349/2002 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 18 July 2005. June 2002 in plenary on the proposal of the President of

the Republic to repeal certain provisions of Act No. 6/2002 Coll., on

the courts, judges, lay judges and the State administration of courts and amending

some other laws (the law on the courts and Judges Act), as amended by

amended,



as follows:



1. The provisions of § 50 para. 1 (b). (f)), (b). (g)), para. 3 (a). 4, § 51

paragraph. 1 (b). (f)), (b). (g)), para. 3 (a). 4, § 52 para. 1 (b). (f)),

(a). (g)), para. 3 (a). 4, § 53 para. 1 (b). (e)), para. 3 (a). 4,

§ 71 para. 4, § 72 para. 2 the last sentence, § 82 para. 2 the second sentence of § 94

(a). (d)), section 123 paragraph. 3 (a). 4, section 124 para. 4, § 125 paragraph. 3, § 126

paragraph. 3, § 127 paragraph. 3, § 130 paragraph 1. 2 the word "inclusion of judges", §

paragraph 131. 1 (b). and (b)). (b)), § 132 paragraph. 1 (b). and (b)). (b)), para.

2 the word "judges", and para. 3, § 134-163, 185, § § 187 in words

"lawyers for the members of the Council 3 for the competence of judges and their 3

surrogates and "and section 188 of the Act No. 6/2002 Coll., on courts, judges,

lay judges and the State administration of courts and amending some other acts

(the law on the courts and Judges Act), as amended, shall be deleted;

on the date of publication of the finding in the journal of laws.



2. the provisions of article 15, paragraph 2. 2 the second sentence of § 26 para. 2, the second sentence of section 30

paragraph. 2 the second sentence of § 34 paragraph 1. 2 the second sentence of § 68 para. 1 in the words

"the Ministry or", section 74 para. 3, § 99 paragraph 2. 1 (b). c) in words

"the Ministry or" § 106 paragraph. 1, section 119 paragraph 1. 2 (a). 3, § 120, §

121, section 124 para. 1, para. 2 (a). 3, § 125 paragraph. 1, para. 2 (a).

4, § 126 paragraph. 1, para. 2 (a). 4, § 127 paragraph. 1, para. 2 (a). 4,

section 128 of Act No. 6/2002 Coll., on courts, judges, lay judges and the State

administration of courts and amending some other acts (law on courts, and

the Judges Act) shall be repealed on 1 January 2000. 7.2003.



Justification



(I).



On 1 May 2004. in March 2002, the Constitutional Court received a proposal from the President of the Republic on the

repealing certain provisions of Act No. 6/2002 Coll., on courts, judges,

lay judges and the State administration of courts and amending some other acts

(law on courts and judges), (the "Act"). In the reasons for the first

under their proposal, the President focused on the provisions of § 134

-163 of the Act (and the provision of follow-up), which introduced as new

Institute mandatory periodic reviews of professional competence with the result of

the possible end of a judicial mandate. These provisions are in

direct conflict with art. 1 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"),

According to which the Czech Republic is a democratic State based on law

respect for the rights and freedoms of man and citizen, as it is convinced

among the essential attributes of the rule of law is also the principle

the separation of powers. These provisions also sees as standing in breach of article. 82

paragraph. 1 and 2 and article. 93 of the Constitution. A judge is appointed to its functionality

President of the Republic without a time limit, if it meets the basic

the constitutional and other legal assumptions including professional competence. Further

already a judge cannot appeal against his will, with the exception of the appeal on the

the basis of the decision of the Disciplinary Chamber. Ústavodárce had in mind when

provided an exception to the finality of the judge in the article. paragraph 82. 2, negotiations

at least the same intensity, such as disciplinary transgressions. As such, the

It was only may be considered a serious infringement. This guarantees

the independence of the courts of the Act and the Executive. However, the law allows

to the constitutional position of the judge has been threatened as a result of the additional

reviews of his professional competence, without which it would not be in the

the function named. To prevent the performance of the person that will not be judge

enough to care about your level of expertise, which is reflected in its

the decision-making activities, is a sufficient means of protection of the disciplinary proceedings.

In this context, notes the proposal on the obligation of the judge consistently

educate and deepen its expertise for the proper exercise of function (§

paragraph 82. 2 of the Act), the violation of this obligation may be disciplinary

the offense, for which you can judge his appeal. A breach of this

However, the obligation must be specific, its impact must be reflected in the

the judge's decision-making activities, and its intensity, so you must undermine the confidence

in the independent, impartial and fair adjudication (section 87). In the framework of the

the disciplinary proceedings must also be between such a breach of duty and its

as a result of (confidence) demonstrated a causal link. In addition,

While disciplinary proceedings are a range of penalties graduated according to the

the severity of the misconduct, the evaluation competence knows only itself

a penalty only, and that the loss of function.



By law, the newly introduced management-assessing professional competence of judges-

will lead to a flat rate with all the judges. It is only the start

to determine whether the conditions are to be

noted that the judge is (not) to be eligible. This (not) eligibility

will be evaluated on the basis of abstract, vaguely formulated and with

the judge's decision-making activities unrelated factors (section 136). The law so

presumuje the causal link between a negative evaluation, and

the judge's decision-making activities. In other words, the finding of an unsatisfactory

the ability to organize the activities of the Department and the minimum

the publication, scientific and pedagogical activity is automatically associated with the

the judge's decision-making activities and may lead to termination of the judge. If

based on the concept of the Act, which provides for the Chairman of the courts authority

the State administration of the courts, part of the Executive, is so the State administration

courts has also competence to assess the competence of the judge. The power of

the Executive may initiate proceedings against judges investigating his professional

with the result of the possible end of the Constitution guaranteed time

an unlimited mandate without reason to begin was so far

the judge's decision-making activities. The President further directed reservations

against interference with the principle of separation of powers, which the Constitution assumes. This

the principle is violated, inter alia, the scope of the powers of the Minister

Justice in the area of assessment of professional competence of the judge, that

Furthermore, lists, concluding that such a range gives the Executive power

excessively wide discretion to allow judges to influence decision-making.



In the second part of its proposal, focusing on the provisions governing the

the Law entrusts the performance of State administration of the courts in that range to the Presidents and

Vice-Presidents of courts, who are also the judges, the President of the Republic

They claim their conflict with the article. paragraph 82. 3 of the Constitution, which provides for the

incompatibility of the function of judge with any of the functions in the public administration.

States that, from certain activities and from the manner of appointment and removal

Presidents and Vice-Presidents of the courts suggests that it is a function in the public

manage, and Chairmen and Vice-Chairmen of the courts is partly become

part of the Executive. You can also have serious concerns about the threat to their

independence in the exercise of their judicial activities, particularly if their

to remain in the Office of President and Vice-President of the Court depends on the decision of the

representatives of the Executive. Points to the provisions of § 106 paragraph. 1

the law, according to which the Presidents and Vice-Presidents of the courts may be

dismissed from their functions, if fails to meet his obligations properly. This

the condition for revocation is expressed very generally and may lead to

the application of arbitrary executive power in the dismissal of leaders able to

the Court. As President of the Republic further argues, is aware that, in the

some European States are exercising State administration of courts Presidents

the courts from among the judges. Our Constitution does not permit the merging of a judge

with the performance of any functions in the public administration and it is for the ústavodárce, whether

combining these features will allow. The Constitution in article. paragraph 82. 3 expressly States

activities that are incompatible with the functions of a judge. At the same time allows,

that law incompatible activities spread further circuit. The law adopted in

section 74 para. 3, however, the circuit of incompatible, the Constitution expressly prohibited

the activities of the bypasses by the features therein exempts from this mode

the ban (even using a legal fiction). In this case, the Constitution

defines the use of the law. However, the legal standard is lower legal force, IE. in

this case law, it cannot eliminate the activities of the legal circuit

the norm of higher legal force-the Constitution. At the end of this section of the proposal then

President of the Republic can think of also the possibility of the temporary assignment of a judge to the

the Ministry, which regards it as incompatible with the principle of the Division of

power and with the Mission of the Office of judge.



