| The Constitutional Issue of Independence of the Judiciary in the Czech Republic |
| Fascicolo 2010-4 |
| Scritto da Klíma Karel |
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Sommario 1. Introduction: the Historical Perspective. – 2. Separation of Powers in the Czech Constitution. – 3. Fundamental Constitutional Principles of the Independence of the Judiciary in the Czech Constitution. – 3.1. The Constitutional Basis for the Independence of the Judiciary. – 3.2. (cont.) The Organizational As- pects. – 3.3. The Special Position of the Constitutional Court. – 3.4. The Presidential Prerogative in the Appointment of Judges. – 4. The Gap between Constitutional (and Charter) Provisions and Effective As- surance of Independence of the Judiciary in Legislative and Executive Practice. – 5. Supreme Councils for the Judiciary as a Guarantee for the Independence of the Judiciary.Abstract Independence of the Judiciary and of the jurisdictional function depends on many circum- stances and conditions. The constitutional provisions stating the separation of powers repre- sent the basic guarantee for the Judiciary and so the rigidity of the Constitution (and the re- lated constitutional adjudication system) can be considered the first protection of the constitu- tional principle of independence of judges. Personal independence and professional discipline of judges are important requisites for a judicial system based on an objective selection of judges and on the protection of the objective conditions for the performance of the jurisdic- tional function. Where foreseen, these are the main tasks of the Councils for the Judiciary.The Czech Constitution does not provide such a body. The most critical aspects of the ju- dicial system lie elsewhere: neither the Constitution nor the legislation provide mechanisms able to effectively balance or control the influence of the Legislative and Executive power on the Judiciary. Legislative power defines number, types and location of courts, establishing rules for their activities and functioning. Executive power decides on personal issues, approves by- laws and directly affects the actual exercise of the jurisdictional function through the regula- tion of the cash flow. There are no constitutional or legislative provisions, which ensure the Judiciary the possibility of taking part in the decision-making concerning the more relevant as- pects of the jurisdictional function. |