CJC Database

Member State

Czech Republic

Topic

independence, impartiality

Sector

Judicial Self-Government; Judicial Ethics

Deciding Court Original Language

Ústavní soud

Deciding Court English translation

Constitutional Court

Registration N

Pl.ÚS 39/08

Date Decision

06/10/2010

ECLI (if available)

ECLI:CZ:US:2010:Pl.US.39.08.1

National Follow Up Of (when relevant)

N/A

EU legal sources and CJEU jurisprudence

N/A

ECtHR Jurisprudence

N/A

Subject Matter

Is the temporary assignment of judges to the Ministry of Justice constitutional?

Legal issue(s)

Judges – Temporary assigment – Executive – Ministry – Separation of powers – Impartiality

Request for expedited/PPU procedures

N/A

Interim Relief

N/A

National Law Sources

Art. 83(3); art. 89(2) of the Constitution (Ústava)

§ 67; § 68(1); § 68(2)(b); § 99(1)(c); § 99(3) of the act no. 6/2002 Coll., on Courts and Judges (zákon o soudech a soudcích)

Facts of the case

A group of members of the Senate (the upper chamber of the Czech Parliament) questioned the possibility of temporarily assigning judges to a Ministry of Justice. This possibility, among many others, was introduced by an amendment to the Act on Courts and Judges. The petitioner argued for its annulment on two grounds: procedural defects in the adoption of the comprehensive amendment and the substantive unconstitutionality of the specific solutions adopted.

The law in question allowed a judge, with his consent, to be temporarily assigned to another court for a period not exceeding three years in the interests of the proper administration of justice or, in order to benefit from his experience, to the Ministry of Justice or the Judicial Academy. The temporary assignment to the Ministry or the Academy was decided by the Minister of Justice in consultation with the president of the court to which the judge was assigned.

The petitioner argued that the assignment of judges to the Ministry of Justice was constitutionally questionable, as judges' primary function was to adjudicate disputes. According to the petitioner, this practice undermines the independence of the judiciary by diverting judges from their judicial functions to executive activities. It also places an unnecessary burden on the state budget and creates inequality in remuneration compared to other ministry officials. According to the petitioner, such provisions violate the principles of separation of powers and judicial independence and may compromise the impartiality of judges. Judges assigned to the Ministry may develop personal ties or align themselves with the policies of the Ministry, leading to conflicts when they return to their judicial role.

The petitioner also highlights risks to institutional independence. Given the Minister of Justice's authority over judicial appointments and proposals, judges assigned to the Ministry may tend to conform to the Minister's views, increasing their likelihood of being selected for senior positions. This could allow the Ministry to influence court management through subtle personnel strategies, thus undermining judicial autonomy.

Reasoning (role of the Charter or other EU, ECHR related legal basis)

The Constitutional Court noted that similar provisions had previously been declared unconstitutional by the Court in an earlier decision (Pl. ÚS 7/02), but had subsequently been reintroduced through legislative amendments. The Court found the petitioner's argument to be partially justified and based its decision on several key considerations.

First, the Court reiterated that the continuous exercise of judicial functions is an essential characteristic of the office of judge as guaranteed by the Constitution. Assigning judges to the Ministry of Justice, where they perform executive functions, interrupts this continuity and undermines the separation of powers. Judges in such roles run the risk of forming personal and professional ties within the executive branch, which may compromise their impartiality when they return to their judicial duties. The Court noted that this concern is heightened under the current law, which allows for assignments of up to three years - significantly longer than the one-year limit previously struck down.

Second, the Court emphasised the significant influence of the executive branch, in particular the Ministry of Justice, on the selection, appointment and career advancement of judges in the Czech Republic. Allowing the Ministry to assign judges to its staff creates dependence on the executive and jeopardises the independence of the judiciary. While similar practices may exist in other countries, such as France or Germany, the Court stressed that the specific institutional conditions of the Czech Republic make such assignments particularly problematic, as the self-government of the judiciary is relatively underdeveloped.

Thirdly, the Court confirmed its earlier decision in Pl. ÚS 7/02, which had already declared such assignments unconstitutional. By reintroducing the contested provisions, the legislature ignored the Court's previous ruling and violated the principle of the independence of the judiciary. The Court found that these provisions not only violated the requirement of external or objective judicial independence, but also undermined public confidence by creating the appearance of judicial bias.

The Court also criticised the remuneration structure for judges attached to the Ministry of Justice. These judges continue to receive judicial salaries and benefits under the judicial salaries law, even though they do not perform judicial functions, which creates an inequity compared to other employees of the Ministry who are compensated under the ordinary labour law. This inconsistency further underlines the incompatibility of assigning judges to executive functions.

In conclusion, the Constitutional Court found that the assignment of judges to the Ministry of Justice undermines the independence of the judiciary and violates constitutional principles. By confirming its earlier decision in Pl. ÚS 7/02, the Court emphasised the need to preserve the independence of the judiciary and the separation of powers, and ultimately annulled the contested provisions.

Relation of the case to the EU Charter

N/A

Relation between the EU Charter and ECHR

N/A

Use of Judicial Interaction technique(s)

N/A

Horizontal Judicial Interaction patterns (Internal – with other national courts, and external – with foreign courts)

N/A

Vertical Judicial Interaction patterns (Internal – with other superior national courts, and external – with European supranational courts)

N/A

Strategic use of judicial interaction technique (purpose aimed by the national court)

N/A

Impact on Legislation / Policy

N/A

Notes on the national implementation of the preliminary ruling by the referring court

N/A

Did the national court quote case law of the CJEU/ECtHR (in particular cases not already referred to by the CJEU in its decision) or the Explanations?

N/A

Did the national court quote soft law instruments, such as GRECO Reports, Venice Commission, CEPEJ Reports, or CCEJ Reports?

N/A

Did the national court take into account national case law on fundamental rights?

No

If the court that issued the preliminary reference is not a last instance court, and the “follow up” was appealed before a higher court, include the information

No

Was there a consensus among national courts on how to implement the CJEU's preliminary ruling; and were there divergences between the judiciary and other state powers regarding the implementation of the preliminary ruling?

No

Impact on national case law from the same Member State or other Member States

N/A

Connected national caselaw / templates

N/A

(Link to) full text

nalus.usoud.cz

Author

Šimon Chvojka, University of Masaryk (MUNI)

Czech Republic, Ústavní soud (Constitutional Court), Pl. ÚS 39/08, constitutional, 6. 10. 2010