What Czech Judges Can and Cannot Do? Practice of Judicial Disciplinary Authorities in the Czech Republic: Empirical Analyses of All Disciplinary Decisions between 2008 and 2014

Introduction

The discussion about professional responsibility of judges remains remarkably silent, as if it was an inappropriate conversational topic even among lawyers—at least in the Czech Republic. When it is discussed, the core of the debate concentrates on the question: whether it is possible to regulate the behaviour of judges? And if it is possible, is it beneficial to do so? Surprisingly, concrete cases of judicial misbehaviour do not aid in deepening the debate, but rather tend to make it even more superficial.

That is mainly caused by two interconnected reasons. First, the topic of professional responsibility draws limited attention from both legal practitioners and scholars. Fortunately, this situation is slowly improving. For example, three out of four Czech public law schools have established optional courses of professional legal ethics ³ in the last three years (namely, law faculties of the Charles University in Prague, the Masaryk University in Brno and the Palacký University in Olomouc). ⁴ Second, when the disciplinary responsibility of judges is discussed, the debate is too much shaped by journalists and their view of the issue, which concentrates mostly on publicly sensational failures of individual judges (half-naked female judge participating in a beauty contest, ⁵ a shoplifting judge, ⁶ etc.). Naturally, this kind of a debate brings us nowhere closer to understanding under what circumstances and whether at all Czech judges follow norms of their professional ethics. The aim of the article is to cast more light into the matter of professional judicial conduct in the Czech Republic based on the analysis of Czech disciplinary authority decisions. We believe that it may serve as a useful example, either good or bad, for other countries.

It is worth pointing out that the debate about professional liability of judges, sooner or later, turns into a debate on judicial accountability ⁷ or judicial independence. ⁸ As we have already stated earlier, the intention of this article is not to deal with the topic of professional judicial ethics in a theoretical way, but rather to provide the reader a concrete insight into the area of judicial discipline in the Czech Republic based on case analysis. Our conclusions may support theoretical approaches to the topic, or they may serve as an impulse to reformulate them according to our findings. ⁹ However, the aim of the article is to summarize and analyze available empirical data, not to reformulate theoretical approaches to judicial discipline. In this respect, we are limited not only by the format of the article but, more importantly, by serious terminological difficulties that appear in any debate on judicial accountability and which have been closely analyzed by David Kosař. ¹⁰ The author identifies in the debates on judicial accountability a conceptual confusion stemming from the fact that there is no consensus among experts on the content of the term and especially its scope. ¹¹ Under these circumstances, we therefore concentrate almost exclusively on the description of the outputs of the judicial discipline system rather than on their contextualization within the possible theoretical approaches. ¹²

The article is divided into six parts. In the first part, we introduce the reader to the Czech judiciary system; and in the second part, we briefly describe the Czech judicial disciplinary system, operating since 2008. The third, fourth and the fifth parts are devoted to the presentation of results of our own research regarding the analysis of judgements issued by the Czech disciplinary court on professional discipline of the judges. Using the collection of court’s decisions, we managed to gather all decisions issued in the last seven years. More specifically, in the third part, we deal with the cases in which judges were found guilty of professional misconduct, whereas in the fourth part, we analyze cases of acquittal. In order to provide the full picture, in the fifth part, we quickly present the cases in which the disciplinary proceedings were suspended. In the last part, we draw conclusions based on the cases presented in the previous sections of the article. As already mentioned, we believe that the data described, analyzed and interpreted in the article will enrich the discussion regarding professional conduct of judges, especially the issues of who are the judges and how ethically (in sense of disciplinary proceedings) they behave.

Czech Judiciary System in General

In this section, we briefly explain the basic facts and principles of the Czech judiciary. Its purpose is not to provide a detailed analysis of the functioning of the Czech judicial system, but rather to offer the reader a necessary context to the following sections of the article.

The judicial system in the Czech Republic consists of 86 district courts, eight circuit courts, two high courts (jurisdiction separation is based on a geographical basis and there are approximately 150 high courts judges) and the Supreme Court and the Supreme Administrative Court have nearly 70 and 30 judges respectively, both with geographically unlimited jurisdiction. ¹³ Judicial review is carried out by the Constitutional Court, which consists of 15 judges.

