2009/07/28 - Pl. ÚS 9/09: Exclusion of a Disciplinary Senate Judge of the Supreme Court

28 July 2009

HEADNOTES

1) The legal

arrangement of a dispute over the scope of jurisdictions between state

bodies and self-governing bodies valid in the Czech Republic does not

acknowledge the term “included body”. The Constitutional Court of the

Czech Republic, in Judgment file No. Pl. ÚS 17/06, defined the term

“state body” (or “self-governing body”) solely and exclusively according

to the category of attributability, in other words according to whether

power is granted by law to a certain person or a group of persons, such

power being the capacity to act on behalf of the state authoritatively

and with legal relevance (i.e. with legal consequences for other

entities), in the field of public-law relationships. From the viewpoint

of the so defined term of “state (self-governing) body”, the same person

(a group of persons) in a certain role may be an included state

(self-governing) body, but in another role the same may acquire the

nature of a peculiar state (self-governing) body. A contrary process, by

reductione ad absurdum argument, would, in consequence, lead to denial

of justice and violation of the principle of forbiddance of denegationis

iustitiae, and thus also the principle of a law-based state (Article 1

paragraph 1 of the Constitution). Actually, the same would result, in

the case of a negative dispute over the scope of jurisdictions of

“included state (self-governing) bodies”, in the absence of a process

which would ensure further procedure of decision making in the given

case.

2)

The purposes of proceedings on disputes over the scope of jurisdictions

must also include cases in which the normative framework is based on a

legal arrangement no longer valid at the time of the petition. This is

true under the precondition that the consequences of a jurisdictional

dispute apply to proceedings which have not been completed with legally

effective decisions, i.e. when the argument of legal certainty and

protection of rights of third parties does not oppose the handling of

the conflict of jurisdictions.

3)

Section 25 of Act No. 7/2002 Coll. suggests that in the case of

cumulation of the absence of an explicit arrangement and the

impossibility of applying the Criminal Procedure Code resulting from the

nature of the matter, judicial formation of law, consisting of filling

“a genuine gap in law”, must be employed.

4)

If the cassational judgment annuls a legally effective decision of a

body of public power, to which other decisions are related in terms of

contents, and unless a situation is to be created by the same when legal

conditions are not met for adopting such decisions as a result of

cassation, the Constitutional Court shall, at the same time, annul such

other decisions related in terms of contents to the annulled decision or

an annulled part of the same, if the same, with respect to the

modification which took place by such annulment, has lost its basis. In

relation to the same, the Constitutional Court proceeds, in connection

with the legal opinion declared in Judgment file No. III. ÚS 188/99,

from the provisions of § 63 of Act No. 182/1993 Coll. in connection with

the provisions of § 265k paragraph 2 and § 269 paragraph 2 of the

Criminal Procedure Code.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


On

28 July 2009, the Constitutional Court Plenum, composed of Vlasta

Formánková, Pavel Holländer, Vladimír Kůrka, Dagmar Lastovecká, Jan

Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Výborný, Eliška Wagnerová

and Michaela Židlická, without an oral hearing and without the parties

being present, adjudicated a case concerning a petition filed by the

Chief Justice of the Supreme Court with respect to the dispute over the

scope of jurisdictions of state bodies [Article 87 paragraph 1, clause

k) of the Constitution, § 120 et seq. of Act No. 182/1993 Coll. on the

Constitutional Court, as amended by later regulations] to determine a

body competent to issue a decision on exclusion of a judge of the

Supreme Court in disciplinary proceedings pursuant to § 10 paragraph 3

in fine of Act No. 7/2002 Coll. on Proceedings Concerning Judges and

Public Prosecutors in the wording valid until 30 September 2008, as

follows:

I. The body competent to decide on the exclusion

of JUDr. Jiří Pácal, the Chairman of the Disciplinary Senate of the

Supreme Court, from hearing and adjudicating a disciplinary case

concerning Judge JUDr. Pavel Kučera, the Deputy Chief Justice of the

Supreme Court, (file No. 1 Skno 20/2008), is the Chairperson of the

Collegium of the Supreme Court appointed to substitute for the Chief

Justice of the Supreme Court by the Standing Order and the Work Schedule

of the Supreme Court.

II. The resolution of the Disciplinary

Senate of the Supreme Court dated 4 March 2009, file No. 1 Skno 20/2008,

on not excluding JUDr. Jiří Pácal, Chairman of the Disciplinary Senate

of the Supreme Court, from hearing and adjudicating a case administered

by the Supreme Court under file No. 1 Skno 20/2008, and the decision of

the Disciplinary Senate of the Supreme Court dated 4 March 2009, file

No. 1 Skno 20/2008, on withdrawing the case of Judge JUDr. Pavel Kučera,

charged within disciplinary proceedings, administered by the High Court

in Olomouc under file No. 1 Ds 2/2008, and assigning the same to the

High Court in Prague, shall be annulled.



REASONING


I.
Specification of the case and recapitulation of the petition


On

4 May 2009, the Constitutional Court received a petition from the Chief

Justice of the Supreme Court for declaring the competence of the Chief

Justice of the Supreme Court to issue a decision on excluding a judge of

the Supreme Court in disciplinary proceedings pursuant to § 10

paragraph 3 in fine of Act No. 7/2002 Coll. on Proceedings Concerning

Judges and Public Prosecutors in the wording valid until 30 September

2008, and petitions related thereto for annulment of the decision of the

Supreme Court dated 4 March 2009, file No. 1 Skno 20/2008, on JUDr.

Jiří Pácal, Chairman of the Disciplinary Senate of the Supreme Court,

not being excluded from hearing and adjudicating the case administered

by the Supreme Court under file No. 1 Skno 20/2008, and for annulment of

the decision of the Supreme Court dated 4 March 2009, file No. 1 Skno

20/2008, on withdrawing the case of Judge JUDr. Pavel Kučera, charged

within disciplinary proceedings, administered by the High Court in

Olomouc under file No. 1 Ds 2/2008, and assigning the same to the High

Court in Prague. In connection with the petitions in question, the

petitioner filed a petition for a decision on the urgency of the case

pursuant to § 39 of Act No. 182/1993 Coll. and for a decision in plenum

in accordance with Article 1 paragraph 1, clause a) of the

Constitutional Court Notice published under No. 185/2008 Coll.

On

4 March 2009, the Disciplinary Senate of the Supreme Court, composed of

JUDr. Jiří Pácal as the Chairman, and JUDr. Karel Podolka, JUDr.

Antonín Draštík, JUDr. Petr Gemmel and JUDr. Ivana Zlatohlávková as

members, decided in the above-specified case, file No. 1 Skno 20/2008,

that JUDr. Jiří Pácal, Chairman of the Disciplinary Senate of the

Supreme Court, was not to be excluded from hearing and adjudicating a

disciplinary case concerning Judge JUDr. Pavel Kučera, the Deputy Chief

Justice of the Supreme Court; and furthermore, on the same date, decided

that said disciplinary case be withdrawn from the High Court in Olomouc

and assigned to the High Court in Prague. According to the criticism

contained in the petition, they decided so despite the fact that the

Chief Justice of the Supreme Court, in a memorandum dated 20 February

2009 and delivered on 26 February 2009 to the Chairman of the

Disciplinary Senate, JUDr. Jiří Pácal, and thereafter in another

memorandum dated 3 March 2009, delivered to all members of the

Disciplinary Senate (on 4 March 2009 repeatedly to JUDr. Jiří Pácal, on 4

March to JUDr. Karel Podolka, on 3 March 2009 to JUDr. Antonín Draštík,

on 3 March 2009 to JUDr. Petr Gemmel, and on 3 March 2009 to JUDr.

Ivana Zlatohlávková), pointed out her own jurisdiction to decide on the

exclusion of JUDr. Jiří Pácal pursuant to § 10 paragraph 3 in fine of

Act No. 7/2002 Coll. in the wording valid until 30 September 2008.

