The Constitutional Court found no 268 / 2017 Coll.
The Constitutional Court found of 27 June 2017 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
22.08.2017
268
FIND
The Constitutional Court
On behalf of the Republic
On 27 June 2017, the Constitutional Court decided under sp. zn.
as follows:
The application for annulment of Paragraph 160 (2) of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended by 30 June 2017, is rejected.
Reasons
Definition of the case
1. Pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the repeal of Article 160 (2) of the Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law).
2. The appellant stated that he was in charge of the disciplinary action of the President of the Regional Court in Ostrava against the judge of this court, Dr. Aleš Volný. According to the disciplinary motion, this judge was to commit a criminal offence involving an unjustified failure to act in a total of 54 cases, of which 40 cases in the division of 22 ICm incident disputes. These incident disputes were assigned to the judges by the President of the Court on 27 January 2015 on the basis of Paragraph 160 (2) of the Insolvency Act. In 37 of these cases, the judge has not performed any action since they were assigned at least until the verification was carried out on 12 November 2015. The critically accused of the proposal stated that he had been assigned matters of incident disputes outside the work schedule, without consulting the Judicial Council and without prior rules. In these matters, he does not feel that he is a legal judge, which he has informed the President of the Court of First Instance of while awaiting the decision of the Constitutional Court in the case sp. v. Pl. ÚS 11 / 15. The defendant had never previously dealt with the insolvency agenda, so he was primarily dealing with matters duly assigned and was familiar with the new agenda (according to other regulations and using another computer program). In January 2015, the appellant's disciplinary action against other judges who had never dealt with the insolvency agenda, and they are all being accused of delays.
3. The Supreme Administrative Court, at the preliminary hearing of the case, concluded that, in order to assess the action cited in the appeal, it was necessary to consider whether the insolvency agenda of the defendant had been properly assigned to the court or whether he could reasonably argue that he was not a legal judge. This assessment is relevant in terms of the qualification of such conduct, the decision on the guilt of the accused and the decision on a possible disciplinary measure that would correspond to the conduct of the accused. In such a situation, the appellant must also use Paragraph 160 (2) of the insolvency law to resolve the case. Furthermore, the appellant concluded that this provision cannot be interpreted in a manner consistent with the constitutional order of the defendant's case. In his view, this provision is contrary to the right of a legal judge [Article 38 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), the right to an independent and impartial court (Article 36 (1) of the Charter), the independence of the judiciary and judges (Articles 81 and 82 (1) of the Constitution). The following considerations led to this:
4. The objective constitutional guarantees and the right of the parties to an independent and impartial court are not only the external independence of the judge from the powers of executive and other entities outside the judicial state, but also the independence of judicial officials and other entities within the judicial state. Judges may not be pressured by their colleagues or persons exercising the administration of the courts (in particular judicial officials). There must also be sufficient guarantees for these pressures. This is based on the case law of both the Constitutional Court and the European Court of Human Rights.
5. The allocation of items is to take place on a case-by-case basis on the basis of clear rules. Clear guarantees must also be given to ensure objectivity and transparency and, above all, to prevent any possibility of arbitrary action in relation to the allocation of specific cases to judges. The allocation algorithm should be transparent, predictable, verifiable and anti-abuse-resistant by the parties and by the President and Vice-President of the Court. Judicial officials may not have the power to choose which judge will decide the particular case. The discretion of assigning items or their subsequent redistribution could be misused, inter alia, as a means of coercive to ordinary judges. Therefore, the unlimited discretion of the President of the Court in the redistribution of cases is unacceptable.
6. The contested provision does not provide any guarantees against the abuse of the President's discretion in the allocation of incident disputes. Withdrawal of the case to the original judge designated by the current schedule of work and its assignment to any other judge of the court concerned may take place in any number of cases by measures of the President of the Court which may be taken outside the schedule of work and thus without consulting the Judicial Council and without making it available to the public. The contested provision is therefore completely inappropriately designed and does not meet the requirements of clarity, transparency and predictability required in such cases by both the European Court of Human Rights and the Constitutional Court. It does not lay down any criteria restricting the discretion of the President of the Court and does not specify the precise conditions under which a change of a legal judge may take place.
7. According to the appellant, the contested provision is not fully suited to achieving the objective pursued - speeding up insolvency proceedings. In fact, it may encourage an originally designated legal judge to refrain from any action in the case of incident disputes, subsequently ordering the files in question to other judges. It will also not contribute to an expedited settlement if a large number of incident disputes are ordered on a one-off basis by a judge who has not yet dealt with the agenda. This problem is also clear in the present case - according to the opinion of the Regional Court of Justice in Ostrava, it seems "very problematic that these files may lie for other (insolvent) judges for almost one year, because according to the established practice of the Regional Court, they know that the files will be redistributed to other judges, but for a specific judge (JUDr. Volný) they are a new agenda allocated not according to the schedule of work, but by the President of the Court's action, but in this case it is established in November 2015 by a transit."