To be appointed as a judge, a candidate has to be a respectable ¹⁴ Czech citizen who has graduated from a law school, ¹⁵ has full legal capacity, has passed the professional judicial exam and the experience and moral qualities provide the guarantee that the judge will serve in the office properly. On the day of his appointment, he has to be at least 30 years of age, agree to being appointed as a judge and being allocated to a particular court. ¹⁶ The office of a judge is incompatible with the office of the President, Member of Parliament or any other position in public administration. ¹⁷

Judges are appointed by the President of the Czech Republic without any time limitation. Appointment of a judge requires an approval by the government. ¹⁸ However, the process preceding the appointment is not expressly defined by law and so other actors influence it, especially the Ministry of Justice and the presidents of regional courts, who cooperate on creation of list of possible candidates. It is therefore no surprise that above-described method of judicial nominations has been often criticized for its lack of transparency. ¹⁹

As mentioned, the judge is appointed to the position without time limit, which is seen as one of the guarantees of independence as a judge. This does not mean, however, that Czech judges would have their position guaranteed regardless of other circumstances. The law, therefore, specifies the reasons for termination of the tenure. First of all, a judge becomes incompetent once he fails to meet one of the above-described criteria necessary for the appointment, namely, is convicted of an offence; loses his legal capacity or Czech citizenship; or dies or has been pronounced dead. Other reasons include resignation, reaching the age of 70 years or the loss of eligibility to perform the judicial profession. ²⁰ Last but not least, a judge may be awarded a sentence of removal from the office in a disciplinary procedure. ²¹

The Czech Republic has approximately 3,000 judges, while slightly more than half of whom are women. ²²

Czech Judicial Disciplinary System

As we have stated earlier, we have analyzed cases of judicial professional misconduct tried in the last seven years. The seven-year boundary was not chosen arbitrarily, but was chosen because a new disciplinary system was introduced in the Czech Republic effective October 2008. The most important change consisted of diversifying the panel responsible for dealing with professional misconduct of the judges. Prior to the 2008 change, judges were disciplined exclusively by other judges, which was a practice considered by many as inappropriate and insufficient. To prevent speculations that judges tend to be too lenient in disciplining other judges, the power to discipline was moved to the specialized chamber of the Czech Supreme Administrative Court, which consists of three judges and three members of other legal professions—one public prosecutor, one lawyer (member of the Czech Bar Association) and one other legal professional (typically a legal scholar). ²³

The explanatory report for the Act No. 314/2008 Sb., which introduced the change in composition of the disciplinary body, provided following reasons: ‘Non-judicial members of the chamber could bring into consideration points of view that differ from those of the judges serving on the panel. They are also expected to judge without any bias and in a more complex way.’ For a decision to be made, at least four members of the panel have to vote in its favour. Therefore, although the reason behind the change of the composition of the panel was to make it more independent of the judiciary, the judges still possess the power to veto any decision since they hold half of the seats in the disciplinary panel. ²⁴

The disciplinary proceedings may be initiated only by a motion of the president of the home court of the tried judge, presidents of higher courts, the Minister of Justice of the Czech Republic and the President of the Czech Republic. ²⁵ When looking through the motions made after 2008, about three-quarters of them were made by presidents of the home court of the tried judges; while the remaining motions were made by presidents of higher courts and the Minister of Justice of the Czech Republic. Only one motion was made by the ombudsman and none by the President of the Czech Republic.

The disciplinary misconduct of judges is by law defined rather broadly, since it includes every intentional breach of a judicial duty stated by law as well as intentional conduct or action by which a judge infringes dignity of the judicial function or threatens the trust in the independent, impartial, professional and fair trial by courts. ²⁶ Once the tried judge is found guilty of breaking the duties of professional conduct, she may be punished by a reprimand, temporary salary reduction or removal from the office. ²⁷ There is no appeal against the decision of the disciplinary court. ²⁸

Unlike in some other countries, there exists no compulsory judicial code of conduct in the Czech Republic. The basic demands on professional conduct of the judges derive from the law, namely, the Act No. 6/2002 Sb., on courts and judges. There does exist, however, a code of professional judicial conduct issued by the Union of Judges. It is based on the Bangalore Principles of Judicial Conduct of 2002, which was adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, in November 2002. ²⁹ The Czech code is organized around the same values as the Bangalore Principles, which are independence, impartiality, integrity, propriety, equality, competence and diligence. The Union of Judges is, however, only a voluntary organization with a non-compulsory membership. The adopted code thus serves more as guidelines for members of the union, not an enforceable internal regulation of the judges. ³⁰

