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HEADNOTES
1.
Although the rules of procedure of the Chamber of Deputies do not
recognize a comprehensive amending proposal as an institution of
regulatory law, it can be the basis for discussion. However, that does
not mean that a subject with the right of legislative initiative ceases
to be the “master of the bill,” because it is still his legislative
initiative. Therefore, only it has the authority of disposal with the
bill, and can withdraw it without anything further, until the end of
debate in the second reading in which his legislative initiative is
discussed on the basis of the comprehensive amending proposal ((§ 64 in
connection with § 86 par. 6 of Act no. 90/1995 Coll., on the Rules of
Procedure of the Chamber of Deputies), and, with the consent of the
Chamber of Deputies, even in the third reading.
2.
The Constitutional Court concluded that an immanent feature of the
office of a judge is its continuous nature. Therefore, membership in the
consulting bodies of a ministry, the government, and both chambers of
Parliament, just like performing the tasks of these various components
of the state power, is inconsistent with the principle of the separation
of powers. Therefore, the assignment of judges to fulfill tasks in
other branches of state power is in conflict with Art. 82 par. 3 of the
Constitution, and, in view of the fact that the Constitutional Court has
already expressed this legal opinion (judgment Pl. ÚS 7/02), also with
Art. 89 par. 2 of the Constitution.
3.
It is not possible to construct a duality in the legal position of the
chairman of a court as an official of state administration, on one hand,
and a judge, on the other hand. Therefore, the means for protection of
court officials must be comparable with the means for protection of a
judge. This must apply not only to the manner of recalling court
officials, but also temporary removal of them from office.
4.
The use of the singular or plural in a legal regulation does not by
itself definitely determine how many persons it may affect. In case of
appointment of the Supreme Court´s vice-chairmen under Art. 62 letter f)
of the Constitution of the Czech Republic, both the legislature, just
like the appointing body, are limited in terms of the rules of the
separation of powers and the need to ensure the independent exercise of
the judiciary. Therefore, it is not admissible, in the framework of
statutory regulation of the vice-chairmen appointment to create a room
for the interference from the side of executive power. The provision §
102 par. 1 of the Act on Courts and Judges does not create sufficient
guarantees for the independence of judicial branch in relation to the
executive power, as it creates conditions for such possible interference
in the independence of the judicial branch
5. The statutory framework must not create conditions for threatening of constitutionally required independence and impartiality of judges. Possible unconstitutional situations in such a serious sphere need to be eliminated in advance. The problem is the very possibility of repeat appointment, which can lead court officials to act in a way that would meet the requirements for their repeat appointment, or can lead to their individual actions, including their decision making, to be seen and assessed that way by the outside world.
5. The statutory framework must not create conditions for threatening of constitutionally required independence and impartiality of judges. Possible unconstitutional situations in such a serious sphere need to be eliminated in advance. The problem is the very possibility of repeat appointment, which can lead court officials to act in a way that would meet the requirements for their repeat appointment, or can lead to their individual actions, including their decision making, to be seen and assessed that way by the outside world.
6.
Therefore, this provision was annulled as unconstitutional, because, as
a manifestation of arbitrariness by the legislature, it interferes in
the principles of a law-based state under Art. 1 par. 1 of the
Constitution. At the same time, given the circumstances of the case, it
is a violation of the right to access to public office on equal terms
under Art. 21 par. 4 of the Charter. In view of the circumstances of the
case, this is also an impermissible covert form of an individual legal
act directed against a particular person, and therefore an attempt to
interfere in the independence of the judicial branch.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE REPUBLIC
On
6 October 2010, the Plenum of the Constitutional Court, consisting of
Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler,
Pavel Holländer, Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká, Jiří
Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Výborný and
Eliška Wagnerová, ruled in the matter of a petition from a group of
senators of the Senate of the Parliament of the Czech Republic,
represented by Senator Mgr. Soňa Paukrtová, seeking the annulment of
points 1, 2, 3, 29, 30, 31, 32, 33, 34, 35, 36, 38, 41, 42 and 49 of
Art. I, points 4, 5, 6, 7, 8, 9, 10 and 11 of Art. II, points 2 and 3 of
Art. III, as well as Art. IV of Act no. 314/2008 Coll., which amends
Act no. 6/2002 Coll., on Courts, Judges, Trainee Judges, and the State
Administration of Courts and Amending Certain Other Acts (the “Act on
Courts and Judges”), as amended by later regulations, Act no. 150/2002
Coll., the Administrative Procedure Code, as amended by later
regulations, Act no. 7/2002 Coll., on Proceedings in Matters concerning
the Courts and State Prosecutors, as amended by later regulations, Act
no. 349/1999 Coll., on the Public Defendor of Rights, as amended by
later regulations, Act no. 283/1993 Coll., on the State Prosecutor’s
Office, as amended by later regulations, Act no. 200/1990 Coll., on
Offences, as amended by later regulations, and Act no. 85/1996 Coll., on
Advocacy, as amended by later regulations, and seeking the annulment of
the words “to the Ministry or” in § 68 par. 1 and in § 68 par. 2 let.
b) and seeking the annulment of § 100a of Act no. 6/2002 Coll., on
Courts and Judges, as amended by Act no. 314/2008 Coll., in eventum the
annulment of: in Act no. 6/2002 Coll., on Courts, Judges, Trainee
Judges, and the State Administration of Courts and Amending Certain
Other Acts ( the “Act on Courts and Judges”), as amended by Act no.
151/2002 Coll., Act no. 228/2002 Coll., the Constitutional Court
judgment promulgated as no. 349/2002 Coll., Act no. 192/2003 Coll., Act
no. 441/2003 Coll., Act no. 626/2004 Coll., Act no. 349/2005 Coll., Act
no. 413/2005 Coll., Act no. 79/2006 Coll., Act no. 221/2006 Coll., Act
no. 233/2006 Coll., Act no. 264/2006 Coll., Act no. 267/2006 Coll., Act
no. 342/2006 Coll., the Constitutional Court judgment promulgated as no.
397/2006 Coll., Act no. 184/2008 Coll. and Act no. 314/2008 Coll., the
words “vice chairmen” in § 15 par. 1, the words “vice chairmen” in § 15
par. 2, the words “vice chairmen” in § 23 par. 1, § 102, § 103 par. 1
and 2, § 104 par. 1 and 2, § 105 par. 1 and 2, § 105a, § 108 par. 2, the
words “vice chairmen of the Supreme Court” in § 119 par. 2, the words
“vice chairmen” in § 121 par. 2, the words “vice chairmen” in § 168,
further, in Act no. 314/2008 Coll. in Art. II points 4, 5, 6, 7, 8, 9,
10 and 11, further, § 13 par. 3 and § 13a in Act no. 150/2002 Coll., the
Administrative Procedure Code, as amended by Act no. 314/2008 Coll.,
and in connection therewith Art. IV in Act no. 314/2008 Coll., further,
the words “to the Ministry or” in § 68 par. 1 and in § 68 par. 2 let. b)
of Act no. 6/2002 Coll., as amended by Act no. 314/2008 Coll., and
seeking the annulment of § 100a of that Act, in eventum the annulment of
the words “vice chairmen” in § 15 par. 1, § 23 par. 1 and in § 102 par.
2, the words “vice chairmen” in § 15 par. 2 and in § 121 par. 2, the
words “the vice chairman” in § 102 par. 1 and in § 168, and the words
“vice chairmen of the Supreme Court” in § 119 par. 2, further the words
“to the Ministry or” in § 68 par. 1 and in § 68 par. 2 let. b), further §
100a, § 102 par. 2, § 103 par. 2, § 104 par. 2, § 105 par. 2, § 105a, §
108 par. 2 of Act no. 6/2002 Coll., as amended by Act no. 314/2008
Coll.; further § 13 par. 3 and § 13a of Act no. 150/2002 Coll., the
Administrative Procedure Code, as amended by Act no. 314/2008 Coll., and
points 4, 5, 6, 7, 8, 9, 10 and 11 of Art. II in Part One of Act no.
314/2008 Coll., with the participation of the Chamber of Deputies of the
Parliament of the Czech Republic and the Senate of the Parliament of
the Czech Republic as parties to the proceeding, as follows:
I.
The words “to the Ministry or” in § 68 par. 1, the words “to the
Ministry or” in § 68 par. 2 let. b), and § 100a par. 1 let. b) of Act
no. 6/2002 Coll., on Courts, Judges, Trainee Judges, and the State
Administration of Courts and Amending Certain Other Acts (the “Act on
Courts and Judges”), as amended by Act no. 314/2008 Coll., which amends
Act no. 6/2002 Coll., on Courts, Judges, Trainee Judges, and the State
Administration of Courts and Amending Certain Other Acts (the “Act on
Courts and Judges”), as amended by later regulations, Act no. 150/2002
Coll., the Administrative Procedure Code, as amended by later
regulations, Act no. 7/2002 Coll., on Proceedings in Matters concerning
the Courts and State Prosecutors, as amended by later regulations, Act
no. 349/1999 Coll., on the Public Defendor of Rights, as amended by
later regulations, Act no. 283/1993 Coll., on the State Prosecutor’s
Office, as amended by later regulations, Act no. 200/1990 Coll., on
Offences, as amended by later regulations, and Act no. 85/1996 Coll., on
Advocacy, as amended by later regulations, are annulled as of the day
this judgment is promulgated in the Collection of Laws.
II.
The words “and the vice chairman” In § 102 par. 1 of Act no. 6/2002
Coll., on Courts, Judges, Trainee Judges, and the State Administration
of Courts and Amending Certain Other Acts (the “Act on Courts and
Judges”), as amended by Act no. 314/2008 Coll., which amends Act no.
6/2002 Coll., on Courts, Judges, Trainee Judges, and the State
Administration of Courts and Amending Certain Other Acts (the “Act on
Courts and Judges”), as amended by later regulations, Act no. 150/2002
Coll., the Administrative Procedure Code, as amended by later
regulations, Act no. 7/2002 Coll., on Proceedings in Matters concerning
the Courts and State Prosecutors, as amended by later regulations, Act
no. 349/1999 Coll., on the Public Defendor of Rights, as amended by
later regulations, Act no. 283/1993 Coll., on the State Prosecutor’s
Office, as amended by later regulations, Act no. 200/1990 Coll., on
Offences, as amended by later regulations, and Act no. 85/1996 Coll., on
Advocacy, as amended by later regulations, are annulled as of 1 October
2011.
III.
Point 11 Art. II of Act no. 314/2008 Coll., which amends Act no. 6/2002
Coll., on Courts, Judges, Trainee Judges, and the State Administration
of Courts and Amending Certain Other Acts (the “Act on Courts and
Judges”), as amended by later regulations, Act no. 150/2002 Coll., the
Administrative Procedure Code, as amended by later regulations, Act no.
7/2002 Coll., on Proceedings in Matters concerning the Courts and State
Prosecutors, as amended by later regulations, Act no. 349/1999 Coll., on
the Public Defendor of Rights, as amended by later regulations, Act no.
283/1993 Coll., on the State Prosecutor’s Office, as amended by later
regulations, Act no. 200/1990 Coll., on Offences, as amended by later
regulations, and Act no. 85/1996 Coll., on Advocacy, as amended by later
regulations is annulled as of 1 October 2011.
IV.
The provision of § 105a of Act no. 6/2002 Coll., on Courts, Judges,
Trainee Judges, and the State Administration of Courts and Amending
Certain Other Acts (the “Act on Courts and Judges”), as amended by Act
no. 314/2008 Coll., which amends Act no. 6/2002 Coll., on Courts,
Judges, Trainee Judges, and the State Administration of Courts and
Amending Certain Other Acts (the “Act on Courts and Judges”), as amended
by later regulations, Act no. 150/2002 Coll., the Administrative
Procedure Code, as amended by later regulations, Act no. 7/2002 Coll.,
on Proceedings in Matters concerning the Courts and State Prosecutors,
as amended by later regulations, Act no. 349/1999 Coll., on the Public
Ombudsman, as amended by later regulations, Act no. 283/1993 Coll., on
the State Prosecutor’s Office, as amended by later regulations, Act no.
200/1990 Coll., on Offences, as amended by later regulations, and Act
no. 85/1996 Coll., on Advocacy, as amended by later regulations, and §
13a of Act no. 150/2002 Coll., the Administrative Procedure Code, as
amended by later regulations, are annulled as of the day this decision
is promulgated in the Collection of Laws.
V. The rest of the petition is denied.
REASONING
I.
Recapitulation of the Petition
Recapitulation of the Petition
1.
A group of senators from the Senate of the Parliament of the Czech
Republic (the “petitioner” filed a petition to open proceedings under §
64 par. 1 let. b) of Act no. 182/1993 Coll., on the Constitutional
Court, as amended by later regulations, (the “Act on the Constitutional
Court”), in which it seeks “annulment of parts of Act no. 314/2008
Coll., which amends Act no. 6/2002 Coll., Act no. 6/2002 Coll., on
Courts, Judges, Trainee Judges, and the State Administration of Courts
and Amending Certain Other Acts (the “Act on Courts and Judges”), as
amended by later regulations, Act no. 150/2002 Coll., the Administrative
Procedure Code, as amended by later regulations, Act no. 7/2002 Coll.,
on Proceedings in Matters concerning the Courts and State Prosecutors,
as amended by later regulations, Act no. 349/1999 Coll., on the Public
Defendor of Rights, as amended by later regulations, Act no. 283/1993
Coll., on the State Prosecutor’s Office, as amended by later
regulations, Act no. 200/1990 Coll., on Offences, as amended by later
regulations, and Act no. 85/1996 Coll., on Advocacy, as amended by later
regulations, and seeking the annulment of the words “to the Ministry
or” in § 68 par. 1 and in § 68 par. 2 let. b) and seeking the annulment
of § 100a of Act no. 6/2002 Coll., on Courts and Judges, as amended by
Act no. 314/2008 Coll., in eventum the annulment of certain provisions
of Act no. 6/2002 Coll., on Courts, Judges, Trainee Judges, and the
State Administration of Courts and Amending Certain Other Acts (the “Act
on Courts and Judges”), as amended by Act no. 151/2002 Coll., Act no.
228/2002 Coll., Constitutional Court judgment promulgated as no.
349/2002 Coll., Act no. 192/2003 Coll., Act no. 441/2003 Coll., Act no.
626/2004 Coll., Act no. 349/2005 Coll., Act no. 413/2005 Coll., Act no.
79/2006 Coll., Act no. 221/2006 Coll., Act no. 233/2006 Coll., Act no.
264/2006 Coll., Act no. 267/2006 Coll., Act no. 342/2006 Coll.,
Constitutional Court judgment promulgated as no. 397/2006 Coll., Act no.
184/2008 Coll. and Act no. 314/2008 Coll., as well as certain
provisions of Act no. 150/2002 Coll., the Administrative Procedure Code,
as amended by Act no. 192/2003 Coll., Act no. 22/2004 Coll., Act no.
237/2004 Coll., Act no. 436/2004 Coll., Act no. 555/2004 Coll., Act no.
127/2005 Coll., Act no. 350/2005 Coll., Act no. 357/2005 Coll., Act no.
413/2005 Coll., Act no. 79/2006 Coll., Act no. 112/2006 Coll., Act no.
159/2006 Coll., Act no. 165/2006 Coll., Act no. 189/2006 Coll., Act no.
267/2006 Coll. and Act no. 314/2008 Coll., and certain provisions of Act
no. 314/2008 Coll.”.
2.
In view of the formulation of the heading of the petition, the
structure of the reasoning, and the closing requested judgment (which
does not match the heading), we must state that the petition really
consists of several variously combined and variously justified
petitions, in which the petitioner always seeks the annulment of a
certain part of the provisions of the abovementioned legal regulations,
and in the event that the Constitutional Court does not agree with the
arguments presented and not grant the petition as thus justified, it
proposes another formulation of the proposed judgment as an alternative.
Therefore it was necessary, in the interests of clarity, to dissect the
petition, according to the variations of the proposed judgment, into
individual claims of unconstitutionality, and take a position on them
one at a time. In terms of its case law [judgment file no. Pl. ÚS 16/93
of 24 May 1994 (N 25/1 SbNU 189; 131/1994 Coll.)] the Constitutional
Court took as determinative the alternatives for the proposed judgment
in the petition, because the heading and reasoning do not always
correspond to it. Generally, in summary, we can state that the
petitioner:
a)
Primarily sought annulment of those parts of Act no. 314/2008 Coll.,
the adoption of which, in its opinion, violates the procedural rules of
the legislative process through a comprehensive amending proposal. That
proposal is joined with a proposal for the annulment of selected parts
of § 68 par. 1, § 68 par. 2 let. b) and § 100a of the Act on Courts and
Judges with different arguments, because those provisions were not
affected by the processing of the government bill through an amending
proposal.
b)
In the event that the Constitutional Court does not agree with its
arguments, the petitioner proposes the annulment of the same parts of
Act no. 314/2008 Coll., but on the grounds of their substantive law
inconsistency with constitutional regulations. In that case it would
then be necessary to annul the appropriate the provisions stated below
in the statutes that Act no. 314/2008 Coll. amended. This alternative
proposed judgment is also joined to the proposal for the annulment of
selected parts of § 68 par. 1, § 68 par. 2 let. b) and § 100a of the Act
on Courts and Judges.
c)
Finally, in the event that the Constitutional Court did not grant this
proposal either, the petitioner presents for annulment certain
provisions of the Act on Courts and Judges and the Administrative
Procedure Code, amended by Act no. 314/2008 Coll., or certain individual
provisions of Act no. 314/2008 Coll. with reasoning that is no longer
based on the claimed unconstitutionality of using a comprehensive
amending proposal. In that event as well, the petition seeks the
annulment of selected parts of § 68 par. 1, § 68 par. 2 let. b) and §
100a of the Act on Courts and Judges.
