The Constitutional Court found No. 309 / 2010 Coll.
The Constitutional Court found of 7 September 2010 on the application for annulment of Section 80 (5) (b) of Act No. 6 / 2002 Coll., on Courts, Judges, Addresses and Government Administration of Courts and on the amendment of certain other laws (Law on Courts and Judges)
Valid
The Constitutional Tribunal found
Text versions:
15.11.2010
309
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 7 September 2010 in plenary in the composition of Stanislav Balík, František Duchoň, Vlasta Formánková (Judge), Vojen Güttler, Ivan Janů, Vladimir Krůk, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodemí, Pavel Rychetský, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of the Supreme Court to abolish the provisions of § 80 paragraph 5 (b) of Act No. 6 / 2002 Coll., on the courts, judges, sitting and the cases in which will be represented by others (the Law on Judicial and Judicial Courts), in the text "may not represent the Members of the Parliament of the Czech Republic and the Chamber of the Parliament as participants in the proceedings of the Czech Republic.
as follows:
Motion denied.
Reasons
Subject matter and arguments of the appellant
1. By a proposal received by the Constitutional Court on 13 August 2009 pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and the provisions of Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Disciplinary Chamber of the Supreme Court, for which it is acting, acting by Dr. Jiří Pácal, President of the Board of Appeal, (hereinafter referred to as "the Proposer") sought the annulment of the provisions of Paragraph 80 (5) (b) of Act No. 6 / 2002 Coll.
2. In the application, the appellant stated that by decision of the census of the Supreme Court of Olomouc of 16 February 2009 sp. zn. 1 Ds 7 / 2008, it was decided in the disciplinary proceedings against JUDr. M. N., the Judge of the Regional Court in Brno (hereinafter referred to as "the accused") that the accused person was guilty of accepting, contrary to the contested provision, a mandate to inspect the file (including the receipt of copies of documents and submissions) in cases brought before the Regional Court in Brno by Ing. E. Z., R. N., JUDr D. N., M. N. and P. K., and subsequently carried out that inspection. Thus he blatantly violated the duties of the judge and endangered his confidence in independent, impartial and fair judgment of the courts, thereby committing disciplinary action pursuant to § 87 of Act No. 6 / 2002 Coll., as amended, for which he was ordered under § 88 (1) (a) of that law - reprimand.
3. Against the decision of the Supreme Court of Olomouc disciplinary senate, the defendant lodged an appeal with the defendant within the legal period, in which he also proposed the annulment of the contested provision. The Board of Appeal of the Supreme Court discussed the case at the oral hearing held on 27 May 2009 and decided that the disciplinary procedure provided for in Article 224 (5) of Act No 141 / 1961 Coll., on criminal proceedings of the Court of First Instance (the Code of Criminal Procedure), as amended, having regard to the provisions of Article 25 of Act No 7 / 2002 Coll., on proceedings in the cases of judges, prosecutors and prosecutors, as amended, is hereby suspended and the case is brought to the Constitutional Court as it considers that the contested provision is contrary to the first sentence of Article 82 (3) of the Constitution and Article 44 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), and further to Article 3 (1), Article 10 (2), Article 11 (1), first sentence and Article 37 (3) of the Charter.
4. The appellant considers that the contested provision is inadmissible and beyond the legal rules of a higher legal force (Article 82 (3) of the Constitution, Article 44, first sentence, before the semicolon of the Charter, which have the same legal force), to exclude judges from being able, in court proceedings or as agents of the injured or interested persons in judicial or administrative proceedings, to take any action on the basis of full authority in the representation of persons close to them (as defined in Section 116 of Law 40 / 1964 Coll., the Civil Code, as amended by the law, which the law considers relatives in a number of direct, siblings and spouse, a partner, while others are considered to be close to each other, if the harm suffered by one of them, and the other person concerned. In the light of the prohibition thus formulated, the judge would not be subject to the provisions of Paragraph 44 (1) of Act No. 99 / 1963 Coll., the Civil Code (hereinafter referred to as "o. s. s. '), which provides that the parties and their representatives have the right to consult the court file, with the exception of the voting protocol, and to make extracts and copies thereof, and therefore, on the basis of the power of attorney given to him by persons close to him (or other persons), the judge would not be able to consult the court file and make copies thereof in the judicial or administrative proceedings in which those persons are parties.
