The Constitutional Court found No. 332 / 2010 Coll.
The Constitutional Court's finding of 29 September 2010, sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
30.11.2010
332
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 33 / 09 on 29 September 2010 in plenary composed of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimir Krok, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of the Supreme Administrative Court filed under Article 95 (2) of the Constitution of the Czech Parliament of the Czech Republic on the abolition of Law No 7 / 2002 Coll., on the proceedings in the case of Judges, of State Representatives and Executators, in the version of Act No 314 / 2008 Coll., with the Chamber of the Parliament of the Parliament of the Czech Republic
as follows:
I. The application for annulment of the provisions of § 21 of Act No. 7 / 2002 Coll., on proceedings in the case of judges, prosecutors and court executors, as amended by Act No. 314 / 2008 Coll., is rejected.
II. The remainder is rejected.
Reasons
Recital of the proposal
1. On 30 October 2009, the Constitutional Court received a request from the Supreme Administrative Court (hereinafter referred to as "the appellant ') for the annulment of Act No. 7 / 2002 Coll., on proceedings in the cases of judges, prosecutors and court executors, as amended by Act No. 314 / 2008 Coll. (hereinafter referred to as" the contested law').
2. The appellant made this proposal after, in the context of its decision-making activities (Case No 11 of the Kss 4 / 2009) in accordance with the provisions of Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') and Article 25 of the contested law, in conjunction with Section 224 (5) of Act No. 141 / 1961 Coll., on criminal proceedings (the Code of Criminal Procedure), as amended, concluded that the provisions of Section 21 of the contested law are contrary to the constitutional order.
3. The appellant stated that, in case sp. zn. 11 Kss 4 / 2009, the decision was taken on the proposal of the Minister of Justice of 16 February 2009 to initiate proceedings for disciplinary liability by JUDr. J. S., Judge of the District Court of Chomutov, brought pursuant to § 8 (2) (b) of the contested law. The Court of Justice of the European Union (hereinafter referred to as "the Court of First Instance '), which is a member of the Court of Justice of the European Union (hereinafter referred to as" the Court of First Instance') and of the Court of Justice of the European Union (hereinafter referred to as "the Court of First Instance ') and of the Court of Justice of the European Union (hereinafter referred to as" the Court of First Instance'). The conflict with the constitutional order was seen by a cart accused of not having an appeal against a decision in a court of law. As the Supreme Administrative Court agreed with this argument, it decided on 19 August 2009 by order No 11 of the Kss 4 / 2009- 89 by interrupting the disciplinary proceedings and by bringing the matter before the Constitutional Court.
4. As indicated above, the appellant considered the fact that the proceedings for the disciplinary liability of judges were only one-stop shop as a central reason for the unconstitutionality of the contested law; According to Paragraph 21 of the contested law, an appeal against a judgment in disciplinary proceedings is not admissible.
5. In the appellant's view, the provision of § 21 of the contested law in disciplinary proceedings is applied within the meaning of Article 95 (2) of the Constitution, § 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, and the case-law of the Constitutional Court interpret these provisions.
6. The application of the provision, which provides for the unequities of the disciplinary proceedings, was seen by the Supreme Administrative Court's disciplinary senate in doing all the necessary actions to establish the facts and the legal situation of the case at one stage, which can be based on a logical interpretation that all the provisions are applied at this very stage of the procedure. If the Senate had not applied them at this single stage of the proceedings, it would not have been applicable at all, which is a conclusion that must be considered absurd.
7. In the event of the adoption of the opposite interpretation, the court would be forced to abide by the law, despite doubts as to whether the one-degree procedure which it conducted was in accordance with the constitutional order, thereby resigning from one of its fundamental tasks. Moreover, it is not possible to raise objections to the unconstitutional nature of the law in further proceedings, as the decision of the Supreme Administrative Court's disciplinary senate concludes and follows no further action.
8. The appellant also drew attention to the fact that, according to the provisions of Paragraph 21 of the contested law, the instruction that appeals are not admissible against the decisions of the Board of Appeal was not considered to be the immediate application of that provision.
9. The appellant further stated that it was fully aware that its proposal falls within the scope of the specific control of standards and that, therefore, it was only entitled to challenge those legal provisions which it applies immediately. In the present case, however, the law as a whole has been challenged, as it is unconstitutional in its complexity. The nature of the proceedings is affected by the fact that no appeal is admissible against the decisions of the Board of Appeal. In this context, he pointed out that the Constitutional Court carried out a similar approach in the case under point Pl ÚS 16 / 99 of 27.6.2001 (N 96 / 22 SbNU 329; 276 / 2001 Coll.) *), in which it was also a specific standard check and the Constitutional Court annulled the entire part of the fifth civil order, including the provisions which should not have been applied in the proceedings. A similar procedure by the Constitutional Court would, according to the appellant, be appropriate in this proceeding.
10. The appellant then explained the reasons which led him to conclude on the unconstitutionality of the one-instance judicial disciplinary procedure. In his view, the accused court is entitled to a fair trial which, in every democratic society, is so important that it cannot be interpreted strictly. In the present case, the very substance of this law was affected. At the same time, the appellant pointed out that it was not "only 'the right to a fair trial within the meaning of Article 36 et seq. The Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter'), but according to the existing case law of the European Court of Human Rights (hereinafter referred to as "the European Court 'or" the ECHR'), also within the meaning of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention '). In support of his claim, he referred to the judgments of the European Court of Justice of Eskelinen and Others against Finland (judgment of 14.4.2007, No 63235 / 00) and in particular Olujić against Croatia (judgment of 5.2.2009, No 2230 / 05).
