397/2006 Sb.
FIND
The Constitutional Court
On behalf of the United States
The Constitutional Court decided on 11 July. July 2006 in plenary in the composition of the President of the
Pavel Rychetský and judges Stanislav Duchoň, Franz Package, Vlasta
Formankova, Turgut Güttler, Pavel Holländer, Ivana Janů, Vladimir Crust,
Dagmar Lastovecká, Jan Musil, Jiří Nykodým, Miloslav Výborný, Eliška
April Wagner and Michael about the design of JUDr. I. (B). the repeal of section 106
paragraph. 1 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 Act), as amended by Act No. 192/2003 Coll.
as follows:
The provisions of § 106 paragraph. 1 of 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 by Act No. 192/2003 Coll.,
be repealed on the date of publication of this finding in the statute book.
Justification
(I).
On 8 June 1998. 2.2006, the Constitutional Court received a constitutional complaint the complainant JUDr.
I. (B). President of the Republic against the decision of 30 August. January 2006 no.
KPR 966/2006, kontrasignovaného the Prime Minister, who was recalled from the
President of the Supreme Court, the features associated with a proposal to cancel
the provisions of § 106 paragraph. 1 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), FPM, amended, (hereinafter also
"the law on courts and judges"), and with the proposal to suspend the enforceability
This decision. The applicant justifies its proposal primarily
breach of the principle of separation of powers in the State and a threat to the independence of the Court
power, and as a result of the application of the provisions of § 106 paragraph protiústavního.
1 of the law on courts and judges it should be denied the right to a judicial
protection, and thus was constitutionally guaranteed rights affected by the within the meaning of article 87(1).
36 of the Charter of fundamental rights and freedoms.
Second Chamber of the Constitutional Court did not find the reason for the rejection of the constitutional
a complaint pursuant to section 43 of Act No. 182/1993 Coll., on the Constitutional Court, as amended by
amended, (hereinafter referred to as the "law on the Constitutional Court"), as
application of the contested provisions of the occurrence of the event which is the subject
a constitutional complaint, the formal conditions are fulfilled its consultation
According to § 43 para. 1 and the constitutional complaint was not found to be manifestly
unfounded according to § 43 para. 2 (a). and). Therefore, the II. the Senate pursuant to section
78 para. 1 of this Act, the proceedings on constitutional complaints and proposal for
repeal of the law, i.e. the provisions of § 106 paragraph. 1 of the law on
courts and judges, the plenum of the Constitutional Court to forward the decision referred to in
article. 87 para. 1 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution").
Plenum of the Constitutional Court decision in proceedings relating to the specific control standards,
and in the case law relating to the consequences of the derogačního award in this
management, based on the fulfilment of the conditions of section 74 of the Act on the Constitutional Court [see
in particular, the findings SP. zn. I. TC 102/2000, SP. zn. I. ÚS 738/2000, a collection of
the findings and resolutions of the Constitutional Court (hereinafter referred to as "the decision"),
Volume 24, no. 179 and 180], the Constitutional Court has repeatedly stressed:
"Although constitutional complaint and proposal to repeal provisions of the Act
represent relatively separate proposals on which the Constitutional Court decides
separately, their content cannot be overlooked. This type of
proceedings before the Constitutional Court falls within the so-called. specific
control standards, when the stimulus for decision-making of the Constitutional Court of the
the constitutionality of the contested legislation is judged by specific case in which the
the contested provision was applied. It is true that compliance with the proposal of the
repeal of legislation cannot automatically infer whether or not to comply with the
the constitutional complaint. It is not possible to completely rule out-albeit an exceptional
situation-when even after the annulment of the contested provisions of the legislation
The Constitutional Court shall reject the constitutional complaint as unfounded, as it finds that the
in the specific case of the repealed provisions affected not constitutionally protected
the fundamental rights of the complainant; However, it is also obvious that, in deciding
on the constitutional complaint, the Constitutional Court must to the derogačnímu finding in the proceedings of the
control standards into account. Otherwise, it would be from the constitutional
the complaint did not meet his subjective function, IE. protection feature
constitutionally guaranteed fundamental rights or freedoms of complainant. ". To
referred to the Constitutional Court adds that a prerequisite for the initiation of this
the type of the specific control standards are properly administered and the permissible constitutional
the complaint.
II.
The Constitutional Court has requested in accordance with the provisions of section 69 of the Act on the constitutional
observations of the parties to the court proceedings-both houses of Parliament.
