224/2013 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided under the SP. zn. PL. ÚS 31/10 of 22 May. may 2013

plenary in the composition of Stanislav Package, Jaroslav Norman F, Jan Filip, Vlasta

Formankova, Turgut Güttler, Pavel Holländer, Ivana Janů (judge

Reporter), Vladimír Crust, Dagmar Lastovecká, Jan Musil, Jiří Nykodým,

Pavel Rychetský, Milada T, Miloslav Výborný and Michael Židlická of the

the design of the High Court in Prague on the repeal of section 11 of Act No. 121/2008 Coll., on

senior judicial officers and senior officials of the State

the Prosecutor's Office of the related laws, and change



as follows:



The provisions of section 11 of Act No. 121/2008 Coll., on higher judicial officers and

senior officials of the public prosecutor and the related

laws, as amended by law No 396/2012 Coll., the expiry of 31 March.

12.13.



Justification



(I).



The definition of things and a recap of the proposal



1. The High Court in Prague at the Constitutional Court made the proposal to repeal section 11

Law No. 121/2008 Coll., on higher judicial officials and higher

officials of the Prosecutor's Office and on the amendment of related laws

(hereinafter referred to as "ZVSÚ"). He stated that in the High Court in Prague appeal in progress

the proceedings, conducted under the SP. zn. 9 Cmo 114/2010, on the appeal of the defendant against the

the resolution of the regional court in Ústí nad Labem. This resolution, which have been

rejected the objections of the defendant against-Exchange order for payment,

has gone before a judge, but the Assistant judge on the basis of § 11 of the ZVSÚ in conjunction with §

paragraph 36A. 5 of law No. 6/2002 Coll., on courts, judges, assessors and

the State administration of courts and amending some other acts (law on courts

and the Judges Act), as amended, (hereinafter as "ZSS").



2. the applicant justifies its proposal by two central arguments:

inner contradiction based ZVSÚ the wording of section 10 and 11 of this Act, and

unconstitutional content itself, section 11.



3. Regarding the first reason, the applicant points out that section 10 ZVSÚ

provides an exhaustive list of acts of the Court of first instance, which is in the civil

court proceedings and administrative proceedings authorized to perform higher

the clerk (and on the basis of § 36a, paragraph 5, also Assistant judge ZSS).

By contrast, the following section 11 ZVSÚ stipulates that the higher court official (and

Thus the Assistant judge) may make any decision, with the exception of

the decision is listed under letters a) to (j))-Note. Red:

in the text of the amendment to the Act made before No 396/2012 Sb. It is clear that

both provisions are mutually exclusive: either pay an exhaustive list of section 10

ZVSÚ, and then there is no Assistant judge or judicial officer entitled to higher

decide on the refusal of the opposition to-exchange order for payment,

or apply the same law § 11 and later the clerk and Assistant judge

they are entitled to issue such a decision. It cannot be concluded that the section 10

ZVSÚ contained a non-exhaustive list of acts which may make a higher

the clerk (Assistant judge) according to § 11 ZVSÚ; between the two

There is no binding provisions, and each of them would stand up by itself. With

given that the two provisions are in law since the beginning of its

efficiency, cannot be used or the rules of the lex posterior derogat priori.



4. the applicant also pointed to the resolution of the Constitutional Court of 23 March.

2.2010 SP. zn. III. TC 1531/09 (published, available on SbNU

http://nalus.usoud.cz), in which the Court has endorsed the scope of the

senior judicial officials and expressed the view that, in case of doubt,

whether an act may make a person other than a judge, is to be interpreted

such provisions of the Act restrictively, that is. that it cannot do.



5. Regarding the second reason, the appellant recalled that the Constitution of the Czech

Republic (hereinafter referred to as "the Constitution"), shows that the judicial power is exercised by the

independent courts, and especially through the judges, whose

independence is guaranteed. The possibility of deciding the committed to higher court

officials and judge assistants, those article. paragraph 94. 2 of the Constitution, is

the exception from the general rule that it cannot be the rule. According to the

the petitioner would have been absurd to eg. a substantive decision releasing

"nesoudci", IE. the staff of the Court, which have the nature of things is not and

such a standard cannot be ensured independence, impartiality and

expertise as the judges. Hardly could then be considered as judicial power

for one of the three pillars of the independent and equal State

the power of the.



6. On this basis, the applicant concludes that the exemption from the rule, which

is the decision of the courts through higher judicial officers and

judge assistants, must be laid down in the Act exhaustively and expressly with

that what is not in this enumeration specified, does not fall within their scope.

The opposite approach section 11 ZVSÚ, however, induces an incorrect and unconstitutional

the idea that the judicial power shall be exercised by (can perform) on behalf of the Republic of

These persons, with the exception of a few things that can make decisions only

the judges.



7. the applicant, inter alia. i pointed out the absurd consequences that could

the application of the provisions of § 11 lead: higher court official or Assistant judge

could issue. the Bills payment, which is from the constitutional and

the procedural point of view completely unacceptable.



8. For these reasons, the appellant considers that section 11 ZVSÚ for the discrepant with the article. 81

in the following article. 82 and 94 of the Constitution and article. paragraph 36. 1 and article. 38

paragraph. 1 of the Charter of fundamental rights and freedoms (the "Charter")-higher

a court official or Assistant judge deciding on the basis of § 11 of the

ZVSÚ cannot be considered a legal judge-and therefore suggests the

the cancellation.



