Constitutional Court
21 December 1999
Facts
The case was initiated by a group of members of the Parliament, who asked for an investigation into the constitutionality of the Law on Courts provisions.
Complaint
The applicant's request was based on the grounds that the contested provisions of the Law allow the Minister of Justice to interfere in the functioning of the courts; moreover, the provisions that judges, presidents of courts, and their deputies shall be appointed and dismissed by or with the participation of the Minister of Justice, are contrary to the Constitution. The right of the Minister of Justice to propose the nomination of the Prosecutor General allows the executive to interfere in the activities of the judiciary, while the right of the Parliament Committee on Law and Order to submit to the Parliament the nomination of the Prosecutor General limits the constitutional powers of the Parliament to appoint and dismiss the heads of state institutions. The contested provision of the Law that the Judicial Department operates under the Ministry of Justice is contrary to the constitutional principle of separation of powers.
Court’s ruling
The Court noted that in a democratic state governed by the rule of law, the social role of the judiciary is such that, in the administration of justice, the courts are obliged to ensure the implementation of the law as expressed in the Constitution, to guarantee the rule of law, and to protect human rights and freedoms.
In light of the rule of law enshrined in the Constitution, 2 inseparable aspects of the principle of the independence of the judge and the judiciary can be distinguished: 1) the independence of the judge and the judiciary in the administration of justice, and 2) the independence of the judiciary as a system of institutions of the judicial power. The Court noted that it is the duty of the State to provide adequate working conditions for the courts. The determination of the specific powers of other public authorities in their relations with the judiciary must not undermine the separation of powers enshrined in the Constitution and the essence of the judiciary as a full-fledged authority functioning independently of other authorities. The administration of the courts must be organised in such a way as not to undermine the independence of the judiciary. The substantive basis for the organisational independence of the courts is their financial independence from decisions of the executive. Guaranteeing such independence is a prerequisite for guaranteeing human rights. Judicial power can be affected by the ability of the executive to give instructions to the courts or to cause the transfer of a judge if they do not comply with the instructions given, the conditions of pay of judges, and the ability of the executive to exert influence over the courts.
The Court noted that the guarantees of independence also include the legal status of the judge and the court. A judge cannot, by virtue of the duties they perform, be classified as a civil servant. The guarantees of independence do not prevent a judge from avoiding the proper performance of their duties and from neglecting to deal with cases. The principle of the independence of the judge and of the judiciary must not be compromised when the procedures for the appointment, promotion, transfer or dismissal of judges are determined. The procedure for the appointment of judges must not undermine the independence of the judiciary and the balance of powers of the State as laid down by the Constitution. The Court held that, in the light of the constitutional principle of the independence of the judge and the judiciary, the power of the Minister of Justice to appoint the deputy presidents and the presidents of the divisions of the courts concerned gives rise to the possibility of interference by an executive official in the appointment of judicial officials and, consequently, in the functioning of the courts. The Court held that the contested provisions of the Law are unconstitutional.
The Court considered that the delegation of the decision on the internal organisation of the court's activities to the Minister of Justice violated the independence of the judiciary and therefore held that the contested provisions were contrary to the Constitution. The Constitution provides that the President is to be advised on the appointment of judges by a special statutory judicial body, and that the Minister of Justice is not to make the appointment of judges. The Court therefore holds that the contested provisions of the Law, which provide for a recommendation by the Minister of Justice for the appointment of judges, are contrary to the Constitution.
Since the judiciary is not under the authority of the Minister of Justice, the Minister of Justice cannot be empowered to participate in the establishment of the Court of Honour of Judges, otherwise the concept of the Court of Honour of Judges as an institution of self-government and self-regulation of the judiciary would be negated. Therefore, the contested provision of the Law , which provides for the nomination of judges to the Court of Honour by the Minister of Justice, is contrary to the Constitution.
The Court stated that the right of the Minister of Justice to bring disciplinary proceedings against the presidents of courts, their deputies, heads of divisions and other judges, and the right of the Minister of Justice to suspend a judge who is the subject of a disciplinary case, create legal preconditions for the executive to influence the functioning of the courts. Such an assessment of the contested provisions of the Law does not invalidate the power of the legislator to determine the power of the Minister of Justice to initiate disciplinary proceedings against a judge. The Court therefore held that the contested provisions of the Law are unconstitutional.
The Court stated that the legal regulation, according to which financial allocations to specific courts are made by executive authorities or officials, is incompatible with the principles of separation of powers between the executive and the judiciary, the autonomy of these powers and their mutual independence, as laid down in the Constitution. The Court held that the contested provision of the Law, which establishes the competence of the Minister of Justice to organise the financial provisioning of the courts, is contrary to the Constitution.
The Court noted that the contested provisions of the Law, which establish the powers of the Parliament Committee on Law and Order in the appointment of the Prosecutor General, do not contradict the Constitution. Although the Court noted those functions are unusual for the Committee to have.
The Court stated that improving the qualifications of judges is an important prerequisite for the proper functioning of the courts. The Ministry of Justice may be assigned by law the function of enabling judges to improve their qualifications and may therefore be given the powers necessary to organise the continuous training of judges. The Court therefore held that the contested provisions of the Law, which provide that the Ministry organises the training of judges and that the Minister of Justice determines the mandatory forms of professional development for judges, are not contrary to the Constitution. The Court also held that the contested provisions of the Law, which provide for the power of the Minister of Justice to appoint the members of the Judicial Examination Commission and the Chairman of that Commission, as well as the provisions setting out the powers of the Minister of Justice in the formation of the Judicial Council, are not contrary to the Constitution.
The contested provision of the Law assigns certain functions to the Judicial Department to ensure proper working conditions for courts. The Court held that the mere fact that the institution is attached to the Ministry of Justice does not constitute interference with the judiciary.