2010/10/06 - Pl. ÚS 39/08: Organization of Judiciary

06 October 2010

HEADNOTES

1.

Although the rules of procedure of the Chamber of Deputies do not

recognize a comprehensive amending proposal as an institution of

regulatory law, it can be the basis for discussion. However, that does

not mean that a subject with the right of legislative initiative ceases

to be the “master of the bill,” because it is still his legislative

initiative. Therefore, only it has the authority of disposal with the

bill, and can withdraw it without anything further, until the end of

debate in the second reading in which his legislative initiative is

discussed on the basis of the comprehensive amending proposal ((§ 64 in

connection with § 86 par. 6 of Act no. 90/1995 Coll., on the Rules of

Procedure of the Chamber of Deputies), and, with the consent of the

Chamber of Deputies, even in the third reading.

 

2.

The Constitutional Court concluded that an immanent feature of the

office of a judge is its continuous nature. Therefore, membership in the

consulting bodies of a ministry, the government, and both chambers of

Parliament, just like performing the tasks of these various components

of the state power, is inconsistent with the principle of the separation

of powers. Therefore, the assignment of judges to fulfill tasks in

other branches of state power is in conflict with Art. 82 par. 3 of the

Constitution, and, in view of the fact that the Constitutional Court has

already expressed this legal opinion (judgment Pl. ÚS 7/02), also with

Art. 89 par. 2 of the Constitution.

 

3.

It is not possible to construct a duality in the legal position of the

chairman of a court as an official of state administration, on one hand,

and a judge, on the other hand. Therefore, the means for protection of

court officials must be comparable with the means for protection of a

judge. This must apply not only to the manner of recalling court

officials, but also temporary removal of them from office.

 

4.

The use of the singular or plural in a legal regulation does not by

itself definitely determine how many persons it may affect. In case of

appointment of the Supreme Court´s vice-chairmen under Art. 62 letter f)

of the Constitution of the Czech Republic, both the legislature, just

like the appointing body, are limited in terms of the rules of the

separation of powers and the need to ensure the independent exercise of

the judiciary.  Therefore, it is not admissible, in the framework of

statutory regulation of the vice-chairmen appointment to create a room

for the interference from the side of executive power. The provision §

102 par. 1 of the Act on Courts and Judges does not create sufficient

guarantees for the independence of judicial branch in relation to the

executive power, as it creates conditions for such possible interference

in the independence of the judicial branch
  
5. The statutory

framework must not create conditions for threatening of constitutionally

required independence and impartiality of judges. Possible

unconstitutional situations in such a serious sphere need to be

eliminated in advance. The problem is the very possibility of repeat

appointment, which can lead court officials to act in a way that would

meet the requirements for their repeat appointment, or can lead to their

individual actions, including their decision making, to be seen and

assessed that way by the outside world.

 

6.

Therefore, this provision was annulled as unconstitutional, because, as

a manifestation of arbitrariness by the legislature, it interferes in

the principles of a law-based state under Art. 1 par. 1 of the

Constitution. At the same time, given the circumstances of the case, it

is a violation of the right to access to public office on equal terms

under Art. 21 par. 4 of the Charter. In view of the circumstances of the

case, this is also an impermissible covert form of an individual legal

act directed against a particular person, and therefore an attempt to

interfere in the independence of the judicial branch.

 

 

 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

 

IN THE NAME OF THE REPUBLIC

 

On

6 October 2010, the Plenum of the Constitutional Court, consisting of

Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler,

Pavel Holländer, Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká, Jiří

Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Výborný and

Eliška Wagnerová, ruled in the matter of a petition from a group of

senators of the Senate of the Parliament of the Czech Republic,

represented by Senator Mgr. Soňa Paukrtová, seeking the annulment of

points 1, 2, 3, 29, 30, 31, 32, 33, 34, 35, 36, 38, 41, 42 and 49 of

Art. I, points 4, 5, 6, 7, 8, 9, 10 and 11 of Art. II, points 2 and 3 of

Art. III, as well as Art. IV of Act no. 314/2008 Coll., which amends

Act no. 6/2002 Coll., on Courts, Judges, Trainee Judges, and the State

Administration of Courts and Amending Certain Other Acts (the “Act on

Courts and Judges”), as amended by later regulations, Act no. 150/2002

Coll., the Administrative Procedure Code, as amended by later

regulations, Act no. 7/2002 Coll., on Proceedings in Matters concerning

the Courts and State Prosecutors, as amended by later regulations, Act

no. 349/1999 Coll., on the Public Defendor of Rights, as amended by

later regulations, Act no. 283/1993 Coll., on the State Prosecutor’s

Office, as amended by later regulations, Act no. 200/1990 Coll., on

Offences, as amended by later regulations, and Act no. 85/1996 Coll., on

Advocacy, as amended by later regulations, and seeking the annulment of

the words “to the Ministry or”  in § 68 par. 1 and in § 68 par. 2 let.

b) and seeking the annulment of § 100a of Act no. 6/2002 Coll., on

Courts and Judges, as amended by Act no. 314/2008 Coll., in eventum the

annulment of: in Act no. 6/2002 Coll., on Courts, Judges, Trainee

Judges, and the State Administration of Courts and Amending Certain

Other Acts ( the “Act on Courts and Judges”), as amended by Act no.

151/2002 Coll., Act no. 228/2002 Coll., the Constitutional Court

judgment promulgated as no. 349/2002 Coll., Act no. 192/2003 Coll., Act

no. 441/2003 Coll., Act no. 626/2004 Coll., Act no. 349/2005 Coll., Act

no. 413/2005 Coll., Act no. 79/2006 Coll., Act no. 221/2006 Coll., Act

no. 233/2006 Coll., Act no. 264/2006 Coll., Act no. 267/2006 Coll., Act

no. 342/2006 Coll., the Constitutional Court judgment promulgated as no.

397/2006 Coll., Act no. 184/2008 Coll. and Act no. 314/2008 Coll., the

words “vice chairmen” in § 15 par. 1, the words “vice chairmen” in § 15

par. 2, the words “vice chairmen” in § 23 par. 1, § 102, § 103 par. 1

and 2, § 104 par. 1 and 2, § 105 par. 1 and 2, § 105a, § 108 par. 2, the

words “vice chairmen of the Supreme Court” in § 119 par. 2, the words

“vice chairmen” in § 121 par. 2, the words “vice chairmen” in § 168,

further, in Act no. 314/2008 Coll. in Art. II points 4, 5, 6, 7, 8, 9,

10 and 11, further, § 13 par. 3 and § 13a in Act no. 150/2002 Coll., the

Administrative Procedure Code, as amended by Act no. 314/2008 Coll.,

and in connection therewith Art. IV in Act no. 314/2008 Coll., further,

the words “to the Ministry or” in § 68 par. 1 and in § 68 par. 2 let. b)

of Act no. 6/2002 Coll., as amended by Act no. 314/2008 Coll., and

seeking the annulment of § 100a of that Act, in eventum the annulment of

the words “vice chairmen” in § 15 par. 1, § 23 par. 1 and in § 102 par.

2, the words “vice chairmen” in § 15 par. 2 and in § 121 par. 2, the

words “the vice chairman” in § 102 par. 1 and in § 168, and the words

“vice chairmen of the Supreme Court” in § 119 par. 2, further the words

“to the Ministry or” in § 68 par. 1 and in § 68 par. 2 let. b), further §

100a, § 102 par. 2, § 103 par. 2, § 104 par. 2, § 105 par. 2, § 105a, §

108 par. 2 of Act no. 6/2002 Coll., as amended by Act no. 314/2008

Coll.; further § 13 par. 3 and § 13a of Act no. 150/2002 Coll., the

Administrative Procedure Code, as amended by Act no. 314/2008 Coll., and

points 4, 5, 6, 7, 8, 9, 10 and 11 of Art. II in Part One of Act no.

314/2008 Coll., with the participation of the Chamber of Deputies of the

Parliament of the Czech Republic and the Senate of the Parliament of

the Czech Republic as parties to the proceeding, as follows:

 

I.

The words “to the Ministry or” in § 68 par. 1, the words “to the

Ministry or” in § 68 par. 2 let. b), and § 100a par. 1 let. b) of Act

no. 6/2002 Coll., on Courts, Judges, Trainee Judges, and the State

Administration of Courts and Amending Certain Other Acts (the “Act on

Courts and Judges”), as amended by Act no. 314/2008 Coll., which amends

Act no. 6/2002 Coll., on Courts, Judges, Trainee Judges, and the State

Administration of Courts and Amending Certain Other Acts (the “Act on

Courts and Judges”), as amended by later regulations, Act no. 150/2002

Coll., the Administrative Procedure Code, as amended by later

regulations, Act no. 7/2002 Coll., on Proceedings in Matters concerning

the Courts and State Prosecutors, as amended by later regulations, Act

no. 349/1999 Coll., on the Public Defendor of Rights, as amended by

later regulations, Act no. 283/1993 Coll., on the State Prosecutor’s

Office, as amended by later regulations, Act no. 200/1990 Coll., on

Offences, as amended by later regulations, and Act no. 85/1996 Coll., on

Advocacy, as amended by later regulations, are annulled as of the day

this judgment is promulgated in the Collection of Laws.

 

II.

The words “and the vice chairman” In § 102 par. 1 of Act no. 6/2002

Coll., on Courts, Judges, Trainee Judges, and the State Administration

of Courts and Amending Certain Other Acts (the “Act on Courts and

Judges”), as amended by Act no. 314/2008 Coll., which amends Act no.

6/2002 Coll., on Courts, Judges, Trainee Judges, and the State

Administration of Courts and Amending Certain Other Acts (the “Act on

Courts and Judges”), as amended by later regulations, Act no. 150/2002

Coll., the Administrative Procedure Code, as amended by later

regulations, Act no. 7/2002 Coll., on Proceedings in Matters concerning

the Courts and State Prosecutors, as amended by later regulations, Act

no. 349/1999 Coll., on the Public Defendor of Rights, as amended by

later regulations, Act no. 283/1993 Coll., on the State Prosecutor’s

Office, as amended by later regulations, Act no. 200/1990 Coll., on

Offences, as amended by later regulations, and Act no. 85/1996 Coll., on

Advocacy, as amended by later regulations, are annulled as of 1 October

2011.

 

III.

Point 11 Art. II of Act no. 314/2008 Coll., which amends Act no. 6/2002

Coll., on Courts, Judges, Trainee Judges, and the State Administration

of Courts and Amending Certain Other Acts (the “Act on Courts and

Judges”), as amended by later regulations, Act no. 150/2002 Coll., the

Administrative Procedure Code, as amended by later regulations, Act no.

7/2002 Coll., on Proceedings in Matters concerning the Courts and State

Prosecutors, as amended by later regulations, Act no. 349/1999 Coll., on

the Public Defendor of Rights, as amended by later regulations, Act no.

283/1993 Coll., on the State Prosecutor’s Office, as amended by later

regulations, Act no. 200/1990 Coll., on Offences, as amended by later

regulations, and Act no. 85/1996 Coll., on Advocacy, as amended by later

regulations is annulled as of 1 October 2011.

 

IV.

The provision of § 105a of Act no. 6/2002 Coll., on Courts, Judges,

Trainee Judges, and the State Administration of Courts and Amending

Certain Other Acts (the “Act on Courts and Judges”), as amended by Act

no. 314/2008 Coll., which amends Act no. 6/2002 Coll., on Courts,

Judges, Trainee Judges, and the State Administration of Courts and

Amending Certain Other Acts (the “Act on Courts and Judges”), as amended

by later regulations, Act no. 150/2002 Coll., the Administrative

Procedure Code, as amended by later regulations, Act no. 7/2002 Coll.,

on Proceedings in Matters concerning the Courts and State Prosecutors,

as amended by later regulations, Act no. 349/1999 Coll., on the Public

Ombudsman, as amended by later regulations, Act no. 283/1993 Coll., on

the State Prosecutor’s Office, as amended by later regulations, Act no.

200/1990 Coll., on Offences, as amended by later regulations, and Act

no. 85/1996 Coll., on Advocacy, as amended by later regulations, and §

13a of Act no. 150/2002 Coll., the Administrative Procedure Code, as

amended by later regulations, are annulled as of the day this decision

is promulgated in the Collection of Laws.

 

V. The rest of the petition is denied.

 

 

REASONING

I.
Recapitulation of the Petition

 

1.

A group of senators from the Senate of the Parliament of the Czech

Republic (the “petitioner” filed a petition to open proceedings under §

64 par. 1 let. b) of Act no. 182/1993 Coll., on the Constitutional

Court, as amended by later regulations, (the “Act on the Constitutional

Court”), in which it seeks “annulment of parts of Act no. 314/2008

Coll., which amends Act no. 6/2002 Coll., Act no. 6/2002 Coll., on

Courts, Judges, Trainee Judges, and the State Administration of Courts

and Amending Certain Other Acts (the “Act on Courts and Judges”), as

amended by later regulations, Act no. 150/2002 Coll., the Administrative

Procedure Code, as amended by later regulations, Act no. 7/2002 Coll.,

on Proceedings in Matters concerning the Courts and State Prosecutors,

as amended by later regulations, Act no. 349/1999 Coll., on the Public

Defendor of Rights, as amended by later regulations, Act no. 283/1993

Coll., on the State Prosecutor’s Office, as amended by later

regulations, Act no. 200/1990 Coll., on Offences, as amended by later

regulations, and Act no. 85/1996 Coll., on Advocacy, as amended by later

regulations, and seeking the annulment of the words “to the Ministry

or”  in § 68 par. 1 and in § 68 par. 2 let. b) and seeking the annulment

of § 100a of Act no. 6/2002 Coll., on Courts and Judges, as amended by

Act no. 314/2008 Coll., in eventum the annulment of certain provisions

of Act no. 6/2002 Coll., on Courts, Judges, Trainee Judges, and the

State Administration of Courts and Amending Certain Other Acts (the “Act

on Courts and Judges”), as amended by Act no. 151/2002 Coll., Act no.

228/2002 Coll., Constitutional Court judgment promulgated as no.

349/2002 Coll., Act no. 192/2003 Coll., Act no. 441/2003 Coll., Act no.

626/2004 Coll., Act no. 349/2005 Coll., Act no. 413/2005 Coll., Act no.

79/2006 Coll., Act no. 221/2006 Coll., Act no. 233/2006 Coll., Act no.

264/2006 Coll., Act no. 267/2006 Coll., Act no. 342/2006 Coll.,

Constitutional Court judgment promulgated as no. 397/2006 Coll., Act no.

184/2008 Coll. and Act no. 314/2008 Coll., as well as certain

provisions of Act no. 150/2002 Coll., the Administrative Procedure Code,

as amended by Act no. 192/2003 Coll., Act no. 22/2004 Coll., Act no.

237/2004 Coll., Act no. 436/2004 Coll., Act no. 555/2004 Coll., Act no.

127/2005 Coll., Act no. 350/2005 Coll., Act no. 357/2005 Coll., Act no.

413/2005 Coll., Act no. 79/2006 Coll., Act no. 112/2006 Coll., Act no.

159/2006 Coll., Act no. 165/2006 Coll., Act no. 189/2006 Coll., Act no.

267/2006 Coll. and Act no. 314/2008 Coll., and certain provisions of Act

no. 314/2008 Coll.”.

 

2.

In view of the formulation of the heading of the petition, the

structure of the reasoning, and the closing requested judgment (which

does not match the heading), we must state that the petition really

consists of several variously combined and variously justified

petitions, in which the petitioner always seeks the annulment of a

certain part of the provisions of the abovementioned legal regulations,

and in the event that the Constitutional Court does not agree with the

arguments presented and not grant the petition as thus justified, it

proposes another formulation of the proposed judgment as an alternative.

Therefore it was necessary, in the interests of clarity, to dissect the

petition, according to the variations of the proposed judgment, into

individual claims of unconstitutionality, and take a position on them

one at a time. In terms of its case law [judgment file no. Pl. ÚS 16/93

of 24 May 1994 (N 25/1 SbNU 189; 131/1994 Coll.)] the Constitutional

Court took as determinative the alternatives for the proposed judgment

in the petition, because the heading and reasoning do not always

correspond to it. Generally, in summary, we can state that the

petitioner:

 

a)

Primarily sought annulment of those parts of Act no. 314/2008 Coll.,

the adoption of which, in its opinion, violates the procedural rules of

the legislative process through a comprehensive amending proposal. That

proposal is joined with a proposal for the annulment of selected parts

of § 68 par. 1, § 68 par. 2 let. b) and § 100a of the Act on Courts and

Judges with different arguments, because those provisions were not

affected by the processing of the government bill through an amending

proposal.

 

b)

In the event that the Constitutional Court does not agree with its

arguments, the petitioner proposes the annulment of the same parts of

Act no. 314/2008 Coll., but on the grounds of their substantive law

inconsistency with constitutional regulations. In that case it would

then be necessary to annul the appropriate the provisions stated below

in the statutes that Act no. 314/2008 Coll. amended. This alternative

proposed judgment is also joined to the proposal for the annulment of

selected parts of § 68 par. 1, § 68 par. 2 let. b) and § 100a of the Act

on Courts and Judges.

