2009/11/22 - IV. ÚS 956/09: Right to Lawful Judge

22 November 2009

HEADNOTES

Provision §

221 par. 2 of the Civil Procedure Code in its words “or that serious

defects occurred in the proceeding” is consistent with the

constitutional order, because it pursues the protection of another

constitutionally guaranteed right, and does so through means that are

proportional (necessary); nevertheless, at the same time this provision

places considerable demands on the body applying it, which must use it

responsibly and interpret it in direct connection with Art. 4 par. 4 of

the Charter (more on this below).

The purpose of § 221 par. 2 of

the Civil Procedure Code as a whole, as explained above, is primarily to

“unblock” a proceeding that is burdened by the inability of the

first-level court to conclude the matter in a lawful manner. This

purpose is served both by the possibility or removing a case from a

judge due to failure to respect a legal opinion, and due to the

existence of serious defects in the proceeding. Thus, § 221 par. 2 of

the Civil Procedure Code implements the right to judicial protection (it

will be possible to conclude the case) and prevents delays in a

proceeding. Of course, the requirement of restrictive interpretation of

the latter competence (removing a case due to serious defects in a

proceeding) indicates that this will always be an exceptional step,

justified by the high probability that if the matter were left to the

present judge, he would not be able to conclude the proceeding in a

manner that the appeals court could approve of. In the event of doubts,

the court should always incline toward the constitutionally guaranteed

stability of the composition of a court, especially in a review of a

first judgment issued in a matter, where the first-level court has not

yet been given guidance.

The High Court, as the appeals court,

did not provide sufficient justification for its decision to remove the

case from judge JUDr. Vojtěch Cepl, because from a constitutional law

standpoint, for such a step, a mere list of serious defects that the

court first-level court was to have committed, without stating reasons

for the concern that further proceedings before the same judge will not

fulfill the parameters of a fair trial, is not sufficient. The lack of

appropriate justification is a violation of the complainant’s

constitutionally guaranteed right to a lawful judge under Art. 38 par. 1

of the Charter, because it removes the case from the originally

assigned judge, without the requirements for such a step having been

met.

Because the Constitutional Court found the contested

decision to have a defect, consisting of the lack of appropriate

justification, which by itself was sufficient grounds for cassation of

the contested verdict, it was not required to proceed to the next step,

which would have been a substantive review of whether the reasoning was

consistent with the complainant’s constitutionally guaranteed right to a

lawful judge, including an evaluation of whether or not the first-level

court was correctly criticized for defects.




CZECH REPUBLIC

CONSTITUTIONAL COURT

IN THE NAME OF THE REPUBLIC


JUDGMENT


A

panel of the Constitutional Court, consisting of the chairman, Vlasta

Formánková, Judge Miloslav Výborný and Judge Michaela Židlická, in the

matter of the complainant, Mgr. M. B., represented by JUDr. Petr Hála,

MBA, attorney, with his registered office at Vinohradská 1511/230,

Prague, with the participation of the High Court in Prague, with its

registered office at náměstí Hrdinů 1800, Prague 4, as a party to the

proceeding and 1) JUDr. Petr Coufal, 2) JUDr. Karel Černovský,

represented by JUDr. Josef Lžičař, attorney, with his registered office

at Sokolovská 24/37, Prague 8 - Karlín, 3) JUDr. Libor Grygárek,

represented by JUDr. František Schulmann, attorney, with his registered

office at Valentýnská 92/3, Prague 1, 4) JUDr. Pavel Kučera, represented

by JUDr. Jaroslav Ortman, CSc., attorney, with his registered office at

Španielova 1267, Praha 6, 5) JUDr. Pavel Němec, represented by JUDr.

Petr Toman, attorney, with his registered office at Trojanova 12, Prague

2, 6) JUDr. Arif Salichov and 7) JUDr. Renata Vesecká, represented by

JUDr. Josef Lžičař, attorney, with his registered office at Sokolovská

24/37, Prague 8 - Karlín, as secondary parties to the proceeding on the

constitutional complaint against verdict II. of the resolution of the

High Court in Prague of 23 February 2009 ref. no. 1 Co 349/2008-322, and

on the petition to annul in § 221 par. 2 of Act no. 99/1963 Coll., the

Civil Procedure Code, as amended by later regulations, the words “or

that serious defects occurred in the proceeding,” ruled as follows:

I.

The petition to annul in § 221 par. 2 of Act no. 99/1963 Coll., the

Civil Procedure Code, as amended by later regulations, the words “or

that serious defects occurred in the proceeding,” is denied.

II. Verdict II. of the resolution of the High Court in Prague of 23 February 2009 ref. no. 1 Co 349/2008-322 is annulled.

 


REASONING

I.

 

1.

On 17 April 2009 the Constitutional Court received a petition to open

proceedings on a constitutional complaint under § 72 of Act no. 182/1993

Coll., on the Constitutional Court, as amended by later regulations

(the “Act on the Constitutional Court”), in which the complainant sought

annulment of verdict II. of the resolution of the High Court in Prague

(the “High Court”) of 23 February 2009 ref. no. 1 Co 349/2008-322 and

also annulment in § 221 par. 2 of Act no. 99/1963 Coll., the Civil

Procedure Code, as amended by later regulations (the “Civil Procedure

Code”), of the words “or that serious defects occurred in the

proceeding,” because she believed that the application of the

unconstitutional provision of § 221 par. 2 of the Civil Procedure Code,

in eventum an unconstitutional interpretation thereof, unjustifiedly

interfered in her constitutionally guaranteed right to a lawful judge

under Art. 38 par. 1 of the Charter of Fundamental Rights and Freedoms

(the “Charter”). According to the complainant, verdict II. of the High

Court resolution of 23 February 2009 ref. no. 1 Co 349/2008-322 also

suffered such serious defects that it violated her constitutionally

guaranteed right to a fair trial under Art. 36 par. 1 of the Charter and

Art. 6 par. 1 of the Convention for the Protection of Human Rights and

Fundamental Freedoms (the “Convention”).

2. The complainant

justified the petition to annul part of § 221 of the Civil Procedure

Code as follows: The purpose of the institution of a lawful judge is

primarily to protect a party from arbitrariness in the appointment of

the trial court. However, this provision of the Civil Procedure Code

permits a case to be removed from a judge on the basis of very vaguely

defined grounds (serious defects in the proceeding), whose content

depends considerably on the discretion of the appeals court judges.

