2007/07/17 - IV. ÚS 23/05: Release of Information concerning a Judge

17 July 2007

HEADNOTES

The

release of defamatory information concerning a person active in public

life cannot be considered reasonable (legitimate) (1) unless it is

proven that reasonable grounds existed for relying on the truthfulness

of the defamatory information; (2) unless it is proven that available

measures were taken to verify the truthfulness of such information, to

such degree and intensity to which the verification of the information

was available and definite; and (3) if the person releasing the

defamatory information had reason not to believe that such information

was true. The release of such information cannot be considered to be

legitimate or reasonable also in cases when the disseminator of such

information did not verify the truthfulness of the same by querying the

person concerned by such information and did not make known the opinion

of such a person, except in instances when such a procedure is

impossible and/or in cases when such procedure was obviously not

necessary (Lange v. Australian Corporation, 1997, cited in case Reynolds

Lds. – see above). Examination of motive is an important point for

assessing the legitimacy of the release of such information. Legitimacy

cannot be inferred when such a release of information is predominantly

motivated by a desire to aggrieve the person to which such data is

related, and when the disseminator themself did not believe the

information, and/or when they published it inconsiderately and with

gross negligence without verifying whether the information was truthful

or not.

The

fundamental right to honour is applied in several spheres – the private

domain, societal domain, civil domain and professional domain. The last

three may be defined as a social sphere.

The

first sphere actually involves protection of privacy, within which the

right to honour is also undoubtedly applied. Principally, it is up to

each individual what they release from this sphere as information

suitable for the outside world and to what degree. In other words, this

sphere is usually governed by complete self-determination as regards

information.

The

societal, civil and professional domains reflect the social nature of

fundamental rights, or reflect the fact that an individual lives in a

society and enters into communication with its other members, and,

through their conduct or very existence, influences other members of the

society. In this sphere, absolute self-determination in respect of

information is no longer applicable. In other words, under certain

circumstances, it is possible to enter into such a sphere, as the same

might contain facts within a topic that justifies public interest. Thus,

the social spheres may be interfered with through proportional

interventions by a public power in order to protect the interests of

society.

The

outer edges of the social domain of an individual are part of the

“public sphere”. This is a segment of human life which may be perceived

and acknowledged by anybody (Löffler/Rickler, Handbuch des Presserechts,

4th ed., 2000, chapter 42, note No. 7). In this sphere, there are

practically no restrictions on dissemination of truthful facts from it

(Soehring, Presserecht, 3rd ed., 2000, note No. 19.40). It is obvious

that this sphere of human life completely overlaps with the professional

sphere of persons active in public life.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THR CZECH REPUBLIC


A

Panel of the Constitutional Court of the Czech Republic, consisting of

Chairman Miloslav Výborný and Justices Eliška Wagnerová (Justice

Rapporteur) and Vlasta Formánková, adjudicated on 17 July 2007 in the

matter of a constitutional complaint filed by JUDr. Š. W., represented

by JUDr. Jiřina Gyarfásová, an attorney at law with a registered office

at No. 61, Radlická St., Prague 5, against a judgment by the High Court

in Prague of 21 September 2004, No. 1 Co 85/2003-291, as follows:


I.

The judgment by the High Court in Prague of 21 September 2004, No. 1 Co

85/2003-291 violated a fundamental right of the petitioner guaranteed

by Art. 17 para. 1 of the Charter of Fundamental Rights and Basic

Freedoms.

II. Therefore, this judgment shall be annulled.

 


REASONING


I.
 

1.

In the constitutional complaint, sent by post on 12 January 2005, the

petitioner sought the annulment of the judgment of the High Court in

Prague in the case of a lawsuit for the protection of personality, by

which an obligation to apologise to JUDr. S. P., the plaintiff, was

imposed on Czech Television, the defendant. The petitioner, in such

proceedings being in the position of a secondary party on the side of

the defendant, claimed that the contested resolution violated her

fundamental rights to freedom of expression and dissemination of

information as established by Art. 17 para. 1 to 5 of the Charter of

Fundamental Rights and Basic Freedoms (hereinafter “Charter”).

Additionally, the right to judicial protection (Art. 36 para. 1 of the

Charter) was allegedly violated, as well as Art. 37 para. 3 of the

Charter, guaranteeing equality of parties to proceedings, and Art. 38

para. 2 guaranteeing the right to have a matter handled without

unnecessary delay and the right to be present at the hearing of one’s

own case.
 

2. The

constitutional complaint was filed timely (§ 72 para. 3 of Act No.

182/1993 Coll. on the Constitutional Court, as amended by later

regulations (hereinafter “Act on the Constitutional Court”)).

Additionally, the Constitutional Court was obliged to evaluate whether

the complaint was admissible. According to case law of the Supreme Court

of the Czech Republic, the secondary party to civil proceedings is not

entitled to file an appeal on a point of law (cf. examples: a decision

dated 27 May 2003, file No. 25 Cdo 162/2003 in Judicial Review No.

12/2003, and A Collection of Decisions of the Supreme Court of the Czech

Republic, No. 25/2004). A yet unpublished decision of the

Constitutional Court, dated 12 August 2004, file No. III. ÚS 390/04,

implies that by filing a constitutional complaint only following a

resolution being passed by a court of appeal on a point of law,

secondary parties become exposed to the risk of having a complaint

denied for lateness. Therefore, the constitutional complaint had to be

considered as admissible (see also below in clause 9).
 

3.

The claim of the petitioner concerning a violation of Art. 17 of the

Charter states that the aim of her report was not to harm the judiciary

as a whole, but to disseminate verified information and opinions of

public interest. In addition, she wished to persuade, thanks to pressure

from public opinion, a relevant independent body to re-examine whether

the manner in which JUDr. P., the plaintiff, administered the political

cases in question prior to November 1989 weakened trust in the judiciary

or not. The aim was also to induce a public discussion concerning

whether or not the plaintiff was rehabilitated after 1989 merely due to

the fact that the relevant body did not have sufficient information on

her actions in the judiciary prior to 1989, particularly as the relevant

body based their decision on an untruthful statement from the plaintiff

about having to leave the judiciary for political reasons after 1970. A

person of a judge is one serving the public interest, some of whose

personal rights are limited, and diminish when confronted with a

justified interest for the provision of public information. The given

report was based on public documents and did not touch on any private or

intimate domains concerning the plaintiff, but was solely on matters of

her professional life. Two resolutions in which the plaintiff was

involved were annulled after 1989 by the Supreme Court, on the grounds

of the law having been violated when passing said resolutions: to the

detriment of Jazzová sekce (“Jazz Section”) and to the benefit of Mr.

Kafka, an officer of the State Police. The petitioner tried to confirm

opinion that the plaintiff belonged to a group of judges selected to

deal with political trials using the registry of files of the Municipal

Court in Prague, but the Chairman of the given court denied such

verification. Such data was even not requested by the Regional Court in

Prague, in spite of the fact that the same was proposed by the

petitioner. The Regional Court first denied the indictment since they

concluded that the report principally adhered to reality – the relevant

panel was the only one dealing with such cases. Such factual findings

were then altered by the High Court in Prague without presenting further

evidence. Furthermore, the High Court irrelevantly added that the

plaintiff had never been a member of the crime panel that adjudicated

cases in first instance at the Municipal Court.
 

4.

The petitioner derived the violation of Art. 36 para. 1 of the Charter

from the fact that the doubts concerning judges of the Regional Court

and the High Court being prejudiced were not refuted. The case should

have been considered by a court not based in Prague, since the plaintiff

has been active in the capital’s judiciary system since the end of the

1950s and has many personal and professional connections to judges

there. A close friend of hers, who took part in the disciplinary

proceedings against the petitioner, works at the High Court as well as

two other judges who were also witnesses, one of them being the Chairman

of the High Court in Prague, and was additionally involved in one of

the cases forming the subject of the dispute. Moreover, the system of

judiciary functioning shows that judges at the High Court are dependant

in their careers on the Chairman. However, objections of prejudice were

overruled also by the Supreme Court of the Czech Republic (decision of

22 January 2004, file No. 26 Nd 211/2003 in

www.nsoud.cz/rozhod.php).
 

5.

The petitioner claimed that equality of parties to the proceedings

(Art. 37 para. 3 of the Charter) was violated by a biased approach in

how the objections were handled. The High Court dealt with the report

without taking into account all its connections, and only from the

viewpoint of the proposed verdict, which effectively lifted the

statements under indictment out of context as regards the entire report,

thus the meaning of the same was altered. In contravention of the

objective nature of the proceedings on protection of personality, the

court did not take into consideration the political attitudes of the

plaintiff (now the secondary party), and did not assess her disciplinary

file presented as evidence, despite the subject of the dispute actually

being the personality of the plaintiff. Without justification, no

evidence was presented based on registries of judicial files regarding

cases in which the plaintiff participated in the period 1970-1989. The

petitioner based her statement on the violation of her right to have a

matter handled without unnecessary delay and in the presence of the

person concerned (Art. 38 para. 2 of the Charter) firstly on the total

length of proceedings, and secondly on documenting an incorrect

procedure regarding the serving of a summons to the hearing at the High

Court. Consequently, she was unable to ask questions of the key witness

in the prosecution, the Chairman of the High Court in Prague. For all

the reasons enumerated above, the petitioner proposed that the contested

verdict be annulled.
 

