2009/07/28 - Pl. ÚS 9/09: Exclusion of a Disciplinary Senate Judge of the Supreme Court  (274 KB, PDF)

A consequence of adopting a verdict of the Judgment in accordance with § 124 paragraph 1 of Act No. 182/1993 Coll. consists, as specified by § 125 paragraph 1 of Act No. 182/1993 Coll., of annulling the resolution of the Supreme Court dated 4 March 2009, file No. 1 Skno 20/2008, concerning the fact that JUDr. Jiří Pácal, Chairman of the Disciplinary Senate of the Supreme Court, is not excluded from hearing and adjudicating the case administered by the Supreme Court under file No. 1 Skno 20/2008.

In Judgment file No. III. ÚS 188/99, the Constitutional Court stated that according to the marginal heading of § 63 of Act No. 182/1993 Coll., the application of procedural orders is anticipated in proceedings before the Constitutional Court, while the wording itself of the above-specified provisions refers only to the Civil Procedure Code and regulations issued for the implementation thereof. The above-specified contradiction between the plural contained in the marginal heading and the specific reference in the wording of the norm must be interpreted in such a sense that unless the Act on the Constitutional Court provides otherwise, the provisions of the Civil Procedure Code and regulations issued for the implementation of the same shall be adequately applied to the proceedings before the Constitutional Court, unless adequate application of solely the Criminal Procedure Code relates, from the nature of the matter, to the given procedural situation.

If the cassational judgment annuls a legally effective decision of a body of public power, to which other decisions are related in terms of contents, and unless a situation is to be created by the same when legal conditions are not met for adopting such decisions as a result of cassation, the Constitutional Court shall, at the same time, annul such other decisions related in terms of contents to the annulled decision or an annulled part of the same, if the same, with respect to the modification which took place by such annulment, has lost its basis. In relation to the same, the Constitutional Court proceeds, in connection with the above-specified legal opinion declared in Judgment file No. III. ÚS 188/99, from the provisions of § 63 of Act No. 182/1993 Coll. in connection with the provisions of § 265k paragraph 2 and § 269 paragraph 2 of the Criminal Procedure Code.

Due to the above, the Constitutional Court also annulled the resolution of the Supreme Court dated 4 March 2009, file No. 1 Skno 20/2008, concerning the fact that JUDr. Jiří Pácal, Chairman of the Disciplinary Senate of the Supreme Court, is not excluded from hearing and adjudicating the case administered by the Supreme Court under file No. 1 Skno 20/2008, as well as the related decision of the Supreme Court dated 4 March 2009, file No. 1 Skno 20/2008, on withdrawing the case of Judge JUDr. Pavel Kučera, charged within disciplinary proceedings, administered by the High Court in Olomouc under file No. 1 Ds 2/2008, and assigning the same to the High Court in Prague.

With respect to the immediate hearing and adjudication of the case in question, the Constitutional Court deems the decision on the urgency of the case pursuant to § 39 of Act No. 182/1993 Coll. to be unfounded.

Note: Decisions of the Constitutional Court cannot be appealed.

In Brno on 28 July 2009




Dissenting opinion of Justices Pavel Rychetský and Jan Musil

The dissenting opinion which, pursuant to § 14 of Act No. 182/1993 Coll. on the Constitutional Court, as amended by later regulations, we express, is aimed against the Judgment whereby a decision was taken on the scope of jurisdictions in the dispute between the Chief Justice of the Supreme Court and the Disciplinary Senate of the same court over determining which body of the Supreme Court was competent to make a decision on possibly excluding JUDr. Pácal, Chairman of the Disciplinary Senate of the Supreme Court, due to bias in proceedings on the petition by JUDr. Kučera, the Deputy Chief Justice of the Supreme Court charged within disciplinary proceedings, for withdrawal of the disciplinary proceedings from the High Court in Olomouc and for assignment of the same to the High Court in Prague. In the given case, the Chief Justice of the Supreme Court, who acts at the same time as a disciplinary plaintiff, proposed the annulment of the resolution of the Disciplinary Senate concerning the fact that its Chairman is not excluded from hearing the petition for delegating the disciplinary proceedings, and the subsequent resolution of the same Senate, whereby the petition for delegation was granted, given that, in the first case, the jurisdiction of the Disciplinary Senate did not cover issuing such a decision, and in the second, “a residual decision” was concerned, that is one directly based on a decision issued by a non-competent body. The petitioner supports her active standing with the provisions of § 10 paragraph 3 in fine of Act No. 7/2002 Coll. in the wording valid until 30 September 2008.