The Chamber of deputies in its observations of 5 December. 4.2006 described the reasons for the
the adoption of the amendment to the Act on courts and judges in connection with the findings
The Constitutional Court, SP. zn. PL. ÚS 7/02, referring to passages of the explanatory memorandum
the message, which stated that the proposed adjustment is not in conflict with
international treaties or legal instruments of the European communities.
The proposal is not according to the explanatory memorandum, nor in contradiction with the European
the agreement on the Association of the Czech Republic to the European communities, or with
the General principles of Community law. The proposed adjustment
respects the recommendations of the Committee of Ministers of the Council of Europe (No. 94) 12 on the
independence, efficiency and role of judges and is not in conflict with other
international instruments relating to the independence of the courts, judges and
the performance of the judiciary.
The Chamber of deputies also stated that the amendment to the Act on courts and judges
10 was adopted. June 2003 the ordinary legislative procedure and the
the legislature acted in the belief that the law is adopted in accordance with the
The Constitution and our legal system. It is therefore for the Constitutional Court to the constitutionality of the
the contested provisions, to assess the decision and released.
The Senate in its observations of 10 February. 4.2006 also recounted the reasons
that led to the amendment to the law on courts and judges, and the provisions of the
§ 106 paragraph. 1.
The Senate discussed the Bill on the sixth meeting of the fourth term of Office
29 April 2004. May 2003 and on the basis of the recommendations of the Constitution Committee
decided to return the Bill adopted by the House of representatives, as amended by
the amendments.
To the merits of the present case describes the most important moments in the Senate
the development of the model of administration of courts since 1991, pending the adoption of the amendment to the
courts and judges. Furthermore, the powers of the President of the Republic and recapping
the Minister of Justice concerning the appointment of the Chairmen of courts and also
the position of the Presidents of the courts in the exercise of State administration of the courts. In the wake of
It notes that the applicant does not deny its on your filing
the action in the dvojjediné function of the judge and the President of the Court, therefore, restrict
The Senate only on the demise of the observations of the President of the Court of appeal.
The Chamber notes that, when discussing the amendment to the law on courts and
judges stood up in the wake of the Constitutional Court, SP. zn. PL.
TC 7/02 on the opinion, according to which, in a situation where they have a Government
exercise of judicial functionaries-judges, it is necessary to strengthen their
independence from the Executive power, at least when it comes to their appeals.
In the opinion of the Senate was supposed to be the Chairman and Vice-Chairman of the Court from a function
revoked only by saving a disciplinary measure, and after completion of the disciplinary
control. The reason for the imposition of disciplinary measures should be a violation of the law
the obligations laid down in the performance of State administration Court, serious
way. Whether in a particular case was to populate the
qualified because he had to decide by law, predicted the Disciplinary Chamber.
This intention to reflect the amendments with which the Senate returned the law
The House of representatives back.
III.
The Constitutional Court then proceeded to examine whether the subject
Amendment of the Act on courts and judges has been adopted and published within the limits of
The Constitution laid down the competence and constitutionally prescribed manner as
the primary criteria for review according to the provisions of § 68 para. 2 of the law on
The Constitutional Court.
The Constitutional Court has verified that the amendment to Act No. 6/2002 Coll., carried out by law
No 192/2003 Coll. was adopted by the Chamber of Deputies on 13 November. 5. in 2003, for
proposal submitted 175 members and one was against. On 14 June 2005. 5.2003 was the
the Bill sent to the Senate, which it discussed on 29. 5.2003, and
the resolution decided to return the Bill to the Chamber of Deputies, as amended by
the adopted amendments. For proposal voted 60 present
Senators, no one was against the proposal. In the context of the completion of the legislative
the process approved by the June 10. 6. in 2003 the Chamber of Deputies a draft law on
the text of the transferred to the Senate. The law signed on 18 July 2005. 6.2003, President
States, the effectiveness of the law occurred on the day of its publication in the collection of laws under the
No 192/2003 Coll., on 1 May 2004. 7.2003.
The Constitutional Court therefore finds that the law has been duly adopted and issued in
the meaning of § 68 para. 2 of the Act on the Constitutional Court.
In the context of a statutory requirement the Constitutional Court first defined the factual
status in terms of the provisions of the framework, which is the subject of the review and of the
point of view of the relevant provisions of the constitutional law with which this
provisions in a possible conflict.
Subject to the provisions of section 106 review para. 1 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
subsequent amendments and additions, the text of which reads as follows: "the President and the Vice-President
the Court can be dismissed from his post by who to feature his name,
If seriously or repeatedly violates the statutory
obligations in the exercise of State administration of the courts. President of the College of the Supreme
the Court or the Supreme Administrative Court of the College may be of their function
revoked by the function named him if does not comply with its
the obligations ".
