The Constitutional Court found No 397 / 2006 Coll.
The Constitutional Court found of 11 July 2006 on the application for annulment of Article 106 (1) of Act No. 6 / 2002 Coll., on Courts, Judges, Addresses and Government of the Courts and on the amendment of certain other laws (Law on Courts and Judges), as amended by Act No. 192 / 2003 Coll.
Valid
The Constitutional Tribunal found
Text versions:
09.08.2006
397
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 11 July 2006 in plenary by President Pavel Rychetský and the Judges Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimir Krorka, Dagmar Lastovecká, Jan Musil, Jiří Nykodemí, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of JUDr I. B. on the abolition of § 106 paragraph 1 of Act No. 6 / 2002 Coll., on the courts, judges, sitting and state administration of the courts and on the amendment of certain other laws (Act on Judicial and Judicial), as amended by Act No. 192 / 2003 Coll.,
as follows:
Paragraph 106 (1) of Act No. 6 / 2002 Coll., on Courts, Judgments, Addresses and Government Administration of the Courts, and on the amendment of certain other laws (Law on Courts and Judges), as amended by Act No. 192 / 2003 Coll., is hereby repealed on the date of the publication of this finding in the Collection of Laws.
Reasons
On 8 February 2006, the Constitutional Court received a constitutional complaint from the complainant JUDr. I. B. against the decision of the President of the Republic of 30 January 2006 No. KPR 966 / 2006, the countersigned Prime Minister, which was removed from the office of President of the Supreme Court, associated with the proposal to abolish the provisions of Section 106 (1) of Act No. 6 / 2002 Coll., on Judgments, Judges, Addresses and Government Administration of the Courts and on the amendment of certain other laws (Law on Courts and Courts), as amended (hereinafter referred to as "Law on Courts and Courts'), and the application for suspension of this Decision. The complainant justifies its proposal, in particular, by violating the principle of division of power in the State and threatening the independence of the judicial authority, the application of Article 106 (1) of the Law on Courts and Courts meant to deprive it of the right to judicial protection and thereby impacted on a constitutionally guaranteed right within the meaning of Article 36 of the Charter of Fundamental Rights and Freedoms.
The second Chamber of the Constitutional Court found no reason to reject a constitutional complaint pursuant to Article 43 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court '), since the application of the contested provision gave rise to a fact which is the subject of a constitutional complaint, the formal conditions for its hearing pursuant to Article 43 (1) and the constitutional complaint was not found to be manifestly unfounded pursuant to Article 43 (2) (a). Therefore, the Second Chamber, within the meaning of Article 78 (1) of the Constitutional Complaints Act, suspended the proceedings and the proposal for the annulment of the law, i.e. the provision of Article 106 (1) of the Law on Courts and Judgments, referred the plenary of the Constitutional Court to a decision pursuant to Article 87 (1) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution).
The Constitutional Court's Board ruled in the procedure on the specific control of the standards, while in the case-law concerning the consequences of the finding in the present proceedings, based on the fulfilment of the conditions of Paragraph 74 of the Law on the Constitutional Court (see, in particular, the findings in points (i) to (vi) of the ÚS 102 / 2000, (ii) to (iii), (iv) to (iv) to (v), (v) to (v), (v) to (v), (v) to (v), (v) to (v) to (v) to (v), (v) to (v), (v) to (v) to (v), the Constitutional Court of Justice of the Constitutional Court of First Instance of Justice of Justice of the European Union), the European Union, the European Union (v), the Constitutional Court of Justice of Justice of Justice of the European Union, the European Union. This type of procedure before the Constitutional Court falls within the area of so-called specific control of standards, where the initiative for the Constitutional Court to rule on the constitutionality of the contested law is a specific case of judgment in which the contested provision was applied. It is true that compliance with the application for annulment cannot automatically be considered to satisfy the constitutional complaint itself. It is not entirely possible to rule out - albeit exceptional - when even after the annulment of the contested provision of legislation, the Constitutional Court rejects the constitutional complaint as unfounded, as it finds that, in a particular case, the annulled provision did not affect the constitutionally protected fundamental rights of the complainant; At the same time, however, it is clear that when deciding on a constitutional complaint, the Constitutional Court must take into account the findings of the standard control procedure. Otherwise, the constitutional complaint lodged would not fulfil its subjective function, i.e. the function of protecting the constitutionally guaranteed fundamental rights or freedoms of the complainant. 'To that effect, the Constitutional Court adds that a constitutional complaint is well lodged and admissible as a precondition for the initiation of proceedings on this type of specific standard control.
