The Constitutional Court found no 224 / 2013 Coll.
The Constitutional Court found of 22 May 2013 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
30.07.2013
224
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. Pl. ÚS 31 / 10 on 22 May 2013 in plenary composed of Stanislav Balík, Jaroslav Fenyk, Jan Filip, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivan Janů (Judge Rapporteur), Vladimir Krok, Dagmar Lastovecká, Jan Musil, Jiří Nykodemí, Pavel Rychetský, Milada Tomková, Miloslav Excellent and Michaela Židlická, on the proposal of the Supreme Court in Prague for the annulment of Article 11 of Act No. 121 / 2008 Coll., on the higher judicial officials and senior civil prosecutors of the state administration of the related laws,
as follows:
Paragraph 11 of Act No. 121 / 2008 Coll., on Senior Judicial Officials and Senior Officials of the Prosecutor's Office and on the amendment of related laws, as amended by Act No. 396 / 2012 Coll., shall be deleted with effect from 31 December 2013.
Reasons
Definition and recap of the proposal
1. The Supreme Court in Prague has made a motion before the Constitutional Court for the annulment of Section 11 of Act No. 121 / 2008 Coll., on Senior Judicial Officials and Senior Officials of the Public Prosecutor's Office and on the amendment of related laws (hereinafter referred to as "PSAO '). He stated that there is an appeal procedure at the Supreme Court in Prague, held under sp. cmo 114 / 2010, on the appeal of the defendant against the order of the Regional Court in Ústí nad Labem. This order, which rejected the defendant's objections to the exchange order, was not issued by a judge but by an assistant judge on the basis of § 11 of the PSO, in conjunction with § 36a (5) of Act No. 6 / 2002 Coll., on Courts, Judges, Addresses and Government Administration of the Courts and on the amendment of certain other laws (the Law on Courts and Judges), as amended (hereinafter referred to as" the GSS').
2. The appellant justifies his proposal with two main arguments: the internal contradiction of the PSU based on the wording of Sections 10 and 11 of this Act and the very unconstitutional content of Section 11.
3. On the first ground, the appellant points out that Paragraph 10 of the PSO provides for a exhaustive list of the first degree of action of the court, which, in civil proceedings and administrative proceedings, is entitled to be carried out by a senior judicial officer (and on the basis of § 36a (5) of the GPA also by an assistant judge). On the other hand, the following Section 11 of the SAA provides that a senior judicial officer (and thus an assistant judge) may take any decision, except for decisions listed in points (a) to (j) - note: as amended by Act No 396 / 2012 Coll. It is clear that the two provisions are mutually exclusive: either the taxative list of Section 10 of the PSSM applies, and then neither the assistant judge nor the senior judicial officer is entitled to decide to refuse to object to the exchange order, or Article 11 of the same law applies, and the senior judicial officer and the assistant judge are entitled to issue such a decision. It cannot be concluded that Paragraph 10 of the PSO contains a demonstrative list of acts which may be taken by a senior judicial officer (assistant judge) under Section 11 of the PSO; There is no link between the two provisions, and each would stand by itself. In view of the fact that both provisions have been in the law since the beginning of its effectiveness, the lex posterior derogat priori rules cannot be applied.
4. The appellant also referred to the order of the Constitutional Court of 23 February 2010 sp. zn. III. ÚS 1531 / 09 (not published in the SbNU, available at http: / / nalus.ujud.cz), in which the local court expressed its views on the jurisdiction of senior judicial officers and expressed the view that, in case of doubt, a certain act may be performed by a person other than a judge, such provision of the law must be interpreted strictly, i.e. that it cannot be done.
5. On the second ground, the appellant recalled that the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') implies that the judicial authority is exercised by independent courts, particularly through judges whose independence is guaranteed. The possibility of making decisions conferred on senior judicial officers and assistants by a judge, as permitted by Article 94 (2) of the Constitution, is an exception to the general rule and cannot become a rule. According to the appellant, it would be absurd, for example, for" non-arbitrators' to be issued a standard of independence, impartiality and expertise, that is to say, by the Court's staff, in which there is no longer, and cannot be ensured, by the nature of the case. It could hardly be seen as one of the three pillars of an independent and equal state power.
6. On this basis, the appellant submits that the exception to the rule of law, which is the judgment of the courts by means of senior judicial officials and assistants, must be laid down in the law in a taxic and explicit manner, with the fact that what is not mentioned in such an extract not falling within their scope. However, the opposite approach of § 11 of the PSAM gives rise to the incorrect and unconstitutional idea that the judicial authority is (may) exercised on behalf of the Republic by these persons, with the exception of a few things that can only be decided by judges.
7. Among other things, the appellant pointed out the absurd consequences to which the application of Paragraph 11 could lead: a senior judicial officer or an assistant judge could issue an exchange order, which is completely unacceptable both from a constitutional and procedural point of view.