6.

Upon a request, the Regional Court in Prague submitted their opinion

concerning the constitutional complaint by way of the Chairwoman of the

panel, JUDr. Naděžda Křivánková. She denied the objection of exclusion

from the case under consideration, since she had not known the plaintiff

prior to the commencement of the proceedings, had never been a judge of

the district served by the Municipal Court in Prague, and had never

shown any bias whatsoever. The Regional Court dealt with procedural

objections in the course of the proceedings, and considered the repeated

bringing of the same to be neither adequate nor accordant with legal

regulations. The High Court in Prague also made their opinion known

through JUDr. Zdeňka Ferešová, Chairwoman of the panel, who referred to

the repetitiveness of objections of the complaint and then to the

reasoning of the contested judgment, and pointed out (in accord with

said reasoning) that Czech Television, within extra-judicial

negotiations, offered the plaintiff compensation for costs associated

with the suit and an apology through a personal letter from Czech

Television.
 

7. JUDr. S. P.

and Czech Television, having the positions of secondary parties in the

proceedings on the constitutional complaint, were also invited to submit

their respective opinions. Czech Television waived its position.
 

8.

In her statement, JUDr. S. P. expressed a conviction that Article 17 of

the Charter was not violated since exercise of the freedom of

expression must not conflict with the rights of citizens. The Charter

does not protect the freedom of untrue and distorting information, or

information infringing individual integrity and impairing personal

honour and a dignified existence. The report contained incorrect

information – engagement in a small group of judges charged with hearing

political trials, a statement saying these judges should have been

removed from the judiciary as a part of a purification process; and that

judgments had been delivered in conflict with valid law – which,

together with describing JUDr. P. as professionally and morally inapt

and a judge exhibiting arbitrariness, caused stress to JUDr. P. and

deeply harmed her dignity and civic honour, since she had been working

in the crime department for dozens of years and has actually been

training judges. JUDr. P. was a member of the “unification panel” which,

in addition to economic criminal acts, passed decisions in appeals

proceedings on criminal acts in accordance with provisions of § 100,

102, and 104 of the Criminal Code [note: these criminal acts included

acts of sedition, defamation of the state and its representative, and

defamation of a state of the world socialist system and its

representative, which formed part of Head I of the Special Section of

the Criminal Code]. In her own opinion, JUDr. P. could not have been a

member of a small group of judges charged with handling political

processes, since the criminal acts possible to define as acts of

political nature were adjudicated by the Municipal Court in Prague only

in the first instance, in accordance with the provisions of § 17 of the

Criminal Procedure Code then in force [these criminal acts included

those for which the lower limit of the penal rate amounted to five years

of imprisonment, or where the death penalty may have been imposed, and

criminal acts of terror, diversion, sabotage, subversion of state, and

damnification of a state of the world socialist system, and criminal

acts under the Act on Protection of Peace]. Witnesses – judges JUDr.

Stutzig and JUDr. Ječný – were members of the same panel and

sufficiently testified concerning her professional skills and denied she

would reach decisions in contravention of the then valid legal order.

Besides, any resolutions would be taken by the panel as a whole. The

case of Jazz Section was a matter of economic nature, despite also being

somewhat political. Furthermore, the role of JUDr. P. was described by

JUDr. Stibořík. According to JUDr. P., the independence and impartiality

of the court was beyond doubt since the very length of the process

indicated she had not been advantaged in any way. JUDr. P. noted that an

apology had already been broadcast, and concluded that the data

referred to by the petitioner implied that the true reason for producing

such a grossly discrediting and denouncing report was that JUDr. P.

chaired the disciplinary panel which ruled that the petitioner be

removed from the office of judge. It was then the petitioner took

against JUDr. P. and the television broadcast was in revenge.
 


II.
 

9.

Prior to collecting the data for possible deliberation on the merits of

the case, the Constitutional Court evaluated whether the constitutional

complaint met all formal particulars. Specifically, the Constitutional

Court assessed whether the complaint should be denied due to the fact

that it might have been filed by an evidently unauthorized person or

could be inadmissible (§ 43 para. 1 clause c), e) of Act No. 182/1993

Coll. on the Constitutional Court in the wording in force). However, the

Constitutional Court reached a negative conclusion for the following

reasons. By putting forward the constitutional complaint, the petitioner

seeks protection of her fundamental right to free expression guaranteed

by Art. 17 para. 1 of the Charter. In accordance with Art. 4 of the

Constitution of the Czech Republic, fundamental rights are under the

protection of the judicial power. Such rights must be protected

particularly by ordinary courts. In the hearing before the ordinary

courts, the petitioner had the procedural status of a secondary party on

the side of the defendant. This meant that upon a standard

interpretation of the procedural regulation (the Civil Procedure Code)

by the ordinary courts, her procedural acts, in terms of the scope of

the rights exercised, were principally restricted by the exercise of the

rights of the party on the side of which the petitioner was standing.

It is evident that the standard interpretation of the Civil Procedure

Code appears to be insufficient in the case when a fundamental right

itself is at stake, and the bearer of such a fundamental right in this

instance is the secondary party alone. Under these circumstances, the

Constitutional Court had to conclude that the petitioner was a party

indeed entitled to file a constitutional complaint for the protection of

her fundamental right to the freedom of expression. Similarly, it was

necessary to conclude that the constitutional complaint was admissible

since the petitioner, upon a standard interpretation of the Civil

Procedure Code, did not have any separate right to file an appeal on a

point of law against the judgment of the court of appeal to the extent

she could define herself. In other words, the petitioner did not have at

her disposal any procedural means for the protection of her fundamental

right to free expression other than the constitutional complaint. Under

such circumstances, it was necessary to conclude she was indeed an

authorised person filing an admissible petition (see also clause 2).
 


III.
 

10.

The Constitutional Court requested a file from the Regional Court in

Prague, file No. 36 C 28/99, from which the Constitutional Court

ascertained the following factual information.
 

11.

By a judgment dated 23 September 2002, file No. 36 C 20/99, the

Regional Court granted the indictment by judge JUDr. S. P., and imposed

on Czech Television the obligation to apologise by airing the following:

“The statements released in the programme “Nadoraz”, broadcast on 16

November 1998 and 17 November 1998, in a report entitled “Soudkyně” (A

Judge) by which JUDr. S. P., a judge of the Municipal Court in Prague,

was described as a judge who should have been removed from the judiciary

within the purification process, since she had been adjudicating in

contravention of the valid law, are not based on truth and were

intentionally distorted and taken out of context”, this on two

consecutive days within a main news programme. The court denied a

proposal of payment for compensation for immaterial detriment amounting

to CZK 800,000 with 20% default interest, as well as a proposal to

declare as untrue the statement that the plaintiff “was, prior to

November 1989, a member of a small group of judges charged with

adjudicating political trials”. The fact that various cases were

assigned according to a work schedule was, for the Regional Court (p.

4), reason enough to disprove the statement of the plaintiff that she

had participated in the criminal cases specified above completely

randomly and exceptionally. The Regional Court did not accept (p. 4)

objections that international treaties had been violated in the given

cases, as this country was allegedly bound by the same only following

1989, and the judges could not take such treaties into consideration

before that. The court also stated that the report did not influence

relationships between the plaintiff and her colleagues and employees (p.

3).
 

12. The Regional Court

arrived at this ruling in light of the circumstance that the Regional

Court’s first verdict, dated 27 November 2000, file No. 36 C 20/99,

completely denied the indictment as unjustified, concluding that the

statement that the plaintiff was one of the group of persons

adjudicating political trials was in fact truthful. Other statements

were not justified, but the plaintiff did not prove (leaf number 149)

that the same had caused any detriment to herself (considerable

discrepancies appeared here; the statement of psychological detriment,

as well as another on the plaintiff receiving verbal attacks by

telephone, and on reactions of relatives, were not confirmed).

Nevertheless, the dismissive judgment was annulled by the High Court in

Prague for its alleged non-reviewability since, according to the

provisions of § 13 of the Civil Code, origination of liability is not

principally based on the origination of actual detriment; ascertainment

that actually such an infringement occurred in the right to protection

of personality that was objectively capable of injuring the rights

protected by the provisions of § 11 et seq. of the Civil Code is

sufficient. According to the High Court, the term “honour” also includes

professional honour, and the court should have first resolved whether

the infringement actually occurred, and only then it was proper to deal

with justness of requirements for protection. According to the High

Court, the Regional Court’s original verdict allegedly did not contain

any conclusion as to opinion on the evaluation of the plaintiff as a

judge that should have been removed from the judiciary as part of

purification process. According to these guidelines, the Regional

Court’s second judgment stated that they, within the original judgment,

did deal with the issue of whether the plaintiff, prior to November

1989, had been adjudicating in conflict with the valid law. However,

then as now, they concluded that it was not proven as true, since the

plaintiff adjudicated in accordance with the then valid legal order. The

judgment of the Supreme Court (11 Tz 9/91) annulled the resolution in

the case of Jazz Section on the grounds of violation of procedural

regulations, which allegedly were not part of the legal order at the

time of taking the annulled resolutions, as allegedly explained (?) to

the court by JUDr. Stibořík, Chairman of the High Court in Prague, as a

witness. The criminal conviction of M. K. and I. M. for sedition,

consisting of distributing documents of Charter 77, was not evaluated by

the Supreme Court of the Czech Republic, since “they had been

rehabilitated and, therefore, such a statement relating to the plaintiff

is not truthful”. The file implies that the petitioner, within the

proceedings, continually raised the objections contained in the

constitutional complaint. Within the proceedings, the plaintiff declared

(leaf number 94) as “inaccurate” her statement that she had had to

leave the judiciary in 1970. A witness, Bedrna, (leaf number 142), who

was the Chairman of the Municipal Court from 1980 to 1988, stated that

at that time there was no political obstacle on the part of the

plaintiff for the exercise of the office of the Chairwoman of the panel.


