The Constitutional Court found no 294 / 2010 Coll.
The Constitutional Court's finding of 6 October 2010 on the application for annulment of certain provisions of Act No. 6 / 2002 Coll., on Courts, Judgments and Government Administration and on the amendment of certain other laws (Law on Courts and Judgments), as amended by Act No. 283 / 2008 Coll., as amended by Act No. 200 Coll., as amended by Act No. 150 / 2002 Coll., as amended by Act No. 7 / 2002 Coll., as amended by Act No. 349 / 2008 Coll., as amended by Act No. 150 / 2002 Coll., as amended by Act No. 6 / 2002 Coll., as amended by Act No. 7 / 2002 Coll.
Valid
The Constitutional Tribunal found
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294
FIND
The Constitutional Court
On behalf of the Republic
Article 6 (1) (a) (1) (b) of Regulation (EC) No 661 / 2006, Article 6 (1) (b), Article 6 (1) (a), Article 6 (1) (b), Article 6 (1) (a), Article 6 (1) (a), Article 6 (1) (a), Article 6 (1) (a), Article 6 (1) (a), Article 6 (1) (a), Article 6 (1) (a) (a), (2), (2), (2), (3), (3), (3), (3), (3), (3), (3), Article 34), Article 34), Article 4), Article 4), Article 4, Article 38 (4), Article 39), Article 39 (2) (2) (2) and (6) (6) (6) (6), Article 6) (6) (b), (6) (b) (b) (a) (b) (b) (a) (b) (b) (b) (b) (
as follows:
I. Paragraph 68 (1) in the words "Ministry or", Paragraph 68 (2) (b) in the words "Ministry or" and Paragraph 100a (1) (b) of Act No. 6 / 2002 Coll., on Courts, Judgments, Addresses and Government Administration of Courts, and on the amendment of certain other laws (Law on Courts and Judgments), as amended, Act No. 314 / 2008 Coll., Act No. 283 / 2002 Coll., Act No. 200 / 1990 Coll., Act on the Judgments, Act No. 85 / 1990 Coll.
II. Paragraph 102 (1) in the words "and Vice-President of" Act No. 6 / 2002 Coll., on Judgments, Judgments, Addresses and Government Administration of Courts and on the amendment of certain other laws (Law on Judgments and Judgments), as amended by Act No. 314 / 2008 Coll., which amends Act No. 6 / 2002 Coll., on Judgments, Judgments and Government Administration of Courts, and on the amendment of certain other laws (Act on Judgments and Judgments), as amended by Act No. 150 / 2002 Coll., as amended by Act No. 283 / 1993 Coll., Act No. 200 / 1990 Coll.
III. Point 11 of Article II of Act No 314 / 2008 Coll., amending Act No. 6 / 2002 Coll., on Courts, Judgments, Addresses and Government Administration of Courts, and amending certain other laws (Act on Courts and Courts), as amended, Act No. 150 / 2002 Coll., Administrative Rules, as amended, Act No. 7 / 2002 Coll., on Proceedings in the Cases of Judges and Public Prosecutor, as amended, Act No. 349 / 1999 Coll., as amended, and Act No. 85 / 1996 Coll., as amended, Act No. 283 / 1993 Coll., on Public Prosecutor, as amended, is repealed on 1 October 2011.
IV. Paragraph 105a of Act No. 6 / 2002 Coll., on the Judgments, Judgments, Addresses and Government Administration of the Courts and on the amendment of certain other laws (Law on Courts and Judges), as amended by Act No. 314 / 2008 Coll., as amended by the Act No. 150 / 2002 Coll., as amended by the Act No. 150 / 2002 Coll., as amended by the Act No. 7 / 2002 Coll., as amended by the Act on Judicial and Civil Service, as amended by the Act No. 8 / 1993 Coll., on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Protection of the Public Defence, as amended by the Law on the Law No 349 / 1999 Coll.
V. In the remainder, the application is rejected.
Reasons
Recital of the proposal
Act No. 2004 / 2006 / EC, No 5 / 2006 / EC, No 5 / 2006 / EC, No 5 / 2006 / EC, No 5 / 2006 / EC, No 5 / 2006 / EC, No 5 / 2006 / EC, No 5 / 2006 / EC, No 5 / 2006 / EC, No 5 / 2006 / EC, No 5 / 2006 / EC, No 5 / 2006 / EC, No 5 / 2006 / EC, No 5 / 2006 / EC, No 5 / 2006 / EC, No 5 / 2006 / EC, No 5 / 2006 / EC, No 2006 / 2006 / EC, No 2006 / EC, No 2006 / 2006 / EC, No 2006 / EC, No 2006 / 2006 / EC, No 2006 / EC, No 2006 / 2006 / EC, No 2006 / EC, No 2006 / 2006 / EC, No 2006 / EC, No.
2. In the light of the way in which the proposal is formulated, the structure of its reasoning and the final petition (not covered by the clause), it should be noted that the proposal is in fact made up of several different combined and different reasoned proposals, in which the appellant always requests the annulment of a part of the provisions of the abovementioned legislation, and in the event that the Constitutional Court does not accept the preamble in that section of the proposal and does not comply with such a reasoned proposal, proposes further wording of the petition in event. Therefore, in the interests of clarity, the proposal on the basis of individual variations of the petit had to be broken down into individual objections to non-constitutionality and a gradual opinion on them. As decisive in the sense of its case law (already found in sp. zn. In summary and in general, the appellant:
a) He preferred the abolition of those parts of Act No. 314 / 2008 Coll., whose adoption in his view constitutes a breach of the procedural rules of the legislative process by means of a comprehensive amendment. This proposal is linked to the proposal to abolish the selected parts of Sections 68 (1), 68 (2) (b) and 100a of the Law on Courts and Judges with a different argument, as these provisions were not affected by the consideration of the government proposal in the form of a comprehensive amendment.
(b) In the event that the Constitutional Court does not agree with its argument, the appellant proposed the annulment of the same parts of Act No 314 / 2008 Coll., but because of their substantive non-compliance with constitutional rules. In this case it would therefore be necessary to repeal the relevant provisions set out below in the Act No 314 / 2008 Coll. amended. This variant of petition is also linked to the proposal to abolish the selected parts of § 68 (1), § 68 (2) (b) and § 100a of the Law on Courts and Judges.
c) Finally, in the event that the Constitutional Court fails to comply with this proposal, the appellant submits for annulment certain provisions of the Law on Courts and Judgments and the Administrative Rules, amended by Act No 314 / 2008 Coll., or some separate provisions of Law No 314 / 2008 Coll. with a justification which is no longer based on the alleged inconstitutionality of the application of the comprehensive amendment. In this case, too, it is proposed to abolish the selected parts of Sections 68 (1), 68 (2) (b) and 100a of the Law on Courts and Judges.
In view of the wording of the statement of reasons for the proposal and its distribution into three variants of the petition, the Constitutional Court decided on a procedure whereby the question of the constitutionality of the procedure for the adoption of Law No 314 / 2008 Coll. and subsequently the appellant's objections based on the alleged inconsistency of the various amended provisions of the Law on Courts and Courts, the administrative and separate provisions of Law No 314 / 2008 Coll. with the constitutional order.
Text of the contested provisions and the appellant's arguments
3. The appellant challenges the various parts of Act No. 314 / 2008 Coll. for procedural reasons, in which case his proposal is directed against the very amending Act No. 314 / 2008 Coll., as this corresponds to the established case law of the Constitutional Court. In possible variants, the content of the amendment is already contested and its proposal is directed against the amended laws on the courts and judges and the administrative order [see the variants of petit sub 2b) and 2c)] or against Articles II and IV of Act No 314 / 2008 Coll., which are of separate meaning and are not amendments.
Inconstitutionality of the Institute of Comprehensive Amendment
4. The appellant first requests that the Constitutional Court annul points 1, 2, 3, 29, 30, 31, 32, 33, 34, 35, 36, 38, 41, 42 and 49 of Article I, points 4, 5, 6, 7, 8, 9, 10 and 11 of Article II (transitional provisions for the establishment of a term of office in the Law on Courts and Judges), points 2 and 3 of Article III (introduction of the term of office of the President and Vice-President of the Supreme Administrative Court and the possibility of re-appointment) and Article IV of Law No 314 / 2008 Coll. (transitional provisions for the establishment of a term of office in the Administrative Order). The contested provisions need not be mentioned in this case. They are as a whole part of the so-called comprehensive amendment, the application of which (regardless of its content) the appellant considers unconstitutional. Thus, according to the appellant, the procedure for adopting this part of Act No 314 / 2008 Coll., which falls within the above points of Articles I, II, III and IV. In that case, this part of the proposal would be settled by concluding that the above part of Act No 314 / 2008 Coll. have not been accepted in a constitutional manner. While the appellant therefore proposes the repeal of the law on grounds of non-compliance, it proposes only some of the provisions adopted (sub 12 and 13).
5. In the event that the Constitutional Court considers the basic proposal [sub 2a)] differently and concludes that the arguments set out therein are - as the appellant states - more material in nature, in the event that all the provisions of Act No. 6 / 2002 Coll. and No. 150 / 2002 Coll., which are amended by those of Act No. 314 / 2008 Coll., which exceeded the scope of the original legislative initiative of the Government, are proposed. In the Law on Courts and Judgments, it is therefore proposed to abolish:
- in Paragraph 15 (1), the words "Vice-Presidents,"
- in Paragraph 15 (2), the words "Vice-Presidents,"
- in Paragraph 23 (1), the words "Vice-Presidents,"
- as a whole, Sections 102, 103 (1) and (2), 104 (1) and (2), 105 (1) and (2), 105a, 108 (2),
- in Paragraph 119 (2), the words "Vice-Presidents of the Supreme Court,"
- in Paragraph 121 (2), the words "Vice-Presidents,"
- in Section 168, the words "Vice-President."
In this context, it is also proposed to abolish in Article II (4), (5), (6), (7), (8), (9), (10) and (11) and in Act No 150 / 2002 Coll., the Administrative Rules, § 13 (3) and § 13a, and in connection with Article IV in Act No 314 / 2008 Coll.
6. This second variant of the petition [sub 2b)] is, as has already been stated, identical in scope to the variant sub 2a), only differs from the starting point of view of the argument. While in the first case it is proposed to abolish the selected points of Act No. 314 / 2008 Coll., i.e. by amending the above mentioned laws going beyond the original legislative initiative of the Government, the second variant of the petition proposes to repeal the individual provisions of these amended laws to the extent that they were amended by Act No. 314 / 2008 Coll. In the present case, the appellant did not make his argument any closer, merely stating that exceeding the scope of the Government's original legislative initiative could be considered (if not procedural) a breach of constitutional order from a material legal point of view. This variant of petit is thus the same argument as the previous variant of objections against the constitutionality of so-called complex amendments. In this case, this is the constitutionality of the above-mentioned provisions of the Law on Courts and Judgments, paragraphs 4, 5, 6, 7, 8, 9, 10 and 11 of Articles II and IV of Act No. 314 / 2008 Coll., § 13 and § 13a of Act No. 150 / 2002 Coll., Administrative Rules.