The next paragraph of the contested provisions of section 160. 3 of the Act, which provides that

the hearing of the Supreme Court in matters of assessment of professional competence

judges shall not be public, be considered in breach of article 88(3). paragraph 96. 2

Constitution, article. 38 para. 2 of the Charter of fundamental rights and freedoms (hereinafter referred to as

"The Charter") and article. 6 (1). 1 of the Convention for the protection of human rights and fundamental

freedoms (hereinafter referred to as "the Convention"), which contains the principle of consultation

things. It considers that there are no grounds to break the public policy discussions in the

the trial before the Supreme Court, whose decision is decision


in the case and is final. The decision will have a major impact on life

of the individual. Article. 6 (1). 1 of the Convention sets out the conditions for the possible

the exclusion of the public. None of those conditions, however, is not in the contested

the provisions in full. Law restricts public control over the element

the course of the court proceedings in contravention of the Convention.



In the last part of the reasons for the proposal, focusing on the provisions relating to the

Judicial Academy, then President of the Republic with the emphasis on the article again. 1

The Constitution, the principle of separation of powers, as well as on constitutionally guaranteed independence of the

courts and judges (article 81 and article 82, paragraph 1, of the Constitution) expressed the belief

independence from the Executive is to be found not only in the decision-making

the activity of the courts in the strict sense, but also in the overall options can

powerful decision-making activities of judges. The judge shall be the responsibility

for their level of expertise and is obliged to continuously educate and

deepen their expertise for the proper exercise of function (§ 82). It should

However, only be on it, how it reaches. It is hard to be compatible

with the principle of separation of powers and an independent judiciary power to judges

compulsory schooled in the institution, whose composition and teaching content has, directly or

indirectly, in the hands of executive power. The possibility of the Supreme Court to provide these

education in a comparable range is due to the existing personnel,

financial and technical capacities of the Supreme Court "not feasible".

A lifetime of mandatory training of judges so practically under the

the control of the Executive. President of the Republic in the draft gives a clear that

Although considered the right to education, the Ministry of Justice

the judges allowed, and it is therefore appropriate to set up judicial Academy

It was, however, in his view, however, it is not conceivable that the judges were in the

periodic intervals are required to participate in training and just

in fact, exclusively in this institution.



In conclusion, the then President of the Republic concluded that in the State-controlled

the principles of the rule of law, the Division of State power must be based on a system

checks and balances, the adopted legislation, however, this system is interfering with, and it

disproportionate influence of the Executive on judicial power. The task of the Executive in

the intentions of the Constitution is to secure the operation of the judiciary after the material,

staffing of the courts administration, preparation of future judges on the

the performance of their functions and ensure their adequate number. Adopted by the

the law, however, the balance of power does not respect and a measure of the influence of the Executive power on the

According to him, the Court may jeopardise the independence of the judiciary as one of the pillars of

democratic rule of law. Therefore suggests the adoption of the award, which

will the abolished these provisions of the Act on courts and judges: § 15 para. 2

second sentence of § 26 para. 2 the second sentence, § 30 para. 2, the second sentence of section 34

paragraph. 2, the second sentence of § 50 para. 1 (b). (f)), and (b). (g)), para. 3 (a).

4, § 51 para. 1 (b). (f)), and (b). (g)), para. 3 (a). 4, § 52 para. 1

(a). (f)), and (b). (g)), para. 3 (a). 4, § 53 para. 1 (b). (e)), para. 3

(a). 4, § 68 para. 1 the words "the Ministry or", § 71 para. 4, § 72

paragraph. the last sentence of paragraph 2, paragraph 74. 3, § 82 para. 2, the second sentence of § 94

(a). (d)), § 99 paragraph 2. 1 (b). (c)), the words "to the Ministry or", section 106

paragraph. 1, section 119 paragraph 1. 2 (a). 3, § 120, § 121, § 123 paragraph. 3 (a).

4, § 125, 126, 127, § §, §, § 130 paragraph 128. 2 the words "the inclusion of judges", §

paragraph 131. 1 (b). and (b)). (b)), § 132 paragraph. 1 (b). and (b).) (b)),

paragraph. 2 the word "judges", para. 3, § 134-163, paragraph 185, § 187, the words "3

lawyers for the members of the Council for the competence of judges and their 3

surrogates and "and § 188 with the fact that at the same time in relation to the provisions of § 15

paragraph. 2 the second sentence of § 26 para. 2 the second sentence of section 30, paragraph 1. 2 the second sentence, and

§ 34 paragraph 1. 2 the second sentence of proposed suspension of operation, so that the

Parliament has been given sufficient time for the adoption of the new legal

editing.



II.



The Constitutional Court has requested in accordance with the provisions of section 69 of Act No. 182/1993

Coll., on the Constitutional Court, as amended, observations

Parties to the proceedings-of both chambers of the Czech Parliament.



The Chamber of deputies in its observations of 9 October. 4.2001, signed by the

its Chairman, Prof. Ing. Václav Klaus, CSc., after the recap

the contested provisions States that the main objective of judicial reform, which

started by adopting key standards relating to particular

ensure the conditions of realization of the judiciary, is a quick, fair and

uniform justice. The basis for such ideas, however, can only be

high proficiency of judges as the basis for high-quality performance of the judiciary.

Therefore, the lifelong learning programme was adopted by the judges in the Judicial

the Academy, with the competence of the judge will be validated

(duplicate the way i was taken by the prosecutors)

through the Council on the competence of the judges (hereinafter referred to as "the Council").

In terms of the composition of the Council are here represented, firstly, the judges elected

(Alternatively, determine by lot), the judge of the competent court, then the experts

legal practice. Each judge is first evaluated by who has the most

information about his knowledge of the legislation, case-law, etc., thus

the President of the competent court. If the training is evaluated

the eligibility of a judge as unsatisfactory, will take place in the second stage of the proceedings

in the Supreme Court. In no case, however, it is not evaluated the activity of judge

in terms of its substantive decisions, therefore, you cannot talk about

unauthorized interference into its activities and decisions.



A judge may be according to the article. 93 para. 2 of the Constitution appointed citizen who

meets the basic requirements of the Constitution directly, and that integrity and

a university education. Other assumptions and the procedure is

left to the legislation. In accordance with this provision, the Special

the law may provide for additional conditions and the procedure for the examination of the assumptions

necessary for the function of the judge. Among the assumptions in the appointment, however,

definitely does not belong to the judge to exercise the competence assessment

function, since it occurs only after a certain period of time from onset to

judicial function in the competent court.



The law on courts and judges basically took the original layout on State

administration of courts, when the position of the central body of State administration of courts is

The Ministry of Justice, and defining other administrative authorities-President

the competent courts. The task of the State administration of courts is on the one hand,

create the conditions to ensure the proper administration of Justice when the page

organizational, personnel, financial and economic, on the other hand, then

to exercise supervision within the limits of the law over the proper fulfilment of the tasks of the competent

the Court. Performance of State administration, however, in no case shall interfere with the

the independence of the courts. According to the previous edit was to the Minister

given the possibility of Justice to appoint the President and the Vice-President of the courts with

the exception of the President of the Supreme Court. In the Act on courts and judges is

method of appointment maintained that is also obliged

the Minister of Justice to discuss the judicial appointment

the Council of the competent court, whose judge is to be appointed the official in question.



The temporary assignment of a judge to exercise the function to another court or

The Ministry of Justice or Judicial Academy is fundamentally tied to the

the consent of the judge awarded (as under the previous legislation) and

the law is limited by the length of the allocation.



In the article. 38 para. 2 of the Charter are some of the procedural rights of the participant

management, that is. the right to a public hearing, when exceptions to this

the policy can be enabled only by law, which may exclude the public and

completely. A party to proceedings has the right to a hearing was present their

things, and even if it was by law the proceedings declared

non-public. This right may, however, be of the law, or by decision of the

under the law, limited. This principle is also contained in the article. 6 (1). 1

The Convention, according to which the press and public may be excluded for a period of

all or part of the process, when it requires the protection of the private life

the participant, or within the range considered by the Court as absolutely necessary, and in

article. paragraph 96. 2 of the Constitution, which States that the hearing before the Court is fundamentally

the oral and public, but the law may provide for exceptions from this principle. Law

on courts and judges in § 163 also says that they are used in

matters of competence of the judge before the Supreme Court adequately

the provisions of the first and third parts of the code of civil procedure, except where the

This law provides otherwise. It follows that the code of civil procedure and the Institute

the exclusion of the public knows and enjoys it. From this it can be inferred that the provisions

relating to the Chambers of the Supreme Court in matters of assessment

the proficiency of judges cannot be regarded as unconstitutional.



