SEVERAL REMARKS TO THE LEGAL BASES OF THE PRINCIPLES
OF GOOD ADMINISTRATION WITHIN THE CONDITIONS OF THE
CZECH REPUBLIC
SOŇA SKULOVÁ
Masaryk University, Faculty of Law, the Czech Republic
Abstract in original language:
The contribution deals with the roots and legal bases of the principles of Good Administration
in the Czech Republic, the complicated way of their establishing and quite slow penetrating
into the legal regulations and administrative practice. It stresses the positive role of the
Constitutional Court and rather later of the judicature of administrative courts, esp. the
Supreme Administrative Court, and also the enlightening role of the Ombudsman in this field.
Key words in original language:
Principles of Good Administration, Public Administration, Judicial Review, Legal Principles,
Correctness, Proportionality, Legitimate Expectations, Ombudsman, European Administrative
Space.
Dear colleagues, dear guest,
for our panel discussion we have tried to offer the topic that would be general, or better
common enough in so called "Visegrad" space, that could be understood as a special, Central
European part of the Europe, and European Union as well.
And for such purpose the theme and consequences of the Principles of Good Administration
seems o be just perfect ­ and not only for that general impact on Public Administration
systems, their general role and nature, as a means for reaching the commonly recognized
values in the society on the national and European levels.
The other reason for our choice has been the specific importance and features of these
principles for the Visegrad countries. This is caused by their common and specific traditions,
ways of development, conditions and legal environment, with prevailing common and specific
roots and patterns of organization and activities of their administrative systems, and also for
the concepts of the personal basis of the Public Administration (i.e. rather bureaucratic). And
for, last but not least, quite a similar recent history, and changes of the political systems and
the society in the broadest sense.
My short contribution could be, in the main points, generelized for the Visegrad space. But
still each of its countries has had concrete "story", with different present situation and results,
as well.
The approach to the principles of Good Administration, respect for them and their control ,
esp. judicial review of these principles can distinctly illustrate, generally said, the former
situation and some substantial, essential, but differentiating changes, proceeding in postcommunist
Central and East-European countries, especially in the sphere of public
administration ­ citizens relation from 1990s, and in the sphere of decision-making of Public
Administration, as well.
The requirements for Public Administration's decision-making incorporated in the principles
of good administration pass through the level of legislative regulation of public
administration's activities (in particular as regards determining criteria for correct decision
making, with different conceptions of this correctness), then they include the field of
interpreting administrative law standards and their application, and also the problems of
judicial reviews of administrative acts.
These dimensions of public administration in the post-communist countries have undergone
and undergo fundamental and necessary changes, and this process is far from having been
finished. Ways may differ. Nevertheless, we share certain common values and are supposed
to achieve certain common standards. This process is significantly influenced by the European
Law (EC/EU law, and also COE standards).
1. SOME TERMINOLOGICAL AND CONTEXTUAL NOTES TO THE PRINCIPLES
OF GOOD ADMINISTRATION
For the correct application of public administration authority towards individuals ­ addressees
of its competence ( and particularly the discretionary powers, where public administration is
entrusted with the area for application of its own solutions of specific situations), a certain
structure of requirements has profiled as regards the quality, content and range of execution of
this authority. Among them, the principles of proportionality and legitimate expectation are
especially important.
This is because the above-mentioned principles guarantee, more or less directly or indirectly,
relevant constitutional principles (equality principle ­ in dignity and rights, prohibition of
discrimination, principle of basic rights and freedoms protection, their mutual balancing,
prohibition of abuse of authority, limited execution of public authority at the level of both
material and process rights) for the public administration-individual relationship in a modern
legal state. These principles should also mediate reasonable and acceptably flexible
connection of the purposes and aims of public administration (state, community, region, and
municipality) on the one hand and the rights and interests of citizens on the other hand by
using adequate means and in maintaining the necessary rate of certainty.
This fully goes to the principle of proportionality and the principle of legitimate expectations predictability
(or, more general principle of legal certainty) then have the crucial importance
for the legal quality of the decisions of public administration authority.
The practice of administrative authorities and administrative courts bring new and new
situations and cases that cope with these principles for the first time or in an original manner
and that enrich our knowledge or create the basis for future discussions.
But for new or "newer" member states of the European Union, which is also the case of the
Czech Republic, the current discussion is not only topical as a certain "added value" in the
form of not yet solved administrative areas or some original ideas or thoughts.
In this field, unfortunately, we were, for a while, i.e. for the major part of the second half of
the 20th century, "truant" ("absent in the classes"), and therefore we should admit that in the
conditions of the Czech Republic, some of the basic battles have not been fought out yet,
which we can meet in different cases (e.g. the way of solution the conflict between the
freedom of speech on one hand and the protection of privacy on the other hand).
From the view of establishing requirements and guarantees of the correctness and justice of
public administration's decision making (and maybe also of some administrative courts and
administrative law judges), these battles have not been finished triumphantly (or reasonably or
proportionally ­ to remain in the intensions of our principles) ­ if such simple solutions are
just possible.