The Constitutional Court, in accordance with Article 69 of the Law on the Constitutional Court, requested the observations of the parties - both chambers of Parliament.
In its observations of 5 April 2006, the Chamber of Deputies described the reasons for adopting the amendment to the Law on Courts and Judgments in connection with the finding of the Constitutional Court, sp. pl. ÚS 7 / 02, with reference to the passages of the explanatory memorandum which stated that the proposed regulation was not contrary to international treaties or to the legal acts of the European Communities. The proposal submitted is neither contrary to the European Agreement on the Association of the Czech Republic with the European Communities nor to the general principles of European Community law, according to the explanatory memorandum. The proposed regulation respects the recommendations of the Council of Europe Ministerial Committee (No 94) 12 on the independence, effectiveness and role of judges and does not conflict with other international acts relating to the independence of the courts, judges and the exercise of the judiciary.
The Chamber of Deputies further stated that the amendment to the Law on Courts and Judges was adopted on 10 June 2003 in accordance with the ordinary legislative procedure and the legislature acted in the belief that the law adopted was in line with the Constitution and our legal order. It is therefore up to the Constitutional Court to examine the constitutionality of the contested provision and to give its decision.
In its observations of 10.4.2006, the Senate also summarised the reasons which led to the amendment of the Law on Courts and Judges and the provisions of Section 106 (1).
The Senate discussed the bill at the sixth meeting of the fourth term of office on 29 May 2003 and decided, on the basis of a recommendation from the Constitutional Law Committee, to return the bill to the Chamber of Deputies as amended.
The substance of the case Senate's most important moments in the development of the model of administration of the courts since 1991 until the adoption of the amendment to the Law on Courts and Judges. It shall also recap the powers of the President of the Republic and the Minister of Justice concerning the appointment of the Presidents of the Courts as well as the status of the Presidents of the Courts in the exercise of the administration of the State Courts. As a result, the complainant notes that, in its submissions, the complainant does not dispute its position as Judge and President of the Court in its two-time capacity, so the Senate limited its observations only to the termination of the function of President of the Court by appeal.
The Senate notes that, when discussing the amendment to the Law on Courts and Judgments, it took the view, following the finding of the Constitutional Court, that, in accordance with Article 7 (2) of the Rules of Procedure, the position that, in a situation where the administration is to be exercised by judicial officials - judges, it is necessary to strengthen their independence from executive powers, at least as far as their appeal is concerned. In the opinion of the Senate, the President and Vice-President of the Court were to be removed from office only by imposing a disciplinary measure following a disciplinary procedure. The reason for the imposition of a punitive measure should have been a serious breach of the statutory obligation in the exercise of the state administration of the court. The Board of Appeal was to decide whether a qualified reason had been fulfilled in a particular case. This was the intention of the amendments with which the Senate brought the Law back to the Chamber of Deputies.
The Constitutional Court subsequently accepted that the amendment to the Law on Courts and Judgments in question had been adopted and issued within the limits of the constitutional competence and in a constitutional manner as the primary criterion of the review provided for in Article 68 (2) of the Law on the Constitutional Court.
The Constitutional Court verified that the amendment to Act No. 6 / 2002 Coll. by Act No. 192 / 2003 Coll. was adopted by the Chamber of Deputies on 13 May 2003, 175 Members were in favour of the proposal and one was against it. On 14 May 2003, the bill was passed on to the Senate, which discussed it on 29 May 2003 and decided by resolution to return the bill to the Chamber of Deputies as amended. 60 of the senators present voted in favour, no one opposed the motion. As part of the completion of the legislative process, it approved on 10 June 2003: The Chamber of Deputies proposed a bill as referred to the Senate. The Act was signed on 18 June 2003 by the President of the Republic, the effective law took place on the day of publication in the Collection of Laws under No. 192 / 2003 Coll., on 1 July 2003.
The Constitutional Court therefore notes that the Law was properly adopted and issued within the meaning of Paragraph 68 (2) of the Constitutional Court Act.
In the context of the legal requirement, the Constitutional Court first defined the facts in terms of the framework of the provision under review and of the relevant provisions of the constitutional laws with which that provision is in conflict.