5. According to the appellant, it is not possible to find any basis in the standards of higher legal force (in the Constitution and the Charter) for the law to make a distinction between cases in which the judge imposes a further party to the proceedings in which the judge is a party to the proceedings and, where appropriate, as a legal representative, and cases where he should represent the parties to the proceedings or act as an agent of the injured or interested persons in judicial or administrative proceedings, in particular as regards close persons, and provided for an exemption for the first group to represent a judge, since, even in such cases, the conduct of the judge cannot be prejudicial to the dignity of the judicial function and to compromise or breach of confidence in independent, impartial and fair judgment. If the Judge does not exercise State authority and acts as a citizen in judicial or administrative proceedings, it is not decisive whether he has the status of a party, a legal representative of a party, a representative of another party to the proceedings in which a Judge, intervener or general agent is a party by virtue of his power of attorney.
Conditions for the applicant's active legitimacy
6. The Constitutional Court first examined whether the formal grounds for the substantive assessment of the application were met and therefore addressed the question whether the appellant was actively legitimate in the present case in order to submit the application.
7. According to Article 95 (2) of the Constitution on which the application is based, if the court concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it shall bring the matter before the Constitutional Court. The Constitutional Court finds that direct application of the contested provision by the appellant is necessary in the case at hand. The application was therefore submitted by the applicant.
Recital of essential parts of the observations of the parties and of the Ministry of Justice
8. Under the provisions of Sections 42 (4) and 69 (1) of the Constitutional Court Act, the Constitutional Court sent the proposal in question to the Chamber of Deputies and to the Senate of the Parliament of the Czech Republic.
9. The President of the Chamber of Deputies of the Parliament of the Czech Republic, Ing. Miloslav Vlček, in his statement of 14 September 2009, detailed the legislative procedure for the adoption of the Law on Courts and Judges and stated that the legislature acted in the belief that the law adopted was in accordance with the Constitution and the Constitution. It is up to the Constitutional Court to examine the constitutionality of the contested provision in the context of the proposal and to give its decision.
10. The President of the Senate of the Parliament of the Czech Republic MUDr. The bill was subjected to an honest and extensive debate in the Senate, influenced by the fact that the Senate has a new comprehensive legislative act in front of it concerning the institutional aspect of judicial power (particularly its personnel substrate) and showing, to some extent, reform parameters. According to the draft law, the way to improve the situation in the judiciary was to lead "through the person (personality) of the judge," which was subject not only to the adoption of the Judicial Code, but also to the enactment of the so-called compulsory lifelong learning of judges and a multi-stage assessment of their professional competence. The last two institutes became a discussion base at the 11th Senate meeting, but they directed the senators rather than a debate over individual institutes or provisions of the draft law on general considerations. Thus, the ideas of speakers about the profile of the Czech judge grew in the assessment of the state of Czech justice at all or on issues of division of power, without touching any more closely the rules of conduct of the judge in personal life, the issue of the action of the judge as arbitrator or mediator of the solution of the legal dispute or representation by the judge as adopted in the contested provision was not mentioned. The legal barrier preventing judges from acting as an arbitrator or mediator in a legal dispute, as well as the ban on representing the parties to the legal proceedings, or acting as agent of the injured or interested party, is part of a comprehensive block of provisions defining the rights and obligations of the judges and the alternates (79 to 83 of Act No. 6 / 2002 Coll.). This passage of the law, also known in the legal jargon as the "Judicial Code," has become the legal basis for assessing the disciplinary responsibility of the judge for the criminal offence. In the coming years, the disciplinary responsibility of the judges has become the subject of parliamentary discussions (which have resulted in legislative changes), with the legislator's main focus being the disciplinary responsibility of the courts' officials, or its aspects organised. In other words, the legislation contained in the part of the provisions proposed for annulment has so far been implicitly regarded by the legislator as compliant and stabilised.