The establishment of the Judicial Academy of the Act on courts and Judges Act aims to

above all, increase the expertise of judges as a guarantee of quality of the judiciary.

Therefore, the lifelong learning programme in the Judicial Academy gives the possibility

all judges to acquire such knowledge and skills in the context of its

profession to fulfill article. 1 of the Constitution, and that confidence in the law. In

the rule of law, a citizen must have a guarantee that the legal way reaches

Justice and the satisfaction of the claims of the law they belong. Therefore,


the judge imposed are still higher requirements for knowledge of the laws and other

legislation, case-law, as well as the capacity of their application in the

the decision-making activities.



Finally, in representation of the Chamber of Deputies stated that the law was

approved by the necessary majority of members of the Chamber of Deputies, has been signed

respective constitutional factors, i.e. as the Chairman of the Chamber of Deputies and

the Prime Minister, as well as by the President of the Republic, was properly

declared, and expressed the opinion that the legislature acted in

the belief that the law is adopted in accordance with the Constitution and our legal

of procedure. It is up to the Constitutional Court to have been filed in connection with the constitutional

complaints of the President and his proposal for the repeal of certain

the provisions of Act No. 6/2002 Coll., to assess the constitutionality of this law and

It has issued the decision.



Senate of the Parliament of the Czech Republic then in its statement, signed by its

Chairman doc. JUDr. Petr Pithart, States that a draft law on the judiciary

and the Judges Act, which the Chamber of Deputies agreed on 30 November.

October 2001, was on 12. November 2001, be submitted for consideration of the Senate.

The Organizing Committee ordered the Bill on 13 June. November

ústavněprávnímu Committee, which discussed it in the prescribed manner and

resolution No. 68 of 28 June. November recommended a Senate Bill

reject. Then the draft law discussed by the plenary of the Senate on 30 November.

November 2001 on its 11. the meeting of the third term of Office and the resolution

No, the Bill was approved by the 220 as a transferred by the

the Chamber of Deputies.



When discussing the draft of the Act on courts and judges were in the Senate, and it

as in the ústavněprávním Committee, which was as a single Bill

commanded by, so on the plenum, held an extensive debate. Due to the fact that

the law on courts and judges is built primarily on the philosophy of achievement

the higher the quality of the judiciary through higher quality

the skill of the individual judges, the majority of the posts concerned just

the issue of complaints the contested questions of judges and their evaluation

lifelong compulsory education. The topic was contentious from

the perspective of the legal norm of the objective pursued, but-as measured by maximami

the position of the judiciary in a system of separation of powers and the independence of the courts and

judges-due to resources, what it is to be achieved.



While between the Senators there was almost a consensus with reservations

the fact that our judicial system is to move to a qualitatively higher level,

views on the attainment of this objective is. From one side, by the

opponents of the law, there were objections in relation to revaluation of the request

the professionalism of judges and the fear of threats to their independence

through mandatory reviews of professional competence by the President

official appointed by the Court as Justice Minister; reservations are

concerned and the "mandatory in-service training" under the control of the Executive.

Doubts have been raised over the setting of technical prowess

a judge at all. According to some legislators, the emphasis should be on

education of the future judge before then the obligatory catching up of expertise,

eventually. should be a judge selected a person who has already proven itself in the

previous legal practice. Many have also been objections to the exercise of State

administration of courts by persons in a position of dvojjediném-the status of officers,

the executor of the State administration, subject to Central Executive

the authority and stature of an independent judge executing the judiciary.

Opponents of the law have questioned not only the unconstitutionality of certain of its

provisions, but also its overall contribution to the improvement of the situation in the judiciary,

When the judge that "the Act is nothing in our justice system

to worsen or do not improve. "



The arguments that were performed for the benefit of the law, based on the belief

that the method of legal regulation is an appropriate basis for further possible

making a judicial system and by its very nature is a step.

Over concerns about limiting the power of the Court offered a view of the law's advocates

the reverse, based on the fact that the newly established Judicial Council, although

as the Chairman of the advisory bodies, the courts, in the exercise of the judicial administration.

It was seen as a significant move compared to the not yet applicable.

Proponents of the law have also stated that the currently selected model is not a model

in Europe, the unknown, and expressed the belief that the pressure on the judicial

occupation, which the law on courts and judges in some ways develops, it is

a suitable tool for the overall rise in the judiciary, and it is not

called into question the premise that within the Executive power must be used to be able to

the Court. Endorsers of the Bill saw in the system also

the path to the achievement of the legitimate expectations of the standard behavior of judges in

standard situations. On the question of undue interference in the independence of the

the judges assessing their technical prowess came from the floor of the Senate. (I)

the argument that "dependence on insufficient expertise is worse for

the company than anything else ". Proponents of the Bill's critics

the outline presented by the lack of a custom solution and the quandary over this

social theme.



When making its decision, the Senate turned to the arguments put forward to support the

approval of the draft law, as amended by the Chamber of Deputies, and transferred

He did so 37 votes to 14, when the vote was no. 54 present

64 senators.



Based on the adopted decision, and having regard to the discussions in the

bodies of the Chamber, a statement has the following arguments in favor of

the majority will of the Senate:



Article. paragraph 82. 1 of the Constitution provides that judges shall in the exercise of his functions

independent. Nobody may jeopardize their impartiality. To within a constant

the case-law of the European Court of human rights is the independence and

the impartiality of judges and the courts, combined with the necessity of their

the trust. It is not sufficient just to an impartial judge, but to

so the parties even appeared and he inspired confidence in the leadership of the fair

process (P V, Hřebejk j., the Constitution and the constitutional order of the Czech Republic.

Volume I: the Constitution of the Czech Republic, Prague: Prague, Linde and s., 1994.

194). There might not be any doubt that the expertise of the judge, reveal in

the form of prompt and fair trial, is one of the legitimate

the requirements of the company. After all, even in the attic of the Constitutional Court have appeared

the views that the independence of the judge is seen in the file of the assumptions of the

which are the most powerful professional level, and those character traits that

of the judge shall be an integrated personality (PL. ÚS 13/99, pl. ÚS 16/2000).



According to § 82 para. 1 of the law on courts and judges, the judge carries responsibility

for their level of expertise in the performance of their judicial functions. The appellant would

considered sufficient protection for the company before a judge, who will not be

enough to care about your level of expertise, save one of the disciplinary

measures (reprimand, reduction in salary, the appeal of the President of the Senate and

possibility of appeal from judge) in the context of the disciplinary proceedings, and from this

the perspective of his removal from Office of a judge as the only consequence

unsatisfactory evaluation expert the judge appears as unconstitutional. The Senate

However, the opinion that the appeal from the judge would function in the event of its

neodbornosti should not be a "penalty" imposed in the context of the disciplinary proceedings,

However, the reason for his departure from the justice system. Due to the fact that

disciplinary proceedings is by its very nature criminal management, built on the principle of

culpable violation of the obligations of the peace (in addition, the lack of expertise was

in order to practically zero, and the responsibility of the judge), the tormented soul

the legislature to a special procedure, assessment of professional competence,

enshrined in the first part 5 of title III of the law on courts and judges. From

This perspective seems to be having conflict with the article. paragraph 82. 2 of the Constitution

nepřípadným, as the Constitution in this respect leaves a certain freedom.



According to this expression, you cannot also disregard other facts about

the given issues. Reviews of professional competence is rated

a three-stage, with an evaluation body are either exclusively, or

usually the judges themselves. Review of the negative reviews in progress

standard procedures. In the final stage of a special

judicial proceedings before the pětičlenným the Senate of the Supreme Court, which will result in

the Court decision. All of these facts should be sufficient

the guarantee of a fair decision on the competence of the judge.