The subject of the review is the provision of § 106 (1) of Act No. 6 / 2002 Coll., on the Courts, Judges, sitting and administration of the courts, and on the amendment of certain other laws (the Law on Courts and Judges), as amended, and the amendments thereto, the text of which reads: "The President and Vice-President of the Court may be removed from office by the person who appointed him if he or she seriously or repeatedly infringes the statutory obligations in the exercise of the administration of the courts. The President of the College of the Supreme Court or the College of the Supreme Administrative Court may be removed from office by the person who appointed him if he fails to fulfil his duties properly. '
Paragraph 106 (1) of the Law on Courts and Courts challenged the complainant for contradiction with fundamental constitutional principles - namely the principle of division of power in the State and the principle of independence of the judiciary.
The Constitutional Court, by the introduction of a constitutional review in this case, notes that the basic constitutional guarantees of the division of the power of a democratic rule of law are governed by Article 2 (1) of the Constitution: "The people are the source of all state power; The principle of independence of judicial authority shall be governed, in particular, by the provision of Article 81 of the Constitution, under which" the judicial authority shall be exercised by independent courts on behalf of the Republic ', and by the provision of Article 82 of the Constitution, paragraph 1 of which provides: "Judges shall be independent in the performance of their duties. Their impartiality shall not be jeopardised.', and pursuant to paragraph 2 of this Article," A judge may not be appealed against or transferred to another court against his will; the exceptions resulting in particular from disciplinary responsibility shall be laid down by law. '; Another guarantee, which is also intended to ensure the elimination of external influence on the exercise of the judiciary, is Article 82 (3) of the Constitution, according to which "the function of judge is not compatible with the function of President of the Republic, Member of Parliament or with any public office function; the law shall specify which other activities the exercise of the judicial function is incompatible with.';
In this context, the Constitutional Court points out that, in its finding in the case sp. zn. Pl. ÚS 7 / 02 (ECR 26, p. 78; cited under No. 349 / 2002 Coll.), it expressed its general view on the principle of division of power, its historical context and, in particular, stressed that "however, in the field of justice, the democratic state does not seek to maximise the programmes of the courts, and is therefore completely distant from the notion of the judicial state ', it is, on the other hand, obliged to create institutional assumptions for what, as far as concerns the judiciary, applies as a specific and unconditionally, namely the constitution and the escalation of the real independence of the courts, as well as - for stabilising not only their position, but also the entire democratic system, in relation to the legislative and executism - an important State, at the same time. That real independence of the courts is a specific and indispensable attribute of the judicial authority, justified and also required by Article 4 of the Constitution, under which fundamental rights and freedoms are protected by judicial authority, as well as by Article 81 and 82 of the Constitution, according to which the judicial authority is exercised by independent courts on behalf of the Republic, and that judges are independent in the performance of their duties and that their impartiality must not be jeopardised by anyone. The specific feature and content of the judicial authority already stated cannot therefore be questioned, and therefore its basic functions are not compatible with the infiltration of other State power in any way, which is the premise of the Constitutional Charter of the Czechoslovak Republic provided for by Law 121 / 1920 Coll. expressed by the provision of § 96 (1), according to which the judiciary is separate from administration in all tables, in the present Constitution, under Article 82 (3), according to which the function of judge is not compatible with the function of President of the Republic, Member of Parliament or with any public administration function. Thus, the principle of independence of the court is, as already stated, of an unconditional nature excluding the possibility of an executive power'.
One of the basic conditions of rule of law is therefore a strong and independent judiciary. In a State to be regarded as a legal State, a judicial authority must be regarded as one of three powers of equal weight to the power of executive and legislative power, on which the judicial authority must be as independent as possible, while the judicial authority of the particularly emphasised constitutional protection of independence enjoys as one of the three powers. This principle was more or less embodied in most of the world's institutions; sometimes even in those countries where the judiciary was (or was) not effectively independent. There is a danger that this principle will remain, if it is not completed in its own text of the Constitution or at least in the legislation governing the judiciary, other principles that can be drawn from the institutes of most Western European states, as well as from the most important international documents on the issue of the independence of the judiciary, only by theoretical design. In this context, reference can be made, for example, to the European Charter on the Statute for Judges of the Council of Europe adopted during Strasbourg on 8 to 10 July 1998 and to the explanatory memorandum thereto. Within the meaning of Article 1.3 of the Charter on the Statute of Judges of the Council of Europe, it is a necessary requirement to ensure the independence of the judiciary that the conditions affecting the selection, acquisition, appointment, professional procedure or removal of judges allow independence from executive and legislative powers.