The

petitioner reprehends the Disciplinary Senate for incorrectly applying §

25 of Act No. 7/2002 Coll. in the wording valid at the decisive period

of time, since the given statutory provisions establish the subsidiary

validity of the Criminal Procedure Code for regulation of disciplinary

proceedings, unless Act No. 7/2002 Coll. provides otherwise, which is

actually the case in the given matter, which is covered by the explicit

regulation of § 10 paragraph 3 in fine of Act No. 7/2002 Coll. in the

wording valid until 30 September 2008. In the petitioner’s opinion, the

given case does not concern decision making on the objection of bias,

but rather decision making on self-exclusion of a judge. She points out

the fact that the difference between a situation in which self-exclusion

of a judge is concerned and another concerning an objection of bias

raised by a party to the proceedings is seen not only by Act No. 7/2002

Coll. but also by the Code of Administrative Justice in the provisions

of § 8 paragraph 3 and § 8 paragraph 5, as well as the Civil Procedure

Code in the provisions of § 14 and § 15 paragraph 2, and in the

provisions of § 15a paragraph 1. In all these cases of self-exclusion it

is the actual chairperson of the court who appoints another judge or

another panel. The petitioner, in support of the above-specified

argumentation, refers to the procedure of JUDr. Jaroslav Holubec,

Chairman of the High Court in Olomouc, and JUDr. Vladimír Stibořík,

Chairman of the High Court in Prague, who also did not apply the

provisions of § 25 of Act No. 7/2002 Coll. in the wording valid at the

decisive period of time, but applied § 10 paragraph 3 of the same Act,

this when they made decisions on the exclusion of judges in a

disciplinary case concerning JUDr. Pavel Kučera, the Deputy Chief

Justice of the Supreme Court – the former on excluding JUDr. Ivo Kouřil,

the latter on excluding JUDr. Ludmila Říhová and JUDr. Romana

Vostrejšková. When evaluating the jurisdiction of Chairpersons of High

Courts and the Chief Justice of the Supreme Court, it is, according to

the petitioner, not possible to proceed “from the contingency of who is a

party to the proceedings in specific disciplinary proceedings”.

The

inappropriateness of applying § 25 of Act No. 7/2002 Coll. in the

wording valid at the decisive period of time, thus also § 31 of the

Criminal Procedure Code, is seen by the petitioner additionally in the

fact that a remedy is permitted against a decision on exclusion pursuant

to § 31 paragraph 2 of the Criminal Procedure Code, while no remedy is

permitted in disciplinary proceedings. The petition also rejects the

argumentation of the Disciplinary Senate of the Supreme Court referring

to the fact that a chairperson of the court making a decision on

exclusion is at the same time a party to the disciplinary proceedings,

since exclusively the chairpersons of courts (with the exception of the

Minister of Justice) are, pursuant to § 8 of Act No. 7/2002 Coll.,

petitioners in disciplinary proceedings, which means that should the

fact that a chairperson of the court is also a party to disciplinary

proceedings have been relevant, it would also have to be reflected in

regulation concerning the provisions of § 10 paragraph 3 of the

above-specified Act. Moreover, the petition points out that the

provisions of § 10 paragraph 3 of Act No. 7/2002 Coll. in the wording

valid at the decisive period of time, leave no room for discretion by

the chairperson of the court and at the same time determine which judge

succeeds in place of the judge excluded.

The petitioner believes

that the decision of the Disciplinary Senate also contains an element of

arbitrariness. She states that in the proceedings on the first petition

for delegation of the case of disciplinary proceedings against JUDr.

Pavel Kučera, the Deputy Chief Justice of the Supreme Court, (file No. 1

Skno 7/2008), JUDr. Jiří Pácal, through procedure pursuant to § 10

paragraph 3, first sentence of Act No. 7/2002 Coll., initiated, by a

memorandum dated 23 April 2008, a decision of the Chief Justice on

exclusion pursuant to the same provisions in fine by saying: “I wish to

inform you that my long-term friendship with JUDr. Pavel Kučera may

raise misgivings concerning my being biased in his disciplinary case

and, therefore, I suggest procedure pursuant to § 10 paragraph 3, third

sentence of Act No. 7/2002 Coll., as amended by later regulations”. By

the decision of the Chief Justice of the Supreme Court dated 2 May 2008,

file No. 1 Skno 7/2008, Judge JUDr. Jiří Pácal was, for the above-given

reasons, excluded from hearing and adjudicating the case in question.

Therefore, the petitioner considers as inconsistent, without revocation

of his subjective attitude, the different procedure adopted by JUDr.

Jiří Pácal in other disciplinary proceedings against JUDr. Pavel Kučera,

the Deputy Chief Justice of the Supreme Court, this by deciding on

Judge Pácal not being excluded from the proceedings in question, as well

as by deciding on delegation, when both these decisions were adopted by

the Disciplinary Senate of the Supreme Court under his chairmanship.

The Chief Justice of the Supreme Court criticises the decision on

delegation because the same is supported by casting doubts on JUDr. Ivo

Kouřil, a judge of the High Court in Olomouc, who, having been excluded,

could not adjudicate the disciplinary case, and completely ignores the

independency and impartiality of lawful judges of the Disciplinary

Senate of the High Court in Olomouc, who themselves did not give any

report on circumstances for which they could be excluded pursuant to the

provisions of § 10 paragraph 3, first sentence of Act No. 7/2002 Coll.

in the wording valid at the given period of time, wherefore no reason

exists for concluding the necessity to withdraw the case from the High

Court in Olomouc.
For all these outlined reasons, the petitioner

believes that a decision on self-exclusion of a judge – a member of a

disciplinary panel – falls under the jurisdiction of the chairperson of

the court, this including also the Supreme Court, and not under the

jurisdiction of the disciplinary panel.

From the viewpoint of

complying with conditions for active standing in a dispute over the

scope of jurisdictions, the petitioner states, with reference to

Judgment of the Constitutional Court file No. Pl. ÚS 17/06, that as the

Chief Justice of the Supreme Court she is a representative of judicial

power, being, according to Article 92 of the Constitution, the head of a

paramount body of judicial power, may not be considered a court as

specified by Article 90 and Article 91 of the Constitution, and further

states that the petition is admissible since there is no shared superior

authority entitled to resolve the conflict of jurisdictions between the

Chief Justice of the Supreme Court and the Senate of the same court.

Furthermore, she refers to the importance of the given case and points

out that the subject of the disciplinary proceedings consists of the

conduct of JUDr. Pavel Kučera, the Deputy Chief Justice of the Supreme

Court, in connection with criminal proceedings administered against the

former Deputy Prime Minister, Jiří Čunek.

The petitioner

requested that her petition be adjudicated by the Plenum of the

Constitutional Court [Article 1 paragraph 1, clause a) of the

Constitutional Court Notice, published under No. 185/2008 Coll.];

additionally, the petitioner requested that a decision be adopted in

preference to other petitions received before it for reasons of urgency

(§ 39 of Act No. 182/1993 Coll.). With reference to the provisions of §

63 of Act No. 182/1993 Coll., under adequate application of § 243b

paragraph 3, the second sentence of the Civil Procedure Code, and with

respect to the settled case law of the Constitutional Court, annulling –

within the scope of proceedings on a constitutional complaint against

the ultimate means of protection of rights – all decisions that have

their basis in a decision of a court of the first level, the Chief

Justice of the Supreme Court proposes to annul the related decision of

the Supreme Court on delegation, since non-compliance with the

jurisdiction of the Chief Justice of the Supreme Court has resulted in

the subsequent actual decision on delegation of the disciplinary case to

the High Court in Prague.


II.
Recapitulation of substantial sections of the statement by the party to the proceedings


Pursuant

to § 42 paragraph 4 and § 121 of Act No. 182/1993 Coll. on the

Constitutional Court, as amended by later regulations, the

Constitutional Court sent the petition in question to the Supreme Court.

