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HEADNOTES
The principle, “he who appoints, may remove”, cannot be applied to relations in the context of court administration and that neither is it possible to construe the duality of the legal status of a court chief judge as an official of state administration, on the one hand, and as a judge, on the other. Accordingly, the manner in which court chief judges, including the Chief Justice of the Supreme Court, are removed must be gauged by means of the maxim expressed in Art. 82 par. 2 of the Constitution; not only must the rules governing the removal of judges respect the constitutional principles of the separation of powers and the independence of the judiciary, so too must the rules for the removal of chief judges and deputy chief judges.
The principle, “he who appoints, may remove”, cannot be applied to relations in the context of court administration and that neither is it possible to construe the duality of the legal status of a court chief judge as an official of state administration, on the one hand, and as a judge, on the other. Accordingly, the manner in which court chief judges, including the Chief Justice of the Supreme Court, are removed must be gauged by means of the maxim expressed in Art. 82 par. 2 of the Constitution; not only must the rules governing the removal of judges respect the constitutional principles of the separation of powers and the independence of the judiciary, so too must the rules for the removal of chief judges and deputy chief judges.
The
office of chief judge or deputy chief judge, as well as that of
chairperson of court collegia, should be considered as a career step for
a judge (similarly as is the case for the appointment of the
chairperson of a court panel), so that neither the chief judge and
deputy chief judge of a court should be subject to removal otherwise
then on the grounds foreseen in the law and on the basis of a decision
of a court.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The Constitutional Court Plenum, composed of the Chief Justice, Pavel Rychetský and Justices Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká, Jan Musil, Jiří Nykodým, Miloslav Výborný, Eliška Wagnerová and Michaela Židlická, on the petition of JUDr. Iva Brožová, residing in Brno, at Marie Steyskalové 60, represented by JUDr. Alexandr Nett, attorney, with his office in Brno at Gorkého 42, proposing the annulment of § 106 par. 1 of Act No. 6/2002 Coll., on Courts, Judges, Lay Judges, and the State Administration of Courts, and on the amendment of certain other acts (the Act on Courts and Judges), as amended by Act No. 192/2003 Coll., with the Assembly of Deputies and the Senate of the Czech Parliament as parties, decided as follows:
§ 106 par. 1 of Act No. 6/2002 Coll., on Courts, Judges, Lay Judges, and the State Administration of Courts, and on the amendment of certain other acts (the Act on Courts and Judges), as amended by Act No. 192/2003 Coll., is annulled as of the day this judgment is published in the Collection of Laws.
REASONING
I.
On 8 February 2006 the Constitutional Court received a complaint submitted by complainant, JUDr. Iva Brožová, against the decision of the President of the Republic, act no. KPR 966/2006, contrasigned by the Prime Minister, by which she was removed from the office of Chief Justice of the Supreme Court, in conjunction with a petition proposing the annulment of § 106 par. 1 of Act No. 6/2002 Coll., on Courts, Judges, Lay Judges, and the State Administration of Courts, and on the amendment of certain other acts (hereinafter “the Act on Courts and Judges”) and with a petition proposing the delay of the entry into effect of this decision. The complainant reasoned her petition primarily in terms of the violation of the principle of the separation of powers in the state and the threat to the independence of the judiciary; in consequence of the application of an unconstitutional provision, § 106 par. 1 of the Act on Courts and Judges, she was denied her right to judicial protection and was thereby affected in her constitutionally protected right in the sense of Art. 36 of the Charter of Fundamental Rights and Basic Freedoms.
The
Second Panel of the Constitutional Court found no preliminary grounds
for rejecting the constitutional complaint, in the sense of § 43 of Act
No. 182/1993 Coll., on the Constitutional Court, as subsequently amended
(hereinafter “Act on the Constitutional Court”), as the application of
the contested provision resulted in the situation which is the subject
of the constitutional complaint. Accordingly, the formal prerequisites
under § 43 par. 1 for hearing the matter were met, and the
constitutional complaint was not found to be manifestly unfounded under §
43 par. 2, lit. a). Accordingly, the Second Panel suspended the
proceeding on the constitutional complaint, in the sense of § 78 par. 1
of this Act, and referred to the Constitutional Court Plenum for its
decision pursuant to Art. 87 par. 1 of the Constitution of the Czech
Republic (hereinafter “Constitution”) the petition proposing the
annulment of a legal enactment, that is § 106 par. 1 of the Act on
Courts and Judges.
The
Constitutional Court Plenum decided in a proceeding on concrete norm
control, and in its jurisprudence relating to the outcome of a
derogational judgment in such a proceeding, based on the fulfillment of
the conditions of § 74 of the Act on the Constitutional Court (see, in
particular, Judgments Nos. I. US 102/2000, I. US 738/2000) the
Constitutional Court has repeatedly emphasized: “Although the
constitutional complaint and the petition proposing the annulment of
statutory provisions represent relatively separate petitions, upon which
the Constitutional Court decides separately, their substantive
interconnection cannot be disregarded. That is to say, this type of
proceeding before the Constitutional Court falls within the field of
‘concrete norm control’, where a specific adjudicated matter, in which
the contested legal enactment was applied, serves as the instigation for
the Constitutional Court’s decision-making as to that enactment’s
constitutionality. It is true that one cannot, alone from the fact that
the petition proposing the annulment of the legal enactment is granted,
automatically draw conclusions as to whether the constitutional
complaint itself will also be granted. One cannot rule out the
possibility of the situation (albeit exceptional) where even following
the annulment of the contested legal enactment the Constitutional Court
would reject the constitutional complaint on the merits as not
well-founded, where it finds in the specific case that the annulled
provision did not interfere with the complainant’s constitutionally
protected fundamental rights; it is equally clear, however, that in
deciding on the constitutional complaint the Constitutional Court must
take into consideration the judgment of annulment in the norm control
proceeding. Were it otherwise, the submitted constitutional complaint
would not fulfill its individual function, the function of protecting
the complainant’s constitutionally guaranteed fundamental rights or
freedoms.” The Constitutional Court would add to this that a properly
submitted and admissible constitutional complaint is a prerequisite to
the institution of a proceeding on this type of concrete norm control.
II.
In
harmony with § 69 of the Act on the Constitutional Court, the
Constitutional Court requested that the parties to the proceeding, both
chambers of Parliament, give their views on the matter.
In
its statement of views of 5 April 2006, the Assembly of Deputies
explained the reasons leading to the adoption of the amendment to the
Act on Courts and Judges in conjunction with the Constitutional Court’s
judgment No. Pl. US 7/2002, with reference to a passage from the
Explanatory Report on the amending act, which stated that the proposed
provision is not in conflict with international treaties, nor with legal
acts of the European Union. According to the Explanatory Report,
neither is the submitted bill in conflict with the Europe Agreement on
the Association of the Czech Republic with the European Community, nor
with general principles of law of the European Community. The proposed
provision respects the Recommendation of the Committee of Ministers of
the Council of Europe R (No. 94) 12 on the independence, efficiency and
role of judges and does not conflict either with international acts
relating to the independence of courts, judges, or the performance of
the judiciary.
The Assembly
of Deputies further stated that the Act on Courts and Judges was adopted
on 10 June 2003 through the regular legislative procedure, and the
legislative body acted in the conviction that the adopted act was in
conformity with the Constitution and our legal order. It is thus up to
the Constitutional Court to adjudge the constitutionality of the
contested provision and to issue the appropriate decision.
In
its statement of views of 10 April 2006, the Senate also summarized the
reasons which led to the Act on Courts and Judges, specifically § 106
odst. 1 thereof, being amended.
The
Senate debated the bill in the sixth session of its fourth electoral
term, held on 29 May 2003 and, on the basis of the Constitutional Law
Committee’s recommendation, decided to return the bill to the Assembly
of Deputies in the version established by the adoption of amendments.
As
to the merits of the matter under adjudication, the Senate described
the most significant factors in the development of the model of court
administration from 1991 up to the adoption of the amendment to the Act
on Courts and Judges. Further, it summarized the powers of the
President of the Republic and the Minister of Justice relating to the
appointment of court chief judges, as well as the status of chief judges
in their performance of the state administration of courts. In
connection therewith, it declared that in her submission the complainant
did not call into question that the office of judge and chief judge of a
court are of a dualistic nature; the Senate accordingly confined its
statement of views solely to the issue of the termination of a chief
judge’s function through removal from office.
The
Senate observed that, in debating the amendment to the Act on Courts
and Judges, it adopted, in connection with Constitutional Court judgment
No. Pl. US 7/02, the position that, in the situation where court
functionaries – judges should perform state administration, it is
necessary to fortify their independence from the executive, at least as
concerns their removal from office. In the Senate’s view, chief judges
and deputy chief judges of courts should be removed from office solely
through the imposition of disciplinary measures, and only after holding a
disciplinary proceeding. Only the violation of a statutorily
prescribed duty (moreover in a serious manner) in the performance of the
state administration of courts should constitute grounds for the
imposition of disciplinary measures. A statutorily prescribed
disciplinary panel should decide as to whether, in a specific case, the
prerequisite grounds were satisfied. The proposed amendment, which the
Senate incorporated into the proposed act it returned to the Assembly of
Deputies, accorded with this aim.
III.
The
Constitutional Court then proceeded to review, as its primary criteria
for review under § 68 par. 2 of the Act on the Constitutional Court,
whether the amendment to the Act on Courts and Judges at issue in this
case was adopted and issued within the confines of Parliament’s
competence, as laid down in the Constitution, and in the
constitutionally prescribed manner.
