Pl. ÚS 7/02
<
In  the  preamble to the Constitution and its Art.  1,  in  the
introductory  declaration  to  the  Charter,  as  well  as   in
international  treaties under Art. 10 of the Constitution,  the
Czech  Republic subscribes to the time-tested principles  of  a
democratic  state  governed by the  rule  of  law,  founded  on
respect  for  the  rights and freedoms of man and  of  citizens
(Art.  1 of the Constitution) and on democratic values (Art.  2
par.  1 of the Charter). In this state, under Art. 2 par. 1  of
the  Constitution  the  people are  the  source  of  all  state
authority,  and exercise it through the legislative,  executive
and   judicial  bodies.  One  can  conclude,  just  from   this
introductory  statement  that  the  very  foundation   of   our
constitutional system enshrines the principle of separation  of
state  power,  a  principle, derived from the idea  that  human
nature has a tendency to concentrate power and misuse it, which
has  become  a  guarantee against arbitrariness and  misuse  of
state  power  and  basically also a guarantee  of  freedom  and
protection  of the individual, a principle which is the  result
and  reflection  of  historic, intellectual  and  institutional
development  until now, which, in the modern age  for  example,
involved  such  distinctive people as John  Locke  and  Charles
Montesquieu,  and  institutions such as the British  Parliament
and   the  British  judiciary.  It  is  not  the  task  of  the
Constitutional  Court, in a situation which can  be  considered
given, to concern itself more closely with the development  and
causes  of  this  principle.  Nevertheless,  it  considers   it
necessary  to briefly state that the very foundations  of  this
principle   contain   the  conviction,   based   on   empirical
experience, that human thought and social events could never be
ascribed  a  solely  rational nature, as  they  also  contained
evident  irrational  elements,  and  moreover,  rationality  of
thought has never fully coincided with rationality of behavior.
As an expression of the existing condition, “government by all”
is  a  mere  ideological  formula, often  hiding  a  completely
contrary  social situation. In a social situation characterized
by  the internal and external inadequacy of the individual  and
the entire society, basic human needs can be satisfied, and  at
the  same  time  at  least the direction  toward  the  goal  of
democracy  maintained,  only  by  the  path  of  conflict-based
balancing  of  individual  interests.  Thus,  although  even  a
democratic  state does not strive for maximalistic programs  in
the  area of the judiciary, and is therefore quite far from the
idea of a “judicial state” – the bodies of state power include,
as  already  stated, the legislative and executive  power,  and
therefore this state power can be functionally implemented in a
democratic  system  only  on  condition  that  all  its  bodies
function  –  on  the  other  hand  it  is  required  to  create
institutional  prerequisites  for  what  is,  as  far  as   the
judiciary is concerned, characteristic and unconditional,  i.e.
the  formation  and establishment of true independence  of  the
courts,  as  an  important state-creating, but  also  polemical
element,  not only for the stabilization of their position  but
of the entire democratic system, in relation to the legislative
and executive branches. This true independence of the courts is
a  characteristic and indispensable attribute of  the  judicial
power,   justified  and  also  required  by  Art.  4   of   the
Constitution, under which the fundamental rights  and  freedoms
enjoy the protection of the judicial bodies, as well as by Art.
81  and  Art. 82 of the Constitution, under which the  judicial
power  is  exercised in the name of the Republic by independent
courts,  and  judges are independent in the exercise  of  their
duties  and  no one may endanger their impartiality. Therefore,
this  characteristic feature and content of the judicial  power
cannot be cast in doubt, and therefore even its basic functions
are not compatible with any manner of infiltration by any other
state  power, which premise was expressed in the Constitutional
Document  of the Czechoslovak Republic introduced  by  Act  No.
121/1920  Coll.  by § 96 par. 1, under which the  judiciary  is
separate  from  administration in all  instances,  and  in  the
current Constitution in Art. 82 par. 3, under which the  office
of  a judge is incompatible with the office of the President of
the  Republic, a member of Parliament, or any office in  public
administration.  Thus,  the principle of judicial  independence
is,  in this regard, of an unconditional nature which rules out
the   possibility  of  interference  by  the  executive  power.
However,  the  contested legal regulation does  not  meet  this
requirement.
>



The  Plenum of the Constitutional Court decided on the petition
from  the  President of the Republic, Václav  Havel,  to  annul
certain  provisions  of Act No. 6/2002 Coll.,  on  the  Courts,
Judges,  Lay Judges and the State Administration of the  Courts
and Amending Certain Other Acts (the Judiciary Act), as amended
by later regulations, with the Parliament of the Czech Republic
as a party to the proceedings,

                          as follows:

  1.  The provisions of § 50 par. 1 let. f), let. g), par. 3 and
     par. 4, § 51 par. 1 let. f), let. g), par. 3 and par. 4, § 52
     par. 1 let. f), let. g), par. 3 and par. 4, § 53 par. 1 let.
     e), par. 3 and par. 4, § 71 par. 4, § 72 par. 2 last sentence,
     § 82 par. 2 second sentence, § 94 let. d), § 123 par. 3 a par.
     4, § 124 par. 4, § 125 par. 3, § 126 par. 3, § 127 par. 3, §
     130 par. 2 the words “assignment of judges”, § 131 par. 1 let.
     a), let. b), § 132 par. 1 let. a), let. b), par. 2 the words
     “of judges and” and par. 3, § 134 – 163, § 185, § 187 the words
     “3  attorneys  for members of the Council for Professional
     Qualifications of Judges and their 3 alternates and” and § 188
     of Act No. 6/2002 Coll., on the Courts, Judges, Lay Judges and
     the State Administration of the Courts and Amending Certain
     Other  Acts  (the  Judiciary Act),  as  amended  by  later
     regulations, are annulled as of the day this  decision  is
     published in the Collection of Laws.
  
  2.  The provisions of § 15 par. 2 second sentence, § 26 par. 2
     second sentence, § 30 par. 2 second sentence, § 34 par.  2
     second sentence, § 68 par. 1 the words “to the ministry or” , §
     74 par. 3, § 99 par. 1 let. c) the words “to the ministry or”,
     ' 106 par. 1, § 119 par. 2 and par. 3, § 120, § 121, § 124 par.
     1, par. 2 and par. 3, § 125 par. 1, par. 2 and par. 4, § 126
     par. 1, par. 2 and par. 4, § 127 par. 1, par. 2 and par. 4, §
     128 of Act No. 6/2002 Coll., on the Courts, Judges, Lay Judges
     and the State Administration of the Courts and Amending Certain
     Other  Acts  (the  Judiciary Act),  as  amended  by  later
     regulations, are annulled as of 1 July 2003.


                          Reasoning:

                               
                               
                              I.


     On  1  March  2002  The Constitutional  Court  received  a
petition  from  the President of the Republic to annul  certain
provisions of Act No. 6/2002 Coll., on the Courts, Judges,  Lay
Judges  and the State Administration of the Courts and Amending
Certain  Other  Acts  (the Judiciary Act),  (further  also  the
“Act”).  In  the reasons in the first part of his petition  the
President  focuses  on § 134 – 163 of the Act,  (and  connected
provisions),  which introduce the new institution of  mandatory
periodic  evaluation  of professional qualifications  with  the
consequence of possible termination of the judge’s mandate.  In
his opinion these provisions are in direct conflict with Art. 1
of the Constitution of the Czech Republic (the “Constitution”),
under  which the Czech Republic is a democratic state  governed
by  the  rule  of  law, founded on respect for the  rights  and
freedoms of man and of the citizen, as he is convinced that the
basic  attributes  of  a state governed  by  the  rule  of  law
unquestionably include the principle of separation  of  powers.
He also sees these provisions as being in conflict with Art. 82
par. 1 and par. 2 and with Art. 93 of the Constitution. A judge
is  appointed  to his office by the President of  the  Republic
without  time  limitation, if he meets the basic constitutional
and   other  statutory  prerequisites,  including  professional
qualifications.  A judge cannot thereafter be  removed  against
his will, with the exception of removal based on a decision  of
the disciplinary panel. When they established the exception  to
the  non-removability of a judge in Art. 82 par. 2, the framers
of  the  Constitution had in mind conduct of at least the  same
intensity,  as  disciplinary violation.  Only  serious  illegal
conduct  could  be considered as such conduct. This  guarantees
the  courts’  independence from the legislative  and  executive
branches. However, the Act permits the constitutional office of
a   judge  to  be  endangered  by  the  results  of  subsequent
evaluation of his professional qualifications, without which he
could  not  even  be  appointed  to  the  office.  Disciplinary
proceedings are a sufficient means of protection to prevent the
office  of  a  judge from being held by a person who  does  not
adequately  see  to  his  professional  level,  which   becomes
apparent during his decision-making activities. In this regard,
the petition points to the judge’s duty to consistently educate
himself  and deepen his professional knowledge for  the  proper
exercise of the office (§ 82 par. 2 of the Act), and breach  of
this  duty may be a disciplinary violation, for which  a  judge
may  be  removed from his office. However, breach of this  duty
must be specific, its effects must be manifested in the judge’s
decision-making  activities,  and  thus  its   intensity   must
endanger confidence in the courts’ independent, impartial,  and
just decision-making (§ 87). A causal relationship between such
breach  of  duty  and its consequence (endangering  confidence)
must be proved in the disciplinary proceedings. Moreover, while
disciplinary  proceedings have a range of sanctions,  graduated
according  to  the gravity of the violation, the evaluation  of
professional qualification has only one sanction, loss  of  the
office.

     The  proceedings newly introduced by the Act –  evaluation
of the professional qualification of judges – will be done on a
blanket basis with all judges. Only within the proceedings will
determinations  begin  to  be made, whether  the  prerequisites
exist to make it possible to say that a judge is professionally
(un)qualified. This (un)qualification will be evaluated on  the
basis  of  abstract, vaguely formulated aspects not related  to
the  judge’s decision-making activities (§ 136). The  Act  thus
presumes a causal connection between negative evaluation and  a
judge’s  decision-making activities. In other words, statements
on  inadequate  ability  to  organize  the  activities  of  the
judicial  department  and  minimal  publication,  research  and
pedagogical  activity  is  automatically  tied  to  a   judge’s
decision-making activities and can lead to termination  of  the
judge’s  office. If we take as a starting point  an  act  which
makes  court chairmen bodies of state administration of courts,
i.e.  part  of  the  executive  power,  this  gives  the  state
administration of courts the jurisdiction to evaluate a judge’s
professional  qualification.  Thus,  the  executive  power  can
initiate proceedings against a judge to review his professional
qualifications with the consequence of possible termination  of
a   constitutionally  guaranteed  mandate  unlimited  in  time,
without  the  grounds  for this initiation  being  the  judge’s
decision-making activities. The President’s objections are also
aimed  against  interference in the principle of separation  of
powers,  which is presumed by the Constitution. In his opinion,
this principle is violated, among other things, by the scope of
powers  of the Minister of Justice in the area of evaluating  a
judge’s  professional  qualifications,  which  he  goes  on  to
enumerate, concluding that this scope gives the executive power
disproportionately wide power, which enables  it  to  influence
the decision-making of judges.