JUDr. Jiří Pácal, Chairman of the Disciplinary Senate of the Supreme

Court, in his statement delivered to the Constitutional Court on 28 May

2009, detailed that the dispute in the given case is not over the scope

of jurisdictions, but rather over decision making on excluding the

Chairman of the Senate in disciplinary proceedings before the Supreme

Court, i.e. resolving a procedural issue in disciplinary proceedings,

wherefore he proposed that the petitions by the Chief Justice of the

Supreme Court be rejected as inadmissible pursuant to § 43 paragraph 1,

clause e) of Act No. 182/1993 Coll., as amended by later regulations.

The party to the proceedings further referred to the reasoning of the

resolution of the Supreme Court dated 4 March 2009, file No. 1 Skno

20/2008, and moreover accentuated that the Chief Justice of the Supreme

Court as a petitioner in the disciplinary proceedings, i.e. as a party

to the same, cannot decide on exclusion of the Chairman of the

Disciplinary Senate, this due to contradiction with Article 38 paragraph

1 of the Charter of Fundamental Rights and Basic Freedoms. This

circumstance was accepted by JUDr. Iva Brožová in disciplinary

proceedings administered under file No. 1 Skno 1/2007 against JUDr. Z.

S., a judge of the Supreme Court, when she delegated the decision making

on exclusion of the Chairman of the Disciplinary Senate to the Deputy

Chief Justice of the Supreme Court pursuant to Article 26 paragraph 1 of

the Standing Order of the Supreme Court. According to the Chairman of

the Disciplinary Senate of the Supreme Court, however, such procedure in

the given case is not possible; likewise, it is not possible to

authorise, pursuant to § 29 of the Standing Order of the Supreme Court,

the Chairperson of the Collegium of the Supreme Court to make such a

decision, as the Chairperson of the Collegium of the Supreme Court

deputises for the Chief Justice and the Deputy Chief Justice of the

Supreme Court only in their absence with the exception of their powers

reserved by the Act on Judges and Courts; in his opinion, the Act on

Disciplinary Proceedings of Judges may be interpreted analogously. Thus

the Disciplinary Senate of the Supreme Court had only one option left,

which was to apply § 25 of Act No. 7/2002 Coll. in the wording effective

until 30 September 2008, as well as § 31 of the Criminal Procedure

Code.

For the reasons specified above, the party to the

proceedings proposes that the petitions filed be rejected pursuant to §

43 paragraph 1, clause e) of Act No. 182/1993 Coll., as amended by later

regulations, and possibly pursuant to § 43 paragraph 2, clause a) of

the same Act.


III.
Dispensation of an oral hearing


According

to the provisions of § 44 paragraph 2 of Act No. 182/1993 Coll., as

amended by later regulations, the Constitutional Court may, upon consent

by the parties concerned, dispense with an oral hearing if further

clarification of the matter cannot be expected from said hearing. With

respect to the fact that both the petitioner (by not responding within

the term specified to a notice from the Constitutional Court containing

an explicit note concerning the presumption of consent) and the party to

the proceedings (explicitly in a memorandum delivered to the

Constitutional Court on 20 July 2009) expressed their consent with

dispensation of an oral hearing, and, with respect to the fact that the

Constitutional Court deems that further clarification of the matter

cannot be expected from such a hearing, the same was dispensed with in

respect of the given case.


IV.
Conditions for active standing of the petitioner


The

petition for commencement of proceedings in the case of a dispute over

the scope of jurisdictions of state bodies was filed by the Chief

Justice of the Supreme Court pursuant to the provisions of § 120

paragraph 2, clause a) of Act No. 182/1993 Coll. In Judgment file No.

Pl. ÚS 17/06, the Constitutional Court acknowledged the active standing

of the Chief Justice of the Supreme Court in the given type of

proceedings: “From the viewpoint of legal theory, the Chief Justice of

the Supreme Court is a body of another body – the Supreme Court.

However, this does not affect the fact that the Chief Justice of the

Supreme Court has, within the confines of their exclusive authorities…

also the exclusive authority to file a petition for settling a

jurisdictional dispute, if they believe that the same has arisen, for

example, by actually ignoring authorities granted to them by law. For

the jurisdictions so granted are not bestowed on the Supreme Court, but

solely on the Chief Justice of the Supreme Court (cf. Weyr, F.: Teorie

práva / Theory of Law, Brno-Prague, Orbis, 1936, p. 117). If certain

authorities are granted exclusively to the Chief Justice of the Supreme

Court, then the Chief Justice of the Supreme Court must also be

permitted the necessary discretion to enforce such authorities and

protect the same by legal proceedings, independently of the standpoint

of other bodies. Thus it may be stated that the Chief Justice of the

Supreme Court is a state body competent of raising a petition according

to Article 87 paragraph 1, clause k) of the Constitution, or the

provisions of § 120 et seq. of the Act on the Constitutional Court.”

The

Federal Constitutional Court of the Federal Republic of Germany, in

accordance with the statutory arrangement, interprets the term of a body

in proceedings in a case of a dispute over the scope of jurisdictions

by granting active standing in the same not only to the “body” but also

to parts of the same, if such parts have their own jurisdictions

(establishing a special designation for such a part of the state body:

“Teilorgan”). An example consists of the acceptance of active standing

of parliamentary factions in the Federal Bundestag (see BVerfGE 2, 143

(165); 45, 1 (28); 90, 286 (336); 100, 266 (268); 103, 81 (86); 104, 151

(193); 105, 197 (220); 113, 113 (121), BVerfG, 2 BvE 1/07 dated 12

March 2007, K. Schleich, Das Bundesverfassungsgericht. Stellung,

Verfahren, Entscheidungen. 2. Aufl., C. H. Beck, Munich 1991, p. 56 et

seq.).

The legal arrangement of a dispute over the scope of

jurisdictions between state bodies and self-governing bodies valid in

the Czech Republic, however, does not acknowledge the term “included

body”. Therefore, the Constitutional Court of the Czech Republic, in

Judgment file No. Pl. ÚS 17/06 quoted above, defined the term “state

body” (or “self-governing body”) solely and exclusively according to the

category of attributability, in other words according to whether power

is granted by law to a certain person or a group of persons, such power

being the capacity to act on behalf of the state authoritatively and

with legal relevance (i.e. with legal consequences for other entities),

in the field of public-law relationships. From the viewpoint of the so

defined term of “state (self-governing) body”, the same person (a group

of persons) in a certain role may be an included state (self-governing)

body, but in another role the same may acquire the nature of a peculiar

state (self-governing) body. A contrary process, by reductione ad

absurdum argument, would, in consequence, lead to denial of justice and

violation of the principle of forbiddance of denegationis iustitiae, and

thus also the principle of a law-based state (Article 1 paragraph 1 of

the Constitution). Actually, the same would result, in the case of a

negative dispute over the scope of jurisdictions of “included state

(self-governing) bodies”, in the absence of a process which would ensure

further procedure of decision making in the given case.

According

to the declaration of the petitioner, the provisions of § 10 paragraph

3, the third sentence of Act No. 7/2002 Coll. in the wording valid until

30 September 2008, the jurisdiction to make decisions on each case of

exclusion of a member (chairperson) of the Disciplinary Senate of the

Supreme Court was her prerogative, i.e. belonged to the Chief Justice of

the Supreme Court. By contrast, according to the opinion of the

Disciplinary Senate of the Supreme Court (expressed firstly in their

decision dated 4 March 2009, file No. 1 Skno 20/2008, and also in the

statement of their Chairman, delivered to the Constitutional Court on 28

May 2009), under circumstances which occurred in the case under

consideration according to § 25 of Act No. 7/2002 Coll. in the wording

valid until 30 September 2008, in connection with § 31 of the Criminal

Procedure Code, this jurisdiction comes under the Disciplinary Senate of

the Supreme Court.

From a judicial point of view (see, for

example, Judgment of the Constitutional Court file No. Pl. ÚS 17/06) as

well as doctrinal one, the case in question concerns a positive

jurisdictional dispute between two state bodies which claim the

exclusive jurisdiction to make a decision in the same case.

