On behalf of the Republic
Constitutional Court decided under ref. Ref. Pl.ÚS 33/09 on 29 September 2010 in plenary
composed of Stanislav Balik, Frantisek Duchon, Vlasta Formánková, Vojen
Güttler, Pavel Holländer, Ivana Janu, Vladimir Kurka, Dagmar
Lastovecká, Jiri Mucha, Jan Musil, Jiri Nykodým, Paul Rychetský
Miloslav Vyborny, Elizabeth Wagner and Michael Židlická on the proposal
Supreme administrative court filed under Art. 95 para. 2 of the Constitution
Czech Republic to annul Act no. 7/2002 Coll., on proceedings relating to judges, prosecutors and
bailiffs, as amended by Act no. 314/2008 Coll
., with the participation of the Chamber of Deputies of the Czech Parliament and the Senate of the Parliament of the Czech Republic
as the parties
I. The proposal to annul § 21 of Act no. 7/2002 Coll., On proceedings
relating to judges, prosecutors and court executors, as amended by Act No.
. 314/2008 Coll., Is rejected.
II. In the rest of the proposal is rejected.
First Constitutional Court on 30 10. 2009 received a petition from the Supreme Administrative Court
(hereinafter "petitioner") to annul Act no.
7/2002 Coll., On proceedings relating to judges, prosecutors and judicial | || executors, as amended by Act no. 314/2008 Coll. (Hereinafter the "contested
Second The petitioner filed the proposal after in connection with its decision-making activities
(case file. Ref. 11 Kss 4/2009) in accordance with the provisions of Article
. 95 para. 2 of the Constitution ( "Constitution") and § 25
contested Act in connection with § 224 para. 5 Act no. 141/1961 Coll., on
criminal procedure (criminal procedure Code), as amended,
concluded that to § 21 of the contested Act is in conflict with the constitutional order
Third The petitioner stated that in the case file. Ref. 11 Kss 4/2009 is being challenged
proposal of the Minister of Justice dated 16. 2. 2009 at the initiation of disciplinary responsibility
JUDr. JS, a judge of the District Court in Chomutov
filed under the provisions of § 8 par. 2 point. b) under the Act.
Incur disciplinary accused during the proceedings, filed a motion to stay proceedings and submit
matter to the Constitutional Court under the provisions of Art. 95 para. 2 of the Constitution.
Contradiction with the constitutional order of the disciplinary respondent saw that the decision of the disciplinary proceedings
no appeal. Because with this argumentation
Supreme Administrative Court agreed, decided on 19 8. 2009 Resolution no.
J. 11 Kss 4/2009 - 89 so that the proceedings of the disciplinary liability interrupted
submitted the matter to the Constitutional Court.
Fourth As already indicated above, the petitioner considered the key reason
unconstitutionality of the contested Act, the fact that the procedure for disciplinary responsibility of judges
is only one instance; according to § 21 of the contested Act is
against the decision of the disciplinary proceedings appeal is admissible.
Fifth According to the petitioner's opinion, the provisions of § 21 of the contested Act
applied disciplinary proceedings under Art. 95 para. 2 of the Constitution,
§ 64 par. 3 of Act no. 182/1993 Coll., On the Constitutional Court, as amended
amended and Constitutional court jurisprudence interpreting these provisions
6th Application of the provision, which lays down the procedure for disciplinary jednoinstančnost
accountability, saw the disciplinary panel of the Supreme Administrative Court in the fact that
take all necessary steps to establish the facts and legal situation
things in one step, which may be a logical explanation infer that all
provisions are being applied in this one instance.
If it is not applied, the Senate decisive in this one instance, and then
would not be applicable at all, which is a conclusion that can be described as absurd
7th In the case of adoption contrary interpretation would be forced to follow the court
law despite doubts about whether it is conducted in a single stage procedure
accordance with the constitutional order, thereby resigned
one of its basic missions. Furthermore, it is possible to oppose the constitutionality of the law
raise in further proceedings, since the decision of the disciplinary panel of the Supreme Administrative Court
proceedings are terminated and no further does not follow.
8th The petitioner also pointed out that under the provisions of § 21
under the law is formulated and guidance, under which
against the decision of the disciplinary panel remedies permitted, however
for the immediate application of this provision did not.
9th The petitioner also stated that he is fully aware that his proposal falls within the area
specific control standards, and that it is therefore entitled to challenge
only those statutory provisions which apply immediately.
In the present case, however, we were not attacked the law as a whole, as this is the
unconstitutional in its complexity. Features of the whole procedure is
affected by the decision of the disciplinary panel is not permitted
appeal. In this context, he noted that in a similar way proceeded
Constitutional Court in case no. Nos. Pl. US 16/99 of 27 June 2001
(N 96/22 SbNU 329; 276/2001 Coll.) ^ *, Which were also discussed specific
control standards and the Constitutional Court annulled the entire fifth part of the CPC .
including provisions on procedures should be applied. A similar procedure
Constitutional Court would be appropriate according to the petitioner in this proceeding.
10th Then, the petitioner explained the reasons which led it to conclude that
unconstitutionality jednoinstančního procedure for disciplinary responsibility of judges.
A disciplinary accused the judge in his opinion include the right to a fair trial
which in any democratic society enjoys significant enough
position that can not be interpreted restrictively. In this case
yet been hit by the very nature of this right. The petitioner while
attention to the fact that it is not "just" the right to a fair trial
within the meaning of Art. 36 et seq. Charter of Fundamental Rights and Freedoms (
"Charter"), but according to existing case law of the European Court
Human Rights (hereinafter the "European Court" or "ECtHR") and within the meaning of Article. 6
European Convention on human rights (hereinafter
"Convention"). In support of its argument, pointed to the judgments of the European Court
Eskelinen and others v Finland (judgment of 14. 4. 2007, no. 63235/00
), and in particular Olujic against Croatia (judgment of 5. 2. | || 2009 no. 22330/05).
11th In addition, the petitioner believed that proceedings concerning disciplinary responsibility of judges
proceedings on the criminal charge within the meaning of Art. 6 Sec. 1 of the Convention
which in his opinion is clear from the relevant case law of the European Court
(judgment of 8 . June 1976, Engel and others against the Netherlands, no.