7. The constitutionally incorrect procedural errors in the press hearing of the Chamber of Deputies No. 425, which the appellant of the Constitutional Court before the shots, consist in adopting Act No. 314 / 2008 Coll. in the form of a so-called comprehensive amendment. In addition, the appellant stated that the Constitution of the Czech Republic (hereinafter referred to as the Constitution) lists in Article 41 the bodies of the legislative initiative and in other provisions the foundations of the legislative process, on which other layers of so-called reglement law are laid in the form of legal regulation or autonomous resolutions of parliamentary chambers, parliamentary practices and established practice. He pointed out that the Constitutional Court provided protection mainly by explicit constitutional regulation [see Found No. 331 / 2005 Coll. - Findings sp. zn. Pl. ÚS 23 / 04 of 14.7.2005 (N 137 / 38 CollNU 9)], but not only by [See Found No. 476 / 2002 Coll. - Findings sp. zn. Pl. ÚS 5 / 02 of 2.10.2002 (N 117 / 28 SbNU 25) and No. 37 / 2007 Coll. The importance of the various layers of the rules of the legislative process is not only due to the possible degree of legal force, but also to the degree of detail of the regulation: the shorter the regulation at the higher level of legal force, the more significant the adjustment at the lower level.
8. The appellant further stated that the law of the legislative initiative implies not only the right to file the bill but also the right to discuss it. What is important is that the right to make amendments to the law of the legislative initiative is the right of action. However, they must not, in his view, take the form of a 'disguised legislative initiative'. He recalled here that the Constitutional Court has already identified and banned so-called stickers (Found No. 37 / 2007 Coll.), with the so-called Comprehensive Amendments being related to the Institute, since their substance is to replace the whole text of the draft law by a complete text, generally prepared in substance by the competent parliamentary committee, although the Constitution does not have legislative initiatives. Thus, the Chamber will effectively cease to discuss a properly submitted bill without approving or rejecting it. From now on, Members' amendments are to be formulated in relation to this new 'draft law', although they may have prepared them in good faith and in consultation with external bodies for the original draft law. As with the so-called 'stickers', there is a lack of proper preparation, justification, the government does not have a chance to comment on them, as it has discussed another (original) bill, the rights of the parliamentary minority may be shortened, the risk of creating a law in conflict with the requirements of clear, transparent and predictable law, as it is prepared in specific time conditions within Parliament. The procedure for adopting serious laws by means of comprehensive amendments is thus contrary to the "right to good lawmaking 'and the principle of hearing all parties which were expressed in the Constitutional Court found no 37 / 2007 Coll.
9. Another objection in this regard is that complex amendments, which "pass" with the first reading of the House and distort the second reading, affect even deeper layers of parliamentary procedures, which are neutral only in terms of impartiality, but not invaluability; On the contrary, they are intended to enable the public to be informed of the decision-making process, the hearing of the interests concerned, the consideration of various implications, including constitutional ones, thereby monitoring the values of transparent, prudent, informed and inclusive governance.
10. According to the appellant, the form of the comprehensive amendment is also contrary to the Rules of Procedure of the Chamber of Deputies, because it does not seek to delete, extend or amend certain parts of the original proposal [cf. Paragraph 63 (1) (5) (a)], but to replace it fully, but without, for example, being accompanied by a explanatory report (written justification), without which (not only) Senators are difficult to recognise the intention of the legislator. At the same time, it does not allow an assessment of the so-called close relationship between the amendments to the amended draft. Only individual amendments can correct the partial legislative intentions of the legislator in relation to the same subject.
11. For all the reasons stated, the appellant considers the Institute of Comprehensive Amendment to be contradictory at least with Articles 1 (1), 41 and 44 of the Constitution.
12. However, the appellant does not pursue the repeal of Act No 314 / 2008 Coll. as a whole, because it considers it appropriate, on the one hand, to minimise the derogatory interventions of the Constitutional Court and, on the other hand, to recognise a different way of preparing and discussing the original and newly added parts of the law associated with a single comprehensive amendment. It therefore takes into account not only the form, but also its content, which is a slightly different approach from the so-called stickers, which can be separated technically relatively easily from the rest of the law. In this regard, it is possible to distinguish the provisions that have been properly introduced by the Government as part of the government proposal from those introduced by the Constitutional Committee of the Chamber of Deputies in the draft law. The first one is prepared in a proper manner and equipped with a statement of reasons, and the other one is only a multiple justification presented at the meetings of the two chambers, which does not show what options have been considered. At the same time, the appellant does not consider it essential that the text supplemented by the Constitutional Law Committee was also drafted by the Ministry of Justice and that the Minister of Justice supported the comprehensive amendment. This may be even worse, according to the appellant, because there have been knowingly violations of the prescribed procedures. The government and not the ministries have a legislative initiative. In general, as officials can circumvent the ministerial minister and promote their own ideas about the form of laws by direct negotiation with Members, the minister can also circumvent a (coalition) government in which he or she has failed or might not succeed. Both are correlated with the position of the government as the collegiate executive body, which carries out its programme for a significant part by means of a legislative initiative. The "tunneling" of the bill can therefore also be seen as an intervention in the division of power. It also pointed out the professional superiority that allows the government to prepare laws taking into account various aspects of good law-making, i.e. material, formal and organisational (legislative rules of the government, legislative council of the government, comment procedure). Ignoring them reduces the likelihood of creating a formally perfect law, which, moreover, enhances complex amendments, which, by their nature, reduce further discussion and reflection.
13. In this context, the appellant pointed out that the proposal also affects one of the three essential branches of state power on issues of extremely sensitive and complex nature (appointment and dismissal of judicial officials, establishment of terms of office, change of circumstances at the Supreme Court, etc.). Therefore, the absence of justification is unacceptable both in the explanatory report and in all the reading of the parliamentary debate, which makes it all the more obvious to describe the procedure for adopting the amendment to the Law on Judgments and Judgments by means of a comprehensive amendment as contradictory to the rule of law and the democratic legislative process (Article 1 (1) and Article 2 (3) of the Constitution) and to the "right to good law 'or to hear all parties. According to the appellant, there is a direct doubt in this case whether the concrete course of the legislative process was not chosen precisely because of an attempt to omit an uncomfortable discussion with the judiciary, which is also contrary to the definition of democracy as a government of discussion, not only between policies of each other, but mainly between the ruling and controlled. Therefore, the appellant proposed to abolish those parts of a constitutionally unacceptable form of comprehensive amendment (see Press No 425 / 1). Chamber of Deputies. V. vol. 2008), which were not properly submitted by the Government and the Chamber of Deputies discussed in a transparent manner, not those parts of Act No 314 / 2008 Coll., which were part of the original government proposal (Press No 425 / 0. Chamber of Deputies. V. vol. 2008).
14. According to the appellant, it is possible that the Constitutional Court will consider the above arguments rather as substantive. In such a case, he submitted another variant of petit (see above sub 5) in such a way that the consequences of the amendment by Act No 314 / 2008 Coll., as reflected in the Law on Courts and Judges and in the Rules of Procedure as amended or in Articles II and IV of Act No 314 / 2008 Coll. (Transitional provisions on amendments to those laws), could be abolished. This proposal was no longer justified by the appellant. From its reasoning it can only be concluded that, contrary to the procedural nature of the objections, the first variant of the petition proposes, in the second variant, to remove the consequences of the amendment from the substantive point of view. In other words, in this case, the Constitutional Court is required to consider infringement of the procedure as a breach of the very content of the constitutional order.
15. It is possible to say in summary that the first two options of the petition thus regard the inconstitutionality of the application of the comprehensive amendment as a fundamental problem. The first is directed against the selected parts of Act No. 314 / 2008 Coll., amending Act No. 6 / 2002 Coll., on Courts, Judgments, Addresses and Government Administration of the Courts and on the amendment of certain other laws (Law on Courts and Judges), as amended, Act No. 150 / 2002 Coll., the Administrative Rules, as amended, Act No. 7 / 2002 Coll., on Proceedings in the Cases of Judges and Public Prosecutor, as amended, Act No. 349 / 1999 Coll., on the Ombudsman, as amended, Act No. 283 / 1993 Coll. The second variant of the petition goes no further against the amendment, i.e. Act No 314 / 2008 Coll., but to the same extent against the precisely identified provisions of the Law on Courts and Judgments, the Administrative Rules and Article IV of Act No 314 / 2008 Coll., but only with the observation that this is the case in the event that the Constitutional Court concludes that the arguments set out in the first version of the petition are more material in nature, i.e. that the content contradiction is also based on a defective procedure in the form of a comprehensive amendment.
Inconstitutionality of Articles 68 (1), 68 (2) (b) and 100a of the Law on Courts and Judges
16. Both of the options described above for the petition were linked by the appellant to another proposal, namely the proposal to abolish the selected parts of Sections 68 (1), 68 (2) (b) and 100a of the Law on Courts and Judges. Notwithstanding the impact assessment of the adoption of the law in the form of a comprehensive amendment from a procedural or substantive point of view, the appellant seeks the annulment of the allocation of judges to the Ministry of Justice and the annulment of the possibility of the application for the opening of disciplinary proceedings as a reason for the temporary suspension of the office of President or Vice-President of the Court. These provisions were also part of the amending Act No 314 / 2008 Coll. (see its paragraphs 4, 5 and 28), but were already included in the original text of the government proposal (print No 425 / 0), so that they are not affected by defects which the appellant links to the application of the comprehensive amendment (print No 425 / 1). The appellant also included them in the third variant of the petition, which no longer relies on the argument of the unconstitutional application of the comprehensive amendment, but on the argument of the unconstitutionality of the various chosen solutions. They will therefore be addressed by the Constitutional Court within a specific part of the decision. The contested provisions of the Law on Courts and Courts, including the contested parts (bold text), read:
(1) A judge assigned to a court pursuant to Paragraph 67 or transferred to another court pursuant to paragraphs 71 and 72 may, with the consent of the Judge for a maximum period of three years, be seconded to another court or, where appropriate, to use his experience with the Ministry or the Judicial Academy.
(2) The temporary allocation shall be decided by:
(b) the Minister of Justice, after consultation with the President of the Court, to whom the Judge is assigned pursuant to § 67 or transferred pursuant to § 71 and 72 for the performance of his duties, if it is for the temporary assignment of the Judge to the Ministry or the Judicial Academy. "
(1) The Minister of Justice may temporarily waive the duties of President or Vice-President of the Court of Justice
(a) under the conditions laid down in Article 100 (1) (a) and (c);
(b) where the disciplinary action is prosecuted for such a criminal offence for which a disciplinary action is proposed in a disciplinary action to appeal from the capacity of a judge or of an appeal from the office of President or Vice-President of the Court for a period until the final end of the disciplinary action.
(2) For the period of suspension referred to in paragraph 1, the President or the Vice-President of the Court shall not be entitled to an increase in the salary coefficient associated with his duties under special legislation6a). If the office of President or Vice-President of the Court has not been terminated, the President or Vice-President of the Court shall be paid the remainder of the salary if he would otherwise be entitled to it; This does not apply if the judge has been convicted of a criminal offence.
(3) Paragraph 99 (2) shall apply mutatis mutandis. "
17. The argument of the appellant is based on the fact that the appointment of judges to the Ministry of Justice is constitutionally questionable, as judges are primarily to judge. The amount of the judicial salary is also a material component of judicial independence, but it is necessary in law disputes, not in the performance of conceptual activities at the Ministry, which, moreover, unjustifiably imposes a burden on the state budget and creates pay inequality between ministerial officials. This is increased by extending the length of the allotment up to three years. The provisions under appeal are contrary to the principle of division of power and independence between courts and judges and may lead to a challenge to the impartiality of the judges thus assigned, who establish personal ties at the Ministry or identify themselves with the implementation of departmental policies which they may then encounter in their judicial activities. The appellant added his argument here that, in view of the appointment and design powers of the Minister of Justice, judges and interns will be well-known and generally conformal with him, so that it is offered to select the judges from among them. As the Presidents propose their Vice-Presidents, the Ministry could control the entire judiciary through a "stealth" personnel policy.
