2002/06/18 - Pl. ÚS 7/02: Judiciary Act

18 June 2002

HEADNOTES

In

the preamble to the Constitution and its Art. 1, in the introductory

declaration to the Charter, as well as in international treaties under

Art. 10 of the Constitution, the Czech Republic subscribes to the

time-tested principles of a democratic state governed by the rule of

law, founded on respect for the rights and freedoms of man and of

citizens (Art. 1 of the Constitution) and on democratic values (Art. 2

para. 1 of the Charter). In this state, under Art. 2 para. 1 of the

Constitution the people are the source of all state authority, and

exercise it through the legislative, executive and judicial bodies. One

can conclude, just from this introductory statement that the very

foundation of our constitutional system enshrines the principle of

separation of state power, a principle, derived from the idea that human

nature has a tendency to concentrate power and misuse it, which has

become a guarantee against arbitrariness and misuse of state power and

basically also a guarantee of freedom and protection of the individual, a

principle which is the result and reflection of historic, intellectual

and institutional development until now, which, in the modern age for

example, involved such distinctive people as John Locke and Charles

Montesquieu, and institutions such as the British Parliament and the

British judiciary. It is not the task of the Constitutional Court, in a

situation which can be considered given, to concern itself more closely

with the development and causes of this principle. Nevertheless, it

considers it necessary to briefly state that the very foundations of

this principle contain the conviction, based on empirical experience,

that human thought and social events could never be ascribed a solely

rational nature, as they also contained evident irrational elements, and

moreover, rationality of thought has never fully coincided with

rationality of behavior. As an expression of the existing condition,

“government by all” is a mere ideological formula, often hiding a

completely contrary social situation. In a social situation

characterized by the internal and external inadequacy of the individual

and the entire society, basic human needs can be satisfied, and at the

same time at least the direction toward the goal of democracy

maintained, only by the path of conflict-based balancing of individual

interests. Thus, although even a democratic state does not strive for

maximalistic programs in the area of the judiciary, and is therefore

quite far from the idea of a “judicial state” – the bodies of state

power include, as already stated, the legislative and executive power,

and therefore this state power can be functionally implemented in a

democratic system only on condition that all its bodies function – on

the other hand it is required to create institutional prerequisites for

what is, as far as the judiciary is concerned, characteristic and

unconditional, i.e. the formation and establishment of true independence

of the courts, as an important state-creating, but also polemical

element, not only for the stabilization of their position but of the

entire democratic system, in relation to the legislative and executive

branches. This true independence of the courts is a characteristic and

indispensable attribute of the judicial power, justified and also

required by Art. 4 of the Constitution, under which the fundamental

rights and freedoms enjoy the protection of the judicial bodies, as well

as by Art. 81 and Art. 82 of the Constitution, under which the judicial

power is exercised in the name of the Republic by independent courts,

and judges are independent in the exercise of their duties and no one

may endanger their impartiality. Therefore, this characteristic feature

and content of the judicial power cannot be cast in doubt, and therefore

even its basic functions are not compatible with any manner of

infiltration by any other state power, which premise was expressed in

the Constitutional Document of the Czechoslovak Republic introduced by

Act No. 121/1920 Coll. by § 96 para. 1, under which the judiciary is

separate from administration in all instances, and in the current

Constitution in Art. 82 para. 3, under which the office of a judge is

incompatible with the office of the President of the Republic, a member

of Parliament, or any office in public administration. Thus, the

principle of judicial independence is, in this regard, of an

unconditional nature which rules out the possibility of interference by

the executive power. However, the contested legal regulation does not

meet this requirement.



CZECH REPUBLIC

CONSTITUTIONAL COURT
JUDGMENT

IN THE NAME OF THE CZECH REPUBLIC

 

 

The

Plenum of the Constitutional Court decided on the petition from the

President of the Republic, Václav Havel, to annul certain provisions of

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

Administration of the Courts and Amending Certain Other Acts (the

Judiciary Act), as amended by later regulations, with the Parliament of

the Czech Republic as a party to the proceedings, as follows:

1.  

 The provisions of § 50 para. 1 let. f), let. g), para. 3 and para. 4, §

51 para. 1 let. f), let. g), para. 3 and para. 4, § 52 para. 1 let. f),

let. g), para. 3 and para. 4, § 53 para. 1 let. e), para. 3 and para.

4, § 71 para. 4, § 72 para. 2 last sentence, § 82 para. 2 second

sentence, § 94 let. d), § 123 para. 3 a para. 4, § 124 para. 4, § 125

para. 3, § 126 para. 3, § 127 para. 3, § 130 para. 2 the words

“assignment of judges”, § 131 para. 1 let. a), let. b), § 132 para. 1

let. a), let. b), para. 2 the words “of judges and” and para. 3, § 134 –

163, § 185, § 187 the words “3 attorneys for members of the Council for

Professional Qualifications of Judges and their 3 alternates and” and §

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

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

Judiciary Act), as amended by later regulations, are annulled as of the

day this decision is published in the Collection of Laws.

2.  

 The provisions of § 15 para. 2 second sentence, § 26 para. 2 second

sentence, § 30 para. 2 second sentence, § 34 para. 2 second sentence, §

68 para. 1 the words “to the ministry or” , § 74 para. 3, § 99 para. 1

let. c) the words “to the ministry or”, § 106 para. 1, § 119 para. 2 and

para. 3, § 120, § 121, § 124 para. 1, para. 2 and para 3, § 125 para.

1, para. 2 and para 4, § 126 para. 1, para. 2 and para 4, § 127 para. 1,

para. 2 and para. 4, § 128 of Act No. 6/2002 Coll., on the Courts,

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

Amending Certain Other Acts (the Judiciary Act), as amended by later

regulations, are annulled as of 1 July 2003.

 


REASONING
 

On

1 March 2002 The Constitutional Court received a petition from the

President of the Republic to annul certain provisions of Act No. 6/2002

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

the Courts and Amending Certain Other Acts (the Judiciary Act),

(further also the “Act”). In the reasons in the first part of his

petition the President focuses on § 134 – 163 of the Act, (and connected

provisions), which introduce the new institution of mandatory periodic

evaluation of professional qualifications with the consequence of

possible termination of the judge’s mandate. In his opinion these

provisions are in direct conflict with Art. 1 of the Constitution of the

Czech Republic (the “Constitution”), under which the Czech Republic is a

democratic state governed by the rule of law, founded on respect for

the rights and freedoms of man and of the citizen, as he is convinced

that the basic attributes of a state governed by the rule of law

unquestionably include the principle of separation of powers. He also

sees these provisions as being in conflict with Art. 82 para. 1 and

para. 2 and with Art. 93 of the Constitution. A judge is appointed to

his office by the President of the Republic without time limitation, if

he meets the basic constitutional and other statutory prerequisites,

including professional qualifications. A judge cannot thereafter be

removed against his will, with the exception of removal based on a

decision of the disciplinary panel. When they established the exception

to the non-removability of a judge in Art. 82 para. 2, the framers of

the Constitution had in mind conduct of at least the same intensity, as

disciplinary violation. Only serious illegal conduct could be considered

as such conduct. This guarantees the courts’ independence from the

legislative and executive branches. However, the Act permits the

constitutional office of a judge to be endangered by the results of

subsequent evaluation of his professional qualifications, without which

he could not even be appointed to the office. Disciplinary proceedings

are a sufficient means of protection to prevent the office of a judge

from being held by a person who does not adequately see to his

professional level, which becomes apparent during his decision-making

activities. In this regard, the petition points to the judge’s duty to

consistently educate himself and deepen his professional knowledge for

the proper exercise of the office (§ 82 para. 2 of the Act), and breach

of this duty may be a disciplinary violation, for which a judge may be

removed from his office. However, breach of this duty must be specific,

its effects must be manifested in the judge’s decision-making

activities, and thus its intensity must endanger confidence in the

courts’ independent, impartial, and just decision-making (§ 87). A

causal relationship between such breach of duty and its consequence

(endangering confidence) must be proved in the disciplinary proceedings.

Moreover, while disciplinary proceedings have a range of sanctions,

graduated according to the gravity of the violation, the evaluation of

professional qualification has only one sanction, loss of the office.

The

proceedings newly introduced by the Act – evaluation of the

professional qualification of judges – will be done on a blanket basis

with all judges. Only within the proceedings will determinations begin

to be made, whether the prerequisites exist to make it possible to say

that a judge is professionally (un)qualified. This (un)qualification

will be evaluated on the basis of abstract, vaguely formulated aspects

not related to the judge’s decision-making activities (§ 136). The Act

thus presumes a causal connection between negative evaluation and a

judge’s decision-making activities. In other words, statements on

inadequate ability to organize the activities of the judicial department

and minimal publication, research and pedagogical activity is

automatically tied to a judge’s decision-making activities and can lead

to termination of the judge’s office. If we take as a starting point an

act which makes court chairmen bodies of state administration of courts,

i.e. part of the executive power, this gives the state administration

of courts the jurisdiction to evaluate a judge’s professional

qualification. Thus, the executive power can initiate proceedings

against a judge to review his professional qualifications with the

consequence of possible termination of a constitutionally guaranteed

mandate unlimited in time, without the grounds for this initiation being

the judge’s decision-making activities. The President’s objections are

also aimed against interference in the principle of separation of

powers, which is presumed by the Constitution. In his opinion, this

principle is violated, among other things, by the scope of powers of the

Minister of Justice in the area of evaluating a judge’s professional

qualifications, which he goes on to enumerate, concluding that this

scope gives the executive power disproportionately wide power, which

enables it to influence the decision-making of judges.