The
Constitutional Court has verified that the amendment to Act No. 6/2002
Coll., effected by Act No. 192/2003 Coll., was adopted by the Assembly
of Deputies on 13 May 2003 and that 175 of the Deputies voted in favor
of the bill and one against. On 14 May 2003 the bill was transmitted to
the Senate, which debated it on 29 May 2003 and by its resolution
decided to return the bill to the Assembly of Deputies in the version
including the proposed amendments it adopted. Sixty of the present
Senators voted in favor of the bill and none against. In the context of
the completion of the legislative process, on 10 June 2003 the Assembly
of Deputies approved the version of the bill that had been transmitted
to the Senate. On 18 June 2003 the President of the Republic signed the
Act, which entered into effect on the day it was promulgated in the
Collection of Laws as No. 192/2003 Coll., that is on 1 July 2003.
The
Constitutional Court accordingly affirmed that the Act was duly adopted
and issued, in the sense of § 68 par. 2 of the Act on the
Constitutional Court.
In the
context of this statutory requirement, the Constitutional Court first
of all delimited the relevant state of facts in terms of the ambit of
provisions which form the subject of review and in terms of the relevant
provisions of constitutional acts with which this provision might
conflict.
The subject of
review is § 106 par. 1 of Act No. 6/2002 Coll., on Courts, Judges, Lay
Judges, and the State Administration of Courts, and on the amendment of
certain other acts (the Act on Courts and Judges), as subsequently
amended and supplemented, the text of which reads: “The chief judge or
deputy chief judge of a court may be removed from office by the official
who appointed her to that office if she violates, in a serious manner
or repeatedly, her statutorily prescribed duties in the course of
performing the state administration of courts. The chairperson of a
collegium of the Supreme Court or of a collegium of the Supreme
Administrative Court may be removed from office by the person who
appointed her to that office, if she fails properly to carry out her
duties.”
The complainant
contested § 106 par. 1 of the Act on Courts and Judges due to its
conflict with fundamental constitutional principles, specifically the
principle of the separation of powers in the state and the principle of
the independence of the judiciary.
As
a preface to constitutional review in the given matter, that
Constitutional Court states that the fundamental constitutional
guarantees of the separation of powers in a democratic, law-based state
are governed by the provisions of Art. 2 par. 1 of the Constitution:
“All state authority emanates from the people; they exercise it through
the legislative, executive, and judicial bodies”. The principle of the
independence of the judiciary is laid down in particular in Art. 81 of
the Constitution, according to which: “[t]he judicial power shall be
exercised in the name of the Republic by independent courts”, and Art.
82 of the Constitution, par. 1 of which provides that “[j]udges shall be
independent in the performance of their duties [and n]obody may
threaten their impartiality”, and par. 2 that “[j]udges may not be
removed or transferred to another court against their will; exceptions
resulting especially from disciplinary responsibility shall be laid down
in a statute”. A further guarantee, which should also ensure the
elimination of external influence on the exercise of judicial power, is
Art. 82 par. 3 of the Constitution, according to which “[t]he office of a
judge is incompatible with that of the President of the Republic, a
Member of Parliament, as well as with any other function in public
administration; a statute shall specify which further activities are
incompatible with the discharge of judicial duties.”
In
this context, the Constitutional Court makes reference to the general
views it expressed in its judgment in matter No. Pl. US 7/02 on the the
principles of the separation of powers and its historical context.
Above all, it emphasized the following: “however little even a
democratic state strives in relation to the court system for maximalist
programs and therefore remains far removed from the conception of the
‘judicial state’ - as was already mentioned, the legislative and
executive powers are also state authorities and thus, in a democratic
system, the state power can be functionally realized only by the
fulfillment of the condition that all of its bodies are functioning - on
the other hand, it is obliged to create the institutional preconditions
for that which, as far as the judiciary is concerned, applies
specifically and unconditionally, the constitution and establishment of
the genuine independence of courts, not only for the stabilization of
their position, but also that of the entire democratic system in
relation to the legislative and the executive - as a significant
state-building, equally however, a polemical component. The mentioned
genuine independence of courts is an attribute of judicial power which
is specific to it and indispensible, both justified and required by
Article 4 of the Constitution, according to which ‘the fundamental
rights and basic freedoms shall enjoy the protection of judicial
bodies’, as well as by Articles 81 and 82, which provide that ‘the
judicial power shall be exercised in the name of the Republic by
independent courts’, that ‘judges shall be independent in the
performance of their duties’, and that ‘nobody may threaten their
impartiality’. The above-asserted specific character and content of the
judicial power thus cannot be called into doubt and therefore not even
its basic function is compatible with infiltration of any sort by other
state authorities. This premise was expressed in § 96 par. 1 of the
Constitutional Charter of the Czechoslovak Republic (introduced by Act
No. 121/1920 Coll.), according to which the judiciary in all instances
shall be separate from the administration, then in the present
Constitution, in Article 82 par. 3, which provides that ‘the office of
judge is incompatible with that of the President of the Republic, a
Member of Parliament, as well as with any other function in public
administration’. As was already stated, the principle of the
independence of courts has in this respect an unconditional character
excluding the possibility of encroachment by the executive.”
It
can thus be said that one of the basic preconditions to the rule of law
is a strong and independent judiciary. In a state which should be
considered a law-based state, the judiciary must be regarded as one of
three powers, which has the same weight as the executive and legislative
powers, from which the judiciary must be independent to the greatest
degree possible, whereas the judiciary is the only one of the three
powers for which especial emphasis is placed on the constitutional
protection of its independence. This principle has been broadly
embodied in the majority of the world’s constitutions; sometimes even in
those states where the judiciary was (or is) not actually independent.
The danger remains that this principle will remain a mere theoretical
edifice, unless it is supplemented in special provisions of the
Constitution, or at least in the legal enactments governing the
judiciary, by further principles which can be deduced from the
constitutions of the majority of West European states, just as from the
most important international documents relating to the issue of the
independence of the judiciary. In this connection reference can be
made, for example, to the Council of Europe European Charter on the
status of judges, which was adopted at its session in Strasbourg held on
8-10 July 1998, and to the explanatory memorandum accompanying it. In
the sense of Art. 1.3 of the mentioned Council of Europe European
Charter on the status of judges, it is an indispensable requirement for
safeguarding the independence of the judiciary that the conditions
influencing the selection, recruitment, appointment, career advancement
or removal from office of judges allow for independence from the
executive and legislative powers.
IV.
From
a comparative perspective, it must be said that there does not exist a
single model for the administration of courts in democratic countries;
on the contrary, one can speak of a plurality of such models. The
majority of the contemporary European systems have been influenced by
their constitutional traditions and are the result of a slow and gradual
development. With the exception of Article 6 of the European
Convention on Human Rights and Fundamental Freedoms and certain
recommendations of the Council of Europe and the UN, there are no common
standards that are elaborated in more detail for the organization and
the administration of courts. Nor is this field affected by Community
law, as the European Community has not competence in this area.
In
spite of the plurality of institutional models for court
administration, one can discover common characteristics in all European
state (or in groups thereof). In every EU state and in the majority of
newly acceding Member States, the principle of judicial independence is
respected, whether on the level of the constitution or statutory law, or
follows from practice (it is, however, variously interpreted). The
individual independence of each judge is respected; increased attention
is devoted to the independence of the judiciary as a whole, that is, as
the third power in the state, in only certain countries. It is
guaranteed either by transferring significant powers to the supreme
council of the judiciary (Italy, France, Spain), or by distinguishing
judicial administration from state administration within the context of
the classic model (Germany, Austria).
Among
models of judicial administration, of which the supreme council of the
judiciary (hereinafter “council”) forms a part, one can distinguish the
following systems:
- the southern model, in which the council took over from the government significant competence in the area of appointing judges and judicial officials, as well as disciplinary proceedings concerning them; however, most of them lack significant powers in the area of administrative courts (budget, the management of property);
- the northern model (Sweden, Denmark, Ireland, the Netherlands) in which the council has primarily economic and administrative competence, but for the most part lacks competence in personnel matters;
- a combination of both systems for the organization of the judiciary (for example, Hungary), where the council took over extensive powers in both fields and in principle is responsible for the judiciary as a whole.
- the southern model, in which the council took over from the government significant competence in the area of appointing judges and judicial officials, as well as disciplinary proceedings concerning them; however, most of them lack significant powers in the area of administrative courts (budget, the management of property);
- the northern model (Sweden, Denmark, Ireland, the Netherlands) in which the council has primarily economic and administrative competence, but for the most part lacks competence in personnel matters;
- a combination of both systems for the organization of the judiciary (for example, Hungary), where the council took over extensive powers in both fields and in principle is responsible for the judiciary as a whole.
In
the majority of Western European countries, however, the ministry of
justice, or the government, gave up significant competence and
supervisory mechanisms in relation to the judiciary, even following the
creation of a council. This applies for the northern model, where the
council often shares certain competencies with the ministry of justice
and the system functions on the basis of a reciprocal agreement.
Non-judges are also represented in all supreme self-governing bodies of
the judiciary.
On the level
of proceedings of individual courts, the traditional system prevails,
that is, where the chief judge – a judge – is responsible for the entire
agenda of all courts. One can also discern the tendency, in relation
to administrative courts, to transfer certain powers to the main court
secretary, chancellor, director, etc. Even in the case of such judicial
officials, in many states their judicial and administrative functions
are intermingled.
In the
majority of European countries a functional solution is preferred, the
judicial systems are gradually being reformed, and the independence of
judges in their decision-making is always guaranteed (see The Ministry
of Justice Study – On the Solution of the Situation following Judgment
Pl. US 7/2002).
V.
In
terms of legal developments in the Czech Republic, the Constitutional
Court observes that after 1948 a court’s administration was always
carried out by the chief judge (alternatively the deputy chief judge) of
individual courts who, in the performance of that task, were subject to
the supervision of the Ministry, or the Minister, of Justice, to whom
she also bore responsibility for her performance in office.