8. For these reasons, the appellant considers Paragraph 11 of the PSSM to be contradictory to Article 81 following Articles 82 and 94 of the Constitution and Articles 36 (1) and 38 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter ') - a senior judicial officer or an assistant judge ruling on the basis of Article 11 of the PSSM cannot be regarded as a legal judge - and therefore proposes its annulment.
Recap essential parts of the observations of the Chamber of Deputies of the Parliament of the Czech Republic, the 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 course of the legislative process and stated that the law was passed by the necessary majority of Members of the Chamber of Deputies, signed by the relevant constitutional officials and was duly declared. The legislature acted in the belief that the law adopted was in line with the Constitution and our rule of law. It is up to the Constitutional Court to examine the constitutionality of the Act and to give a decision in connection with the proposal of the Supreme Court in Prague to abolish § 11 of the PSAO.
10. The President of the Senate of the Parliament of the Czech Republic recalled in his observations that the contested law was based on the concept of judicial reform in the years 2008 to 2010, which was taken into account by the Government by Resolution No 65 on 23 January 2008, in which, inter alia, the transfer of as many acts as possible by judges or prosecutors to senior judicial officers and senior officials of the Public Prosecutor's Office was to take place. In view of the above-legal limits, inter alia, arising from the right to a legal judge, the scope of the activity of senior judicial officials has been subject to a directive according to which a senior judicial officer does not work alone, but is part of a judicial department established in a Chamber or a single judge. The President of the Senate further described the course of the legislative process in this Chamber of Parliament and assessed it by acting within the limits of the Constitution and in a constitutional manner. It also stated that in the Senate "the legislative act in question was not" as a whole or in individual parts or provisions. The approval of the bill was without a single debate; Only the Minister of Justice, acting as the draftsman and rapporteur of the Constitutional Legal Committee, spoke to him in an obligatory manner. Finally, the President of the Senate leaves it entirely at the discretion of the Constitutional Court to assess the constitutionality of the contested Section 11 of the PSO.
11. At the request of the Constitutional Court, the Ministry of Justice commented on the proposal. Paragraph 11 of the PSO does not, in his view, contradict the constitutional order. According to Sections 10 and 11 of the Ministry of Justice, the aim was to define the widest possible jurisdiction of senior judicial officers ("the jurisdiction of a senior judicial officer ends where the judge's exclusive jurisdiction begins"). As regards the own problem raised by the proposal to abolish § 11 of the PSO, the Ministry of Justice, in addition to the reference to part of the commentary literature, sees the function of § 11 of the PSO in limiting the actions that a senior judicial officer may take in the proceedings listed in § 10 (1) of the PSO. If it were not for § 11 of the PSO, a senior judicial officer could, according to the view of the Ministry of Justice, "completely replace the work of a judge in these cases."
Abandonment of oral proceedings
12. Under the provisions of Paragraph 44 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court"), the Constitutional Court may, with the consent of the parties, refrain from the oral proceedings, unless it can expect further clarification of the case. Since both the applicant and the other parties to the proceedings have expressed their agreement to be dismissed from oral proceedings and since the Constitutional Court considers that further clarification cannot be expected from the hearing, it has been abandoned in the present case.
Conditions for the applicant's active legitimacy
13. The application for annulment of the provisions of § 11 of the PSAP was made by the Supreme Court in Prague pursuant to § 64 (3) of the Law on the Constitutional Court.
14. The purpose of the specific control of standards pursuant to Article 95 (2) The Constitution is a judicial check on the constitutionality of the law or its individual provision to be used by the General Court in the hearing and decision of a particular case. This also limits the scope of the General Court for the procedure laid down in Article 95 (2) of the Constitution, which is limited only to the relevant substantive and procedural law in the present case.
15. The Supreme Court in Prague has filed an application for annulment of Paragraph 11 of the PSO in connection with the appeal proceedings, in which the order for refusal of the defendant's opposition to the exchange order is contested. Since the resolution was issued by an assistant judge on the basis of Paragraph 11 of the PSO, in conjunction with Paragraph 36a (5) of the Law on Courts and Judges, Section 11 of the PSO must be regarded as a provision of the law to be or to be applied. This also gives the applicant an active ID.
Petit proposal and text of relevant provisions
16. According to the petition, the Supreme Court in Prague is calling for the Constitutional Court to annul Paragraph 11 of the PSO. In the light of the content of the application and the circumstances in which the jurisdiction of senior judicial officers is governed, not only the contested provision of § 11 but also the previous provision of § 10 of the PASU is cited:
(1) A senior judicial officer may carry out acts of the Court of First Instance in civil proceedings in these cases:
(a) proceedings for the issue of a payment order and, in such cases, decisions on late payment orders, termination of proceedings for the withdrawal of an electronic payment order or, where applicable, of an application for a payment order, cancellation of a payment order which cannot be served, proceedings for the issue of an electronic payment order, and, in such cases, decisions on late payment of objections against an electronic payment order, cancellation of an electronic payment order, termination of proceedings for the withdrawal of an application for an electronic payment order, proceedings for the issue of a European order for payment order, and, in such cases, decisions on late payment orders against a European order, European order for payment order or electronic payment order, termination of proceedings for the withdrawal of an application for a European order for payment order, and decisions pursuant to Article 114b (1) of the Civil Code, were decided on the matter.