Thus, the requirement of transparency and predictability when appointing

a court is not met, and the possible misuse of this institution for

self-serving ad hoc appointments of judges cannot be ruled out. The

appeals court does not have the right to decide on the personnel of a

lower court; its task is to review the contested decision of the

first-level court, and preceding proceedings from the perspective of the

grounds for appeal, and, on the basis of that review, remove any

defects in the procedure prescribed by the Civil Procedure Code, i.e. to

change the defective decision, or annul it together, with a precise

specification of the reasons that led it to this step. The appeals court

could change the personnel of the first-level court only if a serious

defect in the proceeding, resulting in the reviewed decision being

unlawful, could not be removed otherwise than by changing the judge. Of

course, for this purpose that part of § 221 par. 2 of the Civil

Procedure Code that concerns failure to respect the legal opinion

expressed by the appeals court is fully sufficient. Although in that

event there would be interference in the right to a lawful judge, it can

be justified by the interest in ensuring unity and predictability of

court decisions in factually identical cases. However, no such justified

interest can be found in the contested part of the provision in

question; thus, there is completely unjustified interference in the

constitutionally guaranteed rights of the parties to the proceeding. If

the appeals court believes that errors occurred in the proceeding before

the first-level court, and it is therefore appropriate to annul its

decision, the appeals court is required to describe in the reasoning of

its judgment the defects in the first-level court’s decision, precisely

and persuasively, so that the court can correct its decision based on

these instructions. There is no defect in a proceeding that a qualified

judge or panel would not be able to correct. If there were really a

defect that was impossible to correct, then it would make no sense to

annul the decision of the first-level court, and the appeals court

should make a decision itself. If the cause of the claimed defects is

the poor quality of a judge’s work, that cannot be solved by applying

the contested Civil Procedure Code provision, but by a disciplinary

proceeding. In any case, even assigning a case to a different judge does

not guarantee that no defects will occur in the rest of the

proceedings, which was apparently the purpose of the contested

provision. Likewise, the background report to Act no. 59/2005 Coll.,

which amends the Civil Procedure Code and certain other Acts, expresses

the legislature’s doubts as to whether this provision is constitutional;

arguments that it has been a present in the legal order for a long time

and no one has contested it yet are not legally relevant. The contested

part of § 221 par. 2 of the Civil Procedure Code is extremely

inconsistent with Art. 38 par. 1 of the Charter, and this cannot be

corrected by a constitutionally conforming interpretation of this

provision; also, in terms of the aim pursued, i.e. ensuring the

predictability of court decisions, this is an obviously redundant

regulation. Application of the contested provision also often leads to

delays in proceedings, from which one can conclude that it is also

inconsistent with Art. 36 par. 1 and Art. 38 par. 2 of the Charter.

3.

The complainant also stated her belief that, even if the Constitutional

Court finds the contested part of § 221 par. 2 of the Civil Procedure

Code consistent with the constitutional order, it should annul verdict

II. of the High Court resolution of 23 February 2009, ref. no. 1 Co

349/2008-322, because the High Court did not apply the provision in a

constitutionally conforming manner, and its decision unjustifiedly

interfered in the complainant’s constitutionally guaranteed rights.

Application of the contested part of § 221 par. 2 of the Civil Procedure

Code would come into consideration only if there were justified grounds

to fear that the proceeding would not be conducted in accordance with

the legal opinion of the appeals court and in accordance with the law,

if it is conducted before the same panel or the same individual judge.

In other words, the appeals court would have to conclude that the

individual first-level judge will not be capable of correcting the

defects pointed out, and it would have to appropriately justify this

conclusion. However, the High Court resolution lacks such justification,

which is, in and of itself, a violation of the complainant’s

constitutionally guaranteed right to a fair trial. The High Court only

stated that it took into account the gravity of procedural errors made

by the judge, consisting of a failure to respect the principle of

concentrating proceedings, admission of evidence regarding facts that

were not claimed at all, or were claimed only in the complainant’s final

petition, and failure to respect the right of the parties to respond to

all evidence that was admitted. Here the complainant very extensively

analyzed the individual errors that the Regional Court was to have

committed according to the reasoning of the High Court resolution; the

core of her arguments was the claim that the High Court’s conclusions

are incorrect or disputed, and if the actions of the Regional Court were

really burdened by these defects, they would also be defects that this

court could correct in a subsequent proceeding. The complainant also

believed that the High Court incorrectly understood the concept of

notoriety, and did not in any way deal with the fact that the secondary

party JUDr. Renata Vesecká waived the duty of confidentiality of her

subordinates who appeared as witnesses in only a very limited scope,

which made it impossible to prove a number of facts, and therefore the

court had no choice but to request the appropriate evidence itself, in

accordance with § 120 par. 3 of the Civil Procedure Code.

4. The

complainant also proposed that the Constitutional Court, in accordance

with § 79 par. 2 of the Act on the Constitutional Court, postpone

enforceability of the contested provision, because otherwise a situation

could arise where a proceeding would be held in the interim before the

Regional Court, conducted by a different judge, which, if the

Constitutional Court were to grant the constitutional complaint, would

be affected by a serious defect and would have to be conducted again.

The complainant also proposed that the matter be reviewed as urgent,

under § 39 of the Act on the Constitutional Court, and that it be

decided on a priority basis, because the further conduct of the

proceeding before the Regional Court depends directly on the decision

about the constitutional complaint, and the proceeding could thus be

delayed.
 


II.


5.

As the constitutional complaint was filed on time, was admissible, and

also met all the formal and substantive requirements prescribed by the

Act on the Constitutional Court, the Constitutional Court to turn to a

substantive review.

6. Together with this finding, the

Constitutional Court, by resolution of 27 April 2009, ref. no. IV. ÚS

956/09-19, granted the complainant’s petition, and pursuant to § 79 par.

2 of the Act on the Constitutional Court, postponed the enforceability

of the contested verdict II. of the High Court resolution of 23 February

2009, ref. no. 1 Co 349/2008-322. It then called on the party and the

secondary parties to the proceeding to respond to the constitutional

complaint.