     In  the reasons of the second part of his petition,  aimed
at   those   provisions  in  which  the  Act   entrusts   state
administration  of courts in the stated scope to  the  chairmen
and  deputy  chairmen of the courts, who are also  judges,  the
President  claims they are in conflict with Art. 82 par.  3  of
the  Constitution,  which provides the incompatibility  of  the
office of a judge with any office in public administration.  He
states  that  it follows from certain activities and  from  the
manner  of appointing and removing chairmen and deputy chairmen
of courts that these are offices in public administrations, and
the  chairmen  and  deputy chairmen of  courts  thus  partially
become components of the executive power. Such serious concerns
about  the  endangerment  of their independence  in  performing
judicial   activities  are  possible,  particularly  if   their
remaining  in the office of chairman and vice chairman  depends
on  a  decision by a representative of the executive power.  He
points to § 106 par. 1 of the Act, under which the chairmen and
deputy chairmen of courts may be removed from their offices  if
they  do  not  duly fulfill their duties. In his opinion,  this
condition for removal is expressed very generally, and can lead
to   arbitrariness   by  the  executive   power   in   removing
representatives of the judicial power. As the President  states
further,  he  is  aware  that  in some  European  states  state
administration  of courts is performed by court  chairmen  from
the  ranks  of the judges. However, our Constitution  does  not
permit combining the office of a judge with the exercise of any
office   in  public  administration,  and  it  is  up  to   the
constitutional  framers  whether  to  permit  combining   these
offices.  The  Constitution, Art. 82 par.  3,  expressly  names
activities which are incompatible with the office of  a  judge.
At  the  same  time,  it  permits the  circle  of  incompatible
activities  to  be expanded further by statute. However,  §  74
par.  3  of  the  Act  circumvents the circle  of  incompatible
activities expressly banned by the Constitution by removing the
offices stated in it from the regime of this ban (with the help
of  a  legal fiction). In that case the Constitution is defined
through  the  use of the Act. However, a legal norm  of  lesser
legal  force, i.e. in this case the Act, may not eliminate  the
circle  of  activities given by a legal norm of  greater  legal
force – the Constitution. In the conclusion of this part of the
petition,  the President then also contests the possibility  of
temporary assignment of a judge to the Ministry, which he  also
considers  incompatible  with the principle  of  separation  of
powers and with the purpose of the office of a judge.

     The President considers another contested provision, § 160
par.   3  of  the  Act,  which  provides  that  Supreme   Court
proceedings   in   matters  of  evaluating   the   professional
qualifications of judges are non-public, to be in conflict with
Art.  96  par.  2 of the Constitution, Art. 38 par.  2  of  the
Charter of Fundamental Rights and Freedoms (the “Charter”)  and
Art.  6  par. l of the Convention for the Protection  of  Human
Rights  and  Fundamental  Freedoms  (the  “Convention”),  which
enshrines the principle of public proceedings. He believes that
there  are  no  grounds for breaching the principle  of  public
proceedings  in  proceedings before the  Supreme  Court,  whose
decision  is  a  decision on the merits of the  matter  and  is
final.  Its decision will have fundamental effects on the  life
of  the individual in question. Art. 6 par. 1 of the Convention
provides  conditions for possible exclusion of the public  from
proceedings. However, none of these conditions has been met  in
the contested provision. Thus, the Act restricts the element of
public  control of the conduct of court proceedings in conflict
with the Convention.

     In the last part of the grounds for the petition, aimed at
provisions concerning the Judicial Academy, the President, with
repeated  emphasis on Art. 1 of the Constitution, the principle
of  separation  of  powers, as well as on the  constitutionally
guaranteed independence of courts and judges (Art. 81 and  Art.
82  par.  1 of the Constitution) expresses the conviction  that
independence from the executive power must be found not only in
the  courts’ decision-making activities in the narrow sense  of
the word, but in the overall ability of the executive power  to
influence  the  decision-making activities of judges.  A  judge
bears responsibility for his professional level and is required
to  consistently  educated himself and deepen his  professional
knowledge  for  the  proper exercise  of  his  office  (§  82).
However,  it should be only up to him how he achieves this.  It
is difficult to combine judges being mandatorily educated in an
institution  whose  composition  and  educational  content   is
directly or indirectly in the hands of the executive power with
the  principle  of  separation of powers  and  the  independent
exercise  of  the  judiciary. The Supreme  Court’s  ability  to
provide this education in a comparable scope is unrealistic, in
view  of  the  Supreme  Court’s current personnel,  budget  and
technical capacity. Thus, the life-long mandatory education  of
judges  in  practice comes under the control of  the  executive
power. The President makes clear in the petition that, although
he  considers  it correct for the Ministry of Justice  to  make
education  possible for judges, and therefore it is appropriate
to  establish the Judicial Academy, nonetheless in his  opinion
it  is unthinkable for judges to be required to participate  in
training  at set intervals precisely, and de facto exclusively,
in this institution.

     In  conclusion  the President then summarizes  that  in  a
state  governed  by  the principles of the  rule  of  law,  the
separation of state powers must be based on a system of  checks
and  balances,  but  the legal regulation in question  violates
this  system,  through  a  disproportionate  influence  of  the
executive  power  over  the judicial power.  The  task  of  the
executive power, in the intentions of the Constitution,  is  to
ensure  operation  of  the judiciary in material  terms,  court
administration personnel, preparation of future judges for  the
exercise  of  their offices, and ensuring adequate  numbers  of
them. However, the Act does not observe the balancing of powers
and  the  degree of influence by the executive power  over  the
judicial  power can, in his opinion, endanger the  independence
of  the  judiciary as one of the pillars of a democratic  state
governed  by the rule of law. Therefore, he proposes a  finding
which  will  annul these provisions of the Act  on  Courts  and
Judges:  §  15  par.  2 second sentence, §  26  par.  2  second
sentence,  §  30  par. 2 second sentence, § 34  par.  2  second
sentence, § 50 par. 1 let. f) and let. g), par. 3 and  par.  4,
§ 51 par. 1 let. f) and let. g), par. 3 and par. 4, § 52 par. 1
let.  f)  and let. g), par. 3 and par. 4, § 53 par. 1 let.  e),
par.  3 and par. 4, § 68 par. 1 the words “to the Ministry or”,
§  71 par. 4, § 72 par. 2 last sentence, § 74 par. 3, § 82 par.
2  second sentence, § 94 let. d), § 99 par. 1 let. c) the words
“to the Ministry or”, § 106 par. 1, § 119 par. 2 and par. 3,  §
120,  §  121, § 123 par. 3 and par. 4, § 125, § 126, §  127,  §
128, § 130 par. 2 the words “assignment of judges” , § 131 par.
1  let. a), let. b), § 132 par. 1 let. a) a let. b), in par.  2
the  words “of judges and”, par. 3, § 134 to 163, § 185, §  187
the   words  “3  attorneys  for  members  of  the  Council  for
Professional  Qualifications of Judges and their  3  alternates
and” and § 188, provided that at the same time, in relation  to
the  provisions of § 15 par. 2 second sentence,  §  26  par.  2
second  sentence, § 30 par. 2 second sentence and § 34  par.  2
second sentence be proposes postponing the legal effect so that
Parliament will have sufficient time to pass new legislation.


                              II.

In  accordance  with  § 69 of Act No. 182/1993  Coll.,  on  the
Constitutional  Court,  as amended by  later  regulations,  the
Constitutional Court requested position statements from parties
to  these proceedings – both chambers of the Parliament of  the
Czech  Republic. The Chamber of Deputies and the Senate of  the
Parliament of the CR provided their positions statements on the
amendment of Act No. 6/2002 Coll. on Courts and Judges.




                             III.
                               

Before it turned to discussing the merits of the petition,  the
Constitutional Court reviewed, under § 68 par.  2  of  Act  No.
182/1993 Coll., whether the formal conditions for passing a law
have  been met and whether the contested Act was passed  within
the  constitutionally prescribed limits of the jurisdiction and
in  a constitutionally prescribed manner. After conducting this
review,  the  Constitutional Court  declares  that  the  above-
mentioned conditions were met, whereby the prerequisite for the
Constitutional Court to be able to review the substance of  the
filed petition.

                               
                               
                              IV.
                               
                               
The  petition  from  the  President of the  Republic  to  annul
certain  provisions of Act No. 6/2002 Coll., on Courts, Judges,
Lay  Judges  and  Administration of  the  Courts  and  Amending
Certain  Other  Acts, in essence applies to a  total  of  three
basic areas.
    
   The  first  group  of  provisions proposed  to  be  annulled
concerns  the evaluation of the professional qualifications  of
judges.  It includes, first of all, the entire Part One Chapter
III Division Five of the Act on Courts and Judges, which, in  §
134  –  163  of  the Act, governs the procedure for  evaluating
professional   qualifications.   It   provides   for   periodic
evaluation  of professional qualifications, the evaluator,  the
aspects for evaluating professional qualifications, the  manner
of  inspecting a judge’s decision making activity by a  special
panel  of  a  given  court in the event  of  an  unsatisfactory
evaluation,  the  composition of the Council  for  Professional
Qualifications  of  Judges  established  by  the  Ministry   of
Justice,  and proceedings before it in cases where the  special
court  panel evaluates the judge’s decision making activity  as
unsatisfactory,  and  finally proceedings  before  the  Supreme
Court on a petition by a party to the proceedings who does  not
agree  with  the Council’s decision in a matter of professional
qualification.  In Part One Chapter I Division Two  Subdivision
Two   of  the  Act,  governing  the  jurisdiction  of  judicial
councils, the provisions of § 50 par. 1 let. f) and g), par.  3
and  4,  § 51 par. 1 let. f) and g), par. 3 and 4, § 52 par.  1
let.  f) and g), par. 3 and 4 and § 53 par. 1 let. e),  par.  3
and   4,   which   provide  judicial  councils,  within   their
jurisdiction, tasks relating to evaluating judges’ professional
qualifications,  are  proposed to  be  annulled.  In  Part  One
Chapter   III   Division  Three  of  the  Act,  governing   the
jurisdiction of bodies of court administration, the  provisions
of § 123 par. 3 and 4, § 124 par. 4, § 125 par. 3, § 126 par. 3
and  §  127  par.  3,  which provide the authorization  of  the
Ministry  of Justice and chairmen of individual levels  of  the
court  system  in  evaluating  professional  qualifications  of
judges,  are  proposed  to be annulled.  Also  proposed  to  be
annulled  are  the  provisions of § 71  par.  4  and  the  last
sentence  in § 72 par. 2 of the Act, which require taking  into
consideration   the   evaluation   of   judges’    professional
qualifications when transferring judges to higher level courts,
part  of  §  82  par. 2, which gives a judge the obligation  to
submit, as provided by statute, to evaluation and assessment of
his  professional knowledge and awareness and § 94 let.  d)  of
the  Act, which provide that a judge’s office terminates on the
date  that  a  decision  which finds him to  be  professionally
unqualified to hold the office goes into legal effect. Finally,
in  this  area  the  following are  proposed  to  be  annulled:
provisions on notifying appropriate persons and institutions of
the  evaluation of results of a judge’s professional  education
by  the Judicial Academy (§ 132 par. 3 of the Act on Courts and
Judges), transitional provisions, which provide a deadline  for
evaluating professional qualifications of judges named to their
offices before the date when the Act went into effect (§ 185 of
the  Act), and provisions on nominating attorneys and  notaries
as  members  of the Council for the Professional Qualifications
of  Judges (in § 187 the words “3 attorneys as members  of  the
Council for the Professional Qualifications of Judges and their
3  substitutes  and”  and  § 188 of  the  Act).  The  foregoing
provisions of the Act on Courts and Judges are proposed  to  be
annulled due to their conflict with Art. 1, Art. 82 par. 1  and
2 and Art. 93 of the Constitution.
    