(b) a succession procedure in which there is no need to order proceedings in a court of law and in which
1. the procedure laid down in Article 175k (1) and (2) of the Civil Code,
2. Withdrawal of a case pursuant to Article 175zb of the Civil Code,
3. Repayment of the case under Article 175zd of the Civil Code,
4. the inheritance located abroad,
5. the inheritance of the deceased who was a stranger,
6. the liquidation of the inheritance pursuant to Paragraph 175t of the Civil Code; or
7. the transfer of the inheritance to creditors of the deceased's debts pursuant to Article 175p (1) of the Civil Code,
(c) proceedings for the custody of minors and in the custody of persons deprived of legal capacity or restricted to legal capacity and persons absent or unknown who do not need to be ordered to act;
(d) the procedure for declaring the admissibility of taking over at the health care institution;
(e) hiding procedures;
(f) instrument amortisation proceedings;
(g) the procedure for the enforcement of decisions by withholding wages, ordering claims or selling movable property, the order for payment from an account with a money institution where no hearing is required, the enforcement of decisions by selling the property where no hearing is required;
(h) conciliation;
(i) the procedure for determining paternity by a declaration of parental agreement;
(j) the execution order procedure, unless the execution title is an executive or notarial registration, including the decision on the application to stop execution by the creditor or the executor, if none of the parties opposed the application;
(k) the decision to terminate the procedure and the revocation of the order for payment on the grounds of the withdrawal of the action.
(2) A senior judicial officer in proceedings concerning the business register, the register of public utility companies, the fund register, the insolvency register and the register of the community of owners of units is entitled to do all the acts, including the making of entries in registers, where no regulation of the proceedings is necessary.
(3) Save as otherwise provided for in a special law, the senior judicial officer may, in civil proceedings and in administrative proceedings, carry out the following acts of the court:
(a) the drawing up of submissions by the court, including proposals;
(b) processing of requests, with the exception of those in contact with a foreign country, outside the Slovak Republic;
(c) the removal of defects in the submission and refusal of submission for non-elimination of defects;
(d) decision on the composition of the advance, decision on the repayment of the advance;
(e) decisions on judicial fees, including decisions on exemption from the obligation to pay a judicial fee, decisions on termination of proceedings on grounds of non-payment of a fee and annulment of that decision, except where the imposition of an obligation to pay a fee is related to the decision on the substance of the case;
(f) entrustment of the court executor to other activities pursuant to Article 76 (1) of the Rules of Enforcement;
(g) decision to refuse late appeal;
(h) identification of data in the procedure for granting international protection from the Ministry of Interior database;
(i) deciding on the provision of a representative of the parties pursuant to Article 30 of the Civil Code and Article 35 (8) of the Administrative Code and on the reimbursement of the costs of the representative so appointed;
(j) indication of the legal power to the original decision in all cases and indication of the enforceability of the decision;
(k) deciding on the witness, expert and interpreter;
(l) decisions on costs not decided in the decision terminating the procedure;
(m) examining the voting rights of each creditor and deciding on the transfer or transfer of the claim under Paragraph 18 of the insolvency law;
(n) actions to establish the stay of a party to proceedings, to decide on the provisions of the guardian of the party to proceedings, if his stay is unknown;
(o) decisions on the provisions of interpreters and experts, including decisions on the lodging of advances at the cost of proof;
(p) acts in insolvency proceedings, with the exception of negotiations and decisions on:
1. the provisions of the insolvency administrator;
2. Withdrawal of the insolvency administrator from office,
3. exemption from the function of insolvency administrator;
4. the annulment of the resolution of the creditors' meeting,
5. The provisions of the provisional creditor committee,
6. a proposal for a regulation of an interim measure to limit the debtor's right to dispose of the property;
7. proposal for a moratorium,
8. That the debtor is bankrupt,
9. Refusal of the insolvency proposal;
10th abolition of bankruptcy,
11. declaration of bankruptcy and cancellation;
12. Approval of the final report and the timetable resolution,
13. authorisation of the reorganisation, approval of the reorganisation plan and its amendments and conversion of the reorganisation into bankruptcy,
14. the approval of the debt relief plan and its amendments, the granting of an exemption from payment of the debt covered by the debt relief plan and the withdrawal of such an exemption and the cancellation of the debt relief plan;
15. closure of the business of the debtor;
16. matters of the same nature in incident disputes,
(r) the acts referred to in Article 260 (1) and (2) of the Civil Code;
(s) acts on the declaration of property of the debtor, with the exception of the procedure laid down in Section 260e of the Civil Code;
(t) deciding on the withdrawal of an application before the opening of proceedings or of an application for divorce, invalidity of a marriage or determination of whether the marriage is present or not, or the withdrawal of an application for revocation, invalidity or absence of a partnership pursuant to Article 96 (2) and (4) of the Civil Code;
(u) acts of the Court of First Instance before the appeal is lodged;
(v) acts of the Court of First Instance before the presentation of the notice of appeal. ';
A senior judicial officer in civil proceedings and administrative proceedings may, save as otherwise provided in a special law, carry out all acts of the Court of First Instance, except:
