The case concerns disciplinary proceedings conducted against the applicant, an enforcement officer, by the disciplinary chamber of the Supreme Administrative Court acting as the disciplinary court. The applicant raised various complaints under Article 6 of the Convention and Article 2 of Protocol No. 7 relating to the disciplinary court, arguing that it was not an independent and impartial tribunal and that its decision could not be appealed against.
CASE OF GROSAM v. THE CZECH REPUBLIC
(Application no. 19750/13)
Art 6 (civil) • Independent and impartial tribunal • Insufficient procedural guarantees in appointment procedure for lay members of disciplinary court and in their protection from outside pressure once appointed, not remedied by domestic courts
23 June 2022
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Grosam v. the Czech Republic,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Krzysztof Wojtyczek, President,
Ksenija Turković, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 19750/13) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Czech national, Mr Jan Grosam (“the applicant”), on 13 March 2013;
the decision to give notice of the application to the Czech Government (“the Government”);
the parties’ observations;
Having deliberated in private on 24 May 2022,
Delivers the following judgment, which was adopted on that date:
1. The case concerns disciplinary proceedings conducted against the applicant, an enforcement officer, by the disciplinary chamber of the Supreme Administrative Court acting as the disciplinary court. The applicant raised various complaints under Article 6 of the Convention and Article 2 of Protocol No. 7 relating to the disciplinary court, arguing that it was not an independent and impartial tribunal and that its decision could not be appealed against.
2. The applicant was born in 1963 and lives in Prague. He was represented by Mr J. Dajbych, a lawyer practising in Prague.
3. The Government were represented by their Agent, Mr V.A. Schorm, of the Ministry of Justice.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. The applicant worked as an enforcement officer (soudní exekutor) who, as a member of a liberal profession, was, on the State’s behalf, in charge of performing enforced execution of enforceable titles, such as final civil court decisions, arbitration awards, or an enforceable notarial or enforcement officer’s record.
6. On 21 May 2010, the Minister of Justice, in the capacity of a disciplinary petitioner (kárný žalobce), lodged a disciplinary action (kárná žaloba) against the applicant with the disciplinary chamber (kárný senát) of the disciplinary court (kárný soud), which was the Supreme Administrative Court (Nejvyšší správní soud), for two alleged acts of misconduct (namely, that he had acted on behalf of a debtor without the proper authorisation). The Minister left it to the disciplinary court’s discretion to determine which disciplinary measure (kárné opatření) should be imposed on the applicant.
7. On 25 June 2012 a hearing took place before the disciplinary chamber of the Supreme Administrative Court. The disciplinary chamber was composed of a judge of that court, being its chair; a judge of the Supreme Court acting as the deputy chair; and four lay assessors: two enforcement officers, one attorney-at-law and one person practising law in another field. The applicant was represented by an attorney-at-law. At the beginning of the hearing, the disciplinary petitioner proposed that the applicant be fined, at the court’s discretion. The applicant maintained that the finance director of the debtor company had given him a document authorising him to act on its behalf. Having not provided the document or any other evidence supporting this allegation, the applicant stated that he did not have a legal obligation to do so and that it was up to the petitioner to prove his guilt, since the Code of Criminal Procedure was to be applied in default.
8. On the same day, the disciplinary court found the applicant guilty and fined him 350,000 Czech korunas (CZK) (12,650 euros (EUR)).
9. The applicant lodged a constitutional appeal (ústavní stížnost) in which he alleged violations of several principles of criminal procedural law: the presumption of innocence, the duty of the court to gather evidence and the right of appeal. The applicant argued that the disciplinary court could have summoned witnesses to bear out his allegations. Furthermore, he claimed that the court had not invited him to submit evidence proposals during or at the end of the hearing, even though it had been required to do so under the Code of Criminal Procedure, which was applicable mutatis mutandis to the disciplinary proceedings.
10. Then, arguing that he had been charged with a criminal offence within the meaning of the Convention, he alleged a violation of Article 2 § 1 of Protocol No. 7 as the domestic law did not provide him with the possibility of appealing against the disciplinary court’s decision. He also argued that the disciplinary court had to be a tribunal within the meaning of Article 6. Referring to a plenary decision no. Pl. ÚS 33/09 of the Constitutional Court, dated 29 September 2010 (see paragraph 51 below), the applicant developed his arguments, inter alia, as follows:
“…In its decision the Constitutional Court ruled that the right to appeal against a decision of a judicial authority is not enshrined in the constitutional order of the Czech Republic. The complainant therefore claims this right under Article 6 of the Convention and Article 2 of the Protocol [No. 7].
The Protocol [No. 7] provides for the right to seek review of a decision in the context of proceedings on criminal charges. …
By the impugned decision [of the disciplinary court] the applicant was found guilty in the context of proceedings which are in the nature proceedings on a criminal charge. However, he was not allowed to seek a review of the impugned decision. This interfered with the applicant’s right to a fair trial and violated Article 36 § 1 of the Charter [of Fundamental Human Rights and Freedoms], Article 6 § 1 of the Convention and Article 2 of the Protocol [No. 7 to the Convention]. …
The applicant is aware of the provisions of Article 2 § 2 of Protocol [No. 7], which lay down exceptions to the right to a review in the cases defined therein. Under that provision, an exception to the right to review by a higher judicial instance could be allowed if the charge had been decided at first instance by the highest tribunal. Accordingly, in order for this exception to be accepted, two conditions would have to be met simultaneously: the determining authority would have to be a tribunal within the meaning of Article 6 of the Convention and, at the same time, it would have to be the “highest” tribunal within the meaning of Article 2 § 2 of the Protocol [No. 7].
In relation to the assessment of the disciplinary chamber of the Supreme Administrative Court (hereinafter also referred to as the “disciplinary chamber”) as a tribunal within the meaning of Article 6 of the Convention, the Constitutional Court has already expressed its view that the disciplinary chamber is such a tribunal (Pl. ÚS 33/09). However, in that decision, the Constitutional Court did not elaborate on whether the Disciplinary Chamber should be regarded as the “highest” tribunal within the meaning of Article 2 § 2 of the Protocol [No. 7] (this was not significant for the case examined in the said decision), or rather, that decision brings no argumentation to that effect. However, such issue was dealt with in detail in a dissenting opinion by Judge Dagmar Lastovecká, to whose opinion the applicant refers and at the same time elaborates on some of these arguments below.
As the “highest” court within the meaning of Article 2 § 2 of the Protocol [No. 7], a particular body cannot be judged on the basis of its designation. It is necessary to examine both the formal features (the designation) and the material features (composition, requirements for the performance of the functions, …). Pursuant to Article 4b of Act No. 7/2002 Coll., a disciplinary chamber composed of the president of the chamber, his deputy and four lay assessors hears the [disciplinary] cases of enforcement officers. … It is clear from the foregoing that judges of the highest judicial instances are represented on the disciplinary chamber, but they are in a minority. The majority of the disciplinary chamber consists of lay assessors who are not judges of the highest judicial instances – they are not even judges, but members of other legal professions. They do not have any experience in decision-making in judicial matters and do not have to satisfy any qualification requirement for decision-making (minimum experience in the judiciary in order to become judges of a high judicial instance; minimum age; psychological test, …) and in this respect, they have to be seen as laypersons (despite their legal education). Decision-making in chambers composed of judges and lay assessors is exceptional in the legal order of the Czech Republic and is typical for simpler legal disputes (some of the criminal and labour-law first-instance proceedings). There is always a risk in these cases that legal professionals who have decision-making in their job description will be outvoted. Thus, at first instance [a decision is always taken by both] judges and lay assessors and it has been allowed in appellate proceedings to remedy decisions that might be erroneous (due to the fact that judges had been outvoted). If that guarantee of a fair decision exists in civil proceedings (labour disputes), it should be a matter of course also in proceedings concerning criminal charges. In the event that lay assessors outvote judges in disciplinary proceedings, regardless of their motives …, any remedy is excluded.
In view of the foregoing, the applicant considers it obvious that, although the disciplinary chamber bears in its designation the word “supreme”, it is not the highest judicial instance. Its members do not satisfy the common requirements for exercising the function of a member of the highest judicial instance; they are not even judges. Such an organ cannot sufficiently guarantee the correctness, or even the fairness, of the decision-making process. The applicant is convinced that the disciplinary chamber is not the “highest tribunal” within the meaning of Article 2 § 2 of the Protocol [No. 7]. The aforementioned exception under Article 2 § 2 of the Protocol [No. 7] is out of question and the disciplinary defendant shall be guaranteed the right to have the decision against him or her reviewed by a court of higher instance. …”
11. On 11 September 2012, the Constitutional Court (Ústavní soud) dismissed the applicant’s constitutional appeal. It held that it was not within its authority to review compliance with ordinary laws, but only with constitutional law. It found that the disciplinary court had provided convincing and logical reasons for its decision. Referring to its case-law (decision no. Pl. ÚS 33/09 concerning disciplinary proceedings against a judge), it stated, in particular:
“In respect of the reasons expressed in the constitutional appeal concerning the impossibility of applying for a review of the decision delivered in the disciplinary proceedings and the composition of the disciplinary chamber, the Constitutional Court refers to the reasoning in its plenary judgment no. Pl. ÚS 33/09 by which the chamber [sitting in the present] case is bound. [In the above plenary judgment] the proposal to repeal section 21 of Act no. 7/2001 as amended by Act no. 314/2008 was rejected [and] … the Constitutional Court, for the reasons set out therein, [and having assessed] the disciplinary chamber from the point of view of its composition, found that the [legal provisions] which did not [give] a person charged with a disciplinary offence [the right] to lodge an appeal against a decision of the disciplinary chamber was not unconstitutional. …”
12. Regarding the other complaints made by the applicant, the Constitutional Court made the following general statement:
“… the applicant’s arguments do not lead to the conclusion that the constitutional appeal is well-founded.”
13. The Constitutional Court’s decision of 11 September 2012 was served on the applicant on 17 September 2012, and, by that fact, became final.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
I. Legislative history of disciplinary proceedings against enforcement officers in THE Czech REPUBLIC
A. Act no. 120/2001 on Enforcement Officers and Enforcement Activities (Execution Rules) and on Amendments to Other Acts
14. As part of the efforts to bolster civil enforcement in the Czech Republic, a function until then conferred only on civil courts, a new Act no. 120/2001 on Enforcement Officers and Activities (Execution Rules) and Amendments to Other Acts (“Execution Rules Act”) was passed on 28 January 2001. Amongst the provisions introduced by the Act was the establishment of a new liberal profession of the enforcement officer, who would thenceforward be entrusted with civil enforcement on behalf of the State along with the ordinary civil courts. While carrying out the enforcement activity, the enforcement officer would perform a function of the State, thus wielding a part of the State’s power.
15. In addition to that, a self-governing Chamber of Enforcement Officers (Exekutorská komora ČR) with mandatory membership was established, one of twelve self-governing professional associations with mandatory membership at the time. Three of them were comprised solely of legal professionals, namely attorneys-at-law, notaries and enforcement officers.
16. Disciplinary jurisdiction over its members was initially conferred on the self-governing Chamber of Enforcement Officers, which was empowered to adopt a professional Disciplinary Rule by law (section 116 of the Execution Rules Act). Shortly after its establishment, the Chamber adopted the Disciplinary Rule of the Chamber of Enforcement Officers on 23 May 2002.
17. The disciplinary committee (kárná komise) was composed of nine members: six of them were elected for a three-year period by the Chamber’s assembly and the remaining three were professional judges appointed for an indefinite period by the Minister of Justice. It initially served as a pool for the creation of three-member disciplinary panels (kárný senát) hearing disciplinary cases. These cases were to be presided by one of the appointed professional judges. The remaining two members were to be chosen from among the elected enforcement officers. The decision of that disciplinary body of the Chamber, as with disciplinary cases concerning the membership of other self-governing Chambers, could be appealed to the disciplinary committee, which acted also as the appellate body, and subsequently could be subject to judicial review.
B. Act no. 183/2009 amending the Execution Rules Act
18. As of 26 June 2009, unlike for all other self-governing associations, disciplinary jurisdiction over the members of the until then fully self‑governing Chamber of Enforcement Officers was abolished and the disciplinary panels and committee of the Chamber were dissolved by Act no. 183/2009, and transferred to the disciplinary chambers for judges of the Supreme Administrative Court, which had already been acting as the disciplinary court for judges and prosecutors under the Act on Proceedings in Matters concerning Judges and Public Prosecutors no. 7/2002. The disciplinary proceedings were mutatis mutandis held as for those for judges. Pursuant to Section 21, no appeal was admissible.
19. The rationale behind that change was omitted from the explanatory memorandum no. 183/2009 Dz, which only stated that the change would be implemented:
“The proposal further assumes that disciplinary proceedings against enforcement officers and enforcement officer’s candidates will take place before the disciplinary chamber of the Supreme Administrative Court, pursuant to the Act on Proceedings in Matters concerning Judges and Public Prosecutors no. 7/2002, as amended, mutatis mutandis.”
20. As a result thereof, disciplinary cases against enforcement officers were heard by the disciplinary chambers for judges of the disciplinary court, which was the Supreme Administrative Court. That disciplinary chamber was composed of three professional judges and three lay assessors. A judge of the Supreme Administrative Court acted as the chamber’s chair, a judge of the Supreme Court as the deputy chair, and the third judicial member was a district or regional court or High Court judge. The remaining three members were lay assessors: at least one attorney-at-law, one public prosecutor and one listed person practising law in other fields. In the event of a tied vote when ruling whether the enforcement officer was guilty of professional misconduct, the chamber had to acquit him or her.