In the

reasons of the second part of his petition, aimed at those provisions in

which the Act entrusts state administration of courts in the stated

scope to the chairmen and deputy chairmen of the courts, who are also

judges, the President claims they are in conflict with Art. 82 para. 3

of the Constitution, which provides the incompatibility of the office of

a judge with any office in public administration. He states that it

follows from certain activities and from the manner of appointing and

removing chairmen and deputy chairmen of courts that these are offices

in public administrations, and the chairmen and deputy chairmen of

courts thus partially become components of the executive power. Such

serious concerns about the endangerment of their independence in

performing judicial activities are possible, particularly if their

remaining in the office of chairman and vice chairman depends on a

decision by a representative of the executive power. He points to § 106

para. 1 of the Act, under which the chairmen and deputy chairmen of

courts may be removed from their offices if they do not duly fulfill

their duties. In his opinion, this condition for removal is expressed

very generally, and can lead to arbitrariness by the executive power in

removing representatives of the judicial power. As the President states

further, he is aware that in some European states state administration

of courts is performed by court chairmen from the ranks of the judges.

However, our Constitution does not permit combining the office of a

judge with the exercise of any office in public administration, and it

is up to the constitutional framers whether to permit combining these

offices. The Constitution, Art. 82 para 3, expressly names activities

which are incompatible with the office of a judge. At the same time, it

permits the circle of incompatible activities to be expanded further by

statute. However, § 74 para. 3 of the Act circumvents the circle of

incompatible activities expressly banned by the Constitution by removing

the offices stated in it from the regime of this ban (with the help of a

legal fiction). In that case the Constitution is defined through the

use of the Act. However, a legal norm of lesser legal force, i.e. in

this case the Act, may not eliminate the circle of activities given by a

legal norm of greater legal force – the Constitution. In the conclusion

of this part of the petition, the President then also contests the

possibility of temporary assignment of a judge to the Ministry, which he

also considers incompatible with the principle of separation of powers

and with the purpose of the office of a judge.

The President

considers another contested provision, § 160 para. 3 of the Act, which

provides that Supreme Court proceedings in matters of evaluating the

professional qualifications of judges are non-public, to be in conflict

with Art. 96 para. 2 of the Constitution, Art. 38 para. 2 of the Charter

of Fundamental Rights and Freedoms (the “Charter”) and Art. 6 para. l

of the Convention for the Protection of Human Rights and Fundamental

Freedoms (the “Convention”), which enshrines the principle of public

proceedings. He believes that there are no grounds for breaching the

principle of public proceedings in proceedings before the Supreme Court,

whose decision is a decision on the merits of the matter and is final.

Its decision will have fundamental effects on the life of the individual

in question. Art. 6 para. 1 of the Convention provides conditions for

possible exclusion of the public from proceedings. However, none of

these conditions has been met in the contested provision. Thus, the Act

restricts the element of public control of the conduct of court

proceedings in conflict with the Convention.

In the last part

of the grounds for the petition, aimed at provisions concerning the

Judicial Academy, the President, with repeated emphasis on Art. 1 of the

Constitution, the principle of separation of powers, as well as on the

constitutionally guaranteed independence of courts and judges (Art. 81

and Art. 82 para. 1 of the Constitution) expresses the conviction that

independence from the executive power must be found not only in the

courts’ decision-making activities in the narrow sense of the word, but

in the overall ability of the executive power to influence the

decision-making activities of judges. A judge bears responsibility for

his professional level and is required to consistently educated himself

and deepen his professional knowledge for the proper exercise of his

office (§ 82). However, it should be only up to him how he achieves

this. It is difficult to combine judges being mandatorily educated in an

institution whose composition and educational content is directly or

indirectly in the hands of the executive power with the principle of

separation of powers and the independent exercise of the judiciary. The

Supreme Court’s ability to provide this education in a comparable scope

is unrealistic, in view of the Supreme Court’s current personnel, budget

and technical capacity. Thus, the life-long mandatory education of

judges in practice comes under the control of the executive power. The

President makes clear in the petition that, although he considers it

correct for the Ministry of Justice to make education possible for

judges, and therefore it is appropriate to establish the Judicial

Academy, nonetheless in his opinion it is unthinkable for judges to be

required to participate in training at set intervals precisely, and de

facto exclusively, in this institution.

In conclusion the

President then summarizes that in a state governed by the principles of

the rule of law, the separation of state powers must be based on a

system of checks and balances, but the legal regulation in question

violates this system, through a disproportionate influence of the

executive power over the judicial power. The task of the executive

power, in the intentions of the Constitution, is to ensure operation of

the judiciary in material terms, court administration personnel,

preparation of future judges for the exercise of their offices, and

ensuring adequate numbers of them. However, the Act does not observe the

balancing of powers and the degree of influence by the executive power

over the judicial power can, in his opinion, endanger the independence

of the judiciary as one of the pillars of a democratic state governed by

the rule of law. Therefore, he proposes a finding which will annul

these provisions of the Act on Courts and Judges: § 15 para. 2 second

sentence, § 26 para 2 second sentence, § 30 para 2 second sentence, § 34

para. 2 second sentence, § 50 para 1 let. f) and let. g), para. 3 and

para. 4, § 51 para. 1 let. f) and let. g), para. 3 and para. 4, § 52

para. 1 let. f) and let. g), para. 3 and para. 4, § 53 para. 1 let. e),

para. 3 and para. 4, § 68 para. 1 the words “to the Ministry or”, § 71

para 4, § 72 para. 2 last sentence, § 74 para. 3, § 82 para. 2 second

sentence, § 94 let. d), § 99 para. 1 let. c) the words “to the Ministry

or”, § 106 para. 1, § 119 para. 2 and para. 3, § 120, § 121, § 123 para.

3 and para. 4, § 125, § 126, § 127, § 128, § 130 para. 2 the words

“assignment of judges” , § 131 para. 1 let. a), let. b), § 132 para. 1

let. a) a let. b), in para. 2 the words “of judges and”, para. 3, § 134

to 163, § 185, § 187 the words “3 attorneys for members of the Council

for Professional Qualifications of Judges and their 3 alternates and”

and § 188, provided that at the same time, in relation to the provisions

of § 15 para. 2 second sentence, § 26 para. 2 second sentence, § 30

para. 2 second sentence and § 34 para. 2 second sentence be proposes

postponing the legal effect so that Parliament will have sufficient time

to pass new legislation.
 


II.
 

In

accordance with § 69 of Act No. 182/1993 Coll., on the Constitutional

Court, as amended by later regulations, the Constitutional Court

requested position statements from parties to these proceedings – both

chambers of the Parliament of the Czech Republic. The Chamber of

Deputies and the Senate of the Parliament of the CR provided their

positions statements on the amendment of Act No. 6/2002 Coll. on Courts

and Judges.
 


III.
 

Before

it turned to discussing the merits of the petition, the Constitutional

Court reviewed, under § 68 para. 2 of Act No. 182/1993 Coll., whether

the formal conditions for passing a law have been met and whether the

contested Act was passed within the constitutionally prescribed limits

of the jurisdiction and in a constitutionally prescribed manner. After

conducting this review, the Constitutional Court declares that the

above-mentioned conditions were met, whereby the prerequisite for the

Constitutional Court to be able to review the substance of the filed

petition.
 


IV.   
 

The

petition from the President of the Republic to annul certain provisions

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

Administration of the Courts and Amending Certain Other Acts, in essence

applies to a total of three basic areas.

The first group of

provisions proposed to be annulled concerns the evaluation of the

professional qualifications of judges. It includes, first of all, the

entire Part One Chapter III Division Five of the Act on Courts and

Judges, which, in § 134 – 163 of the Act, governs the procedure for

evaluating professional qualifications. It provides for periodic

evaluation of professional qualifications, the evaluator, the aspects

for evaluating professional qualifications, the manner of inspecting a

judge’s decision making activity by a special panel of a given court in

the event of an unsatisfactory evaluation, the composition of the

Council for Professional Qualifications of Judges established by the

Ministry of Justice, and proceedings before it in cases where the

special court panel evaluates the judge’s decision making activity as

unsatisfactory, and finally proceedings before the Supreme Court on a

petition by a party to the proceedings who does not agree with the

Council’s decision in a matter of professional qualification. In Part

One Chapter I Division Two Subdivision Two of the Act, governing the

jurisdiction of judicial councils, the provisions of § 50 para. 1 let.

f) and g), para. 3 and 4, § 51 para. 1 let. f) and g), para. 3 and 4, §

52 para. 1 let. f) and g), para. 3 and 4 and § 53 para. 1 let. e), para.

