On The Proposal To Cancel The Mouth. § 43 Para. 2 Of The Sao

Original Language Title: ve věci návrhu na zrušení části ust. § 43 odst. 2 zákona o NKÚ

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=73752&nr=39~2F2011~20Sb.&ft=txt

39/2011 Coll.
FINDINGS


Constitutional Court
On behalf of the Republic


Constitutional Court decided under ref. Nos. Pl. US 15/10 of 25 January 2011
Plenum, composed of Stanislav Balik, Frantisek Duchon, Vlasta Formánková,
Vojen Güttler, Pavel Holländer, Ivana Janu, Vladimir Kurka, Dagmar
Lastovecká, Jiri Mucha, Jan Musil, Jiri Nykodým, Miloslav Vyborny,
Elizabeth Wagner and Michael Židlická on the proposal of the Supreme court on
partial annulment of § 43 par. 2 of Act no. 166/1993 Coll., on
Supreme Audit Office amended to "
to the Supreme court", with the participation of the Parliament of the Czech Republic
and the Senate of the Czech Republic as parties

Follows:

Proposing the annulment of § 43 para. 2 of Act no. 166/1993 Coll., On
Supreme Audit Office, as amended, under "
to the Supreme Court" is rejected.
Reason


I.

Management subject matter and petitioner's arguments

First Constitutional Court was delivered on 24 March 2010 pursuant to Art. 95 para. 2
Constitution of the Czech Republic (hereinafter "Constitution"), § 64 par. 3
Act no. 182/1993 Coll., On the Constitutional court, as amended
(hereinafter "the Constitutional court Act") and § 224 para. 5 Act No.
. 141/1961 Coll., On Criminal Procedure (Criminal Procedure Code), as amended
amended, the proposal of the disciplinary panel of the Supreme Court, for which it
JUDr. Petr Sabata, chairman of the Disciplinary Panel (hereinafter
"petitioner") to annul part of § 43 par. 2 of Law no.
166/1993 Coll., On the Supreme Audit Office, as amended
regulations (hereinafter the "Act on SAO"), the words "Supreme court"
(hereinafter "the contested provision"). The petitioner also suggested
to assess whether legislation is not disciplinary proceedings
President of the Supreme Audit Office (hereinafter "SAO"), Vice President and members of the SAO SAO
inconsistent with the Czech constitutional order, especially: | ||
First whether the participation of judges in the Supreme Court Disciplinary Chamber of the Supreme Audit Office
enshrined in § 38 par. 2 of the SAO violated the principle of separation of powers under Art. l
Constitution, because the principle of judicial independence is unconditional nature
excluding the possibility of interference by the executive power


And vice versa;

Second that the participation of judges in the Supreme Court Disciplinary Chamber of the Supreme Audit Office enshrined in
§ 38 par. 2 of the SAO in conflict with Art. 82 par. 3 of the Constitution, said
notes the incompatibility of a judge with any other public
administration;

Third whether the provisions of § 43 para. 2 of the SAO in "to the Supreme Court
" violated the individual's right to a fair trial enshrined in Article.
36 para. 1 of the Charter of Fundamental Rights and Freedoms (Resolution of the Presidium Czech
national Council no. 2/1993 Coll., as amended by constitutional Law no. 162/1998
Coll.) as part of the constitutional order of the Czech Republic (hereinafter
"Charter"), because the Supreme court is in the context of disciplinary proceedings SAO
built into the body deciding role in both sets of disciplinary proceedings SAO;

Fourth whether it violated the individual's right to a fair trial enshrined in Article
. 36 para. 1 of the Charter if the president of the SAO on the one hand
petitioner pursuant to § 39 par. 1 of the SAO and the other member
respectively. Chairman of the Disciplinary Chamber of the Supreme Audit Office deciding on disciplinary offense under §
38 par. 2 of the SAO;

Fifth whether the absence of the procedural regulation for proceedings in the Supreme Court
as a court of appeal against the decision of the Disciplinary Chamber of the Supreme Audit Office in contravention of the provisions of Article
. 36 para. 1 of the Charter stipulating
individual's right to a fair trial because the individual is not available
procedural legal provision under which it can proceed with its defense.

Second The petitioner in the draft stated that the decision of the Disciplinary Chamber of the Supreme Audit Office
30th July 2009 sp. Ref. 644 / 09-45 / 101/09, consisting of a chairman Ing.
Frantisek Dohnal and Supreme Court judges JUDr. Karla Hasche and lawyer.
Pavel Kucera, it was decided in disciplinary proceedings against the accused and disciplinary)
Ing. JA, b) Ing. ZB c) Mgr. MH, d) JUDr. EK, e) Ing. JUDr.
JK f) Ing. AM g) Mgr. ZP, h) Ing. JS i) Ing. JV, j)
Ing. LZ k) DVM. RN regarding disciplinary offense committed by means
culpable violation of duties of Vice President or member of SAO
under the Act on the SAO's a form of behavior that disrupts

Dignity and threatens confidence in the independence and impartiality of its people and
SAO at all, so that in accordance with § 16 of the Disciplinary Rules [Disciplinary Rules for
proceedings before the Disciplinary Chamber of the Supreme Audit Office, approved by the Collegium of the Supreme Audit Office
September 21, 1993, as published in Volume 1 of SAO Bulletin 1993 (hereinafter referred
"disciplinary Rules")] disciplinary accused person to waive the charges.

