How do I defend myself against a decision in an administrative procedure?

Quick overview

• The main defence against a decision of an administrative authority is an appeal.

• An appeal is usually lodged within 15 days of the delivery of the decision.

• If the decision becomes final, extraordinary remed ies (e.g. review proceedings or retrial) may be available.

• Once the remedies have been exhausted, an administrative action may be brought before the Regional Court.

• Representation by a lawyer is already required for appeal proceedings before the Supreme Administrative Court.

If you are not sure what procedure to take in your case, consult a lawyer. He or she can help you assess your chances of success and prepare an appeal or administrative action.

People often handle administrative proceedings without the help of an attorney. But sometimes they get stuck and turn to us for help. We have compiled a list of common or typical questions that relate to decisions in administrative proceedings and how to defend against them. We also give examples from our legal practice where our advice has helped to save the situation.

What should I do if I disagree with an administrative decision?

The basic information we need to know from you is whether the decision is final or non-final. You must always be informed about the possibility of lodging an appeal, including to which body and within what time limit. Administrative law recognises the following types of ordinary appeals that can be lodged against non-final decisions:

• Appeals – can be lodged within 15 days of the delivery of the decision by any party to the first instance administrative proceedings. The appeal may be brought against only the operative part of the decision, not only its reasoning. However, you must work with the reasoning to support your arguments against the statement. Always address your appeal to the administrative authority that issued the contested decision. The latter may decide in what is known as ‘self-medication’ (the administrative authority effectively acknowledges its own wrongdoing and does not complicate the matter further by appealing) or it may refer the file to a higher authority, which will initiate the appeal procedure.

In practice, we see people lodging appeals in too general a way and not giving specific reasons why the decision should be reversed. The administrative authorities then have no reason to reconsider the decision and reject the appeal. A well prepared appeal should therefore contain clear legal and factual arguments and respond directly to the reasons for the decision.

• A variation is a special type of appeal against a decision of a central administrative authority (e.g. a ministry). An appeal is decided by the head of that authority – typically the minister, the chairman of the authority or a person authorised by him.
• Opposition to an order in administrative proceedings – this is an appeal against an administrative procedure concerning an offence in which the administrative authority has made a decision by order. If the opposition is filed within eight days of the decision, the order is completely revoked and the matter proceeds to the regular proceedings. Once the order has been revoked, the standard misdemeanour procedure takes place, resulting in a decision on the misdemeanour. If the party does not agree with this decision either, an appeal may be lodged against it.

Can I file an administrative action?

If you disagree with the decision of the administrative authority, you should always file an appeal (or any other appeal that is appropriate under the Administrative Code). Firstly, it is decided by other people who may have a completely different legal opinion on the matter, and secondly, it is an important condition for you to be able to proceed with an action in the administrative court system.

What to do if the time limit for appeal is missed?

If the decision becomes final, the Administrative Procedure Code offers the possibility of so-called extraordinary remedies. However, you cannot rely on the fact that an extraordinary appeal will always be available. However, in the case of major proceedings, it is undoubtedly worth consulting a lawyer to see whether any of the exceptional circumstances apply to your case. Exceptional remedies include:

• Review proceedings – these can be used if there is a suspicion that an administrative decision is not in accordance with the law. It is the illegality of the decision that is crucial in this case, as review proceedings cannot be brought on any other grounds. Anyone who suspects that the decision is unlawful (it does not have to be a direct party to the proceedings) may initiate review proceedings.
• Reopening of administrative proceedings – applies if, after the judgment has become final, new facts have come to light which existed at the time of the proceedings but could not be applied for objective reasons. For example, a new document has been discovered which may serve as evidence, or a previously unknown witness has come forward. Another reason may be that the evidence that led to the original decision is demonstrably false, which will be revealed, for example, in other proceedings (i.e. it is not just a party’s allegation). An application for a retrial may be lodged no later than three months after the date on which new facts have come to light which may give rise to a retrial. It is also provided that the proceedings may not be reopened after the expiry of three years from the date on which the decision became final. The reopening of proceedings shall be initiated by the administrative authority which issued the decision at the last stage of the proceedings.

Such means are used rather rarely. In practice, they are used, for example, when new evidence comes to light which was not known in the original proceedings or when the administrative authority took a decision contrary to the law.

From our law practice: our client Michal contacted us after his operator charged him an unusually high fee for mobile data, even though he did not use his phone on the day in question. He was unsuccessful with the Czech Telecommunications Authority, so we reopened the case together. In the court proceedings, we documented that the operator had failed to comply with its obligation to inform about the activation of the new data package, and we supported this with testimony about the phone’s inactivity. The court eventually ruled in Michal’s favour.

Action against a decision of an administrative authority

Do you feel that your rights have been restricted in the administrative procedure despite the appeals you have lodged? If so, you can appeal against the decision of the administrative court. The action must be preceded by one of the ordinary legal remedies, i.e. an appeal or a statement of appeal.

If the decision of the appeal body does not meet your expectations, you can bring an action within two months of receiving the decision (in some cases this period may be shorter). Missing the deadline is the most common problem. If you miss this deadline, the court will no longer hear the case.

The administrative court can only review decisions that are administrative decisions within the meaning of Article 65 of the Administrative Procedure Code. Some decisions – such as internal instructions or procedural acts – cannot be reviewed.

Where can I take legal action against an administrative decision?

Our legal system divides actions against an administrative decision into two branches. The key is whether the decision before the administrative authority was about private or public rights.

If you have acted on your subjective rights, such as the telecommunications or energy disputes mentioned above, or disputes concerning the land registry, the action is brought before the civil court (the civil section of the district court), which proceeds according to Part Five of the Code of Civil Procedure.

If your matter concerns, for example, taxes, construction proceedings, tax offences, trademarks or competition, you should bring your case before the administrative court and follow the Administrative Procedure Code.

Is representation by a lawyer required for proceedings before the Administrative Court?

The law does not prescribe the need for representation by a lawyer. Representation by a lawyer is mandatory only in cassation appeal proceedings before the Supreme Administrative Court.

Due to the certain lack of clarity that prevails regarding actions in the administrative court system, it is advisable to consult a lawyer to avoid losing your claim. A lawyer can also advise you on what to include in your claim, what to argue and the time limit for filing it (some laws provide for an exception to the normal two-month time limit for filing a claim).

What are the fees for filing an administrative action?

Some proceedings are completely exempt from fees – this applies, for example, to disability pension proceedings and other pension, care allowance, foster care or unemployment benefit matters. The full list of these proceedings is set out in the Court Fees Act.

If the proceedings are chargeable, a fee of CZK 1,000-5,000 is payable, depending on the type of proceedings. The specific figures are set out in the Annex to the Court Fees Act under headings 18-20.

Summary

The administrative procedure allows you to defend yourself against a decision of the authority in several ways, depending on the stage of the procedure. If the decision has not yet become final, an appeal can normally be lodged with the administrative authority that issued the decision within 15 days of notification. If the decision has already become final, extraordinary remedies such as review proceedings or retrial may be available in exceptional circumstances. If the defence fails in the administrative procedure, the party may turn to the administrative court and bring an action against the decision of the administrative authority, which is heard by the regional court. It is essential to comply with the legal time limits, to correctly formulate the grounds of defence and to respond to the specific misconduct of the administrative authority in order to succeed, as a late or insufficiently reasoned defence may no longer be effective.