Define footer - Name of the presentation / Your name / Unit, Office 1 1.Administrative Procedural Law 2. Legal Guarantees in Public Administration 3. Ombudsman. Public Administration control. Judicial Review JUDr. Lukáš Potěšil, Ph.D. Define footer - Name of the presentation / Your name / Unit, Office 2 Forms of Public Administration Activity in the Czech Republic and Protection of the Rights of Individuals §System of forms of public administration activity §Approaches to the system of forms §Forms of public administration activity and judicial protection § Define footer - Name of the presentation / Your name / Unit, Office 3 Normative vs. instrumental approach to the forms of public administration acitivity §Form(s) of activity: 1)Outcome/result of public administration activity; several forms (due to complexity of public tasks and goals) 2)shows in which ways/forms is the public administration realized and applicated 3)Presents scope of administrative and judicial protection. § •Normative approach to the forms: which forms has the public administration permited/allowed and „prescribed“ to fulfill its tasks (principle of legality), helps the public administration •Instrumental approach: the system of forms protects the individual rights, another than prescribed form can´t be applied/used § Define footer - Name of the presentation / Your name / Unit, Office 4 Define footer - Name of the presentation / Your name / Unit, Office 5 Principle of Two Instances – Administrative Appeal and Remonstrance §Common principle of the Administrative Law §not expressly stated in the legislation – non written down exactly §X - Admitted by the practice a jurisprudence §X - Existence of ordinary remedies – their admissibility – existence of this principle §! - BUT has no nature as BASIC/FUNDAMENTAL principle, only standard/normal principle §THEREFORE: 1.Absolute exclusion of this principle 2.Relative exclusion of this principle § Define footer - Name of the presentation / Your name / Unit, Office 6 Principle of Two Instances §Absolute exclusion of the principle 1.no ordinary remedies 2.legal force •Independent administrative bodies (no superior body) •No administrative review – due to the independence 3.Instead of administrative review – straight judicial review § Define footer - Name of the presentation / Your name / Unit, Office 7 Principle of Two Instances §Relative exclusion of the principle 1.Remonstrance §? Is it a special, but independent ordinary remedy, or only a special type/kind of an administrative appeal? §Whose decision are controlled in remonstrance proceedings? §Who decides on remonstrance? § Define footer - Name of the presentation / Your name / Unit, Office 8 Remonstrance §Use by the aggrieved participants against decision that was made by the „CAB“ in the first instance/level §„CAB“ * central bodies (on the top of the hierarchy) * no superior bodies * preparation of the legislation * conceptual task, analysis, advices * ministries, other … qShould or shouldn´t the „CAB“ participate in the administrative decision making process and should or shouldn´t make an individual decisions? § § Define footer - Name of the presentation / Your name / Unit, Office 9 Remonstrance §„CAB“ in the administrative proceedings 1.Represents the second/final instance §with accordance to the principle of two instances §final instance – final decision, end of the procedure §instrument for control 2.Represents the first instance – the administrative proceeedings begins at this stage/level §In respect to the principle of two instance – who will then decide in the second instance? §No superior administrative body REMONSTRANCE § § Define footer - Name of the presentation / Your name / Unit, Office 10 Remonstrance §By the head of the „CAB“ who made first instance/level decision §? internal or external control? §? Impartiality – control of decision that was made by „his/her“ office, „his/her colleagues“, … §Legal requirement: estabilishing the „independent“ remonstrance commitee §! decision on remonstrace is made by the head, not by the commitee! § § Define footer - Name of the presentation / Your name / Unit, Office 11 Extraordinary Remedial Measures in Administrative Procedure §Purpose of remedial measures §Disctinction between ordinary and extraodrinary remedial measures §Extraordinary remedial measures in the Czech „CAP“, its system § Define footer - Name of the presentation / Your name / Unit, Office 12 Extraordinary Remedial Measures in Administrative Procedure §WHY REMEDIES IN ADMINISTRATIVE PROCEDURE? NEED OF REMEDIES? •Normative approach: how to protect legality and public interests in administrative procedure, to ensure legality of administrative acts itself (law) •Instrumental approach: system of remedies that helps aggrieved parties (participants) against unlawful and unjust decisions (right) • •YES, we need them, but … (is not so much remedial measures? More remedies = more rights??? How to use this system … § Define footer - Name of the presentation / Your name / Unit, Office 13 Extraordinary Remedial Measures in Administrative Procedure §Are remedial measures in administrative procedure more „normative“ or „instrumental“? •Ordinary remedies – more instrumental §(Appeal - Sec. 81 – 93 CAP, and/or