 

c)

Finally, in the event that the Constitutional Court did not grant this

proposal either, the petitioner presents for annulment certain

provisions of the Act on Courts and Judges and the Administrative

Procedure Code, amended by Act no. 314/2008 Coll., or certain individual

provisions of Act no. 314/2008 Coll. with reasoning that is no longer

based on the claimed unconstitutionality of using a comprehensive

amending proposal. In that event as well, the petition seeks the

annulment of selected parts of § 68 par. 1, § 68 par. 2 let. b) and §

100a of the Act on Courts and Judges.

 

In

view of the formulation of the petition’s reasoning and its division

into three alternative proposed judgments, the Constitutional Court

decided to first review the issue of the process of adoption of Act no.

314/2008 Coll. and subsequently the petitioner’s objections based on the

alleged inconsistency of individual amended provisions of the Act on

Courts and Judges, the Administrative Procedure Code, and individual

provisions of Act no. 314/2008 Coll. with the constitutional order.


II.
The text of the Contested Provisions and the Petitioner’s Arguments

3.

The petitioner contests the individual parts of Act no. 314/2008 Coll.

on procedural grounds, and in that case its petition is directed against

the amending statute, Act no. 314/2008 Coll., as corresponds to the

Constitutional Court’s settled case law. The alternatives contest the

content of the amendment, and here the petition is directed against the

amended Act on Courts and Judges and the Administrative Procedure Code

[see the alternative proposed judgments in 2b) and 2c)], or against Art.

II and Art. IV of Act no. 314/2008 Coll., which stand alone and are not

amending provisions.

 

II.a
Unconstitutionality of the Institution of a Comprehensive Amending Proposal

4.

The petitioner first asks the Constitutional Court to annul points 1,

2, 3, 29, 30, 31, 32, 33, 34, 35, 36, 38, 41, 42 and 49 of Art. I,

points 4, 5, 6, 7, 8, 9, 10 and 11 of Art. II (transitional provisions

for the implementation of a term of office in the Act on Courts and

Judges), points 2 and 3 of Art III (implementing a term of office for

the chairman and vice chairman of the Supreme Administrative Court and

the possibility of repeat appointment), as well as Art. IV of Act no.

314/2008 Coll. (transitional provisions for the implementation of a term

of office in the Administrative Procedure Code). It is not necessary to

introduce the contested provisions in this case. As a whole they are

part of the “comprehensive amending proposal” the use of which

(regardless of its content) the petitioner considers to be

unconstitutional. Also unconstitutional according to the petitioner is

the very process of adoption of this part of Act no. 314/2008 Coll.,

which affects the abovementioned points in Art. I, Art. II, Art. III and

Art. IV. In that case, this part of the petition would be resolved by

the Constitutional Court concluding that the cited parts of Act no.

314/2008 Coll. were not adopted in a constitutionally prescribed manner.

Although the petitioner proposes annulling the statute on the grounds

of failure to observe procedure, nevertheless it proposes annulling only

some of the measures adopted in that manner (see 12 and 13).

 

5.

In the event that the Constitutional Court evaluates the basic proposal

[see 2a)] differently, and concludes that the arguments presented

thereto are – as the petitioner states – more of a substantive law

nature, the alternative proposal is to annul all provisions in Act no.

6/2002 Coll. and in Act no. 150/2002 Coll. that are amended by those

provisions of Act no. 314/2008 Coll. that exceeded the scope of the

government’s original legislative initiative. Therefore, the following

are proposed to be annulled in the Act on Courts and Judges

- in § 15 par. 1, the words “vice chairmen,”

- in § 15 par. 2 the words “vice chairmen,”

- in § 23 par. 1 the words “vice chairmen,”

- as a whole, § 102, § 103 par. 1 and 2, § 104 par. 1 and 2, § 105 par. 1 and 2, § 105a, § 108 par. 2,

- in § 119 par. 2 the words “vice chairmen of the Supreme Court,”

- in § 121 par. 2 the words “vice chairmen,”

- in § 168 the words “vice chairmen.”

Further

proposed for annulment in this connection are, in Act no. 314/2008

Coll. in Art. II, points 4, 5, 6, 7, 8, 9, 10 and 11, and in Act no.

150/2002 Coll., the Administrative Procedure Code, § 13 par. 3 and §

13a, and in connection therewith, Art. IV in Act no. 314/2008 Coll.

 

6.

This second alternative [see 2b)] is, as already stated, identical in

scope with the alternative in 2a), and differs only in the starting

point for the arguments. Whereas the first case proposes annulling

selected points of Act no. 314/2008 Coll., i.e. amendments to the

abovementioned statutes that go beyond the scope of the government’s

original legislative initiative, the second alternative proposed

judgment proposes annulling individual provisions of these amended

statutes in the scope in which they were amended by Act no. 314/2008

Coll. In this case the petitioner did not develop its arguments in more

detail, but only stated that exceeding the scope of the government’s

original legislative initiative could be considered (if not

procedurally) to be violation of the constitutional order from a

substantive law standpoint. Thus, in terms of arguments, this

alternative proposed judgment is identical with the previous alternative

of objections, directed against the constitutionality of comprehensive

amending proposals. Thus, this case concerns the constitutionality of

the abovementioned provisions of the Act on Courts and Judges, points 4,

5, 6, 7, 8, 9, 10 and 11 of Art. II and Art. IV of Act no. 314/2008

Coll., § 13 and § 13a in Act no. 150/2002 Coll., the Administrative

Procedure Code.

 

7.

The constitutionally defective procedural errors during processing of

Chamber of Deputies publication no. 425 that the petitioner presented to

the Constitutional Court consist in the manner of adoption of Act no.

314/2008 Coll. through a “comprehensive amending proposal.” The

petitioner added that Art. 41 of the Constitution of the Czech Republic

(the “Constitution”) lists the subjects for legislative initiative, and

in other provisions constructs the foundations of the legislative

process, to which additional layers of so-called “regulatory” law are

added, in the form of the statutory framework or autonomous resolutions

of the chambers of parliament, parliamentary customs, and settled

practice. It emphasized that the Constitutional Court provides

protection above all to the express wording of provisions [see judgment

no. 331/2005 Coll. – judgment file no. Pl. ÚS 23/04 of 14 July 2005 (N

137/38 SbNU 9)], but not only to that [cf. e.g., judgments no. 476/2002

Coll. – judgment file no. Pl. ÚS 5/02 of 2 October 2002 (N 117/28 SbNU

25) and no. 37/2007 Coll. – judgment file no. Pl. ÚS 77/06 of 15

February 2007 (N 30/44 SbNU 349]. The significance of the individual

levels of rules for the legislative process comes not only from the

relevant level of legal force, but also from the degree of detail in the

regulation: the more concise the regulation at a higher level of legal

force, the more significant is the regulation at the lower level.

 

8.

The petitioner further stated that the right of legislative initiative

means not only the right to propose a bill, but also the right to have

it discussed. The important point is that the right to submit amending

proposals is an accessory the right of legislative initiative. However,

in its opinion these amending proposals may not take the form of a

“disguised legislative initiative.” Here it pointed out that the

Constitutional Court had already identified and prohibited so-called

“riders” (judgment no. 37/2007 Coll.), and, in the petitioner’s opinion,

comprehensive amending proposals are a related institution, because

their essence is to replace the entire text of a bill with a complete

new text, usually prepared by the appropriate parliamentary committee,

although under the Constitution a committee does not have legislative

initiative. Thus, the parliamentary chamber in fact stops discussing a

duly submitted bill, without having approved or rejected it. Yet, from

this point on, amending proposals from deputies are to be formulated in

relation to this new “bill,” although the deputies might have prepared

them, in good faith, and after consultation with outside subjects, to

the original bill. As with the “riders,” comprehensive amending

proposals lack proper preparation and justification, and the government

has no opportunity to respond to them, because it discussed a different

draft (the original), the rights of the parliamentary minority may be

infringed, there is increased risk of adopting an act that is

inconsistent with the requirements of understandable, clear, and

foreseeable law, because it is prepared to particular deadlines within

Parliament. Thus, the process of adopting important laws through

comprehensive amending proposals is inconsistent with the “right to good

legislation,” and the principle of providing a hearing to all sides,

which were stated in Constitutional Court judgment no. 37/2007 Coll.

 

9.

Another objection in this regard is that comprehensive amending

proposals, which “by-pass” the first parliamentary reading and distort

the second reading, also affect the deeper levels of parliamentary

procedure, which are neutral only in the sense of impartiality, but not

absence of values; on the contrary, they are meant to permit informing

the public about the decision-making process, hearing the affected

interests, weighing various implications, including constitutional ones,

whereby they promote the values of transparent, careful, informed and

inclusive government.

 

10.

According to the petitioner, a comprehensive amending proposal is also

inconsistent with the Act on the Rules of Procedure of the Chamber of

Deputies, because it is not aimed at deleting, expanding, or amending

certain parts of the original bill [cf. § 63 par. 1 point 5 let. a)],

but at completely replacing it, without, for example, containing a

background report (written justification), without which it is difficult

for senators (and not only them) to distinguish the intent of the

legislature. At the same time, it does not permit one to evaluate the

“close” relationship between individual amending proposals and the

original text to be amended. Only individual amending proposals can

correctly amend the components of the legislative intent of a bill’s

proponent in relation to the same subject matter.

 

11.

For all the cited reasons, the petitioner considers the institution of a

comprehensive amending proposal to be inconsistent, at a minimum, with

Art. 1 par. 1, Art. 41 and Art. 44 of the Constitution.

 

12.

Nevertheless, the petitioner does not seek annulment of Act no.

314/2008 Coll. as a whole, because, for one thing, it considers it

appropriate to minimize derogative intervention by the Constitutional

Court, and for another it recognizes the different method of preparing

and discussing the original and newly added parts of a statute that are

combined in a single comprehensive amending proposal. Therefore, it

takes into account not only the form, but also the content of an

amending proposal, a procedure that differs somewhat from so-called

“riders”, which can be relatively easily technically separated from the

rest of a statute. In this regard, one can distinguish provisions that

were duly submitted by the government as part of the government bill

from provisions that were introduced into a bill by the constitutional

law committee of the Chamber of Deputies. The former are processed in a

standard manner and provided with a background report; the latter are

supported only by a few sentences of explanation spoken at meetings of

the two parliamentary chambers, which do not indicate what variations of

the regulation were considered. The petitioner does not consider it

important that the text supplemented by the constitutional law committee

most likely originated at the Ministry of Justice, and that Minister of

Justice J. Pospíšil supported the comprehensive amending proposal.

According to the petitioner, that may be even worse, because the

prescribed procedures were consciously violated. The legislative

initiative belongs to the government, not to ministries. Generally, just

as bureaucrats can circumvent a minister and put forth their own ideas

of what laws should be like through direct conversations with deputies, a

minister can also circumvent the (coalition) government, where he did

not, or might not, succeed in putting forth his ideas. Both situations

conflict with the government’s position as the collegiate supreme body

of the executive branch, which implements its program, to a considerable

extent, with the help of its legislative initiative. Thus, “tunneling”

around a bill can be seen as interference in the separation of powers.

The petitioner also pointed to the preponderance of expertise that

permits the government to prepare statutes taking into account various

aspects of good quality law-making, i.e. material, formal, and

organizational aspects (The Legislative Rules of the Government, the

Government Legislative Council, comment proceedings). Ignoring them

lowers the probability that a formally correct statute will be created,

which is intensified by comprehensive amending proposals, which, by

their nature, further dampen broader discussion and deliberation.

 

13.

In this connection, the petitioner pointed out that the petition also

affects one of the three fundamental branches of state power, on

exceptionally sensitive and complicated issues (the appointment and

recall of court officials, introducing terms of office, changing the

situation at the Supreme Court, etc.). Therefore, the lack of

justification, both in the background report and in all the readings

during parliamentary debate, is unacceptable, which makes all the more

evident the need to declare the process of adopting the amendment of the

Act on Courts and Judges through a comprehensive amending proposal to

be inconsistent with the principle of a rule of law state and a

democratic legislative process (Art. 1 par. 1 and Art. 2 par. 3 of the

Constitution) and with the “right to good laws” or the principle of

giving all sides an opportunity to be heard. In this case, according to

the petitioner, one is forced to doubt whether this particular course

for the legislative process was not chosen precisely in an effort to

omit an uncomfortable discussion with the judicial community, which is

also inconsistent with the definition of democracy as government by

discussion, not only between politicians, but especially between those

governing and the governed. Therefore, the petitioner proposed annulling

those parts of the constitutionally unacceptable form of a

comprehensive amending proposal (see Publication no. 425/1. Chamber of

Deputies. 5th electoral term. 2008), that were not properly submitted by

the government and transparently discussed by the Chamber of Deputies,

so not those parts n of Act no. 314/2008 Coll., that were part of the

original government bill (Publication no. 425/0. Chamber of Deputies.

5th electoral term. 2008).

 

14.

The petitioner believes it is possible that the Constitutional Court

will consider the abovementioned arguments to be substantive law ones.

In that case, it presented another alternative proposed judgment (see

above, 5), formulated so that it would be possible to annul the

consequences of amendment by Act no. 314/2008 Coll., as they manifested

themselves in the Act on Courts and Judges and in the Administrative

Procedure Code as the amended regulations, or in Art. II and Art. IV of

Act no. 314/2008 Coll. (transitional provisions for the amendment of the

cited statutes). The petitioner did not provide further justification

for this proposal. We can only conclude from the petitioner’s

justification that, in contrast to the procedural nature of the

objections in the first alternative proposed judgment, in the second

alternative it proposes removing the consequences of amendment from a

substantive law point of view. In other words, in this case the

Constitutional Court is asked to consider the violation of procedure to

be violation of the content of the constitutional order.

 

15.

Thus, we can state, in summary, that the first two alternative proposed

judgments consider the fundamental problem to be the

unconstitutionality of using a comprehensive amending proposal. The

first alternative is directed against selected parts of Act no. 314/2008

Coll., which amends Act no. 6/2002 Coll., on Courts, Judges, Trainee

Judges, and the State Administration of Courts and Amending Certain

other Acts (the Act on Courts and Judges), as amended by later

regulations, Act no. 150/2002 Coll., the Administrative Procedure Code,

as amended by later regulations, Act no. 7/2002 Coll., on Proceedings in

Matters concerning Judges and State Prosecutors, as amended by later

regulations, Act no. 349/1999 Coll., on the Public Ombudsman, as amended

by later regulations, Act no. 283/1993 Coll., on the State Prosecutor’s

Office, as amended by later regulations, Act no. 200/1990 Coll., on

Offences, as amended by later regulations, a Act no. 85/1996 Coll., on

Advocacy, as amended by later regulations. The second alternative

proposed judgment is not directed against the amendment, i.e. Act no.

314/2008 Coll., but, in the same scope, against precisely designated

provisions of the Act on Courts and Judges, the Administrative Procedure

Code and Art. IV of Act no. 314/2008 Coll., although only with the note

that this is done only in case the Constitutional Court concludes that

the arguments in the first alternative proposed judgment are more of a

substantive law nature, i.e., that inconsistency in content is also

established by defective procedure through the use of a comprehensive

amending proposal.

 

II.b
Unconstitutionality of § 68 par. 1, § 68 par. 2 let. b) and § 100a of the Act on Courts and Judges

16.

The petitioner tied both alternative proposed judgments described above

to another proposal, the proposal to annul selected parts of § 68 par.

1, § 68 par. 2 let. b) and § 100a of the Act on Courts and Judges.

Regardless of the evaluation of the effects of adopting a statute

through a comprehensive amending proposal, from a procedural or

substantive law viewpoint, the petitioner seeks the annulment of

assignment of judges to the Ministry of Justice and annulment of the

possibility of submitting a proposal to open a disciplinary proceeding

as grounds for temporarily removing a court chairman or vice chairman

from office. These provisions were also part of the amending statute,

Act no. 314/2008 Coll. (points 4, 5 and 28), but they had already been

contained in the original text of the government bill (publication no.

425/0), so they are not affected by the defects that the petitioner

connects with the use of a comprehensive amending proposal (publication

no. 425/1). The petitioner included them in the third alternative

proposed judgment, which is not based on arguments that the use of a

comprehensive amending proposal is unconstitutional, but on arguments

that the individual solutions chosen are unconstitutional. Therefore,

the Constitutional Court will address them in a separate part of its

decision. These contested provisions of the Act on Courts and Judges,

including the contested parts (text marked in bold) read:

Ҥ 68
(1)

A judge assigned to hold office at a particular court under § 67 or

transferred to another court under § 71 and 72 can, with his consent, be

temporarily assigned to another court for a period of no more than

three years, in the interests of proper conduct of the judiciary, or, in

the interest of utilizing his experience, to the Ministry or the

Judicial Academy.

(2) Temporary assignment shall be decided by

b)

the Minister of Justice, after discussion with the chairman of the

court to which the judge is assigned under § 67 or transferred under §

71 and 72, in cases of temporary assignment of the judge to the Ministry

or the Justice Academy.”

Ҥ 100a

(1) The Minister of Justice may temporarily remove from office the chairman or vice chairman of a court

a) under conditions provided in § 100 par. 1 let. a) and c),

b)

if he is subject to a disciplinary proceeding for such disciplinary

violation for which the disciplinary complaint proposes imposing the

disciplinary measure of recalling the judge from office or recalling a

court chairman or vice chairman from office, such removal being for a

period until the disciplinary proceeding is terminated with legal

effect.