 

13. On the basis of

appeals by all parties, the case was again dealt with by the High Court

in Prague, which, by a judgment dated 21 September 2004 (1 Co

85/2003-291), changed the verdict on the imposed obligation to apologise

by omitting the words “and were intentionally” before the word

“distorted” (as they are allegedly a subjective evaluation).

Furthermore, the court extended the apology with a text by which they

designated as untrue the statement that JUDr. P. was a judge who was,

prior to November 1989, a member of a small group of judges charged with

adjudicating political trials. The reasoning, in addition to a

reference to prior proceedings (p. 2) where it had been allegedly proven

that “the named persons were convicted in accordance with the then

valid legal order”, states (p. 5) that the defendant had not proven her

statements. The plaintiff had not ruled as a single judge but as a

member of an appeals panel, and had not been a member of the panel at

the Municipal Court dealing with first-instance proceedings on criminal

acts against the state. The annulment of the judgment in the case of

Jazz Section by the Supreme Court was, according to the High Court, a

result of differing legal opinion and did not justify the verdict that

the plaintiff adjudicated cases in conflict with the law, which is a

claim of fact. According to the court of appeal, the circumstances of

the case justified that “the case be set right” in public. Furthermore,

the High Court overturned a previous ruling by ordering the proposal for

monetary compensation for immaterial detriment to continue to

additional proceedings, since monetary compensation is completely proper

given the objectively considerable intensity of the infringement.
 

14.

A part of a file of the Regional Court in Prague, file No. 36 C 20/99,

comprised a video recording of the report in question, broadcast by

Czech Television on 16 November 1998 as part of the “Nadoraz” programme

(leaf number 25), which was presented by the Regional Court as evidence

(leaf number 92). The file (leaf numbers 166 and 281) does not specify

that the report (be it in the form of video recording or a transcript of

the same) was presented by the High Court in Prague as evidence, and

thus it is not possible to ascertain how the court of appeal

familiarised itself with the overall contents of the report under

consideration. Therefore, the Constitutional Court obtained a verbatim

transcript, which was presented as evidence. A brief summary of the

contents of this thirteen-minute report follows.
 

15.

The introduction by Rebeka Křižanová, a reporter, contains the appeal:

“The judiciary should remove not only judges professionally incompetent,

but also those who are incompetent morally.” Judicial arbitrariness has

never been punished, no judge has been hauled up before a court for

violating the law, yet the law was violated, as may be seen in the

following report (this being the work of the petitioner). The petitioner

is described as a person well versed in these issues since, after

November 1989, she worked as a judge for several years. Then follows a

report on criminal proceedings against an officer of the State Police, a

Mr. Kafka, who was convicted for conducting harrowing methods of

interrogation on Vlastimil Třešňák, but only received a fine of CZK

50,000. The leniency of this penalty brought about criticism from the

public, which is evidenced by articles in two national newspapers. Then

follows a hypothesis by the petitioner linking the softness of the

sentence applied to this executor of totalitarian power with the

professional past of the Chairwoman of the panel. Attempts by the

petitioner to acquire data on the past career of JUDr. P., which were

carried out over the telephone with JUDr. P. herself, with the Municipal

Court in Prague, and with the Minister of Justice, are documented.

However, provision of such data was denied with reference to the

confidential nature of the same. The petitioner then specifically asked

the Minister of Justice about the ruling in the case of Jazz Section,

which the Minister denied with reference to his privileged status, as he

had been the defence counsel in the given matter.
 

16.

The report then continues with interviews with members of Jazz Section,

who expressed their opinions that the case possessed political

implications from the very beginning, but the mood of “perestroika”, and

especially an upcoming visit by Mikhail Gorbachev, the head of the

Soviet Communist Party and state, seemed unsuitable conditions to hold a

political trial, hence the convictions of unlicensed business

activities. The unconditional punishments imposed are then described.

Afterwards, the report continues by stating the sentence was annulled

following 1989 by the Supreme Court, and a query was addressed to Eliška

Wagnerová, then the Chairwoman of the Supreme Court of the Czech

Republic, as to whether it might have been possible for a judge prior to

1989 to oversee a political trial accidentally, such as the prosecution

for sedition allegedly committed by signing Charter 77 and through

contacts with members of the same. The Chairwoman of the Supreme Court

of the Czech Republic dismissed this by saying: “we all know these cases

were dealt with by judges especially elected for the task.” Following

studies of the reasoning of the judgment by the Supreme Court of the

Czech Republic by which the judgment over the members of Jazz Section

was annulled, the Chairwoman of the court declared that it truly had

been a political trial. The petitioner then states that JUDr. P.

adjudicated the cases of both members of Jazz Section in 1987 and Mr. M.

K. and Mr. I. M. in 1978, on whom she imposed harsh unconditional

punishments for sedition. Subsequently, the Minister of Justice is again

asked to reiterate whether JUDr. P. was “one of the few proposed by the

Minister to be recalled on the grounds of her career as a judge before

1989”. The Minister’s response was that he considered JUDr. P. as having

been “re-nominated” and that she had not been impugned even in

proceedings held at the initiative of Výbor na obranu nespravedlivě

stíhaných (VONS; The Committee for the Defence of the Unjustly

Persecuted). A spokesperson for the Ministry refused to publicise both

the specific reasons for which five judges had faced a petition for

their removal in 1993 and their specific names, saying that the Ministry

had “lost” the case. The disciplinary panel did not find the judges

guilty, and that is why the spokesperson saw no reason why the judges’

names should be “blackened” after such a long time. The report further

states that JUDr. Jiří Novák, the Minister of Justice, did file a

petition to remove JUDr. P. from her post. An attorney from the

professional circles of VONS remarked that there is no political will to

address the past and investigate the judiciary. The report concludes

with the following: “The Ministry of Justice has provided us with only

fragmentary data on Judge P. Oddly enough, they imply that she did not

perform the duties of a judge from 1970 to 1990. Judicial functionaries,

however, have an understandable reason not to inform the public in any

way on the career of Judge P., as she was, before 1989, a member of a

small group of judges charged with adjudicating political trials. The

case of Judge P. proves that the purification of the Czech judiciary has

not been completed”. This is followed by a wish that justice eventually

prevails.
 

17. Since the

Justice Rapporteur also spoke in the report, JUDr. Eliška Wagnerová felt

obliged to request (on 29 June 2005) that Panel III of the

Constitutional Court decide whether she should be excluded from the case

under consideration due to the above reason (§ 36 para. 1 of the Act on

the Constitutional Court), or whether she might be seen by the outside

world as biased, despite having no relation to the plaintiff or the

petitioner and does not feel any bias. The third panel of the

Constitutional Court, on 13 July 2005, decided that, on the basis of the

contents of a file and a letter from the Justice Rapporteur, the

conditions necessary for exclusion were not fulfilled.
 


IV.
 

18.

The file of the Regional Court in Prague implies that, in the course of

the proceedings, other files were added to it upon proposals by the

parties; the following parts of the same are presented by the

Constitutional Court as evidence.
 

19.

Copies of resolutions in the case of M. K. and I. M. (the judgment of

the District Court for Prague 10 dated 9 August 1978, file No. 1 T

47/78, and decision of the Municipal Court in Prague dated 15 September

1978, file No. 5 To 111/78) imply that JUDr. P., as the Chairwoman of

the panel of the Municipal Court in Prague, took part in sentencing M.

K. and I. M. to unconditional punishments of imprisonment for 12 and 18

months respectively for the criminal act of sedition, which they, as

signatories of Charter 77, allegedly committed by distributing printed

matters aimed against the socialist order, by which they wanted to raise

mistrust towards said order. Unlike the District Court, the Municipal

Court took into consideration that the act had been committed at a time

of “increased ideological diversion” and the “perpetrators” attempted to

hinder a successfully completed process of consolidation, which

commenced after 1968. The District Court for Prague 10, on 18 February

1991 (Rt 443/91), declared these resolutions annulled as of the date of

their passing; such a procedure regarding the “criminal act” of sedition

was prescribed by the Act on Judicial Rehabilitation (§ 2 para. 1

clause d) of Act No. 119/1990 Coll.). JUDr. P. herself, within the

proceedings forming the subject of the present review, defined such a

trial to be a political one (see file No. 36 C 20/99, leaf number 93,

verte).
 

