2006/07/11 - Pl. ÚS 18/06: Removal of Chief Judges

11 July 2006

HEADNOTES
The principle,

“he who appoints, may remove”, cannot be applied to relations in the

context of court administration and that neither is it possible to

construe the duality of the legal status of a court chief judge as an

official of state administration, on the one hand, and as a judge, on

the other.  Accordingly, the manner in which court chief judges,

including the Chief Justice of the Supreme Court, are removed must be

gauged by means of the maxim expressed in Art. 82 par. 2 of the

Constitution; not only must the rules governing the removal of judges

respect the constitutional principles of the separation of powers and

the independence of the judiciary, so too must the rules for the removal

of chief judges and deputy chief judges.  
 

The

office of chief judge or deputy chief judge, as well as that of

chairperson of court collegia, should be considered as a career step for

a judge (similarly as is the case for the appointment of the

chairperson of a court panel), so that neither the chief judge and

deputy chief judge of a court should be subject to removal otherwise

then on the grounds foreseen in the law and on the basis of a decision

of a court.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Constitutional Court Plenum, composed of the Chief Justice, Pavel

Rychetský and Justices Stanislav Balík, František Duchoň, Vlasta

Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimír Kůrka,

Dagmar Lastovecká, Jan Musil, Jiří Nykodým, Miloslav Výborný, Eliška

Wagnerová and Michaela Židlická, on the petition of JUDr. Iva Brožová,

residing in Brno, at Marie Steyskalové 60, represented by JUDr. Alexandr

Nett, attorney, with his office in Brno at Gorkého 42, proposing the

annulment of § 106 par. 1 of Act No. 6/2002 Coll., on Courts, Judges,

Lay Judges, and the State Administration of Courts, and on the amendment

of certain other acts (the Act on Courts and Judges), as amended by Act

No. 192/2003 Coll., with the Assembly of Deputies and the Senate of the

Czech Parliament as parties, decided as follows:
     § 106 par. 1

of Act No. 6/2002 Coll., on Courts, Judges, Lay Judges, and the State

Administration of Courts, and on the amendment of certain other acts

(the Act on Courts and Judges), as amended by Act No. 192/2003 Coll., is

annulled as of the day this judgment is published in the Collection of

Laws.
 



REASONING


I.


On

8 February 2006 the Constitutional Court received a complaint submitted

by complainant, JUDr. Iva Brožová, against the decision of the

President of the Republic, act no. KPR 966/2006, contrasigned by the

Prime Minister, by which she was removed from the office of Chief

Justice of the Supreme Court, in conjunction with a petition proposing

the annulment of § 106 par. 1 of Act No. 6/2002 Coll., on Courts,

Judges, Lay Judges, and the State Administration of Courts, and on the

amendment of certain other acts (hereinafter “the Act on Courts and

Judges”) and with a petition proposing the delay of the entry into

effect of this decision.  The complainant reasoned her petition

primarily in terms of the violation of the principle of the separation

of powers in the state and the threat to the independence of the

judiciary; in consequence of the application of an unconstitutional

provision, § 106 par. 1 of the Act on Courts and Judges, she was denied

her right to judicial protection and was thereby affected in her

constitutionally protected right in the sense of Art. 36 of the Charter

of Fundamental Rights and Basic Freedoms.
 

The

Second Panel of the Constitutional Court found no preliminary grounds

for rejecting the constitutional complaint, in the sense of § 43 of Act

No. 182/1993 Coll., on the Constitutional Court, as subsequently amended

(hereinafter “Act on the Constitutional Court”), as the application of

the contested provision resulted in the situation which is the subject

of the constitutional complaint.  Accordingly, the formal prerequisites

under § 43 par. 1 for hearing the matter were met, and the

constitutional complaint was not found to be manifestly unfounded under §

43 par. 2, lit. a).  Accordingly, the Second Panel suspended the

proceeding on the constitutional complaint, in the sense of § 78 par. 1

of this Act, and referred to the Constitutional Court Plenum for its

decision pursuant to Art. 87 par. 1 of the Constitution of the Czech

Republic (hereinafter “Constitution”) the petition proposing the

annulment of a legal enactment, that is § 106 par. 1 of the Act on

Courts and Judges.
 

The

Constitutional Court Plenum decided in a proceeding on concrete norm

control, and in its jurisprudence relating to the outcome of a

derogational judgment in such a proceeding, based on the fulfillment of

the conditions of § 74 of the Act on the Constitutional Court (see, in

particular, Judgments Nos. I. US 102/2000, I. US 738/2000) the

Constitutional Court has repeatedly emphasized:  “Although the

constitutional complaint and the petition proposing the annulment of

statutory provisions represent relatively separate petitions, upon which

the Constitutional Court decides separately, their substantive

interconnection cannot be disregarded.  That is to say, this type of

proceeding before the Constitutional Court falls within the field of

‘concrete norm control’, where a specific adjudicated matter, in which

the contested legal enactment was applied, serves as the instigation for

the Constitutional Court’s decision-making as to that enactment’s

constitutionality.  It is true that one cannot, alone from the fact that

the petition proposing the annulment of the legal enactment is granted,

automatically draw conclusions as to whether the constitutional

complaint itself will also be granted.  One cannot rule out the

possibility of the situation (albeit exceptional) where even following

the annulment of the contested legal enactment the Constitutional Court

would reject the constitutional complaint on the merits as not

well-founded, where it finds in the specific case that the annulled

provision did not interfere with the complainant’s constitutionally

protected fundamental rights; it is equally clear, however, that in

deciding on the constitutional complaint the Constitutional Court must

take into consideration the judgment of annulment in the norm control

proceeding.  Were it otherwise, the submitted constitutional complaint

would not fulfill its individual function, the function of protecting

the complainant’s constitutionally guaranteed fundamental rights or

freedoms.”  The Constitutional Court would add to this that a properly

submitted and admissible constitutional complaint is a prerequisite to

the institution of a proceeding on this type of concrete norm control.
 


II.
 

In

harmony with § 69 of the Act on the Constitutional Court, the

Constitutional Court requested that the parties to the proceeding, both

chambers of Parliament, give their views on the matter.
 

In

its statement of views of 5 April 2006, the Assembly of Deputies

explained the reasons leading to the adoption of the amendment to the

Act on Courts and Judges in conjunction with the Constitutional Court’s

judgment No. Pl. US 7/2002, with reference to a passage from the

Explanatory Report on the amending act, which stated that the proposed

provision is not in conflict with international treaties, nor with legal

acts of the European Union.  According to the Explanatory Report,

neither is the submitted bill in conflict with the Europe Agreement on

the Association of the Czech Republic with the European Community, nor

with general principles of law of the European Community. The proposed

provision respects the Recommendation of the Committee of Ministers of

the Council of Europe R (No. 94) 12 on the independence, efficiency and

role of judges and does not conflict either with international acts

relating to the independence of courts, judges, or the performance of

the judiciary.
 

The Assembly

of Deputies further stated that the Act on Courts and Judges was adopted

on 10 June 2003 through the regular legislative procedure, and the

legislative body acted in the conviction that the adopted act was in

conformity with the Constitution and our legal order.  It is thus up to

the Constitutional Court to adjudge the constitutionality of the

contested provision and to issue the appropriate decision.
 

In

its statement of views of 10 April 2006, the Senate also summarized the

reasons which led to the Act on Courts and Judges, specifically § 106

odst. 1 thereof, being amended.
 

The

Senate debated the bill in the sixth session of its fourth electoral

term, held on 29 May 2003 and, on the basis of the Constitutional Law

Committee’s recommendation, decided to return the bill to the Assembly

of Deputies in the version established by the adoption of amendments.
 

As

to the merits of the matter under adjudication, the Senate described

the most significant factors in the development of the model of court

administration from 1991 up to the adoption of the amendment to the Act

on Courts and Judges.  Further, it summarized the powers of the

President of the Republic and the Minister of Justice relating to the

appointment of court chief judges, as well as the status of chief judges

in their performance of the state administration of courts.  In

connection therewith, it declared that in her submission the complainant

did not call into question that the office of judge and chief judge of a

court are of a dualistic nature; the Senate accordingly confined its

statement of views solely to the issue of the termination of a chief

judge’s function through removal from office.
 

The

Senate observed that, in debating the amendment to the Act on Courts

and Judges, it adopted, in connection with Constitutional Court judgment

No. Pl. US 7/02, the position that, in the situation where court

functionaries – judges should perform state administration, it is

necessary to fortify their independence from the executive, at least as

concerns their removal from office.  In the Senate’s view, chief judges

and deputy chief judges of courts should be removed from office solely

through the imposition of disciplinary measures, and only after holding a

disciplinary proceeding.  Only the violation of a statutorily

prescribed duty (moreover in a serious manner) in the performance of the

state administration of courts should constitute grounds for the

imposition of disciplinary measures.  A statutorily prescribed

disciplinary panel should decide as to whether, in a specific case, the

prerequisite grounds were satisfied.  The proposed amendment, which the

Senate incorporated into the proposed act it returned to the Assembly of

Deputies, accorded with this aim.

 

III.
 

The

Constitutional Court then proceeded to review, as its primary criteria

for review under § 68 par. 2 of the Act on the Constitutional Court,

whether the amendment to the Act on Courts and Judges at issue in this

case was adopted and issued within the confines of Parliament’s

competence, as laid down in the Constitution, and in the

constitutionally prescribed manner.
 

The

Constitutional Court has verified that the amendment to Act No. 6/2002

Coll., effected by Act No. 192/2003 Coll., was adopted by the Assembly

of Deputies on 13 May 2003 and that 175 of the Deputies voted in favor

of the bill and one against.  On 14 May 2003 the bill was transmitted to

the Senate, which debated it on 29 May 2003 and by its resolution

decided to return the bill to the Assembly of Deputies in the version

including the proposed amendments it adopted.  Sixty of the present

Senators voted in favor of the bill and none against.  In the context of

the completion of the legislative process, on 10 June 2003 the Assembly

of Deputies approved the version of the bill that had been transmitted

to the Senate.  On 18 June 2003 the President of the Republic signed the

Act, which entered into effect on the day it was promulgated in the

Collection of Laws as No. 192/2003 Coll., that is on 1 July 2003.
 