(a) conduct negotiations on the substance of the matter;
(b) the judgment in the case itself in the form of a judgment;
(c) decisions on interim measures;
(d) the decision on the enforcement order by the sale of real estate, the sale of an undertaking or the establishment of a judicial lien;
(e) a decision on a regulation for the enforcement of a judgment for the enforcement of a cash performance, where the enforcement title is a notarial registration, including a decision to terminate the enforcement of a decision, where the application has not been lodged by an authorised or executive, or where an appeal has been lodged against the application,
(f) decisions to satisfy the rights of non-cash performance;
(g) decision-making on the regulation of the enforcement of decisions on the education of minors;
(h) decision-making in proceedings for confirmation of the European Enforcement Order;
(i) the decision to suspend and postpone the execution, if any, and the decision to exclude the court executor;
(j) deciding on the suspensory effect of the action in the administrative proceedings;
(k) cases where the act of special law is expressly entrusted to the judge. "
17. The provision cited in § 11 of the SAO was affected by the amendment made by Act No. 396 / 2012 Coll. However, this amendment is only partial and does not alter the overall concept of this provision or its relationship with Paragraph 10 of the PSO and therefore does not in any way eliminate the shortcomings which the appellant criticises.
Constitutional conformity of competence and legislative process
18. The Constitutional Court, in accordance with the provisions of Paragraph 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., is required to assess whether the contested law, its individual provisions, or other legislation or its individual provisions, has been adopted and issued within the limits of the constitutional competence and constitutional requirements.
19. It was found from the House of Press and shorthand reports, as well as from the observations of the President of the Chamber of Deputies and the President of the Senate of the Parliament of the Czech Republic that the Chamber of Deputies approved the proposal of the PASSU in vote 280 (Resolution No 661) at its 27th meeting on 13 February 2008; of the 180 Members present was for 169, no one opposed. The Senate was referred to on 26 February 2008 and discussed at its 12th meeting on 19 March 2008, the Senate approved the bill in the version referred by the Chamber of Deputies (Resolution 329). In vote 32 of the 51 senators present, 48 senators were elected to approve the bill, no one opposed it.
20. The Act was signed by the relevant constitutional authorities and was duly declared under No 121 / 2008 Coll. in the amount of 39 Collection of Laws, which was circulated on 15 April 2008, and according to its provision § 32 came into force on 1 July 2008.
21. Based on the above, the Constitutional Court notes that the PSO was adopted in accordance with the constitutional courts concerning competence and the legislative process.
Content compliance of the contested legal provision with the constitutional order
22. The Court of Justice shall exercise, on behalf of the Republic, independent courts (Article 81 of the Constitution). From Articles 82 (1) and 94 (2) The Constitution shows that the judiciary is carried out by judges before the courts. Other persons may participate in the conduct of the judiciary, if the law so provides. Thus, the fundamental rule of a constitutional nature is the performance of the judiciary by a judge; the share of other persons in it is an exception to the rule.
23. This exception has its substantive grounds relating to the very exits of the judiciary of the democratic rule of law, the essential characteristic of which is, first and foremost, judicial independence. Judgments and literature generally distinguish between the independence of the court and the independence of the judge. At the same time, however, they remind us that both are inextricably related, because one independence is not possible without the other; It is difficult to consider the independence of the court unless the independence of the judge is guaranteed and vice versa. In this sense, it is possible to quote, for example, the finding of the Constitutional Court of 18.6.2002 sp. zn. Pl. ÚS 7 / 02 (N 78 / 26 SbNU 273; 349 / 2002 Coll.): "Article 81, already mentioned The Constitution provides that the judicial authority is exercised by independent courts on behalf of the Republic. Article 82 (1) of the Constitution then provides that judges shall be independent in the performance of their duties and their impartiality shall not be jeopardised. Thus, the independence of the judge, as well as the independence of the judicial authority, is connected and is in a cross-compliance relationship, including with the impartiality of the judge and the court. Independence and impartiality are inherent attributes of the concept of court. Its impartiality and independence is a value that benefits everyone, as it is one of the guarantees of equality and legal certainty in democratic society. Only an impartial court is capable of providing genuine justice to all and all, with one means of impartiality to the court guaranteeing judicial independence. '
24. For this reason, the rule of law provides numerous guarantees of the independence of the judge. The principle of a judge's binding principle is merely a law and an international agreement which forms part of the legal order and the related authorisation to assess compliance with the law (Article 95 (1) of the Constitution). On a personal basis, the independence of the Judge is guaranteed primarily by the duration of the function of Judge (Article 93 (1) of the Constitution), its fundamental irrevocability and non-objectivity (Article 82 (2) of the Constitution), the incompatibility of the performance of the duties of Judge with other functions (Article 82 (3) of the Constitution), it is reflected in material security and, where appropriate, in other aspects to which the Constitutional Court has repeatedly expressed itself in its practice.