7. In its statement, the High Court expressed its

belief that verdict II. of the resolution of 23 February 2009, ref. no. 1

Co 349/2008-322, is not inconsistent with Art. 38 par. 1 of the

Charter, the second sentence of which states that the jurisdiction of

courts and the competence of judges shall be provided for by law. The

Civil Procedure Code permits taking a case away from a lawful judge not

only in § 221 par. 2, but also in § 12 and § 14; based on the latter,

Judge JUDr. Ludmila Říhová was removed from hearing and deciding the

matter by decision of the Supreme Court and by a measure issued by the

chairman of the High Court. As regards application of § 221 par. 2 of

the Civil Procedure Code, the High Court cited the reasoning of its

resolution of 23 February 2009, ref. no. 1 Co 349/2008-322, as well as

its resolution of 12 January 2009, ref. no. 1 Co 350/2008-318, in which

it criticized the Regional Court for deciding on the secondary party,

Hamad bin Abdulla Thani-Al Thani, joining the proceeding, although the

devolutive effects of the appeal prevented it. In the High Court’s

opinion, the Regional Court’s errors, analyzed in detail in the cited

decisions, was of such a nature that the proceeding thus far could not

be considered a fair trial, and it was necessary to proceed according to

§ 221 par. 2 of the Civil Procedure Code in order to ensure that the

proceeding would continue lawfully.

8. Secondary party no. 4),

citing § 72 par. 1 let. a) and § 74 of the Act on the Constitutional

Court, stated that a requirement for submitting an accessory petition

seeking the annulment of a legal regulation is that, in a proceeding in

which the complainant was a party, an effective decision, a measure, or

other intervention by a public authority violated the complainant’s

constitutionally guaranteed rights. Only after the existence of specific

unjustified interference in constitutionally guaranteed rights is

proved to the Constitutional Court can the complainant join his

constitutional complaint with a petition seeking the annulment of a

legal regulation. Yet, in her petition, the complainant is proceeding in

exactly the opposite way, which is not permitted. Regarding the

complainant’s petition seeking annulment of par of § 221 par. 2 of the

Civil Procedure Code, the secondary party, in accordance with the High

Court’s opinion, stated that each party to a proceeding has a right to a

lawful judge under conditions set forth by law, and pointed to other

situations foreseen by the Civil Procedure Code, where there is a change

of the lawful judge; in a decision to remove a judge due to bias, for

example, that is also done at the discretion of the deciding panel of

judges. Thus, deciding to change a judge on grounds of serious defects

in the proceeding is one of the legal possibilities. The secondary party

did not agree with the complainant’s opinion that removing the case

[from the lawful judge] endangers the right to a fair trial. In his

opinion, the provision in question implements the principle of

observance of the law and the correct application thereof, and it also

prevents delays in the proceeding, i.e., on the contrary, this

strengthens the guarantees that a proceeding will be conducted

correctly. As the complainant stated that it is not certain that the

claimed defects will be removed after assigning the matter to a

different judge, it is necessary to emphasize that it is not possible,

in any proceeding, to completely prevent defects from arising, it is

only possible to minimize them. It is up to the legislature to adopt

suitable rules for this purpose, and one of these is § 221 par. 2 of the

Civil Procedure Code, part of which the complainant proposed to be

annulled. In relation to the part of the constitutional complaint aimed

against the contested High Court resolution, secondary party no. 4)

emphasized some errors that the Regional Court was alleged to have made

according to the reasoning of that decision, primarily conducting the

presentation of evidence “ultra petitum,” impermissible review of

decisions by bodies active in criminal proceedings, and violating the

principle of equal weapons. Therefore, secondary party no. 4) proposed

that the constitutional complaint be denied as unjustified.

9.

Secondary party no. 5) also did not agree with the arguments in the

constitutional complaint and proposed that the Constitutional Court deny

it as obviously unjustified under § 43 par. 2 let. a) of Act no.

99/1963 Coll., the Civil Procedure Code. Regarding the proposal to annul

part of § 221 par. 2 of the Act on the Constitutional Court, the

secondary party stated that the institution of removing a matter from a

judge in connection with annulling the decision of a trial court was

inserted into the Civil Procedure Code with effect as of 1 January 2001

(at that time it was § 221 par. 3 of the Civil Procedure Code), and that

this legal provision is not unique in Czech or foreign law. In this

regard he pointed to § 262 first sentence of Act no. 141/1961 Coll., on

Criminal Court Proceedings, as amended by later regulations (the

“Criminal Procedure Code”), which governs the possibility of removing a

matter more generally, and to Art. 386 § 5 of the Polish Civil Procedure

Code (Kodeks postepowania ciwilnego) and § 563 par. 1 of the German

Civil Procedure Code (Zivilprocessordnung). The secondary party

emphasized that the Constitutional Court has already in the past

considered constitutional complaints aimed against decisions made on the

basis of § 221 par. 2 (par. 3) of the Civil Procedure Code, as well as

under § 262 of the Criminal Procedure Code (III. ÚS 90/95, IV. ÚS

307/03, IV. ÚS 111/04, III. ÚS 188/09), and never found grounds for

annulling these provisions in a procedure pursuant to § 70 par. 1 of the

Act on the Constitutional Court. The secondary party also cited the

conclusions in Constitutional Court resolution of 19 January 2006, file

no. IV. ÚS 111/04: “The legislature assumed that this institution would

be applied only on the basis of a restrictive interpretation, so that

there would be minimal interference in the right guaranteed in Art. 38

par. 1 of the Charter. In the background report the legislature made use

of this provision subject to the requirement that the grounds for

annulling the decision of the trial court was of the nature of a serious

(i.e. not ordinary) defect, and also emphasized that even in these

cases it is not always appropriate to reassign a case – only if, in the

opinion of the appeals court, supported by specific facts, there is

reason to fear that the proceeding would not end in an appropriate

manner if it was conducted before the same panel (or individual judge)

or court. … the Constitutional Court is of the opinion that application

of § 221 par. 3 of the Civil Procedure Code could, if it were

interpreted too expansively, cause interference in the constitutionally

guaranteed right to a lawful judge; at the same time, however, it has in

mind the principle that interpretation of the term “serious defect” is

up to the general courts. If a general court adequately and meaningfully

justifies application of § 221 par. 3 of the Civil Procedure Code, it

is not within the competence of the Constitutional Court to question in

any way the use of this institution, which is a statutory exception

within the framework of the constitutionally guaranteed right to a

lawful judge. …,” with which it agreed. The institution of a lawful

judge is an important element of legal certainty; the existence of the

exception in § 221 par. 2 of the Civil Procedure Code changes nothing

about this, because it is tied to serious defects in the proceeding

before the trial court, which, if they are found to exist, justify

constitutional removal of the matter from the lawful judge. The

possibility of contesting such actions by an appeals court in individual

cases through a constitutional complaint provides a sufficient

guarantee that the bounds of this extraordinary provision will not be

exceeded or that it will not be misused. The secondary party expressed

the belief that a constitutionally conforming interpretation of § 221

par. 2 of the Civil Procedure Code is possible, including of the part

contested by the complainant, and that therefore it is not necessary to

annul it (III. ÚS 188/09). The secondary party also took a position on

the contested High Court resolution, when he pointed to the fact that

the grounds for proceeding pursuant to § 219a par. 1 let. a) and § 221

par. 2 of the Civil Procedure Code were duly explained in the reasoning

of the contested decision; in providing the reasoning for verdict II. it

was no longer necessary to again list the defects that the Regional

Court committed, and in terms of the certainty and understandability of

the reasons for the decision a reference to the reasoning for verdict I.