The

Constitutional Court accordingly affirmed that the Act was duly adopted

and issued, in the sense of § 68 par. 2 of the Act on the

Constitutional Court.
 

In the

context of this statutory requirement, the Constitutional Court first

of all delimited the relevant state of facts in terms of the ambit of

provisions which form the subject of review and in terms of the relevant

provisions of constitutional acts with which this provision might

conflict.
 

The subject of

review is § 106 par. 1 of Act No. 6/2002 Coll., on Courts, Judges, Lay

Judges, and the State Administration of Courts, and on the amendment of

certain other acts (the Act on Courts and Judges), as subsequently

amended and supplemented, the text of which reads:  “The chief judge or

deputy chief judge of a court may be removed from office by the official

who appointed her to that office if she violates, in a serious manner

or repeatedly, her statutorily prescribed duties in the course of

performing the state administration of courts.  The chairperson of a

collegium of the Supreme Court or of a collegium of the Supreme

Administrative Court may be removed from office by the person who

appointed her to that office, if she fails properly to carry out her

duties.”
 

The complainant

contested § 106 par. 1 of the Act on Courts and Judges due to its

conflict with fundamental constitutional principles, specifically the

principle of the separation of powers in the state and the principle of

the independence of the judiciary.
 

As

a preface to constitutional review in the given matter, that

Constitutional Court states that the fundamental constitutional

guarantees of the separation of powers in a democratic, law-based state

are governed by the provisions of Art. 2 par. 1 of the Constitution: 

“All state authority emanates from the people; they exercise it through

the legislative, executive, and judicial bodies”.  The principle of the

independence of the judiciary is laid down in particular in Art. 81 of

the Constitution, according to which: “[t]he judicial power shall be

exercised in the name of the Republic by independent courts”, and Art.

82 of the Constitution, par. 1 of which provides that “[j]udges shall be

independent in the performance of their duties [and n]obody may

threaten their impartiality”, and par. 2 that “[j]udges may not be

removed or transferred to another court against their will; exceptions

resulting especially from disciplinary responsibility shall be laid down

in a statute”.  A further guarantee, which should also ensure the

elimination of external influence on the exercise of judicial power, is

Art. 82 par. 3 of the Constitution, according to which “[t]he office of a

judge is incompatible with that of the President of the Republic, a

Member of Parliament, as well as with any other function in public

administration; a statute shall specify which further activities are

incompatible with the discharge of judicial duties.”
 

In

this context, the Constitutional Court makes reference to the general

views it expressed in its judgment in matter No. Pl. US  7/02 on the the

principles of the separation of powers and its historical context. 

Above all, it emphasized the following:  “however little even a

democratic state strives in relation to the court system for maximalist

programs and therefore remains far removed from the conception of the

‘judicial state’ - as was already mentioned, the legislative and

executive powers are also state authorities and thus, in a democratic

system, the state power can be functionally realized only by the

fulfillment of the condition that all of its bodies are functioning - on

the other hand, it is obliged to create the institutional preconditions

for that which, as far as the judiciary is concerned, applies

specifically and unconditionally, the constitution and establishment of

the genuine independence of courts, not only for the stabilization of

their position, but also that of the entire democratic system in

relation to the legislative and the executive - as a significant

state-building, equally however, a polemical component.  The mentioned

genuine independence of courts is an attribute of judicial power which

is specific to it and indispensible, both justified and required by

Article 4 of the Constitution, according to which ‘the fundamental

rights and basic freedoms shall enjoy the protection of judicial

bodies’, as well as by Articles 81 and 82, which provide that ‘the

judicial power shall be exercised in the name of the Republic by

independent courts’, that ‘judges shall be independent in the

performance of their duties’, and that ‘nobody may threaten their

impartiality’.  The above-asserted specific character and content of the

judicial power thus cannot be called into doubt and therefore not even

its basic function is compatible with infiltration of any sort by other

state authorities.  This premise was expressed in § 96 par. 1 of the

Constitutional Charter of the Czechoslovak Republic (introduced by Act

No. 121/1920 Coll.), according to which the judiciary in all instances

shall be separate from the administration, then in the present

Constitution, in Article 82 par. 3, which provides that ‘the office of

judge is incompatible with that of the President of the Republic, a

Member of Parliament, as well as with any other function in public

administration’.  As was already stated, the principle of the

independence of courts has in this respect an unconditional character

excluding the possibility of encroachment by the executive.”
 

It

can thus be said that one of the basic preconditions to the rule of law

is a strong and independent judiciary.  In a state which should be

considered a law-based state, the judiciary must be regarded as one of

three powers, which has the same weight as the executive and legislative

powers, from which the judiciary must be independent to the greatest

degree possible, whereas the judiciary is the only one of the three

powers for which especial emphasis is placed on the constitutional

protection of its independence.  This principle has been broadly

embodied in the majority of the world’s constitutions; sometimes even in

those states where the judiciary was (or is) not actually independent. 

The danger remains that this principle will remain a mere theoretical

edifice, unless it is supplemented in special provisions of the

Constitution, or at least in the legal enactments governing the

judiciary, by further principles which can be deduced from the

constitutions of the majority of West European states, just as from the

most important international documents relating to the issue of the

independence of the judiciary.  In this connection reference can be

made, for example, to the Council of Europe European Charter on the

status of judges, which was adopted at its session in Strasbourg held on

8-10 July 1998, and to the explanatory memorandum accompanying it.  In

the sense of Art. 1.3 of the mentioned Council of Europe European

Charter on the status of judges, it is an indispensable requirement for

safeguarding the independence of the judiciary that the conditions

influencing the selection, recruitment, appointment, career advancement

or removal from office of judges allow for independence from the

executive and legislative powers.
 


IV.
 

From

a comparative perspective, it must be said that there does not exist a

single model for the administration of courts in democratic countries;

on the contrary, one can speak of a plurality of such models.  The

majority of the contemporary European systems have been influenced by

their constitutional traditions and are the result of a slow and gradual

development.  With the exception of Article 6 of the European

Convention on Human Rights and Fundamental Freedoms and certain

recommendations of the Council of Europe and the UN, there are no common

standards that are elaborated in more detail for the organization and

the administration of courts.  Nor is this field affected by Community

law, as the European Community has not competence in this area.
 

In

spite of the plurality of institutional models for court

administration, one can discover common characteristics in all European

state (or in groups thereof).  In every EU state and in the majority of

newly acceding Member States, the principle of judicial independence is

respected, whether on the level of the constitution or statutory law, or

follows from practice (it is, however, variously interpreted).  The

individual independence of each judge is respected; increased attention

is devoted to the independence of the judiciary as a whole, that is, as

the third power in the state, in only certain countries.  It is

guaranteed either by transferring significant powers to the supreme

council of the judiciary (Italy, France, Spain), or by distinguishing

judicial administration from state administration within the context of

the classic model (Germany, Austria).
 

Among

models of judicial administration, of which the supreme council of the

judiciary (hereinafter “council”) forms a part, one can distinguish the

following systems:
- the southern model, in which the council took

over from the government significant competence in the area of

appointing judges and judicial officials, as well as disciplinary

proceedings concerning them; however, most of them lack significant

powers in the area of administrative courts (budget, the management of

property);
- the northern model (Sweden, Denmark, Ireland, the

Netherlands) in which the council has primarily economic and

administrative competence, but for the most part lacks competence in

personnel matters;
- a combination of both systems for the

organization of the judiciary (for example, Hungary), where the council

took over extensive powers in both fields and in principle is

responsible for the judiciary as a whole.
 

In

the majority of Western European countries, however, the ministry of

justice, or the government, gave up significant competence and

supervisory mechanisms in relation to the judiciary, even following the

creation of a council.  This applies for the northern model, where the

council often shares certain competencies with the ministry of justice

and the system functions on the basis of a reciprocal agreement. 

Non-judges are also represented in all supreme self-governing bodies of

the judiciary.
 

On the level

of proceedings of individual courts, the traditional system prevails,

that is, where the chief judge – a judge – is responsible for the entire

agenda of all courts.  One can also discern the tendency, in relation

to administrative courts, to transfer certain powers to the main court

secretary, chancellor, director, etc.  Even in the case of such judicial

officials, in many states their judicial and administrative functions

are intermingled.
 

In the

majority of European countries a functional solution is preferred, the

judicial systems are gradually being reformed, and the independence of

judges in their decision-making is always guaranteed (see The Ministry

of Justice Study – On the Solution of the Situation following Judgment

Pl. US 7/2002).
 


V.
 

In

terms of legal developments in the Czech Republic, the Constitutional

Court observes that after 1948 a court’s administration was always

carried out by the chief judge (alternatively the deputy chief judge) of

individual courts who, in the performance of that task, were subject to

the supervision of the Ministry, or the Minister, of Justice, to whom

she also bore responsibility for her performance in office.
 

New

judicial statutes comprehensively covering issues concerning the

judiciary were adopted at the start of the 1990’s:  Act No. 335/1991

Coll., on Courts and Judges, Act No. 436/1991 Coll., on Certain Measures

in the Judiciary, on the Election of Lay Judges, Relieving them from

Duty or Removing them from Office, and on the State Administration of

Courts, and Act No. 412/1991 Coll., on the Disciplinary Responsibility

of Judges.
 

These statutes

retained the terminology introduced by Act No. 62/1961 Coll., on the

Organization of Courts, which consisted in replacing the term, “the

administration of courts”, with the term, “the state administration of

courts” (see also § 38 par. 1 of Act No. 66/1952 Coll., on the

Organization of Courts, which made use of the previous nomenclature). 

