CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE EXCEPTIONS OF RIGHT TO APPEAL IN CRIMINAL MATTERS … Article 2 of Protocol No. 7 to the ECHR. Specifically, it was confronted with a motion to repeal Section 21 of the Act No. 7/2002 Coll., on proceedings in the cases of judges, public prosecutors and licensed executors, as amended by the Act No. 314/2008 Coll., according to which “ an appeal against a decision in disciplinary proceedings is not admissible ”. However, the Constitutional Court considered that Article 2 of Protocol No. 7 to the ECHR does not concern “criminal” charges in an autonomous sense in the case of disciplinary proceedings against judges. The Czech Constitutional Court concluded that it was not a criminal procedure within the meaning of Article 6 of the ECHR because none of the Engel criteria ( not even the criterion of the nature of the sanctions and their severity, which were only disciplinary in nature, e.g., reprimand, reduction of salary, removal from the position of the Presiding Judge or removal from the position of Judge ) were met. Therefore, according to the Constitutional Court, general court judges do not face criminal charges within the meaning of Article 6 of the ECHR in disciplinary proceedings before the Supreme Administrative Court. Finally, the Constitutional Court of the Czech Republic did not find that the provision in question was unconstitutional on any other grounds and dismissed the motion. 47 The same conclusion that the right to appeal against a decision in disciplinary proceedings is not guaranteed by the ECHR is reached by Malenovský. 48 The situation may be questionable for licensed executors, who may be fined up to CZK 2,500,000 for disciplinary offences. Nevertheless, there is a view in the Czech literature 49 that this is a criminal charge within the meaning of Article 6(1) of the ECHR. However, the Constitutional Court of the Czech Republic has stated 50 that the conclusions of the aforementioned ruling in Case No. Pl. ÚS 33/09, in which it dealt with disciplinary proceedings against judges and found that they cannot be placed under the “ criminal part ” (criminal charge) of Article 6(1) of the ECHR. However, the question is whether the second exception to the right of appeal in criminal matters, i.e., that the decision was issued by the highest-instance court , can be applied in their case or not. If not, then the next question is whether or not the autonomously interpreted concept of “ appeal ” can also be applied to a constitutional complaint addressed to the Constitutional Court of the Czech Republic, which (with some exceptions) no longer deals with the legality of procedures and decisions, but only with their compliance with the rights guaranteed by the constitutional order. 51 It can be expected that, following the Grosam case will administer these proceedings (restoration of the double-instance nature of the proceedings), as the ECtHR found certain shortcomings in the composition of the disciplinary panel of the Supreme Administrative Court in terms of impartiality and independence. 52 The ECtHR in recent Saquetti Iglesias case has established that, if the constitutional court‘s review power is limited to examining the compatibility of a given measure with fundamental rights (questions of constitutionality) and it is not entitled to remedy ordinary 47 Ruling of the Constitutional Court of the Czech Republic of 29 September 2010, Pl. ÚS 33/09, paragraph 55 of the decision. 48 MALENOVSKÝ, R. Několik úvah nad vhodností a ústavností určitých aspektů kárného řízení se soudci. (Some reflections on the appropriateness and constitutionality of certain aspects of disciplinary proceedings against judges). Právní rozhledy , 2011, no. 11, pp. 402–408. 49 BARTOŇ, M. et al. Základní práva (Fundamental Rights) . Praha: Leges, 2016, p. 560. 50 Resolution of the Constitutional Court of the Czech Republic, Case no. III.ÚS 685/17 of 10 May 2017. 51 See recent ECtHR decision in Grosam v. Czech Republic of 23 June 2022, application no. 19750/13. 52 See recent ECtHR decision in Grosam v. Czech Republic of 23 June 2022, application no. 19750/13.

185