Now I have touched the neuralgic terms. These are correctness and justice. I could add, being
aware of Anglo-Saxon tradition, the term reasonableness. These terms we can meet in several
recent decision of the Supreme Administrative Court in relations with proper interpretation
and application ( e.g. 4 As 12/2007 ­ 85 or 6 Ads 45/2008 ­ 50. According to
http://www.nssoud.cz).
Public administration should adopt decisions with these qualities, and also this quality of
public administration's decisions, if they affect the rights of individuals (particularly their
basic rights and freedoms), should be subject to judicial reviews.
In my opinion, the above-mentioned, although certainly rather a simplifying premise, is only
applied gradually, but increasingly, in the conditions of public administration and judicial
review in the Czech Republic.
In the present time, it is being settled and it tries to find its necessary scope and also
understanding by all affected entities.
I suppose the situation in other post-communist countries ion these matters to be quite similar.
To better understand the situation, it is necessary to add a piece of information that since the
beginning of the 1990s, the Czech public administration system has been undergoing a reform
process in the widest concept, in a rather spontaneous way. Such approach did not create just
suitable environment for the concentrated and systematic view of the questions of quality of
the public administration legal regulation and creating conditions for establishing the quality
standard of decision-making processes.
The effects of Europeisation (including the competence of the European Court for Human
Rights and the European Court of Justice), at least in the aspect of establishing certain
principles and standards, could and still can therefore have a generally positive and
stabilizing potential.
2. TO THE ROOTS AND BASES
Understanding the current situation requires at least a brief view of the roots and major steps
of the previous development.
In the case of examining the public administration decision making and judicial review in the
Czech Republic, the principle of legal continuity (or at least that of formally legal continuity)
and, basically, also the principle of institutional continuity was, in general, applied. Of course,
we cannot speak of political and ideological continuity, which, in some breaking points,
resulted in a material-legal discontinuity.
In this case, it is a Central European, continental legal tradition with an emphasis on statute
law, i.e. with an accent on legality, supplemented with a strong influence of internal
directives.
This is related to the centralized model of public administration, from the early 1860s
supplemented with municipal self-government which, however, also disposed of delegated
competence of public administration, also subject (as public administration) to internal
instructions.
The principle of legality was and still is (although now with a broader content) the major
principle in the structure of requirements placed on public administration. In the conditions of
the communist regime everything was given if not by a relatively stable legislation then by
detailed internal directives and instructions.
In the first general procedure code of public administration (Administrative Procedure Code)
of 1967, which only applied to specific (individual) administrative acts, the main procedure
principle was the principle of legality.
In relation to the rights of individuals, the generally determined principle for public
administration authorities was to protect rights acquired in good faith; at the same time,
however, to protect the general interest of society. The principle of equality was only
established for procedural rights of parties in the same procedure.
This law was in force until the end of 2005, without having been, expressis verbis, enriched
anyhow in the part containing the basic principles of administrative activities.
The term correctness was only understood as the so-called objective correctness of decision,
i.e. the correct finding and consideration of facts. The selection of a correct decision was left
completely on the administrative authority and it was not subjected to judicial cognition
(review).
3. TO THE BEGINNINGS OF THE CURRENT PERIOD
After 1990, logically, the paradigm of legislative optimism fully emerged, with an enormous
hypertrophy of legal regulations. There was a lot to change and catch up with. However, no
conception of legislative reform of public administration as a whole, nor of individual sectors
was adopted.
After 1990, new fundamental factors entered this much worse arranged legislative
environment (at that time the Czechoslovak federative-type and Czech and Slovak republictype
environments), which alone was demanding for administration accustomed to the
traditional scope of legality criterion, which, however, ceased to be a traditional stable pillar.
Czechoslovakia (and the Czech Republic after the country split up) became a member of the
Council of Europe and adopted the European Convention on Human Rights and Fundamental
Freedoms (1992, 1993) and a commitment to prepare for joining the European Communities
(1994). In 1992, the Charter of Fundamental Rights and Freedoms, inspired to large extent by
the European convention and other international documents on human rights, was adopted
and, in 1993, incorporated in the Czech Republic's constitutional order. Also an obligation
arose for the Czech government ­ to push the soft-law of the Council of Europe forward to
national law.
At the value level, adoption of a new Constitution of the Czech Republic (1993) must be
emphasized, with incorporating the principle of respect to citizens' rights and freedoms,
public authority service to citizens, binding of public authority by law and a reference to the
well-tried principles of legal state and the joint value basis of the family of European and
world legal states.
It is the Constitutional Court that has become the first institution in the conditions of the
Czech Republic which began to apply argumentation by using legal principles, including the
principles of proportionality and legitimate expectation (although more frequently in the field
of legislative acts ­ for the first time comprehensively in the case Pl. ÚS, then Pl. ÚS/15/96,
Pl. ÚS 16/98, III. ÚS 256/01, and other), including unwritten principles (for their legal
liability see grounds of the finding Pl. ÚS 33/97).