18. With regard to the application for annulment of Paragraph 100a of the Law on Courts and Judgments, the appellant considers the power of the Minister of Justice to temporarily relieve the judge of the duties of President and Vice-President of the Court of First Instance if the appeal against him has been proposed in a disciplinary motion. It is a malicious instrument, especially when the Minister acts as a disciplinary prosecutor who himself proposed the appropriate penalty. There is little limitation in the vague wording of the facts. The Minister, as a disciplinary prosecutor, creates the conditions for the Minister, as a representative of the central administration of the courts, to temporarily relieve the judicial officer of his office. At the same time, the same minister will have to provide interim court proceedings, which can therefore change significantly until a possible exoneration of the ruling of the disciplinary court. This interferes with the independence of judges and courts, the division of powers, and opens up the possibility of insolence and chance in the exercise of the administration of the judiciary.
19. However, according to the appellant, the serious constitutional deficit of § 100a of the Law on Courts and Courts does not lie in the various grounds for temporary acquittal, but in the lack of legal protection compared with the temporary waiver of the duties of judge, when it is possible to object to a disciplinary court (cf. § 100 (4) of the same law). In all the cases provided for in Paragraph 100a, therefore, irreversible facts may arise during the temporary waiver of office by intervention by the executive authority. In so doing, the limitation of temporary waivers to the function of judicial officer only indicates that it is not to be a matter of fatal importance, so the risk of performance by an inappropriate person becomes less obvious compared to the risk of independence. The appellant therefore finds sufficient possibility to suspend the office of President and Vice-President of the Court as a result of the establishment of the function of Judge and thus of a judicial officer (accesorium of the judicial function) and therefore propose the annulment of the whole of Paragraph 100a. Should the legislature not be of the same opinion, it should provide for a temporary waiver exclusively from the function of President or Vice-President of the Court in a manner comparable to that of a judge in legal protection. However, since the Constitutional Court cannot supplement the new provision, it is appropriate to abolish Article 100a.
Inconstitutionality of an indefinite number of Vice-Presidents of the Supreme Court
20. Furthermore, as part of the third variant of the petition, the appellant submitted in detail reasoned proposals for the annulment of the various provisions of the abovementioned laws, no longer linking them to the issue of the application of the so-called comprehensive amendment. This variant corresponds in a substantial part to the second variant. In particular, in this case, the appellant contests these provisions and their marked parts. As regards the Law on Judgments and Judgments, as an unconstitutional provision, the fact that the amendment to the Law on Judgments and Judgments introduced an indefinite number of Vice-Presidents of the Supreme Court, expressed in the words "Vice-Presidents' in § 15 (1), § 23 (1) and § 102 (2), the word" Vice-Presidents of the Supreme Court 'in § 15 (2) and in § 121 (2), the word "Vice-Presidents of the Court of Justice and Judges' in § 168 and the words" Vice-Presidents of the Supreme Court of Justice in § 119 (2). The following provisions shall apply:
(1) The Supreme Court shall consist of the President of the Court, the Vice-Presidents of the Court, the Presidents of the College, the Presidents of Chambers and other Judges.
(2) The decision-making activities of the Supreme Court are carried out by judges. In addition to the decision-making activities, the President and Vice-Presidents of the Supreme Court shall also exercise the State Administration of the Supreme Court to the extent provided for by this Law. In addition to decision-making, the Presidents of colleges shall also organise and manage the activities of colleges. The Presidents of the Chamber shall, in addition to the decision-making activities, also organise and manage the activities of the Chambers.
Article 23 (1)
(1) The Plenum of the Supreme Court consists of the President, Vice-Presidents, Presidents of colleges, Presidents of Chambers and other Judges of the Supreme Court.
Article 102 (1) and (2)
(1) The President and Vice-President of the Supreme Court are appointed by the President of the Republic from among the Judges.
(2) The term of office of the President and Vice-Presidents of the Supreme Court shall be 10 years.
Article 119 (2)
Government administration bodies
(2) The authorities of the state administration of the courts are the President and Vice-Presidents of the Supreme Court, the President and Vice-President of the Supreme Administrative Court and the Presidents and Vice-Presidents of the Supreme, Regional and District Courts.
Article 121 (2)
(2) The Vice-Presidents of the Supreme Court and the Vice-Presidents of the Supreme Courts shall exercise the administration of those courts to the extent specified by their President.
The President of the Supreme Court shall deal with complaints in respect of delays in proceedings, inappropriate conduct or breach of the dignity of the proceedings of the Vice-President of the Court, the President of the Chamber, the Judges, the assistants of judges and other servants present at the Supreme Court, or the President of the Supreme Court. ';
21. The appellant contends that this change is linked to an alleged dispute between the law ("Vice-President" singular) and Article 62 (f) of the Constitution ("Vice-Presidents" plural). In the appellant's view, there was no contradiction as it amended the Law on Courts and Judgments on the basis of the authorisation in Article 91 (2) The Constitution has the organisational structure of the Supreme Court in such a way that only one position as Vice-President was justified in substance, which is also traditional for us. For the period 1918 to 1952 there was a typical President with one representative at the Supreme Courts. It followed the term of the President and his Vice-Presidents as College Presidents ("Vice-Presidents'), which lasted in principle until 1988. It was disrupted at the level of the federal Supreme Court by re-establishing (adding) the post of Vice-President in response to the federalisation of Czechoslovakia on 1 January 1970. After 1988, ratios similar to the first stage, i.e. the position of President and Vice-President, were restored. The combination of several Vice-Presidents with the College Presidents therefore deviates from tradition and would have to be thoroughly justified: it is not justified at all. Moreover, this amendment led to the termination of the proceedings concerning the proposal of the President of the Republic, sp. zn. Pl. ÚS 17 / 07 (resolution not published in SbNU, available at http: / / nalus.ujud.cz), which is precisely aimed at this contradiction.
22. According to the legislator, the organisation structure of the Supreme Court may be modified differently, but it must do so in a constitutionally correct manner. However, there is no justification for the need for other Vice-Presidents of the Supreme Court, but the fact that the relationship between laws and the Constitution is based on the clarification of general provisions, not on their mechanical acceptance, which, moreover, has significant constitutional consequences in this case. In fact, the legislature chose an indefinite dictation because, contrary to the Law on the Constitutional Court, it did not specify the number of Vice-Presidents. While in other general courts, the number of Vice-Presidents is limited by its proposal by the President of the Court, this is left to the consideration of the appointing authority, the President of the Republic. This opened up the scope of executive power, personified by the President of the Republic, for completely inadequate and arbitrary interference in the circumstances of the Supreme Court. The President of the Republic is not responsible for the activities of the Supreme Court, but is now granted the right to appoint an indefinite number of Vice-Presidents, which can change the position of the President of the Supreme Court, the model of court proceedings, the budget of the Court of First Instance, the financial and other material claims of the new Vice-Presidents, etc. The Supreme Court judges may have career expectations, which may not be without an impact on their decisions.
23. Therefore, according to the appellant, such legislation is contrary to the principles of the democratic rule of law in the requirements of the certainty of laws and the clear legal determination of the powers of a State body, as contained in Articles 1 (1) and 2 (3) of the Constitution and Article 2 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter). It also referred to the findings of the Constitutional Court, e.g. No. 88 / 2008 Coll. - Findings sp. zn. The establishment of an indefinite number of Vice-Presidents of the Supreme Court is also contrary to a constitutionally anchored ban on forbearance and randomness (Articles 1, 2 (3) of the Constitution and 2 (2) of the Charter) and may ultimately also weaken the division of power.
Inconstitutionality of the establishment of terms of office of Presidents and Vice-Presidents of the Courts
24. The appellant also referred to as the unconstitutional introduction of the terms of office of the Presidents and Vice-Presidents of the Courts in Sections 102 (2), 103 (2), 104 (2), 105 (2), 108 (2) of the Law on Courts and Judges. The following provisions shall apply:
"Paragraph 102 (2)
(2) The term of office of the President and Vice-Presidents of the Supreme Court shall be 10 years.
Article 103 (2)
(2) The term of office of the President and Vice-President of the Supreme Court is 7 years.
Article 104 (2)
(2) The term of office of the President and Vice-President of the Regional Court is 7 years.
Article 105 (2)
(2) The term of office of the President and Vice-President of the District Court is 7 years.
Article 108 (2)
(2) The office of President and Vice-President of the Court under § 102 to 105 shall also expire. "
25. As regards the establishment of the terms of office of the Presidents and Vice-Presidents of the Courts, as literally stated by the appellant, "feels' that an important objective and purpose of the contested law is to circumvent the existing case-law of the Constitutional Court on the matter of the independence of the courts [in particular, the finding of the sp. zl. He recalled the conclusions of the finding of the sp. zn. Pl. ÚS 7 / 02 (No 349 / 2002 Coll.), which justified the annulment of the then § 106 (1) of the Law on Courts and Judges, inter alia, by referring to the career procedure of the judge and the possibility of appeal from office only for the legal reason and by the procedure of disciplinary action, which respects the independence of the judiciary, the principle of the unimpeded exercise of a personal independent judicial mandate and the division of powers, although it is otherwise the case of the legislature, how the question of the administration of the courts should be addressed. In addition, the appellant summarised the conclusions of the Constitutional Court in the judgment in Case 18 / 06 Pl. Thus, the law governing the appeals of the Presidents and Vice-Presidents of the Courts must respect the constitutional principles of the division of power, independence of judicial power, etc. It is therefore impossible to establish any model of appeals of judicial officials without reflection of constitutional values.
26. On this basis, the appellant concludes that the contested legislation essentially circumvents this binding legal opinion of the Constitutional Court, since instead of a model of appeals, the appellant introduces a new model of appointment for a fixed-term judicial officer with unlimited discretion to re-appoint the same person to the same office. In doing so, he is more concerned about "managerial wear" by officials who have been in office for 20 or more years. In this context, it points out the statistical overview drawn up by the Department of Documentation and Analyst of the Supreme Administrative Court, which shows that such officials were 12 out of 271 on 30 April 2008. The statistics show that more than 68% of all judicial officials, i.e. more than two thirds, are not in office for more than ten years, one third of them have been appointed in the last five years. The largest number of judicial officials (almost two thirds) is in the age group around or just under 50. It is therefore a question of whether such a marginal proportion of longer serving judicial officers could be sufficient to justify such serious legislative intervention. It should be pointed out that these officials were not dismissed by the previous ministers even at a time when this was possible (in the absence of relevant case law at the time) very easily. The appellant also stated that what could be tolerated in the decisions of the college body with the participation of the judiciary should not be tolerated in the decisions of the political bodies of the executive body.
