In The Matter Of The Application For Revocation Of Section 106 Paragraph. 1 The Act. On Courts And Judges

Original Language Title: ve věci návrhu na zrušení § 106 odst. 1 zák. o soudech a soudcích

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=62954&nr=397~2F2006~20Sb.&ft=txt

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be repealed on the date of publication of this finding in the statute book.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.