11. In addition, the appellant considered that the proceedings concerning the disciplinary liability of judges were criminal proceedings within the meaning of Article 6 (1) of the Convention, which, in his view, results from the relevant case-law of the European Court (judgment of 8 June 1976 in Case 5100 / 71 Engel and Others v Netherlands, 5101 / 71, 5102 / 71, 5354 / 72 and 5370 / 72) of the Constitutional Court (judgment of the sp. zn. Pl. ÚS 16 / 99 (see above), Case C. From Article 2 It follows from Protocol 7 to the Convention that the right of appeal is considered to be an indefensible attribute of a fair trial in criminal matters. If Law No 314 / 2008 Coll. amended the model of disciplinary action from two stages to one stage, it was also limited to the access of the court to the court of the court of the court of accused judges; Such a procedure is possible only in compliance with the principle of proportionality (in particular as regards the relationship between the legitimate objective pursued and the resources used). Moreover, it follows from the finding of the Constitutional Court sp. zn. Pl. ÚS 36 / 01 (see below) that the reduction of the level of procedural protection of fundamental rights already reached is not acceptable.
12. In the appellant's view, however, there is no legitimate objective to justify such a change, nor does it result from the explanatory memorandum to Act No 314 / 2008 Coll. (this cannot be the streamlining of justice). In addition, the appellant points out that the right of appeal (except for example, bagatel matters or certain procedural decisions) is a "procedural standard 'and an organic part of the Czech legal order - i.e. not only in criminal matters. According to him, this is also apparent from the finding of the Constitutional Court, sp. zn. Pl. ÚS 16 / 99 (No 276 / 2001 Coll.), which is fully applicable to the present case and according to which there can be no dispute that the requirement to establish a mechanism for the unification of case-law (even if only by way of an appeal or other exceptional appeal) arises from the requirements imposed on a State which defines itself as a state of law, even though the right of appeal is not explicitly protected by the Constitution.
13. The need for an appeal on the basis of which it would be possible to correct the possible errors of a first-degree court is all the greater in the present case because, because of the slight modification of certain procedural institutions in the contested law, the law is being applied appropriately or even to the judicial law making and filling in the right loopholes; These facts make the management of the proceedings substantially difficult.
14. According to the appellant, the fact that, according to the contested law, disciplinary action may also be conducted with judicial officials who determine the course of the courts, while the facts of the disciplinary action are still unclear.
15. Furthermore, the appellant points out that multi-stage disciplinary proceedings with judges are the predominant model in Europe (Hungary, Poland, Slovakia, Slovenia, Spain, somewhat different conditions exist, for example, in France), whereas one-stage proceedings are an exception (the Netherlands and some judges in Austria and Germany). The European Charter on the Statute of Judges also mentions, in Article 5.1, the right of appeal in disciplinary proceedings (which is recalled by the appellant, knowing that it is a formalised document).
16. Therefore, for all the reasons set out above, the Supreme Administrative Court concluded that the contested law had been infringed with the constitutional order, suggesting that the Constitutional Court should abolish it by its finding.
Observations of the parties
17. The Chamber of Deputies of the Parliament of the Czech Republic, in its comments on the proposal of 8 December 2009, signed by the President of the House, Ing. Miloslav Vlček, stated that the draft law, which was published under No 7 / 2002 Coll., was submitted to the Chamber of Deputies by the Government on 20 March 2001 and was then discussed as House Press No. 877. After the first reading, he was ordered to discuss the constitutional committee. The Constitutional Committee discussed this press on 6 October 2001 and adopted a resolution published as print No 877 / 1. At the 39th meeting of the Chamber of Deputies on 24 October 2001, the second reading took place, all the amendments tabled were issued as print No 877 / 2. At the third reading on 30 October 2010, Law No 383 was approved by the required majority.
18. The Senate was passed on on 9 November 2001 and was approved at its 11th meeting on 30 November 2001. On 7 December 2001 the law was delivered to the President of the Republic, who signed it on 20 December 2001.
19. The bill, which was published under No. 314 / 2008 Coll., was submitted to the Chamber of Deputies by the Government on 20 February 2008 and was then discussed as House Press No. 425. After the first reading, he was ordered to discuss the constitutional committee. The Constitutional Committee discussed this press on 22 May 2008. His amendments were delivered to Members as House Press No. 425 / 1. At the 34th session of the Chamber of Deputies on 18 June 2008, the second reading took place and all the amendments tabled were issued as House Press No. 425 / 2. At the third reading on 25 June 2010, Law 242 was approved by the majority required.
20. The Senate was passed on on 2 July 2008 and was approved at its 15th meeting on 16 July 2008. On 28 July 2008, the law was delivered to the President, who signed it on 11 August 2008. It follows from the above that both laws were adopted in accordance with a procedure consistent with the Constitution.
21. The Senate of the Parliament of the Czech Republic, in its observations on the proposal of 2 December 2009, signed by the President of the Senate MUDr. At its 32nd meeting on 28 November 2001, the Senate Constitutional Committee adopted a resolution recommending the rejection of the bill. However, at its 11th meeting on 30 November 2001, the Senate approved the draft law required by a majority.
22. The draft law adopted later under No 314 / 2008 Coll. was forwarded to the Senate on 1 July 2008 and was assigned a number to the Senate. At its 23rd meeting held on 9 July 2008, the Constitutional Committee of the Senate adopted a resolution recommending the draft law to be adopted by the Chamber of Deputies. The Senate Permanent Commission for the Constitution of the Czech Republic and the parliamentary procedure, which adopted an opinion which highlighted certain constitutional deficits of the proposed regulation concerning, in particular, the influence of the power of the judiciary, and also criticised the use of a comprehensive amendment technique in the Chamber of Deputies. However, the question of one-stop shop was not addressed. On 16 July 2008, at its 15th meeting in the 6th term of office, the Senate approved a bill, as referred to by the Chamber of Deputies. At the same time, the Senate pointed out in its observations that the draft law adopted later as No 314 / 2008 Coll. was given considerable attention and this proposal was adopted after careful consideration and knowledge of the issue as well as its constitutional dimension.