In
view of the formulation of the petition’s reasoning and its division
into three alternative proposed judgments, the Constitutional Court
decided to first review the issue of the process of adoption of Act no.
314/2008 Coll. and subsequently the petitioner’s objections based on the
alleged inconsistency of individual amended provisions of the Act on
Courts and Judges, the Administrative Procedure Code, and individual
provisions of Act no. 314/2008 Coll. with the constitutional order.
II.
The text of the Contested Provisions and the Petitioner’s Arguments
3.
The petitioner contests the individual parts of Act no. 314/2008 Coll.
on procedural grounds, and in that case its petition is directed against
the amending statute, Act no. 314/2008 Coll., as corresponds to the
Constitutional Court’s settled case law. The alternatives contest the
content of the amendment, and here the petition is directed against the
amended Act on Courts and Judges and the Administrative Procedure Code
[see the alternative proposed judgments in 2b) and 2c)], or against Art.
II and Art. IV of Act no. 314/2008 Coll., which stand alone and are not
amending provisions.
II.a
Unconstitutionality of the Institution of a Comprehensive Amending Proposal
Unconstitutionality of the Institution of a Comprehensive Amending Proposal
4.
The petitioner first asks the Constitutional Court to annul points 1,
2, 3, 29, 30, 31, 32, 33, 34, 35, 36, 38, 41, 42 and 49 of Art. I,
points 4, 5, 6, 7, 8, 9, 10 and 11 of Art. II (transitional provisions
for the implementation of a term of office in the Act on Courts and
Judges), points 2 and 3 of Art III (implementing a term of office for
the chairman and vice chairman of the Supreme Administrative Court and
the possibility of repeat appointment), as well as Art. IV of Act no.
314/2008 Coll. (transitional provisions for the implementation of a term
of office in the Administrative Procedure Code). It is not necessary to
introduce the contested provisions in this case. As a whole they are
part of the “comprehensive amending proposal” the use of which
(regardless of its content) the petitioner considers to be
unconstitutional. Also unconstitutional according to the petitioner is
the very process of adoption of this part of Act no. 314/2008 Coll.,
which affects the abovementioned points in Art. I, Art. II, Art. III and
Art. IV. In that case, this part of the petition would be resolved by
the Constitutional Court concluding that the cited parts of Act no.
314/2008 Coll. were not adopted in a constitutionally prescribed manner.
Although the petitioner proposes annulling the statute on the grounds
of failure to observe procedure, nevertheless it proposes annulling only
some of the measures adopted in that manner (see 12 and 13).
5.
In the event that the Constitutional Court evaluates the basic proposal
[see 2a)] differently, and concludes that the arguments presented
thereto are – as the petitioner states – more of a substantive law
nature, the alternative proposal is to annul all provisions in Act no.
6/2002 Coll. and in Act no. 150/2002 Coll. that are amended by those
provisions of Act no. 314/2008 Coll. that exceeded the scope of the
government’s original legislative initiative. Therefore, the following
are proposed to be annulled in the Act on Courts and Judges
- in § 15 par. 1, the words “vice chairmen,”
- in § 15 par. 2 the words “vice chairmen,”
- in § 23 par. 1 the words “vice chairmen,”
- as a whole, § 102, § 103 par. 1 and 2, § 104 par. 1 and 2, § 105 par. 1 and 2, § 105a, § 108 par. 2,
- in § 119 par. 2 the words “vice chairmen of the Supreme Court,”
- in § 121 par. 2 the words “vice chairmen,”
- in § 168 the words “vice chairmen.”
Further
proposed for annulment in this connection are, in Act no. 314/2008
Coll. in Art. II, points 4, 5, 6, 7, 8, 9, 10 and 11, and in Act no.
150/2002 Coll., the Administrative Procedure Code, § 13 par. 3 and §
13a, and in connection therewith, Art. IV in Act no. 314/2008 Coll.
6.
This second alternative [see 2b)] is, as already stated, identical in
scope with the alternative in 2a), and differs only in the starting
point for the arguments. Whereas the first case proposes annulling
selected points of Act no. 314/2008 Coll., i.e. amendments to the
abovementioned statutes that go beyond the scope of the government’s
original legislative initiative, the second alternative proposed
judgment proposes annulling individual provisions of these amended
statutes in the scope in which they were amended by Act no. 314/2008
Coll. In this case the petitioner did not develop its arguments in more
detail, but only stated that exceeding the scope of the government’s
original legislative initiative could be considered (if not
procedurally) to be violation of the constitutional order from a
substantive law standpoint. Thus, in terms of arguments, this
alternative proposed judgment is identical with the previous alternative
of objections, directed against the constitutionality of comprehensive
amending proposals. Thus, this case concerns the constitutionality of
the abovementioned provisions of the Act on Courts and Judges, points 4,
5, 6, 7, 8, 9, 10 and 11 of Art. II and Art. IV of Act no. 314/2008
Coll., § 13 and § 13a in Act no. 150/2002 Coll., the Administrative
Procedure Code.
7.
The constitutionally defective procedural errors during processing of
Chamber of Deputies publication no. 425 that the petitioner presented to
the Constitutional Court consist in the manner of adoption of Act no.
314/2008 Coll. through a “comprehensive amending proposal.” The
petitioner added that Art. 41 of the Constitution of the Czech Republic
(the “Constitution”) lists the subjects for legislative initiative, and
in other provisions constructs the foundations of the legislative
process, to which additional layers of so-called “regulatory” law are
added, in the form of the statutory framework or autonomous resolutions
of the chambers of parliament, parliamentary customs, and settled
practice. It emphasized that the Constitutional Court provides
protection above all to the express wording of provisions [see judgment
no. 331/2005 Coll. – judgment file no. Pl. ÚS 23/04 of 14 July 2005 (N
137/38 SbNU 9)], but not only to that [cf. e.g., judgments no. 476/2002
Coll. – judgment file no. Pl. ÚS 5/02 of 2 October 2002 (N 117/28 SbNU
25) and no. 37/2007 Coll. – judgment file no. Pl. ÚS 77/06 of 15
February 2007 (N 30/44 SbNU 349]. The significance of the individual
levels of rules for the legislative process comes not only from the
relevant level of legal force, but also from the degree of detail in the
regulation: the more concise the regulation at a higher level of legal
force, the more significant is the regulation at the lower level.
8.
The petitioner further stated that the right of legislative initiative
means not only the right to propose a bill, but also the right to have
it discussed. The important point is that the right to submit amending
proposals is an accessory the right of legislative initiative. However,
in its opinion these amending proposals may not take the form of a
“disguised legislative initiative.” Here it pointed out that the
Constitutional Court had already identified and prohibited so-called
“riders” (judgment no. 37/2007 Coll.), and, in the petitioner’s opinion,
comprehensive amending proposals are a related institution, because
their essence is to replace the entire text of a bill with a complete
new text, usually prepared by the appropriate parliamentary committee,
although under the Constitution a committee does not have legislative
initiative. Thus, the parliamentary chamber in fact stops discussing a
duly submitted bill, without having approved or rejected it. Yet, from
this point on, amending proposals from deputies are to be formulated in
relation to this new “bill,” although the deputies might have prepared
them, in good faith, and after consultation with outside subjects, to
the original bill. As with the “riders,” comprehensive amending
proposals lack proper preparation and justification, and the government
has no opportunity to respond to them, because it discussed a different
draft (the original), the rights of the parliamentary minority may be
infringed, there is increased risk of adopting an act that is
inconsistent with the requirements of understandable, clear, and
foreseeable law, because it is prepared to particular deadlines within
Parliament. Thus, the process of adopting important laws through
comprehensive amending proposals is inconsistent with the “right to good
legislation,” and the principle of providing a hearing to all sides,
which were stated in Constitutional Court judgment no. 37/2007 Coll.
9.
Another objection in this regard is that comprehensive amending
proposals, which “by-pass” the first parliamentary reading and distort
the second reading, also affect the deeper levels of parliamentary
procedure, which are neutral only in the sense of impartiality, but not
absence of values; on the contrary, they are meant to permit informing
the public about the decision-making process, hearing the affected
interests, weighing various implications, including constitutional ones,
whereby they promote the values of transparent, careful, informed and
inclusive government.
10.
According to the petitioner, a comprehensive amending proposal is also
inconsistent with the Act on the Rules of Procedure of the Chamber of
Deputies, because it is not aimed at deleting, expanding, or amending
certain parts of the original bill [cf. § 63 par. 1 point 5 let. a)],
but at completely replacing it, without, for example, containing a
background report (written justification), without which it is difficult
for senators (and not only them) to distinguish the intent of the
legislature. At the same time, it does not permit one to evaluate the
“close” relationship between individual amending proposals and the
original text to be amended. Only individual amending proposals can
correctly amend the components of the legislative intent of a bill’s
proponent in relation to the same subject matter.
11.
For all the cited reasons, the petitioner considers the institution of a
comprehensive amending proposal to be inconsistent, at a minimum, with
Art. 1 par. 1, Art. 41 and Art. 44 of the Constitution.
12.
Nevertheless, the petitioner does not seek annulment of Act no.
314/2008 Coll. as a whole, because, for one thing, it considers it
appropriate to minimize derogative intervention by the Constitutional
Court, and for another it recognizes the different method of preparing
and discussing the original and newly added parts of a statute that are
combined in a single comprehensive amending proposal. Therefore, it
takes into account not only the form, but also the content of an
amending proposal, a procedure that differs somewhat from so-called
“riders”, which can be relatively easily technically separated from the
rest of a statute. In this regard, one can distinguish provisions that
were duly submitted by the government as part of the government bill
from provisions that were introduced into a bill by the constitutional
law committee of the Chamber of Deputies. The former are processed in a
standard manner and provided with a background report; the latter are
supported only by a few sentences of explanation spoken at meetings of
the two parliamentary chambers, which do not indicate what variations of
the regulation were considered. The petitioner does not consider it
important that the text supplemented by the constitutional law committee
most likely originated at the Ministry of Justice, and that Minister of
Justice J. Pospíšil supported the comprehensive amending proposal.
According to the petitioner, that may be even worse, because the
prescribed procedures were consciously violated. The legislative
initiative belongs to the government, not to ministries. Generally, just
as bureaucrats can circumvent a minister and put forth their own ideas
of what laws should be like through direct conversations with deputies, a
minister can also circumvent the (coalition) government, where he did
not, or might not, succeed in putting forth his ideas. Both situations
conflict with the government’s position as the collegiate supreme body
of the executive branch, which implements its program, to a considerable
extent, with the help of its legislative initiative. Thus, “tunneling”
around a bill can be seen as interference in the separation of powers.
The petitioner also pointed to the preponderance of expertise that
permits the government to prepare statutes taking into account various
aspects of good quality law-making, i.e. material, formal, and
organizational aspects (The Legislative Rules of the Government, the
Government Legislative Council, comment proceedings). Ignoring them
lowers the probability that a formally correct statute will be created,
which is intensified by comprehensive amending proposals, which, by
their nature, further dampen broader discussion and deliberation.
13.
In this connection, the petitioner pointed out that the petition also
affects one of the three fundamental branches of state power, on
exceptionally sensitive and complicated issues (the appointment and
recall of court officials, introducing terms of office, changing the
situation at the Supreme Court, etc.). Therefore, the lack of
justification, both in the background report and in all the readings
during parliamentary debate, is unacceptable, which makes all the more
evident the need to declare the process of adopting the amendment of the
Act on Courts and Judges through a comprehensive amending proposal to
be inconsistent with the principle of a rule of law state and a
democratic legislative process (Art. 1 par. 1 and Art. 2 par. 3 of the
Constitution) and with the “right to good laws” or the principle of
giving all sides an opportunity to be heard. In this case, according to
the petitioner, one is forced to doubt whether this particular course
for the legislative process was not chosen precisely in an effort to
omit an uncomfortable discussion with the judicial community, which is
also inconsistent with the definition of democracy as government by
discussion, not only between politicians, but especially between those
governing and the governed. Therefore, the petitioner proposed annulling
those parts of the constitutionally unacceptable form of a
comprehensive amending proposal (see Publication no. 425/1. Chamber of
Deputies. 5th electoral term. 2008), that were not properly submitted by
the government and transparently discussed by the Chamber of Deputies,
so not those parts n of Act no. 314/2008 Coll., that were part of the
original government bill (Publication no. 425/0. Chamber of Deputies.
5th electoral term. 2008).
14.
The petitioner believes it is possible that the Constitutional Court
will consider the abovementioned arguments to be substantive law ones.
In that case, it presented another alternative proposed judgment (see
above, 5), formulated so that it would be possible to annul the
consequences of amendment by Act no. 314/2008 Coll., as they manifested
themselves in the Act on Courts and Judges and in the Administrative
Procedure Code as the amended regulations, or in Art. II and Art. IV of
Act no. 314/2008 Coll. (transitional provisions for the amendment of the
cited statutes). The petitioner did not provide further justification
for this proposal. We can only conclude from the petitioner’s
justification that, in contrast to the procedural nature of the
objections in the first alternative proposed judgment, in the second
alternative it proposes removing the consequences of amendment from a
substantive law point of view. In other words, in this case the
Constitutional Court is asked to consider the violation of procedure to
be violation of the content of the constitutional order.
15.
Thus, we can state, in summary, that the first two alternative proposed
judgments consider the fundamental problem to be the
unconstitutionality of using a comprehensive amending proposal. The
first alternative is directed against selected parts of Act no. 314/2008
Coll., which amends Act no. 6/2002 Coll., on Courts, Judges, Trainee
Judges, and the State Administration of Courts and Amending Certain
other Acts (the Act on Courts and Judges), as amended by later
regulations, Act no. 150/2002 Coll., the Administrative Procedure Code,
as amended by later regulations, Act no. 7/2002 Coll., on Proceedings in
Matters concerning Judges and State Prosecutors, as amended by later
regulations, Act no. 349/1999 Coll., on the Public Ombudsman, as amended
by later regulations, Act no. 283/1993 Coll., on the State Prosecutor’s
Office, as amended by later regulations, Act no. 200/1990 Coll., on
Offences, as amended by later regulations, a Act no. 85/1996 Coll., on
Advocacy, as amended by later regulations. The second alternative
proposed judgment is not directed against the amendment, i.e. Act no.
314/2008 Coll., but, in the same scope, against precisely designated
provisions of the Act on Courts and Judges, the Administrative Procedure
Code and Art. IV of Act no. 314/2008 Coll., although only with the note
that this is done only in case the Constitutional Court concludes that
the arguments in the first alternative proposed judgment are more of a
substantive law nature, i.e., that inconsistency in content is also
established by defective procedure through the use of a comprehensive
amending proposal.
II.b
Unconstitutionality of § 68 par. 1, § 68 par. 2 let. b) and § 100a of the Act on Courts and Judges
Unconstitutionality of § 68 par. 1, § 68 par. 2 let. b) and § 100a of the Act on Courts and Judges
16.
The petitioner tied both alternative proposed judgments described above
to another proposal, the proposal to annul selected parts of § 68 par.
1, § 68 par. 2 let. b) and § 100a of the Act on Courts and Judges.
Regardless of the evaluation of the effects of adopting a statute
through a comprehensive amending proposal, from a procedural or
substantive law viewpoint, the petitioner seeks the annulment of
assignment of judges to the Ministry of Justice and annulment of the
possibility of submitting a proposal to open a disciplinary proceeding
as grounds for temporarily removing a court chairman or vice chairman
from office. These provisions were also part of the amending statute,
Act no. 314/2008 Coll. (points 4, 5 and 28), but they had already been
contained in the original text of the government bill (publication no.
425/0), so they are not affected by the defects that the petitioner
connects with the use of a comprehensive amending proposal (publication
no. 425/1). The petitioner included them in the third alternative
proposed judgment, which is not based on arguments that the use of a
comprehensive amending proposal is unconstitutional, but on arguments
that the individual solutions chosen are unconstitutional. Therefore,
the Constitutional Court will address them in a separate part of its
decision. These contested provisions of the Act on Courts and Judges,
including the contested parts (text marked in bold) read:
Ҥ 68
(1) A judge assigned to hold office at a particular court under § 67 or transferred to another court under § 71 and 72 can, with his consent, be temporarily assigned to another court for a period of no more than three years, in the interests of proper conduct of the judiciary, or, in the interest of utilizing his experience, to the Ministry or the Judicial Academy.
(1) A judge assigned to hold office at a particular court under § 67 or transferred to another court under § 71 and 72 can, with his consent, be temporarily assigned to another court for a period of no more than three years, in the interests of proper conduct of the judiciary, or, in the interest of utilizing his experience, to the Ministry or the Judicial Academy.
(2) Temporary assignment shall be decided by
b)
the Minister of Justice, after discussion with the chairman of the
court to which the judge is assigned under § 67 or transferred under §
71 and 72, in cases of temporary assignment of the judge to the Ministry
or the Justice Academy.”
Ҥ 100a
(1) The Minister of Justice may temporarily remove from office the chairman or vice chairman of a court
a) under conditions provided in § 100 par. 1 let. a) and c),
b)
if he is subject to a disciplinary proceeding for such disciplinary
violation for which the disciplinary complaint proposes imposing the
disciplinary measure of recalling the judge from office or recalling a
court chairman or vice chairman from office, such removal being for a
period until the disciplinary proceeding is terminated with legal
effect.
(2) During the period of
temporary removal from office under paragraph 1, the court chairman or
vice chairman is not entitled to an increase in salary coefficient
related to his office under a special regulation 6a). If the office of
the court chairman or vice chairman was not terminated, the court
chairman or vice chairman shall be paid the remaining part of his
salary, if he would otherwise be entitled to it; this does not apply if
the judge was convicted with legal effect of a crime.
(3) The provision of § 99 par. 2 applies analogously.”
17.
