Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 1 Administrative Procedural Law Legal Guarantees in Public Administration (Judicial Review, Ombudsman) Lecture 5: 26th April 2023 SOC003: Public Administration in the Czech Republic dr. Tomáš Svoboda Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 2 Lecture 5: 26th April 2023 ̶1/ System of (Czech) Administrative Law ̶For context of the lecture ̶2/ Legal regulation of administrative procedure ̶Administrative Procedural Law ̶Administrative procedure in CAP ̶Decisions and other procedural forms ̶3/ Legal Guarantees in Public Administration ̶Principle of legality and other basic principles ̶Administrative Justice in the Czech Republic ̶Ombudsman institution in the Czech Republic ̶ ̶ ̶ Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 3 1/ System of (Czech) Administrative Law ̶Function of Public Administration in the society ̶To achieve public goals and to protect public interest ̶It is generally based on (intentional) activity ̶Possibility of using public power ̶ ̶Administrative Law („Správní právo“) ̶The biggest (and also important) branch/part of law/legal system (of each „legal“ / „administrative“ state); part of public law ̶Regulates relations in Public Administration Øa) its organization (at different levels) and Øb) its functions/activities ̶ ̶Where is the place of Administrative Procedural Law? ̶ Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 4 1/ System of (Czech) Administrative Law First possible classification: Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 5 1/ System of (Czech) Administrative Law Second possible classification: Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 6 1/ System of (Czech) Administrative Law ̶Administrative Procedural Law ̶= Procedural part of Administrative Law ̶Consists of different procedures that can be found in public administration ̶Emphasis on protection of (individual) rights and freedoms ̶ ̶Generally regulated in… ̶Code od Administrative Procedure (Act no. 500/2004 Coll.) – „CAP“ ̶Code of Administrative Justice (Act no. 150/2002 Coll.) – „CAJ“ Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 7 1/ System of (Czech) Administrative Law ̶What does CAP regulate? ̶Art. 1 section 1 of act nr. 500/2004 Coll., Code of Administrative Procedure ̶„This Act regulates the procedure of executive bodies, bodies of territorial self-governing units and other bodies, legal and natural persons, if they exercise competence in the field of public administration (hereinafter referred to as "administrative body").“ ̶ ̶Public administration is a system of different administrative bodies ̶And system of their functions and forms ØSee schemes further ̶ ̶But CAP does not regulate the area of public administration which does not exercise any public authority (public power) ̶Providing of public services, public property management etc. – there are also legal rules, but special ones (generally based of modifications of private law) ̶ Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 8 1/ System of (Czech) Administrative Law •State administration belongs to the state: •important part of public administration, different task of the state are performed by the state and its bodies („direct state administration“), •but also „indirectly“ by other bodies that are not part of the state administration („indirect/ transferred state administration“) – on a legal basis bodies of territorial self-government are performing state administration duties („mixed model of state administration“) •Self-government includes local, regional and also „university/ interest and professional“ self-government Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 9 1/ System of (Czech) Administrative Law Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 10 2/ Legal regulation of administrative procedure ̶Sources of regulation ̶In general CAP (art. 1 sec. 2) – „This Act or its individual provisions shall apply unless a special law provides otherwise.“ ̶But also in various special laws (special procedural regulations – about 300 laws) ØSpecial regulation of Building proceedings under Building Act etc. ØVarious modifications of CAP procedure Ø ̶CAP ̶about 180 provisions, in effect since 2006 ̶can be excluded by lex specialis, but its not possible to exclude CAP without special regulation in place ̶Regulates also basic principles of administrative bodies activities (art. 2 – 8 CAP) Those are legal principles (are legally binding for authorities), many of them are principles of good administration in nature Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 11 2/ Legal regulation of administrative procedure ̶Administrative procedure in CAP ̶Is one of the procedural forms (not the only one), that are regulated by CAP ̶CAP ≠ administrative procedure, but CAP ≥ administrative procedure ̶Regulation for issuing administrative decisions ̶Is important part of public administration ̶The decision enables/permits/constitutes new right (e.g. to