Abandonment of oral proceedings
23. All participants agreed to refrain from oral proceedings or did not comment on this question within the time limit set. As the Constitutional Court did not expect further clarification of the case from this hearing, it waived it under the provisions of Paragraph 44 (2) of the Constitutional Court Act.
Derogation of the contested provisions
24. The appellant sought the declaration of the unconstitutionality of the entire Act No. 7 / 2002 Coll., on proceedings in the cases of judges, prosecutors and court executors, as amended by Act No. 314 / 2008 Coll. However, since only his reservations against the provisions of § 21 of this law were justified and the remaining provisions proposed to abolish only because of their "organic concentration 'with the provision cited (without raising any reservations against them), the Constitutional Court will further focus only on the alleged unconstitutionality of the provision of § 21 of the contested law.
25. This provision shall read as follows:
An appeal against a judgment in a disciplinary procedure shall not be admissible. ';
Assessment of the jurisdiction of the Constitutional Court to discuss the application and the applicant's active legitimacy
26. In addition, the Constitutional Court had to consider whether it was entitled to conduct a substantive discussion of the application; In this context, he focused, in particular, on the question of whether the Supreme Administrative Court was actively legitimised for the application.
27. Under Article 95 (2) If the Constitutional Tribunal concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it shall bring the case before the Constitutional Court for consideration. The provisions of Paragraph 64 (3) of the Law on the Constitutional Court further extend this provision, according to which the application for annulment of the law or its individual provisions is also entitled to be lodged by the Court in the context of its decision-making activities under Article 95 (2) of the Constitution.
28. The key question in this context is whether or not the provision of Paragraph 21 of the contested law was actually applied by the Supreme Administrative Court in the legal case in question. In the present case, although it was not a provision directly constituting a direct legal basis, it undoubtedly affected the whole nature of the proceedings brought by the appellant; In the present case, the Constitutional Court therefore interpreted the condition of "applying the law in the resolution of the case '- also for reasons further interpreted - extensively.
29. In favour of the conclusion that the appellant was actively authorised to submit a proposal, there are several arguments. Paragraph 21 of the contested law determines the nature of the whole disciplinary procedure and passes through it from beginning to end. The interpretation that this provision should not have been used in proceedings before the Supreme Administrative Court would have led to the absurd conclusion that that provision was never used because it did not follow any further proceedings before the Supreme Administrative Court.
30. Nor can an argument be accepted that it is not necessary to provide synergies to the general court, as the accused himself is entitled to challenge the decision of the Board of Appeal of a constitutional complaint, possibly linked to the proposal to abolish the law. Such an interpretation would, on the one hand, deny the purpose of the provisions of Article 95 (2) of the Constitution (cf., et seq.) and, at the same time, ignore that, in the view of the Constitutional Court, if Paragraph 21 of the contested law was not applied by the Supreme Administrative Court, it would hardly be possible for a person accused to be accused of one instance in the proceedings. The application of the law in the proceedings (generally before the General Court) is a condition common to the application pursuant to the provisions of § 64 (3) and § 74 of the Law on the Constitutional Court [cf., for example, the finding of sp. zn. III. ÚS 207 / 97 of 25.6.1998 (N 77 / 11 SbNU 205, 214)]. It follows, logically, that if the Constitutional Court found that the provision of Paragraph 21 of the contested law should not have been applied in proceedings before the Supreme Administrative Court, it would essentially exclude the possibility of carrying out a specific check on the constitutionality, even if it is a provision which is conceivable that it might interfere with the fundamental rights of the accused. The only possible way to initiate a specific control of the standards would be to file a manifestly inadmissible appeal against the decision of the Supreme Administrative Court against the accused (probably through the Supreme Administrative Court), with the fact that only then would the court itself, or after rejecting the appeal of the accused (together with a constitutional complaint), file a motion to repeal the law. But forcing a court or complainant to take such a prima facie action would be an expression of overstretched formalism; The "provocation 'of such a procedure is certainly not and cannot be intended to formulate the provisions of Paragraph 64 (3) of the Constitutional Court Act.
31. Furthermore, it should be recalled that the purpose of the provision of Article 95 (2) of the Constitution is to open up an area for constitutional dialogue between the general courts and the Constitutional Court and to ensure, in a more general manner, the internal integrity of the rule of law and the protection of constitutionality. In other words, the purpose of this provision is to prevent a situation in which a general court would have to conduct proceedings under the provisions of the law which, in its view, are contrary to the constitutional order (if, however, the constitutionality of these provisions has no longer been confirmed by the Constitutional Court). The purpose of the provision thus cited is contradicted by the interpretation by which the Constitutional Court could reject a review of the legal provision, which thus significantly affects the nature of the proceedings before the General Court, and whose possible unconstitutionality would call into question the constitutional conformity of the entire procedure and of any acts taken in it substantially into question. By rejecting the proposal, the Constitutional Court would mislead its role in the constitutional dialogue and would force the General Court to conduct proceedings of unconstitutional nature which the Constitutional Court would be convinced of.
32. In addition, it can be noted that the Board of Appeal of the Supreme Administrative Court would be forced to apply the provisions of Paragraph 21 of the contested law directly in the formulation of a lesson which is also a binding part of the decision in the present case, where the appeal is not admissible under the law (cf. Paragraph 19 (5) of the contested law).
33. For all the above reasons, the Constitutional Court concludes that the Supreme Administrative Court has been actively authorised to file an application for annulment of Paragraph 21 of the contested law. However, the active legitimacy to challenge the entire law does not correspond to the Supreme Administrative Court, since all its other provisions are undoubtedly not applied by it within the meaning of Article 64 (3) of the Constitutional Court Act. The implementation of a specific control of the standards under the provision cited by the Law on the Constitutional Court requires the appellant to clearly identify the provisions of the law which it considers to be unconstitutional, to comment on their application in the current proceedings and to justify the alleged unconstitutionality of those provisions. However, the appellant thus challenged only Article 21 of the contested law. In addition, he added that the law is unconstitutional in its complexity, because it is said that the nature of the proceedings is affected by the fact that no appeal is admissible against the decisions of the Senate. However, such a vague reference to the unconstitutionality of the whole law, in which it is not distinguished between the various provisions of the contested law and their nature, is not sufficient to establish active legitimacy in the procedure for the specific control of standards under the provisions of Section 64 (3) of the Constitutional Court Act. The opposite interpretation would lead to absurd consequences (the Constitutional Court would also have to deal with completely general and unfounded proposals to repeal the law or even more laws).