From a comparative point of view, it should be noted that there is not a single model of the organisation of the administration of the courts in democratic countries, on the contrary, it is possible to talk about the pluralism of these models. The current systems of European countries are mostly influenced by their constitutional traditions, rather as a result of gradual slow development. With the exception of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and certain recommendations of the Council of Europe or of the UN, there are no common more detailed standards of organisation and administration of the judiciary. This area is not even affected by Community law, the European Community has no competence in this regard.
Despite the pluralism of institutional models of judicial administration, common features can be observed in all European countries or in their groups. In all the countries of the European Union and in most of the new accession countries, the principle of independence of judicial authority, whether at constitutional, legal or practical level, is respected (but it is interpreted differently). The individual independence of each judge is respected; only in some countries is the increased attention paid to the independence of the judiciary as a whole, i.e. as a third power in the state. It is guaranteed either by the transfer of significant powers to the Supreme Council of the judiciary (Italy, France, Spain) or by the distinction between judicial and state administration within the framework of a classic model (Germany, Austria).
The following systems may be distinguished for the models of judicial administration involving the most senior judicial boards (hereinafter referred to as "the Board '):
- a southern model in which the Council has assumed from the Government significant powers in the area of appointment and disciplinary action of judges and judicial officials, but mostly lacks more significant powers in the area of judicial administration (budget, property management)
- the northern model (Sweden, Denmark, Ireland, the Netherlands), in which the Council has mainly economic and administrative powers, largely lacks the powers of personnel
- a combination of both systems of the organisation of the judiciary (e.g. Hungary), where the Council has taken over extensive powers in both areas and is essentially responsible for the judiciary as a whole.
On the contrary, in most Western European countries, the Ministry of Justice and government have retained significant powers and control mechanisms against the judiciary even after the establishment of the Council. This applies to the northern model, where the Council often shares certain powers with the Ministry of Justice and the system operates by mutual agreement. The judges are also represented in all the supreme judicial authorities.
At the level of court proceedings, a traditional system prevails, whereby the President is responsible for all the court agendas. At the same time, the administration of individual courts tends to transfer certain powers to the chief judicial secretary, chancellor, director, etc. These judicial officials, too, mix up their judicial and administrative functions in many countries.
In most European countries, functional solutions are preferred, judicial systems are gradually reformed, the independence of the judge in decision-making is always guaranteed (see Study of the Ministry of Justice - to resolve the situation after the finding of Pr.
From the perspective of the development of legislation in the Czech Republic The Constitutional Court notes that after 1948, the administration of the courts has always been exercised by the chairmen (or vice-chairmen) of the individual courts who were under the supervision of the Ministry of Justice or the Minister of Justice, who was also responsible for their duties.
In the early 1990s, new judicial laws covering the complex issue of the judiciary - Act No. 335 / 1991 Coll., on the Courts and Judges, Act No. 436 / 1991 Coll., on certain measures in the judiciary, on the election of the sitting, their dismissal and appeals from office and on the administration of the courts of the Czech Republic, and Act No. 412 / 1991 Coll., on the disciplinary liability of judges.
These laws maintained the terminology established by Act No 62 / 1961 Coll., on the organisation of courts, which consisted in replacing the term "administration of the courts" (see also Section 38 (1) of Act No 66 / 1952 Coll., on the organisation of the courts which used the previous term) by the term "administration of the courts." At the same time, they took over, in principle, the manner in which the office of judges in terms of the independence of the powers exercised by the Minister of Justice was created and ceased. In the case of the President of the Supreme Court, his choice and appeal by the legislature were gradually replaced by the appointment and dismissal by the President of the Republic, thereby weakening his staffing independence in some sense.