11. The Constitutional Court has delivered a proposal to the Ministry of Justice in accordance with Paragraph 48 (2) of the Constitutional Court Act. In its observations on the proposal of 26 October 2009, the Minister of Justice, JUDr. Daniela Kovářová, stated that Article 82 (3) of the Constitution and Article 44 of the Charter could not be relied upon. Article 82 of the Constitution deals with the independence and impartiality of judges in the performance of their duties. It is therefore clear that the incompatibility of the exercise of the judicial function with other activities may arise under Article 82 (3) The Constitution provides, in particular, for the purpose of maintaining the independence and impartiality of the judge, which is also clearly stated by the Law on Courts and Judges in § 85. If the Charter lays down in Article 44 in general what rights the law may restrict to judges, that provision may not be considered as if it provided for a further definition of constitutional authorisation under Article 82 (3) of the Constitution. Nor does the Minister of Justice find a reasonable contradiction in the contested provision with Article 37 (2) of the Charter, since otherwise it would be necessary to import the inconstitutionality of any restriction on the provision of legal aid contained in procedural rules. The Minister of Justice believes that preventing a judge from representing a judge in proceedings before courts and administrative bodies, or the fact that a third party cannot be represented in proceedings by a judge, does not constitute a pleasure, but rather a guarantee of his constitutionally anchored impartiality and independence. The interest in protecting the independence and impartiality of judges is more intense than the interest in equal treatment in access to legal aid. If the appellant contends with Article 11 (1), first sentence, of the Charter, that is not to be borne by the appellant, since, in proceedings involving property owned by a judge, that judge should also be a party to the proceedings or be able to be a party to the proceedings, and in this case it may, on the basis of the applicable legislation, become a party to the proceedings. In conclusion, the Minister of Justice proposed the rejection of the proposal and noted that the threat to the independence or impartiality of the judge could occur both in the performance of the duties of judge and in the context of his personal life, which is remembered both by Law No 6 / 2002 Coll. in paragraphs 1, 4 and 5 of Section 80 and by the Constitution by providing that the impartiality of the judge must not be jeopardised by anyone - regardless of whether that threat occurs in the public or private sphere. The fact that the judge may represent himself in the proceedings in which he is a party must be brought into connection with § 85 of Act No. 6 / 2002 Coll., under which the judge can exercise the administration of his own property.
Derogation of the contested provision
12. Paragraph 80 (5) of Law No 6 / 2002 Coll. reads:
"(5) The judge is obliged in his personal life to ensure that his behaviour does not undermine the dignity of the judicial function and does not threaten or undermine confidence in independent, impartial and fair decision-making by the courts. In particular, the Judge
(a) may not allow its function to be misused to promote private interests;
(b) it may not act as an agent or intermediary for the resolution of a legal dispute, represent the parties to the legal proceedings or represent the injured or interested persons in judicial or administrative proceedings, except in the case of legal representation and cases involving the representation of another party in which the Judge himself is a party. "
Constitutional conformity of the legislative process
13. Under Article 68 (2) of the Law on the Constitutional Court, the Constitutional Court, in addition to assessing the conformity of the contested provision with the constitutional order, ascertains whether the law has been adopted and issued within the limits of the Constitution laid down by competence and by the constitutional procedure.
14. Given that the appellant did not object to a defect in the legislative process or to a breach of the legislature's constitutional competence, it is not necessary to examine this issue further in the light of the principles of the procedural economy, and it is sufficient, in addition to taking into account the observations submitted by the Chamber of Deputies and the Senate of the Parliament of the Czech Republic, to formally verify the conduct of the legislative process from a publicly available source at http: / / www.psp.cz.
15. Act No. 6 / 2002 Coll. was approved by the Chamber of Deputies on 30 October 2001 and by the Senate on 30 November 2001. The President signed the Act on 20 December 2001 and the Act was published in the amount of 4 / 2002 of the Collection of Laws on page 162. The Constitutional Court therefore finds that the law has been adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.
16. Following this finding, the Constitutional Court took the view that the content of the contested provision was consistent with the constitutional order of the Czech Republic [Article 87 (1) (a) of the Constitution].
Abandonment of oral proceedings
17. Under Article 44 (2) of Law 182 / 1993, the Constitutional Court may, with the consent of the parties, refrain from oral proceedings if it is not possible to expect further clarification of the case. Since both the appellant and the parties to the proceedings expressed their consent to the termination of the oral hearing, the oral hearing in the present case was dismissed.
