The administrative justice reform in effect since January 1, 2003 has introduced several fundamental changes into the Czech legal system, especially with respect to the creation of the Supreme Administrative Court – in 10 years after it had been embodied in the Constitution. This creation finally means a tentative move towards a specialized system of administrative courts. In most European countries, administrative justice is institutionally separated from the general justice (so-called «dual jurisdiction»), only in some countries these two are merged (unitary jurisdiction). Even though the specific scheme is somewhat more complicated, we might use this distinction as a basic comparison.

Taking 25 national legal systems in the EU area (15 member states of the EU and 10 associated countries completing the admission negotiations) as the basis of our comparison, we will find out that 16 countries have institutionalized dual jurisdiction including France, Italy, Belgium, Luxembourg, Greece, Portugal and Germany. Nine countries have institutionalized unitary jurisdiction –Denmark, Ireland, Malta, the United Kingdom, Hungary and Slovakia.

Dual system of transient type can be found in Estonia and Lithuania. These countries have decided to build specialized administrative justice from below and created a system of lower administrative courts. However, there is no Supreme Administrative Court at the top of the system, and specialized departments of the Supreme Court substitute its role in both Estonia and Lithuania.

An exactly opposite approach has been chosen in Poland and the Czech Republic, where the solution was based on the dual system modification leading to the Supreme Administrative Court (SAC) establishment. So far, the SAC does not stand at the top of the pyramid that consists of the specialized administrative courts in these countries, but it might – in the future if not institutionally, then at least functionally as the superior body of administrative justice.

In this context, it is necessary to provide at least basic interpretation of the steps that were inevitably leading to the administrative justice reform 10 years after the idea was revived in 1992.

When the administrative justice was recreated in 1991, the legislator adopted the structure of Austrian «November» act of 1875 (no. 36/1876 of the Imperial Code, an excellent part of legislation at that time). However, by introducing the legislation into the Code of Civil Procedure as its special provision, and by authorizing the so-called general courts to exercise control over the public administration, the legislator created blunders in the foundations of the restored administrative justice that are to be corrected.

Not only did the legislator (rather illogically) incorporate the administrative procedure into legislation governing the civil procedure (act no. 99/1963 Code of Civil Procedure) but also added to the Act – probably being under the pressure of the state administration trying to avoid control – so called Appendix A containing a disparate table of administrative decisions excluded from the judicial scrutiny. A number of shortfalls appeared to be totally illogical – especially with regard to the tradition of administrative justice in the country. To name at least some of them: absence of judicial remedies (with an exemption in pension matters), disunity of judicature (individual regional courts – the second level in a 4-level system – are empowered to make decisions), not existing means of protection against the decisions of the administrative authority and the factual actions of administrative bodies that are not classified as decisions, not existing framework for resolution of disputes resulting from contracts governed by the public law etc.

The original constitutional foundations for the administrative justice creation had been already laid down in the December Constitution (especially article 15 of the fundamental act no. 144/1867 of the Imperial Code concerning the judicial power); the above mentioned administrative court act was published in 1876. The Austrian (cisleithan) administrative justice was concentrated, the only existing court was the administrative court in Vienna. After the foundation of the independent Czechoslovakia, act no. 3/1918 of the Code: 1) created a Supreme Administrative Court in Prague, 2) reciprocally adopted procedural frameworks from the October act (some competency exclusions had been deleted), 3) the new court took over some of the former imperial court’s jurisdiction, 4) new rules were laid down to solve jurisdiction conflicts between courts and administrative authorities.The Senate equally represented by the Supreme Court judges and the Supreme Administrative Court judges was summoned to solve the problems. It seems that from the beginning the intention was to create a filter that would prevent the SAC from being overloaded with assignments. The way to achieve this goal would be the creation of administrative justice based on the Prussian model, but act no. 158/1920 of the Code was never implemented and remained a dead letter of law.

The Constitution of 1920 confirmed the existence of the SAC, but that court remained unaided for the whole existence of the first Czechoslovak Republic. The system was neither finished nor completed in any other way, and the court became overloaded soon. Only at the very end of the era an attempt to change the situation was made where the court needed several years to adjudicate on a case, but the amendment of the act of 1937 resolved the problem only partly and inadequately. The post-war history of the court is very short – it practically ceased to exist in 1949 after it had been moved to Bratislava. Formally, it was dissolved in 1952. Politically inconvenient findings from 1948 regarding the nationalization of private property significantly contributed to the end of the institution.