II.



Recap the essential parts of the representation of the Chamber of deputies of the Parliament

The Czech Republic, Senate of the Parliament of the Czech Republic and the Ministry of

Justice



9. the President of the Chamber of deputies of the Parliament of the Czech Republic described the

the course of the legislative process and stated that the law was approved by the

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

respective constitutional actors and was duly announced. The legislature

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

the rule of law. It is up to the Constitutional Court, in the context of the proposal

The High Court in Prague on the repeal of section 11 ZVSÚ assess the constitutionality of this

the law and issued the appropriate decision.



10. The President of the Senate of the Parliament of the Czech Republic in its comments

He reminded that the contested act is based on the concept of the reform of justice in the

the years 2008 to 2010, which the Government has taken note of resolution No. 65 day

January 23, 2008, in the framework of which should be mj. occur even to transfer the greatest

the quantity of tasks performed by judges or prosecutors to a higher

Court officials and senior officials of the public prosecutor's Office. With regard to the

nadzákonné limits, resulting, inter alia. from the right to the lawful judge, was the scope of the

the activities of senior judicial officers subject to the directive, according to which the higher

the clerk does not work alone, but is part of the Department

appointed to the Senate or the single judge. The President of the Senate, also described the

the course of the legislative process in this Chamber of the Parliament and reviewed it

so, the Senate acted within the limits of the Constitution laid down the competence and

constitutionally prescribed way. It also said that in the Senate "

the legislative act in question was not disputed by "neither as a whole nor in

the individual parts or provisions. Approval of the draft law passed

without a single discussion; dismantling the speakers to it only

the Minister of Justice for the petitioner and constitutionally-legal advisory

of the Committee. In conclusion, the President of the Senate leaves completely at the discretion of the constitutional

Court to determine the constitutionality of the contested section 11 ZVSÚ.



11. The Constitutional Court challenge to the proposal expressed the Ministry

Justice. The provisions of § 11 ZVSÚ is not according to his opinion, contrary to the

the constitutional order. The intention of the Ministry of Justice was under section 10 and

11 ZVSÚ to define the widest possible scope of senior judicial officers

("the scope of the higher court clerk ends there, starts exclusive

the scope of the judge "). As regards its own problem of design

on the repeal of section 11 of Ministry of Justice ZVSÚ, besides the voucher on the part of the

commentary literature, sees the feature section 11 ZVSÚ in that it restricts the

acts which may later the clerk do in proceedings listed in

§ 10 (1). 1 ZVSÚ. Were it not for section 11 ZVSÚ, could according to the ideas of the Ministry of

Justice higher court officer "in these matters completely replace

the activity of the judge ".



III.



The abandonment of an oral hearing



12. According to the provisions of section 44, paragraph. 2 Act No. 182/1993 Coll., on the constitutional

the Tribunal, as amended, (hereinafter as "the Act of the constitutional

the Court "), the Constitutional Court may, with the consent of the participants from the oral proceedings

the refrain, if you cannot expect him to further clarification of the matter. Due to the

both the applicant and the other parties have expressed their

agreement with the abandonment of further hearings, and whereas that

The Constitutional Court has considered that, since the meeting cannot be expected to further clarify the

things, was waived in this case.



IV.



The conditions of the appellant's evidence is active



13. The proposal to repeal the provisions of § 11 ZVSÚ filed in the High Court in Prague

According to § 64 paragraph. 3 the law on the Constitutional Court.
14. The purpose of the specific control standards according to the article. paragraph 95. 2 of the Constitution is

the judicial control of the constitutionality of the law and/or its individual provisions,

to be used in the discussion of the General Court and decisions of specific

specific things. It is also delimited by the space of the General Court for a procedure

According to the article. paragraph 95. 2 of the Constitution, which is limited only and exclusively in the

things relevant substantive and procedural law.



15. The High Court in Prague handed the proposal to repeal section 11 ZVSÚ in the context of

with the appeal proceedings in which the contested resolution on the refusal of the opposition

the defendant against-exchange payment order. Due to the fact that

This resolution issued on the basis of § 11 of the ZVSÚ in conjunction with § 36a, paragraph.

5 of the Act on courts and judges Assistant judge, is section 11 ZVSÚ to be

considered the provisions of the Act, which is to be or has been used. By

is given locus standi of the petitioner.



In the.



