Czechia

In Czechia, the president of the republic appoints candidates chosen by selection committees as judges, a change from the informal process that was mainly controlled by court presidents before the June 2021 reform. The president rarely rejects proposed candidates, but there have been exceptions. For example, in October 2022, then-President Miloš Zeman declined to appoint two former prosecutors as judges, without providing any written justification, as required by the Supreme Administrative Court.

The president of the republic needs the Senate’s consent for appointing Constitutional Court justices, but has sole discretion in appointing the president and two vice-presidents of the Constitutional Court from the justices selected. No specific legal criteria guide these choices. The Constitutional Court president represents the Court externally, performs administrative work, appoints the chairpersons of panels of the Court, distributes caseloads among panels, calls meetings of the plenum of the Court, and fixes the agenda for and chairs its meetings. The Constitutional Court president also names and recalls law clerks of constitutional court justices, on the basis of proposals from those justices. Such an accumulation of responsibilities raises concerns about potential misuse of power.

In 2023, seven Constitutional Court justices, including the president of the Court, saw their ten-year mandates expire. Such mass replacements can affect the Court’s independence. President Zeman’s attempt to appoint a new president of the Constitutional Court before his own term ended in March 2023, and months before the expiry of the sitting Court president Pavel Rychetský’s mandate, was deemed unconstitutional by experts, and did not occur.

In June 2023, the new Czech President, Petr Pavel, appointed three new members of the Constitutional Court (Josef Baxa, Jan Wintr, and Daniela Zemanova). None of these appointments were controversial in terms of the quality of candidates or whether they were political. One of the new appointees, Josef Baxa, eventually became the Court president. Kateřina Ronovská, appointed on 4 August 2023 as a Constitutional Court justice, also became a vice president of the Court. Another judge, Veronika Křesťanová, joined the court in August 2023. The president did, however, put on hold the appointment of Robert Fremr, even after he received Senate approval, in connection with accusations about his activities as a judge during the communist era. Fremr, currently vice president of the Prague High Court, eventually turned down the nomination. These practices reveal that the risk of political abuse of power and discretion is present, and could materialise in the future but, in practice, appointments are mostly merit-based and not overly political.

Court presidents have acquired significant formal and informal powers in judicial selection and careers, and could misuse these powers, potentially undermining regular judges’ independence. Despite some changes implemented to limit their influence, court presidents remain central figures in the justice system. Judicial boards created in 2002 were intended to introduce more democratic processes, but lacked binding authority over court presidents. The establishment of the selection committees meant that the court presidents would no longer be informal gatekeepers to the judiciary. Court presidents may, however, still be able to exert influence indirectly, for example by becoming or proposing members of those committees.

The introduction of an independent judicial council, in line with the Council of Europe recommendations, would shift some of the powers from the court presidents to a collective body. This initiative lacks sufficient political support, however, with concerns about judicial corporatism and elitism.

Limited terms of office for court presidents were introduced to avoid the accumulation of excessive power and influence in their hands. A 2010 Constitutional Court decision declared the introduction of limited terms for court presidents and the application of limited terms on incumbent court presidents to be constitutional. It also struck down the provision that allowed the reappointment of the same court president for a second term. This meant that all then-incumbent court presidents were removed.

Czechia established judicial selection committees (the law in question entered into force in January 2022); these are bodies with a majority of judge members that select judges through an open competition. The goal of this reform was to make the decision-making more structured, uniform, and transparent.

Prior to the reform, court presidents handpicked judges. The processes differed from one court to another – some were more transparent than others. Some court presidents were more willing to use open, competitive procedures than others. This method shielded selections from political interference, but provided fertile ground for favouritism and selection based on criteria other than merits. Arguably, it discouraged qualified candidates from other legal professions from seeking judicial careers, due to the uncertainty involved (alongside the fact that the process has five phases, including a judicial exam, the selection of candidate judges, and the trial period for candidate judges, which precede their appointment as judges proper). Due to the likely personal loyalties of selected judges to the relevant court presidents, the independence of appointed judges could also be endangered. At least on paper, the above-mentioned reform limits court presidents’ influence in judicial selections, reduces the risk of internal pressures or dependencies, and may enhance the section process’ legitimacy.

The Council of Europe’s Group of States against Corruption (GRECO) positively evaluated the reform in March 2023, noting features such as written justifications for candidates’ grades and the possibility of judicial appeal. Civil society organisations still reported flaws, however. The Ministry of Justice is preparing amendments to the decree to address practical issues that have emerged in the application of new procedures. At this point, it is hard to say whether the establishment of selection committees has eliminated court presidents’ informal influence over selection processes.