The administration of the courts in the Czech Republic was entrusted at the central level to the Ministry of Justice and its performance was carried out by the Presidents and Vice-Presidents of the Courts either through or under the direct influence of the Ministry of Justice. However, the explicitly stated principle was that the exercise of the state administration of the courts should not interfere with the independence of the courts. In mid-2000, two bills were proposed as an expression of judicial reform, in which, among other changes, a fundamental turn in the administration of the courts was envisaged. The administration of the judiciary should have been distinguished from the administration of the courts. The administration of the judiciary would provide personnel questions to the courts under the aegis of the Supreme Council of the judiciary and the administration would provide material background to the courts through administrative departments subordinate to the Ministry of Justice. This concept has been rejected by the Chamber of Deputies. Attempts for further reform in 2001 petrified in the conditions of the Czech Republic the historical concept of state administration of the courts conducted by the line of the Ministry of Justice - Presidents (Vice-Presidents) of the courts and this concept was subsequently incorporated into the legal regulation which is implemented by the de Hotlata Act No. 6 / 2002 Coll. The President of the Republic did not veto the law, but initiated a review of the law by the Constitutional Court in the framework of the abstract standard control procedure.
This review resulted in the finding of the Constitutional Court, sp. zn. Paragraph 106 (1) was annulled by the Constitutional Court and by another reason, namely, quite general and vague - the principle of legal certainty not corresponding - by stating the reasons leading to the appeal of the presiding courts. The Constitutional Court also stated that the function of the Presidents of the Courts should be considered as a career course of action of a judge and should therefore not be refundable other than for a legally foreseeable reason and procedure in disciplinary proceedings, i.e. by decision of the Court.
The Constitutional Court's response was a governmental amendment to the Law on Courts and Judges, which also concerned the provisions of Paragraph 106 (1) and provided for the possibility of considering the statutory obligations in the exercise of the administration of the Court of Justice as a disciplinary offence in disciplinary proceedings before an independent court, and the penalty should not only have been the removal of the judge, but, in view of the seriousness of the infringement, other measures could have been chosen. In this form, the proposed amendment was not approved by the Chamber of Deputies. The government has put forward a new proposal confirming the current model of state administration. Once again, the principle of 'who appoints, removes' was enforced in the Chamber of Deputies, and Paragraph 106 (1) of the Law on Courts and Judges was adopted in the wording in which it was challenged by the appellant.
Thus, as compared to the original text, the amendment to the Law on Courts and Judgments only narrowed the possibility of the removal of the Presidents (Vice-Presidents) of the courts for the disorderly performance of duties, in particular, to the possibility of appeal for serious or repeated infringements of the statutory obligations in the performance of the administration.
In the context of the appeal of the President of the Supreme Court pursuant to § 106 (1) of the Law on Courts and Judges, the Constitutional Court first assessed the possible applicability of that provision.
The President of the Supreme Court shall be appointed President of the Republic on the basis of Article 62 (f) of the Constitution, i.e. on the basis of his autonomous authority independent of the Government's counter-signature. In this department, the appointment of the head of the supreme judicial system body from a politically profiled government must be seen as an element of separation (and thus independence) of judicial power. It should be noted, however, that in other systems there is an absolute separation of judicial and executive powers, where no executive authority appoints the Executive President of the Supreme Court and the executive acts primarily as consultative, or proposes candidates.
The Constitution, as is apparent from the previous, ensures that the President of the Supreme Court is independent of the Government when appointed; However, this is without prejudice to the need to maintain such staffing independence even during the term of office and its demise, in particular in the event of termination by appeal. If the President of the Republic is empowered to appoint a President of the Supreme Court without any limitation and without any interaction with any other authority of power, no unlimited power may be conferred upon the President of the Supreme Court to dismiss the President of the Supreme Court when the Constitution is silent. In a situation where the power of appeal of the President of the Supreme Court is not explicitly mentioned by the Constitution, the adoption of an interpretation according to which the power of appointment of the President of the Republic also implies the possibility of its removal would be contrary to the constitutionally protected value of the independence of the judiciary and its separation from the executive power. Thus, the President of the Republic is entrusted with a system which does not separate the judicial authority from the executive authority absolutely, only the power to establish the office of President of the Supreme Court, while no constitutional competence of the President of the Republic is foreseen in terms of influencing its conduct and demise.
The rule under which "who names, removes" is perfectly logical in cases where there is a direct relationship between authority or subordination. However, such a relationship is not between the President of the Republic and the President of the Supreme Court (headed by the Supreme Authority under Article 92 of the Constitution). It is thus possible to conclude that, as in the case of the Supreme Audit Office and the Czech National Bank, or in the case of another supreme authority of the judicial authority - the Supreme Administrative Court - the legislator acted in the terms of Article 63 (2) of the Constitution, and in the case of the Supreme Court, by means of an appeal in § 106 (1) of the Law on Courts and Judges.
