Strasbourg, 14 February 2002

CCJE (2002) 8
English only

Consultative Council of European Judges (CCJE)

Questionnaire on the conduct, ethics and responsibility of judges: reply submitted by the delegation of the Czech Republic

Questionnaire on the conduct, ethics and responsibility of judges

1.
These obligations are set in new Act on Courts and Judges (law No. 6/2002 Coll.), which shall enter into effect on 1 April 2002. (Since effectiveness of former law shall expire on 31 March, only information on new law is presented).

Main judges’ duties may be described as follows:

- To interpret the law according to their best knowledge and belief, and to decide in appropriate time periods without delays (protractions), impartially and rightly;
- To perform faithfully their function and, in the course of its performance and in civic life (i.e. including the performance of their political rights) to refrain from doing anything, which could violate dignity of this function or endanger a confidence in independent, impartial and righteous court decision-making. In this framework, inter alia, to reject any unlawful pressure, influence or wish; to remain uninfluenced by interests of political parties, public opinion and media; to have unprejudiced conduct; and to approach parties without prejudices (social, racial, sexual, religious etc.). Judge must not be active as an arbitrator or mediator proposing solution of legal dispute.
- To perform his/her function in accordance with interest on due performance of judiciary; namely to provide the participants full possibility for execution of their rights; to state the reasons for his/her decision with due care and clarity;
- To maintain respect regarding other judges, participants and parties to the proceedings;
- To maintain, even after termination of judge’s function, confidentiality with regard to all facts he/she learned in relation with performance of this function;
- To further educate himself systematically and to deepen his/her professional knowledge.

Union of Judges:
The last principle is covered problematically in that part of the Act (on Courts and Judges), which regulates activity of institution called “Judicial Academy”. Reservation consists in that the judge is, according to the text of the Act, obliged to participate in training in the framework, as regards both topics and time schedule, under instructions of training institution without regard to possible collision with his/her judicial duties.

Ministry of Justice:
The Ministry of Justice considers CCJE questionnaire on judge’s training, in particular part b., to be relevant framework for extensive description of further education of judges.
In no case any of the legal provisions may be used to imply that training is to be organized under “orders” of the Judicial Academy without regard to possible collision with judicial duties of the participant to training. Moreover, the text of the Act on Courts and Judges, which ought to come into force on 1 April 2002, entitles the Supreme Court to organize training of the judges to the same extent, under the same conditions and with the same consequences as the training organized by the Judicial Academy.

2.
Dr. Fremr:
No. The Union of Judges of the Czech Republic, however, elaborated Principles of Judge’s Ethic Conduct, which consist of seven briefly formulated abstract rules.

Union of Judges:
This is question of terminology. The Union of Judges of the Czech Republic elaborated Principles of Judge’s Ethic Conduct, which may be transformed into possible code only through interpretation of these principles either according to specific cases or in the framework of theoretical discussions.

2.1
These Principles were drafted by Union of Judges’ commission, and approved by Assembly of Sections’ Representatives in 2000. Union of Judges of the Czech Republic is voluntary organization consisting of more than 50 per cent of judges.

2.2
See the Principles Nos. 1-7:

1) The judge supports (promotes) moral integrity and independence of judiciary.
2) The judge makes use of all his/her abilities to fulfill judicial mission and systematically supplements his/her professional knowledge.
3) The judge performs judicial duties impartially, according to his best knowledge and belief.
4) The judge avoids conduct, which could question his/her credibility and thus damage public confidence in judiciary. He/she avoids even a conduct, which could appear as improper.
5) The judge treats with patience, dignity and politeness the persons, participating in the proceedings, and all other persons he/she is dealing with due to his/her function, and respects their personality.
6) The judge maintains proper respect regarding other judges, and treats them in collegiate manner.
7) The judge considers participation in the administration of judiciary and perfection of legal system to be an honor.

2.3
Union of Judges:
In extreme circumstances relevant section or the Court of Union could decide on exclusion of member from Union.

Dr. Fremr:
I have no personal knowledge of case when this procedure was used in practice. I have to state, as a non-member of Union of Judges, that I am not aware of any, even informal, impact of listed Principles on the conduct of non-members of Union.

3.
Functions of the President of Republic, Member of Parliament, any function in public administration, any office of profit or gainful occupation. Permissible is only management of own property, scientific, pedagogic, literary, publishing or artistic activity, and activity in advisory bodies of the Ministry of Justice or Parliament, provided that it does not endanger dignity of judicial function or confidence in independence and impartiality of judiciary.

4.
Section 30 paragraph 1 of the Criminal Procedure Code and Sections 14-16 of the Civil Procedure Code enables parties to raise an objection against judge’s prejudice. This objection must be taken into consideration, and if it is considered to be substantiated, it is possible to decide on exclusion of particular judge from decision-making in that particular case.
Proved judge’s prejudice (negative or positive) is reason for cancellation of decision, which such judge participated to take. Depending on particular circumstances it can result in disciplinary or, in extreme cases, even criminal liability of such judge (see below).