5100/71, 5101/71, 5102/71, 5354/72 and 5370/72) and the Constitutional court [ruling
Pl. US 16/99 (see above), finding file no Pl. US 9/2000 dated 17 January 2001 (N 8/21
SbNU 55; 52/2001 Coll.) And finding file ref I. US 181/01 dated 16 April 2003
(N 58/30 SbNU 97)]. Under Article. 2 of Protocol No.
. 7 to the Convention shows that the right of appeal is considered
an indispensable attribute of a fair trial in criminal cases.
If there Act no. 314/2008 Coll. to change the model of the disciplinary proceedings of the two-stage
at one stage, it was also restricted access to disciplinary
accused judges to the court; Such an approach is also fundamentally possible only
while respecting the principle of proportionality (in particular as regards the relationship between
pursued a legitimate aim and the means employed). From the judgment of the Constitutional Court
sp. Nos. Pl. US 36/01 (see below) also show that the reduction already achieved
level of procedural protection of fundamental rights is unacceptable.
12th In the opinion of the petitioner, however, no legitimate purpose that would justify such
change, and there does not follow from the explanatory memorandum to
Act no. 314/2008 Coll. (It can be more efficient activity of the judiciary).
Moreover, the petitioner points out that the right to appeal (except for example.
Trivial things or certain procedural decisions) "process
standard" and an organic part of Czech law - not just in criminal matters
. According to him, it is clear from the Constitutional Court judgment.
Brand. Pl. US 16/99 (no. 276/2001 Coll.), Which is the present case
fully applicable and in which there can be no argument that the requirement to establish a mechanism
unification of jurisprudence (if only in the form || | cassation appeal or other extraordinary remedy) results from
requirements for the state, which defines itself as a state legal
that, although the right to appeal explicitly constitutionally protected
13th Necessity appeal, on the basis of which it would be possible to correct any errors
court of first instance, performs in this case
to the fore the more that disciplinary proceedings occur -
because of sketchy adjust certain procedural institutes in the contested statute -
a reasonable application of the criminal Procedure Code or even the judicial creation of law
And filling genuine gaps in the law; These factors do not significantly hamper
conduct of the proceedings.
14th Special attention by the petitioner deserves the fact that
by the contested Act can be conducted disciplinary proceedings and the judicial
officials who by their courts determine the direction, while
merits of the disciplinary breach is still unclear.
15th The petitioner also observes that the multi-step disciplinary procedure
judges in Europe is the dominant model (Hungary, Poland,
Slovakia, Slovenia, Spain, slightly different conditions prevail for example.
In France), while single-stage procedure it is an exception (the Netherlands and some
judges in Austria and Germany). The European Charter on the Statute for Judges then
Art. 1.5 also the right of appeal in disciplinary proceedings mentions (which reminds
petitioner in the knowledge that it is a non-binding document formally
16th For all these reasons, the Supreme Administrative Court came to the conclusion that, contrary
contested Act with the constitutional order, which is why
suggested that the Constitutional Court in its judgment set aside.
Observations of the parties
17th Chamber of Deputies of the Parliament of the Czech Republic in its response to the draft
dated December 8, 2009, signed by the Chairman of the Chamber of Deputies Ing.
Miloslav Vlcek, said that the bill, which was published under
No. 7/2002 Coll., Was submitted to the Chamber of Deputies
Government on 20 March 2001 and was then discussed as Parliamentary Print no. 877th after the first reading
was assigned to discuss the constitutional committee.
Constitutional committee discussed this newspaper on 6 October 2001 and adopted a resolution
published as print no. 877/1. At the 39th meeting of the Chamber of Deputies
24th October 2001 was held the second reading, all the amendments filed
proposals were released as print no. 877/2. In the third reading on 30 October 2010
law in voting no. 383 is approved by the required majority.
18th The Senate bill was submitted on 9 November 2001 and his
11th the meeting was on 30 November 2001 approved. On 7 December 2001
Act was delivered to the president, who on Dec. 20.
19th The bill, which was published under No. 314/2008 Coll., Was
Deputies submitted to the Government on 20 February 2008 and then was
discussed as Parliamentary Print no. 425. After the first reading was commanded to
consideration of the constitutional committee. Constitutional and Legal Committee discussed
this newspaper on 22 May 2008. The amendments were Members
served as Parliamentary print no. 425/1. At the 34th meeting of the Chamber of Deputies
18 June 2008, a second reading and all filed
amendments were issued as Parliamentary print no. 425/2.
Third reading on June 25, 2010, the legislation was voting no. 242
required majority approval.
20th The Senate bill was submitted on 2 July 2008 and its
15th the meeting was on 16 July 2008 approved. 28 July 2008
law was delivered to the president, who signed the August 11, 2008. Of
therefore it follows that both laws were adopted through souladným with
21st The Senate of the Parliament of the Czech Republic in response to the petition dated 2
December 2009 signed by the Chairman of the Senate. Premysl Sobotka,
said the bill later adopted under no. 7/2002 Coll.
Senate was submitted on 12 November 2001 and was assigned the number 142 printed
Constitutional and Legal Committee of the Senate at its 32nd meeting on 28 November 2001
adopted a resolution which recommended that the bill be rejected. But the Senate
at its 11th meeting on 30 November 2001 a draft law approved by the required majority
22nd The bill later adopted under no. 314/2008 Coll.
Senate was submitted on 1 July 2008 and was assigned the number 276 printed
Constitutional and Legal Committee of the Senate at its 23rd meeting held on July 9
2008, it adopted a resolution which recommended to accept the bill as amended
passed on by the Chamber of Deputies. The draft amendment also met
Standing Senate Commission on the Constitution of the Czech Republic and Parliamentary Procedure, which
adopted its opinion, which pointed to certain constitutional deficits
proposed modifications, particularly on the influence of the executive power to the power
judicial, and also criticized the use of complex techniques
amendment proposal in the Chamber of Deputies. Jednoinstančnosti ruling proceedings, however, he did not pay
. On 16 July 2008 the Senate at its 15th meeting on the 6th functional
Year approved a bill in the version passed
Chamber of Deputies. The Senate also in its statement pointed to the fact that
bill later adopted as no. 314/2008. Coll.
was devoted considerable attention and this proposal was adopted after careful consideration and with
knowledge of the issue and its constitutional dimension.