Content compliance of the contested legal provision with the constitutional order
18. After the Constitutional Court assessed the arguments of the appellant contained in the proposal and confronted them with the contested provision of Paragraph 80 (5) (b) of Act No. 6 / 2002 Coll., it states that the proposal is not justified.
19. The appellant considers that the contested provision is contrary to Article 82 (3) of the Constitution, Article 44 first sentence before the centrepiece of the Charter and Articles 3 (1), 10 (2), 11 (1) first sentence, and Article 37 (2) and (3) of the Charter, both in relation to persons close to the Judge and in relation to others. It sees, in particular, that the Constitution expressly states in Article 82 (3) activities which are incompatible with the function of a judge, while allowing the law to extend the scope of incompatible activities further, and that the Charter, in the first sentence of Article 44, provides that the law may limit the right of judges and prosecutors to business and other economic activities and the right referred to in Article 20 (2) of the Charter, i.e. the right to establish and pool political parties and movements therein. In accordance with Article 1 (1) of the Constitutional Act No. 23 / 1991 Coll., establishing the Charter of Fundamental Rights and Freedoms as a constitutional law of the Federal Assembly of the Czech and Slovak Federal Republic, constitutional laws, other laws and other legislation, their interpretation and application must be consistent with the Charter.
20. According to Article 2 (3) of the Charter: "Anyone may do what is not prohibited by law and no one must be forced to do what the law does not impose."
21. Article 82 (3) of the Constitution reads: "The function of judge shall not be compatible with that of the President of the Republic, of a Member of Parliament or with any public office; the law shall specify which other activities the exercise of the judicial function is incompatible with. ';
22. Article 3 (1) of the Charter reads: "Fundamental rights and freedoms shall be guaranteed to all without distinction sex, race, colour, language, faith and religion, political or other thinking, national or social origin, membership of a national or ethnic minority, property, genus or other status."
23. Article 4 (1), (2), (3) and (4) of the Charter reads: "(1) Obligations may be imposed only on the basis of the law and within its limits and only with respect to fundamental rights and freedoms.
(2) Under the conditions laid down in the Charter of Fundamental Rights and Freedoms, the limits of fundamental rights and freedoms may only be regulated by law.
(3) Legal restrictions on fundamental rights and freedoms must apply equally to all cases which fulfil the conditions laid down.
(4) In applying the provisions on the limits of fundamental rights and freedoms, their substance and their meaning must be investigated. Such restrictions shall not be misused for purposes other than those for which they have been established. ';
24. Article 10 (2) of the Charter reads: "Everyone has the right to protection from unauthorised interference in private and family life."
25. Article 11 (1) of the First Charter reads: "Everyone has the right to own property."
26. Article 37 (2) and (3) of the Charter reads: "(2) Everyone has the right to legal aid in proceedings before courts, other national or public authorities, since the beginning of the proceedings.
(3) All parties are equal in the proceedings. "
27. Article 44, first sentence, before the semicolon of the Charter reads: "The law may restrict the right to business and other economic activity and the law referred to in Article 20 (2) to judges and prosecutors."
28. According to Paragraph 27 (1) of the CS: "A participant may also be represented by any natural person having full legal capacity. This representative can only act personally." According to paragraph 2 of this provision: "The Court of First Instance shall decide that the representation referred to in paragraph 1 shall not be permitted if the representative is not likely to be fit for proper representation or if he reacts as a representative in different cases."
29. Pursuant to Article 44 (1) of the EC Treaty: "Participants and their representatives have the right to consult and make extracts and copies of the court file, with the exception of the voting protocol."