5.
Yes, subject to conditions listed below.

5.1
Criminal liability
For acts committed while performing function of a judge or in relation to its performance the judge may be criminally prosecuted or taken into custody only with consent of the President of the Republic. For other acts he/she may be prosecuted as any other citizen.

Civil liability
Liability for damages caused by illegal decision or incorrect official action is governed by special rule – Act No. 82/1998 Coll. on liability for damages caused in the course of execution of public power by illegal decision or incorrect official action. The damage caused is in principle reimbursed by a state. Should a state cover a damage caused in consequence of illegal decision or incorrect official action of a judge, it may claim recourse from the judge only if the guilt of judge was determined by disciplinary or criminal proceedings.

5.2
In the framework of ordinary criminal or civil proceedings.

5.3
Civil or criminal court.

5.4
In case of criminal liability the ordinary sanctions stipulated by the Criminal Code for particular criminal offence shall apply.
In case of civil liability the state may claim recourse in the whole extent of damage caused intentionally. In case of damage caused by judge’s negligence the claim is limited to four and half times his/her average monthly earnings.

6.
Union of Judges:
Yes. Detailed regulation of proceedings is provided by new Act No. 7/2002 Coll. on Proceedings in Matters Concerning Judges and Public Prosecutors, which shall enter into force on 1 April 2002.

6.1
a)
If he/she commits a conduct, which has traits of disciplinary wrongdoing or transgression (offence against administrative law), and if the motion for initiation of disciplinary proceedings is filed in stipulated period of time.
Minister of Justice or president of concerned or superior court is entitled to file a motion for initiation of disciplinary proceedings in time period of two months since the day, when he/she learned about disciplinary wrongdoing, but no later than two years after its commission.
Transgression proceedings shall be dealt with in the framework of disciplinary proceedings only if judge concerned makes such request to the (administrative) authority conducting transgression proceedings. Otherwise it shall be dealt with in the framework of regular transgression proceedings.

b)
Dr. Fremr:
Questioning of judge’s professional capacity to perform (judicial) function is a special case of judge’s liability. Professional capacity of judges shall be regularly evaluated by presidents of courts in periods of three years in case of new judges or five years otherwise. If the judge is evaluated as professionally (expertly) unsatisfactory, the motion for evaluation of his professional (expert) capacity (competence) is filed to Council established by the Ministry of Justice. This Council consists of 9 members – in that always 5 are elected judges, remaining 4 seats are divided among legal practitioners – public prosecutors, advocates, notaries and representatives of legal science proposed by Law Faculties’ Deans for three years period. The Council, having performed proceedings, shall decide, whether the judge is or is not professionally (expertly) competent (qualified). This decision is subject to appeal to the Supreme Court, which shall render final decision in five-member senate. In case of legally effective decision on professional incompetence the function of concerned judge ceases to exist.

Union of Judges:
In newly passed Act on Courts and Judges, which shall enter into force on 1 April 2002, was newly regulated some quasi-disciplinary proceedings called “Proceedings on Competency to Be a Judge”, result of which may be termination of lifelong mandate of judge. This manner of proceedings is, not only in the opinion of the Union of Judges, contrary to the Constitution of the Czech Republic and international standards. This principle contrary to the competence of executive power to propose and appoint judges makes the judicial power responsible for failure of government or President of the Republic in selection of future judges. Should such doubt be reasonable, it would form one of fundamental reasons for expedited change of system of selection and appointment of judges.

Ministry of Justice:
The evaluation of professional competence is not in any way related to disciplinary proceedings, nor it is subject to proceedings set out in Act No. 7/2002 Coll. on Proceedings in Matters Concerning Judges and Public Prosecutors. Thus Ministry of Justice considers CCJE questionnaire on judge’s training, in particular question b.4, to be relevant framework for description of this concept.
The evaluation of professional competency of judge under Act No. 6/2002 Coll. on Courts and Judges corresponds to his/her obligation to further educate himself/herself systematically and to deepen his/her professional knowledge. The system of training (education) is to serve that purpose (especially Judicial Academy, which is being established), and to help judges to maintain their high level of professional (expert) competency (qualification). At the same time, however, control mechanisms must be established, through which professional competency shall be reviewed, and the law must stipulate procedure and consequences, if a judge does not reach necessary level of qualification. This evaluation, which is a general principle, has one exclusive purpose – to ensure high professionalism and expert competence of administration of justice.

6.2
Disciplinary proceedings under the Act mentioned above.

6.3
Disciplinary court consisting of five judges appointed by the president of court concerned in agreement with the judicial council of this court for functional period of three years. Disciplinary courts of first instance are active in the framework of High Court in Prague and High Court in Olomouc, appeals against their decisions are decided by disciplinary senate of the Supreme Court.

6.4
The sanctions are:

§ Reprimand;
§ Decrease of salary by at most 25% for at most 6 months, or for at most 1 year in case of repeated disciplinary wrongdoing;
§ Suspension from office of chairperson of senate;
§ Suspension from function of judge.

In case of transgression, also prohibition of specific activity (e.g. prohibition of driving motor vehicles) or confiscation of a thing may be imposed.



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