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Czech Republic (2009)

 
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  • INTRODUCTION (History, purpose of the review and classification of administrative acts, definition of an administrative authority)

    • 1. Main dates in the evolution of the review of administrative acts

      1918 - an independent Czechoslovak Republic was formed; in the same year the Supreme Administrative Court based in Prague was established, which protected public entitlements. This Court then made decisions in all cases where somebody claimed that his/her rights were affected by an unlawful decision or measure of an administrative authority. Apart from the Supreme Administrative Court, other, special courts were established: patent, election, or cartel court.

      1949 - the seat of the Supreme Administrative Court was moved to Bratislava; the Court operated from there until its cessation in 1952. The majority of functions of the Administrative Court were passed to the so-called prosecutor’s supervision.

      1952 - 1989 - the administrative justice in the Czechoslovak Socialist Republic was only applied very indistinctly, only with regard to the matters concerning pension insurance schemes, admissibility of institutional care for the insane, determination of customs value of goods, and insignificant issues of electoral law. This all took place within the general civil procedural code. 1989 - 2002 - the Charter of Fundamental Rights and Freedoms established the institute of the general review of administrative decisions by the courts; as of the formation of the Czech Republic on 1/1/1993, the Constitution incorporated the Supreme Administrative Court to the court system; however, the Court had not been established yet. During 1992 - 2002, the judicial review was performed according to a special part of the civil procedural regulations (Rules of Civil Procedure) in the framework of the general judicial system, but not in full jurisdiction.

      2001 - the Constitutional Court of the Czech Republic cancelled this special part of the Rules of Civil Procedure and forced the legislators to adopt a form of the administrative justice that would comply with the requirements of the European Court of Human Rights.

      2003 - the Supreme Administrative Court was established and based in Brno. By this, the administrative justice received its supreme umbrella. Independent rules of procedure were adopted (Rules of Administrative Procedure) for proceedings in administrative justice, and the preconditions for the performance of court protection of public entitlements of natural as well as legal persons against the unlawful intervention of the public administration were complied with.

    • 2. Purpose of the review of administrative acts

      The basic form of the protection is the action against the unlawful decision. It can be filed by the person who claims that his/her rights have been prejudiced due to the decision of the administrative authority (either by the actual decision and/or by the fact that his/her rights have been prejudiced due to the breach of rights during the conducting of the administrative proceedings). In such a case the plaintiff demands that such a decision be vacated. The person who has been punished for an administrative delict (infraction) and is of the opinion that the penalty imposed is markedly inadequate can ask for the cancellation or reduction of the penalty.

      In administrative justice, the principle of the “general clause” applies as a constitutional principle; it means that all resolutions are reviewable unless the law exclusively precludes it. The Rules of Administrative Procedure itself stipulate some of such exclusions of the procedural nature (for example the decision of a preliminary nature; decision, by which only the conducting of the procedure before the administrative authority is adjusted).

      Other exclusions are stipulated by special laws (for example the decisions on facultative sickness benefits are excluded from the review). The most important exceptions from the cognisance of the administrative courts are the cases when the administrative authority made the decision according to its legal competence about the matter of the private law.

      In the proceedings regarding the action the administrative court particularly assesses legal issues; as opposed to the status in 1992 - 2002, following a motion it can even produce evidence by which it illuminates the factual issues regarding the matter which served as a basis to the administrative authority. The deficiencies of factual findings from the administrative proceedings, which in the past necessarily resulted in the vacating of the decision, can be today partly remedied by supplementing evidence before the court. The law enables the court to make the decision without ordering oral hearing - either following a common consent of both parties of the dispute, or in the cases where the decision of the administrative authority suffers from essential faults and it is necessary to vacate it.

      The judgement is the outcome of the proceedings before the court; by the judgement the action is either dismissed, or the challenged decision is annulled and the matter is returned to the administrative authority for further proceedings. If penalties are imposed for an administrative delict, following the motion the court can express that it desists from the imposed penalty, or reduce the penalty. In cases where the court does not make the decision regarding the actual matter, the proceedings are concluded by issuing a resolution, for example about the rejection of the action or the discontinuance of the proceedings.

      The action against the inactivity/failure to act of the administrative authority forms a new legal institute as from 1/1/2003. It can be filed by a person who applied to the administrative authority for the issuance of a decision or certificate, the administrative authority failed to act, and the applicant exhausted in vain the means the rules of procedure (usually the Rules of Administrative Procedure) provided to it for the protection against inactivity.

      The protection against unlawful decisions and the protection against the inactivity are supplemented by the protection against the interventions, which are not decisions, but in spite of it they directly affect the legal sphere of the plaintiff. In practice this can include a wide range of various interventions of the public administration authorities (for example unlawful police intervention).

      As of 1/1/2003, all electoral and local referendum issues are also concentrated at administrative courts. Special proceedings in matters concerning political parties and political movements apply to the motion for the registration of a political party (or the registration of the changes in the party rules), should it have any deficiencies.

      The Supreme Administrative Court decides about a dissolution or suspension of a political party or about the renewal of its activities. It also conducts the proceedings about the competence actions between a state administration authority and a self-government authority, or between individual self- government authorities (for example between the authority of a village and that of a region) and between individual central administrative bodies with regard to who should issue a resolution in a specific matter.

      The new Code of Administrative Procedure introduced a specific institution called decision of general application, which is used primarily in German- speaking Europe (under the name Allgemeinverfügung). It is neither a piece of legislation nor an administrative decision. As from 1/5/2005 administrative courts have authority to decide on annulment of the decision of general application or its part if it is not in line with law. Anyone who claims that his/her rights were prejudiced may seek the motion to annul the decision of general application or its part. The participation of a third party in these proceedings is excluded.

      As of 1/10/2008, the Supreme Administrative Court became a disciplinary court for all judges and prosecuting attorneys, since 26/6/2009 also for enforcement agents.