23rd All participants consented to waive a hearing or
to this issue by the deadline silent. Because neither the Constitutional Court
expect from this meeting to clarify the case, he dropped him
according to § 44 par. 2 of Act no. 182/1993 Coll., On the Constitutional Court,
amended (hereinafter "the Constitutional court Act").
Wording of the contested provisions
24th The petitioner sought a declaration of unconstitutionality of the entire Act no.
7/2002 Coll., On proceedings relating to judges, prosecutors and judicial
executors, as amended by Act no. 314/2008 Coll. Since they were
justified only his objections to the provisions of § 21 of this Act and
remaining provisions designed to cancel only because of their "organic
liaison" with the cited provisions (without subjecting them raised any objections
) and will also further the Constitutional court only on the alleged unconstitutionality
provisions of § 21 of the statute.
25th That provision reads:
Appeal against the decision in the disciplinary proceedings is not permissible. "
Assessment of the jurisdiction of the Constitutional Court for consideration of active standing of the petitioner
26th The Constitutional Court had to consider whether it is authorized to discuss the merits
petition; In this context, he focused particularly on
question of whether the Supreme Administrative Court to file a petition
27th Under Article. 95 para. 2 of the Constitution If the court concludes that
statute which should be applied in resolving a matter is inconsistent with the constitutional order
submit the case to the Constitutional Court for consideration. This adjustment also distributes
§ 64 par. 3 of the Constitutional Court, under which
proposal to repeal a law or its individual provisions is entitled
filed also by the court in connection with its decision-making activities under Art. 95 | || paragraph. 2 of the Constitution.
28th The key question in this context is whether it really was or should have been
provisions of § 21 of the contested Act, the Supreme Administrative Court in him
solving legal case. In the present case, although it was not a
provision that would directly formed direct legal basis, but
undoubtedly influenced (or might affect) the whole nature of the proceedings
conducted by the applicant; In the present case, the Constitutional Court interpreted the condition
'use of the law in dealing with things "- and for reasons set out below
29th In favor of the conclusion that the appellant was entitled to bring
proposal speaks several arguments. The provisions of § 21 of the contested
Act determines the nature of the disciplinary proceedings, and from beginning to end it permeates
. The interpretation whereby this provision should not be
proceedings before the Supreme Administrative Court applied, would lead to the absurd conclusion that
this provision is never used because no further proceedings on proceedings
before the Supreme Administrative Court does not follow.
30th It is also impossible to accept the argument that it is not necessary to provide
synergy general court as he himself disciplinary respondent is entitled
challenge the decision of the disciplinary panel of the constitutional complaint, possibly
associated with a proposal to repeal the law. Such an interpretation would not only deny
purpose of the provision of Article. 95 para. 2 of the Constitution (cf. Below), and it would
ignored that, in the opinion of the Constitutional Court was not the provisions of §
21 of the contested Act, the Supreme Administrative Court applied, he would only
could hardly jednoinstančnosti against the person subject to disciplinary proceedings Illustrating
accused. Application of legislation in progress (usually before a general court of
) is a precondition for a joint petition under the provisions
§ 64 par. 3 and § 74 of the Constitutional Court [see. eg. III award. US
207/97 dated 25 June 1998 (N 77/11 SbNU 205214)]. It logically follows that
if the Constitutional Court found that § 21 of the contested
Act should not be in proceedings before the Supreme Administrative Court applied to, in essence
would exclude the possibility of executing a specific review of constitutionality and
Although it regards the provisions for which it is conceivable that it could
intervene in fundamental rights subject to disciplinary proceedings. The only possible way
how specific control standards still initiate would be patently inadmissible
appeal against the decision of the Supreme Administrative Court
disciplinary accused (probably through the Supreme Administrative Court) with
that only then would itself court or after the rejection of the appeal disciplinary respondent
(together with a constitutional complaint) filed a motion to repeal the law.
Force the court or the complainant to such
Prima facie unnecessary procedure would be an expression of exaggerated formalism;
"Provoking" such a procedure, then certainly not and can not be
to formulate § 64 par. 3 of the Constitutional Court.
31st Furthermore, it should be recalled purpose of Article. 95 para. 2 of the Constitution, which is
open space for institutional dialogue between the ordinary courts and the Constitutional Court
and more generally to ensure internal consistency
rule of law and the protection of constitutionality. In other words, the purpose of this provision is
avoid a situation in which the General Court had to conduct proceedings according
provisions of the Act, which it considers to be in conflict with the constitutional order
(unless of course the constitutionality of these provisions was no longer Constitutional
court confirmed). Thus, the purpose of the landings of the cited provision
abhorrent interpretation on the basis of which the Constitutional Court to reject the review
statutory provision which significantly affects the nature of the proceedings before the court of
general and the possible unconstitutionality of the constitutionality of the entire
this proceeding and all acts made in this crucial
challenged. Rejecting the proposal would Constitutional Court embezzled
his role in the constitutional dialogue, and urged ordinary courts would conduct the proceedings, whose
unconstitutionality would have this court believe.
32nd Moreover, it noted that crucial panel of the Supreme Administrative Court
would be forced to § 21 of the contested Act
directly applied in formulating a lesson which is an obligatory part of the decision
in the present case, where the appeal is in accordance with legislation
admissible (see. § 19 para. 5 of the contested act).
33rd Of all the above reasons, the Constitutional Court concluded that
Supreme Administrative Court was entitled to bring a proposal to repeal
provisions of § 21 of the statute.
Locus standi to challenge the entire Act, however, the Supreme Administrative Court does not indicate, as
all the other provisions it undoubtedly within the meaning of §
64 par. 3 are applied. Performing specific review of norms by
cited provisions of the Constitutional Court Act requires that the petitioner
clearly indicating the provisions of the Act, which is unconstitutional, it said that
to question their application in the present proceedings and the alleged unconstitutionality of these
provision also justified.