At the same time, in principle they adopted, as the model for a court’s

chief judge to enter into and be removed from office, one involving

intervention by the executive (in the person of the Minister of

Justice).  In the case of the Chief Justice of the Supreme Court, the

election and removal of that official by the legislative body was

gradually replaced with her appointment and removal by the President of

the Republic, which in a certain sense resulted in weakening her

personal independence.
 

The

state administration of courts in the Czech Republic was entrusted, at

the central level, to the Ministry of Justice, and it was performed by

the chief judge and deputy chief judge of courts either indirectly or

through the direct administration of the Ministry of Justice.  It was an

explicitly expressed principle, however, that the performance of state

administration of courts was not permitted to intrude upon the

independence of courts.  As one aspect of judicial reform, in mid-2000

two bills were submitted that, among other things, contemplated a

fundamental change in the system of the administration of courts.  The

administration of the judiciary was meant to be differentiated from the

state administration of courts.  The administration of the judiciary was

to be responsible for courts’ personnel matters under the auspices of

the Supreme Council of the Judiciary, and state administration was to

arrange for the material requirements of courts by means of

administrative units subordinate to the Ministry of Justice.  The

Assembly of Deputies rejected this approach.  Efforts at further reform

in the year 2001 petrified in the conditions of the Czech Republic due

to the historical conception that the state administration of courts is

managed under the direction of the Ministry of Justice – chief judges

(deputy chief Judges) of a court; this conception was subsequently

incorporated into the statutory scheme, which is implemented de lege

lata by Act No. 6/2002 Coll.  The President of the Republic did not veto

the Act, rather he instituted review of it by the Constitutional Court

in the context of a proceeding on abstract norm control.
 

The

outcome of this review was the Constitutional Court’s judgment No. Pl.

US 7/02, which annulled (among others) all provisions relating to the

regulation of the manner in which the state administration of courts is

carried out (§ 74 par. 3 and foll.).  In relation to its annulment of §

106 par. 1, the Constitutional Court advanced a further reason, namely

the entirely general and vague (hence not corresponding to the principle

of legal certainty) expression of the grounds leading to the removal

from office of a court chief judge.  The Constitutional Court also

stated that entry into the office of a court chief judge should be

considered as a career step for a judge, so that such official should

not be subject to removal otherwise then on grounds foreseen in the law

and by means of a disciplinary proceeding, i.e., by decision of a court.
 

The

Government reacted to the Constitutional Court’s judgment by submitting

its bill to amend the Act on Courts and Judges, which affected also §

106 par. 1 and envisaged the possibility to adjudge the violation of

statutorily prescribed duties in the performance of the state

administration of courts as a disciplinary infraction in a disciplinary

proceeding before an independent court; further, the sanctions for the

violation thereof were not to be limited to the removal of the judge in

question, but it was to be possible to select other measures as well,

corresponding to the seriousness of the violation of duty.  The proposed

amending act was not adopted by the Assembly of Deputies in this form. 

The Government submitted a new bill which reaffirmed the existing model

of the state administration of courts.  During debate in the Assembly

of Deputies the principle “he who appoints, may remove” was once again

introduced, and § 106 par. 1 of the Act on Courts and Judges was adopted

in the wording which was contested by the petitioner.
 

In

contrast with the original text, this amendment to the Act on Courts

and Judges narrowed the possibility to remove court chief judges (deputy

chief judges) for the failure properly to carry out duties

(particularly substantively) to the possibility of removal for serious

or repeated violations of statutorily prescribed duties in the course of

performing state administration.
 


VI.
 

In

connection with the removal of the Chief Justice of the Supreme Court

from office pursuant to § 106 par. 1 of the Act on Courts and Judges,

the Constitutional Court first of all assessed the possible

applicability of this provision
 

The

Chief Justice of the Supreme Court is appointed by the President of the

Republic on the basis of Art. 62 lit. f) of the Constitution, that is,

on the basis of his sole authority and without the need for the

Government’s contrasignature.  In this separation of the appointment of

the chief justice of a high organ of the judicial system from the

politically constituted Government, must be seen an element of

detachment (thereby also independence) of the judiciary.  It must be

remarked, however, that there is found in other systems an absolute

separation of the judiciary from the executive, where none of the

executive organs appoints the chief justice of the supreme court and the

executive fulfills primarily a consultative role, possibly proposing

candidates.
 

As follows from

what has been stated, the Constitution safeguards the personal

independence of the Chief Justice of the Supreme Court vis-à-vis the

Government at the moment that official is appointed; the necessity of

maintaining such personal independence even in the course of performance

the office and its termination is not affected thereby, especially then

when it is terminated by removal from office.  If the President of the

Republic is entrusted with the power to appoint the Chief Justice of the

Supreme Court, without concurrent action by any other state body, an

entirely unlimited power to remove the Chief Justice of the Supreme

Court cannot be found in the Constitution’s silence.  In the situation

where the authority to remove the Chief Justice of the Supreme Court is

not explicitly mentioned in the Constitution, to adopt an interpretation

whereby the President’s authority to appoint implicates also the

possibility to remove the Chief Justice from office, was in conflict

with the constitutionally protected value of the independence of the

judiciary and its separation from the executive power.  In this system,

where the judiciary is not absolutely separated from the executive, the

President of the Republic is thus entrusted solely with the authority to

install the Chief Justice of the Supreme Court into office, whereas in

terms of influencing his performance in office or the termination of

that office, no power of the President is envisaged.
 

A

rule which provides that “he who appoints, may recall” is entirely

logical in cases where a direct relationship of superiority and

subordination is involved.  However, no such relationship exists between

the President of the Republic and the Chief Justice of the Supreme

Court (who, according to Art. 92 of the Constitution, stands at the head

of the highest judicial organ).  It can thus be concluded that, by

regulating removal in § 106 par. 1 of the Act on Courts and Judges, the

legislature acted pursuant to Art. 63 par. 2 of the Constitution also in

the case of the Supreme Court, similarly as in the case of the Supreme

Auditing Office and the Czech National Bank or of the other highest

judicial body, the Supreme Administrative Court.
 


VII.
 

In

a number of its judgments (Pl. US 34/04, Pl. US 43/04) the

Constitutional Court has authoritatively interpreted the principle of

judicial independence:  “The principle of judicial independence is one

of the essential attributes of a democratic, law-based state (Art. 9

par. 2 of the Constitution).  The requirement that justice be

independent springs from two sources:  from the neutrality of judges, as

a guarantee of just, impartial, and objective court proceedings and as a

safeguard of individual rights and freedoms by judges set apart from

political power.  The independence of judges is ensured by guarantees of

a special legal status (among which must rank non-transferability,

irremovability, and inviolability), further by guarantees of

organizational and functional independence from bodies representing the

legislative and above all the executive powers, as well as by the

separation of the judiciary from the legislative and executive powers

(in particular by assertion of the principle of incompatibility).  In

substantive terms, judicial independence thus ensures that judges are

bound solely by the law, that is, by excluding any sort of component of

subordination in judicial decision-making.  The Constitutional Court

addressed itself to the fundamental components of the principle of

judicial independence in its judgment No. Pl. US 7/02.”
 

In

the context of the matter before it, the Constitutional Court observes,

with regard to the conclusions which it has expressed in the past, that

the necessity for the judiciary to have an autonomous position flows

from the Constitution.  This “ideal” state of affairs, as envisaged in

the Constitution, does not, however, actually exist in the conditions of

the Czech Republic, as the judiciary does not constitute an independent

and autonomous representative entity, it cannot express its views

externally as an independent power, and is in fact represented by the

Ministry of Justice, which is demonstrated even by the entire legal

framework for the model of the administration of courts de lege lata.
 

In

this connection it must be emphasized that, in the matter under

adjudication, the Constitutional Court is not entitled to adjudge the

constitutionality of the overall conception of the state administration

of the judiciary, for in the matter at hand it is entitled to adjudge

solely the constitutionality of the contested provision, § 106 par. 1 of

the Act on Courts and Judges.  That does not mean, however, that it is

impermissible for the Court, when considering the constitutionality of

the contested provision, to take into account the content of other

provisions; on certain levels it is necessary to look into the legal

framework chosen by the legislature for the administration of courts, as

it has a certain relevance in relation to the constitutional review of §

106 par. 1 of the Act on Courts and Judges.
 

In

relation to the contested provision, the significance increases of the

maxim according to which personal independence, which furnishes

representatives of the judiciary with the necessary degree of autonomy

from external influences, is a perfectly natural consequence of, and a

precondition for, institutional independence.  Personal independence, in

the sense of Art. 82 of the Constitution, consists of several

attributes; whereas the essential one, in connection with the case under

consideration, is irremovability from office, which is breached only in

the case of removal carried out, in particular, in consequence of

statutorily disciplinary responsibility.  Thus, the Constitutional Court

adjudged the contested provision also in reference to this

above-mentioned attribute of independence.
 

In

relation to the judiciary and to individual court functionaries (§ 102

of the Act on Courts and Judges), the position of the Ministry of

Justice is demarcated in § 119 par. 1 of the Act on Courts and Judges,

namely he is the central organ for the state administration of courts,

the further organs being the chief judges (and deputy chief judges) of

courts; and the state administration is performed either directly by the

Ministry or by means of the chief judge (or deputy chief judge).  The

Minister’s power to appoint the chief judge and deputy chief judge of

courts and his power to remove them from office pursuant to § 106 par. 1

of the Act on Courts and Judges then follows from the position of the

Ministry as the central organ of the state administration of courts.
 

The

Constitutional Court would emphasize that the principle “he who

appoints, may remove” is inherent in a system of state administration. 