      With judges of the Supreme court, the judges of the Supreme administrative court form so-called Court dispute tribunal which decides conflicts between ordinary and administrative jurisdictions.

    • 3. Definition of an administrative authority

      The administrative authority is defined in the law (Rules of Administrative Procedures) and includes the authority of the executive power, the authority of a territorial autonomous unit, but also such an entity (a natural or legal person) that was entrusted with making decisions about the rights and obligations of other entities in the sphere of public administration. The theory as well as the judicial practice divides the administrative authorities to the authorities, which act in the position of a state administration authority, and the authorities of self-governing public corporation.

      It also distinguishes the central state administration authorities headed by the member of the government (ministry) and the so-called other central state administration authorities (for example the Industrial Property Office; Statistic Office; or the Office for the Protection of Competition). The theory also knows the organization of the territorial public administration with the general scope of activity (municipalities, regions); territorially deconcentrated (specialized) state administration authorities (for example Labour Offices, Tax Authorities); and finally the authorities (entities) of the professional and interest self-administration (for example chambers of attorneys-at-law, doctors, tax advisors, etc.).

    • 4. Classification of administrative acts

      The theory divides administrative acts to normative and individual ones. The normative administrative acts are issued by the public administration authorities; they contain generally binding rules of conduct and execute the law. Failure to observe them may be sanctioned.

      On the other hand, the individual administrative acts (constitutive and declaratory) are the outcome of the decisions of the administrative authority; they are perceived as the acts of the administrative law application.

  • I – ORGANIZATION AND ROLE OF THE BODIES, COMPETENT TO REVIEW ADMINISTRATIVE ACTS

    • A. COMPETENT BODIES

      • 5. Non-judicial bodies competent to review administrative acts

        In the Czech Republic the review of administrative decisions is undertaken only by courts.

      • 6. Organization of the court system and courts competent to hear disputes concerning acts of administration

        There is a 4-degree court system consisting of: 86 district courts, 8 regional courts (with 5 branches), 2 high courts, the Supreme Administrative Court, and the Supreme Court of the Czech Republic. The judicial reviews of administrative decisions are undertaken only by the regional court at the level of the first degree and the Supreme Administrative Court as the Court of Cassation. Other degrees of the judicial system get involved in these issues only if the administrative authority decision regarding the private law is concerned. At the level of the first degree, the regional court is competent to try actions against the decisions of the administrative authority, actions against inactivity, actions against unlawful intervention, and electoral matters.

        The Supreme Administrative Court solely is authorized to conduct proceedings regarding political parties and political movements, adopt decisions with regard to competence actions, and vacate the measures of a general nature. The regional courts are established as the general courts; judges specialized in the area of administration adopt decisions there as regards the matters concerning administrative justice (similarly to judges specialized in criminal or civil matters at the same court). The judges adopt decisions either in panels or as single judges. The Supreme Administrative Court makes decisions about remedies against the decisions in the matters regarding administrative justice.

        The Constitutional Court is the court for the protection of constitutionality, and stands apart from the justice system. It is authorized to adopt decisions regarding the constitutional complaints against the final decisions (inter alia) of courts, which adopted the decisions in administrative justice. From the point of view of the compliance with the Constitution of the Czech Republic and the Charter of Rights and Freedoms it is thereby authorized to vacate the decisions of the Supreme Administrative Court which adopted these decisions as the court of cassation, but also as a court of a single instance.

    • B. RULES GOVERNING THE COMPETENT BODIES

    • C. INTERNAL ORGANIZATION AND COMPOSITION OF THE COMPETENT BODIES

      • 9. Internal organization of the ordinary courts competent to review administrative acts

        The regional courts are usually internally divided into the departments of civil, criminal, trade, and administrative law. It means that besides the criminal, civil, and trade panels, there are also administrative panels; however, in some matters also single judges adopt decisions in administrative matters. As a rule at these courts there is a vice-president for the matters regarding administrative justice.

      • 10. Internal organization of the administrative courts

        The specialized justice only exists at the level of Supreme Court instances. In the given case it is the Supreme Administrative Court; the Supreme Court of the Czech Republic then adopts decisions as regards the civil, criminal, and trade matters. For the internal organization of regional courts, an establishment of individual court departments is typical (for the civil, criminal, trade, and administrative matters).

        The Supreme Administrative Court has its own internal organization: it is headed by the president and vice-president, who are both appointed by the President of the Republic with the countersignature of the prime minister. The Court is divided into two divisions: financial-administrative and social- administrative –- according to the nature of prevailing agenda; every division has its president. Every judge (including judicial officials) is included in a 3-member panel, and this panel forms a part of one of the divisions. Apart from the two divisions, there are the following departments:
        Administration of the Court; Bureau of the President of the Court; Human Resources Department; and the Research and Documentation Service. The Research and Documentation Service was established in 2007 and focuses on analytical work upon demand of judges and assistants and on documentation of the Court’s case-law.

        The Supreme Administrative Court should have 42 judges; however, this number has not been reached yet. In August 2009 the Court had has 29 judges and 55 assistants.

    • D. JUDGES

      • 11. Status of judges who review administrative acts

        All judges (active in civil, criminal, trade, or administrative matters) have the same positions in the constitutional system of the Czech Republic; there is no specific category of the administrative judges. There is no definition either of the judges according to the types of the authorities foreseen by the law; their decisions are reviewed.

      • 12. Recruitment of judges in charge of review of administrative acts

        The general prerequisite for an appointment of a judge is Czech citizenship, moral integrity of the person, university qualification in the sphere of law acquired at the university in the Czech Republic, and the pass of a vocational justice examination. A judge is appointed by the President of the Republic. The judge can be allocated to perform this function at the regional (“administrative”) court only after at least five years of experience (legal practice or scientific or pedagogical activity) in the fields of the constitutional, administrative, or financial law.

