CYIL vol. 13 (2022)

JIŘÍ MULÁK CYIL 13 ȍ2022Ȏ Protocol No. 7 was drafted, the ECmHR continued to maintain the same criterion which has now been adopted by ECtHR case law. 35 In the Czech context, this second exception, which is “ conviction in the first instance by the highest court (tribunal) ”, i.e., virtually in a single procedure, may be much more interesting. 36 The original meaning and purpose of this exception in Article 2(2) of Protocol No. 7 was aimed at criminal proceedings held against persons holding high offices (e.g., members of the government, judges). 37 Such proceedings are usually entrusted to the highest-instance courts, which are supposed to guarantee a fair trial. By the nature of the case, no further remedial means can be lodged against their decision. 38 It should be added that the Supreme Court of the Czech Republic never decides on the merits of a case at first instance in criminal matters, but is entrusted with deciding on extraordinary remedial means (extraordinary appeals, complaints for violation of the law), thus unifying the decision-making practice. The above-mentioned interesting feature is, first of all, represented by the Czech system of disciplinary proceedings against judges, prosecutors and executors under the Act No. 7/2002 Coll. In these disciplinary proceedings, which are “subsidiary” to the provisions of the Code of Criminal Procedure, 39 decisions are made on the motion of the disciplinary prosecutor 40 by the disciplinary chamber of the Supreme Administrative Court of the Czech Republic, 41 against whose decision no appeal is admissible. 42 In addition to the motion for a retrial 43 – the disciplinary convict may at most appeal to the Constitutional Court of the Czech Republic with a constitutional complaint under Article 87(1)(d) of the Constitution of the Czech Republic. In the Czech Republic, however, it is constantly being considered that the proceedings under Act No. 7/2002 Coll. would again be two-stage proceedings. 44 In European countries, the possibility of appealing against a decision in a disciplinary procedure with judges is rather a rule. 45 The Constitutional Court of the Czech Republic assessed, in its ruling Pl. 33/09, 46 upon the motion of the Supreme Administrative Court of the Czech Republic, the constitutionality of this regulation also with regard to the right to appeal in criminal matters guaranteed in 35 Ibidem. See ECtHR decision in Saiz Oceja, Hierro Maset and Planchuelo Herrera v. Spain of 30 November 2004, applications nos. 74182/01, 74186/01 and 74191/01. 36 See very interresting study of Molek – MOLEK, P. Právo na spravedlivý proces (The right to a fair trial). Prague: Wolters Kluwer, 2011, pp. 425–435. 37 See Explanatory Report to the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, point 20.

38 Cf. Section 88 of the Act No. 6/2002 Coll. 39 Cf. Section 25 of the Act No. 7/2002 Coll. 40 Cf. Sections 8 and 9 of the Act No. 7/2002 Coll. 41 Cf. Section 4 of the Act No. 7/2002 Coll. 42 Cf. Section 21 and Section 22(2) of the Act No. 7/2002 Coll.

43 Cf. Section 22(1) of the Act No. 7/2002 Coll.: “ Within a period of 3 years from the legal validity of the decision of the panel under Section 19(1), a judge, the president of a court, the vice-president of a court, the president of a collegium of the Supreme Court or the Supreme Administrative Court, a public prosecutor or a licensed executor may file a motion for the reopening of disciplinary proceedings .” 44 Cf. 21 of the Act No. 7/2002 Coll. in the version prior to the entry into force of the amendment no. 45 Concerning these issues, cf. for more details: KOSAŘ, D., PAPOUŠKOVÁ, T. Kárná odpovědnost soudce . (Disciplinary liability of a judge). Prague: Wolters Kluwer, 2017. 46 See also cases no. I. ÚS 181/01 (of 16 April 2003), IV. ÚS 1335/12 (of 9 July 2013), IV. ÚS 2047/13 (of 15 October 2013), I. ÚS 1807/13 (of 10 December 2013), I. ÚS 12/14, (of 24 June 2014).

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