3 and 4, which provide judicial councils, within their jurisdiction,

tasks relating to evaluating judges’ professional qualifications, are

proposed to be annulled. In Part One Chapter III Division Three of the

Act, governing the jurisdiction of bodies of court administration, the

provisions of § 123 para. 3 and 4, § 124 para. 4, § 125 para. 3, § 126

para. 3 and § 127 para. 3, which provide the authorization of the

Ministry of Justice and chairmen of individual levels of the court

system in evaluating professional qualifications of judges, are proposed

to be annulled. Also proposed to be annulled are the provisions of § 71

para. 4 and the last sentence in § 72 para. 2 of the Act, which require

taking into consideration the evaluation of judges’ professional

qualifications when transferring judges to higher level courts, part of §

82 para. 2, which gives a judge the obligation to submit, as provided

by statute, to evaluation and assessment of his professional knowledge

and awareness and § 94 let. d) of the Act, which provide that a judge’s

office terminates on the date that a decision which finds him to be

professionally unqualified to hold the office goes into legal effect.

Finally, in this area the following are proposed to be annulled:

provisions on notifying appropriate persons and institutions of the

evaluation of results of a judge’s professional education by the

Judicial Academy (§ 132 para. 3 of the Act on Courts and Judges),

transitional provisions, which provide a deadline for evaluating

professional qualifications of judges named to their offices before the

date when the Act went into effect (§ 185 of the Act), and provisions on

nominating attorneys and notaries as members of the Council for the

Professional Qualifications of Judges (in § 187 the words “3 attorneys

as members of the Council for the Professional Qualifications of Judges

and their 3 substitutes and” and § 188 of the Act). The foregoing

provisions of the Act on Courts and Judges are proposed to be annulled

due to their conflict with Art. 1, Art. 82 para. 1 and 2 and Art. 93 of

the Constitution.

In another thematic area, concerning the

exercise of state administration of courts, the provisions proposed to

be annulled are first of all, from Part One, Chapter I, Division One,

Subdivision Four of the Act on Courts and Judges, governing the

organization and activities of the courts § 15 para. 2 second sentence, §

26 para. 2 second sentence, § 30 para. 2 second sentence and § 34 para.

2 second sentence, which provide that the chairmen and vice chairmen of

the specified individual levels of general courts, in addition to

decision-making activity, also perform state administration of the

relevant courts in the scope provided by the Act. Further provisions

proposed to be annulled, § 119 para. 2 and 3 of the Act, then expressly

state that the chairmen and vice chairmen of individual levels of the

general courts are bodies of state administration of courts and that

chairmen of panels and other judges also take part in it in the scope

and under the conditions provided by this Act. The following provisions

of § 120 and 121 of the Act on Courts and Judges then provide that the

Ministry of Justice performs state administration of courts either

directly or through the chairmen of these courts, who implement it in

the scope provided by this Act and who may entrust this performance to

the vice chairmen or, as the case may be, chairmen of panels and other

judges of the relevant court. Also contested is § 74 para. 3 of the Act

which provides that the offices of chairman and vice chairman of a court

and certain other enumerated activities are not considered to be office

in public administration. Also proposed to be annulled in Part One

Chapter III Division Three of the Act on Courts and Judges, governing

the jurisdiction of bodies of state administration of courts, are § 124,

125, 126 and 127, which specifically set forth the activities whereby

the chairmen of individual levels of general courts exercise state

administration, as well as the following § 128 of the Act, governing

procedures followed by a body state administration of courts when it

finds that a judge is at fault in violating his obligations in the

exercise of his office. Another provision proposed to be annulled, § 106

para. 1 of the Act on Courts and Judges provides the possibility of

removing a court chairman or vice chairman from his office by the person

who appointed him, if he does not duly perform his obligations. Also

proposed to be annulled are, in § 68 para. 1 of the Act the words “to

the ministry or” and the same words in § 99 para. 1 let. c) of this Act,

which make it possible to assign a judge to the Ministry of Justice and

which provide for temporary exemption from the exercise of the office

of judge in the event of such assignment. The petition claims that the

above-mentioned provisions of the Act on Courts and Judges are in

conflict with Art. 82 para. 3 of the Constitution.

The last

thematic area of provisions of the Act on Courts and Judges proposed to

be annulled concerns the mandatory enrollment of judges for professional

education in the Judicial Academy. This concerns primarily annulment of

the second sentence of the second paragraph of § 82 of the Act on

Courts and Judges, which provides a judge’s obligation to take part in

professional education in the Judicial Academy and submit to evaluation

and assessment of his professional knowledge and awareness. In

connection with this provision, in Part One, Chapter III, Division Four

of the Act on Courts and Judges, governing the establishment,

organization and activities of the Judicial Academy, the following are

proposed to be annulled: in § 130 para. 2 the words “enrollment of

judges” and connected therewith § 131 para. 1 let. a) and b) and § 132

para. 1 let. a) and b), in para. 2 the words “of judges and” and para.

3. These provisions provide further detail on a judge’s obligation to

take part in professional education in the Judicial Academy by providing

the length of study, the manner of completion and notification of the

evaluation of results of a judge’s professional education. The petition

claims that these contested statutory provisions are in conflict with

Art. 1, Art. 81 and Art. 82 para. 1 of the Constitution.
 


V.
 

In

the preamble to the Constitution and its Art. 1, in the introductory

declaration to the Charter, as well as in international treaties under

Art. 10 of the Constitution, the Czech Republic subscribes to the

time-tested principles of a democratic state governed by the rule of

law, founded on respect for the rights and freedoms of man and of

citizens (Art. 1 of the Constitution) and on democratic values (Art. 2

para. 1 of the Charter). In this state, under Art. 2 para. 1 of the

Constitution the people are the source of all state authority, and

exercise it through the legislative, executive and judicial bodies. One

can conclude, just from this introductory statement that the very

foundation of our constitutional system enshrines the principle of

separation of state power, a principle, derived from the idea that human

nature has a tendency to concentrate power and misuse it, which has

become a guarantee against arbitrariness and misuse of state power and

basically also a guarantee of freedom and protection of the individual, a

principle which is the result and reflection of historic, intellectual

and institutional development until now, which, in the modern age for

example, involved such distinctive people as John Locke and Charles

Montesquieu, and institutions such as the British Parliament and the

British judiciary. It is not the task of the Constitutional Court, in a

situation which can be considered given, to concern itself more closely

with the development and causes of this principle. Nevertheless, it

considers it necessary to briefly state that the very foundations of

this principle contain the conviction, based on empirical experience,

that human thought and social events could never be ascribed a solely

rational nature, as they also contained evident irrational elements, and

moreover, rationality of thought has never fully coincided with

rationality of behavior. As an expression of the existing condition,

“government by all” is a mere ideological formula, often hiding a

completely contrary social situation. In a social situation

characterized by the internal and external inadequacy of the individual

and the entire society, basic human needs can be satisfied, and at the

same time at least the direction toward the goal of democracy

maintained, only by the path of conflict-based balancing of individual

interests. Thus, although even a democratic state does not strive for

maximalistic programs in the area of the judiciary, and is therefore

quite far from the idea of a “judicial state” – the bodies of state

power include, as already stated, the legislative and executive power,

and therefore this state power can be functionally implemented in a

democratic system only on condition that all its bodies function – on

the other hand it is required to create institutional prerequisites for

what is, as far as the judiciary is concerned, characteristic and

unconditional, i.e. the formation and establishment of true independence

of the courts, as an important state-creating, but also polemical

element, not only for the stabilization of their position but of the

entire democratic system, in relation to the legislative and executive

branches. This true independence of the courts is a characteristic and

indispensable attribute of the judicial power, justified and also

required by Art. 4 of the Constitution, under which the fundamental

rights and freedoms enjoy the protection of the judicial bodies, as well

as by Art. 81 and Art. 82 of the Constitution, under which the judicial

power is exercised in the name of the Republic by independent courts,

and judges are independent in the exercise of their duties and no one

may endanger their impartiality. Therefore, this characteristic feature

and content of the judicial power cannot be cast in doubt, and therefore

even its basic functions are not compatible with any manner of

infiltration by any other state power, which premise was expressed in

the Constitutional Document of the Czechoslovak Republic introduced by

Act No. 121/1920 Coll. by § 96 para. 1, under which the judiciary is

separate from administration in all instances, and in the current

Constitution in Art. 82 para. 3, under which the office of a judge is

incompatible with the office of the President of the Republic, a member

of Parliament, or any office in public administration. Thus, the

principle of judicial independence is, in this regard, of an

unconditional nature which rules out the possibility of interference by

the executive power. However, the contested legal regulation does not

meet this requirement.