21. In contrast, until 2008 disciplinary proceedings for judges under Act 7/2002 had been heard in disciplinary courts on two levels of jurisdiction, being the disciplinary chambers composed only of professional judges. Reasons for the abandonment of the two-tier system, the transfer of disciplinary jurisdiction solely to the Supreme Administrative Court and the modification of the disciplinary chamber composition were given by those who framed the change in the explanatory memorandum no. 314/2008 Dz:
“Other changes in the regulation of disciplinary proceedings should also contribute to streamlining the work of the judiciary. … The composition of the chambers of the disciplinary courts is being changed so that judges of various levels of the judicial system and members of other legal professions be equally represented in them. Lay assessors from among attorneys-at-law, notaries and enforcement officers and other legal professions should bring different points of view into the disciplinary proceedings than those expected of judicial members of the disciplinary chambers and should allow for a more comprehensive and objective assessment of the disciplinary misconduct.
C. Act no. 286/2009 amending, among other laws, the Execution Rules Act and Act no. 7/2002
22. However, as of 1 November 2009, the composition of the disciplinary chambers for enforcement officers has been modified by Act no. 286/2009. The disciplinary chambers for judges stopped hearing the cases of enforcement officers and the task was assigned to the freshly established disciplinary chambers for enforcement officers (for details, see paragraph 32 below).
23. The rationale for such an alteration was not published. According to the Chamber of Deputies press (sněmovní tisk) no. 804 for the 5th legislative term, the original governmental bill envisaged no changes regarding the composition of the disciplinary chamber for enforcement officers. The change was subsequently adopted during the following parliamentary procedure while debating the bill, as appears from the Chamber of Deputies press no. 804/2, which passed as Act no. 286/2009. Once again, no explanatory memorandum to justify the change was produced.
II. RELEVANT DOMESTIC LAW
A. Act no. 120/2001 on Enforcement Officers and Enforcement Activities (as amended)
24. Pursuant to section 1(1) of this Act, the enforcement officer […] is a natural person fulfilling the preconditions under this Act, who has been entrusted by the State with the enforcement officer’s office.
25. Pursuant to section 2 of this Act, enforcement officers are obligated to perform enforcement activities independently. In performing these activities, they are bound only by the Constitution, laws, and other statutory instruments.
26. Under section 8, the Minister of Justice appoints and removes enforcement officers and also determines and increases the total number of enforcement officers. In accordance with section 11(1), the enforcement officer swears an oath before the Minister of Justice.
27. Under section 28, enforcement is carried out by that enforcement officer, who was named by the entitled party in his or her enforcement claim and who is entered in the register of initiated enforcement proceedings. Acts carried out by enforcement officers in enforcement proceedings are deemed to be acts of the court.
28. Under section 116, enforcement officers are liable for any disciplinary misconduct. Disciplinary misconduct means, inter alia, a grave or repeated breach of duties prescribed by legal or professional regulations, or that the enforcement officer’s conduct gravely or repeatedly impaired the profession’s dignity. In the event of disciplinary misconduct, any of the following disciplinary measures may be imposed on an enforcement officer: a reprimand, a written reprimand, a fine of up to a hundredfold of the minimum monthly wage, and removal from office.
29. Under section 117(2), disciplinary action can be brought only by the Minister of Justice, the chairman of the audit committee and the chairman of the review committee of the Chamber of Enforcement Officers, the president of the regional or district court if the enforcement officer’s registered office is within the jurisdiction of that court, and also the president of the district court that has authorised the enforcement officer to carry out the enforcement.
30. Under section 123, for the purpose of disciplinary liability, once five years have elapsed from the date on which the decision imposing a disciplinary measure became final, the enforcement officer is deemed not to have been the subject of disciplinary proceedings for misconduct.
31. According to the Explanatory memorandum to the draft of Act no. 120/2001, Parliamentary Press no. 725/0, special part, to section 1:
“The enforcement officer is a non-state body – a natural person to whom the state delegates part of its power rights, which otherwise belongs to the courts. The enforcement officer performs the activity as a liberal profession and has the status of a public official.”
B. Act no. 7/2002 on Proceedings in Matters concerning Judges, Public Prosecutors and Enforcement Officers (as amended)
32. The relevant provisions of the Act are the following:
“The disciplinary court shall hear and decide cases coming under this Act. The Supreme Administrative Court is the disciplinary court.”
(4) The president of the disciplinary court shall keep a list of lay assessors for proceedings in matters concerning judges. Further to a request by the president of the disciplinary court and within the time limit fixed by [him], … the Prosecutor General, President of the Czech Bar Association and deans of faculties of law of public universities … shall each nominate ten lay assessors from among public prosecutors and members of the Bar to be entered in the list of lay assessors in matters concerning judges. …”
“(1) In proceedings in matters concerning enforcement officers the disciplinary court shall hear and decide cases in chambers composed of a presiding judge, his deputy, and four lay assessors. The presiding judge is a judge of the Supreme Administrative Court and his deputy is a judge of the Supreme Court. Two of the lay assessors are enforcement officers, two are nominated according to subsection 4, third sentence. Among the lay assessors who are not enforcement officers, there shall always be at least one attorney-at-law and one person practising law in another field provided that he or she is registered in the list of lay assessors for proceedings in matters concerning judges.
(4) The president of the disciplinary court shall keep lists of lay assessors for proceedings in matters concerning enforcement officers. [He] shall include in the list the names of ten enforcement officers nominated by the president of the Chamber of Enforcement Officers … at the request of the president of the disciplinary court. As regards the other lay assessors, section 4(4), third and fourth sentences, shall apply as appropriate.
(5) The president of the disciplinary court shall appoint, by drawing lots from the lists mentioned in subsection 4, lay assessors, four substitutes from among enforcement officers and four substitutes from other lay assessors in the fixed order. [He or she] shall appoint, by drawing lots, other lay assessors and substitutes from among other lay assessors so that the disciplinary chamber always includes at least one attorney-at-law and one person practising law in another field provided that he is registered in the list of lay assessors for proceedings in matters concerning enforcement officers.
(6) The term of office of the chamber in matters concerning enforcement officers is of five years.
(7) The chamber of the disciplinary court for proceedings in matters concerning enforcement officers shall decide cases by a majority of votes of all the members. In the event of a tied vote when ruling whether an enforcement officer is guilty of professional misconduct, the chamber shall acquit him or her.”
(2) A lay assessor of the disciplinary court for proceedings in matters concerning judges or of the disciplinary court for proceedings in matters concerning public prosecutors, unless he is a public prosecutor, and a lay assessor of a chamber of the disciplinary court for proceedings in matters concerning enforcement officers, unless he is an enforcement officer, must be a citizen of the Czech Republic who
(a) at the time of swearing the oath is at least 30 years old,
(b) has legal capacity,
(c) has obtained a master’s degree in law,
(d) is of good moral character,
(e) has the experience and moral character ensuring that he will hold the position dutifully,
(f) fulfils other conditions prescribed by a special regulation.
(3) The rights and duties of a lay assessor of a chamber of the disciplinary court are governed, as appropriate, by the provisions concerning the rights and duties of lay assessors in a special regulation.
(4) … a lay assessor [unless he is an enforcement officer] is entitled to remuneration for performing [his duty] amounting to the equivalent of 1/21 of the monthly salary of a judge of the Supreme Administrative Court for each day he participates in hearings before a chamber of the disciplinary court. [He] … is entitled to reimbursement of cash expenses … incurred in performing his duties.
(6) … Only an enforcement officer who has held office for at least three years and is of good moral character may be nominated to be put on the list of lay assessors of the disciplinary court for proceedings in matters concerning enforcement officers. …”
(5) A petition to initiate disciplinary proceedings for disciplinary liability of a public prosecutor may be lodged by
a) the Minister of Justice …”
“(1) The presiding judge of the chamber shall serve the notice to commence proceedings on the person against whom the disciplinary charges are brought … and … shall advise him of his right to allege bias on the part of the members of the chamber, to express his opinion on [the charges] and evidence, to submit facts and evidence in his favour, and also of his right to remain silent.”
(4) The presiding judge of the chamber shall hear the person against whom the charges have been brought and take any other evidence as necessary. …
(5) After the evidence has been heard, the petitioner, defence counsel and the person against whom disciplinary charges have been brought may express their opinions on the case. The person against whom the charges have been brought shall always make the closing submission.
(6) The oral hearing is public.”
“Appeal against a decision taken in disciplinary proceedings is not admitted.”
“(1) A judge, president of the court, vice-president of the court, president of a division of the Supreme Court or the Supreme Administrative Court, a public prosecutor or an enforcement officer may submit a request for retrial within three years from the date on which a decision of the chamber takes legal effect …
(2) No other remedy against the final decision in disciplinary proceedings is permitted.”
“Unless this Act provides otherwise or unless the nature of the case suggests otherwise, the provisions of the Code of Criminal Procedure shall apply as appropriate.”
C. Regulation no. 330/2001 of the Ministry of Justice on the remuneration and compensation of enforcement officers, on the remuneration and reimbursement of cash expenses of insolvency trustees and the conditions of liability insurance for damages caused by enforcement officers
33. The enforcement officer performs enforcement activities and other activities for remuneration, the amount and method of its determination being governed by this Regulation.
D. Act no. 396/2012 on Amendments to the Code of Civil Procedure as amended, and to other related Acts (entry into force on 1 January 2013)
34. Part eleven, Article XVI provides for the following amendments to the Ombudsman Act:
“In section 22 of the Ombudsman Act no. 349/1999, as amended by Act no. 381/2005 and Act no. 303/2011, a new subsection 3 provides: ‘3. The Ombudsman may propose persons to be entered in the list of lay assessors for proceedings in matters concerning enforcement officers under a special law.’.”
35. Part fifteen, Article XXII provides, inter alia, for the following amendments to Act no. 7/2002:
3. In section 4(1), fourth sentence, the words ‘one person practising law in another field provided that he is registered in the list of lay assessors for proceedings in the matter concerning judges’ shall be replaced by the words ‘one person nominated by the Ombudsman’.
4. In section 4b(4) the third and fourth sentences shall be replaced by the sentences ‘A lay assessor who is an attorney-at-law’ and section 4(4), second to fourth sentences, shall apply as appropriate. Further to a request by the president of the disciplinary court and within the time limit fixed by [him], which may not be shorter than 30 days, the Ombudsman may nominate five lay assessors for entry in the list of lay assessors for proceedings in matters concerning enforcement officers; section 4(4), third and fourth sentences, shall apply to these assessors as appropriate. Attorneys-at-law and persons nominated by the Ombudsman shall be included in the list of other assessors by the president of the disciplinary court.
5. In section 4b(5) the words ‘one person practising law in another field provided that he is registered in the list of lay assessors for proceedings in matters concerning enforcement officers’ shall be replaced by the words ‘one person nominated by the Ombudsman’.”
36. Article XXIII, containing the transitional provisions, reads as follows:
“The Ombudsman may nominate lay assessors under section 4b(4) of Act no. 7/2002, as amended, from the day of entry into force of the present Act, up until two months from the day of entry into force of the present Act.”
E. Courts, Judges and Lay Assessors Act no. 6/2002
37. Section 60(1) lays down the requirements for becoming a judge or a lay assessor, which include: citizenship of the Czech Republic, full legal capacity, good moral character, experience, moral character ensuring that the person will hold the position dutifully, and age of at least thirty years. Under subsection 3, another requirement for becoming a judge is a master’s degree in law and the passing of a special professional examination prescribed for judges. Under subsection 5, the passing of examinations for admission to the Bar or of professional examinations for enforcement officers is regarded as equivalent to the passing of examinations for judges.
38. Under section 64, lay assessors of district courts are elected by municipal councils in the relevant district. Lay assessors of regional courts are elected by regional councils whose territorial competence is at least partly within the territorial jurisdiction of the relevant regional court. Candidates are nominated by members of the relevant council. Lay assessors can be elected from among citizens whose permanent address is in the district of the council which elects them and in the district of the court for which they are elected or in which they work.
39. Under section 67(1), a judge can be assigned to the Supreme Court if he has practised law for at least ten years, provided that his profound expertise guarantees that he is fit to perform the functions of a judge of that court.
40. Section 79 provides that lay assessors are independent when performing their duties. In the course of their activities, they are bound only by the law, which they are obliged to interpret to the best of their knowledge and belief, and they are also obliged to decide within a reasonable time and without delays, impartially, fairly and on the basis of facts established in accordance with the law. Nobody may interfere with or jeopardise their independence and impartiality.
41. Under section 80(1), lay assessors are obliged to perform their duties conscientiously, and in performing their duties, as well as in their private life, they must refrain from anything that could impair the dignity of their office or undermine confidence in the courts’ independent, impartial and fair adjudication.
F. State Liability Act no. 82/1998
42. Under section 4 of the State Liability Act, the acts of enforcement officers in performing enforcement activities and the drawing up of notices of enforcement are deemed to constitute the performance of public administration functions. Under subsection 2, enforcement officers’ activities are deemed to constitute an administrative procedure.
G. Code of Administrative Justice (Act no. 150/2002)
43. For the purpose of challenging members of the disciplinary chamber, Article 8 of this Code applies mutatis mutandis; that provision bars judges from hearing and adjudicating a case if, on account of their links to the case, or the parties to the proceedings or their representatives, there are reasons to doubt that they are unbiased. Under paragraph 2, a judge who considers that there are grounds for being suspected of bias is obliged to advise the president of the court, who must appoint another judge or chamber in the judge’s place. Under paragraph 5, a party to the proceedings or any other person involved in the proceedings can allege bias on the part of a judge or other person appointed by the court.
H. Criminal Code (Act no. 40/2009)
44. An “official” is defined in Article 127 of the Criminal Code; subparagraph (f) specifies that enforcement officers are also considered to be officials when performing enforcement activities and acts carried out on the basis of authorisation by a court. So, on the one hand, enforcement officers are protected by the criminal law as officials (Articles 325 and 326), while on the other hand they can be prosecuted if they commit either the offence of abuse of powers of an official under Article 329, the offence of negligent failure to discharge the tasks of officials under Article 330 or offences related to corruption (Articles 331 to 333).
45. Under Article 2 § 1, data on natural and legal persons who have been found guilty with final effect by courts in criminal proceedings, and also records of other facts relevant to criminal proceedings, are entered in the Register of Criminal Records.
