Restriction of access to the Supreme Administrative Court to reduce its burden (via expanding the institution of inadmissibility of a cassation complaint in the Czech Republic)

: The article deals with the current change in the concept of a cassation complaint filed with the Supreme Adminis trative Court of the Czech Republic. The Supreme Administrative Court’s core activity is deciding on cassation complaints. They challenge previous final decisions of regional courts in the administrative judiciary. An amendment was adopted in February 2021. Since April 2021, it has been introducing (or rather substantially expanding) a certain “filter” of cassation complaints. This “filter” consists of restricting access to the Supreme Administrative Court, aimed at reducing the Supreme Administrative Court’s workload through cassation complaints. The essence of this “filter” is that it will be easier for the Su preme Administrative Court to reject a cassation complaint without dealing with it on the merits and in detail. The article briefly describes the realities of the Czech administrative judi ciary and the reasons that led to this relatively controversial solution. The key reason was the growing number of cassation complaints and the related length of proceedings before the Supreme Administrative Court. The paper focuses on the anal-ysis of the new legislation and an evaluation of the advantages and disadvantages it brings.


INTRODUCTION
The general purpose of administrative justice is to provide judicial protection for the rights of persons against (negative) consequences of the activity or inaction of public administration. For this protection to be effective, it needs to be timely. This applies both to courts of first instance and higher courts, including the highest courts, which Restriction of access to the Supreme Administrative Court to reduce its burden (via expanding the institution of inadmissibility of a cassation complaint in the Czech Republic) usually decide on remedies. The length of proceedings can be affected by several factors, one of which is the number of things a given court has to hear and decide. This paper focuses on access to the Supreme Administrative Court of the Czech Republic (hereinafter "SAC") through cassation complaints. The article first introduces the general judiciary in the Czech Republic and especially the institution of cassation complaints. The next part of the paper notes some statistical data. These prove the burden of cassation complaints on the SAC. It follows that this is a real problem that needs to be addressed. The article goes on to describe in detail the institution of inadmissibility of a cassation complaint. This is a "filter" or "sieve" aimed at restricting access to the SAC in non-essential cases. The inadmissibility of a cassation complaint can help to eliminate the burden of the SAC from a number of recurring and insignificant cases. The institution of inadmissibility was first adopted in 2005 with the aim of reducing the burden of the SAC exclusively in the so-called asylum agenda. This institution was expanded with an amendment in 2021 to a wider number of cassation complaints/ agendas of administrative justice. As it is too early to evaluate this new legislation, I intend to point out the possible advantages and disadvantages of the solution currently chosen. Although not completely unknown, it has not yet been applied to a greater extent. The last part of the article includes the overall conclusion and possible recommendations de lege ferenda.

ADMINISTRATIVE JUSTICE AND CASSATION COMPLAINTS
Administrative justice in the Czech Republic is primarily regulated in Act No. 150/2002 Coll., The Code of Administrative Justice (hereinafter referred to as the "CAJ"). This Act entered into force on 1 January 2003. From a functional point of view, according to Section 2 CAJ, the administrative judiciary provides protection for public rights. Administrative justice in the Czech Republic is based on the imple-mentation of an ex post judicial review of public administration. It rests on the dispositional principle and has an obvious protective character. The administrative judiciary (with a few exceptions) 1 does not decide on the merits of cases. On the contrary, it reflects the principle of cassation. In this respect, it is a traditional concept of administrative justice applied in our territory since the second half of the 19 th century. 2 The organisation of administrative justice consists of 8 regional courts (these are not independent, but are part of the general judiciary) and the SAC (which is completely independent and is based in Brno). Regional courts are basically 3 courts of first instance. In regional courts, either the senates (rule) or specialised single judges decide (exception, but relatively common). The SAC is primarily responsible for conducting proceedings and deciding on cassation complaints. A cassation complaint challenges the previous (final) decision of the regional court. By its nature, a cassation complaint is the only remedy (apart from the really limited possibility of reopening certain proceedings), yet at the same time an extraordinary remedy in the administrative judiciary. Hence, there should be no legal right 4 to file a cassation complaint and a