For

the reasons above, as results from the description of the dispute

according to the proposed verdict of the petition as well as settled

standpoints resulting from the case law of the Constitutional Court

covering Article 87 paragraph 1, clause k) of the Constitution and § 120

paragraph 2, clause a) of Act No. 182/1993 Coll., it may be stated that

on the part of the petitioner, conditions for active standing in the

proceedings on disputes over the scope of jurisdictions of state bodies

have been met.


V.
Admissibility of the petition


In

Judgment file No. III. ÚS 429/2000, the Constitutional Court stated

that “the purpose of proceedings on disputes over the scope of

jurisdictions of state bodies and bodies of a self-governing region in

accordance with § 120 et seq. of Act No. 182/1993 Coll., as amended by

later regulations, does not consist of an abstract interpretation of the

Constitution (‘frame of government’) or ordinary law, but rather of

making a decision in such a dispute merely within the context of a

specific matter in which the given dispute occurred, this after

enforcing the disputed jurisdiction either by issuing a decision on the

merits of the case, or by rejecting their own competence (similarly see

the decision of the Constitutional Court in case file No. Pl. ÚS

58/2000)”. Such a premise is analogous to that which the Constitutional

Court repeatedly declared in proceedings on a specific norm control

(file Nos. Pl. ÚS 33/2000, Pl. ÚS 42/03, Pl. ÚS 38/06), according to

which if a judge of an ordinary court concludes that an act which is to

be used to solve a case (i.e. not only an act valid at the given time,

but also an act no longer valid at the given time, yet still applicable)

is in contravention of a constitutional act, such a judge shall be

obliged to submit the case to the Constitutional Court (Article 95

paragraph 2 of the Constitution), and refusal to aid the ordinary court

via a decision by the Constitutional Court on the constitutionality or

otherwise of the applicable act was considered by the Constitutional

Court as a reason for origination of an inextricable situation of an

artificial legal vacuum (Article 83 and Article 95 paragraph 1 and

paragraph 2 of the Constitution).

Therefore, it may be concluded

that the purposes of proceedings on disputes over the scope of

jurisdictions must also include cases in which the normative framework

is based on a legal arrangement no longer valid at the time of the

petition. This is true under the precondition that the consequences of a

jurisdictional dispute apply to proceedings which have not been

completed with legally effective decisions, i.e. when the argument of

legal certainty and protection of rights of third parties does not

oppose the handling of the conflict of jurisdictions.

Moreover,

the Act on the Constitutional Court specifies no deadline for filing

such a petition that necessarily reflects a decision which has been

already issued (as specified by § 125). The Constitutional Court has not

inferred any such deadline in their hitherto case law, not even by

possible procedural analogy (such as to § 72 paragraph 2 of the Act on

the Constitutional Court), or from the nature of the matter (for

example, by a requirement for immediate filing of the petition). First

of all, this creates inequality within the legal order, when in civil

proceedings a term of three months from the delivery of the given

decision (§ 234 paragraph 1 of the Civil Procedure Code) is determined

for filing an action to declare mistrial due to a decision having been

adopted that does not pertain to the powers of courts (§ 229 paragraph

1, clause a) of the Civil Procedure Code), while in criminal

proceedings, the possibility of filing a complaint on a violation of the

law to the detriment of the defendant is limited to the term of six

months from the date on which the contested decision becomes legally

effective (§ 272 of the Criminal Procedure Code). Non-existence of a

term for filing a petition in proceedings on disputes over the scope of

jurisdictions related to a previously issued disputed decision

establishes uncertainty in legal relationships, the associated risks of

which are, to a decisive degree, not borne by entities involved in the

jurisdictional dispute but natural persons and legal entities, the

rights of which were being decided upon. On the basis of the

above-outlined reasons, it may be considered justified to require that a

petition in the given cases be filed without undue delay.

Since

the petition in question meets such defined conditions, there is no

reason to deny such a petition on the grounds of lack of jurisdiction [§

43 paragraph 1, clause d) of Act No. 182/1993 Coll., as amended by

later regulations] or on the grounds of late submission [§ 43 paragraph

1, clause b) of Act No. 182/1993 Coll., as amended by later

regulations], and finally, with respect to the fact that no other body

pursuant to a special act or shared superior authority is competent to

decide on the given jurisdictional dispute, there is no reason to reject

the petition for inadmissibility [§ 43 paragraph 1, clause e) in

connection with § 122 of Act No. 182/1993 Coll., as amended by later

regulations].


VI.
Ratio decidendi


The

petitioner supports the jurisdiction she claims with the provisions of §

10 paragraph 3, the third sentence of Act No. 7/2002 Coll. in the

wording valid until 30 September 2008, according to which: “Should the

chairperson of a court rule that there are grounds for excluding a

member of a panel, the chairperson shall select in the stead of the

chairperson of the panel a deputy of such a person, and in the case of a

member of the panel, the chairperson shall determine, for such a

position, the first judge on the list of substitutes, or determine

another associate judge by drawing lots.”

The party to the

proceedings then, in the instance that the chairperson of the court is

the petitioner in the disciplinary proceedings and the deputy

chairperson of the court is the judge against whom the disciplinary

proceedings are administered, exercises the jurisdiction to make a

decision on exclusion of a judge (chairperson) of the disciplinary panel

according to § 25 of Act No. 7/2002 Coll. in the wording valid until 30

September 2008 (“Unless this Act provides otherwise or unless the

nature of the matter suggests something else, disciplinary proceedings

shall adequately employ the provisions of the Criminal Procedure Code.”)

in connection with § 31 of the Criminal Procedure Code (in accordance

with paragraph 1 of which “exclusion of a judge or an associate judge

when they adjudicate in a panel shall be decided upon by that panel”).

The

provisions of § 25 of Act No. 7/2002 Coll. have adopted literally the

wording of the provisions of § 24 of Act No. 412/1991 Coll. on the

Disciplinary Responsibility of Judges. Adequate application of the

Criminal Procedure Code to the disciplinary proceedings of judges is

preconditioned by an absence of an explicit arrangement in Act No.

7/2002 Coll. on Proceedings Concerning Judges and Public Prosecutors, or

by a different conclusion as suggested by the nature of the matter. In

other words, an explicit arrangement negates application of the Criminal

Procedure Code and equally, application of the Criminal Procedure Code

is impossible in cases when an explicit arrangement is lacking, but the

nature of the matter suggests “something else”, that means the

impossibility of adequate application of the Criminal Procedure Code is

suggested. The statutory provisions in question thus determine the

following application sequence: an explicit arrangement; in the absence

of the same, the Criminal Procedure Code; and in the case of cumulation

of both absence of an explicit arrangement and the impossibility of

applying the Criminal Procedure Code suggested by the nature of the

matter, the judicial formation of law, consisting of filling “a genuine

gap in law”.

The party to the proceedings in a decision dated 4

March 2009, file No. 1 Skno 20/2008, in spite of an explicit arrangement

(contained in § 10 paragraph 3, the third sentence of Act No. 7/2002

Coll. in the wording valid until 30 September 2008), proceeded pursuant

to § 25 of Act No. 7/2002 Coll. in the wording valid until 30 September

2008, in connection with § 31 of the Criminal Procedure Code, and thus

adjudicated contra legem.

In a number of judgments, the

Constitutional Court addressed the issue of conditions under which

interpretation and application contra legem may be accepted. In Judgment

file No. Pl. ÚS 21/96, in this connection, the Constitutional Court

stated: “In this, the court is not absolutely bound by verbatim wording

of the statutory provisions; to the contrary, the court may and must

deviate from the same in situations when the same is required for

serious reasons by the purpose of the act, history of origination of the

same, systematic nexus or any of the principles which are based in a

constitutionally conformable legal order as a meaningful whole. In

relation to this it is necessary to eschew arbitrariness; a decision of

the court must be based on rational argumentation.” A similar conclusion

was also reached in cases of tension between literal and teleological

interpretation (file No. III. ÚS 258/03).