Design and wording of the Petit relevant provisions



16. According to the small print of the proposal with the High Court in Prague seeks to Constitutional Court

set aside the section 11 ZVSÚ. With regard to the content of the proposal, as well as on the fact that

in a way it is adjusted the scope of senior judicial officials, citing the

Furthermore, not only the contested provisions of § 11, but also the preceding

the provisions of § 10 of the ZVSÚ:



"§ 10



(1) the higher the clerk can perform acts of the Court of first instance in

Code of civil procedure in these matters



and the procedure for payment) order, and in these cases i

deciding on the belatedly submitted resistance, terminating the proceedings because of the

withdrawal of the application, where appropriate, a proposal on the issue of a payment order, the

the cancellation of the payment order, which cannot be delivered, the proceedings on the issue of

electronic payment order, and in these cases, decisions about

belatedly submitted resistance against the electronic payment order, the

Cancel electronic payment order, terminating the proceedings after

withdrawal of a proposal to issue an electronic payment,

a European order for payment, and in these cases i

deciding on the belatedly submitted resistance against the European payment

the warrant, on the abolition of the European order for payment, to halt the proceedings after

withdrawal of the application for a European order for payment, and decision making

According to Section 114b, paragraph. 1 of the code of civil procedure, where a case decided

the European payment order, payment order, or electronic

payment order,



(b) the management of the heritage), in which it is not necessary to order a hearing in court, and in

which is not about



1. the procedure provided for in § 175 k, paragraph. 1 and 2 of the code of civil procedure,



2. the withdrawal of the matter pursuant to section 175zb of the judicial code,



3. return the matter pursuant to section 175zd of the judicial code,



4. the heritage that is located abroad,



5. heritage after zůstaviteli, who was a stranger,



6. disposal of heritage in accordance with § 175t code of civil procedure, or



7. grant, heritage to pay creditors debts referred to in zůstavitelových

section 175p paragraph. 1 of the code of civil procedure,



(c)) in cases concerning the care and well-being of minors in court guardianship matters

persons deprived of their legal capacity or limited in

the eligibility of legal capacity and persons absent or unknown, in

which is not to be required of the negotiations,



(d) proceedings on the admissibility of the voicing) in the Institute of health care,



(e) control of úschovách),



(f) the management of the reimbursement of the instruments),



g) enforcement of wage claims the commandments

or sale of movables, the order for payment of money from the account for

the Institute, in which there is no need to order the conduct of enforcement by sale

real estate where there may not be a nařizováno meeting,



(h)), the conciliation procedure,



I) procedures for determining the paternity of an affirmative Declaration of parents



(j) the management of the regulation) the execution for the recovery of financial, if not

enforcement title execution or notarial deed, including deciding on the

the proposal to stop the execution lodged by the authorized or bailiff, if the

None of the participants take the design,



the decision terminating the proceedings) and the repeal of the bill payment

because of the withdrawal of the warrant application.



(2) the higher the clerk in the proceedings in the matters of the commercial register,

the register of non-profit companies, Foundation register

insolvency register and the register of the owners of the community units is

entitled to do all operations, including the execution of entries in registers,

If there is a need to conduct regulation.



(3) unless otherwise provided by special law to the contrary, the higher the clerk

perform in civil proceedings and administrative proceedings, these

the acts of the Court



and the drafting of a submission to the Court including) proposals,



(b) the processing of the request), with the exception of the request in contact with cizinou, outside

The Slovak Republic,



(c)) and the rejection of defects submission filing for neodstranění defects,



d) deciding on the composition of the advance, deciding on the return of the composite backups



(e)) in decisions of court fees, including deciding on the

exemption from the obligation to pay the court fee, deciding about

termination due to non-payment of the fee and the cancellation of the said

the decision, with the exception of cases where the imposition of the obligation to pay

the fee is related to the decision on the merits,



(f) the bailiff acts for) other activities under section 76, paragraph. 1

enforcement of the order,



g) deciding on refusal of late-filed appeal,



(h)) the collection of data in the procedure for granting international protection of databases

The Ministry of the Interior,



I) deciding on the appointment of a representative of the participants in accordance with section 30 of the civil

Code of civil procedure and according to § 35 paragraph. 8 court order administrative and reimbursement

the cost of the following agents,



j) indication of the legal power of the original decision in all cases and

indication of the enforceability of a decision,



the decision of the svědečném,) znalečném and tlumočném,



l) decision on costs, which is irrelevant in the decision,

which control ends,



m) examination of voting rights for each of the lenders and deciding on the

transfer or gradient of the claim under section 18 of the Insolvency Act,



n) operations to determine the residence of the interested party, deciding on provisions

guardian party, if not his stay is unknown,



deciding on provisions of) interpreters and experts, including deciding on the

the composition of the advance on costs of evidence,



p) acts in the insolvency proceedings, with the exception of the deliberations and decisions of the



1. the provisions of the insolvency administrator,



2. revocation of an insolvency administrator of the function,



3. exemption from the performance of the duties of the insolvency administrator,



4. cancellation of the resolution of the creditors ' meeting,



5. the provisions of the Provisional Committee of the creditor,



6. proposal for a regulation of the interim measures, which should be limited to the right to

the debtor to dispose of the material,



7. the proposal for a moratorium,



8. the fact that the debtor is insolvent,



9. rejection of insolvency,



10. cancellation of the bankruptcy,



11. the Declaration of bankruptcy and of its cancellation,



12. approval of the final report and the resolutions of the rozvrhového,



13. enabling the reorganization, on the approval of the reorganisation plan and its

changes and on the conversion of reorganization in bankruptcy,



14. approval of the debt relief plan and its amendments, the granting of the exemption from

the payment of the claims included in the debt relief plan and the withdrawal of this

exemption and debt relief plan,



15. termination of the operation of the debtor's business,



16. the merits of the case in the incidental litigation



r) acts pursuant to section 260, paragraph. 1 and 2 of the code of civil procedure,



with the statement of operations) of the debtor, with the exception of the procedure under section