substantive hearing, submitting one should not be an easy and widely accessible opportunity. Pursuant to Section 102 of the CAJ, any previous final decision of a regional court in an administrative court may be challenged by a cassation complaint, unless this is excluded. The legal regulation of a cassation complaint is based on a general clause, which is accommodating for cassation complaints. This is quite paradoxical, given that it is conceived as an extraordinary remedy. This solution was chosen with the aim of building established case-law, based on which it would subsequently be possible to restrict access to the SAC in the form of cassation complaints. The substance of the cassation complaint has remained unchanged since 2003, yet partial changes may have occurred. The grounds on which a cassation complaint may be lodged are set out relatively broadly in Section 103 of the CAJ and include both legal and factual issues, which is not usually typical 5 of top judicial au- Restriction of access to the Supreme Administrative Court to reduce its burden (via expanding... thorities. In fact, they constitute no reason to limit the possibility of lodging a cassation complaint. By contrast, Section 104 of the CAJ exhaustively stipulates in which cases a cassation complaint cannot be filed. 6 A cassation complaint is usually subject to the payment of a court fee of CZK 5,000 (EUR 200) and the party who lodged the cassation complaint must be represented by a lawyer if they do not have the appropriate legal training. These provisions constitute the main conditions of the cassation complaint procedure. However, even in conjunction with the 2-week time-limit for lodging a cassation complaint, they do not constitute a significant obstacle to lodging cassation complaints or to the SAC being overwhelmed. If the aim is to reduce cassation complaints while reducing SAC congestion, tools other than these should be sought. The driving conditions must be set so as not to constitute denegatio iustitiae. As is apparent from the facts indicated above, a cassation complaint is conceived as an extraordinary remedy, but in fact it is closer to an ordinary appeal, both thanks to a general clause and the wide list of grounds for lodging it. The exhaustive list of cases in which a cassation complaint is inadmissible is also relatively narrow. The original CAJ text of 2002 did not contain any provisions aimed at restricting access to the SAC and reducing its congestion. This did not happen until a few years later in 2005. This method was later followed by a change in 2021, which extended the implementation of the solution and will be described later in the text.

ITS BURDEN
To focus on the issue of restricting access to the SAC in the Czech Republic, it is necessary to elaborate on the nature of the SAC and what is expected of it. Although the SAC is provided for in the Constitution, it does not define its tasks. 7 The provision of Section 12 par. 1 CAJ establishes the core task of the SAC. It is to ensure the unity and legality of decisions of regional courts via decisions on cassation complaints. This follows on from the SAC's position as the supreme judicial body in the administrative judiciary. W. Piątek 8 dealt with the issue in question using the Supreme Polish and Austrian Administrative Court as examples, while his general starting points and conclusions can also be used in the case of the SAC. Thus to a certain extent we can contrast the right to appeal and interest in the legality and unity of decision-making with the speed and quality of decision-making as well as respect for the meaning and purpose of supreme courts. In the case of the supreme judicial authorities it is possible to restrict access to them to the extent that they do not necessarily have to deal with every case. After all, that would be a denial of their meaning. Such a solution is not in conflict with international treaties 9 and the constitutional order. 10 If the purpose of the SAC is to ensure the unity and legality of the decisions of regional courts, the SAC does not have to review most of the issued decisions of the regional courts. The same result can be achieved in other ways without necessarily being extremely burdened by the SAC. The core duty of the SAC is to decide on cassation complaints. It should be noted, however, that cassation complaints have accounted for around 90% of SAC's agenda in the last 3 years. It is therefore a dominant agenda, not an exclusive or sole one. If we look for possible causes of SAC congestion, this might be one of them. The fact that the SAC must also address other agendas (in fact and in law, but not entirely simple ones), such as disciplinary proceedings with judges, prosecutors and bailiffs, the agenda of elections, political parties, conflicts of competence, or the recent review of most of the measures taken in the COVID-19 11 pandemic since March 2021, inevitably means that the SAC's attention is not focused exclusively on cassation complaints. The fact this is "only" a 10% share in the overall SAC agenda does not significantly change this. As I have already said, these are often very complicated cases. W. Piątek and L. Potěšil 12 address the possible causes of the overcrowding of the Czech SAC, in-cluding a comparison with a similar situation in Poland, and possible solutions. For the purposes of this paper, it is sufficient to provide an overview of the statistics on the number of cassation complaints filed and the number of cassation complaints resolved / decided for each year of operation of the SAC.  13 This leads to an increase in so-called unfinished work and an extension of the length of proceedings. 