In the case under

consideration, literal interpretation, and application of § 10 paragraph

3, the third sentence of Act No. 7/2002 Coll. in the wording valid

until 30 September 2008 resulting from the same, would be of such

consequence that the same entity as is a party to the proceedings would

decide on exclusion of a judge.

Such literal interpretation and

application would result in affecting the principle of independency and

impartiality of judicial decision making (as specified by Article 81 et

seq. of the Constitution, as well as by Article 36 paragraph 1 of the

Charter), since the judicial body (chairperson of the court) would make a

decision on the bias of a judge in proceedings to which such a body is a

party. The above reason must be considered acceptable for employing

procedure contra legem. The above-outlined algorithm of application of §

25 of Act No. 7/2002 Coll. suggests the necessity to address the issue

of whether “something else” is suggested by the nature of the matter

with respect to the case under consideration, which makes adequate

application of the Criminal Procedure Code impossible.

In

Judgment file No. III. ÚS 182/99, the Constitutional Court addressed the

issue of application of § 31 paragraph 1 of the Criminal Procedure

Code, and concluded that the procedure established therein may be

considered as constitutionally conformal only under the condition of a

review by a superior court: pursuant to § 31 paragraph 1 of the Criminal

Procedure Code, exclusion for reason of bias in criminal proceedings

shall be decided upon by a body which is affected by these reasons;

exclusion of a judge or associate judge, if they adjudicate in a panel,

shall be decided upon by such a panel. Accepting the interpretation of §

141 paragraph 2 of the Criminal Procedure Code, which, in the case of

objection of bias of a judge of an appellate instance, would bar a

review by a superior court, would result in the condition that in such a

case the body concerned would be in charge of making the decision, in

other words, in proceedings on exclusion for the reason of bias, a

‘party to the proceedings’. Such a construct would create conflict with

the elementary procedural principle, according to which no-one can be a

judge in their own case, this being a principle which is a component of

the fundamental right to claim one’s rights at an independent and

impartial court in accordance with Article 36 paragraph 1 of the

Charter.

In other words, the mechanism contained in § 31 of the

Criminal Procedure Code, which would not be amended with a guarantee of

independent and impartial judicial review, was designated by the

Constitutional Court to be in conflict with Article 36 paragraph 1 of

the Charter, as well as with Article 81 et seq. of the Constitution.

On

the basis of the proposition detailed above, the only conclusion that

can be reached is that the procedure of the Disciplinary Senate of the

Supreme Court in the case under consideration was in contravention of

the provisions of § 10 paragraph 3, the third sentence, as well as of §

25 of Act No. 7/2002 Coll. in the wording valid until 30 September 2008,

and thus – without any other substantiation being necessary – the

Disciplinary Senate of the Supreme Court was not competent to issue a

decision on excluding a judge of the Supreme Court in disciplinary

proceedings.

As stated earlier, § 25 of Act No. 7/2002 Coll.

suggests that in the case of cumulation of the absence of an explicit

arrangement and the impossibility of applying the Criminal Procedure

Code resulting from the nature of the matter, judicial formation of law,

consisting of filling “a genuine gap in law”, must be employed.

If

similar reasons which prevent the Chief Justice from executing

jurisdiction pursuant to § 10 paragraph 3, the third sentence of Act No.

7/2002 Coll. in the wording valid until 30 September 2008 are valid in

the case in question due to the impossibility of transferring the

above-specified jurisdiction from the Chief Justice to the Deputy Chief

Justice of the Supreme Court, it is necessary to determine a relevant

judicial body that could fully adhere to the requirements resulting from

Article 36 paragraph 1 of the Charter and Article 81 et seq. of the

Constitution. According to Article 29 of the Standing Order of the

Supreme Court, in the absence of the Chief Justice and the Deputy Chief

Justice of the Supreme Court, the Chief Justice of the Supreme Court is

substituted for by a Chairperson of the Collegium authorised by the

Chief Justice; such a Chairperson, however, is not entitled to exercise

the powers reserved by the Act on Courts and Judges exclusively for the

Chief Justice and, in the absence of the Chief Justice, to the Deputy

Chief Justice of the Supreme Court. Since the powers that would be in

contravention of the provisions above of the constitutional order cannot

be considered to be such, such a body shall be the Chairperson of the

Collegium as authorised, by a general rule, to substitute for the Chief

Justice of the Supreme Court in the absence of the Chief Justice and the

Deputy Chief Justice of the Supreme Court (by their Work Schedule).

On

the basis of the reasons so explained, the Plenum of the Constitutional

Court adjudicated the petition of the Chief Justice of the Supreme

Court in a dispute over the scope of jurisdictions of state bodies

[Article 87 paragraph 1, clause k) of the Constitution, § 120 et seq. of

Act No. 182/1993 Coll. on the Constitutional Court, as amended by later

regulations] for determining a body competent to issue a decision on

excluding a judge of the Supreme Court in disciplinary proceedings

pursuant to § 10 paragraph 3 in fine of Act No. 7/2002 Coll. on

Proceedings Concerning Judges and Public Prosecutors in the wording

valid until 30 September 2008, in such a way that the body competent to

make a decision on excluding the Chairman of the Disciplinary Senate of

the Supreme Court, JUDr. Jiří Pácal, from hearing and adjudicating the

disciplinary case of Judge JUDr. Pavel Kučera, the Deputy Chief Justice

of the Supreme Court, (file No. 1 Skno 20/2008), is the Chairperson of

the Collegium of the Supreme Court designated to substitute for the

Chief Justice of the Supreme Court by the Standing Order and the Work

Schedule of the Supreme Court.


VII.
Cassational consequences of the Judgment


A

consequence of adopting a verdict of the Judgment in accordance with §

124 paragraph 1 of Act No. 182/1993 Coll. consists, as specified by §

125 paragraph 1 of Act No. 182/1993 Coll., of annulling the resolution

of the Supreme Court dated 4 March 2009, file No. 1 Skno 20/2008,

concerning the fact that JUDr. Jiří Pácal, Chairman of the Disciplinary

Senate of the Supreme Court, is not excluded from hearing and

adjudicating the case administered by the Supreme Court under file No. 1

Skno 20/2008.

In Judgment file No. III. ÚS 188/99, the

Constitutional Court stated that according to the marginal heading of §

63 of Act No. 182/1993 Coll., the application of procedural orders is

anticipated in proceedings before the Constitutional Court, while the

wording itself of the above-specified provisions refers only to the

Civil Procedure Code and regulations issued for the implementation

thereof. The above-specified contradiction between the plural contained

in the marginal heading and the specific reference in the wording of the

norm must be interpreted in such a sense that unless the Act on the

Constitutional Court provides otherwise, the provisions of the Civil

Procedure Code and regulations issued for the implementation of the same

shall be adequately applied to the proceedings before the

Constitutional Court, unless adequate application of solely the Criminal

Procedure Code relates, from the nature of the matter, to the given

procedural situation.

If the cassational judgment annuls a

legally effective decision of a body of public power, to which other

decisions are related in terms of contents, and unless a situation is to

be created by the same when legal conditions are not met for adopting

such decisions as a result of cassation, the Constitutional Court shall,

at the same time, annul such other decisions related in terms of

contents to the annulled decision or an annulled part of the same, if

the same, with respect to the modification which took place by such

annulment, has lost its basis. In relation to the same, the

Constitutional Court proceeds, in connection with the above-specified

legal opinion declared in Judgment file No. III. ÚS 188/99, from the

provisions of § 63 of Act No. 182/1993 Coll. in connection with the

provisions of § 265k paragraph 2 and § 269 paragraph 2 of the Criminal

Procedure Code.

Due to the above, the Constitutional Court also

annulled the resolution of the Supreme Court dated 4 March 2009, file

No. 1 Skno 20/2008, concerning the fact that JUDr. Jiří Pácal, Chairman

of the Disciplinary Senate of the Supreme Court, is not excluded from

hearing and adjudicating the case administered by the Supreme Court

under file No. 1 Skno 20/2008, as well as the related decision of the

Supreme Court dated 4 March 2009, file No. 1 Skno 20/2008, on

withdrawing the case of Judge JUDr. Pavel Kučera, charged within

disciplinary proceedings, administered by the High Court in Olomouc

under file No. 1 Ds 2/2008, and assigning the same to the High Court in

Prague.

