Protection Against a Failure to Act in an Administrative Proceeding in Czech Republic

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In the Czech Republic there is an act for administrative proceedings: No. 500/2004 Coll. (správní řád = administrative regulation). What an administrative proceeding is, you find in § 9 administrative regulation:"An administrative proceeding is procedure of administrative bodies, that aim is giving a decision, which aquire, abolish or change rights or duties of the relevant person."Executive bodies, municipal bodies and other one, legal entities and natural persons, so far they act in sphere of public service, handle affairs without needless delays. In other words the fast proceeding is based on a legal norm in § 6 I administrative regulation.

§ 152 administrative regulation - objectionIn Czech there ist a really old legal institute: the objection is a traditional component of the Czech administrative regulation. For the first time objection was discovered in the act No. 71/1967 Coll. While in the last regulation objection had only three paragraphes, nowadays he has five one reminding of many details.

Objection as a right of appealThe nature of objection is a regular right of appeal, which you file against a decision of administrative body of first instance.

According to §152 I administrative regulation objection is considered, where the decision was given by the central administrative body, minister, minister of state or chief of another administrative office. Decisions about objection in terms of § 152 II administrative regulation can only be maked by minister or chief of administrative office. This authority can´t be delegated to anybody and it is impossible, that this can be by a legislative rule. An act issued by this delegation would be invalid and unlawful.

Objection committeeDue to this, that the decision about the objection is making within the frame of the same administrative office, it is necessary to secure, that the matter should be most objectively, expertly and fairly reviewed still before deciding by the minister. This function is assured by the objection committee. Administrative regulation adjustes at large the position, way of constituing, decisions and also the quality of his members.

Running of proceedings in objection committeeCommittee can process in whole composition or in senates composing of five members, that the majority has to be experts. For the proceedings is § 134 administrative regulation similarly valid - the adjusted proceeding in front of the collegiate body. Very important thing is, that the objection committee doesn´t make a decision in terms of § 9 administrative regulation. It isn´t the question of oral proceeding, where the participant could be present and expresses his opinon to conclusions of the committee.1According to § 152 III administrative regulation minister has to make his decision based on petitions of the objection committee. But he isn´t bonded, so he can decide in another way and give the affair back to the committee, which has to retry. If the minister makes another decision without a petition of the committee, participant could lodge a claim according to § 65 court administrative regulation.

Objection is analogous to revocationObjection is expressed in simplified terms a mutatis muntandis revocation. This fact is expressed in § 152 IV administrative regulation, that for the proceeding of a objection the revocation is valid, if the nature of the certain affair excludes the revocation.

Possible decision about objections§ 152 V raises questions according to decisions about objections. This alternative is valid, if there isn´t a specific regulation:1. objection can be refused2. decision can be abolished or change under the conditions, the decision is wholly satisfied and is without prejudice in a further proceeding, unless the parties give their consent.

§ 80 administrative regulation - protection against inactiveness in administrative proceedingsThere are different measures against a failure of administrative bodies. In Czech Republic a special feature is enshreind in law compare § 80 administrative regulation. There is a protection against inactiveness in administrative proceedings.

Unathorized, unlawful inactiveness of administrative bodies affects especially the principle of trustfulness and reliableness in public services. The basic of protection against inactiveness is located in Art. 38 II Czech Charter of Fundamental Rights and Basic Freedoms, that means, everybody has the right, that his case is heard quickly and without unnecessary delay.

Proceedings should also have a appropriate periods, this is based on the European convention about protection of human rights and basic freedoms Art. 6 I. The European Court says, that these periods depend on the special case, but criteria of judicature of the European Court should receive attention at the consideration.

So every unlawful delay or exceeding a time-limit is an incorrect offical procedure. The legal consequence of incorrect offical procedure is the state´s liability according to No. 82/1998 Coll. and the consequential liability of administrative workers to regress therefor.2Decision in periodIf an adiministrative body doesn´t act within a period or a period isn´t specified, so § 80 administrative regulation is relevant. § 80 I administrative regulation: "If the administrative body doesn´t give a decision of the relevant affair within the legal period, so the administrative governing body initiates a measure against inacitveness with the official power, immadiately he finds out about this." Based on § 6 I administrative regulation the § 80 I administrative regulation can be apply to all proceedings and acts of administrative bodies, that refer to the administrative regulation.3If the matter is about a release of a decision in terms of legal periods, according to § 71 is valid, that the administrative body is obliged to give a decision without suspense.

Giving a decision nevertheless means:1. transferring a written counterpart of decision according to §192. oral proclamation according to § 72 I3. hanging out a public notice according to § 25If a decision can´t be given without delay, administrative body has to bring out till 30 days since the initiating proceeding. Up to 30 days are added, if an oral hearing is required or a local investigation is needed. § 13 III administrative regulation is valid, if there is an expert opinion necessary or foreign paper.

Possible measuresAccording to § 80 IV administrative regulation the administrative governing body can:- to order the inactive administrative body, that he has to take measures within the period or make a decison,- to make a resolution taking over the certain affair and to decide instead of the administrative body- to make a resolution refering the certain affair to another administrative body in this district- to extend the period according to § 71 III administrative regulationIf the administrative governing body doesn´t decide on the request within the legal period (in fact the second inactiveness), you have to find protection at the administrative court according § 79 and the following of act No. 150/2002 Coll. administrative court regulation (=soudní řád správní). The claim has to be required till one year since the last deadline or last offical administrative act.

§ 175 administrative regulation - complaintEvery person, who was touched by a disadvantageous behavior (=nevhodným chováním) of administrative persons or an administrative act, has the legal right to apply with a complaint to the administrative body. This possibility he only has in the case, in which the administrative regulation doesn´t give another right to appeal for this affair. The complaint is espacially invalid, if:- the right of appeal (revocation, objection as regulated one or non-regulated like lawful decisions)- institut of protection against inactiveness according to § 80 administrative regulationare corresponding.

The term disadvantageous behavior, has -without doubt- a broad spectrum and isn´t easily to understand. You can suppose a large palette of unseemly acts on the side of administrative bodies4. As a disadvantageous behavior you also can consider an act of a administrative worker, who doesn´t hear the participant properly or not at all.

How form should the complaint have? Administrative regulation participant-friendly and so he creates a comfort, complaint can be given oral or written, but because of proveableness and legal certainty administrative bodies suggest participants to give the complaint in a written form, even though they have to accept both forms ex lege.

Complaint should be lodged to the administrative body, which hold the trial. This administrative body is ex lege obligated to verify the facts concerning the certain complaint. The administrative body can regarded as necessary to hear the complainer, respondent or another persons, who contribute to the affair5.

Complaint has to be disposed of till 60 days from the day of service of the complaint at the administrative body. Compared to the period in Slovakia, the period is 30 days and only in special cases 60 days.

-, V.: Řádné opravné prostředky podle nového správního řádu, Nový správní řád, zákon č. 500/2004 Sb., Praha 2005 (further given below "Mikule, V."), p. 171.

-Ondruš, R.: Správní řád, Linde Praha, 2005, p. 43.

-Vedral, J.: Správní řád - komentář, Bova Polygon, 2006, p. 469.