34. The Constitutional Court therefore concludes that it accepts the proposal submitted as a proposal for a qualified substantive hearing and decision only in part against the provisions of Paragraph 21 of the contested law; in the remainder, the application was submitted by a person manifestly unauthorised to do so.
Acceptance procedure
35. The Constitutional Court, as laid down in Paragraph 68 (2) of the Law on the Constitutional Court, subsequently examined whether the contested law had been adopted within the limits of the Constitution laid down by competence and in a constitutional manner. It was based on further cited reports and comments from both chambers of Parliament of the Czech Republic. From the stenographer's report from the 39th meeting of the Chamber of Deputies held on 30 October 2001 The Constitutional Court found that Law No 7 / 2002 Coll. tabled by the Government (Press No 877) was adopted by the Chamber of Deputies of the Czech Parliament at third reading in vote No 383, when 170 of the 180 Members present were in favour and opposed by nobody. It follows from the short-term report of the 11th Senate meeting held on 30 November 2001 that the bill was passed on 9 November 2001 and was approved at its 11th meeting on 30 November 2001 in the version referred to by the Chamber of Deputies (Senate Resolution 222); in favour of the proposal, 50 of the 65 senators present have been declared and no one has. On 7 December 2001 the law was served on the President of the Republic, who signed it on 20 December 2001. The constitutional procedure prescribed for the adoption of the law was followed, as was its publication, since it was signed by the President of the Chamber of Deputies, the President of the Republic and the Prime Minister (Article 51 of the Constitution) and was declared in the Collection of Laws (Article 52 (2) of the Constitution) in the amount of 4, 2002, sent out on 11 January 2002. On 1 April 2002 this law became effective.
36. From the shorthand report of the 34th meeting of the Chamber of Deputies, the Constitutional Court found that Law No 314 / 2008 Coll. was submitted to the Chamber of Deputies by the Government as a document No 425. After the first reading, he was ordered to discuss the constitutional committee. The Constitutional Committee discussed this press on 22 May 2008. His amendments (so-called comprehensive amendment) were delivered to Members as House Press No. 425 / 1. A second reading took place at the 34th session of the Chamber of Deputies on 18 June 2008 and all the amendments tabled were issued as House Press No. 425 / 2. The Act, as amended by the Comprehensive Amendment, was adopted by the Chamber of Deputies of the Parliament of the Czech Republic at third reading in vote 242 when 109 of the 155 Members present were in favour and opposed to 8. The report of the 15th Senate meeting held on 16 July 2008 shows that the Senate draft law was passed on 2 July 2008 and was approved at its 15th meeting on 16 July 2008 as referred by the Chamber of Deputies (Senate Resolution No 44); in favour of the proposal, 35 in favour and against 12 of the 54 senators present. On 28 July 2008, the law was served on the President of the Republic, who signed it on 11 August 2008. The constitutional procedure prescribed for the adoption of the law was followed, as was its publication, since it was signed by the President of the Chamber of Deputies, the President of the Republic and the Prime Minister (Article 51 of the Constitution) and was published in the Collection of Laws (Article 52 (2) of the Constitution) in the year 101, 2008, sent out on 21 August 2008. On 1 October 2008 this law became effective.
37. The Constitutional Court therefore concludes that Law No 7 / 2002 Coll. and its amendment implemented by Act No 314 / 2008 Coll., were adopted in a constitutional manner and therefore accepted a substantive review of the application. This conclusion does not change the fact that the Constitutional Committee submitted a so-called comprehensive amendment to the draft law and that Law No 314 / 2008 Coll. was adopted as amended by that amendment.
38. In assessing this question, the Constitutional Court takes the view that any amendment tabled by an authorised body in accordance with Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, as amended, (hereinafter referred to as the Rules of Procedure of the Chamber of Deputies) is admissible. The Constitutional Court has already defined exceptions to this principle in its earlier caselaw. First of all, it is necessary to insist that "the amendment only amends the proposed legislation, i.e. in accordance with the requirements of the so-called" narrow relationship rule, "according to which the amendment must relate to the same subject matter of the proposal which is currently being discussed in the legislative process, the amendment should not deviate from the restricted space reserved for amendments in the form of an extensive overrun of the subject matter of the draft law under discussion '[Opinion No 77 / 06 of 15 February 2007 (N 30 / 44 of the SbNU 349; 37 / 2007 Coll.]. This conclusion follows from the principle of the material rule of law in which" the law in the formal sense cannot be seen (...) as a mere carrier of various changes made across the rule of law. On the contrary, the materially perceived rule of law requires that the law be a predictable consistent source of law in terms of form and content.' It followed this case-law - as regards the claims for amendments - also in the finding of the sp. zn. These legal conclusions - even if formulated in relation to the provisions of Rule 63 (1) (5) of the Rules of Procedure of the Chamber of Deputies - will then also apply with regard to the amendment under Rule 92 (1) of the Rules of Procedure of the Chamber of Deputies.