study, to build, to do business, to drive, grant social benefit, authorization…), but also constitutes duties (e.g. to pay a fine); sometimes is the decision is in the beginning, sometimes it follows what happened (administrative offence) ̶ ̶Needs to have its participants, who have different rights and duties among the procedure; these are also addressee of the final decision ̶If started, should be ended with a decision (but usually takes some time, but should be reasonable time) – if not administrative silence/inactivity ̶Can be reviewed by superior administrative bodies and later by the administrative courts ̶ ̶ ̶ ̶ Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 12 2/ Legal regulation of administrative procedure ̶Administrative procedure in CAP ̶The proceedings are conducted by a competent administrative body and authorized public officials ̶The participants have the right to propose and demand and many other procedural rights ØMake proposals/demands/objections ØTo comment, explanate ØAccess to the files… Ø ̶Various activities of the administrative body before, during and after the proceedings ØSome pre-litigation procedures, oral hearing during the proceedings, appellate proceedings etc. ̶Initiation of proceedings – upon request or ex officio ̶Written form is dominating, but also oral hearings (but written protocol) ̶An administrative file is established and maintained in each case ̶ ̶ ̶ ̶ Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 13 2/ Legal regulation of administrative procedure ̶Administrative decision ̶Specifying the rights and duties for a given case and circumstances (act of application of law), creates decision-making practice – binding in the future ̶“Parts” ØStatement ØJustifications/reasoning ØInformation about remedies Ø ̶Review ̶Principle of two instances – common principle of the administrative law (in the Czech law not constitutionally guarantied but generally respected) ØAppeal = ordinary form of remedy against a decision ØRemonstrance = special form of appeal against decisions of ministries or other central administrative bodies ̶Some other “extraordinary remedies” (but more protection of legality than individual rights) ̶Administrative justice (see further) ̶ Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 14 2/ Legal regulation of administrative procedure ̶Not only decisions… ̶Other forms of public administrative activities regulated by law ØOutcome/result of public administration activity; several forms (due to complexity of public tasks and goals) ØShows in which ways/forms is the public administration realized and applicated ØPresents scope of administrative and judicial protection ̶ ̶ ̶See scheme further… Ø(But its not required to memorize the details of the scheme as it is meant only for basic orientation in categorization of forms and scope of CAP) ̶ Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 2/ Legal regulation of administrative procedure ̶ 15 Forms of public administration activity (theory) Where is it regulated (CAP) Form of protection (CAP) Administrative acts Normative administrative acts Not provided for; however, the CAP shall be applied at least in the scope of its basic principles contained in Part one (Sections 2 to 8 CAP) No provisions Individual administrative acts 1) Administrative decisions – Parts two and three (Section 9 to 153 CAP) 2) So-called other acts – Part four (Sections 154 to 158 CAP) 1) Remedial measures (ordinary and extraordinary, Sections 81 to 100 CAP) 2) Ex-officio revision and the form of so-called review proceedings (Section 156 CAP) Mixed administrative acts Acts of a general measure – Part six (Sections 171 to 174 CAP) Ex-officio form of so-called review procedure (Section 174 par. 1 CAP) Public law contracts Part five (Sections 159 to 170 CAP) Ex/officio form of so-called review procedure (Section 165 CAP) Factual act and immediate interventions No provisions; however, the CAP shall be applied at least in the scope of its basic principles contained in Part one (Sections 2 to 8 CAP) No provisions Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 16 3/ Legal Guarantees in Public Administration ̶Principle of legality ̶Constitution, Charter of Fundamental Rights and Freedoms, CAP… ̶Legal guarantees = different measures that enable and ensure legality in public administration ̶Important role of the control of public administration ØInternal – by PA itself ØExternal – by other state bodies (courts, ombudsman, etc.) or citizens (right to information, petitions etc.) Ø ̶How can we know if the state is democratic and legal? ̶Adolf Merkl (Austrian legal scholar) wrote in the 1930’s that such state recognizes: ØPrinciple of legality, rule of law ØExistence of self-government and ØJudicial control of public administration – administrative justice ̶Example: In the Czechoslovakia from 1948 to 1989 (under so-called communist era) these requirements were systematically undermined and more or less