As regards the incompatibility of functions within the meaning of article 87(1). paragraph 82. 3 of the Constitution,

or unduly influence the Executive on judicial power through

officials engaged in the administration of the courts, cannot see that as

the way the performance of the judicial administration, the appointment of officials by the President

in the case of the Republic President and the Vice-President of the Supreme Court or

the Minister of Justice in other cases have been as satisfying and

constitutionally adopted from the previous Conformal to the applicable legislation. The legislature

never questioned the absolute maximum, clearly separation performance

the judiciary from the State administration of courts at all levels. Contributions as an administrator

posts, IE. features of Presidents and Vice-Presidents of the courts, however, are not of diction

the law offices of administrative law, rather than exhaustively defined cases

some proportion of those persons confers on the performance of administrative activities,


starting from the assumption of perfect knowledge of the personnel and material issues

the Court, which are representatives. The Senate was nevertheless aware of the

the need to increase the efficiency of the mechanism of checks and balances, and, therefore, approved in

the Act on courts and judges without the comments relating to the passage

judicial councils. Virtually no court decision of the President in the exercise of

the State administration Court, under this legislation should not be between 1. April

2002 made without comment the Judicial Council.



Without amendment was approved and the provisions of the law on the courts and

Judges devoted to the Judicial Academy. In this context, it is to be seen

the important role of § 129 para. 3 of the Act on courts and judges, who

allows you to perform to the same extent and with the same effects professional

education and the Supreme Court. If there is an alternative for the judge in

decision making, can hardly be seen as its dependency in the offered options

training in the Judicial Academy. It should be noted, as well as the undisputed fact

the independence of courts and judges is guaranteed only in relation to the performance

the judiciary. From this constitutional premise is then to be drawn, that the State is

directly required to create the preconditions for the exercise of independent judicial system, i.e.

(I) ensure the possibility of their further education and training. In other words: for

the General starting point in addressing the judicial independence is necessary to treat

the differentiation of the independence of legal, within the meaning of the constitutional principle of

the independence of the mental, which has for the first time appointed to secure.



In conclusion, the statement then States that it is entirely up to the Constitutional Court to

to assess the constitutionality of the contested provisions.



III.



The Constitutional Court in proceedings for the annulment of laws and other legal regulations

It assesses the contents of the law according to the aspects contained in the provisions of § 68 para.

2 Act No. 182/1993 Coll., that is, from the point of view of their compliance with the constitutional

laws and international treaties under article. 10 of the Constitution (in the sense of

the amendment made by Act No. 48/2002 Coll., with effect from 1. 6.2002 from

for their compliance with the constitutional laws). Before he went to the

meritornímu examination of the application, examine whether or not in the meaning of the cited

the provisions have been complied with the formal conditions of acceptance of the law and

the contested Act No. 6/2002 Coll., on courts, judges, lay judges and the State

administration of courts and amending some other acts (law on courts, and

the Judges Act), was adopted within the limits of the Constitution laid down the competence and constitutionally

in the prescribed manner.



In this direction of těsnopisecké reports on 35. and 39. the meeting of the

the Chamber of Deputies, 3. the electoral period, found that the Chamber of Deputies Act No.

6/2002 Coll., after proper consultation had approved at its meeting held on 30 November.

10.2001, when 180 members of Parliament present for the design of them voted 172,

one mp voted against the proposal. From the těsnopisecké news from 11.

the meeting of the Chamber, 3. the term, it has been shown that on 30 November. 11.2001

for the proposal, as amended by the Chamber of Deputies voted in favor of a transferred

64 senators present, 37, against the proposal was 14 senators. After the adoption of the

the law No. 6/2002 Coll., signed by the competent constitutional factors and properly

published in the amount of 4 collection of laws, which was circulated on 11 July. 1.

2002. this Act took effect 1. 4.2002. The Constitutional Court therefore

notes that the law No. 6/2002 Coll. has been duly adopted and published within the limits of

The Constitution laid down the competence and constitutionally prescribed manner within the meaning of

the provisions of § 68 para. 2 Act No. 182/1993 Coll., as amended

regulations, thus is fulfilled the prerequisite to the Constitutional Court to the examination of the

proposal for a substantive deal.



At this point it should also be noted that the applicant at the oral hearing

before the Constitutional Court suggested that it brought on the proposal was assessed as

Act No. 151/2002 Coll., amending certain laws in relation to

the adoption of the code of civil procedure of administration, which the Constitutional Court has accepted. Referred to

the law was amended and some of the contested provisions, on

the amendment did not change anything but only took into account the setting up and

the future existence of the Supreme Administrative Court.



IV.



A proposal from the President of the Republic to repeal certain provisions of law No.

6/2002 Coll., in essence refers to the total of the three essential circuits.



The first group of provisions proposed to cancel the assessment of

professional competence of the judges. Includes first of all the whole part 5 of title III, part

the first law on the courts and Judges Act, governing the provisions of § 134-

163 of the Act to the assessment of professional competence. It lays down the

in particular, the periodicity of the evaluation of the professional qualification, the assessor, the person

aspects of the assessment of professional competence, the way the screening decision

the activities of the judge of the Court of appeal in the special case of a non-conforming

reviews, the composition of the Council for the competence of judges established by the

The Ministry of Justice and the procedure before it in the cases that the Special

the Senate of the Court to review the judge's decision-making activities as non-compliant, and

Finally, the proceedings before the Supreme Court on the application of a party, that

disagrees with the decision of the Council in the matter of professional competence. From section 2

Part 2 of title I of part the first of that law, governing the scope of the

judicial councils, are proposed to repeal the provisions of § 50 para. 1

(a). f) and (g)), para. 3 and 4, § 51 para. 1 (b). f) and (g)), para. 3 and 4, §

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

and 4 implementing the judicial councils they establish within their jurisdiction and

tasks related to the assessment of the competence of judges. From part 3

Title III of part one of the present law, governing the scope of authorities

the State administration of the courts, are proposed to repeal the provisions of § 123 paragraph.

3 and 4, section 124 para. 4, § 125 paragraph. 3, § 126 paragraph. 3 and § 127 paragraph. 3,

which are laid down in the Ministry of Justice and the Presidents of permission

grade system of courts in the assessment of professional competence

judges. Furthermore, there are also proposed to cancel the provisions of § 71

paragraph. 4 and the last sentence of article 72 paragraph 1. 2 of the Act, which

stores take into account when resolving the judges of the courts of the higher degrees to

evaluation of their professional competence, part of the provisions of § 82 para. 2,

imposing the obligation to submit to the judges of the law laid down by the way

evaluation and assessment of their expertise and knowledge, and

the provisions of § 94 (a). (d)) of the Act, which provides that a judge

expires on the date of the decision, which has been his professional

the inability to perform this function. Finally, under this heading are

proposed to repeal: the provisions on the communication of assessment results

vocational training of the judge of the Judicial Academy and the appropriate people

institutions (article 132, paragraph 3, of the Act on courts and judges), the provisions of

transitional, which shall provide for an assessment of professional competence for

judges appointed to a function before the date of entry into force of this Act

(section 185 of the Act), and the provisions for designing of lawyers and notaries as members

The competence of the Council of judges (in § 187 words "3 lawyers in

members of the Council for the competence of judges and their alternates, and 3 "and section

188 of the Act). The above provisions of the Act on courts and judges are

proposed to cancel for their conflict with the article. 1, art. paragraph 82. 1 and 2, and

article. 93 of the Constitution.



In the context of the next sub-block, relating to the exercise of State administration

the courts are to cancel first proposed from section 4 of part 1 of title I

the first section of the Act on courts and Judges Act, governing the organisation and

the activity of the courts, the provisions of § 15 para. 2, the second sentence of § 26 para. 2 sentence

Second, section 30 paragraph 2. 2 the second sentence and section 34 para. 2 the second sentence, which

provides that the Chairmen and Vice-Chairmen of individual degrees listed

General courts shall exercise, in addition to decision-making activities also state administration

the competent courts within the limits set by law. In the next to the cancellation

the proposed provision of section 119 paragraph 1. 2 and 3 of the Act, then

expressly provides that the Chairmen and Vice-Chairmen of various degrees

the general courts are bodies of State administration of courts and participate in

the extent and under the conditions laid down in this law and the Presidents of the Chambers and

the other judges. Follow up the provisions of § 120 and 121 of the law on the courts and

the Judges Act then provides that the exercise of State administration of the courts is exercised

The Ministry of justice either directly or through the Presidents of the

These courts, which are capitalized to the extent provided by law and the

who may delegate this power of Vice-President and, possibly, President

the Senate and the other judge of the competent court. Challenged provisions of § is also

paragraph 74. 3 of the law stipulating that the President and the Vice-President of the Court and

some of the other activities listed here are not considered to function in

the public administration. From part 3, title III, part of the first law on the courts and

the Judges Act, governing the scope of bodies of the State administration of courts, are further

to cancel the proposed provision of section 124, 125, 126 and 127, which specifically

sets out the actions to the Chairmen of the degrees of general courts

exercise of State administration, as well as the follow-up provisions of section 128 of the

the law governing the procedure for Administrative Department of the courts when it detects

culpable infringement of the obligation of the judge in the performance of its functions. Next to the


the cancellation of the proposed provisions of § 106 paragraph. 1 of the law on courts and judges

provides for the possibility to revoke the Chairman and Vice-Chairman of the Court from his Office

by who to feature his name, if you fail to comply with their obligations properly.