8. The abuse of the contested provision is also evident from the fact that the President of the Regional Court has presented the original of the files in respect of which the delays are alleged to have been brought before the Board of Appeal. This is a case of files of pending cases in which the accused is already taking action. In such a state, it is customary that only copies be submitted. The possibility of exerting pressure from judicial officials to ordinary judges is confirmed to a large extent by the disciplinary appellant, who, in her submission to the file on 1.34- 35, indicated that, on the basis of the contested provision, she also ordered four judges who, in her view, are troubled and have below average performance. It explicitly stated that "the situation was in principle similar for all four judges appointed above, so I was forced to resolve the situation definitively at the end of 2015. Dr. Axman and Dr. Eagle acknowledged that their continued involvement in justice was impossible, decided to resign as a judge and retire. JUDr. Slabenáková has refused to retire from retirement, so it will be subject to disciplinary action in the coming days, disciplinary action against JUDr. Free is taking place." The appeal against the Judge Slabenáková was subsequently brought, and the appellant interrupted the proceedings before the Constitutional Court in its ruling on the present case.
9. Thus, by virtue of Paragraph 160 (2) of the Insolvency Act, the Court's management may be pressured by ordinary judges, nor can it be ruled out that that provision may be misused to influence specific insolvency proceedings. The contested provision does not offer any guarantees that the President of the Court will act in a constitutional, consistent manner. The constitutional conformal interpretation is therefore not considered. There was a redistribution of a number of previously challenged cases in the case of the accused's karella among specific judges. The appellant considers this to be consistent with § 160 (2) of the Insolvency Act, but at the same time contradictory to the constitutional order and international obligations of the Czech Republic.
Proceedings before the Constitutional Court
10. The Chamber of Deputies of the Parliament of the Czech Republic stated in its observations that the Insolvency Act was discussed in the Chamber of Deputies as a government bill (Press No. 1120) and was approved as a comprehensive amendment and other amendments. The text of Paragraph 160 (2) of this Act has not been amended since 2006. Both chambers of Parliament have agreed to the draft law, the law has been signed by the relevant constitutional authorities and has also been duly declared.
11. The Senate of the Parliament of the Czech Republic stated in its observations that it approved the draft insolvency law in the version referred to it by the Chamber of Deputies at its 10th session of Resolution 416 of 30 March 2006. It was voted out of 54 senators present and no one was against it. There was no discussion directly on the content of the contested provision. The bill was therefore approved in a constitutional manner.
12. The Government stated in its observations that it was questionable whether the contested provision would be used in the disciplinary proceedings brought against the appellant. Doubts as to whether he is accused by a legal judge in the matters assigned to him in the case of incident disputes cannot justify his unjustified procedural inaction. The judge always has to deal with the matter in a procedural way so that there are no delays in the matter, in no way can the answer be simple inaction, for example, with an ex post counterclaim that he is not a legal judge in this matter. The contested provision has already been applied by the President of the Court. It is not to be applied by a court ruling in disciplinary proceedings. Therefore, the assessment of unjustified procedural inaction as a disciplinary offence does not depend on the assessment of the constitutionality of Section 160 (2) of the Insolvency Act. In the Government's view, this is a proposal made by a manifestly unjustified appellant.
13. As regards the contested provision itself, the Government stated that the insolvency law was based on the principle of unity of insolvency proceedings before a single court which pursued an interest in the economy and speed of the proceedings. The Act provides for an exemption from this general rule in Section 160 (2) for the purpose of ensuring speed. Its purpose is to avoid delays in insolvency proceedings in justified and exceptional cases and to ensure that the rights of its participants are protected quickly and effectively. According to the Government, the contested provision is not contrary to the case law of the Constitutional Court on the right to a legal judge, since it allows the rules laid down in advance in the schedule of work to be applied. The President of the Court shall not be entitled to choose a particular judge who decides on a specific incident dispute. It is therefore possible to have a constitutional conformal interpretation of the contested provision.
14. The possibility of ordering an incident dispute to another judge under the rules laid down in advance serves to balance the right to a legal judge with the requirement for a swift and effective settlement. The previous case-law of the Constitutional Court makes it implicit that it is a provision consistent with the constitutional order. According to the case law of the European Court of Human Rights and the Convention on Human Rights ("the Convention '), the power of a judicial officer to assign a particular matter to a judge other than those originally entrusted to it is not contrary to the Convention on the Protection of Human Rights and Fundamental Freedoms (" the Convention'), provided that the procedure is based on sufficiently clear, transparent and predictable rules to prevent insolence or the appearance of insolence by the relevant judicial officer. The Government therefore proposed that the Constitutional Court reject the proposal because the applicant's lack of active procedural legitimacy or, where appropriate, reject it as unfounded.
15. In reply, the Supreme Administrative Court rejected government doubts as to whether Section 160 (2) of the Insolvency Act could be applied in disciplinary proceedings. There is no reason why a disciplinary court could not take into account, in the decision on the guilt or decision on the imposition of the punitive measure, whether the incident disputes were assigned to a karella accused on the basis of an unconstitutional provision. In the disciplinary procedure, it should be duly assessed whether the alleged inactivity is actually unfounded and whether aggravating or mitigating circumstances exist.
16. The Ombudsman stated that she would not exercise her right to intervene.
Content of the files submitted
17. The Constitutional Court of the applicant's file, sp. zn. 13 Kss 1 / 2016 and the attached file documentation, has verified that the circumstances of the case correspond to their description in the application.
Procedural assumptions for discussion of the proposal
18. Article 95 (2) The Constitution states that the court shall bring the case before the Constitutional Court if it concludes that the law to be applied in the resolution of the case is contrary to the constitutional order.