        The judge can be allocated to perform this function at the Supreme Administrative Court only after performing such an activity for at least ten years. The law has stipulated some transitional provisions according to which the judges of high courts, who reviewed administrative decisions according to the previous legal regulations, came to the Supreme Administrative Court. Until the end of 2007, the judge did not have to comply with the above 10-year legal experience to be allocated to the Supreme Administrative Court or the regional court.

      • 13. Professional training of judges

        The judges have an opportunity as well as obligation to educate themselves for the duration of their careers. The institution providing the education is the Academy of Justice, or the Supreme Administrative Court. The Academy of Justice prepares ongoing training of judges and provides for the organizational and specialized issues.

        The actions organized particularly include those focused on the increasing of the vocational level of the judges. The training is delivered by lecturers chosen from the ranks of judges, university academics, and other significant specialists.

      • 14. Promotion of judges

        As regards the professional career, there is no fixed system; the appointment to the judicial functions or allocation to higher courts takes place following a discussion of the council of judges and the president of the respective court. There is only a fixed salary order, which considers the levels of the court system and the duration of court experience included.

      • 15. Professional mobility of judges

        The judges of regional courts can be temporarily allocated to the Supreme Administrative Court to acquire experience, and also for assessing their capabilities for their possible later transfer to this Supreme Court institution. Such temporary practice lasts between 6 to 12 months. A different situation is if there is a change in the organization of courts or in the court districts; then it is possible (in administrative justice) to transfer the judge to another court of the same degree even without his/her approval; however, this must not be done repeatedly.

        The judge must not judge and have a function in the state administration at the same time, or must not perform another paid activity; however, there are some exceptions (pedagogical and publication activities).

    • E. ROLE OF THE COMPETENT BODIES

      • 16. Available kinds of recourse against administrative acts

        An administrative decision can be challenged already in the process of administrative proceedings by way of: ordinary remedies (appeal, remonstrance, objections, protest, complaint), or extraordinary remedies (re-opening of the case and review outside the appeal proceedings). Remedy can be claimed at the court by filing an action. For filing an action it is sufficient to exhaust ordinary remedies offered by the process of the administrative proceedings.

        If the action is justified, the court can cancel the challenged decision due to its unlawfulness or faults in the proceedings. The court cancels the challenged decision for unlawfulness even if it ascertains that the administrative authority overstepped or abused the limits of the administrative consideration stipulated by law. It can also declare the nullity of the administrative decision. The court can desist from the punishment or to reduce the penalty. In further proceedings the administrative authority shall be bound by the legal view the court expressed in its judgement. If the court produced evidence itself, the administrative authority will include this evidence in the materials for adopting a new decision in further proceedings.

        In the proceedings the court in administrative justice only makes decisions regarding the costs of the proceedings and is not meritoriously concerned with the compensation for damages.

        This issue is dealt with by a special law regarding the liability for damages caused during the execution of public power by the decision or incorrect official procedures; this is done in civil proceedings. Under the conditions set by this law the state is liable for damages caused by the decision issued in civil judicial proceedings, administrative or criminal proceedings, and also caused by applying incorrect official procedures.

        The right for the compensation for damages caused by an unlawful decision is attributed to the parties of the proceedings in which a decision by which they incurred damages was made, but also to the party which was not included as a party of the proceedings, even though it should have been done, always under the assumption that it utilized a proper corrective remedy in the administrative proceedings.

      • 17. Existence of mechanisms for the delivery of a preliminary ruling apart from the procedure under the Article 234 of the EC Treaty

        In its Article 82, the Czech Constitution provides for that the judges shall be independent in the performance of their duties and that nobody may threaten their impartiality. Thus, the only possibility for the Czech judges to refer for a preliminary ruling under the national law is the question of constitutionality of a statute they are to apply in the case tried before them, i.e. the question whether such law is or not in conflict with the Constitution, the Charter of Fundamental Rights and Freedoms as well as with other constitutional laws and international commitments of the Republic. Should this be the case, the judge shall stay proceedings and refer the question of constitutionality of the law in question for preliminary ruling to the Constitutional Court.

      • 18. Advisory functions of the competent bodies

        The regional courts and the Supreme Administrative Court only play a judicial role. The individual judges can be occasionally invited as experts to work in advisory, particularly legislative bodies of the government.

      • 19. Organization of the judicial and advisory functions of the competent bodies

        As the Czech judiciary does not have advisory function, there is no answer to this question.

    • F. ALLOCATION OF DUTIES AND RELATIONSHIP BETWEEN THE COMPETENT BODIES

      • 20. Role of the supreme courts in ensuring the uniform application and interpretation of law

        The Supreme Administrative Court has several means how to effectively ensure uniform application and interpretation of law. First of all it is the decision- making about a cassation complaint against the decisions of lower, i.e. regional courts. Decisions significant for the decision-making practice are published in the Collection of Rulings of the Supreme Administrative Court. Apart from this, the Supreme Administrative Court has a possibility to unify different opinions of individual panels of this court by means of the so- called ‘extended panel’, which in such a case independently makes a decision about the matter; during further decision-making, the judges follow the expressed legal opinion.

        The President of the Supreme Administrative Court or the presidents of the divisions or the extended panel can propose the opinion on the basis of the assessment of final rulings of the courts to the respective division to be adopted. For adopting an opinion the consent of the majority of all division members is needed. If the issues in question concern more divisions or represent a dispute between them, the President of the Supreme Administrative Court can propose an opinion to be adopted by the plenum.

  • II – JUDICIAL REVIEW OF ADMINISTRATIVE ACTS

    • A. ACCESS TO JUSTICE

      • 21. Preconditions of access to the courts

        For keeping the access to the courts it is absolutely essential that proper remedies in the proceedings before the administrative authority be exhausted (compare with Re 16). This applies to the proceedings concerning the action against the decision of an administrative authority and protection against the inactivity. In other cases (see item 6), it ensues from the nature of the matter that such a condition is not given.