Petitioner in this case, however, so only attacked the contested provisions of § 21 of the Act;
only to add that the law is unconstitutional in its complexity, because apparently
character of the whole procedure is influenced by the decision of the Disciplinary Appeal
no appeal. Such a vague reference to the unconstitutionality of all
Act, under which there is no differentiation between
individual provisions under the Act and their nature, however
foundation of locus standi in proceedings on specific review of norms
according to § 64 paragraph . 3 of the Constitutional court is not sufficient.
A contrary interpretation would lead to absurd consequences (Constitutional Court would have to deal
completely general and unjustified proposals to abolish the Law or even more
34th The Constitutional Court therefore concludes that it accepts the proposal as
eligible proposal merits consideration and decision only in part
brojící against § 21 of the contested law; in the rest of the
proposal filed by a clearly unauthorized to do.
35th The Constitutional Court, as required under § 68 par. 2 of the
Constitutional Court then examined whether the contested act was adopted in
bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner.
It proceeds from further quoted stenographic reports and statements from both chambers of the Czech Parliament
. From the stenographic report of the 39th meeting of the Chamber of Deputies
held on 30. 10. 2001 the Constitutional Court found that the Act no.
7/2002 Coll. submitted by the government (print no. 877) was adopted by the Chamber of Deputies of the Czech Parliament
in the third reading vote no. 383, when the
180 deputies present, 170 voted in favor for and none against.
From the stenographic report of the 11th meeting of the Senate held on 30. 11. 2001 indicates that
draft bill was submitted to the Senate on 9. 11. 2001 and at its 11th meeting on 30
was 11th 2001 approved the version passed in the Chamber of Deputies
(Senate resolution no. 222); in favor of the 65 senators present
50 in favor and none against. On 7 December 2001, the law was
delivered to the President who signed it on December 20.
Constitutionally prescribed means a law has been complied with, as well as its release
because it was signed by the Chairman of the Chamber of Deputies, the President and Prime Minister
(Art. 51 of the Constitution) and published in the Collection of Laws (Art.
52 paragraph. 2 of the Constitution) in the amount of 4, born in 2002, distributed on 11
1, 2002. on 1st 4th 2002 took the law into force.
36th From the stenographic report of the 34th meeting of the Chamber of Deputies
Constitutional Court found that the Act no. 314/2008 Coll. Deputies were presented
government as print no. 425. After the first reading was assigned for discussion
the constitutional committee. Constitutional and Legal Committee discussed this newspaper on
22nd May 2008. The amendments (ie. a comprehensive amendment proposal
) Members were served as Parliamentary print no. 425/1.
At the 34th meeting of the Chamber of Deputies on 18 June 2008, a second
read all submitted amendments were issued as Parliamentary
print no. 425/2. Act as a comprehensive amendment was adopted
Chamber of Deputies in the third reading vote
no. 242, while the 155 deputies present, 109 voted in favor and against the eighth
From the stenographic report of the 15th meeting of the Senate held on 16 7. 2008
clear that the bill was submitted to the Senate on 2. 7. 2008 and its
15th meeting on 16 7. 2008 approved in the version passed
Deputies (Senate Resolution no. 44); in favor of
54 senators present voted in favor and 35 against for 12. On 28 July 2008
Act was delivered to the president, who 11 August 2008
signed. Constitutionally prescribed means a law has been complied with, as well
and his extradition since he was signed by the Chairman of the Chamber of Deputies,
President and Prime Minister (Art. 51 of the Constitution) and was declared
in the Official Gazette (art. 52 paragraph. 2 of the Constitution) in the amount of 101, year 2008,
distributed on 21. 8. 2008. on 21 10. 2008 became the law
37th The Constitutional Court therefore concludes that the Act no. 7/2002 Coll., And its amendment no.
314/2008 Coll., Were adopted in a constitutional manner, therefore
approached the substantive examination of the proposal. This conclusion does not change
nor the fact that the constitutional committee submitted a draft law called.
Comprehensive amendment and that the law no. 314/2008 Coll. was amended
this amendment is adopted.
38th In evaluating this issue, the Constitutional Court is based on the premise that every
amendment is filed authorized body in accordance with
Act no. 90/1995 Coll., Rules of Procedure of the Chamber of Deputies, as amended
(hereinafter also referred to as "rules of procedure of the Chamber of Deputies")
is admissible. Exceptions to this rule has been defined by the Constitutional Court in its earlier case
. It is thus particularly important to insist that
"amendment in fact merely modify the submitted legal
treatment, ie. in accordance with the requirements, ie. the rules of closeness
according to which the proposed amendment must concern the same subject as the bill which is
in the legislative process, should the amendment
not deviate from the limited space reserved amendment
proposals in the form of extensive departing from the scope of this bill, "
[judgment Pl. US 77/06 of 15 February 2007 (N 30/44 SbNU 349; 37/2007 Coll.)].
This conclusion follows from the principle of substantive law in which "
law in the formal sense can not (...) interpreted as a mere carrier
various changes made throughout the legal order. Substantive conception of the rule of law
requires that the law was both in form and in content
predictable, consistent source of law. "In this case law has established
- as regards demands on amendments - in
finding sp. Nos. Pl. US 24/07 (N 26/48 SbNU 303; 88/2008 Coll.). These
Legal conclusions - be formulated in relation to the provisions of § 63 para. 1
section 5 of the Rules of Procedure of the Chamber of Deputies will be applied even as regards
amendment pursuant to § 92 paragraph. 1 of the Rules of Procedure | || Deputies.