I. Rules of Professional Ethics and Rules of Competition of Enforcement Officers
46. Rule 5 of these Rules provides that in performing their activities, enforcement officers are obliged to proceed independently, conscientiously and carefully.
J. Constitutional Court Act (Law no. 182/1993)
47. Section 72(1) provides that anyone claiming to be a victim of a violation by a “public authority” of a fundamental right or freedom recognised in a constitutional law or international treaty within the meaning of Article 10 of the Constitution shall have standing to bring a constitutional appeal.
III. RELEVANT CASE-LAW OF THE CONSTITUTIONAL COURT
A. The status of enforcement officers
48. In its opinion no. Pl. ÚS-st. 23/06 expressed on 12 September 2006, the plenary of the Constitutional Court stated that enforcement officers, in executing a final decision, were in the same position as a public official, as they held judicial power. That premise was subsequently relied on in a number of subsequent decisions, for example, I. ÚS 636/14 of 28 July 2014, II. ÚS 918/14 of 3 September 2014, II. ÚS 2690/13 of 5 September 2013, IV. ÚS 146/12 of 17 May 2012 and many others.
B. Disciplinary matters
49. In a decision no. I. ÚS 181/01 of 16 April 2003, the Constitutional Court defined certain elements of professional self-governing associations (profesní komory). It stated inter alia the following:
“The case at hand concerns issues related to the so-called professional self-government, in particular of professional chambers with compulsory membership, associating self-employed natural persons in certain professions, where there is a strong public interest in their proper performance. These chambers are legal entities governed by public law, established by law, equipped with the authority to issue various internal regulations for that chamber and its members, who must comply with them with regard to their compulsory membership. The Chamber thus exercises certain powers over these members – members of certain professions – which typically include disciplinary jurisdiction. However, this power is of course not limitless, it is governed by law and the decision which imposes any duty on a member of that chamber, must subsequently be subject to judicial review. …”
50. On 27 October 2009 a disciplinary chamber of the Supreme Administrative Court conducting disciplinary proceedings against a judge reached the conclusion that section 21 of Act No. 7/2002, which prohibited appeals against decisions of the disciplinary chamber, was contrary to the Charter of Fundamental Rights and Freedoms and the Convention (Listina základních práv a svobod). It submitted a petition to the Constitutional Court for the abrogation of that provision.
51. In a judgment of 29 September 2010 (Pl. ÚS 33/09), the plenary of the Constitutional Court decided by a majority to dismiss the petition, stating:
“53. In the light of the above-mentioned [Engel] criteria, the Constitutional Court concludes that disciplinary proceedings against judges of general courts are not proceedings for the determination of criminal charges. Firstly, from the perspective of domestic law, they do not fall under criminal proceedings, in spite of the fact that the Code of Criminal Procedure applies by default. Proceedings against judges are by their nature typically disciplinary and not criminal; although they entail a ruling on liability for breaching obligations prescribed by law, the proceedings concern only the specific duties of judges. Nor is the third criterion (nature and severity of the punishment) of the Engel test fulfilled, despite the fact that it is usually this criterion that makes it possible to include disciplinary proceedings within the ‘criminal’ sphere. Indeed, only a sanction modifying the conditions of the relationship between the judge and the State or terminating the relationship may be imposed on a judge for breaching his obligations. In accordance with section 88 of Act no. 6/2002 … as amended, a reprimand, removal from the position of president of a court, removal from office, or a reduction in pay of up to 30% for up to a year (up to two years if the judge has previously been found guilty in other disciplinary proceedings and the sentence has not yet been erased from the disciplinary records) may be imposed on a judge in disciplinary proceedings. The possible sanctions thus relate only to the conditions (reduction in pay) or the continuation (removal from office) of the relationship between the State and the judge, and therefore their nature is disciplinary, not criminal. For example, judges may not be ordered to pay a fine, which could be regarded as a criminal punishment, but may ‘only’ have their pay reduced or a wage increase withheld.
60. In the Constitutional Court’s view, the disciplinary chamber of the Supreme Administrative Court constitutes a ‘tribunal’ within the meaning of Article 6 of the Convention and (in particular) Article 81 of the Constitution, and this conclusion is not affected by the fact that it is not composed of judges of the said court only, but also of judges of other courts and representatives of other legal professions. In fact, the disciplinary chamber of the Supreme Administrative Court possesses the formal and substantive characteristics of a tribunal. As regards formal characteristics, the Constitutional Court considers it necessary to mention the fact that the disciplinary chamber forms part of the organisation of the Supreme Administrative Court and is always presided over by a judge (of the Supreme Administrative Court or the Supreme Court). As regards substantive characteristics, the Constitutional Court refers to the existence of systemic guarantees of independence and impartiality, which also apply to the disciplinary chamber of the Supreme Administrative Court in the same way as to a court composed of judges only, and this is reflected by the wording of sections 5 and 6 of the impugned Act in particular. The possibility that other citizens, in addition to judges, may participate in the courts’ decision-making follows, moreover, from Article 97 § 2 of the Constitution; therefore, the very fact that the court’s chamber is composed of both judges and lay assessors is not capable ex constitutione of preventing the description of that chamber as a ‘tribunal’. …
61. It must be added that even if the Constitutional Court concludes that the proceedings under the impugned Act have the nature of criminal proceedings, this conclusion alone would not necessarily result in its repeal, either as a whole or as regards section 21. This is also supported by Article 2 § 2 of Protocol No. 7 to the Convention, under which – even if the proceedings concerned were criminal proceedings – the right of appeal against a decision delivered in the proceedings does not have to be guaranteed if the highest tribunal has decided as the court of the first instance. Given that fact … it is also not possible to accept the argument that proceedings at one instance only could affect the quality of the decision on the merits. …”
52. In a decision no. Pl. ÚS 38/09 of 3 August 2011 the plenary of the Constitutional Court examined a proposal of the Supreme Administrative Court to repeal certain transitional provisions of Act no. 183/2009, which amended Act no. 120/2001 on Enforcement Officers and Enforcement Activities, and other laws. The court noted, inter alia:
“9. The proposal was also sent for comments to the Ministry of Justice, which stated that at the time of adoption of the above-mentioned amendment to the Act it was clear that the disciplinary organs of the Chamber of Enforcement Officers of the Czech Republic did not perform their role. The length of the disciplinary proceedings was unreasonably long …. The number of undecided cases was constantly high and increased from year to year. In comparison to other professional chambers ([Notarial Chamber and Bar Association]), the purpose of the proceedings carried out by the Chamber of Enforcement Officers of the Czech Republic under the law in force until 25.6.2009 was not fulfilled. Political parties represented in the Parliament of the Czech Republic agreed that disciplinary matters should be immediately transferred to another independent body.
11. The objective of [the] new regulation was to fully remove, with immediate effect, authority from the [disciplinary] organs of the Chamber of Enforcement Officers in the field of decision-making in respect of disciplinary wrongdoing. In order to guarantee the quality of the decision-making process in respect of disciplinary responsibility of enforcement officers and to renew confidence in the [disciplinary] responsibility system, it was decided to set up a special chamber of the Supreme Administrative Court which would guarantee the independence and impartiality of the process concerned. The new regulation passes the test of constitutionality because it satisfies the criteria of expediency, usefulness and adequacy.
27. … The Constitutional Court believes that following practical experience of excesses in enforcement officers’ work and lenient decisions of the Chamber of Enforcement Officers of the Czech Republic on applications for disciplinary sanctions to be imposed on them, the transfer of this competence to the Administrative Court is certainly a legitimate objective. …
28. … the way in which the Chamber of Enforcement Officers of the Czech Republic currently decides applications for the imposition of disciplinary sanctions on enforcement officers has long been a source of doubts about the Chamber’s interest in expeditious, effective and objective disciplinary proceedings complying with the principles of a fair trial. …
29. … In fact, under the new legislation, criticised by the petitioner, (enforcement officers) have at their disposal a whole procedure conducted from the very beginning before the Supreme Administrative Court’s highly skilled chamber, the composition of which guarantees an equal, fair and independent assessment of all cases regardless of the stage reached in the proceedings when they were referred to it. …
30. So it can be concluded that the public interest in thorough and impartial decision-making in disciplinary proceedings against enforcement officers is guaranteed by the fact that a special chamber of the Supreme Administrative Court, that is to say, the highest tribunal guaranteeing the independence and impartiality of the whole process, adjudicates in disciplinary proceedings against enforcement officers. …”
53. In a decision no. IV. ÚS 1335/12 of 9 July 2013, following the judgment of the plenary court (see paragraph 51 above), the Constitutional Court addressed the issue of whether the conclusions set out in that judgment could be directly applied to disciplinary proceedings in matters concerning enforcement officers. In this connection, the court held, inter alia:
“For the sake of completeness, it is noted that in judgment no. Pl. ÚS 33/09, the Constitutional Court concluded that the impossibility of lodging an appeal against the disciplinary court’s decision is not contrary to the constitutional guarantees of the right to a fair trial. It held that the constitutional system guaranteed a right of appeal only in criminal matters (Article 2 § 1 of Protocol No. 7 to the Convention) and that there were exceptions to this rule under Article 2 § 2 of Protocol No. 7 to the Convention … The Constitutional Court supported its conclusion on the constitutionality of the impugned provision by arguing that disciplinary proceedings concerning judges were not proceedings for the determination of a criminal charge within the meaning of Article 6 § 1 of the Convention (this conclusion does not directly apply in the present case) and pointing out that the Supreme Administrative Court’s decisions are delivered by the highest tribunal within the meaning of Article 2 § 2 of Protocol No. 7 to the Convention (a fact which is also relevant in the present case).”
54. The Constitutional Court expressed a similar opinion in decision no. IV. ÚS 2047/13 of 15 October 2013. It stated:
“The Constitutional Court did not find any violation of the rights alleged by the applicant. First, in respect of his allegation of a violation of the right to an effective domestic remedy, the Constitutional Court referred … to its decision no. Pl. ÚS 33/09 … . The Constitutional Court [in that decision] reached the conclusion that ‘a legal regulation which does not allow a person accused of a disciplinary offence to appeal against a decision of the disciplinary chamber is not unconstitutional; a general right to appeal is not protected in the constitutional order’; when the disciplinary proceedings do not involve the determination of a criminal charge within the meaning of Article 6 of the Convention … and Article 2 of Protocol No. 7 to the Convention, the right to appeal against a decision adopted in such proceedings is, accordingly, not explicitly guaranteed in the constitutional order and it is not otherwise possible to infer such a right from the constitutional order. These conclusions are also fully valid in respect of cases concerning breaches of discipline by enforcement officers.”
55. On 10 December 2013, the Constitutional Court adopted decision no. I. ÚS 1807/13, in which it stated, inter alia:
“The Constitutional Court observes that disciplinary proceedings are not the same as criminal proceedings; the provisions of the Code of Criminal Procedure are applicable only where appropriate, which means that they are applied in the light of the purpose and nature of the disciplinary proceedings.
In order to assess the fairness of the disciplinary proceedings in issue, [the relevant circumstances] are of key importance … In the disciplinary case involving the applicant, the Constitutional Court, on the basis of the documents gathered …, does not have any doubt that the disciplinary court … concluded that all the necessary evidence was assessed [and] rejected the applicant’s proposal to obtain other material in evidence, giving reasons [for its decision]. … Moreover, the disciplinary court, in a reasoned written decision, explained why the proceedings were not supplemented by obtaining statements from other witnesses, as requested by the applicant. For these reasons, the Constitutional Court finds that the proceedings before the disciplinary court did not violate the applicant’s fundamental rights and freedoms.”
56. By decision no. I. ÚS 12/14, adopted on 24 June 2014, the Constitutional Court dismissed a constitutional appeal in which the applicant, an enforcement officer, had alleged a violation of his right to a fair trial by challenging the fact that no appeal lay against a decision of the Supreme Administrative Court by which he had been fined CZK 20,000. The court also rejected the applicant’s request to repeal section 21 of Act no. 7/2002 on Proceedings in Matters concerning Judges, Public Prosecutors and Enforcement Officers. It stated, inter alia:
“4. In the present case the disciplinary chamber of the Supreme Administrative Court, on the basis of the correctly established facts in issue which the Constitutional Court, in accordance with settled case-law, cannot review, provided sufficient and relevant reasons for its conclusions in respect of the disciplinary offence committed by the applicant (an enforcement officer). The impugned decision … does not contain any element of arbitrariness or any substantial deviation from the ambit of the Constitution.
5. As to the applicant’s claim concerning the impossibility of requesting a review of the decision adopted in the disciplinary proceedings and the composition of the disciplinary chamber, the Constitutional Court refers to the reasoning of its plenary judgment of 29 September 2010 no. Pl. ÚS SS/09 (N 205/58 SbNU 827), in which it dismissed a proposal to repeal section 21 of Act no. 7/2002 on Proceedings in Matters concerning Judges, Public Prosecutors and Enforcement Officers as amended by Act no. 314/2008 Coll. In this judgment, the Constitutional Court reached the conclusion that a legal regulation which did not provide for an appeal by the accused against a decision of the disciplinary chamber was not unconstitutional.”
C. The status of the public prosecutor’s office
57. In its judgment no. Pl. ÚS 17/10 of 28 June 2011, the plenary of the Constitutional Court stated that in the Constitution, the Public Prosecutor’s Office is systematically included in the third chapter regulating the executive power, namely in the part concerning the Government (Article 80 of the Constitution). It emphasised that the legal doctrine also reached fundamentally identical conclusions about the part of the Public Prosecutor’s Office as a part of the executive power, being a sui generis body.
