Abstract
The chapter deals with review measures within the competence of administrative bodies, principally comprising the administrative appeal—traditionally the main element of the system of legal guarantees against public administration. Moreover, the chapter is focused on the role of the Ombudsman in the Czech Republic as a means of dispute settlement, as well as on other tools of an (effective) alternative dispute resolution. All of the above are under the provisions of a relatively new Code of Administrative Procedure (2004) and of a Code of Administrative Justice (2002), as well as under the influence of the European standards of good administration. The chapter scrutinizes the limits of ADR in the Czech administrative law and its perspectives.
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Notes
- 1.
Act No. 500/2004 Coll., Code of Administrative Procedure, as amended.
- 2.
Act No. 280/2009, Code of Tax Procedure, as amended.
- 3.
Act No. 150/2002 Coll., Code of Administrative Justice, as amended.
- 4.
Part V of the Act No. 99/1963 Coll., The Rules of Civil Procedure, as amended.
- 5.
Act No. 82/1998 Coll., on Liability for Damage Caused by Decision or Incorrect Official Procedure while Executing Public Authority, as amended.
- 6.
According to Act No. 182/1993 Coll., on the Constitutional Court, as amended.
- 7.
For more information about the tradition of “appeal,” see Mikule (2005), pp. 151–152.
- 8.
Cf. Section 152 of CAP.
- 9.
Cf. Sections 100–102 of CAP.
- 10.
Cf. Sections 94–99 of CAP.
- 11.
Cf. Section 80 of CAP.
- 12.
Cf. Section 153 of CAP, Section 62 of CAJ.
- 13.
“Everyone may assert, through the prescribed procedure, his/her rights before an independent and impartial court or, in specified cases, before another body.” Cf. Article 36 Section 1 of the Charter of Fundamental Rights and Freedoms (Constitutional Act No. 2/1993 Coll., Charter of Fundamental Rights and Freedoms, as a part of the constitutional order of the Czech Republic); at the same time, the right to judicial review of the legality of administrative decisions, as well as the right to compensation for damages caused by public authority or by maladministration.
- 14.
Cf. Section 2 of Act No. 36/1876 Reich code from 22nd October 1875 on the Supreme Administrative Court (as amended by Acts No. 53/1894 R. c., No. 149/1905 R. c., Act No. 3/1818 Coll., on the Supreme Administrative Court and Solution of Conflicts of Jurisdiction, and Act No. 164/1937 Coll.). The current Act No. 150/2002 Coll., Code of Administrative Justice, in its Section 2 provides for the judicial protection of “public rights” of natural persons and legal entities. The effective Code of Administrative Procedure states in this context that the administrative body “…saves the rights acquired in good faith and the legitimate interests of persons affected by activity of the administrative body in individual case…”—cf. Section 2(3) of Act No. 500/2004 Coll., as amended.
- 15.
Cf. Section 2(4) of the last cited Act. According to the current regulation of administrative courts, the Supreme Attorney General can bring an action in the public interest too. This action can be brought also by a person determined by special legislation (there is still no such legislation). Most recently, the Ombudsman is also entitled to bring this action (cf. Section 66 of Act No. 150/2002 Coll., Code of Administrative Justice, as amended).
- 16.
The term “regular remedial measure” is not used in this previous regulation of administrative proceedings and in the current regulation.
- 17.
Cf. Section 59(1) of Act No. 71/1967 Coll., Code of Administrative Procedure, as amended.
- 18.
Cf. Section 82 of Act No 200/1990 Coll., on Administrative Offenses, as amended, which is still in force.
- 19.
Cf. Section 68 lit. a) of CAJ.
- 20.
Cf. Section 81(1) of CAP.
- 21.
Legislation does not allow the regular remedial measure only in extraordinary cases, e.g. Sections 31a–33 of Act No. 325/1999 Coll., on Asylum, as amended, Section 5(4) of Act No. 265/1992 Coll., on Registration of Owner’s Rights with the Land Register, Section 66 of Act No. 231/2001 Coll., on Radio and Television Broadcasting, as amended, and legislation of some professional associations such as Act No. 85/1996 Coll., on the Bar, as amended, and Act No. 120/2001 Coll., Code of Distraining, as amended. This exemption can be also found in Act No. 166/1993 Coll., on the Supreme Audit Office, as amended. This solution does not reduce the general level of rights protection; on the contrary, it is often a “shorter” route directly to the judicial review.