19. This is a case of so-called specific (incident) and not abstract control of standards. The General Court is entitled to make a proposal if it proposes the repeal of the law or its individual provision, the application of which is to be immediate, or if necessary its unavoidable application, and not just a hypothetical use or other broader context [Resolution sp. zn. It follows from the purpose and purpose of the specific control of the constitutionality of legal standards that the law (or its provision) to be applied in the resolution of the case is only one which obstructs the achievement of a desirable, i.e. a constitutional, consensus result; If not removed, the outcome of the present proceedings would be different [point 26 of the sp. zn.
20. It is up to the appellant, on the one hand, to put forward an adequate argument that the contested law (its individual provision) is contrary to the constitutional order but, at the same time, to point out and prove that the use of the contested provision is unavoidable and that only its abolition will result in the achievement of the desired constitutional conformity result [point 19 of the decision of the sp. zn. However, the assessment of the impartiality of the application of the contested provision, by virtue of the nature of the case, belongs primarily to the general court which leads the initial proceedings. These are usually questions of sub-constitutional law, for which the Constitutional Court, as a judicial body for the protection of constitutionality, rather than of ordinary legality, is consistently held in restraint [the finding of sp. zn. The conclusion that the application of the contested provision is not necessary for the referring court may be made by the Constitutional Court in particular if the appellant's conclusion would be manifestly unsustainable [by analogy other constitutional courts are acting in a particular control of the standards, cf. BVerfGE 2, 181 (German Federal Constitutional Court) or VfSlg 2713 / 1954 (Austrian Constitutional Court)].
21. In the present case, the appellant acts as a court of law pursuant to Article 3 of Act No. 7 / 2002 Coll., on proceedings in the cases of judges, prosecutors and court executors, as amended by Act No. 314 / 2008 Coll. Paragraph 86-90 of Act No. 6 / 2002 Coll., on Courts, Judgments, sitting and administration of the courts and amending certain other laws (Law on Courts and Judges), as amended, provides for the disciplinary liability of judges. According to § 87 of this law, the criminal offence is a breach of the duties of the judge, as well as of the conduct or conduct by which the judge infringes the dignity of the judicial function or endangers confidence in independent, impartial, professional and fair judgments of the courts.
22. The disciplinary responsibility and principles for the imposition of disciplinary measures are clearly designed in a different way than, for example, in the Penal Code or in Act No. 200 / 1990 Coll., on Infringements, as amended. By doing so, the legislature left a relatively wide margin of consideration to the court in assessing what is a criminal offence, leaving it also room for consideration on which aspects to impose disciplinary measures. Thus, the only guidance is in § 88 (1) of the Law on Courts that disciplinary measures should be imposed according to the seriousness of the criminal offence (cf., for example, § 37-39, 41 and 42 of the Penal Code).
23. The Constitutional Court consistently states that it is not for it to enter into an assessment of the specific facts relevant to the amount of the sentence in a specific case carried out by the General Court, unless such an assessment is contrary to the requirements of constitutionality. This is only applicable in the case of extreme departure from the criteria laid down by law for these purposes [e.g. Resolution sp. zn. II. ÚS 243 / 03 of 15.4.2004 (U 17 / 33 SbNU 395), sp. zn. IV. ÚS 286 / 99 of 24.3.2000, sp. zn. I. ÚS 91 / 08 of 21.2.2008 (in SbNU not published, available at http: / / nalus.ujud.cz)]. The same Constitutional Court also noted in relation to disciplinary proceedings [Resolution sp. zn. IV. ÚS 2413 / 15 of 8.12.2015 (not published in SbNU, available at http: / / nalus.ujud.cz)]. Contrary to criminal rules, the legislature did not specify any attenuating and aggravating circumstances relevant to the imposition of disciplinary measures, not even a demonstration list. Therefore, the assessment of the circumstances relevant to the assessment of the action which has been criticised and to the imposition of the measure depends on the consideration of the court of disciplinary action to a greater extent than in the criminal courts. If the Constitutional Court is holding back on the evaluation by the criminal courts, otherwise this cannot be the case in the present case.
24. The rejection of the present application as an application lodged by a manifestly unjustified appellant would mean that the disciplinary court - in the view of the Constitutional Court - cannot take into account the constitutionality of the applicant's action under the contested provision in assessing the guilt of the defendant or the seriousness of his actions. However, such a conclusion cannot be made in the present case: the reasons for which the applicant wishes to apply the contested provision are clearly not unsustainable. On the contrary, they fully correspond to the wide range of considerations made available by the legislator to the Court of Justice under paragraphs 87 and 88 of the Law on Courts. Moreover, the Government itself questioned the importance of Paragraph 160 (2) of the Insolvency Act for the assessment of the guilt of the accused, not for the assessment of the seriousness of its conduct (p. 2 of the Government's observations). There is no reason why the Constitutional Court should, in the knowledge of its constitutionally defined status and the need to maintain the requirement of self-restraint of the constitutional judiciary to enter this wide area prematurely to exercise the power of the disciplinary court provided by the legislator. Moreover, such access could not have led to its purpose - the influence of the ruling of the court of disciplinary action. The Court of First Instance would not be bound by the legal opinion of the Constitutional Court as expressed in the order rejecting the application for the manifest illegality of the appellant [cf. Interpretation on the binding nature of the various forms of the decisions of the Constitutional Court made in the decision of page IV of the ÚS 301 / 05 of 13.11.2007 (N 190 / 47 of the SbNU 465)].