was quite sufficient. As regards the removal of the case itself, this

is undoubtedly interference in the constitutionally guaranteed right to a

lawful judge, however, it need not be unjustified a priori, because

even the right to a lawful judge has its limits, and one of them is

precisely § 221 par. 2 of the Civil Procedure Code. According to the

secondary party, interference in right to a lawful judge can be

justified if it was done on the basis of the law, pursued a legitimate

aim, and was proportionate intervention that preserved, to the maximum

extent possible, constitutionally guaranteed rights (Art. 4 par. 4 of

the Charter, Constitutional Court judgments file no. IV. ÚS 188/94, I.

ÚS 437/02). The secondary party considered it obvious that the removal

was legal, and considered the legitimate aim to be removal of a case

from a judge who, due to the seriousness of errors made in the previous

proceeding, can no longer be a guarantee of a fair trial. The secondary

party listed seven errors that the Regional Court was alleged to have

committed, three of them serious enough that the High Court considered

it necessary to assign the matter to a different judge. The secondary

party addressed those three fundamental errors (violation of the

principle of concentrating proceedings, failure to respect the subject

matter delineated by the complaint and presentation of evidence not

related to the subject matter of the proceeding, and failure to respect

the right of the secondary parties to respond to all the evidence

presented) in detail, and his conclusions agreed with the High Court’s

opinion. As regards the proportionality of the interference, the

secondary party stated that in view of the gravity and number of errors,

there was no other possibility than to remove the matter from judge

JUDr. Vojtěch Cepl, because there was a justified concern that this

judge would not be able to decide fairly in further proceedings. The

secondary party also noted that, after the matter was removed, it would

be decided by another judge of the Regional Court appointed on the basis

of caseload allocation, so it will not be a judge appointed ad hoc. In

conclusion, the secondary party stated that his constitutionally

guaranteed rights were violated in the proceeding before the Regional

Court, particularly the right to a fair trial, the right to equal

standing of the parties, and the right to respond to the evidence

presented. The actions of the Regional Court judge, who flagrantly

violated the basic principles of a civil trial, aroused doubts about his

impartiality, and therefore the interference by the High Court was

quite appropriate, and the complainant’s constitutionally guaranteed

rights were not violated.

10. Secondary parties no. 2), 3) and

7), like the secondary party no. 5), stated that the High Court

concluded correctly that there are justified doubts as to whether judge

JUDr. Vojtěch Cepl will be able to act in accordance with the law and

the principles of a fair trial in a further proceeding. According to the

secondary parties, it is obvious that in this deliberation the High

Court took into account its previous experience with the correction of

defective decisions by this judge. The secondary parties believed that

the proceeding before the trial court was conducted in an unconventional

manner by this judge, and that he impermissibly influenced the conduct

of the appeals proceeding with his statements to the media, and thus

himself sent a signal that he was ruling himself out of further

participation in the matter. According to the secondary parties, it was a

matter of professional courtesy that the High Court, in the reasoning

of its decision, did not state that this was not the first time that it

had to remove a case from this judge. Judge JUDr. Vojtěch Cepl acted

very idiosyncratically in other cases as well; his decisions were

inconsistent with substantive and procedural law (e.g., the matter

conducted before the Regional Court as file no. 36 C 116/2006), and had

to be subsequently corrected through appeals proceedings. This was

apparently the source for the High Court’s belief that a matter as

complicated as evaluating the complainant’s degrading claims could not

be left to this judge. In view of the foregoing, the secondary parties

considered it necessary for the Constitutional Court to acquaint itself

with the prior decision making of judge JUDr. Vojtěch Cepl; therefore,

they proposed that the Constitutional Court request as evidence all the

decisions issued by that judge that had not gone into effect and that

were subsequently annulled or amended by the High Court, as the appeals

court, including related decisions of the High Court, over a period of

at least the last three years. The secondary parties were unable to

obtain these data by the deadline, because the Ministry of Justice,

despite its publicly declared intent to publish the content of all

decisions that have not gone into effect, has not yet done so;

therefore, they asked the Constitutional Court for assistance and for a

deadline extension. They believe that by comparing the previous decision

making of judge JUDr. Vojtěch Cepl it is possible to determine whether

there is a justified expectation that the defects will be duly removed

in the subsequent proceeding. The secondary parties reserved the right

to respond to the complainant’s further arguments at a time when the

abovementioned documents are gathered; nonetheless, they stated that

they are already of the opinion that the constitutional complaint is

quite unjustified and that the arguments used in it show signs of being

self-serving. The secondary parties also expressed the opinion that when

the complainant sees how judge JUDr. Vojtěch Cepl made decisions in the

past, she will revise her position on the contested verdict in the High

Court resolution.

11. The complainant submitted a response to

the abovementioned statements in which she maintained her opinion that

part of § 221 par. 2 of the Civil Procedure Code and verdict II. of the

High Court resolution were unconstitutional. The secondary parties

believed that there was a real risk that, without a change in court

personnel, further proceedings would be conducted in an unlawful manner.

In the complainant’s opinion, in a situation where a judge is bound by

the legal opinion of the appeals court, one cannot a priori presume that

he will not proceed according to that opinion. A pregnant statement of

the grounds on which the first-level court’s decision was annulled

should be a sufficient guarantee that the claimed defects will be

removed. According to the complainant, the risk that the first-level

court will not be guided by the clear and precisely stated binding

opinion of the appeals court arises only if the judge is not able or

willing to avoid the errors that the appeals court criticized. In that

case it would be completely appropriate to reprimand the judge through a

disciplinary proceeding and subsequently apply § 221 par. 2 of the

Civil Procedure Code on the grounds of failure to observe a binding

legal opinion. The complainant also emphasized that appeals court judges

should not be called upon to evaluate the erudition of the first-level

judges. In the decision making of the appeals court one can observe that

certain personal ties arise, whether positive or negative, between that

court and the first-level court whose decisions the appeals court

reviews with considerable frequency, in particular in areas with a lower

incidence of cases, such as, for example, disputes concerning

protection of the person. Thus, application of the contested provision

does not lead to improving the quality of the work of the first-level of

court, but only to transferring “non-erudite” judges to conduct

different proceedings, which can consequently harm the parties therein.