With respect to the immediate hearing and adjudication

of the case in question, the Constitutional Court deems the decision on

the urgency of the case pursuant to § 39 of Act No. 182/1993 Coll. to be

unfounded.

Note: Decisions of the Constitutional Court cannot be appealed.

In Brno on 28 July 2009




Dissenting opinion of Justices Pavel Rychetský and Jan Musil

The

dissenting opinion which, pursuant to § 14 of Act No. 182/1993 Coll. on

the Constitutional Court, as amended by later regulations, we express,

is aimed against the Judgment whereby a decision was taken on the scope

of jurisdictions in the dispute between the Chief Justice of the Supreme

Court and the Disciplinary Senate of the same court over determining

which body of the Supreme Court was competent to make a decision on

possibly excluding JUDr. Pácal, Chairman of the Disciplinary Senate of

the Supreme Court, due to bias in proceedings on the petition by JUDr.

Kučera, the Deputy Chief Justice of the Supreme Court charged within

disciplinary proceedings, for withdrawal of the disciplinary proceedings

from the High Court in Olomouc and for assignment of the same to the

High Court in Prague. In the given case, the Chief Justice of the

Supreme Court, who acts at the same time as a disciplinary plaintiff,

proposed the annulment of the resolution of the Disciplinary Senate

concerning the fact that its Chairman is not excluded from hearing the

petition for delegating the disciplinary proceedings, and the subsequent

resolution of the same Senate, whereby the petition for delegation was

granted, given that, in the first case, the jurisdiction of the

Disciplinary Senate did not cover issuing such a decision, and in the

second, “a residual decision” was concerned, that is one directly based

on a decision issued by a non-competent body. The petitioner supports

her active standing with the provisions of § 10 paragraph 3 in fine of

Act No. 7/2002 Coll. in the wording valid until 30 September 2008.

We

believe that the petition should have been rejected pursuant to § 43

paragraph 1, clauses c) and d) of the Act on the Constitutional Court.

Our disapproval of the Judgment is supported by the conclusion that, in

the given case, the basic condition for the proceedings pursuant to

Article 87 paragraph 1, clause k) of the Constitution and § 120 of the

Act on the Constitutional Court has not been fulfilled. According to the

above-quoted provisions, the Constitutional Court makes decisions

concerning disputes of state bodies over the scope of their

jurisdictions. In the given case, the petition by the Chief Justice of

the Supreme Court contested two decisions of the Disciplinary Senate of

the Supreme Court – decision file No. 1 Skno 20/2008 on the fact that

JUDr. Jiří Pácal, its Chairman, is not excluded from hearing and

adjudicating the disciplinary case of Judge JUDr. Pavel Kučera, charged

within disciplinary proceedings, as well as a decision with the same

file number, whereby this case was withdrawn from the agenda of the High

Court in Olomouc and assigned to the High Court in Prague. The

petitioner regarded the core of the dispute over jurisdictions being the

statement that she herself was competent to adjudicate as to possibly

excluding the Chairman of the Disciplinary Senate of the Supreme Court

from hearing the case in question, not the Senate to whose decision

making the case was assigned by decision of both Chairpersons of the

Collegia of the Supreme Court with respect to the fact that she herself

as a disciplinary plaintiff is a party to the proceedings and,

therefore, cannot adjudicate “in her own case”. The crucial issue is the

definition of the parties to the jurisdictional dispute administered

before the Constitutional Court. Pursuant to Article 87 paragraph 1,

clause k) of the Constitution and pursuant to § 120 of the Act on the

Constitutional Court, the Constitutional Court adjudicates disputes over

the scope of jurisdictions between state bodies mutually or between

state bodies and bodies of the self-governing regions. In the case under

examination, however, the action on determining jurisdiction was filed

by the Chief Justice of the Supreme Court against one of the Senates of

the same court in the form of a quasi-positive conflict of

jurisdictions. Undoubtedly, this is merely a dispute over determining

material competence for the procedural decision in proceedings taking

place within one and the same state body – the Supreme Court. Such a

body of state power to which, by the Constitution or by way of law,

execution of state power is entrusted, i.e. decision making on rights

and obligations of other entities by way of individual or generally

binding acts, must be considered a state body. In our dissenting

opinions concerning Judgment file No. Pl. ÚS 17/06 we have already

explained why we do not consider the position of the Chief Justice of

the Supreme Court to be a state body as specified by Article 87

paragraph 1, clause k) of the Constitution, but instead that of an

official authorised to execute administrative duties; besides, § 118 and

§ 119 of the Act on Judges and Courts establishes that chairpersons of

courts are authorised to execute state administration, while they “must

not interfere with the independence of the courts”. Thus they do not

stand outside the court as a specific body of state power, but are part

of such a court. Therefore, and even more so, an individual Senate of

the Supreme Court, which in accordance (or possibly in conflict) with

the valid Work Schedule and internal regulations of the court exercises

judicial activities, cannot be considered a state body. From a

constitutional viewpoint, each court (but not any internal sections of

the same) must be considered a body of state power (judicial power, in

the given case), which actually results from both Article 90 and Article

91 of the Constitution, and from the provisions of § 8 of the Act on

Judges and Courts (“The system of courts shall be formed by…. The courts

shall form accounting units.”), § 3 paragraph 1 of Act No. 219/2000

Coll. (courts shall be organisational units of the state), or, for

example, § 33 paragraph 7 (a court shall be composed of panels and

single judges). Therefore, we cannot identify ourselves with the

argumentation of the Judgment, which grants to the individual sections

of the Supreme Court the nature of a “peculiar state body” solely and

exclusively according to the category of attributability, in other words

according to whether a power is granted by law to a certain person or a

group of persons, such power being the capacity to act on behalf of the

state authoritatively and with legal relevance. Such deliberation would

then result in a situation when all disputes over competence within the

Supreme Court between the individual sections of the same (Senates,

Collegia, officials, and suchlike) would be dealt with as disputes over

the scope of jurisdictions by the Constitutional Court. The Supreme

Court represents the peak of the system of ordinary courts, to which the

Constitution and the legal order entrust exclusive jurisdiction on

behalf of the state (“in the name of the Republic”) to provide

protection of rights and decide on guilt and punishment (Article 90 of

the Constitution). The way of exercising this jurisdiction granted by

the Constitution from the level of the Supreme Court is then governed by

legal regulations (in particular, norms of procedural law and

organisational norms) and internal organisational regulations of the

Supreme Court (in particular, the Standing Order and the Work Schedule

of the same). However, in our opinion, a possible lapse in their

application, which in the given case presumably actually occurred,

cannot be solved by way of a jurisdictional dispute conducted between

the individual branches of the Supreme Court before the Constitutional

Court.



Dissenting opinion of Justice Eliška Wagnerová

1.

I disagree with the majority opinion expressed in the verdict and

reasoning of the Judgment in the given case for the following reasons.

2.

First of all I believe that the petition should have been rejected

either pursuant to § 43 paragraph 1, clause c) of the Act on the

Constitutional Court as a petition filed by a person who is clearly not

authorised for the same, or pursuant to clause e) of the same provision

as an inadmissible petition, or pursuant to clause d) of the same

provision as a petition over which the Constitutional Court has no

jurisdiction.