To cancel the addition proposed in are the provisions of § 68 para. 1 cited

of the Act, the words "to the Ministry or" and the same words in § 99 paragraph 2. 1 (b).

(c)) of this law, which is made possible by the allocation of a judge to the Ministry of

Justice and a temporary exemption from the performance of the duties of judge at the

the case of this allocation. For the above provisions of the Act on courts

and judges has a suggestion for it, they are in breach of article. paragraph 82. 3 of the Constitution.



The last thematic heading for cancellation of the proposed provisions of the law on

courts and judges is relates to the statutory marshaling judges to vocational

training in the Judicial Academy. It is here especially on the abolition of the second sentence

the second paragraph of section 82 of the Act on courts and Judges Act, which sets out the

obligation of the judge to take part in vocational training in the Judicial Academy and

to submit to an evaluation and assessment of their expertise and knowledge.

In response to this provision then in part 4, title III, part one

the law on courts and Judges Act, governing the establishment, organization, and

the activities of the Judicial Academy, are proposed for abolition in paragraph

paragraph 130. 2 the words "the inclusion of judges" and then the provisions of § 131

paragraph. 1 (b). a) and b) and § 132 paragraph. 1 (b). a) and b), in paragraph 2. 2 words

"judges" and paragraph 2. 3. These provisions is the obligation of the judge to participate in

vocational training in the Judicial Academy further clarified by indicating

the length of study, the way their communication and valorisation of results of vocational

the training of judges. Submitted the proposal for the following produce legal

the provisions of the claims of their conflict with the article. 1, art. 81 and article. paragraph 82. 1 of the Constitution.



In the.



In the preamble to the Constitution and in article 4(1) thereof. 1, and in the opening statement to the

The Charter, as well as in international agreements within the meaning of article 87(1). 10 of the Constitution,

logs on to the Czech Republic to the proven principles of democratic

the rule of law based on respect for the rights and freedoms of man and citizen

(cit. Article 1 of the Constitution) and to the democratic values (article 2, paragraph 1,

Of the Charter). In this State, according to the article. 2 (2). 1 of the Constitution, the source of all

State power people, executing it through the authorities can

legislative, Executive and judicial. From this initial finding, can be

inferred that at the very basis of our constitutional system is embedded

the principle of the Division of State power, a principle based on the idea that in the

nature of man enshrined tendency towards the concentration of power and its

the abuse, which has become a guarantee against the will and the misuse of State power and

Basically, i guarantee the freedom and protection of individuals, the principle of which is

the result of the earlier historical, and reflection on thought and

institutional developments, in which the. in the modern era have been involved such

prominent personalities like John Locke and Charles Montesqieu,

institutionally, then up to the present. the British Parliament and the British justice system. It is not

the task of the Constitutional Court, in a situation that can be considered as already

the closer, developing and causes for this principle. But

nevertheless considers it necessary to only briefly noted that in

the foundations themselves of that principle is contained in the empirical

Knowledge embodied the belief that human thought and the social

processes could not be attributed to just never rational nature, for

include evident elements, plus the irrational rationality of thought

She is never fully with the rationality of the negotiations. As already

existing State is a "Government of all the" mere ideological formulas,

often explaining away completely the opposite social status. In a social situation

characterized by both internal and external individuals and entire nedostatkovostí

the company's basic human needs can be met and at the same time

maintained at least a direction to the target, which represents democracy, the only way

balancing the conflicting interests of the individual. However that is not in the realm of

Justice does not seek nor democratic State of maximalistické programs, and is

therefore a notion "of a judicial State"-body of the civil

power is, as has already been stated, the power of the legislature and the Executive,

and therefore, this State power in a democratic system may be functionally

implemented only under the conditions of the functioning of all its institutions-is

on the other hand, required to create the institutional prerequisites for it,

What, as regards the judiciary, valid as specific and unconditional, namely

establishment and Cryopreservation of the real independence of the courts, such as-

stabilization of not only their position, but also the entire democratic system,

in relation to legislation and executive branch-an important státotvorného,

at the same time, however, and the polemického element. Referred to the real independence of the judiciary is

specific and an indispensable attribute of the judiciary, a reasoned and

also required by article 4(1). 4 of the Constitution, according to which the fundamental rights and freedoms

they are under the protection of the judicial power, as well as the article. 81 and 82 of the Constitution, according to the

which the judicial power is exercised by independent courts on behalf of the Republic,

that the judges are independent in the performance of their functions and their impartiality

No person shall threaten. Already established specific feature and content of judicial

power cannot therefore be called into question, and therefore its essential function

they are not in any way compatible with the infiltration of other State authority,

the premise was in the Constitutional Charter of the Czechoslovak Republic

introduced by the Act No. 121/1920 SB. expressed provisions of § 96 para. 1,

According to which the judiciary is in all mills separated from management, in

the current Constitution, then in the article. paragraph 82. 3, according to which the judge is not

compatible with the function of President of the Republic, a member of Parliament, or with

any of the functions of public administration. The principle of the independence of the Court has, therefore, in

this respect, as already mentioned, the unconditional nature of the negative option

ingerence of the Executive. This requirement, however, the impugned legislation

does not meet.



President of the Republic in its proposal primarily attacks the provisions of the Act

relating to periodically support assessment and evaluation

the eligibility of all judges, including the provisions with them

related to finance in a complementary. Specifically, § 134-163 (part 5

Title III-assessment of professional competence of judges) and in connection with

them § 50 para. 1 (b). (f)), and (b). (g)), para. 3 (a). 4, § 51 para. 1

(a). (f)), and (b). (g)), para. 3 (a). 4, § 52 para. 1 (b). (f)), and (b).

(g)), para. 3 (a). 4, § 53 para. 1 (b). (e)), para. 3 (a). 4, § 71

paragraph. 4, § 72 para. 2 in the sentence of the last paragraph, the section 74. 3 in the words "in the Council

and "§ 82 para. 2 in the sentence of the second paragraph 94 (a),. (d)), section 123 paragraph. 3 (a). 4,

section 124 para. 4, § 125 paragraph. 3, § 126 paragraph. 3, § 127 paragraph. 3, § 132 paragraph.

3, § 185, § 187 in the words "members of the Council of 3 lawyers in training

the competence of judges and their alternates, and 3 "and § 188.



For the assessment of the merits test this part of the proposal, it seems necessary to specify

an overview of the individual provisions within the period

Institute evaluation of the proficiency of judges are legally

permission is granted to the individual institutions of the State administration of the courts.



Under the law, expressed in the contested provisions, which

the major part is systematically included in title III, part of the first Act,

marked (which in a given context is not without importance) as State

Courts Administration, monitors the competence of judges, who are required to

submit to the law laid down by the method of evaluation and assessment of their

expertise and knowledge (§ 82 para. 2), Ministry of

Justice (article 123, paragraph 3). To this end, methodically guided by reviews

professional competence of judges and methodically manages audits of their

activities (article 123, paragraph 3). The assessment of professional competence

the judges then creates the appropriate Council [Council for the area of criminal law,

Advice for a range of civil rights and Advice for a range of administrative justice

(article 123 (4))]. The Presidents of the Supreme Court, top, regional and

district courts, as bearers of the function in the State administration of the courts, to which

they are appointed (except for the President and the Vice-President of the Supreme Court)

the Minister of Justice, having the power to appeal is based, in General,

quite vaguely worded because "proper non-compliance" (section 103

paragraph. 1, § 104 paragraph. 1, § 105 para. 1, § 106 paragraph. 1),

listed competencies in relation to the assessment of professional competence

judges (article 124, paragraph 4, section 125 (3), § 126, paragraph 3, section 127 (3)) and

These Presidents, with the exception of the Presidents of the district courts, this ability also

evaluated (§ 135). Point of view, below which is the viewing angle

the judge assessed eligibility, are examined, inter alia, on the basis of the opinion

drawn up by the President of the Court and the relevant reports of the results

the judge prepared by the Judicial Training Academy (§ 136 paragraph.