   In  another thematic area, concerning the exercise of  state
administration  of  courts,  the  provisions  proposed  to   be
annulled  are first of all, from Part One, Chapter I,  Division
One,  Subdivision  Four  of  the  Act  on  Courts  and  Judges,
governing  the organization and activities of the courts  §  15
par.  2 second sentence, § 26 par. 2 second sentence, § 30 par.
2  second  sentence  and  § 34 par. 2  second  sentence,  which
provide  that  the chairmen and vice chairmen of the  specified
individual  levels of general courts, in addition to  decision-
making  activity,  also  perform state  administration  of  the
relevant  courts  in  the scope provided by  the  Act.  Further
provisions proposed to be annulled, § 119 par. 2 and 3  of  the
Act,  then expressly state that the chairmen and vice  chairmen
of  individual levels of the general courts are bodies of state
administration of courts and that chairmen of panels and  other
judges  also  take  part  in it in  the  scope  and  under  the
conditions provided by this Act. The following provisions of  §
120  and 121 of the Act on Courts and Judges then provide  that
the Ministry of Justice performs state administration of courts
either  directly or through the chairmen of these  courts,  who
implement  it  in the scope provided by this Act  and  who  may
entrust  this performance to the vice chairmen or, as the  case
may  be,  chairmen of panels and other judges of  the  relevant
court.  Also contested is § 74 par. 3 of the Act which provides
that  the offices of chairman and vice chairman of a court  and
certain  other enumerated activities are not considered  to  be
office  in public administration. Also proposed to be  annulled
in Part One Chapter III Division Three of the Act on Courts and
Judges,   governing  the  jurisdiction  of  bodies   of   state
administration  of courts, are § 124, 125, 126 and  127,  which
specifically set forth the activities whereby the  chairmen  of
individual   levels   of   general   courts   exercise    state
administration,  as well as the following §  128  of  the  Act,
governing procedures followed by a body state administration of
courts when it finds that a judge is at fault in violating  his
obligations  in  the exercise of his office. Another  provision
proposed to be annulled, § 106 par. 1 of the Act on Courts  and
Judges provides the possibility of removing a court chairman or
vice  chairman from his office by the person who appointed him,
if  he does not duly perform his obligations. Also proposed  to
be  annulled are, in § 68 par. 1 of the Act the words  “to  the
ministry or” and the same words in § 99 par. 1 let. c) of  this
Act,  which make it possible to assign a judge to the  Ministry
of  Justice and which provide for temporary exemption from  the
exercise  of  the  office  of  judge  in  the  event  of   such
assignment.   The  petition  claims  that  the  above-mentioned
provisions of the Act on Courts and Judges are in conflict with
Art. 82 par. 3 of the Constitution.
    
  The last thematic area of provisions of the Act on Courts and
Judges   proposed  to  be  annulled  concerns   the   mandatory
enrollment of judges for professional education in the Judicial
Academy.  This  concerns  primarily  annulment  of  the  second
sentence  of the second paragraph of § 82 of the Act on  Courts
and Judges, which provides a judge’s obligation to take part in
professional  education in the Judicial Academy and  submit  to
evaluation  and  assessment of his professional  knowledge  and
awareness.  In  connection with this provision,  in  Part  One,
Chapter  III,  Division Four of the Act on Courts  and  Judges,
governing the establishment, organization and activities of the
Judicial Academy, the following are proposed to be annulled: in
§  130  par.  2 the words “enrollment of judges” and  connected
therewith § 131 par. 1 let. a) and b) and § 132 par. 1 let.  a)
and  b), in par. 2 the words “of judges and” and par. 3.  These
provisions  provide further detail on a judge’s  obligation  to
take part in professional education in the Judicial Academy  by
providing  the  length of study, the manner of  completion  and
notification  of  the  evaluation  of  results  of  a   judge’s
professional   education.  The  petition  claims   that   these
contested  statutory provisions are in conflict  with  Art.  1,
Art. 81 and Art. 82 par. 1 of the Constitution.


                              V.
                               

   In  the preamble to the Constitution and its Art. 1, in  the
introductory  declaration  to  the  Charter,  as  well  as   in
international  treaties under Art. 10 of the Constitution,  the
Czech  Republic subscribes to the time-tested principles  of  a
democratic  state  governed by the  rule  of  law,  founded  on
respect  for  the  rights and freedoms of man and  of  citizens
(Art.  1 of the Constitution) and on democratic values (Art.  2
par.  1 of the Charter). In this state, under Art. 2 par. 1  of
the  Constitution  the  people are  the  source  of  all  state
authority,  and exercise it through the legislative,  executive
and   judicial  bodies.  One  can  conclude,  just  from   this
introductory  statement  that  the  very  foundation   of   our
constitutional system enshrines the principle of separation  of
state  power,  a  principle, derived from the idea  that  human
nature has a tendency to concentrate power and misuse it, which
has  become  a  guarantee against arbitrariness and  misuse  of
state  power  and  basically also a guarantee  of  freedom  and
protection  of the individual, a principle which is the  result
and  reflection  of  historic, intellectual  and  institutional
development  until now, which, in the modern age  for  example,
involved  such  distinctive people as John  Locke  and  Charles
Montesquieu,  and  institutions such as the British  Parliament
and   the  British  judiciary.  It  is  not  the  task  of  the
Constitutional  Court, in a situation which can  be  considered
given, to concern itself more closely with the development  and
causes  of  this  principle.  Nevertheless,  it  considers   it
necessary  to briefly state that the very foundations  of  this
principle   contain   the  conviction,   based   on   empirical
experience, that human thought and social events could never be
ascribed  a  solely  rational nature, as  they  also  contained
evident  irrational  elements,  and  moreover,  rationality  of
thought has never fully coincided with rationality of behavior.
As an expression of the existing condition, “government by all”
is  a  mere  ideological  formula, often  hiding  a  completely
contrary  social situation. In a social situation characterized
by  the internal and external inadequacy of the individual  and
the entire society, basic human needs can be satisfied, and  at
the  same  time  at  least the direction  toward  the  goal  of
democracy  maintained,  only  by  the  path  of  conflict-based
balancing  of  individual  interests.  Thus,  although  even  a
democratic  state does not strive for maximalistic programs  in
the  area of the judiciary, and is therefore quite far from the
idea of a “judicial state” – the bodies of state power include,
as  already  stated, the legislative and executive  power,  and
therefore this state power can be functionally implemented in a
democratic  system  only  on  condition  that  all  its  bodies
function  –  on  the  other  hand  it  is  required  to  create
institutional  prerequisites  for  what  is,  as  far  as   the
judiciary is concerned, characteristic and unconditional,  i.e.
the  formation  and establishment of true independence  of  the
courts,  as  an  important state-creating, but  also  polemical
element,  not only for the stabilization of their position  but
of the entire democratic system, in relation to the legislative
and executive branches. This true independence of the courts is
a  characteristic and indispensable attribute of  the  judicial
power,   justified  and  also  required  by  Art.  4   of   the
Constitution, under which the fundamental rights  and  freedoms
enjoy the protection of the judicial bodies, as well as by Art.
81  and  Art. 82 of the Constitution, under which the  judicial
power  is  exercised in the name of the Republic by independent
courts,  and  judges are independent in the exercise  of  their
duties  and  no one may endanger their impartiality. Therefore,
this  characteristic feature and content of the judicial  power
cannot be cast in doubt, and therefore even its basic functions
are not compatible with any manner of infiltration by any other
state  power, which premise was expressed in the Constitutional
Document  of the Czechoslovak Republic introduced  by  Act  No.
121/1920  Coll.  by § 96 par. 1, under which the  judiciary  is
separate  from  administration in all  instances,  and  in  the
current Constitution in Art. 82 par. 3, under which the  office
of  a judge is incompatible with the office of the President of
the  Republic, a member of Parliament, or any office in  public
administration.  Thus,  the principle of judicial  independence
is,  in this regard, of an unconditional nature which rules out
the   possibility  of  interference  by  the  executive  power.
However,  the  contested legal regulation does  not  meet  this
requirement.
    
  In his petition, the President of the Republic contests first
of  all,  provisions  of  the  Act  relating  to  the  periodic
evaluation and assessment of the professional qualifications of
all   judges,  including  provisions  which  complement   them.
Specifically, these are § 134 to 163 (chapter III division five
–  evaluation of the professional qualifications of judges) and
in connection with them § 50 par. 1 let. f) and let. g), par. 3
and par. 4, § 51 par. 1 let. f) and let. g), par. 3 and par. 4,
§ 52 par. 1 let. f) and let. g), par. 3 and par. 4, § 53 par. 1
let.  e),  par. 3 and par. 4, § 71 par. 4, § 72 par. 2  in  the
last sentence, § 74 par. 3 in the words “in the Council and”, §
82  par. 2 in the second sentence, § 94 let. d), § 123  par.  3
and  par.  4, § 124 par. 4, § 125 par. 3, § 126 par. 3,  §  127
par.  3,  §  132 par. 3, § 185, § 187 in the words “3 attorneys
for  the Council for Professional Qualifications of Judges  and
their 3 alternates and” and § 188.

   To  evaluate the justification of this part of the petition,
it  is  necessary  to provide an overview of  these  individual
provisions, through which, within the institution of evaluation
of  professional  qualifications of judges,  the  law  provides
authorization to individual court administration bodies.