25. In conclusion, the findings of sp. zn. Pl. ÚS 20 / 94 of 28.3.1995 (N 18 / 3 SbNU 109; 72 / 1995 Coll.) and sp. zn. I. ÚS 30 / 94 of 6.6.1995 (N 26 / 3 SbNU 189) in which the Constitutional Court took the decision. The grounds for the appeal were related to the illegals, which were, however, relevant to the consideration of guilt and punishment under the constitutionally consistent provisions of the criminal law.
26. According to the appellant's conviction, the constitutionality of the contested provision (and the related action by the President of the Regional Court in Ostrava) should be taken into account in the decision on the guilt of the defendant's kář or at least in the decision on the imposition of an appropriate disciplinary measure. This belief based on the interpretation of sub-constitutional law is clearly not unsustainable. Therefore, the requirement of Article 95 (2) of the Constitution to apply the contested provision of the law in order to resolve the case (and its removal may lead to another outcome of the proceedings pending before the appellant) is fulfilled.
27. Since the Constitutional Court had no doubts as to the fulfilment of the further conditions of the procedure, the Constitutional Court took a substantive approach. According to § 44 of the First Law No. 182 / 1993 Coll., on the Constitutional Court, as amended, he abandoned oral proceedings because further clarification of the case could not be expected.
Self-assessment
28. The contested provision of Paragraph 160 (2) of the Insolvency Act states: "If the hearing and decision of an insolvency proceedings could lead to delays in insolvency proceedings, the President of the Insolvency Court shall order another court of insolvency to have such a dispute."
29. The Constitutional Court, pursuant to Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., was concerned with whether the contested provision was adopted within the limits of the Constitution established competence and by the constitutional procedure. In view of the observations made by the two chambers of Parliament, the available descriptions of the legislative procedure for the adoption of the relevant law, as well as the fact that the legislative procedure is not even questioned by the appellant, it can only be concluded that the condition of the constitutional conformity of the legislative process has been met.
Right to a legal judge
30. The right to a legal judge is an important system policy to ensure the independence of courts and judges, as required by Articles 81 and 82 (1) of the Constitution of the Czech Republic. This right is constitutionally guaranteed in Article 38 (1) of the Charter of Fundamental Rights and Freedoms, according to which "no one may be removed from his legal judge. The jurisdiction of the court and the judge shall be governed by the law." The essence of this guarantee is that the submission of proposals to the courts and the allocation of cases to judges takes place according to pre-established rules, thereby minimising their influence, corruption, insolence and other undesirable effects. However, this right is not exhausted only by the legal designation of the legal, functional and local jurisdiction of the Court of First Instance, nor by the mere legal definition of the aspects of the division of the judicial agenda between chambers and judges, as well as by the establishment of the number of judges (sitting) in chambers as required by Article 94 of the Constitution of the Czech Republic. Nor is it exhausted by the requirement of another, by excluding judges from hearing and making decisions on grounds of their bias. This right is an absolutely unforgivable condition for the proper exercise of that part of the state power which has been formally conferred on the courts. The principle of a legal judge thus complements and strengthens judicial independence on the one hand, and, on the other hand, guarantees for each party that courts and judges are called upon to decide its case according to the predetermined principles (procedural rules) in order to maintain the principle of firm allocation of the judicial agenda and to exclude - for different reasons and different purposes - the choice of courts and judges ad hoc [cf. the findings of sp. zn. II. ÚS 2766 / 14 of 1.12.2015 (N 202 / 79 of SbNU 281), sp. sp. III. ÚS 293 / 98 of 21.1.1999 (N 11 / 13 of SbNU 71) or sp. III. ÚS 232 / 95 of 22.2.1996 (N 15 / 5 of SbNU 101)].
31. The rules governing the appointment of a legal judge are generally governed by the Law on Judgments. According to Paragraph 41 (1) of this Law, the division of individual cases to be discussed and decided in court is governed by the schedule of proceedings. Although the schedule of work is not an act with legal force of the law, it is permissible to use it to implement the legal rules for the allocation of cases within a single court (point 26 of the decision sp. zn. I. ÚS 2769 / 15 of 15.6.2016). The requirements for the schedule of work set out in Article 38 (1) of the Charter include the predictability and transparency of the occupancy of the court for the parties and also for the public. The rules of the work schedule for the appointment of judges must be given in advance, clear and should take into account all possible eventualities [Found sp. zn. IV. ÚS 2053 / 12 of 1.11.2012 (N 183 / 67 CollNU 219)]. The assignment of the judicial agenda and the determination of the composition of the chambers on the basis of the rules contained in the work schedule are therefore part of the right to a legal judge, and the person of the judge must be certain before the application for the opening of proceedings is brought before the court [page III of the judgment of 17 December 1998 (N 155 / 12 SbNU 423)].
