The Constitutional Court is supposed to be the last instance for the protection of fundamental rights. The rulings are final, no one will review them. This makes the question all the more urgent: what if the Constitutional Court gets it wrong?
The Constitutional Court is supposed to be the last instance for the protection of fundamental rights. The rulings are final, no one will review them. This makes the question all the more urgent: what if the Constitutional Court gets it wrong?
A flawed ruling – a decision that contradicts constitutional principles or elementary legal logic – threatens not only the individual, but also confidence in the rule of law. If the last defender of constitutionalism fails, there is no one left to correct the injustice. That is why criticism of excesses must be part of the public debate.
An example of this is the ruling in Case No IV.ÚS 2404/23 of 27 November 2024, which dismissed a complaint against the decisions of the general courts, even though the complainant claimed that there had been an interference with the right to a lawful judge, judicial protection and equality of arms.
The judgment contains the following conclusions:
The most serious defect is the fact that the Chamber departed from its own case-law without referring the case to the full court pursuant to Section 23 of the Constitutional Court Act. This mechanism is intended to prevent arbitrary deviations and to ensure uniformity of decision-making practice.
When the Chamber bypassed it, it ruled with an incorrect composition – and thus interfered with the parties’ right to a lawful judge. Worse still, the decision contains no explanation as to why the question was not referred to the full court. This is not a detail, but a fundamental procedural defect: without reasons, the predictability and consistency of the case-law disappears.
The result is that the complaint was not decided by the body designated for that purpose, but by a Chamber which arbitrarily usurped the powers of the plenary. The legitimacy of the entire review is thus fundamentally undermined.
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The Constitutional Court has long commented on the principle of the lawful judge and the question of his or her disqualification for bias. According to settled case law, this is an exceptional procedure, justified only by serious and concrete facts. The courts’ work schedules are intended to serve as a guarantee against arbitrariness and manipulation of the allocation of cases.
Earlier decisions of the Constitutional Court have defined a twofold test of impartiality [1] – subjective (the judge’s personal beliefs) and objective (circumstances giving rise to legitimate external doubts). It is the objective aspect that is decisive: there must be verifiable and sufficiently intense reasons for the exclusion of a judge that could realistically undermine public confidence in judicial decision-making [2]. Mere contact between a judge and a party or his representative is not sufficient – the nature and seriousness of the relationship must be proven.
However, in the contested judgment the Constitutional Court departed from this line. It considered the mere subjective communication by the judge of an earlier, more general conversation with the counsel for one of the parties to be a ground of bias, without ascertaining the content, intensity of the relationship or taking the proposed evidence. He thus refused to apply the criteria of “prima facie” and extraordinary grounds and contented himself with the hypothetical possibility of influence.
This approach effectively opens the way to circumventing the working timetable: a judge can disqualify himself by simply announcing his exclusion, without giving specific reasons. If we accept that any general information is sufficient, there is room for purposeful redistribution of cases and selective choice of judges. This is particularly worrying in a situation where, in the present case, a substitute who had close professional links with the defendant’s new lawyer came in shortly after the exclusion of the statutory judge.
Moreover, the CA supplemented the lack of evidence with its own speculation about the judge’s possible extra-procedural knowledge, while describing the specific evidence proposed as “superfluous”. Such a conclusion is problematic: only their conduct could have shown whether the contact was trivial and without effect on the case, or whether it was a purposeful act aimed at circumventing the work schedule. According to the Charter (Article 36(1)), a party has the right to adduce evidence and the court is obliged to deal with it properly. Therefore, dismissal without substantive reasons cannot be considered an otherwise permissible procedural economy – it is a constitutionally unacceptable omission of evidence [3]. Therefore, a dismissal without substantive justification is not a procedural economy, but a constitutionally unacceptable omission of evidence.
In its recent ruling, the Constitutional Court demonstrated a striking inconsistency. Two judges in the same case – and two completely different approaches to the question of their possible bias.
While the “lawful” judge was excluded by the Constitutional Court because of an unconfirmed debate with one party’s counsel, the replacement judge overlooked the much stronger and moreover documented ties to the opposing party’s new counsel. The judge was a former vice-president, a long-time colleague and co-author of scholarly publications. They had lectured together, collaborated, and one had supervised the other’s rigorous thesis. Nevertheless, the Constitutional Court found that there was no reason to doubt their impartiality.
Such a “double standard” directly contradicts the principle of equality before the law. The European Court of Human Rights has repeatedly stressed that the criteria for excluding a judge must be applied consistently. If mere suspicion suffices, it cannot be justified to overlook obviously closer and demonstrable relationships.
In doing so, the Supreme Court downplayed the whole issue by claiming that it was merely a normal collegial relationship between judges. But the lawyer in question was no longer a judge – and that is precisely why a “collegial relationship” becomes a relationship with a former superior, where the risk of influence or loyalty logically persists. Nevertheless, the Constitutional Court not only failed to take into account its own previous case law, but in fact legitimised the Supreme Court’s error.
The problem lies not only in the individual links, but in their accumulation. The Court considered them in isolation, not in the aggregate. If they were evaluated together, the image of the impartiality of the substitute judge would dissolve.
In its ruling, the Constitutional Court found itself in a role it denies itself – it assessed the facts in detail and supplemented them with its own speculations, instead of merely examining constitutionality. In doing so, it itself acknowledged the serious shortcomings of the lower courts:
Nevertheless, the CA concluded that the overall review was “sufficient” because the Supreme Court had partially addressed the matter. Such a conclusion effectively legitimises the sloppy work of the Regional and High Courts and reduces the fundamental errors to mere “subsidiary” errors.
Moreover, the CA refused to address the key evidence on the issue of the removal of the case from the original judge, thus leaving crucial circumstances unresolved. Confidence is further undermined by the fact that the action for miscarriage of justice was decided by the same court, but by a different judge – i.e. a colleague and former associate of opposing counsel. This raises questions as to whether the assignment of cases to the Regional Court in Ostrava really ensures impartiality.
While the Constitutional Court correctly described that the case was first brought before the District Court in Vsetín and only after six months was it transferred to Ostrava, it did not address the timing or the change of lawyers. The defendant’s temporary counsel disappeared shortly after the statutory judge was removed and was replaced by P. Z., a former vice-president of the Ostrava court and former supervisor of the new judge.
It is not without significance that the assignment of cases at the Regional Court in Ostrava has long been criticised by the Public Defender of Rights. The president of the court herself has also faced harsh criticism from the Constitutional Court, which has described her practice as “insolvency engineering”and warned that it is an environment with features of clientelism or even corruption. Nevertheless, the Constitutional Court did not draw any conclusions in this particular case [4].
At the same time, the work schedule guaranteed that the case would be assigned to this particular “substitute” judge – a colleague and co-author of the defendant’s lawyer’s publications. The mechanism which was supposed to prevent arbitrariness thus turned into a tool for targeted allocation.
The fears of a corrupt environment are compounded by the fact that it was P.Z. himself – now the defendant’s lawyer – who admitted in an interview with iDnes that “bribery is common in the courts“. He described how there is fierce competition among lawyers, where success depends on the reputation of being able to “arrange” a faster decision. And he added that it is virtually impossible to detect and punish such bids: ‘Even if I tape-recorded the conversations, the likelihood of success would be very small‘ [5].
In the context of past scandals at the Ostrava court, resignations of judges and doubts about the way cases are assigned, it would be appropriate for the Constitutional Court to exercise a higher degree of caution. Instead, it upheld the decision, which does not dispel even the appearance that there was purposeful manipulation of the judge’s assignment.
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