The provisions of § 106 paragraph. 1 of the law on courts and judges of the complainant
challenged for lack of basic constitutional principles-in particular with the
the principle of the separation of powers in the State and the principle of the independence of the judiciary.
The Constitutional Court at the outset of the constitutional review in the case notes that
the basic constitutional guarantee of separation of powers democratic State are
governed by the provisions of the article. 2 (2). 1 of the Constitution: "the people are the source of all
of State power; It carries out through the authorities act,
Executive and judicial. ", the principle of the independence of the judiciary is governed, in particular,
the provision of article. 81 of the Constitution, according to which "the judicial power exercised on behalf of the
the Republic of independent courts. ", and the provisions of the article. 82 of the Constitution, whose paragraph. 1
States: "judges are independent in the performance of their functions. Their
Nobody may threaten impartiality. ", and according to the para. 2 "the judge
You cannot appeal against his will, or translate to another court; exceptions
resulting in particular from disciplinary liability provided for by law. ". For more
the guarantees, which also has to ensure the Elimination of external influences on performance
the judiciary, is art. paragraph 82. 3 of the Constitution, according to which "a judge is not
compatible with the function of President of the Republic, a member of Parliament, or with
any functions in the public administration; the law provides that other
activities is the performance of the judicial function is incompatible. ".
In this context, the Constitutional Court notes that in its finding in
things SP. zn. PL. ÚS 7/02 (ECR, Volume 26, finding no. 78;
promulgated under no. 349/2002 Coll.) comment in General, to the principles of the Division of
power, its historical context, and in particular pointed out that "However even
in the realm of justice does not seek democratic State of maximalistické programs,
and it is therefore entirely a notion of ' judicial State ', is on the other
side obliged to create the institutional prerequisites for what, if
as for the judiciary, valid as specific and unconditional, that is, the Constitution of the
and the establishment of the real independence of the courts, such as the stabilisation not only-
their positions, but also the entire democratic system, in relation to the
legislation and executive branch-an important státotvorného, but at the same time
polemického element. Referred to the real independence of the judiciary is specific and
an indispensable attribute of the judiciary, reasoned and also required
article. 4 of the Constitution, according to which the fundamental rights and freedoms are protected by the
the judiciary, as well as the article. 81 and 82 of the Constitution, according to which the judicial power
on behalf of the Republic is exercised by independent courts, with the judges are
the independent performance of their functions and their impartiality must not threaten no one.
Already established specific feature and content of judicial power cannot, therefore, be
questioned, and its basic features are not compatible with the
in no way can other State infiltration, a premise was in
The Constitutional Charter of the Czechoslovak Republic introduced by law No. 121/1920
Coll. expressed provisions of § 96 para. 1, according to which the judiciary is
in all mills separate from the Administration, then in the current Constitution in article. 82
paragraph. 3, according to which the Office of judge is incompatible with the function of
President of the Republic, a member of Parliament or with any public functions
Administration. The principle of the independence of the Court has, therefore, in this respect, as already
given the nature of exclusive, unconditional option ingerence of the Executive
power. "
Therefore, you can say that one of the basic conditions of the rule of law is strong and
an independent judiciary. In a State that has to be considered as State legal,
judicial power shall be regarded as one of the three powers, that has the same
weight as Executive power and legislative, to which it must be judicial power in what
as far as possible, with the independent judicial power particularly highlighted the constitutional
protection of independence enjoyed by the as the only of the three powers. This principle has been
more or less enshrined in most of the World Institute; sometimes even in those
States, where the justice system has not (or may not) be effectively independent. There is a
the danger that this policy remains, it does it in a custom text
the Constitution, or at least in the legislation governing the judiciary is governed by,
other principles that can be drawn from constitutions of most Western European States,
as well as of the most important international documents relating to the
the issue of independence of the judiciary, only theoretical constructs. In
this context can refer to for example. the European Charter on the Statute for judges
The Council of Europe, which was adopted during the session in Strasbourg, 8. up to 10.
July 1998, and to the explanatory memorandum thereto. Within the meaning of article 87(1). 1.3
referred to the European Charter on the Statute for judges of the Council of Europe the necessary
the requirement of ensuring the independence of the judiciary is that the conditions
affecting the selection, acquisition, appointment, promotion or dismissal
judges allow for independence from the Executive and the legislature.
IV.