20. The file of the

District Court in Prague 4 file No. 2 T 23/86 shows that JUDr. P.

presided over the panel which, in appeals proceedings (the decision of

the Municipal Court in Prague, dated 12 May 1987, No. 5 To 68/87-1756)

confirmed the judgment of the District Court for Prague 4 (dated 11

March 1987, No. 2 T 23/86-1675), by which unconditional punishments of

imprisonment for 16 and 10 months respectively were imposed on two

members of (i.a.) the Committee of the Jazz Section of the Union of

Musicians of the Czech Republic (hereinafter also “JS”) for unlicensed

business activities (§ 118 para. 1 of the Criminal Code), for

distributing publications by the JS, which was in conflict with Act No.

94/1949 Coll. On Publishing and Distributing Books, Sheet Music and

Other Non-periodic Publications, since the same took place even

following the dissolution of the Union of Musicians of the Czech

Republic (supported by the Ministry of the Interior by the Act on

Temporary Measures to Consolidate Public Order, No. 126/1968 Coll.). The

District Court dealt with the case following the Municipal Court (leaf

number 1487) annulled its resolution (due to which the District Court

returned the case for additional examination to preparatory proceedings)

and ordered the case to be adjudicated. The Municipal Court in its

affirmative decision stated that the actions were aimed against the

fundaments of the economic system and, therefore, from the viewpoint of

public danger, it is irrelevant that such operations did not serve for

personal enrichment and that the publications printed were beneficial,

since it was factually relevant that the editorial work was not

permitted. The Supreme Court of the Czech Republic annulled such

resolutions on the basis of the complaint on the violation of the law by

a judgment (dated 24 April 1991, file No. 11 Tz 9/91-1902) and stated

that the charges against the members of the Committee of the JS (§ 163

para. 1 of the Criminal Procedure Code in the wording in force at the

time of delivery of the judgment by the Municipal Court) were not

preceded by any commencement of criminal prosecution (§ 160 para. 1 of

the Criminal Procedure Code in the wording in force at the time of

delivery of the judgment by the Municipal Court) for unlicensed business

activities. The Supreme Court refused to apply § 19 and § 22 of the

International Covenant on Civil and Political Rights (hereinafter

“Covenant”) but stated that there was an insufficient factual basis for

assessment of culpability, and identified themselves with the fact that

objections to the lack of public danger of the act should have been

taken into account. The file contains several letters from members of

Amnesty International from all around the world (such as leaf numbers

1404, 1425, 1456, 1458, 1462, and 1470), as well as a letter from the

wives of the members of the Committee of Jazz Section to the President

of the Czechoslovak Socialist Republic (dated 3 December 1986, leaf

numbers 1396 and 1483), in which they note that despite the fact the

case centred on economic criminality, pressure was exerted upon the

defendants for them to give their opinions on political accusations and

sign politically motivated declarations, and that some interrogations

lasted for as long as 17 hours (a letter was presented as evidence by

the Regional Court in Prague – leaf number 143).
 

21.

From the disciplinary file maintained against Judge P. (file No. Ds

5/93 of the High Court in Prague), the Constitutional Court ascertained

that the Minister of Justice filed, on 17 December 1993, a proposal for

her removal from the office of judge on the grounds of her participation

in convicting Mr. K. and Mr. M. for disseminating opinions and ideas at

the time when the Covenant had already been published, which the

Minister considered to be a gross disloyalty to the obligations of

independent judicial decision making, also taking into account the

inappropriate and unjustified severity of the sentences. The High Court

did not grant the petition from the Minister (29 March 1994, DS 5/93-33)

and this resolution was also later confirmed by the Supreme Court of

the Czech Republic (31 August 1994, DS 5/93-68). However, the Supreme

Court did not align itself with the opinion of the High Court that such a

removal from office is precluded by the constitutionally established

independence of a judge, since otherwise no transformation of the

judiciary would be possible (§ 67 para. 1 of Act No. 335/1991 Coll.).

The opinion of the High Court on the non-applicability of international

treaties was confirmed, and such treaties were described as a commitment

of an ethical nature. According to the Supreme Court of the Czech

Republic, the resolution passed by the panel of Judge P. deviated from

legal assessment in terms of ideological nature, however, the Supreme

Court of the Czech Republic concluded that the Act predominantly

intended not to punish judges for individual and thoroughly singular

excesses but for employing a certain style of working which, in the

given case, was not claimed, let alone evidenced.
 

22.

From the disciplinary file maintained against the petitioner (file No.

Spr 1161/93 of the Municipal Court in Prague), the Constitutional Court

ascertained that the petitioner was, on 11 March 1994 (leaf number 72),

removed from the office of judge of the District Court for Prague 3 by a

panel presided over by JUDr. P. The panel of the High Court in Prague

denied (leaf number 118) an objection of prejudice by JUDr. P.

(justified by the fact that she herself was facing disciplinary

proceedings), and the same panel also denied, on 29 June 1994 (leaf

number 146), an appeal by the petitioner against her removal from the

office of judge by not granting her objections. The panel was presided

over by JUDr. Stanislav Látal, (in his own words) a friend (Ds 5/93-6)

of JUDr. P. and a judge of long-standing of the Supreme Court of the

Czech Socialist Republic. The petitioner was removed since she refused

to take charge of panel 5 C, refused to deal with civil agenda until a

certain point in time, and did not arrive at her office on 30 and 31

August 1993. This was an inadequate response by the petitioner to work

overload, since she had been, during a short period of time, reassigned

to various agendas, and she resisted taking charge of a panel burdened

with delays.
 


V.
 

23. The Constitutional Court concluded that the constitutional complaint is justified.
 

24. When evaluating the constitutional complaint, the Constitutional Court employed the following principles:
 

 

A) Freedom of expression
 

25.

The fundamental right to free expression must be considered a

constitutive element of a democratic and pluralistic society, in which

everyone is permitted to express an opinion on public matters and to

make evaluative judgments on them.
 

26.

All the agendas of state institutions, as well as the activities of

persons active in public life, e.g. the endeavours of local and national

politicians, officials, judges, attorneys, or candidates or aspirants

to these offices, are deemed a public matter. The arts, including show

business, and everything that attracts public attention, are also public

concerns. These public matters, or endeavours of individual persons may

be judged publicly. In constitutional terms, critical observations on

public matters carried out by publicly active persons are subject to the

presumption that such criticism is permitted. It is purely an

expression of a democratic principle, the expression of participation by

members of a civic society in public matters.
 

27.

If the freedom of expression of an individual delivering critical

observations is, in such cases, restricted by a resolution of a court,

it is necessary that the person concerned prove the remarks were not

expressed bona fide or such comments were unfair. In this, the

presumption of permitted criticism protects merely an evaluative

judgment, not the claiming of facts; the critic alone must prove such

facts by evidence to the degree that the same served as the basis for

the criticism. Only statements of true facts are principally protected.

The requirement that critics themselves must prove the facts claimed is a

European constitutional standard (e.g. the resolution of the House of

Lords dated 28 October 1999 in the case Reynolds v. Times Newspapers

Limited, or the resolution of the German Federal Constitutional Court

dated 3 June 1980, 1 BvR 797/78 in the case of Böll) confirmed also by

case law of the European Court of Human Rights (hereinafter “ECHR”; e.g.

resolution of the Grand Chamber dated 17 December 2004 in the case

Pedersen and Baadsgaard v. Denmark).
 

28.

Other general principles applied in case law of European constitutional

courts, as well as in case law of the ECHR, are as follows: the release

of defamatory information concerning a person active in public life

cannot be considered reasonable (legitimate) (1) unless it is proven

that reasonable grounds existed for relying on the truthfulness of the

defamatory information; (2) unless it is proven that available measures

were taken to verify the truthfulness of such information, to such

degree and intensity to which the verification of the information was

available and definite; and (3) if the person releasing the defamatory

information had reason not to believe that such information was true.

The release of such information cannot be considered to be legitimate or

reasonable also in cases when the disseminator of such information did

not verify the truthfulness of the same by querying the person concerned

by such information and did not make known the opinion of such a

person, except in instances when such a procedure is impossible and/or

in cases when such procedure was obviously not necessary (Lange v.

Australian Corporation, 1997, cited in case Reynolds Lds. – see above).

Examination of motive is an important point for assessing the legitimacy

of the release of such information. Legitimacy cannot be inferred when

such a release of information is predominantly motivated by a desire to

aggrieve the person to which such data is related, and when the

disseminator themself did not believe the information, and/or when they

published it inconsiderately and with gross negligence without verifying

whether the information was truthful or not.
 

29.

As regards evaluative judgments, exaggeration and hyperbole alone, even

if harsh, do not make expression non-permitted. Even inappropriateness

in the critic's opinion in terms of logic, or the prejudice of the same,

do not, by themselves, allow for a conclusion that the critic went

beyond the bounds of expression that can be described as fair. Only in

cases of criticism of matters, or actions by persons active in public

life, which completely lacks a substantive basis and for which no

justification can be found (general criticism), is it necessary to

consider such criticism beyond the bounds of fair expression. It is

always necessary to evaluate the entire expression as it appeared within

the particular literary, journalistic or other form; a single

expression or sentence lifted out of context may never be evaluated.
 

30.

The media play an irreplaceable role in informing individuals on

matters of public interest. They publicise information on contemporary

events, on trends within the life of a nation and society. The media

make it possible to maintain public discussion where various opinions

are exchanged, and thus provide individuals and various groups with

opportunities to create general opinions. The media thus represent a

decisive factor in the permanent process of forming opinion, as well as

in eventually motivating the will of individuals, groups and political

institutions.
 