14 In 2020, however, there was a decrease in the number of filed cassation complaints compared to the previous two years. I think this was due to the COVID-19 pandemic, which undoubtedly slowed down not only the performance of public administration, but also the performance of administrative justice. Only the next few years will they prove whether it was a oneoff decline or a permanent trend. At this juncture, I would like to point out that even in the past, the supreme (but then the only) judicial bodies operating in the administrative judiciary were overwhelmed. This was the case both in the Administrative Court in Vienna, as pointed out by A. Zumbini,15 and in the Czechoslovak Supreme Administrative Court in Prague. 16 To some extent, it can be argued that congestion is a ge-neric characteristic of supreme judicial bodies in administrative justice. However, this is not something that should be worth following and it is unfortunate that history is starting to repeat itself in this negative respect.
To the detriment of the case, historical experience cannot be used when considering the limitation of the SAC burden. The SAC is a court of second instance, while the Vienna Administrative Court and the Supreme Administrative Court in Prague were administrative courts of first instance. Before the consequences of the adopted changes to reduce congestion could appear, WWI/WWII started, or the administrative judiciary was abolished. For these reasons, more detailed inspiration or a historical comparison are not entirely appropriate, but can serve as a warning.

ITS INADMISSIBILITY
As can be seen from the table above, the number of cassation complaints was relatively high in the first years of SAC's adjudication. This was due to two reasons. The first was certainly that the cassation complaint was a novelty and made it possible to challenge a previous decision of the regional courts, which was not possible before. The second reason was that the proportion of cassation complaints in asylum matters was relatively high in those years. Through these complaints, stays were legalised purely on purpose. The reason for this was that the alien and asylum regulations changed and the country joined the EU on 1 May 2004, and these facts led to a larger number of court proceed-IA 2021 No. 1 Restriction of access to the Supreme Administrative Court to reduce its burden (via expanding... ings, including cassation complaints. The high number of cassation complaints from 2004 and 2005 was mainly due to the asylum agenda, which accounted for up to half of the total cassation complaints. 17 It should be added that the success of these cassation complaints was negligible. 18 With effect from 12 October 2005, the legislator "solved" this problem by introducing a "filter" or restrictions in the form of so-called inadmissibility in the case of cassation complaints, exclusively and only for the area of asylum. 19 According to the new Section 104a CAJ, if the cassation complaint in asylum matters did not significantly exceed the complainant's own interests in terms of its significance, the SAC was to reject it with a resolution for inadmissibility. At the same time, special 5-member chambers were created (instead of the standard 3-member ones), which were to assess inadmissibility. The number of members of the senate was reduced again to three from 1 January 2012, as a higher number of senate members does not automatically mean greater fairness and better decisions, 20 but a rule was introduced that a decision rejecting a cassation complaint for inadmissibility must be unanimous. If unanimity on the assessment of the inadmissibility of the cassation complaint was not reached, the cassation complaint had to be assessed on the merits. The legislation even allowed for a decision finding inadmissibility not to state the reasons. In defence of the SAC, it should be said that, except for isolated cases, the decisions always justified the inadmissibility of a cassation complaint. However, these justifications were usually characterised in a slightly different way. The essence of the inadmissibility lay in the selection of cases with a certain judicial overlap. 21 It leaves it to the SAC to decide for itself which cassation complaints (in the area of asylum) it will deal with on the merits. 22 In its decision the SAC further specified the conditions of (in)admissibility. Four reasons were formulated, which can be considered cases where the cassation complaint significantly exceeds the complainant's own interests and therefore passes through the "filter". These are a) legal issues not yet resolved by case-law, b) inconsistency of case-law in resolving legal issues, c) the need to change existing case-law and d) fundamental legal errors in the decision of the regional court. In other cases, the significance of the cassation complaint does not substantially exceed the complainant's own interests, which is why there is no reason for the SAC to explore it in detail. The literature states that "the institute of inadmissibility has helped to reduce the idea of older cassation complaints, but since 2010 at the latest, due to a change in the composition of cassation complaints, this is a significantly minority agenda". 