a p rivate law issue, can seek judicial protection they would have received in case th e issue h a d been covered by th e power of civil courts if it was not prim arily vested in the power of ad m in istrativ e bodies4.
3 See e.g. ju d g m e n t of th e E u ro p e a n C o u rt o f H u m a n R ig h ts in th e c ase of Z u m tobel v. A u s tr ia o f 21.09.1993, C o m p la in t 12235/86.
4 A s M. M azan ec s ta te s m ere com pliance w ith th e re q u ire m e n t o f full ju ris d ic tio n for h e a r in g th e case b y A d m in is tra tiv e C o u rt w ould in fa ct b e a ste p b a c k w a rd s, m e a n in g t h a t a litig a n t w ould b e “u n lu c k y ” to h a v e h is p riv a te case e n tr u s te d u n d e r th e ju ris d ic tio n of a d m in is tra tiv e body. H e w o u ld lose th e b e n e fit of b e in g h e a r d b y th e civil c o u rt a n d h e could “o n ly ” b e n e fit from full ju ris d ic tio n before th e A d m in is tra tiv e C o u rt, i.e. a c e r ta in m in im u m of g u a r a n te e s o f ju s tic e re s u ltin g fro m in te r n a tio n a l leg a l o b lig a tio n s o f th e s ta te b u t n o t fro m full a n d e la b o ra te “s ta n d a r d ” civil c o u rt p ro c ed u re . M. M azan ec, R o z h o d o v a n i so u k ro m o p ra v n ic h
v ic i s p r a v n im i o rg a n y (D e cisio n -m a k in g by a d m in is tr a tiv e b odies in p r iv a te la w m a tter s),
However, the above m entioned can have negative consequences as in the fu tu re th e ad m in istrativ e body obviously is not bound by th e decision of the civil court and th u s th e decisions of courts do not necessarily have to be unified w ith th e decisions of the ad m in istrativ e bodies w hen they deal w ith th e sam e issues. As E. W agnerova sta te s in h e r dissenting opinion on the ju d g m ent of th e C onstitutional C ourt Pl. US 26/08, th e ad m in istrativ e bodies can on th e contrary rep e a t th e ir m istakes w ithout th e cases being retu rn ed to them and w ithout any p ressu re being m ade on them to accept th e opi nions delivered by th e ad m in istrativ e court in case it was th e ad m in istrative court w hich m ade th e decision. On top of th a t if th e ad m inistrativ e bodies in sist on th e ir way of legal assessm en t of certain rep eated circum stances or on th e ir in te rp re ta tio n of law an d if it is necessary to repeatedly rep a ir th e ir wrong decisions th roug h general (civil) court decisions it is again obvious th a t the legal regulation itse lf contributes to predictable prolonging of the proceeding. The p arties are endangered by this stru c tu ra l deficiency in this legal regulation as th e ir fu n d am en tal rig h t is violated, tak in g into account th e lengthiness of th e whole proceeding even though from th e form al point of view th ere are two proceedings - ad m in istrativ e and a court proceeding (before a civil court)5.