27. Furthermore, the appellant argues with the specific agenda that judicial officials are in charge of. The legislature is not supposed to make demands on judicial officials to the needs of the administration, but to derive from the necessary guarantees of the independence of judges and judicial officials the volume and nature of the tasks they can perform. A judicial officer is a judge, the only person whose consciousness cannot be divided under normal conditions. Therefore, in the interests of judicial independence, a certain attribute of independence should be granted to the judicial officer and, where appropriate, should be removed only by a decision of an independent and impartial body. The law of disciplinary action, as a way to dismiss judicial officials, accepts to devalue it immediately by laying down another reason for the termination of office, which is the end of the term of office, which can be considered, according to the appellant, a breach of Article 89 (2) of the Constitution. Therefore, the appellant stressed that, when re-appointment with an almost empty set of criteria is also permitted, there is a risk of influencing the behaviour of judges who wish to continue their duties and close to the end of their term of office. The appellant is aware that the Constitutional Court cannot force the legislator to establish a judicial body. However, it may clearly define the limitations on the absence of such an authority in the creation of a judicial authority. These conclusions were supplemented by examples of solutions from other countries with a model of judicial self-administration or an executive model such as in the Czech Republic (Austria, Germany), where it is an indefinite appointment. He also recalled that in Anglo-American countries, the executive appointment of a judicial officer for an indefinite period of time is a rule; moreover, Anglo-American theory does not distinguish between the position of a judge and the position of a judicial officer at all.
Non-constitutional reappointment of judicial officials
28. A further objection of inconstitutionality was raised by the appellant in the event of the introduction of the possibility of re-appointing the Presidents and Vice-Presidents of the courts. This provision shall read as follows:
The President and Vice-President of the Court under § 102 to 105 may be re-appointed if:
(a) during the term of office of the President or Vice-President of the Court, he has not been found to be responsible for the criminal offence committed in the course of his duties; or
(b) has not been convicted of a criminal offence in force during his term of office. '
29. The proposal justified that, in its view, the possibility of reappointing the President and Vice-President of the Court is contrary to the independence of the courts and judges. This is particularly true, taking into account how the criteria for re-appointment are or are not formulated, from which it is clear that the aspects of the law will necessarily be unexpressed. Given that, in the role of those appointing judicial officials, the (political) authorities of executive power, and not, for example, the body also involving judicial representation, create an area of uncertainty between the parties as to how a judicial officer, who is also a judge, will act in an attempt to re-appoint. Such uncertainty can certainly be seen as conflicting with the demands of the European Court of Human Rights that judges not only be independent and impartial, but appear to be such. The sensitivity of this theme is further enhanced by the maintenance of judges' traineeships at the Ministry of Justice, which are newly extended for up to three years (see the argument of sub II.b). The Minister of Justice could appoint, or propose, judges who are long-term outside the courts, identifying themselves with the Ministry or even the specific minister to whom they served as officials. Some statements by the Minister of Justice on traineeships as a criterion for a "functional career" update these concerns. As in the Constitutional Court's finding on electoral reform, this is, among other things, a negative cumulative effect of the individual provisions of the law.
30. As another issue of re-appointment, the appellant sees the transfer of part of the appointment permits from the Minister of Justice to the President of the Republic, which is not equipped to monitor the activities of judicial officials, so that it is either limited to the approval of the Minister's proposal or, in its discretion, more political. In the European comparison, it is clear that the possibility of re-appointment of a judicial officer applies only where the decision-making authority of the judiciary is competent and therefore not the executive body; Moreover, we will only meet this institute in the former post-communist space, not in Western Europe.
Inconstitutionality of transitional provisions for the establishment of the term of office of Presidents and Vice-Presidents of Supreme, Regional and District Courts
31. In this part of the proposal, the appellant challenges the separate transitional provisions for the establishment of the terms of office of the Presidents and Vice-Presidents of the Supreme, Regional and District Courts in points 4, 5, 6, 7, 8, 9, 10 and 11 of Article II of Part One of Act No 314 / 2008 Coll. The contested provisions of Article II (4), (5), (6), (7), (8), (9), (10) and (11) of Law No 314 / 2008 Coll. read:
Transitional provisions
4. The chairmen and vice-chairmen of the Supreme, Regional and District Courts appointed to their duties in 1989 and earlier shall have their term of office within one year of the date of application of this Act.
5. The chairmen and vice-chairmen of the Supreme, Regional and District Courts who were appointed to office in 1990 shall have their term of office two years from the date of application of this Act.
6. The term of office of the Presidents and Vice-Presidents of the Supreme, Regional and District Courts who were appointed to office between 1991 and 1994 shall expire three years after the date of application of this Law.
7. The term of office of the Presidents and Vice-Presidents of the Supreme, Regional and District Courts appointed to their office between 1995 and 1998 shall expire four years after the date of application of this Law.
8. The term of office of the Presidents and Vice-Presidents of the Supreme, Regional and District Courts appointed to their duties in 1999 and 2000 shall expire five years after the date of application of this Law.
9. The term of office of the Presidents and Vice-Presidents of the Supreme, Regional and District Courts appointed to their office in 2001 and 2002 shall expire six years after the date of application of this Law.
10. Presidents and Vice-Presidents of the Supreme, Regional and District Courts who have been appointed to office between 2003 and 2007 and in 2008 before the date of application of this Act shall terminate their term of office 7 years after the date of application of this Act.
11. The President and Vice-President of the Supreme Court shall terminate their term of office 5 years after the date of application of this Act. "
32. The inconstitutionality of laying down transitional provisions for the establishment of the terms of office of the Presidents and Vice-Presidents of the Supreme, Regional and District Courts is seen by the appellant as the end of the term of office of individual current judicial officers, for a period shorter than the new term of office of the relevant official. Such an adjustment is an intervention in the independence of the judiciary and at the same time a clear case of false retroactivity, which is undesirable because it undermines the legitimate expectations of the relevant officials. In the event that the Constitutional Court did not comply with the application for annulment of the term of office, the appellant stated that perhaps the constitutional conformal possibility would be to exhaust the entire term of office provided for by the law, calculated from the effectiveness of the law, without the possibility of arbitrarily shortening the term of office in the transitional provisions of the law. This was emphasised by the example of the President of the Supreme Court, whose function is to cease in five years, while the President of the Supreme Administrative Court, appointed less than a year later, was appointed ten years later. It considers this to be an example of a legislative will in the form of a breach of the principle of formal justice (legal equality), a decision of the legislator in individual matters, a breach of the right of equal access to public functions under Article 21 (4) of the Charter.
Inconstitutionality of transitional provisions for the establishment of the term of office of the President and Vice-President of the Supreme Administrative Court
33. For similar reasons as for II.d and II.e, the appellant seeks the annulment of the amended provisions of Sections 13 (3) and 13a of Act No. 150 / 2002 Coll., the Administrative Rules of Procedure, as amended by Act No. 314 / 2008 Coll. (Art. III (2) and (3)), which also establish the term of office of the President and Vice-President of the Supreme Administrative Court and the possibility of their re-appointment. In this case, the transitional provision of Article IV of Act No 314 / 2008 Coll., which provides that the President and Vice-President of the Supreme Administrative Court are no longer challenged for 10 years from the date of application of that Act. The contested provisions read as follows:
Article 13 (3)
"(3) The term of office of the President and Vice-President of the Supreme Administrative Court shall be 10 years."
The President and Vice-President of the Supreme Administrative Court may be re-appointed if:
(a) for the duration of the duties of President or Vice-President of the Court, he has not been found responsible for the criminal offence committed in the course of that duties; or
(b) he has not been convicted of a criminal offence during his term of office. "
Observations of the parties
34. On the application, the two parties submitted comments on the invitation to the Constitutional Court. On 12 July 2007, its President, Ing. Miloslav Vlček, spoke for the Chamber of Deputies of the Parliament of the Czech Republic, who, regardless of the appellant attacking one of the basic procedural procedures in the legislative process, did not actually give an opinion on the proposal. He merely stated that the proposal was approved in a constitutional manner at the meeting of 23 June 2008, in vote No 242; of the 155 Members present was in favour of the proposal 109, against 8. After approval by the Senate, the proposal was signed by the President of the Republic and duly declared.
35. On behalf of the Senate, his chairman, MUDr. Premysl Sobotka, who, above all, summarised the content of the proposal. He set out the closer circumstances of the Senate debate, where Minister of Justice J. Pošek was in a hurry to sign up for both the original government proposal and the text that came out of the Chamber of Deputies in its amended form. The rapporteur's report by Senator J. Rippel included a fundamental reservation on the way the draft was discussed in the Chamber of Deputies in the form of a comprehensive amendment. The draft was discussed live in the Senate Constitutional Committee with extensive participation of guests (e.g. JUDr. Josef Baxter, President of the Supreme Administrative Court, JUDr. Iva Brožová, President of the Supreme Court, representatives of the Judicial Union of the Czech Republic and others). The proposal was also addressed by the Standing Commission of the Senate for the Constitution of the Czech Republic and parliamentary procedures with conclusions on which, according to the President of the Senate, the appellant is partly based. On 16 July 2008, the Senate discussed the bill. Of the 54 senators present, 35 were in favour, 12 were opposed. Furthermore, the President of the Senate informed more about the content of the draft law and pointed out the problem of the complicated proposal for its abolition, where the aspects of procedural and material unconstitutionality are mixed (see Sub II.a and Sub II.b). He also pointed out that the procedural concept of unconstitutionality, transformed in the middle variant (here referred to as II.b) of the petit into a "substantive term," would lead, in the case of the derogation, to an undesired meaning, namely the non-giving gaps in the legal text, as well as to the absence of Article IV of Law No 314 / 2008 Coll. in the last variant of the proposal. The President of the Senate left his own decision at the Constitutional Court.
Formal preconditions for discussion of the proposal and the constitutionality of the legislative procedure
36. The Constitutional Court concluded that the application was made pursuant to § 64 (1) (b) of the Constitutional Court Act by a group of 21 Senators and is formally in line with the requirements of the Constitutional Court Act. It is the duty of the Constitutional Court to first examine whether the legislation to which the application relates has been approved within the limits of the Constitution laid down by competence and in a constitutional manner (Section 68 (2) of the Constitutional Court Act).
37. It was first necessary to assess the conditions of the proceedings within the meaning of Sections 66 and 67 of the Constitutional Court Act. In the meantime, the Law on Courts and Judgments has been amended by Act No. 7 / 2009 Coll., amending Act No. 99 / 1963 Coll., the Civil Code, as amended, and other related laws, and Act No. 41 / 2009 Coll., on the amendment of certain laws in connection with the adoption of the Penal Code, but those laws have not affected the provisions of which the Constitution is the subject of the present proceedings. Similarly, the proposal does not affect the amendment of the Law on Courts and Judgments implemented by the Act No. 217 / 2009 Coll. (prejudice § 42) and § 227 / 2009 Coll. (§ 175a). The same applies to the amendment of the Rules of Procedure by Administrative Act No. 7 / 2009 Coll. (§ 41, 45, 49 and 55) and No. 320 / 2009 Coll. (§ 89 (5)) and Constitutional Act No. 195 / 2009 Coll. (repealed).
38. The basic question, in terms of meeting the requirements of the legislative procedure, was the version of the petition of the above sub II.a. If the Constitutional Court came to the same conclusion as the appellant, it would no longer be necessary to proceed with the procedure and the proposal would already be dealt with at that point by the repeal of Act No 314 / 2008 Coll. The same would apply to the second variant of petit (also sub-sub II.a) if such a method of change was considered not to be a breach of the constitutionally prescribed method of acceptance, but as a content contradiction with constitutional order. As regards the appellant's arguments described above, the Constitutional Court finds that both proposals in this section are unfounded in the form of the first and second variants of the petition.
