Strasbourg, 3 March 2008
Consultative Council of European Judges (CCJE)
Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: Reply submitted by the delegation of the Czech Republic
Part I: Preparation of the judicial decision
Is there a specific model to be followed in drafting judicial decisions?
The rules for obligatory elements which are to be involved in a judicial decision are defined by law. There are defined only general rules for the content of justification of a decision. It is also indicated by law, in which cases the decision does not involve a justification.
Can each individual judge choose his own style of drafting his decision?
Each judge applies his own style of drafting a decision, being limited by the rules mentioned above. There exist certain well-established informal rules, followed by the trainee judges during their professional training, these are, however, not obligatory.
Where the court is composed of more than one member, do judicial decisions have to be taken unanimously or a majority decision is equally effective and binding?
Judicial decision made by a panel (3 judges) is to be taken by a majority decision.
In a two or even more member panel, does the president or most senior judge have a second or casting vote?
The vote of the presiding judge is of the same value as the votes of the other members. He is, however, the last one to vote.
Do judicial decisions have to deal with all points raised by the parties or their lawyers or is a synthetic or concise approach considered sufficient?
A judicial decision should deal with all relevant substantial points of a matter, without regard to the fact, if they were or were not raised by the parties. A justification should deal even the question, why some allegations or motions were disregarded.
In general terms, how is a first instance judicial decision drafted? (For example, does the decision state first the factual background, followed by the evidence, its evaluation and finally the application of the legal principles to the accepted facts?)
A judicial decision of the first instance court (judgement) involves both statement and justification in the cases defined by law.
In criminal cases the statement involves a description of the fact, its legal qualification, category and level of punishment, or, if need be, a decision on compensation (Art. 120-124 of the Criminal Procedure Act). In the justification the court explains in brief, which facts are deemed to be proved, which evidence are relied on and what has been considered, how the defence has been coped with, why the motion for additional evidence has not been met and what legal deliberations he has been taken into consideration in the question of quilt and punishment (Art. 125 of the Criminal Procedure Act).
In other cases (civil, commercial and administrative) the text of judicial statement is not explicitly stipulated (Art. 155 of the Civil Procedure Act). The statement should be, however, clear to such an extent to be enforceable. Justification should involve an essential summary of the parties´ speeches, a concise and clear interpretation of the facts which are deemed to be proved, of the evidence that are relied on and what has been taken in consideration, why an additional evidence has not been brought and which legal provisions has been applied (Art. 157 of the Civil Procedure Act).
How in general terms is an appeal /supreme court decision drafted? Is the appeal in your country by way of rehearing the case or not?
In general it can be said that the court of appeal deals a case only to the extent of the appellation claims. Hence it is not a question of a new proceeding. The appeal court may, however, supply additional evidence. It is stipulated by law, which cases are declared in open court and which ones are subject to a closed trial, i.e. without presence of the parties involved.
Is there a difference in the way a judgment is drafted according to the subject matter (civil, criminal, administrative)?
See the response to question No 4.
Could you describe precisely how the decision is transmitted to the parties?
Judgment is pronounced in public and delivered in writing to the parties involved.
Is the judicial decision binding only on the specific litigants or does it affect the public in general?
Judicial decision is binding only on the litigants. It can affect the public in general as a “judgment” applicable for future similar cases. The judgments are not, however, obligatory, except for the decisions of the Constitutional Court.
Does your country acknowledge a difference in judicial decisions in personam and in rem?
Legal order of the Czech Republic does not acknowledge this differentiation.
How is a judicial decision enforced in your country? Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?
Execution of a judicial decision is enforced by the state; in some cases an execution through a private executor is possible. Contempt of court (Art. 169b of the Penal Code) and obstructing the execution of a judicial decision (Art. 171 of the Penal Code) are criminal offences subject to punishment, even to imprisonment.
Are judicial decisions handed down/announced in open court? Always or can the public/journalists be excluded - If so on what grounds?
Judicial proceeding is open, public may be excluded only by the judge (jury) in cases stipulated by law. This restriction is applied in cases of possible threat to classified information, morals, security or other important interest (Art. 200 par. 1 of the Penal Procedure Act, Art. 116 of the Civil Procedure Act). Judicial decisions are on principle pronounced in public.
To what extent do judicial decisions in your country take into account personal data protection legislation (i.e. publication of litigants’ names, other personal details etc)?
Judicial decisions include personal data of the litigants. Their protection is secured in such a way that they are delivered only to subjects defined by law and that the documents can be inspected only by a limited circle of persons, defined by law.
Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?
See response to question 9. Judicial decisions are usually accessible to other persons or authorities only in connection with execution of their duties.
Are judicial decisions published/available on the internet? If so, are all decisions available or only appeal or supreme court cases?
Only some decisions of the Supreme Court and the Supreme Administrative Court are published on the internet.
Part II: Evaluation of the judicial decision
Is a system of evaluation of quality of justice in force in your country?
Not in the strict sense. Within the authority of the Ministry of Justice there exists a system of supervision within the limits specified by law, especially by the Act on Courts and Judges. This supervision relates to fluency of proceedings, dignity of trials and ethics of judges.
Does this evaluation include/envisage the evaluation of the quality of judicial decisions?
Quality of judicial decision is evaluated only within the system of regular and extraordinary remedial measures and furthermore through publication of selected decisions with general impact in the Collection of Judicial Decisions.
If your country does evaluate the quality of judicial decisions by means of a specific system, could you specify the latter:
· legal basis:
· identification of the agencies that are responsible for the process:
· parameters that are evaluated:
· methods by which each parameter is evaluated:
No specific system is applied for evaluation of judicial decisions.
What are the advantages and disadvantages discussed in your country as far as the evaluation of quality of justice is concerned?
There has not been any substantial discussion of this kind recently.
In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?
From my opinion is it a quality and professionalism of judges. It means not only their law education, but also their life and deciding experience. Many judges came to the Czech courts after the 1990 from other the branches of justice. Many of them are former prosecutors, not successful advocates, police investigators and soldiers. They don’t have any special training, any court practice. Unfortunately, they are mostly practicing in courts of appeal. The situation will improve after this, judges will be replaced by young, more quality judges, educated and trained especially for profession of judges.
Is a system of evaluation of quality of each of the following in force in your State:
· professional performance of police? yes □x no □
· professional performance of public prosecution services? yes □x no □
· professional performance of lawyers? yes □ no □x
· enforcement of judgements? yes □x no □
Subject to supervision of the Ministry of Justice, reports and statistics being published in periodical reports.
· efficiency of ministry of justice services in general? yes □ no □x
· quality of legislation? yes □ no □x