Judgement Analysis—Judicial Misconduct

The aim of this section is to provide an analysis of those cases tried by the judicial disciplinary chamber in which the judicial behaviour was found to breach the norms of their professional conduct. The analysis in this, as well as two following parts of the article, is based on all the judgements issued by the specialized chamber of the Czech Supreme Administrative Court since 2008, which serves as the disciplinary court in the Czech Republic. From 1 October 2008, when the new regulation entered into force, till 16 June 2014, which is the last date in our analysis, there were altogether issued 131 judgements.

For this part, we will concentrate our attention on 63 cases, in which at least one part of the judgement found the tried judge guilty of breaching the norms of professional judicial conduct. ³¹ Based on these judgements, we can understand what conduct is considered unacceptable by the disciplinary court.

According to similar features of individual cases, we identified five distinct categories among the judgements, namely, (a) time-related misconduct; (b) case file manipulation; (c) unauthorized activity of a judge; (d) court administration misconduct; and (e) other misconduct. We will describe the categories and provide concrete examples that fall within them in the following text. Because the cases in which judges were found responsible for a breach of their professional conduct provide the richest source of information on how the judges should and should not behave, we will analyze the above-mentioned categories and individual cases in more details than cases falling into other areas.

In order to properly understand the analysis, it is important to bear in mind that within one concrete decision, there was, in some cases, a necessity to decide on the more concrete acts of a judge. The corresponding judgement, therefore, contains either a conviction for more behaviour of a different type or conviction for more behaviour of a similar type. In our analysis, when in one case there were two convictions for similar behaviour (such as an inactive judge, when the first condemning statement regarded the failure to comply with the statutory deadline for making a decision and the second concerned a statement condemning an unjustified inaction regarding the case file), we counted such conduct as one. However, when in one case there occurred two dissimilar acts (such as delays and failure to respect the legal opinion of the superior court), we counted such judgements as two (or more, when there were even more acts of a different nature). We believe that this procedure, which eliminates repetitive occurrence of similar misconducts in the same case and at the same time allows a single case to fall into more categories of judicial misconduct, will provide us with a clearer picture of types of judicial misconduct. ³² In the following text, the word ‘case’ thus refers to a single court file, whereas the phrase ‘relevant case’ denotes generically different behaviour within one case. Therefore, we deal with 63 cases, but 67 relevant cases in this section.

The first category of judicial misconduct, which we called time-related misconduct, designates those instances of judicial malpractice which are linked to the lapse of time. Typical examples of this behaviour are delays in issuing the judgement, trial inactivity (passivity of a judge, which results in delays in the proceedings) or undue trial activity resulting in delays of the case. Undue trial activity included examples such as that of a judge who is active in the proceedings, but in a wrong way the judge takes steps which are of no use for the case and therefore cause unnecessary delays. In our view, time-related misconducts are only such malpractice, which is not caused intentionally. We identified this type of professional misconduct in 51 relevant cases, which corresponds to approximately 76 per cent of all the relevant cases in which the judges were found guilty. ³³

The second category, which we called manipulation with the case file, describes the type of a conduct by which a judge wanted to cover previous mistakes. Because it appeared only in six relevant cases (approximately 9 per cent of all relevant cases in which a judge was found guilty), we are able to briefly mention all of them. First two were quite similar to each other, inasmuch as in the first case, the judge declared a judgement in the court room, but later included in the written judgement (and the record on trial proceedings) judgement on costs of proceedings. In the second case, the judge, in a similar situation, included in the written judgement as well as judgement on damages. In the third case, a judge based judgement reasoning on evidence which was acquired only after the judgement was declared. Another instance includes a judge who, contrary to the judgement declared in the courtroom, included in the written judgement information relevant to the case (such as a decision on which the judge based the decision or dates in which cited decisions were issued). Another example falling into this category was wrongly recorded proceedings of a public sale—the judge recorded that the auctioneer did not want to auction and did not bid despite the fact that the auctioneer wanted to. The last case file manipulation we identified was the situation when a panel case was decided by a professional judge alone without lay judges, but the judge nevertheless included their names in the written court decision. ³⁴