The petitioner’s arguments are based on the claim that assigning judges
to the Ministry of Justice is constitutionally disputable, because
judges are primarily supposed to decide cases. Likewise, the level of a
judge’s pay is a material component of judicial independence, which,
however, is necessary when deciding disputes about the law, not in the
exercise of conceptual activities at the ministry, which also
groundlessly burdens the state budget and establishes unequal
compensation among ministry employees. It is intensified by extending
the period of assignment for up to three years. The contested provisions
are inconsistent with the principles of separation of powers and the
independence of courts and judges, and can cast doubt on the
independence of the judges thus assigned, who form personal connections
at the Ministry or identify with implementation of Ministry policies,
which they may come into conflict with in their judicial activities.
Here the petitioner added to its arguments that, in view of the
authority of the Minister of Justice to appoint and nominate judges,
judge-interns will be well known to him, and generally compatible with
him, so there is an inviting opportunity to choose court chairmen from
their ranks. Because the chairmen nominate their vice chairmen, the
ministry could, through “inconspicuous” personnel policy control the
entire judiciary.
18.
In the proposal to annul § 100a of the Act on Courts and Judges, the
petitioner considers the most questionable point to be the authority of
the Ministry of Justice to temporarily remove a judge from the office of
court chairman or vice chairman, if recall from court office was
proposed in a disciplinary proceeding against him. This is an instrument
that can be abused, especially when the minister is himself the
disciplinary plaintiff who proposed the penalty in question. He is only
somewhat limited in this, by a fairly vague formulation of the factual
elements. The minister, as the disciplinary plaintiff, creates the
conditions for the minister, as the representative of the central state
body administering the courts, to temporarily remove a court official
from office. The same minister will at the same time have to ensure the
temporary management of the court, which can thus change considerable
until there is a verdict from the disciplinary court, reinstating the
judge. This interferes in the independence of judges and courts and the
separation of powers, and opens the possibility of arbitrariness and
chance in the conduct of state administration of the judiciary.
19.
However, according to the petitioner, the serious constitutional defect
of § 100a of the Act on Courts and Judges lies not in the individual
grounds for temporary removal from office, but in insufficient legal
protection in comparison with the temporary removal from office of a
judge, where it is possible to file objections with the disciplinary
court (see § 100 par. 4 of the same Act). Thus, in all cases governed by
§ 100a irreversible facts can occur during the temporary removal from
office through interference by the executive body. However, limiting the
temporary removal from office only to a court official indicates that
this is not supposed to involve offences of grave importance, so the
risk of the office being held by an inappropriate person becomes less
visible in comparison with the threat to independence. Therefore, the
petitioner finds sufficient the possibility of temporary removal from
office of court chairman or vice chairman as a result of suspension of
the office of judge, and thereby also the office of a court official (an
accessory to the judicial office), and therefore proposes annulment of
the entire provision of § 100a. If the legislature is not of that
opinion, it should provide for the temporary removal from office only of
a court chairman or vice chairman in a manner that is comparable, as
regards legal protection, with the suspension of the office of judge.
However, as the Constitutional Court cannot add a new provision to a
statute, it is appropriate to annul the entire § 100a.
II.c
Unconstitutionality of an Indefinite Number of Vice chairmen of the Supreme Court
Unconstitutionality of an Indefinite Number of Vice chairmen of the Supreme Court
20.
In the third alternative proposed judgment the petitioner also
presented, with detailed justification, proposals to annul individual
provisions of the abovementioned statues, stating that it did not
connect them to the issue of applying a comprehensive amending proposal.
This alternative is substantially the same as the second alternative.
Specifically, in this case the petitioner contests these provisions and
particular sections of them. In the Act on Courts and Judges, it
contests as unconstitutional the fact that the amendment of the Act on
Courts and Judges introduced an indefinite number of vice chairmen of
the Supreme Court, expressed in the words “of vice chairmen” in § 15
par. 1, § 23 par. 1 and in § 102 par. 2, the words “vice chairmen” § 15
par. 2 and in § 121 par. 2, the words “vice chairmen in § 102 par. 1 and
in § 168 and the words “vice chairmen of the Supreme Court” in § 119
par. 2 in the Act on Courts and Judges. Those provisions read:
Ҥ 15
(1) The Supreme Court consists of the chairman of the court, vice chairmen of the court, chairmen of grand panels, chairmen of panels, and other judges.
(1) The Supreme Court consists of the chairman of the court, vice chairmen of the court, chairmen of grand panels, chairmen of panels, and other judges.
(2) The decision-making
activity of the Supreme Court is performed by judges. The chairman and
vice chairmen of the Supreme Court, in addition to the decision-making
activity, also perform state administration of the Supreme Court in the
scope provided by this Act. The chairmen of grand panels, in addition to
the decision-making activity, also organize and direct the activity of
the grand panels. The chairmen of panels, in addition to decision-making
activity, also organize and direct the activity of the panels.
§ 23 par. 1
(1) The plenum of the Supreme Court consists of the chairmen, vice chairmen, chairmen of grand panels, chairmen of panels, and other judges of the Supreme Court.
(1) The plenum of the Supreme Court consists of the chairmen, vice chairmen, chairmen of grand panels, chairmen of panels, and other judges of the Supreme Court.
§ 102 par. 1 and 2
(1) The chairman and vice chairmen of the Supreme Court are appointed from the ranks of judges by the President of the Republic.
(1) The chairman and vice chairmen of the Supreme Court are appointed from the ranks of judges by the President of the Republic.
(2) the term of office of the chairman and vice chairmen of the Supreme Court is 10 years.
§ 119 par. 2
Bodies of state administration of courts
(2) the bodies of state administration of courts are the chairman and vice chairmen of the Supreme Court, the chairman and vice chairman of the Supreme Administrative Court, and the chairmen and vice chairmen of high, regional, and district courts.
Bodies of state administration of courts
(2) the bodies of state administration of courts are the chairman and vice chairmen of the Supreme Court, the chairman and vice chairman of the Supreme Administrative Court, and the chairmen and vice chairmen of high, regional, and district courts.
§ 121 par. 2
(2) The vice chairmen of the Supreme Court and vice chairmen of high courts perform state administration of these courts in the scope determined by their chairmen.
(2) The vice chairmen of the Supreme Court and vice chairmen of high courts perform state administration of these courts in the scope determined by their chairmen.
§ 168
The chairman of the Supreme Court handles complaints that contain complaints of delays in proceedings, inappropriate conduct or violation of the dignity of a proceeding by a vice chairman of a court, chairman of a panel, judge, judge’s assistant, and other employees of the Supreme Court or by the chairman of a high court.”.
The chairman of the Supreme Court handles complaints that contain complaints of delays in proceedings, inappropriate conduct or violation of the dignity of a proceeding by a vice chairman of a court, chairman of a panel, judge, judge’s assistant, and other employees of the Supreme Court or by the chairman of a high court.”.
21.
The petitioner objects that this change is tied to an alleged
inconsistency between the Act (the singular “vice chairman”) and Art. 62
let. f) of the Constitution (the plural “vice chairmen”). In the
petitioner’s opinion, there was no inconsistency here, because the Act
on Courts and Judges, based on authorization in Art. 91 par. 2 of the
Constitution, regulated the organization structure of the Supreme Court
so that, for substantive reasons, it only provided justification for one
vice chairman position, which is anyway traditional in this country. In
the period from 1918 to 1952 a court of final appeal typically had a
chairman with one deputy. In the following period there was a chairman
and several deputies who were deputies by virtue of holding the office
of chairmen of grand panels (“expert vice chairmen”); this continued
basically until 1988. It was disrupted at the level of the federal
Supreme Court by the re-establishment (addition) of the position of vice
chairman in response to the federalization of Czechoslovakia as of 1
January 1970. After 1988 there was a return to a situation similar to
the first period, i.e. the offices of chairman and vice chairman. The
combination of several vice chairmen and chairmen of grand panels thus
departs from tradition and would have to be thoroughly justified:
however, it is not justified at all. Moreover, this change led to
stopping the proceeding in the matter of a petition from the President
of the Republic, file no. Pl. ÚS 17/07 (a resolution not published in
the Collection of Decisions, but available at http://nalus.usoud.cz) directed precisely at this inconsistency.
22.
According to the petitioner, the legislature could certainly regulate
the organizational structure of the Supreme Court differently, but it
must do so in a way that is constitutionally correct. Here, however,
there is no justification for the need for additional vice chairmen of
the Supreme Court, but what is mainly overlooked is the fact that the
relationship between statutes and the Constitution is based on making
general provisions specific, not on mechanically adopting them, which,
in this case, also has significant constitutional consequences. The
legislature chose an indefinite wording because – unlike the Act on the
Constitutional Court – it did not set the exact number of vice chairmen.
Whereas with other general courts the number of vice chairmen is
limited by the court chairman’s proposal, here this is left to the
discretion of the appointing body, i.e. the President. This opened up
the possibility for the executive branch, personified by the president,
to interfere quite inappropriately and arbitrarily in the situation at
the Supreme Court. The President is responsible for the activities of
the Supreme Court, and is now given authority to appoint an indefinite
number of vice chairmen, whereby he can change the position of the
chairwoman of the Supreme Court, the Court’s management model, burden
the Court’s budget with financial and other substantive claims from the
new vice chairmen, etc. He can create career expectations among the
Supreme Court judges, which may not be without an effect on their
decision making.
23.
Therefore, according to the petitioner, this legal framework is
inconsistent with the principles of a democratic, rule of law state as
regards the requirements that laws be certain and that laws clearly
define the authority of a state body, as contained in Art. 1 par. 1 and
Art. 2 par. 3 of the Constitution and Art. 2 par. 2 of the Charter of
Fundamental Rights and Freedoms (the “Charter”). It also pointed to
Constitutional Court judgments, e.g. no. 88/2008 Coll. – judgment file
no. Pl. ÚS 24/07 of 31 January 2008 (N 26/48 SbNU 303), and no. 198/2003
Coll. – judgment file no. Pl. ÚS 11/02 of 11 June 2003 (N 87/30 SbNU
309). Setting and indefinite number of vice chairmen of the
Constitutional Court is also inconsistent with the constitutionally
enshrined prohibition on arbitrariness and chance (Art. 1, Art. 2 par. 3
of the Constitution and Art. 2 par. 2 of the Charter), and ultimately
can also weaken the separation of powers.
II.d
Unconstitutionality of Introducing a Term of Office for the Chairmen and Vice-Chairmen of Courts
Unconstitutionality of Introducing a Term of Office for the Chairmen and Vice-Chairmen of Courts
24.
The petitioner also considered unconstitutional the introduction of
terms of office for chairmen and vice chairmen of courts in § 102 par.
2, § 103 par. 2, § 104 par. 2, § 105 par. 2, and § 108 par. 2 of the Act
on Courts and Judges. Those provisions read:
Ҥ 102 par. 2
(2) The term of office of the chairman and vice chairmen of the Supreme Court is 10 years.
(2) The term of office of the chairman and vice chairmen of the Supreme Court is 10 years.
§ 103 par. 2
(2) The term of office of the chairman and vice chairman of a high court is 7 years.
(2) The term of office of the chairman and vice chairman of a high court is 7 years.
§ 104 par. 2
(2) The term of office of the chairman and vice chairman of a regional court is 7 years.
(2) The term of office of the chairman and vice chairman of a regional court is 7 years.
§ 105 par. 2
(2) The term of office of the chairman and vice chairman of a district court is 7 years.
(2) The term of office of the chairman and vice chairman of a district court is 7 years.
§ 108 par. 2
(2) The office of chairman or vice chairman of a court under § 102 to 105 also ends upon expiration of the term of office.”.
(2) The office of chairman or vice chairman of a court under § 102 to 105 also ends upon expiration of the term of office.”.
25.
As regards the introduction of terms of office for chairmen and vice
chairmen of courts, as the petitioner expressly states, it has a
“feeling” that an important aim and purpose of the contested Act is to
circumvent the case law of the Constitutional Court in the matter of the
independence of courts [in particular, judgment file no. Pl. ÚS 7/02 of
18 June 2002 (N 78/26 SbNU 273; 349/2002 Coll.) and judgment file no.
Pl. ÚS 18/06 of 11 July 2006 (N 130/42 SbNU 13; 397/2006 Coll.)] and to
limit the principle of an independent judiciary that is expressly stated
in Art. 81 and 82 of the Constitution and Art. 36 of the Charter. Here
it pointed to the conclusions in judgment file no. Pl. ÚS 7/02 (no.
349/2002 Coll.), justifying annulment of the then effective § 106 par. 1
of the Act on Courts and Judges, among other things by reference to the
career progression of a judge and the possibility of being recalled
from office only for reasons provided by law and through a disciplinary
proceeding, which observes the independence of the judiciary, the
principle of undisturbed exercise of a personal, independent, judicial
mandate, and the separation of powers, although it is otherwise up to
the legislature how to govern the exercise of court administration. The
petitioner then summarized the conclusions of the Constitutional Court
in judgment file no. Pl. ÚS 18/06 regarding the possibility of recalling
the chairman of the Supreme Court, in which it stated that the office
of court chairman, as well as the chairman of the Supreme Court, is
inseparable from the office of a judge, because it is not possible to
construct a duality in the legal status of the chairman of a court as a
state administration official on the one hand, and a judge on the other
hand; however, a statue may provide exceptions to the rule that a judge
is not subject to recall from office, in particular on grounds of
disciplinary liability. Thus, the legal regulation of recalling chairmen
and vice chairmen of courts must also respect the constitutional
principles of separation of powers, judicial independence, etc. Thus,
one cannot establish any model for the recall of court unless it
reflects constitutional values.
26.
On that basis, the petitioner concludes that the contested legal
framework basically circumvents this binding legal opinion of the
Constitutional Court, because, instead of the model of recalling a court
official, it introduces a new model of naming a court official for a
definite period, with unlimited discretion on the part of the executive
branch to name the same person to the same office repeatedly. It argues
in more detail based on a concern about “management burnout” of
officials who have been in office for perhaps twenty years or more. In
this regard it points to a statistical study prepared by the
documentation and analysis department of the Supreme Administrative
Court, which indicates that as of 30 April 2008 there were 12 such
officials, out of a total of 271. The statistics indicate that over 68 %
of all court officials, i.e. more than two thirds, do not hold office
for more than ten years, and one third of them were appointed in the
last five years. The highest number of judicial officials (almost two
thirds) is in an age group around or just under 50 years. Therefore, it
is a question whether such a marginal share of judicial officials
serving for a long period could be sufficient grounds for such serious
legislative interference. It must be pointed out that these officials
were not recalled by previous ministers, even at a time when that was
very easy to do (in view of the lack of relevant Constitutional Court
case law at the time). The petitioner also stated that what may be
tolerated in the decision-making of a collegiate body that includes
judicial representation should not be tolerated in the decision-making
of political bodies in the executive branch.
27.
The petitioner also argues on the basis of the specific agenda that
court officials are responsible for. The legislature is not supposed to
tailor the demands on court officials to administrative needs, but is
supposed to derive from the necessary guarantees of the independence of
judges and judicial officials the volume and nature of the tasks that
they can perform. A court official is a judge, a single person, whose
consciousness cannot, under ordinary circumstances, be divided.
Therefore, it is necessary, in the interest of judicial independence, to
also accord certain attributes of independence to a court official, and
that is why he should, if the situation arises be removed from office
only by the decision of an independent and impartial body. The Act
accepts a disciplinary proceeding as a path toward recalling court
officials, only to immediately devalue it by specifying another reason
when the office terminates, expiration of the term of office, which,
according to the petitioner, can also be considered to violate Art. 89
par. 2 of the Constitution. Therefore, the petitioner emphasized that if
repeat appointment with a virtually empty set of criteria is permitted
simultaneously, this creates a risk of influencing the behavior of
judges who wish to stay in office and are nearing the end of their term
of office. The petitioner is aware that the Constitutional Court cannot
force the legislature to establish a judicial representation body.
However, it can clearly define what limitations the lack of such a body
has in the creation of the judicial power. The petitioner supported
these conclusions with examples from other countries with a model of
judicial self-government or with an executive model like that of the
Czech Republic (Austria, Germany), where, however, appointments are for
an indefinite period of time. It also pointed out that in Anglo-American
countries executive appointment of a court official for an indefinite
period is the rule; moreover, Anglo-American theory does not at all
distinguish between the position of a judge and that of a court
official.
II.e
Unconstitutionality of Repeat Appointment of Court Officials
Unconstitutionality of Repeat Appointment of Court Officials
28.
The petitioner made another claim of unconstitutionality concerning
introduction of the possibility of repeat appointment of the chairmen
and vice chairmen of courts. That provision reads:
Ҥ 105a
The court chairman and vice chairman under § 102 to 105 may be appointed to office repeatedly if
The court chairman and vice chairman under § 102 to 105 may be appointed to office repeatedly if
(a)
during the period of holding office as chairman or vice chairman he was
not found liable for a disciplinary offense committed during the
exercise of that office, or
(b) during the period of holding office he was not convicted with legal effect of a crime.”.
(b) during the period of holding office he was not convicted with legal effect of a crime.”.
29.
The petitioner justified the proposal on the grounds that, in its
opinion, the possibility of repeat appointment of the chairman or vice
chairman of a court is inconsistent with the independence of courts and
judges. This is especially true in view of how the criteria for repeat
appointment are, or are not, formulated; it is evident from them that
aspects that are no expressed in the Act will necessarily dominate.