From the perspective of the comparison it should be noted that, in democratic countries
There is no single model of the arrangement of the administration of courts, by contrast, can talk about the
the plurality of these models. The current systems of European countries are mostly
affected by their constitutionally legal traditions, they are rather the result
gradual slow development. With the exception of article. 6 of the European Convention for the protection
human rights and fundamental freedoms and some of the recommendations of the Council of Europe or
There are elaborate in detail the UN common standards of the Organization and
the administration of Justice. This area is without prejudice to Community law, or
The European Community has no competence in this respect.
Despite the plurality of institutional models of judicial administration can be used for all
European countries or for their groups to pick out the common features. In
all European Union countries and in most of the accession countries is
respected the principle of the independence of the judiciary, whether at the level of constitutional,
statutory, or follows from practice (interpreted).
The individual independence of each judge, only
some countries, increased attention is given to the independence of the judiciary
as a whole, i.e.. as the third power in the State. Guaranteed either by converting
significant powers to the Supreme Council of the judiciary (Italy, France,
Spain), or distinguishing the judicial management and State administration in the framework of the
the classical model (Germany, Austria).
On models of judicial administration, which include the Supreme Judicial Council
(hereinafter referred to as "the Council"), can be distinguished in the following systems:
-Southern model, in which the Council took over from the Government significant powers in the
the area of the appointment of judges and judicial officials and punitive control over the
them, however, lacks major powers mostly in the administration area
the judiciary (budget, asset management)
-Northern model (Sweden, Denmark, Ireland, the Netherlands), in which the Council has
in particular the powers of the economic and administrative, for the most part lacks
the powers of the personnel
-a combination of both (e.g. organisation of the judiciary system. Hungary), where
the Council took over the extensive powers in both areas and, in principle, the responsibility of the
for the judiciary as a whole.
In most Western European countries, the Ministry of Justice,
or the Government, retain significant powers and control mechanisms to
the judiciary and the establishment of the Council. This is true of the northern model, where the Council
often shares certain powers with the Ministry of Justice and the system
works on the basis of mutual agreement. In all top Government
the bodies of the judiciary also are represented nesoudci.
The level control of individual courts dominated by the traditional system, when
all courts corresponds to the agenda the President-judge. At the same time but can be used for Administration
each of the courts noted a tendency to transfer certain powers to the
the master of the court clerk, Chancellor, Director, etc. Even in these
judicial officials in many States mix their judicial and
administrative functions.
In most European countries is preferred functional solutions, the
systems are being reformed, the independence of the judges in the decision-making
activity is always guaranteed (see study Department of Justice-to
the solution of the situation after finding SP. zn. PL. ÚS 7/02).
In the.
From the perspective of the development of legislation in the Czech Republic the Constitutional Court
notes that the management of the courts was always carried out after 1948 President
(or Vice-President) of each of the courts, who in the exercise
supervised by the Ministry of the Minister of Justice, respectively, which
also from his Office were responsible.
The beginning of the 1990s. years to the adoption of new judicial laws covering
comprehensively Justice-Act No. 335/1991 Coll., on courts and
the Judges Act, Act No. 447/1991 Coll., on certain measures in the justice system,
on the election of lay judges, their acquittal and removal from Office and the State
administration of courts in the Czech Republic and Act No. 412/1991 Coll. on disciplinary
the liability of judges.
These laws preserve the terminology established by Act No. 62/1961 Coll.
the Organization of the courts, which consisted of the replacement of the term "administration of courts" (see
Yet the provisions of § 38 paragraph 1(a). 1 of law No 66/1952 Coll. on the organisation
the courts, which used the previous terminology) the term "State administration
the courts ". At the same time adopted in principle and method creation and termination of the
the Presidents of the courts within the meaning of the Executive through the ingerence
the Minister of Justice. In the case of the President of the Supreme Court was his
election and dismissal of the legislature, gradually replaced by the appointment and
termination of appointment by the President of the Republic, thus in a sense
to weaken his personal independence.
State administration of the courts was in the Czech Republic at the central level conferred on the
The Ministry of Justice and its performance was made the Chairman and
Vice-Presidents of courts vicariously by or under the direct
The Ministry of Justice. Explicitly expressed the principle, however, was that
performance of State administration of the courts was not allowed to interfere with the independence of the courts. In
half of the year 2000, as an expression of judicial reform proposals
the two laws, in which, in addition to other changes to the anticipated turnaround in
the administration of the courts. The administration of the judiciary should be distinguished from the State administration
of the courts. The administration of Justice would ensure the staffing issues of the courts below
the auspices of the Supreme Council of the judiciary and State administration to ensure
material of the courts through the administrative departments of child
The Ministry of Justice. This concept was the Chamber of Deputies
rejected. An attempt to further reform in 2001, petrifikoval in the conditions of
United States historical conception of the State administration of courts held after
the line of the Ministry of justice-the Presidents (Vice-Presidents) Court and the
This concept was later incorporated into the legal adjustments which is made
de lege lata the law No. 6/2002 Coll., Act nevetoval, President of the Republic
However, a review of the law, initiated by the Constitutional Court in the framework of the
abstract review of the standards.