Solely in the case of state administration is the exercise of public

authority characteristic, that is, the carrying out of executive power

in relations of hierarchy, in other words, relations of superiority and

subordination.  The content thereof consists in prescriptive activity

expressing the predominance in power of the organs of state

administration in relation to those towards whom it is exercised, which

applies both for its operation externally and for the internal

organizational system.  An administrative body has at its disposal

authoritative powers (cf. Průcha, Administrative Law – The General Par,

Masaryk University, Brno 2004)
 

Thus,

to the extent that § 106 par. 1 of the Act on Courts and Judges contain

a component of a special system of state administration, the

Constitutional Court must address the issue of whether the

administration of courts can also be considered as state administration.
 

The

performance of the state administration of courts is generally

characterized as the creation of conditions for the proper performance

by the judiciary (§ 118 par. 1 of the Act on Courts and Judges), that

is, in respect of organization, personnel, management, finance, and

instruction, and also of supervision of the due performance of the tasks

entrusted to courts.  Certain of the powers entrusted to court chief

judges within the framework of “the state administration of courts” are

not tasks of a solely administrative character.  As an example can be

cited the power to set the work schedule, to carry out vetting of court

files, to oversee the quality of court hearings, to resolve complaints,

or to propose to the Minister of Justice that he lodge a complaint on

the violation of the law.  Although the legislature made use of the

term, “state administration of courts”, which, due to its formal

designation, gives the impression that it concerns state administration,

it is necessary to take into account the formal definition of the

content of the term “state administration of courts” (that is according

to the Act on Courts and Judges) and the substantive demarcation of the

subject of court functionaries’ activities.  The mere formal designation

cannot carry more weight than the content, thus not more than the

actual character of court administration either.  All actions taken by

the chief judges and deputy chief judges of a court are at the same time

actions which can indirectly influence the exercise of judicial power,

and can, in consequence, represent a certain encroachment by the

executive power upon the judiciary.
 

It

follows from what has been said above that, in character, the

performance of state administration of courts does not correspond to the

general definition of the performance of state administration.  In this

instance it is a special activity performed only within the judicial

system and more or less conditioned upon the type of decision-making

characteristic of courts.  It is then necessary to adjudge in this

context as well the principle, “he who appoints, may remove”, as laid

down in § 106 par. 1, which principle is characteristic of a

hierarchical system of relations of direct superiority and subordination

(as has already been stated above).  The presence of an essential

attribute characteristic of the system of state administration cannot be

tolerated in relations within the confines of the administration of

courts, which is not state administration.
 

In

assessing the position of the chief judges of courts as court

functionaries appointed by the Minister of Justice or the President of

the Republic, it must be borne in mind that court functionaries continue

to take part as judges in the actual decision-making.
 

It

is then necessary to proceed from the premise that the office of chief

judge of a court, just as the Chief Justice of the Supreme Court, is

inseparable from the office of judge, for one cannot construe the dual

nature of the legal status of a court chief judge as an official of

state administration on the one hand and as a judge on the other.  It

is, thus, necessary to relate, in the above-indicated respect, the

attribute of the independence of the judiciary, alternatively the

independence of judges, also to the chief judges of courts.  It is then

not possible to accept, while at the same time preserving the

above-stated requirements, that they could be removed by executive

organs precisely in the manner contemplated by the contested provision.
 

The

Constitutional Court refers to Art. 82 par. 2 of the Constitution,

which lays down that judges may not be removed against their will and

that exceptions to the irremovability from the office of judge, as a

result especially of disciplinary responsibility, may be laid down in a

statute.  It is necessary also to assess, with reference to the maxim

declared in this Article, the manner in which the chief judges of courts

(thus even the Chief Justice of the Supreme Court) are removed from

office.  Therefore, not only the legal rules governing the removal of

judges, but also those governing the removal of chief judges and deputy

chief judges of courts must respect the constitutional principles of the

separation of powers, judicial independence, etc.  It is not possible

thus to lay down any sort of model for the removal of judicial

functionaries without consideration of constitutional values.
 

In

accordance with the contemporary constitutional arrangement and in

harmony with the standards which spring from the European and

international milieu, it follows from the principle of the separation of

the judiciary and the executive power that a judicial functionary can

be removed from office solely by a procedure which is carried out within

the judiciary itself.
 

In

other respects the above-mentioned manner of removal chosen by the

legislature does not take into account the distinctive character of the

“system of functionaries” as a career track, by which must be understood

the objective possibility for judges to attain, under prescribed

conditions, such a position as satisfies them professionally.  In

principle this means either to undertake a greater responsibility in the

performance of their judicial role deciding on ordinary and

extraordinary remedies, or participation in the state administration of

courts in the office of chief judge or deputy chief judge of a court

(Král, V., On the Stabilization of Justice, Criminal Law Review

[Trestněprávní revue], No 5/2004, p. 108 and foll.).

 

VIII.
 

Dató

Paramo Cumaranswamy drew attention to the negative aspects connected

with the imperfect separation of the judiciary from the executive, in

the Report of the Special Rapporteur on the Issue of the Independence of

Judges and Lawyers, which he submitted in conformity with the

resolution of the Commission for Human Rights of the UN Economic and

Social Committee, No. 2000/42 (hereinafter “Report”), and which assessed

the situation that arose in the Slovak Republic as a result of the

removal of Dr. Harabin, the Chief Justice of the Supreme Court of the

Slovak Republic.  
 

In terms

of comparative law, as far as concerns the evaluation of the

relationship of the office of Chief Justice of the Supreme Court to the

executive, that situation is similar to the one in the case before the

Court.  Art. 141 par. 1 of the Constitution of the Slovak Republic

provides that the judicial power is exercised by independent and

impartial courts, and in par. 2 that it is carried out at all levels

separately from other state bodies.  Art. 144 par. 1 of the Constitution

of the Slovak Republic provides that in their decision-making judges

are independent and are bound solely by the law.
 

The

Report primarily draws attention to the fact that, in Slovakia, the

procedure for the appointment of judges, as well as those for their

promotion and removal from office, place far too much power into the

hands of the executive and legislative components of state power, and

especially so into the hands of the Minister of Justice.  The Report

designated these procedures as being in conflict with the conception of

judicial independence, as it is enshrined in the Constitution and as it

is regulated in regional and international standards of judicial

independence.  Otherwise, according to the Report, the assertion of the

Slovak Government does not pass muster in that it is untenable to assert

that the office of Chief Judge is distinct from the office of judge and

that the constitutional prerequisites for the removal of a judge do not

apply to it as such.  The assertion that a judge in the office of Chief

Justice of the Supreme Court comes under the executive branch of state

power is in conflict with the very essence of an independent judiciary,

as it is regulated in Art. 141 of the Constitution and would mean that

the Chief Justice of the Supreme Court is de facto an executive

official.  According to the Report’s assessment, as soon as a chief

judge or deputy chief judge is appointed, no distinction should be drawn

between this office and the office of judge.  Thus, despite the fact

that the asserted grounds, by which the proposal to Parliament to remove

the Chief Justice was reasoned, might have been fundamental, the

attempt at removal by the Slovak Government was viewed as being in

conflict with international and regional standards for safeguarding and

protecting an independent judiciary, as the Government did not

demonstrate its assertions before the competent tribunal.
 

According

to the Report’s conclusion, it is unjustifiable for laws, whether

derived from legislation, custom, or tradition, to be in conflict with

the basic values and standards that protect an independent judiciary,

especially if such legal arrangements for the judiciary are enshrined in

the Constitution.  That applies doubly if the state in question has

ratified some of the important international and regional instruments on

human rights.  These basic values and standards enjoy universal

application.
 


IX.
 

After

assessing whether the approach called for in the Act on Courts and

Judges for the removal of the chief judge of a court results in an

intrusion into the guarantees of institutional and personal independence

of the judiciary, the Constitutional Court came to the conclusion

primarily to the effect that the principle, “he who appoints, may

remove”, cannot be applied to relations in the context of court

administration and that neither is it possible to construe the duality

of the legal status of a court chief judge as an official of state

administration, on the one hand, and as a judge, on the other. 

Accordingly, the manner in which court chief judges, including the Chief

Justice of the Supreme Court, are removed must be gauged by means of

the maxim expressed in Art. 82 par. 2 of the Constitution; not only must

the rules governing the removal of judges respect the constitutional

principles of the separation of powers and the independence of the

judiciary, so too must the rules for the removal of chief judges and

deputy chief judges.  Thus, it cannot be accepted that, while observing

the above-analyzed requirements, their removal could be effected by an

executive organ in the manner foreseen in the contested provision.  What

follows therefrom is the conclusion that the contested provisions are

unconstitutional, as they result in an encroachment upon the guarantee

of the institutional and personal independence of the judiciary.
 

In

keeping with the proposition of law expressed in its judgment in the

matter No. Pl. US 7/02, the Constitutional Court emphasized that the

entry into the office of chief judge or deputy chief judge, as well as

that of chairperson of court collegia, should be considered as a career

step for a judge (similarly as is the case for the appointment of the

chairperson of a court panel), so that neither the chief judge and

deputy chief judge of a court should be subject to removal otherwise

then on the grounds foreseen in the law and on the basis of a decision

of a court.
 

The statutory

arrangement whereby court chief judges and deputy chief judges can

perform activities which are administrative in nature without also, as a

consequence, losing the quality of their status as independent judges

and, for this reason alone, finding themselves in the position of a

state employee, the distinct definitional characteristic of which is the

relationship of subordination and respect for orders of superiors, is

considered in a whole host of developed European countries (for example,

Austria, Germany, Sweden, Norway, the Netherlands, Great Britain,

Ireland, Italy, and Portugal) as an integral part of the separation of

powers principle, arising from the requirements of the law-based state,

as well as from the principle of the institutional independence of the

judiciary and the principle of the undisturbed exercise of a personally

independent judicial mandate.  The Constitutional Court would also add

that the current situation, where the central organ for the state

administration of courts is the Ministry of Justice and the judicial

branch itself does not have its own representative body on the

ministerial level (which body could be called upon to take over the role

of the Minister in personnel matters, including the monitoring the

level of competence of the judicial corps, as well as in other areas of

the direction and performance of administration of the judiciary), does

not, in the view of the Constitutional Court, sufficiently exclude the

possibility of the executive branch exercising indirect influence over

the judicial branch [(for example, by means of the allocation of

budgetary funds and the supervision of their use)] (Pl. US 7/02).
 