25. The implied guarantees of the judge's substantive and personal independence are not self-useful, but, together with the institutional guarantees of the court's independence, they are to ensure judicial independence, without which justice would be merely a pleasure. The participation of other persons in the exercise of the judiciary must then always be regulated by law so as not to jeopardise the independence of the judiciary.
26. The modern judiciary is also characterised by demanding demands for judges, both personally and professionally. The judge must have successfully completed a university legal education, the practice of a judicial candidate or another equivalent to that of an established practice and the acquired experience, knowledge and skill to prove the judicial (or other) examinations. The person of the Judge must always offer guarantees of the proper performance of the duties of Judge, which is directly linked to the requirements of integrity and the achievement of a certain age. In the legislation in force, in particular Article 60 of the GSS.
27. Similarly, as regards the requirements mentioned above, the same must apply to judicial independence: if they are to participate in the exercise of the judiciary and other persons than the judges, neither the professional nor the overall level of performance of the judiciary must be jeopardised.
28. Those grounds shall also apply in full in the event of an assessment of the extent to which senior judicial officers may participate in the conduct of the judiciary and, as is the case at present, the assistants of judges who are entitled to participate in the court's decision-making activities within the meaning of Article 36a (5) of Act No 6 / 2002 Coll., on courts, judges, sitting and state administration and on the amendment of certain other laws (the Law on Courts and Courts), as amended, to the extent provided for by the special law on higher judicial officers; the provisions governing the status of senior judicial officers shall apply mutatis mutandis.
29. The senior judicial officer shall represent the person carrying out the acts of the court entrusted to him by law; Depending on the specific arrangements, these may be not only judicial activities, but also judicial activities. According to the current Czech legislation, a senior judicial officer may be a citizen of the Czech Republic, who is upstanding and who has successfully completed his studies of senior judicial officers (§ 22 et seq. ZSAO); This study is based not only on a Master's study programme but also on Bachelor's education (§ 2 (1)). The activity of a senior judicial officer shall consist in carrying out judicial acts in civil proceedings, criminal proceedings and administrative justice. Such acts may be carried out by a senior judicial officer either under the authority of the President of the Chamber or without such authority; on which of the two variants are concerned, the work schedule is the only one in the current regulation (see Section 4 (2) of the Act cited). Where a senior judicial officer carries out acts of the court directly on the basis of a schedule of work, i.e. without the mandate of the President of the Chamber, he shall be bound only by law and other law, and not by the instructions of the President of the Chamber. Where acts are carried out under the authority of the President of the Chamber, the President of the Chamber may instruct the senior judicial officer in writing how the act is to be carried out only if the act is not in the nature of the decision. There is no such possibility for decisions to affect the judgment of a senior judicial officer; However, the President of the Chamber does not have to delegate such an act to a senior judicial officer. An appeal against a decision of a senior judicial officer shall be admissible under the same conditions as against the decision of the President of the Chamber. If the matter to be dealt with by a senior judicial officer is actually or legally complex, he shall be obliged to refer it to the President of the Chamber, or the President of the Chamber may withdraw it from him and deal with it separately. In particular, see Sections 1 to 9 of the PHOS.
30. The comparison of the guarantees of independence, as well as the professional level and personal assumptions of the judge, on the one hand and the senior judicial officer, on the other hand, is very clear.
31. In the case of independence, only substantive independence is comparable. The judge is bound by the law and the international treaty, which is part of the rule of law. According to § 3 (1) of the SAO, a senior court officer is bound by "law and other legislation." The wording is different from that of the judge because the judge is not bound by other legislation (i.e. by statutory law) if such legislation is contrary to the law. If such a situation arises in the activity of a senior judicial officer, the case should be referred to the President of the Chamber, as an assessment of compliance with the law may be considered to be legally complex within the meaning of Article 7 (1). (a) VOTE. Therefore, in relation to the parties to the proceedings, the final result should be the same, whether the court acts as a judge or a senior judicial officer.
32. In this context, however, it should be pointed out that the rule of Paragraph 5 of the PSAM, according to which the President of the Chamber may commit a written order from a senior judicial officer only in the case of an act of a non-decision nature carried out under the authority of a judge, lacks reasonable meaning. A senior judicial officer may undoubtedly not be bound by orders, orders or wishes of third parties, whether outside the court or persons of the court, but those which do not have to deal with the case according to the work schedule. However, if there is a judge to whom the case has been brought in accordance with the schedule of proceedings, there is no reason for such adjustment. The senior court officer is supposed to be the assistant judge and not someone who is independent of him.