Because the role of those who appoint court officials is held by
(political) executive bodies, and not, e.g., a body that also includes
judicial representation, this creates an area of uncertainty regarding
how a court official, who is also a judge, will act in the effort to
obtain a repeat appointment. This uncertainty can certainly be seen as
conflicting with the requirements of the European Court of Human Rights,
that a judge not only be independent and impartial, but also be seen to
be so. The sensitivity of this issue is further intensified by
preserving judicial internships at the Ministry of Justice, which are
newly extended for a period of up to three years (see the arguments in
II.b). The Minister of Justice could appoint, or nominate for
appointment, judges who have been working long-term outside the courts,
who identified with the ministry, or even with a particular minister,
whom they served as civil servants. Some of the statements by the
Minister of Justice about internships as criteria for a “career as an
official” make these concerns current. Thus, similarly to the
Constitutional Court’s judgment on electoral reform, this involves –
among other things – the cumulative negative effect of individual
provisions of the Act.
30.
The petitioner sees another problem of repeat appointment in the
transfer of some appointment authority from the Minister of Justice to
the President of the Republic, who is not in any way equipped to follow
the activities of judicial officials, so he will either limit himself to
approving the minister’s nomination, or, within his discretion, apply
criteria that are more political. In comparison, in other European
countries there is no doubt that the possibility of repeat appointment
of a court official applies only where the deciding authority is held by
a body that represents the courts, not an executive body; moreover, we
find this institution only in the former communist countries, not in
western Europe.
II.f
Unconstitutionality of Transition Provisions for the Introduction of a Term of Office for Chairmen and Vice Chairmen of High, Regional, and District courts
Unconstitutionality of Transition Provisions for the Introduction of a Term of Office for Chairmen and Vice Chairmen of High, Regional, and District courts
31.
In this part of the petition the petitioner contests independent
transitional provisions for the introduction of a term of office for
chairmen and vice chairmen of high, regional, and district courts in
points 4, 5, 6, 7, 8, 9, 10 and 11 of Art. II in Part One of Act no.
314/2008 Coll. The contested provisions of Art. II, points 4, 5, 6, 7,
8, 9, 10 and 11 of Act no. 314/2008 Coll. read:
“Art. II
Transitional Provisions
4. The term of office of chairmen and vice chairmen of high, regional, and district courts who were appointed to their office in 1989 and earlier terminates 1 year after the day that this Act goes into effect.
Transitional Provisions
4. The term of office of chairmen and vice chairmen of high, regional, and district courts who were appointed to their office in 1989 and earlier terminates 1 year after the day that this Act goes into effect.
5.
The term of office of chairmen and vice chairmen of high, regional, and
district courts who were appointed to their office in 1990, terminates 2
years after the day that this Act goes into effect.
6.
The term of office of chairmen and vice chairmen of high, regional, and
district courts who were appointed to their office in 1991 to 1994,
terminates 3 year after the day that this Act goes into effect.
7.
The term of office of chairmen and vice chairmen of high, regional, and
district courts who were appointed to their office in 1995 to 1998,
terminates 4 years after the day that this Act goes into effect.
8.
The term of office of chairmen and vice chairmen of high, regional, and
district courts who were appointed to their office in 1999 and 2000,
terminates 5 years after the day that this Act goes into effect.
9.
The term of office of chairmen and vice chairmen of high, regional, and
district courts who were appointed to their office in 2001 and 2002,
terminates 6 years after the day that this Act goes into effect.
10. The term of office of chairmen and vice chairmen of high, regional, and district courts who were appointed to their office in 2003 to 2007 and in 2008 before the day that this Act goes into effect, terminates 7 years after the day that this Act goes into effect.
10. The term of office of chairmen and vice chairmen of high, regional, and district courts who were appointed to their office in 2003 to 2007 and in 2008 before the day that this Act goes into effect, terminates 7 years after the day that this Act goes into effect.
11.
The term of office of the chairman and vice chairman of the Supreme
Court terminates 5 years after the day that this Act goes into effect.”.
32.
The petitioner sees the transitional provisions for the introduction of
a term of office for chairmen and vice chairmen of high, regional, and
district courts as unconstitutional because they set the end of the term
of office for individual current court officials, for a period shorter
than the entire term of office that the Act newly provides for these
officials. This regulation interferes in the independence of the
judicial branch, and is a clear case of false retroactivity, which is
undesirable because it tramples on the legitimate expectations of these
officials. In the event that the Constitutional Court does not grant the
proposal to annul the terms of office, the petitioner stated that
perhaps a constitutional alternative would be to complete the full term
of office provided by the Act, calculated from the date the Act goes
into effect, without the possibility of shortening this term of office
arbitrarily in the transitional provisions of the Act. It emphasized
this using the example of the chairwoman of the Supreme Court, whose
office is to expire in five years, while that of the chairman of the
Supreme Administrative Court, appointed less than a year later, would
expire in ten years. The petitioner considers this to be an example of
legislative arbitrariness in the form of a violation of the principle of
formal justice (legal equality), decision-making by the legislature in
individual matters, and a violation of the right to equal access to
public office under Art. 21 par. 4 of the Charter.
II.g
Unconstitutionality of Transitional Provisions for the Introduction of a Term of Office for the Chairman and Vice Chairman of the Supreme Administrative Court
Unconstitutionality of Transitional Provisions for the Introduction of a Term of Office for the Chairman and Vice Chairman of the Supreme Administrative Court
33.
For similar reasons as in II.d and II.e the petitioner seeks annulment
of the amended provisions of § 13 par. 3 and § 13a of Act no. 150/2002
Coll., the Administrative Procedure Code, as amended by Act no. 314/2008
Coll. (there Art. III, points 2 and 3), which also introduces a term of
office for the chairman and vice chairman of the Supreme Administrative
Court and the possibility of repeat appointment of them. In this case
the petitioner does not contest the transitional provision of Art. IV of
Act no. 314/2008 Coll., which provides that the term of office of the
chairman and vice chairman of the Supreme Administrative Court
terminates 10 years after the day that that Act goes into effect. The
contested provisions read:
§ 13 par. 3
“(3) The term of office of the chairman and vice chairman of the Supreme Administrative Court is 10 years.”.
“(3) The term of office of the chairman and vice chairman of the Supreme Administrative Court is 10 years.”.
Ҥ 13a
The chairman or vice chairman of the Supreme Administrative Court may be appointed to office repeatedly if
The chairman or vice chairman of the Supreme Administrative Court may be appointed to office repeatedly if
(a)
during the period of holding office as chairman or vice chairman he was
not found liable for a disciplinary offense committed during the
exercise of that office, or
(b) during the period of holding office he was not convicted with legal effect of a crime.”.
(b) during the period of holding office he was not convicted with legal effect of a crime.”.
III.
Statements from the Parties to the Proceeding
34.
Upon being called to do so by the Constitutional Court, both parties to
the proceeding submitted statements. The statement on behalf of the
Chamber of Deputies of the Parliament of the Czech Republic was made on
12 July 2007 by its Chairman, Ing. Miloslav Vlček, who, regardless of
the fact that the petitioner contests one of the fundamental procedural
steps in the legislative process, did not in fact take a position on the
petition. He merely stated that the bill was approved in the
constitutionally prescribed manner at a parliamentary session on 23 June
2008, in vote no. 242; out of 155 deputies present, 109 were in favor
of the bill, and 8 against. After being passed by the Senate the bill
was signed by the president and duly promulgated.
35.
The Senate Chairman, MUDr. Přemysl Sobotka, made an extensive statement
on its behalf, where he first recapitulated the contents of the bill.
He provided more details about the discussion of the bill in the Senate,
where the Minister of Justice, J. Pospíšil, supported both the original
government bill and the amended text that came from the Chamber of
Deputies. The report from Senator J. Rippelová contained a fundamental
objection concerning the manner of discussing the bill in the Chamber of
Deputies in the form of a comprehensive amending proposal. There was
lively discussion of the bill in the constitutional law committee of the
Senate, with the abundant participation of guests (e.g. JUDr. Josef
Baxa, Chairman of the Supreme Administrative Court, JUDr. Iva Brožová,
Chairwoman of the Supreme Court, representatives of the Judges Union of
the Czech Republic, and others). The Senate Permanent committee for the
Constitution of the Czech Republic and Parliamentary Procedure also
consider the bill, reaching conclusions on which, according to the
Chairman of the Senate, the petitioner partly bases its arguments. On 16
July 2008 the bill was discussed by the Senate. Out of 54 senators
present, 35 senators were in favor, and 12 were against. The Chairman of
the Senate also provided more information on the content of the
discussion on the bill, and pointed out the problem of the complicated
proposal to annul it, which mixes aspects of procedural and substantive
unconstitutionality (see point II.a and point II.b). He also pointed out
that the procedural concept of unconstitutionality, transformed in the
middle alternative (designated here as II.b) of the proposed judgment
into a “substantive law expression,” would, in the event of annulment,
lead to undesirable and meaningless gaps in the statutory text, as well
as to the overlooking of Art. IV of Act no. 314/2008 Coll. in the last
alternative proposal. The Chairman of the senate left the decision up to
the Constitutional Court.
IV.
Formal Prerequisites for Reviewing the Petition and the Constitutionality of the Legislative Procedure
Formal Prerequisites for Reviewing the Petition and the Constitutionality of the Legislative Procedure
36.
The Constitutional Court concluded that the petition was submitted
under § 64 par. 1 let. b) of the Act on the Constitutional Court, by a
group of 21 senators, and is formally consistent with the requirements
of the Act on the Constitutional Court. In proceedings on annulling a
legal regulation, it is the Constitutional Court’s duty to first review
whether the legal regulation concerned was approved within the bounds of
Constitutionally provided competence and in a constitutionally
prescribed manner (§ 68 par. 2 of the Act on the Constitutional Court).
37.
First it was necessary to review the requirements of a proceeding under
§ 66 and 67 of the Act on the Constitutional Court. The Act on Courts
and Judges was amended in the meantime, by Act no. 7/2009 Coll., which
amends Act no. 99/1963 Coll., the Civil Procedure Code, as amended by
later regulations, and other related Acts, and by Act no. 41/2009 Coll.,
Amending Certain Acts in Connection with the Adoption of the Criminal
Code; however, these statutes did not affect the provision the
constitutionality of which is the subject of this proceeding. Likewise,
the petition is not affected by amendments of the Act on Courts and
Judges implemented by Acts no. 217/2009 Coll. (affecting § 42) and no.
227/2009 Coll. (§ 175a). The same is true of the amendment of the
Administrative Procedure Code by Act no. 7/2009 Coll. (§ 41, 45, 49 and
55) and no. 320/2009 Coll. (§ 89 par. 5) and by Constitutional Act no.
195/2009 Coll. (annulled).
38.
The fundamental question, in terms of meeting the requirements of
legislative procedure, was the alternative proposed judgment in the
petition cited above in II.a. If the Constitutional Court reached the
same conclusion as the petitioner, there would be no further need to
continue the proceeding, and the petition would be resolved here by
annulling Act no. 314/2008 Coll. The same would apply for the second
alternative proposed judgment (also in II.a) in the event that this
manner of making an amendment were deemed to be not violation of the
constitutionally prescribed manner of adoption, but as a substantive
conflict with the constitutional order. Regarding these arguments of the
petitioner, the Constitutional Court states that in this part both
proposals, in the form of the first and second alternative proposed
judgments, are unjustified.
39.
Regarding the extensive arguments presented by the petitioner in II.a
(points 4 to 14), the Constitutional Court states that it has already
several times handled a petition seeking the annulment of a statute, the
basis of which was a comprehensive amending proposal or an amending
proposal [in particular judgment no. 88/2008 Coll. (see above), and,
e.g., judgment no. 257/2008 Coll. – judgment file no. Pl. ÚS 56/05 of 27
March 2008 (N 60/48 SbNU 873), no. 163/2009 Coll. – judgment file no.
Pl. ÚS 42/08 of 21 April 2009, and most recently, no. 9/2010 Coll. –
judgment file no. Pl. ÚS 17/09 of 1 December 2009]. It never concluded
that this practice was inconsistent with the constitutional laws of
parliamentary law [and it expressly stated, e.g. in judgment no.
160/2008 Coll. – judgment file no. Pl. ÚS 25/07 of 13 March 2008 (N
56/48 SbNU 791), that the adoption and promulgation of the contested Act
no. 181/2007 Coll., on the Institute for the Study of Totalitarian
Regimes and on the Archive of the Security Services, and Amending
Certain Acts, took place in the prescribed manner (similarly, judgment
no. 163/2009)]. In contrast, in judgment III. ÚS 455/08 of 10 March 2009
the Constitutional Court took guidance in interpreting a legal
regulation precisely the part that had been inserted in it as part of a
comprehensive amending proposal. Likewise, in judgment no. 37/2007 Coll.
(see above), in this regard the Constitutional Court only pointed out,
with reference to an opinion given in the specialized literature
(Kysela, J.: Tvorba práva v ČR: truchlohra se šťastným koncem?,
[Formation of the Law in the CR: Tragedy with a Happy Ending?] Právní
zpravodaj [Legal Reporter] no. 7/2006), that with comprehensive amending
proposals the government should insist on its right to respond to a
bill under Art. 44 of the Constitution, because this is in fact a
disguised new legislative initiative. In this case, however, it is
evident that the proposal was initiated by the government, which
authorized the Minister of Justice to represent it during the discussion
of the bill amending the Act on Courts and Judges. It is not the job or
the competence of the Constitutional Court to review every detail and
step in the adoption of statutes, if it does not conflict with the
constitutional rules of the legislative process (see judgment no.
331/2005 Coll. – see above). It likewise did not find this in the case
of the comprehensive amending proposal that the Senate used in its
discussion [judgment no. 207/2003 Coll. – judgment file no. Pl. ÚS 14/02
of 4 June 2003 (N 82/30 SbNU 263 Coll.)]. The objection concerning the
use of a comprehensive amending proposal in judgment no. 88/2008 Coll.
(see above) was applied only as a dissenting opinion. Likewise, the fact
that this part of the petition lacks a justification that meets the
requirements of § 86 par. 3 of the Act on the Rules of Procedure of the
Chamber of Deputies does not in and of itself make a statute thus
discussed and approved unconstitutional. The petitioner does, in this
part, point to current problems in the legislative process, but they do
not reach the level of being unconstitutional.
40.
So-called “comprehensive amending proposals” have been part of
regulatory law in the Czech Republic for some time. Laws, including
constitutional ones, are passed based on such proposals. So far, the
Constitutional Court has had no reason to cast doubt on this procedure,
either in a case when it came at the initiative of a certain committee
in the Chamber of Deputies in discussing government bills (the usual
case), or in a case where it actually came from the government, which
sought thereby to eliminate the adverse effects of deputies’ bills [see
judgment no. 257/2008 Coll. (see above) in connection with the amendment
of the Commercial Code implemented by Act no. 216/2005 Coll., and
Syllová, J. and collective of authors: Parlament České republiky [The
Parliament of the Czech Republic] 2nd ed. Prague 2008, p. 237]. The
rules of procedure of the Chamber of Deputies do not recognize a
comprehensive amending proposal. However, this is one of the
institutions of parliamentary practice that is within the bounds of the
constitutional order, when a bill is discussed on the basis of the
legislative initiative of a bill sponsor authorized under Art. 41 par. 2
of the Constitution (here, publication no. 425/0), but the basis for
discussion is precisely a comprehensive amending proposal (here,
publication no. 425/1) from the appropriate chamber committee (here it
was the constitutional law committee). However, that does not mean that a
subject with the right of legislative initiative ceases to be the
“master of the bill,” because it is still his legislative initiative.
Therefore, only it has the authority of disposal with the bill (even
though in the form of a comprehensive amending proposal), and can
withdraw it without anything further, until the end of debate in the
second reading in which his legislative initiative is discussed on the
basis of the comprehensive amending proposal (§ 64 in connection with §
86 par. 6 of Act no. 90/1995 Coll., on the Rules of Procedure of the
Chamber of Deputies), and, with the consent of the Chamber of Deputies,
even in the third reading.
41.
Therefore, the comprehensive amending proposal in the form of
publication no. 425/1 was still only an amending proposal under § 63
par. 1 point 5 let. a) of the rules of procedure of the Chamber of
Deputies. Therefore, as the sponsor of the bill, the government also had
the opportunity to proceed under § 63 par. 2 of the rules of procedure
and propose suspension of the matter under discussion, or if rejected,
to withdraw it under § 64 of the rules of procedure. In this case the
government did not take these steps; on the contrary, its representative
supported the bill in discussion in the Chamber of Deputies and
defended it in the Senate. The fact that the minister representing the
government declared during the second reading of the bill, on 18 June
2008, that he could “state on behalf of the Ministry of Justice, that we
agree with this additions,” changes nothing about the fact that this
concerned a government bill and the position of the government
representative. Therefore, the Constitutional Court does not consider
this procedure to generally violate the rules for the constitutionally
prescribed process of passing laws, nor to be substantively inconsistent
with the constitutional order in the specific case of approval of
publication no. 425/0 in the Chamber of Deputies. A different procedure
would in the end mean that the Constitutional Court, just as in the case
of “riders” (judgment no. 37/2007 Coll. – see above), would establish
pro futuro an obligation ex offo to review every petition under Art. 87
par. 1 let. a) of the Constitution also in terms of whether the reviewed
statute was not adopted on the basis of a comprehensive amending
proposal (the first alternative proposed judgment – in 4) and whether,
in that case, the regulatory rights of the sponsor of the bill were
preserved, perhaps ad hoc (the second alternative proposed judgment – in
5), whether it contains a sufficiently long justification. This
procedure does not represent such unconstitutional interference. Here
the Constitutional Court points out that two key components of the
constitutional order were approved on the basis of a comprehensive
amending proposal – the Charter, in 1991, and the Constitution, in 1992.
42.