If a judge is not capable of acting impartially, even after a warning

from the appeals court, then he obviously lacks the qualifications to

hold the office of judge, and should be subject to a disciplinary

proceeding. The fact that this is not done in the Czech Republic because

the statutory options are not exercised properly cannot justify leaving

the contested provision, which, in the complainant’s opinion, is

unconstitutional, in the legal order of the Czech Republic. The

complainant rejected an analogy between the contested provision and the

regulations for removing a judge due to bias (§ 14 to 16b of the Civil

Procedure Code), because the deadlines in which an objection of bias

must be made lead one to conclude that the legislature’s purpose was to

ensure that the entire first-level proceeding be conducted by the same

individual judge or the same panel, with the same judges, i.e. the

decision to remove a judge must be made as soon as possible in a

proceeding, which is inconsistent with the rule in § 221 par. 2 of the

Civil Procedure Code. Moreover, the fact that the reason for removing a

judge on the grounds of bias is precisely the presumption that the judge

will not act impartially makes it obvious that in other cases the

legislature presumes that the judge is able to be impartial. As stated

above, any shortcoming in a judge’s impartiality is to be addressed in a

disciplinary proceeding, not through application of the contested

provision. The complainant repeated her arguments regarding the ability

to remove defects already contained in the constitutional complaint, and

pointed out that, while the concept of bias is clearly defined by case

law and doctrine, the content of the term “serious defects in the

proceeding” is uncertain, which permits wide application of the term,

which then comes with a real danger that the principle of a lawful judge

will be circumvented and the fundamental principles of a democratic

judiciary will be violated. Thus, it is evident that there is no

meaningful justification for the contested provision; it does not

contribute to improving the quality of judicial decision making, but

merely provides the appeals court an instrument for unjustified

limitation of the rights of the parties to a proceeding to a lawful

judge.

12. If the Constitutional Court does not find the

contested § 221 par. 2 of the Civil Procedure Code unconstitutional, it

should [according to the complainant] annul verdict II. of the High

Court resolution on the grounds of constitutionally non-conforming

application of that provision. The High Court also did not respect the

conclusions arising from Constitutional Court resolution file no. IV. ÚS

111/04, which secondary party no. 5 cited, because under that decision

application of the contested part of § 221 par. 2 of the Civil Procedure

Code can be considered only if the appeals court has a justified fear

that a repeated proceeding conducted by the same panel (or individual

judge) would, in view of the nature of the errors committed, end

unfairly. The appeals court is required to state these grounds in the

reasoning of its decision, but that did not happen in this matter. The

High Court was supposed to state on what basis it had concerns that

judge JUDr. Vojtěch Cepl would not be capable of proceeding within the

bounds of its decision in a repeated proceeding, and also why, in its

opinion, that concern was not only hypothetical, but was highly likely

to be fulfilled. The complainant believed that there were no reasonable

grounds for such concern, and so the High Court also could not state

them in the reasoning of its decision, and also could not, pursuant to

Constitutional Court resolution file no. IV. ÚS 111/04, apply the

contested provision of the Civil Procedure Code. According to the

complainant, the claim of secondary parties no. 2), 3) and 7), that this

reason, not stated in the reasoning of the High Court’s decision, could

have been the appeals panel’s past bad experiences with the quality of

decision making by judge JUDr. Vojtěch Cepl, demonstrates failure to

understand the purpose of the appeal proceeding, which is to correct

errors that arise in a particular first-level proceeding. Applying any

past experiences obtained from previous decision making would be a

flagrant violation of the principle of impartiality and the

constitutionally guaranteed right of the parties to a fair trial.

Likewise, the criticism of the cited judge, for thoroughly respecting

the principle of a public trial and being willing to defend his decision

in an understandable manner before the public and thus increase

confidence in the judiciary, was completely unjustified. In connection

with the accusations concerning the judge’s incompetence and

impartiality [sic], the complainant repeated that this cannot be grounds

to remove the case from him, but, on the contrary, is grounds to open a

disciplinary proceeding. However, the secondary parties did not resort

to such a step, because the decision in question by judge JUDr. Vojtěch

Cepl was highly thought of by the legal profession. In the complainant’s

opinion, the Constitutional Court should deny the petition from some

secondary parties that the Court request all the not yet effective

decision of that judge and the related High Court decisions, on the

grounds of irrelevance. The complainant briefly looked up in a legal

information database a number of decisions of panel 1 Co of the High

Court, which were subsequently annulled by the Constitutional Court;

some of them concerned cases decided at the trial level by judge JUDr.

Vojtěch Cepl, whose actions the Constitutional Court thus approved of.

Following the logic of the secondary parties, the complainant should now

propose that the Constitutional Court, in addition to annulling verdict

II. of the contested High Court decision, also rule that the matter be

handled by a different panel of the High Court (§ 63 of the Act on the

Constitutional Court k § 221 par. 2 of the Civil Procedure Code).

However, the complainant did not make such a proposal, because she

considers it impossible to seek application of an unconstitutional legal

norm. For all these reasons the complainant maintained the proposals

contained in her constitutional complaint.

13. On 20 October 2009

the Constitutional Court received a supplement to the statement from

secondary parties no. 2), 3) and 7), with an appendix containing

decisions of the Regional Court issued in other cases by the individual

judge JUDr. Vojtěch Cepl and related cassation decisions by the High

Court. The complainants proposed introducing these decisions as evidence

proving that the High Court’s reasoning, that it was necessary to

assign the matter to another judge, was correct. According to the

secondary parties it was obvious that the High Court did not err in the

matter, because it was purely up to its discretion, what procedure to

choose. If it found that the proceeding suffered from errors that judge

JUDr. Vojtěch Cepl would evidently not be able to remove, it was fully

in the court’s competence to remove the matter from the judge. The

secondary parties analyzed in detail the errors that the Regional Court

was alleged to have committed, and stated that they fully agree with the

High Court’s opinion stated in the reasoning of the contested decision.