We believe that the petition should have been rejected pursuant to § 43 paragraph 1, clauses c) and d) of the Act on the Constitutional Court. Our disapproval of the Judgment is supported by the conclusion that, in the given case, the basic condition for the proceedings pursuant to Article 87 paragraph 1, clause k) of the Constitution and § 120 of the Act on the Constitutional Court has not been fulfilled. According to the above-quoted provisions, the Constitutional Court makes decisions concerning disputes of state bodies over the scope of their jurisdictions. In the given case, the petition by the Chief Justice of the Supreme Court contested two decisions of the Disciplinary Senate of the Supreme Court – decision file No. 1 Skno 20/2008 on the fact that JUDr. Jiří Pácal, its Chairman, is not excluded from hearing and adjudicating the disciplinary case of Judge JUDr. Pavel Kučera, charged within disciplinary proceedings, as well as a decision with the same file number, whereby this case was withdrawn from the agenda of the High Court in Olomouc and assigned to the High Court in Prague. The petitioner regarded the core of the dispute over jurisdictions being the statement that she herself was competent to adjudicate as to possibly excluding the Chairman of the Disciplinary Senate of the Supreme Court from hearing the case in question, not the Senate to whose decision making the case was assigned by decision of both Chairpersons of the Collegia of the Supreme Court with respect to the fact that she herself as a disciplinary plaintiff is a party to the proceedings and, therefore, cannot adjudicate “in her own case”. The crucial issue is the definition of the parties to the jurisdictional dispute administered before the Constitutional Court. Pursuant to Article 87 paragraph 1, clause k) of the Constitution and pursuant to § 120 of the Act on the Constitutional Court, the Constitutional Court adjudicates disputes over the scope of jurisdictions between state bodies mutually or between state bodies and bodies of the self-governing regions. In the case under examination, however, the action on determining jurisdiction was filed by the Chief Justice of the Supreme Court against one of the Senates of the same court in the form of a quasi-positive conflict of jurisdictions. Undoubtedly, this is merely a dispute over determining material competence for the procedural decision in proceedings taking place within one and the same state body – the Supreme Court. Such a body of state power to which, by the Constitution or by way of law, execution of state power is entrusted, i.e. decision making on rights and obligations of other entities by way of individual or generally binding acts, must be considered a state body. In our dissenting opinions concerning Judgment file No. Pl. ÚS 17/06 we have already explained why we do not consider the position of the Chief Justice of the Supreme Court to be a state body as specified by Article 87 paragraph 1, clause k) of the Constitution, but instead that of an official authorised to execute administrative duties; besides, § 118 and § 119 of the Act on Judges and Courts establishes that chairpersons of courts are authorised to execute state administration, while they “must not interfere with the independence of the courts”. Thus they do not stand outside the court as a specific body of state power, but are part of such a court. Therefore, and even more so, an individual Senate of the Supreme Court, which in accordance (or possibly in conflict) with the valid Work Schedule and internal regulations of the court exercises judicial activities, cannot be considered a state body. From a constitutional viewpoint, each court (but not any internal sections of the same) must be considered a body of state power (judicial power, in the given case), which actually results from both Article 90 and Article 91 of the Constitution, and from the provisions of § 8 of the Act on Judges and Courts (“The system of courts shall be formed by…. The courts shall form accounting units.”), § 3 paragraph 1 of Act No. 219/2000 Coll. (courts shall be organisational units of the state), or, for example, § 33 paragraph 7 (a court shall be composed of panels and single judges). Therefore, we cannot identify ourselves with the argumentation of the Judgment, which grants to the individual sections of the Supreme Court the nature of a “peculiar state body” solely and exclusively according to the category of attributability, in other words according to whether a power is granted by law to a certain person or a group of persons, such power being the capacity to act on behalf of the state authoritatively and with legal relevance. Such deliberation would then result in a situation when all disputes over competence within the Supreme Court between the individual sections of the same (Senates, Collegia, officials, and suchlike) would be dealt with as disputes over the scope of jurisdictions by the Constitutional Court. The Supreme Court represents the peak of the system of ordinary courts, to which the Constitution and the legal order entrust exclusive jurisdiction on behalf of the state (“in the name of the Republic”) to provide protection of rights and decide on guilt and punishment (Article 90 of the Constitution). The way of exercising this jurisdiction granted by the Constitution from the level of the Supreme Court is then governed by legal regulations (in particular, norms of procedural law and organisational norms) and internal organisational regulations of the Supreme Court (in particular, the Standing Order and the Work Schedule of the same). However, in our opinion, a possible lapse in their application, which in the given case presumably actually occurred, cannot be solved by way of a jurisdictional dispute conducted between the individual branches of the Supreme Court before the Constitutional Court.