New
judicial statutes comprehensively covering issues concerning the
judiciary were adopted at the start of the 1990’s: Act No. 335/1991
Coll., on Courts and Judges, Act No. 436/1991 Coll., on Certain Measures
in the Judiciary, on the Election of Lay Judges, Relieving them from
Duty or Removing them from Office, and on the State Administration of
Courts, and Act No. 412/1991 Coll., on the Disciplinary Responsibility
of Judges.
These statutes
retained the terminology introduced by Act No. 62/1961 Coll., on the
Organization of Courts, which consisted in replacing the term, “the
administration of courts”, with the term, “the state administration of
courts” (see also § 38 par. 1 of Act No. 66/1952 Coll., on the
Organization of Courts, which made use of the previous nomenclature).
At the same time, in principle they adopted, as the model for a court’s
chief judge to enter into and be removed from office, one involving
intervention by the executive (in the person of the Minister of
Justice). In the case of the Chief Justice of the Supreme Court, the
election and removal of that official by the legislative body was
gradually replaced with her appointment and removal by the President of
the Republic, which in a certain sense resulted in weakening her
personal independence.
The
state administration of courts in the Czech Republic was entrusted, at
the central level, to the Ministry of Justice, and it was performed by
the chief judge and deputy chief judge of courts either indirectly or
through the direct administration of the Ministry of Justice. It was an
explicitly expressed principle, however, that the performance of state
administration of courts was not permitted to intrude upon the
independence of courts. As one aspect of judicial reform, in mid-2000
two bills were submitted that, among other things, contemplated a
fundamental change in the system of the administration of courts. The
administration of the judiciary was meant to be differentiated from the
state administration of courts. The administration of the judiciary was
to be responsible for courts’ personnel matters under the auspices of
the Supreme Council of the Judiciary, and state administration was to
arrange for the material requirements of courts by means of
administrative units subordinate to the Ministry of Justice. The
Assembly of Deputies rejected this approach. Efforts at further reform
in the year 2001 petrified in the conditions of the Czech Republic due
to the historical conception that the state administration of courts is
managed under the direction of the Ministry of Justice – chief judges
(deputy chief Judges) of a court; this conception was subsequently
incorporated into the statutory scheme, which is implemented de lege
lata by Act No. 6/2002 Coll. The President of the Republic did not veto
the Act, rather he instituted review of it by the Constitutional Court
in the context of a proceeding on abstract norm control.
The
outcome of this review was the Constitutional Court’s judgment No. Pl.
US 7/02, which annulled (among others) all provisions relating to the
regulation of the manner in which the state administration of courts is
carried out (§ 74 par. 3 and foll.). In relation to its annulment of §
106 par. 1, the Constitutional Court advanced a further reason, namely
the entirely general and vague (hence not corresponding to the principle
of legal certainty) expression of the grounds leading to the removal
from office of a court chief judge. The Constitutional Court also
stated that entry into the office of a court chief judge should be
considered as a career step for a judge, so that such official should
not be subject to removal otherwise then on grounds foreseen in the law
and by means of a disciplinary proceeding, i.e., by decision of a court.
The
Government reacted to the Constitutional Court’s judgment by submitting
its bill to amend the Act on Courts and Judges, which affected also §
106 par. 1 and envisaged the possibility to adjudge the violation of
statutorily prescribed duties in the performance of the state
administration of courts as a disciplinary infraction in a disciplinary
proceeding before an independent court; further, the sanctions for the
violation thereof were not to be limited to the removal of the judge in
question, but it was to be possible to select other measures as well,
corresponding to the seriousness of the violation of duty. The proposed
amending act was not adopted by the Assembly of Deputies in this form.
The Government submitted a new bill which reaffirmed the existing model
of the state administration of courts. During debate in the Assembly
of Deputies the principle “he who appoints, may remove” was once again
introduced, and § 106 par. 1 of the Act on Courts and Judges was adopted
in the wording which was contested by the petitioner.
In
contrast with the original text, this amendment to the Act on Courts
and Judges narrowed the possibility to remove court chief judges (deputy
chief judges) for the failure properly to carry out duties
(particularly substantively) to the possibility of removal for serious
or repeated violations of statutorily prescribed duties in the course of
performing state administration.
VI.
In
connection with the removal of the Chief Justice of the Supreme Court
from office pursuant to § 106 par. 1 of the Act on Courts and Judges,
the Constitutional Court first of all assessed the possible
applicability of this provision
The
Chief Justice of the Supreme Court is appointed by the President of the
Republic on the basis of Art. 62 lit. f) of the Constitution, that is,
on the basis of his sole authority and without the need for the
Government’s contrasignature. In this separation of the appointment of
the chief justice of a high organ of the judicial system from the
politically constituted Government, must be seen an element of
detachment (thereby also independence) of the judiciary. It must be
remarked, however, that there is found in other systems an absolute
separation of the judiciary from the executive, where none of the
executive organs appoints the chief justice of the supreme court and the
executive fulfills primarily a consultative role, possibly proposing
candidates.
As follows from
what has been stated, the Constitution safeguards the personal
independence of the Chief Justice of the Supreme Court vis-à-vis the
Government at the moment that official is appointed; the necessity of
maintaining such personal independence even in the course of performance
the office and its termination is not affected thereby, especially then
when it is terminated by removal from office. If the President of the
Republic is entrusted with the power to appoint the Chief Justice of the
Supreme Court, without concurrent action by any other state body, an
entirely unlimited power to remove the Chief Justice of the Supreme
Court cannot be found in the Constitution’s silence. In the situation
where the authority to remove the Chief Justice of the Supreme Court is
not explicitly mentioned in the Constitution, to adopt an interpretation
whereby the President’s authority to appoint implicates also the
possibility to remove the Chief Justice from office, was in conflict
with the constitutionally protected value of the independence of the
judiciary and its separation from the executive power. In this system,
where the judiciary is not absolutely separated from the executive, the
President of the Republic is thus entrusted solely with the authority to
install the Chief Justice of the Supreme Court into office, whereas in
terms of influencing his performance in office or the termination of
that office, no power of the President is envisaged.
A
rule which provides that “he who appoints, may recall” is entirely
logical in cases where a direct relationship of superiority and
subordination is involved. However, no such relationship exists between
the President of the Republic and the Chief Justice of the Supreme
Court (who, according to Art. 92 of the Constitution, stands at the head
of the highest judicial organ). It can thus be concluded that, by
regulating removal in § 106 par. 1 of the Act on Courts and Judges, the
legislature acted pursuant to Art. 63 par. 2 of the Constitution also in
the case of the Supreme Court, similarly as in the case of the Supreme
Auditing Office and the Czech National Bank or of the other highest
judicial body, the Supreme Administrative Court.
VII.
In
a number of its judgments (Pl. US 34/04, Pl. US 43/04) the
Constitutional Court has authoritatively interpreted the principle of
judicial independence: “The principle of judicial independence is one
of the essential attributes of a democratic, law-based state (Art. 9
par. 2 of the Constitution). The requirement that justice be
independent springs from two sources: from the neutrality of judges, as
a guarantee of just, impartial, and objective court proceedings and as a
safeguard of individual rights and freedoms by judges set apart from
political power. The independence of judges is ensured by guarantees of
a special legal status (among which must rank non-transferability,
irremovability, and inviolability), further by guarantees of
organizational and functional independence from bodies representing the
legislative and above all the executive powers, as well as by the
separation of the judiciary from the legislative and executive powers
(in particular by assertion of the principle of incompatibility). In
substantive terms, judicial independence thus ensures that judges are
bound solely by the law, that is, by excluding any sort of component of
subordination in judicial decision-making. The Constitutional Court
addressed itself to the fundamental components of the principle of
judicial independence in its judgment No. Pl. US 7/02.”
In
the context of the matter before it, the Constitutional Court observes,
with regard to the conclusions which it has expressed in the past, that
the necessity for the judiciary to have an autonomous position flows
from the Constitution. This “ideal” state of affairs, as envisaged in
the Constitution, does not, however, actually exist in the conditions of
the Czech Republic, as the judiciary does not constitute an independent
and autonomous representative entity, it cannot express its views
externally as an independent power, and is in fact represented by the
Ministry of Justice, which is demonstrated even by the entire legal
framework for the model of the administration of courts de lege lata.
In
this connection it must be emphasized that, in the matter under
adjudication, the Constitutional Court is not entitled to adjudge the
constitutionality of the overall conception of the state administration
of the judiciary, for in the matter at hand it is entitled to adjudge
solely the constitutionality of the contested provision, § 106 par. 1 of
the Act on Courts and Judges. That does not mean, however, that it is
impermissible for the Court, when considering the constitutionality of
the contested provision, to take into account the content of other
provisions; on certain levels it is necessary to look into the legal
framework chosen by the legislature for the administration of courts, as
it has a certain relevance in relation to the constitutional review of §
106 par. 1 of the Act on Courts and Judges.
In
relation to the contested provision, the significance increases of the
maxim according to which personal independence, which furnishes
representatives of the judiciary with the necessary degree of autonomy
from external influences, is a perfectly natural consequence of, and a
precondition for, institutional independence. Personal independence, in
the sense of Art. 82 of the Constitution, consists of several
attributes; whereas the essential one, in connection with the case under
consideration, is irremovability from office, which is breached only in
the case of removal carried out, in particular, in consequence of
statutorily disciplinary responsibility. Thus, the Constitutional Court
adjudged the contested provision also in reference to this
above-mentioned attribute of independence.
In
relation to the judiciary and to individual court functionaries (§ 102
of the Act on Courts and Judges), the position of the Ministry of
Justice is demarcated in § 119 par. 1 of the Act on Courts and Judges,
namely he is the central organ for the state administration of courts,
the further organs being the chief judges (and deputy chief judges) of
courts; and the state administration is performed either directly by the
Ministry or by means of the chief judge (or deputy chief judge). The
Minister’s power to appoint the chief judge and deputy chief judge of
courts and his power to remove them from office pursuant to § 106 par. 1
of the Act on Courts and Judges then follows from the position of the
Ministry as the central organ of the state administration of courts.