The Constitutional Court in a number of its findings (sp. zn. Pl. ÚS 34 / 04, sp. zn. Pl. ÚS 43 / 04 - published under No. 355 / 2005 Coll. and No. 354 / 2005 Coll.) has authoritatively interpreted the content of the constitutional principle of independence of the judiciary: "The principle of independent justice is one of the essential elements of the democratic rule of law (Article 9 (2) of the Constitution). The requirement of independent justice stems from two sources: the neutrality of judges as a 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. The Constitutional Court has dealt with the basic components of the principle of independence of the judiciary in a comprehensive manner in the sp. zn.
In the context of the present case, The Constitutional Court notes, in the light of the conclusions that it has previously stated, that the Constitution implies the need for an autonomous position of judicial authority. However, this Constitution does not exist under the conditions of the Czech Republic, as the judicial authority does not represent a self-contained and independent representation, it cannot be seen as one of the independent powers on the outside, but it is actually represented by the Ministry of Justice, which is also reflected in the whole model of the administration of the courts de Hotlata.
In this context, however, it should be pointed out that it is not for the Constitutional Court in the present case to assess the constitutionality of the regulation of the entire concept of state administration of the judiciary, since it is only the constitutionality of the contested provision of Paragraph 106 (1) of the Law on Courts and Judgments in the present case. However, this does not make it impossible to take account of the content of this provision when reflecting the constitutionality of the contested provision; In fact, the legislature chosen by the legislature must be taken into account as it has some relevance to the constitutional review of Article 106 (1) of the Law on Courts and Judges.
In relation to the contested provision, it is then of importance to the maximum, according to which the absolute natural consequence and the condition of institutional independence is the independence of personnel, which provides the representatives of the judiciary with the necessary degree of autonomy on external influences. Personnel independence has multiple attributes within the meaning of Article 82 of the Constitution, and the principle of irrevocability of office, which is only broken in the case of appeals made in particular as a result of the judicial disciplinary liability which has been exercised by law, is essential in the context of the case under consideration. Thus, through the above-mentioned principle of independence, the Constitutional Court considered the contested provision.
The position of the Ministry of Justice in relation to the power of the judicial and individual judicial officers (Section 102 of the Law on Courts and Judgments) is set out in Section 119 (1) of the Law on Courts and Judgments as the central body of the state administration of the courts, the other bodies of which are the presiding (and vice-chairmen) of the courts, with the administration being exercised either directly by the Ministry or through the Presidents (and vice-chairmen). The position of the Ministry as a central body of the state administration of the courts then depends on the power of the Minister to appoint the President and Vice-Presidents of the courts and to dismiss them pursuant to § 106 (1) of the Law on Courts and Judges.
The Constitutional Court points out that the principle of "who names, removes" is the own system of state administration. Only for government is the exercise of public power, i.e. the exercise of executive power in hierarchical relations, that is, the relationships of authority and subordination. The content is an order that expresses the power advantage of the public authorities in relation to those against which it is exercised, which applies both to external and internal activities. The administrative authority has a supreme authority (cf. Breakdown - Administrative law, general section, MU Brno 2004).
Therefore, if Article 106 (1) of the Law on Courts and Courts contains an element of its own system of administration, the Constitutional Court must examine whether the administration of courts can also be regarded as a state administration.
The exercise of state administration of the courts is generally characterised as the creation of conditions for the proper exercise of the judiciary (Section 118 (1) of the Law on Courts and Judgments), i.e. organisational, personnel, economic, financial and educational, as well as supervision of the proper performance of the tasks entrusted to the courts. Certain powers conferred on the Presidents of the Courts in the framework of the "administration of the courts' are not solely of the nature of administrative activity. An example can be drawn up of the power to set the schedule of work, to carry out judicial investigations, to oversee the level of court proceedings, to deal with complaints or to initiate the Minister of Justice to file infringement complaints. Even though the legislator used the concept of" state administration of the courts', which, by its formal designation, gives the impression that it is a state administration, it is necessary to reflect the formal definition of the content of the concept of "state administration of the courts' (i.e. according to the Law on Courts and Courts) and the material definition of the subject matter of the activities of the court officials. The mere formal designation cannot outweigh the content and thus the true nature of the judicial administration. All activities carried out by the President and the Vice-President of the Court are activities which may indirectly affect the exercise of judicial power and, as a result, may constitute a certain intervention of the executive authority.