(2) During the period of

temporary removal from office under paragraph 1, the court chairman or

vice chairman is not entitled to an increase in salary coefficient

related to his office under a special regulation 6a). If the office of

the court chairman or vice chairman was not terminated, the court

chairman or vice chairman shall be paid the remaining part of his

salary, if he would otherwise be entitled to it; this does not apply if

the judge was convicted with legal effect of a crime.

(3) The provision of § 99 par. 2 applies analogously.”

 

17.

The petitioner’s arguments are based on the claim that assigning judges

to the Ministry of Justice is constitutionally disputable, because

judges are primarily supposed to decide cases. Likewise, the level of a

judge’s pay is a material component of judicial independence, which,

however, is necessary when deciding disputes about the law, not in the

exercise of conceptual activities at the ministry, which also

groundlessly burdens the state budget and establishes unequal

compensation among ministry employees. It is intensified by extending

the period of assignment for up to three years. The contested provisions

are inconsistent with the principles of separation of powers and the

independence of courts and judges, and can cast doubt on the

independence of the judges thus assigned, who form personal connections

at the Ministry or identify with implementation of Ministry policies,

which they may come into conflict with in their judicial activities.

Here the petitioner added to its arguments that, in view of the

authority of the Minister of Justice to appoint and nominate judges,

judge-interns will be well known to him, and generally compatible with

him, so there is an inviting opportunity to choose court chairmen from

their ranks. Because the chairmen nominate their vice chairmen, the

ministry could, through “inconspicuous” personnel policy control the

entire judiciary.

 

18.

In the proposal to annul § 100a of the Act on Courts and Judges, the

petitioner considers the most questionable point to be the authority of

the Ministry of Justice to temporarily remove a judge from the office of

court chairman or vice chairman, if recall from court office was

proposed in a disciplinary proceeding against him. This is an instrument

that can be abused, especially when the minister is himself the

disciplinary plaintiff who proposed the penalty in question. He is only

somewhat limited in this, by a fairly vague formulation of the factual

elements. The minister, as the disciplinary plaintiff, creates the

conditions for the minister, as the representative of the central state

body administering the courts, to temporarily remove a court official

from office. The same minister will at the same time have to ensure the

temporary management of the court, which can thus change considerable

until there is a verdict from the disciplinary court, reinstating the

judge. This interferes in the independence of judges and courts and the

separation of powers, and opens the possibility of arbitrariness and

chance in the conduct of state administration of the judiciary.

 

19.

However, according to the petitioner, the serious constitutional defect

of § 100a of the Act on Courts and Judges lies not in the individual

grounds for temporary removal from office, but in insufficient legal

protection in comparison with the temporary removal from office of a

judge, where it is possible to file objections with the disciplinary

court (see § 100 par. 4 of the same Act). Thus, in all cases governed by

§ 100a irreversible facts can occur during the temporary removal from

office through interference by the executive body. However, limiting the

temporary removal from office only to a court official indicates that

this is not supposed to involve offences of grave importance, so the

risk of the office being held by an inappropriate person becomes less

visible in comparison with the threat to independence. Therefore, the

petitioner finds sufficient the possibility of temporary removal from

office of court chairman or vice chairman as a result of suspension of

the office of judge, and thereby also the office of a court official (an

accessory to the judicial office), and therefore proposes annulment of

the entire provision of § 100a. If the legislature is not of that

opinion, it should provide for the temporary removal from office only of

a court chairman or vice chairman in a manner that is comparable, as

regards legal protection, with the suspension of the office of judge.

However, as the Constitutional Court cannot add a new provision to a

statute, it is appropriate to annul the entire § 100a.

 

II.c
Unconstitutionality of an Indefinite Number of Vice chairmen of the Supreme Court

20.

In the third alternative proposed judgment the petitioner also

presented, with detailed justification, proposals to annul individual

provisions of the abovementioned statues, stating that it did not

connect them to the issue of applying a comprehensive amending proposal.

This alternative is substantially the same as the second alternative.

Specifically, in this case the petitioner contests these provisions and

particular sections of them. In the Act on Courts and Judges, it

contests as unconstitutional the fact that the amendment of the Act on

Courts and Judges introduced an indefinite number of vice chairmen of

the Supreme Court, expressed in the words “of vice chairmen” in § 15

par. 1, § 23 par. 1 and in § 102 par. 2, the words “vice chairmen” § 15

par. 2 and in § 121 par. 2, the words “vice chairmen in § 102 par. 1 and

in § 168 and the words “vice chairmen of the Supreme Court” in § 119

par. 2 in the Act on Courts and Judges. Those provisions read:

Ҥ 15
(1)

The Supreme Court consists of the chairman of the court, vice chairmen

of the court, chairmen of grand panels, chairmen of panels, and other

judges.

(2) The decision-making

activity of the Supreme Court is performed by judges. The chairman and

vice chairmen of the Supreme Court, in addition to the decision-making

activity, also perform state administration of the Supreme Court in the

scope provided by this Act. The chairmen of grand panels, in addition to

the decision-making activity, also organize and direct the activity of

the grand panels. The chairmen of panels, in addition to decision-making

activity, also organize and direct the activity of the panels.

§ 23 par. 1
(1)

The plenum of the Supreme Court consists of the chairmen, vice

chairmen, chairmen of grand panels, chairmen of panels, and other judges

of the Supreme Court.

§ 102 par. 1 and 2
(1) The chairman and vice chairmen of the Supreme Court are appointed from the ranks of judges by the President of the Republic.

(2) the term of office of the chairman and vice chairmen of the Supreme Court is 10 years.

§ 119 par. 2
Bodies of state administration of courts
(2)

the bodies of state administration of courts are the chairman and vice

chairmen of the Supreme Court, the chairman and vice chairman of the

Supreme Administrative Court, and the chairmen and vice chairmen of

high, regional, and district courts.

§ 121 par. 2
(2)

The vice chairmen of the Supreme Court and vice chairmen of high courts

perform state administration of these courts in the scope determined by

their chairmen.

§ 168
The

chairman of the Supreme Court handles complaints that contain complaints

of delays in proceedings, inappropriate conduct or violation of the

dignity of a proceeding by a vice chairman of a court, chairman of a

panel, judge, judge’s assistant, and other employees of the Supreme

Court or by the chairman of a high court.”.

21.

The petitioner objects that this change is tied to an alleged

inconsistency between the Act (the singular “vice chairman”) and Art. 62

let. f) of the Constitution (the plural “vice chairmen”). In the

petitioner’s opinion, there was no inconsistency here, because the Act

on Courts and Judges, based on authorization in Art. 91 par. 2 of the

Constitution, regulated the organization structure of the Supreme Court

so that, for substantive reasons, it only provided justification for one

vice chairman position, which is anyway traditional in this country. In

the period from 1918 to 1952 a court of final appeal typically had a

chairman with one deputy. In the following period there was a chairman

and several deputies who were deputies by virtue of holding the office

of chairmen of grand panels (“expert vice chairmen”); this continued

basically until 1988. It was disrupted at the level of the federal

Supreme Court by the re-establishment (addition) of the position of vice

chairman in response to the federalization of Czechoslovakia as of 1

January 1970. After 1988 there was a return to a situation similar to

the first period, i.e. the offices of chairman and vice chairman. The

combination of several vice chairmen and chairmen of grand panels thus

departs from tradition and would have to be thoroughly justified:

however, it is not justified at all. Moreover, this change led to

stopping the proceeding in the matter of a petition from the President

of the Republic, file no. Pl. ÚS 17/07 (a resolution not published in

the Collection of Decisions, but available at http://nalus.usoud.cz ) directed precisely at this inconsistency.

 

22.

According to the petitioner, the legislature could certainly regulate

the organizational structure of the Supreme Court differently, but it

must do so in a way that is constitutionally correct. Here, however,

there is no justification for the need for additional vice chairmen of

the Supreme Court, but what is mainly overlooked is the fact that the

relationship between statutes and the Constitution is based on making

general provisions specific, not on mechanically adopting them, which,

in this case, also has significant constitutional consequences. The

legislature chose an indefinite wording because – unlike the Act on the

Constitutional Court – it did not set the exact number of vice chairmen.

Whereas with other general courts the number of vice chairmen is

limited by the court chairman’s proposal, here this is left to the

discretion of the appointing body, i.e. the President. This opened up

the possibility for the executive branch, personified by the president,

to interfere quite inappropriately and arbitrarily in the situation at

the Supreme Court. The President is responsible for the activities of

the Supreme Court, and is now given authority to appoint an indefinite

number of vice chairmen, whereby he can change the position of the

chairwoman of the Supreme Court, the Court’s management model, burden

the Court’s budget with financial and other substantive claims from the

new vice chairmen, etc. He can create career expectations among the

Supreme Court judges, which may not be without an effect on their

decision making.

 

23.

Therefore, according to the petitioner, this legal framework is

inconsistent with the principles of a democratic, rule of law state as

regards the requirements that laws be certain and that laws clearly

define the authority of a state body, as contained in Art. 1 par. 1 and

Art. 2 par. 3 of the Constitution and Art. 2 par. 2 of the Charter of

Fundamental Rights and Freedoms (the “Charter”). It also pointed to

Constitutional Court judgments, e.g. no. 88/2008 Coll. – judgment file

no. Pl. ÚS 24/07 of 31 January 2008 (N 26/48 SbNU 303), and no. 198/2003

Coll. – judgment file no. Pl. ÚS 11/02 of 11 June 2003 (N 87/30 SbNU

309). Setting and indefinite number of vice chairmen of the

Constitutional Court is also inconsistent with the constitutionally

enshrined prohibition on arbitrariness and chance (Art. 1, Art. 2 par. 3

of the Constitution and Art. 2 par. 2 of the Charter), and ultimately

can also weaken the separation of powers.

 

II.d
Unconstitutionality of Introducing a Term of Office for the Chairmen and Vice-Chairmen of Courts

24.

The petitioner also considered unconstitutional the introduction of

terms of office for chairmen and vice chairmen of courts in § 102 par.

2, § 103 par. 2, § 104 par. 2, § 105 par. 2, and § 108 par. 2 of the Act

on Courts and Judges. Those provisions read:

Ҥ 102 par. 2
(2) The term of office of the chairman and vice chairmen of the Supreme Court is 10 years.

§ 103 par. 2
(2) The term of office of the chairman and vice chairman of a high court is 7 years.

§ 104 par. 2
(2) The term of office of the chairman and vice chairman of a regional court is 7 years.

§ 105 par. 2
(2) The term of office of the chairman and vice chairman of a district court is 7 years.

§ 108 par. 2
(2) The office of chairman or vice chairman of a court under § 102 to 105 also ends upon expiration of the term of office.”.

 

25.

As regards the introduction of terms of office for chairmen and vice

chairmen of courts, as the petitioner expressly states, it has a

“feeling” that an important aim and purpose of the contested Act is to

circumvent the case law of the Constitutional Court in the matter of the

independence of courts [in particular, judgment file no. Pl. ÚS 7/02 of

18 June 2002 (N 78/26 SbNU 273; 349/2002 Coll.) and judgment file no.

Pl. ÚS 18/06 of 11 July 2006 (N 130/42 SbNU 13; 397/2006 Coll.)] and to

limit the principle of an independent judiciary that is expressly stated

in Art. 81 and 82 of the Constitution and Art. 36 of the Charter. Here

it pointed to the conclusions in judgment file no. Pl. ÚS 7/02 (no.

349/2002 Coll.), justifying annulment of the then effective § 106 par. 1

of the Act on Courts and Judges, among other things by reference to the

career progression of a judge and the possibility of being recalled

from office only for reasons provided by law and through a disciplinary

proceeding, which observes the independence of the judiciary, the

principle of undisturbed exercise of a personal, independent, judicial

mandate, and the separation of powers, although it is otherwise up to

the legislature how to govern the exercise of court administration. The

petitioner then summarized the conclusions of the Constitutional Court

in judgment file no. Pl. ÚS 18/06 regarding the possibility of recalling

the chairman of the Supreme Court, in which it stated that the office

of court chairman, as well as the chairman of the Supreme Court, is

inseparable from the office of a judge, because it is not possible to

construct a duality in the legal status of the chairman of a court as a

state administration official on the one hand, and a judge on the other

hand; however, a statue may provide exceptions to the rule that a judge

is not subject to recall from office, in particular on grounds of

disciplinary liability. Thus, the legal regulation of recalling chairmen

and vice chairmen of courts must also respect the constitutional

principles of separation of powers, judicial independence, etc. Thus,

one cannot establish any model for the recall of court unless it

reflects constitutional values.

 

26.

On that basis, the petitioner concludes that the contested legal

framework basically circumvents this binding legal opinion of the

Constitutional Court, because, instead of the model of recalling a court

official, it introduces a new model of naming a court official for a

definite period, with unlimited discretion on the part of the executive

branch to name the same person to the same office repeatedly. It argues

in more detail based on a concern about “management burnout” of

officials who have been in office for perhaps twenty years or more. In

this regard it points to a statistical study prepared by the

documentation and analysis department of the Supreme Administrative

Court, which indicates that as of 30 April 2008 there were 12 such

officials, out of a total of 271. The statistics indicate that over 68 %

of all court officials, i.e. more than two thirds, do not hold office

for more than ten years, and one third of them were appointed in the

last five years. The highest number of judicial officials (almost two

thirds) is in an age group around or just under 50 years. Therefore, it

is a question whether such a marginal share of judicial officials

serving for a long period could be sufficient grounds for such serious

legislative interference. It must be pointed out that these officials

were not recalled by previous ministers, even at a time when that was

very easy to do (in view of the lack of relevant Constitutional Court

case law at the time). The petitioner also stated that what may be

tolerated in the decision-making of a collegiate body that includes

judicial representation should not be tolerated in the decision-making

of political bodies in the executive branch.

 

27.

The petitioner also argues on the basis of the specific agenda that

court officials are responsible for. The legislature is not supposed to

tailor the demands on court officials to administrative needs, but is

supposed to derive from the necessary guarantees of the independence of

judges and judicial officials the volume and nature of the tasks that

they can perform. A court official is a judge, a single person, whose

consciousness cannot, under ordinary circumstances, be divided.

Therefore, it is necessary, in the interest of judicial independence, to

also accord certain attributes of independence to a court official, and

that is why he should, if the situation arises be removed from office

only by the decision of an independent and impartial body. The Act

accepts a disciplinary proceeding as a path toward recalling court

officials, only to immediately devalue it by specifying another reason

when the office terminates, expiration of the term of office, which,

according to the petitioner, can also be considered to violate Art. 89

par. 2 of the Constitution. Therefore, the petitioner emphasized that if

repeat appointment with a virtually empty set of criteria is permitted

simultaneously, this creates a risk of influencing the behavior of

judges who wish to stay in office and are nearing the end of their term

of office. The petitioner is aware that the Constitutional Court cannot

force the legislature to establish a judicial representation body.

However, it can clearly define what limitations the lack of such a body

has in the creation of the judicial power. The petitioner supported

these conclusions with examples from other countries with a model of

judicial self-government or with an executive model like that of the

Czech Republic (Austria, Germany), where, however, appointments are for

an indefinite period of time. It also pointed out that in Anglo-American

countries executive appointment of a court official for an indefinite

period is the rule; moreover, Anglo-American theory does not at all

distinguish between the position of a judge and that of a court

official.

 

II.e
Unconstitutionality of Repeat Appointment of Court Officials

28.

The petitioner made another claim of unconstitutionality concerning

introduction of the possibility of repeat appointment of the chairmen

and vice chairmen of courts. That provision reads:

Ҥ 105a
The court chairman and vice chairman under § 102 to 105 may be appointed to office repeatedly if

(a)

during the period of holding office as chairman or vice chairman he was

not found liable for a disciplinary offense committed during the

exercise of that office, or
(b) during the period of holding office he was not convicted with legal effect of a crime.”.

 

29.

The petitioner justified the proposal on the grounds that, in its

opinion, the possibility of repeat appointment of the chairman or vice

chairman of a court is inconsistent with the independence of courts and

judges. This is especially true in view of how the criteria for repeat

appointment are, or are not, formulated; it is evident from them that

aspects that are no expressed in the Act will necessarily dominate.

Because the role of those who appoint court officials is held by

(political) executive bodies, and not, e.g., a body that also includes

judicial representation, this creates an area of uncertainty regarding

how a court official, who is also a judge, will act in the effort to

obtain a repeat appointment. This uncertainty can certainly be seen as

conflicting with the requirements of the European Court of Human Rights,

that a judge not only be independent and impartial, but also be seen to

be so. The sensitivity of this issue is further intensified by

preserving judicial internships at the Ministry of Justice, which are

newly extended for a period of up to three years (see the arguments in

II.b). The Minister of Justice could appoint, or nominate for

appointment, judges who have been working long-term outside the courts,

who identified with the ministry, or even with a particular minister,

whom they served as civil servants. Some of the statements by the

Minister of Justice about internships as criteria for a “career as an

official” make these concerns current. Thus, similarly to the

Constitutional Court’s judgment on electoral reform, this involves –

among other things – the cumulative negative effect of individual

provisions of the Act.

 

30.