39. In the present case, however, it is not disputed that the comprehensive amendment to the draft law was factually closely related (it was a matter of adapting the model of the administration of the judiciary and related issues), and therefore there is no room for the application of the caselaw cited. It cannot be said, however, that by submitting a comprehensive amendment to a constitutional committee, the rules on the legislative initiative (which do not belong to the committee) are being circumvented. It is fundamentally impossible to identify (albeit complex) an amendment with the draft law. The legislative initiative includes the power to decide on the substantive scope of the issue to be addressed by the Chamber of Deputies (Parliament). The committee of the Chamber of Deputies (nor does the committee of constitutional law as in the present case) have this authorisation; If the amendment submitted by him deviates materially from the issue defined by the draft law, it would be a procedure prohibited by the Constitutional Court, which results from the caselaw cited above (cf. Moreover, the Constitutional Court observes that each of the members of the Constitutional Law Committee has legislative initiatives by law, and the ban on the submission of comprehensive amendments by the Chamber of Deputies would therefore not be of fundamental importance in practice.
40. Therefore, the Constitutional Court considers the constitutional enforcement of the powers of the Chamber of Deputies under Paragraph 92 (1) of the Rules of Procedure to be a constitutional conformal exercise for the reasons set out above.
Meritorious review of the proposal
41. After assessing the constitutionality of the procedure for the adoption of the contested law, the Constitutional Court focused on its substantive compliance with the Constitution. In the assessment of the disciplinary procedure with judges of general courts, two sets of questions are essential from a constitutional point of view. From the point of view of the system, the regulation of disciplinary proceedings must reflect the constitutionally anchored independence of the courts (Article 81 of the Constitution) and the judge (Article 82 of the Constitution), and, in an individual level, the right to a fair trial must be guaranteed to the accused person (in particular Article 36 et seq. of the Charter and Article 6 of the Convention).
42. The Constitutional Court, however, opposes the view that the unilateral nature of the proceedings alone is not liable to jeopardise the independence of the judge (moreover, the appellant argued that this would only be the case on condition that the right to a fair trial was infringed in the proceedings). From this point of view, only the circumstances which the Constitutional Court is not able to deal with separately in this procedure, in particular the composition, nature and position of the authority which decides on the charge of disciplinary action, as well as the status and authorisation of the persons on whose application the disciplinary action may be initiated, are relevant.
43. That is why the Constitutional Court has turned its attention to the alleged contradiction of one-stop shop with the right of the accused to a fair trial. In the view of the Constitutional Court, disciplinary proceedings are governed by the provisions of Article 36 et seq. of the Charter (cf. the order of the Constitutional Court sp. zn. II. ÚS 471 / 09, unpublished in SbNU, available at http: / / nalus.ujud.cz), as well as by the provisions of Article 6 of the Convention (cf. European Court of Human Rights judgment of 5 February 2009, Olujic v Croatia, no. 2230 / 05, § 44, "Olujic v Croatia '; all - and further cited - European Court judgments available at www.echr.coe.int).
44. In view of the alleged reason for the unconstitutionality - that is, the absence of the possibility of defending itself against a decision by proper remedy - the Constitutional Court examined whether the right to appeal was guaranteed by the relevant provisions of the constitutional order to the accused. As the Constitutional Court has already stated earlier (cf. The exception in this regard is Article 2 (1) of Protocol No 7 to the Convention, under which "Anyone who is found guilty of a crime by a court has the right to review a statement of guilt or punishment by a court of a higher degree '. Before assessing the application of any exemptions under the second paragraph of this provision (" Derogations from this right are permitted in the case of minor offences which qualify as such by law, or where the person concerned has been tried at first instance by the Supreme Court or has been found guilty and convicted following an appeal against an acquittal judgment'), the Constitutional Court had to consider whether Article 2 of Protocol 7 to the Convention was applicable at all.
45. The application of the provision in question shall be subject to consideration only in cases involving "criminal charges" within the meaning of Article 6 (1) of the Convention. The question of whether disciplinary proceedings with judges can be regarded as criminal proceedings has so far been addressed only marginally by the Constitutional Court (cf. Although the Constitutional Court has made it clear that it is willing - in view of the case law of the European Court - to treat certain disciplinary proceedings as criminal proceedings [cf. sp. zn. In the sp. zn. Pl. ÚS 16 / 99 The Constitutional Court stated that: "(...) criminal charges within the meaning of Article 6 (1) are, according to the ECHR's case-law, practically proceedings for all sanctions imposed by administrative authorities on natural persons for offences or other administrative offences, as well as penalties imposed on disciplinary or disciplinary (civil servants, soldiers, police officers) or imposed on members of chambers of forced membership in similar proceedings." However, this finding cannot be interpreted as automatically including all disciplinary proceedings (using the term "practical 'and in particular a reference to the case law of the European Court of Justice, with which the nature of the disciplinary proceedings must always be confronted). This interpretation is also supported by the following caselaw, in which the idea that not every disciplinary procedure is subject to criminal proceedings is expressed more explicitly [cf. Case C-181 / 01 ÚS 181 / 01:" If the above statutory provision allows a decision on a mere written warning (note - in disciplinary proceedings) to be removed from the judicial review, which in itself cannot yet be regarded as an unconstitutional one, in the opinion of the Constitutional Court...'. However, the nature of the disciplinary procedure has not been explicitly addressed by the Constitutional Court as a judge or other disciplinary procedure fully comparable to that under the contested law. In the judgment of the European Court of Human Rights No III. ÚS 1076 / 07 of 21. 1. 2008 (N 14 / 48 SbNU 145) on the subject, it merely stated that "Although the case law of the European Court of Human Rights does not give an unequivocal answer to the question whether Article 6 of the Convention in the criminal branch (" on the legality of any criminal charges') relied on by the complainant, applicable to disciplinary proceedings with the judge, in which a disciplinary measure consisting in the termination of the function of a judge, is the applicability of the fundamental procedural cauction in the criminal proceedings of judges and of state representatives, according to which the constitutional order of the Czech Republic, as stated in the previous paragraph, this fact reflects the subconstitutional law in the form of Article 25 of Law No 7 / 2002 Coll. It is worth noting in this respect that the same applies to disciplinary proceedings with the judges of the Constitutional Court (§ 138 of the Law on the Constitutional Court). However, this does not mean that disciplinary action is the same as criminal action; '; In the light of the foregoing, it can therefore be concluded that the present case-law of the Constitutional Court does not provide a clear answer to the question of whether disciplinary proceedings with judges (comparable to those currently under appeal) can be characterised as criminal proceedings.