23 The famous migration wave/crisis in 2015 and 2016 did not change anything. For the SAC, in rejecting the cassation complaint it is essential in terms of inadmissibility whether the cassation complaint, by its significance, substantially exceeds the complainant's own interests. It should have wider implications and significance than for one's own or a single case. The reduction of the SAC burden was also to be achieved by changing the way the decision was reasoned. If a cassation complaint is rejected for inadmissibility, it is crucial whether there is previous case-law. The aim of the justification is to approach the case as a typical case, which has already been resolved by the SAC in the past and is not a controversial legal issue or a significant procedural error of the regional court. In SAC's practice, such resolutions were relatively brief and did not involve a substantive assessment of the opposition, but, in principle, made reference to an earlier decision and a statement of how these cases had previously been assessed. It should be noted that the form of rejection for inadmissibility required a slightly different style. Quite often, the form and content of the grounds for refusal of inadmissibility were, in essence, a decision on the merits. 24 After all, "in many cases, the judgment on the inadmissibility of a cassation complaint cannot be dispensed with without a preliminary judgment on the merits, from which the inadmissibility is inferred on the basis of an analogy with previously resolved case types." 25 The institution of inadmissibility of a cassation complaint was repeatedly found by the Constitutional Court to be constitutionally compliant. 26 Although the institution of the inadmissibility of a cassation complaint was already criticised when it was received, and later too, it has persisted to the present day, and has been significantly expanded. 27 Z. Kühn states that "inadmissibility is not there for judges to make their work easier. It is there for all parties to the proceedings to ensure that SAC judges spend their energy on matters of genuine case-law, on matters of general scope. Only in this way will the SAC really fulfill its role, i.e. unify the case-law of the regional courts and provide addressees of legal norms with answers to complex questions about the interpretation of the law." 28

CASSATION COMPLAINT IN 2021
As early as 11 July 2018, an amendment to the CAJ was submitted to Parliament for approval. Its sole purpose was to extend the inadmissibility of a cassation complaint to all cases of cassation. The main reason for submitting it was the growing number of cassation complaints. However, this amendment was not submitted as a so-called governmental amendment, but as a parliamentary amendment. 29 Thus, there were critical voices pointing to the fact that the data were not sufficiently processed in terms of evaluating the causes and impacts of the new legislation. 30 It should be noted that these critical voices are justified. Although the aim is to address the SAC load, the causes of this load, which are unfortunately unknown, are ignored. There are therefore several reasons for the increase in the number of cassation complaints, 31 and it is thus questionable whether extending the inadmissibility of the cassation complaint would be an appropriate solution. During the legislative process in 2020, the submitted proposal was amended. The change meant the inadmissibility of a cassation complaint would not be spread across the board, but limited to an agenda entrusted to specialised single judges, not to senates in the regional court. Only after 3 years of negotiations was Act No. 77/2021 Coll. issued on 19 February 2021. It amends the CAJ by extending the institution of inadmissibility of a cassation complaint to all cases in which a specialised single judge acted and decided before a regional court. 32 This so-called single-judge agenda is subject to a "sieve" in the form of the inadmissibility of a cassation complaint. By contrast, if it is a decision of the regional court senate, the rule of inadmissibility is not applicable. The legal regulation is based on the thesis that single-judge decision-making is reserved for matters that are simpler in fact and in law. Personally, I consider this conclusion to be controversial and problematic, but I cannot deny a certain degree of truth. From a technical point of view, changing the legislation is relatively simple. Since it is expanding an institution that has applied for more than 15 years, and case-law has developed, there is no need to expect major complications. On the other hand, the question is -in all the possible cases to which the inadmissibility of the cassation complaint will relate -whether previous case-law has already been established, the existence of which is based on the inadmissibility of the cassation complaint. After all, the asylum agenda generated a different set of objections than it will now.