IV. RELEVANT INTERNATIONAL MATERIAL
A. The Group of States against Corruption (GRECO) – Corruption prevention in respect of members of parliament, judges and prosecutors (Evaluation Report – Czech Republic, 72th Plenary Meeting 27 June – 1 July 2016)
58. In the chapter entitled “Corruption prevention in respect of judges”, it was stated as follows:
“136. After the on-site visit, [a GRECO evaluation team; hereinafter “the GET”] was left with the impression that the regime of disciplinary proceedings works well and that the composition of the Disciplinary Court, as well as the procedural arrangements, are adequate to ensure effective proceedings and fair trial. That said, the GET notes with concern that decisions by the Disciplinary Court are not subject to appeal. During the interviews it held, it was stated that this situation had been criticised in the past and challenged before the Constitutional Court, but the latter had ruled that the present legislation did not violate the Constitution. Nevertheless, the GET wishes to draw the attention of the authorities to European standards according to which, in disciplinary proceedings, a judge should be given ‘the right to challenge the decision and sanction’ and that there should be ‘the possibility of recourse before a court’. The GET is particularly concerned about the fact that even dismissal cannot be included in the current reform plans regarding the justice system. Consequently, GRECO recommends introducing the possibility for judges to challenge disciplinary decisions including for dismissal before a court.”
59. In the chapter entitled “Corruption prevention in respect of prosecutors”, it was noted as follows:
“154. As in the case of judges, the GET notes that the recruitment and career advancement of public prosecutors is only sparsely regulated. At present, the selection procedure is under the responsibility of Regional Public Prosecutors. The appointment decision is then taken by the Ministry of Justice based on a proposal by the Supreme Public Prosecutor. During the interviews, the GET was told that the Ministry usually accepts the candidates proposed, at least for an initial appointment, but not necessarily for more senior positions. The authorities stress that the recruitment procedure follows an established practice involving an open competition and a ranking of candidates based on a written test and an oral interview with a committee of (usually four) prosecutors of different offices and an expert from the Ministry of Justice. Nevertheless, the GET shares the concerns of several interlocutors about the low level of regulation. It is of the firm opinion that clear, precise and uniform selection procedures and criteria, notably merit, need to be enshrined in the law, both for the first appointment of public prosecutors and for promotion. Furthermore, as GRECO has pointed out on previous occasions, it is crucial to ensure that procedures are transparent, that all decisions taken by the Ministry of Justice – both on the selection of candidates and on appointment/promotion – are reasoned and that unsuccessful candidates are given the possibility to challenge such decisions. In this connection, the GET refers to European standards and reference texts according to which ‘the careers of public prosecutors, their promotions and their mobility must be governed by known and objective criteria, such as competence and experience’ and ‘should be regulated by law and governed by transparent and objective criteria, in accordance with impartial procedures, excluding any discrimination and allowing for the possibility of an impartial review.’ To conclude, the GET wishes to stress that such arrangements will be conducive to strengthening the independence and impartiality of the prosecution service – as well as public trust in this institution – in line with the intentions underlying the reform process currently underway in the Czech Republic. In view of the above, GRECO recommends (i) regulating in more detail the recruitment and promotion of public prosecutors so as to provide for uniform, transparent procedures and to ensure that decisions are based on precise, objective and uniform criteria, notably merit; (ii) ensuring that any decisions in those procedures are reasoned and can be appealed to a court.
186. As has been outlined in the chapter on judges, the GET has the impression that the regime of disciplinary proceedings works well and that the composition of the Disciplinary Court, as well as the procedural arrangements, are adequate to ensure effective proceedings and fair trial. That said, the GET again notes with concern that decisions by the Disciplinary Court are not subject to appeal and that even dismissal cannot be challenged by the public prosecutor concerned. It again draws the attention of the authorities to European standards and reference texts according to which decisions in disciplinary proceedings against public prosecutors ‘should be subject to independent and impartial review’ and that ‘an appeal to a court against disciplinary decisions should be available.’ The GET invites the authorities to include this matter in the current reform process – it is apparently not planned so far to deal with disciplinary proceedings in the [Act on Public Prosecutor’s Office]. In view of the above, GRECO recommends introducing the possibility for public prosecutors to challenge disciplinary decisions including dismissal before a court.”
60. In the chapter “Recommendations and follow-up”, GRECO recommended, inter alia:
ix. introducing the possibility for judges to challenge disciplinary decisions including for dismissal before a court (paragraph 136);
xiv. introducing the possibility for public prosecutors to challenge disciplinary decisions including dismissal before a court (paragraph 186).”
B. GRECO – Corruption prevention in respect of members of parliament, judges and prosecutors (Compliance Report – Czech Republic, 80th Plenary Meeting 18-22 June 2018)
61. In respect of its recommendation ix., GRECO noted the following:
“52. GRECO recommended introducing the possibility for judges to challenge disciplinary decisions including for dismissal before a court.
53. The authorities indicate that the Ministry of Justice is currently working on a legislative proposal which is expected to be presented to the government in June 2019 as part of a legal package which would possibly include a special Act on disciplinary proceedings for judges and prosecutors and a new Act on courts and judges. Disciplinary proceedings are dealt with by the Disciplinary Court (the Supreme Administrative Court is the Disciplinary Court, which acts and decides in special chambers). The Ministry of Justice plans to introduce a two-stage system with appeal chambers which would make it possible to appeal disciplinary decisions. The composition of the disciplinary chambers is also currently being discussed.
54. GRECO takes note of the information on legislative proposals to be presented to the Government in June 2019, concerning the introduction of appeal possibilities for judges against disciplinary decisions. For the time being, these initiatives are at a very early stage and GRECO, therefore, cannot conclude that this recommendation has been implemented, even partly;
55. GRECO concludes that recommendation ix has not been implemented.”
62. In respect of its recommendation xiv., GRECO noted the following:
“73. GRECO recommended introducing the possibility for public prosecutors to challenge disciplinary decisions including dismissal before a court.
74. The authorities point out that the Ministry of Justice (MoJ) is currently working on a legislative proposal and according to the plans, it would be presented to the government in June 2019 as part of a package of reforms concerning the courts, judges and prosecutors (see recommendation ix). Disciplinary proceedings are dealt with by the Disciplinary Court (a function carried out by the Supreme Administrative Court sitting in special chambers). As it was pointed out under recommendation ix, the MoJ intends to introduce appeal chambers and to provide for the possibility of challenging any disciplinary decision of the chambers. The composition of those chambers is currently being discussed.
75. GRECO is pleased to see that work appears to be underway to implement the present recommendation and that it is planned to provide notably for appeal possibilities against disciplinary decisions, as recommended. GRECO will need to examine in detail the reform once concrete proposals are available and endorsed/approved at the appropriate level. For the time being, the process appears to be at such an early stage that GRECO cannot consider that this recommendation has been implemented, even partly.
75. GRECO concludes that recommendation xiv has not been implemented.”
C. GRECO – Corruption prevention in respect of members of parliament, judges and prosecutors (Interim Compliance Report – Czech Republic, 84th Plenary Meeting 2-6 December 2019)
63. In respect of its recommendation ix., GRECO noted the following:
“50. GRECO recommended introducing the possibility for judges to challenge disciplinary decisions including for dismissal before a court.
51. GRECO recalls that this recommendation was not implemented in the Compliance Report. The authorities had intended to present amendments to several laws relating to the judiciary, which would inter alia introduce the possibility of appealing disciplinary decisions before court, but these amendments had not yet been adopted.
52. The authorities report that work is still underway in the Ministry of Justice on a legislative proposal to introduce a possibility of appeal against disciplinary decisions. The legislative proposal to amend the Act on proceedings relating to judges, public prosecutors and court executors, also envisages setting up a special chamber responsible for unification of case law in disciplinary proceedings. The draft proposal has been submitted to the Government on 5 November 2019 to be discussed by the Legislative Council and its working groups, prior to submitting the draft to Parliament. According to the authorities, the draft envisages allowing judges to appeal against disciplinary decisions before the disciplinary senate of the Supreme Administrative Court.
53. GRECO takes note of the information on legislative proposals underway concerning the introduction of appeal possibilities for judges against disciplinary decisions. As no tangible result has been achieved as yet, GRECO concludes that recommendation ix remains not implemented.”
64. In respect of its recommendation xiv., GRECO noted the following:
“76. GRECO recommended introducing the possibility for public prosecutors to challenge disciplinary decisions including dismissal before a court.
77. It is recalled that this recommendation was not implemented according to the Compliance Report. GRECO noted that legal amendments had been in preparation to introduce a possibility to appeal against disciplinary decisions before court, but had not been adopted at the time.
78. The authorities now report that the implementation of the present recommendation is carried out in conjunction with a similar recommendation concerning judges (recommendation ix). It is repeated that work is under way in the Ministry of Justice on the legislative proposal to introduce a possibility of appeal against disciplinary decisions. This is expected to be discussed by the Government in the autumn of 2019 and subsequently presented to the Chamber of Deputies. In addition, other amendments, relevant to this recommendation, such as the introduction of the dismissal of chief prosecutors only through disciplinary proceedings and of fixed terms of office for such prosecutors (see paragraph 56) are currently examined by the Government.
79. GRECO takes note of the information provided. It would appear that, as is the case with recommendation ix regarding judges, no tangible progress has been achieved in the implementation of this recommendation.
80. GRECO concludes that recommendation xiv remains not implemented.”
V. EXPLANATORY REPORT TO PROTOCOL No. 7 TO THE CONVENTION
65. The relevant paragraph of the explanatory report to Article 2 of Protocol No. 7 is worded as follows:
“17. This article recognises the right of everyone convicted of a criminal offence by a tribunal to have his conviction or sentence reviewed by a higher tribunal. It does not require that in every case he should be entitled to have both his conviction and sentence so reviewed. Thus, for example, if the person convicted has pleaded guilty to the offence charged, the right may be restricted to a review of his sentence. As compared with the wording of the corresponding provisions of the United Nations Covenant (Article 14, paragraph 5), the word ‘tribunal’ has been added to show clearly that this provision does not concern offences which have been tried by bodies which are not tribunals within the meaning of Article 6 of the Convention.”
I. PRELIMINARY REMARKS
66. The applicant complained under Article 6 §§ 1, 2 and 3 (d) of the Convention that his right to a fair trial had been violated in that:
(i) the principle of presumption of innocence had not been respected in the disciplinary proceedings brought against him. The applicant claimed that the disciplinary court had placed the burden of proving his “innocence” on him as it examined only evidence proving his guilt but failed to search for and examine ex proprio motu evidence on his behalf; since the applicant had not been able to prove his “innocence”, the disciplinary court held that the applicant’s defence was not plausible; furthermore, he asserted that the disciplinary court had prevented him from proposing additional evidence before closing the hearing.
(ii) in the proceedings before the Constitutional Court many of his arguments were not duly addressed by the court.
67. Article 6, as far as relevant, reads as follows:
“(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair … hearing … by an independent and impartial tribunal established by law. …
(2) Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights:
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
68. Further, relying on Article 2 of Protocol No. 7 to the Convention, the applicant complained that no appeal against the disciplinary court’s decision (being “criminal” in his view) was admissible by law. Neither exception to that provision applied as his offence had not been of a minor character due to the seriousness of the sanctions which could have been imposed, and because the disciplinary chamber of the Supreme Administrative Court could not be considered as the “highest tribunal” within the meaning of that provision on account of its composition and the lack of sufficient guarantees as to its expertise and independence as it was comprised of six members, out of whom only two were professional judges.
69. Article 2 of Protocol No. 7, as far as relevant, reads as follows:
“(1) Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. …
(2) This right may be subject to exceptions in regard to offence of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal ….”
70. The Court being the master of the characterisation to be given in law to the facts of the case (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009, and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 110-26, 20 March 2018) views the latter complaint as one primarily falling under Article 6 § 1 of the Convention, especially given that a “tribunal” within the meaning of Article 6 is also one within the meaning of Article 2 of Protocol No. 7 (see Didier v. France (dec.), no. 58188/00, § 3, ECHR 2002-VII (extracts)).
71. Therefore, the Court will first consider whether Article 6 is applicable in either its civil or criminal aspect, before going on to address each of the aforementioned complaints.
II. PRELIMINARY OBJECTIONS
A. Six-month time-limit
1. The Parties’ submissions
72. The Government submitted that the application insofar as the composition of the “tribunal” is concerned should be rejected pursuant to Article 35 § 1 of the Convention as it had not been lodged within six months of the date of the last domestic decision.
2. The Court’s assessment
(a) General principles
73. For the purposes of Article 35 § 1 of the Convention, the six-month time-period runs from the date of the final decision in the process of exhaustion of domestic remedies (see Blokhin v. Russia [GC], no. 47152/06, § 106, ECHR 2016). This rule concerns only remedies which are normal and effective and an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention (see, for example, Fernie v. the United Kingdom (dec.), no. 14881/04, 5 January 2006; Beiere v. Latvia, no. 30954/05, § 28, 29 November 2011; and, by contrast, Hizb Ut-Tahrir and Others v. Germany (dec.), no. 31098/08, 12 June 2012; Petrović v. Serbia, no. 40485/08, § 60, 15 July 2014; and Kondakovs v. Latvia (dec.), no. 22677/11, 12 January 2016).
74. Similarly, where a remedy was doomed to failure from the outset the Court has held that those proceedings cannot be taken into account for the purposes of calculating the six-month period (see, for example, Rezgui v. France (dec.), no. 49859/99, ECHR 2000-XI, and Rybczyński and Rybczyńska v. Poland (dec.), no. 8766/11, § 24, 16 October 2018).
(b) Application of those principles to the present case
75. The Court observes that within six months of being notified of the Constitutional Court’s decision, the applicant set out in his application to the Court the relevant facts concerning the composition of the disciplinary chamber, including the manner in which its members were appointed, and made both a general claim in relation to Article 6 of the Convention and concrete arguments under Article 2 of Protocol No. 7 to the Convention (see, mutatis mutandis, Sizintseva and Others v. Russia, nos. 38585/04 and 4 others, § 28, 8 April 2010).
76. However, as the Constitutional Court had previously ruled on the status of the disciplinary chamber and the nature of the proceedings conducted by it in its plenary decision no. Pl. ÚS 33/09 (see paragraphs 51 and 52 above), the Court must establish whether the applicant’s constitutional appeal could have constituted an effective remedy which interrupted the running of the six-month time-limit in the present case.