260e code of civil procedure,



t) deciding on the withdrawal of the proposal before negotiations or a proposal on

divorce, annulment of marriage or to determine whether the marriage is or is not

or about the withdrawal of the application for revocation, annulment or the absence of

the partnership under section 96 paragraph. 2 and 4 of the code of civil procedure,



u) acts of the Court of first instance prior to the submission of the appeal,



in the acts of the Court of first instance) before submitting the appeal. "



"section 11



The higher court official in civil proceedings and in court proceedings

the Administration may, unless otherwise provided by special law, to carry out any

acts of the Court of first instance, with the exception of the



and conduct in the matter),



(b) decisions on the merits) in the form of the judgment,



(c) decisions on interim measures),



d) deciding on the enforcement of the decision by selling real estate,

the sale of the undertaking or the establishment of a judicial lien,



e) deciding on the enforcement of the decision to recover the fine

the implementation, if the Executive title of the notarial deed, including deciding on the

stop the execution of a decision, if the application was not filed, or authorized

the bailiff, or if it was against the appeal,



f) deciding on the satisfaction of the rights of non-cash transactions



g) deciding on the enforcement of the decision of the education of the minor children,



h) deciding in the European enforcement order certificate,



I) deciding on the suspension and delay of execution, if you need to order the

negotiations and decisions about the exclusion of the bailiff



j) deciding on the action shall have suspensory effect in the administrative procedure, the Court,
to) things, where is the Act of a special law expressly entrusted to the judges. "



17. Cited the provisions of § 11 ZVSÚ was after the submission of the proposal, without prejudice to the amendment

made by law No 396/2012 Sb. this amendment is, however, only partial, and

does not change the overall concept of this provision nor on its relation to §

10 ZVSÚ, and therefore does not eliminate the deficiencies, which complains that the

projector.



VI.



Constitutional competence and conformity of the legislative process



18. The Constitutional Court, in accordance with the provisions of section 68, paragraph. 2 of law No.

182/1993 Coll., on the Constitutional Court, as amended by Act No. 48/2002 Coll., is in

the procedure for checking standards required to assess whether the contested Law, its

individual provisions. another law or its individual

provision was adopted and published within the limits of the Constitution laid down the competence and

constitutionally prescribed way.



19. From the Council prints and těsnopiseckých messages, as well as the representation of the

President of the Chamber of Deputies and the President of the Senate of the Parliament of the Czech

of the Republic, it was found that the Chamber of Deputies approved in vote

No 280 (resolution No. 661) proposal for ZVSÚ, and it's in 3. reading on its 27. the meeting of the

day 13. 2.2008; from the present 180 votes for, none against 169.

The Senate Bill was sent to the 26 July. 2.2008, was discussed at the

his 12. the meeting of 19 May. in March 2008, while the Senate approved the proposal, and it

in the text of a transferred the Chamber of Deputies (resolution No. 329). For

approval of the Bill in a vote no. 32 of 51 Senators

48 senators voted in favor, none against.



20. The law was signed by the respective constitutional actors and was under no.

121/2008 Coll. duly promulgated in the collection of laws, 39 amount that was

circulated on 15. 4.2008, and according to the provisions of § 32 became effective

on 1 January 2005. 7.2008.



21. On the basis of the foregoing, the Constitutional Court notes that ZVSÚ

was adopted in accordance with the respective constitutional kautelami concerning the competence and

the legislative process.



VII.



The content of the contested legal provisions compliance with the constitutional order



22. Judicial power is exercised by independent courts on behalf of the Republic (article 81

Of the Constitution). Of the provisions of the article. paragraph 82. 1 and article. paragraph 94. 2 of the Constitution,

that the judiciary is exercised by judges in courts. The other person on the performance

the judiciary may participate in, lays down the law. The basic rule

the constitutional nature of the power of the judiciary is, therefore, the judge; the share of other

people on it is the exception to the rule.



23. This exception has its factual foundation, which is related to by

basis for the judiciary democratic State, whose necessary

the property is in the first instance judicial independence. The case law and

the literature usually distinguish between autonomy and independence of the Court

judge. At the same time, however, recall that both together inherently

are related, because one is not conceivable without the other's independence; It is hard to

consider the independence of the Court, if it is not guaranteed the independence of the judge and

Vice versa. In this sense, e.g. you can quote. the finding of the Constitutional Court dated

18.6. 2002, SP. zn. PL. ÚS 7/02 (N 78/26 SbNU 273; 349/2002 Coll.): "

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

Republic of independent courts. The provisions of the article. paragraph 82. 1 of the Constitution, then the

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

impartiality must not threaten no one. The independence of the judge, as well as

therefore relate to the independence of the judiciary and are in a relationship of mutual

cross-compliance, and even with the impartiality of the judge and of the Court. The independence and

the impartiality of the Court are indispensable attributes of the concept. His impartiality

and independence is the value that benefits all, as it is one of the guarantees

legal certainty and equality in a democratic society. Only an impartial

the Court is competent to provide real justice always and everyone

with one means of guaranteeing the impartiality of the Court is

judicial independence. "



24. The law provides for this reason numerous guarantees of independence

judge. By expressing the kind of independence is the principle of the obligation of the judge only

by law and international treaty, which is part of the rule of law, and with the

the related permission to assess the compliance of the podzákonného regulation

the law (article 95, paragraph 1, of the Constitution). After a personal page is the independence of the

judge guaranteed above all persistence-judge (article 93, paragraph 1,

The Constitution), its fundamental finality and nepřeložitelností (article 82

paragraph. 2 of the Constitution), the incompatibility of the exercise of the judge's function with other functions

(article 82, paragraph 3, of the Constitution), resulting in the material security and, where appropriate, in

other aspects of the Constitutional Court in its previous practice

repeatedly expressed.



