Strasbourg, 12 February 2001
CCJE (2001) 4
Consultative Council of European Judges (CCJE)
Questionnaire on the independence of judges, their appointment and careers, and funding of the courts: reply submitted by the Czech Republic
I. I. The Independence of Judges
1. Is the independence of judges guaranteed by the Constitution or other legislation?
The basic guarantees of the independence of judges are defined by the Constitution (prov. of Act No. 1/1993 Coll.) These are then split into further regulations, i.e. above all in
· Act on Courts and Judges (Act No. 335/1991 Coll. as amended)
· Act on the Disciplinary Liability of Judges (Act No.412/1991 Coll. as amended)
· The Criminal Code (Act No.140/1961 Coll. as amended)
· The Rules of Court Procedure
2. What Institutional safeguards are there with regard to the independence of judges?
· In general terms, the principles of independence and a ban on threatening judicial impartiality (Article 82/1 of the Constitution)
· The principle of untransferability and irrevocability of a judge (Article 82/2 of the Constitution) with the exceptions defined by the law
· The principle of appointment to office by the president and without time restrictions (Article 93 of the Constitution)
· Criminal sanction for those who interfere with the independence of a court (Section 169 a of the Criminal Code)
3. Is the irremovability of judges recognised?
A judge may not be transferred to a different court against his will (Article 82/2 of the Constitution), the exceptions defined by the law are as follows:
· If the law changes the organisation of courts or judicial circuit (Section40/4 of the Act on Courts and Judges)
· As a consequence of a decision by the disciplinary senate (Section 3/3 letter c) of the Act on the Disciplinary Liability of Judges) consisting of a panel of judges
Union of Judges: No, moreover the submitted draft bills further extend the possibility of forced transfer.
4. Can the decisions handed down by judges be reviewed or set aside outside the appeals procedures provided for by law, by institutions other than the courts of appeal or cassation?
By the Constitutional Court when making a decision on a constitutional complaint against a legitimate decision pursuant to Article 87/1, letter d) of the Constitution.
· The decision-making activity of a court is excluded from all methods and forms of external intervention and may be re-examined only on the basis of regular and extraordinary legal remedies, which may be used solely by parties to legal proceedings, or those persons authorised to do so by the law. Neither can a complaint demand the re-examination of the procedure taken by a court performing its independent decision-making activities (Section 6 of the current Act No. 335/1991 Coll., on Courts and Judges and Section 26 (2) of Act No. 436/1991 Coll., on the State Administration of the Courts of the Czech Republic as amended).
5. Can a case be withdrawn from a judge? If so,
i. on what grounds?
ii. by which authority?
Under Article 38 (1) of the Charter of Fundamental Rights and Freedoms „Non-one may have their judge withdrawn from a case„. The law may permit exceptions:
A superior court may do so as part of the re-examination of an issued decision and for the following reasons:
· If it is decided to exclude a judge from a case for his relation to the case or parties of the proceedings (Section 30 of the Code of Criminal Procedure, Sections 15-16 of the Code of Civil Procedure)
· For not respecting the binding legal opinion of a superior court by a specific judge, for biased decision-making (Section 262, Section 270/3 of the Criminal Code, Section 221/3 of the Code of Civil Procedure)
· In the event of withdrawing a case from the respective court and assigning it to a different court of this kind and level (Section 25 of the Code of Criminal Procedure, Section 12 of the Code of Civil Procedure) in the interest of securing a prompt and impartial decision
In exceptional cases, the presiding judge may do so on the basis of reasons determined by the law due to
· The long-term absence of a judge
· A judge being overburdened with cases
II. The Appointment of Judges and their Careers
1. What qualifications are required and what conditions must be met in order to become a judge?
These are defined by Article 93/2 of the Constitution and Section 34/l, 2 of Act No. 335/1991 Coll. on Courts and Judges, as amended:
· Czech nationality
· Qualified to perform legal acts
· A clean criminal record
· aged 25 years
· a complete law university education
· a specialised judicial law examination
· consent given to an appointment and allocation to a certain court
· experience and moral qualities providing a guarantee for being able to perform the office regularly and properly
2. Are judges recruited by competitive examination, on the basis of a professional examination or on the basis of their qualifications?
The greater majority of candidates for the position of judge come from the ranks of candidate judges.
The condition for appointment to work as a candidate judge is fulfilment of the requirements already stipulated by the quoted provision of Section34 of Act No. 335/1991 Coll., as amended, for the position of judge (general preconditions and a law university education).
The selection procedure to the position of candidate judge is demanding and the applicants have also to undergo a psychological and diagnostic examination.
The preparatory service of a candidate judge lasts 3 years and its purpose is to prepare the candidate judge for the execution of the position of judge.
Once they complete the preparatory service, the candidate judges are obliged to pass a specialised judicial law examination.