77. In this context, the Constitutional Court in paragraph 60 of its plenary decision no. Pl. ÚS 33/09 appears to have established at the outset that the disciplinary proceedings for which it was responsible did not involve the determination of a criminal charge; and affirmed that the disciplinary chamber, whose decisions could not be appealed against, satisfied the guarantees of independence and impartiality required by Article 6 of the Convention (see paragraphs 51 and 53 above). Furthermore, the plenary of the Constitutional Court subsequently confirmed this position in decision no. Pl. ÚS 38/09 of 3 August 2011 (see paragraph 52 above).
78. The Court accepts the Government’s argument, which went uncontested by the applicant, that by virtue of the consistent case-law of the Constitutional Court the applicant’s constitutional appeal had had little prospect of success. It has already held on several occasions that where a suggested remedy did not in fact offer reasonable prospects of success, for example in the light of settled domestic case-law, the fact that the applicant did not use it is no bar to admissibility (see Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 27, Series A no. 332, and Carson and Others v. the United Kingdom [GC], no. 42184/05, § 58, ECHR 2010). In the present case, the Court must decide whether the contrary situation, where the applicant availed himself of such a remedy, could still be considered “effective”.
79. While it is true that at the material time the settled case-law of the Constitutional Court rejected the grounds of the applicant’s constitutional appeal, the Court notes that this did not prevent the applicant from raising his complaints in the constitutional appeal in the hope of a change of the case‑law. This is in particular so since the Constitutional Court may revise and alter its own case-law if it finds it justified and individuals have the right to lodge appeals with the Constitutional Court alleging breaches of their Convention rights (see paragraph 47 above). In this respect, considering that the applicant’s constitutional appeal was based on the requirements of Article 6 of the Convention and of Article 2 of Protocol No. 7 to the Convention in the wide sense, it was logical for him to invoke all the points in respect of which he considered that those requirements had not been met, including whether the disciplinary court could be considered the “highest tribunal” within the meaning of Article 2 of Protocol No. 7, a point not previously dealt with by the Constitutional Court (see paragraph 10 above) (see Augusto v. France, no. 71665/01, § 44, 11 January 2007). The Court accordingly finds that it cannot be held against the applicant that he afforded the Constitutional Court an opportunity to take appropriate steps to remedy the alleged deficiencies of the disciplinary court (see Remetin v. Croatia, no. 29525/10, § 84, 11 December 2012). In the Court’s view, the applicant acted reasonably and in compliance with the domestic provision when making use of his constitutional appeal (compare, Pavlović and Others v. Croatia, no. 13274/11, §§ 34-38, 2 April 2015).
80. Consequently, the date of the final domestic decision for the purposes of Article 35 § 1 of the Convention was 17 September 2012. The applicant has accordingly lodged his complaints with the Court within the six-month time-limit. The Court therefore rejects the Government’s preliminary objection.
B. Applicability of Article 6 of the Convention
1. The parties’ submissions
81. The Government maintained that Article 6 of the Convention was not applicable under either its civil or criminal head in the present case.
82. With regard to the civil head, they argued that it is not applicable in the case in issue. Firstly, the disciplinary proceedings concerned the profession of enforcement officers who are not civil servants or employees of the State. Secondly, albeit they exercise a liberal profession, enforcement officers have the status and perform the tasks of a pure public-law nature (they referred in this connection to Herbst v. Germany, no. 20027/02, § 54, 11 January 2007). Hence, the enforcement officer’s right which was the subject matter of the disciplinary proceedings was not a “dispute” over “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention. In particular, they argued that, unlike other liberal professions, the position of enforcement officers and the activities they carried out were primarily of a public-law nature. They exercised the State’s powers with the authorisation of the State, on the basis of and within the limits of the law, and to a specified extent. Moreover, the public-law nature of enforcement activities emanated from the way in which members of this profession were appointed and removed. In addition, the enforcement officer’s position in relation to parties to the enforcement proceedings could not be compared to a typical commercial relationship because, while performing the enforcement activity, the enforcement officer acted as an independent holder of public power, who was obligated to act independently (see paragraph 25 above) and who was deemed to be a person in authority under criminal law. Moreover, holding that profession was incompatible with other profit-making activities, and there existed special provisions concerning the State’s liability for damage caused by enforcement officers in performing enforcement activities or in the drawing up of enforcement officer acts.
83. As to whether a disciplinary charge could be considered to be criminal within the meaning of Article 6 § 1 of the Convention, the Government referred to the criteria specified in Engel and Others v. the Netherlands (8 June 1976, Series A no. 22). First, they emphasised that national law drew a clear distinction between criminal and disciplinary misconduct. Next, the misconduct of which the applicant was accused consisted of a breach of a professional regulation which was binding internally. Then, the disciplinary proceedings were conducted before a special disciplinary (not criminal) court, without the involvement of a public prosecutor’s office or the police. Moreover, the disciplinary proceedings could be instituted only by a limited group of persons who supervised their activity. After that, the Criminal Procedure Code should be applied only mutatis mutandis, and the Criminal Code, as a matter of principle, not at all. Nor were the imposed disciplinary measures criminally recorded. Last, as regards the nature of the offence, the Government pointed out that it was a typical disciplinary offence concerning only an exclusive group of persons, and the purpose of the disciplinary proceedings was to secure a dutiful and professional exercise of public powers entrusted to the members of this profession by the State rather than being punitive or preventive. Regarding the nature of the penalty, it had a partially reparative nature since the State might be held liable for the harm caused by an enforcement officer. As to the degree of severity of the penalty, the Government submitted that unlike a criminal court, a disciplinary court could not imprison the applicant, not even as an alternative penalty in the case of failure to pay the imposed fine. He could have been fined up to 800,000 Czech korunas (EUR 30,500) at most. The most severe measure, that is the applicant’s removal from his post, had not been applied.
84. The Government thus contended that the application was incompatible ratione materiae with the provisions of the Convention.
85. The applicant submitted that Article 6 of the Convention was applicable under both its civil and its criminal heads. He maintained that the disciplinary proceedings involved the determination of civil rights and obligations (citing König v. Germany, 28 June 1978, §§ 92-93, Series A no. 27). He emphasised that the position of enforcement officer is a liberal profession which has, indeed, its particularities. However, they are not of such a nature as to justify not considering the disciplinary proceedings as proceedings relating to civil rights and obligations. The applicant further admitted that the activities of enforcement officers were closely linked to the State but, at the same time, argued that they were entrepreneurial activities designed to make a profit; the State simply laid down the criteria for the performance of enforcement officers’ activities, and it was the enforcement officers who concluded the specific agreements with their clients. Persons intending to make use of services provided by enforcement officers were not limited in their choice and could approach any one of them. The applicant underlined the private legal aspect and the similarities with the profession of a lawyer and drew attention to the fact that the Court had found Article 6 § 1 to be applicable in cases concerning judges’ (public servants) disciplinary proceedings.
86. Moreover, he submitted that his case should be considered to involve the determination of a criminal charge and referred to the third criterion of Engel and Others (cited above). He noted that he had been fined EUR 14,000, similar to a fine under criminal law, referring in this connection to Garyfallou AEBE v. Greece (24 September 1997, Reports of Judgments and Decisions 1997‑V). In his opinion, the disciplinary decision, being published, had had a negative impact on his own personal sphere in a similar manner to a criminal decision, since it had had a significant influence on his business and his reputation. Pursuant to an amendment, the enforcement officer may now be fined up to EUR 200,000 in case of recurrence of the misconduct, which is similar to a criminal-law fine.
2. The Court’s assessment
(a) General principles
87. Bearing in mind that the two aspects, civil and criminal, of Article 6 of the Convention are not necessarily mutually exclusive (see Albert and Le Compte v. Belgium, 10 February 1983, § 30, Series A no. 58), and given the scope of the applicant’s complaints under both these aspects pursuant to Article 6 §§ 1, 2 and 3 (d), the Court considers that it should first assess whether that Article is applicable under one or even both of its heads (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 121, 6 November 2018).
(b) Existence of a “dispute” relating to “civil rights and obligations”
88. As to the applicability of Article 6 § 1 of the Convention under the civil head, the Court reiterates that, under its settled case-law, this provision applies to a “dispute” over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is also protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. Furthermore, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among other authorities, Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009, and Boulois v. Luxembourg [GC], no. 37575/04, § 90, ECHR 2012).
89. The Court notes that its case-law has developed in recent years and it has come to accept that disciplinary proceedings where, as in the present case, the right to continue to practise a liberal profession is at stake, can give rise to “disputes” over “civil rights” within the meaning of Article 6 § 1 of the Convention. The Court has recognised that Article 6 § 1 of the Convention is applicable in its civil limb not only when the applicant is the subject of a temporary or permanent ban on the practice of his profession, but also in the case of the imposition of a financial fine. Indeed, the concrete outcome of the proceedings is not essential to judge the applicability of Article 6 § 1 of the Convention; it may suffice, where appropriate, that the right to exercise a profession is at stake, simply because the suspension of the exercise of the profession appears in the catalogue of possible measures against the applicant (see Peleki v. Greece, no. 69291/12, § 39, 5 March 2020, with further references).
90. The Court notes that notwithstanding the fact that the applicant exercised State judicial power in the field of civil enforcement, his status was – and this fact was not contested by the parties – still that of a liberal profession (see also paragraph 32 above). Czech enforcement officers are not, therefore, civil servants (nor are they employees). As such, the instant case differs notably from the cases of disciplinary proceedings against civil servants, where the so-called Vilho Eskelinen test is applied to determine whether the applicant’s status as a civil servant excludes the protection embodied in Article 6 (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007‑II). Rather, the enforcement officer’s status must be regarded as akin to that of a public notary, as in the Peleki case (cited above), rather than that of other liberal professions, such as attorneys or other professions for whom the exercise of the State power is out of the question.
91. Considering its conclusions in Peleki (cited above), the Court notes that, at first, the disciplinary petitioner’s action left it up to the disciplinary court’s consideration which disciplinary measure should be imposed on the applicant in the disciplinary action (see paragraph 6 above). Although at the beginning of the hearing the disciplinary petitioner suggested that the applicant be fined (see paragraph 7 above), that suggestion was not binding on the disciplinary court (see paragraph 32 above), and, accordingly, the applicant’s right to continue to practise as an enforcement officer was potentially at stake, since the removal from his office appeared in the catalogue of possible measures against him (see paragraph 28 above, and Peleki, cited above).
92. Therefore, the Court concludes that the subject matter of the disciplinary proceedings at issue could have been the applicant’s right to exercise his liberal profession, and this of itself suffices to arrive at the conclusion that Article 6 § 1 is applicable under its civil head. Accordingly, it dismisses the Government’s objection as to incompatibility ratione materiae with Article 6 § 1 under its civil head.
(c) Existence of a “criminal charge”
93. Having regard that the applicant raises specific complaints under the criminal head of Article 6, the Court will examine whether this part of the provision is applicable in the present case. It reiterates that the concept of a “criminal charge” within the meaning of Article 6 § 1 is an autonomous one. The Court’s established case-law sets out three criteria, commonly known as the “Engel criteria” (see Engel and Others, cited above, § 82), to be considered in determining whether or not there was a “criminal charge” within the meaning of Article 6 § 1 of the Convention. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the nature and degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative, and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Ramos Nunes de Carvalho e Sá, cited above, § 122, with further references therein).
94. Firstly, the Court notes that in domestic law disciplinary misconduct under section 116 of Act no. 120/2001 (see paragraph 28 above) belongs to the sphere of disciplinary law. Disciplinary proceedings are not conducted by the police, public prosecutor’s offices or the criminal courts, but they are instituted by a disciplinary petitioner and heard before the Supreme Administrative Court which acts as the disciplinary court, not as a criminal court. Applicability of criminal procedure mutatis mutandis in proceedings under Act no. 120/2001 does not suffice to alter their classification as disciplinary in nature (see, mutatis mutandis, Müller-Hartburg v. Austria, no. 47195/06, § 43, 19 February 2013, and Rola v. Slovenia, nos. 12096/14 and 39335/16, § 56, 4 June 2019).
95. Next, as to the very nature of the offence, the Court observes that section 116 (1) of Act no. 120/2001 was not addressed to the general public but to the members of a professional group possessing a special status. The Court notes that section 116 (2) of Act no. 120/2001 was designed, inter alia, to ensure that members of the Bar complied with the specific rules governing their professional conduct. At the same time that provision was aimed at protecting the profession’s honour and reputation and at maintaining the trust the public places in the legal profession.
96. Lastly, turning to the nature and degree of severity of the penalty the applicant risked incurring, the Court notes that this criterion is to be determined by reference to the maximum potential penalty for which the relevant law provides. The actual penalty imposed is relevant to the determination but cannot diminish the importance of what was initially at stake (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 120, ECHR 2003‑X, with further references). The Court observes that pursuant to section 166 (2) of Act no. 120/2001 at the material time the applicable sanctions included a reprimand, a written reprimand, a fine of up to a hundredfold of the minimum monthly wage, and removal from office. With the exception of the fine, these sanctions are typical disciplinary sanctions. As regards the fine, the Court notes that in contrast to fines in criminal proceedings fines under the Disciplinary Act do not attract a prison term in the event of default, as the disciplinary authorities have no power to impose deprivation of liberty. Although the size of the potential fine is such that it must be regarded as having a punitive effect, the severity of this sanction in itself does not bring the charges into the criminal sphere (see, mutatis mutandis, Müller-Hartburg, cited above, § 47, with further references, and Rola, cited above, § 56). In sum, the nature and severity of the sanctions the applicant risked incurring and the sanction actually imposed were not such as to render the charges “criminal” in nature.
97. It is also relevant to note here that the applicant’s eventual removal from office would not have prevented him from practising as a lawyer (see similarly Oleksandr Volkov v. Ukraine, no. 21722/11, § 93, ECHR 2013).
98. Having regard to all these elements the Court finds that the offence under section 116 (1) of Act no. 120/2001 was not criminal but disciplinary in nature (see, mutatis mutandis, Müller-Hartburg, cited above, §§ 44-45, with further references, and Rola, cited above, § 56). Consequently, the Court concludes that the disciplinary proceedings against the applicant did not involve the determination of a “criminal charge” within the meaning of Article 6 § 1 of the Convention, which, thus, does not apply to these proceedings under its criminal head.