39th In the present case, however, it is not disputed that a comprehensive amendment
draft bill being factually closely related (cost was the adjustment model
administration of justice and related issues), therefore the application
cited case law there is no space. You can not yet talk about that
submission of a comprehensive amendment was the Constitutional and Legal Committee
circumvented the rules relating to legislative initiative (which does not belong to the committee
). It is not possible to identify significantly (albeit complex)
amendment to the bill. Legislative initiative is in itself
includes the authority to decide on the substantive scope of the problem, which will
Deputies (Parliament) to deal with. This authorization
Committee of the Chamber of Deputies (or constitutional committee as in this case)
not; He deviated if it would be tabling amendments materially from
issues defined in the bill, it would be a procedure for the Constitutional Court
forbidden, as is apparent from the above cited case law (cf. Judgment Pl. US 77/06
- viy above). Moreover - and irrespective of the above -
Constitutional Court observes that each of the members of the constitutional committee
right of legislative initiative and has no prohibition on the administration of complex
Amendment committees of the Chamber of Deputies would, in practice, not
40th Provide a comprehensive constitutional amendment by the Legal Committee in the present case
therefore the Constitutional Court of the reasons stated for
constitutionally consistent performance privileges resulting from the provisions of § 92 paragraph. 1
Rules of Procedure of the Chamber of Deputies.
Substantive examination of a proposal
41st After assessing the constitutionality of the procedure for the adoption of the contested Act
Constitutional Court focused on its substantive compliance with the constitutional order.
When assessing the adjustment disciplinary proceedings ordinary court judges are essential
constitutional terms, two sets of questions. In terms
system must finish disciplinary proceedings reflect the constitutionally enshrined independence of the judiciary
(Art. 81 of the Constitution) and judge (Art. 82 of the Constitution) and in the plane
individual must be subject to disciplinary accused is guaranteed the right to
fair trial (in particular the provisions of Art. 36 et seq. of the Charter and Art. 6
42nd The Constitutional Court has yet led to believe that the very jednoinstančnost
management is not eligible threaten the independence of the judge (and moreover
petitioner claimed that this was the only condition that would have occurred in the management
violation of the right to fair trial). Are essential from the point of view only
circumstances, which the Constitutional Court in this proceeding
alone can not deal with, especially composition, nature and status
body which decides on disciplinary charges, as well as the status and privileges | || persons on the basis of the proposal may be initiated disciplinary proceedings.
43rd Therefore, the Constitutional Court fixed their attention on the alleged inconsistency
jednoinstančnosti law disciplinary accused to a fair trial.
According to the Constitutional Court on the disciplinary proceedings, the judge refers finish
enshrined in the provisions of Art. 36 et seq. Charter (cf.
And resolution of the Constitutional Court II. ÚS 471/09, http://nalus.usoud.cz), as well as editing
enshrined in Art. 6 of the Convention (cf. European Court judgment || | human rights of 5. 2. 2009, Olujic against Croatia, no.
22330/05, § 44, hereinafter "Olujic against Croatia", all - further quoted
- European court judgments are available
44th Due to the alleged grounds of unconstitutionality - ie.
Lack of an opportunity to defend themselves against the ordinary appeal -
Constitutional Court examined whether the relevant provisions of the constitutional order disciplinary
accused is guaranteed the right to appeal. As the Constitutional Court
noted earlier (see. Eg. Finding IV. Constitutional Court from 1554 to 1508, § 26, available at
http: //nalus.usoud.cz) the right to appeal against a court decision
general constitutional order is not guaranteed. An exception in this respect is the
Art. 2 paragraph. 1 of Protocol no. 7 to the Convention, according to which
"Everyone who sees the court convicted of a criminal offense has the right to give
review the finding of guilt or punishment higher court. "Even before
Assessment of the use of any exemptions under the second paragraph of this provision
( "this right may be exceptions in the case of less serious offenses
which qualifies as such a law, or
if the person concerned was tried in the first
level of the supreme court or convicted and sentenced on appeal against acquittal
"), the Constitutional court had to consider the question whether the provisions of Article
. 2 of Protocol no. 7 to the Convention on the present || | thing ever applicable.
45th Applications cited provisions applicable only in cases in which
it is a "criminal charge" under Art. 6 Sec. 1 of the Convention.
The question of whether it may be disciplinary proceedings, the judges considered the management of
criminal charges so far, the Constitutional Court gave only marginally (cf.
Petitioner also cited findings). The Constitutional Court has made it clear that he is willing
- having regard to the case law of the European Court - with some
disciplinary procedures to deal with such proceedings on criminal charges
[see. Finding sp. Nos. Pl. US 16/99 dated 27 June 2001 (N 96/22 SbNU 329;
276/2001 Coll.) And finding sp. . I. ÚS 181/01 dated 16 April 2003 (N 58/30
SbNU 97)], but not unconditionally. The judgment Pl. US 16/99
Constitutional Court stated that: "(...) criminal charges within the meaning of Art. 6, paragraph. 1
by the ECHR case law practice management of any sanctions imposed
administrations for individuals
misdemeanor or other administrative offense, as well as the penalties imposed in disciplinary proceedings or disciplinary
(civil servants, soldiers, policemen), respectively.
Stored in similar procedures to members of chambers with compulsory membership. "
This finding, however, can not be interpreted in such a way that it automatically
include it under the term" proceedings on criminal charges "
any disciplinary action (use of the expression" practically "and in particular the reference to the jurisprudence of the European court of
, with which it is necessary nature of the disciplinary proceedings
always confront). This interpretation is also supported by the continuing
case law, according to which, the idea that not every
disciplinary proceedings are proceedings on a criminal charge is made more explicit [see.
Finding I. US 181/01: 'Where the aforementioned statutory provision allows
decision on mere written warning (Ed. -
Disciplinary proceedings) removed from judicial review, which in itself is not in accordance with | || the Constitutional court considered unconstitutional "].
Nature of the disciplinary proceedings, the judge or other disciplinary proceedings fully comparable with
contested proceedings under the Act, however Zstavní court has not explicitly voiced
. In its judgment. Ref. III. US 1076-1007 dated 21 January 2008 (N 14/48
SbNU 145) on this issue merely stated that "
So, although the case law of the European Court of Human Rights does not give a clear answer to the question
, je- If Art. 6 of the Convention in the criminal branch ( "
about the legitimacy of any criminal charge"), relied on by the complainant,
applicable to disciplinary proceedings by the judge, which was pronounced
disciplinary measures involving the termination of the judge , the applicability of fundamental procedural safeguards controlling
evidence in a criminal trial for disciplinary proceedings, the judge
clear from the constitutional order of the Czech Republic, as
mentioned in the previous paragraph, a fact reflected in sub-constitutional law in the form
§ 25 of Law no. 7/2002 Coll., on proceedings relating to judges and prosecutors
according to which disciplinary proceedings shall apply mutatis mutandis
provisions of the criminal procedure Code. Worth mentioning in this connection it is that the same is true for
disciplinary proceedings with the judges of the Constitutional Court (§ 138 of the Law on the Constitutional Court
). That does not mean that the disciplinary proceedings is the same as
criminal proceedings; "Given the above, it can be stated that the
existing case law of the Constitutional Court does not clearly
answer to the question whether the disciplinary proceedings, the judge ( comparable to the now contested
finish) characterized as criminal proceedings on the indictment.