- 22.
Cf. Section 85(1) of CAP. This means that a challenged decision cannot acquire legal force and enforceability untill the end of appeal procedure. Cf. e.g. Skulová et al. (2012), p. 244.
- 23.
According to Section 95(6) of the Energy Act (Act No. 458/2000 Coll.), the General Director of the State Energy Inspectorate decides on appeals against decisions of the State Energy Inspectorate.
- 24.
Cf. Section 89(1) of CAP. Definition of the superior body and determination of the superior body for atypical administrative bodies (e.g., self-governing municipalities and regions) is provided by Section 178 of CAP.
- 25.
Cf. Section 82(2) of CAP. If the participant fails to state the extent of the decision that he/she challenges, it is considered that he/she is claiming the annulment of the whole decision.
- 26.
Cf. Section 82(4) of CAP. Practice of courts, with an emphasis on the rights of defense, finds an exception in this regard in the proceedings concerning an offense to which the limitation does not apply. Cf. judgment of the Supreme Administrative Court of 22/01/2009, file number 1 As 96/2008.
- 27.
Cf. Section 90(3) of CAP.
- 28.
Cf. Section 90(1) c) of CAP.
- 29.
Cf. Section 39(1) of CAP: “Administrative bodies proceed in the proceedings in accordance with laws and other legal regulations.”
- 30.
Pl. ÚS 33/97 Coll. of Judgments of the Constitutional Court, Vol. 9, Prague, C.H. Beck, 1998.
- 31.
- 32.
Cf. Section 2(1) of CAP.
- 33.
The principle of due reasoning can be found in the regulation of the requirements of reasoning content, including the necessity to respond to objections raised by participants (Section 68(3) of CAP).
- 34.
The constitutional principle of transparency is based on Article 17, Section 5 of the Charter and established the statutory form within general regulation of the right for information or rather the informational duties of administrative bodies in Act No. 106/1999 Coll., on the Right for Information, as amended. Its expression can be found in CAP in the adjustment of accessibility and clarity for aggrieved persons, as it is regulated by, e.g., Section 4(2) and (3) (the duty to “instruct” and to “give notice”), Section 36(2) (provision in information on proceedings), Section 38 (access to the file), Section 49 (regulation of hearing), Section 51(2) (notification of production of evidence outside the hearing), etc.
- 35.
The Supreme Administrative Court: “The protection of widely recognized and constitutionally conformal fundamental principles of law of the democratic state respecting the rule of law is provided by court regardless of whether these principles are positively expressed by law”—from the judgment of 21/08/2008, file number 7 As 16/2008-80, No. 1719 Coll. of SAC.
- 36.
Cf. Section 2(4) of the Code of Administrative Procedure. In the traditional positivist conception of legality, no legal factors of decision making and review were left out. The area of administrative discretion, most closely connected to reality, could not be subject to judicial review based on the criterion of conformity with legislation in this logic. Development of judicial review of the administrative discretion in the Czech conditions in more detail in Mazanec (1996), pp. 90–93, or Skulová (2003), pp. 196–204.
- 37.
- 38.
For example, no standard remedial measure is allowed against the judgment of the Ministry of Interior on the merits of international protection (asylum), and against such first instance judgment one can file an action with administrative courts (cf. Section 32 of the Act No. 325/1999 Coll., on asylum, as amended).
- 39.
Cf. Section 83 of CAP.
- 40.
Cf. Section 79(1) of CAJ.
- 41.
Cf. Section 80 of CAP.
- 42.
Cf. Article 36 Section 3 of the Charter of Fundamental Rights and Freedoms (Constitutional Act No. 2/1993 Coll., Charter of Fundamental Rights and Freedoms, as a part of the constitutional order of the Czech Republic), Act No. 82/1998 Coll., on Liability for Damage Caused by Decision or Incorrect Official Procedure while Executing Public Authority, as amended.