33. However, in a level of personal independence, the position of a judge and a senior judicial officer is incomparable. Practically none of the above attributes applies to a senior judicial officer, whether it is a guarantee of the durability of the function, irrevocability, non-replacability, physical security, requirement of incompatibility of functions, etc.
34. The same difference is made between personal assumptions and professional standards of judges and senior judicial officers. Both categories of persons combine only the requirements of citizenship and integrity. However, while a judge must guarantee his / her duties as a judge, he / she must reach the age of at least thirty years, study a five-year degree in law school, perform a judicial practice and pass a judicial examination, with a senior judicial officer it will be sufficient for a three-year degree organised by the Ministry of Justice or a three-year degree in a bachelor's degree programme at a university.
35. Thus, the senior judicial officer is only an official who, in principle, lacks guarantees of personal independence, does not require personal assumptions, as with the judge, and the professional level is sufficient at a significantly lower level. Of this, limits shall also be imposed on the activity of a senior judicial officer. A senior judicial officer may not perform acts for which the characteristics which he lacks (personal independence, personal assumptions, professional level) are necessary. From this point of view, it is unacceptable for a senior judicial officer to make a substantive decision, regardless of the form of the decision. The same applies to other procedural acts, and above all to decisions of a procedural nature. A senior judicial officer shall be an assistant to a judge who shall assist in reaching a reasonable length of legal proceedings by carrying out acts of a simple or routine nature. More complex matters, requiring legal erutions, or situations in which the court cannot be represented by anyone other than the judge by the nature of the case (decisions of a mere court, final decisions of a more significant decision in the preparation of negotiations), do not allow the participation of senior judicial officials. Otherwise, the judgment becomes the actual administration.
36. After all, Professor Winter already pointed out the unacceptable development of the legislation on the activity of a senior judicial officer when preparing ZVSÚ (Winter, A. Above the prospects of the Czech civil process. Legal perspective, 2008, No 19, p. 706 et seq.):
"The proposal for a new SAO law goes even further in this regard. The submission report expresses its clear intention when it talks about extending the possibilities of transferring from judges... to senior officials to a much larger extent even its own decision-making remit '. This also provides a list of the various acts which may be carried out by a senior judicial officer in § 10 and in the new provision of § 11, which already overturns the logic of the legislation when it says that a senior judicial officer may, in civil proceedings and in administrative proceedings, carry out all the acts of the Court of First Instance, with the exception of the conduct of the proceedings on the substance of the case and the judgment on the substance of the case. (Sic!)
In my opinion, there is already a need to say a clear NO to this trend towards official decision-making (when adopting that wording, it would be sufficient later to extend the amendment of the Civil Code to the range of matters in which decisions are made by a resolution rather than a judgment, and to extend the register of possibilities in which decisions can be taken without a hearing, and a senior judicial officer can come on).
If they are properly qualified, many of the acts calculated in Sections 9 and 10 of the SAO Act in force can certainly be entrusted to the court officials. However, in my opinion, a judicial officer should not, in principle, give decisions on behalf of the court and on the outside: he should not decide on the issue of a payment order, on the refusal of late resistance; I have doubts as to whether an official should approve an agreement on the settlement of the inheritance or confirm the acquisition of the inheritance according to the inheritance shares or decide on the redemption of documents, etc. I consider it inadmissible to decide on the refusal of late appeal, on the procedural succession, on the acceptance of a change of action or on the confusion of participants (according to the draft new law) or on the invitation under Section 114b of the DSB (according to the draft amendment to the Act on the Civil Code).
I do not know what in the organisation of teamwork in courts should prevent such decisions and similar decisions from being prepared by an assistant or official, but taken and outsourced by (signed) a judge and therefore guaranteed by him. I would have thought it better. "
37. It is clear that the legislation of the acts which a senior judicial officer at first instance of civil proceedings and administrative justice may take, contained in Section 11 of the PSO, cannot be maintained for both reasons set out by the Supreme Court in Prague in its proposal. It should be explicitly pointed out that Paragraph 10 of the PSO (or other provisions) leaves aside further considerations only because its application for annulment does not concern it. But also for its content, of course, what was generally mentioned above.
38. The provisions of Sections 10 and 11 of the SAA are primarily in clear contradiction. Paragraph 10 (1) of the SAA calculates in what cases a senior judicial officer may carry out acts of a court of first instance in civil proceedings. The second paragraph of this provision refers to the register procedures and the third should not concern matters, but to individual acts in civil proceedings, and - as against the first and second paragraphs - to the administrative judiciary, regardless of the case [the third paragraph is, however, inconsistent; see point (p)]. This could, for the standard form of legislation, be seen by argument and contrario as not being within the scope of the activity of a senior judicial officer. However, the wording of Paragraph 11 of the SAO is against this, according to which a senior judicial officer may carry out, in civil proceedings, all acts of the Court of First Instance, other than exceptions, explicitly calculated in that provision.