25. the guarantees Outlined factual and personal independence of the judge are not

ends in themselves, but they have along with the institutional guarantees of the independence of the

to ensure the judicial independence of the Court, without which justice only

libovůlí. The participation of other persons upon the performance of the judiciary then must always be

the law adjusted to not jeopardise the independence of the judiciary.



26. for the modern judiciary are also characterized by a challenging

the requirements imposed on a judge, both personal and professional

the page. The judge must successfully complete University

education, the practice of judicial or other selected her with the built

practice and experience, knowledge and skills demonstrated by the judicial

(or other deductible) tests. Person, the judge must always offer guarantee

the proper performance of the duties of a judge, which immediately is mainly related to

the requirements of integrity and the achievement of a certain age. In the valid legislation

to do this, see. in particular, section 60 ZSS.



27. Also concerning the right these requirements shall apply mutatis mutandis, the same as the

It was noted for judicial independence: to participate in the performance

the judiciary and persons other than judges, must not be compromised by the professional or

the overall performance of the judiciary.



28. Referred to starting points to fully apply to the case of the assessment questions,

the extent to which the judiciary can participate in a higher court

officials and (as is the case now) assistants of judges,

who are within the meaning of § 36a, paragraph. 5 of law No. 6/2002 Coll., on courts,

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

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

be entitled to participate in the decision-making activity of courts in the range specified by

a special law for the higher court officials; on their

the position shall apply mutatis mutandis the provisions governing the status of higher

judicial officials.



29. The higher judicial official is the person performing the operations of the Court,

He told her the law; Depending on the specific treatment may be

not only acts in the performance of the judiciary, but also acts in the Administration

of the Court. According to current Czech legislation may be higher by an officer

be a citizen of the Czech Republic, which is unimpeachable and that has successfully completed

study of senior judicial officers (section 22 and subs. ZVSÚ); This study is the

be built not only education in the master's degree programme, but

sufficient and the Bachelor of education (section 2 (1) of ZVSÚ).

The activities of the higher court of official lies in the implementation of the operations of the Court in

civil proceedings the Court, in criminal proceedings and in the administrative justice system.

These acts may be higher court official carry out either on the basis of credentials

President of the Senate, or even no this credentials; about which of the two

variants of it, decides under the current editing exclusively working schedule

(see section 4, paragraph 2, of the Act). If the higher court official

the acts of the Court directly on the basis of the schedule of work, i.e., without the authority of the

the Senate is bound only by the law and other legislation, and not

the instructions of the President of the Senate. In the case of acts carried out on behalf of the President of the

the Senate, the President may grant a higher Senate Clerk a written

instruction how to act, only in the case that the Act does not have the nature

decision. The decision of such a possibility to influence the judgment of a higher

the court clerk is not; the President of the Senate, however, does not have a higher court

an official in such a action at all authorize. Against the decision of the higher

the court clerk is subject to appeal under the same conditions

as President of the Chamber against the decision. If the thing has a higher

the clerk of the Court, or legally complex, is obliged to it

the President of the Senate of the present Chairman of the Board, or it may withdraw

and dealt with separately. To do this, in particular, see § 1 to 9 ZVSÚ.



30. A comparison of the guarantees of independence, as well as the professional and personal levels

assumptions the judge on one side and a senior court clerk on the

the other sounds clearly.



31. In the case of independence is comparable only to the material independence.

The judge is bound by law and international treaty, which is part of the

the rule of law. The higher the clerk is according to § 3 (2). 1 ZVSÚ bound

"the law and other laws". The wording is compared to the judges

different, because other legislation (i.e., regulations)

the judge is not bound, if such provisions are in conflict with the law.

If there is such a situation in the activities of a senior court clerk, had

should refer to the Chairperson, for the assessment of compliance
podzákonného regulation of the law can be regarded as legally complex in

pursuant to section 7 (b). and ZVSÚ). In relation to the parties to the proceedings, therefore, the final

the result should be the same, whether the acts of the Court shall be exercised by a judge or higher

a court official.



32. In this context, however, it is necessary to emphasize, that the rule of § 5 ZVSÚ,

According to which the President of the Chamber may undertake a written guideline of higher

a court official only in the case when it comes to the nature of the Act of nerozhodovací

exercised by the judge of the credentials, it lacks a reasonable sense. A higher court

the officer cannot be undoubtedly bound to instructions, orders or wishes of third

persons, whether it is a person outside of the Court or on the Court, but such a person,

with the case are not in accordance with the schedule of work to do.