- 43.
Cf. Section 13(1) and Section 22(1) of the cited Act.
- 44.
Recommendation No. R (85) 13 on the institution of the Ombudsman.
- 45.
Principles of the Act on the Ombudsman: Chamber of Deputies, Parliament of the Czech Republic, 1995, Document of the Chamber No. 1789/0. In: Joint Czech-Slovak Digital Parliamentary Library [online]. Available from: http://www.psp.cz/eknih/1993ps/tisky/t1789_00.htm.
- 46.
Bill of the Act on the Ombudsman: Chamber of Deputies, Parliament of the Czech Republic, 1996, Document of the Chamber No. 25/0. In: Joint Czech-Slovak Digital Parliamentary Library [online]. Available from: http://www.psp.cz/eknih/1996ps/tisky/t002500.htm.
- 47.
The government bill No. 199/0, Act on the Public Defender of Rights, from 26th April 1999.
- 48.
Sládeček (2009), pp. 376–377.
- 49.
Ibid., p. 113.
- 50.
Ibid., p. 137.
- 51.
In this catalog, the principles of good administration include compliance with the law, impartiality, timeliness, predictability, persuasiveness, adequacy, efficiency, accountability, openness, friendliness.
- 52.
Sládeček (2011), p. 59.
- 53.
Judgment of the Constitutional Court of 2/11/2010, file. no. US 28/09.
- 54.
Judgment of the Supreme Administrative Court of 11/09/2008, file. no. 1 As 30/2008.
- 55.
Data came from the summary reports on the activities of the Ombudsman for the period 2007–2011 [online]. Available at http://www.ochrance.cz/zpravy-o-cinnosti/zpravy-pro-poslaneckou-snemovnu.
- 56.
Sládeček (2009), p. 376.
- 57.
Data came from The public opinion survey, carried out by the Center for Public Opinion Research—Institute of Sociology, Academy of Sciences the Czech Republic.
- 58.
Cf. Section 2(4) of the Code of Administrative Procedure stating that the administrative body makes sure that the adopted solution conforms to the public interest.
- 59.
Cf. Section 5 of the Code of Administrative Procedure stating that “as long as it is possible with regard to the nature of the case the administrative body should make an attempt to amicably remove conflicts preventing proper hearing and deciding of the case.” Therefore, the Code of Administrative Procedure does not rule out the administrative body’s applying various methods and forms, leading to an objective that is conforming to the public interest, but the administrative body should always select only the less invasive ones towards the participants.
- 60.
- 61.
Details are available at http://www.uohs.cz/cs/hospodarska-soutez/zakazane-dohody-a-zneuziti-dominance/leniency-program.html.
- 62.
Cf. judgment of the Supreme Administrative Court of 28/04/2005, file No. 5 Afs 147/2004, published under No. 618/2005 Coll. of the Supreme Administrative Court. According to this judgment, “provisions of Section 77 of the Code of Administrative Justice establishes not only the power of the court to specify, by means of evidence, the facts on which the administrative body based its decision but also the power to discover new facts, by means of other evidence presented and assessed beyond the former extent, as a basis for a judicial decision within full jurisdiction. Doing this the court considers the scope of additional evidence so that it does not substitute the activity of the administrative body”.
- 63.
Cf. Section 72(4) of the Code of Administrative Justice. As added by the judgment of the Supreme Administrative Court of 23/06/2011, file No. 5 Afs 11/2011, published under No. 240/2011 Coll. of the Supreme Administrative Court, “no change of the practice of courts, even if it concerned the issue of admissibility of an action against an administrative body decision, may result in a situation when an action filed after expiration of the statutory time-limit would be considered a timely one [Section 72 (1) and (4)].”
- 64.
Judgment of 23/05/2012, file No. 6 Ads 10/2012. The basic amount of the court fee of CZK 3,000 (EUR 125) cannot be considered a restriction of access to the court.
- 65.
In contrast to the proceedings concerning a cassation complaint before the Supreme Administrative Court, in the first instance proceedings before a regional court, no mandatory representation by an attorney at law is a condition of those proceedings (cf. Section 105(2) of the Code of Administrative Justice).