In

assessing § 106 par. 1 of the Act on Courts and Judges, the

Constitutional Court did not find any grounds for departing from the

conclusions expressed in its judgment no. Pl. US 7/02 and declares the

unconstitutionality of § 106 par. 1 of the Act on Courts and Judges in

its current wording.
 

The

Constitutional Court also declares that the legislature failed, in the

legislative process, to respect the conclusions expressed in judgment

no. Pl. US 7/02, in consequence of which it violated Art. 89 par. 2 of

the Constitution.  The Constitutional Court therefore annulled § 106

par. 1 of the Act on Courts and Judges as of the day it is published in

the Collection of Laws, without postponing its coming into effect, and

it will now be up to the legislative body fully to respect, in its

law-making, the proposition of law on this issue expressed by the

Constitutional Court already for the second time.
 

The

Constitutional Court has annulled § 106 par. 1 of Act No. 6/2002 Coll.,

on Courts, Judges, Lay Judges, and the State Administration of Courts,

and on the amendment of certain other acts (the Act on Courts and

Judges) as amended by Act No. 192/2003 Coll.; it has annulled both the

first and second sentences, as they form a unit, and the decisional

grounds of this derogational judgment apply to all “judicial officials”

mentioned in the contested provision of the Act.

Notice: Decisions of the Constitutional Court can not be appealed.

 

 



Dissenting opinions
as

to the judgment and reasoning were filed by Justices Vladimír Kůrka and

Pavel Rychetský.  Justice Ivana Janů filed a concurring opinion as to

part of the reasoning of the judgment.

Brno, 11 July 2006
 



Dissenting Opinion

of justice Pavel Rychetský

Pursuant

to § 14 of Act No. 182/1993 Coll., on the Constitutional Court, as

subsequently amended, I have filed this dissenting opinion to the

judgment, which is directed both against the actual decision to

derogate, as well as against certain of the constitutional arguments

contained in the reasoning of the judgment.
 

1).

My cardinal objection rests on the conclusion that, in the given case,

the basic condition are lacking for this Court to act on the accessory

petition proposing the annulment of § 106 par. 1 of Act No. 6/2002

Coll., on Courts, Judges, and the State Administration of Courts, as

subsequently amended (hereinafter “Act on the Judiciary”).  The petition

was submitted under § 74 of the Act on the Constitutional Court;

however, the constitutional complaint itself, with which was connected

the accessorial petition proposing concrete control of

constitutionality, should have been, in conformity with the principle of

subsidiarity (a fundamental principle establishing the powers of the

Constitutional Court according to the principle ratione temporis),

rejected as inadmissible for being untimely under § 75 par. 1 of the Act

on the Constitutional Court.  In the given case then the complainant

failed to respect the requirement of the cited statutory provision, as

she did not exhaust “all procedural remedies afforded her by law for the

protection of her rights (§ 72 par. 3)”, which moreover she herself

acknowledged by indicating that she had also submitted an administrative

complaint pursuant to the Code of Administrative Justice and that she

had concurrently submitted a constitutional complaint solely “as a

precaution”.  The relevant panel – just as the Plenum itself in its

judgment – did not even attempt to overcome this deficiency in the basic

prerequisites for a proceeding by applying § 75 par.2, lit.a) of the

Act on the Constitutional Court.  The Constitutional Court has already

several times in its jurisprudence emphasized that it does not form a

part of the system of ordinary courts, nor some other public authority;

accordingly the requirement of admissibility for submitting a

constitutional complaint to it is that the principle of subsidiarity be

met, such that the possibility is not ruled out that a complainant’s

rights and freedoms are accorded protection in antecedent proceedings by

means of the exhaustion of all available remedies for the protection of

rights.  A proceeding on a constitutional complaint itself is, thus,

devoted exclusively to the protection of constitutionally guaranteed

fundamental rights and basic freedoms (including the right to fair

process), to the extent such protection was not afforded in previous

proceedings.  By the way in which Panel II of the Constitutional Court

proceeded, that is by suspending the proceeding on the constitutional

complaint and referring to the Plenum the accessory petition, it thus

implicitly expressed the proposition of law that a decision of the

President of the Republic, issued pursuant to § 106 par. 1 of the Act on

the Judiciary, is not an administrative act subject to a review

proceeding under the Code of Administrative Justice; the Constitutional

Court thus appropriated the power of some sort of special and singular

“appellate organ in relation to the acts of the President of the

Republic”.  As a footnote to this consideration, it must be observed

that, already on 3 February 2005, the Minister of Justice issued,

pursuant to the contested provision, a decision whereby he removed from

office some other court official and, in an administrative court

proceeding, the Municipal Court in Prague adjudged it to be an

administrative act and quashed it.  However, if, in the estimation of

Panel II of the Constitutional Court, the decision of the President of

the Republic issued pursuant to the contested provision is not an

administrative act, there is no other option than to adjudge it as an

act pursuant to the President’s constitutional authority, with all the

resulting consequences in terms of the application of Art. 54 par. 3 of

the Constitution on the “the President’s lack of accountability” in

conjunction with the sole sanction contemplated in the Constitution

(Art. 65).  Throughout the period the Constitutional Charter of 1920 was

in effect, it was clear, according both to legal theory and statutory

rules, that, as a practical matter, the Supreme Administrative Court was

competent to decide in all cases in which a person asserts that he was

affected in his rights as the result of an unlawful decision or measure

of an administrative authority.  The conclusion that the President of

the Republic is also an administrative authority was subsequently

reflected in Act No. 164/1937 Coll., on the Supreme Administrative

Court, which regulated proceedings against acts or measures of the

President of the Republic (§ 2 par. 2); on this point see V. Mikule: 

Judicial Protection against Decisions Removing the Chief Justice of a

Court from Office, Legal Reporter, 3/2006 or F. Weyr:  Czechoslovak

Constitutional Law, Prague, 1937.
 

2)

In relation to the constitutional arguments contained in the reasoning

of the judgment, I would like to emphasize that I agree with many of its

supporting grounds concerning the significance of an independent

judiciary as a fundamental prerequisite for the existence of a

democratic law-based state.  The arguments advanced on the separation of

powers principle, however, spill over into an absolute position leading

to the total separation of the judiciary and disregarding the

complementarity of this theory, as proceeds from the critical axiom

formulated, for ex., by Dworkin (the separation of powers instigates the

tendency towards their concentration, towards maximum autonomy, to

division and self-regulation, which in consequence leads to their

absolutization).  It is therefore appropriate in the context of

constitutional argumentation on the theory of the separation of powers,

as a constitutional principle and a constitutive value of democratic

society, to take heed of its overall content, including the generally

recognized dimension that the individual powers in the state balance and

supervise each other (“checks and balances”).  The Constitutional Court

majority, to which I object in this dissenting opinion, came to the

conclusion in its reasoning that, in the case of judicial officials

performing the state administration of courts, the performance of their

judicial function is inseparable from the performance of their

administrative work in ensuring the operation of their court, and the

constitutionally legitimate requirement of a judge’s independence to

decide also extends to separate administrative activities, including the

management of state budgetary funds.  I, on the contrary, am of the

opinion that the dominant and irreplaceable principle for the

performance of administrative activity is the principle of hierarchy and

subordination.  The majority, which I dispute, then crowned its

conclusion on the indivisibility of judicial work from administrative

function, with the requirement, formulated de lege ferenda, of the

removability of judicial officials solely by the route of a disciplinary

proceeding, although the grounds for the removal of such an official

may frequently reside not only in the disciplinary field, rather due to

reproofs exclusively of a managerial and organizational character. 

Someone who is a poor “court administrator” might still, even though she

proves to be inadequate in the performance of the state administration

of courts, be an excellent legal expert and judge.  These considerations

in the judgment’s reasoning rests to a considerable extent on the

plenary judgment preceding it, judgment of the Constitutional Court Pl.

US 7/02, which also annulled the previous version of § 106.  However,

precisely in this respect the judgment lacked sufficient arguments.  In

my judgment, it is doubtless an appropriate and constitutionally

legitimate model in which the performance of court administration is

entrusted to judges, and I entirely concur with the requirement that, in

the performance of this task, he be accorded substantive and procedural

protections against arbitrary action on the part of state

administrative bodies.  In my view, however, the new version, adopted by

Parliament, of § 106 of the Act on the Judiciary meets both of these

requirements, albeit not in an optimum matter.  The new wording contains

both a sufficiently clear formulation of the substantive grounds for

removal from office (“if, in performing the state administration of the

court, he violates statutorily defined duties in a serious manner or

repeatedly”), as well as the procedural protections before an

independent tribunal in the form of the administrative judiciary, which

for proceedings in employment matters appear to me without any doubt to

be far more suitable than the inappropriate rules on judges’

disciplinary responsibility.  Moreover, the annulment of the contested

provision takes effect on the day it is published in the Collection of

Laws, thus bringing about the entirely undesirable state of affairs in

which for a longer period judicial officials will, for all intents and

purposes, be almost entirely unaccountable and irremovable due to

organizational, managerial, or similar deficiencies in the performance

of the administration of courts.
 