The result of this review was the finding of the Constitutional Court SP. zn. Pl. ÚS
7/02, which was (among other things) abolished all provisions relating to
editing method of regulating the exercise of State administration of courts (article 74, paragraph 3, and
seq.). To the repeal of § 106 paragraph. 1 led the Constitutional Court another reason, namely the
completely generic and vague-the principle of legal certainty, the mismatched-
expression of the reasons leading to the revocation of the Presidents of the courts. The Constitutional Court
also stated that the function of the Presidents of courts should be considered
career progression of the judge, and therefore should not be revocable otherwise than for
In addition, the law of reason and the procedure in disciplinary proceedings, i.e.. by decision of the
the Court.
Reaction to the find of the Constitutional Court was a Government amendment to the law on courts and
the Judges Act, which also touched on the provisions of § 106 paragraph. 1 and assumed
the ability to assess the obligations laid down by law, in the exercise of State administration
the Court as the disciplinary transgressions in disciplinary proceedings before an independent court, and
sanctions should not be only an appeal judge, but having regard to the seriousness of the
breach of the obligation, it was possible to vote as well as other measures. In this form,
the proposed amendment was not approved by the Chamber of Deputies. The Government of the
submit a new proposal, which endorsed former State administration model
of the courts. During the discussions in the Chamber of Deputies was again being enforced
the principle of "who appoints, dismisses the" and the provisions of § 106 paragraph. 1 of the law on
courts and judges as amended was adopted, in which has been attacked by
by the appellant.
In comparison with the original text, therefore, amendment of the Act on courts and judges
possibility of appeal of Presidents (Vice-Presidents) courts for his performance
in particular, the substantive obligations only narrowed the possibility of appeal for serious
or repeated violation of the obligations prescribed by law in the exercise of State
Administration.
Vi.
In connection with the dismissal of the President of the Supreme Court under section
paragraph 106. 1 of the law on courts and judges, the Constitutional Court assessed the first
the possible applicability of this provision.
The President of the Supreme Court is appointed by the President of the Republic on the basis of
article. 62 (a). (f)) of the Constitution, therefore, on the basis of its autonomous powers
independent of the countersignatures Government. In this Department the appointment of the President of the
the high authority of the judicial system by the Government is politically profiled
should be seen as an element of the Department (and hence of independence) can the Court.
However, it should be noted that in the other systems are experiencing the absolute
the separation of judicial and executive power, when no authority Executive Chairman
the Supreme Court does not appoint and executive power carries out the particular role of the
consultative, or proposing candidates.
The Constitution, as is clear from the previous, ensures personal independence
President of the Supreme Court to the Government in the appointment; However, this shall not affect the
the need to maintain the independence of such personnel and in the course of performance
function and its demise, especially when the demise of the dismissal. If
President of the Republic shall be empowered to appoint the President of the Supreme
the Court, without any restrictions and without cooperation with any other
power authority cannot be inferred when the silence of the Constitution is nothing unlimited
power to the appeal of the President of the Supreme Court. In a situation where the power
the appeal of the President of the Supreme Court is not explicitly mentioned in the Constitution, the
the adoption of the interpretation, according to which the jurisdiction of the President of the Republic to the
the designation also implies the tacit option its appeal, contrary to the
constitutionally protected value the independence of the judiciary and its departments
from the power of the Executive. President of the Republic is so vested in the system that
does not separate the judiciary from the Executive in absolute jurisdiction only
the Office of President of the Supreme Court, and in terms of influencing its
the course and with no constitutional competence of the President
does not count.
Rule according to which, "who appoints, dismisses the", it is perfectly logical in
cases where it is the direct relationship of superiority or subordination.
Such a relationship, however, is not between the President of the Republic and the President of the
The Supreme Court (standing at the head of the high authority of the judiciary pursuant to art.
92 of the Constitution). It is possible to conclude that, as in the case of the Supreme
the inspection authority and the Czech National Bank or in the case of another
authority of judiciary-Supreme Administrative Court-acts of the legislature in
the intentions of the article. 63 para. 2 of the Constitution even though the Supreme Court by editing the
revocation in section 106 paragraph. 1 of the law on courts and judges.
VII.