In his petition, the President of the

Republic contests first of all, provisions of the Act relating to the

periodic evaluation and assessment of the professional qualifications of

all judges, including provisions which complement them. Specifically,

these are § 134 to 163 (chapter III division five – evaluation of the

professional qualifications of judges) and in connection with them § 50

para. 1 let. f) and let. g), para. 3 and para. 4, § 51 para. 1 let. f)

and let. g), para. 3 and para. 4, § 52 para. 1 let. f) and let. g),

para. 3 and para. 4, § 53 para. 1 let. e), para. 3 and para. 4, § 71

para. 4, § 72 para. 2 in the last sentence, § 74 para. 3 in the words

“in the Council and”, § 82 para. 2 in the second sentence, § 94 let. d),

§ 123 para. 3 and para. 4, § 124 para. 4, § 125 para. 3, § 126 para. 3,

§ 127 para. 3, § 132 para. 3, § 185, § 187 in the words “3 attorneys

for the Council for Professional Qualifications of Judges and their 3

alternates and” and § 188.

To evaluate the justification of

this part of the petition, it is necessary to provide an overview of

these individual provisions, through which, within the institution of

evaluation of professional qualifications of judges, the law provides

authorization to individual court administration bodies.

Under

the regulations expressed in the contested provisions, the predominant

part of which is included in  Part One Chapter III of the Act, titled

(which in the given context is not without significance) state

administration of courts, the professional qualifications of judges, who

are required to submit to the statutorily specified manner of

evaluation and assessment of the professional knowledge and awareness (§

82 para. 2), are monitored by the Ministry of Justice (§ 123 para. 3).

For this purpose it directs the methods of evaluating professional

qualifications of judges and directs the methods of inspecting their

decision-making activity (§ 123 para. 3). It establishes the appropriate

Councils for evaluating the professional qualifications of judges [a

Council for criminal law, a Council for civil law, and a Council for the

administrative judiciary (§ 123 para. 4)]. The chairmen of the Supreme

Court, High, Regional and District Courts, as holders of offices in the

state administration of courts, to which they are appointed (except the

chairman and vice-chairman of the Supreme Court) by the Minister of

Justice, who has the authority to remove them on the basis of the

generally, quite vaguely formulated grounds “due failure to fulfill

obligations” (§ 103 para. 1, § 104 para. 1, § 105 para. 1, § 106 para.

1), exercise the enumerated jurisdictions in relation to the evaluation

of the professional qualifications of judges (§ 124 para. 4, § 125 para.

3, § 126 para. 3, § 127 para. 3) and these chairmen, except the

chairmen of District Courts, also evaluate these qualifications (§ 135).

The aspects from whose angles the professional qualifications of a

judge are evaluated are reviewed, among other things, on the basis of an

evaluation prepared by the relevant court chairman and a report on the

results of a judge’s professional education prepared by the Judicial

Academy (§ 136 para. 2), directed by a director appointed again by the

Ministry of Justice. The members of a special panel which inspects a

judge’s decision-making activities are appointed from among the ranks of

judges by the relevant court chairman (§ 137 para. 2), who (in cases of

a judge receiving an inadequate grade from a special panel or if he

himself does not agree with the special panel’s decision, in which the

judge’s decision-making activity is graded as adequate) also submits a

petition for the judge’s professional qualifications to be evaluated by

the Council which reviews and decides on this petition; this Council is

established by the Ministry (§ 138, § 139 para. 1) and some of its

members and alternates from among state prosecutors, attorneys, notaries

and experts in the fields of criminal, civil and administrative law are

appointed, on the proposal of the relevant bodies, by the Minister (§

139 para. 8). The Council may hold proceedings and make decisions if at

least 7 members or alternates are present and the consent of a majority

of members or alternates present is necessary to make a decision (§ 141

para. 2), from which it is clear that decisions, in view of the

composition of any individual Council (§ 139 para. 4, para. 5, para. 6)

can also be made by members none of whom is a judge. In this regard it

must be noted that the very fact that persons from among attorneys,

state prosecutors and notaries can be members in this body and thus make

decisions concerning a judge’s future appears highly problematic, in

view of their possible motivation, arising from their status as a party

or representative in proceedings before a court. Proceedings before a

Council are opened on a petition submitted by the relevant court

chairman (§ 144), who is (in addition to the judge whose professional

qualifications are at issue) a party to the proceedings in questions, as

is the Minister of Justice (§ 145 para. 1). If any of these parties

disagrees with the Council’s decision, he may file a petition for

evaluation of the judge’s professional qualifications with the Supreme

Court (§ 153), and is a party to the resulting proceedings (§ 157),

which terminate in a decision by the Supreme Court.

In the

opinion of the Constitutional Court, the very enumeration of the

individual powers of bodies of the executive branch (which are

themselves in relationships of superiority and subordination) gives rise

to a disproportionate opportunity for interference by the executive

into the judicial power. The powers of representatives of the executive

branch, conceived so widely and multilaterally, in relation to the

evaluation of professional qualifications of judges who have already

been appointed, in their cumulative effect do not observe the principle

of separation of powers and in light of the above-mentioned

constitutional values they cannot be accepted. Through them, the

executive power, which, in relation to the judicial power, is supposed

to only create material and organizational prerequisites for its proper

functioning, acquires instruments which are capable, even if only

indirectly, of influencing the independent decision-making of judges.

The fact that the final decision on professional qualifications is in

the hands of a panel of the Supreme Court cannot fundamentally change

anything in this conclusion on the disproportionate opportunity for the

executive power to interfere in the judicial power, likewise the fact

that input to the evaluation of judges is also given by the judges’

councils newly established by the Act, elected from among the judges at

individual courts, as they have only advisory votes, which the

representatives of the executive power are not required to accept. In

this regard, it must also be emphasized that under the Act the judicial

councils do not have an umbrella body which could be a true

representative of the judicial power and a partner for the Ministry of

Justice as a central body of state administration, or, as the case may

be, itself bear responsibility for proceedings and the exercise of court

administration, as well as responsibility for the quality of judicial

personnel.

Art. 81 of the Constitution, already cited, provides

that the judicial power is exercised in the name of the Republic by

independent courts. Art. 82 para. 1 of the Constitution provides that

judges are independent in the exercise of their offices, and no one may

endanger their impartiality. Thus, the independence of a judge and the

independence of the judicial power are related, and are in a

relationship of being mutually conditional, also with the impartiality

of a judge and the court. Independence and impartiality are inseparable

attributes of the concept of a court. Its impartiality and independence

are a value which benefits everyone, as it is one of the guarantees of

equality and legal certainty in a democratic society. Only an impartial

court is capable of providing true justice always and to all, and one of

the means guaranteeing the impartiality of a court is the independence

of judges. The Constitutional Court has already considered the principle

of judicial independence in a number of its decisions, for example in

the matters under file nos. Pl. US 13/99 (Collection of Judgments of the

Constitutional Court, vol. 15, pp. 191 – 202), Pl. US 18/99 (vol. 19,

pp. 3 – 21), Pl. US 41/2000 (vol. 21, pp. 493 – 500), in which it

emphasized the importance of their guarantees as a basic prerequisite

for fulfilling the constitutional status of the judicial power, as a

separate, individual form of the exercise of state power. The purpose of

these guarantees is to ensure that a judge has the status which is

required by his role in the process of impartial, just decision-making

by a court, in which the judge is, under his oath, bound only by the

legal order and his best knowledge and conscience (naturally constantly

juxtaposed with the fundamental values attached to human beings and

justice). Thus, everyone may legitimately, in accordance with Art. 6 of

the Convention, expect independence and impartiality from the judiciary

and from every judge to whom the protection of his rights is entrusted.

Under the cited norm, the requirement of “an independent and impartial

court established by law” has also been developed in the case law of the

European Court of Human Rights so that, to fulfill the condition of

independence, it is essential that the court can base its decisions on

its own free opinion of facts and their legal aspect, without having any

obligation whatsoever toward the parties and public bodies, and without

its decision being subject to review by another organ which would not

also be independent in that sense. In this regard, we can also mention

independent documents which emphasize the independence of the judicial

power and judges, such as the Fundamental Principles of the Independence

of the Judicial Power, passed by the UN in 1985, and the positions of

the Council of Europe on the judiciary, which are formulated in the

Recommendation of the Committee of the Ministers of the Council of

Europe No. 12 of 1994, emphasizing the necessity of a judge’s

independence in the process of decision-making for acting without any

restriction, inappropriate influence, external motivations, pressures,

threats or interference, direct or indirect, from any direction and for

any reason, and emphasizing as regards the executive and legislative

powers, the need for creating and strengthening the guarantees of the

independence of courts. In our Constitution these guarantees include, in

addition to the principle of the incompatibility of offices, the

absence of time limits on the office of a judge (Art. 93 para. 1 of the

Constitution), non-transferrability and non-removability, as enshrined

in Art. 82 para. 2, para. 3 of the Constitution. Para. 2 of this

provision provides that a judge cannot be removed or transferred to

another court against his will; exceptions due to disciplinary

responsibility are provided by statute. In this regard it must be said

that a certain amount of room, which the framers of the Constitution

provided in this provision by using the term “in particular”, precisely

because it is used in relation to an exception, must be interpreted in a

strictly restrictive manner, in accordance with the usual legal

principle on the relationship between a rule and an exception. Thus, we

can fully agree with the petition that exceptions to the rule of

non-removability of judges can apply only to conduct which is, in its

intensity, comparable with the disciplinary violation expressly cited by

the Constitution. An example of such conduct is another reason provided

by the Act for the termination of a judge’s office, conviction of an

intentional crime or conviction with a prison sentence for a crime of

negligence; however, an evaluation of a judge’s professional

qualifications as inadequate, influenced, moreover, as emphasized above,

in substantial part by the executive power, cannot be of such

character.