Currently, there is no avenue for appealing decisions made by disciplinary panels. Although a reform aiming to introduce this option was initiated, it was interrupted due to the end of the parliamentary term. The new government formed after the October 2021 parliamentary elections re-introduced the reform, which is still pending.

The Chamber judgment of the European Court of Human Rights (ECtHR) in the Grosam case of 23 June 2022 highlighted concerns about the independence and impartiality of the Disciplinary Chamber of the Supreme Administrative Court. The applicant worked as an enforcement officer and faced disciplinary punishment. By a four-to-three majority, the ECtHR Chamber concluded that the Disciplinary Chamber that had heard and decided the applicant’s case could not be considered to be “independent“. In reaching this conclusion, the Chamber raised issues with the lack of transparency in appointing lay members of the Chamber (constituting two-thirds of its members). For the Chamber, the system of nomination to the lists from which lay members were drawn was problematic. Additionally, the Court noted that lay members worked and received salaries outside of their work for the Chamber, which could endanger their independence and impartiality.

Three dissenting judges (Tim Eike, Pauliine Koskelo, and Erik Wennerström) argued that the Chamber majority in Grosam exceeded its competence by examining matters not raised by the applicant before domestic courts, engaging in an abstract review of domestic law and addressing issues that had no bearing on the case in question. The Grand Chamber shared this reasoning, and declared the application inadmissible, thereby reversing the Chamber’s ruling. It did not have a chance to reflect on the substantive reasoning of the Chamber.

The Chamber’s reasoning was problematic for Czech commentators, who suggested that the Chamber‘s approach was reinforcing an extreme view that only judges should decide on disciplinary matters concerning legal professions, because members of other legal professions or lay judges are never able to meet the standard of independence. They also pointed out that imposing transparency and other requirements at the pre-selection stage would mean virtually any selection of judges by political bodies would violate the European Convention on Human Rights.

The Czech Constitutional Court (CCC) has been rather hesitant in applying EU law, often asserting that it falls outside the scope of constitutional review. Consequently, it also has not made any preliminary reference to the Court of Justice of the European Union (CJEU). The CCC monitors ordinary courts to ensure they submit such references when required, however, basing this oversight on the Czech Charter as part of the right to a fair trial and the right to a lawful judge. This approach aligns with the CCC’s opinion that it only checks constitutionality, not EU conformity. All this being said, in a couple of exceptional instances, the CCC has stepped outside of this role. In cases typical for EU law (consumer or workers protection), some judges have used the EU Charter as a point of reference. In a plenary judgment, the CCC even suggested it might consider making a preliminary reference, indicating inconsistency in its stance on applying EU law.

Similar to other constitutional courts (and very much inspired by the German Bundesverfassungsgericht), the CCC has developed doctrines of constitutional review of EU law. Whenever it perceives a contradiction between EU law or a CJEU ruling and the Czech Constitution, it can employ the constitutional identity review or the ultra vires review. The CCC has used the ultra vires review in the Slovak pensions saga. Importantly, this was an isolated case, and it arose because of a conflict at the national level – between the CCC and the Supreme Administrative Court. Before this incident, the CCC had a reputation for being EU law-friendly. The EAW case and the Sugar Quotas saga from earlier years are examples where it aligned national (constitutional) law with EU law.

The European Commission pointed out in its 2023 Rule of Law Report that Czechia‘s progress on the digitalisation of justice continues to be slow.

The Czech prosecutor general’s current vulnerability to dismissal by the government, based on a proposal by the minister of justice and without providing reasons, jeopardises prosecutorial independence. In its 2022 Rule of Law Report, the European Commission urged the Czech authorities to introduce safeguards for the dismissal of the prosecutor general and other chief prosecutors. In June 2023, the draft law amending the process of appointing and dismissing prosecutors, including the prosecutor general, was submitted to the Parliament. The draft law allows for governmental dismissal of the prosecutor general, but only in cases of a gross breach of duties or grossly inappropriate behaviour undermining confidence in the prosecution service and its reputation. The draft law allows the prosecutor general to challenge the dismissal before the Supreme Administrative Court. Additionally, it sets eligibility requirements for prosecutor general candidates, such as at least ten years of legal experience, including at least six years as a public prosecutor. The draft envisages a non-renewable, seven-year term of office for the prosecutor general, aligning Czech legislation with European standards.

The European Commission concluded that, while the proposed reform constituted an improvement on previous drafts, European standards called for greater clarity in the conditions of premature dismissal, an expert body’s ex ante opinion as to whether there are sufficient grounds for dismissal, and a fair hearing of the prosecutor general in dismissal proceedings.