- 66.
Cf. Section 2(5) of Act No. 416/2009 Coll., on Accelerating the Construction of Transportation, Water and Energy Infrastructure, under which “time-limits for filing a legal action to review or substitute administrative decisions issued within procedure under Section 1 shall be reduced to a half. The court shall render a decision on the action within 90 days”.
- 67.
Under Section 76(1) and (2) of the Code of Administrative Justice, defects taken into consideration by court ex officio are nonreviewability of an administrative body decision, insufficiently ascertained facts, serious violation of procedural regulations, or nullity of an administrative decision.
- 68.
Cf. the amendment of the Code of Administrative Justice implemented by Act No. 303/2011 Coll.
- 69.
E.g., under Section 101d(2) of the Code of Administrative Justice, the regional court is obliged to review a measure of general nature within 90 days from the motion filing. Under Section 73(3), the court must decide on the motion to grant suspensive effect without undue delay but no later than 30 days from the motion filing date.
- 70.
According to the judgment of the Supreme Administrative Court of 12/05/2005, file No. 2 Afs 98/2004, published under No. 672/2005 Coll. of the Supreme Administrative Court, “condition of exhausting remedial measures within administrative procedure before filing a legal action [Section 5, Section 68 a) of the Code of Administrative Justice] must be seen as implementation of the principle of judicial review subsidiarity and minimization of court interventions in the administrative procedure. This means that the participant the administrative procedure must on principle exhaust all measures for protection of his rights at his procedural disposal and only after unsuccessful exhausting thereof he may demand judicial protection. This is due to the fact that judicial review of administrative decisions is designed only as a subsequent measure of subjective public rights protection which cannot replace measures within the public administration.”
- 71.
Under Section 66(3) of the Code of Administrative Justice, the public defender of rights is authorized to file an action provided that he proves a serious public interest in the filing thereof.
- 72.
Cf. Section 4(2) of the Code of Administrative Procedure.
- 73.
Cf. judgment of the Supreme Administrative Court of 22/10/2003, file No. 7 Ads 42/2003, published under No. 297/2004 Coll. of the Supreme Administrative Court.
- 74.
Cf. judgment of the Supreme Administrative Court of 27/06/2005, file No. 5 As 10/2004, or of 26/06/2008, file No. 8 Afs 47/2007.
- 75.
Cf. Průcha (2011), p. 178.
- 76.
Under Section 7(2) of the Code of Administrative Justice, the court with local competence for proceedings is the regional court in the district of which there is the seat of the administrative body that issued a first instance decision in the case.
- 77.
Cf. Section 170a of Act No. 326/1999 Coll., on Residence of Aliens in the Czech Republic.
- 78.
Cf. Act No. 350/2005 Coll. and the new Section 104a of the Code of Administrative Justice “If the cassation complaint in the matters of international protection in its significance substantially does not exceed own interests complainant, Supreme Administrative Court refuses cassation complaint for unacceptability.”
- 79.
For a detailed definition of the institution of cassation complaint inadmissibility in asylum (international protection) cases, we can refer to the resolution of the Supreme Administrative Court of 26/04/2006, file No. 1 Azs 13/2006, published under No. 933/2006 Coll. of the Supreme Administrative Court.
- 80.
Cf. Section 4(2) of Act No. 582/1991 Coll., on Organization and Implementation of Social Security, as amended, according to which the Ministry of Labor and Social Affairs “evaluates health condition and working ability of citizens for the purposes of judicial review procedure in cases of retirement pension insurance and for the purposes of appellate administrative procedure as long as the contested decision was issued on the basis of an opinion issued by the county administration of social security; to this end it establishes advisory committees as its bodies.”
- 81.
Cf. Section 88 of Act No. 582/1991 Coll., on Organization and Implementation of Social Security, as amended.
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Skulová, S., Potěšil, L., Hejč, D. (2014). Administrative Appeals, Ombudsman, and Other ADR Tools in the Czech Administrative Law. In: Dragos, D., Neamtu, B. (eds) Alternative Dispute Resolution in European Administrative Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-34946-1_13
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