3) 

Solely in passing I would recall that I have long espoused the view

that, as the Constitutional Court is a “negative legislature”, it does

not possess the power to make broad considerations de lege ferenda; in

no case do I consider that they qualify as part of the “supporting

grounds” of the decision to which can be attached generally binding

effects, in the sense of Art. 89 par. 2 of the Constitution.  Until such

time as is established a quasi self-governing body for the judiciary, I

consider the current legal arrangement in relation to the state

administration of courts to be satisfactory on the whole.  No doubt its

application to the office of both chief justices of the supreme courts

represents an exception – in relation to it I would consider it at

suitable, in terms of future legislative programs, to retain the power

of the President of the Republic, although the system of ex post review

of his decision to remove those officials should be replaced by a

suitable a priori proceeding (as exists, for example, in the case of

university rectors).

Brno, 11 July 2006
 

 



Dissenting Opinion
of justice Vladimír Kůrka
 


I.
 

There

is not doubt that the “right” to continue to be (forever, for life) the

holder of a public office is not protected by the sources of the

constitutional order (the Charter, the Convention); the divestiture of

such an office (the removal from it) receives protection only in those

situations (in relation to such persons), where the act of removal

encroaches upon some other right, namely one of the fundamental rights

which, in contrast, are protected.
 

Since

such a situation is not present (nor can the right to remain in a

public office be subsumed under the right of equal access to it under

Art. 21 par. 4 of the Charter), on conceptual grounds alone it cannot be

objected that the process leading to the removal from office is

“unconstitutional”.  The sole exception is where it was carried out in

conflict with the fundamental constitutional principles of the

democratic law-based state (Art. 1 par. 1 of the Constitution), that is,

if the process was carried out without transparent and comprehensible

(statutory) grounds, alternatively if it had been a wanton or arbitrary

process.  Only to this extent is it conceivable to submit a

constitutional complaint against a constitutional act of the President

of the Republic, such as the removal from the office of Chief Justice of

the Supreme Court.  If the right to remain in public office is not

protected, then a specific instance of the process of removal cannot be

subject to constitutional review (except in the above-mentioned

circumstance), also because to hold otherwise could signify nothing else

than the granting to the holder of a public office precisely this

(constitutional) protection, when there is none in such a case.
 

In

the instant case, the complainant does not object that this was an

arbitrary recall, in conflict with the fundamental principles of the

democratic law-based state (in the above-mentioned sense); on the

contrary, she proceeds on the basis that the President of the Republic

acted within the confines of the statute (§ 106 par. 1 of the Act No.

6/2002 Coll., on Courts and Judges, as amended by subsequent acts,

hereinafter “the Act on Courts and Judges”) and she criticized him

(only), for the fact that this statute (a provision thereof) is

unconstitutional (due to the fact that it violates the principle of the

separation of powers and the right of access to a court and that the

removal from office was not made subject to a disciplinary proceeding). 

If action in accordance with a statute quite evidently does not

constitute arbitrary action, even if the complainant called that statute

into doubt in terms of its constitutionality, then it is appropriate to

conclude that the complainant has not substantiated, nor has she (in

actual fact) even asserted, the existence of circumstances leading to

the conclusion that “a fundamental right or basic freedom guaranteed by

the constitutional order has been infringed as a result of some other

action by a public authority” (§ 72 par. 1 lit. a/ of Act No. 182/1993

Coll., on the Constitutional Court, as amended by subsequent acts,

hereinafter “Act on the Constitutional Court”).
 

If

a relevant interference with a fundamental right is not asserted, the

constitutional complaint constitutes a manifestly unfounded petition,

which must be rejected as a preliminary matter (§ 43 par. 2 lit. a/ of

the Act on the Constitutional Court).
 

The

same conclusion then logically attaches even to the evaluation of the

petition pursuant to § 74 of the Act on the Constitutional Court, which

this case concerns and by which the complainant seeks the annulment of §

106 par. 1 of the Act on Courts and Judges, as the “manifestly

unfounded” character of the constitutional complaint stands apart from

any sort of substantive tie to the contested provision.  For this reason

alone it would, therefore, have also been proper to reject on

preliminary grounds the petition proposing its annulment.  Since the

Constitutional Court panel did not proceed in this manner (§ 43 par. 2

lit. b/ of the Act on the Constitutional Court), then the Plenum should

have done so; there is no doubt that the Plenum is not bound by the

divergent assessment of the conditions for a constitutional complaint,

on the basis of which the competent panel suspended the proceeding in

the sense meant by § 78 par. 1 of the Act on the Constitutional Court.
 

The

Constitutional Court Plenum opened the door to consideration of the

petition on the merits without giving closer attention to the very

nature of the contested act of the President of the Republic, which is a

patent deficiency, particularly in relation to the contested

interpretation of this act as an administrative act (an act in the field

of public administration issued by an organ of the executive power);

after all, the complainant is also working from that assumption, if she

declares in her constitutional complaint that she has also filed an

administrative action against the President’s decision to remove her

(file no. 9 Ca 22/2006 of the Municipal Court in Prague).  If such an

interpretation of the President’s act were possible, then the

consideration on the merits of this constitutional complaint should not

even be entertained (nor along with it the petition proposing the

annulment of the particular statutory provision) before the matter has

been heard by the administrative judiciary, as the principle of the

subsidarity of constitutional review prevents it (§ 75 par. 1 of the Act

on the Constitutional Court).
 


II.
 

Nor is it possible to concur with the judgment adopted by the Constitutional Court Plenum in respect of substance either.
 

The

judgment correctly emphasizes that this is a case of concrete norm

control, which arises from § 74 of the Act on the Constitutional Court,

specifically the review of a single provision of the Act on Courts and

Judges (§ 106 par. 1), and it also correctly states that it is necessary

to proceed on the basis of (must “take into account”) the overall legal

arrangement for court administration, embodied in that same Act, and

that the Constitutional Court is not entitled to adjudge the

constitutionality of the “overall conception of the state administration

of the judiciary”.  Naturally, it is possible to concur with the

proffered content of the constitutional principle of the independence of

the judiciary (with the references to Pl. US 34/04 and Pl. US 43/04),

which emphasizes the phenomenon of personal independence, that is, the

independence of a judge when performing his duties in the sense of Art.

82 of the Constitution,
 

However, it is not possible to concur with the remainder.
 

A.

The crux of the construction selected in the judgment is the

following:  in the Constitutional Court’s view, although § 106 par. 1 of

the Act on Courts and Judges embodies the principle “he who appoints,

may remove” (moreover, in a sufficient manner), nonetheless, that

principle is characteristic of a system of state administration, as it

is only therein that power is exercised “in hierarchical relations, that

is, in relations of superiority and subordination”; despite the formal

(statutory) designation, however, court administration is not such state

administration, as it is a special type of activity carried out solely

within the judicial system, and therefore the principle, “he who

appoints, may remove”, cannot be tolerated in this context.

This conclusion is incorrect due to the fact that its primises are incorrect.
 

The

Constitutional Court proclaims that it respects the statutory

definition of the “state administration of courts” (although, in its

view, it is not “state” administration), as it is laid down in § 118 and

following of the Act on Courts and Judges.  Hence, it accepts the fact

that the task of administration is to create for courts the conditions

for the proper performance of the judiciary in respect, in particular,

of personnel, organization, management, finance, and instruction, and to

supervise, in the manner and within the bounds laid down in that Act,

the due performance of the tasks entrusted to courts (§ 118 par. 1);

that, in accordance with current statutory scheme, the central organ of

this administration is the Ministry (§ 119 par. 1), and its other organs

are the Chief Justice and Deputy Chief Justiceof the Supreme Court, the

Chief Justice and Deputy Chief Justice of the Supreme Administrative

Court, and the chief judges and deputy chief judges of the high,

regional and district courts (§ 119 par. 2); that the Minstry performs,

within the scope laid down in that Act, the administration of high,

regional, and district courts, either directly or through the chief

judges of those courts (the administration of district courts can also

be performed through the chief judges of regional courts); and that also

the administration of the Supreme Court is performed by the Ministry

through that Court’s Chief Justice (§ 120 par. 1, 2).  According to §

121 par. 1, the Chief Justice of the Supreme Court and the chief judges

of high, regional, and district courts perform the administration of

courts within the scope laid down in that Act.
 

The

definition of administration put forward by the law is not arbitrary,

rather physically inevitable, as it is inconceivable for judicial work

to be performed by solitary and isolated judges in individually-selected

tangible milieus.  Their activities (above all procedural and

decisional) must be institutionalized, be materially and financially

provided for in a unified manner, and have a systematic personnel

foundation and perspective; consequently, they must be organized and

managed as a unit, in other words administered.  It is another matter

who should perform this administration, and what part thereof; although a

case has already been decided on this point (see judgment of the

Constitutional Court No. Pl. US 7/02), the Constitutional Court did not

call into doubt that administration, to the extent laid down in § 118

par. 1 of the Act on Courts and Judges, is also performed by court chief

judges, including the Chief Justice of the Supreme Court, and that

these chief judges of courts are judges.
 

Legally

defined in this way, court administration is conceptually always

administration, whether it is designated as “state” administration or

merely as “administration of courts” (as the Constitutional Court

believes), and the Chief Justice of the Supreme Court is its organ;

albeit even in this case it is not decisive how the type of

administration is designated.  It makes no difference if it is stated in

the judgment that “[c]ertain of the powers entrusted to court chief

judges . . . are not tasks of a solely administrative character”

(setting the work schedule, the vetting of court files, overseeing the

quality of court hearings, the resolution of complaints . . . etc.), for

even these can without difficulty be subsumed under the task “to create

. . . the conditions for the proper performance by the judiciary” in

respect of “organizational matters”, alternatively “to supervise . . .

the due performance of the tasks entrusted to courts” (§ 118 par. 1).
 

Thus,

the court administration which (in contrast to state administration of

courts) the Constitutional Court has been considering, is not, in

content and regime, distinguished from state administration nor from

administration as such; thus, it is unjustifiable to assert that the

principle of superiority and subordination, which is otherwise

characteristic of administration, does not apply within its framework. 