39. According to Section 10 of the PSO, only what is expressly stated in this provision can be carried out by a senior judicial officer, whereas according to Section 11 of the PSO, he can do everything except what is expressly forbidden to him. Such a regulation raises a number of difficult interpretation problems: for example, according to Paragraph 10 (1) (a) of the PSO, a senior judicial officer may invite the defendant to be heard in the form of a qualified invitation under Paragraph 114b (1) of the Civil Code, only if the matter has been decided by a payment order. Does this actually mean that outside the context of the payment order, a senior judicial officer cannot issue a qualified invitation (as would be the case with the wording of Paragraph 114b (1) of the Civil Code), or can it be concluded that, if Paragraph 11 of the PSU qualified call among acts which a senior judicial officer is not allowed to carry out at all, it can be made at any time, even without a link to the order procedure (see the recent decision of the Supreme Court in section 21 Cdo 4259 / 2011)? The appellant draws attention to another - and even more serious - absurdity in relation to the exchange orders: § 10 (1) of the PSO does not mention them in (a) or in any other provision and therefore does not entrust them to a higher judicial officer, but § 11 of the PSO does not even include them in acts which a senior judicial officer may not perform; Having regard to that, a senior judicial officer could then decide by means of an exchange order. Similar examples of the relationship between the PSOs and the PSOs could be given more, but this is no longer necessary; It is clear that there is no rational relationship between the two provisions, since the two are an expression of two different legislative approaches which cannot stand side by side.
40. However, the text of the individual exceptions calculated in Section 11 of the SAA under each letter also leads to hard to accept conclusions. It has been stated above that it does not correspond at all to the position of a senior judicial officer in order to rule on the substance. Paragraph 11 (b) of the PSO, as pointed out in the above-mentioned article, however, meritorial decision-making prohibits a higher judicial officer only if the decision takes the form of a judgment. It can then be concluded that, if a "only 'decision takes the form of a resolution, it may also be taken by a senior judicial officer. With regard to the introductory wording of Section 11 of the SAO, this applies both to the primary decision-making in civil proceedings and to the administrative judiciary. All you have to do is look at the civil court order and the administrative order, so that the unsustainability of this structure is clearly brought to the fore. However, the problem may still dictate, if it is not needed in the procedure in which the matter is decided in the form of a resolution itself, the conduct [Paragraph 11 (b)]. (a) FOREIGN: such proceedings may be taken entirely by a senior judicial officer, without any involvement of a judge. Paragraph 200e (3) and (4) of the Civil Code, or § 46 (1) of the Administrative Code, can be named at random.
41. All in all, however, it can be said that the concept of § 11 of the PMI as such is problematic. From the constitutional exits outlined above, it is claimed that the judiciary is an activity carried out by judges in the courts; The reasons for this are guarantees of personal and substantive independence, as well as personal assumptions and professional standards of the judge. The participation of other persons in the exercise of the judiciary is an exception to this rule and therefore needs to be treated strictly (see resolution sp. zn. III. ÚS 1531 / 09 in relation to senior judicial officers). This constitutional basis cannot be turned upside down by legal regulation, based on the principle that, in essence, the judiciary can generally be exercised by officials, except for a few cases specifically reserved for judges. They are therefore also unacceptable ideological bases, which mention in its observations the Ministry of Justice and which appear in the explanatory memorandum, namely that the "improvement and acceleration of proceedings should be achieved, in particular by transferring the exercise of the widest possible extent of the actions carried out so far by judges or prosecutors to senior judicial officers and senior officials of the public prosecutor ', the scope of which is to be limited" essentially by the sole competence of the judge or prosecutor.... The jurisdiction of a senior judicial officer shall be defined as far as possible. Its jurisdiction shall end where the judge's exclusive legal jurisdiction begins.... "thus creating the preconditions for the possibility of maximum separation of judges..."
42. However, the effort to expedite the proceedings and "remove" judges has limits and must never lead to the judiciary becoming an empty form. The judiciary is called upon to provide protection for existing (i.e. actual) subjective rights and therefore only fulfils its social function if it is capable of achieving this objective. There is always an objective need to spend some time and effort to discuss and decide. In particular, it is possible to expedite proceedings where procedures are not necessary or are unnecessarily formalised and complicated (both apply, for example, to the division of jurisdiction between civil and administrative courts in the review of administrative decisions, too complex and unclear regulation of substantive jurisdiction in civil proceedings and follow-up); Similarly, the participation of other persons in the exercise of the judiciary may be allowed if this makes it easier for the judge to act simply and routinely. However, speeding up and delaying must not jeopardise the possibility of a proper - and objectively necessary - determination of the facts and its legal assessment, at the necessary professional level with sufficient guarantees of personal and substantive independence.