As far as th e legal regulation of ad m in istrativ e justice is concerned, the original in tentio n of th e reform took into account th e fact th a t th e decisions of ad m in istrativ e bodies upon civil rig h ts and obligations or crim inal charges will be subject to review in full jurisdiction and rulings of ad m in istrative bodies to w hich th e art. 6 sec. 1 of th e E uropean Convention on H um an Rights does not apply will be reviewed only for th e ir legality. The A dm ini stra tiv e Procedure Code finally inclined to th e unified concept of evidence. Article 77 sec. 1 of th e first clause of th e A dm inistrative Procedure Code sta te d th a t w ithin th e fram ew ork of evidence the court can rep e a t or comple te evidence used by the ad m in istrative body. A fter in itial difficulties concer ning in te rp re ta tio n of th is article th e Suprem e A dm inistrative Court held a clear and stabile view saying th a t § 77 sec. 2 first clause of th e A d m in istra tive Procedure Code is a factual tran sp o sition of th e req u irem en t for so- called “full ju risdiction” as an a ttrib u te of th e rig h t to a fair trial. W hen m aking a decision th e court m u st not be lim ited in factual m a tte rs only by th e evidence found by th e ad m in istrativ e body and not even by th e ex ten t of th e used evidence, nor th e ir content and assessm ent of th e ir seriousness, legality an d veracity. T hus th e court shall individually and independently assess th e correctness of factual findings done by th e ad m in istrativ e body and if it comes across factual or procedural legal deficiencies it can react
5 T h e ju d g m e n t o f C o n s titu tio n a l C o u rt o f 7.04.2009. P l. U S 26/08 (C ollection of J u g m e n ts a n d R u lin g s of th e C o n s titu tio n a l C o u rt, vol. 53, ju d g m e n t no. 82).
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e ith e r by im posing on th e ad m in istrativ e body the duty to remove, replace or complete th e deficiencies, or it m ay do so itself. However, th e evidence carried out by th e court m u st aim exclusively a t acknowledging th e facts of th e case during the process of decision-m aking of the ad m inistrativ e body6.
The proceeding before th e ad m in istrativ e court is based on cassation rem edial system, i.e. it is only entitled to cancel th e challenged decision and re tu rn the case back to adm inistrative body for fu rth e r proceeding. The adm i n istrativ e body is in the fu rth e r proceeding bound by the legal opinion delive red by the court a t reversal of th e judgm ent. At th e sam e tim e th e ad m in istra tive body m ust also include among th e other grounds for a new decision the o ther evidence collected by the adm inistrative court (§ 78 A dm inistrative Pro cedure Code). The A dm inistrative Procedure Code does not regulate any reg u la r rem edial m easure, thu s the proceeding is a one instance proceeding.
However the adm inistrative judicial proceeding concerning an action aga inst the decision, by which the adm inistrative body imposed a penalty for an adm inistrative delict is different. In case the court does not reverse this deci sion, b u t still th e punishm ent was apparently inadequate, the court can refra in from it or it can dim inish it w ithin the lim its of the law if such a decision can be m ade on the base of th e facts of th e case which served as th e grounds for th e decision of the adm inistrative body and which was possibly completed by the court’s own evidence (§ 78 sec. 2 of A dm inistrative Procedure Code). Such legal regulation m eets the higher requirem ents required by th e case-law of the E uropean Court of H um an Rights in the m atters of crim inal charge b u t only in th e are a of decision m aking about an imposed p u n ish m en t7.
B ased on th e facts m entioned above we can sum up th a t even though th e ad m in istrativ e courts do not provide such a developed legal protection for th e civil rig h ts an d obligations as it is in th e case of proceedings accor ding to th e fifth ch ap ter of the Civil Procedure Code, th e c u rre n t sta te is still satisfactory. M oreover th e contem porary system m anaged to avoid expected problem s w ith distinguishing of civil rig h ts and obligations and oth er m a t te rs in th e ad m inistrativ e judicial proceedings.
However on th e other h an d th e p arallel system of th e legal regu lation of judicial control of the public adm in istrativ e bodies, based on th e dualism of th e law brings about a sim ilar problem, which is solved by special senate, estab lished by th e Act no. 131/2002 Coll. However, th e num b er of cases solved by th is in stitu tio n is decreasing w ith respect to th e significance and binding n a tu re of its rulings and th u s th e c u rre n t s ta te is gettin g stabilized.
6 T he ju d g m e n t of S u p re m e A d m in is tra tiv e C o u rt o f 28.03.2007, 1 A s 32/2006-99. Also th e ju d g m e n t o f S u p re m e A d m in is tra tiv e C o u rt o f 31.05.2007, 7 Afs 100/2006-103 o r th e ju d g m e n t o f S u p re m e A d m in is tra tiv e C o u rt of 22.05.2009, 2 Afs 35/2009-91.