Third The proposal to initiate disciplinary proceedings filed in accordance with § 39 par. 1
Act on SAO President SAO Board. Frantisek Dohnal as a draftsman.
Disciplinary offense should commit accusations that its conduct
allow adoption by the Board of the Supreme Audit Office no. 6 / V / 2009 dated March 11
2009, which is contrary to the law of the SAO, thereby
committed a disciplinary offense within the meaning of § 39 par. 1 (correctly: § 35 para. 1)
Act on SAO. The decision of the Disciplinary Chamber of the Supreme Audit Office filed disciplinary charges
a) to k) in accordance with § 43 para. 2 of the SAO legal deadline
appeal to the Supreme Court. The appeal disciplinary charges) to j) said that
decision of the Disciplinary Chamber of the Supreme Audit Office has "absolutely essential formal
shortcomings as in the operative part of the act is described in which disciplinary
plaintiff saw a disciplinary offense, and propositional part does not contain any reason
waiver of disciplinary charges. " Although the facts sufficiently
understood the evidence presented, the decision itself was based on the opinion
disciplinary accused of completely inadequate and wrongly assessed the facts
state and consequently incorrect legal conclusions drawn.
Disciplinary respondent argued that the SAO Collegium resolution no. 6 / V / 2009 dated March 11, 2009
is not in conflict with the Supreme Audit Office (l), despite the fact that it does not contain any untrue statement
but only objective reality
resulting from the material submitted by the President of the SAO (2), thus
vote disciplinary indicted for the adoption of this resolution is not
infringement (3), which can not meet the factual nature of the disciplinary breach
within the meaning of § 35 of the SAO, since it was not
proved not to undermine the dignity or undermining confidence in the independence and impartiality
persons or members of the SAO SAO as such, let alone
causal link between the vote for the adoption of the resolution and described | || result (4). The disciplinary respondent DVM. RN's appeal
applied the same arguments as other disciplinary charges. It also stated that the reasoning
appeared view that "disciplinary charges
acted outside the law and therefore illegal, but that the social dangerousness or harmfulness
conduct of members of the Board of the SAO has not reached the required level
disciplinary offense, and therefore it was decided as stated in the verdict
decision. " He left the Disciplinary Chamber of the Supreme Audit Office this latent information
considerations influencing decision until the end of the otherwise brief
justification left for members of the Board of the SAO and thus the appellant Signum
guilt. Act on SAO accepted as a supportive source of law for the disciplinary proceedings
Criminal Procedure Code, and therefore the Disciplinary Chamber of the Supreme Audit Office to take into account the system §
226 of the Criminal Procedure Code, which for acquittal knows five reasons, the court accused
pardon, and deny consideration as well as the case law which expressly obliges
accurate description of the act and the reason may have been the
acquittal. The disciplinary respondent must therefore insist on
indicate the reasons that led to the acquittal of the disciplinary charges within
decision statement already on the ground that a press release issued by the Presidium of the Supreme Audit Office
immediately after the announcement of the decision on the outcome of disciplinary proceedings || | against members of the SAO has not failed to note that the members of the disciplinary chamber of the Supreme Audit Office SAO Collegium
disciplinary charges waived, but simultaneously claimed to have acted unlawfully
. The disciplinary respondent is of the opinion that such a report intended
for the uninformed general public may raise doubts about the authenticity
members of the SAO and reduce the credibility of their people, and even SAO
itself. For these reasons, all disciplinary charges designed to be
appellate instance in the matter, ie. A special Chamber of the Supreme Court,
decided that the decision of the Disciplinary Chamber of the Supreme Audit Office dated 30 July 2009
sp. Ref. 644 / 09-45 / 101/09 is canceled and disciplinary charges according to § 42 paragraph
. 4 of the SAO and in accordance with § 16 para. 1 of the Disciplinary Rules, the SAO acquit
disciplinary charges, which consisted in the fact that their actions would allow
adoption by the Board of the Supreme Audit Office no. 6 / V / 2009 dated 11 March 2009 as

This conduct is not disciplinary offense.

Fourth The petitioner has addressed this matter in a closed session held on 27 January 2010 and
after considering their power and competence to
hear an appeal against the decision of the Disciplinary Chamber of the Supreme Audit Office, decided
Resolution sp. Ref. 2/2009 Zp so that the disciplinary proceedings under § 224 paragraph. 5
Criminal Procedure suspended and the matter shall be submitted to the Constitutional Court.

Fifth The petitioner also stated that the SAO is designed as an independent constitutional body
unique in the horizontal system of the highest constitutional bodies,
which exercises control of the management of state property and the implementation
state budget and which is in addition to the legislative, executive and judicial
defined in a separate part five, respectively. in Art. 97 of the Constitution.
SAO independence is both systemic and functional. In addition to the control authority has
privileges of power in relation to other supreme constitutional bodies.
Functional independence means that the SAO is bound only by its scope
law, its activities himself down and does not accept instructions from any other
state authority. Scope, organizational structure and activities regulated by the Act on SAO
. SAO president, vice president and members of the SAO SAO
are subject to disciplinary responsibility for disciplinary offenses (§ 34 and 35 of the SAO). According to § 37 of the Act on the SAO
disciplinary responsibility established and disciplinary measures imposed by the Disciplinary Chamber of the Supreme Audit Office
. It consists of a chairman, who is president of the SAO, and two members
appointed President of the Supreme Court from among the judges of this court (§ 38 paragraph
. 1 and 2 of the SAO). According to § 39 par. 2 of the SAO
applies to proceedings before the Disciplinary Chamber of the Supreme Audit Office Disciplinary Code. The decision of the Disciplinary Chamber of the Supreme Audit Office can
according to § 43 para. 2 of the SAO submitted within fifteen days
appeal to the Supreme Court. Jurisdiction of the Supreme Court decisions as an appellate instance
also follows from § 19 para. 1 of the Disciplinary Rules, the SAO.

6th In terms of the whole concept here, however, in the opinion of the petitioner
it raises several doubts, especially regarding the character of the disciplinary proceedings and
participation and competence of the Supreme Court in this proceeding.
Procedural rules for disciplinary proceedings, which are based on the provisions of § 39 par. 2
Act on the SAO are provided solely for the proceedings before the Disciplinary Chamber of the Supreme Audit Office,
and that according to § 21 of the Disciplinary Rules, unless if this alone
something else or unless something different from the nature of things, apply
provisions of the criminal Code. For the Appeals Act on SAO
or disciplinary procedure does not provide any details.

7th The Supreme Court in its decision dated March 13, 1996 sp. Ref. NKN
1/95 inferred that hear an appeal against the decision of the Disciplinary Chamber of the Supreme Audit Office
in the context of disciplinary proceedings should be considered as a review of the legality of the decision
authorities. In the case of appeals discussed
according to § 43 par. 2 of the SAO if futile as amended
use § 2501 to 250s (Part Five, Chapter Three) Act no. 99/1963 Coll., Civil
procedure (hereinafter referred to as "CPC."), as amended by the amendments and supplements
promulgated under no. 62/1996 Coll., according to the then valid
provisions of § 244 paragraph. 2 of the CPC. belonged
courts to review the legality of decisions by government bodies, local government bodies, as well as
bodies of professional self-government and other legal entities that have been entrusted by law
decisions on the rights and obligations of individuals and legal persons
in public administration . The Supreme Court therefore proceeded by analogy
then editing decisions on appeals against environments
pending a decision of the administrative authorities, since the Disciplinary Chamber of the Supreme Audit Office
perform public administration in a broader sense.