The Constitutional Court in its findings (SP. zn. PL. ÚS 34/04, SP. zn. Pl. ÚS
43/04-promulgated under no. 355/2005 Coll. and under no 354/2005 Coll.)
the content of the constitutional principle of interpreted authoritatively for judicial independence:
"The principle of an independent judiciary is one of the essential requirements
democratic rule of law (article 9, paragraph 2, of the Constitution). Request
independent of the judiciary stems from two sources: from the neutrality of judges as
the guarantee of a fair, impartial and objective legal proceedings and of
safeguarding the rights and freedoms of individuals by the judge odčleněným from the political
power. The independence of judges is guaranteed by a special legal safeguards
position (to be classified, non-repudiation, nesesaditelnost
integrity), further guarantees of organisational and functional independence from the
bodies, representing the legislative and executive power in particular, as well as
separation of the judiciary from the legislative and executive powers (in particular by the
the principle of incompatibility). In terms of the content is then judicial
independence ensured only by law, judges vázaností IE. the exclusion of
any elements which in his decision making. The essential
the components of the principle of independence of the judiciary, the Constitutional Court comprehensively
dealt with in finding SP. zn. PL. ÚS 7/02. ".
In the context of the present case, the Constitutional Court notes with regard to the conclusions,
that in the past, said that the Constitution implies the need for an autonomous
the position of the judiciary. The Constitution envisaged and the "ideal" status
However, in the Czech Republic does not exist, since judicial power here
does not represent a unique and separate representation,
to manifest externally as one of the independent power, but is in fact
represented by the Ministry of Justice, which is also displayed in the entire
Edit the model courts administration de lege lata.
In this context, it should be pointed out that the Constitutional Court
in the present case is not to judge the constitutionality of editing the whole concept
the national administration of Justice, since it is in the case the competent judge
only the constitutionality of the contested provisions of § 106 paragraph. 1 of the law on courts and
the Judges Act. However, this does not mean the inability to take into account the content of this edit
when reflecting on the constitutionality of the contested provisions; in certain levels is
Indeed, the legislature selected adjustment administration of courts should be taken into account,
because it has a certain relevance in relation to constitutionally legal review
the provisions of § 106 paragraph. 1 of the law on courts and judges.
In relation to the contested provision then on the importance of maxima, according to
that absolutely natural result and condition of institutional
independence is independence, which equips the personnel representative
the judiciary with the necessary degree of autonomy to the outside influence. Personnel
independence is within the meaning of article. 82 of the Constitution more attributes, while
significant is the principle in the context of the case under consideration
finality of a function that is broken only in the case of an appeal
realized mainly as a result of the law applied disciplinary liability
judge. Through the above mentioned attribute of independence so
The Constitutional Court also judged by the contested provision.
The position of the Ministry of Justice in relation to the judiciary and to
individual judicial officers (section 102 of the Act on courts and judges) is
set out in section 119 paragraph 1. 1 of the law on courts and judges, and that as a
the central body of State administration of the courts, to which the other organs are
the Presidents (and the Vice-Presidents) courts, that the Administration is
exercised either directly by the Department or through the Presidents (and
the Vice-Presidents). From the position of the Ministry as the central authority of the State
administration of courts the power to designate Minister then depends on the President and the
Vice-Presidents of courts and jurisdiction is invoked according to § 106 paragraph. 1 of the law on
courts and judges.
The Constitutional Court emphasises that the principle of "who appoints, dismisses the" is your own
the system of State administration. Only the Government is
characterised by the implementation of a public authority, that is,. implementation of executive power
in the hierarchical relationships, i.e. relationships control and subordination.
The content of the activity of the regulatory authorities expressing power superiority
State administration in relation to those in respect of which it is exercised, which applies to both
for the action on the outside, and inside the organization system. The administrative authority
It has higher privileges (cf. Průcha-administrative law,
General part, Brno 2004).
Therefore, if the article 106 paragraph. 1 of the law on courts and judges
contained an element of its own system of Government, the Constitutional Court must
look at whether the administration of the courts can be considered as the State administration.
Performance of State administration of the courts is generally characterized as creating
the conditions for the proper performance of the judiciary (article 118, paragraph 1, of the law on the courts and
the Judges Act), i.e.. After the organizational, personnel, economic,
financial and educational as well as supervising the proper performance of the tasks entrusted to the
before the courts. Specific powers conferred on the Presidents of the courts within the State administration "
not only the character of the courts ' administrative operations. Příkladmo can be used to point out
the power to determine the schedule of work, carry out the screening of judicial writings
keep an eye on the level of court proceedings, dealt with a complaint or do
suggestions to the Minister of Justice to submit complaints for violation of the law.