Therefore, this part of the petition was denied as unjustified. In
addition, for the sake of completeness, the Constitutional Court must
state that when an objection of unconstitutional procedure in approving
statutes is raised, the principle cited by the petitioner, minimizing
interference, is applied so that in such a case no decision is made
concerning the content of the statute [cf. judgments no. 30/1998 Coll. –
judgment file no. Pl. ÚS 33/97 of 17 December 1997 (N 163/9 SbNU 399),
no. 476/2002 Coll. – judgment file no. Pl. ÚS 5/02 of 2 October 2002 (N
117/28 SbNU 25) and no. 283/2005 Coll. – judgment file no. Pl. ÚS 13/05
of 22 June 2005 (N 127/37 SbNU 593) and resolution file no. Pl. ÚS 5/98
of 22 April 1999 (U 32/14 SbNU 309)]. So the combination of proposed
judgments in II.a in the form that the bill would be partly
constitutional or would not be partly unconstitutional is not at all
possible. Therefore, the Constitutional Court cannot, in such a case,
choose what it will or will not review, because that is a matter to be
decided in the chambers of Parliament. Here the Constitutional Court
(see judgment no. 331/2005 Coll. – see above) must limit itself to
observing the constitutional rules of the legislative process and to
evaluating the results of Parliamentary decisions when they have been
observed. If the rules of procedure of the parliamentary chamber
preserve the status of a bill’s proponent as the master of the bill,
there is generally no room for the Constitutional Court to intervene.
Therefore, it cannot be the task of the Constitutional Court, under § 68
par. 2 of the Act on the Constitutional Court, to obligatorily submit
every bill to the abovementioned review, which would go beyond the
limits of procedural and would mean substantive review. Here too the
rule applies that when implementing its policies the government must
watch out for its rights. Therefore, it is also not correct, e.g., for
such actions by the former government to be subsequently questioned in
the following electoral period.
43.
Therefore, this part of the petition was denied as unjustified, from
the standpoint of both levels of argument, i.e. procedural and
substantive, as they were presented by the petitioner (in II.a).
V.
Evaluation of the Constitutionality of Individual Provisions Affected by the Petition
Evaluation of the Constitutionality of Individual Provisions Affected by the Petition
44.
On that basis, the Constitutional Court reviewed the remaining part of
the petition in points II.b to II.g, both in terms of the contested
provision itself and in terms of the arguments connected to it.
Therefore, it took as its basis the third proposed judgment in the
petition, as in this case it is not important that the petitioner did
not, in the complicated alternatives, also propose annulment of the
transitional provision of Art. IV of Act no. 314/2008 Coll., because if
this proposal were granted (introducing a term of office for the
chairman of the Supreme Administrative Court) it would on the one hand
by itself cease to make sense, and on the other hand it does not suffer
the defects criticized in the other contested provisions, as the problem
with Art. IV of Act no. 314/2008 Coll. lay only in the process of its
adoption (the comprehensive amending proposal).
45.
The Constitutional Court states generally, that in its position, it can
review only the contested provisions of the Act on Courts and Judges
and of Act no. 314/2008 Coll., not the set of all legal arrangements for
the status of judges and court officials on one side and the bodies of
the legislative branch, or, in particular, the executive branch (the
President, the government, the Ministry of Justice, the Ministry of
Finance), on the other side. The role of the Constitutional Court is to
review the contested provisions, not to develop deliberations de lege
ferenda and seek appropriate legislative solutions where the
constitutional order gives that discretion to the legislature.
Therefore, there are other possible solutions on the basis of judicial
self-administration, but the Constitution does not require such
solutions, and it is not possible to evaluate a contested legal
framework from that point of view, nor to contest it on that basis.
Likewise, it was not possible to go back to the historical context of
court administration in connection with the federal organization (the
non-existence of a federal ministry of justice in the Czechoslovak
Federation, in contrast to most federations, and therefore also the
different position of the Supreme Court, outside the reach of the
ministries of justice of the two republics). Finally, we must emphasize
that the petitioner bases its arguments on the functioning of the
“negative cumulative effect” (point 29) of individual provisions in the
amendment of the Act on Courts and Judges. It sees the
interconnectedness of the individual amended regulations as interference
in the independence of judges. In this connection, the Constitutional
Court must point out that its doctrine [in particular, judgments no.
64/2001 Coll. – judgment file no. Pl. ÚS 42/2000 of 24 January 2001 (N
16/21 SbNU 113), no. 349/2002 Coll. (see above) and no. 318/2009 Coll. –
judgment file no. Pl. ÚS 27/09 of 10 September 2009] can strengthen the
reasoning of the petitioner’s position in those areas where all the
constitutional defects raised by it are currently found. In the event
that doubt is cast on the weight of the individual objections in some of
the contested provisions, then their effect on other provisions also
declines, and they may then pass a test of constitutionality. Finally,
the Constitutional Court must emphasize that it had to limit itself to
objections directed against specific provisions of the Act on Courts and
Judges, without being able to apply its conclusions to other frameworks
introduced into the Act after the promulgation of judgment file no. Pl.
ÚS 7/02 (no. 349/2002 Coll.) – see above.
V.a
Constitutionality of Assigning a Judge to the Ministry of Justice under § 68 par. 1, § 68 par. 2 let. b) of the Act on Courts and Judges
Constitutionality of Assigning a Judge to the Ministry of Justice under § 68 par. 1, § 68 par. 2 let. b) of the Act on Courts and Judges
46.
As the first two questions, the Constitutional Court reviewed the
justification of the petition for the annulment of the words “the
ministry or” in § 68 par. 1 and in § 68 par. 2 let. b) of the Act on
Courts and Judges, and also § 100a of the Act on Courts and Judges
(point II.b). These provisions are part of Act no. 314/2008 Coll. (see
its points 4, 5 and 28), although they were already in the original text
of the government bill, not in the comprehensive amending proposal, so
they are not subject to the criticisms raised in the alternative
proposed judgments in point II.a. On this point, the Constitutional
Court concluded that the petition is justified only in part. It was
guided by the following deliberations.
47.
Proposal II.b has two independent parts. The first part proposes
annulling the possibility of assigning a judge to the Ministry of
Justice in the interest of utilizing his experience; the assignment is
decided by the Minister of Justice with the consent of the judge, and
after discussion with the chairman of the court to which the judge is
assigned under § 67 or transferred § 71 and 72 of the Act on Courts and
Judges. For purposes of evaluating the constitutional aspect of the
matter, it is of fundamental importance here that judgment file no. Pl.
ÚS 7/02 (no. 349/2002 Coll.) annulled the words “the Ministry or” in §
68 par. 1 of the Act on Courts and Judges, in the wording in effect at
the time, as unconstitutional, due to conflict with Art. 82 par. 3 of
the Constitution. Act no. 192/2003 Coll. in point 11, returned the
annulled words “the Ministry or” back into § 68 par. 1, as well as (in
point 20) into § 99 par. 1 let. c), where this provision had also been
annulled by the cited judgment. The Constitutional Court notes that § 68
par. 4 of the Act on Courts and Judges likewise expects the assignment
of judges to the Ministry of Justice. However, that provision was not
contested, either in the proceeding in file no. Pl. ÚS 7/02, or in the
present matter. In the cited judgment (no. 349/2002 Coll.) the
Constitutional Court concluded that an immanent feature of the office of
a judge is its continuous nature. Therefore, membership in the
consulting bodies of a ministry, the government, and both chambers of
Parliament, just like performing the tasks of these various components
of the state power, is inconsistent with the principle of the separation
of powers, not to mention the fact that personal and extra-judicial
ties, which arise during such activity, unavoidably increase the
probability of possible conflicts of interest, and, and thus render
impartiality, in the form of judicial lack of bias, subject to doubt. In
the current wording of the Act on Courts and Judges this
unconstitutional situation was further underscored by the fact that the
period of assignment was now extended to up to three years, in contrast
to the possibility of assignment for a period of up to one year in the
annulled § 68 par. 1 of the Act on Courts and Judges, as in effect until
1 July 2003, when that provision was annulled by judgment no. 349/2002
Coll. The requirement of continuous exercise of judicial office is cast
in doubt even more thereby, and, on the contrary, the objection of
connection with the executive branch becomes even more serious.
Moreover, this must be seen in connection with the fact that the process
of preparation, selection, and assignment of judges in the Czech
Republic, compared with states with a developed judicial
self-administration, is in the hands of the executive branch, in
particular the Ministry of Justice. The Constitutional Court is aware
that this practice is also possible in other countries (France, Sweden,
Germany, Italy, Poland, Slovakia, Austria), but to review this issue it
is necessary to look at the specific context in the Czech Republic and
the role of the Ministry of Justice in the preparation of judges for
office and their career progression, just as to the length of transfer
and the activities of transferred judges at other state bodies in other
countries. Therefore, the Constitutional Court maintains its legal
opinion in judgment Pl. ÚS 7/02 (č. 349/2002 Coll.) and continues to
consider assignment of judges to fulfill tasks in other branches of
state power to be in conflict with Art. 82 par. 3 of the Constitution,
and, in view of the fact that the Constitutional Court has already
expressed this legal opinion (judgment Pl. ÚS 7/02), also with Art. 89
par. 2 of the Constitution; in this regard it also agrees with the
petitioner’s reminder about the requirement to preserve the “external”
or objective independence of a judge, who should appear thus not only to
the parties to a proceeding, but also to the public.
48.
It is impossible not to see that in this regard § 99 par. 3 of the Act
on Courts and Judges provides that, during a period of temporary removal
from office for purposes of assignment to the Ministry of Justice, a
judge is entitled to the pay and other benefits connected with holding
the office of judge under a special regulation, which is Act no.
236/1995 Coll., on the Pay and Other Benefits Connected with the
Exercise of Office of State Representatives and Certain state Bodies and
Judges, and Member of the European Parliament, as amended by later
regulations, not under the Labor Code. In its case law, the
Constitutional Court has several times emphasized the reasons why it is
necessary to provide judges protection from withdrawal of pay or other
benefits connected with holding judicial office [most recently in
proceedings conducted as file no. Pl. ÚS 24/07 – judgment of 31 January
2008 (N 26/48 SbNU 303; 88/2008 Coll.), file no. Pl. ÚS 1/08 – judgment
of 20 May 2008 (N 91/49 SbNU 273; 251/2008 Coll.), file no. Pl. ÚS 2/08 –
judgment of 23 April 2008 (N 73/49 SbNU 85; 166/2008 Coll.) and file
no. Pl. ÚS 13/08 – judgment of 2 March 2010 (104/2010 Coll.)]. In this
case, however, these reasons cannot apply, because the judicial power
cannot be exercised in a body of central state administration, so an
inequality necessarily arises in the remuneration of the employees of
such a body on the basis of § 110 of the Labor Code and the judges
assigned on the basis of Act no. 236/1995 Coll., although in that case
they are not performing judicial roles and, moreover, are temporary
removed from the exercise of the judicial office under § 99 par. 1 let.
c) of the Act on Courts and Judges.
49.
Annulment of the words “the ministry or” in § 68 par. 2 let. b) of the
Act on Courts and Judges is only a consequence of their annulment in §
68 par 1. As already stated, assigning a judge to the Ministry of
Justice is also regulated in § 68 par. 4 and § 99 par. 1 let. c) of the
Act on Courts and Judges. These provisions were not contested by the
petitioner, but after annulling the abovementioned provisions they
become pointless, because the hypothesis in them “if he was temporarily
assigned to the ministry” can no longer be met, as a result of annulment
of the words “the ministry or” in § 68 par. 1 of the Act on Courts and
Judges.
V.b
Constitutionality of Temporary Removal from Office (§ 100a of the Act on Courts and Judges)
Constitutionality of Temporary Removal from Office (§ 100a of the Act on Courts and Judges)
50.
The second part of proposal II.b contests the authority of the Minister
of Justice to temporarily remove a judge from the office of chairman or
vice chairman of a court on the grounds that a disciplinary proceeding
has been opened against him under § 100a of the Act on Courts and Judges
(see the petitioner’s arguments under 18 and 19). Regarding this, the
Constitutional Court states that under § 8 par. 3 let. b) of Act no.
7/2002 Coll., on Proceedings in Matters Concerning Judges, Public
Prosecutors, and Court Executors on Proceedings in Matters Concerning
Judges, Public Prosecutors, and Court Executors, as amended by later
regulations, a proposal to open a disciplinary proceeding on the
disciplinary liability of a chairman or vice chairman of a court may be
filed by the Minister of Justice against any chairman or vice chairman
of a court. In connection with this provision, Act no. 314/2008 Coll.
inserted into the Act on Courts and Judges § 100a, which expands the
scope for discretion of the Minister of Justice when deciding to
temporarily remove a judge from office by adding the possibility of
temporarily removal from the office of chairman or vice chairman. The
petitioner asks that this provision be annulled in its entirety,
although its arguments, per their content, are aimed only against the
grounds for possible (not mandatory) removal from the office of a
chairman or vice chairman of a court under § 100a par. 1 let. b) of the
Act on Courts and Judges.
51.
Under this provision the Minister of Justice may temporarily remove
from office a chairman or vice chairman of a court if he is subject to a
disciplinary proceeding for a disciplinary transgression, for which the
disciplinary complaint proposes imposing the disciplinary measure of
recall from the office of a judge or recall from the office of chairman
or vice chairman of a court; the removal is for the period until the
disciplinary proceeding is completed with legal effect. It is this
reason that the petitioner expressly contests and against which it
exclusively directs its arguments, without mentioning in the proposal
another possible reason under § 100a par. 1 let. a) of the Act on Courts
and Judges. This other possible reason involves a situation which is
also anticipated by the cited act, i.e. a situation under § 100 par. 1
let. a), where the chairman or vice chairman of a court is subject to
criminal prosecution, or a situation under § 100 par. 1 let. c), that
is, if proceedings were opened against him on grounds stated in § 91 of
the Act on Courts and Judges concerning his lack of competence to hold
the office of judge; the period is until that proceeding is completed
with legal effect. However, the petitioner does not state any reasons
for annulling this part of the contested § 100a of the Act on Courts and
Judges.
52.
Because it is proposed to annul § 100a of the Act on Courts and Judges
as a whole, the Constitutional Court nevertheless considers it necessary
to state, regarding this part of the contested provision, that these
cases involve situations that the Minister of Justice cannot himself
bring about or induce through his actions. Criminal prosecution results
from a decision by a body active in criminal proceedings, together with
the preliminary consent of the President (§ 76 par. 1 of the Act on
Courts and Judges). The provision of § 91 of the Act on Courts and
Judges involves situations that also arise from reasons other than
possible arbitrary actions by the Minister of Justice, and their
application includes an opportunity for the judge affected to protect
himself. The provision of § 91 of the Act on Courts and Judges involves
primarily a situation where a judge is not competent to hold judicial
office, when long-term ill health does not permit it. It also involves
situations where a judge was convicted with legal effect of a crime, and
the conviction was not grounds for the termination of the judicial
office under § 94 let. c), if the nature of the crime of which the judge
was convicted casts doubt on the credibility of his continuing in
judicial office, or, in the 5 years before a petition to open
proceedings on the competence of the judge to hold office, the judge was
found guilty of a disciplinary offense at least three times, if that
fact casts doubt on the credibility of his continuing in office (the
“three strikes – you’re out” principle). Therefore, the Constitutional
Court denied this part of the petition as unjustified, as it did not
find violation of the constitutional order in the legal framework
itself, which, however, does not rule out the possibility that such
violation could happen as a result of arbitrary application or misuse of
the provision in a particular proceeding.
53.
Thus, the petitioner in fact directs this part of the petition only
against § 100a par. 1 let. b) of the amended Act on Courts and Judges.
In view of this, the Constitutional Court focused on reviewing whether
this authority of the Minister of Justice can be considered an
instrument that can be misused against the independent exercise of the
judicial power, in particular if the minister is a plaintiff in a
disciplinary proceeding who himself proposes the appropriate penalty
under § 8 par. 3 let. b) of Act no. 7/2002 Coll., on Proceedings in
Matters Concerning Judges, Public Prosecutors, and Court Executors , as
amended by later regulations. Therefore, it was necessary to review
whether the regulation itself is unconstitutional, or whether it is not
yet unconstitutional but can, in a particular case, lead to
unconstitutional interference in the independence of courts, or whether,
at an abstract level, it does not allow a constitutionally conforming
interpretation.
54.
Here the petitioner, first of all, objects to a rather vague
formulation of the elements of disciplinary offence. However, in this
regard we must emphasize that it did not propose annulment of the
appropriate provision of § 87 par. 2 and § 88 par. 2 of the Act on
Courts and Judges, without at least mentioning these provisions. Thus,
the petitioner did not itself provide more detail on its objections.
Therefore the Constitutional Court considers it necessary to state that
the elements of disciplinary offence by an official under § 87 par. 2 of
the Act on Courts and Judges, i.e., “culpable violation of duties
connected to the office,” must be interpreted in connection with the
definition of the duties of court officials, as required by Art. 91 par.
2 of the Constitution, and that it can be evaluated primarily in
connection with a particular case.
55.
In support of its claim the petitioner further stated that the
Minister, as the disciplinary plaintiff, sets the requirements for
himself, as the representative of the central bodies of state
administration of the courts, to temporarily remove a court official
from his office. The same Minister will also have to arrange the interim
administration of the court, which can thus change considerably until
the time that the disciplinary court issues a not guilty verdict. This
interferes in the independence of judges and courts, and the separation
of powers, and opens up the possibility of arbitrariness and chance in
the state administration of the judiciary. The petitioner sees the
fundamental institutional defect of the contested § 100a of the Act on
Courts and Judges not in the individual reasons for temporary removal
from office (see point 56), but in the inadequate legal protection, in
comparison with the temporary removal from office of a judge, when it is
possible to file objections with the disciplinary court (cr. § 100 par.