46th For this reason, the Constitutional Court subjected examining whether the contested
adjustment corresponds to the characteristics of criminal proceedings arising from allegations
European Court, to which the Constitutional Court in its decisions
explicitly refers (see. Above).
Autonomous interpretation of this notion from the European Court in a number of its decisions, while for
Crucial and still unbeaten, the Constitutional Court judgment of the European Court
dated 8 June 1976, Engel and others against the Netherlands, no.
5100/71, 5101/71, 5102/71, 5354/72 and 5370/72 (hereinafter also referred to as "Engel v Netherlands
"), according to which when assessing whether a criminal charge
takes into account three criteria, which may not be met cumulatively -
sufficient thus fulfilling one of these conditions [cf..
judgment of the European Court dated September 2, 1998, Kadubec against the Slovak, no.
27061/95, § 51 (hereinafter also referred to as "anti-Slovak Kadubec")].
47th The first step called. Engel test examined whether a
offense under criminal law. If so, applied Art. 6
his "criminal branch" without further. Provided it does not, it is necessary
assess whether they fulfill the conditions of material (cf. Below).
According to the judgment of the European Court Öztürk v Germany (judgment of 18 February 1984
, no. 8544/79), then mere decriminalization of offense before
revised criminal law can not lead to that Article. 6
Convention ceased to apply.
48th In the next step of this test is then analyzed "very nature"
offense; if the criminal (assuming, among others. the purpose of the regulation, common
legal traditions of the Member States), it is the management of the proceedings on the criminal charges
within the meaning of Article. 6 of the Convention.
49th The third criterion is then the nature and severity of the impending penalties.
Almost always it will be a criminal charge if threatened in management
deprivation of liberty of the accused (see. Eg. Engel v Netherlands)
to the fulfillment of this condition would be sufficient and sensible monetary punishment.
50th From the above, however, it shows that not every public
sanction imposed for breach of a legal obligation is qualified, "draw" offense to criminal charges
category. European Court of Human Rights because
in each case the nature and severity of the impending penalties assessed.
In the case of Engel v Netherlands, for example, played a substantial role that
complainants had been sentenced (though Dutch law system
disciplinary punishment), who were deprived of their liberty;
taking into account the importance of the European Court attaches to personal liberty (see. eg.
judgment of 18 June 1971, De Wilde, Ooms and Versyp against Belgium
no. 2832/66, 2835 / 66 and 2899/66), it was necessary to control the complainants
evaluated as proceedings on criminal charges.
51st In other decisions of the European Court, then the idea of
what should be the nature and severity of the penalties minimal (it is still possible
talk about criminal charges) further refined. In the case Garyfallo AEBE
against Greece (judgment of the European Court of 24. 9. 1997, no. 18996/91)
was a fine of 500,000 drams (the proceedings may only be imposed
three times higher) for whose risk of default threatened to seize property or even
penalties for company management. In the case against Kadubec
Slovak (§ 52), which was a relatively marginal imposition of fines (in EUR
1000 - Ks) and the obligation to reimburse the costs, then
European Court avoided addressing this issue because although it was in his opinion a
relatively mild punishment was sufficient to determine the nature of a criminal charge
meet the second criteria (nature of the offense; similarly also
judgment of the European court of 25. 8. 1987, Lutz v Germany no. 9912/82, §
52nd Regarding not the severity, but the nature of the sanctions is essential
present case that the third criterion is not generally
fulfilled if it is a penalty which is not typical for a system
criminal law, but rather to disciplinary proceedings (see. Kid, CJ F
disciplinary proceedings and the Right to Fair Trial under the Criminal
on Human Rights. The International and Comparative Law Quarterly. Vol . 36, n. 4, pp.
859). In this regard it is also important whether the sanctions aimed at all
or rather a certain group of people with special status
(European Court judgment dated 14. 1. 2010 Tsony Tsonyou
against Bulgaria, no. 2376/03, § 49). The decision-making of the Commission on Human Rights following the
Engel judgment against the Netherlands because even relatively
impending severe sanctions (eg. Job loss) were evaluated
as criminal sanctions because they lacked criminal nature (cf.. || | Commission decision on the unacceptability of 8. 10. 1980
X. against the United Kingdom, no. 8496/79, in which a police officer was removed from his post
Due to theft of gasoline). From this approach, the European Court have swayed
53rd In light of the above criteria, the Constitutional Court came to the conclusion that
disciplinary proceedings with the judges of the ordinary courts is proceeding on criminal charges.
First, in terms of systematic legal system of management rather than criminal
, of which can not be altered by the fact that the rules contested
subsidiary allows the application of the Criminal Code. Management judges
is managing its nature classically disciplinary and not criminal;
it is decided, although the responsibility for failure to fulfill obligations
law, but applies only to specific obligations judge.
Neither the third criterion (the nature and severity of the penalties) Engel test
not consummated, although it is precisely its fulfillment is usually able to "pull"
disciplinary proceedings into the category of proceedings on criminal charges.
For breach of duties Judge fact can only be imposed sanction varying conditions
legal relationship between the judge and the state or terminating the legal relationship.
The disciplinary proceedings be in accordance with § 88 of Act no. 6/2002 Coll., On
courts and judges, as amended, impose a reprimand judges,
removal from office of President of the Chamber, removal from office of judge
or reduce salaries by up to 30% for more than 1 year and at re
disciplinary offense, which the judge committed at a time before erasure
disciplinary measures for a period of at most 2 years. The sanctions, which may be disciplinary proceedings
judges to impose, touching only the conditions (reduction of salary), respectively.