      • 22. Right to bring a case before the court

        A case against the decision of the administrative authority can be brought before a court by anybody whose rights were prejudiced in the previous proceedings as a result of the administrative authority decision; it means that an action can be filed by a natural or legal person. If the matter regards public interest, the action can be filed by the Supreme Public Prosecutor. In the matters which concern self-governments the action can be filed by an administrative authority against the decision of the local self-government; and vice-versa, the body of the local self-government can file an action against the decision regarding the dissolution of the assembly.

        In electoral matters the action can be filed by a natural person or a political party. If a competence conflict is involved, the action can be filed by the affected administrative authority, but also by the administrative authority about whose rights a decision should be made. If measures of a general nature are involved, the motion for the cancellation can be again filed by anybody who claims that his/her rights have been prejudiced, but also by the Ministry of Interior or a municipality.

      • 23. Admissibility conditions

        In the case of proceedings regarding the action against the decision of an administrative authority an authorized person must claim that his/her rights were prejudiced by an act of an administrative authority, and that by issuing a challenged decision the law or another legal regulation was infringed; the public prosecutor must find public interest.

        The action must always contain an accurate designation of the parties of the dispute or of the administrative decision including the date of its delivery, the designation of the statements of the administrative decision being challenged, and the common counts of charges, which should clearly indicate factual and legal reasons of the action and the proposal as to what decision should be adopted. The law also requires the suggestion of evidence proving the claims of the plaintiff.

        The action should also contain the signature and the date. In the proceedings regarding the protection against inactivity, particularly the matter, possible evidence, and the proposal of verdict should be indicated.

      • 24. Time limits to apply to the courts

        The action against the decision of the administrative authority must be filed within two months of the delivery of the decision; this term is kept if the action is filed with the administrative authority against whose decision it is aimed; the public prosecutor can file an action, which is in the public interest, up to 3 years. Since this is the means of judicial control, it is not the obligation of the administrative authority to inform of the possibility of filing an action with the court against the administrative decision; the authority has this obligation only with regard to its own administrative proceedings.

        In the case of the actions against inactivity, the objective period is the period of one year; in the proceedings regarding the protection against the unlawful intervention of the administrative authority there is a subjective period of two months, and an objective period of two years. The law stipulates that the failure to comply with this period cannot be pardoned.

        The principles for calculating the periods are stipulated in the Rules of Administrative Procedures; the period determined according to weeks, months, and years finishes at the end of the day whose designation is identical to the day which determined the beginning of the period. If there is no such a day in the month, the period finishes on the last day of this particular month. If the last day of the period is Saturday, Sunday, or holiday, the last day of the period is the closest working day.

      • 25. Administrative acts excluded from judicial review

        The following acts are excluded from the judicial review: the acts of the administrative authority which are not decisions, acts of the preliminary nature, and acts which amend the conducting of the proceedings before the administrative authority; it also applies to the acts the issuing of which is exclusively dependent on the assessment of health condition of persons or technical condition of things; the acts of not granting the qualification to or deprivation thereof from natural persons, if they themselves do not represent a legal obstacle for the performance of occupation or job or another activity, and finally such acts the review of which is determined by a special law.

        In the proceedings regarding the protection against unlawful intervention, the proceedings concerning mere determination that the intervention was unlawful are excluded from the judicial review.

        From the point of view of the access to the court the law makes no differences between whether an action is filed for a severe or marginal violation of law by the administrative authority. Neither does it exclude the cases, which contain classified materials of the state or trade nature; for such situations the law enables the exclusion of the public, but the action must be heard.

      • 26. Screening procedures

        On principle, the law stipulates that verbal hearing is ordered and parties to the proceedings summoned only if a case with the actual matter is heard; in such a case, the decision is usually in the form of a judgement. In procedural matters, the decision can be then made without ordering the hearing. In the proceedings regarding the actions against the decisions of the administrative authority the hearing before the regional court (1st judicial instance) is public on principle; however, if all parties to the dispute agree or suggest it themselves, the decision can be made even without the hearing; the conditions are stipulated by law.

        If the court reaches the conclusion that it is not necessary to order the hearing regarding the actual matter, it submits this alternative for consideration to the parties of the proceedings; the ‘court’ in this respect means the single judge or panel of judges - according to the nature of the matter heard.

        The resolution by which the call of the court is made does not have to contain any reasons; it is only a question addressed to the parties of the dispute; the court does not have to get back to it in the justification of the decision regarding the matter either, an expressed consent is sufficient. The deadline for sending such a call is not set; it is usually send at the time when the courts start dealing with the matter meritoriously. Without the hearing the court makes decisions in the matters regarding lists of electors (up to 3 days), matters of electoral registration (up to 15 days), invalidity of the elections, the cessation of the mandate (up to 20 days), and the matters regarding a local referendum (up to 30 days).

        The Supreme Administrative Court makes the decisions about the remedy - cassation complaint - usually without the hearing, but it can order it. The issue of complying with the principle of the verbal hearing is essential during the assessment of the lawfulness or constitutionality of the court procedures and can be reviewed by the Supreme Administrative Court or the Constitutional Court.

      • 27. Form of application

        The action must be filed in writing; if it is verbal, it must be recorded in a report; if in an electronic form it has to bear an electronic signature. If such an application is made in a different form, it must be confirmed by a written application of the same content or its original must be submitted within three days, otherwise it is not considered.

        If such an act is undertaken by a collective body or a person on whose behalf the collective body acts, a transcript of the resolution of such a body, in which the consent with the content of the application was expressed, has to be attached to it. The law specifies no other requirements as regards the form of the action.

      • 28. Possibility of bringing proceedings via information technologies

        The possibility of conducting proceedings electronically has been considered;

        Since 01/07/2009 the public authorities and companies registered in the Companies Register are obliged to set up a data box. The data box is an electronic storage space which is intended for servicing of documents from public authorities and for making submissions (petitions) to them. The data box enables sending and receiving messages, checking status of sent messages, receiving confirmation of receipts etc. Public authorities (including courts) are obliged to communicate through a data box when the addressee (second party) holds one. Other entities (i.e. individuals and private companies not registered in the Companies Register) do not have this obligation to communicate, it is only an alternative for them.