   Under the regulations expressed in the contested provisions,
the  predominant part of which is included in  Part One Chapter
III  of  the  Act, titled (which in the given  context  is  not
without  significance)  state  administration  of  courts,  the
professional  qualifications of judges,  who  are  required  to
submit  to  the statutorily specified manner of evaluation  and
assessment  of the professional knowledge and awareness  (§  82
par.  2), are monitored by the Ministry of Justice (§ 123  par.
3).  For  this  purpose  it directs the methods  of  evaluating
professional qualifications of judges and directs  the  methods
of inspecting their decision-making activity (§ 123 par. 3). It
establishes   the  appropriate  Councils  for  evaluating   the
professional  qualifications of judges [a Council for  criminal
law,   a  Council  for  civil  law,  and  a  Council  for   the
administrative judiciary (§ 123 par. 4)]. The chairmen  of  the
Supreme  Court, high, regional and district courts, as  holders
of offices in the state administration of courts, to which they
are  appointed  (except the chairman and vice-chairman  of  the
Supreme  Court)  by  the  Minister  of  Justice,  who  has  the
authority  to remove them on the basis of the generally,  quite
vaguely formulated grounds “due failure to fulfill obligations”
(§  103  par.  1, § 104 par. 1, § 105 par. 1, §  106  par.  1),
exercise  the  enumerated  jurisdictions  in  relation  to  the
evaluation of the professional qualifications of judges (§  124
par.  4,  §  125 par. 3, § 126 par. 3, § 127 par. 3) and  these
chairmen, except the chairmen of district courts, also evaluate
these qualifications (§ 135). The aspects from whose angles the
professional  qualifications  of  a  judge  are  evaluated  are
reviewed,  among  other things, on the basis of  an  evaluation
prepared  by  the relevant court chairman and a report  on  the
results  of  a judge’s professional education prepared  by  the
Judicial  Academy  (§  136  par. 2),  directed  by  a  director
appointed  again by the Ministry of Justice. The members  of  a
special   panel   which  inspects  a  judge’s   decision-making
activities are appointed from among the ranks of judges by  the
relevant  court  chairman (§ 137 par. 2), who (in  cases  of  a
judge receiving an inadequate grade from a special panel or  if
he himself does not agree with the special panel’s decision, in
which  the  judge’s  decision-making  activity  is  graded   as
adequate)  also submits a petition for the judge’s professional
qualifications to be evaluated by the Council which reviews and
decides  on this petition; this Council is established  by  the
Ministry  (§  138, § 139 par. 1) and some of  its  members  and
alternates  from  among state prosecutors, attorneys,  notaries
and experts in the fields of criminal, civil and administrative
law  are appointed, on the proposal of the relevant bodies,  by
the  Minister (§ 139 par. 8). The Council may hold  proceedings
and  make  decisions if at least 7 members  or  alternates  are
present  and the consent of a majority of members or alternates
present  is necessary to make a decision (§ 141 par.  2),  from
which it is clear that decisions, in view of the composition of
any  individual Council (§ 139 par. 4, par. 5, par. 6) can also
be  made by members none of whom is a judge. In this regard  it
must  be  noted  that  the very fact that  persons  from  among
attorneys,  state prosecutors and notaries can  be  members  in
this  body and thus make decisions concerning a judge’s  future
appears   highly   problematic,  in  view  of  their   possible
motivation,   arising  from  their  status  as   a   party   or
representative  in  proceedings  before  a  court.  Proceedings
before  a  Council  are opened on a petition submitted  by  the
relevant  court  chairman (§ 144), who is (in addition  to  the
judge  whose professional qualifications are at issue) a  party
to  the proceedings in questions, as is the Minister of Justice
(§  145  par.  1). If any of these parties disagrees  with  the
Council’s  decision, he may file a petition for  evaluation  of
the  judge’s professional qualifications with the Supreme Court
(§  153), and is a party to the resulting proceedings (§  157),
which terminate in a decision by the Supreme Court.
    
   In  the  opinion  of  the  Constitutional  Court,  the  very
enumeration of the individual powers of bodies of the executive
branch  (which  are themselves in relationships of  superiority
and subordination) gives rise to a disproportionate opportunity
for  interference by the executive into the judicial power. The
powers of representatives of the executive branch, conceived so
widely  and  multilaterally, in relation to the  evaluation  of
professional  qualifications of judges who  have  already  been
appointed,  in  their  cumulative effect  do  not  observe  the
principle  of separation of powers and in light of  the  above-
mentioned   constitutional  values  they  cannot  be  accepted.
Through  them, the executive power, which, in relation  to  the
judicial  power,  is  supposed  to  only  create  material  and
organizational   prerequisites  for  its  proper   functioning,
acquires   instruments  which  are  capable,   even   if   only
indirectly,  of influencing the independent decision-making  of
judges.  The  fact  that  the final  decision  on  professional
qualifications is in the hands of a panel of the supreme  Court
cannot fundamentally change anything in this conclusion on  the
disproportionate  opportunity  for  the  executive   power   to
interfere  in the judicial power, likewise the fact that  input
to  the  evaluation  of  judges is also given  by  the  judges’
councils  newly established by the Act, elected from among  the
judges  at individual courts, as they have only advisory votes,
which  the  representatives  of the  executive  power  are  not
required  to accept. In this regard, it must also be emphasized
that  under  the  Act  the judicial councils  do  not  have  an
umbrella  body  which  could be a true  representative  of  the
judicial power and a partner for the Ministry of Justice  as  a
central  body of state administration, or, as the case may  be,
itself bear responsibility for proceedings and the exercise  of
court administration, as well as responsibility for the quality
of judicial personnel.

  Art. 81 of the Constitution, already cited, provides that the
judicial  power  is exercised in the name of  the  Republic  by
independent courts. Art. 82 par. 1 of the Constitution provides
that  judges are independent in the exercise of their  offices,
and   no  one  may  endanger  their  impartiality.  Thus,   the
independence  of a judge and the independence of  the  judicial
power  are related, and are in a relationship of being mutually
conditional,  also with the impartiality of  a  judge  and  the
court. Independence and impartiality are inseparable attributes
of  the  concept of a court. Its impartiality and  independence
are  a  value  which benefits everyone, as it  is  one  of  the
guarantees  of  equality and legal certainty  in  a  democratic
society.  Only an impartial court is capable of providing  true
justice  always  and to all, and one of the means  guaranteeing
the  impartiality of a court is the independence of judges. The
Constitutional  Court has already considered the  principle  of
judicial independence in a number of its decisions, for example
in  the  matters  under file nos. Pl. ÚS 13/99  (Collection  of
Judgments of the Constitutional Court, vol. 15, pp. 191 – 202),
Pl.  ÚS  18/99 (vol. 19, pp. 3 – 21), Pl. ÚS 41/2000 (vol.  21,
pp.  493 – 500), in which it emphasized the importance of their
guarantees   as   a  basic  prerequisite  for  fulfilling   the
constitutional  status of the judicial power,  as  a  separate,
individual form of the exercise of state power. The purpose  of
these guarantees is to ensure that a judge has the status which
is  required  by  his  role in the process of  impartial,  just
decision-making by a court, in which the judge  is,  under  his
oath, bound only by the legal order and his best knowledge  and
conscience   (naturally   constantly   juxtaposed   with    the
fundamental values attached to human beings and justice). Thus,
everyone  may legitimately, in accordance with Art.  6  of  the
Convention,  expect  independence  and  impartiality  from  the
judiciary  and from every judge to whom the protection  of  his
rights  is entrusted. Under the cited norm, the requirement  of
“an  independent and impartial court established  by  law”  has
also  been developed in the case law of the European  Court  of
Human Rights so that, to fulfill the condition of independence,
it  is  essential that the court can base its decisions on  its
own  free  opinion  of  facts and their legal  aspect,  without
having  any obligation whatsoever toward the parties and public
bodies,  and  without its decision being subject to  review  by
another  organ  which  would not also be  independent  in  that
sense.   In  this  regard,  we  can  also  mention  independent
documents  which  emphasize the independence  of  the  judicial
power  and  judges, such as the Fundamental Principles  of  the
Independence of the Judicial Power, passed by the UN  in  1985,
and  the  positions of the Council of Europe on the  judiciary,
which are formulated in the Recommendation of the Committee  of
the  Ministers  of  the  Council of  Europe  No.  12  of  1994,
emphasizing  the  necessity of a judge’s  independence  in  the
process  of decision-making for acting without any restriction,
inappropriate   influence,  external  motivations,   pressures,
threats or interference, direct or indirect, from any direction
and  for  any reason, and emphasizing as regards the  executive
and legislative powers, the need for creating and strengthening
the   guarantees  of  the  independence  of  courts.   In   our
Constitution  these  guarantees include,  in  addition  to  the
principle  of  the incompatibility of offices, the  absence  of
time  limits on the office of a judge (Art. 93 par.  1  of  the
Constitution),  non-transferrability and  non-removability,  as
enshrined in Art. 82 par. 2, par. 3 of the Constitution. Par. 2
of  this  provision provides that a judge cannot be removed  or
transferred  to another court against his will; exceptions  due
to disciplinary responsibility are provided by statute. In this
regard it must be said that a certain amount of room, which the
framers of the Constitution provided in this provision by using
the  term  “in  particular”, precisely because it  is  used  in
relation  to  an exception, must be interpreted in  a  strictly
restrictive   manner,  in  accordance  with  the  usual   legal
principle  on the relationship between a rule and an exception.
Thus,  we can fully agree with the petition that exceptions  to
the  rule  of  non-removability of judges  can  apply  only  to
conduct  which  is,  in  its  intensity,  comparable  with  the
disciplinary violation expressly cited by the Constitution.  An
example  of such conduct is another reason provided by the  Act
for  the  termination  of a judge’s office,  conviction  of  an
intentional  crime or conviction with a prison sentence  for  a
crime  of  negligence;  however, an  evaluation  of  a  judge’s
professional   qualifications   as   inadequate,    influenced,
moreover,  as  emphasized  above, in substantial  part  by  the
executive power, cannot be of such character.