Even so, the legislature has used the term "the State administration of the courts", which, by its
the formal designation creates the impression that this is a Government, it is
necessary to reflect the formal definition of the content of the concept of "public administration"
(i.e. According to the law on courts and judges) and the material definition of the subject
the activities of the officials of the courts. Only a formal designation cannot prevail over
content, and so over the real nature of the judicial administration. All the activities of
carried out by the President and the Vice-President of the Court are the activities,
which may indirectly affect the exercise of judicial power, and thus on your
as a result of the intervention of the Executive mean to the judiciary.
From the above it follows that the exercise of State administration of the courts does not match your
the nature of the general definition of public administration. It is in this
the case of the specific activity carried out only inside the judicial system
and making more or less own the decision-making activity of courts. In this
the context is then to be considered as well as the principle of "who appoints, dismisses the"
embodied in § 106 paragraph. 1, which is a hierarchical system of its own
relations of direct control and subordination (as above).
The presence of a significant attribute of the own system of State administration cannot be
tolerate in relations under the administration of courts, which the State administration
It is not.
When assessing the status of the Presidents of courts as judicial officials
appointed by the Minister of Justice and the President of the Republic must be
reflect, that the official shall continue to be involved in their own
the decision-making activities as a judge.
You must then come out from the premise that the function of the Presidents of the courts, as well as
the Chief Justice is inseparable from a judge, as
You cannot construct the legal status of the President of the Court seemed as
an official of the State administration on the one hand, and the judge, on the other.
The attributes of the independence of the judiciary, and the independence of judges is so
should be covered in the above-mentioned direction as well as to the Presidents of the courts, including the
President of the Supreme Court. You cannot then accept their appeal
the Executive authority just by the way, that the contested provision
assume, while maintaining the aforementioned requirements.
The Constitutional Court refers to the provisions of article. paragraph 82. 2 of the Constitution, according to which
the judge cannot appeal against his will, while the law may lay down
exceptions to the finality of a judge, in particular of the disciplinary liability.
By maxims expressed in this article is to be
measure method of the Presidents of courts of appeals, including the President of the
Of the Supreme Court. Therefore, not only legislation dealing with appeals
the judges, but also legislation revoking of Presidents and Vice-Presidents of the courts
must respect the constitutional principles of separation of powers, independence of the judiciary
etc. You cannot do so without reflection of constitutional values provide any model
revocation of judicial functionaries.
The principle of the separation of judicial and executive power under the present constitutional
editing and in accordance with standards which stem from European and
international environment, it is clear the requirement that the official be able to court
He was dismissed by the only procedure that is implemented within the judiciary.
Indeed, the legislature selected the above way of revoking
does not reflect the very nature of "funkcionářství" as a career progression,
which is necessary to understand the objective possibility of the peace achieved under
requirements of such a position, which it professionally
satisfies. In principle, this means either taking over more responsibility in
the performance of the judiciary in deciding on ordinary and extraordinary remedies
or participation in the administration of the courts in the Chair
and the Vice-President of the Court (as in the King v.: on the conception of stabilization
Criminal Justice, revue No. 4/2004, p. 108 et seq.).
VIII.
On the downside associated with the imperfect separation of judiciary and Executive
Moreover, i pointed out the report of the Special Rapporteur for questions
the independence of judges and lawyers Dato ' Parama Cumaranswamyho, translated in
accordance with Commission on human rights resolutions of the economic and Social Council
UN No. 2000/42 (hereinafter referred to as "the report"), which evaluated the status that occurred in
Slovak Republic in connection with the termination of appointment of the Chairman of the Supreme
Court of the Slovak Republic, Dr. Harabina.
In terms of legal-comparative situation-when it comes to reviews
the relationship of the President of the Supreme Court to the Executive-the same as in the
the case under consideration. The Constitution of the Slovak Republic provides in article. 141 para.
1 that the judiciary is exercised by independent and impartial courts and in paragraph 2,
that is carried out at all levels separately from other State authorities.
The provisions of article. 144 paragraph. 1 of the Constitution of the Slovak Republic lays down that
judges are independent in decision-making and are only bound by the law.
The report mainly draws attention to the fact that the procedures for appointing,
promotion and dismissal of judges give in Slovakia too much power to the
the hands of the Executive and legislative State power, and especially in the hands of
the Minister of Justice. These procedures Report considered it to be in
inconsistent with the concept of judicial independence, as is constitutionally enshrined and
How is regulated in regional and international judicial standards
independence. According to the report, moreover, does not hold water as unsustainable claims
the Slovak Government that the President is different from that of a judge-
as such, not subject to the constitutional prerequisites of the appeal judge.