46. For this reason, too, the Constitutional Court has examined whether the contested regulation complies with the characteristics of the criminal proceedings resulting from the case law of the European Court of Justice, to which the Constitutional Court explicitly refers in its decisions (cf. above). The Court of First Instance has consistently held that the judgment of the European Court of Justice of 8 June 1976, Engel and Others against the Netherlands, No 5100 / 71, 5101 / 71, 5102 / 71, 5354 / 72 and 5370 / 72 ("Engel versus the Netherlands'), which, when assessing whether criminal charges are being made, takes into account three criteria which do not need to be met cumulatively - that is to say, the fulfilment of one of those conditions (cf.
47. In the first step of the so-called Engel test, it is examined whether an offence is regulated by criminal law. If so, Article 6 shall be applied in its "criminal branch" without further application. If this is not the case, it must be assessed whether the material conditions are met (cf. According to the judgment of the European Court of Justice of Oztürk v Germany (judgment of 18 February 1984, No 8544 / 79), the decriminalisation of an offence previously governed by criminal law cannot lead to the application of Article 6 of the Convention being terminated.
48. In the next step of this test, the "nature 'of the offence is analysed; where it is criminal (considered, inter alia, for the purposes of regulation, the common legal traditions of the Member States), the proceedings for it are criminal proceedings within the meaning of Article 6 of the Convention.
49. The third criterion is the nature and gravity of the pending sanction. Practically always criminal charges if they threaten to deprive the defendant of his personal freedom (e.g. Engel against the Netherlands); In order to fulfil this condition, there is also sufficient cash penalty.
50. However, it follows from the above that not every public law sanction imposed for infringement of a legal obligation is capable of "pulling" an offence into the category of criminal charges. The European Court of Human Rights therefore assesses, in any particular case, the nature and seriousness of the pending sanction. In the case of Engel against the Netherlands, for example, it played a major role that the complainants were punished (even if in the system of Dutch law the disciplinary penalty) by whom they were deprived of their personal freedom; having regard to the importance the European Court of Justice attaches to personal freedom (see, for example, judgment of 18 June 1971 in De Wilde, Ooms and Versyp v Belgium, No 2832 / 66, 2835 / 66 and 2899 / 66), then the proceedings with the complainants had to be treated as criminal proceedings.
51. In other decisions of the European Court of Justice, the idea of what the nature and minimum seriousness of the sanction must be (in order to continue to be able to talk about criminal charges) was further refined. In the case of Garyfallou AÆ v Greece (judgment of the European Court of 24 September 1997, No 18996 / 91), it was a fine of 500 000 drachmas (which could have been imposed up to three times as much in the proceedings), for which there was a risk of non-payment of the property or even a penalty for management. In the case of Kadubec v Slovakia (§ 52), in which the imposition of a relatively marginal fine (1000 Sk) and the obligation to pay the costs, the European Court of First Instance then avoided the solution to that question, since, although in its view, a relatively moderate penalty was sufficient to determine the nature of the criminal charge to fulfil the second criterion (nature of the offence; similarly, the judgment of the European Court of 25 August 1987, Lutz v Germany, No 9912 / 82, § 55).
52. As regards not the seriousness but the nature of the sanction, it is essential for the present case that the third criterion is not normally met in respect of a penalty which is not typical of the criminal law system but rather of the disciplinary procedure (cf. Kid, C. J. F. Disciplinary Proceedings and the Right to Fair Criminal Trial under the European Convention on Human Rights. The International and Comparative Law Quarterly. Vol. 36, n. 4, p. 859). In this regard, it is also important whether the penalty is aimed at all or rather a group of persons with a special status (judgment of the European Court of Justice of 14 January 2010, Tsony Tsonya v Bulgaria, No 2376 / 03, § 49). Therefore, in the Commission's decision-making work on human rights following Engel's judgment against the Netherlands, the relatively serious pending sanctions (such as the loss of employment) were not regarded as criminal sanctions, as they lacked a criminal nature (cf. Commission decision of 8.10.1980, X. against the United Kingdom, No 8496 / 79, in which the police officer was relieved of his duties due to theft of petrol). The European Court has not yet deviated from this approach (cf. further).
53. In the light of the above criteria, the Constitutional Court has concluded that disciplinary action against judges of general courts is not a criminal case. First of all, from the point of view of the rule of law on proceedings, it is not criminal, on which nothing can change the fact that the contested regulation allows the subsidiary application of the criminal order. Proceedings with judges are, by their nature, classically disciplinary and not criminal; it, while deciding on liability for failure to comply with obligations laid down by law, concerns only specific duties of a judge. Even the third criterion (nature and severity of the penalty) of the Engel test is not fulfilled, although its fulfilment is usually "able to bring" disciplinary proceedings into the category of criminal charges. In fact, only penalties which alter the conditions of the legal relationship between the judge and the State or which terminate the legal relationship may be imposed for infringement of the duties of the judge. In accordance with the provisions of § 88 of Act No. 6 / 2002 Coll., on Courts, Judges, sitting and administration of the courts and amending certain other laws (the Law on Courts and Courts), as amended, the judge may be reprimanded, dismissed from the office of President of the Senate, dismissed by the office of judge or reduced salary by up to 30% for a maximum period of 1 year and in the event of a retrial committed by the judge at the time before the death of the disciplinary measure, for a maximum of 2 years. The penalties which may be imposed on a court of law affect only the conditions (reduction of salary) and the existence (withdrawal from the office of judge) of the legal relationship between the State and the judge; Therefore, the nature of the case is not a criminal penalty but a disciplinary one. For example, the judge cannot be fined as a criminal penalty, but the "only" can be reduced or the increase in the pay coefficient removed.