The
Constitutional Court would emphasize that the principle “he who
appoints, may remove” is inherent in a system of state administration.
Solely in the case of state administration is the exercise of public
authority characteristic, that is, the carrying out of executive power
in relations of hierarchy, in other words, relations of superiority and
subordination. The content thereof consists in prescriptive activity
expressing the predominance in power of the organs of state
administration in relation to those towards whom it is exercised, which
applies both for its operation externally and for the internal
organizational system. An administrative body has at its disposal
authoritative powers (cf. Průcha, Administrative Law – The General Par,
Masaryk University, Brno 2004)
Thus,
to the extent that § 106 par. 1 of the Act on Courts and Judges contain
a component of a special system of state administration, the
Constitutional Court must address the issue of whether the
administration of courts can also be considered as state administration.
The
performance of the state administration of courts is generally
characterized as the creation of conditions for the proper performance
by the judiciary (§ 118 par. 1 of the Act on Courts and Judges), that
is, in respect of organization, personnel, management, finance, and
instruction, and also of supervision of the due performance of the tasks
entrusted to courts. Certain of the powers entrusted to court chief
judges within the framework of “the state administration of courts” are
not tasks of a solely administrative character. As an example can be
cited the power to set the work schedule, to carry out vetting of court
files, to oversee the quality of court hearings, to resolve complaints,
or to propose to the Minister of Justice that he lodge a complaint on
the violation of the law. Although the legislature made use of the
term, “state administration of courts”, which, due to its formal
designation, gives the impression that it concerns state administration,
it is necessary to take into account the formal definition of the
content of the term “state administration of courts” (that is according
to the Act on Courts and Judges) and the substantive demarcation of the
subject of court functionaries’ activities. The mere formal designation
cannot carry more weight than the content, thus not more than the
actual character of court administration either. All actions taken by
the chief judges and deputy chief judges of a court are at the same time
actions which can indirectly influence the exercise of judicial power,
and can, in consequence, represent a certain encroachment by the
executive power upon the judiciary.
It
follows from what has been said above that, in character, the
performance of state administration of courts does not correspond to the
general definition of the performance of state administration. In this
instance it is a special activity performed only within the judicial
system and more or less conditioned upon the type of decision-making
characteristic of courts. It is then necessary to adjudge in this
context as well the principle, “he who appoints, may remove”, as laid
down in § 106 par. 1, which principle is characteristic of a
hierarchical system of relations of direct superiority and subordination
(as has already been stated above). The presence of an essential
attribute characteristic of the system of state administration cannot be
tolerated in relations within the confines of the administration of
courts, which is not state administration.
In
assessing the position of the chief judges of courts as court
functionaries appointed by the Minister of Justice or the President of
the Republic, it must be borne in mind that court functionaries continue
to take part as judges in the actual decision-making.
It
is then necessary to proceed from the premise that the office of chief
judge of a court, just as the Chief Justice of the Supreme Court, is
inseparable from the office of judge, for one cannot construe the dual
nature of the legal status of a court chief judge as an official of
state administration on the one hand and as a judge on the other. It
is, thus, necessary to relate, in the above-indicated respect, the
attribute of the independence of the judiciary, alternatively the
independence of judges, also to the chief judges of courts. It is then
not possible to accept, while at the same time preserving the
above-stated requirements, that they could be removed by executive
organs precisely in the manner contemplated by the contested provision.
The
Constitutional Court refers to Art. 82 par. 2 of the Constitution,
which lays down that judges may not be removed against their will and
that exceptions to the irremovability from the office of judge, as a
result especially of disciplinary responsibility, may be laid down in a
statute. It is necessary also to assess, with reference to the maxim
declared in this Article, the manner in which the chief judges of courts
(thus even the Chief Justice of the Supreme Court) are removed from
office. Therefore, not only the legal rules governing the removal of
judges, but also those governing the removal of chief judges and deputy
chief judges of courts must respect the constitutional principles of the
separation of powers, judicial independence, etc. It is not possible
thus to lay down any sort of model for the removal of judicial
functionaries without consideration of constitutional values.
In
accordance with the contemporary constitutional arrangement and in
harmony with the standards which spring from the European and
international milieu, it follows from the principle of the separation of
the judiciary and the executive power that a judicial functionary can
be removed from office solely by a procedure which is carried out within
the judiciary itself.
In
other respects the above-mentioned manner of removal chosen by the
legislature does not take into account the distinctive character of the
“system of functionaries” as a career track, by which must be understood
the objective possibility for judges to attain, under prescribed
conditions, such a position as satisfies them professionally. In
principle this means either to undertake a greater responsibility in the
performance of their judicial role deciding on ordinary and
extraordinary remedies, or participation in the state administration of
courts in the office of chief judge or deputy chief judge of a court
(Král, V., On the Stabilization of Justice, Criminal Law Review
[Trestněprávní revue], No 5/2004, p. 108 and foll.).
VIII.
Dató
Paramo Cumaranswamy drew attention to the negative aspects connected
with the imperfect separation of the judiciary from the executive, in
the Report of the Special Rapporteur on the Issue of the Independence of
Judges and Lawyers, which he submitted in conformity with the
resolution of the Commission for Human Rights of the UN Economic and
Social Committee, No. 2000/42 (hereinafter “Report”), and which assessed
the situation that arose in the Slovak Republic as a result of the
removal of Dr. Harabin, the Chief Justice of the Supreme Court of the
Slovak Republic.
In terms
of comparative law, as far as concerns the evaluation of the
relationship of the office of Chief Justice of the Supreme Court to the
executive, that situation is similar to the one in the case before the
Court. Art. 141 par. 1 of the Constitution of the Slovak Republic
provides that the judicial power is exercised by independent and
impartial courts, and in par. 2 that it is carried out at all levels
separately from other state bodies. Art. 144 par. 1 of the Constitution
of the Slovak Republic provides that in their decision-making judges
are independent and are bound solely by the law.
The
Report primarily draws attention to the fact that, in Slovakia, the
procedure for the appointment of judges, as well as those for their
promotion and removal from office, place far too much power into the
hands of the executive and legislative components of state power, and
especially so into the hands of the Minister of Justice. The Report
designated these procedures as being in conflict with the conception of
judicial independence, as it is enshrined in the Constitution and as it
is regulated in regional and international standards of judicial
independence. Otherwise, according to the Report, the assertion of the
Slovak Government does not pass muster in that it is untenable to assert
that the office of Chief Judge is distinct from the office of judge and
that the constitutional prerequisites for the removal of a judge do not
apply to it as such. The assertion that a judge in the office of Chief
Justice of the Supreme Court comes under the executive branch of state
power is in conflict with the very essence of an independent judiciary,
as it is regulated in Art. 141 of the Constitution and would mean that
the Chief Justice of the Supreme Court is de facto an executive
official. According to the Report’s assessment, as soon as a chief
judge or deputy chief judge is appointed, no distinction should be drawn
between this office and the office of judge. Thus, despite the fact
that the asserted grounds, by which the proposal to Parliament to remove
the Chief Justice was reasoned, might have been fundamental, the
attempt at removal by the Slovak Government was viewed as being in
conflict with international and regional standards for safeguarding and
protecting an independent judiciary, as the Government did not
demonstrate its assertions before the competent tribunal.
According
to the Report’s conclusion, it is unjustifiable for laws, whether
derived from legislation, custom, or tradition, to be in conflict with
the basic values and standards that protect an independent judiciary,
especially if such legal arrangements for the judiciary are enshrined in
the Constitution. That applies doubly if the state in question has
ratified some of the important international and regional instruments on
human rights. These basic values and standards enjoy universal
application.
IX.
After
assessing whether the approach called for in the Act on Courts and
Judges for the removal of the chief judge of a court results in an
intrusion into the guarantees of institutional and personal independence
of the judiciary, the Constitutional Court came to the conclusion
primarily to the effect that the principle, “he who appoints, may
remove”, cannot be applied to relations in the context of court
administration and that neither is it possible to construe the duality
of the legal status of a court chief judge as an official of state
administration, on the one hand, and as a judge, on the other.
Accordingly, the manner in which court chief judges, including the Chief
Justice of the Supreme Court, are removed must be gauged by means of
the maxim expressed in Art. 82 par. 2 of the Constitution; not only must
the rules governing the removal of judges respect the constitutional
principles of the separation of powers and the independence of the
judiciary, so too must the rules for the removal of chief judges and
deputy chief judges. Thus, it cannot be accepted that, while observing
the above-analyzed requirements, their removal could be effected by an
executive organ in the manner foreseen in the contested provision. What
follows therefrom is the conclusion that the contested provisions are
unconstitutional, as they result in an encroachment upon the guarantee
of the institutional and personal independence of the judiciary.
In
keeping with the proposition of law expressed in its judgment in the
matter No. Pl. US 7/02, the Constitutional Court emphasized that the
entry into the office of chief judge or deputy chief judge, as well as
that of chairperson of court collegia, should be considered as a career
step for a judge (similarly as is the case for the appointment of the
chairperson of a court panel), so that neither the chief judge and
deputy chief judge of a court should be subject to removal otherwise
then on the grounds foreseen in the law and on the basis of a decision
of a court.