        The document sent to the data box has the same legal force as paper documents. If paper form is needed from any reason to be presented, the electronic document is to be converted in an authorised way without losing its legal force. Presumption of delivery applies ten days after delivery, even if the recipient fails to open and check it.

      • 29. Court fees

        A court fee in the form of duty stamps amounting to 2,000 CZK (76 EUR) is paid for an action against the decision of the administrative authority. As regards the political party rules, the fee amounts to 5,000 CZK (190 EUR), as regards the renewal of the political party, it amounts to 10,000 CKZK (385 EUR), and in other cases 1,000 CZK (384 EUR). For a cassation complaint heard by the Supreme Administrative Court 3,000 CZK (115 EUR) is paid.

        The Act on Court Fees stipulates some cases when a person is exempted from paying court fees and some situations which are exempted from the fee regardless of the person of plaintiff (see item 31).

      • 30. Compulsory representation

        A plaintiff has to be mandatorily represented by an advocate only in the proceedings regarding a cassation complaint before the Supreme Administrative Court, unless he/she or his/her employee, who acts on his/her behalf, has university education in the field of law. In other types of proceedings and in proceedings before the regional court the representation is facultative.

        If the application concerns this sphere of activity, the representing person is an advocate or a person that performs specialized legal consultancy services (patent or tax advisor). The representation could be also provided by a trade union organization or an organization involved in the protection against discrimination for a number of reasons. The entrusted employee or member of this entity then acts on behalf of such an entity. It is also possible to be represented by an authorized natural person; however, he/she cannot provide the representation repeatedly in different matters.

      • 31. Legal aid

        In terms of the plaintiff who is likely to comply with the conditions for being freed from court fees and in cases where it is necessary for the protection of his/her rights, the court can appoint a representative, who can also be an advocate. In such a case the cash expenses of the representatives and the remuneration for the representation is paid by the state by way of the court.

        The freeing from paying the court fees is recognized and awarded if the situation of the party justifies it and if this does not represent wilful or probably useless applying or protecting of the right. The court compares the earnings and property conditions of the plaintiff with the amount of the court fee and possibly other costs related to the proceedings before the court. The obligation to document the lack of funds lies on the plaintiff.

      • 32. Fine for abusive or unjustified applications

        The law does not stipulate any sanction for the abuse or unjustified application; it is only possible to impose a sanction for offensive conduct up to 50,000 CZK (1900 EUR).

    • B. MAIN TRIAL

      • 33. Fundamental principles of the main trial

        The judicial proceedings are governed by the following fundamental principles: the principle of equality of arms between the parties expressed by the right to be present during the hearing before the court; the disposition principle, which restricts the review activities of the court to the applied grounds for the action and enables the plaintiff to withdraw the charge; the principle of concentration applied in actions against the decisions of administrative bodies and in cassation complaints, where the action can be only extended within the term for filing an action or cassation complaint.

        Other principles are as follows: the principle of an official approach according to which the court is obliged to further proceed in the commenced proceedings; the principle of the unity of the proceedings and of the arbitration order expresses that the order of individual acts is not exactly stipulated by law, but is determined by the court depending on the course of the proceedings; the principle of economy of the court’s activity so that the decisions are reached as fast as possible; the principle of free assessment of the evidence; the principle to hear; the principle of prohibiting ex parte investigation and hearing, according to which the court only produces evidence during the hearing when the parties are present; the principle of verbalism of the hearing before the court of the first degree; and before this court, also the principle of a public nature. As regards the so-called general clause principle, see item 2.

      • 34. Judicial impartiality

        The judicial impartiality is ensured by the law, the Rules of Administrative Procedures, according to which the judges are excluded from the hearing and decision-making regarding a matter if, after considering their attitude towards the matter, parties or their representatives, there is a reason to have doubts about their unbiased approach.

        Excluded are also the judges who were involved in the hearing or decision- making regarding the matter in the administrative authority or in the previous judicial proceedings. The circumstances consisting in the progress of the judge in the proceedings regarding the discussed matter or in his/her decision-making in other matters are not the grounds for excluding the judge.

        The decision about excluding the judge for the reasons indicated in the law represents the exception from the constitutional principle, according to which nobody can be withdrawn from his/her legitimate judge; the jurisdiction and competence of the court and of the judge are stipulated by law (Art. 38,1 of the Charter of Fundamental Rights and Freedoms). The judge who ascertains the reason for his/her prejudice will notify of this fact the President of the court, who will appoint another judge or another panel to his/her place according to the work schedule. However, if the President is of the opinion that the judge is not biased, the Supreme Administrative Court is the one to make the decision about the exclusion; if this applies to the judge of the Supreme Administrative Court, and another panel makes this decision.

        Also the plaintiff can contest the unbiased approach of the judge; this can be done within one week of the day when he/she learned about this bias or during the proceedings. This objection must be justified and specific facts indicated which gave rise to its existence. The judge can express his/her opinion of this objection, and then the Supreme Administrative Court makes the decision. A similar amendment refers to the bias of a judicial person, interpreter, or expert.

      • 35. Possibility to rely on the new legal arguments in the course of proceedings

        The principle of concentration of the proceedings applies; the court reviews the action only in the scope indicated in the action within the term stipulated by law. This principle applies to the proceedings before the court of the first degree as well as the Supreme Administrative Court.

      • 36. Persons allowed to intervene during the main hearing

        The law knows the institute of the so-called ‘persons participating in the main hearing’ whose rights or obligations were directly affected by the contested decision or by the fact that the decision was not issued, if they want to apply their rights during the main hearing.
        Such a person is entitled to submit written statements, see the files, be notified of the hearings ordered, and ask for the floor during the hearing. He/she is delivered the decision by which the proceedings before the court finish; however, it cannot dispose its subject.