8th Adoption Act no. 150/2002 Coll., The Administrative Procedure Code (hereinafter 's. R.
S. ") And the related establishment of the Supreme Administrative Court as
top judicial body in matters within the jurisdiction of the courts in
administrative judiciary does not reflect these aspects, and treatment
disciplinary proceedings thus remained unchanged. The law on the SAO was therefore still necessary
seen as special treatment for modifying general, therefore, the procedural and jurisdictional
adjustment of administrative justice. Of the transitional provisions of
jurisdiction of the courts enshrined in § 132 s. R. A. Shows that
"unless otherwise provided herein, matters of administrative justice, which
was not decided until the effective date of this Act and which was given

Substantive jurisdiction on the high courts or the Supreme Court
takes over and completes the Supreme Administrative Court. " Transitional provisions
however, does not address how it should continue to be followed in cases in which it was decided
under the previous scheme § 250 liters up to 250s of the CPC., Ie according
provision under which proceeded analogy Supreme Court while driving | || in the case file. Ref. NKN 1/95, and that transitional provisions. r. s.
not taken.

9th According to § 129 par. 1 s. R. S .: "In matters of administrative justice in which
special law entrusts the court to rule on appeals against decisions
administrations in part five chapter three
Civil Procedure , as amended, effective December 31, 2002, can be
date of entry into force of this Act filed within thirty days of receipt
decision, unless a special law deadline otherwise
action under part Three, Chapter Two part one of the Act on if
conditions laid down therein. Unless special law, has
bringing an action suspensory effect ". The provisions of § 129 par. 1 s. R. S.
Regarding the transitional provisions on remedies against administrative decisions
the issue "solved"
filing an administrative action, respectively. management of administrative actions. Given the nature of the disciplinary proceedings should
delegation of powers to decide on appeals against decisions
SAO Disciplinary Chamber of the Supreme Administrative Court was appropriate. However
jurisdiction of the Supreme Court stems directly from the provisions of the Law on the Supreme Audit Office (§ 43
par. 2 Act on SAO), and continues to be so this is called. Causal
jurisdiction of the Supreme Court (lex specialis), which remained
without changes, despite the adoption of rules relating to administrative justice in
1993, respectively. on 1 January 1993, as well as new regulation of administrative
judiciary, ignoring the Supreme Administrative Court and the abolition
original wording of the fifth chapter three of the CPC. This causal
jurisdiction of the Supreme Court, however, is hardly justifiable, entirely
unsystematic, which may even lead to a finding that it is unconstitutional.

10th Objection participation of the Supreme Court in the process of disciplinary proceedings is
exercisable at the very establishment of the Disciplinary Chamber of the Supreme Audit Office.
Next chairman of the Disciplinary Chamber of the Supreme Audit Office, who is president of the SAO are members and alternates
SAO Disciplinary Chamber of the Supreme Court justices, said
is also the appellate instance. Cast Disciplinary Chamber of the Supreme Audit Office, respectively.
inclusion of judges in the Supreme Court Disciplinary Chamber of the Supreme Audit Office and may be challenged by several
facts. The most important seems to be Article. 82 par. 3 of the Constitution, which states
incompatibility of a judge any position in
public administration (office of judge is incompatible with
President of the Republic, a member of Parliament, or any position in public administration;
law shall specify which other hinnostmi the performance of judicial functions
incompatible). For such a feature can also be considered
membership in the Disciplinary Chamber of the Supreme Audit Office. According to § 7 para. 1 of the Act on the SAO Disciplinary Chamber of the Supreme Audit Office SAO
body, even though it is not the SAO itself established. As already mentioned,
chairman of the Disciplinary Chamber of the Supreme Audit Office is indeed president of the SAO, but the remaining two
members are judges from among judges of the Supreme Court as a different body
, extra judicial organ. The Disciplinary Chamber is not a judicial body, and
even though in its activities involved in professional judges, respectively.
Judges allocation and active in the Supreme Court. According to the petitioner's view is
solutions disciplinary offense members and officials of SAO's basically a manifestation
executive power. Disciplinary Chamber of the Supreme Audit Office, as such, then the administrative authority.
Participation of Supreme Court judges, respectively. such as judges, the authority
this type is thus in conflict with Art. 82 par. 3 of the Constitution, because
principle of judicial independence is unconditional nature excluding the possibility of interference by the executive



And vice versa. In this case, it is possible to find an infringement of the principle of separation of powers, and therefore
Art. 1 of the Constitution.

11th Likewise, in the opinion of the petitioner problematic double role
Supreme Court, which decided in the "first" level, ie within
Disciplinary Chamber of the Supreme Audit Office through its representation two of its members, and also decides
as an instance of appeal when it set up a special panel of three judges from the Supreme court
. The Supreme Court is so in the context of disciplinary proceedings

SAO built into the body deciding role in both stages of the disciplinary proceedings
SAO. That policy is violated the principle of two-level proceedings,
thus violated the provisions of Art. 36 para. 1 of the Charter, enshrining the right to a fair trial
. In this case it is a violation of Article. 36 para. 1 of the Charter
also that the president of the SAO on the one hand and the petitioner
on the other hand is a member, respectively. Chairman of the Disciplinary Chamber of the Supreme Audit Office. In this case therefore represents
on one side of the "indictment" and is in a position
himself "judge" who had to be decided. Such an arrangement is
democratic rule of law inadmissible.