32. Another judge (another Chamber or Chamber of another composition) may discuss the matter only if the absence of judges designated by the schedule of proceedings is justified. In particular, the exclusion of a judge on grounds of bias and his reasoned absence (as a result of sickness, leave, work, etc.) should be regarded as such grounds. The representation of the Judges, as well as the composition of the Chambers, must be governed by pre-defined rules laid down in the work schedule [finding sp. zn. III. ÚS 200 / 98 (see above); Similarly, the finding sp. zn. II. ÚS 2029 / 08 of 28.5.2009 (N 125 / 53 SbNU 565), paragraphs 16- 19]. The schedule of work must also specify the order of the representing Judges [Findings sp. ref. IV. ÚS 307 / 03 of 27.5.2004 (N 76 / 33 SbNU 243)]. The constitutional guarantee of the legal judge therefore applies both to the method of determining the judge who will decide on the case and to the stability of the occupancy of the court, which shows the prohibition of arbitrary change in its composition. At the legal level, this corresponds to strict conditions for the exclusion of a judge on a case-by-case basis and a ban on the removal of items already assigned to a specific judge (Senate) when they were assigned before the work plan (amendments) was effective (§ 42 (4) of the Law on Courts).
33. In view of the international obligations of the Czech Republic (Article 1 (2) of the Constitution), the requirements of Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms required by the Court "established by the law" should also be complied with when assessing the specific guarantees of a legal judge. The clarity of the rules applied in each individual case for the initial allocation of cases and for any subsequent reallocation is essential for the rule of law, guarantees of judicial independence and legal certainty. These rules are therefore intended to ensure objectivity and transparency and must exclude any appearance of indiscretions in the distribution of cases to individual judges (Paragraph 66 of the ECHR judgment of 5 October 2010 in the case of DMD GROUP, a. s., against Slovakia, No 19334 / 03). The excessive discrepancy of judicial officials in the initial allocation of the case and subsequent redistribution of cases is contrary to the right to an independent, impartial court, as it is not a court (judge) designated by law (but a judicial officer) and protected from the existence of undue pressure (cf. § 89 of the ECHR judgment of 22 December 2009 No 24810 / 06 in the Parlov- Tkalčić case against Croatia).
34. The national legal order must therefore provide sufficient procedural guarantees against the abuse of the discretion by the President of the Court (cf. § 89 of Parlova-Tkalčić v Croatia no. 24810 / 06, § 66-70 of the DMD GROUP judgment, a.s., v Slovakia). If sufficient procedural guarantees do not provide national law, the judges are vulnerable to external pressure by the President of the Court as a body of state administration of the courts (cf. Section 86 of the Parlov- Tkalčić judgment against Croatia), which is incompatible with the right to an independent and impartial court within the meaning of Article 6 (1) of the Convention.
35. Part of the right to an independent and impartial court protected by Article 6 (1) The Convention is therefore not only independence from the power of executive and other entities outside the judicial state (so-called external independence of the judge) but also independence from judicial officials and other entities within the judicial state (so-called internal independence of the judge). The discretion for the initial allocation of cases or subsequent redistribution may be misused as a means of pressure on individual judges by means of overloading them, allocating only uninteresting items or allocating politically sensitive matters only to the chosen ("reliable ') judges (§ 58 of the judgment of 12 January 2016 in the Miracle Europe Kft case against Hungary, No 57774 / 13).
36. Therefore, it is not possible to redistribute the cases already assigned once, on the basis of an unjustified measure by a judicial officer based on his unlimited discretion. It is also not possible to redistribute the cases specifically (namely) identified but only those determined under general and verifiable rules. These rules must be laid down by law in the light of this, and the judicial officials may leave only a minimum discretion in their application (Section 69-70 of the DMD GROUP judgment, a. s., against Slovakia, Sections 58 and 62-63 of the Miracle Europe Kft judgment against Hungary).
37. It is therefore possible to summarise the following constitutional requirements for the schedule of work: they must contain transparent, pre-established general rules for the designation of a particular judge or Judges in the Chamber to decide on the matter, for their representation in the event of a reasonable short-term absence or bias, as well as rules for the redistribution of cases in the event of a long-term absence of a judge. The work schedule cannot leave the initial assignment or redistribution to the decision of the judicial officer, as such arrangements threaten the independence of judges and public confidence in the judiciary and deprive the parties of effective protection against purposeful manipulation. A Judge who has been called upon on the basis of such a judgment by a judicial officer is not a legal judge within the meaning of Article 38 (1) of the Charter and does not fulfil the requirements laid down by law to an independent and impartial court within the meaning of Article 36 (1) of the Charter and Article 6 (1) of the Convention (cf.
Article 160 (2) of the insolvency law
38. The Constitutional Court, in the procedure for the control of standards, prefers constitutionally conformal interpretation to derogation. In a situation where a provision of legislation allows for two different interpretations, one being in accordance with the constitutional order and the other being contrary to it, there is no reason to repeal that provision. This procedure is based on the principle of the division of power and the associated principle of restraint, i.e. the principle that, if it is possible to achieve the constitutional capacity by alternative means, the Constitutional Court elects one which limits the legislative power to the minimum [e.g. the finding of sp. zn. Pl. ÚS 69 / 06 of 29.1.2008 (N 22 / 48 SbNU 243; 269 / 2008 Coll.)], and the constitutionally conformal interpretation can be evidenced by an extensive interpretation [the finding of sp. zn. Pl. ÚS 33 / 10 of 23.4.2013 (N 62 / 69 SbNU 177; 154 / 2013 Coll.)].