54. It should also be noted that the European Court itself, in the Olujić case against Croatia, was confronted with the question whether the provisions of Article 6 of the Convention on disciplinary proceedings with Croatian judges were explicitly recognised in its "civil 'or" criminal' part only in the application of the civil part (§ 44). The nature of the sanctions that could be imposed in the disciplinary proceedings in Croatia was fully comparable in this case to the legal arrangements currently under consideration (reprimand, withdrawal of part of the salary or withdrawal from the duties of judge; cf. Article 25 Zakona o Državnom sudbenom vijeću, No 58 / 1993, in its original version). The complainant was even fined by the strictest - appeal from the position of judge (Olujić v Croatia, § 18).
55. The Constitutional Court therefore concludes that disciplinary action with a judge is not a criminal case within the meaning of Article 6 of the Convention and Article 2 of Protocol No 7 to the Convention. Therefore, without being able to deal with the application of any exemptions under Article 2 Protocol No 7 to the Convention, left to say that the right of appeal against a decision in this procedure is not so explicitly guaranteed in constitutional order.
56. The Constitutional Court also focused on the question of whether the right to appeal against the decisions of the Board of Appeal could be inferred from the constitutional order. However, neither of the arguments put forward by the Constitutional Court can fully attest to it, nor has it found any other arguments to justify compliance with the application. As previously stated [e.g. the finding of sp. zn. III. While this does not, on the one hand, deprive the court of the obligation to interpret and apply the conditions for the authorisation of this device - if the State has created it in its legislature - so as to respect the maximum right to a fair trial, but, on the other hand, it is not the legislator's duty to introduce an appeal against a decision in any proceedings.
57. The Constitutional Court recalls in this context that it is not its task (as a constitutional authority) to assess the appropriateness of the model of disciplinary action adopted. Although it may be attractive to the appellant that the right of appeal against a substantive judicial decision is a rule of Czech law with few exceptions; Nor can the obligation of appeal always be inferred from this fact.
58. In the present case, the Constitutional Court considers it essential that the legislator's decision to exclude the possibility of appeal is not arbitrary or illogical and does not deny the principles on which the Czech legal order is based; they can be supported by objectively existing specificities of disciplinary action. It is not possible to accept the appellant's argument that it is contrary to the principle of a rational legislator, if one law imposes a binding two-instance position in any case where the "value of the dispute" exceeds CZK 2,000 (today CZK 10,000), and, on the other hand, when property sanctions, professional and prestigious sanctions can be more intense and emotional, the two-instance situation is not guaranteed. Such a comparison can only be made by reason of the nature of the case for procedures which are comparable (eligible compensations). The disciplinary procedure with the Judges of the General Courts is a very specific procedure which cannot be compared to "classical 'judicial proceedings; This is not a" classic' civil or criminal case (cf. above), but a procedure with persons in a service relationship with the State. In this context, reference can also be made to decades of hesitation as to whether similar procedures are to be included under Article 6 of the Convention (cf. above).
59. Furthermore, it cannot be overlooked that disciplinary proceedings are conducted before the Supreme Administrative Court, i.e. the Supreme Court, with the Law under review (§ 3, second sentence). The Supreme Administrative Court is expressly referred to as a disciplinary court. Nevertheless, the Constitutional Court has made the character of the Boards of Appeal subject to review from a constitutional point of view, as it would conclude that these tribunals are not a court, it would not be able to stand the unilateral nature of the proceedings before them.
60. In the view of the Constitutional Court, the Senate of the Supreme Administrative Court is a "court" within the meaning of the provisions of Article 6 of the Convention and, in particular, Article 81 of the Constitution, on which the conclusion does not change either the fact that its members are not only judges of that court, but also judges of other courts and representatives of other legal professions. In fact, the Supreme Administrative Court's chairperson fulfils both the formal and material characteristics of the court. The Constitutional Court considers it necessary, in particular, to mention that the Tender Chamber is an organisational part of the Supreme Administrative Court and its President is always a judge (Supreme Administrative Court or Supreme Court). The Constitutional Court points to the existence of systemic guarantees of independence and impartiality which apply to the Supreme Administrative Court's disciplinary senate as well as to a court composed solely of judges, which is reflected by the legislature in particular in paragraphs 5 and 6 of the contested law. Moreover, the possibility for other citizens to take part in court decisions alongside the judges arises from Article 94 (2) of the Constitution; the very fact that the Chamber is composed of both the Judges and the sitting, thus ex constitutione is not capable of preventing the classification of a Chamber as a "court '. The Constitutional Court itself has never in the past questioned the qualifications of chambers of judges and sitting as" courts' and, for reasons set out, does not do so either.
61. In addition to the arguments set out above, it should be added that, even if the Constitutional Court had concluded that the procedure under the contested law was criminal proceedings in its nature, it would not necessarily lead that conclusion to its deregulation without further action, whether in whole or in the context of the provisions of its § 21. This can also be supported by the text of Article 2 (2) Protocol No 7 to the Convention, according to which, if even certain proceedings were criminal proceedings, the right of appeal against a decision in that proceedings may not be guaranteed if the Supreme Court at first instance decided. In view of this (i.e. the decision-making of the Supreme Court at first instance), it is also not acceptable to accept the argument that the unilateral nature of the proceedings could (should) be signed on the resulting quality of the decision. It can also be recalled that a similar model was also chosen for proceedings against the President of the Republic for a constitutional action before the Constitutional Court (Article 65 (2) of the Constitution).
