2016 Global Review of Constitutional Law

IV. 2. Freedom of Expression of Judges and
Their Political Activities (case no. I. ÚS
2617/15 of 5. 9. 2016)
The applicant is a judge. He owns a cottage
in a little village. There were municipal elections,
and he entered the pre-election campaign.
He personally made and distributed
leaflets describing his personal view on the
elections, the political parties taking part in
them, and their individual candidates. After
the elections, he wrote an article in a local
magazine to address the election results and
possible coalition alternatives. He also speculated
who could become the village’s mayor.
The President of the Prague Municipal
Court, where the applicant served as a judge,
filed a disciplinary action against him. And
the Disciplinary Chamber of the Supreme
Administrative Court found that he had endangered
judicial dignity and abused his
judicial position to pursue his private interests.
But the Disciplinary Chamber did not
impose any disciplinary sanction.
The applicant filed a constitutional complaint
against this decision. He argued that his freedom
of expression had been breached. The
Court made it clear that judges do enjoy the
freedom of expression, but it referred to the
case-law of ECtHR to stress that judges have
special duties of loyalty and discretion. They
are necessary prerequisites for the proper
and effective functioning of the independent
and impartial judiciary which enjoys public
trust.
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The Court observed that the duty of discretion
is important because of our historical
experience with the communist regime. It is
vital for the judges to stay as far away from
the political competition as possible. Judges
should comment on politics with restraint. It
is always necessary to determine whether the
judge’s expression contradicted the values of
a democratic legal order. Or whether it violated
the public trust in the independence
and impartiality of the judiciary. Judges must
abide by these rules even in private life. But
specific circumstances of their expression
matter. One needs to be stricter if a judge
specifically points out that he or she is a
judge. The same applies if the expression is
made to a group of people who know that the
person talking to them is a judge. On the other
hand, expressions of judges concerning
administration and organization of the judiciary
enjoy a high level of protection. In this
particular case, the Court concluded that the
applicant failed to observe his duty of discretion.
In the leaflets, he explicitly stated that
he was a judge and specifically supported a
political party. He strongly entered the public
debate by publishing an article in local
media which was linked to his judicial position.
Therefore, he actively, openly, and excessively
entered the political competition.
The Court considered that wrong. It found
no violation of the applicant’s freedom of
expression.
IV. 3. Admission of Legal Trainees with
Foreign Legal Education to the Bar (case
no. II. ÚS 443/16 of 25. 10. 2016)
The applicant obtained his law degree from
Jagiellonian University in Krakow. But he
wanted to practice law in the Czech Republic.
He requested the Czech Bar Association
(hereinafter “CBA”) to register him in
the register of legal trainees. But the CBA
declined to do so. Czech law provides that
graduates of foreign law schools may be registered
if 1) their law degree is recognized
as equivalent to the Czech one by the Ministry
of Education, and 2) the contents and the
scope of their law degree corresponds to a
Czech law degree. In the CBA’s view, the applicant
did not satisfy the second condition,
because he only knew Polish law.
The applicant sued CBA. He requested the
Court to order CBA to register him. But even
the ordinary courts thought that he had no
right to be registered. Courts did not agree
with the applicant that his right to be admitted
to the Czech Bar results from EU law. They
argued that the case-law of the Court of Justice
of the EU (hereinafter “ECJ”) provides
member states with a large room to maneuver
in recognition of foreign law degrees.
The applicant filed a constitutional complaint.
The Court ruled in his favor. It found
a violation of the freedom to choose an occupation.
It is not only theoretical knowledge
of the law—law on the books—that counts.
Lawyers also need to possess practical experience
and skills. In the Court’s interpretation
of the ECJ’s case-law, domestic authorities
should not take account of only the
diplomas or the certificates of one’s education
they should also consider their practical
experience. In addition, the Court observed
that Jagiellonian is the no. 1 law school in
Poland. And generally, Polish legal education,
including the development of clinical
legal education there, serves as a “golden
standard” for legal education in Europe.
The Court found the perspective of CBA
to be too narrow. Despite not having been
formally admitted to the Czech Bar, the applicant
had practiced law for many years.
His law degree was a high-quality one. The
Court added that it was the business of a legal
trainee’s supervisor, whom she hires as
a trainee. It is the Bar exam where a trainee
must prove his knowledge and skills. Therefore
it was not proportionate to reject the applicant’s
registration. The Court found that
the rejection did not meet the criterion of necessity
as the second stage of proportionality
assessment. There was one option which
would fulfill the aim pursued by the CBA
(safeguarding the quality of legal services),
and at the same time, it would be less restrictive
to the applicant’s right: to register him
and let him practice under the supervision of
an attorney-trainer, who would be responsible
for everything the trainee does.
IV. 4. The Right to Privacy and Access to
Information in Communist Secret Service
Archives (case no. Pl. ÚS 3/14 of 20. 12.
2016)
It is an important part of the transition to
democracy to allow the public access to the
documents produced by law enforcement of
the former totalitarian regime. In the Czech
Republic, this access is granted by Act on
Archives (hereinafter “Archive Law”). It
provides that, unlike other archive documents,
the access to archives of totalitarian
police cannot be prevented by the people
whose personal data are contained in those
materials. One such person sued the Czech
Republic for compensation of immaterial
harm caused by granting access to archive
materials to a journalist. The case arrived
before the Supreme Court, which came to a
conclusion that the relevant provision of Archive
Law is a disproportionate limitation to
privacy. And it referred the case to the Court.