39. On the broad arguments set out by the applicant, sub-sub II.a (paragraphs 4 to 14), the Constitutional Court states that it has already dealt several times with a proposal for the repeal of the law, the basis of which was a comprehensive amendment or amendment (in particular, the finding No 88 / 2008 Coll. (see above), for example, the finding No 257 / 2008 Coll. - the finding sp. - the finding No. ÚS 42 / 08 of 21.4.2009 and most recently the finding No. 9 / 2010 Coll. - the finding No. He never came to the conclusion that this practice would be contrary to the constitutional rules of parliamentary law [expressly in Case No 160 / 2008 Coll. - Findings sp. zn. Pl. ÚS 25 / 07 of 13.3.2008 (N 56 / 48 SbNU 791) stated that the adoption and publication of the contested Act No 181 / 2007 Coll., on the Institute for the Study of Totalitarian Regimens and on the Archive of Security Components and on the amendment of certain laws had taken place in a prescribed manner (by analogy to the Act No. 163 / 2009)]. On the contrary, in the third ÚS 455 / 08 of 10 March 2009, the Constitutional Court took the very part that was inserted into it only in the framework of the so-called comprehensive amendment. Likewise, in the case of the Found No. 37 / 2007 Coll. (see above) in this context, the Constitutional Court merely referred to the opinion expressed in the expert literature (Akola, J.: The creation of the law in the Czech Republic: a truchlogame with a happy ending?, Legal Rapporteur No. 7 / 2006) recalled that the government should insist on its right to comment on the draft law under Article 44 of the Constitution because it is in fact a veiled new legislative initiative. In the present case, however, it is clear that this proposal was initiated by the Government, which, by its representation, entrusted the Minister of Justice with the amendment to the Law on Courts and Judges. It is not the task and competence of the Constitutional Court to examine all details and procedures in the adoption of laws, unless this is contrary to the constitutional rules of the legislative process (see Ref. No. 331 / 2005 Coll. - see above). It did not find this even in the case of a comprehensive amendment, which was used by the Senate in its proceedings [Found No. 207 / 2003 Coll. - Found sp. zn. Pl. ÚS 14 / 02 of 4.6.2003 (N 82 / 30 CollNU 263 Coll.)]. The objection to the application of the Comprehensive Amendment in Case No 88 / 2008 Coll. (see above) was only used as a different opinion. Similarly, the fact that the proposal in this part lacks a justification fulfilling the requirements of Article 86 (3) of the Rules of Procedure of the Chamber of Deputies does not in itself lead to the inconstitutionality of the law thus negotiated and approved. While the appellant draws attention to the current problems of the practice of the legislative process in this section, they do not reach the level of unconstitutionality.
40. The so-called comprehensive amendments have been part of reglement law in the Czech Republic for a long time. On their basis, constitutional laws are also approved. At the same time, the Constitutional Court had no reason to question this procedure, even if it had come up as an initiative by a committee of the Chamber of Deputies when discussing government bills (the usual case), even if this initiative had come up in fact from a government which sought to eliminate the adverse effects of the parliamentary proposals [see Found No. 257 / 2008 Coll. (see above) in connection with the amendment to the Commercial Code implemented by Act No. 216 / 2005 Coll. and Syllova, J. et al.: Parliament of the Czech Republic. 2. The Rules of Procedure of the Chamber of Deputies do not recognise the concept of a comprehensive amendment. It is one of the institutes of parliamentary practice, however, which is within the limits of constitutional order, when the draft law is debated on the basis of the legislative initiative of a legitimate appellant pursuant to Article 41 (2) of the Constitution (here, print No 425 / 0), but the basis for the negotiations is a comprehensive amendment (here, print No 425 / 1) of the relevant House Committee (here it was a constitutional committee). However, this does not mean that a body with the right of a legislative initiative ceases to be "master of the proposal," as it is still its legislative initiative. That is why he alone has the proposal (although in the form of a comprehensive amendment) and can take it back without further ado until the end of the debate at second reading, in which, on the basis of the comprehensive amendment, the legislative initiative is being discussed (§ 64 in conjunction with § 86 (6) of Act No. 90 / 1995 Coll., the Rules of Procedure of the Chamber of Deputies), with the consent of the Chamber of Deputies, even in third reading.
41. The Comprehensive Amendment in the form of Press No. 425 / 1 was therefore still an amendment within the meaning of Rule 63 (1) (5) (a) of the Rules of Procedure of the Chamber of Deputies. The Government, as appellant, has therefore also had the opportunity to proceed under Paragraph 63 (2) of the Rules of Procedure and to propose an interruption of the present case, in the event of failure to withdraw it under Paragraph 64 of the Rules of Procedure. In the present case, the government did not do so, but its representative supported the proposal when negotiating in the Chamber of Deputies and defended it in the Senate. The fact that the government representing the Minister at the second reading of the proposal on 18 June 2008 in the Chamber of Deputies stated that it could "state as the Ministry of Justice that we agree with these supplements' does not change the fact that it was a government proposal and the position of the representative of the Government. Therefore, the Constitutional Court does not consider this procedure to be contrary not only to the general rules of the constitutionally prescribed legislative procedure, but also to be contradictory to constitutional order in a particular case of the approval of Press No. 425 / 0 in the Chamber of Deputies. Another procedure would finally mean that the Constitutional Court, as in the case of the so-called stickers (Ref. No 37 / 2007 Coll. - see above), would establish for futuro an obligation to review each application under Article 87 (1) (a) of the Constitution also in view of whether the revised law was adopted on the basis of a comprehensive amendment (first variant of petit - sub 4) and whether the reglement rights of the initiator of the proposal, or ad hoc (second variant of petit - sub 5), were investigated in this case, whether there was sufficient justification. Such unconstitutional intervention does not constitute such a procedure. Here, the Constitutional Court recalls that, on the basis of a comprehensive amendment, two key parts of the constitutional order were approved - in 1991 the Charter and in 1992 the Constitution.
42. Therefore, the proposal was rejected as unfounded in these parts. In addition, for the sake of completeness, the Constitutional Court must state that, in the event of an objection to the non-constitutional procedure for the adoption of the laws, the principle of minimisation of intervention is applicable by the appellant in such a way that the content of the law is no longer decided [cf. [cf. Sp. It is no longer possible at all to combine the petites of sub-sub II and in the form that the proposal is partly constitutional or partly constitutional. The Constitutional Court cannot therefore choose, in such a case, what it will review and what it will not, because it is a matter of decision-making within Parliament's chambers. The Constitutional Court (see Ref. No. 331 / 2005 Coll. - see above) must be limited here to compliance with the constitutional rules of the legislative process and to an assessment of the outcome of Parliament's decisions while respecting them. If the Rules of Procedure of the Chamber maintain the status of the draftsman of the bill as a master of the proposal, there is generally no room for intervention by the Constitutional Court. It cannot therefore be the task of the Constitutional Court that, pursuant to Article 68 (2) of the Law on the Constitutional Court, it must submit each of the proposals referred to above to a review which would go beyond the procedural limits and entail an assessment of the content. Here, too, the government must respect its rights when implementing its policy. It is therefore not correct, for example, that in the next parliamentary term such action by the previous government should be further questioned.
43. Therefore, in this part, the proposal was rejected as unfounded in the light of the two points of argument as laid down by the appellant (sub II.a), i.e. both procedural and substantive.
Assessment of the constitutionality of the draft provisions concerned
44. On this basis, the Constitutional Court has assessed the remainder of the proposal in points marked as II.b to II.g, both in the light of the contested provision itself and of the arguments attached thereto. The third petition was therefore based on the fact that it was not relevant in this case that the appellant did not propose, in complicated variants, the repeal of the transitional provision of Article IV of Act No 314 / 2008 Coll., since, in the event of compliance with that proposal (the introduction of the term of office of the President of the Supreme Administrative Court), it would, on the one hand, lose meaning, and, on the other hand, it would not suffer from the defects alleged by the other contested provision, since the problem of Article IV of Law No 314 / 2008 was merely a procedure for its adoption (a comprehensive amendment).
45. In general, the Constitutional Court states that, in its capacity, it was only able to deal with the contested provisions of the Law on Courts and Judgments and of Act No 314 / 2008 Coll., not with a number of all legal solutions to the position of judges and judicial officials, on the one hand, and the powers of legislative or, in particular, executive (President of the Republic, Government, Ministry of Justice, Ministry of Finance on the other hand). The role of the Constitutional Court is to assess the contested provisions, not to develop the considerations of de el-ferenda and to seek appropriate legislative solutions where the legislature provides room for that. If, therefore, there are possible other solutions based on judicial self-administration, but the Constitution does not require such solutions, it is not possible from this point of view to assess the contested legislation or therefore to challenge it. Similarly, it was not possible to go back to the historical context of the judicial administration in relation to the federal arrangements (the absence of the Federal Ministry of Justice in the Czechoslovak Federation, unlike most federations, and thus other positions of the Supreme Court outside the reach of the Republic's ministries of justice). Finally, it should be stressed that the appellant relies on the effect of a "negative cumulative effect '(sub 29) of the various provisions of the amendment to the Law on Courts and Judges. The intervention in the independence of the courts is seen in the interdependence of the various amended solutions. In this context, the Constitutional Court must recall that this doctrine [in particular the findings No 64 / 2001 Coll. - the finding of sp. zn. Pl. ÚS 42 / 2000 of 24.1.2001 (N 16 / 21 SbNU 113), No 349 / 2002 Coll. (see above) and No 318 / 2009 Coll. - the finding of sp. zn. Pl. ÚS 27 / 09 of 10.9.2009] may lead to the strengthening of the appellant's position of argument where all constitutional defects of the legislation which it has proposed apply. In the event that the weight of the individual defects raised is contested for a part of the contested provisions, their impact on other provisions, which can then be maintained in the constitutional test, falls. Finally, the Constitutional Court must emphasise that it had to confine itself only to complaints directed against the specific provisions of the Law on Courts and Judgments, without being able to draw its conclusions on other solutions introduced into the Act after the publication of the Act of First Instance of ÚS 7 / 02 (No 349 / 2002 Coll.) - see above.
The constitution of the appointment of a judge to the Ministry of Justice pursuant to § 68 (1), § 68 (2) (b) of the Law on Courts and Judges
46. As the first two questions, the Constitutional Court assessed the veracity of the application for the annulment of the words "to the Ministry or 'in § 68 (1) and § 68 (2) (b) of the Law on Courts and Judgments, as well as § 100a of the Law on Courts and Judges (sub II.b). These provisions are part of Act No. 314 / 2008 Coll. (see its paragraphs 4, 5 and 28), but have already been included in the original text of the government proposal, not in the comprehensive amendment, so they are not subject to the criticisms given in the options of petit of the draft sub II.a. At this point, the Constitutional Court concluded that the proposal was only partially justified. It was led by the following considerations.