Moving on to the third group of cases, there are cases in which judges took action despite the fact that they had no authority to do so. This misconduct appeared only in two relevant cases (approximately 3 per cent of all relevant cases in which a judge was found guilty). In the first instance, the judge was active in a case which was required to be decided by a specialized labour law chamber, which the judge failed to realize. In the second case, a judge ignored the fact that the case had been—because the accused moved somewhere else—transferred to another district judge. ³⁵

The fourth group of cases pertaining to judicial wrongdoing, which we called the ‘court administration misconduct’, contains breaches of conduct related to court administration. These breaches could be committed only by court administrators (who are senior judges in the Czech Republic) and not by ‘ordinary’ judges. It appeared in two relevant cases (which makes about 3 per cent of all relevant cases in which a judge was found guilty). In the first relevant case, the president of the court unlawfully reduced salary to a judge of her court. The president tried thus to punish the judge for her work absence of about four hours in one working month, even though there is no legal basis for such a type of punishment. The Czech legal order reserves the disciplinary punishment of salary reduction only to the disciplinary court, not the president of the court herself. The second relevant case regards the judicial work schedules, which are administrated by the presidents and vice presidents of courts and through which the cases are distributed to particular judges. In our relevant case, the vice president of the court, contrary to the work schedule, reserved self the right to work only on preselected cases (the motive was as simple as to make the job easier). ³⁶

All other decisions (six relevant cases, 9 per cent of all relevant cases in which a judge was found guilty) failed to share a common feature, thus we classified them as other misconducts. Misconducts truly vary. There is an error in adoption proceedings, which resulted in informing the biological mother about the residence of adoptive parents. Another example includes a judge who disrespected a binding decision of a higher court or a biased mother-judge, who excluded herself from the case for being biased since one party to the case was her son, but she did so only after she took steps in the proceedings. In another case, a judge attempted to influence proceedings of a colleague by repetitively questioning the work of the colleague, suggesting concrete pieces of evidence to be taken in account, reminding the judge of public reputation of the tried person and misconduct on the police side and even constantly inspecting the case file. There is also a case of a judge who intentionally delayed passing of a decision in order to help the accused—normally, release of the accused depends on judicial decision and consent of the prosecuting attorney. In that case, the judge intentionally (that is the reason why we did not classify the case as time-related misconduct) caused a delay which resulted in not issuing the decision in time, for which the accused had to be released automatically by law (otherwise, the judge would have needed an approval of the prosecuting attorney, which the judge might not have received). The last case involved judicial incompetence of amnesty application—a judge ordered execution of the imprisonment sentence, although the convict had been previously pardoned by a presidential amnesty. ³⁷

Judgement Analysis—Analysis of Cases of Acquittal

While in the previous part of the article we concentrated on those cases in which judges were found guilty of acting unprofessionally, in this part of the article, we attempt to expand the picture of the Czech judiciary from the other side. We will describe and categorize those cases in which there were filed motions initiating judicial disciplinary proceedings, but—unlike in the previous group of cases—resulted in an acquittal. The sample of these cases remains the same (131 cases); in 48 of them, there was a statement of acquittal at least in one of the statements. However, also in this part, for the sake of precision, we use the term ‘relevant case’, which occurred 53 times. ³⁸

The law states a number of reasons for which an acquittal is applicable: the tried judge did not commit the disciplinary offence or it cannot be proven that the misconduct happened or that it was committed by the judge. Another reason for acquittal is that the act took place but was not considered misconduct. For our analysis, however, it is not of much use to simply track the reasons leading to acquittal, also because its wording depends mainly on the formulation of the disciplinary motion. Far more interesting is to look closely at the descriptions of the alleged misconducts and their relationship to illegality. ³⁹ It turned out that the disciplinary court in its decisions of acquittal basically distinguishes between two categories. In the first category, there are conducts in which the court for some reason found the breach of law, but concluded that it could not pass the verdict of guilty but that of the acquittal. We will call these conducts ‘allowed wrongful conducts’. The second category consists of such cases in which the court, during the disciplinary proceedings, found out that they did not breach the law. These cases will be referred to as ‘allowed conduct’.