Dissenting opinion of Justice Eliška Wagnerová

1. I disagree with the majority opinion expressed in the verdict and reasoning of the Judgment in the given case for the following reasons.

2. First of all I believe that the petition should have been rejected either pursuant to § 43 paragraph 1, clause c) of the Act on the Constitutional Court as a petition filed by a person who is clearly not authorised for the same, or pursuant to clause e) of the same provision as an inadmissible petition, or pursuant to clause d) of the same provision as a petition over which the Constitutional Court has no jurisdiction.

I. A person clearly not authorised

3. The following deliberation led to my conclusion specified above as the first option:
A judicial decision on protection of their entitlement or jurisdiction may only be claimed by an individual who personally represents a body whose jurisdiction is concerned, and who may realistically exercise the same in the given case. In other words, such a person must not be excluded from exercising the jurisdiction of the given body for reasons typical of bias, as anticipated by law. If statutory reasons for their exclusion are prima facie perceptible (as in the given case), such a person must be able to present a legally effective decision on the fact that such a person is, nevertheless, not excluded from exercising said jurisdiction. If such a condition is not met, then such a person cannot be considered as a person authorised to file a petition, since in such a way, it is the Constitutional Court who is actually called upon to assess their exclusion from decision making on the case, which is what actually happened in the given situation, even though assessing the bias of the Chief Justice of the Supreme Court surely does not fall under the jurisdiction of the Constitutional Court. A clear lack of authorisation of the petitioner must be interpreted, in my opinion, as also including a requirement consisting of exclusion of a circumstance when the petitioner, by a filing provided to the Constitutional Court, wants to solve a situation which the petitioner themself established by their evidently erroneous conduct or omission. For this reason, acceptance of the petition for substantive examination was mistaken.

II. Inadmissible petition

4. As for the second option above, I wish to raise the following arguments:
The petitioner is the disciplinary plaintiff in the given case. Yet she, through the petition for settlement of the jurisdictional dispute, claimed for herself the entitlement to decide on possible bias on the part of the Chairman of the Disciplinary Senate who was to decide on the petition by the Deputy Chief Justice of the Supreme Court, the same having been charged by the petitioner within disciplinary proceedings, for delegation of the Deputy Chief Justice’s disciplinary case. The petitioner has not excluded herself from the decision-making process even though she unambiguously was obliged to do so on the basis of adequate application of § 30 paragraph 2 in connection with § 31 paragraph 1 of the Criminal Procedure Code, as she was so commanded by the provisions of § 25 of Act No. 7/2002, and thus she triggered the situation when the algorithm could not be applied, such an algorithm being anticipated by the Standing Order of the Supreme Court of the Czech Republic in the provisions of Article 26 and Article 29, when the latter provision anticipates that the Chief Justice and the Deputy Chief Justice are substituted for by the Chairperson of the Collegium in charge. Besides, the Judgment reached the solution anticipated by the Standing Order, even though it declares that judicial formation of law was necessary to find such a result. I cannot agree with this, as it is a mere application of the Standing Order of the Supreme Court, in other words an internal regulation of the Supreme Court, which is also binding on representatives of the Supreme Court, i.e. the Chief Justice and the Deputy Chief Justice. Besides, the judicial formation of law in the case of determining the scope of jurisdictions (as opposed to refining substantive law and procedural law) is very unusual, clearly problematic from the viewpoint of constitutional law (Article 2 paragraph 2 of the Charter surely serves also for excluding movements in the area of jurisdictions, which could ultimately lead to distortion or factual drift in the separation of powers) and, therefore, rather dangerous phenomenon. The outlined algorithm, however, could not be practically applied, since the petitioner failed to adhere to the obligation imposed on her by law (the above-quoted provisions of the Criminal Procedure Code) and did not request, not having done the same herself, the Deputy Chief Justice charged within disciplinary proceedings, to employ the same procedure. From the above it is implied that there actually was a mechanism in place through the application of which the case would have been solved and the action of the Constitutional Court would not have been necessary. As it is clear that also in jurisdictional disputes it is surely necessary to apply the principle of subsidiarity, ordering that the Constitutional Court intervene only in such cases and as a last resort when the matter cannot be solved before other bodies, it is possible to conclude that the petitioner applied an inadmissible petition. However, on the contrary, inadmissibility of the petition as specified by § 122 of the Act on the Constitutional Court cannot be inferred.