2), controlled by the Director appointed by the Minister of Justice again. The members of the

the Special Chamber, performing clearance decision-making activity of the judge,

shall be appointed by the President from among the judges of the competent court (section 137 (2)), who (in the

cases of non-compliant rating, or a special judge Senate

If he himself with the message of the Special Chamber, in which the decision-making


the activity of the judge assessed as satisfactory, also served in the proposal do not match),

to the competence of the judge to assess this proposal, the Council

hearing about him and decisive, while the latter is established by the Ministry of

(section 138, section 139, paragraph 1), and the part of its members and alternate members of the Government

agents, lawyers, notaries and experts from the field of criminal, civil and

administrative rights on a proposal from the competent authorities, shall be appointed by the Minister (section 139

paragraph. 8. the Council may act) and to decide, in the presence of at least its 7

members or their alternates and the adoption of the decision requires the consent of

by an absolute majority of the members present or their alternates (§ 141

paragraph. 2), implying that its decision because of the composition of the

that the Council (section 139, paragraph 4, 5 and 6) may be taken only

Members, neither of which is not a judge. In this context, the need to

noted that the mere fact that they have to sit in the designated authority and on the further

the fate of the judges so decide the person from among the lawyers, prosecutors and

notaries, seems highly problematic with regard to their possible

motivation stemming from their position of any party or representative in proceedings before the

by the Court. The proceedings before the Board shall be initiated on the request made by the competent

President of the Court (section 144), which is (in addition to the judge, whose professional

the eligibility of the participant of the proceedings) as well as the Minister of

Justice (article 145, paragraph 1). Does not agree to any of these participants

with the decision of the Council, may submit a proposal to the assessment of professional competence

the judge in the Supreme Court (article 153), is a participant in this way induced

proceedings (article 157), which ends with the decision of the Supreme Court.



Already from the very enumeration of executive authorities

(which are themselves in relations of control and subordination) passes by

the opinion of the Constitutional Court of the Executive to the possibility of disproportionate ingerence can

the Court. Broad and versatile design of the competency of the representatives

power of the Executive in relation to the assessment of the proficiency of judges already

appointed in respect of its accumulation of the separation of powers principle and cannot be

in the light of the above constitutional values. Executive power,

that's in proportion to the power of the Court to only create the preconditions of material and

Organization for its proper functioning, Jim gets the instruments which are:

are eligible, even if only indirectly, the independent decisions of judges

influence. The fact that the final decision about professional competence

It is in the hands of the Senate of the Supreme Court, at the conclusion of unreasonable

options Executive ingerovat in may, the Court cannot, in principle,

nothing change, as well as the fact that the evaluation of the judges shall be expressed

the Act also newly established Judicial Council elected from the ranks of judges in the

each of the courts, since they have only an advisory votes, which

the leaders of the Executive are not obliged to accept. In this

context, it should also be stressed that the Judicial Council under

the overarching authority of the law, which could be a real representative of the

the judiciary and partner of the Ministry of Justice as the Central

Government authority, or alone bore the responsibility for the management and performance

administration of courts, as well as the responsibility for the quality of the judiciary.



The previously mentioned article. 81 of the Constitution provides that the judicial power exercised on behalf of the

the Republic of independent courts. Article. paragraph 82. 1 of the Constitution stipulates that judges

in the exercise of their functions are independent and their impartiality, no person shall

threaten. The independence of the judge, as well as the independence of the judiciary

therefore inherently connected and are in a relationship of mutual cross-compliance, and even with

impartiality of the judge and of the Court. Independence and impartiality are

indispensable attributes of the concept of the Court. His impartiality and independence is

value, which is good for all, since it is one of the guarantees of equality and law

security in a democratic society. Only an impartial court is competent

provide real justice always and all, with one of the

the impartiality of the Court to guarantee the resources is judicial independence.

The principle of judicial independence, the Constitutional Court already dealt with in a number of

its decisions, for example. in the matter of SP. zn. PL. ÚS 13/99 (a collection of awards and

the resolution of the Constitutional Court, St. 15, pp. 191-202), pl. ÚS 18/99 (sv.

19, p. 3-21), pl. ÚS 41/2000 (vol. 9, pp. 493-500), in which

stressed the importance of their guarantees as a fundamental prerequisite for the fulfillment of

the constitutional position of judicial power as a separate specific forms of performance

State power. The purpose of this guarantee is to secure such a position of the judge,

that requires its role in an impartial, fair judicial process

decisions, in which the judge is bound only by its promise of legal

regulations and to their best knowledge and conscience (naturally still

confronted the fundamental values upínajícími to the man and

Justice). Each can also legitimately, in accordance with article 6(1). 6 of the Convention,

the independence and impartiality of the judiciary and of each judge to whom it is

entrusted with the protection of his rights, expect. According to the mentioned standards was also

the requirement of an independent and impartial court established by law "in the

the case-law of the European Court of human rights has developed, for

the condition of independence, it is necessary that the Court could rely upon their

the decision on your own free opinion on the facts and their legal

page, without any obligation to the parties and to the public authorities

and without his decision is subject to review by any other authority, which would

not as an independent in that sense. In this context, can be

international documents also mention the independence of the judiciary and judges

highlighting, such as basic principles of the independence of the judiciary,

adopted by the UNITED NATIONS in 1985, and the position of the Council of Europe to the judiciary, that are

formulated in the recommendations of the Committee of Ministers of the Council of Europe no. 12 of 1994,

Stressing the need for the independence of the judge in the decision making process to the

the hearing without the presence of any limitations, undue influence,

external impulses, pressures, threats or interference, direct or indirect

from any direction, and for any reason and accentuating in the direction to the

the Executive and the legislature need to create and strengthen the guarantees

the independence of the courts. To those guarantees in our Constitution are in addition to the policy

incompatibility of functions of the absoluteness of time also a judge (article 93

paragraph. 1 of the Constitution), nepřeložitelnost, and also its nonrepudiation, as

It is enshrined in the article. paragraph 82. 2 and 3 of the Constitution. The provisions of paragraph 2 of this

provides that a judge cannot appeal against his will, or translate to another

the Court; the exceptions resulting in particular from disciplinary liability provided for by law.

In this context, it should be noted that a certain space ústavodárce

lawmakers provided in that provision by the use of the term "in particular", is

needs, precisely because it is used in relation to the exception, construed in accordance

with the usual principle of legal relationship rules and exceptions strictly

in a restrictive way. Can be so totally agree with the proposal that the exceptions to the

the rules of the finality of the judges may affect just hearing his

intensity comparable to disciplinary offense expressly mentioned in the Constitution.

For example, such additional law referenced reason for

result in termination of the functions of the judge, namely denouncing the decision for criminal

an offence committed intentionally or condemning the decision to jail sentence

a custodial sentence for an offense committed by negligence, it cannot, however,

have an unsatisfactory evaluation of its technical competence, in addition, as already

top pointed out, under threat of a substantial part of the power of the Executive.