39. The Constitutional Court has already indicated the possibility of a constitutional interpretation of Paragraph 160 (2) of the Insolvency Act in Resolution sp. zn. Pl. ÚS 11 / 15 of 9.2.2016 (not published in the SbNU, available at http: / / nalus.ujud.cz), but could not deal with it in substance in view of the nature of the decision. However, this possibility is given in the present case.
40. The insolvency law implies that insolvency proceedings are the legal proceedings involving the debtor's bankruptcy or imminent insolvency and the manner in which the insolvency proceedings are to be settled, and the incident dispute is the disputes brought about by insolvency proceedings, which are thus provided for by that law, which are dealt with in the insolvency proceedings [§ 2 (a) and (d)]. The insolvency proceedings must be conducted in such a way that none of the participants is unfairly harmed or unlawfully favoured and that the creditors' satisfaction [§ 5 (a)] is achieved quickly, economically and as far as possible. The regional courts [§ 7a (b)] are, in substance, competent in the present proceedings and their local jurisdiction is essentially governed by the general court of the debtor (§ 7b (1)).
41. The division of cases between individual judicial departments within a specific insolvency court then sets out the schedule of proceedings of that court. This should be subject to the general rules laid down in § 41-44 of the Law on Courts, unless there is special arrangements for the distribution of insolvency matters. The general scheme is the allocation according to the specialisation of individual judges and the uniform burden on individual judicial departments (Section 42 (2) of the Judicial Act). For example, the application of the rule on the uniformity of insolvency proceedings before a single court is a special provision. According to that rule, the case-law should be discussed and decided by the same court (and the judge) which leads insolvency proceedings (§ 160 (1) of the insolvency law).
42. The Insolvency Act thus provides for the allocation of cases (incident disputes) according to their context to a judge to whom a tribal insolvency case has been assigned. This is a rule that could be introduced in the general sense through the schedule of work. However, in the interests of efficiency and speed of the proceedings, the legislator decided not to leave such a rule to the discretion of the President of the Court, but to introduce it himself (cf. the explanatory memorandum to press No 1120, the fourth parliamentary term of the Chamber of Deputies). However, that rule does not replace the general rules of the Law on Courts applicable to the work schedule, it merely complements (it sets out another rule which cannot be otherwise laid down in the schedule). As a result, the incident disputes are to be assigned to the judge previously assigned the tribal insolvency case. It must be allocated according to clear and understandable rules which have been given in advance and which meet the other requirements of the Law on Courts.
43. The contested Section 160 (2) of the Insolvency Act, according to its wording and systematic classification, serves primarily as an exception to the legal rule on the uniformity of insolvency proceedings before one court and a judge pursuant to § 160 (1) of the same Law. On the basis of this, the President may, in compliance with the legal requirement (if the hearing and decision of the insolvency proceedings could lead to delays in insolvency proceedings), order the court which does not hold the tribal proceedings to settle the case. In other words, an incident dispute may be assigned without material connection to the tribal proceedings.
44. In general, the overload of the judge can be resolved by stopping the allocation of other items until correction is made. New items will then be allocated according to the general rules of the work schedule to all other judicial departments. However, this solution is not available to the President of the Court in the case of an overloaded insolvency judge who, for example, has to discuss and decide an insolvency case with a large number of incident disputes. A simple modification of the work schedule cannot rule out the application of the legal uniformity rule under which incident disputes are assigned. The cessation of the allocation of new items will result in new tribal insolvency cases, not new incident disputes relating to the insolvency case already assigned. Therefore, in the existence of Section 160 (1) of the Insolvency Act, the exceptional allocation of an incident to another judge is possible on the basis of Section 160 (2) of that Act.
45. However, clarification of the relationship between the individual provisions on the allocation of insolvency matters is not sufficient to assess the case. The way in which the assignment ("commandment ') of a case under the contested provision can take place is essential. According to the appellant, no rules are laid down for this allocation, therefore Section 160 (2) of the Insolvency Act is intended to serve as a comprehensive special arrangement excluding the entire provision of cases under the Law on Courts. However, there is no reason for this conclusion.
46. The text of the contested provision does not explicitly exclude the application of the Law on Courts and its exclusion cannot be inferred from an implicit, systematic or teleological interpretation. Where the contested provision provides that the President of the Insolvency Court shall order a dispute to another court of insolvency, he shall in no way determine how that judge is to be chosen. The legal expression itself is neutral, it does not contain an indefinite legal concept and does not give the President of the Court the option of considering the allocation of the case. The choice of judge is simply not solved. In that case, it cannot be concluded that the President of the Court may choose that judge at any time. The term "other judge" cannot be understood as "any other judge."
47. The systematic link between the specific arrangements for the allocation of cases under Section 160 of the Insolvency Act and the general arrangements in the Law on Courts leads to the conclusion that the rules of the Law on Courts apply to the extent that this is possible in the procedure under Section 160 of the Insolvency Act. The uniformity rule (Paragraph 160 (1)) serves as a special rule for the allocation of cases which will apply in parallel with the general rules for the allocation under the Law on Courts. The exemption from the uniformity rule (Paragraph 160 (2)) then excludes the application of this particular rule, but not the application of the general rules.