If, however, the judge to whom the case according to the schedule of the work fell, not to

such a treatment of the smallest reason. The higher court official to be Assistant

the judge, and not someone who is an independent.



33. At the level of personal independence, however, is the position of the judge and of higher

Court Clerk incomparable. Virtually none of the above

attributes for the higher court clerk does not apply, whether it is about guarantees

the persistence feature, finality, nepřeložitelnosti, tangible

security requirement of the incompatibility of functions, etc.



34. Just as significant is the difference in personal assumptions and requirements

on the professional level of judges and senior court officials. Both categories

link only the requirements of citizenship and integrity. However,

While the judge has his person to guarantee correct performance assumptions

the function of the judge must reach at least 30 years of age, earning

the five-year master's degree at the Faculty of law, to perform judicial

practice and pass the exam for higher judicial court clerk will

the three-year departmental training organized by the Ministry of Justice or

three years of study in the Bachelor program at the high school.



35. The higher judicial official is therefore only really official, which in

the principle of personal independence, guarantee is missing do not require personal

assumptions as for the judge and the expert level is sufficient to significantly lower

level. It serves also limits the activities of the higher court of

official. The higher the clerk may engage in such acts, for which the

are the necessary qualities, which lacks (personal independence, personal

assumptions, expert level). From this point of view is unacceptable to

the higher the clerk of meritorně, regardless of the form of

decision. For other procedural acts, and in particular for decision

procedural nature, this applies just as well. The higher the clerk has to be

Assistant judge, which helps achieve adequate length of

management by performing acts of simple or routine nature. More complex

matters requiring legal erudition, or situations in which the Court cannot

from the nature of things, be represented by anyone other than judge (a substantive

decisions, decisions, decisions in the final significant preparation

the negotiations), the participation of senior judicial officials do not. Otherwise, from the

Judging happens in reality.



36. the development of the legislation on the unacceptable activities of the higher court of

Indeed, the officer said Prof. Winterová already in the preparation of ZVSÚ

(Winterová, prospects of the Czech civil process. Legal

panoramas, 2008, no. 19, p. 706 et seq.):



"The new draft law on VSÚ goes even further in this direction.

Interpreter's translator's report expresses the intent to him, when talking about the

â € šrozšíření the option to convert from the judges ... to higher officials in the far

greater extent its own decision-making competence '. Then the Bill

It also makes the list of the various acts which may make a higher court

the official, in section 10 and section 11 in the new provisions, which already perverts

the logic of the law when he says that the higher the clerk may, in

civil proceedings and in proceedings of administrative conduct all

acts of the Court of first instance, with the exception of the leadership meetings in the merits of the case and

decisions on the merits in the form of a judgment. (Sic!)



In my opinion, is here to say a clear NO to this trend

towards úřednickému decision-making (in the adoption of that wording would

later, just enough to extend the amendment to the code of civil procedure heading

things, in which the meritorně decides the resolution instead of the judgment, and

to extend the terms of options in which you can decide without a hearing, and a higher

the clerk can get).



The judicial officials, if they are properly qualified, you can certainly confer

many of the acts referred to in sections 9 and 10 of the valid law on VSÚ (in section 10

the proposal). A court official, however, would in my opinion fundamentally had no issue

the decision on behalf of the Court and facing outwardly: it should not decide on the

the issue of a payment order, the refusal of the late application of resistance; I have a

doubt as to whether the official approve the agreement on the settlement of

heritage or accept the acquisition of heritage according to the inheritance of shares or

decide on the amortisation of etc. I find it unacceptable that the

decisions to reject late filed appeal, procedural

the succession, on the admission of the claim or of the changes create confusion between the participants (according to the

the draft of the new law) or about the call under Section 114b CCP (according to the design

the amendment to the law on the amendment of VSÚ contained in the summary of the

the order).



I don't know what would be in the Organization of teamwork in the courts should prevent

This and a similar decision was prepared by an Assistant or an officer,

but adopted and presented (signed) judge, and it therefore

guaranteed. I thought it a thousand times better. "



37. It is clear that legislation which may later the clerk

in the first instance civil procedure and administrative justice do, contained

§ 11 ZVSÚ cannot succeed, and that of the two reasons that gives the superior court

in Prague in its proposal. Specifically, it should be pointed out that section 10 ZVSÚ

(other provisions) leaves aside other considerations only, therefore,

his proposal to cancel does not apply. For its contents but of course

This is true, what was mentioned above, in General.



38. the provisions of sections 10 and 11 of the ZVSÚ are in first place in the totally obvious

conflict. The provisions of section 10, paragraph 1. 1 ZVSÚ is calculated, what matters may

the higher court official to perform acts of the Court of first instance in civil

the court proceedings. The second paragraph of this provision on

index management, and a third should not relate to things, but each

operations in civil proceedings by and against the first-paragraph and second-

even in the administrative justice system, regardless of what the thing is [the third

However, the paragraph is inconsistent; see the letter p)]. It would have been

for the standard form of the legislation should be inferred by argument and

on the other hand, that the things or actions other than those referred to in that provision, to the extent

the activities of the higher court clerk belong. Against this, however,

is the text of § 11 ZVSÚ, according to which the higher court official to exercise

in civil proceedings the Court and in the administrative judiciary, all acts of the Court

in the first instance, except the exceptions in this provision expressly

calculated.