It follows from the above that the exercise of the state administration of the courts does not, by its nature, correspond to a general definition of the exercise of the state administration. In this case, it is a specific activity carried out only within the judicial system and which makes the decision-making activities of the courts more or less conditional. In this context, the principle of "who appoints, removes," enshrined in Paragraph 106 (1), which is the own hierarchical system of direct supervisory and subordinate relationships (as mentioned above), must then be assessed. The presence of a substantial attribute of its own system of government cannot be tolerated in relations within the framework of the administration of the courts, which is not the administration.
In assessing the position of the Presidents of the Courts as judicial officials appointed by the Minister of Justice and the President of the Republic, it must be noted that the judicial officer continues to participate in his own decision-making activities as a judge.
It must then be made clear from the premise that the function of the Presidents of the Courts and of the President of the Supreme Court is inseparable from that of the Judge, since it is not possible to construct the dual quality of the legal status of the President of the Court as an official of the administration, on the one hand, and of the Judge on the other. Thus, the attributes of the independence of the judicial authority or the independence of the judges must apply in the above-mentioned direction to the presiding courts, including the President of the Supreme Court. It is not possible then to accept their appeal by the executive authority in the way that the contested provision envisages, while maintaining the above requirements.
The Constitutional Court refers to Article 82 (2) The Constitution according to which a judge cannot be dismissed against his will, and the law may provide for exceptions to the irrevocability of the duties of a judge, in particular from disciplinary responsibility. It is also necessary, through the maxima set out in this Article, to measure the way in which the Judges of the Courts and, therefore, the President of the Supreme Court are removed. Therefore, not only the rules governing the appeals of judges, but also the rules governing the appeals of the Presidents and Vice-Presidents of the courts must respect the constitutional principles of division of power, independence of judicial authority, etc. It is therefore impossible to establish any model of appeals of judicial officials without reflection of constitutional values.
The principle of separation of judicial and executive powers under the current constitutional arrangements and in accordance with standards arising from both European and international environments implies that a judicial officer should only be dismissed by a procedure that is implemented within the judicial powers.
After all, the legislature chosen by the above-mentioned method of appeal does not reflect the very nature of the "function 'as a career procedure, which requires an objective possibility for a judge to achieve a position that satisfies him professionally under the conditions laid down. In principle, this means either taking greater responsibility in the exercise of the judiciary when deciding on proper and exceptional remedies or participation in the administration of the courts as President or Vice-President of the Court (so in King, V.: To the concept of stabilisation of justice, Criminal Revue No 4 / 2004, p. 108 et seq.).
Moreover, the report by the Special Rapporteur on the issues of independence of the judges and lawyers of Dato 'Param Cumaranswamy, translated in accordance with UN Economic and Social Council Resolution 2000 / 42 ("the report'), which evaluated the situation which occurred in the Slovak Republic in connection with the appeal of the President of the Supreme Court of the Slovak Republic by Dr. Harabin, drew attention to the negatives associated with the imperfect separation of power by the judiciary and executive.
From a legal standpoint, the situation - as regards the assessment of the function of the Supreme Court President as executive - is similar to that of the case under consideration. The Constitution of the Slovak Republic states in Article 141 (1) that the judiciary is carried out by independent and impartial courts and in paragraph 2 that it is carried out at all stages separately from other state bodies. Article 144 (1) of the Constitution of the Slovak Republic provides that judges are independent in their decisions and are bound by law only.
In particular, the report draws attention to the fact that the procedures for appointing, promoting and withdrawing judges in Slovakia give too much power to the executive and legislative bodies of state power and, in particular, to the Minister of Justice. These procedures The report identified as being contrary to the concept of judicial independence, as it is constitutionally anchored and as it is regulated in regional and international standards of judicial independence. Moreover, according to the report, it will not stand as an unsustainable claim by the Slovak Government that the function of President is different from that of Judge - that it is not covered as such by the constitutional prediction of the appeal of the Judge. The claim that a judge as President of the Supreme Court is part of an executive body of State power is contrary to the very nature of an independent judiciary, as provided for in Article 141 of the Constitution of the Slovak Republic, and would in fact mean that the President of the Supreme Court is an executive. According to the report's assessment, once the President or Vice-President of the Court has been appointed, there should be no difference between that office and that of the Judge. Thus, despite the fact that the alleged grounds justifying the motion to appeal by Parliament may have been crucial, the Slovak Government's attempt to appeal was found to be contrary to international and regional standards to ensure and protect an independent judiciary, since the Government had not demonstrated its claims before the relevant tribunal.