   We  must  undoubtedly  agree  that  a  judge’s  professional
qualifications,  in  addition to his moral  integrity,  are  an
undoubted  prerequisite for the due performance of his  office,
and  therefore  exceptional emphasis  must  be  laid  on  them.
However, the emphasis must be attached primarily to preparation
for  this profession. The act appointing a judge to his  office
without  limitation  in time, must, however,  be  done  in  the
conviction that the candidate will hold up in all areas –  also
fundamentally from the perspective of a substantial part of the
aspects cited for evaluation of the professional qualifications
of  judges in § 136 par. 1 of the Act. Thus, it is precisely in
the  process preceding a judge’s appointment to his office that
all  possible  requirements  imposed  on  a  judge  should   be
concentrated,  and it is precisely here that the evaluation  of
professional  qualifications must be subject to  the  strictest
criteria, thus ruling out at the very beginning the possibility
of   appointing   as   a  judge  a  person  with   insufficient
professional  qualifications or a person lacking guarantees  of
further self-education (even at the possible cost of exchanging
the current practice for one which would permit the appointment
only  of a person whose moral, human and professional qualities
had  already  been  verified by the  results  of  his  previous
profession).  However,  at the moment  of  appointment  such  a
person becomes a judge, and thus an essential attribute of that
office,  appearing  in the form of a judge’s  independence,  is
also  activated. During the decision-making process  the  judge
then  not  only must be independent and impartial,  but  should
also  be objectively perceived as such by the public. For  this
reason  too  the Constitutional Court considers  the  evaluated
mechanism  of subsequent and repeated evaluation of  a  judge’s
professional  qualifications, which may  lead  as  far  as  his
removal, to stand in conflict with constitutional guarantees of
judicial independence. It appears so because the judge  who  is
exposed  to  such  evaluation  –  the  methods  of  which  are,
moreover, directed by a body of the executive power  –  is  one
whose  qualifications, including professional ones, to  perform
this  office  have  already  received  state  approbation.   In
connection with the foregoing, one cannot overlook the possible
effect  of  appeals on the grounds cited on legal certainty  in
general,  in  relation  to  those court  decisions  which  have
previously been issued by a judge thus removed due to  lack  of
qualifications.

   Although  the aim pursued by a legal regulation  seeking  to
achieve  a qualitatively higher level of judicial personnel  is
legitimate,  the chosen means aimed at it, as it is constructed
in the contested provisions, must be evaluated as not observing
fundamental  constitutional principles. Moreover,  it  must  be
taken  into consideration that the Act, in connection with  the
judges’ responsibility for their professional qualifications in
the  performance of their offices declared in it (§ 82 par. 1),
also  expressly included, among the obligations it  imposed  on
judges,  the obligation to consistently educate themselves  and
deepen their professional knowledge for the proper exercise  of
their  office  (§  82  par. 2), as well as  the  obligation  to
fulfill that obligation in accordance with the interest in  the
due  exercise  of  the  judiciary,  and  if  the  judge  causes
violation of his obligation this is a disciplinary violation (§
87)  for which the judge also bears disciplinary responsibility
(§  86), which may even lead to his removal [§ 88 par.  1  let.
d)].  Thus,  it  can  be said that to reach a  situation  where
persons  who  ignore  the obligation  to  take  care  of  their
professional  level  are excluded from the judicial  personnel,
the  Act  makes use of means which are – such as the  exception
from the principle of non-removability – expressly presumed  by
the Constitution.

  The Constitutional Court is also convinced that the contested
mechanism  for  reviewing  the professional  qualifications  of
judges  as  it  is  regulated by the Act must be  rejected  and
considered unconstitutional on the grounds that it violates the
principle of separation of powers and the related principle  of
judicial independence. This, as already stated above, is of  an
unconditional  nature,  ruling  out  the  possibility  of  such
intervention  by  the executive power as is  represented  by  a
disproportionate    role   in   reviewing   the    professional
qualifications  of judges. For these reasons the Constitutional
Court granted the petition of the President of the Republic and
annulled  all  provisions  of the  Act  on  Courts  and  Judges
concerning  evaluation  of the professional  qualifications  of
judges as they are enumerated in the introduction to this part,
due to their conflict with Art. 1, Art. 2 par. 1, Art. 81, Art.
82  par. 1, par. 2, and Art. 93 of the Constitution, without it
being   necessary  to  separately  consider  or  evaluate   the
constitutionality  of § 160 of the Act, as the  institution  of
evaluation of the professional qualifications of judges must be
annulled,  in  view  of  the interconnectedness  of  individual
levels  at  which  the  evaluation is performed,  as  a  whole,
including  those  parts of the provisions  which  concern  that
institution.
    
   The  Constitutional  Court then drew on  the  principles  of
separation  of powers, independence of the judicial power,  and
the  independence of judges, and following on what has  already
been   stated   concerning  these  concepts,   also   evaluated
provisions   contested  by  another  part  of  the  President’s
petition, relating to the obligations set by them on judges  to
periodically  complete training in the Judicial Academy  (§  82
par.  2 second sentence). This is established by the Act as  an
organization  component of the state  (§  129  par.  1),  whose
activities  are  supervised by the Ministry of Justice  (§  130
par. 4). It is directed by a director appointed and removed  by
the  Minister  of  Justice, and the content  of  the  education
activity,  enrollment of judges and study programs are  set  by
the  Council  of the Judicial Academy, again appointed  by  the
Minister  of Justice (§ 130 par. 2), whom, also on the proposal
of  the  director of the Judicial Academy, appoints and removes
teachers  working at the Academy (§ 133). It follows from  this
that it is again primarily the executive power, represented  by
the   Minister   of   Justice,  to  which  the   Act   provides
authorization  to  determine  a manner  of  education  for  all
judges, as, even if the Act also permits professional education
through  the Supreme Court (§ 129 par. 3), the assumption  that
the  Supreme  Court could do this, given its current  decision-
making  and other activities, in the scope presumed by the  Act
for  all judges in the time limits set by (§ 131 and 132 of the
Act),  is  unrealistic. The situation arising  from  the  legal
regulation  as  analyzed above, where the manner of  education,
including setting its content, remains de facto in the hands of
the  executive  power, cannot be accepted,  as  it  is  another
expression  of  the principle of the separation  of  powers,  a
disproportionate and impermissible influence by  the  executive
power on the judicial power. In view of the nature of power, it
cannot  simply be presumed that the executive power, given  the
existence  of  authorization provided to it by  the  Act,  will
exercise  this authorization in a self-limiting and  restrained
manner.  In this regard it is necessary to point repeatedly  to
the  fact  that  the  task of the judicial  power  is,  through
judicial  independence as a prerequisite for its due  exercise,
to   protect  the  rights  of  citizens,  including  from   the
arbitrariness or unauthorized interference of the  state,  i.e.
including  the executive power. The possibility of  influencing
the   nature  of  this  protection,  even  in  a  manner  which
externally appears to be clothed in the requirement of properly
ensuring professional qualifications of judges, could,  in  the
situation  constructed by the Act, lead, on  the  contrary,  to
restriction of the thus-understood independence. The  described
system  of education, de facto directed from the center of  the
executive  power,  does not provide the necessary  prerequisite
for  independent  and free formation of opinion,  that  of  the
widest  possible openness with a possibility for  confrontation
of different opinions from various sources (the choice of which
should  be  left  to  the  autonomous  decision  of  the  judge
himself),  including foreign sources. Such a  system  then,  in
connection  with the statutorily provided manner of  completing
education  and in relation to judges, through the final  thesis
(§  132 par. 2), which is subject to evaluation (the result  of
which  will thus apparently, by the nature of the manner,  also
be  conditioned by the judge’s acceptance of opinions presented
in  the Academy), and this is then one of the documents in  the
evaluation of a judge’s professional qualifications, may  evoke
a  feeling of dependence and lead to other undesirable results,
such  as  loss  of a sense of one’s own responsibility  in  the
decision-making process itself.
    
   In  this context it is necessary to respond more closely  to
the   position   statement  from  the  Chamber   of   Deputies,
emphasizing  the passage of the contested Act by the  need  for
new  reform,  the  aim of which is a speedy, just  and  unitary
judiciary,  which, however, lacks a deeper immersion  into  the
problem  of unity and uniformity and also betrays the  lack  of
clarity  in  the  nature and function of social  phenomena  and
institutions  in  general.  A closer  analysis  of  any  social
phenomenon  points  to  the  presence  of  antithetical  forces
functioning  in  it and creating a tension between  both  these
correlated  elements,  a  tension  which  is  an  indispensable
condition  for  social development. The principle  of  polarity
which  operates in social events thus also creates tension,  in
addition  to  a  range of other forms, between the  search  for
unity  and  variety. From this base of ideas  comes  democracy,
which,  although  it  regards this  fact  as  a  difficult  and
problematic  reality, nevertheless also sees  it  as  the  most
serious barrier to a dysfunctional uniformity. Therefore “real”
unity  can  be  achieved only through the conflict  of  various
aspects, relating to particular areas, some of which aim toward
unity,  while  others aim toward variety. The  source  of  true
unity must therefore be sought first of all in conflict, as  it
is only through the effects of a great number of often markedly
diverging opinions and attitudes that each person also acquires
an awareness of social congruence and unity.
    
   Brought  into very close relation with the matter at  issue,
the  requirement  of  a unitary judiciary  must  be  considered
problematic in the directions identified, both in its aspect of
unitary education and in the aspect of unitary decision-making.
Any  unity may fulfill a positive social function only if those
who   aim   toward  it  are  also  capable  of  differentiating
themselves  so  that  they can thereby  more  meaningfully  and
effectively  unite. Judicial unity not conditioned by  anything
would,  on  the  contrary,  lead  to  undesirable  effects   on
conditions  in which each individual judge would be ordered  to
accept further education from a source determined by the  state
and  under pressure from a hypertrophy of unifying every detail
would  be  deprived of conditions for just evaluation  of  each
individual  case  by  respecting its uniqueness.  A  mechanical
assumption of what had already been “unified” would  thus  lead
not  only to an undesirable model, but would endanger the  very
development  of legal thought. Therefore, in the  situation  of
the  judiciary  one  can accept the creation  of  a  relatively
unitary  opinion  only within a framework given  by  procedural
steps  which themselves do not rule out the conflict of various
opinions.
    
   Ensuring a foreseeability of decision-making in courts which
complies with legal certainty and respect for the laws (Art.  1
of the Constitution) is a task primarily for the preparation of
future  judges,  and within that preparation, finding  suitable
methods  capable  of  ensuring  that  standard  procedures  are
embraced in standard situations and verifying knowledge of  not
only  legal regulations but also case law. The primary task  of
the  latter  is  to  give  direction to the  interpretation  of
regulations within the intentions of constitutional principles,
and  it is the responsibility of the judges themselves not only
to  know the case law, but also, to develop and create it in  a
manner responding adequately to the changing social reality.