31. Each

broadcast, be it a television or radio programme, plays a role in

opinion being generating, as a result of the selection and manner of

adapting the given subject. The media and their output cannot be

evaluated in advance on the earnest nature of the contents of said

output or according to whether such contents are compatible with

respectable private or public interests. Such an advance evaluation of

the media, effectively resulting in the media being under state control,

would directly contradict the fundamental right to free expression the

media help to provide. In other words, each broadcaster, in connection

with any programme broadcast, may claim protection by referring to the

fundamental right to free expression, be it a political broadcast, a

review programme addressing issues of public interest, or artistic and

entertainment programming. Freedom of expression is possessed by the

media without the media alone having to prove the “validity” or

“legitimacy” of interest in broadcasting a given programme. The

fundamental right of the media to free expression thus protects not only

the given issue, but also the type and manner of its adaptation.
 

32.

Only when free expression conceived in such a manner comes into

conflict with other legal values protected by the constitutional order

or statutes passed for such purpose for which free expression may be

restricted, as specified by Art. 17 para. 4 of the Charter (e.g. rights

and freedoms of others, state security, national security, protection of

public health and morale), conditions arise for examining the intended

purpose of a specific programme, the manner and type of adaptation of

the subject, as well as the resultant or anticipated effects of the

broadcast. However, none of the restrictions to free expression

mentioned above, executed by an ordinary statute with the

above-mentioned permissible purpose, should bring into question the

freedom of expression itself. On the contrary, such restrictive statutes

must be interpreted with respect to free expression and, if necessary,

also in a restrictive way to such a degree that adequate realisation of

the very freedom of expression is secured. In order to meet these

requirements, it is necessary in the given case to weigh up the legal

values generally and specifically present in the given case that

conflict with each other.
 


B) Right to honour
 

33.

The fundamental right to honour is applied in several spheres – the

private domain, societal domain, civil domain and professional domain.

The last three may be defined as a social sphere.
 

34.

The first sphere actually involves protection of privacy, within which

the right to honour is also undoubtedly applied. Principally, it is up

to each individual what they release from this sphere as information

suitable for the outside world and to what degree. In other words, this

sphere is usually governed by complete self-determination as regards

information.
 

35. The

societal, civil and professional domains reflect the social nature of

fundamental rights, or reflect the fact that an individual lives in a

society and enters into communication with its other members, and,

through their conduct or very existence, influences other members of the

society. In this sphere, absolute self-determination in respect of

information is no longer applicable. In other words, under certain

circumstances, it is possible to enter into such a sphere, as the same

might contain facts within a topic that justifies public interest. Thus,

the social spheres may be interfered with through proportional

interventions by a public power in order to protect the interests of

society.
 

36. The outer

edges of the social domain of an individual are part of the “public

sphere”. This is a segment of human life which may be perceived and

acknowledged by anybody (Löffler/Rickler, Handbuch des Presserechts, 4th

ed., 2000, chapter 42, note No. 7). In this sphere, there are

practically no restrictions on dissemination of truthful facts from it

(Soehring, Presserecht, 3rd ed., 2000, note No. 19.40). It is obvious

that this sphere of human life completely overlaps with the professional

sphere of persons active in public life.
 

37.

Because the right to personal honour and good reputation guaranteed by

Art. 10 para. 1 of the Charter (this right is not guaranteed by the

Convention) can not be restricted by ordinary statutes, the purpose of

which would be designated by the Charter in the form of public values

(for instance, as in the case of freedom of expression), possible

restrictions of this right must be sought in the category of immanent

restrictions, i.e. those arising directly from the constitutional order

itself. Such an immanent restriction of the fundamental right to honour

may also be found in the requirement for a public power’s respect for

fundamental rights of third parties, and an obligation on the part of

public power to protect the fundamental rights of third parties. In the

given case, the very right to free expression comes into consideration.

However, it is always necessary to weigh up competing values with

respect to specific factual basis in such a sense and way that both

competing values are maintained to the largest possible degree, and,

should this prove impossible, the intervention in one of the competing

values must be justified using principles of proportionality.
 

38.

These principles, which are applied in evaluating measures by a public

power by which a fundamental right of an individual is restricted, must

also be adequately applied in cases when ordinary courts decide on cases

related to colliding interests of private entities, that is in judicial

deliberations in civil cases.
 

39.

Professional honour and a good professional reputation, as was stated

earlier, belong solely to a social sphere, more precisely to the outer

edge of the same, where the public domain is formed. Therefore, from the

constitutional viewpoint it is acceptable when, for example, the

Ministry of Justice provides the media with data on proposals for

disciplinary sanctions against judges. As far as courts of law are

concerned, according to the now valid provisions of § 11 of Act No.

106/1999 Coll. on Free Access to Information, only information on

criminal proceedings in progress and information on activities

concerning the decision making process of courts are excluded from the

duty to provide information. The decision making process of courts,

however, cannot be considered identical to the verdicts of the courts or

judges alone (even when chairpersons of some ordinary courts conduct

matters in this very way). On the contrary, such verdicts must be made

available to the media upon request, in complete adherence to the

purpose of the Act on Free Access to Information, after payment of

administrative fees, naturally. In the same way, this Act cannot prevent

chairpersons of courts or the Ministry of Justice from providing

information on the professional careers of individual judges. Such

interpretation of the Act is correct precisely due to the fact that

professional reputation – a derivative of which is professional honour –

falls within the social category and belongs to the public domain, as

was explained earlier. In the case of judges, such intervention by the

state into this part of their personality is made possible by a specific

purpose, this being an attempt to secure a personally and

professionally unimpeachable judiciary. The specified data relating to

this sphere of life are also relevant for assessing the impartiality and

independence of individual judges in connection with deliberations

concerning individual cases. The personnel departments of courts should

release such data to the media upon request to allow the media to

discuss and analyse, in an informed manner, the professional experience

of the judges in connection with the process of formulating verdicts.

This is actually an acknowledged method employed by political science,

based on thoughts of a philosophical school of legal realism, as

commonly applied in the USA. After all, these ideas are the basis for

the selection of justices of the Constitutional Court, where candidates

are subjected to thorough examination in the Senate of the Parliament of

the Czech Republic as regards their professional past.    
 

 

VI.
 

40.

The petitioner developed a report which, according to the ordinary

courts, unlawfully infringed the personal rights of the secondary party,

Judge S. P.  The crux of the dispute is thus a conflict between the

freedom of expression (Art. 17 of the Charter) of the journalist and the

protection of honour of the judge (Art. 10 of the Charter). The

Constitutional Court focused their examination on the contested

resolution of the appeals court, which changed the resolution of the

first-instance court.
 

41.

The contents of the report under consideration show that it was an

immediate reaction to the conviction of Josef Kafka for his “inadequate

conduct” (harrowing interrogation and physical torture as part of

lawless coercion to emigrate) towards Vlastimil Třešňák. The secondary

party was the Chairwoman of the panel that imposed a monetary punishment

for such conduct, which large part of the media, including the

petitioner’s report, considered to be overly lenient. It is necessary to

note that the report was dedicated to the issue of purging the

judiciary following 1989 (see also the date of broadcast). In the

report, the petitioner asked whether the reason for such a decision may

be related to the professional past of the Chairwoman of the panel (i.e.

the secondary party).
 

42.

According to the petitioner’s hypothesis (actually expressed in the form

of a question), the attitude of judges towards the period when the

Czechoslovak Socialist Republic was not a law-based state, when judicial

independence did not apply (cf. a contrary opinion of the plaintiff on

leaf number 94 verte), and judges participated in hampering human

rights, may arise from the professional past of specific judges. When

developing the report, the petitioner tried to verify her hypothesis,

but the bodies administering the necessary information (the Chairman of

the court – leaf number 111, the Ministry, including the then Minister

of Justice – see the report for details) failed to provide her with the

information needed, and thus blocked the easiest and most natural way of

verifying or disproving the hypothesis. Furthermore, the secondary

party refused to answer the petitioner’s questions. Evaluating the

accuracy of the facts presented by the petitioner must be determined by

this fact. The petitioner was denied access to verification of such

information (leaf number 143). The Chairman of the Municipal Court in

Prague (leaf number 7) notified the director of Czech Television, on 20

October 1998, of the disciplinary misdemeanour of the petitioner,

herself formerly a judge who had entered and left the judiciary after

November 1989, and refused to connect the report under preparation with

the issue of self-regulatory mechanisms in the judiciary. Denial of

access to such information was reasoned by an attempt on correctness.

However, it must be taken into account that restriction of access to

information forces journalists to self-censor or even abandon the issue,

which may weaken the role of journalism in the control of power.

Indeed, the investigative report attempted to explain a possible cause

for insufficiently addressing the past in the judiciary, which was a

legitimate issue of public interest that was, at that time, highly

topical, this being also evidenced by a number of articles and

interviews in the press, as well as items in other media.
 

43.