III. Lack of jurisdiction of the Constitutional Court

5. Possible application of the third option above is supported by the following reasoning:
The given case cannot be assessed by the Constitutional Court at all, since the case does not include a dispute over applying jurisdictions in such a way as is meant by the provisions of Article 87 paragraph 1, clause k) of the Constitution of the Czech Republic, which may be applied in proceedings before the Constitutional Court, regulated in the ninth division of chapter two of the second part of the Act on the Constitutional Court (§ 120 to § 125). The purpose of the above-quoted provisions of the Constitution is undoubtedly the protection of separation of powers (both horizontal and vertical) in the state. In my opinion (which is in accord with my dissenting colleagues), the petitioner in fact claimed that a decision be issued whereby merely her material competence would be confirmed for decision making on the bias of the Chairman of the Disciplinary Senate, which was, in her opinion in an unauthorised manner, arrogated by the Disciplinary Senate of the Supreme Court. The purpose of all the provisions on determining material jurisdiction contained in various procedural regulations, however, is to determine, as appropriately as possible, a lawful judge who is to effectively be a guarantee of expert, independent and impartial decision making. It is clear from the above that the purposes of both institutes are very different.

6. Nevertheless, the petitioner somewhat implicitly considers the Disciplinary Senate to be a state body, though within her petition she designates the Supreme Court as the party to the proceedings without any closer specification; that is without, in any detail, specifying the body against which she wishes to administer the jurisdictional dispute. The matter may also be perceived in such a way that the petitioner believes that the Constitutional Court has in the past (in Judgment Pl. ÚS 17/06) confirmed that the Chief Justice of the Supreme Court possesses the properties of a body, which are apparently to pertain to the same in all relationships, including those with other judicial bodies of the Supreme Court, and which thus also apparently empower her to submit a petition against the institution of the Supreme Court as a body, however, without clarifying who is to represent this Court under such circumstances. The Disciplinary Senate, however, surely has no statutory authorisation to represent the Supreme Court as a whole, and perhaps this is why the Judgment infers that it is, in this case, a body, even when the same was not designated by the petition, even though the Constitutional Court asked the same for its opinion, and dealt with the same as with a party to the proceedings, i.e. as with a body. In the given case, however, in my opinion, the petitioner must be seen as a judge appointed under a procedural act (§ 10 paragraph 3 of Act No. 7/2002 Coll.), whose material competence includes assessing issues of exclusion of judges from decision making. Therefore, this is not a relationship in which the petitioner herself would act as a representative of the Supreme Court, and thus as a body representing the judiciary in relation to other powers.