The secondary parties described the objections in the constitutional

complaint, as well as the proposal to annul part of § 221 par. 2 of the

Civil Procedure Code, as unjustified; as regards the proposal to annul

the cited provision they pointed to the similarly worded § 262 of the

Criminal Procedure Code and commentary on it, according to which doubts

about a judge’s impartiality, in view of the scope and nature of errors,

is usually a reason for removing a case from the judge. Of course,

according to the commentary, a need to have a matter decided by a more

experienced judge can also be such a reason. The Supreme Court also

ruled that it is not a violation of the right to a lawful judge if a

matter is assigned to a different judge, in view of defects that

affected the proceeding. The secondary parties also stated that judge

JUDr. Vojtěch Cepl did not proceed in a standard manner in the

proceeding, and subsequently, by commenting on his as yet ineffective

decision for the media, ruled himself out of further handling of the

case. The secondary parties belief that the High Court could not be

criticized for anything, because in the interests of a fair trial it

could not decide otherwise than it did.
 


III.


14.

During the hearing, no proposals to supplement the evidence were made,

and the testimony of the parties did not indicate any new facts beyond

the scope of the petition and written responses to it.
 


IV.


15.

The Constitutional Court determined from Regional Court file no. 36 C

8/2008 that the secondary parties, in a complaint delivered to the

Regional Court on 15 January 2008, sought an order for the complainant

to send each of them a written apology in the wording “I apologize to

you for untruthfully describing you on 20 December 2007 in the Czech

Radio program Ozvěny [Echoes] as a member of the backstage judicial

mafia, who tries to completely control the judiciary so that it would

serve the government´s garniture, and who influences court cases in the

background,” and to send a notice to the Czech press Agency stating the

same. According to the Regional Court’s case allocation schedule, the

matter was assigned to judge JUDr. Vojtěch Cepl. The Regional Court, by

judgment of 5 June 2008 ref. no. 36 C 8/2008-141, denied the complaint

by secondary parties no. 1), 2), 4), 5), 6) and 7) (verdicts I. and

IV.); as regards secondary part no. 3) it granted the complaint

(verdicts II. and III.) and ruled on the costs of the proceeding

(verdict V., VI. and VII.). By resolution of 2 July 2008 ref. no. 36 C

8/2008-262, the Regional Court ruled not to allow Hamad bin Abdulla

Thani Al-Thani to join the proceedings as a secondary party, denied the

petition to correct the reasoning of the abovementioned judgment, and

corrected part of verdict I. of the judgment. Secondary parties no. 1),

2), 4), 5), 6) and 7), and the complainant then filed an appeal against

the Regional Court judgment of 5 June 2008 ref. no. 36 C 8/2008-141.

Based on these appeals, the High Court, by resolution of 23 February

2009, ref. no. 1 Co 349/2008-322, annulled the High Court’s judgment and

returned the matter to it for further proceedings (verdict I.). The

High Court also ordered the matter to be decided by a different

individual judge (verdict II.), and justified that verdict as follows:

“In view of the abovementioned defects in the proceeding, the appeals

court ordered, pursuant to § 221 par. 3 of the Civil Procedure Code,

that the matter be further handled and decided by a different individual

judge. In adopting this measure, it took into account the gravity of

the procedural errors made by the first-level judge, in particular the

failure to respect the principle of concentrating a proceeding, the

admission of evidence regarding facts that were not alleged at all, or

alleged only in the defendant’s final petition, and the failure to

respect the rights of the parties to respond to all evidence that was

admitted.”


V.


16.

The complainant first of all considered unconstitutional the very

competence of the appeals court to remove the matter from the lawful

judge on the grounds of serious defects in the proceeding, arising from §

221 par. 2 of the Civil Procedure Code. Therefore, the Constitutional

Court had to first address the question of whether the contested part of

§ 221 par. 2 of the Civil Procedure Code is consistent with the

constitutional order. The Constitutional Court did not agree with the

arguments of secondary party no. 5) that the complainant, in formulating

her constitutional complaint, acted inconsistently with the process

foreseen in § 74 of the Act on the Constitutional Court, as she first

questioned the constitutionality of the legal regulation, and

subsequently derived from that violation of her constitutionally

guaranteed rights. In the constitutional complaint, the complainant

claimed that the particular decision that was contested by the

constitutional complaint violated her constitutionally guaranteed right

to a lawful judge and the other abovementioned fundamental rights. Thus,

the fundamentally requirement set forth in § 74 of the Act on the

Constitutional Court was met. Of course, according to the logic of the

complainant’s arguments it would be necessary to first review whether it

is even possible in abstracto to remove a matter from a judge in the

manner described; if the Constitutional Court concluded that such

actions were inconsistent with Art. 38 par. 1 of the Charter, that would

automatically mean that the decision adopted on the basis of the

contested resolution would be unconstitutional.

17. The

Constitutional Court therefore subjected the words “or that serious

defects occurred in the proceeding” in § 221 par. 2 of the Civil

Procedure Code to constitutional law review, and found that the petition

to annul that provision was manifestly unfounded.

18. The

contested provision reads: “If the appeals court annuls a proceeding

because a binding legal opinion was not observed (§ 226 par. 1, § 235h

par. 2, second sentence, and § 243d par. 1), or that serious defects

occurred in the proceeding, it may order that a different panel

(individual judge) handle and decide the matter further, or it may

assign the matter for further proceedings to a different first-level

court that is subordinate to it [the appeals court].”

19. Under

Art. 38 par. 1 of the Charter no one may be removed from the

jurisdiction of his lawful judge. The jurisdiction of courts and the

competence of judges shall be provided by law.

20. The principle

of a lawful judge is one of the fundamental guarantees of independent

and impartial judicial decision-making in a law-based state, and a

condition for the proper exercise of that part of state authority that

was constitutionally entrusted to the courts (cf., e.g., Constitutional

Court judgment file no. III. ÚS 529/08, available at usoud.cz,

judgment file no. III. ÚS 232/95, N 15/5 SbNU 101).