According to the report, laws, whether legislative, ordinary or traditional, are not justified if they are contrary to the fundamental values and standards that protect the independent judiciary, especially when such judicial arrangements are enshrined in the Constitution. This is doubly true if the State concerned has ratified some of the important international and regional human rights instruments. The application of these basic values and standards is universal.
The Constitutional Court, having assessed whether the law on courts and judges envisaged by the appeal procedure of the President of the Court did not interfere with the guarantees of the institutional and staffing independence of the judiciary, concluded, in particular, that the principle of "appointing, referring 'to relations within the judicial administration could not be applied and that it was not possible or possible to construct the dual quality of the legal status of the President of the Court as an official of the state administration on the one hand and the judge on the other hand. Therefore, by means of the maximum expressed in Article 82 (2), The Constitution must also be measured by the way in which the Judges of the Courts are removed, i.e. the President of the Supreme Court; not only the rules governing the appeals of judges, but also the rules governing the appeals of the Presidents and Vice-Presidents of the courts must respect the constitutional principles of the division of power and the independence of the judiciary. They cannot then be appealed by the executive authority in the very way that the contested provision envisages, while maintaining the level of the requirements being analysed. That concludes that the contested provision is unconstitutional as it interferes with the guarantees of the institutional and personnel independence of the judiciary.
Following the legal opinion expressed in the finding in the case sp. zn. Pl. ÚS 7 / 02 The Constitutional Court points out that the functions of the Presidents and Vice-Presidents of the Courts and of the Presidents of the College should, among other things, be regarded as professional practice (as is the case with the appointment of the President of the Chamber) and should therefore not be refunded otherwise than for a legally foreseeable reason and on the basis of a decision of the Court.
The legal structure whereby the Presidents and Vice-Presidents of the Courts also carry out activities which are administrative by nature, without, for that reason, losing the quality of the status of an independent judge and therefore entering the position of a civil servant whose significant definition is the relationship of subordination and respect for orders from servants, is considered to be an integral part of the principle of division of power, based on the requirements of the rule of law and the principle of the principle of institutional independence of the judiciary, such as Austria, Germany, Sweden, Norway, the Netherlands, Great Britain, Ireland, Italy, Portugal. At the same time, the Constitutional Court adds that the current situation, where the Ministry of Justice is the central authority of the state administration of the courts and the judicial authority itself does not have its own representative body corresponding to its position at the level of the Ministry of Justice (which could be the authority called on to assume a qualitative role in personnel matters, including the supervision of the professional level of the judiciary, or in other areas of the administration and administration of the administration of the judiciary), does not sufficiently preclude the possibility of indirect influence of the judiciary by the executive authority [e.g. through the allocation of budgetary resources and control of their use (sp.
The Constitutional Court, when examining the provisions of Section 106 (1) of the Law on Courts and Courts, found no reason to depart from the conclusions set out in the sp. zn.
The Constitutional Court also notes that the legislator did not respect the conclusions expressed in the sp. zn. The Constitutional Court has therefore annulled the provisions of Paragraph 106 (1) of the Law on Courts and Judges on the date of the declaration of the finding in the Collection of Laws without delaying its enforceability, and it will now be up to the legislature to fully respect the second-time legal opinion expressed by the Constitutional Court on this matter in its legislative capacity.
The Constitutional Court annulled the provisions of § 106 (1) of Act No. 6 / 2002 Coll., on the courts, judges, sitting and state administration of the courts and amending certain other laws (the Law on Courts and Judges), as amended by Act No. 192 / 2003 Coll., the sentence first and second, as they form one whole, and the decision-making reasons for the finding affect all the "judicial officials' mentioned in the contested provision of the law.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by Judge Vladimir Krórek and Pavel Rychetský to justify the finding, and the difference was taken by Judge Ivan Janů only on part of the grounds of the finding.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found no. 397 / 2006 Coll., on the application for annulment of § 106 paragraph 1 of Act No. 6 / 2002 Coll., on Courts, Judges, Addresses and Government Administration of the Courts and on the amendment of certain other laws (Law on Courts and Judges), as amended by Act No. 192 / 2003 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 09.08.2006 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0