Undoubtedly, it is necessary to agree with the fact that the competence of the judge,

In addition to his moral integrity, is the indisputable prerequisite for the proper

the performance of its functions, and is, therefore, emphasis should be put on it. The

However, it should be clamped in particular to prepare for this occupation. The Act of

the provisions of the peace to its function without time limit must, however, be

made in the belief that the candidate in all directions-in

the principle from the perspective of a substantial part of the aspects referred to for reviews

professional competence of the judges in the provisions of § 136 paragraph. 1 of the law-

will stand. Just in the process preceding the appointment of the judge in his

the function should be concentrated all the bounty of the possible requirements

the judge asked, and therefore the assessment must support

eligibility be subject to the strictest criteria, as already

in the very beginning of the ability to appoint a judge to the person under-by professionally

qualified and such, which are not guarantees further self-education

(possibly even at the cost of changes to existing practice, such that

allow judges to appoint only such person that already

quality of the moral, human and professional the results of its earlier

profession validated). At the moment of the appointment, however, such a person becomes

judge and activates the essential attribute of this function,

in the form of the independence of the judge. Then in the decision-making process not only

itself must be independent and impartial, but should also be as follows

the public objectively perceived. And for that reason, the Constitutional Court shall be deemed to

the mechanism under consideration of the subsequent and repeated reviews of the professional

the eligibility of a judge that may lead to its revocation, for standing in


conflict with constitutional guarantees of judicial independence. It seems so

because such reviews-in addition, methodically controlled authority can

powerful-is exposed to the judge whose competence, and even

support, this feature has already been aprobována by the State exercise. In

continuity with what has just been mentioned, then you cannot pass even possible

the impact of possible appeal for these reasons on legal certainty at all, and

in proportion to those of a judicial decision, which was as follows for the inability

revoked by a judge previously released.



However, it is the objective pursued by the legislation, seeking to achieve

qualitatively higher levels of the judiciary, legitimate, you must

the selected resource to him pointing, so how is constructed in

the contested provisions, considered as the basic constitutional nerespektující

understanding. In addition, it is necessary to take into account that the law in the wake of the it

declared responsibility for the professional level of judges in the exercise of

function (§ 82 par. 1) explicitly between the obligation of judges to them at the same time

also, the obligation imposed by the ranked consistently educate and deepen

its expertise for the proper exercise of function (§ 82 para. 2), as well as

the obligation to carry out this function in accordance with the interest in the proper performance of the

the judiciary, culpable violation of the obligations of a judge is a disciplinary

the offense (§ 87), which shall be borne by the judge, and exercise disciplinary liability (section 86)

may lead to its revocation [§ 88, paragraph 1 (b), (d))]. Can be so

stated that to achieve the status of the judiciary have been

excluded persons an obligation to ensure his professional level

they ignore the law, has the means, and it means, that is-as

an exception to the principle of finality-the Constitution explicitly envisaged.



The Constitutional Court is so convinced that a mechanism

the examination of professional competence of judges, as modified by law,

It is necessary to refuse and be regarded as unconstitutional for reasons of

in breach of the principle of the separation of powers and the related principle of judicial

independence. This, as already stated above, the unconditional nature of,

such a method of negative option ingerence of executive power, as it

represents a disproportionate and disproportionate share of the review

professional competence of the judges. For these reasons, the Constitutional Court upheld the

the proposal of the President and all the provisions of the law on set aside

courts and judges assessment of professional competence is on the way

in the introduction to this section are listed, for their conflict with the article. 1, art. 2

paragraph. 1, art. 81, 13(1). paragraph 82. 1 and 2 and article. 93 of the Constitution, without the need

separately to deal with the constitutionality of the provisions of § assess or 160 of the Act,

as the Institute reviews the proficiency of judges should be repealed with

given the interdependence of the various degrees in which reviews

performs, as a whole, including those parts of the provisions of this

of the Institute.



The principle of separation of powers, the independence of the judiciary and judicial

the independence of the Constitutional Court and then even further to what has already been

These concepts have been mentioned, the judge and other parts of the President's

the design of the contested provisions, related to the obligations laid down by

judges periodically undergo training in Judicial Academy (§ 82 para.

2 the second sentence). It is by law established as an organizational component of the State (section

129 para. 1), over whose activities the Ministry of supervision

Justice (§ 130 (4)). It is run by a Director appointed by and odvolávaný

the Minister of Justice, with content, educational activities

marshaling of judges and the Judicial Council shall establish the degree programs of the Academy,

appointed again Minister of Justice (article 130 (2)), which also

a proposal from the Director of the Judicial Academy appoints and dismisses the teachers at the Academy

acting (§ 133). It follows from this that it is again mainly executive power,

as represented by the Minister of Justice which the law gives permission

determine the method of training to all judges, for although the law allows

vocational training also through the Supreme Court (§ 129 para.

3), it is the idea that the Supreme Court in its current

decision-making and other activities could do to an extent, what law

assume for all judges in its appointed time range (section 131 and

132 of the Act). Such a status, arising from legal provisions, as

from the top, where the way of education indicated, including the definition of its content

It remains de facto in the hands of the Executive, cannot be accepted, since it is a

another manifestation of the principle of the separation of powers and the improper influence of a noncompliant

Executive on judicial power. Having regard to the nature of the power cannot be without

further assume that the Executive power during the existence of the law it

permission will be granted sebeomezujícím and languid manner this

permission also exercise. In this context, it should be pointed out once again

that is the job of the judicial branch, through the judicial

independence as provided its proper performance, protect the rights of

citizens, and even before the libovůlí or unauthorized interventions of the State, thus able to

of the Executive. The ability to influence the nature of this protection, albeit in a manner

outwardly-requirement of sound to ensure professional competence

judges, may under the law, designed to lead to State

restriction as follows, on the basis of independence. The system of education, driven

in fact, from the center of power of the Executive, not also to independent and free

the formation of opinion needed and necessary prerequisite of the widest possible openness with

the possibility of the confrontation of different opinions from various sources (the choice of which

should be left to the autonomous decision of the judge alone), including

foreign sources. Such a system also in the context of the law

manner their education and in relation to judges the final

the work (section 132 (2)), which is subject to reviews (whose outcome

It will be so obviously from the nature of things and made conditional on the acceptance in soudcovou

the Academy presented opinions), and it is then when one of the supporting documents

reviews the technical competence of the judge, may cause the perceived

dependence and lead to other undesirable consequences, such as loss of feeling

his responsibility in the process of decision-making itself.



In this context, it should be closer to respond to the observations of the

the Chamber of Deputies, justifying the need for the adoption of the contested act, new reforms

the aim is a quick, fair and uniform of the judiciary, which, however,

It lacks a deeper dive into the issue of unity and uniformity, and betrays

at the same time neujasněnost the nature and function of social phenomena, and institutes

at all. More detailed analysis of any social phenomenon demonstrates the

the presence of the opposing forces acting in it, creating the function

the voltage of both of these relevant elements, voltage, which is

an indispensable condition for social development. In Social Affairs, acting

the principle of polarity creates tension, in addition to a number of other

forms, also between unity and diversity. Out of the said

line the base of democracy, which is also based on the fact

seen as difficult and problematic reality, however at the same time

as the most serious obstacle to the dysfunctional jednokolejnosti. Therefore, even

the "real" unity can be achieved only by střetáváním diverse, to

specific areas of relevant aspects, some of which tend towards

Unity, while others to diversity. The actual source of unity is therefore

should be sought first and foremost in conflict, since only by multiplicity

often significantly diverging opinions and attitudes of each man and

social consciousness of belonging and unity.



Shown in the already quite close connection with the present case, such

consider the requirement of a single justice in the directions for

problematic, both in its aspect unified education and in the

the single aspect of decision-making. Any unity can fulfil

a positive social function only if those who are pointing to it,

They also differ, so more usefully and effectively to

unite. Nothing nepodmiňovaná the unity of the judicial system would in turn lead to

side effects in the terms in which each individual judge was

přikazován to receive further training from the State of a specified source and under

the pressure of the hypertrophy of the unification of every detail being conditions for

a fair assessment of each individual case, the respect of his

uniqueness. Mechanical transposition of the "unified" would lead

not only to the side, but the template itself would endanger the development of legal thought.

In terms of the judiciary can therefore accept the formation of a relatively

the single opinion only in the context of the procedures that they themselves

do not exclude a clash of opinions of various.



To ensure legal certainty and respect for the rights (article 1 of the Constitution) of the corresponding

predictability of decision making is responsible for

future judges, and in finding suitable methods of eligible

to ensure the acquisition of standard procedures in standard situations and

validation of knowledge, not only of legislation, but also judicial case law.

Above all, the task is then to guide the interpretation of the provisions along the lines of

constitutional principles and responsibilities of judges themselves, case-law not only


know, but in a creative way, also reacting to the changing

social reality, to develop it.