We must undoubtedly agree that a judge’s professional

qualifications, in addition to his moral integrity, are an undoubted

prerequisite for the due performance of his office, and therefore

exceptional emphasis must be laid on them. However, the emphasis must be

attached primarily to preparation for this profession. The act

appointing a judge to his office without limitation in time, must,

however, be done in the conviction that the candidate will hold up in

all areas – also fundamentally from the perspective of a substantial

part of the aspects cited for evaluation of the professional

qualifications of judges in § 136 para. 1 of the Act. Thus, it is

precisely in the process preceding a judge’s appointment to his office

that all possible requirements imposed on a judge should be

concentrated, and it is precisely here that the evaluation of

professional qualifications must be subject to the strictest criteria,

thus ruling out at the very beginning the possibility of appointing as a

judge a person with insufficient professional qualifications or a

person lacking guarantees of further self-education (even at the

possible cost of exchanging the current practice for one which would

permit the appointment only of a person whose moral, human and

professional qualities had already been verified by the results of his

previous profession). However, at the moment of appointment such a

person becomes a judge, and thus an essential attribute of that office,

appearing in the form of a judge’s independence, is also activated.

During the decision-making process the judge then not only must be

independent and impartial, but should also be objectively perceived as

such by the public. For this reason too the Constitutional Court

considers the evaluated mechanism of subsequent and repeated evaluation

of a judge’s professional qualifications, which may lead as far as his

removal, to stand in conflict with constitutional guarantees of judicial

independence. It appears so because the judge who is exposed to such

evaluation – the methods of which are, moreover, directed by a body of

the executive power – is one whose qualifications, including

professional ones, to perform this office have already received state

approbation. In connection with the foregoing, one cannot overlook the

possible effect of appeals on the grounds cited on legal certainty in

general, in relation to those court decisions which have previously been

issued by a judge thus removed due to lack of qualifications.

Although the aim pursued by a legal regulation seeking to achieve a

qualitatively higher level of judicial personnel is legitimate, the

chosen means aimed at it, as it is constructed in the contested

provisions, must be evaluated as not observing fundamental

constitutional principles. Moreover, it must be taken into consideration

that the Act, in connection with the judges’ responsibility for their

professional qualifications in the performance of their offices declared

in it (§ 82 para. 1), also expressly included, among the obligations it

imposed on judges, the obligation to consistently educate themselves

and deepen their professional knowledge for the proper exercise of their

office (§ 82 para. 2), as well as the obligation to fulfill that

obligation in accordance with the interest in the due exercise of the

judiciary, and if the judge causes violation of his obligation this is a

disciplinary violation (§ 87) for which the judge also bears

disciplinary responsibility (§ 86), which may even lead to his removal

[§ 88 para. 1 let. d)]. Thus, it can be said that to reach a situation

where persons who ignore the obligation to take care of their

professional level are excluded from the judicial personnel, the Act

makes use of means which are – such as the exception from the principle

of non-removability – expressly presumed by the Constitution.

The Constitutional Court is also convinced that the contested mechanism

for reviewing the professional qualifications of judges as it is

regulated by the Act must be rejected and considered unconstitutional on

the grounds that it violates the principle of separation of powers and

the related principle of judicial independence. This, as already stated

above, is of an unconditional nature, ruling out the possibility of such

intervention by the executive power as is represented by a

disproportionate role in reviewing the professional qualifications of

judges. For these reasons the Constitutional Court granted the petition

of the President of the Republic and annulled all provisions of the Act

on Courts and Judges concerning evaluation of the professional

qualifications of judges as they are enumerated in the introduction to

this part, due to their conflict with Art. 1, Art. 2 para. 1, Art. 81,

Art. 82 para. 1, para. 2, and Art. 93 of the Constitution, without it

being necessary to separately consider or evaluate the constitutionality

of § 160 of the Act, as the institution of evaluation of the

professional qualifications of judges must be annulled, in view of the

interconnectedness of individual levels at which the evaluation is

performed, as a whole, including those parts of the provisions which

concern that institution.

The Constitutional Court then drew on

the principles of separation of powers, independence of the judicial

power, and the independence of judges, and following on what has already

been stated concerning these concepts, also evaluated provisions

contested by another part of the President’s petition, relating to the

obligations set by them on judges to periodically complete training in

the Judicial Academy (§ 82 para. 2 second sentence). This is established

by the Act as an organization component of the state (§ 129 para. 1),

whose activities are supervised by the Ministry of Justice (§ 130 para.

4). It is directed by a director appointed and removed by the Minister

of Justice, and the content of the education activity, enrollment of

judges and study programs are set by the Council of the Judicial

Academy, again appointed by the Minister of Justice (§ 130 para. 2),

whom, also on the proposal of the director of the Judicial Academy,

appoints and removes teachers working at the Academy (§ 133). It follows

from this that it is again primarily the executive power, represented

by the Minister of Justice, to which the Act provides authorization to

determine a manner of education for all judges, as, even if the Act also

permits professional education through the Supreme Court (§ 129 para.

3), the assumption that the Supreme Court could do this, given its

current decision-making and other activities, in the scope presumed by

the Act for all judges in the time limits set by (§ 131 and 132 of the

Act), is unrealistic. The situation arising from the legal regulation as

analyzed above, where the manner of education, including setting its

content, remains de facto in the hands of the executive power, cannot be

accepted, as it is another expression of the principle of the

separation of powers, a disproportionate and impermissible influence by

the executive power on the judicial power. In view of the nature of

power, it cannot simply be presumed that the executive power, given the

existence of authorization provided to it by the Act, will exercise this

authorization in a self-limiting and restrained manner. In this regard

it is necessary to point repeatedly to the fact that the task of the

judicial power is, through judicial independence as a prerequisite for

its due exercise, to protect the rights of citizens, including from the

arbitrariness or unauthorized interference of the state, i.e. including

the executive power. The possibility of influencing the nature of this

protection, even in a manner which externally appears to be clothed in

the requirement of properly ensuring professional qualifications of

judges, could, in the situation constructed by the Act, lead, on the

contrary, to restriction of the thus-understood independence. The

described system of education, de facto directed from the center of the

executive power, does not provide the necessary prerequisite for

independent and free formation of opinion, that of the widest possible

openness with a possibility for confrontation of different opinions from

various sources (the choice of which should be left to the autonomous

decision of the judge himself), including foreign sources. Such a system

then, in connection with the statutorily provided manner of completing

education and in relation to judges, through the final thesis (§ 132

para. 2), which is subject to evaluation (the result of which will thus

apparently, by the nature of the manner, also be conditioned by the

judge’s acceptance of opinions presented in the Academy), and this is

then one of the documents in the evaluation of a judge’s professional

qualifications, may evoke a feeling of dependence and lead to other

undesirable results, such as loss of a sense of one’s own responsibility

in the decision-making process itself.

In this context it is

necessary to respond more closely to the position statement from the

Chamber of Deputies, emphasizing the passage of the contested Act by the

need for new reform, the aim of which is a speedy, just and unitary

judiciary, which, however, lacks a deeper immersion into the problem of

unity and uniformity and also betrays the lack of clarity in the nature

and function of social phenomena and institutions in general. A closer

analysis of any social phenomenon points to the presence of antithetical

forces functioning in it and creating a tension between both these

correlated elements, a tension which is an indispensable condition for

social development. The principle of polarity which operates in social

events thus also creates tension, in addition to a range of other forms,

between the search for unity and variety. From this base of ideas comes

democracy, which, although it regards this fact as a difficult and

problematic reality, nevertheless also sees it as the most serious

barrier to a dysfunctional uniformity. Therefore “real” unity can be

achieved only through the conflict of various aspects, relating to

particular areas, some of which aim toward unity, while others aim

toward variety. The source of true unity must therefore be sought first

of all in conflict, as it is only through the effects of a great number

of often markedly diverging opinions and attitudes that each person also

acquires an awareness of social congruence and unity.

Brought

into very close relation with the matter at issue, the requirement of a

unitary judiciary must be considered problematic in the directions

identified, both in its aspect of unitary education and in the aspect of

unitary decision-making. Any unity may fulfill a positive social

function only if those who aim toward it are also capable of

differentiating themselves so that they can thereby more meaningfully

and effectively unite. Judicial unity not conditioned by anything would,

on the contrary, lead to undesirable effects on conditions in which

each individual judge would be ordered to accept further education from a

source determined by the state and under pressure from a hypertrophy of

unifying every detail would be deprived of conditions for just

evaluation of each individual case by respecting its uniqueness. A

mechanical assumption of what had already been “unified” would thus lead

not only to an undesirable model, but would endanger the very

development of legal thought. Therefore, in the situation of the

judiciary one can accept the creation of a relatively unitary opinion

only within a framework given by procedural steps which themselves do

not rule out the conflict of various opinions.