The Supreme Administrative Court was situated in the center of the system created from mutually connected (even personally connected) public law courts (patent court, cartel court, and election court). All of these courts including an independent branch of insurance justice were liquidated after 1948.

In the following years, the judicial control of administrative actions practically hadn’t existed in Czechoslovak, respectively the Czechoslovak Socialist Republic. Courts of the so-called «uniform court system» revised decisions related to the public insurance (pension matters) as a special remedy tool. However, that was a different branch of public law justice, insurance justice (act no. 221/1924 of the Code), built on the legacy of an independent system of insurance courts. Subsequently, the public law character of the procedure was forgotten and it was viewed as a special type of the civil law procedure. Actually, not only viewed, but also treated in the legislation (see especially § 244 of the Code of Civil Procedure in its original text 1963). This situation had remained unchanged till 1991.

The constitutional foundation of the administrative justice reintroduction since 1989 had become the provision of article 36 subsection 2 of the Charter of Fundamental Rights and Freedoms. This provision introduced after 40 years into the Czechoslovak legal system the principle of general revision of all public administration actions that violate public subjective rights or duties – even though only in theory.

Practical legislative implementation of the principle provided – in a limited extent – act no. 519/1991 of the Code (effective since January 1, 1992), when new section five dealing with administrative justice was inserted into the Code of Civil Procedure. Right from the start this legislative arrangement seemed to be problematic both from the institutional and procedural points of view, especially with regard to the ratification of the Convention on Human Rights and Fundamental Freedoms on March 18, 1992. The courts gained the right to adjudicate on the law suits against the legitimate decisions of the administrative bodies in only one instance.

During the next couple of years, the Constitutional Court repeatedly drew the public attention to the question of constituality of the legislation, and interfered with the legislation by means of its findings. In many of its findings the court pointed out that the current conception is (especially with respect to the Constitution and international law) untenable. Finally, the Constitutional Court abolished section five of the Civil Procedural Code (finding 276/2001 of the Code, effective since January 1, 2003).

In its decision justification, the court stated that some activities of public administration, as well as its eventual inaction, were not under the control of the judicial power. Furthermore, not everyone whose rights might be violated by an administrative decision, could appeal to the court. Even if he or she had the right to appeal, he or she was not an equal full scope party in a «fair» legal process as defined in article 6 subsection 1 of the Convention on Human Rights and Fundamental Freedoms. The ruling of the administrative court was final and (with an exception of constitutional complaint) non-reformable. That led to a non-uniform judicature as well as to unequal position among the administrative bodies (which is in direct conflict with the requirements of any state governed by law). The ultimate character of some decisions could even lead to a denial of justice. And finally, the execution of administrative justice was organized in a way that ignored the fact that the Constitution in article 91 enumerates the Supreme Administrative Court in the system of courts without postponing its creation in transitional and final provisions of the Constitution.

The above mentioned reasons made the Constitutional Court decide to abolish whole part five of the Code of Civil Procedure, because these blunders could not be reasonably corrected through partial derogations. As a result the work on a complex reform could be accelerated.

Compared with the previous situation, the authority of administrative courts (regional courts, their specialized senates and specialized individual judges, and the Supreme Administrative Court) is substantially extended. The major authority still remains the same – to adjudicate on cases against the decisions of administrative bodies related to rights and duties of individuals and legal entities in the area of public administration. However, an important part of the agenda in the future will consist of cases resulting from complaints focused on protection against inaction, illegal activities of administrative authorities, and from jurisdictional disputes. Moreover, we should not forget the role the administrative courts perform in the electoral matters and in matters related to the political parties and movements. The new legislative arrangement has a form of an independent act – the Administrative Procedure Code (no. 150/2002 of the Code). The legislator used provision of article 87 of the Constitution and charged the Supreme Administrative Court with decisions regarding the abolition of individual laws or their parts (only the laws that are solely under the competence of the Constitutional Court are excluded). The last solution is not, however, free of difficulties. The problem results from not a very precisely defined relationship between the SAC and the Supreme Court, and this provision may become a subject of discussion and changes in future.

Literature:

1. Baxa, J. – Mazanec, M.: Reforma českého správního soudnictví. Právní rádce, 2002, č. 1, s. 5 – 10.
2. Kadečka, S.: Správní soudnictví ve světle ústavněprávní judikatury. Právní rádce, 2002, č. 3, s. 9 – 14.
3. Mazanec, M.: Správní soudnictví. Linde, Praha 1996.
4. Němec, M.: Model správního soudnictví. Právní rádce, 2002, č. 1, s. 11 – 15.