It is an untenable notion that where the Ministry performs the

administration of courts through its chief judge, the court’s chief

judge is not in a relation of subordination towards the Ministry, just

as it is self-evident that the chief judge of a regional court is, on

the contrary, superior to the chief judges of relevant district courts,

if the Ministry performs through him the administration of district

courts (§ 120 odst. 1).  If the Constitutional Court does not call into

question § 120 par. 2 of the Act on Courts and Judges, that the (state)

administration of the Supreme Court is performed through the Chief

Justice of that Court, then the same – the existence of the relation of

superiority and subordination – is evident in this case as well.
 

The

view that, within the framework of court administration as it is

understood by the Constitutional Court (in contrast to state

administration), there is no place for “a hierarchical system of

relations of direct superiority and subordination”, does not hold

water.  One cannot then agree with the conclusion which the

Constitutional Court derived therefrom, that there is no place in this

context for the principle, “he who appoints, may remove”.
 

The

first of two arguments against the constitutionality of § 106 par. 1 of

the Act on Courts and Judges thereby falls out, since the

Constitutional Court identified the contested provision precisely with

this – allegedly “intolerable” assertion of – the principle.
 

It

is appropriate to add that within (any sort of) public administration

the attribute of superiority and subordination is an organic attribute,

not an unnatural one.  The logical and substantive correlate thereof is

that it is inconceivable to connect with the status of the

administrative organs of courts (their chief judges) the attribute of

independence, which appertains to the position of a judge (Art. 82 of

the Constitution); that which is characteristic of a judge

(independence), does not apply for the chief judge of a court.
 

Otherwise,

the Plenum’s opinion inappropriately absolutizes the view that the

principle, “he who appoints, may remove”, is inherent in systems of

state administration, or systems formed on the basis of relations of

superiority and subordination; in and of itself, it is certainly

correct, nonetheless, it is not true that it is not possible (is out of

the question) to apply it even in some other context.  It is, on the

contrary, quite possible, which is shown, for example, by § 6 par. 2 of

Act No. 6/1993 Coll., on the Czech National Bank, as subsequently

amended, according to which the President of the Republic appoints and

removes the Governor, Vice-Governor and other members of the Bank

Council, although § 9 of this Act provides that “[i]n carrying out its

main objective and in the performance of its other duties, the Czech

National Bank and the Bank Council shall neither accept nor request

instructions from the President of the Republic, the Parliament, the

Government, administrative bodies, or any other subject.”  If it truly

could be conceptually ruled out for the principle “he who appoints, may

remove” to be applied apart from relations of superiority and

subordination, not even a statute could so provide.  Moreover, not only

is the Czech National Bank (the Bank Council) not subordinate to the

President, rather it is a constitutional body (“a legal person, which

has the status of a public law subject”) endowed with evident

independence from other constitutionally enshrined bodies (powers).  A

similar provision can be seen in § 13 par. 2 (§§ 26 and 27) of Act No.

150/2002 Coll., the Code of Administrative Justice, as subsequently

amended.
 


B.
 

In

terms of the second argument against the constitutionality of § 106

par. 2 of the Act on Courts and Judges, the Constitutional Court

proceeds from the notion that “court functionaries continue to take part

as judges in the actual decision-making” and is of the view that “[i]t

is then necessary to proceed from the premise” that the office of chief

judge of a court is indivisible from the office of judge, “for one

cannot construe the dual nature” of a court chief judge as “an official

of state administration” on the one hand and as a judge on the other.

Then, according to the Constitutional Court, the attributes of

independence of judges must be extended “also to the chief judges of

courts, including the Chief Justice of the Supreme Court”.  The

Constitutional Court refers to Art. 82 par. 2 of the Constitution, and

the exceptions to the irremovability of judges intimated there (arising

from disciplinary responsibility), and is of the opinion that it is also

necessary to gauge, by means of the maxims expressed in that Article,

the manner in which court chief judges are removed from office, that is,

by a procedure which is carried out within the judiciary (by a

disciplinary, or some analogous, proceeding), or in such a way that the

judiciary would have significant influence on the outcome of the removal

procedure.  Moreover, the currently existing procedure does not, in the

Constitutional Court’s view, take into account the “the distinctive

character of the system of functionaries as a career track,” by which is

understood the objective possibility for a judge to attain a position

which “satisfies him professionally”.
 

It is not possible to assent to this argument either.
 

The

Constitutional Court is working on the basis of assumptions for which,

above all, it provides no arguments at all.  Furthermore, logical and

substantive considerations point in the opposite direction; not only is

it possible “to construe” the above-mentioned “duality”, but – so long

as the administration of courts is to be performed by judges - it is

inevitable, and in practical life that is the way it is (and without any

problem).  The chief judge of a court, who is a judge, acts in both

capacities; as a judge he is independent, and as the chief judge of a

court (administrative functionary) he is naturally subordinate.  Both

offices are separable and, in actual fact, they are also performed

separately.  It is unthinkable, merely due to the fact the an

administrative functionary is (by coincidence) a judge, to make of him

something else and attach to him a status, which conceptually does not

appertain to an administrative functionary; in the performance of an

administrative function, administrative functionaries (even if they are,

in addition, judges) cannot be independent.  The attribute of

independence is the sovereign attribute of the status of a judge, and of

no other official; otherwise it is self-evident that the removal from

the (unprotected) office of court chief judge in no was affects the

(protected) office of judge.  Therefore, it is entirely inappropriate to

extend the “maxim” of Art. 82 par. 2 of the Constitution in any sense

to the office of a court chief judge; in consequence (and for that

reason alone), nor can there be a reliable foundation for the

consideration that the sole constitutionally appropriate procedure for

the recall of a court chief judge from office is a process based on a

disciplinary (or analogous judicial) proceeding as, in accordance with

Art. 82 par. 2 of the Constitution, is the case for judges.  The

indicated parallel with the removal from office of chairperson of a

panel is inapposite due to the fact that this is not an administrative,

rather a judicial, office.
 

Naturally,

it is possible to reject some external influence, proceeding from

“another” power (or to demand for the judiciary “substantial influence”

on the removal therefrom) in the removal of a chief judge from office,

especially in a situation where the judiciary (judges) also has (at

least some form) of influence in the process of appointment to such

office (if, for example, the chief judge of a court were appointed by an

executive body on the proposal of a certain segment of the judiciary). 

One could then understand the objection that for some other power

authoritatively to deprive the chief judge of his office does not

correspond to “civilized standards”, if the installation of (specific)

persons into the office of chief judge were “substantially influenced”

by a process within (the appropriate) judicial organ; if it is accepted,

however, that the judiciary has de lege lata no influence on this

process of “installation”, then in both instances, that is, both the

appointment and the removal, it takes place (as an expression of a

phenomenon of administration) separate from of the judiciary – in

essence - adequately, in harmony with the specifically asserted form of

the principle of the separation of powers, alternatively with the

specific form of the independence and the mutuality of influence of the

executive and judicial powers.
 

Corresponding

thereto, no reproaches are made of the “encroachments” by the executive

when appointing court functionaries, even though this generally

constitutes a highly significant intrusion into the judicial power.  Nor

did the complainant raise, against her own appointment to the office of

Chief Justice of the Supreme Court, the objection that it occurred to

an absolutely independent judiciary, without any sort of influence of

this power, much less “substantial” (including “influence” of the

Supreme Court itself, alternatively its judges at that time).
 

The

argument “functionary position as a career step” for judges is

naturally cannot be effectively applied in order to bring the status of

court chief judge court closer to, or even identify it with, that of a

judge:  first, the concept of such “career step” lacks any sort of legal

basis and evidently is not even actually shared within the ordinary

judiciary; also, even if the chief judges of courts in their

(administrative) positions had in mind the goal of “satisfying

themselves professionally”, it does not follow therefrom that they

should for that reason obtain a greater level of protection.  If they

elect this professional (career) direction, they have to bear the risk

traditionally connected to it.
 

Neither

does the circumstance that judges are independent in the performance of

their duties (Art. 82 par. 1 of the Constitution) give grounds for

declaring unconstitutional the contested provision, § 106 par. 1 of the

Act on Courts and Judges.
 


C.
 

The

Constitutional Court thus evaluated the constitutionality of the

contested § 106 par. 1 of the Act on Courts and Judges, not within the

contextual framework of the statutory definition of the content of the

court administration and the status of chief judges of courts therein,

rather – and inadmissibly – in relation to the form of some other

administration, which cannot however be deduced from the law currently

in force (§ 118 and following of this enactment).  Thus, it is only on

the basis of (incorrect) presuppositions of some other administration

that the Constitutional Court deduced the unconstitutionality of the

provision empowering the person who appointed the chief judge of a court

to remove him from office.
 

If

the Constitutional Court reproves the legislature that, by adopting the

rules contained in § 106 par. 1 of the Act on Courts and Judges, it

failed to respect the conclusions expressed in the Court’s previous

judgment, No. Pl. US 7/02, such criticism is not entirely apposite. 

Although § 106 par. 1 was annulled by that judgment, it was not due to

the fact that it was constitutionally impermissible for the chief judge

of a court to be removed “by the person who appointed him”, rather

primarily “on formal grounds”, as a consequence of the annulment of the

version of § 74 par. 3 of the Act then in force, due to its conflict

with Art. 82 par. 3 of the Constitution (on the incompatibility of the

office of judge with public administrative functions), and due to “the

entirely general and vague - hence not corresponding to the principle of

legal certainty - expression of the grounds leading to the recall of

the chief judge or deputy chief judge of a court”  Insofar as this

judgment further refers to “a career step for a judge” and to the

process of removal from the office of chief judge or deputy chief judge

on the basis of a disciplinary proceeding, the annulment of § 106 par. 1

was not based upon these considerations (manifestly these are not

“supporting grounds”), hence no obligation arose for the legislature the

“respect” them (for greater detail, reference can be made to the

reservations expressed by the dissenting Justices).
 