39. In accordance with § 10 ZVSÚ may, therefore, a higher court clerk to perform only

What is expressly stated in this provision, while according to section 11 may ZVSÚ

do everything, except what is expressly prohibited. Such adjustment

It raises a number of difficult interpretative issues: e.g. solvable.

under section 10 (1). 1 (a). and ZVSÚ can be higher) the clerk invite

the defendant's challenge to express in the form of qualified according to Section 114b, paragraph. 1

Code of civil procedure, only if it has been decided to stuff the payment

command. Is it really that outside connection with payment

higher judicial officer qualified to issue the challenge (which cannot

i suggest the wording of Section 114b, paragraph. 1 of the code of civil procedure), or you can

Moreover, that when section 11 ZVSÚ qualified challenge between the acts

the higher court official carry must not at all sorts, can be higher

the Clerk to make at any time, even without ties to management (see rozkazní

the recent decision of the Supreme Court SP. zn. 21 Cdo 4259/2011)? On another

-and even more serious-points out the absurdity of the appellant in relation to the

the Bill of exchange payment orders: article 10, paragraph 1. 1 ZVSÚ of them in (a))

or in other provisions, although doesn't mention, and therefore the legislation gives it is within the scope of

a senior court official, however, section 11 ZVSÚ is not sorted between the acts

that a higher court may not exercise the officer; with regard to it would then

the higher court official could decide the form of the bill payment

the warrant. Similar examples of mutual relation of section 10 and 11 would be ZVSÚ

be more, but it's not no longer needed; It is obvious, that between

both provisions no rational relation is not, since the two are

the expression of two different legislative approaches which cannot coexist

stand.



40. hard, however, to an acceptable conclusion leads also the text of the individual

the exceptions referred to in § 11 ZVSÚ under the individual letters itself.

From above, it was stated that does not match the position of the higher court of
officer to decide on the merits of the case. The provisions of section 11 (a). (b)), ZVSÚ

as it pointed out in the above-cited article of Prof. Winterová, however,

a substantive decision prohibits the higher the clerk only

the decision to form a judgment. Proof to the contrary, it is then possible to reach

the conclusion that a substantive decision "only" form of resolution, it can be

do the higher judicial official. With regard to the introductory section 11 ZVSÚ this is true

as for prvostupňové decision making in civil proceedings the Court, so for

the administrative judiciary. Just look into the code of civil procedure and to

administrative judicial procedure, that, too, of this design clearly

stepped to the fore. The problem, however, can still vygradovat if the

needed to proceedings in which the decision on the merits in the form of a resolution,

directing meetings [section 11 (a)) ZVSÚ]: such a procedure can completely

to obtain a higher judicial official, without any participation of the judge.

At random, you can designate section 200e of paragraph 1. 3 and 4 of the code of civil procedure, or

§ 46 paragraph. 1 the administrative judicial procedure.



41. Overall, however, we can say that the concept is problematic section 11 ZVSÚ as

such. From the constitutional proposals outlined above, that is served

the judiciary is the activity which the courts exercising judges; the reason for this

they are the guarantee of personal and material independence, as well as personal assumptions and

the professional level of judges. The share of other persons on the judiciary is

the exception to this rule, and it is therefore necessary to access it

restrictively (in relation to the higher court officials see quoted above

resolution SP. zn. III. TC 1531/09). This constitutional basis cannot be

Flip inside out legal, based on the principle, from which the

basically shows that the judiciary can generally carry out the officials, besides

the few cases that are not explicitly reserved to the judge. They are therefore

also unacceptable source citation that mentions in his expression of

The Ministry of Justice and that expressed in the explanatory memorandum,

that has achieved "the improvement and acceleration of the proceedings, in particular on the way

the performance of the widest range of migration operations have not yet carried out by judges

or prosecutors to a higher judicial officers and senior officials of the

the Prosecutor's Office ", the scope of both of them to be limited" in

basically only the exclusive competence of the judge or the Prosecutor. ...

The scope of the senior judicial officer is defined to the maximum possible extent.

Its scope ends there, when starts the exclusive statutory

the scope of the judge. ... Thus the conditions for the possibility of

maximum odbřemenění judges ... ".



42. Efforts to speed up proceedings, and "odbřemenění" of the judges, however, has its limits

and must not lead to never to become empty form of Justice.

The judicial system is called on to provide protection to the existing (i.e..

the real), and holds the subjective rights because their social function

only if it is eligible to achieve this goal. To do so, in order to

the matter discussed and decided, it is objectively required to spend

the time and effort. It is possible to accelerate the procedure, in particular where the

the procedures, which are not necessary or are unnecessarily formalized and

complicated (e.g., apply for both the Division of jurisdiction between the

Civil and administrative courts in reviewing the decisions of administrative authorities,

too complex and not very clear edit material jurisdiction in civil

the management of the Court and on her subsequent procedure); Similarly, it is possible to admit

the share of other persons upon the performance of the judiciary, if it will be made easier by the judges

from simple and routine tasks. Accelerating and "odbřemeňování"

must not jeopardise the ability of sound-and objectively necessary-findings

the facts and the law, and that the necessary expert

level with sufficient guarantees of personal and material independence.