12th Another conceptual flaw petitioner appears to position itself
Supreme Court in the context of disciplinary proceedings, the SAO as an appellate instance.
If the Disciplinary Chamber of the Supreme Audit Office administrative body, then appeal to the Supreme Court
be seen as a remedy in the review.
Inferred if the Supreme Court has in its judgment of 13 March 1996 sp. Ref. NKN 1/95
that an appeal against the decision of the Disciplinary Chamber of the Supreme Audit Office is a judicial review of the legality of decisions
government authorities, then it is not a recall,
of which would be decided by the superior authority within the hierarchy, ie.
an authority higher level within a system of bodies, but that an appeal
agent in the review. From this perspective also seems to be the choice concept
"appeal" as inappropriate. Related to the possible objection of bias
judges of the Supreme Court was due to the fact that the law on SAO
allows for filing an appeal against the decision of the Disciplinary Chamber of the Supreme Audit Office
just to the Supreme Court. Although the delegation itself a member of the Supreme Court in
Disciplinary Chamber of the Supreme Audit Office's opinion, the petitioner does not fulfill the conditions laid down
for expressing bias of a judge can not ignore the fact that such legislation is
hundred erode public confidence in its impartiality.

13th The actual proceedings before the Supreme Court as an appeal body against
decision of the Disciplinary Chamber of the Supreme Audit Office is nowhere regulated, respectively. lacks legislation
rules which should be the position of the Supreme Court of appellate
drive. In addition, of course, can not continue to follow the original wording
part five of chapter three of the CPC., Just as you can not use existing
fifth part of the CPC., Because of the appeal against the decision of the Disciplinary Chamber of the Supreme Audit Office
not come under any of the options listed in § 244 os
r., and even if we admit that the Disciplinary chamber of the Supreme Audit Office is
executive authority. There is no internal guidelines, such
Disciplinary Rules for Disciplinary Chamber of the Supreme Audit Office. § 19 para. 2 of the Disciplinary Rules
specified that the disapproves If the Supreme Court appeal, the contested decision
wholly or partially canceled and a decision in the matter itself, however, is
must realize that such wording is completely inappropriate, since it is not possible
to internal guidelines, such as the Disciplinary Rules of the Disciplinary chamber SAO
determined how the court decisions, respectively. High Court.
Such treatment is totally unacceptable. The Supreme Court thus finds that there is missing
procedure rules for the conduct of the Supreme Court as the authority
determining an appeal, which is individual, ie. In this case
each of disciplinary accused impossible to effectively defend themselves. If
individuals due to the lack of procedural regulation prevented in
proceedings to defend itself, respectively. If not available
procedural legal provision under which it can proceed with its defense, the
violated his right to a fair trial enshrined in Art. 36 para. 1 of the Charter.

14th Use of Criminal Procedure as supporting legislation to control
the Disciplinary Chamber of the Supreme Audit Office under the provisions of § 39 par. 2 of the SAO is
analogous situations, since despite the existence of an alternative
procedural regulation is affected by the right to a fair trial individuals also
time when the modification of procedural rules inappropriate. Use of Criminal Procedure
as procedural criminal laws for disciplinary proceedings as an administrative procedure
appears inadequate.

15th For these reasons, the petitioner concluded that it can not continue to ignore
non-conceptual adjustments throughout the disciplinary proceedings SAO, because this is
petitioner seems to be completely inappropriate, with his participation, respectively.
participation of Supreme Court judges as members of the Disciplinary Chamber of the Supreme Audit Office, and especially
jurisdiction of the Supreme Court to hear an appeal against the decision of the Disciplinary

SAO chambers are inconsistent with the Czech constitutional order.

II.

Proposal for granting an intervener

16th Constitutional Court on 29 April 2010 received a petition from Ing.
Frantisek Dohnal, president of SAO, the granting of an intervener
proceedings under § 63 of the Constitutional Court Act and § 93 paragraph
. 1 of the CPC. The Constitutional Court stated that a party to proceedings before the Constitutional Court
can be only one whom the Constitutional Court Act indicates
(§ 28 para. 1-4). In proceedings to annul statutes and other legal regulations
Law on the Constitutional Court, which, according to Article. 88 of the Constitution, the Constitutional Court is bound
, with the exception of cases occurring due process
according to § 35 para. 2 of the constitutional court to intervene in
proceedings to annul statutes and other legal regulations does not.
According to § 69 para. 1 of the Constitutional Court, the party outside
petitioner is the one act or another legal regulation, the annulment
's proposed issued. It follows that Ing. Frantisek Dohnal
Constitutional Court Act does not grant leave to intervene. If then
avoidance of doubt about whether the intervening
was not necessary in accordance with the provisions of § 28 par. 3 of the Constitutional Court to decide
resolution.

III.

Terms of locus standi of the petitioner

17th The Constitutional Court first examined whether the formal preconditions
factual assessment of the proposal, and dealt with as well as the question whether the petitioner
in this case is entitled to bring this proposal.

18th According to Art. 95 para. 2 of the Constitution, on which the proposal is based, dojde-
if the court concludes that a statute which should be applied in resolving a matter is inconsistent with the constitutional order
submit the case to the Constitutional Court .
The Constitutional Court notes that this case is necessary
direct application of the contested provisions of the complainant. The proposal was therefore submitted by an authorized petitioner
.

IV.

Recap substantial parts of the parties' observations

19th According to § 42 para. 4 and § 69 par. 1 of the Constitutional
Court, sent the petition to the Chamber of Deputies and the Senate of the Parliament of the Czech Republic
.

20th Chairman of the Chamber of Deputies of the Parliament of the Czech Republic Ing.
Miloslav Vlcek in a statement dated May 11, 2010 described the legislative procedure
enactment of the SAO and stated that the legislature acted in
belief that the law is in conformity with the Constitution and our legal
Regulations. The Constitutional Court, in connection with the petition
review the constitutionality of the contested provisions and issue an opinion.

21st Chairman of the Czech Senate, MD. Premysl Sobotka in
statement dated May 5, 2010 stated that the proposal to cancel the issue
part of the provision, as well as the issue of disciplinary liability, respectively.
Disciplinary proceedings were contained in the Act on the SAO from the very beginning of its existence and normative
unchanged as part of the law
yet, none of the issues raised did not become a topic for lawmakers
even when one of existing 17 amendments to the Act on the SAO.
Although the Senate on the law on the SAO participated, having been launched only in November 1996
, their responsibility for the state legal system does not relieve.
The Senate did not seek a revision of the legislation still neproblematizované
disciplinary responsibility, hence the disciplinary proceedings, or in connection with the trial
amendments to the Act on the SAO, where it already as the upper chamber of the legislature
participated. From his present demeanor towards
legislative powers may yet be reasonably inferred that if the Senate had any doubts about
constitutional conformity of statutory regulation of disciplinary proceedings, it would be expected
perceptible reaction, whether on the grounds of his organs,
meeting or at the plenum. It is completely up to the Constitutional Court, within the meaning of the Constitution and the Law on the Constitutional Court
evaluate the constitutionality of the contested part
Act.