The statutory
arrangement whereby court chief judges and deputy chief judges can
perform activities which are administrative in nature without also, as a
consequence, losing the quality of their status as independent judges
and, for this reason alone, finding themselves in the position of a
state employee, the distinct definitional characteristic of which is the
relationship of subordination and respect for orders of superiors, is
considered in a whole host of developed European countries (for example,
Austria, Germany, Sweden, Norway, the Netherlands, Great Britain,
Ireland, Italy, and Portugal) as an integral part of the separation of
powers principle, arising from the requirements of the law-based state,
as well as from the principle of the institutional independence of the
judiciary and the principle of the undisturbed exercise of a personally
independent judicial mandate. The Constitutional Court would also add
that the current situation, where the central organ for the state
administration of courts is the Ministry of Justice and the judicial
branch itself does not have its own representative body on the
ministerial level (which body could be called upon to take over the role
of the Minister in personnel matters, including the monitoring the
level of competence of the judicial corps, as well as in other areas of
the direction and performance of administration of the judiciary), does
not, in the view of the Constitutional Court, sufficiently exclude the
possibility of the executive branch exercising indirect influence over
the judicial branch [(for example, by means of the allocation of
budgetary funds and the supervision of their use)] (Pl. US 7/02).
In
assessing § 106 par. 1 of the Act on Courts and Judges, the
Constitutional Court did not find any grounds for departing from the
conclusions expressed in its judgment no. Pl. US 7/02 and declares the
unconstitutionality of § 106 par. 1 of the Act on Courts and Judges in
its current wording.
The
Constitutional Court also declares that the legislature failed, in the
legislative process, to respect the conclusions expressed in judgment
no. Pl. US 7/02, in consequence of which it violated Art. 89 par. 2 of
the Constitution. The Constitutional Court therefore annulled § 106
par. 1 of the Act on Courts and Judges as of the day it is published in
the Collection of Laws, without postponing its coming into effect, and
it will now be up to the legislative body fully to respect, in its
law-making, the proposition of law on this issue expressed by the
Constitutional Court already for the second time.
The
Constitutional Court has annulled § 106 par. 1 of Act No. 6/2002 Coll.,
on Courts, Judges, Lay Judges, and the State Administration of Courts,
and on the amendment of certain other acts (the Act on Courts and
Judges) as amended by Act No. 192/2003 Coll.; it has annulled both the
first and second sentences, as they form a unit, and the decisional
grounds of this derogational judgment apply to all “judicial officials”
mentioned in the contested provision of the Act.
Notice: Decisions of the Constitutional Court can not be appealed.
Notice: Decisions of the Constitutional Court can not be appealed.
Dissenting opinions
as to the judgment and reasoning were filed by Justices Vladimír Kůrka and Pavel Rychetský. Justice Ivana Janů filed a concurring opinion as to part of the reasoning of the judgment.
Brno, 11 July 2006
Dissenting Opinion
of justice Pavel Rychetský
Pursuant to § 14 of Act No. 182/1993 Coll., on the Constitutional Court, as subsequently amended, I have filed this dissenting opinion to the judgment, which is directed both against the actual decision to derogate, as well as against certain of the constitutional arguments contained in the reasoning of the judgment.
1).
My cardinal objection rests on the conclusion that, in the given case,
the basic condition are lacking for this Court to act on the accessory
petition proposing the annulment of § 106 par. 1 of Act No. 6/2002
Coll., on Courts, Judges, and the State Administration of Courts, as
subsequently amended (hereinafter “Act on the Judiciary”). The petition
was submitted under § 74 of the Act on the Constitutional Court;
however, the constitutional complaint itself, with which was connected
the accessorial petition proposing concrete control of
constitutionality, should have been, in conformity with the principle of
subsidiarity (a fundamental principle establishing the powers of the
Constitutional Court according to the principle ratione temporis),
rejected as inadmissible for being untimely under § 75 par. 1 of the Act
on the Constitutional Court. In the given case then the complainant
failed to respect the requirement of the cited statutory provision, as
she did not exhaust “all procedural remedies afforded her by law for the
protection of her rights (§ 72 par. 3)”, which moreover she herself
acknowledged by indicating that she had also submitted an administrative
complaint pursuant to the Code of Administrative Justice and that she
had concurrently submitted a constitutional complaint solely “as a
precaution”. The relevant panel – just as the Plenum itself in its
judgment – did not even attempt to overcome this deficiency in the basic
prerequisites for a proceeding by applying § 75 par.2, lit.a) of the
Act on the Constitutional Court. The Constitutional Court has already
several times in its jurisprudence emphasized that it does not form a
part of the system of ordinary courts, nor some other public authority;
accordingly the requirement of admissibility for submitting a
constitutional complaint to it is that the principle of subsidiarity be
met, such that the possibility is not ruled out that a complainant’s
rights and freedoms are accorded protection in antecedent proceedings by
means of the exhaustion of all available remedies for the protection of
rights. A proceeding on a constitutional complaint itself is, thus,
devoted exclusively to the protection of constitutionally guaranteed
fundamental rights and basic freedoms (including the right to fair
process), to the extent such protection was not afforded in previous
proceedings. By the way in which Panel II of the Constitutional Court
proceeded, that is by suspending the proceeding on the constitutional
complaint and referring to the Plenum the accessory petition, it thus
implicitly expressed the proposition of law that a decision of the
President of the Republic, issued pursuant to § 106 par. 1 of the Act on
the Judiciary, is not an administrative act subject to a review
proceeding under the Code of Administrative Justice; the Constitutional
Court thus appropriated the power of some sort of special and singular
“appellate organ in relation to the acts of the President of the
Republic”. As a footnote to this consideration, it must be observed
that, already on 3 February 2005, the Minister of Justice issued,
pursuant to the contested provision, a decision whereby he removed from
office some other court official and, in an administrative court
proceeding, the Municipal Court in Prague adjudged it to be an
administrative act and quashed it. However, if, in the estimation of
Panel II of the Constitutional Court, the decision of the President of
the Republic issued pursuant to the contested provision is not an
administrative act, there is no other option than to adjudge it as an
act pursuant to the President’s constitutional authority, with all the
resulting consequences in terms of the application of Art. 54 par. 3 of
the Constitution on the “the President’s lack of accountability” in
conjunction with the sole sanction contemplated in the Constitution
(Art. 65). Throughout the period the Constitutional Charter of 1920 was
in effect, it was clear, according both to legal theory and statutory
rules, that, as a practical matter, the Supreme Administrative Court was
competent to decide in all cases in which a person asserts that he was
affected in his rights as the result of an unlawful decision or measure
of an administrative authority. The conclusion that the President of
the Republic is also an administrative authority was subsequently
reflected in Act No. 164/1937 Coll., on the Supreme Administrative
Court, which regulated proceedings against acts or measures of the
President of the Republic (§ 2 par. 2); on this point see V. Mikule:
Judicial Protection against Decisions Removing the Chief Justice of a
Court from Office, Legal Reporter, 3/2006 or F. Weyr: Czechoslovak
Constitutional Law, Prague, 1937.
2)
In relation to the constitutional arguments contained in the reasoning
of the judgment, I would like to emphasize that I agree with many of its
supporting grounds concerning the significance of an independent
judiciary as a fundamental prerequisite for the existence of a
democratic law-based state. The arguments advanced on the separation of
powers principle, however, spill over into an absolute position leading
to the total separation of the judiciary and disregarding the
complementarity of this theory, as proceeds from the critical axiom
formulated, for ex., by Dworkin (the separation of powers instigates the
tendency towards their concentration, towards maximum autonomy, to
division and self-regulation, which in consequence leads to their
absolutization). It is therefore appropriate in the context of
constitutional argumentation on the theory of the separation of powers,
as a constitutional principle and a constitutive value of democratic
society, to take heed of its overall content, including the generally
recognized dimension that the individual powers in the state balance and
supervise each other (“checks and balances”). The Constitutional Court
majority, to which I object in this dissenting opinion, came to the
conclusion in its reasoning that, in the case of judicial officials
performing the state administration of courts, the performance of their
judicial function is inseparable from the performance of their
administrative work in ensuring the operation of their court, and the
constitutionally legitimate requirement of a judge’s independence to
decide also extends to separate administrative activities, including the
management of state budgetary funds. I, on the contrary, am of the
opinion that the dominant and irreplaceable principle for the
performance of administrative activity is the principle of hierarchy and
subordination. The majority, which I dispute, then crowned its
conclusion on the indivisibility of judicial work from administrative
function, with the requirement, formulated de lege ferenda, of the
removability of judicial officials solely by the route of a disciplinary
proceeding, although the grounds for the removal of such an official
may frequently reside not only in the disciplinary field, rather due to
reproofs exclusively of a managerial and organizational character.
Someone who is a poor “court administrator” might still, even though she
proves to be inadequate in the performance of the state administration
of courts, be an excellent legal expert and judge. These considerations
in the judgment’s reasoning rests to a considerable extent on the
plenary judgment preceding it, judgment of the Constitutional Court Pl.
US 7/02, which also annulled the previous version of § 106. However,
precisely in this respect the judgment lacked sufficient arguments. In
my judgment, it is doubtless an appropriate and constitutionally
legitimate model in which the performance of court administration is
entrusted to judges, and I entirely concur with the requirement that, in
the performance of this task, he be accorded substantive and procedural
protections against arbitrary action on the part of state
administrative bodies. In my view, however, the new version, adopted by
Parliament, of § 106 of the Act on the Judiciary meets both of these
requirements, albeit not in an optimum matter. The new wording contains
both a sufficiently clear formulation of the substantive grounds for
removal from office (“if, in performing the state administration of the
court, he violates statutorily defined duties in a serious manner or
repeatedly”), as well as the procedural protections before an
independent tribunal in the form of the administrative judiciary, which
for proceedings in employment matters appear to me without any doubt to
be far more suitable than the inappropriate rules on judges’
disciplinary responsibility. Moreover, the annulment of the contested
provision takes effect on the day it is published in the Collection of
Laws, thus bringing about the entirely undesirable state of affairs in
which for a longer period judicial officials will, for all intents and
purposes, be almost entirely unaccountable and irremovable due to
organizational, managerial, or similar deficiencies in the performance
of the administration of courts.