The Constitutional Court also applied the paradigm of conform interpretation of ordinary laws
and the paradigm of penetrating constitutional principles throughout the entire rule of law not
excluding the public administration sphere (III. ÚS 139/98) .
4. AND TO THE CONTEMPORARY SITUATION
A modern legal state cannot make do with the traditional concept of public administration
legality and administration legality review, and the Constitutional Court shows it eloquently.
At the turn of the millennium, it was difficult to argue for the principle of proportionality or
legitimate expectation, or even "some" Principles of Good Administration, at an
administrative authority or during a judicial review. If one had ever known what these terms
meant. However, the high time came to specifically formulate major qualitative standards for
the decision-making procedure of administrative authorities. If not for another reason ­ then
for the material one. Citizens were (have been) slowly loosing their diffidence to sue the
government for compensation of damage, and also to argue in the matters of public law.
As it can be seen, diffidence to argue by legal principles was (is ?) a deficit from the previous
decades shown in both lawyers and numerous judges, solicitors, to say nothing of public
administration officers.
The first act in the necessary direction with a general impact was the law on the Public Rights
Defender (Czech ombudsman) - Act. No.349/1999 Coll., as amanded). It established as a
criterion not only observance of legality, but also observance of the principles of democratic
legal state and the principles of good administration, although without specifying their
catalogue or outline. Just the reference to a principle in a particular law, in relation to the
activities of administrative bodies, was almost a revolutionary act.
Since the beginning of his function, however, the ombudsman, although with weak
competences (he can only recommend, notify or propose), has taken his role in an enlightened
manner and he started to apply the necessary criteria of good administration of both a legal
and ethical nature.
The criteria of rationality, proportionality of solutions used and also the predictability
requirement of administrative authorities' behaviour are regularly applied in the
ombudsman's reports.
Another specific move may be considered an addition of public administration officers' duty
to follow the principle of equal treatment of clients and impartiality to the Labour Code in
1993; for territorial self-government's employees this was done in a special law in 2002. In
the same year, under the pressure of criticism from the European Commission, a law on
public officer service was adopted and it contains a set of usual duties ensuring impartiality
and proper decision making. However, its force was postponed repeatedly and before it
becomes effective it will probably be replaced with a new regulation.
The Czech Republic is probably the only member state of the EU whose public officers do not
have their law on public service. This factor must be considered counterproductive in relation
to the action of necessary principles of good administration. The code of ethics of public
administration officer from 2001, which takes the form of a decree of the government, is not a
sufficient instrument in this respect.
The adoption of the new Code of Administrative Procedure in 2004 must be welcome; it has
been in force since 2006. This law, unlike the general law from 1967 as mentioned before,
does not regulate only the procedure for issuing specific (individual) administrative acts, but
also other administrative acts (with the exception of generally binding acts) and also public
law contracts.
From our "principle" point of view, in particular the first, general part of the law is important
as it contains the so-called basic, general principles of public administration activities and has
a general application for the execution of public administration. Thus the principles are not
only of a procedure character, but partly also of a material character (in some aspects they
control the content of adopted decisions).
Here we find a certain catalogue of legally binding principles of modern public administration
including the principle of proportionality and the principle of legitimate expectation, although
not explicitly designated as such.
By expressly incorporating the principles dealt with below in the text of the law, the reason
for their binding force need not be looked up in constitutional regulations, international
conventions or other documents (of which, in particular, the so-called soft-law of the Council
of Europe).
A positive shift is the fact that the principle of legality acquires explicitly its full content
(compliance with laws and other legal regulations, as well as with international conventions
that are part of the legal order.
Act No. 150/2002 Coll. established "classical" administrative justice with the first instance at
the level of general regional courts (existing).
Above them there is the Supreme Administrative Court on the nullity (cassation) principle
(consideration of legal correctness) and with the role to unify the judicature. These
administrative courts provide protection for public subjective rights in classical matters of
public law, from the view of legality, and also in the event that the limits of discretion are
broken and discretion is abused. The court can alleviate a sanction imposed in an evidently
inadequate amount.
Theoretically, the above-mentioned regulation enables review in the case of a breach of the
monitored principles. As regards the principle of adequacy, such cases may be encountered,
and also the principle of legitimate expectation. Judicature has also defined the term "abuse
of administrative discretion" quite sufficiently (see, for example, decisions No. 905, 906, 950
of the Collection of Decisions of the Supreme Administrative Court).
Summary:
In the Czech Republic, the process of enforcement of the principles of Good Administration is
a long-term, sometimes painful, and a little slow process, maybe.
The reasons for that we can find particularly in the fact that, unfortunately, despite of a large
amount of information and experience available from abroad and from European institutions,
and despite of a strong tradition of the so-called first Czechoslovak Republic, priorities and
main target values for the reform of public administration and administrative justice have not
been set in time and clearly enough, and these matters did not get a sufficient political priority
and support.
Therefore, the procedure to the necessary standards uses a more demanding and painful
method, sometimes a trial-and-error method. Both the government and public administration
pays and will pay for errors not only with money, but also with confidence. Citizens pay as
well.
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Contact ­ email:
sona.skulova@law.muni.cz