The

previous version of § 106 par. 1 of the Act on Courts and Judges, which

allowed for chief judges and deputy chief judges to be removed from

office “if they fail duly to perform their duties”, was replaced by the

contested wording, which conditions such removal from office on the fact

that they “in a serious manner or repeatedly violate their statutorily

prescribed duties in the course of performing the state administration

of courts”.  These “general and vague” grounds were not only put in

precise form, but were also substantively narrowed – to the violation

(serious or repeated) of statutorily prescribed duties, moreover in the

course of performing the state administration of courts.  The Act

limited itself solely to the criterion of the lawfulness of the

performance of administration, omitting possible consideration of the

suitability, effectiveness, and thrift of the performance, etc., by

which the protection of court functionaries’ status was significantly

strengthened.  In effect, it can no longer relate to merely “poor

management” of a court, and the holder of an administrative function

evidently will be accorded judicial protection by means of an action

against the decision of an administrative organ, pursuant to § 65 of the

Code of Administrative Justice.  In the absence of administrative

review of the constitutional act of the President of the Republic, the

lack of statutory prescribed grounds for the removal from office of the

Chief Justice of the Supreme Court (that is, their utter non-existence,

not the mere failure to state them in the instrument of removal) is

conceivable as an argument in a constitutional complaint, admissible

(precisely and solely) by the applicable objection of wilfullness, if

not arbitrariness (see above, Part I).
 

Thus,

one can defend the view that the requirements laid down in the

Constitutional Court’s previous judgment, No. Pl. US 7/02, were met.
 

The

annulling judgment brought about the circumstance where court

functionaries are simply not subject to removal and can assume that the

office entrusted to them may be carried out without any sort of

restriction whatsoever; the removals of chief judges that have occurred

in the past were unconstitutional.  Such an outcome can hardly pass

muster in regard to the attributes of a democratic law-based state.  The

Constitutional Court has come to a conclusion on the constitutionality

of the contested provision by means of arguments which in their

implications, asserted in a wider, more-general context, are capable of

paralyzing the entire administration of the ordinary judiciary by

eliminating from it the characteric of superiority and subordination,

and for administrative functionaries (the court chief judge) postulating

the position of an independent subject, in contrast to the typical (as

well as logically and substantively necessary) hierarchical order.
 

This

is not meant to say that the current model of court administration is

not subject to criticism: as such, however, it was not the subject of

constitutional control in the matter before the court.  The system with

the Minister of Justice having the dominant position was already the

subject of doubt in judgment No. Pl. US 7/02, that, in relation to the

status of court chief judges, the standards of “developed European

countries” (which is characteristic of it) was not attained, that,

although they perform “activities which are administrative in nature”,

they do not lose “the quality of their status as independent judges”,

and that the absence of the judiciary’s “own representative organ” “does

not sufficiently exclude the possibility of the executive branch

exercising indirect influence over the judicial branch” (and I am now

citing from the Constitutional Court judgment). Nonetheless, it is

decisive that neither in that case nor in this is it stated that this

system for the administration of courts is unconstitutional.  The

principle of the separation of powers, oft-cited in the judgment, does

not entail the separation and total division of the judiciary from the

executive power; neither the joint performance of court administration

by the Ministry of Justice and chief judges of individual courts, nor

the circumstance that the executive power (administration) can influence

who occupies positions and the performance (again) of administration by

another power - the judiciary, need come into conflict, at the

constitutional level, with the requirement of mutual ties (exerting

influence, checks) among the different powers.  It is appropriate to

concur with the view that the constitutionality of the existing rules

cannot be gauged solely through the prism of the view “de constitutione

ferenda” (see the dissenting opinion of Justices J. Malenovský, V.

Ševčíka a P. Varvařovský to judgment No. Pl. US 7/02).  From the

perspective of the Constitution (Art. 1 par. 1) as currently in force,

it is not important whether court (administrative) functionaries are or

are not independent, rather that they are independent when performing

their duties as judges (Art. 82 par. 1).

The

Constitutional Court has not expressly addressed the issue of the

implications which the annulment of § 106 par. 1 of the Act on Courts

and Judges has (may have) for the proceeding on the constitutional

complaint, from which the petition under adjudication arose.  Although

it mentioned (by citing) its earlier judgments, No. I. US 102/2000 and

No. I. US 738/2000, and their conclusion that “in deciding on the

constitutional complaint the Constitutional Court must take into

consideration the judgment of annulment in the norm control proceeding”,

it is not sufficiently clear how it foresaw the implications of § 71 of

the Act on Courts and Judges, in particular the principles expressed in

§ 71 par. 2 in relation to § 71 par. 4 of this Act.  If the contested

decision of the President of the Republic could not be subsumed under

the first of these mentioned provisions, that is, the clause following

the semi-colon (due to the fact that the constitutive nature of the

decision excludes considerations of its enforcement), then the

possibility anticipated by both provisions remains open, namely that

“final decisions”, alternatively “rights and duties flowing from legal

relations created prior to the invalidation of the legal enactment”,

remain unaffected.  Attention then once again turns (only) to the

question whether the petitioner’s constitutionally guaranteed rights

were encroached upon (and which of them) as a result of proceeding in

accordance with the provision which was later found to be

unconstitutional (see Section I, above)
 


III.
 

In

summary, the complainant’s petition should have been rejected on

preliminary grounds (Part I.); and even though it was not, should then

have been rejected on the merits, either because the contested provision

is not unconstitutional, or because the objections raised against it

are not capable of calling its constitutional conformity into doubt

(Part II.).

11 July 2006
 

 

 


Dissenting Opinion

of Justice Ivana Janů


I.
 

I

agree with the conclusion that, by allowing for the removal of the

chief justice of a court (the Chief Justice of the Supreme Court)

without concurrent action on the part of the judicial power, § 106 of

Act 6/2002 Coll., on Courts and Judges, as amended by subsequent acts,

is in conflict with the constitutional principle of the separation of

powers and the institutional independence of the judicial power.
 


II.
 

I have formulated the following opinion supplemental to a portion of the Court’s opinion:
 

My

concurring opinion focuses on two areas which are used to support the

reasoning of the judgment, namely, the possibility of limiting the term

of office of court chief justices, above all the chief justices of

supreme courts, and their selection as a career promotion.
 

Foreign

experience supports the view that a number of countries have formulated

rules (whether at the constitutional level or the level of ordinary

law) which limits the term of office of the chief justices of supreme

courts (hereinafter SC) to a precisely prescribed term (although they

diverge as regards the possibility of re-appointment to that office).  I

consider this approach as inspirational for use even under the

conditions for the functioning of justice that prevail here.
 

The

principle that legitimacy must be reaffirmed is without any doubt a key

constitutional principle of a democratic law-based state.  Logically,

due to its character, this principle applies to the judiciary only to a

limited extent; nonetheless I see no impediment for its full application

to the office of chief justice, alone due to the fact that, among the

other judges, a court’s chief justice is „primus inter partes“.
 

I

have long espoused the position that the judiciary should be an open

system, which is accessible to persons from other parts of the legal

profession, in particular advocacy, the state attorney’s office, and the

academic community.  A country as small as the Czech Republic can ill

afford to narrow illogically the background from which it can recruit

judges.  The same applies to the office of chief justice.
 

It

can generally be postulated that for a judge to be suitable for the

office of chief justice, he should manifest abilities which are demanded

by court administration.  He should be not only a recognized expert,

but also a person who is able to act so as to gain respect and esteem

through his human characteristics; merely formally to gird oneself in

the chief justice’s robe quite often does not suffice.  The chief

justice of a court should be a capable organizer and a person who, in a

milieu which as individuality, is capable while maintaining respect for

his colleagues’ views of performing the basic tasks of the judiciary so

as to fulfill his constitutional function and not lose the essential

confidence of the public.  The chief justice of the SC should be capable

to having unifying positions adopted, so as to ensure that the results

of ordinary courts’ judicial decision-making is not only timely but also

predictable, a task which is among the most important for the SC.  The

office of chief justice also requires a person with the decisiveness and

energy to be, if necessary, an uncompromising accuser of his

colleagues, such as in the case of a disciplinary proceeding.  The

absence of certain of these virtues certainly does not qualify as a

“disciplinary transgression”, as understood in the humorous sense, which

would provide grounds to remove such a person from the office of chief

justice; nonetheless, it is precisely in such situations that an

unlimited term of office, which can go on even for decades, functions as

an impediment to the selection of more suitable persons.
 

Within

the bounds of objectivity, reference must also be made, in relation to

the mentioned requirements placed upon the office of the Chief Justice

of the SC, to the personal quality of the judicial corps of the SC in

the conditions of the post-communist transformation of justice.  In this

connection, I have in mind the entirely unknown rule on the basis of

which the selection of Justices of the SC has until now been practiced. 

A candidate’s name is not made known in advance to the wider public,

thus his integrity and expertise is not even discussed in the press,

which is a quite common practice in the case of Constitutional Court

Justices.
 

Even the most

capable Chief Justice will manage to do little with a court on which

sits also judges who have not developed a high level of restraint and

sense of responsibility.  I would recall the situation labeled by the

media as the “war of the courts”, when the Supreme Court refused to

respect Constitutional Court judgments, thus also the direct instruction

of the Constitution of the Czech Republic.  A further well-known

phenomenon is the attitude of the Supreme Court which a priori forces

out all that can be considered as foreign to its organism; it did not

welcome into its midst constitutional Justices who had finished their

terms, and their Justices signed a petition against its Chief Justice,

which I absolutely do not consider an acceptable form in which judges

should express their views.

Brno, 17 July 2006