Candidates for the office of judge may also come from different law practices – particularly lawyers (attorneys) and others. They too have to fulfil all the preconditions for this position to be appointed to the position of judge – including specialised judicial law examinations or other examinations stated in the provision of Section 34 (5) of Act No. 335/1991 Coll., executed prior to the effect of this Act, which has the same effects as the specialised law examination, or the Minister of Justice may recognise a lawyer’s examination and a commercial lawyer’s professional examination as being a specialised judicial law examination.
3. What level of studies is required to become a judge?
see II/1 – complete law university education
4. Is previous professional experience required?
This is not a formal condition. The greater majority of candidates to the position of judge come from the ranks of candidate judges and these are mostly law graduates without practice or experience. They gain the required knowledge during preparatory service.
5. Are there any age requirements?
Lowest - 25 years at the time of appointment.
Highest - not determined, but a judge may be recalled by the Minister of Justice from his position after reaching the age of 65 (Section 46/lb, 3 of the Act on Courts and Judges)
6. Are judges elected?
Judges are not elected to their position.
7. Or are they appointed?
Judges are appointed to their position by the president of the republic without a time limit (Article 93 (1) of the Constitution of the Czech Republic, Section 38 (1) of Act No. 335/1991 on Courts and Judges).
8. Or are they selected in another way?
See above II./1
Union of Judges: The form of appointment is considered correct. However the Ministry virtually without the participation of any judges carries out the selection.
9. Which authority is responsible for recruiting judges?
In view of the fact that selection procedures regarding candidate judges are organised and carried out by the Ministry of Justice, the Ministry also bears responsibility for the recruitment of new candidates to the position of judge. As far as candidates to the position of judge from the ranks of lawyers from a different practice are concerned, part of the authority in the personnel sphere was transferred to the presiding regional court judges, who submit their motions for the appointment of these applicants from a different law practice to the Minister of Justice. The Minister of Justice then submits the specific motions for appointment to the office of judge to the President of the Republic.
Union of Judges: The current system may be accepted considering the fact that no Supreme Judiciary Council exists.
10. Does any authority independent of the government and the administration take part in the selection or promotion process?
The Union of Judges of the Czech Republic and the Union of Public Prosecutors of the Czech Republic, which are professional associations, contribute to the process of the selection of candidate judges. Their representatives are members of selection committees. The committee members include experienced judges and public prosecutors regardless of whether they are members of unions.
Union of Judges: Unfortunately none at all, moreover there are no criteria whatsoever for career advancement and the selection of judicial officials. The weakest point for assessing judicial independence.
11. How and by whom are judges promoted?
The term „promotion of judges„ must be understood as meaning:
a) Transfer of a judge to a higher court
b) Appointment of a judge to a leading position at court
A judge may be transferred to a higher court by a decision of the Minister of Justice (Section 40 (2) of Act No. 335/1991 Coll. on Courts and Judges – with the consent of a judge, Section 40 (9) of the quoted Act – the Minister of Justice may transfer a judge to the Supreme Court with his consent and with the consent of this court’s presiding judge).
The appointment of judicial officials is regulated by Section 39 of Act No. 335/1991 Coll. – (1) – the President of the Republic appoints the presiding and deputy presiding judge of the Supreme Court from the ranks of this court’s judges
(3) – the presiding and deputy presiding judges of high and regional courts as well as the presiding and deputy presiding district courts are appointed by the Minister of Justice from the ranks of judges appointed to the courts of the Czech Republic.
12. What are the criteria for promoting judges? Are they objectively defined?
No criteria are formally defined. The decisive factor is above all a high level of professional and moral preconditions.
13. In what cases can a judge be removed from his office?
a) By a legal decision of a disciplinary court (composed of judges), should he grossly violate his judicial obligations (Section 44 of Act No. 335/1991 Coll. on Courts and Judges)- at the motion of the Minister of Justice.
b) by a decision of the Minister of Justice – he may against his will relieve him of his position if
· By a legal decision of a disciplinary court it was ascertained that his state of health prevents him from executing his judicial obligations (Section 46/1a of the quoted Act)
· He has reached the age of 65 (Section 46/1b of the quoted Act)
c) he is legally relieved of his position on the day a verdict comes into force sentencing him for intentionally committing a crime or on the day a decision comes into force by which he is relieved of the competency to execute legal acts, or this competency has been restricted (Section 47 of the quoted Act)
· If he ceases to be a citizen of the Czech Republic (Section 48 of the quoted Act)
Union of Judges: The shortcoming is that members of the disciplinary courts are appointed by a presiding judge who is also the petitioner in any such proceedings.
14. Do you wish to make any comments or mention any practical difficulties with regard to the independence and appointment of judges in your country?