The petitioner sees another problem of repeat appointment in the

transfer of some appointment authority from the Minister of Justice to

the President of the Republic, who is not in any way equipped to follow

the activities of judicial officials, so he will either limit himself to

approving the minister’s nomination, or, within his discretion, apply

criteria that are more political. In comparison, in other European

countries there is no doubt that the possibility of repeat appointment

of a court official applies only where the deciding authority is held by

a body that represents the courts, not an executive body; moreover, we

find this institution only in the former communist countries, not in

western Europe.

 

II.f
Unconstitutionality

of Transition Provisions for the Introduction of a Term of Office for

Chairmen and Vice Chairmen of High, Regional, and District courts

31.

In this part of the petition the petitioner contests independent

transitional provisions for the introduction of a term of office for

chairmen and vice chairmen of high, regional, and district courts in

points 4, 5, 6, 7, 8, 9, 10 and 11 of Art. II in Part One of Act no.

314/2008 Coll. The contested provisions of Art. II, points 4, 5, 6, 7,

8, 9, 10 and 11 of Act no. 314/2008 Coll. read:

“Art. II
Transitional Provisions
4.

The term of office of chairmen and vice chairmen of high, regional, and

district courts who were appointed to their office in 1989 and earlier

terminates 1 year after the day that this Act goes into effect.

5.

The term of office of chairmen and vice chairmen of high, regional, and

district courts who were appointed to their office in 1990, terminates 2

years after the day that this Act goes into effect.

6.

The term of office of chairmen and vice chairmen of high, regional, and

district courts who were appointed to their office in 1991 to 1994,

terminates 3 year after the day that this Act goes into effect.

7.

The term of office of chairmen and vice chairmen of high, regional, and

district courts who were appointed to their office in 1995 to 1998,

terminates 4 years after the day that this Act goes into effect.

8.

The term of office of chairmen and vice chairmen of high, regional, and

district courts who were appointed to their office in 1999 and 2000,

terminates 5 years after the day that this Act goes into effect.

9.

The term of office of chairmen and vice chairmen of high, regional, and

district courts who were appointed to their office in 2001 and 2002,

terminates 6 years after the day that this Act goes into effect.
 10.

The term of office of chairmen and vice chairmen of high, regional, and

district courts who were appointed to their office in 2003 to 2007 and

in 2008 before the day that this Act goes into effect, terminates 7

years after the day that this Act goes into effect.

11.

The term of office of the chairman and vice chairman of the Supreme

Court terminates 5 years after the day that this Act goes into effect.”.

 

32.

The petitioner sees the transitional provisions for the introduction of

a term of office for chairmen and vice chairmen of high, regional, and

district courts as unconstitutional because they set the end of the term

of office for individual current court officials, for a period shorter

than the entire term of office that the Act newly provides for these

officials. This regulation interferes in the independence of the

judicial branch, and is a clear case of false retroactivity, which is

undesirable because it tramples on the legitimate expectations of these

officials. In the event that the Constitutional Court does not grant the

proposal to annul the terms of office, the petitioner stated that

perhaps a constitutional alternative would be to complete the full term

of office provided by the Act, calculated from the date the Act goes

into effect, without the possibility of shortening this term of office

arbitrarily in the transitional provisions of the Act. It emphasized

this using the example of the chairwoman of the Supreme Court, whose

office is to expire in five years, while that of the chairman of the

Supreme Administrative Court, appointed less than a year later, would

expire in ten years. The petitioner considers this to be an example of

legislative arbitrariness in the form of a violation of the principle of

formal justice (legal equality), decision-making by the legislature in

individual matters, and a violation of the right to equal access to

public office under Art. 21 par. 4 of the Charter.

 

II.g
Unconstitutionality

of Transitional Provisions for the Introduction of a Term of Office for

the Chairman and Vice Chairman of the Supreme Administrative Court

33.

For similar reasons as in II.d and II.e the petitioner seeks annulment

of the amended provisions of § 13 par. 3 and § 13a of Act no. 150/2002

Coll., the Administrative Procedure Code, as amended by Act no. 314/2008

Coll. (there Art. III, points 2 and 3), which also introduces a term of

office for the chairman and vice chairman of the Supreme Administrative

Court and the possibility of repeat appointment of them. In this case

the petitioner does not contest the transitional provision of Art. IV of

Act no. 314/2008 Coll., which provides that the term of office of the

chairman and vice chairman of the Supreme Administrative Court

terminates 10 years after the day that that Act goes into effect. The

contested provisions read:

§ 13 par. 3
“(3) The term of office of the chairman and vice chairman of the Supreme Administrative Court is 10 years.”.

Ҥ 13a
The chairman or vice chairman of the Supreme Administrative Court may be appointed to office repeatedly if

(a)

during the period of holding office as chairman or vice chairman he was

not found liable for a disciplinary offense committed during the

exercise of that office, or
(b) during the period of holding office he was not convicted with legal effect of a crime.”.


III.
Statements from the Parties to the Proceeding

34.

Upon being called to do so by the Constitutional Court, both parties to

the proceeding submitted statements. The statement on behalf of the

Chamber of Deputies of the Parliament of the Czech Republic was made on

12 July 2007 by its Chairman, Ing. Miloslav Vlček, who, regardless of

the fact that the petitioner contests one of the fundamental procedural

steps in the legislative process, did not in fact take a position on the

petition. He merely stated that the bill was approved in the

constitutionally prescribed manner at a parliamentary session on 23 June

2008, in vote no. 242; out of 155 deputies present, 109 were in favor

of the bill, and 8 against. After being passed by the Senate the bill

was signed by the president and duly promulgated.

 

35.

The Senate Chairman, MUDr. Přemysl Sobotka, made an extensive statement

on its behalf, where he first recapitulated the contents of the bill.

He provided more details about the discussion of the bill in the Senate,

where the Minister of Justice, J. Pospíšil, supported both the original

government bill and the amended text that came from the Chamber of

Deputies. The report from Senator J. Rippelová contained a fundamental

objection concerning the manner of discussing the bill in the Chamber of

Deputies in the form of a comprehensive amending proposal. There was

lively discussion of the bill in the constitutional law committee of the

Senate, with the abundant participation of guests (e.g. JUDr. Josef

Baxa, Chairman of the Supreme Administrative Court, JUDr. Iva Brožová,

Chairwoman of the Supreme Court, representatives of the Judges Union of

the Czech Republic, and others). The Senate Permanent committee for the

Constitution of the Czech Republic and Parliamentary Procedure also

consider the bill, reaching conclusions on which, according to the

Chairman of the Senate, the petitioner partly bases its arguments. On 16

July 2008 the bill was discussed by the Senate. Out of 54 senators

present, 35 senators were in favor, and 12 were against. The Chairman of

the Senate also provided more information on the content of the

discussion on the bill, and pointed out the problem of the complicated

proposal to annul it, which mixes aspects of procedural and substantive

unconstitutionality (see point II.a and point II.b). He also pointed out

that the procedural concept of unconstitutionality, transformed in the

middle alternative (designated here as II.b) of the proposed judgment

into a “substantive law expression,” would, in the event of annulment,

lead to undesirable and meaningless gaps in the statutory text, as well

as to the overlooking of Art. IV of Act no. 314/2008 Coll. in the last

alternative proposal. The Chairman of the senate left the decision up to

the Constitutional Court.

 

IV.
Formal Prerequisites for Reviewing the Petition and the Constitutionality of the Legislative Procedure

36.

The Constitutional Court concluded that the petition was submitted

under § 64 par. 1 let. b) of the Act on the Constitutional Court, by a

group of 21 senators, and is formally consistent with the requirements

of the Act on the Constitutional Court. In proceedings on annulling a

legal regulation, it is the Constitutional Court’s duty to first review

whether the legal regulation concerned was approved within the bounds of

Constitutionally provided competence and in a constitutionally

prescribed manner (§ 68 par. 2 of the Act on the Constitutional Court).

 

37.

First it was necessary to review the requirements of a proceeding under

§ 66 and 67 of the Act on the Constitutional Court. The Act on Courts

and Judges was amended in the meantime, by Act no. 7/2009 Coll., which

amends Act no. 99/1963 Coll., the Civil Procedure Code, as amended by

later regulations, and other related Acts, and by Act no. 41/2009 Coll.,

Amending Certain Acts in Connection with the Adoption of the Criminal

Code; however, these statutes did not affect the provision the

constitutionality of which is the subject of this proceeding. Likewise,

the petition is not affected by amendments of the Act on Courts and

Judges implemented by Acts no. 217/2009 Coll. (affecting § 42) and no.

227/2009 Coll. (§ 175a). The same is true of the amendment of the

Administrative Procedure Code by Act no. 7/2009 Coll. (§ 41, 45, 49 and

55) and no. 320/2009 Coll. (§ 89 par. 5) and by Constitutional Act no.

195/2009 Coll. (annulled).

 

38.

The fundamental question, in terms of meeting the requirements of

legislative procedure, was the alternative proposed judgment in the

petition cited above in II.a. If the Constitutional Court reached the

same conclusion as the petitioner, there would be no further need to

continue the proceeding, and the petition would be resolved here by

annulling Act no. 314/2008 Coll. The same would apply for the second

alternative proposed judgment (also in II.a) in the event that this

manner of making an amendment were deemed to be not violation of the

constitutionally prescribed manner of adoption, but as a substantive

conflict with the constitutional order. Regarding these arguments of the

petitioner, the Constitutional Court states that in this part both

proposals, in the form of the first and second alternative proposed

judgments, are unjustified.

 

39.

Regarding the extensive arguments presented by the petitioner in II.a

(points 4 to 14), the Constitutional Court states that it has already

several times handled a petition seeking the annulment of a statute, the

basis of which was a comprehensive amending proposal or an amending

proposal [in particular judgment no. 88/2008 Coll. (see above), and,

e.g., judgment no. 257/2008 Coll. – judgment file no. Pl. ÚS 56/05 of 27

March 2008 (N 60/48 SbNU 873), no. 163/2009 Coll. – judgment file no.

Pl. ÚS 42/08 of 21 April 2009, and most recently, no. 9/2010 Coll. –

judgment file no. Pl. ÚS 17/09 of 1 December 2009]. It never concluded

that this practice was inconsistent with the constitutional laws of

parliamentary law [and it expressly stated, e.g. in judgment no.

160/2008 Coll. – judgment file no. Pl. ÚS 25/07 of 13 March 2008 (N

56/48 SbNU 791), that the adoption and promulgation of the contested Act

no. 181/2007 Coll., on the Institute for the Study of Totalitarian

Regimes and on the Archive of the Security Services, and Amending

Certain Acts, took place in the prescribed manner (similarly, judgment

no. 163/2009)]. In contrast, in judgment III. ÚS 455/08 of 10 March 2009

the Constitutional Court took guidance in interpreting a legal

regulation precisely the part that had been inserted in it as part of a

comprehensive amending proposal. Likewise, in judgment no. 37/2007 Coll.

(see above), in this regard the Constitutional Court only pointed out,

with reference to an opinion given in the specialized literature

(Kysela, J.: Tvorba práva v ČR: truchlohra se šťastným koncem?,

[Formation of the Law in the CR: Tragedy with a Happy Ending?] Právní

zpravodaj [Legal Reporter] no. 7/2006), that with comprehensive amending

proposals the government should insist on its right to respond to a

bill under Art. 44 of the Constitution, because this is in fact a

disguised new legislative initiative. In this case, however, it is

evident that the proposal was initiated by the government, which

authorized the Minister of Justice to represent it during the discussion

of the bill amending the Act on Courts and Judges. It is not the job or

the competence of the Constitutional Court to review every detail and

step in the adoption of statutes, if it does not conflict with the

constitutional rules of the legislative process (see judgment no.

331/2005 Coll. – see above). It likewise did not find this in the case

of the comprehensive amending proposal that the Senate used in its

discussion [judgment no. 207/2003 Coll. – judgment file no. Pl. ÚS 14/02

of 4 June 2003 (N 82/30 SbNU 263 Coll.)]. The objection concerning the

use of a comprehensive amending proposal in judgment no. 88/2008 Coll.

(see above) was applied only as a dissenting opinion. Likewise, the fact

that this part of the petition lacks a justification that meets the

requirements of § 86 par. 3 of the Act on the Rules of Procedure of the

Chamber of Deputies does not in and of itself make a statute thus

discussed and approved unconstitutional. The petitioner does, in this

part, point to current problems in the legislative process, but they do

not reach the level of being unconstitutional.

 

40.

So-called “comprehensive amending proposals” have been part of

regulatory law in the Czech Republic for some time. Laws, including

constitutional ones, are passed based on such proposals. So far, the

Constitutional Court has had no reason to cast doubt on this procedure,

either in a case when it came at the initiative of a certain committee

in the Chamber of Deputies in discussing government bills (the usual

case), or in a case where it actually came from the government, which

sought thereby to eliminate the adverse effects of deputies’ bills [see

judgment no. 257/2008 Coll. (see above) in connection with the amendment

of the Commercial Code implemented by Act no. 216/2005 Coll., and

Syllová, J. and collective of authors: Parlament České republiky [The

Parliament of the Czech Republic] 2nd ed. Prague 2008, p. 237]. The

rules of procedure of the Chamber of Deputies do not recognize a

comprehensive amending proposal. However, this is one of the

institutions of parliamentary practice that is within the bounds of the

constitutional order, when a bill is discussed on the basis of the

legislative initiative of a bill sponsor authorized under Art. 41 par. 2

of the Constitution (here, publication no. 425/0), but the basis for

discussion is precisely a comprehensive amending proposal (here,

publication no. 425/1) from the appropriate chamber committee (here it

was the constitutional law committee). However, that does not mean that a

subject with the right of legislative initiative ceases to be the

“master of the bill,” because it is still his legislative initiative.

Therefore, only it has the authority of disposal with the bill (even

though in the form of a comprehensive amending proposal), and can

withdraw it without anything further, until the end of debate in the

second reading in which his legislative initiative is discussed on the

basis of the comprehensive amending proposal (§ 64 in connection with §

86 par. 6 of Act no. 90/1995 Coll., on the Rules of Procedure of the

Chamber of Deputies), and, with the consent of the Chamber of Deputies,

even in the third reading.

 

41.

Therefore, the comprehensive amending proposal in the form of

publication no. 425/1 was still only an amending proposal under § 63

par. 1 point 5 let. a) of the rules of procedure of the Chamber of

Deputies. Therefore, as the sponsor of the bill, the government also had

the opportunity to proceed under § 63 par. 2 of the rules of procedure

and propose suspension of the matter under discussion, or if rejected,

to withdraw it under § 64 of the rules of procedure. In this case the

government did not take these steps; on the contrary, its representative

supported the bill in discussion in the Chamber of Deputies and

defended it in the Senate. The fact that the minister representing the

government declared during the second reading of the bill, on 18 June

2008, that he could “state on behalf of the Ministry of Justice, that we

agree with this additions,” changes nothing about the fact that this

concerned a government bill and the position of the government

representative. Therefore, the Constitutional Court does not consider

this procedure to generally violate the rules for the constitutionally

prescribed process of passing laws, nor to be substantively inconsistent

with the constitutional order in the specific case of approval of

publication no. 425/0 in the Chamber of Deputies. A different procedure

would in the end mean that the Constitutional Court, just as in the case

of “riders” (judgment no. 37/2007 Coll. – see above), would establish

pro futuro an obligation ex offo to review every petition under Art. 87

par. 1 let. a) of the Constitution also in terms of whether the reviewed

statute was not adopted on the basis of a comprehensive amending

proposal (the first alternative proposed judgment – in 4) and whether,

in that case, the regulatory rights of the sponsor of the bill were

preserved, perhaps ad hoc (the second alternative proposed judgment – in

5), whether it contains a sufficiently long justification. This

procedure does not represent such unconstitutional interference. Here

the Constitutional Court points out that two key components of the

constitutional order were approved on the basis of a comprehensive

amending proposal – the Charter, in 1991, and the Constitution, in 1992.

 

42.

Therefore, this part of the petition was denied as unjustified. In

addition, for the sake of completeness, the Constitutional Court must

state that when an objection of unconstitutional procedure in approving

statutes is raised, the principle cited by the petitioner, minimizing

interference, is applied so that in such a case no decision is made

concerning the content of the statute [cf. judgments no. 30/1998 Coll. –

judgment file no. Pl. ÚS 33/97 of 17 December 1997 (N 163/9 SbNU 399),

no. 476/2002 Coll. – judgment file no. Pl. ÚS 5/02 of 2 October 2002 (N

117/28 SbNU 25) and no. 283/2005 Coll. – judgment file no. Pl. ÚS 13/05

of 22 June 2005 (N 127/37 SbNU 593) and resolution file no. Pl. ÚS 5/98

of 22 April 1999 (U 32/14 SbNU 309)]. So the combination of proposed

judgments in II.a in the form that the bill would be partly

constitutional or would not be partly unconstitutional is not at all

possible. Therefore, the Constitutional Court cannot, in such a case,

choose what it will or will not review, because that is a matter to be

decided in the chambers of Parliament. Here the Constitutional Court

(see judgment no. 331/2005 Coll. – see above) must limit itself to

observing the constitutional rules of the legislative process and to

evaluating the results of Parliamentary decisions when they have been

observed. If the rules of procedure of the parliamentary chamber

preserve the status of a bill’s proponent as the master of the bill,

there is generally no room for the Constitutional Court to intervene.