The petitioner was not discouraged and continued to verify her

hypothesis by analysing deliberations available to her that had been

authored or co-authored by the secondary party, as well as by

interviewing both victims of the Communist judiciary and high-ranking

judicial officials. She also approached the secondary party, in the

knowledge that the Minister of Justice wished to remove her from the

office of judge at the end of 1993. Being equipped with carefully

collected findings, the petitioner formulated a conclusion that the

secondary party had been a member of a small group of judges charged

with adjudicating political trials, and that she had been evaluated as

being a judge who should be removed from the judiciary, since she had

adjudicated in conflict with the law valid at the time. The secondary

party felt that her honour was aggrieved by these statements which the

Constitutional Court considers to be claims of fact and, by way of an

action, demanded an apology. Such a claim was granted by the High Court

in Prague by the resolution being now contested.
 

44.

As for the first statement: “The secondary party was a member of a

small group of judges charged with adjudicating political trials.”
a)

The factual finding of the High Court that the statement that the

secondary party had been a member of a small group of judges dealing

with political criminal acts is untrue does not correspond to evidence

presented in proceedings before the ordinary courts, said proceedings

having been completed by the Constitutional Court during proceedings on

the constitutional complaint. On the contrary, the evidence presented

testifies to the correctness of the conclusion of the Regional Court in

Prague, which, in a judgment dated 27 November 2000 and another dated 23

September 2002, both file No. 36 C 20/99, stated that in this respect

the finding suffices that the plaintiff was a Chairwoman of the

Municipal Court’s panel which, as the only one in appeals proceedings,

passed decisions on criminal cases dealt with at the first instance

pursuant to Head I of the Criminal Code (including the criminal acts of

sedition, subversion of the state, and emigration), and concluded that

the petitioner’s statement in question “is essentially true to reality”.

This conclusion by the Regional Court corresponds to the social fact

that judicial repression in the 1970s and 1980s was not conducted

routinely but directed at specific targets. There were not many

condemnatory sentences. Twelve judgments (cf. in: Collective: Soudní

perzekuce politické povahy v Československu 1948-1989 /Judicial

Persecution of a Political Nature in Czechoslovakia 1948-1989/, Prague,

Institute of Contemporary History of the Academy of Sciences of the

Czech Republic, 1993, p. 187) out of the total number of condemnatory

judgments for sedition, delivered in the district of the Municipal Court

in Prague from 1975 (when JUDr. P. rejoined the Municipal Court) to

1989, were annulled on the basis of an Act on Rehabilitation. Political

influence on the judiciary was, at that time, asserted generally by

selecting certain people (Šámal, P., K úpravě trestního procesu v letech

normalizace /On Arrangements of Criminal Proceedings in the Years of

“Normalisation”/, in: Vývoj práva v Československu v letech 1945-1989

/Development of Law in Czechoslovakia in 1945-1989/, Prague, Karolinum,

2004, p. 310). The “unification panel”, of which the secondary party was

a member, also exercised significant supervisory entitlements (leaf

number 140 verte) in relation to District Courts, and initiated

complaints on the violation of law, which were an important tool of

political intervention (see text quoted above, pp. 329 and 330).
 

b)

In the above-specified resolution, the Regional Court stated that Mr.

K. and Mr. M. were rehabilitated ex lege (§ 2 para. 1 clause d) of Act

No. 119/1990 Coll. on Judicial Rehabilitation). This fact alone makes it

possible to define their trial as a political one, which is implied

from the purpose of the rehabilitation act, not to mention that the

secondary party herself described their trial as a political one (leaf

number 93 verte). Charter 77 (as is also implied from her text) was a

challenge for democratic discussion; the individuals behind it struggled

for human rights to be maintained and highlighted lawlessness and

violations of the Constitution in place at the time (in Kuklík, Jan and

Jan, History 4 for High Schools, Latest History, Educational Publishing

House, Prague, 2002, p. 197).
 

45.

In the case of Jazz Section, the circumstances merely seem more

complicated. The statement by the secondary party that the trial was not

a political one must be considered to be merely an alibi. Jazz Section

was successfully dedicated to independent editorial work as a form of

dissent (Kuklík, J., J., see text quoted above, p. 198). Besides,

letters from Amnesty International, as well as a letter to the President

of the Czechoslovak Socialist Republic (see clause 20 above), must have

surely indicated to an experienced judge that the core of the case was a

political one. “Trials in which defendants were convicted for acts of

another, usually economic, nature, intentionally construed to be applied

as tools of political pressure or revenge may be considered to be

politically motivated trials.” (cf. in Collective: Soudní perzekuce

politické povahy v Československu 1948-1989 / Judicial Persecution of a

Political Nature in Czechoslovakia 1948-1989/, Prague, Institute of

Contemporary History of the Academy of Sciences of the Czech Republic,

1993, pp. 35 and 38). During the years of “normalisation”, state power

was more cautious, and politically motivated acts were designated solely

as criminal acts (Collective: Dějiny zemí Koruny České II. /History of

Lands of the Czech Crown II/, Litomyšl, Paseka, 2003, p. 303). One of

the convicted persons explained in the given report why “the time was

not suitable for a political trial”. And yet the Constitution then in

force formally guaranteed freedom of the press (Art. 28 para.1).

Therefore, the case was the same as with the signatories of Charter 77 –

judicial sanction for the exercise of (formally guaranteed) political

rights. Totalitarian regimes, in order to give an impression of

legitimacy, often covered repressions against their own citizens with

the veil of the law (the official representatives of the Czechoslovak

Socialist Republic have always denied the existence of political

prisoners), in order to maintain the appearance of lawfulness; criminal

law is a suitable means for giving an impression of lawfulness (cf. e.g.

Šámal, P., see text quoted above, p. 307 et. seq).
 

46.

Courts of a democratic country must naturally not continue along this

path. Acceptance of the conclusion according to which the Jazz Section

trial was not a political one, would mean identification with the value

order of the Communist regime. Common sense alone precludes this, as

does the Judgment of the Constitutional Court of 21 December 1993, file

No. Pl. ÚS 19/93, whereby it was found that “the Constitution …does not

relate positive law merely to formal legality, but subordinates the

interpretation and application of legal norms to the material sense of

their contents, conditions the law by adhering to the fundamental

constitutive values of a democratic society, and gauges the application

of legal norms by such values. This means that even when there is

continuity of old law, the values of the old regime are discontinued”

(cf. in Collection of Judgments and Rulings, Vol. 1, p. 1, or Collection

of Laws No. 14/1994).
 

47.

c) The fact the criminal act of sedition was dealt with in the first

instance by the District Courts was used by the High Court (p. 5 para.

4) for accepting the arguments of the secondary party (leaf number 153)

who thus wanted to refute the statement that she had adjudicated

political trials. However, the provisions of § 2 para. 1 clause d) of

Act on Judicial Rehabilitation annul convictions for criminal acts

specified under Head I of the Criminal Code, irrespective of which court

was dealing with them in the first instance. (As for the political

nature of the entire Head I of the Criminal Code, compare Collective:

Soudní perzekuce politické povahy v Československu 1948-1989 /Judicial

Persecution of a Political Nature in Czechoslovakia 1948-1989/, Prague,

Institute of Contemporary History of the Academy of Sciences of the

Czech Republic, 1993, p. 54; or in Novotný, O. et al., Trestní právo

hmotné II. /Substantive Criminal Law II/, Prague, ASPI, 2004, p. 218).

The High Court also stated (p. 5 para. 5 of the contested resolution)

that the defendant, on the side of which the petitioner stood, allegedly

did not sustain the burden of proof, since the secondary party did not

adjudicate the case as a single judge. Such reasoning lacks any respect

to the constitutional values on which the constitutional order of the

Czech Republic is built; it is necessary to agree with the petitioner

that it is an irrelevant statement in light of the fact that restriction

of free expression of the petitioner was at stake, so this must be

taken into account. Here, the High Court employed the principle of

individual non-responsibility for a resolution, which cannot be accepted

ipso jure. After all, there had been no pressure on the secondary party

to work as a judge. The opinion that a judgment may be attributed to

the chairman of the panel is lent support by the case Hrico v. Slovakia

dealt with by the European Court of Human Rights (hereinafter “ECHR”)

(cf. official database of ECHR – HUDOC – on www.echr.coe.int,

the panel resolution dated 20 July 2004, No. 49418/99, § 46; or in

Collection of Judgments of the ECHR No. 5/2004, p. 291). Nevertheless,

even if the plaintiff had not chaired the panel, it would not have been

possible to find any support that the statement “adjudicated political

trials” is not true, not even by referring to the fact that it is

impossible to find out which vote was cast by which judge (contrary on

leaf number 113). The Constitutional Court is convinced that if there

were reasons for such an action, it would be proper to check the voting

of the secondary party by opening the envelope containing the protocol

on deliberation and voting. However, the plaintiff in the given case did

not even claim being outvoted and, therefore, it is evident that

considerations, or rather speculations, of the High Court in this

respect were lent absolutely no support from the evidence presented.
 

48.