   It  is undisputed that the continuing professional education
of  judges  is expected of the profession. This postulate  also
arises  from  the  cited  international  documents.  As  stated
earlier in another context, it is an obligation also imposed by
this Act in § 82 par. 2, and the Act also provides that a judge
is  responsible  for  his  professional  level.  However,  this
responsibility,  and this must be emphasized, arises  primarily
from  the very foundation of judicial independence, with  which
it  must  necessarily be connected, and from which also  arises
the  commitment of each individual judge not only to  just  and
impartial decision-making but also foreseeable decision-making,
built on thorough knowledge of legal regulations and case  law,
as  what  is typical for the attribute of judicial independence
and  also  necessary in the interest of the  functioning  of  a
democratic system is precisely the natural connection  of  this
attribute with judicial responsibility, arising also from  Art.
90 and Art. 95 of the Constitution and expressed in detail, for
example,  in  Art. 6 par. 1 of the Convention,  imposing  on  a
judge  the obligation corresponding to the right of each person
to have his matter justly, publicly and in an appropriate time,
handled   by   an   independent  and   impartial   court.   The
responsibility and guarantee for this commitment, however, must
be borne by the judicial power itself.
    
   Thus,  we  can conclude that the very establishment  of  the
Judicial  Academy by the Act has its justification in  view  of
the  role  which it is to fulfill in the education  of  trainee
judges  and  other court employees; in relation  to  continuing
education  of judges, however, it can be seen, with  regard  to
what  was  stated  above, only as one of the possible  sources,
chosen  freely by the judge himself. Therefore, for  the  cited
reasons,  the Constitutional Court annulled all the  provisions
of  the  Act which impose the obligation of education of judges
in  the Judicial Academy, as well as provisions related to them
in content, concern the scope of that obligation.

  The last circle of provisions contested by the petition [§ 15
par.  2 second sentence, § 26 par. 2 second sentence, § 30 par.
2  second sentence, § 34 par. 2 second sentence, § 68 par. 1 in
the  words “to the Ministry or” , § 74 par. 3, § 99 par. 1 let.
c)  in the words “to the Ministry or”, § 106 par. 1, § 119 par.
2 and par. 3, § 120, § 121, § 124 to 128] basically concern the
regulations   governing   the  manner   of   exercising   state
administration  of  courts.  In evaluating  this  part  of  the
petition   the   Constitutional  Court   had   to   take   into
consideration  that  the petition from  the  President  of  the
Republic, by whose requested judgment the Constitutional  Court
is  bound,  did  not contest the position of  the  Ministry  of
Justice  as the central body of state administration of courts,
and  likewise,  with  some  exceptions,  did  not  contest  the
jurisdiction of that body.
    
  In evaluating the cited provisions, § 74 par. 3 of the Act is
of  key  significance,  which states  that  offices  in  public
administration  are  not considered to include  the  office  of
chairman and vice-chairman of a court, temporary assignment  to
the  Ministry,  members  in  a  Council  and  the  council  for
professional qualifications of state prosecutors, membership in
advisory  bodies to the Ministry, the government and bodies  of
the  chambers  of  Parliament. For evaluating  the  content  of
article 82 par. 3 of the Constitution is decisive, which states
that the office of a judge is not compatible with the office of
President of the Republic, a member of Parliament or any  other
office in public administration; a statute shall provide  other
activities with which the exercise of the office of a judge  is
incompatible. Thus, the Constitution provides which offices are
fundamentally  incompatible with the office  of  a  judge;  its
first  sentence  must  be understood as a  demonstrative  list,
whose  limitations can, in accordance with the second  sentence
after  the semi-colon, be expanded, but not narrowed, as  §  74
par.  3  of  the Act does. The legislature, thus authorized  to
expand  the cited list, but not to restrict it, can not  change
the  will of the framers of the Constitution by issuing a legal
norm   addressing  this  matter  and  thus   not   having   its
constitutional basis in it. Thus, if the Constitution,  as  the
norm of the highest legal force, sets a rule that the office of
a   judge   is   incompatible  with  any   office   in   public
administration, which activity must undoubtedly  be  considered
to  substantially  include  the  activities  named  in  related
provisions,  which are performed by chairmen and  vice-chairmen
of  courts  (which  are, in any case, expressly  identified  as
bodies  of state administration by § 119 par. 2, par. 3),  then
one cannot conclude otherwise than that the cited provision  is
in  conflict  with Art. 82 par. 3 of the Constitution,  and  in
connection  with  it, also all others arising  from  it,  which
further  regulate  the office of chairmen and vice-chairmen  of
courts  and  their  activities.  Here,  however,  it  must   be
emphasized   that  the  Constitutional  Court  annulled   these
provisions solely due to the cited formal reasons, and that  by
derogation  of  §  74 par. 3 of the Act it did  not  intend  to
indicate that the direction and administration of courts should
be  entrusted to persons other than those from among the  ranks
of judges.
    
  The principle of incompatibility of offices, expressed in the
above-cited  article of the Constitution, may not  be  violated
even  by an act permitting judges to function in bodies of  the
executive power, or the legislative power, as is then  done  by
the  contested § 74 par. 3 of the Act. The cited  principle  of
incompatibility  of offices is one of the other  guarantees  of
judicial independence. As a constitutional principle,  it  must
be   strictly   observed,  and  cannot   be   circumvented   by
arrangements such as are contained in § 99 par. 1  let.  c)  of
the  Act, under which a judge, while working – expressly solely
at  the Ministry – temporarily relieved of the exercise of  his
office.  An  immanent feature of this office is its continuity.
Membership  in advisory bodies to the Ministry, the  government
and both chambers of Parliament certainly includes the relevant
fulfillment  of the tasks of these separate components  of  the
state  power and the working of judges in these bodies is  thus
in  conflict with the principle of separation of powers, not to
mention  the  fact that personal and extra-judicial connections
which  arise  during  such  activity unavoidably  increase  the
probability  of a possible conflict of interest and  thus  make
impartiality  in  the form of judges’ lack of bias  subject  to
doubt.
    
  Thus, the Constitutional Court, for the cited reasons, due to
conflict with Art. 82 par. 3 of the Constitution, annulled § 74
par.  3,  as well as all the other provisions which arise  from
it,  relate  to it in content or structure, as they  are  cited
above. Moreover, it must be added that the Constitutional Court
was  led  to  annul § 106 par. 1, in addition  to  the  reasons
already  stated, by another reason, the quite general and  non-
specific  –  not  corresponding  to  the  principle  of   legal
certainty  –  expression of reasons leading to the  removal  of
chairmen  and  vice-chairmen  of courts.  In  this  regard  the
Constitutional Court considers it necessary to  note  that  the
offices  of  chairmen  and vice-chairman of  courts  should  be
considered an advancement in a judge’s career (similar  to  the
appointment  of a panel chairman), and therefore  the  chairman
and  vice-chairman  of a court should also not  be  subject  to
removal otherwise than for a reason foreseen by statute and  by
proceedings  in  disciplinary  proceedings,  i.e.  by  a  court
decision.  A structure where the chairmen and vice-chairmen  of
courts  also  perform  activities which are  administrative  in
nature,  without, however, losing the quality of the office  of
an  independent judge, and only due to that find themselves  in
the  position of a state employee, whose defining feature is  a
subordinate  relationship  and the  following  of  orders  from
superiors in employment, is considered in a number of developed
European countries (e.g. Austria, Germany, Sweden, Norway,  the
Netherlands,  Great  Britain,  Ireland,  Italy,  Portugal)   an
integral  component of the principle of separation  of  powers,
flowing  from the requirements of a state governed by the  rule
of  law and the derived principle of institutional independence
of  the judiciary, as well as from the principle of undisturbed
exercise  of  the  personal, independent judge’s  mandate.  The
Constitutional  Court  also adds that  the  current  situation,
where the central body of state administration of courts is the
Ministry  of  Justice, and the judicial power itself  does  not
have  its  own  representative body at that level  (which  body
could  be  a body authorized to assume the task of the Ministry
in  personnel  matters, including supervision of the  level  of
professional qualifications of judicial personnel, possibly  in
other  areas of directing and exercising the administration  of
the  judiciary), in the Constitutional Court’s opinion does not
adequately  rule  out  possible  indirect  influencing  of  the
judicial  power by the executive power (e.g. through allocation
of budgetary funds and inspection of their use). However, it is
clear  from  what  has already been stated  that  the  previous
contested  parts  of  the Act were annulled predominantly  with
reference to failure to observe the principle of separation  of
powers.  Therefore, in evaluating this part of  the  provisions
contested by the petition, the Constitutional Court itself  had
to  observe  this  principle. It is not for the  Constitutional
Court to decide how the issue of court administration should be
handled,  as that is a task for the legislative power. However,
in   choosing  an  administrative  model,  that  power   should
thoroughly  observe the separation of state powers.  Therefore,
so that the legislature will have adequate room for the passage
of a new regulation of court administration, the Constitutional
Court  has  postponed the executability of  this  part  of  the
decision, i.e. concerning those provisions named in point 2  of
the verdict, until 1 July 2003.
    
    
Instruction: The decision of the Constitutional Court cannot be
appealed.
    

Brno, 18 June 2002
    



                                                               



                               
Joint partially dissenting opinion
of judges J. Malenovský V. Ševèík and P. Varvaøovský
to the judgment Pl. ÚS 7/02

    Similarly   like  the  majority  of  the  judges   Of   the
Constitutional Court we share the opinion of the  President  of
the Republic, as petitioner, that Act No. 6/2002 Coll. (the Act
on   Courts  and  Judges)  in  certain  respects  violates  the
balancing of powers in a state governed by the rule of law,  as
it  provides  “a  disproportionate influence by  the  executive
power   on   the  judicial  power”,  which  can  endanger   the
independence  of the justice system. This applies  specifically
to  provisions which concern the evaluation of the professional
qualifications  of judges. As far as this group  of  provisions
goes,  we agree with the relevant parts of the verdict and  the
reasoning of the decision.
    
    However,   we   have   serious   reservations   about   the
disproportionately  high  amount of  derogative  changes  which
marks  the decision. We believe that some of the key provisions
of  the Act on Courts and Judges which the decision annuls  are
not  in  conflict  either  with the Constitution  or  with  the
principles  of a state governed by the rule of law.  Therefore,
by  annulling them, the Constitutional Court has taken its role
as  the  judicial  body  for  protection  of  constitutionality
unjustifiably  “generously”  and  has  even  entered  the  area
reserved  exclusively  to the framers of the  constitution,  by
tying  its  verdict with its opinion de constitutione  ferenda.
With its derogative changes the Constitutional Court’s decision
demonstrates  a concept of judicial power freed from  ties  and
specific relationships with both of the other pillars of  state
power,  including from such ties and relationships as  are  not
capable of evoking detriment to the independence of courts  and
judges, and are thus not in conflict with the principles  of  a
state  governed  by  the rule of law. The purpose  of  a  state
governed  by  the rule of law is not, in our opinion,  judicial
power  immersed in itself and isolated from the  other  powers,
but   one  reasonably  cooperating  with  the  legislative  and
executive  powers. Therefore, we cannot agree with the  concept
of the decision.
    