V.

Text of the contested legislative provision

22nd § 43 par. 2 of the SAO is:

Against the decision of the Disciplinary Chamber of the Office may be filed within fifteen days
appeal to the Supreme Court. The appeal has suspensive effect.

VI.

Constitutionality of the legislative process

23rd According to § 68 para. 2 of the Constitutional Court, the Constitutional Court

- In addition to assessing compliance of the contested provision with the constitutional order -
detects whether the law was adopted and issued within the bounds set by
competence and in a constitutionally prescribed manner.

24th Given that the petitioner did not defect
legislative process exceeded its constitutionally provided competence of the legislature, not
with the principles of procedural economy required this issue in detail and
sufficient, besides taking into account the statements submitted by the Chamber
Deputies and the Senate of the Parliament of the Czech Republic, formal verification
during the legislative process from publicly available information on
http://www.psp.cz.

25th The Law on the Supreme Audit Office was approved by the Chamber of Deputies at its 9th meeting on
20th in May 1993 the necessary majority of deputies, was signed by the appropriate constitutional authorities and
was published June 22, 1993 in the Official Gazette
totaling 43 under number 166/1993 Collection of Laws on page 864.
The Constitutional Court therefore finds that the act was adopted and issued within the bounds set
competence and in a constitutionally prescribed manner.

26th Following this finding, the Constitutional Court to assess the content
contested provision in terms of its compliance with the constitutional order of the Czech Republic
[Art. 87. 1 point. a) of the Constitution].

VII.

Waiving hearing

27th According to § 44 par. 2 of the Constitutional Court, the Constitutional Court
consent of the parties waive a hearing, unless from him
expected to clarify the matter. Because both the petitioner and the participants
management consented to waive a hearing, was from
hearing in the matter was dropped.

VIII.

Consistency of the contested statutory provision with the constitutional order

28th After the Constitutional Court considered the arguments of the petitioner contained in
design and confronted them with the contested provision, it states that the proposal is not justified
.

29th The petitioner seeks review its proposal disciplinary proceedings and SAO
annulment of the contested provision, arguing that the contested provisions
violates an individual's right to a fair trial enshrined in Art. 36
paragraph. 1 of the Charter, because the Supreme Court is in the context of disciplinary proceedings SAO
built into the body deciding role in both stages of the disciplinary proceedings.
The petitioner also considers that the existing provisions in the Act on SAO
violates the principle of separation of powers under Art. 1 of the Constitution, the principle of two-level
procedure, Art. 82 par. 3 of the Constitution, whose diction is not the office of judge
incompatible with the office of President of the Republic, a member of Parliament, or
any position in public administration, and absent here a procedural rule, which was
regulate the procedure of the Supreme court when the appeal is heard
against the decision of the Disciplinary chamber of the Supreme Audit Office.

30th Both material and procedural framework to disciplinary responsibility of the President, Vice President and members
SAO is contained in Part Six ( "Common
provision") in § 34-44 of the Act on the SAO. The provisions of § 34-36 of the Act on
SAO is entitled "Disciplinary Responsibility", § 37 and 38, "the Disciplinary Chamber of the Office"
disciplinary proceedings is concentrated in § 39-43, and the disciplinary action includes
§ 44 of the Act Supreme Audit Office.

31st The Constitutional Court points out that it is aware of the pitfalls that finish
disciplinary proceedings before the SAO and decide on an appeal
Special Chamber of the Supreme Court poses, especially given the fact that
this adjustment does not reflect the existing competence
and procedural rules of administrative justice after the adoption of s. r. s., the Supreme administrative court
, the abolition of the fifth chapter three of the CPC. nor
rules contained in the Act no. 7/2002 Coll. proceedings relating to judges, prosecutors and court executors
, as amended, and to some extent
means petitioner doubts in terms of constitutionality nature
legal regulation and competence of the Supreme court. On the other hand, it is necessary to accept
reasons which led the legislature for approval
contested provision, since the adjustment of disciplinary proceedings is to protect both SAO
from external interference, the proper exercise control functions inside.

32nd This corresponds to the definition of a disciplinary offense listed in the Penal Code for
proceedings before the Disciplinary Chamber of the Supreme Audit Office dated 21 September 1993, which is
"culpable violation of the obligations arising from disciplinary responsible persons
Act on the SAO, or their behavior, which violates the dignity or

Threaten confidence in the independence and impartiality of its people or the Supreme Audit ".
Disciplinary proceedings (determination of liability and the imposition of disciplinary measures)
conducted by the Disciplinary Chamber of the Supreme Audit Office, chaired by the president of the SAO (or Vice President) and
two of its members and their alternates appointed by the President of the Supreme court of
judges this court. The most serious result of disciplinary proceedings may be
proposal to dismiss a member, Vice President
SAO function.

33rd For objective assessment of the matter, the Constitutional Court has compared
disciplinary treatment (disciplinary) liability of the members of the central supervisory authorities of similar
SAO Member States of the European Union ( "EU").
It was found that in the countries surveyed are similar to the tasks entrusted SAO
institutions of various types. UK Office of the State Audit compiled in 2005
comparative study on the status of these bodies (National Audit Office
: State Audit in the European Union. NAO Information Center
Heronsgate 2005). From this extensive study shows that there is no unified concept
financial and budgetary control in EU countries, and this
study, a typology consisting of four different models: in the first case
control authorities considered part of the judiciary || | (France, Italy, Belgium, Portugal, Spain, Greece), the second for
independent collegial body outside the basic threefold division of power
(Czech Republic, Netherlands, Germany, Slovakia, Luxembourg, the European Financial
Justice), third terms of office independent from the government, headed
stands auditor General or the President (Estonia, Poland, Hungary,
United Kingdom, Sweden, Finland, Denmark, Malta, Cyprus, Ireland, Latvia,
Lithuania), and the fourth type of unclassifiable (Austria, Slovenia).
Different position of these authorities within the state mechanism, possibly division
power is also reflected in the analysis institute disciplinary responsibility.
In the case of a judicial body, is constructed in a certain disciplinary liability
basically equivalent to disciplinary responsibility of judges. In the case of collective bodies
However, the existence of the disciplinary liability does not follow a single line.