Allowed wrongful conduct category can be further divided into three subcategories depending on how the disciplinary court argued for the acquittal. The first subcategory includes such offences which miss the fault of the judge. This kind of reasoning the court used exclusively in a number of cases relating to delays in the proceedings (there were six cases, which makes about 11 per cent of the acquittal-relevant cases). In the course of the disciplinary proceedings, the court concluded that although objectively there was a delay in the proceedings (a judge was inactive even for several years), the judge could not be prosecuted for it because the amount of workload she had to deal with was disproportionately large (it might amount up to hundreds of active case files). In these cases, there is thus missing the subjective component of the offence—the judge’s fault. ⁴⁰

In the second subcategory of the allowed wrongful conduct, the disciplinary court found subjective element of the offence, yet it did not pass the convicting judgement. The court argued that there had been a fault violation of the law, but it was a violation that did not achieve the required intensity to be classified as a disciplinary misconduct (the court argued in this way in 18 decisions, which corresponds to approximately 34 per cent of the acquittal-relevant cases). Also in this category appeared (in more than 50 per cent of the relevant cases) time-related conducts (conducts in which the judge contrary to law caused an inaction or delay). Here, however, were inactions or delays lasting a shorter period of time (typically couple of days), or were restricted to one file or couple of files. ⁴¹ This category also includes various inappropriate manifestations of the judge. For example, a judge was acquitted after making a couple of improper remarks during a public hearing, regarding the decision of a superior court, which gave the judge specific instructions on how to decide the case. More specifically, the judge said: ‘[n]ext time, I would refuse to behave like a fool…we will do something that has no basis in the law, and what is completely useless, but it will satisfy someone’s ego’. ⁴² Another example includes a Prague court judge, who asked a lawyer who did not come from Prague, why the lawyer’s client had chosen her when she does not come from Prague. ⁴³ The verdict of acquittal was also awarded to judges who committed minor procedural mistakes, such as, failing to grant an interpreter to a foreigner who spoke Czech but understood only to a limited extent ⁴⁴ or deciding unintentionally a panel case with a lay person whose mandate to sit on the panel had expired. ⁴⁵

The third subcategory involves acts by which the judges could have undermined the confidence in the professionalism of courts’ decisions. These appeared in six cases, which amount to 11 per cent of the relevant cases. The acts of judges were in contradiction with the existing law, but the reason was a procedural defect that resulted from improper discretion of a judge and improperly chosen procedure by the judges. An example may be a judgement of the judge who copied a part of the judgement from a similar case and failed to adjust it to her case. Therefore, the judgement failed to include some crucial details of the case she was trying. The disciplinary panel similarly assessed the conduct of a judge who, in the judgement, provided insufficient grounds for the conclusions or who took the accused into the custody although the reasons for awarding it were insufficient. ⁴⁶ In these cases, the disciplinary court concluded that although they were examples of misconduct of judges, their remedy should be awarded by the appellate court, not the disciplinary court, as the considered conduct was ‘only’ the question of making a wrong legal opinion. Arriving to a wrong legal opinion cannot, according to the disciplinary court, be considered as disciplinary misconduct because that would infringe the judicial independence.

The decisions of the disciplinary court cannot, however, be interpreted in the way that the judge could in the framework of her discretion decide in whatever way, without being threatened by a disciplinary sanction. The disciplinary court made it clear that it only protects such mistakes in the legal opinion that cannot be described as an excess. The court stated to this matter the following:

A general conclusion can be made that an illegal action or an issuance of an unlawful decision justified by another legal opinion may constitute grounds for initiating disciplinary proceedings with the competent judge in principle only if it is evident from the circumstances of the case that either (1) an unambiguous wording of the applied legal norm was violated, or (2) the court has not respected revocation decision of the superior court in the particular case … or (3) there exists unified and stable case law of supreme courts, which the judge refused to accept without supporting his legal view by comprehensive, rational and transparent competing arguments. ⁴⁷