30. The Constitution is therefore expressly stated that the law sets out which other activities (other than the President of the Republic, a Member of Parliament and any public office) are incompatible with the exercise of the judicial function. The Charter provides, mutatis mutandis, in Article 44, first sentence before the semicolon that the law may restrict the right to business and other economic activity and the law referred to in Article 20 (2) to judges and prosecutors. In the light of the provisions cited, it cannot be seen that Act No. 6 / 2002 Coll. in the contested provision, it prohibits a judge from acting as an agent or intermediary in a legal dispute, representing the parties to the legal proceedings or representing the injured or interested persons in a judicial or administrative procedure, with the exception of legal representation and cases involving the representation of another party, in which the Judge is a party, that is to say, the specific right of a judge in personal life. Both the Constitution and the Charter, the legal rules of higher legal force, expressly allow the law to impose further restrictions on the activities of a judge. If this is provided for in order not to distort and threaten the dignity of the judicial function and the confidence in the independent, impartial and fair judgment of the courts by Law No 6 / 2002 Coll. in the contested provision, it cannot be concluded that this was done in accordance with the constitutional order. Paragraph 27 (1) and Article 44 (1) of the EC Treaty merely provide for the general representation of the parties in the proceedings on the basis of force majeure and the right of access to the file and therefore cannot result in the alleged unconstitutionality of the contested provision.
31. The contested provision is intended primarily to protect the impartiality of judicial decision-making, but also the dignity of the judicial function. As regards the constitutionally protected principle of independence and impartiality guaranteed by the judges in Article 81 and Article 82 (1) of the Constitution, the Constitutional Court has already dealt with this principle in a number of its decisions, such as the finding of 18 June 2002 in the sp. zn. Only an impartial court is capable of providing genuine justice to all and all, with one means of impartiality to the court guaranteeing judicial independence. The independence of the judge, as well as the independence of the judicial authority, is linked to and in the relationship between cross-compliance, including the impartiality of the judge and the court. 'In the context of the material security of judicial independence, the Constitutional Court stated in its judgment of 11 June 2003 sp. zn. Independence of judges is also characterised by a number of constitutional guarantees, such as appointment without a time limit or prohibition of transfer and appeal against its will.' In the finding of 2 March 2010 sp. zn. Pl. ÚS 13 / 08 (No 104 / 2010 Coll.), the Constitutional Court stated that: "Although the independence of judges is conditional on their moral integrity and professional level, it is also linked to their adequate material collateral." In the decision of 21 January 2008 sp. zn. III. ÚS 1076 / 07 (N 14 / 48 SbNU 145) In paragraph 36, the Constitutional Court recalled that: "In view of the proper functioning of the democratic rule of law, only persons with high moral integrity, aware of the high level of personal responsibility attached to their status, and determined to perform their duties solely in accordance with the principles of the rule of law and their conscience, must perform the functions of judges. '
32. The Constitutional Court has also expressed its views in many decisions on the principle of equality between the parties. For example, in a finding of 19 May 2010, sp. zn. The nature of the material rule of law then also radiates with it a combined maximum, according to which if someone acts in (legitimate) confidence in a law (or in the law at all), he should not be disappointed in that trust [finding sp. zn. IV. ÚS 215 / 94 of 8.6.1995 (N 30 / 3 of SbNU 227)]. As is apparent from the Constitutional Court's decision-making practice, the distinction resulting in a breach of the principle of equality is inadmissible in two respects: it may act both as an Accesorial principle which prohibits discrimination against persons in the exercise of their fundamental rights and, secondly, as a non-Accesorial principle enshrined in Article 1 of the Charter, which consists in excluding the legislature from discriminating between the rights of certain groups of entities. In other words, in the latter case it is a fundamental right of equality before the law guaranteed by Article 26 of the International Covenant on Civil and Political Rights, which is part of the Czech constitutional order (see the find sp. zn.
33. In its established case-law, the Constitutional Court has repeatedly concluded that state power - in relation to regulatory legal acts in particular - is governed by the order of proportionality (proportionality) and the prohibition of legislative arbitrage. In doubt about the constitutionality of the law, the Constitutional Court therefore assesses the purpose (objective) of such intervention in relation to the resources used, the criterion for this assessment being the principle of proportionality, which is manifested by the prohibition of excessive interference in rights and freedoms [cf.
34. The meaning and purpose of the prohibition on the representation of the parties to the proceedings (both close persons and others), which, in the appellant's view, infringes the alleged rights of the judge, must therefore, in order to assess a standard means of ensuring one and limiting another fundamental right or freedom, fulfil the aspects which, for the principle of proportionality, arise.