34th From the collective bodies without jurisdiction, the Czech model
closest to Germany, Slovakia and the European Court of Auditors. While the Czech SAO
what is the position and powers comparable with the Slovak SAO
when it comes to disciplinary responsibility of their members, the Slovak Republic - unlike
Czech Republic - is closely regulated. In the case of a disciplinary offense
proceeds according to labor laws regarding officers, may be
National Council of the Slovak Republic, under certain conditions removed.

35th In the Federal Republic of Germany is the highest authority control
management and budgeting Federal Court of Auditors.
Disciplinary liability shall be governed by identical rules as the accountability of judges of the supreme judicial courts
(§ 3 para. 4 BRHG) and disciplinary proceedings rests with the Federal Court
business, which is a special Senate of the Federal Court.
Federal Business Court shall consist of a Chairman and two permanent judges,
who must be members of the Federal High Court, and two
non-permanent judges, who must be members of the Federal Court of Justice.
Disciplinary proceedings are governed by the Law on Judges (§ 18 par. 3
BRHG), official court acts as the Civil Chamber (§ 61 par. 4 Act on Judges
) and its decision is final (§ 62 paragraph. 1 DRiG).

36th At the EU level is similar to the Czech SAO European Court of Justice (hereinafter
"Court"), which since its establishment in 1975
responsible for monitoring implementation of the EC / EU. Basics of disciplinary responsibilities provided for in Article.
Paragraph 286. 6 of the Treaty on the Functioning of the EU, according to which it may be a member of the Court of Justice
deprived of his office or of his right to a pension or a
stead decision of the European Court of Justice at the request of
the Court of Justice if it finds that the member ceased to fulfill the conditions required for the performance
functions or meets the obligations arising from his office.

37th Furthermore, the composition of the disciplinary bodies may be noted that as examples of
France as a disciplinary body for judges of the Court Court decides
Supreme Court Board of Auditors, which consists of
first President's Court who had also chairs ,
chief prosecutor of the Court of the Court of Justice, the three personalities

Perform unelected in an area that falls within the scope of financial
judiciary, and four judges of the Court's business
longest in the position of Chairman of the Board and nine members elected by the judges of the Court
Court, in special advisers services and external
newsletter. In Italy a similar position and powers as the SAO
Court of Justice (this is an autonomous judicial body), which has its own
internal disciplinary procedure. The sanctions are decided by the Presidency Council, the Court of Justice
composed of: President of the Court of Justice, which she also presides
Attorney General Court, Deputy Chairman of the Court or
doyen of the Section Presidents (Chambers), four personalities among
law professors or attorneys with more than twenty years of experience (two
elected Chamber of Deputies, two Senate) and ten judges
different professional specializations.

38th From the comparison shows that a similar system like the
Czech legal order, within the EU, there is, however you can find some
same elements as in the Federal Republic of Germany, where a disciplinary responsibility decides
Federal Court Staff and within the EU, where
instituting proceedings administered alone, the Court and the proceedings leading
Court of Justice of the EU, a judicial authority. Regarding the composition of the bodies deciding on sanctions
is a valid treatment in France and Italy obvious that
members of these bodies are both judges and other personalities, the President is the presiding
.

39th To assess the substantive provisions of the contested regulation compliance proceedings
appeal against the decision of the Disciplinary Chamber of the Supreme Audit Office of the constitutional order must be
terms of the system based on the constitutionally enshrined independence of the judiciary
(Art. 81 of the Constitution) and judge (Art. 82 Constitution) and the incompatibility of functions
judge with additional features (Art. 82 par. 3 of the Constitution), the plane
individual of the right to a fair trial must be guaranteed
the person against whom the disciplinary proceedings are conducted [ Art. 36 et seq. Charter and Art. 6
Europe's European Convention on Human Rights (hereinafter
"Convention")].

40th One of the essential features of a democratic rule of law is constitutional
principle of independence of courts and judges (Art. 81 and Art. 82 para. 1 of the Constitution), while
according to § 79 par. 1 of Law no. 6/2002 Coll. , on courts,
judges, lay judges and state administration of courts and amending certain other
acts (courts and judges), judges are required to interpret the law
best of their knowledge and conscience and decide on appropriate || | deadlines without delay, impartially and fairly and on the basis of facts
recorded in accordance with the law.

41st The office of judge is a public function, a judge is obliged to avoid interfering
dignity of judicial office without jeopardizing confidence in the independence and impartiality of the judiciary
(cf. § 74 para. 1 and 2 and § 85 of Act no. 6/2002 Coll
.). In Art. 82 par. 3 of the Constitution expressly states that the function of a judge
is incompatible with the office of the President, a member of Parliament and
any office in public administration; the law shall specify which other activities
the performance of judicial duties is incompatible, the first sentence
must be understood as an exhaustive list, although its definition may
in accordance with the second sentence after the semicolon to expand, but not narrow.
Charter then similarly provides in Article. 44 of the first sentence before the semicolon that
law by judges and prosecutors may restrict the right of establishment and another
economic activity and the right enumerated in Article. 20 paragraph. 2 of the Charter.

42nd Constitutionally guaranteed right to judicial and other legal protection provided for in Chapter Five
Charter, Article. 6 Sec. 1 of the Convention and in Chapter Four of the Constitution
ensures the right to a fair trial, in which all the principles apply
proper judicial decisions under the Act and in accordance with constitutional principles
. The content of the means ensuring the right to a hearing
fairly, publicly and within a reasonable time by an independent and impartial court of
, further ensuring the principle of equality and the adversarial
management principle of independence and impartiality of the legal courts and judges, || | principle of oral proceedings and straightness instruct the obligation of courts and the principle
decisions without undue delay. Any natural or legal person has
ie the Czech Republic constitutionally guaranteed right to a fair trial under Article
. 6 Sec. 1 of the Convention.