4 of the Act). Thus, in all the cases governed by § 100a, irreversible
facts can arise during temporary removal from office, through the
interference by an executive branch body. Yet, limiting temporary
removal only to the office of a court official indicates that this is
not meant to involve gravely serious offences, so the risk that the
office will be held by an unsuitable person becomes less distinct in
comparison with the threat to independence. Therefore, the petitioner
considers sufficient the possibility of temporarily removing from office
the chairman or vice chairman of a court as a result of expiration
suspension of the office of judge, and thereby also of a court official
(an accessory function to the judicial office), and therefore proposes
annulling the entire § 100a of the Act on Courts and Judges. If the
legislature is not of the same opinion, it should regulate the temporary
removal from the office of a chairman or vice chairman of a court in a
manner that is comparable, as regards legal protection, with the
protection afforded a judge from temporary removal from office.
56.
In this regard the Constitutional Court agreed with that part of the
petitioner’s objections that is directed against the missing remedy
against temporary removal from the office of chairman or vice chairman
of a court. Here the Constitutional Court holds the opinion that was
explained in detail in judgment file no. Pl. 18/06 (no. 397/2006 Coll. –
see above), and under which it is not possible to construct a duality
in the legal position of the chairman of a court as an official of state
administration, on one hand, and a judge, on the other hand. This is
still one and the same person, in whom the actions of both offices are
joined. This must apply not only to the manner of recalling court
officials, but also temporary removal of them from office. Such a
framework must also respect the constitutional principles of the
separation of powers and the independence of the judicial branch, i.e.,
in this case the chairman or vice chairman of a court must have an
opportunity to appeal for protection from interference in his public,
constitutionally guaranteed, subjective right, but also protection from
interference by the executive branch in the judicial branch in the
manner permitted by § 100a par. 1 let. b) of the Act on Courts and
Judges, all the more so that the exercise of such interference is within
the discretion of the Minister of Justice, both in terms of filing a
petition for a disciplinary proceeding before the supreme Administrative
Court, and in terms of temporary removal from office. Therefore, the
means for protection of court officials must be comparable with the
means for protection of a judge. Until that happens, § 100a par. 1 let.
b) of the Act on Courts and Judges, seen in the context of the other
provisions, is inconsistent with the constitutional principle of the
separation of powers and the independence of the judicial branch from
interference by the executive branch.
V.c
Constitutionality of an Indefinite Number of Vice Chairmen of the Supreme Court
Constitutionality of an Indefinite Number of Vice Chairmen of the Supreme Court
57.
The petitioner also contests (in II.c) the indefinite number of vice
chairmen of the Supreme Court expressed in the words “vice chairmen” in §
15 par. 1, § 23 par. 1, and § 102 par. 2, the words “vice chairmen” in §
15 par. 2 and § 121 par. 2, the words “vice chairmen” in § 102 par. 1
and § 168, and the words “vice chairmen of the Supreme Court” in § 119
par. 2 in the Act on Courts and Judges. Thus, the amended wording of the
Act on Courts and Judges basically replaces the singular term “vice
chairman” with the term “vice chairmen” in various grammatical cases.
The petitioner points out (in detail, in 22n.), that this change is not
provided justification, except for the claimed conflict with Art. 62
let. f) of the Constitution, which uses the plural, while the Act on
Courts and Judges uses the singular. According to the petitioner, an
unconstitutional situation arises because with other general courts the
chairman of the court, by his proposal, limits the number of vice
chairmen, but with the Supreme Court this is left to the discretion of
the appointing body, i.e. the president. This opened up space for the
executive branch for quite inappropriate and arbitrary interference into
the situation on the Supreme Court. This is underscored by the fact
that the president is not responsible for the activities of the Supreme
Court; however, he is now given the authority to appoint an indefinite
number of vice chairmen, whereby he can change the position of the
chairman of the Supreme Court and the management model for the court,
burden the court’s budget with the financial and other material
entitlements of the new vice chairmen, and, moreover, this situation can
raise career expectations among the regular judges of the Supreme
Court, which need not be free of effects on their decision making.
58.
In the Constitutional Court’s opinion, the use of the singular or
plural in a legal regulation does not by itself definitely determine how
many persons it may affect, if that is not evident from the nature of
the matter (cf. also Art. 40 par. 4 of the Legislative Rules of the
Government). Therefore, even the express use of the plural in the
Constitution, without anything further, would not rule out the existence
of only one vice chairman, or require the appointment of a higher
number of vice chairmen. The same applies for the use of the plural in
an ordinary statute. In this case, however, the insertion of the plural
into the cited provisions of the Act on Courts and Judges must be seen
as the intent of the legislature, which is meant to enable the president
to appoint a higher number of vice chairmen of the Supreme Court. The
legislature thereby used the authorization given to it by Art. 91 par. 2
of the Constitution, under which it is within the competence of the
regular legislature to specify the organization of the courts, and at
the same time it thereby removed external differences in the text of
Art. 62 let. f) of the Constitution and the text of the Act on Courts
and Judges before the adoption of Act no. 314/2008 Coll. Therefore, in
this regard the Constitutional Court could not agree with the
petitioner’s objections about the inconsistency between the Act on
Courts and Judges and the Constitution. Of course, just as until now the
appointment of only one vice chairman was not inconsistent with the
Constitution, so such a situation will not be inconsistent with it even
after amendment of the Act on Courts and Judges.
59.
However, the foregoing does not mean that the legislature, just like
the appointing body, i.e. the President, has free discretion. When
ruling on the position and role of the judicial branch, the
Constitutional Court has emphasized several times that one cannot
emphasize only a linguistic interpretation. The position of the
President in relation to the judicial branch (including his powers of
appointment) must be interpreted in terms of the rules of the separation
of powers and the need to ensure the independent exercise of the
judiciary. Therefore, the President must respect the fundamental
constitutional bases for the regulation of the position, organization,
and functioning of the court system as a whole, not only from the point
of view of Art. 62 let. f) and Art. 91 par. 2 of the Constitution.
Therefore, in this regard, there is a question as to whether the
legislature did not have a constitutional obligation to also set a
definite number of vice chairmen (as, e.g., in § 1 of the Act on the
Constitutional Court). That would of course mean that the President
cannot appoint only one vice chairman, even if the statute permits
appointing a greater number. The actual number of vice chairmen of the
Supreme Court cannot determine whether the judicial branch is
independent. However, it may have an effect on that, in view of the
factual circumstances surrounding an appointment. In particular,
however, the issue is whether, as in the case of authorizing the
chairmen of other courts, it was not necessary to tie the appointment of
vice chairmen to a proposal by the chairman of the Supreme Court. The
danger to the principle of an independent judicial branch would be
reduced in a situation where § 70 of the Act on Courts and Judges could
be understood as consent, not only with appointment to hold the office
of judge, but also with appointment to an office (here, vice chairman)
at the Supreme Court. However, that is not the case, so in this regard
the chairman of the Supreme Court is in a different position that that
held by the chairmen of high, regional, and district courts when
managing the activities of their courts under § 103 to 105 of the Act on
Courts and Judges.
60.
Thus, the contested provision is not inconsistent with the
constitutional order because, under the Constitution, the Supreme Court
could not have more than one vice chairman, but because this process
creates room for interference in the functioning of this court, as the
highest court, by the executive branch, without the presence of any
balancing as is the case in § 70 of the Act on Courts and Judges. In
that case it is the task of the Constitutional Court to remove in
advance the very possibility that such problems could arise, even though
it is possible that in practice, on the basis of the Constitutional
Court’s existing case law [cf. judgment file no. Pl. ÚS 17/06 of 12
December 2006 (N 222/43 SbNU 457), file no. Pl. ÚS 18/06 (see above),
and especially judgment file no. Pl. ÚS 87/06 of 12 September 2007 (N
139/46 SbNU 313)] no problem will arise in this regard. This is all the
more valid because in comparison with the chairmen of other courts the
position of the chairman of the Supreme Court is unusual, because the
Ministry of Justice conducts the management of the Supreme Court through
the chairman (§ 120 par. 2 of the Act on Courts and Judges), not
directly, and because the vice chairmen of the Supreme Court perform
state administration of the Supreme Court in a scope determined in
advance (§ 121 par. 2 of the Act). Further, in view of the possible
number of vice chairmen of the Supreme Court, it is necessary to
emphasize that there are also chairmen of the collegiums of the Supreme
Court, appointed by its chairmen (§ 18 and § 102 par. 3 of the Act on
Courts and Judges). Therefore, in future, the indefinite number of vice
chairmen can create a situation where the performance of judicial
activity by the Supreme Court could be interfered with on the basis of
this provision. It is all the more significant that there is no body of
judicial self-government in the Czech Republic comparable with foreign
models, that makes decisions in personnel matters in the judiciary, and
that the chairman of the Supreme Court here is not in the same position
as in the case of appointing a judge to the Supreme Court. However, in
terms of the maxim of minimizing interference, the Constitutional Court
concluded that it is not necessary to annul all the provisions contested
by the petition that contain the plural of the term “vice chairman of
the Supreme Court,” but that it is possible to limit its intervention to
the legal basis for appointment contained in § 102 par. 1 of the Act on
Courts and Judges. It was guided by these reasons.
61.
In this regard, the Constitutional Court is aware that its previous
case law [in particular judgment file no. Pl. ÚS 87/06 of 12 September
2007 (N 139/46 SbNU 313)] addresses the requirement of preserving the
guarantees of judicial independence only partially, when it determines
constitutional limits for designating a judge who can be named as a vice
chairman. In the Constitutional Court’s opinion, it follows from the
position of a vice chairman of the Supreme Court, as well from the
content of his office, that he must first become a judge of that court,
in order to be able to perform state administration of it. Therefore,
the Constitutional Court ruled out the possibility that the President’s
authority to appointment vice chairmen of the Supreme Court would
include, and as a result replace, any stage of the process of appointing
a judge, i.e. including the phase of a judge being assigned to the
Supreme Court by the Minister of Justice, after the prior consent of the
chairman of the Supreme Court, because this is an authority in relation
to the officials of the Supreme Court. Therefore, the Constitutional
Court state the legal opinion that the authority of the President to
appointment a vice chairman of the Supreme Court does not include, and
thus also does not replace, any stage in the process of appointing a
judge of this court, because that could lead to circumvention of the
competence of other state bodies (the Minister of Justice, the chairman
of the Supreme Court). However, because, in contrast to the appointment
process for vice chairmen of other courts (§ 103 par. 1, § 104 par. 1, §
105 par. 1), in the case of appointment to the Supreme Court § 102 par.
1 of the Act on Courts and Judges does not contain sufficient
guarantees of the independence of the judicial branch, in terms of
participation of the council of judges of the Supreme Court, or,
especially, in terms of the chairman of the court, it was necessary to
annul that part of the cited provision that creates the conditions for
such possible interference in the independence of the judicial branch.
It is the task of the Constitutional Court to remove that possibility.
Because the possible threats lie not in the number of vice chairmen
itself (it is not up to the Constitutional Court to specify it either),
but in the listed defects in the process of appointing vice chairmen to
the Supreme Court, as enshrined in § 102 par. 1 of the Act on Courts and
Judges, the Constitutional Court limited itself to annulling that part
of the provision. The petitioner did only ask for annulment of the words
“vice chairmen.” However, because that would lead to a confusing
wording of § 102 par. 1 of the Act on Courts and Judges, it was decided
to annul the words “and the vice chairmen.” It will be the task of the
legislature to regulate (until such time as bodies of judicial
self-administration are created that are not merely advisory) the
process of appointing vice chairmen of the Supreme Court in such a
manner that the independence of the judicial branch in this area cannot
be cast in doubt or interfered with. For that, the Constitutional Court
used its ability to postpone the effectiveness of a judgment, and, under
§ 58 par. 1 of the Act on the Constitutional Court, did so, by
postponing it for approximately one year after promulgation of the
judgment in the Collection of Laws. At the same time, we must respect
the President’s sole discretion appointment authority, which means that
appointment could be contingent on consent only if a constitutional
regulation entrusted that authority to some body. Thus, the
constitutional principle of an independent judiciary does not permit
limiting this constitutional prerogative of the president through an
ordinary statute requiring the consent of another state body. It is
necessary to take into account the fact that including the President’s
appointment authority among the powers in his sole discretion is not
guided by the legislature’s attempt to strengthen the president’s role,
but to strengthen the independence of the judiciary by removing from the
appointment process (and even more so the recall process) – see
judgment file no. Pl. ÚS 18/06 and the government’s participation in the
recall of the chairwoman of the Supreme Court – political influence in
the form of decision making by the government, which, moreover, is
responsible for such decisions to Parliament under Art. 63 par. 4 and
Art. 68 par. 1 of the Constitution. The Constitutional Court emphasizes
that it does not consider the literal copying of the wording in the
Constitution in Art. 62 let. f) – the plural used with the vice chairmen
of the Supreme Court – into an ordinary statute to be sufficiently
certain. Without casting doubt on the President’s sole discretion in his
appointment authority regarding vice chairmen of the Constitutional
Court, this does not mean that the President has the authority to
determine their number. This defect can be removed by, e.g. setting the
number of vice chairmen of the Supreme Court by statute, under Art. 91
par. 2 of the Constitution, or by a framework analogous with the
appointment of vice chairmen in district, regional, and high courts.
V.d
Constitutionality of Introducing a Term of Office for Chairmen and Vice Chairmen of Courts
Constitutionality of Introducing a Term of Office for Chairmen and Vice Chairmen of Courts
62.
The petitioner also contested the introduction of terms of office for
chairmen and vice chairmen of district, regional and high courts and the
Supreme Court in § 102 par. 2, § 103 par. 2, § 104 par. 2, § 105 par.
2, § 108 par. 2 of the Act on Courts and Judges. The petitioner’s
arguments (for detail see points 25 to 27) is based on the fact that it
“has a feeling” that this is an attempt to circumvent the case law the
case law of the Constitutional Court (in particular judgments file no.
Pl. ÚS 7/02 and file no. Pl. ÚS 18/06 – both, see above) and to limit
the principle of the independence of the judiciary expressly stated in
Art. 81 and 82 of the Constitution and Art. 36 of the Charter. The
Petitioner stated, among other things, that what could be tolerated in a
collegiate decision-making body that includes judges should not be
tolerated in the decision making of the political bodies of the
executive branch. Therefore, in the interest of judicial independence,
it is necessary to accord certain attributes of independence to a court
official who may be removed from office only by the decision of an
independent and impartial body. The Act accepts disciplinary proceedings
as a means of appeal for court officials, only to immediately devaluate
it by setting further reasons when an office terminates, which,
according to the petitioner, can also be considered to violate Art. 89
par. 2 of the Constitution. It emphasized that if repeat appointment
with a virtually empty set of criteria is currently allowed, that
creates the risk of influencing the behavior of judges who want to
continue in office and who are approaching the end of their term of
office.
63.
The Constitutional Court, did not agree with these arguments, and
denied this part of the petition as unjustified. The petitioner's
arguments are based on a different legal situation and so nor
consistently distinguish between removal from office due to a
disciplinary offence (penalty) and the termination of an office due to
the passage of time. Unlike an indefinite appointment of a judge in Art.
93 par. 1, the Constitution does not provide such a condition for
holding the office of chairman or vice chairman of a court, and with the
exception of the courts of final appeal, does not even expressly
mention such offices. Thus, insofar as the legislature decided to
introduce a term of office, this can be subject to the review of the
Constitutional Court only in terms of possible interference in other
constitutionally enshrined principles of organization and activities of
the courts, because the very principle of time-limited performance of
certain offices is not in itself inconsistent with the principle of
separation of powers (rather, it is a concrete instance of it),
particularly if it does not directly concern the exercise of the
judicial function itself. Therefore, the time limit on the performance
of state administration of courts (even by a judge) need not be
unconstitutional. It should be emphasized, however, that appointment for
a limited period of time must be (as in other cases) indirectly
proportional to the increased requirements for early recall from a
temporary office. The shorter the term of office, the greater
requirements must be placed on the possibility of early removal from
office. However, the Constitutional Court has dealt with this aspect of
the matter in another context (points 53 to 56). In the Constitutional
Court’s opinion, the proportionality of setting the length of a term of
office corresponds to the fact that, in the case of chairmen and vice
chairmen, court officials are appointed to office by the executive
branch, not by a vote by the judicial self-government of (in such cases
in other countries the term of office is shorter).
64.
Another constitutional safeguard is the period for which the
appointment is made. In this respect the specified term of office of 10
years chairmen and vice chairmen of Supreme Courts and 7 years for
chairmen and vice chairmen of other courts is comparable to that of
officials of other bodies or institutions (the Banking Council of the
Czech National Bank, 6 years; the president and vice president of the
Supreme Audit Office, 9 years) to whom the Constitution guarantees an
independent status. The term of office also exceeds the term of the
appointing authority, so the executive branch does not in this way
create “its own” set of officials. Thus, the petitioner's arguments are
directed to questions of the possibility of recalling a court official
[in particular, judgment file no. Pl. ÚS 18/06 (no. 397/2006 Coll.) -
see above], not to the issue of the constitutionality of setting a fixed
term of office. Likewise, this case, unlike the case of assignment of
judge to the Ministry of Justice under § 68 par. 1, § 68 par. 2 let. b)
of the Act on Courts and Judges (in V.a) does not involve violation of
Art. 89, par. 2 of the Constitution, because the Constitutional Court
has not yet addressed the merits of the introduction of a term of office
for court officials. Arguments based on the practice of other
countries, states, especially from Anglo-Saxon law, cannot be relevant
here, in view of the requirements for appointment, and in view of the
usual age of persons appointed as judges or court officials. It is also
not the task of the Constitutional Court to review whether there is a
problem "managerial burnout" or not, or how many officials there are,
and how long they have or have not been in in office.
V.e
Constitutionality of the possibility of repeat appointment of chairmen and vice chairmen of courts
Constitutionality of the possibility of repeat appointment of chairmen and vice chairmen of courts
65.