99. Consequently, insofar as the applicant complained under Article 6 §§ 2 and 3 of the Convention that the principle of the presumption of innocence had been violated by the disciplinary court in convicting him despite his “guilt” not having been duly proven, and that, in addition, it had transferred the duty to prove his “innocence” to the applicant, the Court holds that those complaints are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
C. Non-exhaustion of domestic remedies
100. Insofar as the applicant complained that the disciplinary proceedings were conducted before the disciplinary chamber of the Supreme Administrative Court, which was not a “tribunal” as its composition lacked the requisite safeguards regarding its independence and expertise, the Government submitted that he had not exhausted domestic remedies.
1. The parties’ submissions
101. The Government argued that the applicant had not claimed before the domestic authorities, either expressly or in substance, that the disciplinary court did not meet any of the inherent requirements of “a tribunal established by law” within the meaning of Article 6 § 1. Moreover, he had never expressed concerns as to lack of transparency, clarity and protection against arbitrariness in respect of its composition. Thus, the aforementioned part of the application was inadmissible for non-exhaustion of domestic remedies. The mere fact that the applicant had relied on one particular aspect of Article 6 of the Convention was not per se sufficient to constitute a basis for the Court to review any other potential issues falling under the broad notion of the right to a fair trial. They referred to BENet Praha, spol. s r.o. v. the Czech Republic (no. 33908/04, § 130, 24 February 2011), and Allan v. the United Kingdom ((dec.), no. 48539/99, ECHR 2002-IX).
102. The applicant contested the Government’s assertion and stated that his complaints before the Court were identical to those he had filed with the Constitutional Court. In his constitutional appeal, he had expressly cited Article 6 § 1 and had submitted detailed arguments concerning the complaints made under that provision. In addition, the disciplinary proceedings should have complied with the principles established under Article 6 § 1 and his complaint under Article 2 of Protocol No. 7 was clearly linked to that provision.
2. The Court’s assessment
103. The Court notes that before the Constitutional Court the applicant, invoking Article 2 § 2 of Protocol No. 7, claimed that there had been, by law, no appeal against the decision of the disciplinary court, which therefore was a “highest tribunal”. He went on to assert that the disciplinary court, in its current composition, could not sufficiently guarantee the correctness or even the fairness of the decision‑making process (see paragraph 20 above).
104. In the Court’s view, the mere fact that the applicant submitted these complaints primarily with reference to Article 2 of Protocol No. 7 cannot in itself lead to the conclusion that they were not aired before a domestic court. Furthermore, the applicant set out the relevant complaints concerning the composition of the disciplinary chamber and how its members were appointed and argued that due to the composition of the disciplinary chamber the fairness of the proceedings was impaired. The Court has recharacterised a similar complaint aired by the applicant before it as one falling under Article 6 § 1 of the Convention (see paragraph 70 above).
105. Since the applicant did raise the substance of his grievances before the Constitutional Court and gave it the opportunity to assess whether the disciplinary chamber met the inherent requirements of a tribunal as laid down in Article 6 § 1 of the Convention (see Belilos v. Switzerland, 29 April 1988, § 64, Series A no. 132), the Court accepts that the applicant has exhausted domestic remedies as required by Article 35 § 1. It therefore rejects the Government’s preliminary objection in this respect.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
106. The Court will proceed to consider the applicant’s complaint under Article 6 § 1 that he was denied the right to a fair trial (see paragraphs 66-70 above).
107. In view of its conclusions above, the Court notes that this complaint is not inadmissible, it must therefore be declared admissible.
1. The parties’ submissions
(a) The applicant
108. The applicant submitted that the disciplinary court could not be considered independent, as no one in the legal professions other than judges met the requirements of independence and impartiality, regardless of any legal provisions specifying conditions for becoming a member of the disciplinary chamber which hears disciplinary cases. In addition, the law did not provide for any safeguards against external pressure, did not set out requirements for lay assessors in terms of their expertise and experience in comparison to regular judges, and did not provide for any rules on their appointment. In his opinion, the nomination process for lay assessors lacked transparency.
(b) The Government
109. The Government pointed out at the outset that as the national legislators had decided, it was within the State’s margin of appreciation to confer the hearing of and decision-making in disciplinary matters concerning enforcement officers to a special body within the judicial system involving lay assessors, and it was not the Court’s task to assess that decision, provided that the solution chosen led to the preservation of the right to a fair trial (see Taxquet v. Belgium [GC], no. 926/05, §§ 83-84, 16 November 2010). Under the national legislation, the disciplinary court, which formed an organisational part of the Supreme Administrative Court and was based on Act no. 7/2002 on Proceedings in Matters concerning Judges, Public Prosecutors and Enforcement Officers, was competent to hear and decide disciplinary matters involving enforcement officers. According to the Government, it satisfied all the requirements of Article 6 § 1 of the Convention.
110. The Government emphasised that a “tribunal” within the meaning of Article 6 § 1 of the Convention need not necessarily be composed of professional judges or lawyers. The qualification requirements for lay assessors of the disciplinary court were comparable to those for professional judges. Moreover, the guarantees of the lay assessors’ independence were in principle comparable to the standard guarantees of judicial independence.
111. The Government further submitted that the way lay assessors were selected and the criteria to be met by each candidate were provided for by law. The transparency of the composition of the disciplinary chamber was also ensured through a publicly available work schedule. Although the wording of the law was a little vague, it was not necessarily unclear or unforeseeable. In addition, there were adequate safeguards against arbitrariness, since only persons complying with the requirements prescribed by law could be nominated, and lots were drawn to choose the judges and lay assessors who would become members of the disciplinary chamber.
112. The Government therefore submitted that the procedure for selecting persons to be included in the list of lay assessors of the disciplinary chamber met the requirements of transparency, clarity and protection against arbitrariness.
2. The Court’s assessment
113. The right to a fair hearing under Article 6 § 1 requires that a case be heard by an “independent and impartial tribunal established by law”. The concepts of “independence” and “impartiality” are closely linked and, depending on the circumstances, may require joint examination (see Ramos Nunes de Carvalho e Sá, cited above, §§ 150 and 152; see also, as regards their close interrelationship, §§ 153-56; and Denisov v. Ukraine [GC], no. 76639/11, §§ 61-64, 25 September 2018). These two concepts also interact with that of a “tribunal established by law” within the meaning of Article 6 § 1 (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 218 et seq., §§ 231 et seq., and also § 295, 1 December 2020).
(a) Scope of the applicant’s complaint as regards the right to an “independent and impartial tribunal established by law”
114. First and foremost, the task of the Court is to determine the scope of the applicant’s complaint concerning the right to an “independent and impartial tribunal established by law”.
115. In respect of the disciplinary proceedings, the Court notes that the Convention calls for at least one of the following two systems: either the professional disciplinary bodies themselves comply with the requirements of that Article, or they do not so comply but are subject to subsequent review by “a judicial body that has full jurisdiction” and does provide the guarantees of Article 6 § 1 (see Albert and Le Compte, cited above, § 29; Gautrin and Others v. France, 20 May 1998, § 57, Reports 1998‑III; and Fazia Ali v. the United Kingdom, no. 40378/10, § 75, 20 October 2015). The Court observes that those who framed the Czech law on the disciplinary proceedings hearing the cases of enforcement officers opted for the former of these options. Accordingly, the issue of an “independent and impartial tribunal established by law” in the present case arises in relation to whether the disciplinary chamber of the Supreme Administrative Court, as first instance, satisfied the requirements of Article 6 § 1 from the fact that the Constitutional Court, as the instance of appeal, did not have “full jurisdiction” (compare Denisov, cited above, §§ 65, 67 and 72, in a disciplinary context), as it will be set forth below (see paragraph 148).
116. However, regarding the aforementioned requirement “established by law”, the present case does not raise an issue as to the lawful existence of the disciplinary chamber of the Supreme Administrative Court acting as the disciplinary court. Nor is it in dispute between the parties that the disciplinary chamber in issue was established by a law emanating from Parliament, namely Act 7/2001 on Proceedings in Matters concerning Judges, Public Prosecutors and Enforcement Officers, the quality of which – in terms of its accessibility and foreseeability – has not been contested by the applicant.
117. In the present case, the applicant has objected to the composition of the disciplinary chamber of the Supreme Administrative Court, namely how it was designated by law and the consequences for the case at hand. In particular, he complained that the professional judges were in a minority (comprising two out of six members) and that the procedure for selecting the other four members (lay assessors) lacked adequate safeguards to guarantee their independence and professional expertise, which in turn cast doubt on the independence and impartiality of the disciplinary chamber as a whole. Accordingly, there is no issue concerning the judges of the disciplinary chamber or their appointment process. In addition, the applicant did not allege any subjective bias on the part of the chamber; therefore, the Court is only concerned with objective impartiality.
118. The task of the Court in relation to the present complaint is, therefore, limited to determining the consequences of the alleged aforementioned flaws in domestic law in terms of Article 6 § 1, in other words, to ascertaining whether the composition of the disciplinary chamber and, in particular, the participation of four lay assessors in the disciplinary chamber of the Supreme Administrative Court which heard the applicant’s disciplinary case, deprived him of the right to be tried by an “independent” and “impartial” “tribunal”.
(b) The requirement of a “tribunal”
119. The Court has held that the notion “tribunal” has an autonomous concept. The Guðmundur Andri Ástráðsson judgment (cited above) refined and clarified the relevant case-law principles (see, in particular, §§ 219-22 therein; see also Eminağaoğlu v. Turkey, no. 76521/12, §§ 90-91 and 94, 9 March 2021), which may be divided into three cumulative requirements, as outlined below.
120. Firstly, a “tribunal” is characterised in the substantive sense of the term by its judicial function, that is to say, determining matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner (see Cyprus v. Turkey [GC], no. 25781/94, § 233, ECHR 2001‑IV). The Court observes that it went undisputed by the parties and, accordingly, no such issue arises in the case at hand.
121. Secondly, a “tribunal” must also satisfy a series of further requirements – independence, in particular from the executive; impartiality; duration of its members’ terms of office; guarantees afforded by its procedure – several of which appear in the text of Article 6 § 1 (see Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 55, Series A no. 43, and Cyprus v. Turkey [GC], cited above, § 233). Indeed, both independence and impartiality are key components of the concept of a “tribunal”, as was clarified in Guðmundur Andri Ástráðsson (cited above, §§ 231 et seq.). In short, a judicial body which does not satisfy the requirements of independence – in particular from the executive – and of impartiality cannot be characterised as a “tribunal” for the purposes of Article 6 § 1 (ibid., § 232). These issues, which are essential for the case in issue, will, therefore, be addressed further under their respective heads.
122. Lastly, the Guðmundur Andri Ástráðsson judgment added that the very notion of a “tribunal” implied that it should be composed of judges selected on the basis of merit – that is, judges who fulfil the requirements of technical competence and moral integrity to perform the judicial functions required of it in a State governed by the rule of law (ibid., §§ 220-21). A rigorous process for the appointment of ordinary judges is of paramount importance to ensure that the most qualified candidates in both these respects are appointed to judicial posts. The higher a “tribunal” is placed in the judicial hierarchy, the more demanding the applicable selection criteria should be. Furthermore, non-professional judges may be subject to different selection criteria, particularly when it comes to the requisite technical competencies. Such merit-based selection not only ensures the technical capacity of a judicial body to deliver justice as a “tribunal”, but it is also crucial in terms of ensuring public confidence in the judiciary and serves as a supplementary guarantee of the personal independence of judges (ibid., § 222). In that connection, the Court reiterates that vis-à-vis the applicant’s complaints, no such question arises in the instant case. The applicant challenged neither the technical competence and moral integrity of the professional judges nor their appointment, but the impartiality of the non-professional judges (lay assessors), who, in line with the Court’s above-mentioned conclusions, may, however, be subject to different selection criteria, particularly when it comes to the requisite technical competencies. As concerns their impartiality, it will be discussed below.
(c) The requirement of an “independent tribunal”
123. The Court has held that “independence” refers to the necessary personal and institutional independence that is required for impartial decision making, and it is thus a prerequisite for impartiality. It characterises both a state of mind which denotes a judge’s imperviousness to external pressure as a matter of moral integrity, and a set of institutional and operational arrangements – involving both a procedure by which judges can be appointed in a manner that ensures their independence and selection criteria based on merit – which must provide safeguards against undue influence and/or unfettered discretion of the other State powers, both at the initial stage of the appointment of a judge and during the performance of his or her duties (see Guðmundur Andri Ástráðsson, cited above, § 234).
124. The term “independent” refers to independence vis-à-vis the other powers (the executive and the Parliament) (see Beaumartin v. France, 24 November 1994, § 38, Series A no. 296‑B) and also vis-à-vis the parties (see Sramek v. Austria, 22 October 1984, § 42, Series A no. 84). Compliance with this requirement is assessed, in particular, on the basis of statutory criteria, such as the manner of appointment of the members of the tribunal and the duration of their term of office, or the existence of sufficient safeguards against the risk of outside pressures (see, for example, Ramos Nunes de Carvalho e Sá, cited above, §§ 153-56). The question whether the body presents an appearance of independence is also of relevance (ibid., § 144; Oleksandr Volkov, cited above, § 103; and Grace Gatt v. Malta, no. 46466/16, § 85, 8 October 2019).
125. In determining whether a body can be considered to be “independent”, the Court has had regard, inter alia, to the following criteria (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98 and 3 others, § 190, ECHR 2003‑VI, and Langborger v. Sweden, 22 June 1989, § 32, Series A no. 155):
i. the manner of appointment of its members;
ii. the duration of their term of office;
iii. the existence of guarantees against outside pressures; and
iv. whether the body presents an appearance of independence.