Ensuring a

foreseeability of decision-making in courts which complies with legal

certainty and respect for the laws (Art. 1 of the Constitution) is a

task primarily for the preparation of future judges, and within that

preparation, finding suitable methods capable of ensuring that standard

procedures are embraced in standard situations and verifying knowledge

of not only legal regulations but also case law. The primary task of the

latter is to give direction to the interpretation of regulations within

the intentions of constitutional principles, and it is the

responsibility of the judges themselves not only to know the case law,

but also, to develop and create it in a manner responding adequately to

the changing social reality.

It is undisputed that the

continuing professional education of judges is expected of the

profession. This postulate also arises from the cited international

documents. As stated earlier in another context, it is an obligation

also imposed by this Act in § 82 para. 2, and the Act also provides that

a judge is responsible for his professional level. However, this

responsibility, and this must be emphasized, arises primarily from the

very foundation of judicial independence, with which it must necessarily

be connected, and from which also arises the commitment of each

individual judge not only to just and impartial decision-making but also

foreseeable decision-making, built on thorough knowledge of legal

regulations and case law, as what is typical for the attribute of

judicial independence and also necessary in the interest of the

functioning of a democratic system is precisely the natural connection

of this attribute with judicial responsibility, arising also from Art.

90 and Art. 95 of the Constitution and expressed in detail, for example,

in Art. 6 para. 1 of the Convention, imposing on a judge the obligation

corresponding to the right of each person to have his matter justly,

publicly and in an appropriate time, handled by an independent and

impartial court. The responsibility and guarantee for this commitment,

however, must be borne by the judicial power itself.

Thus, we

can conclude that the very establishment of the Judicial Academy by the

Act has its justification in view of the role which it is to fulfill in

the education of trainee judges and other court employees; in relation

to continuing education of judges, however, it can be seen, with regard

to what was stated above, only as one of the possible sources, chosen

freely by the judge himself. Therefore, for the cited reasons, the

Constitutional Court annulled all the provisions of the Act which impose

the obligation of education of judges in the Judicial Academy, as well

as provisions related to them in content, concern the scope of that

obligation.

The last circle of provisions contested by the

petition [§ 15 para. 2 second sentence, § 26 para. 2 second sentence, §

30 para. 2 second sentence, § 34 para. 2 second sentence, § 68 para. 1

in the words “to the Ministry or” , § 74 para. 3, § 99 para. 1 let. c)

in the words “to the Ministry or”, § 106 para. 1, § 119 para. 2 and

para. 3, § 120, § 121, § 124 to 128] basically concern the regulations

governing the manner of exercising state administration of courts. In

evaluating this part of the petition the Constitutional Court had to

take into consideration that the petition from the President of the

Republic, by whose requested judgment the Constitutional Court is bound,

did not contest the position of the Ministry of Justice as the central

body of state administration of courts, and likewise, with some

exceptions, did not contest the jurisdiction of that body.

In

evaluating the cited provisions, § 74 para. 3 of the Act is of key

significance, which states that offices in public administration are not

considered to include the office of chairman and vice-chairman of a

court, temporary assignment to the Ministry, members in a Council and

the council for professional qualifications of state prosecutors,

membership in advisory bodies to the Ministry, the government and bodies

of the chambers of Parliament. For evaluating the content of article 82

para. 3 of the Constitution is decisive, which states that the office

of a judge is not compatible with the office of President of the

Republic, a member of Parliament or any other office in public

administration; a statute shall provide other activities with which the

exercise of the office of a judge is incompatible. Thus, the

Constitution provides which offices are fundamentally incompatible with

the office of a judge; its first sentence must be understood as a

demonstrative list, whose limitations can, in accordance with the second

sentence after the semi-colon, be expanded, but not narrowed, as § 74

para. 3 of the Act does. The legislature, thus authorized to expand the

cited list, but not to restrict it, can not change the will of the

framers of the Constitution by issuing a legal norm addressing this

matter and thus not having its constitutional basis in it. Thus, if the

Constitution, as the norm of the highest legal force, sets a rule that

the office of a judge is incompatible with any office in public

administration, which activity must undoubtedly be considered to

substantially include the activities named in related provisions, which

are performed by chairmen and vice-chairmen of courts (which are, in any

case, expressly identified as bodies of state administration by § 119

para. 2, para. 3), then one cannot conclude otherwise than that the

cited provision is in conflict with Art. 82 para. 3 of the Constitution,

and in connection with it, also all others arising from it, which

further regulate the office of chairmen and vice-chairmen of courts and

their activities. Here, however, it must be emphasized that the

Constitutional Court annulled these provisions solely due to the cited

formal reasons, and that by derogation of § 74 para. 3 of the Act it did

not intend to indicate that the direction and administration of courts

should be entrusted to persons other than those from among the ranks of

judges.

The principle of incompatibility of offices, expressed

in the above-cited article of the Constitution, may not be violated even

by an act permitting judges to function in bodies of the executive

power, or the legislative power, as is then done by the contested § 74

para. 3 of the Act. The cited principle of incompatibility of offices is

one of the other guarantees of judicial independence. As a

constitutional principle, it must be strictly observed, and cannot be

circumvented by arrangements such as are contained in § 99 para. 1 let.

c) of the Act, under which a judge, while working – expressly solely at

the Ministry – temporarily relieved of the exercise of his office. An

immanent feature of this office is its continuity. Membership in

advisory bodies to the Ministry, the government and both chambers of

Parliament certainly includes the relevant fulfillment of the tasks of

these separate components of the state power and the working of judges

in these bodies is thus in conflict with the principle of separation of

powers, not to mention the fact that personal and extra-judicial

connections which arise during such activity unavoidably increase the

probability of a possible conflict of interest and thus make

impartiality in the form of judges’ lack of bias subject to doubt.

Thus, the Constitutional Court, for the cited reasons, due to conflict

with Art. 82 para. 3 of the Constitution, annulled § 74 para. 3, as well

as all the other provisions which arise from it, relate to it in

content or structure, as they are cited above. Moreover, it must be

added that the Constitutional Court was led to annul § 106 para. 1, in

addition to the reasons already stated, by another reason, the quite

general and non-specific – not corresponding to the principle of legal

certainty – expression of reasons leading to the removal of chairmen and

vice-chairmen of courts. In this regard the Constitutional Court

considers it necessary to note that the offices of chairmen and

vice-chairman of courts should be considered an advancement in a judge’s

career (similar to the appointment of a panel chairman), and therefore

the chairman and vice-chairman of a court should also not be subject to

removal otherwise than for a reason foreseen by statute and by

proceedings in disciplinary proceedings, i.e. by a court decision. A

structure where the chairmen and vice-chairmen of courts also perform

activities which are administrative in nature, without, however, losing

the quality of the office of an independent judge, and only due to that

find themselves in the position of a state employee, whose defining

feature is a subordinate relationship and the following of orders from

superiors in employment, is considered in a number of developed European

countries (e.g. Austria, Germany, Sweden, Norway, the Netherlands,

Great Britain, Ireland, Italy, Portugal) an integral component of the

principle of separation of powers, flowing from the requirements of a

state governed by the rule of law and the derived principle of

institutional independence of the judiciary, as well as from the

principle of undisturbed exercise of the personal, independent judge’s

mandate. The Constitutional Court also adds that the current situation,

where the central body of state administration of courts is the Ministry

of Justice, and the judicial power itself does not have its own

representative body at that level (which body could be a body authorized

to assume the task of the Ministry in personnel matters, including

supervision of the level of professional qualifications of judicial

personnel, possibly in other areas of directing and exercising the

administration of the judiciary), in the Constitutional Court’s opinion

does not adequately rule out possible indirect influencing of the

judicial power by the executive power (e.g. through allocation of

budgetary funds and inspection of their use). However, it is clear from

what has already been stated that the previous contested parts of the

Act were annulled predominantly with reference to failure to observe the

principle of separation of powers. Therefore, in evaluating this part

of the provisions contested by the petition, the Constitutional Court

itself had to observe this principle. It is not for the Constitutional

Court to decide how the issue of court administration should be handled,

as that is a task for the legislative power. However, in choosing an

administrative model, that power should thoroughly observe the

separation of state powers. Therefore, so that the legislature will have

adequate room for the passage of a new regulation of court

administration, the Constitutional Court has postponed the executability

of this part of the decision, i.e. concerning those provisions named in

point 2 of the verdict, until 1 July 2003.

Instruction: The decision of the Constitutional Court cannot be appealed.

Brno, 18 June 2002
 

 



Joint partially dissenting opinion
of judges J. M., V. Š. a P. V. to the judgment Pl. US 7/02

Similarly

like the majority of the judges Of the Constitutional Court we share

the opinion of the President of the Republic, as petitioner, that Act

No. 6/2002 Coll. (the Act on Courts and Judges) in certain respects

violates the balancing of powers in a state governed by the rule of law,

as it provides “a disproportionate influence by the executive power on

the judicial power”, which can endanger the independence of the justice

system. This applies specifically to provisions which concern the

evaluation of the professional qualifications of judges. As far as this

group of provisions goes, we agree with the relevant parts of the

verdict and the reasoning of the decision.