Remonstrance - Sec. 152), right to administrative appeal, the decision is not in legal force, principle of two instances, condition for acces to Administrative Justice •Extraordinay remedies – more normative §(Review procedure – Sec. 94 – 99, and Renewal procedure – Sec. 100), more ex officio, scope of legality (q. iuris et facti) problems with legal force, problems with time limits and concurrence with Administrative Justice § Define footer - Name of the presentation / Your name / Unit, Office 14 Extraordinary Remedial Measures in Administrative Procedure •Extraordinary remedies 1.problems with legal force (is relative or absolute?) and rights 2.problems with time limits 3.concurrence with Administrative Justice 4.purpose of this measures 5.the need of legailty x gained rights in good faith 6.Ex officio (initiative from parties) §Do we really need them? Can the society and public Public Administration exist and function without them? § Define footer - Name of the presentation / Your name / Unit, Office 15 Extraordinary Remedial Measures in Administrative Procedure •Review procedure – instrument of connectivity in CAP, is used in other procedural forms •Retroactivity in favor – bound by the the date of issue, no later changes, even in favour … •Is it effective? § Define footer - Name of the presentation / Your name / Unit, Office 16 Legal Guarantees in Public Administration §Right to information (106/1999 Coll.) §Control (external (by courts, parliament, citizens, ombudsman, data protection, … x internal - 255/2012 Coll.) §Damages in public administration (82/1998 Coll.) §Responsibility and administrative sanctions (250/2016 Coll.) § Define footer - Name of the presentation / Your name / Unit, Office 17 Administrative Justice in the Czech Republic §„changes and expectations“ in Administrative Justice (not only) on the example of the Czech Republic 1)Purpose of the Administrative Justice and its history and development 2)Todays situation and legal regulation 3)Possible changes and expectations in future § Administrative Justice in the Czech Republic §Why do we have the Administrative Justice? §To protect rights of individuals and thus to control state/public administration §More protection or more control? §Control as a result of protecion – Administrative Justice may control only such cases where the action was taken (no ex officio) §Protection is not possible in all cases, but only in which the legal regulation enables it (reasons for actions are very wide) Define footer - Name of the presentation / Your name / Unit, Office 18 Administrative Justice in the Czech Republic §NSS (sp. zn. 8 As 47/2005, 1764/2009 Coll., NSS) 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. " Define footer - Name of the presentation / Your name / Unit, Office 19 Administrative Justice in the Czech Republic §External products of Administrative Justice – the ruling/court's decision – is still an individual decision or the law for other cases? § Define footer - Name of the presentation / Your name / Unit, Office 20 Administrative Justice in the Czech Republic §1867 and 1876 in Austrian Empire – Code of Administrative Justice (Act Nr. 36/1876 Coll.) §Act Nr. 3/1918 Coll. – Code of Administrative Justice; „only“ Supreme Administrative Court and the cassation complaint (against administrative decision) §Adoption of the Code of Administrative Procedure (in 1928) was strongly influenced by the case law of the Austrian/Czeschoslovakian (Supreme) Administrative Court §To cover the Loopholes in legal regulation Define footer - Name of the presentation / Your name / Unit, Office 21 Administrative Justice in the Czech Republic §Restoration in 1992 (to 2003), with lack of Supreme Administrative Court – 8 regional administrative courts and 2 High Courts in administrative matters §Different/inconsistent court rulings Define footer - Name of the presentation / Your name / Unit, 22 Administrative Justice in the Czech Republic §New system (since 1. 1. 2003, Act Nr. 150/2002 Coll., Code if Administrative Justice) §Regional courts and Supreme Administrative Court §Possibility to take an action againt: decision, inactivity, factual acts, act of general measure (since 2005), … wide scope of judicial protection § §Unacceptability of cassation complaint (since 2005) in the matters of international protection (azylum sphere) Define footer - Name of the presentation / Your name / Unit, 23 Define footer - Name of the presentation / Your name / Unit, Office 24 Administrative Justice in the Czech Republic Administrative Justice in the Czech Republic §Creation and transforming the law, even the legal regulation contains the rule (against the law), power to rewrite the legal regulation – no loopholes §The Parliament usually agrees (only in small amout of cases was adpoted legal regulation that is different than the case law – 3 cases) §Purpose of Administrative Justice – ex post control or direct decision making proces? § Define footer - Name of the presentation / Your name / Unit, 25 Administrative Justice in the Czech Republic §Expectations: §Specialization? §Control or direct decision making in the case? §Scope of review? Unacceptability of cassation complaint Define footer - Name of the presentation / Your name / Unit, 26