7 See e.g. th e ju d g m e n t o f th e E u ro p e a n C o u rt of H u m a n R ig h ts in th e case o f G ra d in g e r v. A u s tr ia o f 23.10.1995, C o m p la in t 15963/90.
Taking into account th e c u rre n t legal sta te it can be surp risin g th a t certain cases th a t belong to th e category of civil rig h ts and obligations are being solved by th e civil courts, others by ad m in istrativ e courts, while in both of these two areas of ju stice th a t we have m entioned different level of protection is provided. U nder th ese circum stances th e possibility to provide judicial protection by civil courts to all m a tte rs connected w ith civil rig h ts is probably w orth considering. W ith respect to th e case-law of the E uropean Court of H u m an R ights, w hich in te rp re ts this concept extensively, th e civil courts would in such a case find them selves in a role w hen they would provide protection in a large extent even in cases which u n d er our concept belong to th e category of public law an d th u s th e powers of th e civil courts would be boosted. It is again necessary to point out the fact th a t th e protec tion provided by th e ad m in istrativ e courts even in th e m a tte rs of civil righ ts and obligations is sufficient according to the case-law of th e E uro p ean Co u rts of H um an Rights.
C o n c lu sio n s
Based on th e above m entioned facts it is obvious th a t all models of legal regulation of judicial protection of ad m in istrativ e bodies’ acts have to cope w ith certain problem s an d deficiencies. The basic requirem ent is th a t they should be able to comply w ith th e conditions set by th e article 6 of the E uropean C onvention on H u m an R ights, m ainly the requirem ent of th e so- called full jurisdiction. T hus if we do not tak e into account th e concrete problem s resu ltin g m ainly from th e legal regulation of judicial control of th e public ad m in istratio n bodies’ acts in private law cases which deserves overall reen actm ent, it is possible to s ta te th a t th e c u rre n t model of th e judicial control of the public ad m in istratio n bodies’ acts is completely satisfactory, both from th e procedural as well as organizational view.
S tr e s z c z e n ie
A n a liza m od eli k o n tro li są d o w ej a k tó w organ ów a d m in istra cyjn ych w C zechach
S łow a kluczow e: k o n tro la sąd o w a, o rg a n y a d m in is tra c y jn e , s p ra w y p ry w a tn e i publiczne.
Głównym tem atem a rty k u łu je s t sądowa kontrola organów a d m in istra cyjnych w Republice Czeskiej. Praw o do sądowej ochrony praw nej i innej w ynika w tym k ra ju z art. 36 K arty praw podstawowych i podstawowych wolności (ustaw y n r 2/1993 Coll.). Jeżeli organ adm inistracji decyduje o kw e
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stiach, które w ram ach system u praw nego n ależą do spraw z zak resu praw a pryw atnego, to decyzja, zgodnie z rozdziałem V Kodeksu postępow ania cywil nego (ustaw y n r 99/1963 Coll.), je s t opiniow ana przez sąd cywilny. N atom iast jeśli organ adm inistracyjny rozstrzyga o kw estiach, które należą do praw a publicznego lub gdy organ adm inistracyjny je s t nieaktyw ny (naw et jeśli bez czynność dotyczy zagadnień z zak resu praw a prywatnego), decyzja ta, zgod nie z K odeksem postęp o w an ia ad m in istracyjneg o (u sta w a n r 150/2002 Coll.), je s t opiniow ana lub sytuacja ta może być rozw iązana przez sądy adm i nistracyjne. Kontrolę sądow ą aktów organów adm inistracji m ożna zatem za liczyć zarówno do kom petenji sądów cywilnych, ja k i sądów ad m inistracyj nych. A utorka a rty k u łu ko n centru je się głównie n a zgodności regulacji praw nej kontroli sądowej aktów organów adm inistracyjnych w Czechach z art. 6 Europejskiej Konwencji P raw Człowieka.