However, we have

serious reservations about the disproportionately high amount of

derogative changes which marks the decision. We believe that some of the

key provisions of the Act on Courts and Judges which the decision

annuls are not in conflict either with the Constitution or with the

principles of a state governed by the rule of law. Therefore, by

annulling them, the Constitutional Court has taken its role as the

judicial body for protection of constitutionality unjustifiably

“generously” and has even entered the area reserved exclusively to the

framers of the constitution, by tying its verdict with its opinion de

constitutione ferenda. 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, we cannot agree with the concept of the

decision.

* * *
In our opinion the decision went too far in

particular in connection with § 74 para. 3 of the Act on Courts and

Judges, which it annulled entirely. In doing so, the reasoning of the

decision assigned it “key importance”, which was reflected in the

verdict through the annulment of all other provisions which “arise from §

74 para. 3 or are related to it in content or organization”. The first

part of this provisions states that an office public administration is

not considered to include the office of chairman and vice-chairman of a

court, temporary assignment to the Ministry, membership in the Council

and the Council for professional qualifications of state prosecutors,

membership in advisory bodies of the Ministry, the government and in

bodies of the chambers of Parliament. The decision reached the

conclusion that § 74 para. 3 is in conflict with Art. 82 para. 3 of the

Constitution, which states the office of a judge is incompatible with

“any office in public administration”. According to the decision, it is

not up to the legislature to change the intent of the framers of the

constitution by issuing a legal norm which narrows the cited

constitutional rule of the incompatibility of the office of a judge with

“any” office in public administration.

Of course, in

interpreting Art. 82 para. 3 of the Constitution the decision limited

itself merely to a linguistic interpretation and did not take into

account the actual intent of the framers of the constitution. It thereby

reached a faulty conclusion.

On 9 November 2000 the government

submitted to the Chamber of Deputies a draft of a constitutional act,

which was to amend the Constitution, among other things, by inserting a

new Art. 91a, establishing the Supreme Judicial Council, which was to

take part in the administration of courts (point 11 of the draft). The

background report to the government draft states that “activity in the

area of administration of courts which does not belong to the Supreme

Judicial Council will continue to be performed by the executive power”. A

following Act on Courts was to “set mutual connections between the

administration of the judiciary performed at the central level by the

Supreme Judicial Council and the state administration of courts

performed at the central level by the Ministry of Justice”.

The

Chamber of Deputies subsequently in its roles as the framer of the

Constitution discussed the government draft. During the discussion, none

of the deputies described the then-existing manner of administration of

the judiciary (ties between the Ministry of Justice and officials of

individual courts) as being in conflict with the Constitution, and such a

conclusion cannot be reached through any interpretation of the debates.

By rejection the government draft in the second reading on 17 May 2000

by a practically “constitutional majority” of 114 votes, the framer of

the Constitution confirmed the legal status quo of the administration of

the judiciary. Thus, it is quite evident that in 2000 the framer of the

Constitution interpreted Art. 82 para. 3 of the Constitution to mean

that the exercise of state administration of the courts by the chairmen

and vice-chairmen of individual courts under the auspices of the

Ministry of Justice at the central level is not in conflict with the

constitutional rule of incompatibility of the office of a judge with

“any offices in public administration”. Therefore, § 74 para. 3 of the

Act on Courts and Judges, reviewed by the Constitutional Court, does not

narrow the constitutional rule of incompatibility in the given regard,

but merely confirms its content and scope correctly, as it is

interpreted by the framer of the Constitution itself.

The joint

exercise (of at least part) of the administration of the justice system

by the Ministry of Justice at the central level and by officers of

individual courts at lower levels is also not in conflict with the

principles of a state governed by the rule of law. It would come into

conflict with them only if a particular statutory model of such joint

exercise interfered in the independence of the judiciary or of judges.

The idea of joint exercise of administration of the justice system as

such is also not contested by Recommendation No. (94)12 of the Committee

of Ministers of the Council of Europe, on which the reasoning of the

decision expressly relies, nor by other international instruments. The

model of joint exercise of administration of the justice system is also

known in other European states.

We too, in agreement with the

reasoning of the decision, believe that it is desirable for the judicial

power to have its own representative body at the central level;

implementation of this though de constitutione ferenda is, however,

exclusively in the power of the framer of the Constitution, and in the

current constitutional state of affairs the Constitutional Court cannot

use it to measure the constitutionality of the relevant part of § 74

para. 3 of the Act on Courts and Judges. Unfortunately, however, that is

exactly what the decision did.

Although we do not agree with

the verdict of the decision in relation to the cited part of § 74 para.

3, we share with it the conviction that § 106 para. 1 of the Act on

Courts and Judges, whose generality and uncertainty do not meet the

requirements “of the law” as it is interpreted not only by the

Constitutional Court, but also by the European Court of Human Rights, is

in conflict with the constitutional order.

Independence is not a

personal prerogative of a judge, but an inseparable part of the

performance of his decision-making activity. This “functional” concept

also follows from the cited recommendation of the Committee of Ministers

of the Council of Europe (see principle I.2.d). 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 para. 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, on which the

reasoning of the decision itself relies, is ensured.

We evaluate

the activity of a judge in advisory bodies to the executive or

legislative powers analogously. It follows from the “advisory” nature of

these bodies that they do not perform an independent “office” in public

administration, and mere membership in them cannot be in conflict with

Art. 82 para. 3 of the Constitution, even if, at the deontological

level, one could agree that such membership cannot be recommended to

judges. Of course, this does not lead to conflict of that part of § 74

para. 3 of the Act on Courts and Judges with the constitutional order.

Membership in an advisory body in and of itself is not capable of

casting doubt on a judge’s impartiality, as a postulate required by the

Constitution. As state above, 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

(see principle I.2.d of the Recommendation of the Committee of Ministers

of the Council of Europe cited above).

The decision of the

Constitutional Court went beyond the limits of mere evaluation of

constitutionality in the case of the statutory regulation of the

education of judges. The central provision of the Act on Courts and

Judges in this regard is the second sentence of § 82 para. 2, which the

decision annuls in full. We believe that only the part of the sentence

beginning with the conjunction “and” to the end of it (the obligation to

submit to evaluation of knowledge and awareness) should be annulled.

The decision did not find conflict with the constitutional order

concerning § 82 para. 1 and the first sentence of § 82 para. 1, which

provides a judge’s statutory obligation to consistently educate himself

and his statutory responsibility for his professional level. Because the

decision annulled the entire second sentence of § 82 para. 2, a judge’s

statutory obligation to educate himself must interpreted exclusively as

an obligation to educate himself by himself, by independent study.

Forms of institutional, organized education cannot be included in this

statutory obligation. We do not agree with this restrictive

understanding of a judge’s responsibility for his level of

qualification. We believe that constitutional grounds for annulling the

statutory obligation to “participate in professional education in the

Judicial Academy and professional preparation organized by the courts”

were lacking.

It is true that with some elements of the

education of judges it is not only reasonable and purposeful, but also

appropriate to insist on organized forms of such education, and that a

statute may provide an obligation on judges to take part in them. This

applies primarily to those areas of law in which judges could not, in

their time, obtain adequate university level education (particularly

European law). The extent and specific applications of this obligation

depend on the particular situation of the judiciary in a given state. Of

course, it cannot be described as incompatible with the constitutional

order a priori, flatly and without time restriction.

The

Recommendation of the Committee of Ministers of the Council of Europe

(94)12 considers this problem as part of the regulation of principle III

“Suitable working conditions”. Point a) presumes education and training

of judges even after their appointment, both by the courts themselves

and by other institutions. The text does not indicate that judges could

not be given an obligation to participate in them, it is only required

that they be without cost.

The circumstance that education is to

be provided by the Judicial Academy with certain ties to the executive

power cannot represent an actual threat to the independence of judges,

if only because § 82 para. 2 second sentence offers a plurality of

education institutions (the Judicial Academy and courts themselves – see

also § 129 para. 3, which specifically mentions in this regard the

Supreme Court and the Supreme Administrative Court). The argument cited

in the reasoning of the decision, that professional education through

the Supreme Court is, given its current decision-making and other

activity, de facto unrealistic, is not relevant in terms of

constitutionality. Correction can be achieve by ordinary statutory and

lower level procedures (budgetary and personnel reinforcements). The

measure of constitutionality cannot be subjected to momentary de facto

inadequacies in the judicial education system.

The provision of §

82 para. 2 second sentence represents a guarantee of the plurality of

education institutions. This rules out the danger of indoctrination of

judges by opinions from a single source and artificial “unity”, which

the reasoning of the decision unjustifiably finds behind the cited

provision. The demonstrative enumeration of institutions in the second

sentence (“in particular”) also presumes the participation of other

educational institutions, including foreign ones. Thus, the second

sentence before the conjunction “and” is not in conflict with the

constitutional order, and it can be interpreted in a constitutional

manner. Therefore, it should not have been annulled in its entirety.