Leaving the category of allowed wrongful conduct, we may now move to the category of allowed conduct. As we explained earlier, it includes conducts which resulted in filing a motion to the disciplinary court, but the court did not find the element of illegality. Because we identified 23 of these instances (44 per cent of the acquittal-relevant cases), we will not be able to describe each of them separately, but will present the most typical ones instead. The disciplinary panel acquitted a judge who on her way home stopped in a local shop, where a thief stole several case files that the judge carried with her for home study. The reason for acquittal was the fact that the judge did not leave the files in her car, but carried them all the time in her briefcase. The thief managed to steal the briefcase only when the judge was unloading items from the shopping cart into the trunk of the car (the briefcase was put in the trunk of the car, but the thief managed to steal it from there in the moment the judge was taking items from the cart). The disciplinary court concluded that the trial judge exercised sufficient caution because the judge could not have expected that the thief could steal the briefcase in a couple of seconds necessary to turn from the trunk of the car to the shopping cart and back (the court thus, in fact, almost praised the dexterity of the thief). ⁴⁸

Also, in this category, we found time-related conducts. A judge was acquitted of the disciplinary charges raised by the president of his court, who believed that the judge caused several unnecessary delays. The judge, for instance, adjourned several court sessions only to hear closing arguments or deliver the judgement, or repeatedly extended the deadline for the parties to reach out-of-court settlement of the case. The disciplinary court stated that although the trying judge behaved in a rather non-standard way, she did not violate the law, as a mere non-standard behaviour is not sufficient, since a judge may, in exercising the office, choose from number of different paths. The disciplinary court stated that:

… each judge has in most cases the choice of several possible ways to manage the procedure that can be later evaluated as more or less appropriate. Similarly are the activities of a judge regulated [by law], according to which judges are obliged to interpret the law according to their best knowledge and conscience. The same provisions of … [the act] prohibits to disturb or threaten the independence of judges. In accordance with the cited provisions, we may identify a judicial misconduct in handling the case only then, when the action of the judge clearly goes beyond the boundary of the law. ⁴⁹

Similarly, the disciplinary court acquitted a judge whose management of the proceedings could hypothetically cause delays but, in reality, it did not breach any interest protected by law. ⁵⁰

Judgement Analysis—Suspension of the Proceedings

So far, we have dealt with the cases which resulted either in conviction of the judge or acquittal. To finish the overview of the Czech judicial disciplinary practice, we will now turn to cases in which the procedure was suspended. There exist several reasons of suspension: the motion to the disciplinary court is issued too late; it is withdrawn; the position of the judge ceases to exist (the judge resigns, dies, retires or has been found incapable for the office in a specialized proceedings ⁵¹ ); or the judge has already been punished for the misconduct. ⁵²

It is true that the decisions on suspension of the proceedings will not help us in determining the conduct which the disciplinary court considers banned or allowed, because such decisions do not normally contain any assessment of the conduct of the tried judge (often, they do not even contain a description of such conduct) and are limited to the statement of grounds for the suspension of the proceedings. Yet, it would be wrong to regard these decisions as uninteresting for our goal. The reasons for a suspension of the disciplinary procedure nicely supplement the picture of the judicial disciplinary procedure and therefore will be briefly addressed. Since it is, however, not the main focus of the article and since in some cases it is impossible to identify circumstances leading to the suspension of the case (or to distinguish one reason from the other), ⁵³ we will mention only general characteristics or tendencies resulting from our analysis of these cases.

The most common reason for the suspension of procedure is withdrawal of the disciplinary prosecutor as well as resignation of a judge. Both occur in approximately 20 relevant cases from a total of about 60. Among other reasons, the most common reason for a withdrawal is the fact that the tried judge has, since the time of the filing of a disciplinary motion, improved their behaviour. ⁵⁴ As regards resignations, in a number of decisions on suspension of the proceedings, the disciplinary court states only the fact that the judge has resigned. ⁵⁵ It is therefore impossible to see a whole range of reasons leading to a resignation. From a couple of more telling decisions, we nevertheless were able to identify that one of the important reasons for filing the disciplinary motions were significant delays (seven relevant cases, typically the delays were amounting to years). ⁵⁶ We also found a case where a judge took part and subsequently won an auction of the estate that was auctioned in the context of insolvency proceedings, in which the judge had she herself presided previously. ⁵⁷