In this point, the Constitutional Court agreed with the proposal in
point II.e, i.e. the challenge to the possibility of repeat appointment
of chairmen and vice chairmen of courts in § 105a of the Act on Courts
and Judges, which the petitioner considers to be interference in the
independence of judges and courts in view of the formulation of the
criteria for repeat appointment (more detail in points 29 and 30). The
arguments that the petitioner presents here consist of the inadequate
framework for the criteria for repeat appointment. Of course, these
criteria, provided in the contested § 105a of the Act on Courts and
Judges, i.e. holding the office of chairman or vice chairman without
having committed a disciplinary offence, and without having been
convicted with legal effect of a crime, cannot by themselves be
considered a threat to the independence of the judicial branch. In this
regard, they cannot be criticized in terms of protection of
constitutionality, because in this regard a decision is not the result
of the free discretion of the executive branch, which could be a
possible instrument of interference. In the Constitutional Court’s
opinion, the problem is the very possibility of repeat appointment,
which can lead court officials to act in a way that would meet the
requirements for their repeat appointment, or can lead to their
individual actions, including their decision making (court officials are
primarily judges), to be seen and assessed that way by the outside
world. Given the lack of a system of checks and balances on the
executive branch for its exclusive decision-making powers in personnel
matters, this possibility cannot be ruled out. Therefore, in a
proceeding on abstract review of contested norms, the Constitutional
Court must take it into account, because the statutory framework must
not create conditions for the emergence of personnel corruption, which
would threaten the constitutionally required independence and
impartiality of judges. Possible unconstitutional situations in such a
serious sphere need to be eliminated in advance. In this respect the
consultative role that the Act on Courts and Judges assigns to judicial
councils in § 51 par. 1 let. a), § 52 par. 1 let. a), and § 53 par. 1
let. a) is an insufficient guarantee. In the case of chairmen and vice
chairmen of supreme courts, even that possibility is not provided for.
The Constitutional Court emphasizes that in a proceeding on the abstract
review of the constitutionality of norms it review the contested legal
framework in terms of its potential to endanger the constitutional
imperative to preserve the independence and impartiality of a judge,
i.e., it does not review the particular behavior of several hundred
judges who are involved in court administration at a particular moment.
From this perspective the derogated framework is also capable of raising
external doubts about court proceedings.
66.
The petitioner also challenges the transfer of some of the appointment
authority from the Minister of Justice to the President, who is not in
any way equipped to monitor the activities of judicial officials. Of
course, this can hardly serve as a reason for the Constitutional Court
to declare such a transfer unconstitutional in the case of high and
regional courts, given that these authorities are enshrined in the
Constitution. In addition, it must be noted here that appointing these
officials does not fall within the scope of the sole discretionary
powers of the president under Art. 62 of the Constitution, but under
Art. 63 par. 3 of the Constitution in connection with Art. 91 par. 2 of
the Constitution. Finally, as in other contexts, it must be noted that
the President’s appointment authority must be seen in the context of the
principles of the organization and functioning of the judicial branch
enshrined in the Constitution. Regarding the petitioner’s objection that
the sensitivity of this topic is intensified by preserving judicial
internships at the Ministry of Justice, it must be noted that when this
judgment goes into effect that objection will become pointless.
V.f
Constitutionality of Transition Provisions for Implementing Terms of Office of Chairmen and Vice Chairmen of courts
Constitutionality of Transition Provisions for Implementing Terms of Office of Chairmen and Vice Chairmen of courts
67.
The petitioner also contests the transitional provisions in points 4,
5, 6, 7, 8, 9, 10 and 11 in Art. II in Part One of Act no. 314/2008
Coll. for the implementation of terms of office of chairmen of courts,
which are shorter than the newly established terms of office of the
relevant officials. Here the Constitutional court can only state that a
transition period in itself cannot be unconstitutional, unless it is
disproportional to the term of office. Such lack of proportion was not
found in view of the proportion of 19 years in office and a 1 year
transitional period for officials appointed up to 1989, 18 years in
office and a 2 year transitional period for officials appointed in 1990,
14 to 17 years in office and a 3 year transitional period for officials
appointed from 1991 to 1994, 10 to 13 years in office and a 4 year
transitional period for officials appointed from 1995 to 1998, 8 to 9
years in office and a 5 year transitional period for officials appointed
from 1999 to 2000, 6 to 7 years in office and 6 year transitional
period for officials appointed from 2001 to 2002, and a transitional
period of the same length as the term of office for officials appointed
from 2003 until Act no. 314/2008 Coll. went into effect. Therefore, the
Constitutional Court denied as unjustified the proposal to annul the
transitional provisions to introduce terms of office of chairmen of
courts in points 4, 5, 6, 7, 8, 9 and 10 in Art. II in Part One of Act
no. 314/2008 Coll..
68.
As regards the transitional provision for introducing a term of office
for the chairman and vice chairmen of the Supreme Court in point 11 in
Art. II in Part One of Act no. 314/2008 Coll., the Constitutional Court
concluded that in the case of the chairman of the supreme Court this
disproportion appears to be serious , both in terms of time, i.e. the
ration of the specified transitional period to the length of the term of
office, and in relation to the vice chairman of the Supreme Court and
the chairman of the Supreme Administrative Court. Here the
Constitutional Court agrees with the petitioner’s arguments (point 32),
pointing to the circumstances of the case and the misuse of the
statutory form in the particular matter. Therefore, this provision was
annulled as unconstitutional, because, as a manifestation of
arbitrariness by the legislature, it interferes in the principles of a
law-based state under Art. 1 par. 1 of the Constitution. At the same
time, given the circumstances of the case, it is a violation of the
right to access to public office on equal terms under Art. 21 par. 4 of
the Charter. In view of the circumstances of the case, this is also an
impermissible covert form of an individual legal act directed against a
particular person, and therefore an attempt to interfere in the
independence of the judicial branch.
69.
Because derogation of the transition provision in point 11 in Art. II
in Part One of Act no. 314/2008 Coll. would establish inequality, as the
chairman and vice chairman of the Supreme Court would be the only two
officials in the entire court system whose term of office would remain
unlimited, i.e. to an inequality that could only with difficulty be
considered acceptable in constitutional law , the Constitutional Court
took advantage of the possibility of postponing the enforceability of
this verdict in the judgment, and, under § 58 par. 1 of the Act on the
Constitutional Court postponed it for approximately one year from the
promulgation of the judgment in the Collection of Laws. It will be the
task of the legislature to adopt a transitional provision governing the
term of office of existing officials of the Supreme Court in the same
manner as for officials of the Supreme Administrative Court.
V.g
Constitutionality of the Term of Office of the Chairman and Vice Chairman of the Supreme Administrative Court and the Possibility of their Repeat Appointment to Office
Constitutionality of the Term of Office of the Chairman and Vice Chairman of the Supreme Administrative Court and the Possibility of their Repeat Appointment to Office
70. The petitioner also,
without reasons analogous to the case of chairmen and vice chairmen of
district, regional, and high courts and the Supreme Court, seeks (in
point 33) annulment of the amended provisions of § 13 par. 3 and § 13a
of Act no. 150/2002 Coll., the Administrative Procedure Code, as amended
by Act no. 314/2008 Coll., i.e. the implementation of a term of office
of 10 let for the office of chairman of the Supreme Administrative Court
and the possibility of repeat appointment to that office. In that case,
however, the transitional provision of Art. IV of Act no. 314/2008
Coll. is not contested.
71.
In the case of the chairman and vice chairman of the Supreme
Administrative Court, the Constitutional Court concluded that this
proposal must share the fate of the analogous proposals in II.d and
II.e. Therefore, this proposal was denied as unjustified, for the same
reasons (see point 62n.), as regards introduction of a term of office
for officials of the Supreme Administrative Court. In contrast, for the
same reasons as in point 65, the proposal to annul § 13a of the
Administrative Procedure Code was granted. Overlooking Art. IV of Act
no. 314/2008 Coll., which is a transitional provision to § 13 par. 3 and
§ 13a of the Administrative Procedure Code, is meaningless in this
case, because, even if that did not happen, it would not be possible, in
light of what was stated in point 68, to decide otherwise, when both
the length of the term of office and the length of the transitional
period of 10 years are mutually proportional. Finally, in this case the
petitioner does not even contest the transitional period, because it
says that a constitutionally conforming possibility might be to exhaust
the entire term of office provided by statute, counted from the date
when the statute when into effect. In this case that requirement has
been met.
VI.
Conclusion
Conclusion
72.
In conclusion, the Constitutional Court summarizes that it found the
petition to be partly justified. Therefore, under § 70 par. 1 of the Act
on the Constitutional Court it acted to delete:
a)
the words “to the Ministry or” in § 68 par. 1, and the words “the
Ministry or” in § 68 par. 2 let. b) of Act no. 6/2002 Coll., due to
inconsistency with the constitutional principle of separation of powers
under Art. 2 par. 1 of the Constitution and the independence of the
judicial branch and impartiality of judges under Art. 81 and Art. 82
par. 1 and 3 of the Constitution, and due to inconsistency with Art. 89
par. 2 of the Constitution, under which enforceable decisions of the
Constitutional Court are binding on all bodies and persons,
b)
§ 100a par. 1 let. b) of Act no. 6/2002 Coll., due to inconsistency
with the constitutional principle of separation of powers under Art. 2
par. 1 of the Constitution and independence of the judicial branch under
Art. 81 and Art. 82 par. 1 of the Constitution, and due to
inconsistency with the constitutionally guaranteed right to equal access
to public office Art. 21 par. 4 of the Charter in connection with the
constitutionally guaranteed right to judicial review of the legality of a
decision by a public administration body under Art. 36 par. 2 of the
Charter,
c)
the words “and vice chairmen” in § 102 par. 1 of Act no. 6/2002 Coll.
due to inconsistency with the constitutional principles of certainty of
law and the prohibition of arbitrariness in the exercise of state power,
arising from the concept of a democratic state governed by the rule of
law under Art. 1 par. 1 of the Constitution, due to inconsistency with
the constitutional principle of separation of powers under Art. 2 par. 1
of the Constitution and independence of the judicial branch under Art.
81 and Art. 82 par. 1 of the Constitution, and due to inconsistency with
Art. 91 par. 2 of the Constitution, under which determining the
organization of the courts is within the competence of the legislature,
which must do so by statute,
d)
point 11 in Art. II of Act no. 314/2008 Coll. due to inconsistency with
the principles of a democratic state governed by the rule of law under
Art. 1 par. 1 of the Constitution, prohibiting the arbitrary exercise of
the state power and misuse of the form of a statute to adopt an
individual legal act against a particular person, due to inconsistency
with the constitutionally guaranteed right to equal access to public
office under Art. 21 par. 4 of the Charter, and due to inconsistency
with the constitutional principle of the independence of the judicial
branch under Art. 81 and Art. 82 par. 1 of the Constitution, and finally
e)
§ 105a of Act no. 6/2002 Coll. and § 13a of Act no. 150/2002 Coll. due
to inconsistency with the constitutional principle of separation of
powers under Art. 2 par. 1 of the Constitution and the independence of
the judicial branch and the impartiality of judges under Art. 81 and
Art. 82 par. 1 and 3 of the Constitution;
The
Constitutional Court postponed enforceability of the judgment, in the
case of deletion of the words “and the vice chairman” in § 102 par. 1,
of Act no. 6/2002 Coll. and point 11 in Art. II of Act no. 314/2008
Coll. under § 58 par. 1 of the Act on the Constitutional Court, for
approximately one year, in order to provide the legislature sufficient
time to adopt a constitutionally conforming legal framework and in order
to prevent serious consequences that would be associated with immediate
of these provisions. The Constitutional Court did not find the
remainder of the petition justified, and therefore denied it under § 70
par. 2 of the Act on the Constitutional Court.
_________________________________________________________________________________________________________________
Dissenting opinions to the decision of the plenum, under § 14 of Act no. 182/1993 Coll., on the Constitutional Court, as amended by later regulations, were filed by Judge Jan Musil, regarding the part of verdict I derogating the words “to the Ministry or” in § 68 par. 1 and in § 68 par. 2 let. b) of Act no. 6/2002 Coll., and regarding verdict IV, Judges Ivana Janů, Vladimír Kůrka and Pavel Rychetský regarding verdict IV, Judge Eliška Wagnerová regarding verdict V, and Judge Pavel Holländer regarding the reasoning for verdict IV.
1. Dissenting opinion of Judge Jan Musil to the part of verdict I deleting the words “to the Ministry or” in § 68 par. 1 and in § 68 par. 2 let. b) of Act no. 6/2002 Coll. and to verdict IV
I
disagree with the parts of verdict I and with verdict IV of the
judgment of the Plenum of the Constitutional Court of 6 October 2010
file no. Pl. ÚS 39/08, which, among other things, annulled the words “to
the Ministry or” in § 68 par. 1 and the words “to the Ministry or” in §
68 par. 2 let. b) and which annulled § 105a of Act no. 6/2002 Coll., on
Courts, Judges, Trainee Judges, and the State Administration of Courts
and Amending Certain Other Acts (the “Act on Courts and Judges”), as
amended by Act no. 314/2008 Coll., and § 13a of Act no. 150/2002 Coll.,
the Administrative Procedure Code, as amended by later regulations.
Under
§ 14 of Act no. 182/1993 Coll., on the Constitutional Court, as amended
by later regulations, I submit a dissenting opinion to these parts of
the judgment, with the following reasoning:
I.
Alleged Unconstitutionality of Temporary Assignment of a Judge to the
Ministry of Justice under § 68 par. 1, § 68 par. 2 let. b) of the Act on
Courts and Judges
1. The
annulling judgment justifies the unconstitutionality of temporary
assignment of a judge to the Ministry of Justice (in points 47 and 48 of
the reasoning of the judgment) with several arguments:
a)
inconsistency with the principle of separation of powers, which rules
out connecting the judicial branch with the executive branch
b) violation of the requirement that a judge be independent
c) violation of the requirement of “continuous exercise of the office of a judge”
d) inequality arising in the compensation of employees to the Ministry of Justice on one side, and assigned judges on the other side
e) failure to comply with the previous judgment of the Constitutional Court, file no. Pl. ÚS 7/02.
b) violation of the requirement that a judge be independent
c) violation of the requirement of “continuous exercise of the office of a judge”
d) inequality arising in the compensation of employees to the Ministry of Justice on one side, and assigned judges on the other side
e) failure to comply with the previous judgment of the Constitutional Court, file no. Pl. ÚS 7/02.
2.
I believe that the institution of temporary assignment of a judge to
the Ministry of Justice does not in any way violate the constitutional
principle of strict separation of the judicial branch and the executive
branch, the principle that a judge must be independent, or the principle
that the office of a judge is incompatible with an office in public
administration (Article 82 par. 1 and 3 of the Constitution). The
objections raised in the judgment, concerning the “connection of the
judicial branch with the executive branch” and “violation of the
requirement that a judge be independent” would certainly be relevant in a
situation where, during temporary assignment of a judge to the Ministry
of Justice the judge simultaneously exercised both powers, i.e., both
adjudicated cases and exercised administrative powers at the ministry.
Of course, nothing like that in fact happens. During temporary
assignment to the Ministry the performance of the judicial office is, in
fact, interrupted, and during that time the judge performs different
tasks at the ministry “in the interests of benefiting from his
experience” (§ 68 par. 1 of the Act on Courts and Judges).
3.
The hypothesis that a judge will be affected in his future judicial
activities (after the temporary assignment) by his previous activities
at the ministry is purely speculative – personal integrity and the
requirements imposed on the selection and activities of judges must
provide sufficient guarantees against such future influence. Following
the logic of that hypothesis, it would be necessary to strictly prevent
judges, before being appointed, from performing any activities in the
legislative branch or in administration, in order not to be
“contaminated” by it; the idea that a judge is some sort of “tabula
rasa” living outside the social reality is entirely illusory.
4.
In order not to burden this dissenting opinion with long and repetitive
interpretations, I wish, for reasons of brevity, to refer to the
arguments presented in the joint dissenting opinion of Judges Jiří
Malenovský, Vlastimil Ševčík, and Pavel Varvařovský in the matter file
no. Pl. ÚS 7/02, which concerned analogous issues. Those dissenting
judges stated, among other things, the following opinions (with which I
agree):
- With its derogative
changes the Constitutional Court’s decision demonstrates a concept of
judicial power freed from ties and specific relationships with both of
the other pillars of state power, including from such ties and
relationships as are not capable of evoking detriment to the
independence of courts and judges, and are thus not in conflict with the
principles of a state governed by the rule of law. The purpose of a
state governed by the rule of law is not, in our opinion, judicial power
immersed in itself and isolated from the other powers, but one
reasonably cooperating with the legislative and executive powers.”
-
“Therefore, a judge may not be forbidden any personal or extra-judicial
social ties which occur outside of a causal connection with his
decision-making. This also applies to the temporary assignment of a
judge to the Ministry or to his activity in advisory bodies to the
executive or legislative powers.”
-
“In any case, “assignment” to the Ministry in and of itself is
certainly not the exercise of an “office” in public administration. It
could possibly be in conflict with Art. 82 par. 3 of the Constitution,
if, during assignment, a judge assumed an “office’ in public
administration, i.e. if he independently performed the tasks of state
administration and if he were endowed for it with the appropriate
authorizations and activity. The temporary nature of the assignment,
temporary release from the exercise of the office of a judge, and the
judge’s consent to the assignment are adequate guarantees against
detriment to the independence or impartiality of judges. We consider it
undoubted that under the stated conditions the “actual independence” of a
judge … is ensured.”
- “Neither
the Constitution nor the principles of a state based on the rule of law
can be interpreted to rule out reasonable cooperation by the judicial
power with the executive or legislative powers, provided that during
this cooperation there is no pressure, inappropriate influence or other
interference toward the judge in connection with the exercise of his
decision-making activity ….”
5.