Brno, 2 July 2002

 

 


Dissenting opinion

of judge V. G. to the judgment in Pl. US 7/02

The

dissenting judge divides his dissenting opinion according to the three

basic circles (groups) of issues on which the decision of the

Constitutional Court is based.

I.    The first circle concerns evaluation of the professional qualifications of judges.

At

issue are particularly § 134 to 163 of the Act and the related § 50

para. 1 let. f) and g) other provisions which set tasks on judicial

councils relating to evaluation of the professional qualifications of

judges, also § 71 para. 1 and § 72 para. 2, second sentence, which, in

connection with transferring judges, speak of evaluation of expert

qualifications, § 123 para. 3 let. a), § 124 para. 4, § 125 para. 3, §

126 para. 3, § 127 para. 3, which provide the authorization of the

Ministry of Justice and court chairmen in evaluating the expert

qualifications of judges and some other related provisions [e.g. § 94

let. d)].

Concerning this first circle of questions, the

dissenting judge has a dissenting opinion only to the reasoning of the

decision on page 13 in the last paragraph (from the word “Undoubtedly”

to the end of p. 13) and on page 14 in the continuation of this

paragraph (from the word “done” to the end of the paragraph ending with

the word “issued”).

That text should be replaced by the following text:

“However,

the cited provisions do not reflect the difference between experienced

judges and beginning judges, who have held their office for a relatively

short period. With these judges the evaluation of professional

qualifications is necessary, because only the exercise of a judge’s

office in practice can reliably show what the young judge’s

qualifications and abilities are. Evaluation of a candidate for judicial

office after the end of the traineeship period is thus not sufficient

in this regard.

Therefore, it is necessary to include evaluation

of professional qualifications in the new legal regulations, though for

new judges after 3 years (possibly 5 years) from the time when they

assume their office as judge.”

This opinion should have been

expressed in the reasoning of the Constitutional Court’s decision, not

in its verdict, so that § 134 para. 1 of the Act would not be annulled,

although this provision speaks of the evaluation of professional

qualifications of judges … after the passage of 36 months from the time

when they assume judicial office. This is because it is also necessary

to consider the mutual interconnectedness of § 134 para. 1 of the Act

with other provisions which concern evaluation of the professional

qualifications of judges.

The dissenting judge is aware that

under Art. 93 of the Constitution a judge is appointed to his office

without time restriction (including a beginning judge). Thus, the result

of evaluation of professional qualifications should with the

above-mentioned (beginning) judges not be – under the future legal

regulation – in and of itself grounds for termination of the office, but

a notice stimulating the judge to improve his professional

qualifications. In any case it cannot be ruled out that the new legal

regulation will define the concept “professional qualifications of a

judge” from aspects other than does the present § 136 para. 1 of Act No.

6/2002 Coll. Therefore, one can also reason that in a particular case

the professional qualifications of a judge can also be a disciplinary

violation under § 87 of the Act (e.g. if a judge clearly does not

fulfill the obligation to consistently education himself under § 82

para. 2 of the Act).


II.    The second circle concerns the

obligations of judges to participate in professional education in the

Judicial Academy, etc.

In this circle, the dissenting judge has a dissenting opinion to the verdict of the decision, as follows:

1.  

 In § 82 para. 2 second sentence only the end of the sentence, with the

words: “and submit to the statutorily provided manner of evaluation and

assessment of his professional knowledge and awareness.” should be

annulled. Concerning the rest, the petition to annul this provision

should have been denied.

2.    The petition to annul other

provisions in this circle, which more closely specify the obligation of

judges to participate in education in the Judicial Academy should have

been denied. [This concerns § 130 para. 2, the words “enrollment of

judges”, § 131 para. 1 let. a), b), § 132 para. 1 let. a), b), para. 2,

the words “of judges”, para. 3.]

The dissenting judge – in

contrast to the decision of the Constitutional Court – considers that

mandatory education of a judge (including in the Judicial Academy) is

not in and of itself in conflict with the constitutional principle of

independence of courts and judges (Art. 81, 82 para. 1 of the

Constitution), even if such education were organized by the Ministry of

Justice, i.e. a component of the executive power. It is undoubted that a

judge cannot be bound in decision-making in a particular matter by a

legal opinion which was expressed during professional education in the

Judicial Academy; one can only – basically – require that a judge not

diverge in his decision-making from the settled and generally recognized

case law of the general courts and from the case law of the

Constitutional Court (Art. 89 para. 2 of the Constitution). In terms of

the principle of independence of judges, one cannot overlook the fact

that after annulment of evaluation of professional qualifications of

judges (see point I. above) – if this opinion of the dissenting judge

had been accepted – mandatory professional education of judges in the

Judicial Academy would have been preserved, though without the related

statutory provisions concerning sanctions.


III.    The third circle concerns the exercise of state administration of courts by chairmen and vice-chairmen of courts.

In this circle the dissenting judge has a dissenting opinion to the verdict of the decision, as follows:

1.  

 The dissenting judge does not agree with annulment of § 74 para. 3,

which provides which offices or activities are not considered offices in

public administration. The petition for annulment of this provision

should have been denied. In details one can refer to the reasoning of

the dissenting opinion of Constitutional Court judges professor

Malenovský and Dr. Varvařovský to the decision of the Plenum of the

Constitutional Court in the same manner.

2.    The dissenting

judge agrees only with annulment of § 106 para. 1, which provides that

the court officer cited there may be removed from his office if he does

not duly fulfill his obligations. This reason is formulated sufficiently

generally and uncertainly in this provision that it comes into conflict

with the principle that (every) law should have foreseeable

consequences.

3.    The petition to annul the other provisions

in this circle, which basically provide that chairmen and vice-chairmen

of courts perform, in addition to decision-making activity, state

administration of courts, should be denied. [This concerns § 15 para. 2

second sentence, § 26 para. 2 second sentence, § 30 para. 2 second

sentence, § 34 para. 2 second sentence, §119 para. 2 and 3, § 120, §

121, also § 124, 125, 126 and 127 – except paragraph 4 in § 124 and

except paragraph 3 in § 125, 126 and 127, which concern the first circle

of questions (evaluation of professional qualifications of judges)].

The dissenting judge – in contrast with the Constitutional Court’s

decision – considers that the exercise of state administration of a

court by the chairman and vice-chairman of the court (i.e. by a judge)

is not in conflict with the principle of independence of courts and

judges and with the principle of separation of powers. (In any case, the

Constitutional Court’s decision itself states that by the derogation of

§ 74 para. 3 of the Act it did not intend to indicate that the

direction and administration of courts should be entrusted to persons

other than those from among the ranks of judges.) In this regard one

naturally cannot avoid the consideration of which body should perform

state administration of a court, in a manner so as to preserve the

principle of separation of powers, without affecting the legitimate

requirement for the administration of courts to be functional and

speedy.
            
Said more simply, the following possibilities come into consideration:

a)

performance of state administration of courts by a special

administrative body which is not part of the judicial power. At one time

a comparable body (to a certain extent) existed in Czechoslovakia. This

was the “regional state administration” which did not hold up in

practice. In historical fact this was an extended arm not only of the

Ministry of Justice but also – de facto – of local communist party

bodies. This model is undoubtedly unacceptable.

b) performance of

state administration of courts by a self-governing collective body of

the judges of a particular court. It is obvious that such a body would

hardly be functional, as the standard day-to-day direction of courts

requires speedy and functional decision-making, which the judicial

personnel could not conduct effectively.

c)  performance of state

administration of courts by the chairman and vice-chairman of a court

under the above-mentioned (now annulled by the Constitutional Court)

provisions of the Act on Courts and Judges. This is a model which has

held up in practice and there are no serious signals indicating that

through it there would be interference in the independent

decision-making of courts. Thus, one can conclude that this model, i.e.

the performance of the state power of a court by a judge – including the

chairman and vice-chairman of a court – is, in terms of observing the

independence of judges and also with regard to the necessary

functionality of administration of courts the most suitable model, which

is not in conflict with the Constitution of the Czech Republic. Of

course, de lege ferenda it would be appropriate for basic questions of

the administration of a court be discussed with the representative body

of judges’ self-government.

4) In the opinion of the dissenting

judge the petition to annul part of § 68 para. 1 and § 99 para. 1 let.

c), concerning the possibility of temporarily assigning a judge not only

to another court, but also to the Ministry (of Justice) should also

have been annulled. In contrast with the reasoning of the Constitutional

Court’s decision, the dissenting judge believes that temporary

assignment of a judge to the Ministry is not in conflict with article 82

para. 3 of the Constitution. This article provides that the office of a

judge is not compatible with the office of the President of the

Republic, a Member of Parliament, or with any other office in public

administration. It is evident that the activity of a judge temporarily

assigned to the Ministry is not an office in public administration. The

purpose of such assignment is to make use of judicial experience (cf. §

68 para. 1 in fine), so the activity is basically an advisory one. This

also corresponds to practical experience concerning the work of judges

who were temporarily assigned to the Ministry. In any case, it cannot be

overlooked that this institution is restricted in time to a period of 1

year and that it is contingent on the consent of the relevant judge.
 

Brno, 18 June 2002