      • 37. Existence and role of the representative of the State (“ministère public”) in administrative cases

        The Supreme Public Prosecutor (see item 22) is authorized to submit pleadings, but not the defence.

      • 38. Existence of an institution or a person with a role analogous to the French "Commissaire du gouvernement"

        In our legal system, there is no similar function to that of the “commissaire du gouvernement” or “advocate general”.

      • 39. Termination of court proceedings before the final judgment

        The court stops the proceedings if the plaintiff withdraws the action if it was not filed by more persons, or if the plaintiff declares that after the lodging of the application he/she was fully satisfied with the procedure of the administrative authority, or if a special law foresees termination of the procedure.

        The court also stops the proceedings if it ascertains that after the filing of the action the unlawful intervention and/or its consequences no longer last and there is no threat of their recurrence; the approach is the same if the court fee is not paid. An example of a special law foreseeing termination of the procedure is the Act on Asylum according to which, appeal procedures in asylum cases will be terminated, when it is not possible to ascertain where the applicant for the asylum lives; if the plaintiff died; if the plaintiff entered another State’s territory without authorization; if the plaintiff was granted Czech citizenship..

        If a natural person dies or legal person winds up, the proceedings are interrupted and it is dealt with the legal successor; if there is no legal successor, the proceedings factually comes to an end.

      • 40. Role of the court registry in serving procedural documents

        The court of the 1st degree sends the action to the responding administrative authority and requires that it express its opinion of it. This answer is then sent to the plaintiff whom the court can ask for the so-called “rejoinder” - his/her opinion concerning the statement of the responding authority. In the proceedings regarding the cassation complaint, the cassation complaint is delivered to the counter-party, and this counter-party is enabled to express its opinion. This statement then does not have to be delivered to the parties.

      • 41. Duty to provide evidence

        By providing the evidence the court can specify what the facts of the case are which served as a basis for the decision of the administrative authority. Over this framework, it can also ascertain new facts of the case as a basis for the court decision-making within full jurisdiction, but in such a scope so as not to substitute the activities of the administrative authority.

        It bases its activities both on the evidence produced by the administrative authority and on the evidence it has produced itself. It can also produce the evidence, which was not suggested by the parties. The responsibility for acquiring the evidence lies on the court; however, there is a broad obligation of cooperation of the parties and third persons.

      • 42. Form of the hearing

        The verbal hearing is public (compare with item 26). The parties and the persons participating in the hearing are summoned to the hearing of the actual matter. The hearing is commenced and conducted by the presiding judge. In its resolution, the panel makes decisions regarding the objections against the measures adopted by the presiding judge during the conducting of the hearing.

        The presiding judge leads the parties so that they also express those factual and legal issues, which are, in the opinion of the court, crucial for the ruling, even though they were not applied in previous applications of the parties. During the hearing the judges and, subject to the approval of the presiding judge, the parties and the persons participating in the proceedings can ask questions of the parties, witnesses or experts, and/or ask them to express their opinion regarding the matter.

        At the end of the hearing the parties should be given the floor to express their views of the final proposals. The judgement must be pronounced on behalf of the Republic and publicly. As soon as the court pronounces the judgement, it is bound by it. A report is made regarding the hearing. The judge makes a decision about whether or not it is possible to take pictures or make video or audio records at the court room during the judicial hearing. However, should the way of their taking or making disturb the course of the hearing, the presiding judge or the single judge can ban these activities; this is specified in the internal regulation of the Ministry of Justice.

      • 43. Judicial deliberation

        If a verbal hearing is ordered, after it is finished the court issues a decision following the deliberations with the exclusion of the public; only a recorder is present, who, however, does not take part in the process of adopting the decision - the judicial deliberations. Only the judge or the panel are those who make deliberations and decisions. The law on courts and judges places an obligation on the judges to interpret the legal regulations according to their best knowledge and belief and on the basis of facts ascertained in accordance with the law.

    • C. JUDGMENT

      • 44. Grounds for the judgment

        The decision must be in writing and include the designation of the court, the names of all judges who participated in decision-making regarding the matter, the designation of the participants, their representatives, matters heard, statement, justification, instruction regarding the remedy, and the day and place of the pronouncement. In practice this depends on the type of the decision; the decisions of the procedural nature are only justified briefly, the decisions, which relate to the facts in issue are rather detailed. The decision usually deals with every objection raised.

        The issues related to some administrative standards are so specific that they do not enable any other than detailed and highly technical approach. This also applies to the decisions of the Supreme Administrative Court; here the natural or legal person is represented by an advocate, and therefore his/her help directed to the client can be anticipated. The courts adopted this practice also on the basis of the experience with the requirements of higher courts including the Constitutional Court. The ongoing objective of the Supreme Administrative Court is to achieve clarity of decisions issued in administrative justice.

      • 45. Applicable national and international legal norms

        When reviewing the decisions of the administrative authority, the court is primarily governed by the law, the Constitution, and the international treaties on human rights, which prevail over the law. It also takes into consideration legal regulations that stand under the law (governmental regulations, decrees of ministries or local self-government authorities); however, here the judge can assess the compliance of these standards with the law quite autonomously.

        If it comes to a conclusion that the law opposes the Constitution, a procedure is set according to which the court submits the matter to the Constitutional Court for evaluation. In practice regional courts are governed by the decisions of the Supreme Administrative Court; all courts then take into consideration also the decisions of the Constitutional Court, the European Court of Human Rights and of the Court of Justice of the European communities.

      • 46. Criteria and methods of judicial review

        The court can vacate an administrative decision also if the administrative authority overstepped or abused the limits of the administrative consideration; if this concerns a penal sanction, it can even replace the administrative decision. The court can supplement the factual findings from the administrative proceedings including the production of new evidence and assessing “old” as well as new evidence, which also includes the assessment of factual as well as legal issues.