21. The

primary, though not the only, purpose of the right to a lawful judge is

to rule out arbitrary manipulation in assigning matters to individual

judges, i.e. to ensure impartial decision making by an independent court

(Constitutional Court judgment file no. II. ÚS 1009/08, available at

usoud.cz). On the one hand, the constitutional imperative that no

one may be removed from the jurisdiction of his lawful judge completes

and strengthens judicial independence, and on the other hand it gives

every party to a proceeding the same valuable guarantee that his matter

is to be decided by courts and judges according to principles

established in advance (procedural rules), so that the principle of

fixed assignment of court agendas is preserved and so that the selection

of courts and judges “ad hoc” is ruled out, for various reasons and

different aims. The constitutional principle of a lawful judge cannot be

circumvented, no matter what reasons there may be to do so. Not only

the experience of history, but also the experience from the recent

totalitarian regime, persuasively demonstrate how dangerous it is for

the individual, and how harmful for the entire society, in the

determination of the law, to assign courts and judges to the exercise of

justice based on self-serving viewpoints or selection (III. ÚS 232/95, N

15/5 SbNU 101).

22. While the aim of the manipulatory assignment

of cases that was typical of totalitarianism is to fulfill the will of

those performing the assignment (usually party bodies), the purpose of

the right to a lawful judge in a liberal democracy is to ensure

impartial and free decision making, i.e. determination of the meaning

and aim of a legal norm or statute that is to be applied so that a just

decision can be made (Constitutional Court judgment file no. II. ÚS

1009/08, available at usoud.cz).

23. As was already set

forth, the guarantees connected to the right to a lawful judge are aimed

first of all at the manner of assigning the judge who is to decide one

or another case (whether in the first-level trial or in certain

statutorily defined situations where the judge is changed), but Art. 38

par. 1 of the Charter also contains an express prohibition on removing a

matter from a judge thus assigned, which indicates that a particular

matter should always be decided by one and the same judge, unless there

are no serious objective reasons against it. In other words, the

constitutional guarantees apply both to appointing a panel (individual

judge) that will decide a party’s case, and to the stability of judicial

personnel, manifested in the prohibition of arbitrary changes in its

composition.

24. There is no doubt that the contested part of §

221 par. 2 of the Civil Procedure Code interferes in the

constitutionally guaranteed right to a lawful judge, because it permits

removing a case from the judge to whom it was originally assigned. This

does not violate the guarantees relating to the manner of assigning a

judge, because a new judge will again be determined on the basis of the

same criteria as the original judge, i.e. according to the work schedule

of the relevant court, but it does violate the abovementioned

constitutionally guaranteed stability of the composition of a court.

25.

Therefore, the Constitutional Court subjected the contested provision

to the proportionality test, which is among the standard legal

instruments of both European constitutional courts and international

courts, when reviewing a conflict between a provision of the legal order

that pursues the protection of a constitutionally guaranteed right or

public interest with another fundamental right or freedom.

26.

The first criterion of the proportionality test is the capacity of the

contested provision to achieve the intended aim, which is protection of

another fundamental right or public good. In the Constitutional Court’s

opinion, the contested provision meets this criterion. The

constitutionally approved purpose that the contested provision as a

whole pursues is protection of the right to a fair trial, which includes

the right to have a matter handled in an appropriate time (Art. 36 par.

1 and Art. 38 par. 2 of the Charter). The provision of § 221 par. 2 of

the Civil Procedure Code governs situations where the judge of the trial

court to whom a matter was assigned is unable to conclude the

proceeding in a lawful manner. Thus, this provision protects parties to a

proceeding from delays resulting from incorrect procedures followed by

the trial court, and permits them to seek protection of their rights. In

this regard the Constitutional Court did not agree with the

complainant’s legal opinion that any errors by the judge, manifesting

themselves as defects that burden the proceeding, should be resolved

only by a disciplinary complaint, because a disciplinary proceeding with

the judge in question does not sufficiently flexibly address the

problem of the parties to the proceeding, and even a potential

disciplinary measure against the judge will not necessarily ensure that

the proceeding will be handled well.

27. The second criterion of

the proportionality test is the aspect of necessity, according to which

only those means may be used that most preserve the affected

fundamental rights and freedoms; the third criterion is considered to be

the principle of proportionality in the narrower sense, under which

detriment to a fundamental right may not be disproportionate in relation

to the intended aim. As the Constitutional Court already stated in

resolution file no. IV. ÚS 111/04 (available at usoud.cz), the

background report to Act no. 59/2005 Coll., which amends the Civil

Procedure Code and certain other Acts, indicates that the legislature

expected that this institution would be applied only with a restrictive

interpretation, so that the effects on the right guaranteed in Art. 38

par. 1 of the Charter would be minimized. In the background report, the

legislature made use of this provision subject to the fact that the

grounds for annulling the first-level court’s decision were a serious

(not ordinary) defect, and emphasized that even in these case it is not

always appropriate to reassign the case – only if, in the assessment of

the appeals court, supported by specific facts, there are grounds for

concern that the proceeding might not be concluded in an appropriate

manner, if it were conducted before the same panel (judge) or court. The

contested provision was inserted into the legal order justifiably, to

fulfill an aim pursued by the legislature, but also with the awareness

that, because of the possible danger to the constitutionally guaranteed

right to a lawful judge, it must be interpreted by constitutionally

conforming way by the courts and may be used only exceptionally.

28.

Thus, we can conclude that the contested provision is consistent with

the constitutional order, because it pursues the protection of another

constitutionally guaranteed right, and does so through means that are

proportional (necessary); nevertheless, at the same time this provision

places considerable demands on the body applying it, which must use it

responsibly and interpret it in direct connection with Art. 4 par. 4 of

the Charter (more on this below).

29. For these reasons the

Constitutional Court denied the petition to annul the words “or that

serious defects occurred in the proceeding” in § 212 par. 2 of the Civil

Procedure Code, as manifestly unfounded under § 43 par. 2 let. a) and

b) of the Act on the Constitutional Court.
 


VI.


30.

The Constitutional Court then reviewed whether the High Court, as the

appeals court, in the matter in question, acted according to the

abovementioned maxims, i.e. interpreted its competence in a restrictive

manner and applied § 221 par. 2 of the Civil Procedure Code in a manner

that preserved, to the maximum extent possible, the constitutionally

guaranteed right of the parties to a lawful judge. After reviewing the

contested decision and the proceeding that preceded it, the

Constitutional Court found that this was not the case, and that verdict

II. of the High Court resolution of 23 February 2009, ref. no. 1 Co

349/2008-322, unjustifiedly interfered in the complainant’s

constitutionally guaranteed right to a lawful judge under Art. 38 par. 1

of the Charter.

