FIRST SECTION
CASE OF GROSAM v. THE CZECH REPUBLIC
(Application no. 19750/13)
 
 
JUDGMENT
 
This version was rectified on 10 August 2022
under Rule 81 of the Rules of Court. 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
 
STRASBOURG
23 June 2022
 
THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 01/06/2023
 
This judgment 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,
 Tim Eicke,
 Pauliine Koskelo,
 Gilberto Felici,
 Erik Wennerström,
 Aleš Pejchal,
 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:
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 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, for drawing up an enforcement officer’s record attesting the recognition of a debt made by an unauthorised person[1]). 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
Legislative history of disciplinary proceedings against enforcement officers in THE Czech REPUBLICAct 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. 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. 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. RELEVANT DOMESTIC LAWAct 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.”
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:
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 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 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.”
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.”
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. 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 4b(1)[2], 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.”
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. 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. 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 3[3], 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. 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 section 2 § 1 of the Act on the Register of Criminal Records (Act no. 269/1994)[4], 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. 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. 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. RELEVANT CASE-LAW OF THE CONSTITUTIONAL COURTThe 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. 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.

Outcome for Article 6: violation