Existence (of dismissal judge) the legal relationship between the State and
judge; So it is not by nature a criminal sanction, but
disciplinary. Judges eg. Not be fined, which would
criminal sanctions could be considered, but he "only" may be reduced or withdrawn
salary increase salary coefficient.
54th Furthermore, it should be noted that the European Court itself, having been in the case Olujic
against Croatia confronted with the question whether the provisions of Art. 6 of the Convention on
disciplinary proceedings with Croatian judges applied in its "civil" or
'criminal "section, explicitly recognizing only the application of civil law (§ 44).
The nature of the sanctions that could be disciplinary proceedings in Croatia save was
while this matter is fully comparable to that now under consideration regularization
(reprimand, withdrawal of salary or dismissal from office of judge; cf. Art. 25
Act on Državnom sudbenom Vijeće
no. 58/1993, in the original version). The complainant was even imposed stringent sanctions
- removal from office of a judge (Olujic
against Croatia, § 18).
55th The Constitutional Court therefore concluded that the disciplinary proceedings with the judge not
proceedings on the criminal charge within the meaning of Art. 6 and Art. 7, paragraph. 2 of the Convention.
Thus, without being able to examine the application of any exemptions under Article. 7
paragraph. 2 of the Convention, it had no choice but to state that the right to appeal against the decision
in these proceedings so explicitly in the Constitution guaranteed
56th The Constitutional Court then addressed the question of whether the constitutional order
right to appeal against the decision of the Disciplinary Panel can not conclude otherwise
way. Neither of these arguments, however, the petitioner
Constitutional Court can not entirely agree with, while others have not found any
arguments which would justify granting the petition. As previously stated
[e.g. Finding sp. Ref. III. US 150/03 dated November 6, 2003 (N 128/31
SbNU 149, 156) or finding sp. Ref. IV. US 1554-1508 dated January 15, 2009,
paragraph 26], the right of appeal itself (unlike the appeal in a criminal case under Article
. 2. 1 of Protocol no. 7 to the Convention) does not enjoy constitutional
protection. This on one hand, it does not deprive the court of
obligation to interpret and apply the conditions of admission of this device - if it
state in their legislation created - so that kept maxim
right to a fair trial, but on the other hand is not an obligation | || legislature's appeal against the decision in any proceedings to implement.
57th The Constitutional Court recalls in this context that it is not its task
(as a body for protection of constitutionality) evaluate the suitability of the adopted model
disciplinary proceedings. While one can say yes petitioner that the right to appeal against the merits
ruling in the Czech legal order
rule with not too many exceptions; even from this fact
obligation to introduce an appeal can not always be inferred.
'58. In this case, the Constitutional Court considers essential that the decisions of the legislature
exclude the possibility of appeal is not arbitrary or illogical
deny the principles on which the Czech legal order built;
because they can be supported objectively existing specifics of disciplinary proceedings.
It is not possible to accept the appellant's argument, according to which contravenes the principle
rational legislator, unless one piece of legislation establishes mandatory
dvouinstančnost in any cases where the "value
dispute" already exceeds CZK 2,000 (CZK 10,000 today) and on the other by
disciplinary proceedings where property sanctions, sanctions and penalties
professional prestige could be many times more intense and more acute, this
dvouinstančnost not guaranteed. Such a comparison is possible because of the nature
things done only by management, which are comparable (eligible
comparison). Disciplinary proceedings are judges of general courts are proceeding very specific
that 'traditional' legal proceedings can not be compared;
Not a "classic" civil or criminal case (see. Above), but a
proceedings with persons who are in service to the state (or similar) ratio.
In this context, reference may be made on decades of hesitation, if ever
similar proceedings included under the scheme. Article 6 of the Convention (cf. Above).
59th Furthermore, you can not overlook the fact that the disciplinary proceedings conducted before the Supreme Administrative Court
, a supreme judicial instance, while under review
Act (§ 3, second sentence) The Supreme Administrative Court as the disciplinary court expressly indicates
. Nonetheless, the Constitutional Court Chambers underwent disciplinary character
review of constitutional law perspective, because if it came to the conclusion that
these tribunals are not courts, could not jednoinstančnost proceedings before
60th Disciplinary panel of the Supreme Administrative Court's opinion, the Constitutional Court
"court" within the meaning of Art. 6 of the Convention and (especially) Article.
81 of the Constitution, in whom the conclusion is not altered by the fact that its members || | not only the judges of this court, but also the judges of other courts and
representatives of other legal professions. Disciplinary panel of the Supreme Administrative Court
is fulfilling formal and material characteristics Court. Regarding
formal characteristics, the Constitutional Court considers necessary to mention in particular that
disciplinary panel is organizationally part of the Supreme Administrative Court and its chairman is always
judges (the Supreme Administrative Court or the Supreme Court
) . Character pages of material, the Constitutional Court points to the existence of systemic
guarantees of independence and impartiality, which
apply to the disciplinary panel of the Supreme Administrative Court as a court
composed only of judges, which reflects the legislature especially
§ 5 and § 6 of the statute. The possibility that the decisions of the courts
participate alongside judges and other citizens, other gases already
Article. 94 paragraph. 2 of the Constitution; The very fact that the Court of Appeal
composed of both judges and the judges, thus
Ex constitutione not eligible to avoid classification of the Senate as a "court". Neither
Constitutional Court itself has never in the past questioned the qualifications
Chambers composed of judges and lay judges as "courts" and MES
nor do in this case.
61st In addition to the above argument has to be noted that even if he
Constitutional Court concluded that the proceedings under the contested law is in its nature
criminal proceedings, would not lead inevitably to that conclusion without further
its derogation , either in whole or only in its provisions §
21st It can also support the wording of Article. 2. 2 of Protocol no. 7 to
Convention, according to which - even if some proceedings were criminal proceedings -
not be entitled to appeal against the decision in these proceedings is guaranteed
, decide if the first instance the supreme court.