        The administrative consideration cannot be replaced by an independent judge’s consideration; the courts vacate the administrative decisions if the administrative authority overstepped the limits of the administrative consideration, but not if it ascertains that the administrative authority did not utilize this consideration sufficiently, correctly, or effectively. The court removes an unlawful decision, but it cannot substitute it with its own decision with the exception of the above penal sanction. However, it binds the administrative authority by its legal view.

        The disadvantage of this approach is the length of the proceedings; it is extended by the phase of the repeated decision and possible other remedies. On the contrary, the advantage is the respecting of the limits of the constitutional delegation of powers when the court does not substitute the activities of the executive power and does not take on a direct responsibility for the enforcement of the decision, which would be an administrative decision by nature.

        Over the scope of the action the regional court reviews a possible nullity (absolute invalidity) of the administrative act. Over the scope of the cassation complaint the Supreme Administrative Court reviews possible confusion of the proceedings before the court, but also the stated nullity of the administrative authority’s decision.

      • 47. Distribution of legal costs

        The state pays the costs related to producing evidence; it is entitled to the reimbursement of the costs of the proceedings it has paid by the unsuccessful party unless this party is exempt from paying the court fees. Each party pays its respective costs. The party, which was successful in the matter, is entitled to the reimbursement of the costs incurred by the unsuccessful party.

        As to the matters regarding pension, sickness, and social insurance the administrative authority is not entitled to the reimbursement of the costs of the proceedings. However, even in other cases the judicature usually does not award the reimbursement of the costs of the proceedings.

      • 48. Composition of the court (single judge or a panel)

        The judgement is delivered orally, if the matter was heard and at least one party and/or the public are present during the pronouncement. Otherwise the judgement can be pronounced by displaying the shortened written copy without the justification on the court’s official notice board for the duration of fourteen days; this is usual particularly at the Supreme Administrative Court which also displays the shortened version of the decisions on the electronic notice board on its website.

        The decision regarding the matter must be written and delivered to all those who participated in the proceedings. The decisions of the procedural nature are only delivered to all parties in writing if the proceedings are terminated by it or if an obligation of some sort is imposed. The court makes out the ruling within one month of its pronouncement and then delivers it.

      • 49. Dissenting opinions

        The office rules enable that the report regarding the voting contains an opinion, which is different from the opinion of the majority; it is stated there in full wording with brief justification. But this different opinion is not published publicly.

      • 50. Public pronouncement and notification of the judgment

        At the regional court a panel consisting of the presiding judge and two judges makes decisions regarding all matters with the exception of the matters concerning asylum, and pension, sickness, and social insurance, job applicants and their unemployment benefits and benefits during the retraining, social care and help in material distress and misdemeanors, in which the decisions are made by the single judge. The single judge has the same rights and duties as the presiding judge when deciding in a panel. The decisions at the Supreme Administrative Courts are always made by the panels.

    • D. EFFECTS AND EXECUTION OF JUDGMENT

      • 51. Authority of the judgment. Res judicata, stare decisis

        The decision of the court is the final decision regarding the rights of the parties; as far as they are concerned, it represents an absolute obstacle to the subsequent action in the same matter or for the same grounds of action; it does not have the ergae omnes effects.

        The principle stare decisis, according to which - if the court sets a legal principle for certain merits, it will follow this principle in identical cases also in the future - it is put forward factually as a result of the process of unifying the judicature by legal means, particularly by the provisions and activities of the so-called extended panel.

      • 52. Powers of the court in limiting the effects of judgment in time

        The law does not provide a possibility of pronouncing that the decision only refers to a certain period in the past or in the future with one exception which relates to the measures of a general nature; there the court specifies the day as of which it will cancel this measure.
        The court’s decision is always based on a legal and factual status valid at the time of the decision-making of the administrative authority, and the court states whether the procedure of the administrative authority was in compliance with the law or not at that time, regardless of the fact that currently a new law is already valid. However, it is not possible to decide that the conclusions of the judgement can be observed only after the lapse of a certain period of time.

      • 53. Right to the execution of judgment

        In terms of the execution of the judicial decision the following applies: If the obligation is imposed on an administrative authority, which is the body of the executive power, its relevant structural unit is obliged to fulfil it on behalf of the state. If the administrative authority is a natural or legal person, to which the law delegated the execution of the state administration, this person is obliged to fulfil it. And finally if this concerns the public corporation, this obligation has to be fulfilled by this public corporation.

        The judicial decisions are executable if the period for their execution has lapsed; however, if such a period is not set, then they are executable at the moment of them acquiring legal validity. The coercive execution of the imposed obligation is delegated to the civilian courts.

        The law, in case that the decision of the administrative authority is vacated, charges the administrative authority with the obligation of making another decision; while doing so, it has to observe the legal opinion expressed. In practice no case is known when the court opinion would not be consciously observed by an administrative authority.

      • 54. Recent efforts to reduce the length of court proceedings

        The constitutional Charter of Rights and Freedoms gives everybody the right to have his/her matter dealt with without unnecessary procrastinations. The law does not stipulate any periods in which the decisions should be made, with the exceptions indicated in item 26 and matters which have a preference over the others and which in general have to be dealt with preferentially regardless of the order of delivering the matters to the court.

        The adequacy of the duration of the proceedings is assessed in accordance with the decision-making practice of the European Court of Human Rights (for example Frydlender against France [Grand Chamber], no. 30979/96, Section 43, ESLP 2000- VII), that is on the basis of the circumstances of the given case and with regard to the criteria arising from its own judicature, which particularly include the complexity of the matter, conduct of the complainant, and procedure of relevant authorities, as well as the importance of the dispute for the affected persons.

    • E. REMEDIES

      • 55. Sharing out of competencies between the lower courts and the supreme courts

        The majority of the disputes start at the level of the regional court: this applies to the action against an unlawful decision. In the proceedings regarding the action, the administrative courts of both degrees usually assess legal issues; the evidence is usually produced by the regional court, while the Supreme Administrative Court only produces the evidence in exceptional cases. The verbal hearing also takes place before the regional court, before the Supreme Administrative Court very rarely.