43. It must have regard to the legislature, governs the participation of other persons

on the performance of the judiciary. The activity of the judge, of course, can not work around today

without the cooperation of other parties, which are just clerks

or assistants of judges or other. However, these persons may be held separately

only operations which do not exceed their helping role. May, with the

of course also participate in other operations, if they judge it; These

acts but merely preparing, and the judge then must make their own

Therefore, on behalf of, and on its own responsibility.



44. Finally, it should be stressed that, even against those acts which can be higher

the clerk must be maintained, the effective possibility of Defense.

Valid legislation, which is contained in section 9 of the ZVSÚ, however,

does not meet. Against the decision of a higher court clerk in civil

the management of the Court and, in criminal proceedings, it is possible to lodge an appeal, respectively.

a complaint under the conditions laid down by the code of civil procedure, or criminal

of procedure. This means, therefore, that where e.g.. the appeal against the decision of the

Court of first instance is not permissible, nor the decision of the higher

a judicial officer to challenge the dismissal. As a result of the last word

cannot have a trial, but a higher court official, despite the fact that

the judiciary should represent the nature of the activity which the

exercised by the judges, and not officials.



45. also cannot be overlooked, that the clerks may participate in

also on the action of the Court in administrative justice (section 10, paragraph 3, section 11 ZVSÚ).

In this case, however, the ZVSÚ completely ignores any possibility bluntly

defence of the parties to the proceedings; in the administrative judiciary in short against

the decision of a higher court official there is no defense at all.

The provisions of section 9 (2). 1 ZVSÚ namely, the President of the Senate, talks about the options

decide on appeals against the decisions of a higher court clerk in

Civil and commercial matters, section 9 (2). 2 ZVSÚ then establishes

Similarly, the ability of the President of the Senate to decide on complaints against decisions of the

issued by a higher court in criminal proceedings.



46. Consequently, that section 10 and 11 ZVSÚ are in mutual conflict,

Since the first of them is the construction, according to which the higher court official

can perform only what this provision confers on him, the second of them

on the contrary, is based on the fact that the higher court official may exercise all

In addition to several sexual acts explicitly. This contradiction is not possible

bridge or interpretations, as was shown in the examples above

qualified calls or bill payment (see point 39

justification). It is further recalled that the problematic relationship of the two is not only

the provisions of § 11, but also ZVSÚ itself. From the detailed

constitutional background shows that the judiciary is the activity carried out by the courts

and the judges, whose personal and material independence, expertise and personal

assumptions are key functional attributes of the judiciary, the rule of

State. Law-how to make section 11 ZVSÚ-can't this constitutional rule

turn inside out, by that of the judiciary will make administration and the judges will preserve

only a small range of tasks which registrars to perform

they cannot. It is therefore not acceptable to the introductory section 11 ZVSÚ, that place of fulfillment

The Constitution envisaged the exceptions from this exception is basically unlimited

vague rule. Likewise, it is not constitutionally acceptable content

some of the exceptions referred to in that provision, or the consequences of these

resulting [see above under point 41, in which it is pointed out that the

section 11 (b). and (b)) and ZVSÚ may establish) a situation where in the proceedings in which

the meritorně decided by resolution need not be directing the negotiations, will be

the entire proceedings in a higher court clerk overhead (eg. the above-mentioned examples

the management of some of the issues of commercial companies, cooperatives and other

legal persons)]. For these reasons, the Constitutional Court upheld the proposal and section 11

ZVSÚ according to section 70 paragraph. 1 of law No. 182/1993 Coll., on the Constitutional Court, in

the text of Act No. 48/2002 Coll., set aside. With regard to the legislature

to have sufficient time for the preparation of a constitutionally

Conformal editing activities of senior judicial officials, the constitutional

the court day cancellation section 11 ZVSÚ up to the end of this calendar year, i.e.,. to

31.12. 2013.



47. Obiter dictum, the Constitutional Court notes that with regard to the principle of

related petitem design in this proceeding could be cancelled only

the provisions of § 11 ZVSÚ. From above made clear, however, is the argument that the

constitutionally problematic, not only is this provision, but also part of the contents of section

10 ZVSÚ. The legislature will also have to consider thoroughly the concept of

the provisions of § 12 of the ZVSÚ, which relates to the criminal proceedings and that the

first sight can cause similar problems, and finally also the resolve

the lack of protection arising from the provisions of section 9, which was a speech from the top.

Finally, it should be underlined that this finding does not intend to exclude the higher court

officials of the judiciary. Senior court clerk may, for

the judge and his responsibility to be sure to prepare a series of procedural acts

the Court; to perform these tasks on its behalf, but a higher court officer may

only in the cases and under the conditions, which were set out above (see for example.

justification this point 35 of the award).



48. As regards the effect of the cancellation of the award on the acts of higher
judicial officials to the enforceability of the award, noted that because of the

of legal certainty shall not apply the provisions of § 71 paragraph. 2 sentences in a semicolon

the law on the Constitutional Court and claims arising from these decisions may be

the subject of enforcement of a decision or execution.



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, the decision of the Assembly, took the judge

Vladimir Crust and justification judges Stanislav Package and Jan Filip.