The allegation that the judge in the Office of President of the Supreme Court is part of the
powerful ingredients of State power, is contrary to the very nature
an independent judiciary as provided for in article 6(2). 141 of the Constitution of the Slovak
States, and in fact would mean that the President of the Supreme Court
factor in the Executive branch. According to the evaluation Report, as soon as the President or
appointed Vice-President of the Court, it should not be between that of its functions and
the functions of the judge made the difference. Therefore, even though the alleged reasons for which the
(69) the proposal to recall Parliament, could be crucial, was an attempt to
the Slovak Government on the appeal is found to be in violation of international and
regional standards for securing and protecting an independent judiciary,
because the Government had failed to establish their claims before the competent court.
By the end of the message, whether legislative laws, customary or traditional,
are not justifiable if they are contrary to the fundamental values and
standards to protect independent judiciary, especially when such
adjustment of the judiciary enshrined in the Constitution. This is doubly true if the
the State in question has ratified some of the important international and
regional instruments on human rights. The application of these basic
values and standards is universal.
IX.
The Constitutional Court, following an assessment, whether the Act on courts and judges
the expected appeal of the President of the court procedure there is no interference with the
guarantee of institutional and personal independence of the judiciary, came to the
conclusions especially in that direction that you cannot apply the principle "who shall be appointed by,
referring to the relations "in the context of judicial administration and that it is neither possible nor
to construct the legal status of the President of the Court seemed to me as an official
the State Government on the one hand, and a judge on the other side. Therefore,
through the maxims are expressed in article. paragraph 82. 2 of the Constitution it is necessary to
measure method of the Presidents of courts of appeals, including the President of the
The Supreme Court; not only legislation dealing with appeals judges,
but legislation revoking of Presidents and Vice-Presidents of the courts must
respect the constitutional principles of separation of powers and the independence of the judiciary.
You cannot then accept their appeal authority Executive just by
in a way, that the contested provision assumes that, while
maintaining the amount of dismounted requirements. It follows the conclusion of the
the unconstitutionality of the contested provisions, since it occurs to the intervention in
guarantee of institutional and personal independence of the judiciary.
Following the legal opinion on the report on the matter when I say sp.. Pl. ÚS
7/02 the Constitutional Court emphasises that the function of Presidents and Vice-Presidents of the courts,
as well as the Presidents of colleges should be, among other things, be considered to
professional advancement (similarly as in the case of the appointment of the Chairman of the
the Senate), and therefore should not be odvolatelní otherwise than by the law
In addition, the reason, and on the basis of a court decision.
Statutory construction 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 corresponding with the position level of the Ministry of
Justice (which authority would be competent to assume the authority
the role of the Ministry in matters of quality personnel including supervision
above the professional level of the judiciary, or in other areas
the management and the performance of the administration of Justice), in the opinion of the Constitutional Court
does not exclude the possibility of indirect enough influence judicial
can the power of the Executive [e.g., through allocation of budgetary
resources and the control of their use (SP. zn. PL. ÚS 7/02)].
The Constitutional Court when considering the provisions of § 106 paragraph. 1 of the law on courts and
judges did not find reason to depart from the conclusions voiced in the sp award.
Zn. PL. ÚS 7/02 and notes the unconstitutionality of section 106 paragraph. 1 of the law on
courts and Judges Act and the current version of.
The Constitutional Court also notes that the legislature disregarded in
the legislative process the conclusions expressed in finding SP. zn. PL. ÚS 7/02,
thus violated article. 89 para. 2 of the Constitution. The Constitutional Court therefore set aside the
the provisions of § 106 paragraph. 1 of the law on courts and judges on the day of its publication in the
the finding in the journal of laws without delay his enforceability, and will now be
the legislature, for the second time to expressed legal opinion of the constitutional
the Court on this issue while fully respecting within its regulatory
activity.
The Constitutional Court annulled the provisions of § 106 paragraph. 1 of Act No. 6/2002 Coll., on
the courts, judges and lay judges and the State administration of courts and amending
some other laws (the law on the courts and Judges Act), as amended by law
No 192/2003 Coll., the first and the second sentence, because they are a single unit, and
the reasons for the derogačního of the award decision fall to all "judicial
official "referred to in the contested provisions of the Act.
The President of the Constitutional Court:
JUDr. Rychetský v.r.
Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, took to the opinion and to justify the award
judge Vladimir Crust and Pavel Rychetský, different opinion only to the
part of the grounds of the award took Judge Ivana Janů.