As for the second statement: “(the secondary party) was evaluated as a

judge who should be removed from the judiciary within the purification

process, since she had been adjudicating in contravention of the valid

law”.
a) The disciplinary file of the secondary party, which was also

presented by the Constitutional Court as evidence, has shown that the

Minister of Justice filed, at the end of 1993, a proposal for removing

Judge P. from her office. Yet the High Court stated that the burden of

proof was not sustained with respect to the statement that the plaintiff

was evaluated as a judge who should be removed from the judiciary. The

disciplinary panel of the Supreme Court of the Czech Republic, deciding

as an appeals panel (considering only the case of Mr. K. and Mr. M.),

did not grant the proposal of the Minister since they concluded that it

had been a solitary lapse on the part of the judge, and it was not

proven as being her usual style of working, this being a condition

required by the Act on Courts and Judges as interpreted by the Supreme

Court of the Czech Republic. The petitioner did not conceal the result

of such disciplinary proceedings in her report, however, it is clear

that she based her statement on the opinion of the then Minister of

Justice, as well as that of VONS, which she used as a basis for her

statement.
 

b) The remaining

duty was to assess the method in which the ordinary courts evaluated

the truthfulness of the statement on the adjudicating practice of the

secondary party as being “in contravention of the valid law”. Even if

the word “law” were understood technically in a very narrow way, i.e.

its formal sense, the fact that the secondary party as the Chairwoman of

the panel in the case of Jazz Section participated in violating the law

results from the judgment of the Supreme Court file No. 11 Tz 9/91. Its

reasoning shows that the point did not consist of a different legal

opinion on the case, as was – completely perplexingly – stated by the

High Court in the case now under consideration (p. 5 para. 4 of the

contested judgment). The Constitutional Court does not consider it

possible to dismiss the evaluation of judicial rehabilitation by Mr. K.

and Mr. M., whose original conviction involved the secondary party, by

saying that “the above-named persons were convicted in accordance with

the legal order then in force” (p. 2 of the judgment of the High Court).

It is completely evident that the resolutions annulled according to the

Rehabilitation Act were clearly in conflict with the values

acknowledged (briefly described) by all civilised countries, which were,

in addition, defined by § 1 of the Act on Judicial Rehabilitation. Such

values certainly include freedom of expression. Besides, this freedom

was proclaimed also by the Constitution of the Czechoslovak Socialist

Republic in the wording valid before 1989, albeit in a twisted form, and

was in its integrity guaranteed by the Covenant on Civil and Political

Rights (Decree by the Ministry for Foreign Affairs No. 120/76 Coll.,

hereinafter “Covenant”) in Art. 19, becoming valid in the then

Czechoslovak Socialist Republic on 23 March 1976. Formally legal

guarantee of the freedom of expression through the then valid

Constitution and through the Covenant only underline the commitment of

every judge at that time to interpret the law so that the freedom of

expression of a person standing before a court of justice was respected.

While the disciplinary panel of the High Court in Prague, in their

resolution concerning the proposal by the Minister of Justice for

removal of the secondary party from the office of judge, explicated

formalistic theories on the controversial nature of prioritising the

application of international treaties on human rights in the pre-1989

period, and thereby concluded that the secondary party may not be made

accountable for not having applied the Covenant in the case of Mr. K.

and Mr. M., since not even legal theory was unified in this respect, the

disciplinary panel of the High Court completely failed to notice the

obligation of a judge to adjudicate in accordance with the law (not only

in accordance with formally apprehended acts), which, as a just verdict

by a judge respecting in particular the fundamental rights of

individuals, brings life to the letter of a formal act which was dormant

until then. If a judge fails to discharge this obligation, then they

adjudicate in contravention of law, and the terms “act” and “law” are,

as is well known, used in general language as synonyms, or promiscue. A

television report naturally uses everyday language. Therefore, puristic

legal terminological clarity cannot be expected and, moreover, such

clarity is (as the very development of law from the 2nd half of the 20th

century has shown) merely illusionary even in the rigidly delineated

realm of the law itself.
 

49.

Thus it may be concluded that the statements included in the report

“Nadoraz”, broadcast on 16 November and 17 November 1998, to the scope

as included in the verdict of the contested judgment of the High Court,

may be evaluated as true. When the High Court reached an opposite

conclusion, the High Court violated the fundamental right of the

petitioner to free expression, guaranteed by Art. 17 para. 1 of the

Charter.
 

50. When the High

Court focused their proceedings solely on the issue of the professional

honour of the secondary party (leaf number 169), the High Court erred in

procedure. The court should have taken into account that the case under

consideration was not in the nature of a typical conflict between the

two fundamental rights of private persons, but one between the

fundamental rights of persons active in public life (see Judgment of the

Constitutional Court of the Czech Republic file No. I. ÚS 453/03, see

www.judikatura.cz). The petitioner is a journalist, the secondary party

is a judge, and their professional honour is thus located within a

sphere of involvement which is public, and that is why openness of

information should apply to it. Reasoning on the impossibility of

separating personal and professional lives (leaf number 15 verte) cannot

grant a judge any immunity against public interest in the judge’s

professional qualifications for holding such an office. Judge P. was the

subject of examination in the report only to the extent of her

professional life. Predictability in the exercise of the office of judge

is a legitimate issue of public interest, in the same way as the

quality of judicial deliberation in connection with the personal

structure of the judiciary was an issue of public interest at the time

of broadcast of the report in question. At that time, intense public

discussion was in progress as regards addressing the past, both beyond

and within the judiciary. This is also evidenced by a number of

articles, commentaries, discussions, and interviews in the press, as

well as on radio and television. The protection of professional honour

of people active in public life is weakened in comparison to the

exercise of the freedom of expression, which results from public

interest in the control of power.
 

51.

Therefore, it was not possible to restrict the freedom of speech by

ordering an apology be aired, not even by referring to Art. 10 para. 2

of the Convention on the Protection of Human Rights and Fundamental

Freedoms (hereinafter “Convention”) which makes it possible to restrict

the freedom of expression for the purpose of preserving the authority

and impartiality of judicial power. However the Constitutional Court,

referring to Art. 10 para. 2 of the Convention, committed the media to

weigh up the terms and means employed (Judgment dated 2 February 1998,

file No. IV. ÚS 154/97 in Collection of Judgments and Rulings, vol. 10,

p. 113), this applied to a situation where information released about a

judge was of a private nature and not related to the exercise of the

office of judge, unlike in the case under consideration now.
 

52.

Not even the case law of the ECHR, referring to a restrictive

interpretation of the bounds of freedom of expression, grants judges

complete immunity against basically truthful criticism supported by

facts available, when the person concerned was given an opportunity to

comment on such information and when such facts were not selected and

set in a manipulative way (cf. in HUDOC, resolution of a panel dated 24

February 1997 in De Haes and Gijsels v. Belgium, 19983/92, § 48; or

resolution of the Grand Chamber dated 6 May 2003, Perna v. Italy,

48898/99, § 39 in Overview of Judgments of the ECHR 3/2003, p. 129; or

Prager and Oberschlick v. Austria, 15974/90, § 38; or in the LexData

database). In the opinion of the Constitutional Court, the report of the

petitioner honours such requirements.
 

53.

In the past, the Constitutional Court has observed that when assessing

the fundamental right to freedom of expression, from the viewpoint of

Art. 10 para. 2 of the Convention, judges enjoy special protection.

Nevertheless, judges who feel aggrieved by the exercise of the freedom

of expression have, compared to other individuals, an obligation to

greater tolerance and generosity (cf. Judgment dated 17 October 2000,

file No. I. ÚS 211/99 in Collection of Judgments and Rulings, vol. 20,

p. 75). Public criticism of judicial power is an important means of

balance to judicial independence and, therefore, it is necessary to

start on the presumption of admissibility of such expression, the

intensity and contents of which do not diverge from the bounds of

purpose (presumption of permissibility of criticism of public power; for

similar approach to criticism of public matters cf. in Bouček, V.,

Ochrana cti dle práva anglického /Protection of Honour in English Law/,

Legal Review Library, Prague, 1905, p. 14). If the independence of

judicial power is implicitly protected as a necessary precondition to

enable the judiciary to function, then, on the contrary, it must be

possible, even by way of protecting the freedom of expression, to

publicly control judicial power, taking into account the fact that the

justness of the criticism is again assessed by courts themselves.

According to the Constitutional Court, the purpose of the report was not

to weaken the authority of the judicial power of a democratic country

but strengthen it. The purpose of the report also did not include the

dishonouring of the secondary party. Indeed, its purpose was to ask

questions (which, however, judicial bodies, including the Ministry of

Justice, for perplexing reasons refused to answer, resulting in the

judiciary as a whole as well as the secondary party being aggrieved) and

to find answers primarily to how the professional past of a judge is

related to their present deliberating process. The claim that such a

relation actually exists is self-evident in light of abundant foreign

literature on the matter (e.g. Oliver W. Holmes, Jr., The Common Law,

1881: “Life of law consists not of logic but experience”; Benjamin N.

Cardoso, The Nature of the Judicial Process, 1921; K. Llewellyn, The

Cheyenne Way, 1967).
 

