Accountability

Disciplinary proceedings; Judicial ethics

Nejvyšší správní soud

Supreme Administrative Court

13 Kss 2/2020-146

5/11/2020

ECLI:CZ:NSS:2020:13.Kss.2.2020.146

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Art. 6(1) of the European Convention on Human Rights

Bussiness and judges – Real estate renting – Access to internal systems – Access to files unrelated to particular judge's work

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Art. 11(1); art. 26(1); art. 44 of the (Czech) Charter on Fundamental Rights and Freedoms (Listina základních práv a svobod)
§ 420(1) of the act no. 89/2012 Coll., Civil Code (občanský zákoník)
§ 74(2); §85; § 87 of act no. 6/2022 Coll., on Courts and Judges (zákon o soudech a soudcích)

The judge was alleged to have committed two disciplinary offences.
Firstly, the judge inherited a business from his parents and continued to run it alongside his work as a judge. He was registered for VAT and had one employee. The business provided accommodation, property management and maintenance services with a view of making a profit. However, the law limits the income that judges can earn other than their salary.
Secondly, the judge repeatedly used the court's internal system to search for cases that were not related to his work as a judge but in which he had a particular interest (cases concerning his deceased parents, cases concerning debtors of his parents or himself, criminal cases concerning members of his family, etc.). In one case, the disciplined judge even had access to the draft decision and was therefore able to inform some of the parties in advance about a decision to be taken, thus possibly influencing the course of the proceedings.

With regard to possible business activities, the disciplinary court stated that a judge may not perform any paid functions other than those listed exhaustively in the law. Also, in general, with regard to any activity, even unpaid, judges may not undermine the dignity of the judicial office or confidence in the independent judiciary. The law expressly allows the management of one's own property under these conditions. The Court then carried out its own analysis of the regulation of possible business activities of judges in 11 European countries. It showed that in different countries the conflict between the exercise of the judicial office and other activities is regulated differently, exceptionally with similar vagueness as in the Czech Republic. It is a question of the political will of a given country to regulate the concurrence or incompatibility of the exercise of the office of judge with other gainful activities. The Court also stated that it would be appropriate to regulate the possibility of judges engaging in commercial activities by means of an a priori assessment by some authority and considers it regrettable that in the Czech Republic this can only be done by means of disciplinary proceedings.
With regard to the judge's business, the disciplinary court noted that the assets consisted mainly of real estate, funds and several cars. It was not the judge's duty to dispose of these assets or to transfer them to another person, either in fact or in form; on the contrary, a formal transfer to family members would have been considered hypocritical. It is also logical that the property should be maintained or improved. Similarly, a judge is not obliged to manage property in such a way that it does not generate a profit. The nature of the property in no way diminishes the position of the judge - certainly there would be a different view of the ownership of a gambling hall or casino, even though they are legal establishments.
The line between managing one's own property and engaging in other prohibited gainful activities was, however, blurred and indistinct. In the present case, the property was not acquired in a dubious manner, nor was it used for illegal purposes or in a way that was legal but disparaging to the judge's position (casinos, pawnshops). At the same time, he did not manage the property in an undignified manner or abuse his position. Finally, the disciplinary court did not find that the judge had managed his own property to the detriment of his judicial activity. Therefore, his business is not contrary to the law and this conduct does not constitute a disciplinary offence.
The disciplinary court assessed the improper access to the file as follows. Insofar as the judge inspected files in which he was a party to the proceedings, the judge was acquitted. The judge was entitled to inspect the file by virtue of his procedural status as a party to the proceedings. The fact that he did so in a more convenient way, inaccessible to ordinary parties to the proceedings, is not in itself a disciplinary offence.
In other cases of access, the Court has stated that the information system is not primarily intended to provide access to files, but to facilitate the work of the Court and, inter alia, to replace paper records and files. Its use should therefore be essentially the same as working with paper documents, but more convenient. It is permissible to consult files which have not been assigned to the judge for decision for reasons of work (identical parties to the proceedings, similar dispute, searching for parties contact information, etc.) or study (complex or exceptional cases). However, these reasons were not present in this case. The judge systematically followed the course of the proceedings concerning a person that was of a personal interest to him. He deliberately consulted the electronic system for inadmissible reasons and thereby culpably undermined confidence in the independent and impartial decision-making of the courts. The disciplinary court imposed a 20% reduction in his salary for a period of six months.

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comparative reasoning with foreign legislation or foreign case law

The Supreme Administrative Court does not explicitly cite foreign case law, but summarises an analysis carried out by an internal research service. The analysis includes foreign case law and legislation.

The Supreme Administrative Court cites its own case law, mainly in relation to procedural aspects of the case and in relation to the access to the information system.

The idea was to find out whether there is any European consensus and, if appropriate, decide this case according to it, as the legal regulation of this behaviour is very vague.

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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. 4. 2021, no. III. ÚS 323/21. 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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