35. These considerations are in line with the review of the constitutionality of the sub-constitutional regulation, which is based on a methodology based on three steps: the first is the assessment of the sub-constitutional right by an aspect of suitability, the content of which is the assessment of the chosen regulatory instrument in view of the possible fulfilment of the intended purpose. If the legislative instrument is not capable of achieving the intended purpose, the legislature is a manifestation of insolence, which is considered contradictory to the rule of law. The second step in the application of the principle of proportionality is the assessment of the sub-constitutional right by the aspect of necessity, which monitors the analysis of the pluralism of possible normative means in relation to the intended purpose and their subsidiarity in terms of the limitation of the Constitution for a protected value - a fundamental right or a public good. If the legislature of the intended purpose is to achieve an alternative normative means, then the constitutionally conformist is the one who limits the constitutional value to the minimum. If the sub-constitutional right under consideration, on the one hand, pursues the protection of one of the constitutionally protected values, on the other hand, it limits another, the third aspect of the principle of proportionality, which is proportionality in the narrower sense, is the methodology for considering these in a conflict of standing constitutional values.
36. At the first stage of the review, the Constitutional Court examines the contested provision in relation to the eligibility of its purpose (suitability of the chosen instrument). The Constitutional Court considers that a provision which restricts a judge from representing the parties to the legal proceedings, with the exception of legal representation and cases in which the other party to the proceedings, in which he is a party to the proceedings himself, is certainly a legitimate objective and the contested provision is eligible to comply with the requirements laid down in Articles 1 and 4 of the Constitution. Such a measure is capable of achieving the capacity to fulfil the purpose (intended objective), which is to protect confidence in independent, impartial and fair judicial decisions.
37. However, it is also necessary to examine the need for the chosen device from the point of view of its proportionality in relation to the fundamental rights which the appellant considers to be infringed, i.e. the right to legal aid in proceedings before the courts, the right to own the property and the equality of the parties. From the point of view of the principle of necessity, there is a rational link between the objective and the means chosen to enforce it. The resources used to achieve the objective are those which are gentle and necessary in relation to the claimed fundamental rights and freedoms concerned.
38. In the light of the third criterion, namely the proportionality criteria (in the narrower sense), the damage to the fundamental right must not be disproportionate in relation to the intended objective, i.e. measures limiting fundamental human rights and freedoms, if there is a conflict of fundamental right or freedom with the public interest, it must not exceed, by its negative consequences, the positive effects which constitute a public interest in those measures. The Constitutional Court did not find that the contested provision, compared with other measures enabling the same objective to be achieved by non-constitutional procedure, restricted the right of a judge to a fair trial or contrary to constitutional order. The legislator was obliged to ensure that the procedure chosen was based on objective and reasonable grounds (legitimate objective of the legislator) and that there was a relationship of proportionality between that objective and the means to achieve it (legal advantage). The Constitutional Court recognises that high moral requirements are imposed on the person of the judge and, in order to avoid conflicts of interest, the judge may, in practice, only engage in professional judicial activities, but the contested provision is in no way contrary to the proportionality of the funds used in relation to the requirement that the function of the Judge should not be misused to promote his private interests. In the light of the third principle of proportionality (in the narrowest sense), it can be concluded that, in the present case, the measures selected are proportionate in relation to the intended objective. The contested provision pursues a legitimate objective, which is to ensure that a judge's duty in his personal life does not undermine the dignity of the judicial function and does not jeopardise or undermine confidence in independent, impartial and fair decision-making of the courts (cf. Sections 74 (1) and 85 of Act No. 6 / 2002 Coll.).
39. The Constitutional Court has not found that the contested provision infringes the principle of proportionality in respect of all three components under consideration, nor that its application would result in abuse of the right protected by constitutional order. The appellant is mistaken in alleging that, if a judge does not exercise state authority and acts as a citizen in judicial or administrative proceedings, it is not decisive whether he has the status of a party, a legal representative of a party, a representative of another party in which a Judge, an intervener or a general agent is a party by virtue of the power conferred on him. The function of a Judge is a public office and, if a Judge could represent even those close to the Court, it cannot be ruled out that the dignity of the Judge's office and the risk or breach of trust in independent, impartial and fair decision-making of the courts could be compromised.