54. In

addition, the ordinary courts did not consider that an intervention of

power into the freedom of expression should be used only subsidiarily,

in such a situation when the damage cannot be rectified otherwise than

through the intervention of the state (I. ÚS 367/03). Other kinds of

defence might be, for example, employment of admissible means of

opposing controversial opinions. If the plaintiff felt aggrieved by the

report, there was nothing to keep her from making her own opinion known,

supported by relevant facts from her professional career. A judge is a

person active in public life, and the requirement for release of a

professional biography in a form as complete as possible cannot be

denied in reference to jeopardising judicial independence. The authority

of the judiciary was not at all strengthened when the then Chairman of

the Judicial Union harshly protested against broadcasting the report

(leaf number 8), referring to the incapacity and prejudice of the

petitioner. However, he did not comment on the merits of the statements

contained in the report (“I do not want to lower myself to the level of

argument of the people responsible for this programme”). Even the

Vice-chairman of the Municipal Court in Prague of the time joined in the

protest (leaf number 9), saying that the petitioner was not a person

qualified to solve the problems of the Czech judiciary, which again was

not accompanied with any data relating to the contents of the report.

Self-determination on the part of a judge in terms of information on

issues relating to their professional past is non-existent. Censorship

of information and the free exchange of opinions concerning the work of

judges, or any selection of individuals allowed to present such

information, threaten the dignity of the judiciary to a greater degree

than any possible controversial opinions expressed in discussion. If the

courts imposed on the public their own evaluation of the past by the

way of power, in particular under the circumstance that a considerable

part of the public strongly disagrees with such an evaluation, they

would weaken their own legitimacy, since it should not be overlooked

that they are deciding on matters affecting themselves directly (a

violation of the essential principle nemo iudex in causa sua).

Therefore, they should proceed very cautiously and apply more

sensitivity towards compliance with constitutional values and principles

contained in the Czech constitutional order. Otherwise, the result will

diminish trust in the law and the fundaments of a law-based state (Art.

1 para. 1 of the Constitution of the Czech Republic) will be

undermined. Moreover, voices have been heard calling for stricter

examination of individuals applying for the office of judge of ordinary

courts (see, for example, a dissenting opinion by Ivana Janů, Justice of

the Constitutional Court concerning the Judgment file No. Pl. ÚS 18/06,

see www.judikatura.cz). Wherever the exercise of freedom of expression

directly endangers the exercise of the judiciary, protection of the

public law may be employed (§ 153 and § 169a of the Criminal Code),

which calls for an entity different from the judicial power to undertake

the initial step.
 

55. The

Constitutional Court had to consider whether it was necessary to only

annul the verdict of the judgment of the High Court specifically

designated by the petitioner in the proposed verdict of her complaint,

or whether there were reasons for annulment of the entire resolution.

The Constitutional Court inclined to the latter option, since it was

found that the entire resolution being annulled impermissibly intervenes

in the fundamental right of the petitioner to free expression. This

fundamental right is also the true substantive subject of the

proceedings, while the individual verdicts of the resolution being

annulled may be considered only a procedural subject of proceedings.
 

56.

Concerning the procedural aspect, from the viewpoint of constitutional

conformity of “splitting the claims”, the Constitutional Court expressed

their negative opinion in Judgments file Nos. II. ÚS 117/04 and I. ÚS

85/04. In the latter, the Constitutional Court i.a. specified that a

situation when, as a result of splitting the individual claims, each

party falls under a different procedural mode is in contravention of the

right to fair trial. The Constitutional Court sees no reason to deviate

in this case from the above case law, and adds that the uncontested

cassation verdict of the court of appeal is not capable of separate

existence.
 

57. The purpose

of the proceedings on a constitutional complaint is to provide

protection to the fundamental right of the petitioner; on the contrary,

its purpose is not extreme formalistic adherence to procedural legal

norms up to such degree that the realisation of the true purpose of the

proceedings on a constitutional complaint would be made impossible. The

Constitutional Court is convinced that the interpretation of the legal

norms applied must always be, most importantly, reasonable and governed

by the purpose of providing effective protection to the rights which,

according to the Constitutional Court’s finding, were violated. As Rt.

Hon. B. Mac Lachlin (Chief Justice of Canada) said, something more is to

be respected than mere legal norms. In short, legal norms must be

transformed into law. Distinguishing between governing by acts, which is

typical of some developing countries, and governing by law, which is

anticipated in well-developed democracies, sufficiently expresses the

difference between a system effectively bound to statutory norms, and a

proper legal system based on a certain foundation of values (a

paraphrase of a statement by B. Mac Lachlin in 2005 in Wellington, New

Zealand).
 

58. For all the

above specified reasons, the Constitutional Court granted the

constitutional complaint in accordance with the provisions of § 82 para.

2 clause a) of Act No. 182/1993 Coll. on the Constitutional Court, as

amended by later regulations, and in accordance with the provisions of §

82 para. 3 clause a) of the same Act annulled the contested resolution

of the High Court.
    
Note: This decision cannot be appealed (§ 54 para. 2 of the Act on the Constitutional Court).

Brno, 17 July 2007
 




Partially dissenting opinion of Justice Miloslav Výborný
to the verdict of ruling II in the case file No. IV. ÚS 23/05
 

I

agree with the verdict of ruling I, which is that the judgment of the

High Court in Prague dated 21 September 2004, No. 1 Co 85/2003-291

violated a fundamental right of the petitioner, guaranteed by Art. 17

para. 1 of the Charter of Fundamental Rights and Basic Freedoms.
 

The

verdict of ruling II, accepted by majority of votes, annulled the

specified judgment of the High Court in Prague in all its parts. For the

reasons explained below I cannot agree with this.
 

Firstly,

it is obvious that by cassation of the entire judgment of the court of

appeal, the Constitutional Court exceeded the bounds of the requirement

contained in the complaint since the petitioner formulated the proposed

verdict absolutely clearly, when she requested – in short – that only

such part of the judgment ordering the defendant to submit an apology be

annulled. In this, the Judgment came into conflict with the settled

case law of the Constitutional Court based on the ancient principle

ultra petitum partium iudex condemnare non potest. Also, such verdicts

of the contested judgment were annulled, against which it was possible

to file an appeal on a point of law (i.a. a verdict by which parts of

the indictment are denied, that is a verdict favourable for the

petitioner), as well as cassational verdicts; I do not find reasons for

this (contained in v para. 55-57 of the Judgment) to sufficiently

justify the procedure employed, since even in this respect a resolution

was made without respect to legal opinions which the Constitutional

Court had dealt with many times in the past in relation to the

procedural issues arisen.
 

I

acknowledge that by partial modification, partial confirmation, and

partial annulment of the judgment of the first-instance court, the court

of appeal created a complicated procedural situation for all parties of

the case in question. With respect to the affirmative and modifying

parts of the resolution, the proceedings were closed with legal effect,

but with an option of review on a point of law by the Supreme Court,

partly admissible by law and partly conditionally admissible. The

contents of the judgment on the verdict relating to the obligation to

submit an apology additionally show that this verdict, even though it

was designated as a modification, was in considerable part in fact an

affirmative verdict, which further increased confusion in reasoning on

admissibility of an appeal on a point of law. Furthermore, the defendant

actually did file an appeal on a point of law, but she limited the

scope of the review on a point of law she proposed to a completely minor

issue, i.e. whether the imposed apology should be broadcast in the main

news report or at a different time. It is true that, when I take into

account not only that the apology was actually broadcast a long time

ago, but especially that the apology was not justified, for reasons

explained in detail in the Judgment (I consider, together with the

majority of the panel, the resolution in this viewpoint to be an

unconstitutional restriction of the freedom of expression), it seems to

be absurd to examine the matter in the proceedings on a point of law,

when this (no longer existent) obligation to apologise is to be

discharged. Continuation of the case before a court of first instance,

which should now formally (as the result of a partial cassation

resolution from the court of appeal) examine whether there are any

reasons to grant the plaintiff, in addition to an apology, financial

compensation, seems to be similarly unreasonable. The absurdity of such

proceedings is completely evident, as the court is bound by the Judgment

by which the Constitutional Court found that the obligation to

apologise is unconstitutional.
 

However,

dealing with so established procedural issues should have been either

left to the ordinary courts (I believe that they would easily find a

rational foothold for their procedure) or approved pursuant to the

provisions of § 23 of the Act on the Constitutional Court. I believe it

quite dangerous for the future that the accepted resolution should

modify the until now consolidated case law of the Constitutional Court

in such a way that in some cases it is possible that the same is left

aside, without proceeding in accordance with the above-quoted legal

provisions. In this matter, I refer to the conclusions of the Judgment

in the case IV. ÚS 613/06 (available at www.judikatura.cz). I agree with

the thesis according to which something more than mere legal norms must

be respected. However, this thesis does not necessarily include a

conclusion that legal norms do not demand to be respected, especially

when such norms are those whose fairness has never been doubted.
 

I

do not believe that in the given case the Constitutional Court would

have fallen into “extreme formalistic adherence to procedural legal

norms”, had they restricted their review only to such part of the

judgment as was contested by the petitioner, in particular due to the

fact that no fundamental right of the petitioner could have been

doubted. The binding legal opinion of the Constitutional Court,

according to which the petitioner’s right to freedom of expression

(embedded by the quoted Art. of the Charter of Fundamental Rights and

Basic Freedoms, but also, for example, in Art. 19 para. 2 of the

International Covenant on Civil and Political Rights, or Art. 10 of the

Convention on the Protection of Human Rights and Fundamental Freedoms)

was violated by the verdict on the imposed apology, together with the

annulment of such a verdict, sufficed to provide adequate protection to

the petitioner’s fundamental rights. In my opinion, all that was passed

in addition to this was not only procedurally questionable, but above

all worthless.