The Constitutional Court, Brno, June 6, 2012 (TZ 23/12)František Duchoň is the second judge whose tenure expires this year (the tenure of Eliška Wagnerová, the Vice President of the Constitutional Court, expired on March 20, 2012) without being substituted by a new judge.

The absence of two judges may already demonstrate itself in a negative manner within the activities of the Constitutional Court. The influx of constitutional complaints does not surcease, on the contrary it keeps increasing in comparison to past years and this will undoubtedly be reflected by the average length of the Constitutional Court proceedings being extended. However, in 2013 the tenure of eight more judges will expire (the tenure of Jiří Mucha will expire in late January 2013, in early June 2013 that of Miroslav Výborný, in August the tenure of the President of the Constitutional Court Pavel Rychetský, of the Vice President of the Constitutional Court Pavel Holländer and of judges Vojen Güttler and Dagmar Lastovecká; and the tenure of judges Jan Musil and Jiří Nykodým will have expired by the end of 2013).

Should the leaving judges not be substituted by new ones in the near future there is a threat of significant delays in proceedings before the Constitutional Court are at the expense of the parties to the proceedings as well as potentially a full paralysis of the Constitutional Court. Still, the parties to the proceedings before the Constitutional Court are entitled to a decision issued within a reasonable period of time pursuant to Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and pursuant to Article 38 Section 2 of the Charter of Fundamental Rights and Freedoms respectively.

Unjustified delays in proceedings both give rise to extension of legal uncertainty and may be reflected within the actual monetary compensations that are to be provided to the injured applicants by the state.

The Constitutional Court faced a similar situation between 2003 and 2005. In March 2004 the number of the Constitutional Court judges decreased to a critically low number of 11 judges, forcing the Plenum of the Constitutional Court to stay all proceedings before the Plenum until the number of the Constitutional Court judges was to be increased to at least 12 (see the Resolutions (Pl. ÚS 17/02 dated March 23, 2004, alternatively see Pl. ÚS 17/02 dated June 22, 2004, by which it was decided that the earlier stayed proceedings are to be continued after the appointment of the twelfth judge of the Constitutional Court.

It is worth mentioning that the Constitutional Court of the First Czechoslovak Republic experienced a state of total paralysis between the years 1931 and 1938. After the expiration of the first tenure of the Court in 1931 the political representation was unable to arrive at an agreement as to who to appoint as new Constitutional Court judges for the long period of seven years and thus the Constitutional Court practically ceased to exist. It was renewed as late as in the very late pre-Munich period of the Czechoslovak Republic in May 1938. Although back then the Constitutional Court did not test individual constitutional complaints and thus the effect of the delays in appointments on the individuals were not immediate ones, the political consequences as well as the consequences from the point of the constitutional law triggered by the paralysis of the Constitutional Court were still of a very grave nature.

For more detailed insight of the history see here this sub-chapter titled Intermezzo 1931–1938.

Tomáš Langášek
Secretary General of the Constitutional Court of the Czech Republic