47. The proposal marked as II.b represents two separate parts. In the first part, it is proposed to withdraw the possibility of assigning a judge to the Ministry of Justice in order to use his experience and to be appointed by the Minister of Justice with the consent of the Judge and after consulting the President of the Court, to which the Judge is assigned pursuant to § 67 or translated under § 71 and 72 of the Law on Courts and Judges for the performance of his duties. In order to assess the constitutional aspect of the case, the fact that the finding of the sp. zn. Act No. 192 / 2003 Coll. in paragraph 11 to § 68 (1) of the repealed provision in the words "to the Ministry or" again returned, as well as (paragraph 20) in § 99 (1) (c), where the provision cited was also annulled. The Constitutional Court notes that, in the same way, Article 68 (4) of the Law on Courts and Judges provides for the appointment of judges to the Ministry of Justice. However, this provision was not contested either in the proceedings in the sp. zn. In the quoted finding (No 349 / 2002 Coll.) The Constitutional Court concluded that the improper nature of the judicial function is the continuity of its performance. Therefore, membership of the advisory bodies of the Ministry, the Government and the two chambers of Parliament, as well as the performance of the tasks of these different elements of State power, is contrary to the principle of division of power, not to mention that the personal and extrajudicial links that take place in such an activity inevitably increase the likelihood of a potential conflict of interest and thus render impartiality in the form of unbiased judges questionable. In the current version of the Law on Courts and Courts, this non-constitutional state was further underlined by the fact that the period of secondment was now extended to three years compared to the possibility of one-year allocation in the repealed § 68 (1) of the Law on Courts and Courts, as in force until 1 July 2003, when that provision was repealed by the Act on the Law on the Law on Courts and Courts. This calls into question the need for continuous performance of the judicial function even more and, on the contrary, the opposition to the power of power becomes even more serious. In addition, this must be seen in the context of the fact that the process of preparing, selecting and allocating judges is in the Czech Republic, compared with the states with the developed judiciary, in the hands of the executive authority, especially the Ministry of Justice. The Constitutional Court is aware that this practice is also possible in other countries (France, Sweden, Germany, Italy, Poland, Slovakia, Austria), but in order to assess this issue it is necessary to take into account the specific circumstances in the Czech Republic and the role of the Ministry of Justice in preparing for the judicial function and in advancing the career of judges, as well as the length of the transfer and filling of the activities of the transferred judges with other state bodies in other States. Therefore, the Constitutional Court maintained its legal opinion in the finding of Pl. ÚS 7 / 02 (No 349 / 2002 Coll.) and continues to consider the allocation of judges to perform tasks under another branch of State authority as an activity contrary to Article 82 (3) of the Constitution and, since that legal opinion has already been expressed by the Constitutional Court (the finding of Pl. ÚS 7 / 02) and Article 89 (2) of the Constitution; in that regard, it also agrees with the appellant's reminder of the requirement to maintain the so-called external or objective independence of the judge, which should appear in such a way to the parties, but also to the public.
48. It is also not possible to see that, in this context, Paragraph 99 (3) of the Law on Courts and Judgments provides that, for the duration of the temporary discharge for the purpose of being assigned to the Ministry of Justice, the judge is entitled to pay and other formalities relating to the performance of the duties of judge under a special law, which is, however, Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of state authority and of certain state bodies and judges and Members of the European Parliament, as amended, not under the Labour Code. In its case-law, the Constitutional Court has emphasised several times the reasons for which the courts should be given protection against the withdrawal of salaries or other formalities associated with the performance of the judicial function [most recently in proceedings conducted under sp. zn. In this case, however, these reasons cannot apply because the central administration cannot exercise judicial authority, so that there is necessarily an inequality in the remuneration of employees of such authority under § 110 of the Labour Code and assigned judges under Act No. 236 / 1995 Coll., although in this case they do not exercise the judiciary and are in addition temporarily exempted under § 99 (1) (c) of the Law on Courts and Judges.
49. The abolition of the words "the Ministry or" in § 68 (2) (b) of the Law on Courts and Judges is only a consequence of their annulment in § 68 (1). As already stated, the appointment of a judge to the Ministry of Justice is also governed by § 68 (4) and § 99 (1) (c) of the Law on Courts and Judges. Although those provisions were not contested by the appellant, they become irrelevant after the annulment of the above provisions, since the hypothesis "if it was temporarily assigned to the Ministry 'cannot be fulfilled as a result of the abolition of the words" to the Ministry or' in § 68 (1) of the Law on Courts and Judges.
Constitution of the possibility of temporary dismissal (§ 100a of the Law on Courts and Judges)
50. The second part of the proposal II.b is to challenge the authority of the Minister of Justice to temporarily relieve the judge of the duties of the President or Vice-President of the Court of First Instance on the grounds of the opening of disciplinary proceedings against him under Paragraph 100a of the Law on Courts and Judges (see the arguments of the appellant, sub 18 and 19). In addition, the Constitutional Court states that pursuant to § 8 (3) (b) of Act No 7 / 2002 Coll., on the proceedings in the case of judges, prosecutors and court executors, as amended, the application for disciplinary action concerning the disciplinary liability of the President or Vice-President of the Court is entitled to be brought by the Minister of Justice against any President or Vice-President of the Court. In conjunction with this provision, Act No 314 / 2008 Coll. introduced provisions of § 100a in the Law on Courts and Courts, which extends the discretion of the Minister of Justice when deciding to suspend the duties of a Judge and the possibility of temporarily discharging the duties of President or Vice-President of the Court. The appellant requests that this provision be repealed as a whole, although its reasoning is based on its content only on the grounds of a possible (not binding) waiver of the office of President or Vice-President of the Court under Paragraph 100a (1) (b) of the Law on Courts and Judges.
51. According to that provision, the Minister of Justice may temporarily relieve the President or Vice-President of the court if he is prosecuted for such disciplinary action for which a disciplinary action is proposed in a disciplinary action to appeal from the office of Judge or from the office of President or Vice-President of the Court for a period until the final end of the disciplinary action. It is precisely this reason that the appellant expressly challenges and focuses exclusively on its argument, without mentioning in the proposal any other possible ground under Paragraph 100a (1) (a) of the Law on Courts and Judges. In the case of this other possible reason, this is the situation also envisaged by the law cited, i.e. the situation under Paragraph 100 (1) (a), where the President or Vice-President of the Court is prosecuted or the situation under Paragraph 100 (1) (c), if, for the reasons set out in Section 91 of the Law on Courts and Judges against him, proceedings for his incapacity to perform judicial duties have been initiated for a period until the final end of that procedure. However, the reasons for which this part of the contested provision of Paragraph 100a of the Law on Courts and Judges should also be deleted do not refer anywhere to the appellant.
52. Since it is proposed that Paragraph 100a of the Law on Courts and Judges as a whole be repealed, the Constitutional Court considers, however, that it is necessary to state on this part of the contested provision that, in such cases, these are situations which the Minister of Justice cannot, by way of procedure, establish or establish. In the case of criminal prosecution, this is a decision of a criminal authority, together with the prior agreement of the President of the Republic (Section 76 (1) of the Law on Courts and Judges). In the case of § 91 of the Law on Courts and Judgments, these are situations which are also based on grounds other than, where appropriate, the Minister of Justice's conceivable arbitral procedure, and their use is linked to the possibility of protection by the judge concerned. According to Article 91 of the Law on Courts and Judgments, this is primarily a case where a judge is incompetent to perform a judicial function if this is not permitted by a long-term adverse health condition. Furthermore, these are situations where the judge has been convicted of a criminal offence and such conviction did not justify the termination of the function of a judge pursuant to Paragraph 94 (c) if the act for which the judge was convicted by its nature calls into question the credibility of his continued residence in the judicial function or, in the last 5 years before the application for the opening of the proceedings on the capacity of a judge to perform his duties by at least three times the power to be recognised by guilty of the criminal offence, where that fact calls into question the credibility of his continued residence in the judicial function (so-called "principle '). Therefore, the Constitutional Court rejected the proposal as unfounded in this part when it did not find an infringement of the constitutional order in the law itself, which does not preclude it from being misused or misused in a particular procedure.
53. Thus, the appellant's proposal in this section is in fact directed against Paragraph 100a (1) (b) of the amended Law on Courts and Judges. In view of this, the Constitutional Court has focused on assessing whether the above-mentioned authority of the Minister of Justice can be regarded as a malicious instrument against the independence of the exercise of judicial authority, in particular if the Minister acts as a disciplinary prosecutor who himself proposed the appropriate penalty pursuant to § 8 (3) (b) of Act No 7 / 2002 Coll., on proceedings in the case of judges, prosecutors and court executors, as amended. It was therefore necessary to assess whether the regulation itself was unconstitutional or not yet unconstitutional, but in a particular case it could lead to unconstitutional interference in the independence of the courts, or whether it no longer provides the possibility of a constitutional interpretation in the abstract.
54. The appellant here in the first place objects to a rather vague formulation of the facts of the criminal offence. However, it must be stressed in this context that it did not, however, propose the repeal of the relevant provisions of Sections 87 (2) and 88 (2) of the Law on Courts and Judges, without at least mentioning those provisions. Therefore, he also did not specify his objections. Therefore, the Constitutional Court considers it necessary to state that the facts of the functional criminal offence under Article 87 (2) of the Law on Courts and Judgments, i.e. the "guilty breach of duties relating to the function," must be interpreted in the context of the definition of the duties of judicial officials, as required by Article 91 (2) of the Constitution, and can be assessed in particular in the context of a particular case.
55. Furthermore, in support of his claim, the appellant stated that the Minister, as a disciplinary prosecutor, created the conditions for temporarily relieving a judicial officer of his office as a representative of the central administration of the courts. At the same time, the same minister will have to provide interim court proceedings, which can therefore change significantly until a possible exoneration of the ruling of the disciplinary court. This interferes with the independence of judges and courts, the division of power, and opens up the possibility of indiscretions and coincidences in the exercise of judicial administration. The appellant sees the fundamental constitutional defect of the contested § 100a of the Law on Courts and Judgments not in the various grounds for temporary exemption (in addition to sub 56), but in the lack of legal protection compared to the temporary waiver of the duties of judge, where it is possible to object to the disciplinary court (cf. § 100 (4) of the same law). In all the cases provided for in Paragraph 100a, therefore, irreversible facts may arise during the temporary waiver of office by intervention by the executive authority. In so doing, the limitation of temporary waivers to the function of judicial officer only indicates that it is not to be a matter of fatal importance, so the risk of performance by an inappropriate person becomes less obvious compared to the risk of independence. The appellant therefore finds sufficient possibility to suspend the office of President and Vice-President of the Court as a result of the establishment of the function of Judge and thus of a judicial officer (accessorium of the judicial function) and therefore proposes the annulment of the whole of Paragraph 100a of the Law on Courts and Judges. Should the legislature not be of the same opinion, it should provide for a temporary waiver exclusively from the office of President or Vice-President of the Court in a manner comparable to that of a judge against temporary dismissal.
56. In this regard, the Constitutional Court has identified the appellant's objections in that part of the case against the absence of an appeal against a temporary waiver from the office of President or Vice-President of the Court. The Constitutional Court is of the opinion here, which was set out in detail in the judgment in Case C-18 / 06 (No 397 / 2006 Coll. - see above) and according to which it is not possible to construct the dual quality of the legal status of the President of the Court as an official of the State Administration on the one hand and the Judge on the other hand. It is still the same person and personality that connects things in both functions. This must concern not only the way in which the court officials are dismissed, but also their temporary dismissal. Such an arrangement must respect the constitutional principles of the division of power and the independence of the judicial authority, i.e. that in the present case the President or Vice-President of the Court must be able to call for protection against interference in his public constitutionally guaranteed subjective law, but also protection against the intervention of the executive authority in a judicial manner, which allows for Article 100a (1) (b) of the Law on Courts and Judges, all the more so as to ensure that the application of such action is made by the Minister of Justice both from the point of view of the appeal for disciplinary action before the Supreme Administrative Court and from the point of law on suspension of office. The means of protecting judicial officials must therefore be comparable to the means of protecting the judge. Until this happens, Paragraph 100a (1) (b) of the Law on Courts and Judges is seen in the context of the other provisions, contrary to the constitutional principle of the division of power and the independence of judicial authority from executive intervention.