Therefore, it cannot be the task of the Constitutional Court, under § 68

par. 2 of the Act on the Constitutional Court, to obligatorily submit

every bill to the abovementioned review, which would go beyond the

limits of procedural and would mean substantive review. Here too the

rule applies that when implementing its policies the government must

watch out for its rights. Therefore, it is also not correct, e.g., for

such actions by the former government to be subsequently questioned in

the following electoral period.

 

43.

Therefore, this part of the petition was denied as unjustified, from

the standpoint of both levels of argument, i.e. procedural and

substantive, as they were presented by the petitioner (in II.a).

 

V.
Evaluation of the Constitutionality of Individual Provisions Affected by the Petition

44.

On that basis, the Constitutional Court reviewed the remaining part of

the petition in points II.b to II.g, both in terms of the contested

provision itself and in terms of the arguments connected to it.

Therefore, it took as its basis the third proposed judgment in the

petition, as in this case it is not important that the petitioner did

not, in the complicated alternatives, also propose annulment of the

transitional provision of Art. IV of Act no. 314/2008 Coll., because if

this proposal were granted (introducing a term of office for the

chairman of the Supreme Administrative Court) it would on the one hand

by itself cease to make sense, and on the other hand it does not suffer

the defects criticized in the other contested provisions, as the problem

with Art. IV of Act no. 314/2008 Coll. lay only in the process of its

adoption (the comprehensive amending proposal).

 

45.

The Constitutional Court states generally, that in its position, it can

review only the contested provisions of the Act on Courts and Judges

and of Act no. 314/2008 Coll., not the set of all legal arrangements for

the status of judges and court officials on one side and the bodies of

the legislative branch, or, in particular, the executive branch (the

President, the government, the Ministry of Justice, the Ministry of

Finance), on the other side. The role of the Constitutional Court is to

review the contested provisions, not to develop deliberations de lege

ferenda and seek appropriate legislative solutions where the

constitutional order gives that discretion to the legislature.

Therefore, there are other possible solutions on the basis of judicial

self-administration, but the Constitution does not require such

solutions, and it is not possible to evaluate a contested legal

framework from that point of view, nor to contest it on that basis.

Likewise, it was not possible to go back to the historical context of

court administration in connection with the federal organization (the

non-existence of a federal ministry of justice in the Czechoslovak

Federation, in contrast to most federations, and therefore also the

different position of the Supreme Court, outside the reach of the

ministries of justice of the two republics). Finally, we must emphasize

that the petitioner bases its arguments on the functioning of the

“negative cumulative effect” (point 29) of individual provisions in the

amendment of the Act on Courts and Judges. It sees the

interconnectedness of the individual amended regulations as interference

in the independence of judges. In this connection, the Constitutional

Court must point out that its doctrine [in particular, judgments no.

64/2001 Coll. – judgment file no. Pl. ÚS 42/2000 of 24 January 2001 (N

16/21 SbNU 113), no. 349/2002 Coll. (see above) and no. 318/2009 Coll. –

judgment file no. Pl. ÚS 27/09 of 10 September 2009] can strengthen the

reasoning of the petitioner’s position in those areas where all the

constitutional defects raised by it are currently found. In the event

that doubt is cast on the weight of the individual objections in some of

the contested provisions, then their effect on other provisions also

declines, and they may then pass a test of constitutionality. Finally,

the Constitutional Court must emphasize that it had to limit itself to

objections directed against specific provisions of the Act on Courts and

Judges, without being able to apply its conclusions to other frameworks

introduced into the Act after the promulgation of judgment file no. Pl.

ÚS 7/02 (no. 349/2002 Coll.) – see above.

 

V.a
Constitutionality

of Assigning a Judge to the Ministry of Justice under § 68 par. 1, § 68

par. 2 let. b) of the Act on Courts and Judges

46.

As the first two questions, the Constitutional Court reviewed the

justification of the petition for the annulment of the words “the

ministry or” in § 68 par. 1 and in § 68 par. 2 let. b) of the Act on

Courts and Judges, and also § 100a of the Act on Courts and Judges

(point II.b). These provisions are part of Act no. 314/2008 Coll. (see

its points 4, 5 and 28), although they were already in the original text

of the government bill, not in the comprehensive amending proposal, so

they are not subject to the criticisms raised in the alternative

proposed judgments in point II.a. On this point, the Constitutional

Court concluded that the petition is justified only in part. It was

guided by the following deliberations.

 

47.

Proposal II.b has two independent parts. The first part proposes

annulling the possibility of assigning a judge to the Ministry of

Justice in the interest of utilizing his experience; the assignment is

decided by the Minister of Justice with the consent of the judge, and

after discussion with the chairman of the court to which the judge is

assigned under § 67 or transferred § 71 and 72 of the Act on Courts and

Judges. For purposes of evaluating the constitutional aspect of the

matter, it is of fundamental importance here that judgment file no. Pl.

ÚS 7/02 (no. 349/2002 Coll.) annulled the words “the Ministry or” in §

68 par. 1 of the Act on Courts and Judges, in the wording in effect at

the time, as unconstitutional, due to conflict with Art. 82 par. 3 of

the Constitution. Act no. 192/2003 Coll. in point 11, returned the

annulled words “the Ministry or” back into § 68 par. 1, as well as (in

point 20) into § 99 par. 1 let. c), where this provision had also been

annulled by the cited judgment. The Constitutional Court notes that § 68

par. 4 of the Act on Courts and Judges likewise expects the assignment

of judges to the Ministry of Justice. However, that provision was not

contested, either in the proceeding in file no. Pl. ÚS 7/02, or in the

present matter. In the cited judgment (no. 349/2002 Coll.) the

Constitutional Court concluded that an immanent feature of the office of

a judge is its continuous nature. Therefore, membership in the

consulting bodies of a ministry, the government, and both chambers of

Parliament, just like performing the tasks of these various components

of the state power, is inconsistent with the principle of the separation

of powers, not to mention the fact that personal and extra-judicial

ties, which arise during such activity, unavoidably increase the

probability of possible conflicts of interest, and, and thus render

impartiality, in the form of judicial lack of bias, subject to doubt. In

the current wording of the Act on Courts and Judges this

unconstitutional situation was further underscored by the fact that the

period of assignment was now extended to up to three years, in contrast

to the possibility of assignment for a period of up to one year in the

annulled § 68 par. 1 of the Act on Courts and Judges, as in effect until

1 July 2003, when that provision was annulled by judgment no. 349/2002

Coll. The requirement of continuous exercise of judicial office is cast

in doubt even more thereby, and, on the contrary, the objection of

connection with the executive branch becomes even more serious.

Moreover, this must be seen in connection with the fact that the process

of preparation, selection, and assignment of judges in the Czech

Republic, compared with states with a developed judicial

self-administration, is in the hands of the executive branch, in

particular the Ministry of Justice. The Constitutional Court is aware

that this practice is also possible in other countries (France, Sweden,

Germany, Italy, Poland, Slovakia, Austria), but to review this issue it

is necessary to look at the specific context in the Czech Republic and

the role of the Ministry of Justice in the preparation of judges for

office and their career progression, just as to the length of transfer

and the activities of transferred judges at other state bodies in other

countries. Therefore, the Constitutional Court maintains its legal

opinion in judgment Pl. ÚS 7/02 (č. 349/2002 Coll.) and continues to

consider assignment of judges to fulfill tasks in other branches of

state power to be in conflict with Art. 82 par. 3 of the Constitution,

and, in view of the fact that the Constitutional Court has already

expressed this legal opinion (judgment Pl. ÚS 7/02), also with Art. 89

par. 2 of the Constitution; in this regard it also agrees with the

petitioner’s reminder about the requirement to preserve the “external”

or objective independence of a judge, who should appear thus not only to

the parties to a proceeding, but also to the public.

 

48.

It is impossible not to see that in this regard § 99 par. 3 of the Act

on Courts and Judges provides that, during a period of temporary removal

from office for purposes of assignment to the Ministry of Justice, a

judge is entitled to the pay and other benefits connected with holding

the office of judge under a special regulation, which is Act no.

236/1995 Coll., on the Pay and Other Benefits Connected with the

Exercise of Office of State Representatives and Certain state Bodies and

Judges, and Member of the European Parliament, as amended by later

regulations, not under the Labor Code. In its case law, the

Constitutional Court has several times emphasized the reasons why it is

necessary to provide judges protection from withdrawal of pay or other

benefits connected with holding judicial office [most recently in

proceedings conducted as file no. Pl. ÚS 24/07 – judgment of 31 January

2008 (N 26/48 SbNU 303; 88/2008 Coll.), file no. Pl. ÚS 1/08 – judgment

of 20 May 2008 (N 91/49 SbNU 273; 251/2008 Coll.), file no. Pl. ÚS 2/08 –

judgment of 23 April 2008 (N 73/49 SbNU 85; 166/2008 Coll.) and file

no. Pl. ÚS 13/08 – judgment of 2 March 2010 (104/2010 Coll.)]. In this

case, however, these reasons cannot apply, because the judicial power

cannot be exercised in a body of central state administration, so an

inequality necessarily arises in the remuneration of the employees of

such a body on the basis of § 110 of the Labor Code and the judges

assigned on the basis of Act no. 236/1995 Coll., although in that case

they are not performing judicial roles and, moreover, are temporary

removed from the exercise of the judicial office under § 99 par. 1 let.

c) of the Act on Courts and Judges.

 

49.

Annulment of the words “the ministry or” in § 68 par. 2 let. b) of the

Act on Courts and Judges is only a consequence of their annulment in §

68 par 1. As already stated, assigning a judge to the Ministry of

Justice is also regulated in § 68 par. 4 and § 99 par. 1 let. c) of the

Act on Courts and Judges. These provisions were not contested by the

petitioner, but after annulling the abovementioned provisions they

become pointless, because the hypothesis in them “if he was temporarily

assigned to the ministry” can no longer be met, as a result of annulment

of the words “the ministry or” in § 68 par. 1 of the Act on Courts and

Judges.

 

V.b
Constitutionality of Temporary Removal from Office (§ 100a of the Act on Courts and Judges)

50.

The second part of proposal II.b contests the authority of the Minister

of Justice to temporarily remove a judge from the office of chairman or

vice chairman of a court on the grounds that a disciplinary proceeding

has been opened against him under § 100a of the Act on Courts and Judges

(see the petitioner’s arguments under 18 and 19). Regarding this, the

Constitutional Court states that under § 8 par. 3 let. b) of Act no.

7/2002 Coll., on Proceedings in Matters Concerning Judges, Public

Prosecutors, and Court Executors on Proceedings in Matters Concerning

Judges, Public Prosecutors, and Court Executors, as amended by later

regulations, a proposal to open a disciplinary proceeding on the

disciplinary liability of a chairman or vice chairman of a court may be

filed by the Minister of Justice against any chairman or vice chairman

of a court. In connection with this provision, Act no. 314/2008 Coll.

inserted into the Act on Courts and Judges § 100a, which expands the

scope for discretion of the Minister of Justice when deciding to

temporarily remove a judge from office by adding the possibility of

temporarily removal from the office of chairman or vice chairman. The

petitioner asks that this provision be annulled in its entirety,

although its arguments, per their content, are aimed only against the

grounds for possible (not mandatory) removal from the office of a

chairman or vice chairman of a court under § 100a par. 1 let. b) of the

Act on Courts and Judges.

 

51.

Under this provision the Minister of Justice may temporarily remove

from office a chairman or vice chairman of a court if he is subject to a

disciplinary proceeding for a disciplinary transgression, for which the

disciplinary complaint proposes imposing the disciplinary measure of

recall from the office of a judge or recall from the office of chairman

or vice chairman of a court; the removal is for the period until the

disciplinary proceeding is completed with legal effect. It is this

reason that the petitioner expressly contests and against which it

exclusively directs its arguments, without mentioning in the proposal

another possible reason under § 100a par. 1 let. a) of the Act on Courts

and Judges. This other possible reason involves a situation which is

also anticipated by the cited act, i.e. a situation under § 100 par. 1

let. a), where the chairman or vice chairman of a court is subject to

criminal prosecution, or a situation under § 100 par. 1 let. c), that

is, if proceedings were opened against him on grounds stated in § 91 of

the Act on Courts and Judges concerning his lack of competence to hold

the office of judge; the period is until that proceeding is completed

with legal effect. However, the petitioner does not state any reasons

for annulling this part of the contested § 100a of the Act on Courts and

Judges.

 

52.

Because it is proposed to annul § 100a of the Act on Courts and Judges

as a whole, the Constitutional Court nevertheless considers it necessary

to state, regarding this part of the contested provision, that these

cases involve situations that the Minister of Justice cannot himself

bring about or induce through his actions. Criminal prosecution results

from a decision by a body active in criminal proceedings, together with

the preliminary consent of the President (§ 76 par. 1 of the Act on

Courts and Judges). The provision of § 91 of the Act on Courts and

Judges involves situations that also arise from reasons other than

possible arbitrary actions by the Minister of Justice, and their

application includes an opportunity for the judge affected to protect

himself. The provision of § 91 of the Act on Courts and Judges involves

primarily a situation where a judge is not competent to hold judicial

office, when long-term ill health does not permit it. It also involves

situations where a judge was convicted with legal effect of a crime, and

the conviction was not grounds for the termination of the judicial

office under § 94 let. c), if the nature of the crime of which the judge

was convicted casts doubt on the credibility of his continuing in

judicial office, or, in the 5 years before a petition to open

proceedings on the competence of the judge to hold office, the judge was

found guilty of a disciplinary offense at least three times, if that

fact casts doubt on the credibility of his continuing in office (the

“three strikes – you’re out” principle). Therefore, the Constitutional

Court denied this part of the petition as unjustified, as it did not

find violation of the constitutional order in the legal framework

itself, which, however, does not rule out the possibility that such

violation could happen as a result of arbitrary application or misuse of

the provision in a particular proceeding.

 

53.

Thus, the petitioner in fact directs this part of the petition only

against § 100a par. 1 let. b) of the amended Act on Courts and Judges.

In view of this, the Constitutional Court focused on reviewing whether

this authority of the Minister of Justice can be considered an

instrument that can be misused against the independent exercise of the

judicial power, in particular if the minister is a plaintiff in a

disciplinary proceeding who himself proposes the appropriate penalty

under § 8 par. 3 let. b) of Act no. 7/2002 Coll., on Proceedings in

Matters Concerning Judges, Public Prosecutors, and Court Executors , as

amended by later regulations. Therefore, it was necessary to review

whether the regulation itself is unconstitutional, or whether it is not

yet unconstitutional but can, in a particular case, lead to

unconstitutional interference in the independence of courts, or whether,

at an abstract level, it does not allow a constitutionally conforming

interpretation.

 

54.

Here the petitioner, first of all, objects to a rather vague

formulation of the elements of disciplinary offence. However, in this

regard we must emphasize that it did not propose annulment of the

appropriate provision of § 87 par. 2 and § 88 par. 2 of the Act on

Courts and Judges, without at least mentioning these provisions. Thus,

the petitioner did not itself provide more detail on its objections.

Therefore the Constitutional Court considers it necessary to state that

the elements of disciplinary offence by an official under § 87 par. 2 of

the Act on Courts and Judges, i.e., “culpable violation of duties

connected to the office,” must be interpreted in connection with the

definition of the duties of court officials, as required by Art. 91 par.

2 of the Constitution, and that it can be evaluated primarily in

connection with a particular case.

 

55.

In support of its claim the petitioner further stated that the

Minister, as the disciplinary plaintiff, sets the requirements for

himself, as the representative of the central bodies of state

administration of the courts, to temporarily remove a court official

from his office. The same Minister will also have to arrange the interim

administration of the court, which can thus change considerably until

the time that the disciplinary court issues a not guilty verdict. This

interferes in the independence of judges and courts, and the separation

of powers, and opens up the possibility of arbitrariness and chance in

the state administration of the judiciary. The petitioner sees the

fundamental institutional defect of the contested § 100a of the Act on

Courts and Judges not in the individual reasons for temporary removal

from office (see point 56), but in the inadequate legal protection, in

comparison with the temporary removal from office of a judge, when it is

possible to file objections with the disciplinary court (cr. § 100 par.

4 of the Act). Thus, in all the cases governed by § 100a, irreversible

facts can arise during temporary removal from office, through the

interference by an executive branch body. Yet, limiting temporary

removal only to the office of a court official indicates that this is

not meant to involve gravely serious offences, so the risk that the

office will be held by an unsuitable person becomes less distinct in

comparison with the threat to independence. Therefore, the petitioner

considers sufficient the possibility of temporarily removing from office

the chairman or vice chairman of a court as a result of expiration

suspension of the office of judge, and thereby also of a court official

(an accessory function to the judicial office), and therefore proposes

annulling the entire § 100a of the Act on Courts and Judges. If the

legislature is not of the same opinion, it should regulate the temporary

removal from the office of a chairman or vice chairman of a court in a

manner that is comparable, as regards legal protection, with the

protection afforded a judge from temporary removal from office.

 

56.