7. Another problem is that the Judgment eventually entrusted the “jurisdiction” to decide on the possible, not prima facie given, bias of the Chairman of the Disciplinary Senate (who had not asked for his exclusion but only for assessment of whether he could be perceived as biased by his connections, due to his long-term friendship with the Deputy Chief Justice being charged within disciplinary proceedings, which is a circumstance that the Constitutional Court alone, within its case law as well as practice, evaluates as not leading in itself to exclusion of a judge) to a third “body” of the Supreme Court, that is to the Chairperson of the Collegium, who was, according to the Standing Order of the Supreme Court, appointed to substitute for the petitioner, or her Deputy Chief Justice, which, however, represents another problematic procedure. This due to the fact that “jurisdiction” was thus established for yet another “body” of the Supreme Court, which, however, was not in any way a party to the proceedings, was not given any leeway for procedural acts as a party to the proceedings, in particular not having been given the opportunity to express their opinion (in particular with respect to the possibility of their potential bias). The fact that merely the jurisdiction of a person who is a party to the proceedings may be established is not doubted by commentaries (implicitly Filip/Hollander/Šimíček: Zákon o Ústavním soudu, komentář / Act on the Constitutional Court, Commentary, 2nd edition, C. H. Beck, Prague, 2007, p. 785; explicitly Wagnerová, Dostál, Langášek, Pospíšil: Zákon o Ústavním soudu s komentářem / Act on the Constitutional Court with Commentary, Aspi, Prague, 2007, p. 567). In addition, the majority opinion contained in the Judgment evidently relies on the fact that, with respect to this Chairperson of the Collegium, not even a trace of bias resulting from a long-term friendship with the Chairman of the Disciplinary Senate will be ascertained, which is a pre-condition that may somewhat be rather unrealistic. Should the circumstance mentioned above actually occur, then another jurisdictional dispute would be predictable, as it would be the same situation in terms of general pattern.

8. The problems outlined above are removed if we proceed from the opinion that it is necessary to make a difference between jurisdictions dealt with in jurisdictional disputes before the Constitutional Court, and dealing with disputes over material competence of judicial bodies within a single court, which should be solved by the internal regulations of the given court, that is the Standing Order or the Work Schedule. This opinion is supported by the differing purposes of both institutes, as is explained above, when proceedings on jurisdictional disputes may only be conducted when procedural protection of jurisdictions understood as implied by the Constitution (see above) is concerned. To the contrary, proceedings on jurisdictional disputes cannot be used (abused) for remedying material competence within a court, perhaps an erroneously established one. The fact that the internal regulations actually did provide for the settlement of the resulting situation is, eventually, paradoxically proven by the very verdict of the Judgment itself. However, the fact that the above-mentioned regulations could not be applied is related to the inactivity of the petitioner, who caused the Disciplinary Senate to be forced to seek a way and pass a decision, where the Chairperson of the Collegium substituting for the Chief Justice should have passed one. It is barely possible to claim that the Disciplinary Senate, assigned to make a decision on delegating a case of a disciplinary charge of the Deputy Chief Justice of the Supreme Court, approach, regarding assessment of possible bias by its Chairman, the substitute Chairperson of the Collegium, when neither the Chief Justice nor Deputy Chief Justice, who are superior to the substituting Chairperson of the Collegium, made any formal steps to create leeway for this deputy of theirs – the relevant Chairperson of the Collegium – to make a decision.

9. In my opinion, the Judgment does not deal with the conflict of jurisdictions, but merely the material competence of judicial bodies inside the Supreme Court. In doing so, however, the Judgment extends the jurisdiction of the Constitutional Court itself. I perceive that the extension of jurisdiction of the Constitutional Court consists also of the fact that this decision actually raises another on the apparent exclusion of the petitioner from decision making on excluding Judge Pácal from decision making on delegation of the given disciplinary case, as well as a decision on possible reasons for excluding Judge Pácal from such decision making, even though these were not at all analysed. First of all, however, decision making on bias (be it as a preliminary reference) is not an agenda soluble within the scope of a jurisdictional dispute, since the Constitutional Court is not competent to assess the bias of judges of ordinary courts, and less so within the scope of a jurisdictional dispute. In my opinion, all I have stated above can be summarised in the conclusion that the matter proposed by the petitioner to be decided upon by the Constitutional Court actually consists of issues which the Constitutional Court is not competent to assess and decide.



Dissenting opinion of Justice Jiří Nykodým

Pursuant to the provisions of § 120 paragraph 1 of the Act on the Constitutional Court, in proceedings on a jurisdictional dispute between a state body and the body of a self-governing region under Article 87 paragraph 1, clause k) of the Constitution, the Constitutional Court shall decide the dispute between the state body and the body of the self-governing region over jurisdiction to issue a decision, to take measures or other actions in the matter referred to in the petition instituting the proceeding. The Act thus defines jurisdictional disputes in particular as those between independent state bodies, or state bodies and the bodies of self-government, not as disputes between bodies belonging to the same state body.