destroyed Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 17 3/ Legal Guarantees in Public Administration ̶General rules/principles of public administration activity ̶In Constitution (Act no. 1/1993 Coll. – principle of legality, legal basis for the establishment of authorities, government regulation, etc. ̶Charter of Fundamental Rights and Freedoms (Act no. 2/1993 Coll.) – right for a fair trial (art. 36 sec. 1) and judicial protection (art. 36 sec. 2) + many other fundamental rights and freedoms (free speech, voting, right to property, education, healthcare etc.) ̶European Convention on Protection of Rights and Freedoms – existence of judicial protection + guarantees of many other fundamental rights and freedoms ̶CAP – basic principles, focused on a concept of good administration (Art. 2-8): legality, proportionality, protection of good will, legitimate expectations, public service, alternative solutions, speed and economy, minimalization of interventions, equality, cooperation – legally binding for the administrative bodies ̶Soft law: Council of Europe – https://rm.coe.int/16807096b9 ̶ Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 18 3/ Legal Guarantees in Public Administration ̶Administrative Justice in the Czech Republic ̶Roots in Austrian administrative law Ø1867 and 1876 in Austrian Empire – Code of Administrative Justice (Act No. 36/1876 Coll.) ØAct No. 3/1918 Coll. – Code of Administrative Justice ̶During the communist era generally dysfunctional ̶Restoration in 1992, reform in 2003 ̶Now regulated in Code of Administrative Justice (Act no. 150/2002 Coll.) – „CAJ“ ̶New system – possibility to take an action against: ØDecisions, inactivity, factual acts, acts of general measure Ø= Wide scope of judicial protection ̶Supreme Administrative Court (Brno --->) ̶+ 8 regional administrative courts ̶ ̶ ̶ ̶ http://upload.wikimedia.org/wikipedia/commons/2/2f/Nejvy%C5%A1%C5%A1%C3%AD_spr%C3%A1vn%C3%AD_soud_% C4%8CR_I.jpg Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 19 3/ Legal Guarantees in Public Administration ̶Administrative Justice in the Czech Republic ̶Administrative Justice and „Code of Administrative Justice is by its nature a “defensive” act. It is not a “control” standard that would allow anyone to initiate, by bringing an action in the administrative justice, to control any act of the public administration. It is only intended to ensure legal protection in cases where public administration enters into the legal sphere of natural or legal persons. The limitation criterion for prominence is the alleged interference with public subjective rights. Not all the activity (or any misconduct) of public administration is subjected to judicial control …., but only when the activity of the administration exceeds their public subjective rights. " ̶Supreme administrative court (8 As 47/2005, 1764/2009 Coll., SAC) Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 20 3/ Legal Guarantees in Public Administration ̶ 20 Administrative Justice in the Czech Republic Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 21 3/ Legal Guarantees in Public Administration ̶Ombudsman institution in the Czech Republic ̶Established in 2000, Act no. 349/1999 Coll., seated in Brno ̶One universal institution, considered as a body of Parliament (of Chamber of Deputies) ̶„Public Defender of Rights“ - https://www.ochrance.cz/en/ ̶One representative of the institution + one deputy (and administrative office) ̶ ̶Ordinary aspects of this type of institution (Ombudsperson) ØProtects citizens against state bureaucracy ØNonformal, accessible, fast ØCannot decide, instead using its nonformal authority to persuade administrative bodies to follow its findings ØAutonomous on the executive power (elected by the Chamber of Deputies) ØGather complains and informs executive power Ø ̶Primary and secondary (added later) competences ̶ ̶ ̶ Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 22 3/ Legal Guarantees in Public Administration ̶Ombudsman (Ombudsperson) institution ̶Primary competences ØProtects citizens against the conduct of authorities and other institutions if the conduct is against the law, does not correspond to the principles of a democratic legal state and the principles of good administration, or the authorities are inactive. ØControls most state authorities ØSpecial emphasis on the use of principles of good administration Ø ̶Secondary competences ØHe/she also carries out preventive systematic visits to places where people are restricted in their freedom and seeks to ensure that their rights are respected. The Defender also contributes to promotion of the right to equal treatment and protection against discrimination and also systematically deals with the rights of the people with disabilities. Adobe Systems SOC003: Public Administration in the Czech Republic (T. Svoboda) 23 Administrative Procedural Law Legal Guarantees in Public Administration (Judicial Review, Ombudsman) ̶ ̶ ̶ ̶ ̶Questions? ̶ ̶Thank you for your attention