40. It follows that the contested provision, which contains the specific obligations of judges in personal life, cannot be considered unilaterally as the appellant does, but in the context of the content of the constitutional principle of the independence of the judiciary. The Constitutional Court, in its findings [for example, of 14 July 2005 sp. zn. Pl. The demand for independent justice stems from the guarantee of fair, impartial and objective judicial proceedings and the safeguarding of the rights and freedoms of individuals by a judge separated from political power. The independence of judges is guaranteed by guarantees of a special legal status (which must include inconsistencies, irrevocability, integrity), guarantees of organisational and functional independence from the bodies representing legislative and, in particular, executive powers, and separation of the judiciary from legislative and executive powers (in particular, application of the principle of incompatibility). From the point of view of content, judicial independence is ensured only by the binding of judges by law, i.e. excluding any elements of subordination in judicial decision-making. Contrary to legislation and the executive body, a clear requirement of completed higher education, the composition of a judicial examination and continuing vocational training is imposed on the judge. The obvious requirement for judges is their moral integrity, which the law requires and assumes. The position of judge is also linked to many restrictive measures that interfere with the personal life of the judge, including restrictions on secondary income, except for the management of its own assets and activities of scientific, educational, literary, publicity and artistic, activities in the advisory bodies of the Ministry, the Government and the bodies of both chambers of Parliament, but provided that such activities do not undermine the dignity of the judicial function or threaten confidence in the independence and impartiality of the judiciary. That's why the state has committed itself to providing material security with dignity.
41. Pursuant to the first sentence of Article 6 (1) of the First European Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"): "Everyone has the right to have his case dealt with in a fair, public and proportionate manner by an independent and impartial court, by a law which decides on his or her civil rights or obligations or the legality of any criminal charges against him." It is therefore a condition for each court to be fair as a whole and to guarantee the principle of equality of arms - one of the aspects of the broader concept of the right to fair trial, which requires each party to be able to defend its case under conditions which do not put it in an unfavourable situation compared to its opponent (Foucher v France, ECHR judgment of 18 March 1997, in ASPI).
42. The European Court of Human Rights has repeatedly stated that it is essential that the courts in democratic society should inspire public confidence and therefore stress that the court must be impartial. The impartiality shall be assessed in two steps within the meaning of Article 6 (1) of the Convention: the first shall consist in seeking to ascertain personally the conviction of the Judge concerned in the case in question; the second is aimed at ensuring that the person of the judge offers sufficient guarantees of the exclusion of all reasonable doubts in this regard. Judges are considered impartial until proven otherwise. The objective assessment of impartiality shall determine whether, irrespective of the conduct of the judge, the impartiality of the judge may be called into question on the basis of certain verifiable facts, even if the appearance may be of some significance. It follows that, when assessing whether there is a legitimate reason for doubting the impartiality of a judge in the present case, it is considered whether the concerns of a person can be considered objectively justified (cf. Morel v France, judgment of 6 June 2000 No 34130 / 96, in database HUDOC http: / / www. / echr.coe. int / ECHR; Hamlet against the Czech Republic, judgment of 7 June 2005, in RoESLP Sv. 4, No 343 / 2005, p. 181 and in ASPI). Thus, in accordance with the case law of the European Court of Human Rights, the Constitutional Court considers that the so-called phenomenon aspect of the case is a valid criterion, namely the real existence of objective circumstances that could lead to doubts as to whether there is a legitimate reason to fear a judicial authority from a lack of independence or impartiality.
43. Based on the indicated aspects of the constitutional assessment of the case, the Constitutional Court did not find any contradiction between the contested provision and the constitutional order of the Czech Republic. In the view of the Constitutional Court, the legislative arrangements restricting representation by a judge and the role of a judge in the capacity of an arbitrator or an intermediary to resolve a legal dispute did not go beyond the limits of respect for the principles of the rule of law and, therefore, the application for annulment of the contested provision under Paragraph 70 (2) of the Constitutional Court Act was rejected as unfounded.
President of the Constitutional Court:
JUDr. Rychetský v. r.
*) NB: Collection of finds and orders of the Constitutional Court, Volume 26, Found No. 78, p. 273, published under No. 349 / 2002 Coll.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found No. 309 / 2010 Coll., on the application for annulment of Section 80 (5) (b) of Act No. 6 / 2002 Coll., on Courts, Judges, Addresses and Government of Courts and on the amendment of certain other laws (Law on Courts and Judges) |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 15.11.2010 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0