Constitution of an indefinite number of Vice-Presidents of the Supreme Court
57. The appellant further contests (sub II.c) the indefinite number of Vice-Presidents of the Supreme Court expressed in the words "Vice-Presidents" in § 15 (1), § 23 (1) and § 102 (2), the word "Vice-Presidents" in § 15 (2) and § 121 (2), the word "Vice-Presidents" in § 102 (1) and § 168 and the words "Vice-Presidents of the Supreme Court" in § 119 (2) of the Law on Courts and Judges. Thus, in the amended version of the Law on Courts and Judgments, it is essentially a substitution of the word 'Vice-President' in various falls. The appellant points out (in detail sub 22n.) that this change is not justified except for the alleged discrepancy between Article 62 (1) and Article 62 (2). (f) the constitution where plural is used, while the law on courts and judges uses singular. According to the appellant, there is a non-constitutional state here because the President of the Court limits the number of Vice-Presidents in other general courts, but this is left to the consideration of the appointing authority, the President of the Republic. This opened up the scope of power executive for completely inadequate and arbitral interference in the circumstances of the Supreme Court. This is underlined by the fact that the President of the Republic is not responsible for the activities of the Supreme Court, but is now entitled to appoint an indefinite number of Vice-Presidents, which may change the position of the President of the Supreme Court, the model of court proceedings, to burden the Court's budget with the financial and other material claims of the new Vice-Presidents; moreover, in the case of rank judges of the Supreme Court, such a situation may provoke career expectations, which may not have an impact on their decisions.
58. In the view of the Constitutional Court, the very application of a single or multiple number in the legislation does not definitively determine how many persons it may affect, unless the substance of the matter is the same (see also Article 40 (4) of the Legislative Rules of the Government). Therefore, the explicit use of the plural in the Constitution would not without further rule out the existence of only one Vice-President or impose the appointment of more than one Vice-President. The same applies to the use of plural numbers in ordinary law. In the present case, however, the intention of the legislator to allow the President of the Republic to appoint a larger number of Vice-Presidents of the Supreme Court should be seen in the inclusion of a plural number in those provisions of the Law on Courts and Judges. By doing so, the legislature used the powers conferred upon it by Article 91 (2) of the Constitution, according to which it is within the competence of the ordinary legislature to provide for the organisation of courts, while at the same time eliminating external differences in the text of Article 62 (f) of the Constitution and in the text of the Law on Courts and Judges until the adoption of Act No 314 / 2008 Coll. In this respect, therefore, the appellant's objections to the violation of the Law on Courts and Judges and the Constitution could not be identified by the Constitutional Court. However, just as so far the appointment of only one Vice-President was not contrary to the Constitution, so it will not be such a state of affairs after the amendment of the Law on Courts and Judges.
59. However, the above does not mean that the legislator, like the appointing authority, i.e. the President of the Republic, has the possibility of discretion. The Constitutional Court has already stressed more than once, in its decision on the status and role of the judiciary, that it is not possible to place emphasis only on language interpretation. The position of the President of the Republic in relation to the judiciary (including the powers of appointment) should be interpreted in terms of the rules on division of power and the need to ensure the independence of the performance of the judiciary. The President of the Republic must therefore respect the fundamental constitutional bases of the adjustments to the status, organisation and functioning of the judicial system as a whole, not only from the perspective of Articles 62 (f) and 91 (2) of the Constitution. Therefore, in this context, the question is whether it was not the legislature's constitutional obligation to set a certain number of Vice-Presidents at the same time (as in Section 1 of the Constitutional Court Act). However, this would mean that the President of the Republic can no longer remain on the appointment of only one Vice-President, although the law allows for the appointment of more than one. The actual number of Vice-Presidents of the Supreme Court alone cannot rule on the independence of the exercise of judicial authority. However, it may have an impact on it in the light of the factual circumstances in which the appointment takes place. In particular, however, it is about whether, as in the case of the powers of the Presidents of other courts, the appointment of Vice-Presidents on a proposal from the President of the Supreme Court was not necessary. The threat to the principle of independence of the judiciary would be reduced in a situation where it would be possible to see Paragraph 70 of the Law on Courts and Judges as consent not only to be assigned to the duties of judge but also to be appointed to the office of Vice-President (here Vice-President) in the Supreme Court. However, that is not the case, so that the President of the Supreme Court is in a different position from that of the Presidents of the Supreme Court and of the District Courts in their proceedings under § 103 to 105 of the Law on Courts and Judges.
60. The contested provision is therefore not contrary to the constitutional order because, from the perspective of the Constitution, there could not be more than one number of Vice-Presidents in the Supreme Court, but because in this way there is room for intervention in the functioning of this court as the supreme judicial authority by the executive authority, without any balancing as in the case of Article 70 of the Law on Courts and Judges. In this case, it is the task of the Constitutional Court to remove in advance the possibility of creating such problems, even if it is possible in practice that, on the basis of the previous case-law of the Constitutional Court [cf. This is all the more so because, compared with the Presidents of the other courts, the position of President of the Supreme Court is special in that the Ministry of Justice exercises the administration of the Supreme Court through it (§ 120 (2) of the Law on Courts and Judges), not directly, and that the Vice-Presidents of the Supreme Court exercise the administration of the Supreme Court to the extent specified by the President (§ 121 (2) of the Act cited). Furthermore, in view of the possible number of Vice-Presidents of the Supreme Court, the fact that the Presidents of the College of the Supreme Court appointed by its President are also present (Sections 18 and 102 (3) of the Law on Courts and Judges). An indefinite number of Vice-Presidents may therefore, in future, create a situation in which, on the basis of this provision, the Supreme Court could be affected by the conduct of the judiciary. It is all the more important that there is no judicial authority in the Czech Republic comparable to foreign models when deciding on personnel issues of the judiciary, and that the President of the Supreme Court is not in the same position as when a judge is assigned to the Supreme Court. However, from the point of view of maximising the minimisation of the intervention, the Constitutional Court concluded that it was not necessary to abolish all the proposed provisions containing plural the words "Vice-President of the Supreme Court ', but to limit the intervention to the legal basis of the appointment contained in Paragraph 102 (1) of the Law on Courts and Judges. He was led by these reasons.
61. The Constitutional Court is aware, in this connection, that its existing case-law [in particular the finding of the sp. zn. According to the Constitutional Court, it follows from the position of Vice-President of the Supreme Court as well as from the content of his duties that he must first become a judge of that Court in order to exercise his administration. Therefore, the Constitutional Court ruled out that the power of the President of the Republic to appoint the Vice-Presidents of the Supreme Court would include, and thus replace, any phase in the process of setting up a judge, that is, the phase in which the judge was assigned to the Supreme Court by the Minister of Justice, after the prior approval of the President of the Supreme Court, as this is a competence in relation to the officials of the Supreme Court. The Constitutional Court therefore expressed its legal opinion that the power of the President of the Republic does not include the appointment of the Vice-President of the Supreme Court and therefore does not replace any stage of the process of setting a judge of that Court, as this could lead to circumvention of the powers of other state bodies (Minister of Justice, President of the Supreme Court). However, in contrast to the appointment procedure for Vice-Presidents of other courts (§ 103 (1), § 104 (1), § 105 (1)) in the case of the Supreme Court, the provision of § 102 (1) of the Law on Courts and Courts does not contain sufficient guarantees that the independence of the judicial authority should be maintained in respect of the participation of the Supreme Court Judicial Council, as well as, in particular, from the point of view of the President of the Supreme Court, that provision had to be abolished in the part which, for such possible interference with the independence of the judicial authority, was required. The task of the Constitutional Court is to remove this possibility. Since the threat may lie not in the very number of Vice-Presidents (its clarification or the Constitutional Court does not belong), but in the described defects in the procedure for appointing the Vice-Presidents of the Supreme Court, as enshrined in Section 102 (1) of the Law on Courts and Judges, the Constitutional Court has limited itself to abolishing that part of that provision. Although the appellant only requested that the word "Vice-President 'be deleted. However, since Article 102 (1) of the Law on Courts and Judgments would create a confusion in this way, it was decided to abolish the words' and Vice-President '. It will be the legislator's job to modify (until the possible establishment of judicial authorities not only of an advisory nature) the procedure for appointing the Vice-Presidents of the Supreme Court in such a way that the independence of the judiciary cannot be questioned or even affected in this area. In order to do so, the Constitutional Court took advantage of the possibility of delaying the enforceability of the finding and, according to Article 58 (1) of the Law on the Constitutional Court, it did so with a delay of about one year from the publication of the finding in the Collection of Laws. At the same time, it is necessary to respect the unsigned power of appointment of the President of the Republic, which in consequence means that it would only be possible to bind the appointment to consent if the constitutional regulation entrusted such authority with such competence. Thus, the constitutional principle of the independence of the judiciary does not allow ordinary law to limit this constitutional prerogative of the President of the Republic by the approval of another state body. It is necessary to take into account the fact that the appointment of the President of the Republic as non-contrasigned is not guided by the establishment's efforts to strengthen the role of the President, but by strengthening the independence of the judiciary by excluding political influence from the appointment (and, more importantly, appeal) of the appointment process - see, in the light of Article 63 (4) and Article 68 (1) of the Constitution - in the form of a decision by the Government. The Constitutional Court points out that it does not consider the literal acceptance of the provision of the Constitution in Article 62 (f) - a plural number in the Vice-Presidents of the Supreme Court - into the ordinary law to be sufficiently certain. This does not mean that the President of the Republic has the power to determine their number without questioning the unsigned appointment of the President of the Republic in relation to the Vice-Presidents of the Supreme Court. This deficit can be eliminated by, for example, the statutory establishment of the number of Vice-Presidents of the Supreme Court within the meaning of Article 91 (2) Constitution or amendment of the analogous appointment of Vice-Presidents in the case of the courts of the counties, counties and tribunals.
Constitution for the establishment of a term of office of Presidents and Vice-Presidents of the Courts
62. Furthermore, the appellant contested the introduction of the terms of office of the Presidents and Vice-Presidents of the District, Regional and Supreme Courts and the Supreme Court in the provisions of Sections 102 (2), 103 (2), 104 (2), 105 (2), 108 (2) of the Law on Courts and Judges. The appellant's argument (see in detail sub 25 to 27) is based on the fact that it "feels" that this is an attempt to circumvent the case-law of the Constitutional Court (in particular the findings of the Pol. ÚS 7 / 02 and the Pl. ÚS 18 / 06 - both see above) and to limit the principle of independence of the judiciary expressly expressed in Articles 81 and 82 of the Constitution and Article 36 of the Charter. The appellant stated, inter alia, that what could be tolerated in the decisions of the college body with the participation of the judiciary should not be tolerated in the decisions of the political bodies of the executive body. Therefore, in the interests of judicial independence, a certain attribute of independence should be granted to a judicial officer who, if necessary, is to be removed from office only by a decision of an independent and impartial body. The law of disciplinary action, as a way to appeal judicial officials, accepts that it should be devalued immediately by establishing a further reason for the termination of the function, which can be considered, according to the appellant, a breach of Article 89 (2) of the Constitution. He stressed that if re-appointment with an almost empty set of criteria is allowed at the same time, there is a risk of influencing the conduct of judges who wish to continue their duties and close to the end of their term of office.