48. Therefore, if the hearing and decision of an insolvency proceedings could lead to delays in insolvency proceedings (§ 160 (2)), the principle of unity (§ 160 (1)) shall not apply and the President of the Court shall order the action to be brought by another judge. This will be determined according to the general rules on the allocation of cases, i.e. according to the work schedule (§ 41-44 of the Law on Courts).
49. However, it is essential for the assessment of the case that the contested provision may be applied in two ways: in the future for new incident disputes which have not yet been assigned to anyone (initial assignment), or in the past for incident disputes already assigned (reallocation). The hypothesis of the contested provision may be fulfilled in both cases.
50. As has already been stated, both the initial assignment and the reallocation of the case are in the same way: the judge who is to discuss the case and decide must be determined according to the rules of the work schedule. However, it is problematic to determine the conditions under which Section 160 (2) of the Insolvency Act is to be applied, in other words, where there is a situation where the discussion and decision of an insolvency proceedings could lead to delays in insolvency proceedings. In paragraph 160 (2), the Insolvency Act does not provide clear aspects for the allocation and redistribution of cases, its general rule "if the hearing and decision of an insolvency proceedings could lead to delays in insolvency proceedings' must therefore be carried out in the work schedule for the circumstances of the individual court. In doing so, it is necessary to understand the determination of clear and specific rules in the light of the decision-making circumstances of the court [cf. sp. zn. I. ÚS 2769 / 15 (see above)], not merely the adoption by the Constitutional Court of the text of the contested provision into the schedule of work or its replacement by a similar general rule [the Constitutional Court had previously refused to represent judges under the" workload ', cf. IV ÚS 307 / 03 of 27.5.2004 (N 76 / 33 SbNU 243)].
51. Compliance with these requirements is in the hands of the President of the Insolvency Court (in cooperation with the Judicial Council under Article 41 (2) of the Law on Courts), whose person thus plays a fundamental role in the application of Paragraph 160 (2) of the Insolvency Act: in the work schedule, he defines the rules for the allocation and redistribution of incident disputes (i.e. the rules for answering questions "when? 'and" how?') and decides on their application.
52. In this regard, the ambiguity of a rule based on a potential threat of delays is considered inappropriate (not necessarily unconstitutional) for the initial assignment of the case. In fact, the President of the Court decides, at his discretion, to apply an exception to the statutory rule on the uniformity of insolvency proceedings (but only on the application, not on the way in which cases are allocated). If it does so for futuro for pending cases and while respecting other rules on the allocation of cases (transparency, specialisation, equal burden), the main purpose of the guarantee of the right to a legal judge - the protection of the parties against the selection of ad hoc judges and the protection of judges against bullying by the state administration. In such a case, "if it could lead to delays', the vagueness of the hypothesis would be inappropriate only in relation to the rule set out in Section 160 (1) of the Insolvency Act, not in relation to Article 38 (2) of the Charter of Fundamental Rights and Freedoms or Articles 81 and 82 (1) of the Constitution. The very rule of unity of insolvency proceedings is not part of the constitutional guarantees (and Act No 328 / 1991 Coll., on bankruptcy and settlement, as amended, did not even know it).
53. The application of the rules on initial secondment is therefore in principle not problematic - it will stop the allocation of new incident disputes to a specific judge and they will be assigned to other judges according to the rules on the work schedule. In this context, for example, the rule of reaching a certain nominal number of assigned incident disputes, the number of cases assigned to other judges dealing with insolvency proceedings, or the rule of a certain duration of proceedings can be envisaged.
54. However, it is essential to define the conditions for the use of the procedure under the contested provision when the case is redistributed. In such a case, the legal judge has already been duly designated once and the case may be withdrawn only in exceptional, clearly foreseen cases. For this reason, the general representation of judges must also be governed by predefined rules laid down in the work schedule. Replacement of judges to whom the case is duly assigned shall be possible only in their reasoned absence (as a result of sickness, leave, work, etc.); Cf. Findings sp. zn. IV. ÚS 307 / 03 of 27.5.2004 (N 76 / 33 SbNU 243), sp. zn. II. ÚS 2029 / 08 of 28.5.2009 (N 125 / 53 SbNU 565) or sp. zn. I. ÚS 2769 / 15 (see above).
55. It is the constitutional acceptability of replacing a judge on the grounds of his legitimate absence that may serve as a guide in the interpretation and application of the contested provision. It follows from the above that the first application of Paragraph 160 (2) of the Insolvency Act for the initial assignment is, from a constitutional point of view, possible on the condition that it is based on predefined and foreseeable rules on the work schedule (cf. (52)), and (2) the redistribution of the case on the basis of the legally foreseen reason laid down in the work schedule is possible under the general rules of the Law on Courts (cf. (54).
56. Therefore, there is no reason why the reallocation of the already assigned item should not be possible under similar conditions under Paragraph 160 (2) of the Insolvency Act if the work schedule is implemented by a predefined and predictable rule. This rule shall determine under which conditions (by the nature and gravity of the reasons for replacing the Judges in their absence) the cases overloaded by the Judges may be removed and how they shall be ordered by the other Judges. The need for a reallocation may arise where the burden on the insolvency judge has not been addressed by the cessation of the initial allocation of future-related incident disputes (so-called "termination of the idea '), whether due to the delayed response of the President of the Court, or on the grounds that the difficulty, scale and number of assigned incident disputes cannot be estimated at the time of their initial assignment (the incident dispute itself may be more complex than the insolvency case itself).
