One of the features of the rule of law is the ability of an individual to seek legal redress against unlawful action by the state or another public authority. In the Czech Republic, this right is constitutionally enshrined in Article 36 of the Charter of Fundamental Rights and Freedoms and applied through the procedures of the Administrative Code and the Administrative Procedure Code.
If an individual’s rights are violated by the administrative authority’s procedure, he or she can therefore apply to the court. But can this be done in all cases?
The Administrative Procedure Code defines three main legal defences. These are an action against the decision, an action against the administrative authority’s failure to act and, thirdly, a kind of subsidiary, collective option: an action against unlawful interference, which can be applied if the conditions for the first two types of action are not met. But not in all cases.
The conditions for an action against unlawful interference under Section 82 of the Civil Procedure Code are at first sight defined very broadly: the procedure may be invoked by anyone who claims to have been deprived of his or her rights by an unlawful interference, instruction or coercion of an administrative authority which is not a decision. Only the decision-making practice of the administrative courts over the years has established sometimes more and sometimes less clear boundaries of what actually falls under the term “unlawful interference” within the meaning of Section 82 of the Code of Administrative Procedure.
Unlawful interference within the meaning of Section 82 of the Code of Civil Procedure may be committed as a result of both formal and informal action by an administrative authority. Thus, in practice, in certain circumstances, this may include, for example, the towing of a vehicle, the action of a bailiff, the carrying out of a tax inspection, preventing a driver from continuing to drive, the removal of a building, the issuing of a certificate or the use of a coercive device by a police officer.
However, case law shows that not every informal action of an administrative authority can constitute “interference”, but only such, which contains a compulsion on the part of the administrative authority or the possibility of coercion. In the case of kneeling and handcuffing of an ordinary citizen by a police officer, the unopposed obligation is imposed and enforced by the administrative authority. It is therefore a de facto (potentially illegal) intervention. In the case of a police officer’s request to the driver not to continue driving, it is an imposition of an obligation (not to continue driving), under the threat of a sanction – with the possible possibility of coercion (if the driver had not obeyed the request and continued driving). It is therefore again a de facto intervention within the meaning of Article 82 of the Code of Civil Procedure. The situation is different, however, when the “intervention” in question does not involve the possibility of coercion and is, for example, merely a statement of a preliminary opinion or an informal communication from the administrative authority. In such a case, as the case law of the administrative courts shows, it cannot constitute an intervention within the meaning of Section 82 of the Code of Administrative Procedure, even though the action in question may cause damage.
Thus, it has been held in individual cases that there is no unlawful interference in the case of (1) a communication by an employee of a municipality that the complainant does not meet the conditions for a parking certificate, (2) a communication of a legal opinion as to who is the occupier of a particular hunting ground, (3) an informal telephone communication as to the possibility of carrying out identification operations, (4) an informal invitation within the meaning of section 65(1) of the Police Act.
Conclusion:
Not every action taken by an administrative authority can be effectively defended against in the administrative courts. It follows from the case law that if the procedure of an administrative authority does not entail the possibility of a sanction or coercion, it does not constitute a de facto intervention within the meaning of Article 82 of the Code of Civil Procedure.
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This article is for informational purposes only and does not constitute legal advice or guidance for any particular case.