Due to this fact (the supreme judicial instance decision already in the first stage
) also can not accept the argument that the
jednoinstančnost management could (should) sign on the final quality
substantive ruling. Can moreover be recalled that a similar model was
voted for impeachment proceedings against the President of the Senate of the Republic
which takes place in one instance before the Constitutional Court (Art. 65 paragraph. 2
62nd According to the Constitutional Court does not contested
unconstitutionality of the Act (ie. The provisions of § 21) or the fact that in one instance model
Disciplinary proceedings introduced after it has been for some time there were two instances
model. This change can not be seen - as does the petitioner -
constitutionally forbidden to lower the standard of procedural protection of fundamental rights
[judgment Pl. US 36/01 dated 25 June 2002 (N 80/26 SbNU 317;
403/2002 Coll.)]. It can not simply say that it is a reduction in the standard procedural
protection of fundamental rights, given the need to reform the entire model
consisting among others. Unification of the disciplinary proceedings or disciplinary change of occupancy
Chambers; introduction jednoinstančního proceedings were outweighed by all
proceedings are now before the Supreme Administrative Court, which should - as
supreme judicial instance - provide sufficient guarantees of a fair
Obiter dictum judgment Pl. US 36/01 generally nezapovídá change the rules for the conduct of proceedings
(naturally if the newly introduced rules are not per se unconstitutional
), but they must be interpreted in the light of the circumstances of the present case
63rd We can not agree with the petitioner nor the extent that they argue that
exist legitimate reasons for the introduction of the current model
disciplinary proceedings. The aim of the amendments in this area by Act no. 314/2008 Coll.
Not only expedite the proceedings but also its unification and the introduction
"mimojustičního" element whose presence reinforces public confidence in
decisions in disciplinary matters [cf.. Korbel, F. optimization efforts
administration of justice and their projections into the legislation. in: Kysela, J. (ed.)
search of an optimal model of administration of justice in the Czech Republic.
Office of the Senate, Prague, 2008, p. 36]. Those requirements
existing model in the context of a disciplinary court of the Supreme Administrative Court, and meets
inability to appeal against its decision is merely the logical consequence
its position in the judicial system.
64th Even other appellant's argument, according to which the Constitutional Court
sp. Nos. Pl. US 16/99 (see above) generally criticizes jednoinstančnost
proceedings can not be accepted. The Constitutional Court in this judgment
particularly criticized the absence of a union mechanism, and (as a consequence)
existence of a "regional jurisdictions". These conclusions can not be equated with
general criticism jednoinstančnosti and therefore not covered by the eventual
to the case; in it - and only it - namely with regard to the fact that
procedure shall be conducted before a single court with nationwide coverage, on the other hand
risk of a judicature schisms significantly smaller.
65th Although the petitioner supplied analysis shows that in European countries
is a possibility of appeal against the decision in the disciplinary proceedings with the judges
rule rather not be overlooked that in one instance model
occurs eg. The Netherlands, Germany and Austria (although in later
mentioned only in relation to some of the judges). further, in Cyprus, where
such disciplinary power belongs to the judicial Authority [cf.. Fencl, V.,
Klima, K. constitutional issue of judicial independence (
called comparative view. Judicial Councils) in: Kysela, J. (ed.) Finding the optimum model
administration of justice in the Czech Republic. Office of the Senate, Prague, 2008
p. 84]; In addition, comparative argument can not be considered conclusive
unconditionally, but only as a supporting method of interpretation
66th Regarding the petitioner cited "soft law", Article.
5.1 European Charter on the Statute for Judges indeed guarantees the right to appeal against the decision
executive body, tribunal or other authority, however
eg. The Committee's recommendations Ministers dated 13. 10. 1994, no. 94,
adopted at the 516th meeting, under the principle VI., para. 3 states that the disciplinary proceedings
should decide a judicial body or a special body whose
decision should be reviewable by the courts that review
superior judicial authority is not necessary where, in the first instance decides
senior (ie usually the highest) court.
European Charter on the Statute for Judges then party the right to appeal in the case in which the first stage
Supreme Court decides, silent. Clear consensus therefore
"soft law" Council of Europe sides of this issue dominion. Regardless
interpretation of these instruments, however, the Constitutional Court stated that in the opposite case
cited documents could serve only as a supporting argument
in the interpretation of the constitutional order.
67th The Constitutional Court therefore concludes that the legislation, which the disciplinary respondent
Not appeal against the decision of the disciplinary panel
is not unconstitutional; general right to appeal is a constitutional right enshrined
68th On disciplinary proceedings under the Act no. 7/2002 Coll. not applicable
Article. 2. 1 of Protocol no. 7 to the Convention;
this procedure is not in the light of the criteria laid down by the European Court
be classified as criminal proceedings on the indictment. It is about how disciplinary proceedings
of systematic legal system and in terms of their nature
. Also, the nature of the impending sanctions own disciplinary proceedings
69th Right of appeal in these proceedings can not be inferred from
fact that the right to appeal against a court decision in the context of
Czech law rule. Disciplinary proceedings judges
general courts, prosecutors and court bailiffs are in fact quite
specific management, which is pending before the Special Chamber of the Supreme Administrative Court and
which is not possible in terms of its nature compared with normal
civil or criminal proceedings.
70th Change Management Model on Disciplinary Responsibility of Judges of general courts
extra pursued the legitimate aim was not only to expedite the proceedings but also
unification and the introduction of "mimojustičního" element whose presence
promotes public confidence in the decisions in disciplinary matters .
71st The Constitutional Court finds that the reasons were found to comply
petition from the Supreme Administrative Court to annul § 21 of the contested
law, and the proposal was rejected in this section (§ 70 para. 2 of the Constitutional Court
) ; in the remaining range was then dismissed as filed
person clearly unauthorized to [§ 43 para. 1 point. c)
in conjunction with the provisions of § 43 para. 2 point. b) the Constitutional Court Act].
Chairman of the Constitutional Court:
JUDr. Own hand
Dissenting opinions according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, took to the plenary decision
judge Stanislav Balik, Vlasta Formánková, Dagmar Lastovecká, Jiri Mucha, Jiri
Nykodým and Michael Židlická.