43rd The Judges of the Supreme Court in the context of disciplinary proceedings as SAO

Body deciding both sets of disciplinary proceedings SAO
stems from the specific mission of the SAO as an independent supervisory body, whose existence
comes directly from the Constitution (Art. 97), and thus the specific editing
Disciplinary Responsibility and disciplinary proceedings before the Supreme Audit Office. SAO fulfills its function
separately and is not dependent neither on the legislative power (parliament) nor
executive power (the government) in order to eliminate political influence on its activities
. It was entirely on the will of the legislature to decide on the composition of the Disciplinary Chamber of the Supreme Audit Office also
what the court will decide on appeals filed
means, as a primary requirement is particularly high and
level of authority that if the Supreme Court was met.

44th It should be also noted that in 1993, when the adjustment
disciplinary proceedings before the SAO approved, was eg.
disciplinary responsibility of judges by Act no. 412/1991 Coll., on disciplinary responsibility of judges, while
with effect from 1 January 1993 it was determined that
Appeals ruled, in case the appeal against the decision of the disciplinary
Senate higher military court or the Supreme court disciplinary panel of the Supreme court
[§ 18 paragraph. 3 point. b)]. In a state where, on the one hand
Chief Justice JUDr. Otakar Motejl appointed as members of the Disciplinary Chamber of the Supreme Audit Office
23 July 1993 JUDr. Pavel Kucera and 24 November 1993
JUDr. Karla Hasche, an alternate member then 23 hervence 1993 JUDr.
Francis Púryho and President of the Supreme Court, JUDr. Iva Brozova
appointed an alternate member on 22 October 2009 JUDr. Jan Bláha and on the other hand
according to the work schedule of the Supreme Court for the period from 1 January 2010 to 31
12. 2010 members of the Special Chamber of the Criminal Division of the Supreme Court judges
JUDr. George Pácal, JUDr. Petr Sabata and lawyer.
Vladimir Vesely, can not be inferred even a possible bias
judges of the Supreme Court. It can therefore be concluded that the petitioner alleged
right of individuals to a fair trial enshrined in Art. 36 para. 1 of the Charter and Article
. 6 Sec. 1 of the Convention is violated, since the members of the Disciplinary Chamber of the Supreme Audit Office and
members of the Special Chamber of the Supreme Court judges are not same.

45th The Constitutional Court based on the view that the petitioner was not the intention
filing a petition for annulment of the contested provisions compromise the independence, impartiality and fairness
Supreme Court judges deciding
but merely call into question the role of the Supreme Court as the court adjudicating on
appeal. Although this is the position of the Supreme Court
exceptional, one can not but conclude that it is not unconstitutional or violate
principle of separation of powers.

46th The petitioner argues that if the decision of the Disciplinary Chamber SAO
status of the Administration participates Supreme Court judges (§ 6 para. 3
disciplinary rules NKU), this treatment could be in conflict with Art. 82 par. 3
Constitution. Even in the context of other petitioners' objections that it violated
individual's right to a fair trial enshrined in Art. 36 para. 1 of the Charter
if the president of the SAO on the one hand, the petitioner
according to § 39 paragraph. 1 of the SAO and the other member, respectively.
chairman of the Disciplinary Chamber of the Supreme Audit Office deciding on disciplinary offense under § 38 par. 2 of the Act
Supreme Audit Office, the Constitutional Court notes that addressing these issues not directly related
decision petitioner's activities according to § 43 par. 2 || | Act on the SAO. There petitioner challenges the constitutionality of a provision that
proposal was challenged. Constitutional Court is therefore not listed
judge. However, in this context, it should be noted that not
standard finish to the disciplinary petitioner currently featured as punitive
judge, and such adjustment could be subject to certain specific conditions
be contrary to the principles protected by the constitutional order .

47th It remains to consider the last objection raised by the petitioner, whether
absence of the procedural regulation for proceedings in the Supreme Court as an appeal
Instance against the decision of the Disciplinary Chamber SAO contrary to the provisions of Article.
36 para. 1 of the Charter stipulating the right of individuals to a fair
process because the individual does not have the procedural legislation
by which it can proceed with its defense.
Petitioner in this connection, it argues that the use of the Criminal Procedure Code as
procedural criminal laws for disciplinary proceedings as an administrative procedure seems
inadequate.

48th Excursion to the issue of procedural rules for disciplinary proceedings may be

Noted that the modification of the disciplinary proceedings, judges, prosecutors and bailiffs
is governed by Act no. 7/2002 Coll., And pursuant to the provisions of this Act
referred to a disciplinary tribunal of the Supreme Administrative Court (§ 3
Act no. 7/2002 Coll., as amended by Act no. 314/2008 Coll.), and unless otherwise
this Act or unless the nature of things something else in disciplinary proceedings
the relevant provisions of the criminal Procedure Code (§ 25 of Law no.
7/2002 Coll.), thereby allowing a subsidiary application of the criminal Procedure Code.
The provisions of § 21 of the cited Act provides that appeals against decisions
in disciplinary proceedings is not permissible. Here it should be noted that the adjustment
disciplinary proceedings relating to judges, prosecutors and court bailiffs
regarding the right of appeal in the context of a fair process
(§ 21 of Act no. 7/2002 Coll.) Constitutional court has examined the findings
dated September 29, 2010 sp. Nos. Pl. US 33/09 (promulgated as no. 332/2010 Coll .;
also available on http://nalus.usoud.cz).

