The Constitutional Court upheld the complaint of the client of the Available Advocate, who was assigned a guardian from among the employees of the office in the misdemeanor proceedings. The Uherské Hradiště Municipal Authority violated his right to a fair trial. The Constitutional Court emphasized that such a guardian cannot sufficiently defend the interests of the represented person.
It all started with a routine roadside check in August 2021. Officers stopped a driver whose orientation test showed possible marijuana use. The driver subsequently refused to undergo a medical examination involving the collection of biological material and did not have his driving licence with him at the time. The Uherské Hradiště municipal authority subsequently initiated misdemeanour proceedings against him. However, a complicating factor soon emerged: the driver was abroad at the time, specifically in London, and the authorities were unable to serve him with official documents. Although the client demonstrated cooperation and communicated with the authority – emailing medical reports, for example – the authority still found official service problematic. It therefore proceeded to appoint a guardian. However, by choosing his own employee for this function, he had created a legal problem that eventually had to be solved by the Constitutional Court.
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Administrative proceedings have rules and service of process is a key part of them. The Authority must ensure that the party to the proceedings is aware of the proceedings and has the opportunity to comment on them. The local authority has also attempted to serve notices at the address of a permanent resident in the Czech Republic. However, service was not successful here either. After unsuccessful attempts, the authority proceeded to appoint a guardian, as allowed by the Administrative Code. However, the law also states that the guardian is actually supposed to defend the interests of the participant. It is therefore not just a formality, as it is sometimes perceived in practice. And it was the choice of a particular person for this role that was problematic in this case.
At first sight, it may seem logical that when the authority cannot reach a participant, it appoints a guardian from its own staff. However, this is where the whole case fell foul of the rules of due process. The role of the guardian is not just to “be there on paper”, but to actively defend the rights of the person represented – to study the file, to propose evidence or to lodge appeals. However, an employee of the authority who is also conducting the proceedings is in direct conflict of interest: he or she is unlikely to oppose the decision of his or her own superior.
In his complaint, Viktor Štěpán, JUDr. Viktor Štěpán of the Affordable Advocate, pointed out that the Office did communicate with the client during the proceedings – for example, through e-mails, where the client sent medical reports and responded to appeals. Therefore, according to the defence, it was not necessary to proceed directly to the appointment of a guardian, and if so, it should have been someone truly impartial. The Constitutional Court then responded to this part of the defence.
In this case, the Constitutional Court made it clear that appointing an employee of one’s own office as guardian is unacceptable. Although the Administrative Code allows for the appointment of a guardian, it is always necessary to look for a person who will actually defend the interests of the represented person. It cannot be someone who is in a service relationship with the authority which is also making the decision. Such a practice jeopardises the fairness of the procedure at its very foundation. The Constitutional Court recalled that the authorities have other options at their disposal – they can approach persons close to them, lawyers or other impartial persons. If costs were incurred in doing so, the authorities could subsequently recover them from the party. The Court also stressed that its decision was not intended to serve as a guide to obstruction, but as a safeguard to ensure that everyone gets a chance to actually defend themselves.
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