Accountability

Disciplinary proceedings; judicial ethics

Nejvyšší správní soud

Supreme Administrative Court

11 Kss 1/2023-313

6/11/2023

ECLI:CZ:NSS:2023:11.Kss.1.2023.313

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Conduct of a judge in civil life – Guardianship of dependent person – Conflict of interest – Disciplinary proceedings – Dismissal from office

What is the standard for evaluating the conduct of judges in their civil life?

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Art. 40(5) of the (Czech) Charter on Fundamental Rights and Freedoms (Listina základních práv a svobod)
§ 457; § 465(1); § 466 of the act no. 89/2012 Coll., Civil Code (občanský zákoník)
§ 19(1); § 25 of the act no. 7/2002 Coll., on Proceedings in Matters concerning Judges, Public Prosecutors and Enforcement Officers (zákon o řízení ve věcech soudců, státních zástupců a soudních exekutorů)
§ 80(1); § 80(4); § 80(5); § 87 of act no. 6/2022 Coll., on Courts and Judges (zákon o soudech a soudcích)
§ 172(2)(a) of the act no. 141/1961 Coll., Criminal Proceedings Act (trestní řád)

A judge was appointed guardian of a man with early cerebral palsy who used a wheelchair and whose social experience was limited to a closed circle of support groups. There was a close relationship between the judge and the man because, according to the man's mother, the judge was practically part of the family and enjoyed the family's confidence. After the death of ward's mother, he inherited property and money with a total value of approximately EUR 500,000. Following the inheritance proceedings, the judge stopped submitting regular reports on the assets of the ward. The guardianship court therefore focused on the movements in the ward's assets.
The court found that the judge had moved her permanent residence to the address of the inherited property, had in the meantime acquired ½ of the property in question under a contract of sale at a reduced price, and had mortgaged the property as a whole. The court then appointed the municipal authority as guardian for the administration of the ward's property. The meeting between (another) special guardian and the ward revealed that he had a very distorted view of the funds he had inherited from his mother (he spoke of around EUR 120). At the same time, he was only vaguely aware of the use of the available assets (e.g. he did not know that the judge was living in the inherited property). He also stated that he would like to live in his own house, but that this would only be possible if he had sufficient funds to pay for a nurse. The meeting between the special guardian and the judge then revealed that she had indeed bought ½ of the inherited property as this was the deceased mother's wish. She also stated that she was living in the property and had used the EUR 12,000 from the inheritance to renovate it.
According to the President of the Court, who was the prosecutor in the disciplinary proceedings, the judge lacked the elementary moral principles necessary for the exercise of the judicial function and the basic knowledge relevant to the function. The President therefore proposed that she be removed from office.

The Disciplinary Court first pointed out that the judge was also the subject of criminal proceedings. However, according to the case-law of the ECtHR, disciplinary proceedings fall within the civil domain of Article 6. As such, the ne bis in idem principle does not apply. Criminal and disciplinary proceedings may run in parallel.
The court reasoned that a judge is supposed to represent certain social authority and must therefore be aware that all his or her actions are perceived by the public in a more sensitive way than is the case of other persons. The office of judge imposes on its holders high standards of honour, morality and inner integrity, which are essential prerequisites for fair, independent and impartial judicial decision-making. At all times, both in and out of office, judges shall conduct themselves in their civic life in such a way as not to undermine the dignity of the judicial office. Judges should not only show respect for the law and conduct themselves in accordance with the law, but should also avoid even the appearance of disrespecting or violating the law by their improper conduct, as this would compromise their honour, integrity and ability to perform the demanding duties of a judge. When judges perform their civic duties, whether imposed by law or voluntarily undertaken, they are expected to do so in an exemplary manner. This is particularly true in the performance of duties relating to the protection of the rights of others and the administration of law and justice. When a person who is a judge assumes the role of guardian in their civic life, the public and the guardianship court itself expect that person to perform their duties as guardian in an exemplary, almost textbook manner.
The guardian has a fundamental duty to consistently and independently monitor the protection of the interests and rights of the ward, which of course presupposes that the interests of the ward and those of the guardian do not conflict. At the time of her appointment this was the case, but after the mother's death the judge began to fail blatantly in her guardianship role. Her conduct (described in more detail above) cannot be regarded as anything other than a fundamental breach of her duties as guardian. The judge acted in an obvious objective conflict between her own interests and those of the ward, actively provoking and exploiting the situation. It is impossible, in these circumstances, for her to have consistently and independently ensured that the ward's rights were respected and his interests protected, as was her fundamental duty, while at the same time pursuing her own interests, which were manifestly contradictory.
As regards the consequence caused, namely the undermining of confidence in the independent, impartial, professional and fair decision-making of the courts, this is clear from the findings of fact. The conduct of the defendant in her capacity as a guardian was and is perceived by the judges and employees of the courts deciding the guardianship case, the parties to these proceedings, as well as the police officers and employees dealing with the criminal complaint, the municipality and the employees of its office exercising guardianship over the property, and relatives and acquaintances of the family. If the defendant, despite being a judge, acted for such a long time and to such an extent as a guardian in an obvious objective conflict of interest in her favour, then the conduct of the defendant not only calls into question her ability to act as a judge, but also sets a negative example for all other judges, thereby undermining public confidence in the independence, impartiality, professionalism and fairness of judges.
With regard to the sanction imposed, the court stated that the disciplinary offence was extremely serious. The court considered the prolonged nature of the judge's conflicts and the fact that she had acted deliberately as highly aggravating circumstances. It is likely that the defendant will continue to benefit from her conduct even after the end of the disciplinary proceedings, as it is legally and factually very difficult, if not impossible, to restore the financial situation of the ward to its original state. At the same time, this is the fourth disciplinary case against the judge in her career. As a legal professional, the accused must have been well aware of the legal implications of exercising guardianship. Having decided to continue in her position as guardian, she should have supported her ward patiently, selflessly and without remuneration, and consistently promoted and protected his rights and interests. In this way, she should have helped him to preserve and, if possible, increase the value of the inherited property, without thinking of her own benefit. Instead, the defendant has set a very poor example to all of us of what guardianship should not be. The negative impact of the defendant's actions on the reputation of the judiciary as a whole can only be described as very serious. Therefore the judge was dismissed from the office.

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consistent interpretation

The Supreme Administrative Court does not engage with foreign case law or case law of other national courts.

The Supreme Administrative Court makes only limited reference to the case law of the ECtHR in relation to the parallel existence of criminal and disciplinary proceedings.
The Supreme Administrative Court cites its own case law, mainly in relation to procedural aspects of the case.

The Supreme Administrative Court wanted to emphasise that the criminal and disciplinary proceedings can run their course in parallel, and that such a conclusion is in line with the ECtHR's take on the ne bis in idem principle.

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No

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The decision of the Supreme Administrative Court was reviewed by the Constitutional Court by decision of 6. 3. 2024, no. III.ÚS 89/24. The Court dismissed the complaint as manifestly unfounded. In its decision, the Constitutional Court upheld the challenged decision in its entirety. It also dismissed the objection relating to the single-instance procedure in disciplinary matters (there is no possibility of appeal against the decision of the disciplinary chamber), as there is no requirement for the existence of an appeal.

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Ondřej Kadlec, Šimon Chvojka, Masaryk University

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