In this regard the Constitutional Court agreed with that part of the

petitioner’s objections that is directed against the missing remedy

against temporary removal from the office of chairman or vice chairman

of a court. Here the Constitutional Court holds the opinion that was

explained in detail in judgment file no. Pl. 18/06 (no. 397/2006 Coll. –

see above), and under which it is not possible to construct a duality

in the legal position of the chairman of a court as an official of state

administration, on one hand, and a judge, on the other hand. This is

still one and the same person, in whom the actions of both offices are

joined. This must apply not only to the manner of recalling court

officials, but also temporary removal of them from office. Such a

framework must also respect the constitutional principles of the

separation of powers and the independence of the judicial branch, i.e.,

in this case the chairman or vice chairman of a court must have an

opportunity to appeal for protection from interference in his public,

constitutionally guaranteed, subjective right, but also protection from

interference by the executive branch in the judicial branch in the

manner permitted by § 100a par. 1 let. b) of the Act on Courts and

Judges, all the more so that the exercise of such interference is within

the discretion of the Minister of Justice, both in terms of filing a

petition for a disciplinary proceeding before the supreme Administrative

Court, and in terms of temporary removal from office. Therefore, the

means for protection of court officials must be comparable with the

means for protection of a judge. Until that happens, § 100a par. 1 let.

b) of the Act on Courts and Judges, seen in the context of the other

provisions, is inconsistent with the constitutional principle of the

separation of powers and the independence of the judicial branch from

interference by the executive branch.

 

V.c
Constitutionality of an Indefinite Number of Vice Chairmen of the Supreme Court

57.

The petitioner also contests (in II.c) the indefinite number of vice

chairmen of the Supreme Court expressed in the words “vice chairmen” in §

15 par. 1, § 23 par. 1, and § 102 par. 2, the words “vice chairmen” in §

15 par. 2 and § 121 par. 2, the words “vice chairmen” in § 102 par. 1

and § 168, and the words “vice chairmen of the Supreme Court” in § 119

par. 2 in the Act on Courts and Judges. Thus, the amended wording of the

Act on Courts and Judges basically replaces the singular term “vice

chairman” with the term “vice chairmen” in various grammatical cases.

The petitioner points out (in detail, in 22n.), that this change is not

provided justification, except for the claimed conflict with Art. 62

let. f) of the Constitution, which uses the plural, while the Act on

Courts and Judges uses the singular. According to the petitioner, an

unconstitutional situation arises because with other general courts the

chairman of the court, by his proposal, limits the number of vice

chairmen, but with the Supreme Court this is left to the discretion of

the appointing body, i.e. the president. This opened up space for the

executive branch for quite inappropriate and arbitrary interference into

the situation on the Supreme Court. This is underscored by the fact

that the president is not responsible for the activities of the Supreme

Court; however, he is now given the authority to appoint an indefinite

number of vice chairmen, whereby he can change the position of the

chairman of the Supreme Court and the management model for the court,

burden the court’s budget with the financial and other material

entitlements of the new vice chairmen, and, moreover, this situation can

raise career expectations among the regular judges of the Supreme

Court, which need not be free of effects on their decision making.

 

58.

In the Constitutional Court’s opinion, the use of the singular or

plural in a legal regulation does not by itself definitely determine how

many persons it may affect, if that is not evident from the nature of

the matter (cf. also Art. 40 par. 4 of the Legislative Rules of the

Government). Therefore, even the express use of the plural in the

Constitution, without anything further, would not rule out the existence

of only one vice chairman, or require the appointment of a higher

number of vice chairmen. The same applies for the use of the plural in

an ordinary statute. In this case, however, the insertion of the plural

into the cited provisions of the Act on Courts and Judges must be seen

as the intent of the legislature, which is meant to enable the president

to appoint a higher number of vice chairmen of the Supreme Court. The

legislature thereby used the authorization given to it by Art. 91 par. 2

of the Constitution, under which it is within the competence of the

regular legislature to specify the organization of the courts, and at

the same time it thereby removed external differences in the text of

Art. 62 let. f) of the Constitution and the text of the Act on Courts

and Judges before the adoption of Act no. 314/2008 Coll. Therefore, in

this regard the Constitutional Court could not agree with the

petitioner’s objections about the inconsistency between the Act on

Courts and Judges and the Constitution. Of course, just as until now the

appointment of only one vice chairman was not inconsistent with the

Constitution, so such a situation will not be inconsistent with it even

after amendment of the Act on Courts and Judges.

 

59.

However, the foregoing does not mean that the legislature, just like

the appointing body, i.e. the President, has free discretion. When

ruling on the position and role of the judicial branch, the

Constitutional Court has emphasized several times that one cannot

emphasize only a linguistic interpretation. The position of the

President in relation to the judicial branch (including his powers of

appointment) must be interpreted in terms of the rules of the separation

of powers and the need to ensure the independent exercise of the

judiciary. Therefore, the President must respect the fundamental

constitutional bases for the regulation of the position, organization,

and functioning of the court system as a whole, not only from the point

of view of Art. 62 let. f) and Art. 91 par. 2 of the Constitution.

Therefore, in this regard, there is a question as to whether the

legislature did not have a constitutional obligation to also set a

definite number of vice chairmen (as, e.g., in § 1 of the Act on the

Constitutional Court). That would of course mean that the President

cannot appoint only one vice chairman, even if the statute permits

appointing a greater number. The actual number of vice chairmen of the

Supreme Court cannot determine whether the judicial branch is

independent. However, it may have an effect on that, in view of the

factual circumstances surrounding an appointment. In particular,

however, the issue is whether, as in the case of authorizing the

chairmen of other courts, it was not necessary to tie the appointment of

vice chairmen to a proposal by the chairman of the Supreme Court. The

danger to the principle of an independent judicial branch would be

reduced in a situation where § 70 of the Act on Courts and Judges could

be understood as consent, not only with appointment to hold the office

of judge, but also with appointment to an office (here, vice chairman)

at the Supreme Court. However, that is not the case, so in this regard

the chairman of the Supreme Court is in a different position that that

held by the chairmen of high, regional, and district courts when

managing the activities of their courts under § 103 to 105 of the Act on

Courts and Judges.

 

60.

Thus, the contested provision is not inconsistent with the

constitutional order because, under the Constitution, the Supreme Court

could not have more than one vice chairman, but because this process

creates room for interference in the functioning of this court, as the

highest court, by the executive branch, without the presence of any

balancing as is the case in § 70 of the Act on Courts and Judges. In

that case it is the task of the Constitutional Court to remove in

advance the very possibility that such problems could arise, even though

it is possible that in practice, on the basis of the Constitutional

Court’s existing case law [cf. judgment file no. Pl. ÚS 17/06 of 12

December 2006 (N 222/43 SbNU 457), file no. Pl. ÚS 18/06 (see above),

and especially judgment file no. Pl. ÚS 87/06 of 12 September 2007 (N

139/46 SbNU 313)] no problem will arise in this regard. This is all the

more valid because in comparison with the chairmen of other courts the

position of the chairman of the Supreme Court is unusual, because the

Ministry of Justice conducts the management of the Supreme Court through

the chairman (§ 120 par. 2 of the Act on Courts and Judges), not

directly, and because the vice chairmen of the Supreme Court perform

state administration of the Supreme Court in a scope determined in

advance (§ 121 par. 2 of the Act). Further, in view of the possible

number of vice chairmen of the Supreme Court, it is necessary to

emphasize that there are also chairmen of the collegiums of the Supreme

Court, appointed by its chairmen (§ 18 and § 102 par. 3 of the Act on

Courts and Judges). Therefore, in future, the indefinite number of vice

chairmen can create a situation where the performance of judicial

activity by the Supreme Court could be interfered with on the basis of

this provision. It is all the more significant that there is no body of

judicial self-government in the Czech Republic comparable with foreign

models, that makes decisions in personnel matters in the judiciary, and

that the chairman of the Supreme Court here is not in the same position

as in the case of appointing a judge to the Supreme Court. However, in

terms of the maxim of minimizing interference, the Constitutional Court

concluded that it is not necessary to annul all the provisions contested

by the petition that contain the plural of the term “vice chairman of

the Supreme Court,” but that it is possible to limit its intervention to

the legal basis for appointment contained in § 102 par. 1 of the Act on

Courts and Judges. It was guided by these reasons.

 

61.

In this regard, the Constitutional Court is aware that its previous

case law [in particular judgment file no. Pl. ÚS 87/06 of 12 September

2007 (N 139/46 SbNU 313)] addresses the requirement of preserving the

guarantees of judicial independence only partially, when it determines

constitutional limits for designating a judge who can be named as a vice

chairman. In the Constitutional Court’s opinion, it follows from the

position of a vice chairman of the Supreme Court, as well from the

content of his office, that he must first become a judge of that court,

in order to be able to perform state administration of it. Therefore,

the Constitutional Court ruled out the possibility that the President’s

authority to appointment vice chairmen of the Supreme Court would

include, and as a result replace, any stage of the process of appointing

a judge, i.e. including the phase of a judge being assigned to the

Supreme Court by the Minister of Justice, after the prior consent of the

chairman of the Supreme Court, because this is an authority in relation

to the officials of the Supreme Court. Therefore, the Constitutional

Court state the legal opinion that the authority of the President to

appointment a vice chairman of the Supreme Court does not include, and

thus also does not replace, any stage in the process of appointing a

judge of this court, because that could lead to circumvention of the

competence of other state bodies (the Minister of Justice, the chairman

of the Supreme Court). However, because, in contrast to the appointment

process for vice chairmen of other courts (§ 103 par. 1, § 104 par. 1, §

105 par. 1), in the case of appointment to the Supreme Court § 102 par.

1 of the Act on Courts and Judges does not contain sufficient

guarantees of the independence of the judicial branch, in terms of

participation of the council of judges of the Supreme Court, or,

especially, in terms of the chairman of the court, it was necessary to

annul that part of the cited provision that creates the conditions for

such possible interference in the independence of the judicial branch.

It is the task of the Constitutional Court to remove that possibility.

Because the possible threats lie not in the number of vice chairmen

itself (it is not up to the Constitutional Court to specify it either),

but in the listed defects in the process of appointing vice chairmen to

the Supreme Court, as enshrined in § 102 par. 1 of the Act on Courts and

Judges, the Constitutional Court limited itself to annulling that part

of the provision. The petitioner did only ask for annulment of the words

“vice chairmen.” However, because that would lead to a confusing

wording of § 102 par. 1 of the Act on Courts and Judges, it was decided

to annul the words “and the vice chairmen.” It will be the task of the

legislature to regulate (until such time as bodies of judicial

self-administration are created that are not merely advisory) the

process of appointing vice chairmen of the Supreme Court in such a

manner that the independence of the judicial branch in this area cannot

be cast in doubt or interfered with. For that, the Constitutional Court

used its ability to postpone the effectiveness of a judgment, and, under

§ 58 par. 1 of the Act on the Constitutional Court, did so, by

postponing it for approximately one year after promulgation of the

judgment in the Collection of Laws. At the same time, we must respect

the President’s sole discretion appointment authority, which means that

appointment could be contingent on consent only if a constitutional

regulation entrusted that authority to some body. Thus, the

constitutional principle of an independent judiciary does not permit

limiting this constitutional prerogative of the president through an

ordinary statute requiring the consent of another state body. It is

necessary to take into account the fact that including the President’s

appointment authority among the powers in his sole discretion is not

guided by the legislature’s attempt to strengthen the president’s role,

but to strengthen the independence of the judiciary by removing from the

appointment process (and even more so the recall process) – see

judgment file no. Pl. ÚS 18/06 and the government’s participation in the

recall of the chairwoman of the Supreme Court – political influence in

the form of decision making by the government, which, moreover, is

responsible for such decisions to Parliament under Art. 63 par. 4 and

Art. 68 par. 1 of the Constitution. The Constitutional Court emphasizes

that it does not consider the literal copying of the wording in the

Constitution in Art. 62 let. f) – the plural used with the vice chairmen

of the Supreme Court – into an ordinary statute to be sufficiently

certain. Without casting doubt on the President’s sole discretion in his

appointment authority regarding vice chairmen of the Constitutional

Court, this does not mean that the President has the authority to

determine their number. This defect can be removed by, e.g. setting the

number of vice chairmen of the Supreme Court by statute, under Art. 91

par. 2 of the Constitution, or by a framework analogous with the

appointment of vice chairmen in district, regional, and high courts.

 

V.d
Constitutionality of Introducing a Term of Office for Chairmen and Vice Chairmen of Courts

62.

The petitioner also contested the introduction of terms of office for

chairmen and vice chairmen of district, regional and high courts and the

Supreme Court in § 102 par. 2, § 103 par. 2, § 104 par. 2, § 105 par.

2, § 108 par. 2 of the Act on Courts and Judges. The petitioner’s

arguments (for detail see points 25 to 27) is based on the fact that it

“has a feeling” that this is an attempt to circumvent the case law the

case law of the Constitutional Court (in particular judgments file no.

Pl. ÚS 7/02 and file no. Pl. ÚS 18/06 – both, see above) and to limit

the principle of the independence of the judiciary expressly stated in

Art. 81 and 82 of the Constitution and Art. 36 of the Charter. The

Petitioner stated, among other things, that what could be tolerated in a

collegiate decision-making body that includes judges should not be

tolerated in the decision making of the political bodies of the

executive branch. Therefore, in the interest of judicial independence,

it is necessary to accord certain attributes of independence to a court

official who may be removed from office only by the decision of an

independent and impartial body. The Act accepts disciplinary proceedings

as a means of appeal for court officials, only to immediately devaluate

it by setting further reasons when an office terminates, which,

according to the petitioner, can also be considered to violate Art. 89

par. 2 of the Constitution. It emphasized that if repeat appointment

with a virtually empty set of criteria is currently allowed, that

creates the risk of influencing the behavior of judges who want to

continue in office and who are approaching the end of their term of

office.

 

63.

The Constitutional Court, did not agree with these arguments, and

denied this part of the petition as unjustified. The petitioner's

arguments are based on a different legal situation and so nor

consistently distinguish between removal from office due to a

disciplinary offence (penalty) and the termination of an office due to

the passage of time. Unlike an indefinite appointment of a judge in Art.

93 par. 1, the Constitution does not provide such a condition for

holding the office of chairman or vice chairman of a court, and with the

exception of the courts of final appeal, does not even expressly

mention such offices. Thus, insofar as the legislature decided to

introduce a term of office, this can be subject to the review of the

Constitutional Court only in terms of possible interference in other

constitutionally enshrined principles of organization and activities of

the courts, because the very principle of time-limited performance of

certain offices is not in itself inconsistent with the principle of

separation of powers (rather, it is a concrete instance of it),

particularly if it does not directly concern the exercise of the

judicial function itself. Therefore, the time limit on the performance

of state administration of courts (even by a judge) need not be

unconstitutional. It should be emphasized, however, that appointment for

a limited period of time must be (as in other cases) indirectly

proportional to the increased requirements for early recall from a

temporary office. The shorter the term of office, the greater

requirements must be placed on the possibility of early removal from

office. However, the Constitutional Court has dealt with this aspect of

the matter in another context (points 53 to 56). In the Constitutional

Court’s opinion, the proportionality of setting the length of a term of

office corresponds to the fact that, in the case of chairmen and vice

chairmen, court officials are appointed to office by the executive

branch, not by a vote by the judicial self-government of (in such cases

in other countries the term of office is shorter).

 

64.

Another constitutional safeguard is the period for which the

appointment is made. In this respect the specified term of office of 10

years chairmen and vice chairmen of Supreme Courts and 7 years for

chairmen and vice chairmen of other courts is comparable to that of

officials of other bodies or institutions (the Banking Council of the

Czech National Bank, 6 years; the president and vice president of the

Supreme Audit Office, 9 years) to whom the Constitution guarantees an

independent status. The term of office also exceeds the term of the

appointing authority, so the executive branch does not in this way

create “its own” set of officials. Thus, the petitioner's arguments are

directed to questions of the possibility of recalling a court official

[in particular, judgment file no. Pl. ÚS 18/06 (no. 397/2006 Coll.) -

see above], not to the issue of the constitutionality of setting a fixed

term of office. Likewise, this case, unlike the case of assignment of

judge to the Ministry of Justice under § 68 par. 1, § 68 par. 2 let. b)

of the Act on Courts and Judges (in V.a) does not involve violation of

Art. 89, par. 2 of the Constitution, because the Constitutional Court

has not yet addressed the merits of the introduction of a term of office

for court officials. Arguments based on the practice of other

countries, states, especially from Anglo-Saxon law, cannot be relevant

here, in view of the requirements for appointment, and in view of the

usual age of persons appointed as judges or court officials. It is also

not the task of the Constitutional Court to review whether there is a

problem "managerial burnout" or not, or how many officials there are,

and how long they have or have not been in in office.

 

V.e
Constitutionality of the possibility of repeat appointment of chairmen and vice chairmen of courts

65.

