Transformation of the Judiciary and Legal System in the Czech Republic

1. Transformation of the Judiciary and Legal System in the Czech Republic Ivo Pospisil, Constitutional Court of the Czech Republic

2. The Old Constitution Previous constitution was the so-called socialist constitution of 1960 amended by the const. Act No. 143/1968 on the Czechoslovak federation • Socialist state • Power derived from working class • Leading role given to the communist party Komunistická strana Československa (KSČ) within the state and the National Front • Educational and cultural policy realised in the sense of marxism-leninism • Planned economy • Hierarchy of ownership • Socialist – state or cooperative • Private – permitted only as personal ownership based on individual work

3. Judiciary under the Communist Regime • Courts became a major instrument of political despotism • Show trials of opponents of the regime • Dependent on political bodies • Judges were expected to be members of KSC • most important authority was the office of general prosecutor • judges bound not only by laws but also by governmental and other decrees • Non-professionals (usually members of KSC) became members of judicial senates • Regime abolished the constitutional and administrative court • role was to protect individuals against the decision of state bodies, so against the state itself

4. Amendments to Communist Constitution (1989–1992) I • Const. Act No. 135/1989 Sb. • Removed the basic principles of communist constitutionality since 30. 11. 1989 (the leading role of KSC, Marxism-Leninism, etc.) • Const. Act No. 46/1990 Sb. • Changed the constitutional source of state power (from the working class to the sovereignty of the people) • Changed the character of deputies‘ mandates from the imperative to the representative one • Const. Act No. 100/1990 Sb. • Changed hierarchy of ownership and introduced uniform concept of ownership • Removed state-planned economy

5. Amendments to Communist Constitution (1989–1992) II • Const. Act No. 294/1990 Sb. • Changed system of state administration • Cancelled the organization of národních výborů (these were the people‘s committees, which were in reality controlled by the communist party) • Introduced regional self-government • Const. Act No. 376/1990 Sb. • Dissolved National Front and introduced principle of free competition among political parties • Const. Act No. 23rnment/1991 Sb. • Added Charter of Fundamental Rights and Freedoms • Const Act No. 91/1991 Sb. • Added Constitutional Court of ČSFR

6. New Constitution of the Czech Republic of 1993 • Polylegal: • Constitution itself • Charter of Fundamental Rights and Freedoms • Acts amending the Constitution • Previous constitutional acts regarding state borders • Previous constitutional acts passed by the Czech National Council (Czech parliament) after 6th June 1992 • International agreements on human rights and freedoms

7. Judiciary during the Transition • Considerable impact of communist past and great resistance to change • Weak pressure of new regime for democratic changes in judiciary • Insufficient personnel changes • Of 1,460 judges in 1990, 484 remaining in 1993 • Most studied at the communist universities and still had great influence in judiciary • Constitutional Judiciary created • Conflict with other courts, esp. Supreme Court • Administrative Judiciary reformed • Completed only in 2003 with creation of Supreme Administrative Court

8. Introducing Democratic Principles into Judiciary Guarantees of independence and impartiality of judges: • Can only be removed from office through a disciplinary hearing over which only other judges may preside • Must be sufficiently provided for materially and financially to limit the danger of his corruption • Decisions bound only by the law and his convictions • May not accept any instructions, except for orders from superior courts, on how to decide a particular matter • Must not have any personal interest in the cases he presides over • e.g. cannot be involved in ones involving his relatives/friends

9. Functions of Democratic Judiciary • To ensure rules and laws are being observed, and that the lawful rights of individuals are being protected, even against the state itself • Rule on the rights and responsibilities of individuals within their mutual disputes (civil justice) • Decide in matters of crime and punishment (criminal justice) • Provide protection for individuals when the individual believes that the state in its decisions has harmed his rights (administrative justice) • Protect constitutional principles themselves (including the principle of separation of powers) (constitutional justice)

10. Role of Constitutional Justiceduring Transformation I • Stabilization of newly established democratic and constitutional institutions • Newly chosen judges from lawyers who served as dissidents or lived in exile • Main tasks: • To rule on validity of laws and to anull them if found to be in conflict with constitution • To deal with complaints of individuals whose fundamental rights guaranteed by the constitution mayb have been violated by state bodies

11. Role of Constitutional Justiceduring the Transformation II • CC played important role in stabilizing democratic rules: • Several times annulled laws that prevented the independence of the judiciary • 2003 – initiated the formation of administative justice in 2003 • 2000 – struck down electoral reform that would have enabled the two biggest political parties to change the whole party system (i. e. to eliminate the relevance of other smaller parties) • 2009 – even annulled a constitutional law that interrupted the ordinary electoral term of parliament and was intended to lead to new elections • CC was a strong supporter of rehabilitations and property restitutions (forced ordinary courts to change their attitudes and interpretation of laws in favour of restituents)

12. Transformation of Law and Coping with Totalitarian Past • Legal Continuity – preservation of the law and its gradual changes • Reconstruction of law was top-down • Charter of fundamental rights and freedoms • Act No. 98/1993 Sb. on unlawfulness of the communist regime • Lustration Act, No. 451/1991 Sb. • Criminal Rehabilitation (act No. 119/1990 Sb. on judicial rehabilitation) • Property Restitution (act No. 229/1991 Sb. on ownership of land and other agricultural property; act No. 87/1991 Sb., on extrajudicial rehabilitation)

13. Act No. 98/1993 Sb. On Unlawfulness of Communist Regime • Declared the communist regime criminal, illegitimate and deplorable • Declared that during the regime the periods for criminal prosecution of perpetrators of crimes against political opposition did not occur (however, these perpetrators could be prosecuted under the communist criminal codes as the criminal law cannot be retrospective) • Real impact of this law very weak as ordinary courts established the law as a pure political declaration, not a legal act: • Only 15 persons were sentenced under this act (when compared to historical statistics – 280.000 cases of show trials, 234 people executed after such trials, 300 killed during interrogations, etc. – this output is very poor)

14. Criminal Rehabilitation • Aim was to annul criminal decisions of the communist state under which individuals were unjustly sentenced • The act stipulated that crimes that were punishable during the communist regime would not be punishable in the democratic society and individuals could demand these decisions be voided • The interpretation of this act led to open war between the SC and CC

15. Property Restitution • Restitution process founded on the basis of continuity with the old law • Not a real restitutio in integrum which would mean an automatic restoration of original property rights • Individuals deprived of their ownership and other property rights had to apply for these rights before ordinary courts • If property had been transferred from state to a new person in the meantime the property was returned only if the current owner had acquired it from the state illegally (i.e. in violation of the then-prevailing communist law) or had acquired it through unfair advantage (as a state or party functionary)

16. Problems of Law and Judiciary after Transformation • Complexity of legal system – even professionals are not able to totally understand the system and are confused • Courts are overburdened by cases: participants face delays in procedures • Corruption affairs (“it is cheaper to pay your own judge than to overpay an attorney…”) • Mistrust of judiciary

17. Lessons Learned from the Czech Transition • Important steps that officials of a new democratic regime should carry out in the process of transforming law and the justice system • Address the injustice that occurred under the former regime, which requires: • Punishment of the previous regime’s crimes • Rehabilitation of previous regime’s victims, i.e., annulment of criminal convictions leveled by the previous regime • Property restitution, if there were confiscations or transfers of property under the previous regime that would not be defensible in a state of law • Complete replacement of the personnel in judicial branch • Establishment of new constitutional regime • Restoration of the democratic legal system, founded on principle of discontinuity with the previous regime