Judgement Analysis—Conclusions

The first impression from the analysis of all disciplinary court decisions in the Czech Republic after 2008 is that the Czech judges are following the legal mandate, (almost) angels who do not have any serious disciplinary charges. In seven years, out of approximately 3,000 Czech judges, only 67 misconducts were punished by the disciplinary court. They were committed by less than 67 judges, because some of the judges—though not many—appeared before the disciplinary panel repeatedly. The impression is furthermore deepened by the fact that in the examined period of seven years, only one judge was removed from the office. The grounds for this extremely severe punishment were repeated and prolonged delays and inaction in proceedings. Among all the other cases, the most common punishment was a temporary salary reduction, which took place in 39 cases. In 15 cases, the judges were reprimanded and in the remaining eight cases, the disciplinary court found the judges guilty, but decided not to award any punishment. ⁵⁸

One of the explanations for the findings, apart from the angelic substance of Czech judges, is the rather modest activity of the disciplinary panel. Based on the analyzed cases, it seems evident that judges are found guilty of disciplinary misconduct only in clear breaches of the judicial disciplinary duties. From these facts and from the texts of the analyzed decisions, we clearly see that the disciplinary court considers disciplinary proceedings as ultima ratio, which should be used only in clear cases. One of the most pertinent reasons for this approach is that a more active role of the disciplinary court might cause interference with the independence and professional integrity of the judges. In one of the decisions, the disciplinary court ruled that:

… the disciplinary proceedings is supposed to be ultima ratio because every disciplinary proceedings—even one which terminates in an acquittal—means for the prosecuted judge a remarkably uncomfortable situation both in his work environment and (primarily) in her relation to the public, which is highly sensitive to these situations…. In other words, the disciplinary proceedings are capable to challenge seriousness, authority and confidence in decisions of the prosecuted judge. ⁵⁹

The tendency not to be too active in sentencing for professional misconducts may also be observed in the category of cases in which the disciplinary court found judicial misconduct, but did not hold them guilty (and thus awarded no punishment). We certainly understand that such a decision of the disciplinary court makes sense in cases where the violation of the law was not caused by the tried judge. Similarly, we agree with the disciplinary panel that this is a good response to charges for a wrong legal opinion of the judge. The cases that raise questions are however those that we grouped in the subcategory of the ‘allowed wrongful conduct’, where the law was undoubtedly breached, but the disciplinary court stated that the breach did not surpass certain intensity necessary for awarding the punishment. Although we understand the intention of the court, we feel it is necessary to point out that such an approach sends a rather unsatisfactory message to the judiciary, namely, that from time to time, the court is willing to tolerate marginal violations of the law. Yet, there are strong reasons for not doing so. Judges exercising the powers and duties of their office are by law protected far more than members of other professions. The disciplinary proceedings are basically the only legal means by which errors in the execution of the office might be spotlighted. When the disciplinary panel finds itself hesitant to punish these violations of the law, it appears to be unsatisfactory, especially when we compare it with other areas of the judicial decision-making process, such as civil or criminal proceedings, where such an approach is unimaginable. ⁶⁰ We therefore support such an approach of the disciplinary court, which we identified in some minor violations of the law: the court finds the judge guilty, but refrains from meting out the punishment.

The first impression of the judges, who in our analysis appear almost as infallible, needs a further correction, especially in connection with the punishment of a removal from the office. We have stated earlier that within the last seven years, there was only one instance of removal of a judge from the office, which was a punishment for major delays. However, when we include the cases in which the judges voluntarily resigned from their office after the disciplinary proceedings were initiated against them, we reach the number of 20. This modification in reading the results of our analysis does not automatically turn judges into devils, but introduces, nevertheless, a different (and in our view, also more balanced and truthful) perspective: instead of one in seven years, the judiciary loses about three judges every year due to resignation in the course of disciplinary proceedings. ⁶¹

The analysis also highlighted an unfortunate practice of the disciplinary court, which does not publish all its decisions on a suspension of the proceedings with the same amount of information. This practice, unfortunately, spreads an impression that some cases might not be treated in the same way and supports the feeling of uncertainty. For example, a person watching the media (as well as the disciplinary proceedings) knows that a particular judge conducted a hearing of the court under the influence of alcohol, which would probably be considered as a misconduct leading to removal from the office. However, because reading of the disciplinary court decisions does not reveal any disciplinary decision in connection with alcohol (disciplinary court did not hear such a case), the person may legitimately assume that the judge must have resigned and the disciplinary procedure was therefore suspended. The problem, however, lies in the fact that an individual may only assume it. Since the decision on a suspension of the disciplinary proceedings does not reveal either the identity of the judge or what she was prosecuted for, there still exists a chance that the judge has not been tried at all.