In this point, the Constitutional Court agreed with the proposal in

point II.e, i.e. the challenge to the possibility of repeat appointment

of chairmen and vice chairmen of courts in § 105a of the Act on Courts

and Judges, which the petitioner considers to be interference in the

independence of judges and courts in view of the formulation of the

criteria for repeat appointment (more detail in points 29 and 30). The

arguments that the petitioner presents here consist of the inadequate

framework for the criteria for repeat appointment. Of course, these

criteria, provided in the contested § 105a of the Act on Courts and

Judges, i.e. holding the office of chairman or vice chairman without

having committed a disciplinary offence, and without having been

convicted with legal effect of a crime, cannot by themselves be

considered a threat to the independence of the judicial branch. In this

regard, they cannot be criticized in terms of protection of

constitutionality, because in this regard a decision is not the result

of the free discretion of the executive branch, which could be a

possible instrument of interference. In the Constitutional Court’s

opinion, the problem is the very possibility of repeat appointment,

which can lead court officials to act in a way that would meet the

requirements for their repeat appointment, or can lead to their

individual actions, including their decision making (court officials are

primarily judges), to be seen and assessed that way by the outside

world. Given the lack of a system of checks and balances on the

executive branch for its exclusive decision-making powers in personnel

matters, this possibility cannot be ruled out. Therefore, in a

proceeding on abstract review of contested norms, the Constitutional

Court must take it into account, because the statutory framework must

not create conditions for the emergence of personnel corruption, which

would threaten the constitutionally required independence and

impartiality of judges. Possible unconstitutional situations in such a

serious sphere need to be eliminated in advance. In this respect the

consultative role that the Act on Courts and Judges assigns to judicial

councils in § 51 par. 1 let. a), § 52 par. 1 let. a), and § 53 par. 1

let. a) is an insufficient guarantee. In the case of chairmen and vice

chairmen of supreme courts, even that possibility is not provided for.

The Constitutional Court emphasizes that in a proceeding on the abstract

review of the constitutionality of norms it review the contested legal

framework in terms of its potential to endanger the constitutional

imperative to preserve the independence and impartiality of a judge,

i.e., it does not review the particular behavior of several hundred

judges who are involved in court administration at a particular moment.

From this perspective the derogated framework is also capable of raising

external doubts about court proceedings.

 

66.

The petitioner also challenges the transfer of some of the appointment

authority from the Minister of Justice to the President, who is not in

any way equipped to monitor the activities of judicial officials. Of

course, this can hardly serve as a reason for the Constitutional Court

to declare such a transfer unconstitutional in the case of high and

regional courts, given that these authorities are enshrined in the

Constitution. In addition, it must be noted here that appointing these

officials does not fall within the scope of the sole discretionary

powers of the president under Art. 62 of the Constitution, but under

Art. 63 par. 3 of the Constitution in connection with Art. 91 par. 2 of

the Constitution. Finally, as in other contexts, it must be noted that

the President’s appointment authority must be seen in the context of the

principles of the organization and functioning of the judicial branch

enshrined in the Constitution. Regarding the petitioner’s objection that

the sensitivity of this topic is intensified by preserving judicial

internships at the Ministry of Justice, it must be noted that when this

judgment goes into effect that objection will become pointless.

 

V.f
Constitutionality of Transition Provisions for Implementing Terms of Office of Chairmen and Vice Chairmen of courts

67.

The petitioner also contests the transitional provisions in points 4,

5, 6, 7, 8, 9, 10 and 11 in Art. II in Part One of Act no. 314/2008

Coll. for the implementation of terms of office of chairmen of courts,

which are shorter than the newly established terms of office of the

relevant officials. Here the Constitutional court can only state that a

transition period in itself cannot be unconstitutional, unless it is

disproportional to the term of office. Such lack of proportion was not

found in view of the proportion of 19 years in office and a 1 year

transitional period for officials appointed up to 1989, 18 years in

office and a 2 year transitional period for officials appointed in 1990,

14 to 17 years in office and a 3 year transitional period for officials

appointed from 1991 to 1994, 10 to 13 years in office and a 4 year

transitional period for officials appointed from 1995 to 1998, 8 to 9

years in office and a 5 year transitional period for officials appointed

from 1999 to 2000, 6 to 7 years in office and 6 year transitional

period for officials appointed from 2001 to 2002, and a transitional

period of the same length as the term of office for officials appointed

from 2003 until Act no. 314/2008 Coll. went into effect. Therefore, the

Constitutional Court denied as unjustified the proposal to annul the

transitional provisions to introduce terms of office of chairmen of

courts in points 4, 5, 6, 7, 8, 9 and 10 in Art. II in Part One of Act

no. 314/2008 Coll..

 

68.

As regards the transitional provision for introducing a term of office

for the chairman and vice chairmen of the Supreme Court in point 11 in

Art. II in Part One of Act no. 314/2008 Coll., the Constitutional Court

concluded that in the case of the chairman of the supreme Court this

disproportion appears to be serious , both in terms of time, i.e. the

ration of the specified transitional period to the length of the term of

office, and in relation to the vice chairman of the Supreme Court and

the chairman of the Supreme Administrative Court. Here the

Constitutional Court agrees with the petitioner’s arguments (point 32),

pointing to the circumstances of the case and the misuse of the

statutory form in the particular matter. Therefore, this provision was

annulled as unconstitutional, because, as a manifestation of

arbitrariness by the legislature, it interferes in the principles of a

law-based state under Art. 1 par. 1 of the Constitution. At the same

time, given the circumstances of the case, it is a violation of the

right to access to public office on equal terms under Art. 21 par. 4 of

the Charter. In view of the circumstances of the case, this is also an

impermissible covert form of an individual legal act directed against a

particular person, and therefore an attempt to interfere in the

independence of the judicial branch.

 

69.

Because derogation of the transition provision in point 11 in Art. II

in Part One of Act no. 314/2008 Coll. would establish inequality, as the

chairman and vice chairman of the Supreme Court would be the only two

officials in the entire court system whose term of office would remain

unlimited, i.e. to an inequality that could only with difficulty be

considered acceptable in constitutional law , the Constitutional Court

took advantage of the possibility of postponing the enforceability of

this verdict in the judgment, and, under § 58 par. 1 of the Act on the

Constitutional Court postponed it for approximately one year from the

promulgation of the judgment in the Collection of Laws. It will be the

task of the legislature to adopt a transitional provision governing the

term of office of existing officials of the Supreme Court in the same

manner as for officials of the Supreme Administrative Court.

 

V.g
Constitutionality

of the Term of Office of the Chairman and Vice Chairman of the Supreme

Administrative Court and the Possibility of their Repeat Appointment to

Office

70. The petitioner also,

without reasons analogous to the case of chairmen and vice chairmen of

district, regional, and high courts and the Supreme Court, seeks (in

point 33) annulment of the amended provisions of § 13 par. 3 and § 13a

of Act no. 150/2002 Coll., the Administrative Procedure Code, as amended

by Act no. 314/2008 Coll., i.e. the implementation of a term of office

of 10 let for the office of chairman of the Supreme Administrative Court

and the possibility of repeat appointment to that office. In that case,

however, the transitional provision of Art. IV of Act no. 314/2008

Coll. is not contested.

 

71.

In the case of the chairman and vice chairman of the Supreme

Administrative Court, the Constitutional Court concluded that this

proposal must share the fate of the analogous proposals in II.d and

II.e. Therefore, this proposal was denied as unjustified, for the same

reasons (see point 62n.), as regards introduction of a term of office

for officials of the Supreme Administrative Court. In contrast, for the

same reasons as in point 65, the proposal to annul § 13a of the

Administrative Procedure Code was granted. Overlooking Art. IV of Act

no. 314/2008 Coll., which is a transitional provision to § 13 par. 3 and

§ 13a of the Administrative Procedure Code, is meaningless in this

case, because, even if that did not happen, it would not be possible, in

light of what was stated in point 68, to decide otherwise, when both

the length of the term of office and the length of the transitional

period of 10 years are mutually proportional. Finally, in this case the

petitioner does not even contest the transitional period, because it

says that a constitutionally conforming possibility might be to exhaust

the entire term of office provided by statute, counted from the date

when the statute when into effect. In this case that requirement has

been met.

 

VI.
Conclusion

72.

In conclusion, the Constitutional Court summarizes that it found the

petition to be partly justified. Therefore, under § 70 par. 1 of the Act

on the Constitutional Court it acted to delete:

a)

the words “to the Ministry or” in § 68 par. 1, and the words “the

Ministry or” in § 68 par. 2 let. b) of Act no. 6/2002 Coll., due to

inconsistency with the constitutional principle of separation of powers

under Art. 2 par. 1 of the Constitution and the independence of the

judicial branch and impartiality of judges under Art. 81 and Art. 82

par. 1 and 3 of the Constitution, and due to inconsistency with Art. 89

par. 2 of the Constitution, under which enforceable decisions of the

Constitutional Court are binding on all bodies and persons,

 

b)

§ 100a par. 1 let. b) of Act no. 6/2002 Coll., due to inconsistency

with the constitutional principle of separation of powers under Art. 2

par. 1 of the Constitution and independence of the judicial branch under

Art. 81 and Art. 82 par. 1 of the Constitution, and due to

inconsistency with the constitutionally guaranteed right to equal access

to public office Art. 21 par. 4 of the Charter in connection with the

constitutionally guaranteed right to judicial review of the legality of a

decision by a public administration body under Art. 36 par. 2 of the

Charter,

 

c)

the words “and vice chairmen” in § 102 par. 1 of Act no. 6/2002 Coll.

due to inconsistency with the constitutional principles of certainty of

law and the prohibition of arbitrariness in the exercise of state power,

arising from the concept of a democratic state governed by the rule of

law under Art. 1 par. 1 of the Constitution, due to inconsistency with

the constitutional principle of separation of powers under Art. 2 par. 1

of the Constitution and independence of the judicial branch under Art.

81 and Art. 82 par. 1 of the Constitution, and due to inconsistency with

Art. 91 par. 2 of the Constitution, under which determining the

organization of the courts is within the competence of the legislature,

which must do so by statute,

 

d)

point 11 in Art. II of Act no. 314/2008 Coll. due to inconsistency with

the principles of a democratic state governed by the rule of law under

Art. 1 par. 1 of the Constitution, prohibiting the arbitrary exercise of

the state power and misuse of the form of a statute to adopt an

individual legal act against a particular person, due to inconsistency

with the constitutionally guaranteed right to equal access to public

office under Art. 21 par. 4 of the Charter, and due to inconsistency

with the constitutional principle of the independence of the judicial

branch under Art. 81 and Art. 82 par. 1 of the Constitution, and finally

 

e)

§ 105a of Act no. 6/2002 Coll. and § 13a of Act no. 150/2002 Coll. due

to inconsistency with the constitutional principle of separation of

powers under Art. 2 par. 1 of the Constitution and the independence of

the judicial branch and the impartiality of judges under Art. 81 and

Art. 82 par. 1 and 3 of the Constitution;

 

The

Constitutional Court postponed enforceability of the judgment, in the

case of deletion of the words “and the vice chairman” in § 102 par. 1,

of Act no. 6/2002 Coll. and point 11 in Art. II of Act no. 314/2008

Coll. under § 58 par. 1 of the Act on the Constitutional Court, for

approximately one year, in order to provide the legislature sufficient

time to adopt a constitutionally conforming legal framework and in order

to prevent serious consequences that would be associated with immediate

of these provisions. The Constitutional Court did not find the

remainder of the petition justified, and therefore denied it under § 70

par. 2 of the Act on the Constitutional Court.

_________________________________________________________________________________________________________________

 


Dissenting

opinions to the decision of the plenum, under § 14 of Act no. 182/1993

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

were filed by Judge Jan Musil, regarding the part of verdict I

derogating the words “to the Ministry or” in § 68 par. 1 and in § 68

par. 2 let. b) of Act no. 6/2002 Coll., and regarding verdict IV, Judges

Ivana Janů, Vladimír Kůrka and Pavel Rychetský regarding verdict IV,

Judge Eliška Wagnerová regarding verdict V, and Judge Pavel Holländer

regarding the reasoning for verdict IV.
 
1. Dissenting

opinion of Judge Jan Musil to the part of verdict I deleting the words

“to the Ministry or” in § 68 par. 1 and in § 68 par. 2 let. b) of Act

no. 6/2002 Coll. and to verdict IV

I

disagree with the parts of verdict I and with verdict IV of the

judgment of the Plenum of the Constitutional Court of 6 October 2010

file no. Pl. ÚS 39/08, which, among other things, annulled the words “to

the Ministry or” in § 68 par. 1 and the words “to the Ministry or” in §

68 par. 2 let. b) and which annulled § 105a of Act no. 6/2002 Coll., on

Courts, Judges, Trainee Judges, and the State Administration of Courts

and Amending Certain Other Acts (the “Act on Courts and Judges”), as

amended by Act no. 314/2008 Coll., and § 13a of Act no. 150/2002 Coll.,

the Administrative Procedure Code, as amended by later regulations.

Under

§ 14 of Act no. 182/1993 Coll., on the Constitutional Court, as amended

by later regulations, I submit a dissenting opinion to these parts of

the judgment, with the following reasoning:

 

I.

Alleged Unconstitutionality of Temporary Assignment of a Judge to the

Ministry of Justice under § 68 par. 1, § 68 par. 2 let. b) of the Act on

Courts and Judges

1. The

annulling judgment justifies the unconstitutionality of temporary

assignment of a judge to the Ministry of Justice (in points 47 and 48 of

the reasoning of the judgment) with several arguments:

a)

inconsistency with the principle of separation of powers, which rules

out connecting the judicial branch with the executive branch
b) violation of the requirement that a judge be independent
c) violation of the requirement of “continuous exercise of the office of a judge”
d)

inequality arising in the compensation of employees to the Ministry of

Justice on one side, and assigned judges on the other side
e) failure to comply with the previous judgment of the Constitutional Court, file no. Pl. ÚS 7/02.

 

2.

I believe that the institution of temporary assignment of a judge to

the Ministry of Justice does not in any way violate the constitutional

principle of strict separation of the judicial branch and the executive

branch, the principle that a judge must be independent, or the principle

that the office of a judge is incompatible with an office in public

administration (Article 82 par. 1 and 3 of the Constitution). The

objections raised in the judgment, concerning the “connection of the

judicial branch with the executive branch” and “violation of the

requirement that a judge be independent” would certainly be relevant in a

situation where, during temporary assignment of a judge to the Ministry

of Justice the judge simultaneously exercised both powers, i.e., both

adjudicated cases and exercised administrative powers at the ministry.

Of course, nothing like that in fact happens. During temporary

assignment to the Ministry the performance of the judicial office is, in

fact, interrupted, and during that time the judge performs different

tasks at the ministry “in the interests of benefiting from his

experience” (§ 68 par. 1 of the Act on Courts and Judges).

 

3.

The hypothesis that a judge will be affected in his future judicial

activities (after the temporary assignment) by his previous activities

at the ministry is purely speculative – personal integrity and the

requirements imposed on the selection and activities of judges must

provide sufficient guarantees against such future influence. Following

the logic of that hypothesis, it would be necessary to strictly prevent

judges, before being appointed, from performing any activities in the

legislative branch or in administration, in order not to be

“contaminated” by it; the idea that a judge is some sort of “tabula

rasa” living outside the social reality is entirely illusory.

 

4.

In order not to burden this dissenting opinion with long and repetitive

interpretations, I wish, for reasons of brevity, to refer to the

arguments presented in the joint dissenting opinion of Judges Jiří

Malenovský, Vlastimil Ševčík, and Pavel Varvařovský in the matter file

no. Pl. ÚS 7/02, which concerned analogous issues. Those dissenting

judges stated, among other things, the following opinions (with which I

agree):

- With its derogative

changes the Constitutional Court’s decision demonstrates a concept of

judicial power freed from ties and specific relationships with both of

the other pillars of state power, including from such ties and

relationships as are not capable of evoking detriment to the

independence of courts and judges, and are thus not in conflict with the

principles of a state governed by the rule of law. The purpose of a

state governed by the rule of law is not, in our opinion, judicial power

immersed in itself and isolated from the other powers, but one

reasonably cooperating with the legislative and executive powers.”

-

“Therefore, a judge may not be forbidden any personal or extra-judicial

social ties which occur outside of a causal connection with his

decision-making. This also applies to the temporary assignment of a

judge to the Ministry or to his activity in advisory bodies to the

executive or legislative powers.”

-

“In any case, “assignment” to the Ministry in and of itself is

certainly not the exercise of an “office” in public administration. It

could possibly be in conflict with Art. 82 par. 3 of the Constitution,

if, during assignment, a judge assumed an “office’ in public

administration, i.e. if he independently performed the tasks of state

administration and if he were endowed for it with the appropriate

authorizations and activity. The temporary nature of the assignment,

temporary release from the exercise of the office of a judge, and the

judge’s consent to the assignment are adequate guarantees against

detriment to the independence or impartiality of judges. We consider it

undoubted that under the stated conditions the “actual independence” of a

judge … is ensured.”

- “Neither

the Constitution nor the principles of a state based on the rule of law

can be interpreted to rule out reasonable cooperation by the judicial

power with the executive or legislative powers, provided that during

this cooperation there is no pressure, inappropriate influence or other

interference toward the judge in connection with the exercise of his

decision-making activity ….”

 

5.

In point 47 the judgment invokes the requirement of “continuous

exercise of judicial office,” which was already expressed in judgment

file no. Pl. ÚS 7/02. I believe that such a requirement cannot be

derived from any constitutional regulation. Indeed, the Act on Judges (§

99) recognizes three reasons for temporary removal from judicial

office. One can surely also imagine a situation where the office of a

judge terminates (e.g. because of resignation – § 95), a person carries

out other activities for some time during his career , and is then again

appointed to be a judge – in our time, characterized by considerable

professional mobility, this is not necessarily an atypical case. In many

foreign countries changing between various legal professions during

one’s life is quite common (e.g. changing between the professions of

judge, state prosecutor, attorney, ministry official, university

professor, etc.) and is even considered beneficial for improving one’s

professional qualifications.

 

6.