    * * *
     In our opinion the decision went too far in particular  in
connection  with § 74 par. 3 of the Act on Courts  and  Judges,
which  it annulled entirely. In doing so, the reasoning of  the
decision  assigned it “key importance”, which was reflected  in
the verdict through the annulment of all other provisions which
“arise  from  §  74 par. 3 or are related to it in  content  or
organization”. The first part of this provisions states that an
office  public administration is not considered to include  the
office  of  chairman  and vice-chairman of a  court,  temporary
assignment to the Ministry, membership in the Council  and  the
Council  for  professional qualifications of state prosecutors,
membership  in advisory bodies of the Ministry, the  government
and  in  bodies  of  the chambers of Parliament.  The  decision
reached  the  conclusion that § 74 par. 3 is in  conflict  with
Art. 82 par. 3 of the Constitution, which states the office  of
a   judge   is   incompatible  with  “any  office   in   public
administration”. According to the decision, it is not up to the
legislature  to  change  the  intent  of  the  framers  of  the
constitution  by issuing a legal norm which narrows  the  cited
constitutional rule of the incompatibility of the office  of  a
judge with “any” office in public administration.
      Of  course,  in  interpreting  Art.  82  par.  3  of  the
Constitution the decision limited itself merely to a linguistic
interpretation and did not take into account the actual  intent
of the framers of the constitution. It thereby reached a faulty
conclusion.
     On 9 November 2000 the government submitted to the Chamber
of Deputies a draft of a constitutional act, which was to amend
the  Constitution, among other things, by inserting a new  Art.
91a,  establishing the Supreme Judicial Council, which  was  to
take  part  in the administration of courts (point  11  of  the
draft).  The  background report to the government draft  states
that  “activity in the area of administration of  courts  which
does  not  belong to the Supreme Judicial Council will continue
to  be  performed by the executive power”. A following  Act  on
Courts   was   to   “set   mutual   connections   between   the
administration of the judiciary performed at the central  level
by the Supreme Judicial Council and the state administration of
courts  performed  at  the central level  by  the  Ministry  of
Justice”.
     The  Chamber of Deputies subsequently in its roles as  the
framer  of  the  Constitution discussed the  government  draft.
During the discussion, none of the deputies described the then-
existing  manner  of  administration  of  the  judiciary  (ties
between  the  Ministry of Justice and officials  of  individual
courts) as being in conflict with the Constitution, and such  a
conclusion cannot be reached through any interpretation of  the
debates.  By  rejection  the government  draft  in  the  second
reading  on  17  May  2000  by  a  practically  “constitutional
majority”   of  114  votes,  the  framer  of  the  Constitution
confirmed  the  legal status quo of the administration  of  the
judiciary. Thus, it is quite evident that in 2000 the framer of
the Constitution interpreted Art. 82 par. 3 of the Constitution
to mean that the exercise of state administration of the courts
by  the  chairmen and vice-chairmen of individual courts  under
the auspices of the Ministry of Justice at the central level is
not in conflict with the constitutional rule of incompatibility
of   the  office  of  a  judge  with  “any  offices  in  public
administration”. Therefore, § 74 par. 3 of the  Act  on  Courts
and  Judges,  reviewed by the Constitutional  Court,  does  not
narrow the constitutional rule of incompatibility in the  given
regard, but merely confirms its content and scope correctly, as
it is interpreted by the framer of the Constitution itself.
      The   joint   exercise  (of  at  least   part)   of   the
administration of the justice system by the Ministry of Justice
at  the  central level and by officers of individual courts  at
lower levels is also not in conflict with the principles  of  a
state  governed by the rule of law. It would come into conflict
with  them  only if a particular statutory model of such  joint
exercise interfered in the independence of the judiciary or  of
judges.  The  idea of joint exercise of administration  of  the
justice  system as such is also not contested by Recommendation
No.  (94)12  of  the Committee of Ministers of the  Council  of
Europe,  on  which  the  reasoning of  the  decision  expressly
relies,  nor by other international instruments. The  model  of
joint exercise of administration of the justice system is  also
known in other European states.
    We  too,  in agreement with the reasoning of the  decision,
believe that it is desirable for the judicial power to have its
own representative body at the central level; implementation of
this  though  de constitutione ferenda is, however, exclusively
in  the  power of the framer of the Constitution,  and  in  the
current  constitutional  state of  affairs  the  Constitutional
Court  cannot  use it to measure the constitutionality  of  the
relevant  part of § 74 par. 3 of the Act on Courts and  Judges.
Unfortunately, however, that is exactly what the decision did.
    Although  we do not agree with the verdict of the  decision
in  relation to the cited part of § 74 par. 3, we share with it
the  conviction  that § 106 par. 1 of the  Act  on  Courts  and
Judges,  whose  generality  and uncertainty  do  not  meet  the
requirements “of the law” as it is interpreted not only by  the
Constitutional Court, but also by the European Court  of  Human
Rights, is in conflict with the constitutional order.
     Independence is not a personal prerogative of a judge, but
an  inseparable  part of the performance of his decision-making
activity. This “functional” concept also follows from the cited
recommendation of the Committee of Ministers of the Council  of
Europe  (see principle I.2.d). Therefore, a judge  may  not  be
forbidden  any  personal or extra-judicial  social  ties  which
occur  outside of a causal connection with his decision-making.
This also applies to the temporary assignment of a judge to the
Ministry or to his activity in advisory bodies to the executive
or legislative powers.
    In  any case, “assignment” to the Ministry in and of itself
is  certainly  not  the  exercise  of  an  “office”  in  public
administration. It could possibly be in conflict with  Art.  82
par.  3  of  the Constitution, if, during assignment,  a  judge
assumed  an  “office’  in  public administration,  i.e.  if  he
independently  performed the tasks of state administration  and
if  he  were endowed for it with the appropriate authorizations
and activity. The temporary nature of the assignment, temporary
release  from  the exercise of the office of a judge,  and  the
judge’s  consent  to  the  assignment are  adequate  guarantees
against  detriment  to  the  independence  or  impartiality  of
judges.  We  consider  it  undoubted  that  under  the   stated
conditions the “actual independence” of a judge, on  which  the
reasoning of the decision itself relies, is ensured.
     We evaluate the activity of a judge in advisory bodies  to
the  executive  or legislative powers analogously.  It  follows
from  the  “advisory” nature of these bodies that they  do  not
perform  an independent “office” in public administration,  and
mere membership in them cannot be in conflict with Art. 82 par.
3 of the Constitution, even if, at the deontological level, one
could  agree  that  such membership cannot  be  recommended  to
judges. Of course, this does not lead to conflict of that  part
of  §  74  par.  3  of the Act on Courts and  Judges  with  the
constitutional order. Membership in an advisory body in and  of
itself   is   not  capable  of  casting  doubt  on  a   judge’s
impartiality,  as a postulate required by the Constitution.  As
state above, neither the Constitution nor the principles  of  a
state  based on the rule of law can be interpreted to rule  out
reasonable cooperation by the judicial power with the executive
or  legislative  powers, provided that during this  cooperation
there   is  no  pressure,  inappropriate  influence  or   other
interference  toward the judge in connection with the  exercise
of  his  decision-making activity (see principle I.2.d  of  the
Recommendation of the Committee of Ministers of the Council  of
Europe cited above).
     The  decision of the Constitutional Court went beyond  the
limits  of mere evaluation of constitutionality in the case  of
the  statutory  regulation  of the  education  of  judges.  The
central  provision  of the Act on Courts  and  Judges  in  this
regard  is  the  second  sentence of § 82  par.  2,  which  the
decision annuls in full. We believe that only the part  of  the
sentence beginning with the conjunction “and” to the end of  it
(the  obligation  to  submit  to evaluation  of  knowledge  and
awareness ) should be annulled.
     The decision did not find conflict with the constitutional
order  concerning § 82 par. 1 and the first sentence  of  §  82
par.  1,  which  provide  a  judge’s  statutory  obligation  to
consistently  educate himself and his statutory  responsibility
for  his professional level. Because the decision annulled  the
entire  second  sentence of § 82 par. 2,  a  judge’s  statutory
obligation  to educate himself must interpreted exclusively  as
an  obligation  to educate himself by himself,  by  independent
study.  Forms of institutional, organized education  cannot  be
included  in  this statutory obligation. We do not  agree  with
this restrictive understanding of a judge’s responsibility  for
his  level  of  qualification. We believe  that  constitutional
grounds  for annulling the statutory obligation to “participate
in   professional  education  in  the  Judicial   Academy   and
professional preparation organized by the courts” were lacking.
     It  is  true  that with some elements of the education  of
judges  it  is  not  only reasonable and purposeful,  but  also
appropriate to insist on organized forms of such education, and
that a statute may provide an obligation on judges to take part
in  them. This applies primarily to those areas of law in which
judges  could  not,  in their time, obtain adequate  university
level  education (particularly European law).  The  extent  and
specific  applications  of  this  obligation  depend   on   the
particular  situation of the judiciary in  a  given  state.  Of
course,  it  cannot  be  described  as  incompatible  with  the
constitutional  order  a  priori,  flatly  and   without   time
restriction.
     The  Recommendation of the Committee of Ministers  of  the
Council of Europe (94)12 considers this problem as part of  the
regulation  of  principle  III “Suitable  working  conditions”.
Point  a) presumes education and training of judges even  after
their  appointment, both by the courts themselves and by  other
institutions. The text does not indicate that judges could  not
be  given  an  obligation to participate in them,  it  is  only
required that they be without cost.
     The  circumstance that education is to be provided by  the
Judicial  Academy  with  certain ties to  the  executive  power
cannot  represent  an  actual threat  to  the  independence  of
judges,  if only because § 82 par. 2 second sentence  offers  a
plurality  of education institutions (the Judicial Academy  and
courts  themselves – see also § 129 par. 3, which  specifically
mentions  in  this  regard the Supreme Court  and  the  Supreme
Administrative Court). The argument cited in the  reasoning  of
the  decision, that professional education through the  Supreme
Court is, given its current decision-making and other activity,
de   facto   unrealistic,  is  not   relevant   in   terms   of
constitutionality.  Correction  can  be  achieve  by   ordinary
statutory  and lower level procedures (budgetary and  personnel
reinforcements).  The  measure of constitutionality  cannot  be
subjected  to  momentary de facto inadequacies in the  judicial
education system.
     The provision of § 82 par. 2 second sentence represents  a
guarantee  of  the  plurality of education  institutions.  This
rules  out  the danger of indoctrination of judges by  opinions
from  a  single  source  and  artificial  “unity”,  which   the
reasoning of the decision unjustifiably finds behind the  cited
provision. The demonstrative enumeration of institutions in the
second   sentence   (“in   particular”)   also   presumes   the
participation  of  other  educational  institutions,  including
foreign  ones. Thus, the second sentence before the conjunction
“and” is not in conflict with the constitutional order, and  it
can  be  interpreted in a constitutional manner. Therefore,  it
should not have been annulled in its entirety.