In the third to fifth sections of the article, we introduced categories of cases which give us some answer to the question of what conducts the Czech judges cannot practise and which conducts are, on the other hand, considered professional. It is true that we were able to identify not only clear categories of cases but also individual cases failing to share a distinct category with other cases, which could be further analyzed in order to reveal more about the appropriate judicial conduct in the eyes of the disciplinary court. Nevertheless, the overall message of the disciplinary court is rather obvious. In the disciplinary proceedings, by far the most common cases were those dealing with delays in the proceedings. A majority of the disciplinary motions state the reason of delay or inactivity and a majority of disciplinary punishments were given for delays (including the only declared removal from the office). ⁶²

From the disciplinary court agenda, we see that the court is not a forum for various professional misconducts to be debated. It is a punitive body and is perceived as such by the public and the judges of regular courts. They do not wish to be summoned to the disciplinary court and the fact that their case was addressed by the disciplinary court renders a certain type of a stigma, even in cases which resulted in acquittal. We hope that the stigmatizing effect of the disciplinary court proceedings will gradually weaken; especially when it is only less than half of the cases tried by the court in which the judges were found guilty.

The failure of the disciplinary court to function as a body attracting and inspiring discussion about professional legal ethics is both unfortunate and understandable. The first and foremost role of the disciplinary court is to discipline, to set and enforce standards for the profession of the judges. It is understandable that hardly any judge is happy about being summoned to this body for his alleged professional misconduct. The other function of the court, which should inspire debate about the necessity, limits and application of concrete rules of professional judicial ethics, should nevertheless gain a more prominent role in the future.

As it has already been mentioned in one of the court’s decisions, the work of judges inevitably depends on the trust of the public, which provides them with a unique source of legitimacy. Without it, the judges are left to derive their legitimacy from the other two branches of the state, the legislature and especially the executive. This situation is, however, not desirable either for the judges or the public. Therefore, the judges need to pay close attention to the level of the trust people hold in them. The internal disciplinary mechanism, which allows the judiciary to self-discipline itself, is a powerful tool in this regard. It helps to spread out the message that the judges care about the quality of their colleagues and that they are willing to discuss and sometimes even take actions to self-regulate their profession.

The initiative of a voluntary Union of the Judges, which initiates discussions and workshops regarding rules of professional judicial ethics, is therefore an important, although a rather basic, step in the right direction. ⁶³ We have also mentioned at the beginning of the article that all of the Czech public law schools opened for their students voluntary courses devoted to professional responsibility of members of legal professions. ⁶⁴ We cannot but hope that it will help to spread the impression that legal ethics is not to be feared, but that it should be seen as a regular part of an everyday life of a legal professional and that it should be discussed on all levels—at law schools, in legal offices, in meetings of the judges as well as in connection with proceedings of the disciplinary court. Since the rules of the professional ethics should be debated and acquired from the time of legal studies, through the years of preparation for entering one of the legal professions and in exercising the legal profession, it is hardly possible for this article to provide a judge with clear instructions on how to behave to avoid disciplinary proceedings. We have, nevertheless, identified in the previous paragraphs a number of evident lessons from the activity of the disciplinary court. This should help any judge in doubt to clarify at least some of the issues she might be struggling with.

However, since the disciplinary court acts only based on motions from limited number of members of the judiciary and the executive, there are still many important issues that have not been decided upon—at least since the time of the change in the composition of the disciplinary court in 2008. To what extent are the judges free to join various societies and institutions (including political parties)? ⁶⁵ Where lie the borders between a judge helpfully cooperating with the media to help the journalists and the public to understand her cases, and a judge using the media to gain public support for her decision, often even against the opinion of some of her colleagues? ⁶⁶ These and many other questions are left for consideration of the judges and also the public. We hope that our article will become one of the impulses for this debate.