3)
Solely in passing I would recall that I have long espoused the view
that, as the Constitutional Court is a “negative legislature”, it does
not possess the power to make broad considerations de lege ferenda; in
no case do I consider that they qualify as part of the “supporting
grounds” of the decision to which can be attached generally binding
effects, in the sense of Art. 89 par. 2 of the Constitution. Until such
time as is established a quasi self-governing body for the judiciary, I
consider the current legal arrangement in relation to the state
administration of courts to be satisfactory on the whole. No doubt its
application to the office of both chief justices of the supreme courts
represents an exception – in relation to it I would consider it at
suitable, in terms of future legislative programs, to retain the power
of the President of the Republic, although the system of ex post review
of his decision to remove those officials should be replaced by a
suitable a priori proceeding (as exists, for example, in the case of
university rectors).
Brno, 11 July 2006
Brno, 11 July 2006
Dissenting Opinion
of justice Vladimír Kůrka
I.
There
is not doubt that the “right” to continue to be (forever, for life) the
holder of a public office is not protected by the sources of the
constitutional order (the Charter, the Convention); the divestiture of
such an office (the removal from it) receives protection only in those
situations (in relation to such persons), where the act of removal
encroaches upon some other right, namely one of the fundamental rights
which, in contrast, are protected.
Since
such a situation is not present (nor can the right to remain in a
public office be subsumed under the right of equal access to it under
Art. 21 par. 4 of the Charter), on conceptual grounds alone it cannot be
objected that the process leading to the removal from office is
“unconstitutional”. The sole exception is where it was carried out in
conflict with the fundamental constitutional principles of the
democratic law-based state (Art. 1 par. 1 of the Constitution), that is,
if the process was carried out without transparent and comprehensible
(statutory) grounds, alternatively if it had been a wanton or arbitrary
process. Only to this extent is it conceivable to submit a
constitutional complaint against a constitutional act of the President
of the Republic, such as the removal from the office of Chief Justice of
the Supreme Court. If the right to remain in public office is not
protected, then a specific instance of the process of removal cannot be
subject to constitutional review (except in the above-mentioned
circumstance), also because to hold otherwise could signify nothing else
than the granting to the holder of a public office precisely this
(constitutional) protection, when there is none in such a case.
In
the instant case, the complainant does not object that this was an
arbitrary recall, in conflict with the fundamental principles of the
democratic law-based state (in the above-mentioned sense); on the
contrary, she proceeds on the basis that the President of the Republic
acted within the confines of the statute (§ 106 par. 1 of the Act No.
6/2002 Coll., on Courts and Judges, as amended by subsequent acts,
hereinafter “the Act on Courts and Judges”) and she criticized him
(only), for the fact that this statute (a provision thereof) is
unconstitutional (due to the fact that it violates the principle of the
separation of powers and the right of access to a court and that the
removal from office was not made subject to a disciplinary proceeding).
If action in accordance with a statute quite evidently does not
constitute arbitrary action, even if the complainant called that statute
into doubt in terms of its constitutionality, then it is appropriate to
conclude that the complainant has not substantiated, nor has she (in
actual fact) even asserted, the existence of circumstances leading to
the conclusion that “a fundamental right or basic freedom guaranteed by
the constitutional order has been infringed as a result of some other
action by a public authority” (§ 72 par. 1 lit. a/ of Act No. 182/1993
Coll., on the Constitutional Court, as amended by subsequent acts,
hereinafter “Act on the Constitutional Court”).
If
a relevant interference with a fundamental right is not asserted, the
constitutional complaint constitutes a manifestly unfounded petition,
which must be rejected as a preliminary matter (§ 43 par. 2 lit. a/ of
the Act on the Constitutional Court).
The
same conclusion then logically attaches even to the evaluation of the
petition pursuant to § 74 of the Act on the Constitutional Court, which
this case concerns and by which the complainant seeks the annulment of §
106 par. 1 of the Act on Courts and Judges, as the “manifestly
unfounded” character of the constitutional complaint stands apart from
any sort of substantive tie to the contested provision. For this reason
alone it would, therefore, have also been proper to reject on
preliminary grounds the petition proposing its annulment. Since the
Constitutional Court panel did not proceed in this manner (§ 43 par. 2
lit. b/ of the Act on the Constitutional Court), then the Plenum should
have done so; there is no doubt that the Plenum is not bound by the
divergent assessment of the conditions for a constitutional complaint,
on the basis of which the competent panel suspended the proceeding in
the sense meant by § 78 par. 1 of the Act on the Constitutional Court.
The
Constitutional Court Plenum opened the door to consideration of the
petition on the merits without giving closer attention to the very
nature of the contested act of the President of the Republic, which is a
patent deficiency, particularly in relation to the contested
interpretation of this act as an administrative act (an act in the field
of public administration issued by an organ of the executive power);
after all, the complainant is also working from that assumption, if she
declares in her constitutional complaint that she has also filed an
administrative action against the President’s decision to remove her
(file no. 9 Ca 22/2006 of the Municipal Court in Prague). If such an
interpretation of the President’s act were possible, then the
consideration on the merits of this constitutional complaint should not
even be entertained (nor along with it the petition proposing the
annulment of the particular statutory provision) before the matter has
been heard by the administrative judiciary, as the principle of the
subsidarity of constitutional review prevents it (§ 75 par. 1 of the Act
on the Constitutional Court).
II.
Nor is it possible to concur with the judgment adopted by the Constitutional Court Plenum in respect of substance either.
The
judgment correctly emphasizes that this is a case of concrete norm
control, which arises from § 74 of the Act on the Constitutional Court,
specifically the review of a single provision of the Act on Courts and
Judges (§ 106 par. 1), and it also correctly states that it is necessary
to proceed on the basis of (must “take into account”) the overall legal
arrangement for court administration, embodied in that same Act, and
that the Constitutional Court is not entitled to adjudge the
constitutionality of the “overall conception of the state administration
of the judiciary”. Naturally, it is possible to concur with the
proffered content of the constitutional principle of the independence of
the judiciary (with the references to Pl. US 34/04 and Pl. US 43/04),
which emphasizes the phenomenon of personal independence, that is, the
independence of a judge when performing his duties in the sense of Art.
82 of the Constitution,
However, it is not possible to concur with the remainder.
A.
The crux of the construction selected in the judgment is the
following: in the Constitutional Court’s view, although § 106 par. 1 of
the Act on Courts and Judges embodies the principle “he who appoints,
may remove” (moreover, in a sufficient manner), nonetheless, that
principle is characteristic of a system of state administration, as it
is only therein that power is exercised “in hierarchical relations, that
is, in relations of superiority and subordination”; despite the formal
(statutory) designation, however, court administration is not such state
administration, as it is a special type of activity carried out solely
within the judicial system, and therefore the principle, “he who
appoints, may remove”, cannot be tolerated in this context.
This conclusion is incorrect due to the fact that its primises are incorrect.
The
Constitutional Court proclaims that it respects the statutory
definition of the “state administration of courts” (although, in its
view, it is not “state” administration), as it is laid down in § 118 and
following of the Act on Courts and Judges. Hence, it accepts the fact
that the task of administration is to create for courts the conditions
for the proper performance of the judiciary in respect, in particular,
of personnel, organization, management, finance, and instruction, and to
supervise, in the manner and within the bounds laid down in that Act,
the due performance of the tasks entrusted to courts (§ 118 par. 1);
that, in accordance with current statutory scheme, the central organ of
this administration is the Ministry (§ 119 par. 1), and its other organs
are the Chief Justice and Deputy Chief Justiceof the Supreme Court, the
Chief Justice and Deputy Chief Justice of the Supreme Administrative
Court, and the chief judges and deputy chief judges of the high,
regional and district courts (§ 119 par. 2); that the Minstry performs,
within the scope laid down in that Act, the administration of high,
regional, and district courts, either directly or through the chief
judges of those courts (the administration of district courts can also
be performed through the chief judges of regional courts); and that also
the administration of the Supreme Court is performed by the Ministry
through that Court’s Chief Justice (§ 120 par. 1, 2). According to §
121 par. 1, the Chief Justice of the Supreme Court and the chief judges
of high, regional, and district courts perform the administration of
courts within the scope laid down in that Act.
The
definition of administration put forward by the law is not arbitrary,
rather physically inevitable, as it is inconceivable for judicial work
to be performed by solitary and isolated judges in individually-selected
tangible milieus. Their activities (above all procedural and
decisional) must be institutionalized, be materially and financially
provided for in a unified manner, and have a systematic personnel
foundation and perspective; consequently, they must be organized and
managed as a unit, in other words administered. It is another matter
who should perform this administration, and what part thereof; although a
case has already been decided on this point (see judgment of the
Constitutional Court No. Pl. US 7/02), the Constitutional Court did not
call into doubt that administration, to the extent laid down in § 118
par. 1 of the Act on Courts and Judges, is also performed by court chief
judges, including the Chief Justice of the Supreme Court, and that
these chief judges of courts are judges.
Legally
defined in this way, court administration is conceptually always
administration, whether it is designated as “state” administration or
merely as “administration of courts” (as the Constitutional Court
believes), and the Chief Justice of the Supreme Court is its organ;
albeit even in this case it is not decisive how the type of
administration is designated. It makes no difference if it is stated in
the judgment that “[c]ertain of the powers entrusted to court chief
judges . . . are not tasks of a solely administrative character”
(setting the work schedule, the vetting of court files, overseeing the
quality of court hearings, the resolution of complaints . . . etc.), for
even these can without difficulty be subsumed under the task “to create
. . . the conditions for the proper performance by the judiciary” in
respect of “organizational matters”, alternatively “to supervise . . .
the due performance of the tasks entrusted to courts” (§ 118 par. 1).