In point 47 the judgment invokes the requirement of “continuous
exercise of judicial office,” which was already expressed in judgment
file no. Pl. ÚS 7/02. I believe that such a requirement cannot be
derived from any constitutional regulation. Indeed, the Act on Judges (§
99) recognizes three reasons for temporary removal from judicial
office. One can surely also imagine a situation where the office of a
judge terminates (e.g. because of resignation – § 95), a person carries
out other activities for some time during his career , and is then again
appointed to be a judge – in our time, characterized by considerable
professional mobility, this is not necessarily an atypical case. In many
foreign countries changing between various legal professions during
one’s life is quite common (e.g. changing between the professions of
judge, state prosecutor, attorney, ministry official, university
professor, etc.) and is even considered beneficial for improving one’s
professional qualifications.
6.
In my opinion, the argument (in point 48 of the reasoning of the
judgment) pointing to the inequality arising in compensation between
employees of the Ministry of Justice on one side, and assigned judges on
the other side, has no constitutional law relevance. This situation can
be addressed by different means, at the level of sub-constitutional
norms, without having to annul the contested provision.
7.
Regarding the argument that the contested legal framework fails to
comply with the previous judgment of the Constitutional Court, file no.
Pl. ÚS 7/02, I state: The objections contained in that judgment in
relation to the institution of temporary assignment of a judge to the
Ministry at that time were tied to a different legislative framework
than that which exists today.
The
cited previous judgment, file no. Pl. ÚS 7/02, was adopted on 18 June
2002, i.e., eight years before the present judgment. Since then, the Act
on Courts and Judges was amended eight times. Although the amendments
to the Act concerned very diverse matters, I believe that some of them
were appropriate responses to the criticisms contained in judgment file
no. Pl. ÚS 7/02, concerning the Ministry’s excessive influence on the
functioning of the judicial system. Indeed, the very deletion of a
number of provisions from the Act on Courts and Judges by judgment file
no. Pl. ÚS 7/02 (e.g., the proceeding to review the professional
qualifications of judges) weakened the Ministry’s opportunities to
influence the functioning of the judicial system.
In
this new situation it was appropriate to reconsider whether the
institution of temporary assignment of a judge to the Ministry still has
sufficient weight to violate the constitutional principles of the
judiciary. Although I fully respect, of course, the constitutional
principle that decisions of the Constitutional Court are binding on all
bodies (Art. 89 par. 2 of the Constitution), I believe that, in view of
the changed context, the legislature did not violate this principle.
8.
The institution of temporary assignment of a judge to the Ministry is
completely standard in foreign legislative frameworks, where it does not
create any constitutional doubts or practical problems (e.g., in
Germany, France, Sweden, Italy, Poland, Slovakia, Austria, Iceland).
Insofar as the judgment invokes the specific conditions in the Czech
Republic that are supposed to justify a different approach on our part,
that reasoning is not at all persuasive for me; the cited specific
conditions have no causal connection with temporary assignment.
9.
I add that temporarily assigning judges to the Ministry has many
practical advantages, it has proven its value in practice, and in my
opinion it is not presently overused by the Ministry or misused for
purposes other than legitimate ones. It is especially important for the
preparation of legislative projects for which the Ministry is
responsible (e.g. the drafting of a new Criminal Code).
II.
Alleged Unconstitutionality of the Possibility of Repeat Appointment of
Chairmen and Vice Chairmen of Courts under § 105a of the Act on Courts
and Judges and under § 13a of Act no. 150/2002 Coll., the Administrative
Procedure Code, as amended by later regulations
10.
I do not consider the possibility of repeat appointment of court
officials (i.e., chairmen and vice chairmen of general courts of all
levels, including the Supreme Administrative Court) to be
unconstitutional, and I do not agree with annulment of § 105a of the Act
on Courts and Judges and § 13a of the Administrative Procedure Code.
11. In this matter I agree with the dissenting opinion of Judge Pavel Rychetský, and for reasons of brevity refer to it in full.
2. Dissenting opinion of Judge Ivana Janů to verdict IV of the judgment
I
differ from the opinion of the majority of the Plenum on the question
of the constitutionality, or unconstitutionality, of repeat appointment
to the office of chairman (vice chairman) of a court. I am of the
opinion that the justification for unconstitutionality of repeat
appointment, as set out in points 65 and 66 of the judgment, lacks
constitutional law arguments.
In
my dissenting opinion to part of the reasoning of judgment file no. Pl.
ÚS 18/06, I emphasized, in an international comparison, the relatively
standard model of a limited term of office for (the highest) court
officials, in which the possibility of repeat appointment is not an
exception. My line of argument in the matter then adjudicated was led
against the model of an unlimited (life) term of office, in the face of
the individual personalities of judges, where excellent judicial
competence need not always include exceptional management qualities. I
expressed the concern that “precisely in these situations, an unlimited
term of office, which could last for decades, is an obstacle to the
selection of a more suitable person.”
I
believe that in the present matter this argument also applies and lets
me be consistent. Insofar as the majority opinion a priori ruled out the
constitutionality of possible repeat appointment as a court official,
it set up, quite analogously to the previous legal situation, “an
obstacle to the selection of a more suitable person,” who, beyond any
doubt, could be a court official who has already held the office and in
which he proved himself to be outstanding.
The
reservoir of judges in the Czech Republic is not bottomless, and the
approach chosen by the Plenum’s majority opinion may, in time (after
several terms of office), result in a problem for some smaller courts to
ensure enough new candidates. If holding office in a court is to be
part of the repeatedly cited “career progression” of a judge, I ask
myself to what extent that idea is fulfilled when it is impossible for a
court official to be appointed repeatedly, no matter how successful he
was in his office. If the Plenum’s conclusions are guided by concerns
about self-serving behavior by judges and court officials in an attempt
to please the executive branch, for whatever reason, then the principle
question comes back into play, to what extent is the personal integrity
of the courts, their professional status and institutional autonomy any
guarantee of proper administration of the courts in the context of the
permanent tension that exists between the branches of government in the
country.
As regards details, I refer to the reasoning provided in the dissenting opinions of Judges Vladimír Kůrka and Pavel Rychetský.
3. Dissenting opinion of Judge Vladimír Kůrka to verdict IV of the judgment
The
majority of the Plenum overlooked the fact that the Constitutional
Court is not in the position of a body that establishes the regime for
the creation of court officials of the general courts, i.e. that its
constitutional role is not finding a regime that is suitable, or
“better” as opposed to “worse,” and therefore its deliberations should
not be of the type “more likely yes” or “more likely no,” or, “one can
agree” or not. It is the legislature that is called on to normatively
establish a certain legal situation (here, the possibility of repeat
appointment of judges to the offices of chairmen and vice chairmen of
general courts), which it did in the contested statute, and therefore,
reversing the situation enshrined there in requires – logically – a
strong argument; not only a strong argument, but an argument to prove
that this legislative situation is unconstitutional.
However,
the opinions or the majority of the Plenum, included in the appropriate
part of the reasoning of the judgment (paragraphs 65 and 66), do not
contain appropriate (constitutionally relevant) arguments. The
emphasized threat to the independence of a judge in the position of a
court chairman (vice chairman) pursuing re-appointment to that office is
conceived exclusively on a hypothetical and speculative level, and it
is not documented in any way that this is so, or must be so, even if
only on an abstract level and in the degree of external “appearance.”
It
is not indicated in any way how the majority of the Plenum imagines
that an the pursuit of such appointment to these offices could
influences judicial decision making (sic!), which it would be necessary
to prove, because only that can matter. If it is even permissible to
descend to this level of deliberation, then we cannot not mention that
one can already imagine such a “threat” at the point when a judge seeks
to be appointed to the office of chairman (vice chairman) for the first
time.
If
it is not a threat to the independence of the Constitutional Court that
a judge can be appointed (also “from outside,” by representatives of
other branches) repeatedly, then it can hardly be claimed, that the
situation should be otherwise with the analogous appointment of (only) a
court official.
Limiting
repeat appointment to the office of chairman (vice chairman) in any
case does not prevent a “former” chairman (vice chairman) be appointed
to the same office at a different court.
The
claimed uncertainty of the conditions for repeat appointment set out in
§ 105a of the Act falls away with the interpretation that an obvious
requirement is a qualitative assessment of how the office of chairman
(vice chairman) was performed so far, and there is no need to disqualify
the role (even if only “consultative”) of judicial councils in advance.
Although
it is obviously not significant in the present “constitutional”
context, it is nevertheless worth noting that the practical consequence
established by the majority of the Plenum will be the weakening of
“good” court administration, because the office of chairman (vice
chairman) of a court will lose its current prestige (“one day every
judge will be chairman”); the judges will also not have sufficient
motivation to effectively (“managerially”) make it theirs, because by
the nature of the matter they would have to do so at the expense of the
judicial education, which cannot be “worth it” for a mere seven years
within a lifetime career as a judge “.
4. Dissenting opinion of Judge Pavel Rychetský to verdict IV of the judgment
This
dissenting opinion, which I am filing under § 14 of Act no. 182/1993
Coll., on the Constitutional Court, as amended by later regulations, is
directed exclusively against verdict IV of the judgment. With this
verdict the majority of the Constitutional Court annulled the
possibility of repeat appointment of court officials (i.e., chairmen and
vice chairmen of general courts of all levels, including the Supreme
Administrative Court) after the expiration of their newly defined term
of office. The Plenum of the Constitutional Court did not agree with the
reasoning of the petitioner, which based the petition to annul the
institution of repeat appointment of court officials on the insufficient
criteria for the possibility of repeat appointment of a court official,
and the resulting unconstitutional threat to the independence of the
judicial branch. On the contrary, the plenum of the Constitutional Court
expressly states regarding these arguments that “in this regard they
cannot be criticized in terms of protection of constitutionality.”
However, according to the reasoning of the judgment, the majority of the
judges of the Constitutional Court sees the unconstitutionality of the
contested provisions (§ 105a of the Act on Courts and Judges and § 13a
of the Administrative Procedure Code in “the very possibility of repeat
appointment, which can lead court officials to act in a way that would
meet the requirements for their repeat appointment, or can lead to their
individual actions, including their decision making (court officials
are primarily judges), to be seen and assessed that way by the outside
world.” Of course, in my opinion these arguments are rather testimony of
the constitutionality and overall usefulness of the institution
permitting the repeat appointment of court officials, because it assumes
prima facie that court officials – guided by their desire to be
appointed again – will perform their offices in the court administration
as well as possible. The following passage in the reasoning of the
judgment, about the fact that the contested legal framework thus creates
conditions for “personnel corruption” and potentially threatens the
constitutional imperative of the independence and impartiality of
judges, is based on the premise of a potential ill will, both on the
part of the judges whom the state entrusted with the role of court
administration, and on the part of state representatives to whom the law
gives the appointing authority. Of course, within an abstract review of
the constitutionality of a statute I cannot agree with the reasoning
that is based on the existence of such ill will, because, of course,
every legal regulation can be abused from a position of “ill will.”
Moreover, I believe that if in the abstract review of norms this
starting point were to be one of the basic guiding criteria for
reviewing the constitutionality of the institution of filling offices
that carry the authority to administer the courts, it would also have to
apply in the same degree to the first appointment to such an office.
From all the arguments to this derogative part of the judgment, which
is, moreover, limited to a single paragraph under point 65, I accept
only the deliberations that the overall concept of the statutory (or
constitutional) regulation of the judicial branch does not yet represent
sufficient guarantees of a balance of powers in the state that would
meet the requirements for full institutional establishment of judicial
independence. Of course, the task of the Constitutional Court in an
abstract review of norms is not to seek optimal models for the
functioning of a democratic, law-based state (it can only define them),
but exclusive protection of the constitutionality of the legal order,
with an exclusive derogative authority regarding those parts that it
finds to be unconstitutional, but not merely unsuccessful. Therefore, I
conclude that § 105a of the Act on Courts and Judges and § 13a of the
Administrative Procedure Code are not, in my opinion, inconsistent with
the constitutional order of the Czech Republic.
5. Dissenting opinion of Judge Eliška Wagnerová to verdict V of the judgment
With
this dissenting opinion I express disagreement with denying the
petition to annul Art. II points 4 to 10 – i.e., the transitional
provisions of Part One of Act no. 314/2008 Coll., which differently set
the end of the term of office of existing chairmen and vice chairmen of
courts, depending on the number of years they have served in office,
where the period is generally shorter than the term of office introduced
by the Act.
I
fully agree with the petitioner that the introduction of a term of
office itself is retroactive interference in the performance of a public
office, which the office of a judge serving as chairman or vice
chairman of a court undoubtedly is. Nonetheless, the legislature
presented rational grounds for introducing a term of office,
representing various aspects of the public interest in the proper
functioning of the judiciary, which can be constitutionally accepted,
because in weighing the retroactive interference in the undisturbed
performance of office against the interest in proper exercise of the
judiciary, one can agree with the legislature’s balancing of the two
interests as it reflected in setting the basic lengths of terms of
office of court officials (§ 102 par. 2, § 103 par. 2, § 104 par. 2, §
105 par. 2 of the Act on Courts and Judges). The interest in the proper
functioning of the judiciary is an expression of the constitutional
principle or concept of a law-based state (Art. 1 par. 1 of the
Constitution of the Czech Republic), the implementation of which is
unthinkable without a functioning judiciary.
It
is otherwise in the case of setting the end of the term of office of
existing court officials contained in the transitional provisions. In
that case the legislature shortened the term of office so markedly, that
its actions create the impression that it did not even recognize the
need to preserve the interest in undisturbed exercise of public office,
manifesting itself not only as a fundamental right of the presently
serving chairmen and vice chairmen of courts (in which it did not
interfere as disproportionately), but also as a principle (value) – a
component of objective law [Art. 21 par. 4 of the Charter as interpreted
by the Constitutional Court – see judgment file no. II. ÚS 53/06 of 12
September 2006 (N 159/42 SbNU 305) – undisturbed exercise of public
office], which structure the position and relationships between the
branches of government in the state. Because, just as the courts are
required to decide so that, if possible, as much as possible of both
fundamental rights will be preserved, and if that is not possible, then
to give priority to the fundamental right that is best supported by the
general idea of fairness, or the general principle, so the legislature
is always required to seek a solution that would permit preserving
conflicting constitutional principles to the greatest possible degree.
If that is not possible, it must be completely evident and clear wherein
lies the urgent need to significantly reduce one of the conflicting
constitutional principles.
The
absence of a truly urgent need or important public interesting
justifying the disproportional reduction of the principle of undisturbed
exercise of public office is supported by the fact that the legislature
allowed repeating the chairman’s or vice chairman’s mandate (§ 105a of
the Act on Courts and Judges, or § 13a of the Administrative Procedure
Code). Nothing about this is changed by the fact that these statutory
provisions were annulled by the present judgment, although on different
grounds (the possibility of personnel corruption, or at least the
appearance thereof).Finally, empirical data in the form of the recent
repeat appointment of certain chairmen of courts who had been serving
for decades testifies to the fact that neither the legislature, nor the
executive branch (the Minister of Justice) considered securing the
public interest in a functioning judiciary by replacing court officials
to be such a clearly urgent reason as would be constitutionally capable
of justifying such fundamental interference in the principle of
undisturbed exercise of public office. On the contrary, the adopted
legislation may, at a minimum, raise the suspicion that the legislative
and executive branches used it to create conditions for themselves to,
in a very short period, replace the management of all the courts
according to its own (i.e., political) ideas, as the Act does not set
any substantive criteria for the selection of court officials, just as
it also does not contain any correction, or balancing, of the appointing
authority of the executive branch. Such an interest would, of course,
not be in the least capable of limiting the principle of uninterrupted
exercise of public office in any way.
All
these reasons led to my being unable to agree with the denial of the
petition, in the scope that I set out in the first paragraph of my
dissenting opinion.
_________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________
6. Dissenting opinion of Judge Pavel Holländer to the reasoning of verdict IV of the judgment
I
agreed with verdict IV of the judgment of the Constitutional Court in
the matter file no. Pl. ÚS 39/08, which annuls § 105a of the Act on
Courts and Judges, but for different reasons that those in the reasoning
of the judgment. These are based on the argument of the possibility of
the “creation of personnel corruption, which would threaten the
constitutional imperative of the independence and impartiality of
judges.”
Insofar
as the majority vote connects the appointment of chairmen and vice
chairmen of courts with the possibility that judges will seek these
offices even at the price of “personnel corruption” and if we accept
that premise, then there is no reason to believe that this will happen
only with repeat appointment. In my opinion, from that point of view,
the purpose of the annulled statutory provision formulated in the
reasoning of the judgment does not meet the first step in the
proportionality test, the requirement of suitability.
I
maintain that the constitutionality of the subject provision must be
evaluated in connection to the length of the term of office (§ 102 to §
105 of the Act on Courts and Judges), and also with regard to the
safeguards that the Constitutional Court has expressed in its case law
regarding the nature of the office of chairman (and vice chairman) of a
court. The tenor of them is the proposition contained in judgment file
no. Pl. ÚS 18/06: “In reviewing the position of chairmen of courts as
court officials appointed by the Minister of Justice and by the
President, it must be observed that a court official continues to take
part in his own decision making activity as a judge. One must then begin
with the premise that the role of chairmen of courts, as well as that
of the chairman of the Supreme Court, is inseparable from the role of a
judge, because we cannot construct a duality in the legal position of a
chairman of a court as an official of state administration on one hand,
and a judge on the other hand. Thus, the attributes of the independence
of the judicial branch, or the independence of judges, must also be
applied in the foregoing sense to the chairmen of courts.”
In
my opinion, the repeated possibility of holding the office of chairman
or vice chairman of a court, in connection with the length of the term
of office, creates a situation in which for chairmen and vice chairmen
of courts the role of performing state administration already
predominates, to the detriment of the role of judge, which I see as a
violation of the constitutional principle of the independence of the
judicial branch and the independence of judges under Art. 81 and Art. 82
par. 1 of the Constitution.
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