It is common ground that the continuous professional training of judges in this

the profession. Referred to postulate, also from

international documents. As previously stated in another context, is

established as a duty to both this Act in section 82 para. 2 and

the law also provides that the judge shall be borne for their level of expertise

liability. This responsibility, and it must be pointed out, however, it is apparent

above all, the very essence of judicial independence with which it is

necessarily need to join, and from which it is the commitment of each

a single judge not only to a fair and impartial decision making,

but also decision-making, contributions to the foreseeable perfect knowledge

legislation and judicial decisions, as this, what is the for attribute

independence of the judiciary and also in the interests of the typical functioning of democratic

the system is necessary, it is just natural joining of this attribute is

judicial responsibilities, resulting also from the article. 90 and 95 of the Constitution and

then in detail, expressed for example. in the article. 6 (1). 1 of the Convention, imposing the Court

the obligation corresponding to the right of everyone to his matter was

fair and public hearing within a reasonable time by an independent and

impartial tribunal. Responsibility and liability for that commitment, however, must bear the

judicial power alone.



It can be concluded that the establishment of the Judicial Academy of law has its

justification with regard to the function you want to perform in training

judicial hopefuls and other personnel of the courts in relation to the

continuous training of judges, however, it is possible having regard to what

indicated above, understood only as one of the possible, the judge

freely chosen sources. The Constitutional Court therefore for these reasons set aside the

all the provisions of the Act, that the training of judges in the Judicial

the Academy lays down as a duty, as well as the provisions on them substantively

follow-up regarding the extent of this obligation.



The last circuit design of the contested provisions [section 15 paragraph 2, second sentence,

§ 26 para. 2 the second sentence, § 30 para. 2, the second sentence of § 34 paragraph 1. 2 sentence

Second, § 68 para. 1 in the words "the Ministry or", section 74 para. 3, §

paragraph 99. 1 (b). (c)) in the words "the Ministry or" § 106 paragraph. 1, §

paragraph 119. 2 (a). 3, § 120, § 121, § 124 to 128] basically refers to

editing method of regulating the exercise of State administration of the courts. When assessing the

This section of the proposal, the Constitutional Court had to take into account that the proposal

President of the Republic, the Constitutional Court is bound by the Petite, not

challenged by the position of the Ministry of Justice as the central authority

the State administration of courts, as well as exceptions, they have not been contaminated by the

the competence of this body.



In the evaluation of the said provisions is key to the provision of section 74

paragraph. 3 of the Act, which States that for a function in the public administration,

does not consider the President and the Vice-President of the Court, the temporary assignment to the

the Ministry, membership of the Council and the Council for the competence of the State

representatives, membership in the governmental advisory bodies of the Ministry, the Government and in

the bodies of the Chambers of Parliament. For the assessment is determining the content of the article. 82

paragraph. 3 of the Constitution, which says that a judge is not compatible with the

functions of the President of the Republic, a member of Parliament, nor with any of the features

in the public administration; the law provides that other activities is the performance

judicial function is incompatible. The Constitution thus establishes which functions are

judge fundamentally incompatible features, taking his first sentence, should be

understood as a non-exhaustive list, the definition can be made in accordance with the

sentence of the second for a semicolon to extend, but not narrow, as it

is the provision of section 74 para. 3 of the Act. Lawmakers thus authorised to

the extension of that enumeration, but not for its limitations, it is not for

change will ústavodárce the release of law over this content, and

Nonpareil in it so its constitutional basis. Therefore, if provided for by the Constitution as

the highest standard of legal force of a judge with incompatibilities rule

any functions in the public administration, for which the activity is to be

undoubtedly be regarded as a substantial part of the activities listed in

the follow-up provisions, which pursue the Presidents and

Vice-Presidents of courts (indeed, the provisions of section 119 (2) and (3) expressly

for State administration bodies referred to), then you cannot make a different conclusion than

that provision is in breach of article. paragraph 82. 3 of the Constitution and in

connection with him, and all other it based on that position

Presidents and Vice-Presidents of the courts and their activities closer to normují. Here is the

However, it should be stressed that the cancellation of these provisions went

The Constitutional Court of the formal reasons only and that derogations

the provisions of section 74 para. 3 of the law did not mean to make clear that the guidance and

the administration of the courts should be entrusted with a person other than the person from among the judges.



The principle of incompatibility of functions, expressed in the above cited article

The Constitution, then it cannot be violated or that the law permitted the

possibility of judges in the bodies of executive power, where appropriate,

legislative, as it further makes the contested provision of section 74 para. 3

the law. The incompatibilities of functions is one of the additional guarantees

judicial independence. As a constitutional principle must be strictly

comply with, and cannot be circumvented or solution, which contains

the provisions of § 99 paragraph 2. 1 (b). (c)) of the Act, according to which judge for

his tenure at the Ministry of only-explicitly-temporarily releases

performance of their duties. Imanentním feature of this feature is its

of stages. Membership in the advisory bodies of the Ministry, the Government and both

houses of Parliament then surely includes the relevant performance of the tasks of the

different components of State power, and the action of judges in those bodies is

so in breach of the principle of the separation of powers, despite the fact that the personal and

non-judicial ties, including when such activities occur, inevitably

increase the likelihood of a potential conflict of interest, and it does so in the impartiality of the

the form of the impartiality of the judges of the sphere.



The Constitutional Court of the reasons for the conflict with the article. paragraph 82. 3 of the Constitution

set aside the provisions of section 74 para. 3, as well as all the other provisions,

that are based on it, the content or systematically connecting, so

How are top listed. In addition, the need to add that to the repeal of the provisions

§ 106 paragraph. 1 led the Constitutional Court, in addition to the reasons already mentioned, the reason

For more, namely a completely generic and vague-the principle of legal certainty

mismatched-expressing the reasons leading to the dismissal of Presidents and

the Vice-Presidents of the courts. In this context, then, the Constitutional Court considered

necessary to note that the functionality of Presidents and Vice-Presidents of the courts should

be considered a career judge (much as is the case in

the case of the appointment of the President of the Senate), and, therefore, neither the Chairman and

the Vice-President of the Court not be revocable for other than law

In addition, the reason for and the procedure in disciplinary proceedings, i.e.. by a court decision.

Such a design, when the Chairmen and Vice-Chairmen of the courts involved

activities which are by their very nature administrative activities, without, however, from this

because these people were losing the quality status of an independent judge, and

catch just to the position of a civil servant, whose distinctive

the feature is the reporting relationship and the respect of commands for work

parent people, is in a number of developed countries of Europe (eg. Austria

Germany, Sweden, Norway, The Netherlands, United Kingdom, Ireland, Italy,

Portugal) considered as an integral part of the principle of separation of powers,

stemming from the requirements of the rule of law, and from it derived the principle

the institutional independence of the judiciary, as well as the principle of uninterrupted

the personal performance of the independent judicial mandate. At the same time the Constitutional Court

He adds that the current state when the central authority of State administration of the courts is

The Ministry of Justice and the judiciary itself does not have its own

representative body on his level (which authority could be

authority is well placed to take on the role of the Ministry in matters of personnel

including the supervision of the professional level of the judiciary, possibly in

other areas of management and performance of the administration of Justice), in the opinion of

The Constitutional Court does not exclude the possibility of indirect enough

influence of judicial power by the power of the Executive (e.g. through

the allocation of budgetary resources and the control of their use). From

What has been previously stated, it is clear, however, that the previous contested

part of the Act were abolished from prevailing part with reference to the

non-observance of the principle of separation of powers. Therefore, when this part of the assessment

the design of the contested provisions and the Constitutional Court itself had to this principle

take care. The Constitutional Court to decide how the

should be dealt with the question of the performance of the administration of courts, as this is the task of the power

the legislative. It should, however, in choosing the model of administration of courts consistently

respect the separation of State powers. To lawmakers has been given

sufficient space for the adoption of the new legislation the administration of the courts, the Constitutional Court

He put the enforceability of that part of the award, i.e.. for those provisions which

are listed in point 2 of the operative part of the award, for a period of up to 1. 7.2003.




The President of the Constitutional Court:



in the z.. Haboob in r.



Vice Chairman



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

the decision of the plenum have been judges. Turgut Güttler, JUDr. Jiří

Malenovský, JUDr. Vlastimil Sevcik and JUDr. Pavel Param V.