Professional Documents
Culture Documents
JUDGMENT
STRASBOURG
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.
GROSAM v. THE CZECH REPUBLIC JUDGMENT
INTRODUCTION
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.
THE FACTS
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
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1Rectified on 10 August 2022: the previous version read “... (namely, that he had acted on behalf of a
debtor without the proper authorisation).”
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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.
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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
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
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Section 3
“The disciplinary court shall hear and decide cases coming under this Act. The
Supreme Administrative Court is the disciplinary court.”
Section 4
“...
(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. ...”
Section 4b
“(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
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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.”
Section 5
“...
(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
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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. ...”
Section 8
“...
(5) A petition to initiate disciplinary proceedings for disciplinary liability of a public
prosecutor may be lodged by
a) the Minister of Justice ...”
Section 12
“(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.”
Section 17
“...
(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.”
Section 21
“Appeal against a decision taken in disciplinary proceedings is not admitted.”
Section 22
“(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.”
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Section 25
“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.”
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 4b(1)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
1 Rectified on 10 August 2022: the previous version read “3. In section 4(1)…”
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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.”
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.
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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.
1 Rectified on 10 August 2022: the previous version read “Under paragraph 2…”
2 Rectified on 10 August 2022: the previous version read “Under Article 2 § 1, data on …”
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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
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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
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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.
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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 10,0001. 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.”
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.
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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:
“Regarding judges
...
ix. introducing the possibility for judges to challenge disciplinary decisions
including for dismissal before a court (paragraph 136);
Regarding prosecutors
...
xiv. introducing the possibility for public prosecutors to challenge disciplinary
decisions including dismissal before a court (paragraph 186).”
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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.”
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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.”
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THE LAW
I. PRELIMINARY REMARKS
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(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.
A. Six-month time-limit
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25
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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.
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27
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28
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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).
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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.
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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 116(2)1 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 Act no. 120/20012 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.
1 Rectified on 10 August 2022: the previous version read “section 166 (2)”.
2 Rectified on 10 August 2022: the previous version read “… under the Disciplinary Act….”
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32
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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.
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).
A. Admissibility
107. In view of its conclusions above, the Court notes that this complaint
is not inadmissible, it must therefore be declared admissible.
B. Merits
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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.
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35
GROSAM v. THE CZECH REPUBLIC JUDGMENT
36
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37
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38
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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).
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GROSAM v. THE CZECH REPUBLIC JUDGMENT
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.
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against outside pressure and the close proximity to the Minister of Justice of
at least some of the lay assessors.
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(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.
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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.
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“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.”
A. Damage
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.
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.
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45
GROSAM v. THE CZECH REPUBLIC JUDGMENT
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;
46
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K.W.
L.T.
47
GROSAM v. THE CZECH REPUBLIC JUDGMENT – SEPARATE OPINION
48
GROSAM v. THE CZECH REPUBLIC JUDGMENT – SEPARATE OPINION
49
GROSAM v. THE CZECH REPUBLIC JUDGMENT – SEPARATE OPINION
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.
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.
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GROSAM v. THE CZECH REPUBLIC JUDGMENT – SEPARATE OPINION
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.
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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.
53