In the case under examination, the dispute was over material competence for dealing with an objection of bias of a member of the Disciplinary Senate, which was to make a decision on the procedural issue of withdrawal of the case of a person charged within disciplinary proceedings by the Chief Justice of the Supreme Court, administered by the High Court in Olomouc, and assignment of the same to the High Court in Prague. Pursuant to the wording of the Act valid at the time of decision making, the matter of bias of a member of the Disciplinary Senate was decided upon by a chairperson of the disciplinary court. The chairperson of the disciplinary court and the Disciplinary Senate are not independent state bodies, instead they are bodies of the disciplinary court. That is why the dispute over who is in charge of deciding on the bias of a member of the Disciplinary Senate in proceedings in which the chairperson of the disciplinary court is at the same time a disciplinary plaintiff, is not a jurisdictional dispute as specified by the above-quoted provisions of the Act on the Constitutional Court, rather it is a dispute over material competence for deciding the given issue. The Chief Justice of the Supreme Court, therefore, did not have material active standing to file a petition for declaring the competence of the Chief Justice of the Supreme Court to issue a decision on exclusion of a judge of the Supreme Court in disciplinary proceedings pursuant to § 10 paragraph 3 in fine of Act No. 7/2002 Coll. on Proceedings Concerning Judges and Public Prosecutors in the wording valid until 30 September 2008, since the provisions above do not suggest that she would act as an independent state body but as a chairperson of the disciplinary court. In this respect, her position is different from that in which she acted in case file No. Pl. ÚS 17/06, where the Constitutional Court formulated a conclusion that the Chief Justice of the Supreme Court as a body of another body has, within the confines of their exclusive entitlements, also an entitlement to file a petition for settling a jurisdictional dispute, if she believes that the same has occurred by, for example, the very ignoring of such entitlements which are granted to them by law. The fact is that this is not an exclusive power of the Chief Justice of the Supreme Court, but instead the power of a chairperson of the disciplinary court, whose position is held not only by the Chief Justice of the Supreme Court, but also by chairpersons of other disciplinary courts.

Even if I disregarded the argumentation above and admitted that in the case of collision on competence for making a decision on exclusion of a member of the Disciplinary Senate, a jurisdictional dispute is concerned, then in this specific case the Chief Justice of the Supreme Court could not hold material active standing, this due to the fact that in the case under consideration she herself was a disciplinary plaintiff, and, therefore, she could not be in charge of deciding on exclusion of a judge of the Disciplinary Senate in this matter. The opposite situation would result in affecting the principle of independency and impartiality of judicial decision making (as specified by Article 81 et seq. of the Constitution, as well as Article 36 paragraph 1 of the Charter), since the party to the proceedings would be deciding on the bias of a judge in proceedings to which they are a party. If her competence for making a decision could not be affected, through her not being able to decide on exclusion of a member of the Disciplinary Senate due to bias, then she could not have active standing for filing a jurisdictional petition.

In addition, the Plenum has not coped well with Judgment of the Constitutional Court file No. I. ÚS 182/05, in which the First Panel of the Constitutional Court, in addition to other points, formulated a conclusion that filing a petition for commencement of disciplinary proceedings on disciplinary responsibility of a public prosecutor is an act of the state – a party to labour-law relationships (and, therefore, a legal entity and employer), and consequently, in this case, the state was not a holder of public power. From this they inferred that the District Public Prosecutor was entitled to file a constitutional complaint. In this connection, the Constitutional Court referred to the fact that the legislature in the legal order differentiates between the position of the state as a “state – holder of public power” and that of “a state – legal entity”, which is also based on the Act on the Constitutional Court, which has explicitly acknowledged that legal entities have the right to file a constitutional complaint [provisions of § 72 paragraph 1, clause a) of the Act on the Constitutional Court]. If the Constitutional Court once acknowledged that the disciplinary plaintiff in specific proceedings administered pursuant to Act No. 7/2002 Coll. on Proceedings Concerning Judges and Public Prosecutors holds a position of a party to a labour-law relationship, it is not possible to grant them a dual position in the same proceedings – one as an independent state body and another as a party to a labour-law relationship. If then the Chief Justice of the Supreme Court in the position of a disciplinary plaintiff had held reservations about the advancement of the Disciplinary Senate for the reason that the latter had not been materially competent to make a decision in the case under consideration, an opportunity was given, upon compliance with conditions determined by law, for filing a constitutional complaint.

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