(i) Manner of appointment of the disciplinary chamber’s members
126. In the present case, the applicant particularly complains of a lack of legal regulation providing safeguards to guarantee the independence of four lay assessors. In this context, the Court reiterates that neither the inclusion of lay assessors as members of the disciplinary court nor the question of their qualification calls into doubt the independence of that court as a tribunal within the meaning of Article 6 § 1 of the Convention (see paragraph 122 above; see also Cooper v. the United Kingdom [GC], no. 48843/99, § 123, ECHR 2003 XII).
127. Hence, the Court thus must assess whether the manner in which the disciplinary chamber was set up as to its membership (and most notably as to its members’ independence) might have produced results that were incompatible with the above object and purpose of the Convention right to an “independent tribunal”.
128. The Court observes that the disciplinary chamber of the Supreme Administrative Court, sitting as a disciplinary court, hearing cases of enforcement officers was established asymmetrically. The professional judges made up one-third of the chamber’s members and worked as judges on a full-time basis and were called in from their respective courts to sit in the disciplinary chamber, whilst, two-thirds of the chamber’s members were “lay assessors”, members of specifically chosen legal professions.
129. Nevertheless, the procedure of selecting the lay assessors to hear the case in issue is a matter of some concern to the Court. Insofar as the members are appointed by the chair of the disciplinary court by drawing lots from the lists of lay assessors (see paragraph 32 above, and section 4b §§ 4 and 5 of Act no. 7/2002), such a procedure seems to be reasonable and no particular issue arises there (nor was it contested by the parties).
130. However, the Court considers that the key issue in the present case was the transparency of the procedure by which the lay assessors of the disciplinary court were appointed, in particular the system of nomination of persons to the lists from which lay assessors were drawn. In this regard, the Court observes that the chair of the disciplinary court keeps several lists of lay assessors (see paragraph 32 above, and section 4b § 5 of Act no. 7/2002). The list of lay assessors who were enforcement officers included ten enforcement officers nominated by the President of the Chamber of Enforcement Officers without any predetermined selection criteria or otherwise transparent process. The only objective condition was that the candidates had to have held office for three years and satisfied the subjective condition of good moral character. The President of the Chamber of Enforcement Officers was otherwise allowed full discretion in his selection.
131. The Court also observes that until 31 December 2012, at the time when the applicant’s case was examined by the disciplinary court, the list of lay assessors comprised candidates nominated by the same persons as for proceedings in matters concerning judges, that is by the Prosecutor General, the President of the Czech Bar Association and deans of faculties of law of the public universities (see paragraph 32 above, and section 4 § 4 of Act no 7/2002). Like the President of the Chamber of Enforcement Officers, none of them had to apply any specific criteria or pre-established legitimate selection process, having full discretion in their choice of candidates.
132. Although the rules of nomination have changed since 1 January 2013, involving the President of the Czech Bar Association and the Ombudsperson (see paragraph 34 above), the selection practice has remained the same (compare Brudnicka and Others v. Poland, no. 54723/00, § 42, ECHR 2005‑II).
(ii) Duration of appointment of the disciplinary chamber’s members
133. As concerns the duration of appointment to the disciplinary court, the Court has already found above (see paragraph 129) that the procedure of appointing lay assessors by drawing of lots from established lists by the chair of the disciplinary court does not raise an issue.
(iii) The existence of guarantees against outside pressure
134. As concerns the existence of guarantees against outside pressure, the Court observes that two-thirds of the chamber’s members, the lay assessors, worked and received their salaries outside, which inevitably involved their material, hierarchical and administrative dependence on their primary employers and thereby could endangered both their independence and impartiality (see Oleksandr Volkov, cited above, § 113).
135. The Court has already noted that the notion of the separation of powers between the executive and the judiciary has assumed growing importance in the case-law of the Court (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002‑IV, and Oleksandr Volkov, cited above, § 103).
136. It is therefore significant that the Minister of Justice has broad powers over enforcement officers (see paragraph 26 above), and is entitled to bring disciplinary action against any enforcement officer and become a party to the disciplinary proceedings (see paragraph 29 above). The Minister of Justice is placed at the top of the hierarchy and supervises all enforcement officers, including two lay members of the disciplinary court. It is to be noted in this connection, too, that the enforcement officers’ remuneration (including that of those sitting in the disciplinary chamber in the case at hand) was based on the Ministry of Justice’s regulation (see paragraph 33 above). Accordingly, the renumeration of two members of the disciplinary chamber depended directly on the Ministry of Justice, whose head was also the disciplinary petitioner in the present case.
137. Moreover, as noted above, the General Prosecutor may have nominated ten candidates from among public prosecutors to the list from which the other two lay assessors were to be drawn. It is to be emphasised that public prosecutors have systematically been considered under Czech law as a part of the executive (see paragraph 57 above) and receive their salary from the Ministry of Justice. Its head, the Minister of Justice, however, may act as the disciplinary petitioner in the proceedings against public prosecutors (section 8(5)(a) of Act on Proceedings in Matters concerning Judges and Public Prosecutors no. 7/2002), that is against the members of the disciplinary chamber. At the same time, the Minister of Justice was also the disciplinary petitioner in the case at hand (see paragraph 33 above).
138. Thus, in a situation when the Minister of Justice brings a disciplinary action against an enforcement officer, like in the instant case (see paragraph 6 above), it creates a risk that at least two (the enforcement-officer lay assessors only) or even three members of the disciplinary chamber (when a public prosecutor has been drawn by lots to sit in the chamber as a lay assessor) may not be wholly impartial towards the enforcement officer the Minister of Justice wishes to discipline.
139. In the Court’s view, the foregoing may of itself be seen to be open to doubt as to their necessary personal and institutional independence that is required for impartial decision making, which is also a prerequisite for impartiality (compare Guðmundur Andri Ástráðsson, cited above, § 234), yet increased by the lack of procedural guarantees concerning how the lists of the lay assessors were put together (see paragraphs 130 et seq. above) and, seemingly also, a lack of guarantees against outside pressure once appointed to sit on a concrete case.
(iv) Appearance of independence
140. As it has already been mentioned, in maintaining confidence in the independence of a tribunal, appearances may be important (see Brudnicka, cited above, § 41). In the present case, for the reasons set out above, the Court cannot regard the pre-selection process as transparent and clear, giving sufficient procedural guarantees of independence. In addition, it is concerned as the manner of the appointment of lay assessors in the present case completely differed from the general arrangements for the appointment of lay assessors in the Czech legal system (see paragraph 38 above), as they were not elected or selected following an established procedure (see and compare H. v. Belgium, 30 November 1987, § 51, Series A no. 127 B), and the selection process was entirely in the hands of the nominating persons (contrast Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 51, ECHR 2013 (extracts)). Moreover, the appearance of independence was also affected by the lack of guarantees against outside pressure and the close proximity to the Minister of Justice of at least some of the lay assessors.
(d) The requirement of an “impartial tribunal”
141. The Court reiterates that the question of bias (subjective impartiality) of the members of the disciplinary chamber was not raised. Thus, only the objective aspect of the impartiality of the disciplinary court is at issue. The existence of objective impartiality must be determined on the basis of the objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see Micallef, cited above, §§ 93-101; Morice v. France [GC], no. 29369/10, §§ 73-78, ECHR 2015; and Denisov, cited above §§ 61-65). This entails that it must be determined whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to the impartiality of the body itself. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a body sitting as a bench (see Luka v. Romania, no. 34197/02, § 40, 21 July 2009) lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Micallef, cited above, § 96; Wettstein v. Switzerland, no. 33958/96, § 44, ECHR 2000‑XII; and Pabla Ky v. Finland, no. 47221/99, § 30, ECHR 2004‑V).
142. The situation in which the question of a lack of judicial impartiality may arise in the instant case is, therefore, of functional nature, which concerns hierarchical or other links between the judge and other actors in the proceedings (see Micallef, cited above, §§ 97-98). In the latter case, the nature and degree of the relationship in question must be examined.
143. As already mentioned, the issue of independence and impartiality are closely linked and the concerns regarding both of them have already been jointly examined above (see paragraphs 134 et seq. above).
144. In the context of the objective impartiality, the Court further observes that there was no territorial jurisdiction to perform the enforcement officer’s activities under Act no. 120/2001 on Enforcement Officers and Enforcement Activities, that is to say, whoever wanted to make use of an enforcement officer’s services could approach any enforcement officer of his or her choosing (see paragraph 27 above, and section 28 of the Act).
145. Thus, the Court shares the applicant’s concerns that the two enforcement officers who were sitting as lay assessors in the disciplinary chamber and hearing his case, that is to say, one-third of the chamber’s members, were the applicant’s direct competitors.
(e) Overall assessment
146. In light of the foregoing, the Court considers that the legal regulation concerning the establishment of the disciplinary chamber for enforcement officers which heard and decided the applicant’s case did not offer sufficient safeguards guaranteeing the independence and impartiality of lay assessors, and, thus, of the disciplinary chamber as a whole.
(f) Whether the allegations regarding the right to an “independent and impartial tribunal” were effectively reviewed and remedied by the domestic courts
147. First and foremost, the Court notes that no appeal lay against the disciplinary court’s decision. The applicant had, thus, only a constitutional appeal at his disposal. The Court has held that in order to determine whether the Article 6 compliant second-tier tribunal had “full jurisdiction”, or provided “sufficiency of review” to remedy a lack of independence at first instance, it is necessary to have regard to such factors as the subject matter of the decision appealed against, the manner in which that decision was arrived at and the content of the dispute, including the desired and actual grounds of appeal (see Bryan v. the United Kingdom, 22 November 1995, §§ 44-47, Series A no. 335‑A, and Tsfayo v. the United Kingdom, no. 60860/00, § 43, 14 November 2006).
148. However, the Court observes, and it is not disputed by the parties, that the subsequent control by the Constitutional Court did not provide full jurisdiction since it reviewed the applicant’s case only in terms of compliance of the impugned decision with the constitutional law, which, on the Government’s own admission, made it impossible for it to examine the relevant facts in full. The Court considers that such limited judicial power did not allow the Constitutional Court to examine the case and to provide reasons for its decision to the same extent as a court with full jurisdiction (see Malhous v. the Czech Republic [GC], no. 33071/96, § 62, 12 July 2001, and Štefanec v. the Czech Republic, no. 75615/01, § 27, 18 July 2006).
149. Thus, the Court concludes that the Constitutional Court could have found that the procedure was not Convention compliant, but it could not conduct a full rehearing and, thus, in the case of enforcement officers it could not remedy the shortcomings of the disciplinary chamber.
(g) The Court’s overall conclusion
150. In the light of the foregoing, the Court considers that the applicant was denied his right to an “independent and impartial tribunal” on account of his case being heard by the disciplinary chamber which did not satisfy these requirements. In addition, the applicant could not appeal its decision and the constitutional court could not fully rehear his case. As a result, the very essence of the right at issue was impaired.
151. Accordingly, there has been a violation of Article 6 § 1 of the Convention in this respect.
IV. OTHER ALLEGED VIOLATIONS UNDER ARTICLE 6 § 1 OF THE CONVENTION
A. Proceedings before the disciplinary court
152. The applicant further complained of a violation of the right to a fair trial (i) since the disciplinary court did not invite him to propose additional evidence before the closing of the hearing, (ii) for the way in which it assessed the evidence, and (iii) because he could not appeal the decision.
153. The Government contested this view.
154. Having regard to the facts of the case, the submissions of the parties and its findings under Article 6 § 1 of the Convention, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the admissibility and merits of the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
B. Proceedings before the Constitutional Court
155. The applicant further asserted that the Constitutional Court had not duly disposed of all the complaints he had raised in the constitutional appeal.
156. The Government contested this complaint.
157. In the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. The Constitutional Court summarised the applicant’s complaints and addressed all important points as conforming to the Constitution.
158. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
159. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
160. The applicant claimed 350,000 korunas (CZK) (12,650 euros (EUR)) in respect of pecuniary damage, which corresponded to the fine imposed on him by the decision of the disciplinary court. He further claimed CZK 500,000 (approximately EUR 18,000) in respect of non-pecuniary damage consisting in his tarnished reputation in his clients’ eyes, damage to his business activities, and other inconveniences collateral to the very fact that disciplinary proceedings against him had been conducted.
161. The Government disputed the existence of any causal link between the pecuniary damage allegedly incurred and the alleged violation of the Convention, pointing out, inter alia, that the applicant could have availed himself of the opportunity to lodge a request for the reopening of the proceedings on his initial constitutional appeal, which would have ensured him restitutio in integrum. Furthermore, the Government considered the claim in respect of non-pecuniary damage to be excessive, also referring to the possibility for the applicant to request the reopening of the proceedings before the domestic courts.
162. The Court, having regard to its finding of a violation concerning the applicant’s complaint under Article 6 § 1 of the Convention about the unfair proceedings, considers that no causal link has been established between the pecuniary damage alleged and the violation it has found. On the other hand, the Court considers that the applicant must have suffered some distress on account of the violation found. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 4,000 in respect of non-pecuniary damage.
B. Costs and expenses
163. The applicant made no claims for costs and expenses. Accordingly, the Court makes no award under this head.
C. Default interest
164. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
VI. APPLICATION OF ARTICLE 46 OF THE CONVENTION
165. Article 46 of the Convention provides:
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
166. The Court reiterates that under Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000‑VIII, and Stanev v. Bulgaria [GC], no. 36760/06, § 254, ECHR 2012).
167. The Court further notes that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (see, for instance, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005‑IV), provided that such means are compatible with the conclusions and spirit of the Court’s judgment (see, for instance, Scozzari and Giunta, cited above, § 249, and Ilgar Mammadov v. Azerbaijan (infringement proceedings) [GC], no. 15172/13, §§ 148-49, 29 May 2019). However, in certain special circumstances the Court has found it useful to indicate to a respondent State the type of measures that might be taken to put an end to the situation – often a systemic one – which has given rise to the finding of a violation (see, for instance, Ilgar Mammadov, cited above, § 153).