43. This must be borne in mind by the legislator when it regulates the participation of other persons in the performance of the judiciary. Of course, the work of a judge today cannot be done without the cooperation of other persons, such as senior judicial officials or assistants of judges or others. However, such persons may only act separately if they do not exceed their auxiliary role. They may, of course, participate in other acts, if the judge so requests; But these acts are only prepared, and the judge must then do them in his own name, and therefore on his own responsibility.
44. Finally, it must be emphasised that effective defence must be maintained against those acts that can be entrusted to a senior judicial officer. However, the legislation in force, which is contained in Section 9 of the SAA, does not comply with this. An appeal or a complaint may be brought against a decision of a senior judicial officer in civil proceedings or criminal proceedings under the conditions laid down in civil law or criminal law. Therefore, where, for example, appeals against a decision of the Court of First Instance are not at all admissible, the decision of a senior judicial officer cannot be challenged by appeal. Consequently, the last word cannot be given to a court, but to a senior court officer, precisely in spite of the fact that the judiciary should, by its nature, constitute an activity carried out by judges and not by officials.
45. It cannot also be overlooked that senior judicial officers may also participate in the administrative judicial proceedings (§ 10 (3), § 11). However, in this case, the PSO completely ignores any possible defence of the parties; In the administration of the judiciary, there is simply no defense against the decision of a senior judicial officer at all. Paragraph 9 (1) of the SAA refers to the possibility for the President of the Chamber to decide on an appeal against a decision of a senior judicial officer in civil and commercial matters, Article 9 (2) of the SAA provides for the possibility of the President of the SAA to decide on a complaint against a decision given by a senior judicial officer in criminal proceedings.
46. It can therefore be summed up that Sections 10 and 11 of the SAO are in conflict, since the first of them is on the construction, according to which a senior judicial officer can only do what he is entrusted with this provision, the second of which, on the contrary, assumes that a senior judicial officer can do everything except a few expressly prohibited acts. This contradiction cannot be bridged by interpretation or interpretation, as has been shown above by examples of a qualified invitation or an exchange order (see recital 39). It is also recalled that not only the relationship between the two provisions is problematic, but also Section 11 of the SAA itself. The constitutional bases described in detail show that the judiciary is an activity carried out by courts and judges whose personal and material independence, professional standards and personal assumptions are key functional attributes of the rule of law. The law - as Section 11 of the PSO - cannot turn this constitutional rule upside down by turning the judiciary into an administration and retaining only a tiny circle of acts that senior judicial officials cannot perform. Therefore, it is not acceptable to clarify Article 11 of the BSCA, which, instead of fulfilling the Constitution, makes the exceptions provided for in this exception essentially an indefinite rule. Similarly, the constitutionally acceptable content of some of the exceptions calculated in this provision, or the consequences thereof [see above under point 41, in which it is pointed out that Paragraph 11 (a) and (b) of the PSSU may establish a situation in which proceedings in which a substantive decision is made and there is no need to order negotiations, will be the whole procedure under the direction of a senior judicial officer (e.g. examples of proceedings on certain business, cooperatives and other legal entities).] For these reasons, the Constitutional Court complied with the application and § 11 of the PSO pursuant to § 70 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., was annulled. In order for the legislator to have sufficient time to prepare a constitutional conformal regulation of the activities of senior judicial officers, the Constitutional Court set the date of annulment of § 11 of the PSO until the end of this calendar year, i.e. 31 December 2013.
47. The Obiter dictum Constitutional Court recalls that, in view of the principle of petitiveness of the petition, only the provisions of § 11 of the PSO could be repealed in this procedure. However, it is clear from the arguments put forward above that this provision is constitutionally problematic, but also part of the content of Paragraph 10 of the SAR. The legislature will also have to carefully consider the concept of a provision of Paragraph 12 of the PSU, which relates to criminal proceedings and which may cause similar problems at first sight, and, finally, to resolve the lack of protection resulting from the provisions of Section 9 referred to above. In conclusion, it should be stressed that this finding does not intend to exclude senior judicial officers from their role in the performance of the judiciary. A senior judicial officer may certainly prepare a number of procedural acts for the judge and under his responsibility; However, such acts may be carried out by a senior judicial officer on his behalf only in cases and under conditions which have been interpreted from above (see, for example, recital 35 to this finding).
48. As regards the effect of this annulment on acts taken by senior judicial officers until the enforcement of the finding, it is noted that, for reasons of legal certainty, the provisions of Paragraph 71 (2) of the sentence behind the centrepiece of the Law on the Constitutional Court are not applicable and the claims arising from these decisions may be the subject of enforcement or execution.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by Judge Vladimir Krók to the decision of the plenary and by the Judges Stanislav Balík and Jan Filip to justify it.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found no 224 / 2013 Coll., on the application for annulment of § 11 of Act No. 121 / 2008 Coll., on Senior Judicial Officials and Senior Officials of the Public Prosecutor's Office and on the amendment of related laws, as amended by Act No. 396 / 2012 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 30.07.2013 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0