CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE IMPARTIALITY OF JUDGE AND THE PRINCIPLE OF PRESUMPTION OF INNOCENCE … devoted, for example, to judges’ salaries 17 , which is, however, not only a legal issue, but also an economic issue and partly even a political one. Both the European courts have previously set out a range of criteria necessary to establish, respect and maintain the constitutional principle of judicial independence. The prerequisite for this objective is undoubtedly not only that the court should operate independently from the outside, according to the motto: ‘ Not only must Justice be done; it must also be seen to be done ’, but at the same time impartiality must be maintained from within the judicial system. A good example of this is, e.g., the requirement of absolute secrecy of the deliberations of the Chamber 18 , the result of which, in the form of a vote by the members of the Chamber, is always a part of the court file, albeit in a sealed envelope. It is also important, for example, that the way in which a judge’s term of office is established shall not compromise the independence of judicial decision-making. Here, it is necessary to ensure that such a term of office should not be too short if the judge’s mandate is renewable. In the Czech Republic, judges are appointed without any time limit, nevertheless the law knows the reasons for which a judge’s mandate expires. A further guarantee is that the methods and motives for appointing or replacing members of the judicial body must not have an impact on the decision-making in specific cases, as this is, inter alia, a question of the immediacy (directness) of the proceedings 19 and at the same time also the principle of the lawful judge, which is inherent in a number of European law systems. Furthermore, it is necessary to ensure that there are guarantees against external pressures on the judge, on the manner in which they perform their duties, but above all on the outcome of their judicial activity. Such a guarantee is certainly the issue of the non-transferability of a judge, i.e., that a judge may not be assigned, temporarily transferred, permanently transferred to perform the functions of a judge against their will 20 or otherwise removed from their office, except, of course, in disciplinary proceedings for disciplinary offences, where the imposition of a disciplinary measure results in removal from the office. As regards the decision-making itself, the judge may not take any instructions, except where the judge is bound by a superior court’s legal opinion in the context of an appeal. 21 The efforts of public officials (in particular political representatives or members of the executive system) or less responsible media to make statements with a view to influencing the decision-making of the court and judges are completely unacceptable. 22 From the point of view of the guarantee of independence, it is important that the court’s decision can again be reviewed only by the court. It is therefore absolutely impossible for non-judicial bodies (executive or legislative) to review judicial 17 Most recently, Finding of the Constitutional Court of the Czech Republic of 19 July 2016, Pl. ÚS 20/15. 18 Finding of the Constitutional Court of the Czech Republic of 31 July 2018, Case No. III ÚS 4071/17. 19 Finding of the Constitutional Court of the Czech Republic of 22 September 2020, Case No. IV. ÚS 2565/19, MULÁK, J. Základní zásady trestního řízení a právo na spravedlivý proces. ( Basic principles of criminal proceedings and the right to a fair trial ) Prague: Leges, 2019, p. 255. 20 Finding of the Constitutional Court of the Czech Republic of 18 June 2002, Pl. ÚS 7/02; Finding of the Constitutional Court of the Czech Republic of 6 October 2010, Pl. ÚS 39/08. 21 SOKOL, T. Závazný právní názor nadřízeného soudu v trestním řízení (Binding Legal Opinion of Superior Court in Crminal Proceedings). In: GŘIVNA, T. (ed.) Pocta Pavlu Šámalovi ( Tribute to Pavel Šámal ). Prague: C. H. Beck, 2018, pp. 243–257. 22 Cf. Judgment of the ECtHR in Sovtransavto Holding v. Ukraine of 25 July 2002, application no. 48553/99; Judgment of the ECtHR in Kinský v. Czech Republic of 9 February 2012, application no. 42856/06; Judgment of the ECtHR in Čivinskaitë v. Lithuania of 15 September 2020, application no. 21218/12.

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