62. In the view of the Constitutional Court, the unconstitutional nature of the contested law (or its provision of Paragraph 21) does not cause the fact that the one-instance model of disciplinary action was introduced after the two-instance model had already existed for some time. This change cannot be seen - as the appellant does - as a constitutionally forbidden reduction of the standard of procedural protection of fundamental rights [finding sp. zn. It cannot simply be said that it is a reduction in the standard of procedural protection of fundamental rights, as a reform of the whole model consisting, inter alia, of the unification of disciplinary proceedings or of the change in the cast of the Boards of Appeal has been carried out; the introduction of a single instance procedure has been balanced by the fact that all proceedings are now before the Supreme Administrative Court, which, as a supreme judicial instance, should provide sufficient guarantees for a fair trial. Obiter dictum of the finding sp. zn. Pl. ÚS 36 / 01 generally does not prohibit a change in the rules for the conduct of proceedings (naturally, if the newly introduced rules themselves are not unconstitutional), but must be interpreted in the light of the circumstances of the present case.
63. Nor can the appellant be agreed with if it claims that there were no legitimate grounds for introducing an existing model of disciplinary proceedings. The amendments in this area implemented by Act No 314 / 2008 Coll. were not only aimed at speeding up the proceedings, but also at consolidating or introducing an "out-of-justice 'element, the presence of which strengthens public confidence in decision-making in disciplinary matters [cf. Korbel, F. Efforts to optimise the administration of the judiciary and their projection into legislation. in: Acid, J. (ed.) Looking for an optimal model of judicial administration for the Czech Republic. Senate Office, Prague, 2008, p. 36]. These requirements are met by the existing model under which the Supreme Administrative Court is a disciplinary court and the impossibility of appeal against its decision is only a logical consequence of its position in the judicial system.
64. Nor does the appellant's other argument that the finding of the Constitutional Court sp. zn. Pl. ÚS 16 / 99 (see above) generally criticises the unilateral nature of the proceedings cannot be accepted. In this finding, the Constitutional Court criticised, in particular, the absence of a unifying mechanism and, as a result, the existence of "regional law '. These conclusions cannot be reconciled with the general criticism of one-stop shop and can therefore not be covered by the present case. In it - and not only in it - in view of the fact that the proceedings are held before a single court of national application, the risk of legal differences is, on the contrary, significantly reduced.
65. Although the appellant of the analysis provided shows that in the European countries, the possibility of appeal against decisions in disciplinary proceedings with judges is rather a rule, it is not possible to overlook that the single instance model is present, for example, in the Netherlands, Germany or Austria (although later mentioned only in relation to some judges), and in Cyprus, where such disciplinary powers belong to the judicial administration [cf. Fencl, V., Klíma, K. Constitutional question of the independence of the judiciary (comparative view of the so-called judicial councils) in: Zála, J. (ed.) Search for an optimal model of the administration of justice for the Czech Republic. Senate Office, Prague, 2008, p. 84]; Moreover, the comparative argument cannot be considered to be extremely conclusive, but merely as a support method for the interpretation of constitutional order.
66. As regards the appellant of the soft law cited, Article 5.1 of the European Charter on the Statute of Judges indeed guarantees the right to appeal against the decision of the executive authority, the Tribunal or any other body, such as the recommendation of the Committee of Ministers of 13 October 1994 No 94, adopted at the 516th session, under Rule VI (3), states that a court-law body or a special body whose decision should be subject to judicial review, where a review by a superior judicial authority is not necessary where a high-ranking (generally supreme) court takes its decisions at first instance. The European Charter on the Statute of Judges shall then remain silent on the parties to the right of appeal where the Supreme Court decides at first instance. Therefore, there is no clear consensus in the 'soft law' of the Council of Europe on this issue. However, notwithstanding the interpretation of these instruments, the Constitutional Court states that, if not, the documents cited could serve only as a support argument in the interpretation of constitutional order.
Summary
67. The Constitutional Court therefore summarises that the legislation which does not allow the accused to appeal against the decision of the Board of Appeal to the court is not unconstitutional; the general right of appeal is not enshrined in constitutional order.
68. The provisions of Article 2 (1) of Protocol No 7 to the Convention are not applicable to disciplinary proceedings under Act No 7 / 2002 Coll.; in the light of the criteria laid down by the European Court of Justice, such proceedings cannot be qualified as criminal proceedings. It is a disciplinary procedure, both in terms of the legal system and in terms of their nature. The nature of the sanctions is also disciplinary.
69. The right to appeal in these proceedings cannot be inferred from the fact that the possibility of appeal against a judicial decision is a rule in the Czech legal order. In fact, disciplinary proceedings with judges of general courts, prosecutors and court executors are entirely specific proceedings which are conducted before a special Chamber of the Supreme Administrative Court and which cannot be compared to ordinary civil or criminal proceedings in its nature.
70. Moreover, the change in the model of disciplinary action by the judges of the general courts pursued a legitimate objective, which was not only to speed up proceedings, but also to unify them and to introduce a "out-of-justice" element, the presence of which strengthens public confidence in decision-making in disciplinary matters.
Conclusion
71. The Constitutional Court notes that no grounds have been found to comply with the application of the Supreme Administrative Court to abolish the provisions of Paragraph 21 of the contested law and therefore the application was rejected in this section (Paragraph 70 (2) of the Constitutional Court Act); To the rest, the application was rejected as a person manifestly unlawful [Paragraph 43 (1) (c), in conjunction with the provision of Section 43 (2) (b) of the Constitutional Court Act].
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the Judges Stanislav Balík, Vlasta Formánková, Dagmar Lastovecká, Jiří Mucha, Jiří Nykodemou and Michaela Židlická to decide.
*) NB: Collection of finds and orders of the Constitutional Court, Volume 22, Found No. 96, p. 329, published under No. 276 / 2001 Coll.
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Regulation Information
| Citation | The Constitutional Court found no. 332 / 2010 Coll., on the application for annulment of Act No 7 / 2002 Coll., on proceedings in the cases of judges, prosecutors and court executors, as amended by Act No 314 / 2008 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 30.11.2010 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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