Thus,
the court administration which (in contrast to state administration of
courts) the Constitutional Court has been considering, is not, in
content and regime, distinguished from state administration nor from
administration as such; thus, it is unjustifiable to assert that the
principle of superiority and subordination, which is otherwise
characteristic of administration, does not apply within its framework.
It is an untenable notion that where the Ministry performs the
administration of courts through its chief judge, the court’s chief
judge is not in a relation of subordination towards the Ministry, just
as it is self-evident that the chief judge of a regional court is, on
the contrary, superior to the chief judges of relevant district courts,
if the Ministry performs through him the administration of district
courts (§ 120 odst. 1). If the Constitutional Court does not call into
question § 120 par. 2 of the Act on Courts and Judges, that the (state)
administration of the Supreme Court is performed through the Chief
Justice of that Court, then the same – the existence of the relation of
superiority and subordination – is evident in this case as well.
The
view that, within the framework of court administration as it is
understood by the Constitutional Court (in contrast to state
administration), there is no place for “a hierarchical system of
relations of direct superiority and subordination”, does not hold
water. One cannot then agree with the conclusion which the
Constitutional Court derived therefrom, that there is no place in this
context for the principle, “he who appoints, may remove”.
The
first of two arguments against the constitutionality of § 106 par. 1 of
the Act on Courts and Judges thereby falls out, since the
Constitutional Court identified the contested provision precisely with
this – allegedly “intolerable” assertion of – the principle.
It
is appropriate to add that within (any sort of) public administration
the attribute of superiority and subordination is an organic attribute,
not an unnatural one. The logical and substantive correlate thereof is
that it is inconceivable to connect with the status of the
administrative organs of courts (their chief judges) the attribute of
independence, which appertains to the position of a judge (Art. 82 of
the Constitution); that which is characteristic of a judge
(independence), does not apply for the chief judge of a court.
Otherwise,
the Plenum’s opinion inappropriately absolutizes the view that the
principle, “he who appoints, may remove”, is inherent in systems of
state administration, or systems formed on the basis of relations of
superiority and subordination; in and of itself, it is certainly
correct, nonetheless, it is not true that it is not possible (is out of
the question) to apply it even in some other context. It is, on the
contrary, quite possible, which is shown, for example, by § 6 par. 2 of
Act No. 6/1993 Coll., on the Czech National Bank, as subsequently
amended, according to which the President of the Republic appoints and
removes the Governor, Vice-Governor and other members of the Bank
Council, although § 9 of this Act provides that “[i]n carrying out its
main objective and in the performance of its other duties, the Czech
National Bank and the Bank Council shall neither accept nor request
instructions from the President of the Republic, the Parliament, the
Government, administrative bodies, or any other subject.” If it truly
could be conceptually ruled out for the principle “he who appoints, may
remove” to be applied apart from relations of superiority and
subordination, not even a statute could so provide. Moreover, not only
is the Czech National Bank (the Bank Council) not subordinate to the
President, rather it is a constitutional body (“a legal person, which
has the status of a public law subject”) endowed with evident
independence from other constitutionally enshrined bodies (powers). A
similar provision can be seen in § 13 par. 2 (§§ 26 and 27) of Act No.
150/2002 Coll., the Code of Administrative Justice, as subsequently
amended.
B.
In
terms of the second argument against the constitutionality of § 106
par. 2 of the Act on Courts and Judges, the Constitutional Court
proceeds from the notion that “court functionaries continue to take part
as judges in the actual decision-making” and is of the view that “[i]t
is then necessary to proceed from the premise” that the office of chief
judge of a court is indivisible from the office of judge, “for one
cannot construe the dual nature” of a court chief judge as “an official
of state administration” on the one hand and as a judge on the other.
Then, according to the Constitutional Court, the attributes of
independence of judges must be extended “also to the chief judges of
courts, including the Chief Justice of the Supreme Court”. The
Constitutional Court refers to Art. 82 par. 2 of the Constitution, and
the exceptions to the irremovability of judges intimated there (arising
from disciplinary responsibility), and is of the opinion that it is also
necessary to gauge, by means of the maxims expressed in that Article,
the manner in which court chief judges are removed from office, that is,
by a procedure which is carried out within the judiciary (by a
disciplinary, or some analogous, proceeding), or in such a way that the
judiciary would have significant influence on the outcome of the removal
procedure. Moreover, the currently existing procedure does not, in the
Constitutional Court’s view, take into account the “the distinctive
character of the system of functionaries as a career track,” by which is
understood the objective possibility for a judge to attain a position
which “satisfies him professionally”.
It is not possible to assent to this argument either.
The
Constitutional Court is working on the basis of assumptions for which,
above all, it provides no arguments at all. Furthermore, logical and
substantive considerations point in the opposite direction; not only is
it possible “to construe” the above-mentioned “duality”, but – so long
as the administration of courts is to be performed by judges - it is
inevitable, and in practical life that is the way it is (and without any
problem). The chief judge of a court, who is a judge, acts in both
capacities; as a judge he is independent, and as the chief judge of a
court (administrative functionary) he is naturally subordinate. Both
offices are separable and, in actual fact, they are also performed
separately. It is unthinkable, merely due to the fact the an
administrative functionary is (by coincidence) a judge, to make of him
something else and attach to him a status, which conceptually does not
appertain to an administrative functionary; in the performance of an
administrative function, administrative functionaries (even if they are,
in addition, judges) cannot be independent. The attribute of
independence is the sovereign attribute of the status of a judge, and of
no other official; otherwise it is self-evident that the removal from
the (unprotected) office of court chief judge in no was affects the
(protected) office of judge. Therefore, it is entirely inappropriate to
extend the “maxim” of Art. 82 par. 2 of the Constitution in any sense
to the office of a court chief judge; in consequence (and for that
reason alone), nor can there be a reliable foundation for the
consideration that the sole constitutionally appropriate procedure for
the recall of a court chief judge from office is a process based on a
disciplinary (or analogous judicial) proceeding as, in accordance with
Art. 82 par. 2 of the Constitution, is the case for judges. The
indicated parallel with the removal from office of chairperson of a
panel is inapposite due to the fact that this is not an administrative,
rather a judicial, office.
Naturally,
it is possible to reject some external influence, proceeding from
“another” power (or to demand for the judiciary “substantial influence”
on the removal therefrom) in the removal of a chief judge from office,
especially in a situation where the judiciary (judges) also has (at
least some form) of influence in the process of appointment to such
office (if, for example, the chief judge of a court were appointed by an
executive body on the proposal of a certain segment of the judiciary).
One could then understand the objection that for some other power
authoritatively to deprive the chief judge of his office does not
correspond to “civilized standards”, if the installation of (specific)
persons into the office of chief judge were “substantially influenced”
by a process within (the appropriate) judicial organ; if it is accepted,
however, that the judiciary has de lege lata no influence on this
process of “installation”, then in both instances, that is, both the
appointment and the removal, it takes place (as an expression of a
phenomenon of administration) separate from of the judiciary – in
essence - adequately, in harmony with the specifically asserted form of
the principle of the separation of powers, alternatively with the
specific form of the independence and the mutuality of influence of the
executive and judicial powers.
Corresponding
thereto, no reproaches are made of the “encroachments” by the executive
when appointing court functionaries, even though this generally
constitutes a highly significant intrusion into the judicial power. Nor
did the complainant raise, against her own appointment to the office of
Chief Justice of the Supreme Court, the objection that it occurred to
an absolutely independent judiciary, without any sort of influence of
this power, much less “substantial” (including “influence” of the
Supreme Court itself, alternatively its judges at that time).
The
argument “functionary position as a career step” for judges is
naturally cannot be effectively applied in order to bring the status of
court chief judge court closer to, or even identify it with, that of a
judge: first, the concept of such “career step” lacks any sort of legal
basis and evidently is not even actually shared within the ordinary
judiciary; also, even if the chief judges of courts in their
(administrative) positions had in mind the goal of “satisfying
themselves professionally”, it does not follow therefrom that they
should for that reason obtain a greater level of protection. If they
elect this professional (career) direction, they have to bear the risk
traditionally connected to it.
Neither
does the circumstance that judges are independent in the performance of
their duties (Art. 82 par. 1 of the Constitution) give grounds for
declaring unconstitutional the contested provision, § 106 par. 1 of the
Act on Courts and Judges.
C.
The
Constitutional Court thus evaluated the constitutionality of the
contested § 106 par. 1 of the Act on Courts and Judges, not within the
contextual framework of the statutory definition of the content of the
court administration and the status of chief judges of courts therein,
rather – and inadmissibly – in relation to the form of some other
administration, which cannot however be deduced from the law currently
in force (§ 118 and following of this enactment). Thus, it is only on
the basis of (incorrect) presuppositions of some other administration
that the Constitutional Court deduced the unconstitutionality of the
provision empowering the person who appointed the chief judge of a court
to remove him from office.
If
the Constitutional Court reproves the legislature that, by adopting the
rules contained in § 106 par. 1 of the Act on Courts and Judges, it
failed to respect the conclusions expressed in the Court’s previous
judgment, No. Pl. US 7/02, such criticism is not entirely apposite.
Although § 106 par. 1 was annulled by that judgment, it was not due to
the fact that it was constitutionally impermissible for the chief judge
of a court to be removed “by the person who appointed him”, rather
primarily “on formal grounds”, as a consequence of the annulment of the
version of § 74 par. 3 of the Act then in force, due to its conflict
with Art. 82 par. 3 of the Constitution (on the incompatibility of the
office of judge with public administrative functions), and due to “the
entirely general and vague - hence not corresponding to the principle of
legal certainty - expression of the grounds leading to the recall of
the chief judge or deputy chief judge of a court” Insofar as this
judgment further refers to “a career step for a judge” and to the
process of removal from the office of chief judge or deputy chief judge
on the basis of a disciplinary proceeding, the annulment of § 106 par. 1
was not based upon these considerations (manifestly these are not
“supporting grounds”), hence no obligation arose for the legislature the
“respect” them (for greater detail, reference can be made to the
reservations expressed by the dissenting Justices).