In my opinion, the argument (in point 48 of the reasoning of the

judgment) pointing to the inequality arising in compensation between

employees of the Ministry of Justice on one side, and assigned judges on

the other side, has no constitutional law relevance. This situation can

be addressed by different means, at the level of sub-constitutional

norms, without having to annul the contested provision.

 

7.

Regarding the argument that the contested legal framework fails to

comply with the previous judgment of the Constitutional Court, file no.

Pl. ÚS 7/02, I state: The objections contained in that judgment in

relation to the institution of temporary assignment of a judge to the

Ministry at that time were tied to a different legislative framework

than that which exists today.

The

cited previous judgment, file no. Pl. ÚS 7/02, was adopted on 18 June

2002, i.e., eight years before the present judgment. Since then, the Act

on Courts and Judges was amended eight times. Although the amendments

to the Act concerned very diverse matters, I believe that some of them

were appropriate responses to the criticisms contained in judgment file

no. Pl. ÚS 7/02, concerning the Ministry’s excessive influence on the

functioning of the judicial system. Indeed, the very deletion of a

number of provisions from the Act on Courts and Judges by judgment file

no. Pl. ÚS 7/02 (e.g., the proceeding to review the professional

qualifications of judges) weakened the Ministry’s opportunities to

influence the functioning of the judicial system.

In

this new situation it was appropriate to reconsider whether the

institution of temporary assignment of a judge to the Ministry still has

sufficient weight to violate the constitutional principles of the

judiciary. Although I fully respect, of course, the constitutional

principle that decisions of the Constitutional Court are binding on all

bodies (Art. 89 par. 2 of the Constitution), I believe that, in view of

the changed context, the legislature did not violate this principle.

 

8.

The institution of temporary assignment of a judge to the Ministry is

completely standard in foreign legislative frameworks, where it does not

create any constitutional doubts or practical problems (e.g., in

Germany, France, Sweden, Italy, Poland, Slovakia, Austria, Iceland).

Insofar as the judgment invokes the specific conditions in the Czech

Republic that are supposed to justify a different approach on our part,

that reasoning is not at all persuasive for me; the cited specific

conditions have no causal connection with temporary assignment.

 

9.

I add that temporarily assigning judges to the Ministry has many

practical advantages, it has proven its value in practice, and in my

opinion it is not presently overused by the Ministry or misused for

purposes other than legitimate ones. It is especially important for the

preparation of legislative projects for which the Ministry is

responsible (e.g. the drafting of a new Criminal Code).

II.

Alleged Unconstitutionality of the Possibility of Repeat Appointment of

Chairmen and Vice Chairmen of Courts under § 105a of the Act on Courts

and Judges and under § 13a of Act no. 150/2002 Coll., the Administrative

Procedure Code, as amended by later regulations

 

10.

I do not consider the possibility of repeat appointment of court

officials (i.e., chairmen and vice chairmen of general courts of all

levels, including the Supreme Administrative Court) to be

unconstitutional, and I do not agree with annulment of § 105a of the Act

on Courts and Judges and § 13a of the Administrative Procedure Code.

 

11. In this matter I agree with the dissenting opinion of Judge Pavel Rychetský, and for reasons of brevity refer to it in full.

 


2. Dissenting opinion of Judge Ivana Janů to verdict IV of the judgment

I

differ from the opinion of the majority of the Plenum on the question

of the constitutionality, or unconstitutionality, of repeat appointment

to the office of chairman (vice chairman) of a court. I am of the

opinion that the justification for unconstitutionality of repeat

appointment, as set out in points 65 and 66 of the judgment, lacks

constitutional law arguments.

 

In

my dissenting opinion to part of the reasoning of judgment file no. Pl.

ÚS 18/06, I emphasized, in an international comparison, the relatively

standard model of a limited term of office for (the highest) court

officials, in which the possibility of repeat appointment is not an

exception. My line of argument in the matter then adjudicated was led

against the model of an unlimited (life) term of office, in the face of

the individual personalities of judges, where excellent judicial

competence need not always include exceptional management qualities. I

expressed the concern that “precisely in these situations, an unlimited

term of office, which could last for decades, is an obstacle to the

selection of a more suitable person.”

 

I

believe that in the present matter this argument also applies and lets

me be consistent. Insofar as the majority opinion a priori ruled out the

constitutionality of possible repeat appointment as a court official,

it set up, quite analogously to the previous legal situation, “an

obstacle to the selection of a more suitable person,” who, beyond any

doubt, could be a court official who has already held the office and in

which he proved himself to be outstanding.

 

The

reservoir of judges in the Czech Republic is not bottomless, and the

approach chosen by the Plenum’s majority opinion may, in time (after

several terms of office), result in a problem for some smaller courts to

ensure enough new candidates. If holding office in a court is to be

part of the repeatedly cited “career progression” of a judge, I ask

myself to what extent that idea is fulfilled when it is impossible for a

court official to be appointed repeatedly, no matter how successful he

was in his office. If the Plenum’s conclusions are guided by concerns

about self-serving behavior by judges and court officials in an attempt

to please the executive branch, for whatever reason, then the principle

question comes back into play, to what extent is the personal integrity

of the courts, their professional status and institutional autonomy any

guarantee of proper administration of the courts in the context of the

permanent tension that exists between the branches of government in the

country.

As regards details, I refer to the reasoning provided in the dissenting opinions of Judges Vladimír Kůrka and Pavel Rychetský.


 

3. Dissenting opinion of Judge Vladimír Kůrka to verdict IV of the judgment

The

majority of the Plenum overlooked the fact that the Constitutional

Court is not in the position of a body that establishes the regime for

the creation of court officials of the general courts, i.e. that its

constitutional role is not finding a regime that is suitable, or

“better” as opposed to “worse,” and therefore its deliberations should

not be of the type “more likely yes” or “more likely no,” or, “one can

agree” or not. It is the legislature that is called on to normatively

establish a certain legal situation (here, the possibility of repeat

appointment of judges to the offices of chairmen and vice chairmen of

general courts), which it did in the contested statute, and therefore,

reversing the situation enshrined there in requires – logically – a

strong argument; not only a strong argument, but an argument to prove

that this legislative situation is unconstitutional.

 

However,

the opinions or the majority of the Plenum, included in the appropriate

part of the reasoning of the judgment (paragraphs 65 and 66), do not

contain appropriate (constitutionally relevant) arguments. The

emphasized threat to the independence of a judge in the position of a

court chairman (vice chairman) pursuing re-appointment to that office is

conceived exclusively on a hypothetical and speculative level, and it

is not documented in any way that this is so, or must be so, even if

only on an abstract level and in the degree of external “appearance.”

 

It

is not indicated in any way how the majority of the Plenum imagines

that an the pursuit of such appointment to these offices could

influences judicial decision making (sic!), which it would be necessary

to prove, because  only that can matter.  If it is even permissible to

descend to this level of deliberation, then we cannot not mention that

one can already imagine such a “threat” at the point when a judge seeks

to be appointed to the office of chairman (vice chairman) for the first

time.

 

If

it is not a threat to the independence of the Constitutional Court that

a judge can be appointed (also “from outside,” by representatives of

other branches) repeatedly, then it can hardly be claimed, that the

situation should be otherwise with the analogous appointment of (only) a

court official.

 

Limiting

repeat appointment to the office of chairman (vice chairman) in any

case does not prevent a “former” chairman (vice chairman) be appointed

to the same office at a different court.

 

The

claimed uncertainty of the conditions for repeat appointment set out in

§ 105a of the Act falls away with the interpretation that an obvious

requirement is a qualitative assessment of how the office of chairman

(vice chairman) was performed so far, and there is no need to disqualify

the role (even if only “consultative”) of judicial councils in advance.

 

Although

it is obviously not significant in the present “constitutional”

context, it is nevertheless worth noting that the practical consequence

established by the majority of the Plenum will be the weakening of

“good” court administration, because the office of chairman (vice

chairman) of a court will lose its current prestige (“one day every

judge will be chairman”); the judges will also not have sufficient

motivation to effectively (“managerially”) make it theirs, because by

the nature of the matter they would have to do so at the expense of the

judicial education, which cannot be “worth it” for a mere seven years

within a lifetime career as a judge “.
 

 


4. Dissenting opinion of Judge Pavel Rychetský to verdict IV of the judgment

This

dissenting opinion, which I am filing under § 14 of Act no. 182/1993

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

directed exclusively against verdict IV of the judgment. With this

verdict the majority of the Constitutional Court annulled the

possibility of repeat appointment of court officials (i.e., chairmen and

vice chairmen of general courts of all levels, including the Supreme

Administrative Court) after the expiration of their newly defined term

of office. The Plenum of the Constitutional Court did not agree with the

reasoning of the petitioner, which based the petition to annul the

institution of repeat appointment of court officials on the insufficient

criteria for the possibility of repeat appointment of a court official,

and the resulting unconstitutional threat to the independence of the

judicial branch. On the contrary, the plenum of the Constitutional Court

expressly states regarding these arguments that “in this regard they

cannot be criticized in terms of protection of constitutionality.”

However, according to the reasoning of the judgment, the majority of the

judges of the Constitutional Court sees the unconstitutionality of the

contested provisions (§ 105a of the Act on Courts and Judges and § 13a

of the Administrative Procedure Code in “the very possibility of repeat

appointment, which can lead court officials to act in a way that would

meet the requirements for their repeat appointment, or can lead to their

individual actions, including their decision making (court officials

are primarily judges), to be seen and assessed that way by the outside

world.” Of course, in my opinion these arguments are rather testimony of

the constitutionality and overall usefulness of the institution

permitting the repeat appointment of court officials, because it assumes

prima facie that court officials – guided by their desire to be

appointed again – will perform their offices in the court administration

as well as possible. The following passage in the reasoning of the

judgment, about the fact that the contested legal framework thus creates

conditions for “personnel corruption” and potentially threatens the

constitutional imperative of the independence and impartiality of

judges, is based on the premise of a potential ill will, both on the

part of the judges whom the state entrusted with the role of court

administration, and on the part of state representatives to whom the law

gives the appointing authority. Of course, within an abstract review of

the constitutionality of a statute I cannot agree with the reasoning

that is based on the existence of such ill will, because, of course,

every legal regulation can be abused from a position of “ill will.”

Moreover, I believe that if in the abstract review of norms this

starting point were to be one of the basic guiding criteria for

reviewing the constitutionality of the institution of filling offices

that carry the authority to administer the courts, it would also have to

apply in the same degree to the first appointment to such an office.

From all the arguments to this derogative part of the judgment, which

is, moreover, limited to a single paragraph under point 65, I accept

only the deliberations that the overall concept of the statutory (or

constitutional) regulation of the judicial branch does not yet represent

sufficient guarantees of a balance of powers in the state that would

meet the requirements for full institutional establishment of judicial

independence. Of course, the task of the Constitutional Court in an

abstract review of norms is not to seek optimal models for the

functioning of a democratic, law-based state (it can only define them),

but exclusive protection of the constitutionality of the legal order,

with an exclusive derogative authority regarding those parts that it

finds to be unconstitutional, but not merely unsuccessful. Therefore, I

conclude that § 105a of the Act on Courts and Judges and § 13a of the

Administrative Procedure Code are not, in my opinion, inconsistent with

the constitutional order of the Czech Republic.
 

 

 

5. Dissenting opinion of Judge Eliška Wagnerová to verdict V of the judgment

With

this dissenting opinion I express disagreement with denying the

petition to annul Art. II points 4 to 10 – i.e., the transitional

provisions of Part One of Act no. 314/2008 Coll., which differently set

the end of the term of office of existing chairmen and vice chairmen of

courts, depending on the number of years they have served in office,

where the period is generally shorter than the term of office introduced

by the Act.

 

I

fully agree with the petitioner that the introduction of a term of

office itself is retroactive interference in the performance of a public

office, which the office of a judge serving as chairman or vice

chairman of a court undoubtedly is. Nonetheless, the legislature

presented rational grounds for introducing a term of office,

representing various aspects of the public interest in the proper

functioning of the judiciary, which can be constitutionally accepted,

because in weighing the retroactive interference in the undisturbed

performance of office against the interest in proper exercise of the

judiciary, one can agree with the legislature’s balancing of the two

interests as it reflected in setting the basic lengths of terms of

office of court officials (§ 102 par. 2, § 103 par. 2, § 104 par. 2, §

105 par. 2 of the Act on Courts and Judges). The interest in the proper

functioning of the judiciary is an expression of the constitutional

principle or concept of a law-based state (Art. 1 par. 1 of the

Constitution of the Czech Republic), the implementation of which is

unthinkable without a functioning judiciary.

 

It

is otherwise in the case of setting the end of the term of office of

existing court officials contained in the transitional provisions. In

that case the legislature shortened the term of office so markedly, that

its actions create the impression that it did not even recognize the

need to preserve the interest in undisturbed exercise of public office,

manifesting itself not only as a fundamental right of the presently

serving chairmen and vice chairmen of courts (in which it did not

interfere as disproportionately), but also as a principle (value) – a

component of objective law [Art. 21 par. 4 of the Charter as interpreted

by the Constitutional Court – see judgment file no. II. ÚS 53/06 of 12

September 2006 (N 159/42 SbNU 305) – undisturbed exercise of public

office], which structure the position and relationships between the

branches of government in the state. Because, just as the courts are

required to decide so that, if possible, as much as possible of both

fundamental rights will be preserved, and if that is not possible, then

to give priority to the fundamental right that is best supported by the

general idea of fairness, or the general principle, so the legislature

is always required to seek a solution that would permit preserving

conflicting constitutional principles to the greatest possible degree.

If that is not possible, it must be completely evident and clear wherein

lies the urgent need to significantly reduce one of the conflicting

constitutional principles.

 

The

absence of a truly urgent need or important public interesting

justifying the disproportional reduction of the principle of undisturbed

exercise of public office is supported by the fact that the legislature

allowed repeating the chairman’s or vice chairman’s mandate (§ 105a of

the Act on Courts and Judges, or § 13a of the Administrative Procedure

Code). Nothing about this is changed by the fact that these statutory

provisions were annulled by the present judgment, although on different

grounds (the possibility of personnel corruption, or at least the

appearance thereof).Finally, empirical data in the form of the recent

repeat appointment of certain chairmen of courts who had been serving

for decades testifies to the fact that neither the legislature, nor the

executive branch (the Minister of Justice) considered securing the

public interest in a functioning judiciary by replacing court officials

to be such a clearly urgent reason as would be constitutionally capable

of justifying such fundamental interference in the principle of

undisturbed exercise of public office. On the contrary, the adopted

legislation may, at a minimum, raise the suspicion that the legislative

and executive branches used it to create conditions for themselves to,

in a very short period, replace the management of all the courts

according to its own (i.e., political) ideas, as the Act does not set

any substantive criteria for the selection of court officials, just as

it also does not contain any correction, or balancing, of the appointing

authority of the executive branch. Such an interest would, of course,

not be in the least capable of limiting the principle of uninterrupted

exercise of public office in any way.

All

these reasons led to my being unable to agree with the denial of the

petition, in the scope that I set out in the first paragraph of my

dissenting opinion.
_________________________________________________________________________________________________________________

 


6. Dissenting opinion of Judge Pavel Holländer to the reasoning of verdict IV of the judgment

I

agreed with verdict IV of the judgment of the Constitutional Court in

the matter file no. Pl. ÚS 39/08, which annuls § 105a of the Act on

Courts and Judges, but for different reasons that those in the reasoning

of the judgment. These are based on the argument of the possibility of

the “creation of personnel corruption, which would threaten the

constitutional imperative of the independence and impartiality of

judges.”

 

Insofar

as the majority vote connects the appointment of chairmen and vice

chairmen of courts with the possibility that judges will seek these

offices even at the price of “personnel corruption” and if we accept

that premise, then there is no reason to believe that this will happen

only with repeat appointment. In my opinion, from that point of view,

the purpose of the annulled statutory provision formulated in the

reasoning of the judgment does not meet the first step in the

proportionality test, the requirement of suitability.

 

I

maintain that the constitutionality of the subject provision must be

evaluated in connection to the length of the term of office (§ 102 to §

105 of the Act on Courts and Judges), and also with regard to the

safeguards that the Constitutional Court has expressed in its case law

regarding the nature of the office of chairman (and vice chairman) of a

court. The tenor of them is the proposition contained in judgment file

no. Pl. ÚS 18/06: “In reviewing the position of chairmen of courts as

court officials appointed by the Minister of Justice and by the

President, it must be observed that a court official continues to take

part in his own decision making activity as a judge. One must then begin

with the premise that the role of chairmen of courts, as well as that

of the chairman of the Supreme Court, is inseparable from the role of a

judge, because we cannot construct a duality in the legal position of a

chairman of a court as an official of state administration on one hand,

and a judge on the other hand. Thus, the attributes of the independence

of the judicial branch, or the independence of judges, must also be

applied in the foregoing sense to the chairmen of courts.”

 

In

my opinion, the repeated possibility of holding the office of chairman

or vice chairman of a court, in connection with the length of the term

of office, creates a situation in which for chairmen and vice chairmen

of courts the role of performing state administration already

predominates, to the detriment of the role of judge, which I see as a

violation of the constitutional principle of the independence of the

judicial branch and the independence of judges under Art. 81 and Art. 82

par. 1 of the Constitution.

 

*/*