SUMMARY
In conclusion I would like to comment on the pros and cons of the new legislation, dealing first with the problematic aspects. The first set of problems with the new legislation is that it is not clear what is causing the SAC congestion. Therefore, extending the inadmissibility of a cassation complaint may or may not serve the purpose. If the increase is mainly due to senate decisions of the regional courts, then the new legislation will hardly bring the desired relief. The problem is that the split between the senate and single-judge agenda is not elaborated, in the regional courts but especially in the case of cassation complaints with the SAC. It is not clear whether the new legislation will cover 40% of cassation complaints or only 10% of cassation complaints. The method for submitting and adopting this CAJ amendment can also be deemed problematic. It is no secret that the SAC was directly involved in its creation. At the same time, I believe that if the aim were indeed to address the reduction of SAC con-IA 2021 No. 1 Restriction of access to the Supreme Administrative Court to reduce its burden (via expanding... gestion, other tools could have been used, such as extending the exhaustive list of cases for which a cassation complaint cannot be lodged at all. I believe the SAC would not have to examine cassation complaints in cases of non-appointment or exemption from court fees. It could be argued whether it should be possible to lodge cassation complaints against a decision of a regional court to discontinue proceedings, which is typically triggered by procedural reasons (non-payment of a court fee) or, in some cases, the rejection of the application. It is debatable whether the inadmissibility of the cassation complaint will make it possible to reduce the burden on the SAC. Previous experience is insufficient in this respect. The advantage of the adopted solution is that it leaves the concept of a cassation complaint, as it was originally created, without significant interference. It will be the existence of previous SAC case-law that will justify the rejection of the cassation complaint as inadmissible. SAC thus retains a choice as to whether, and to which cassation complaints, it will pay more attention. Another advantage is that an institution has been chosen that was previously introduced to the CAJ and is now being expanded. It is not starting from scratch: what to build on and a number of problem areas have already been resolved. Personally, I understand the currently accepted solution as the second test sample, where the first was the inadmissibility of the cassation complaint for the asylum agenda. Now it is a so-called single-judge agenda. I believe that if the legislation proves successful there will probably be a general extension of the cassation complaint to all cases. However, for the new legislation on cassation complaints and inadmissibility to fulfil its intended purpose of reducing the SAC burden, the SAC itself needs to reconsider its cautious approach to justifying negative decisions and focus on reasoning in order to respect the concept of inadmissibility. At the same time, I believe it is necessary to examine the cause of the overcrowding not only of the SAC, but of the entire administrative judiciary, and to start debates over its completely new form in terms of organisation and functionality. The current legislation does not solve the problem of SAC congestion. Notes 1 One special example is the so-called moderating law of the court, which according to Section 78 of the CAJ allows the administrative court to reduce the sentence imposed by the administrative body, or abandon it altogether. 6 A cassation complaint pursuant to Section 104 of the CAJ may not be filed against a decision of a regional court in electoral matters, against a decision of a regional court on the costs of proceedings, or only against its reasoning. Nor can a cassation complaint be filed against a decision of a regional court which only regulates the conduct of proceedings, or against a decision which is only temporary in nature.