The
previous version of § 106 par. 1 of the Act on Courts and Judges, which
allowed for chief judges and deputy chief judges to be removed from
office “if they fail duly to perform their duties”, was replaced by the
contested wording, which conditions such removal from office on the fact
that they “in a serious manner or repeatedly violate their statutorily
prescribed duties in the course of performing the state administration
of courts”. These “general and vague” grounds were not only put in
precise form, but were also substantively narrowed – to the violation
(serious or repeated) of statutorily prescribed duties, moreover in the
course of performing the state administration of courts. The Act
limited itself solely to the criterion of the lawfulness of the
performance of administration, omitting possible consideration of the
suitability, effectiveness, and thrift of the performance, etc., by
which the protection of court functionaries’ status was significantly
strengthened. In effect, it can no longer relate to merely “poor
management” of a court, and the holder of an administrative function
evidently will be accorded judicial protection by means of an action
against the decision of an administrative organ, pursuant to § 65 of the
Code of Administrative Justice. In the absence of administrative
review of the constitutional act of the President of the Republic, the
lack of statutory prescribed grounds for the removal from office of the
Chief Justice of the Supreme Court (that is, their utter non-existence,
not the mere failure to state them in the instrument of removal) is
conceivable as an argument in a constitutional complaint, admissible
(precisely and solely) by the applicable objection of wilfullness, if
not arbitrariness (see above, Part I).
Thus,
one can defend the view that the requirements laid down in the
Constitutional Court’s previous judgment, No. Pl. US 7/02, were met.
The
annulling judgment brought about the circumstance where court
functionaries are simply not subject to removal and can assume that the
office entrusted to them may be carried out without any sort of
restriction whatsoever; the removals of chief judges that have occurred
in the past were unconstitutional. Such an outcome can hardly pass
muster in regard to the attributes of a democratic law-based state. The
Constitutional Court has come to a conclusion on the constitutionality
of the contested provision by means of arguments which in their
implications, asserted in a wider, more-general context, are capable of
paralyzing the entire administration of the ordinary judiciary by
eliminating from it the characteric of superiority and subordination,
and for administrative functionaries (the court chief judge) postulating
the position of an independent subject, in contrast to the typical (as
well as logically and substantively necessary) hierarchical order.
This
is not meant to say that the current model of court administration is
not subject to criticism: as such, however, it was not the subject of
constitutional control in the matter before the court. The system with
the Minister of Justice having the dominant position was already the
subject of doubt in judgment No. Pl. US 7/02, that, in relation to the
status of court chief judges, the standards of “developed European
countries” (which is characteristic of it) was not attained, that,
although they perform “activities which are administrative in nature”,
they do not lose “the quality of their status as independent judges”,
and that the absence of the judiciary’s “own representative organ” “does
not sufficiently exclude the possibility of the executive branch
exercising indirect influence over the judicial branch” (and I am now
citing from the Constitutional Court judgment). Nonetheless, it is
decisive that neither in that case nor in this is it stated that this
system for the administration of courts is unconstitutional. The
principle of the separation of powers, oft-cited in the judgment, does
not entail the separation and total division of the judiciary from the
executive power; neither the joint performance of court administration
by the Ministry of Justice and chief judges of individual courts, nor
the circumstance that the executive power (administration) can influence
who occupies positions and the performance (again) of administration by
another power - the judiciary, need come into conflict, at the
constitutional level, with the requirement of mutual ties (exerting
influence, checks) among the different powers. It is appropriate to
concur with the view that the constitutionality of the existing rules
cannot be gauged solely through the prism of the view “de constitutione
ferenda” (see the dissenting opinion of Justices J. Malenovský, V.
Ševčíka a P. Varvařovský to judgment No. Pl. US 7/02). From the
perspective of the Constitution (Art. 1 par. 1) as currently in force,
it is not important whether court (administrative) functionaries are or
are not independent, rather that they are independent when performing
their duties as judges (Art. 82 par. 1).
The
Constitutional Court has not expressly addressed the issue of the
implications which the annulment of § 106 par. 1 of the Act on Courts
and Judges has (may have) for the proceeding on the constitutional
complaint, from which the petition under adjudication arose. Although
it mentioned (by citing) its earlier judgments, No. I. US 102/2000 and
No. I. US 738/2000, and their conclusion that “in deciding on the
constitutional complaint the Constitutional Court must take into
consideration the judgment of annulment in the norm control proceeding”,
it is not sufficiently clear how it foresaw the implications of § 71 of
the Act on Courts and Judges, in particular the principles expressed in
§ 71 par. 2 in relation to § 71 par. 4 of this Act. If the contested
decision of the President of the Republic could not be subsumed under
the first of these mentioned provisions, that is, the clause following
the semi-colon (due to the fact that the constitutive nature of the
decision excludes considerations of its enforcement), then the
possibility anticipated by both provisions remains open, namely that
“final decisions”, alternatively “rights and duties flowing from legal
relations created prior to the invalidation of the legal enactment”,
remain unaffected. Attention then once again turns (only) to the
question whether the petitioner’s constitutionally guaranteed rights
were encroached upon (and which of them) as a result of proceeding in
accordance with the provision which was later found to be
unconstitutional (see Section I, above)
III.
In
summary, the complainant’s petition should have been rejected on
preliminary grounds (Part I.); and even though it was not, should then
have been rejected on the merits, either because the contested provision
is not unconstitutional, or because the objections raised against it
are not capable of calling its constitutional conformity into doubt
(Part II.).
11 July 2006
11 July 2006
Dissenting Opinion
of Justice Ivana Janů
I.
I
agree with the conclusion that, by allowing for the removal of the
chief justice of a court (the Chief Justice of the Supreme Court)
without concurrent action on the part of the judicial power, § 106 of
Act 6/2002 Coll., on Courts and Judges, as amended by subsequent acts,
is in conflict with the constitutional principle of the separation of
powers and the institutional independence of the judicial power.
II.
I have formulated the following opinion supplemental to a portion of the Court’s opinion:
My
concurring opinion focuses on two areas which are used to support the
reasoning of the judgment, namely, the possibility of limiting the term
of office of court chief justices, above all the chief justices of
supreme courts, and their selection as a career promotion.
Foreign
experience supports the view that a number of countries have formulated
rules (whether at the constitutional level or the level of ordinary
law) which limits the term of office of the chief justices of supreme
courts (hereinafter SC) to a precisely prescribed term (although they
diverge as regards the possibility of re-appointment to that office). I
consider this approach as inspirational for use even under the
conditions for the functioning of justice that prevail here.
The
principle that legitimacy must be reaffirmed is without any doubt a key
constitutional principle of a democratic law-based state. Logically,
due to its character, this principle applies to the judiciary only to a
limited extent; nonetheless I see no impediment for its full application
to the office of chief justice, alone due to the fact that, among the
other judges, a court’s chief justice is „primus inter partes“.
I
have long espoused the position that the judiciary should be an open
system, which is accessible to persons from other parts of the legal
profession, in particular advocacy, the state attorney’s office, and the
academic community. A country as small as the Czech Republic can ill
afford to narrow illogically the background from which it can recruit
judges. The same applies to the office of chief justice.
It
can generally be postulated that for a judge to be suitable for the
office of chief justice, he should manifest abilities which are demanded
by court administration. He should be not only a recognized expert,
but also a person who is able to act so as to gain respect and esteem
through his human characteristics; merely formally to gird oneself in
the chief justice’s robe quite often does not suffice. The chief
justice of a court should be a capable organizer and a person who, in a
milieu which as individuality, is capable while maintaining respect for
his colleagues’ views of performing the basic tasks of the judiciary so
as to fulfill his constitutional function and not lose the essential
confidence of the public. The chief justice of the SC should be capable
to having unifying positions adopted, so as to ensure that the results
of ordinary courts’ judicial decision-making is not only timely but also
predictable, a task which is among the most important for the SC. The
office of chief justice also requires a person with the decisiveness and
energy to be, if necessary, an uncompromising accuser of his
colleagues, such as in the case of a disciplinary proceeding. The
absence of certain of these virtues certainly does not qualify as a
“disciplinary transgression”, as understood in the humorous sense, which
would provide grounds to remove such a person from the office of chief
justice; nonetheless, it is precisely in such situations that an
unlimited term of office, which can go on even for decades, functions as
an impediment to the selection of more suitable persons.
Within
the bounds of objectivity, reference must also be made, in relation to
the mentioned requirements placed upon the office of the Chief Justice
of the SC, to the personal quality of the judicial corps of the SC in
the conditions of the post-communist transformation of justice. In this
connection, I have in mind the entirely unknown rule on the basis of
which the selection of Justices of the SC has until now been practiced.
A candidate’s name is not made known in advance to the wider public,
thus his integrity and expertise is not even discussed in the press,
which is a quite common practice in the case of Constitutional Court
Justices.
Even the most
capable Chief Justice will manage to do little with a court on which
sits also judges who have not developed a high level of restraint and
sense of responsibility. I would recall the situation labeled by the
media as the “war of the courts”, when the Supreme Court refused to
respect Constitutional Court judgments, thus also the direct instruction
of the Constitution of the Czech Republic. A further well-known
phenomenon is the attitude of the Supreme Court which a priori forces
out all that can be considered as foreign to its organism; it did not
welcome into its midst constitutional Justices who had finished their
terms, and their Justices signed a petition against its Chief Justice,
which I absolutely do not consider an acceptable form in which judges
should express their views.Brno, 17 July 2006