49th In contrast, in the present matter, disciplinary responsibility established and disciplinary
measures imposed by the Disciplinary Chamber of the Supreme Audit Office pursuant to § 34 et seq.
Act on SAO. § 43 par. 2 of the SAO are expressly states that
against the decision of the Disciplinary Chamber of the Supreme Audit Office can be appealed to the Supreme Court
. Act on SAO yet no specific procedural provisions for
him grounded hear an appeal against the decision of the Disciplinary Chamber of the Supreme Audit Office
Supreme Court, only to § 21 of the Disciplinary Rules, the SAO allows for supportive use
provisions of the Criminal Procedure Code, and for disciplinary proceedings before the Disciplinary
SAO chamber. If this is the petitioner in connection with the submission of the draft
refers to § 224 Sec. 5 of the Criminal Procedure Code, is quite aware of the potential
support the use of the provisions of the Criminal Procedure Code and to control
appeal. Analogously can then infer the possibility to use force adjustment
procedure in cases where special legislation to court decisions
appeals against decisions of administrative bodies, and in proceedings on appeal
maintained by the Supreme Court. The Constitutional Court in this regard
recalls that it is not his job (as a body for protection of constitutionality)
assess the suitability of the model adopted for the appeal proceedings
against the decision of the Disciplinary Chamber of the Supreme Audit Office nor the professional qualifications of judges of the Supreme Court
decision on the appeal, but to abstract
control of constitutionality and assess whether the contested provision is in conflict with
Czech constitutional order.

50th In its settled case law, the Constitutional Court has repeatedly concluded that
state power - in relation to the normative legal acts especially
legislative power - in their activity led command proportionality
(adequacy) and ban legislative arbitrariness. The starting point is
test the constitutionality of the contested legislation, based on a gradual exploration
three conditions for acceptance of the constitutional provision:
suitability (purpose), necessity (necessity) and proportionality (in the narrower sense
). In this test the constitutionality regards the assessment of whether the means chosen
(intervention) is not capable of achieving the intended goals
whether there friendly resource that could lead to
similar effect, and finally, whether there an excessive and unjustified
favoring one of the basic rights before the law otherwise.
Doing so it must be true that the more intensive intervention by public power is, the stronger must
this restriction be legitimate general interest [cf..
also judgment of the Constitutional Court dated 9. 10. 1996, file no. Nos. Pl. US 15/96 (N 99/6 SbNU
213; 280/1996 Coll.)].

51st The purpose of the contested provision is to enable it, against which
disciplinary proceedings are conducted to appeal, which has suspensive effect, the Supreme Court
. The Constitutional Court considers that the possibility of an appeal
means the Supreme Court is certainly a legitimate aim and
contested provision is liable to meet the requirements laid down in Art. 1 and 4 of the Constitution.
Such a measure is capable of achieving the capability of meeting
purpose (the intended target), which is to ensure a fair trial and protection
confidence in an independent, impartial and fair court decisions.

52nd However, further examine the necessity must be the chosen means of
terms of its sustainability in relation to fundamental rights, which, in the opinion of the petitioner violated
ie. A violation of the right to fair

Process. From the perspective of the principle of necessity in this matter, given
rational connection between the objective and the means chosen to ensure its implementation.
Given the nature of the disciplinary (disciplinary) proceedings and the possible severity of the impact
decision of the Disciplinary Chamber of the Supreme Audit Office disciplinary accused
be filing an appeal to the Supreme Court construed as fully legitimate disciplinary
right of the accused to appeal in
judicial review decision of the Disciplinary chamber of the Supreme Audit Office. Filing an appeal as the means used to achieve the goal
(review of the legality of the decision) is therefore a means
sound and necessary in relation to ensuring the right to a fair trial
(Art. 36 of the Charter and Art. 6 of the Convention).

53rd As regards the third criterion, ie the criterion of proportionality (in the narrower sense
) detriment in a fundamental right may not be disproportionate in relation to
intended destination, ie. The measures restricting fundamental human rights and freedoms
not the case a conflict between a fundamental right or freedom with the public
interest, the negative consequences exceed the positive
represents the public interest in these measures. The Constitutional Court did not find
that the contested provisions in comparison with other measures which permit achieving the same aim
unconstitutional procedure restricting the right of
against whom disciplinary proceedings are conducted on a fair trial or be contrary to the
constitutional order. The legislature was obliged to ensure that the chosen
approach was based on objective and reasonable grounds (a legitimate aim
legislature) and that between that aim and the means of achieving
(legal advantages) there is a proportional relationship.

54th Modifying the disciplinary proceedings before the SAO's impossible to deny the difference of treatment
eg disciplinary procedures. Judges, prosecutors and bailiffs Act no. 7/2002 Coll
. However, this difference can be explained by both the specificity
position SAO and nereflektováním current legislation, which operates
semblance of a misconception. Lack of concept, however, does not automatically
unconstitutional. It can not be that if the legislature in relation to
adoption of Act no. 7/2002 Coll. and s. r. a., with the establishment of the Supreme Administrative Court
and the abolition of the original changes in the CPC. (§ 250 liters up
250s) in matters of deciding on non-final decisions of administrative bodies
changed to customize the Disciplinary Responsibility President, Vice President and members
SAO any other modification of the disciplinary proceedings is
accordance with the constitutional order. In terms of third
principle of proportionality (in the narrower sense) can not be even compared with the adjustment disciplinary
(disciplinary) responsibility in other EU countries, but state
that the measures chosen are proportionate to the the intended destination, and it
protect the fair trial rights of persons against whom was filed
disciplinary action.

55th Thus, the Constitutional Court found no evidence that the contested provision
principle of proportionality in relation to all three components under consideration
violated or that would result in his application constituted an abuse of rights
protected by the constitutional order.

56th You can thus conclude that the public interest in maintaining the authority and impartiality of the judiciary
is protected by failing to appeal against the decision of the Disciplinary Chamber
SAO decides special bench of the Supreme Court, therefore
supreme judicial body guaranteeing the independence and impartiality court.
We can add that in a situation where a modification of the rules of procedure
appeal before the Supreme Court can be used analogously régime
procedure in cases where special legislation to court decisions on appeals against
decisions of administrative bodies is entirely
legislators, whether with regard to the special status of the SAO
deciding on appeals against decisions of the Disciplinary chamber of the Supreme Audit Office adjusted to suit
shift in legislative developments that occurred since the adoption | || Act on the SAO, or retain the existing arrangements.

57th Based on aspects of constitutional examination of the case,
Constitutional Court found no arguments to justify compliance
proposal or did not find any contradiction contested provision with the constitutional order
Czech Republic. Therefore, the proposal to repeal the provisions of § 43 para. 2 of the Act on SAO
in the "Supreme Court" under § 70 par. 2
Law on the Constitutional Court.

Chairman of the Constitutional Court:

Pp. JUDr. Holländer vr
Vice