63. The Constitutional Court did not agree with this argument and rejected the proposal as unfounded in this part. The appellant's argument is based on a different legal situation and does not distinguish consistently between the withdrawal of the function on grounds of disciplinary misconduct (penalty) and the termination of the function due to the expiry of time. Contrary to the time-limit of appointment, the Judge in Article 93 (1) The Constitution does not provide such a condition for the performance of the duties of President or Vice-President of the Court, with the exception of the Supreme Courts and does not expressly specify such duties. If, therefore, the legislature has decided to establish a term of office, it may be subject to review by the Constitutional Court only in view of possible interference with other constitutionally established principles of organisation and activity of the courts, since the very principle of the time-limit on certain functions does not in itself conflict with the principle of division of power (rather its clarification), particularly if it does not concern the actual exercise of the judiciary itself. Therefore, the temporal limitation on the performance of the administration of the court (even if the judge) may not be unconstitutional. However, it must be stressed that appointment for a limited period of time must be indirectly proportional (as in other cases) to the burdensome claims for early withdrawal from temporary office. The shorter the term of office, the greater the demands must be placed on the possibility of early retirement. However, this aspect is dealt with by the Constitutional Court in another context (sub-paragraphs 53 to 56). In the opinion of the Constitutional Court, the adequacy of the duration of the term of office is consistent with the appointment of judicial officials in the case of the chairmen and vice-chairmen by the executive and not by the choice of the judicial authority (in which case the term of office is shorter abroad).
64. Another constitutional cautella is the period for which the appointment is made. In this respect, a term of office of 10 years for the Presidents and Vice-Presidents of the Supreme Courts and 7 years for the Presidents and Vice-Presidents of the other Courts is comparable to that of the officials of other institutions or bodies (Banking Board of the Czech National Bank 6 years, President and Vice-President of the Supreme Audit Office 9 years), by which the Constitution guarantees independence of the position. The term of office also exceeds the term of office of the appointing authority, so that the executive authority does not create its "functional structure '. The appellant's argument is therefore directed at the question of the possibility of the appeal of a judicial officer [in particular the finding of the sp. zn. Similarly, in this case, contrary to the appointment of a judge to the Ministry of Justice pursuant to § 68 (1), § 68 (2) (b) of the Law on Courts and Judgments (sub V.a), it is not a breach of Article 89 (2) of the Constitution, since the establishment of the term of office of judicial officials has not yet been dealt with meritantly by the Constitutional Court. Arguments by other States, in particular in the area of Anglo-Saxon law, cannot be relevant in this respect, given the conditions for appointment and the age normally of the appointment of judges and judicial officials. It is also not the task of the Constitutional Court to assess whether there is a problem of" managerial wear "or not, or how many officials and how long they are or are not currently in office.
Constitutional possibility of re-appointment of Presidents and Vice-Presidents of the Courts
65. On this point, the Constitutional Court identified the draft sub-sub II.e, namely the challenge of the possibility of re-appointing the Presidents and Vice-Presidents of the Courts in Paragraph 105a of the Law on Courts and Judges, which the appellant considers to interfere with the independence of judges and courts with regard to the formulation of the reappointment criteria (Subparagraphs 29 and 30 in detail). The arguments put forward by the appellant are the lack of adjustment to the reappointment criteria. These criteria set out in the contested provision of Paragraph 105a of the Law on Courts and Judgments, i.e. the exercise of the office of President or Vice-President without disciplinary action and without final conviction as a criminal offence, cannot, however, be considered as a threat to the independence of the exercise of judicial authority. They cannot be criticised in this respect for the protection of constitutionality, since in this respect the decision is not the result of the free discretion of the executive body, which may serve as a means of possible intervention. In the view of the Constitutional Court, the problem lies in the possibility of re-appointment itself, which can lead judicial officials to proceed in a way that creates the preconditions for their re-appointment. In the absence of a braking system and a balance to the execution with its exclusive decision-making powers in the personnel area, this possibility cannot be excluded. It must therefore be taken into account by the Constitutional Court in proceedings for the abstract control of the contested standards, since legal regulation must not create conditions for the creation of personnel corruption which would jeopardise the constitutionally ordered independence and impartiality of judges. Possible unconstitutional conditions need to be eliminated in such a serious area. The consultative role attaches to the Law on Courts and Judges to the Judicial Councils in § 51 (1) (a), § 52 (1) (a) and § 53 (1) (a) is, in this respect, insufficient guarantee. However, in the case of the Presidents and Vice-Presidents of the Supreme Courts, this possibility is also not regulated. The Constitutional Court points out that, in proceedings for the abstract control of the constitutionality of the standards, the contested legislation assesses, in terms of its potential, the constitutional order to maintain the independence and impartiality of the judge, i.e. it does not examine the specific conduct of several hundred judges who are involved in the judicial administration at the moment. From the indicated point of view, the derogated arrangement is also capable of causing external doubts to the parties to the proceedings.
66. The appellant also disputes the transfer of part of the appointment permits from the Minister of Justice to the President of the Republic, which is not equipped to monitor the activities of judicial officers. However, this can hardly serve as a reason for the Constitutional Court to declare such a transfer unconstitutional in the case of the Supreme and Regional Courts with regard to the constitutional establishment of these authorisations in the Constitution. In addition, it should be noted that the appointment of such officials does not fall within the scope of the uncontraacted competences of the President of the Republic under Article 62 of the Constitution, but rather under Article 63 (3) of the Constitution in conjunction with Article 91 (2) of the Constitution. Finally, as in other contexts, the appointment of the President of the Republic must be seen in the context of the principles of organisation and the functioning of the judiciary enshrined in the Constitution. The appellant's objection that the sensitivity of this topic is further enhanced by the maintenance of the judges' traineeships at the Ministry of Justice must, however, be noted that this objection will become devoid of purpose.
Constitution of transitional provisions for the establishment of the terms of office of Presidents and Vice-Presidents of the Courts
67. The applicant further challenges the transitional provisions in paragraphs 4, 5, 6, 7, 8, 9, 10 and 11 of Article II of Part One of Act No 314 / 2008 Coll. to establish the term of office of the presiding courts which are shorter than the newly appointed term of office of the relevant officials. It remains for the Constitutional Court to say that a transitional period cannot in itself be unconstitutional, unless it is disproportionate to the actual term of office. Such a discrepancy has not been established with regard to the ratio of 19 years of office and 1 year of transitional period for officials appointed until 1989, 18 years of office and 2 years of transitional period for officials appointed in 1990, 14 to 17 years of office and 3 years of transitional period for officials appointed between 1991 and 1994, 10 to 13 years of office and 4 years of transitional period for officials appointed between 1995 and 1998, 8 to 9 years of office and 5 years of transitional period for officials appointed between 1999 and 2000, 6 to 7 years of service and 6 years of transitional period for functionalities appointed between 2001 and 2002 and transitional period of office for functionalists appointed from 2003 to the effectiveness of Act No 314 / 2008 Coll. Therefore, the Constitutional Court rejected the application to repeal the transitional provisions for the establishment of the terms of office of the Presidents of the Courts in paragraphs 4, 5, 6, 7, 8, 9, 10 and 11 of Article II of Part One of Law No 314 / 2008 Coll. as unfounded.
68. As regards the transitional provision for the establishment of the term of office of the President and Vice-President of the Supreme Court in point 11 of Article II of Part One of Act No 314 / 2008 Coll., the Constitutional Court concluded that, in the case of the President of the Supreme Court, this discrepancy appeared to be serious, both in terms of time, the ratio of the transitional period to the term of office and in relation to the Vice-President of the Supreme Court and the President of the Supreme Administrative Court. Here, the Constitutional Court agrees with the appellant's argument (sub 32), which points to the circumstances of the case and the abuse of the form of law in a particular case. Therefore, this provision was repealed as a non-constitutional provision because, as a manifestation of the insolence of the legislator, it constitutes an intervention in the rule of law under Article 1 (1) of the Constitution. At the same time, in view of the circumstances of the case, it is a breach of the right of access to public functions on equal terms under Article 21 (4) of the Charter. In view of the circumstances of the case, it is at the same time an inadmissible, hidden form of an individual act directed against a particular person and, therefore, an attempt to intervene in the independence of the exercise of judicial authority.
69. Since the derogation of the transitional provision in paragraph 11 of Article II of Part One of Law No 314 / 2008 Coll. would create inequality, since the President and Vice-President of the Supreme Court would be the only pair of officials in the entire judicial system whose term of office would remain unlimited, i.e. the inequality which could only be constitutionally acceptable, the Constitutional Court took advantage of the possibility of delaying the enforceability of the judgment and did so with a delay of approximately one year from the publication of the finding in the Collection of Laws under Paragraph 58 (1) of the Law. The legislator will have to adjust the term of office of the current Supreme Court officials by way of transitional provisions, as is the case for Supreme Administrative Court officials.
Constitution of the term of office of the President and Vice-President of the Supreme Administrative Court and the possibility of their reappointment
70. Furthermore, for similar reasons as in the case of the Presidents and Vice-Presidents of the District, Regional and Supreme Courts and Supreme Court, the appellant seeks (sub 33) the annulment of the amended provisions of Sections 13 (3) and 13a of Act No. 150 / 2002 Coll., the Administrative Rules, as amended by Act No. 314 / 2008 Coll., i.e. the establishment of a 10-year term of office for the office of President of the Supreme Administrative Court and the possibility of re-appointment to that office. In this case, however, the transitional provision of Article IV of Act No 314 / 2008 Coll.
71. In the case of the President and Vice-President of the Supreme Administrative Court, the Constitutional Court has concluded that this proposal must share the fate of similar proposals in the case of II.d and II.e. Therefore, for the same reasons (see sub 62n.), the proposal was rejected as unfounded as regards the establishment of a term of office of officials of the Supreme Administrative Court. On the contrary, for the same reasons as sub 65, the application for annulment of Paragraph 13a of the Administrative Rules of Procedure was granted. The absence of Article IV of Act No 314 / 2008 Coll., which is a transitional provision to Sections 13 (3) and 13 (a) of the Administrative Rules, is irrelevant in this case, since even if it did not, it would not be possible to decide otherwise, given the wording of Sub 68, when both the term of office and the duration of the 10-year transitional period are in a reciprocal relationship. Finally, the transitional period in this case does not even occur to the appellant, as it itself states that perhaps the constitutionally conformal possibility would be the exhaustion of the entire term of office laid down by law, calculated from the effectiveness of the law. This requirement is met in this case.
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Regulation Information
| Citation | The Constitutional Court found no 294 / 2010 Coll., on the application for annulment of certain provisions of Act No. 6 / 2002 Coll., on the Courts, Judgments, Addresses and Government Administration of the Courts and on the amendment of certain other laws (Act on Courts and Judges), as amended by Act No. 283 / 2008 Coll., as amended by Act No. 200 Coll., as amended by Act No. 150 / 2002 Coll., as amended by Act No. 7 / 2002 Coll., on the Judicial and Government Administration of the Courts, as amended by Act No. 349 / 1999 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 27.10.2010 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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