I. A person clearly not authorised

3. The following deliberation led to my conclusion specified above as the first option:
A

judicial decision on protection of their entitlement or jurisdiction

may only be claimed by an individual who personally represents a body

whose jurisdiction is concerned, and who may realistically exercise the

same in the given case. In other words, such a person must not be

excluded from exercising the jurisdiction of the given body for reasons

typical of bias, as anticipated by law. If statutory reasons for their

exclusion are prima facie perceptible (as in the given case), such a

person must be able to present a legally effective decision on the fact

that such a person is, nevertheless, not excluded from exercising said

jurisdiction. If such a condition is not met, then such a person cannot

be considered as a person authorised to file a petition, since in such a

way, it is the Constitutional Court who is actually called upon to

assess their exclusion from decision making on the case, which is what

actually happened in the given situation, even though assessing the bias

of the Chief Justice of the Supreme Court surely does not fall under

the jurisdiction of the Constitutional Court. A clear lack of

authorisation of the petitioner must be interpreted, in my opinion, as

also including a requirement consisting of exclusion of a circumstance

when the petitioner, by a filing provided to the Constitutional Court,

wants to solve a situation which the petitioner themself established by

their evidently erroneous conduct or omission. For this reason,

acceptance of the petition for substantive examination was mistaken.

II. Inadmissible petition

4. As for the second option above, I wish to raise the following arguments:
The

petitioner is the disciplinary plaintiff in the given case. Yet she,

through the petition for settlement of the jurisdictional dispute,

claimed for herself the entitlement to decide on possible bias on the

part of the Chairman of the Disciplinary Senate who was to decide on the

petition by the Deputy Chief Justice of the Supreme Court, the same

having been charged by the petitioner within disciplinary proceedings,

for delegation of the Deputy Chief Justice’s disciplinary case. The

petitioner has not excluded herself from the decision-making process

even though she unambiguously was obliged to do so on the basis of

adequate application of § 30 paragraph 2 in connection with § 31

paragraph 1 of the Criminal Procedure Code, as she was so commanded by

the provisions of § 25 of Act No. 7/2002, and thus she triggered the

situation when the algorithm could not be applied, such an algorithm

being anticipated by the Standing Order of the Supreme Court of the

Czech Republic in the provisions of Article 26 and Article 29, when the

latter provision anticipates that the Chief Justice and the Deputy Chief

Justice are substituted for by the Chairperson of the Collegium in

charge. Besides, the Judgment reached the solution anticipated by the

Standing Order, even though it declares that judicial formation of law

was necessary to find such a result. I cannot agree with this, as it is a

mere application of the Standing Order of the Supreme Court, in other

words an internal regulation of the Supreme Court, which is also binding

on representatives of the Supreme Court, i.e. the Chief Justice and the

Deputy Chief Justice. Besides, the judicial formation of law in the

case of determining the scope of jurisdictions (as opposed to refining

substantive law and procedural law) is very unusual, clearly problematic

from the viewpoint of constitutional law (Article 2 paragraph 2 of the

Charter surely serves also for excluding movements in the area of

jurisdictions, which could ultimately lead to distortion or factual

drift in the separation of powers) and, therefore, rather dangerous

phenomenon. The outlined algorithm, however, could not be practically

applied, since the petitioner failed to adhere to the obligation imposed

on her by law (the above-quoted provisions of the Criminal Procedure

Code) and did not request, not having done the same herself, the Deputy

Chief Justice charged within disciplinary proceedings, to employ the

same procedure. From the above it is implied that there actually was a

mechanism in place through the application of which the case would have

been solved and the action of the Constitutional Court would not have

been necessary. As it is clear that also in jurisdictional disputes it

is surely necessary to apply the principle of subsidiarity, ordering

that the Constitutional Court intervene only in such cases and as a last

resort when the matter cannot be solved before other bodies, it is

possible to conclude that the petitioner applied an inadmissible

petition. However, on the contrary, inadmissibility of the petition as

specified by § 122 of the Act on the Constitutional Court cannot be

inferred.

III. Lack of jurisdiction of the Constitutional Court

5. Possible application of the third option above is supported by the following reasoning:
The

given case cannot be assessed by the Constitutional Court at all, since

the case does not include a dispute over applying jurisdictions in such

a way as is meant by the provisions of Article 87 paragraph 1, clause

k) of the Constitution of the Czech Republic, which may be applied in

proceedings before the Constitutional Court, regulated in the ninth

division of chapter two of the second part of the Act on the

Constitutional Court (§ 120 to § 125). The purpose of the above-quoted

provisions of the Constitution is undoubtedly the protection of

separation of powers (both horizontal and vertical) in the state. In my

opinion (which is in accord with my dissenting colleagues), the

petitioner in fact claimed that a decision be issued whereby merely her

material competence would be confirmed for decision making on the bias

of the Chairman of the Disciplinary Senate, which was, in her opinion in

an unauthorised manner, arrogated by the Disciplinary Senate of the

Supreme Court. The purpose of all the provisions on determining material

jurisdiction contained in various procedural regulations, however, is

to determine, as appropriately as possible, a lawful judge who is to

effectively be a guarantee of expert, independent and impartial decision

making. It is clear from the above that the purposes of both institutes

are very different.

6. Nevertheless, the petitioner somewhat

implicitly considers the Disciplinary Senate to be a state body, though

within her petition she designates the Supreme Court as the party to the

proceedings without any closer specification; that is without, in any

detail, specifying the body against which she wishes to administer the

jurisdictional dispute. The matter may also be perceived in such a way

that the petitioner believes that the Constitutional Court has in the

past (in Judgment Pl. ÚS 17/06) confirmed that the Chief Justice of the

Supreme Court possesses the properties of a body, which are apparently

to pertain to the same in all relationships, including those with other

judicial bodies of the Supreme Court, and which thus also apparently

empower her to submit a petition against the institution of the Supreme

Court as a body, however, without clarifying who is to represent this

Court under such circumstances. The Disciplinary Senate, however, surely

has no statutory authorisation to represent the Supreme Court as a

whole, and perhaps this is why the Judgment infers that it is, in this

case, a body, even when the same was not designated by the petition,

even though the Constitutional Court asked the same for its opinion, and

dealt with the same as with a party to the proceedings, i.e. as with a

body. In the given case, however, in my opinion, the petitioner must be

seen as a judge appointed under a procedural act (§ 10 paragraph 3 of

Act No. 7/2002 Coll.), whose material competence includes assessing

issues of exclusion of judges from decision making. Therefore, this is

not a relationship in which the petitioner herself would act as a

representative of the Supreme Court, and thus as a body representing the

judiciary in relation to other powers.

7. Another problem is

that the Judgment eventually entrusted the “jurisdiction” to decide on

the possible, not prima facie given, bias of the Chairman of the

Disciplinary Senate (who had not asked for his exclusion but only for

assessment of whether he could be perceived as biased by his

connections, due to his long-term friendship with the Deputy Chief

Justice being charged within disciplinary proceedings, which is a

circumstance that the Constitutional Court alone, within its case law as

well as practice, evaluates as not leading in itself to exclusion of a

judge) to a third “body” of the Supreme Court, that is to the

Chairperson of the Collegium, who was, according to the Standing Order

of the Supreme Court, appointed to substitute for the petitioner, or her

Deputy Chief Justice, which, however, represents another problematic

procedure. This due to the fact that “jurisdiction” was thus established

for yet another “body” of the Supreme Court, which, however, was not in

any way a party to the proceedings, was not given any leeway for

procedural acts as a party to the proceedings, in particular not having

been given the opportunity to express their opinion (in particular with

respect to the possibility of their potential bias). The fact that

merely the jurisdiction of a person who is a party to the proceedings

may be established is not doubted by commentaries (implicitly

Filip/Hollander/Šimíček: Zákon o Ústavním soudu, komentář / Act on the

Constitutional Court, Commentary, 2nd edition, C. H. Beck, Prague, 2007,

p. 785; explicitly Wagnerová, Dostál, Langášek, Pospíšil: Zákon o

Ústavním soudu s komentářem / Act on the Constitutional Court with

Commentary, Aspi, Prague, 2007, p. 567). In addition, the majority

opinion contained in the Judgment evidently relies on the fact that,

with respect to this Chairperson of the Collegium, not even a trace of

bias resulting from a long-term friendship with the Chairman of the

Disciplinary Senate will be ascertained, which is a pre-condition that

may somewhat be rather unrealistic. Should the circumstance mentioned

above actually occur, then another jurisdictional dispute would be

predictable, as it would be the same situation in terms of general

pattern.