        The regional court dismisses the action and/or cancels the challenged decision of the administrative authority, and returns the matter to the administrative authority for further proceedings. The Supreme Administrative Court makes the decision regarding the judgement of the regional court, which means that it rejects the cassation complaint and/or vacates the judgement of the regional court and returns the matter to this court for further proceedings. Also the regional court makes decisions regarding the action against the inactivity of the administrative authority, and regarding the action for the protection against unlawful intervention of the administrative authority.

        For these matters the Supreme Administrative Court then acts only as a cassation court. At administrative courts, also all election-related matters are concentrated; the competences here are divided into the regional court and the Supreme Administrative Court (see item 2). The Supreme Administrative Court exclusively conducts proceedings concerning competence actions either between the body of the state administration and the body of the self-government, or between individual self-government bodies (for example between the municipal body and the regional body) with the objective of deciding who should issue a decision in a certain matter, and finally it conducts proceedings about the cancellation of the decisions of a general application (see item 2). The differences thus arise from the nature of the actual matters, but not from whom, i.e. what authority made the decision and from what level.

      • 56. Recourse against judgments

        No regular remedy is admissible against the decision of the regional court; however, against the final decision it is possible to lodge an extraordinary remedy - cassation complaint - within the period of two weeks; there are some exceptions to this rule (for example electoral issues). The cassation complaint is then dealt with by the Supreme Administrative Court. By means of the cassation complaint, which is widely used, remedy can be claimed in material as well as legal issues and in the area of correcting a defective trial. It can be lodged both against the decisions in the actual matter and against the majority of procedural decisions (dismissal or refusal of an application; discontinuation of the proceedings), but always only for some reasons listed and exactly specified by the law.

        The complainant must be represented by a qualified person, usually by an advocate. The Supreme Administrative Court is bound, with the exception of the facts indicated in item 46, by the scope of the cassation complaint; it usually deals with it as is in a non-public meeting of the panel, and makes out a written decision published on the internet. The second extraordinary remedy is the reopening of the proceedings, admissible only in the proceedings regarding the actions against unlawful intervention and in proceedings regarding the issues of political parties, it means in the cases when the court itself ascertained the factual questions of the matter.

    • F.  EMERGENCY AND SUMMARY PROCEEDINGS / APPLICATIONS FOR INTERIM RELIEF

      • 57. Existence of emergency and/or summary proceedings

        There are two tools serving for this purpose: a preliminary measure, and a dilatory effect of an action or a cassation complaint. No verbal hearings are held and the application has to be dealt with preferentially. The same judge (panel), who will deal with the actual matter, makes the decision. The court may impose on the parties or even a third person an obligation to do something, to refrain from something, or to sustain something (for example a temporary restriction of the property handling). Of course, if an action can be awarded a dilatory effect, or if this effect arises by law, then the motion for the preliminary measure is not admissible by the law.

        The regional court as well as the Supreme Administrative Court awards a dilatory effect to the action, again without a verbal hearing and in the preferential mode, if the execution of the decision would mean an irrecoverable harm for the plaintiff, and if it does not affect the rights of third parties and is not contradictory to the public interest. For both institutes it applies that the court can vacate them (as regards the preliminary measure, it can even change it) if the situation changes, and also that they act before the court until the proceedings before the court are finished.

      • 58. Requests eligible for the emergency and/or summary proceedings

        The main prerequisite for issuing a preliminary measure is to file an action regarding the actual matter and the occurrence of the need to provisionally adjust the situation of the parties because of the threat of serious harm. For the proposal of the preliminary measure, the court asks the other parties for their views.

        There is a charge for the proposal amounting to 500 CZK (19 EUR); however, in some matters, for instance pension, social, sickness insurance, asylum, etc. the proposal is exempt from this payment. In practice we do not encounter such proposals very much (see item 29). In terms of administrative decisions, the institute of the dilatory effect of the action concerning the proposal of the plaintiff is applied more often, which is not subject to any charges.

      • 59. Kinds of summary proceedings

        Regardless of the order of the delivery of the matters to the court, the court preferentially deals with the motions for preliminary measures, motions for awarding a dilatory effect, the motions for the exemption from court fees, and motions for appointing a representative.

        It also preferentially deals with motions and actions regarding asylum matters, the decision regarding the securing of a foreigner, the decision to terminate special protection and to help witnesses and other persons in relation to the criminal proceedings.

  • III – NON-JUDICIAL SETTLEMENT OF ADMINISTRATIVE DISPUTES

    • 60. Role of administrative authorities in the settlement of administrative disputes

      Disputes can be settled by administrative authorities themselves. A new institute of the “applicant satisfaction” serves for this purpose. It enables the administrative authority, after the issuing of the decision and its challenging by means of the action at the court, to make another decision regarding the matter so that the plaintiff is satisfied with the new decision.

    • 61. Role of independent non-judicial bodies in the settlement of administrative disputes

      Legal disputes can be settled by the Public Defender of Rights (ombudsman). The scope of his activity covers the administrative authorities. The administrative authorities are obliged to provide information and explanations, submit files and other written materials, communicate a written opinion regarding the factual as well as legal issues, and produce evidence which the Defender suggests. All state bodies and persons executing public administration are obliged, within the scope of their respective activities, to provide him the required assistance during the investigations.

    • 62. Alternative dispute resolution

      The Public Defender of Rights can suggest to the administrative authority to commence the proceedings regarding the review of the final decision, act or procedure of the authority, to undertake steps to remove inactivity, to commence disciplinary proceedings, to commence the prosecution for a crime or offence, or to provide the compensation for damages or to claim damages. Within 30 days the authority is obliged to communicate what measures for remedying the situation were adopted. If the authority does not comply with its obligation or if the measures for the remedy are insufficient, the Defender notifies the superior body or the government; it can inform the public.

  • IV – ADMINISTRATION OF JUSTICE AND STATISTIC DATA