31. In its case law, the Constitutional Court

consistently applies the principle of minimizing interference in the

decision-making activity of other state authorities. One of its

manifestations, and also one of the fundamental attributes of a

proceeding on a constitutional complaint, is the fact that, as a rule,

the Constitutional Court exercises its review authority in a proceeding

on a constitutional complaint only in relation to proceedings that have

been concluded with legal effect after all ordinary and extraordinary

appeals have been exhausted. However, as regards decisions adopted under

§ 221 par. 2 of the Civil Procedure Code, the Constitutional Court

makes an exception, in view of the exceptional importance of the right

to a statutory judge for the constitutional conduct of a proceeding,

because, as it has already explained in detail in resolution file no.

IV. ÚS 111/04, there is no other remedy against a decision to assign a

case to a different judge, and an objection that Art. 38 par. 1 of the

Charter has been violated, raised after the entire proceeding has

concluded, would obviously not be effective.

32. Therefore, the

Constitutional Court reviewed the contested verdict substantively, first

considering the question whether the appeals court justified its

actions as regards the necessity of removing the case from the lawful

judge on the grounds of protecting the parties’ right to a fair trial.

It found that it is not evident from the reasoning of the contested

verdict whether the High Court considered the conflict of the parties’

fundamental rights, or whether it merely mechanically applied the

competence entrusted to it by law. The purpose of § 221 par. 2 of the

Civil Procedure Code as a whole, as explained above, is primarily to

“unblock” a proceeding that is burdened by the inability of the

first-level court to conclude the matter in a lawful manner. This

purpose is served both by the possibility or removing a case from a

judge due to failure to respect a legal opinion, and due to the

existence of serious defects in the proceeding. Thus, § 221 par. 2 of

the Civil Procedure Code implements the right to judicial protection (it

will be possible to conclude the case) and prevents delays in a

proceeding. Of course, the requirement of restrictive interpretation of

the latter competence (removing a case due to serious defects in a

proceeding) indicates that this will always be an exceptional step,

justified by the high probability that if the matter were left to the

present judge, he would not be able to conclude the proceeding in a

manner that the appeals court could approve of. In the event of doubts,

the court should always incline toward the constitutionally guaranteed

stability of the composition of a court, especially in a review of a

first judgment issued in a matter, where the first-level court has not

yet been given guidance, include in the event of procedural questions

which, as is evident from the differing statements by the complainant

and the secondary parties, can also be disputed.

33. In the

Constitutional Court’s opinion, the High Court, as the appeals court,

did not provide sufficient justification for its decision to remove the

case from judge JUDr. Vojtěch Cepl, because from a constitutional law

standpoint, for such a step, a mere list of serious defects that the

court first-level court was to have committed, without stating reasons

for the concern that further proceedings before the same judge will not

fulfill the parameters of a fair trial, is not sufficient. The lack of

appropriate justification is a violation of the complainant’s

constitutionally guaranteed right to a lawful judge under Art. 38 par. 1

of the Charter, because it removes the case from the originally

assigned judge, without the requirements for such a step having been

met.

34. Because the Constitutional Court found the contested

decision to have a defect, consisting of the lack of appropriate

justification, which by itself was sufficient grounds for cassation of

the contested verdict, it was not required to proceed to the next step,

which would have been a substantive review of whether the reasoning was

consistent with the complainant’s constitutionally guaranteed right to a

lawful judge, including an evaluation of whether or not the first-level

court was correctly criticized for defects. Nevertheless, in this

regard, given that the High Court may rule again in the matter, the

Constitutional Court emphasizes, that the reasons for acting pursuant to

§ 221 par. 2 of the Civil Procedure Code may only be serious defects,

in the sense of defects that are quite fundamental and obvious, and this

term must always be interpreted restrictively, so as to preserve, to

the maximum extent possible, the constitutionally guaranteed rights of

the parties to the proceeding.

35. In connection with the

possible interference in the right of the complainant and the secondary

parties to a fair trial, or the right to have the matter handled in an

appropriate time, the Constitutional Court also emphasizes that the

proceeding before the first-level court took place without delays, and

the decision on the merits was issued less than half a year after the

complaint was filed, which considerable reduces the risk that giving the

same judge a “second attempt” will significantly interfere in the

constitutionally guaranteed rights of the parties enshrined in Art. 38

par. 2 of the Charter.

36. As regards the claims of secondary

parties no. 2), 3) and 7), that the hidden reason for the appeals

court’s actions was a skepticism, based on its past experience, about

the quality of decision making by judge JUDr. Vojtěch Cepl, the

Constitutional Court states that such deliberations were completely

absent from the appeals court’s reasoning (and from its response to the

constitutional complaint), and therefore it denied the petition to admit

evidence in this regard. Peripherally, the Constitutional Court notes

that such justification for applying § 221 par. 2 of the Civil Procedure

Code would be completely unacceptable from a constitutional law

viewpoint due to obvious prejudice on the part of the appeals panel.

37.

The Constitutional Court states, only as obiter dictum, one other

reason that should also lead the High Court to restrain when applying §

221 par. 2 of the Civil Procedure Code, the fact that it is undoubtedly

also in the interest of the secondary parties to have the same

individual judge continue the proceeding. If the purpose of the

complaint is protection of their good name and professional reputation,

as well as the reputation of the judiciary as such (which can also be

concluded from the fact that they requested that the complainant be

required to inform the media about her apology), then removing the case

from judge JUDr. Vojtěch Cepl devalues the secondary parties’ possible

success in the eyes of the public in advance. The criticism, because of

which the proceeding on a complaint for protection of personality is

being conducted, was directed at the actions of the secondary parties in

the criminal prosecution of the former Deputy Prime Minister, Jiří

Čunek, and one of the most criticized points was the removal of the

criminal matter from the District State Prosecutor’s Office in Přerov,

where the state prosecutor intended to file charges, and reassignment to

the District State Prosecutor’s Office in Jihlava. Therefore, in this

context, an analogous action, i.e. removing the matter from the judge

who issued a judgment against the secondary parties, necessarily seems

disputable, at the very least.

38. Based on these reasons, the

Constitutional Court, under § 82 par. 3 let. a) of the Act on the

Constitutional Court, annulled verdict II. of High Court resolution of

23 February 2009, ref. no. 1 Co 349/2008-322, because it violated the

complainant’s constitutionally guaranteed right to a lawful judge under

Art. 38 par. 1 of the Charter. The consequence is that after cassation

of the contested decision the matter will be returned for consideration

and a decision to the first-level court, with personnel as duly

assigned.

Instruction: Decisions of the Constitutional Court cannot be appealed.