8. The problems outlined above are removed if we proceed

from the opinion that it is necessary to make a difference between

jurisdictions dealt with in jurisdictional disputes before the

Constitutional Court, and dealing with disputes over material competence

of judicial bodies within a single court, which should be solved by the

internal regulations of the given court, that is the Standing Order or

the Work Schedule. This opinion is supported by the differing purposes

of both institutes, as is explained above, when proceedings on

jurisdictional disputes may only be conducted when procedural protection

of jurisdictions understood as implied by the Constitution (see above)

is concerned. To the contrary, proceedings on jurisdictional disputes

cannot be used (abused) for remedying material competence within a

court, perhaps an erroneously established one. The fact that the

internal regulations actually did provide for the settlement of the

resulting situation is, eventually, paradoxically proven by the very

verdict of the Judgment itself. However, the fact that the

above-mentioned regulations could not be applied is related to the

inactivity of the petitioner, who caused the Disciplinary Senate to be

forced to seek a way and pass a decision, where the Chairperson of the

Collegium substituting for the Chief Justice should have passed one. It

is barely possible to claim that the Disciplinary Senate, assigned to

make a decision on delegating a case of a disciplinary charge of the

Deputy Chief Justice of the Supreme Court, approach, regarding

assessment of possible bias by its Chairman, the substitute Chairperson

of the Collegium, when neither the Chief Justice nor Deputy Chief

Justice, who are superior to the substituting Chairperson of the

Collegium, made any formal steps to create leeway for this deputy of

theirs – the relevant Chairperson of the Collegium – to make a decision.

9.

In my opinion, the Judgment does not deal with the conflict of

jurisdictions, but merely the material competence of judicial bodies

inside the Supreme Court. In doing so, however, the Judgment extends the

jurisdiction of the Constitutional Court itself. I perceive that the

extension of jurisdiction of the Constitutional Court consists also of

the fact that this decision actually raises another on the apparent

exclusion of the petitioner from decision making on excluding Judge

Pácal from decision making on delegation of the given disciplinary case,

as well as a decision on possible reasons for excluding Judge Pácal

from such decision making, even though these were not at all analysed.

First of all, however, decision making on bias (be it as a preliminary

reference) is not an agenda soluble within the scope of a jurisdictional

dispute, since the Constitutional Court is not competent to assess the

bias of judges of ordinary courts, and less so within the scope of a

jurisdictional dispute. In my opinion, all I have stated above can be

summarised in the conclusion that the matter proposed by the petitioner

to be decided upon by the Constitutional Court actually consists of

issues which the Constitutional Court is not competent to assess and

decide.



Dissenting opinion of Justice Jiří Nykodým

Pursuant

to the provisions of § 120 paragraph 1 of the Act on the Constitutional

Court, in proceedings on a jurisdictional dispute between a state body

and the body of a self-governing region under Article 87 paragraph 1,

clause k) of the Constitution, the Constitutional Court shall decide the

dispute between the state body and the body of the self-governing

region over jurisdiction to issue a decision, to take measures or other

actions in the matter referred to in the petition instituting the

proceeding. The Act thus defines jurisdictional disputes in particular

as those between independent state bodies, or state bodies and the

bodies of self-government, not as disputes between bodies belonging to

the same state body.

In the case under examination, the dispute

was over material competence for dealing with an objection of bias of a

member of the Disciplinary Senate, which was to make a decision on the

procedural issue of withdrawal of the case of a person charged within

disciplinary proceedings by the Chief Justice of the Supreme Court,

administered by the High Court in Olomouc, and assignment of the same to

the High Court in Prague. Pursuant to the wording of the Act valid at

the time of decision making, the matter of bias of a member of the

Disciplinary Senate was decided upon by a chairperson of the

disciplinary court. The chairperson of the disciplinary court and the

Disciplinary Senate are not independent state bodies, instead they are

bodies of the disciplinary court. That is why the dispute over who is in

charge of deciding on the bias of a member of the Disciplinary Senate

in proceedings in which the chairperson of the disciplinary court is at

the same time a disciplinary plaintiff, is not a jurisdictional dispute

as specified by the above-quoted provisions of the Act on the

Constitutional Court, rather it is a dispute over material competence

for deciding the given issue. The Chief Justice of the Supreme Court,

therefore, did not have material active standing to file a petition for

declaring the competence of the Chief Justice of the Supreme Court to

issue a decision on exclusion of a judge of the Supreme Court in

disciplinary proceedings pursuant to § 10 paragraph 3 in fine of Act No.

7/2002 Coll. on Proceedings Concerning Judges and Public Prosecutors in

the wording valid until 30 September 2008, since the provisions above

do not suggest that she would act as an independent state body but as a

chairperson of the disciplinary court. In this respect, her position is

different from that in which she acted in case file No. Pl. ÚS 17/06,

where the Constitutional Court formulated a conclusion that the Chief

Justice of the Supreme Court as a body of another body has, within the

confines of their exclusive entitlements, also an entitlement to file a

petition for settling a jurisdictional dispute, if she believes that the

same has occurred by, for example, the very ignoring of such

entitlements which are granted to them by law. The fact is that this is

not an exclusive power of the Chief Justice of the Supreme Court, but

instead the power of a chairperson of the disciplinary court, whose

position is held not only by the Chief Justice of the Supreme Court, but

also by chairpersons of other disciplinary courts.

Even if I

disregarded the argumentation above and admitted that in the case of

collision on competence for making a decision on exclusion of a member

of the Disciplinary Senate, a jurisdictional dispute is concerned, then

in this specific case the Chief Justice of the Supreme Court could not

hold material active standing, this due to the fact that in the case

under consideration she herself was a disciplinary plaintiff, and,

therefore, she could not be in charge of deciding on exclusion of a

judge of the Disciplinary Senate in this matter. The opposite situation

would result in affecting the principle of independency and impartiality

of judicial decision making (as specified by Article 81 et seq. of the

Constitution, as well as Article 36 paragraph 1 of the Charter), since

the party to the proceedings would be deciding on the bias of a judge in

proceedings to which they are a party. If her competence for making a

decision could not be affected, through her not being able to decide on

exclusion of a member of the Disciplinary Senate due to bias, then she

could not have active standing for filing a jurisdictional petition.

In

addition, the Plenum has not coped well with Judgment of the

Constitutional Court file No. I. ÚS 182/05, in which the First Panel of

the Constitutional Court, in addition to other points, formulated a

conclusion that filing a petition for commencement of disciplinary

proceedings on disciplinary responsibility of a public prosecutor is an

act of the state – a party to labour-law relationships (and, therefore, a

legal entity and employer), and consequently, in this case, the state

was not a holder of public power. From this they inferred that the

District Public Prosecutor was entitled to file a constitutional

complaint. In this connection, the Constitutional Court referred to the

fact that the legislature in the legal order differentiates between the

position of the state as a “state – holder of public power” and that of

“a state – legal entity”, which is also based on the Act on the

Constitutional Court, which has explicitly acknowledged that legal

entities have the right to file a constitutional complaint [provisions

of § 72 paragraph 1, clause a) of the Act on the Constitutional Court].

If the Constitutional Court once acknowledged that the disciplinary

plaintiff in specific proceedings administered pursuant to Act No.

7/2002 Coll. on Proceedings Concerning Judges and Public Prosecutors

holds a position of a party to a labour-law relationship, it is not

possible to grant them a dual position in the same proceedings – one as

an independent state body and another as a party to a labour-law

relationship. If then the Chief Justice of the Supreme Court in the

position of a disciplinary plaintiff had held reservations about the

advancement of the Disciplinary Senate for the reason that the latter

had not been materially competent to make a decision in the case under

consideration, an opportunity was given, upon compliance with conditions

determined by law, for filing a constitutional complaint.

For the reasons specified above I voted against the majority opinion of the Plenum.