57. In the light of the reasons set out above, the Constitutional Court has concluded that the legal rule of Paragraph 160 (2) of the Insolvency Act does not contradict the prohibition on the removal of a case from a legal judge pursuant to Article 38 (1) of the Charter, both in the case of initial assignment and redistribution of the items already assigned.
58. However, this conclusion is not sufficient to reject the proposal of the Supreme Administrative Court, as it is also necessary to address the guarantees of an independent judge in terms of his internal independence arising from Article 82 (1) of the Constitution of the Czech Republic, Article 36 (1) of the Charter of Fundamental Rights and Freedoms and Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms (see, more specifically, the abovementioned find, sp. zn. I. ÚS 2769 / 15). Their essence is the protection of the independence of judges from judicial officials and other bodies within the judicial system - the space for discretion in the initial allocation of items or in subsequent redistribution may be used as a means of pressure on individual judges, for example, by overloading them or assigning them to uninteresting items, or by assigning politically sensitive items only to certain judges.
59. If the President of the Court had amended the rules on the allocation of cases in a manner which would not have followed the purpose of the contested provision but the purpose of another (preventing certain judges, bullying of judges, influencing decisions in specific cases), it would have been a breach of both the provisions of Paragraph 160 (2) of the Insolvency Act and the rules on the uniform burden of judges (Article 42 (2) of the Law on Courts) and, where appropriate, the constitutional requirement of the independence of judges under Article 82 (1) of the Constitution. Such malicious conduct would be a breach of the duties of the President of the Court, which may be a criminal offence pursuant to Article 87 (2) of the Law on Courts and in respect of which an appeal from [§ 88 (2) (d) of the Law on Courts] is imminent. Therefore, in the context of the allocation of cases under Section 160 (2) of the Insolvency Act, there are safeguards against the abuse of the power of the President of the Court (by analogy, Section 89 of the Parlov- Tkalčić judgment against Croatia).
60. In view of the protection of judges against abuse of Paragraph 160 (2) of the Insolvency Act by the President of the Court of First Instance, the current legislation therefore contains guarantees which the European Court of Human Rights considers relevant to the fulfilment of the requirements of Article 6 (1) of the Convention: decisions on the disciplinary liability of judges are entrusted to the court, the President of the Court of First Instance is accountable to the court. Therefore, without further ado, it cannot be concluded that the current guarantees of the internal independence of insolvency judges are unconstitutional.
Conclusion
61. The Constitutional Court concludes that Paragraph 160 (2) of the Insolvency Act, by its wording, systematic context and purpose, serves as an exception to the principle of unity of insolvency proceedings before one judge. It does not exclude the full parallel application of the Judicial Act. The Law on Courts contains general arrangements for the allocation of cases ("according to predetermined rules') and their possible redistribution (" if the judge is unavailable '), the insolvency law lays down certain specific rules for the allocation ("incident disputes to one judge, unless there is a risk of delay') and the redistribution of cases (" if there is a risk of delay ').
62. Therefore, the application of Paragraph 160 (2) of the Insolvency Act can only take place according to the rules laid down in the work schedule and in compliance with other requirements of § 41-44 of the Law on Courts. At the same time, this provision can only be used to fulfil its legal purpose - to eliminate the risk of delays in insolvency proceedings. This applies both to the initial assignment and to the exceptional reallocation. The general legal rules and limits on the way in which cases are to be assigned and redistributed may be derived from the regulation of insolvency and court law, as well as the general conditions for the application of the contested provision. These must be implemented by specific rules laid down in the work schedule for the circumstances and needs of individual insolvency courts.
63. The Constitutional Court has assessed the contested provision in a situation where it has already been adopted, but the Act No. 64 / 2017 Coll., amending Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended, and some other laws. The new version of Paragraph 160 (2) of the Insolvency Act makes it conditional on the possibility of a decision by another judge of the Insolvency Court by establishing a schedule of proceedings. This adjustment and its future application may be based on the arguments set out in this finding, in particular in point 56.
64. The Constitutional Court recalls, in the context of the legal opinion expressed in the preamble to the decision in the present case, that the constitutional interpretation of the contested provision of the Insolvency Act does not have any further effect (cf. Section 71 of the Law on the Constitutional Court and contrario) on the subsequent assessment of the legality of the orders of the case to another judge in which the contested provision was applied. The cases still assigned to another judge under Paragraph 160 (2) of the Insolvency Act, contrary to the requirements expressed in this finding, will therefore not be redistributed (redistributed and allocated).
65. For these reasons, the Constitutional Court did not find Article 160 (2) of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law) contrary to the constitutional order. He therefore rejected the application for its annulment under Paragraph 70 (2) of the Constitutional Court Act.
President of the Constitutional Court:
v. JUDr. Tomková v. r.
Vice-President
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, Judge Ludvík David, Kateřina Šimáková, Vojtěch Šimělek and Milada Tomková took a different position.
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Regulation Information
| Citation | The Constitutional Court found no 268 / 2017 Coll., on the application for annulment of Paragraph 160 (2) of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law) |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 22.08.2017 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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