Brno, 2 July 2002




Dissenting opinion of judge Güttler
to the judgment in Pl. ÚS 7/02

                               
                               

  The dissenting judge divides his dissenting opinion according
to  the  three  basic circles (groups) of issues on  which  the
decision of the Constitutional Court is based.
    
I.   The  first  circle concerns evaluation of the professional
qualifications of judges.

At  issue  are  particularly § 134 to 163 of the  Act  and  the
related  § 50 par. 1 let. f) and g) other provisions which  set
tasks  on  judicial  councils relating  to  evaluation  of  the
professional qualifications of judges, also § 71 par. 1  and  §
72   par.  2,  second  sentence,  which,  in  connection   with
transferring   judges,   speak   of   evaluation   of    expert
qualifications, § 123 par. 3 let. a), § 124 par. 4, § 125  par.
3,  § 126 par. 3, § 127 par. 3, which provide the authorization
of the Ministry of Justice and court chairmen in evaluating the
expert   qualifications  of  judges  and  some  other   related
provisions e.g. § 94 let. d).

Concerning this first circle of questions, the dissenting judge
has  a dissenting opinion only to the reasoning of the decision
on  page  13 in the last paragraph (from the word “Undoubtedly”
to the end of p. 13) and on page 14 in the continuation of this
paragraph  (from  the word “done” to the end of  the  paragraph
ending with the word “issued”).

That text should be replaced by the following text:

“However,  the  cited provisions do not reflect the  difference
between experienced judges and beginning judges, who have  held
their  office for a relatively short period. With these  judges
the  evaluation  of professional qualifications  is  necessary,
because  only the exercise of a judge’s office in practice  can
reliably  show  what  the  young  judge’s  qualifications   and
abilities  are.  Evaluation of a candidate for judicial  office
after  the end of the traineeship period is thus not sufficient
in this regard.

Therefore,   it   is   necessary  to  include   evaluation   of
professional  qualifications  in  the  new  legal  regulations,
though for new judges after 3 years (possibly 5 years) from the
time when they assume their office as judge.”

This opinion should have been expressed in the reasoning of the
Constitutional Court’s decision, not in its verdict, so that  §
134  par.  1  of  the Act would not be annulled, although  this
provision    speaks   of   the   evaluation   of   professional
qualifications of judges … after the passage of 36 months  from
the  time when they assume judicial office. This is because  it
is  also necessary to consider the mutual interconnectedness of
§  134  par.  1 of the Act with other provisions which  concern
evaluation of the professional qualifications of judges.

The  dissenting  judge  is aware that  under  Art.  93  of  the
Constitution  a judge is appointed to his office  without  time
restriction (including a beginning judge). Thus, the result  of
evaluation of professional qualifications should with the above-
mentioned  (beginning) judges not be – under the  future  legal
regulation  – in and of itself grounds for termination  of  the
office,  but  a  notice stimulating the judge  to  improve  his
professional qualifications. In any case it cannot be ruled out
that   the  new  legal  regulation  will  define  the   concept
“professional  qualifications of a judge”  from  aspects  other
than  does  the  present § 136 par. 1 of Act No.  6/2002  Coll.
Therefore,  one can also reason that in a particular  case  the
professional  qualifications  of  a  judge  can   also   be   a
disciplinary violation under § 87 of the Act (e.g. if  a  judge
clearly   does  not  fulfill  the  obligation  to  consistently
education himself under § 82 par. 2 of the Act).


I.   The  second circle concerns the obligations of  judges  to
participate in professional education in the Judicial  Academy,
etc.

In  this  circle, the dissenting judge has a dissenting opinion
to the verdict of the decision, as follows:

1)   In  §  82  par.  2 second sentence only  the  end  of  the
sentence,  with  the  words:  “and submit  to  the  statutorily
provided   manner   of  evaluation  and   assessment   of   his
professional  knowledge  and awareness.”  should  be  annulled.
Concerning  the  rest,  the petition to  annul  this  provision
should have been denied.

2)   The  petition  to annul other provisions in  this  circle,
which  more  closely  specify  the  obligation  of  judges   to
participate  in education in the Judicial Academy  should  have
been  denied. This concerns § 130 par. 2, the words “enrollment
of judges”, § 131 par. 1 let. a), b), § 132 par. 1 let. a), b),
par. 2, the words “of judges”, par. 3.

The  dissenting  judge – in contrast to  the  decision  of  the
Constitutional Court – considers that mandatory education of  a
judge  (including in the Judicial Academy) is  not  in  and  of
itself  in  conflict  with  the  constitutional  principle   of
independence of courts and judges (Art. 81, 82 par.  1  of  the
Constitution),  even if such education were  organized  by  the
Ministry  of Justice, i.e. a component of the executive  power.
It is undoubted that a judge cannot be bound in decision-making
in  a  particular matter by a legal opinion which was expressed
during professional education in the Judicial Academy; one  can
only  –  basically – require that a judge not  diverge  in  his
decision-making from the settled and generally recognized  case
law  of  the  general  courts and from  the  case  law  of  the
Constitutional  Court (Art. 89 par. 2 of the Constitution).  In
terms  of  the principle of independence of judges, one  cannot
overlook  the  fact  that  after  annulment  of  evaluation  of
professional qualifications of judges (see point I. above) – if
this  opinion  of  the  dissenting judge had  been  accepted  –
mandatory  professional  education of judges  in  the  Judicial
Academy  would have been preserved, though without the  related
statutory provisions concerning sanctions.


II.   The   third  circle  concerns  the  exercise   of   state
administration  of  courts  by chairmen  and  vice-chairmen  of
courts.

In this circle the dissenting judge has a dissenting opinion to
the verdict of the decision, as follows:

1)   The dissenting judge does not agree with annulment of § 74
par.  3,  which  provides which offices or activities  are  not
considered  offices in public administration. The petition  for
annulment of this provision should have been denied. In details
one  can  refer to the reasoning of the dissenting  opinion  of
Constitutional  Court  judges  professor  Malenovský  and   Dr.
Varvaøovský to the decision of the Plenum of the Constitutional
Court in the same manner.

2)   The dissenting judge agrees only with annulment of  §  106
par.  1, which provides that the court officer cited there  may
be  removed  from  his office if he does not duly  fulfill  his
obligations.  This reason is formulated sufficiently  generally
and  uncertainly in this provision that it comes into  conflict
with  the  principle that (every) law should  have  foreseeable
consequences.

3)   The petition to annul the other provisions in this circle,
which  basically  provide that chairmen  and  vice-chairmen  of
courts perform, in addition to decision-making activity,  state
administration of courts, should be denied. This concerns §  15
par.  2 second sentence, § 26 par. 2 second sentence, § 30 par.
2 second sentence, § 34 par. 2 second sentence, §119 par. 2 and
3,  §  120,  §  121,  also § 124, 125, 126  and  127  –  except
paragraph 4 in § 124 and except paragraph 3 in § 125,  126  and
127, which concern the first circle of questions (evaluation of
professional qualifications of judges).

The  dissenting  judge  – in contrast with  the  Constitutional
Court’s  decision  –  considers  that  the  exercise  of  state
administration of a court by the chairman and vice-chairman  of
the  court  (i.e.  by  a  judge) is not in  conflict  with  the
principle  of  independence of courts and judges and  with  the
principle   of  separation  of  powers.  (In  any   case,   the
Constitutional  Court’s  decision itself  states  that  by  the
derogation  of  §  74 par. 3 of the Act it did  not  intend  to
indicate that the direction and administration of courts should
be  entrusted to persons other than those from among the  ranks
of  judges.)  In  this regard one naturally  cannot  avoid  the
consideration of which body should perform state administration
of  a  court,  in a manner so as to preserve the  principle  of
separation   of   powers,  without  affecting  the   legitimate
requirement  for the administration of courts to be  functional
and speedy.

                         Said   more   simply,  the   following
possibilities come into consideration:

a)   performance of state administration of courts by a special
administrative body which is not part of the judicial power. At
one  time  a  comparable body (to a certain extent) existed  in
Czechoslovakia.  This  was the “regional state  administration”
which did not hold up in practice. In historical fact this  was
an extended arm not only of the Ministry of Justice but also  –
de  facto  –  of  local communist party bodies. This  model  is
undoubtedly unacceptable.

b)   performance of state administration of courts by  a  self-
governing collective body of the judges of a particular  court.
It  is obvious that such a body would hardly be functional,  as
the standard day-to-day direction of courts requires speedy and
functional decision-making, which the judicial personnel  could
not conduct effectively.

c)  performance  of  state  administration  of  courts  by  the
chairman and vice-chairman of a court under the above-mentioned
(now  annulled by the Constitutional Court) provisions  of  the
Act on Courts and Judges. This is a model which has held up  in
practice  and  there  are  no serious signals  indicating  that
through  it  there  would be interference  in  the  independent
decision-making  of  courts. Thus, one can conclude  that  this
model, i.e. the performance of the state power of a court by  a
judge  – including the chairman and vice-chairman of a court  –
is,  in terms of observing the independence of judges and  also
with regard to the necessary functionality of administration of
courts  the most suitable model, which is not in conflict  with
the  Constitution  of the Czech Republic. Of  course,  de  lege
ferenda  it  would  be appropriate for basic questions  of  the
administration  of a court be discussed with the representative
body of judges’ self-government.

4) In the opinion of the dissenting judge the petition to annul
part  of  §  68 par. 1 and § 99 par. 1 let. c), concerning  the
possibility  of  temporarily assigning  a  judge  not  only  to
another  court,  but also to the Ministry (of  Justice)  should
also have been annulled. In contrast with the reasoning of  the
Constitutional Court’s decision, the dissenting judge  believes
that temporary assignment of a judge to the Ministry is not  in
conflict  with  article  82 par. 3 of  the  Constitution.  This
article  provides that the office of a judge is not  compatible
with  the office of the President of the Republic, a member  of
Parliament,  or with any other office in public administration.
It is evident that the activity of a judge temporarily assigned
to  the Ministry is not an office in public administration. The
purpose   of  such  assignment  is  to  make  use  of  judicial
experience  (cf.  §  68 par. 1 in fine),  so  the  activity  is
basically  an advisory one. This also corresponds to  practical
experience  concerning the work of judges who were  temporarily
assigned  to the Ministry. In any case, it cannot be overlooked
that  this institution is restricted in time to a period  of  1
year  and  that it is contingent on the consent of the relevant
judge.
Brno, 18 June 2002