168. The Court considers that in accordance with its obligations under Article 46 of the Convention, it falls upon the respondent State to draw the necessary conclusions from the present judgment and to take any general measures as appropriate in order to solve the problems that have led to the Court’s findings and to prevent similar violations from taking place in the future. That being said, the Court stresses that the finding of a violation in the present case may not as such be taken to impose on the respondent State an obligation under the Convention to reopen all similar cases that have since become res judicata in accordance with Czech law (compare Guðmundur Andri Ástráðsson, cited above, § 314).
FOR THESE REASONS, THE COURT
1. Declares, by a majority, the complaint that the disciplinary court did not satisfy the requirements of an independent and impartial tribunal under Article 6 § 1 of the Convention admissible;
2. Holds, by four votes to three, that there has been a violation of Article 6 § 1 of the Convention;
3. Holds, by a majority, that there is no need to examine the admissibility and merits of the remaining complaints under Article 6 § 1 of the Convention relating to the disciplinary court;
4. Declares, unanimously, the remainder of the application inadmissible;
5. Holds, by four votes to three,
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Czech korunas at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 23 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv Tigerstedt Krzysztof Wojtyczek
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Eicke, Koskelo and Wennerström is annexed to this judgment.
JOINT DISSENTING OPINION OF JUDGES EICKE, KOSKELO AND WENNERSTRÖM
I. General observations
1. Regrettably, we find ourselves wholly unable to agree with the majority of the Chamber that there has been a violation of Article 6 of the Convention in the present case. On the grounds explained below, we consider that the applicant’s complaints, as submitted, should have been declared inadmissible.
2. Our differences in this case arise out of a fundamental disagreement on matters of principle relating to the Court’s role and function. It is clear in our view that the Chamber has exceeded its competence and has gone well beyond the Court’s task as set out in the Convention.
3. As we see it, the breach of basic principles in the judgment of the majority is threefold. Firstly, the Chamber has examined issues which, contrary to the requirement of exhaustion of domestic remedies expressly raised by the respondent Government, were not in any manner raised by the applicant in the domestic proceedings. Secondly, the Chamber has examined matters which were not as such raised by the applicant even before this Court, but which were, instead, raised by the Chamber ex proprio motu, contrary to the established limits of the Court’s judicial function. Thirdly, the Chamber based its conclusions on an abstract review of the domestic legal framework, which according to the Court’s established case-law is not its task. To compound these fundamental flaws, the Chamber has gone on to give indications of general measures under Article 46, calling for regulatory action by the respondent State to address the deficiencies identified by it ex proprio motu.
4. The present judgment therefore represents a grave departure from normal practice, marking an unwarranted and inappropriate development in the Court’s activity. This is even more remarkable as the respondent Government in their submissions to the Court have firmly objected to such a course of action. In fact, in response to the various questions communicated by the Court during the proceedings, the Government strongly disagreed with the extension of the subject matter of the proceedings by the Court beyond the issues raised by the applicant. Despite these express objections, the majority have persisted in the approach as set out in the judgment.
5. It is therefore important at the outset to recall and emphasise the following basic principles:
(i) It is not the Court’s task to examine and resolve issues which have not first been raised and considered at domestic level in the relevant proceedings leading up to the final decision in the applicant’s case. The duty of the applicant under Article 35 § 1 to exhaust available and effective domestic remedies, which is also one expression of the principle of subsidiarity now enshrined in the Preamble to the Convention, is a cornerstone of the Convention system (see, for example, Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 83-86, 9 July 2015, and Vučković and Others v. Serbia (preliminary objection) [GC], no. 17153/11 and 29 other cases, §§ 69-72, 25 March 2014).
(ii) It is not the Court’s task to address matters of its own motion; the Court is bound by the scope of the complaint as submitted to it by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 108‑09, 20 March 2018, Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, §§ 102-06, 6 November 2018).
(iii) It is not the Court’s task to conduct an assessment of domestic legislation in abstracto (see Perinçek v. Switzerland [GC], no. 27510/08, § 136, ECHR 2015; Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 121, 15 November 2018; and Magyar Kétfarkú Kutya Párt v. Hungary [GC], no. 201/17, § 96, 20 January 2020).
6. With these general remarks, we move on to a closer analysis of the present case.
II. The applicant’s complaints
A. Constitutional appeal at the domestic level
7. As set out in paragraphs 9-10 of the present judgment, the grievances raised by the applicant in his constitutional appeal were entirely based on the premise that the disciplinary proceedings conducted against him before the competent chamber of the Supreme Administrative Court were a form of criminal proceedings, that is to say, proceedings for the determination of a criminal charge. He alleged breaches of certain principles of criminal procedure (see paragraph 9), as well as the lack of access to an appeal procedure as required under Article 2 of Protocol No. 7 to the Convention in the context of criminal proceedings (see paragraph 10). Under the latter provision, he expressly advanced his case on the basis that the absence of a possibility of judicial review as required in criminal proceedings was only permitted in cases where the disciplinary court at first instance was the “highest tribunal” and argued that the disciplinary chamber of the Supreme Court did not satisfy the requirements of the “highest tribunal” for the purposes of Article 2 § 2 of Protocol No. 7.
8. Thus, the applicant’s constitutional appeal was entirely based on the erroneous assumption that the disciplinary proceedings against him were subject to the Convention principles governing criminal proceedings.
9. By contrast, nothing in the constitutional appeal was concerned with matters such as the procedures for the appointment of the members of the disciplinary chamber who were not professional judges, including the qualifications of such members – issues that are at the core of the Chamber’s examination in the present judgment.
B. Complaints before the Court
10. The applicant’s complaints before this Court are essentially the same as those submitted in his domestic constitutional appeal.
11. The first tier of complaints, based on the assumption that the criminal limb of Article 6 was applicable, alleged a violation of the right to a fair trial under Article 6 §§ 1 and 3 (d) of the Convention, on the grounds that the disciplinary chamber did not explicitly invite the applicant to submit evidence. Relying on Article 6 § 2 of the Convention, the applicant also alleged a violation of the presumption of innocence, stating that he had been found guilty only because he had not been able to back up his defence with a copy of a particular document. According to the applicant, the disciplinary chamber did not gather all the evidence available and thus did not disprove his asserted defence (which we note was unsupported by any evidence; see paragraph 7 of the judgment) or determine the truth. The applicant further alleged that his right to a fair trial within the meaning of Article 6 § 1 of the Convention had also been infringed by the Constitutional Court, which had decided on his constitutional appeal in very vague terms.
12. It is evident that those complaints had nothing to do with the institutional aspects of the composition of the disciplinary chamber of the Supreme Administrative Court.
13. In a second tier of complaints, the applicant alleged a violation of Article 2 of Protocol No. 7 because of the fact that domestic law excluded appeals against decisions of the disciplinary chamber of the Supreme Administrative Court. He argued that none of the exceptions contained in paragraph 2 of that Article were applicable in his case, as he had been found guilty of an offence which could not be classified as being “of a minor character”, and that the disciplinary chamber of the Supreme Administrative Court could not be considered to be “the highest tribunal”. In this connection, the applicant’s complaint relied on the fact that the composition of the disciplinary chamber included members who were not professional judges.
III. Assessment of the scope and admissibility of the applicant’s complaints and submissions
14. As regards the first tier of complaints raised by the applicant (see paragraph 11 above), it suffices to briefly state that these are plainly inadmissible on the grounds of being manifestly ill-founded or incompatible ratione materiae with the provision relied on.
15. As regards the second tier of complaints, submitted under Article 2 of Protocol No. 7, the core allegation was that because of the composition of the disciplinary chamber of the Supreme Court, namely the presence of non‑judicial members on the panel, he should have had access to the possibility of an appeal before a judicial tribunal, and that the lack of such further appeal violated his rights.
16. Such a complaint is, in both factual and legal terms, essentially different from the issues to which the Chamber majority have devoted their attention in the present judgment (see paragraph 123 in fine of the judgment and paragraph 20 below).
17. As a matter of law, Article 2 of Protocol No. 7 is not applicable in the circumstances of the present case as the disciplinary proceedings did not concern the determination of a “criminal charge” within the autonomous meaning of that provision.
18. Even if that complaint were – generously – recharacterised under the civil limb of Article 6, in terms of the fact that the composition of the disciplinary chamber of the Supreme Administrative Court included members who were not professional judges, it is to be noted that there is no requirement under Article 6 according to which a disciplinary body should only be composed of professional judges. The Court has consistently held that the participation on tribunals of members without legal qualifications is not, as such, contrary to Article 6 (see, for instance, Haarde v. Iceland, no. 66847/12, §§ 103-08, 23 November 2017, regarding criminal proceedings conducted – at first and only instance – before a tribunal where the majority of the members were lay judges; see also Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, §§ 57-58, Series A no. 43, and Pabla Ky v. Finland, no. 47221/99, § 32, ECHR 2004‑V). Indeed, it is not uncommon in practice that there are various disciplinary bodies which are mainly composed of members other than professional judges. Furthermore, the notion of a “tribunal” under that provision does not preclude a composition where the majority of members are not professional judges.
19. The second tier of complaints as submitted by the applicant are therefore also inadmissible either as incompatible ratione materiae (in terms of Article 2 of Protocol No. 7), or as manifestly ill-founded (even if recharacterised under the civil limb of Article 6).
20. It is important to note that none of the issues examined by the Chamber majority in paragraphs 123 to 146 of the present judgment (namely the manner of appointment of the disciplinary chamber’s members, the duration of their appointment, the existence of guarantees against outside pressure, the appearance of independence, or their impartiality) were raised by the applicant either in his domestic constitutional appeal or in the application submitted to the Court. There has been no recourse to a domestic remedy in respect of those issues. To the extent that the applicant has addressed these matters in his subsequent observations submitted to the Court, such comments have been prompted by the questions posed and formulated by the Court of its own motion. Even if one were to treat these subsequent observations as complaints before the Court, they would patently have been inadmissible as having been submitted out of time (see Ramos Nunes de Carvalho e Sá, cited above, §§ 103-06). The Court does not have jurisdiction to rule on any such grievances.
IV. Abstract review of the Court’s own motion
21. Instead of declaring the applicant’s complaints inadmissible, the Chamber majority have therefore proceeded to examine issues which were not raised in the application submitted to the Court. Acting of its own motion, the Court invited the parties to respond to various questions which were not based on the application before it but formulated on the Court’s own initiative. Such a course of action is clearly incompatible with the judicial function entrusted to the Court under the Convention. The instrumentalisation of an individual application by the Court for purposes other than the adjudication of grievances actually presented to it by the applicant is in our opinion wholly unacceptable.
22. Furthermore, the Chamber majority have not only acted of their own motion but they have conducted an abstract review of the domestic legislation governing the composition of the disciplinary chamber of the Supreme Administrative Court, a review which, by its very broad nature, impacts not only disciplinary proceedings against enforcement officers like the applicant but also has the potential to undermine disciplinary processes in relation to others, such as judges and prosecutors (all of which are governed by Act no. 7/2002 on Proceedings in Matters concerning Judges, Public Prosecutors and Enforcement Officers (as amended); see paragraph 32 of the judgment and paragraph 133 of GRECO’s most recent (Fourth) Evaluation Report in respect of the Czech Republic, “Corruption prevention in respect of members of parliament, judges and prosecutors”, adopted in 2016). The majority set out to “assess whether the manner in which the disciplinary chamber was set up… might have produced results that were incompatible with the object and purpose of the Convention right to an ‘independent tribunal’” (see paragraph 127 of the judgment). According to the majority, the “key issue” in the present case – notwithstanding the absence of any complaint in this regard – was the transparency of the procedure by which the lay assessors of the disciplinary court were appointed, in particular the system of nomination of persons to the lists from which lay assessors were drawn (see paragraph 130).
23. In this context, the majority address, inter alia, issues which clearly had no bearing on the case in question. For instance, it is stated that the lay assessors who were enforcement officers were nominated “without any predetermined selection criteria”, apart from the requirement that the candidates on the list from which the members for a specific composition were drawn had to have held office for three year and satisfied the subjective condition of good moral character. According to the Government’s uncontested submissions, however, both of the enforcement officers who sat in the applicant’s case were among the most experienced members of the profession and had practised continuously for a dozen years by the time of the proceedings against the applicant. The lay assessor drawn from the members of the legal profession in turn was a lawyer who had practised for more than twenty years. The fourth lay assessor was an academic in the field of private law and civil procedure. It is difficult to see on what basis the composition of the disciplinary chamber sitting in the applicant’s case could, in the light of the Court’s established case-law, be subject to legitimate doubts from the point of view of the requirements of the independence or impartiality of the non-judicial members. In any event, the applicant has raised no such allegations in his complaint to the Court.
24. Similarly, in paragraphs 134-45 of the judgment the majority engage in an abstract examination, ex proprio motu, of the institutional arrangements surrounding the composition of the disciplinary chamber in general. This analysis, too, is extended to cover circumstances which have no relevance whatsoever to the composition of the chamber that sat in the applicant’s case (see paragraph 137).
V. Concluding remarks
25. Apart from the finding of a violation of Article 6, and the award to the applicant in respect of non-pecuniary damage even though he himself failed to raise the respective complaints, the judgment finds its culmination in the indication of general measures under Article 46, in effect calling for legislative or other regulatory measures to be taken by the respondent State to correct the purported deficiencies identified by the majority of their own motion and without proper adversarial argument on the points addressed. There is a certain irony in the fact that the finding of a violation is based on concerns relating to the guarantees of independence and impartiality as regards the disciplinary chamber of the domestic court, whereas the present judgment itself entails a deviation by this Court from the role incumbent on it as an impartial adjudicator in cases brought before it. Apparently, the majority are not bothered by the institutional problem of principle involved, or by the injustice caused to those applicants before the Court in respect of whom the normal rules of admissibility are duly applied. In our view, the judgment amounts to an ultra vires act with the consequence that the respondent State can hardly be bound by the indications set out in reliance on Article 46 of the Convention.
26. Respect for the rule of law is a topical issue in these times, often underlined by the Court in its case-law. We would like to point out that it is also a part of the rule of law that courts, including this one, should respect the basic limits of their function. This is not a matter of undue formalism. It is a matter of fundamental principles.