Robert Fremr: From my personal point of view, the possibilities open to judges to influence the selection of new judges, the education of judges just as the selection of judges to leading positions appears to be minimal. On the contrary, the authority of the Ministry of Justice in this sphere as a representative of executive power appears to me from the point of view of Montesquieu’s theory of „the separation of individual elements of power“ as being too broad. It is a fact that the new Bill on Courts and Judges, which is under preparations, should already contain partial elements of judicial self-administration, but its final form is quite uncertain for the time being. Considering the standards current in the developed democratic countries of Europe, it appears to be obvious that the position of the Czech judiciary ought to be enhanced in this direction.
Union of Judges: The guarantees of a Czech judge’s independence are among the weakest in Europe. The possibility of the transfer of a judge without his consent, the absence of criteria for a judicial career, appointment and recall of judicial officials, the manner of appointment of disciplinary judges cannot be tolerated. The present system is rightly considered to be too dependent on politics (albeit not in the sphere of direct decision-making) and therefore not directly influenceable.
III. The Funding of the Courts
1. How are the courts´ activities funded?
The courts are financed from the state budget from the budgetary chapter 336 – the Ministry of Justice, under Section 10 of the Act on Budgetary Rules No.218/2000 Coll.
· expenses on court activity as well as the activity of state organisational units, are expenses of the state budget (Act No. 218/2000 Coll., Section 7).
· revenues from court activities become income of the state budget (Act No. 218/2000 Coll., Section 6).
Union of Judges: Courts are so-called budgetary organisations with an ineffective and unclear concept of a multi-tiered creation and utilisation of the budget.
2. Give a brief description of the rules governing the setting of the budget for the judicial system and the courts.
The creation of the budget of the chapter is proceeds in line with Section 8 of Act No. 21/2000 Coll., in cooperation with the Ministry of Finance. The Ministry of Finance sets the initial binding budget parameters, which take into account the economic starting point and the government´s priorities, the impact of new bills being thus regarded. This was negatively displayed in the postponement of judicial reform. The budgetary requirement of the ministry arise from the fixed number of judges and other employees that are determined by the Minister of Justice considering the extent of judicial work (the need for wages), from the assessment of the technical and capacity requirements of the judiciary, from the medium-term investment programme (currently 2 programmes for financing the investment needs are used, namely the „Construction of Courts„ and the „Reconstruction, Modernization and Repair of Courts „), from data on the costs connected with the operation of court buildings (energy, water etc.), with the operation and activities of courts (postal charges, telephone charges, payment of experts and witnesses, compensation costs for lawyers).
The mentioned source materials are work out by the respective court organisations in cooperation with the Ministry of Justice.
The scope of court requirements exceed in the long-term the budgetary indicators as determined by the Chapter of the Ministry of Justice by the Act on the State Budget. Within the framework of this Act the Ministry of Justice is forced to determine the budgetary priorities, giving priority to the coverage of mandatory expenses.
3. Do judges have any say whatsover in decisions concerning funding or in managing the budget?
Judges (through a presiding court judge) may participate in the preparation of source materials for drawing up a draft budget. They may then determine their own budgetary priorities for their own organisation within the framework of the set budget.
Union of Judges: No, the Ministry of Justice draws up the budget in its final stage based on proposals of regional courts. The presiding judge of each of these regional courts then acts upon its behalf, not in the position of a judge but in the position of a judicial official as part of the system of an administrative hierarchy.
4.Do judges have adequate support staff and equipment, in particular office automation and data processing facilities, to ensure that they can act efficiently and without undue delay?
Problems exist in the material and personnel facilities available to courts (the budget does not fully cover the required number of court employees, however so far not even the full number of judges has been fulfilled). In spite of this, it may be stated that the personnel and material facilities of courts (particularly computer technology) is a budgetary priority for the Ministry of Justice.
Union of Judges: No, however the trend particularly, as far as computer facilities are concerned, is favourable. The legislative steps towards the creation of an adequate number of higher court officers may be positively assessed.
5. Do judges encounter other material difficulties, which prevent them from acting efficiently?
Many courts seem to have a lack of courtrooms, which restricts orders for court proceedings.
6. Are appropriate measures taken to assign non-judicial tasks to other persons?
Certain measures do exist; persons other than the presiding court judge may perform economic administration. The new Acts on Courts and Judges shall introduce more significant changes in this direction.
Union of Judges: Not at the present time. As system has not been created for the appropriate remuneration of the high-level staff of court officials, so that the work of judges may be made easier.
7. General comments on the funding of the courts
Union of Judges: In our opinion this is an outdated, caste system. The higher level of the judicial system financially manages an overwhelming majority of Czech courts, i.e. regional courts. Hence no clear authority and responsibility exist for the development and work of a court. Moreover the creation of material conditions is totally beyond the influence of judges, while judges are often blamed for the occasional failure of the judicial system due to its inadequate personnel and material conditions.