FIFTH SECTION

Application no. 19750/13 Jan GROSAM against the Czech Republic lodged on 13 March 2013

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Jan Grosam , is a Czech national, who was born in 1963 and lives in Prague. He is a judicial enforcement officer. He is represented before the Court by Mr J. Dajbych , a lawyer practising in Prague.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 11 November 2008 the applicant drew up an enforcement officer act ( exekutorský zápis ) whereby the debtor (a major provider of internet, TV and telephone services) consented to the possible enforcement of his debt amounting to CZK 67 762 535 (approximately EUR 2 690 000). It is stated in the act that the applicant had verified that the person acting on behalf of the debtor (the finance director of the company) was authorised to act on the company ’ s behalf in this matter.

On 21 May 2010 the Minister of Justice filed a disciplinary lawsuit against the applicant for drawing up the above mentioned act despite the fact that the authorisation of the finance director of the debtor was limited to financial operations up to CZK 1 500 000 (approximately EUR 60 000). The Minister proposed that the applicant be addressed a written warning.

On 25 June 2012 a hearing took place before the disciplinary chamber of the Supreme Administrative Court, composed of a judge of the Supreme Administrative Court acting as the president of the chamber, a judge of the Supreme Court acting as the deputy president, and four lay assessors: two enforcement officers, one attorney-at-law and one person practising law in other fields. The applicant was represented by an attorney-at-law. The representative of the Minister changed the proposed disciplinary measure to a fine without specifying the amount. The applicant maintained that the finance director had given him a document authorising him to act on behalf of the company without any restrictions. Having not provided the document or any other evidence supporting this allegation, the applicant stated that he did not have a legal obligation to make a copy of the document concerned and that it was up to the plaintiff to prove his guilt since the Code of Criminal Procedure was to be applied in default.

In its decision of the same day, the disciplinary chamber considered as crucial the fact that the applicant had drawn up the enforcement officer act with a person who had not been authorised to act on behalf of the debtor. According to the chamber, if the applicant claimed that he had obtained a special document authorising the finance director to act, it would have been highly reasonable to attach a copy thereof to the enforcement officer act given that the finance director was not a member of the board and the consented amount of the debt was very high. Further, the chamber underlined that it was in fact the debtor company which had proposed that disciplinary proceedings be initiated, indicating that it had not issued any authorisation and that the enforcement offic er act itself did not include a reference to the alleged document. The chamber also took into account the fact that the applicant initially – in his written reply to the charges – claimed that the finance director had been authorised to act pursuant to the law and had thus not needed any specific authorisation , and then had changed his argumentation at the hearing. The disciplinary chamber found the applicant guilty and fined him CZK 350 000 (approximately EUR 13 700), taking into account, on the one hand, that it was not the applicant ’ s first disciplinary misconduct, and on the other hand, that the issue had serious consequences for the debtor.

On 14 August 2012, the applicant filed a constitutional appeal with the Constitutional Court. He alleged violations of several principles of criminal law: the p resumption of innocence , the duty of the court to gather evidence and in dubio pro reo . First, the applicant argued that the disciplinary chamber could have summoned the finance director as a witness to confirm the existence of the document authorising him to act on behalf of the company. Further, the applicant claimed that the chamber had not invited him to submit evidence during the hearing, although required to do so under the Code of Criminal Procedure. Finally, arguing that he had been charged with a criminal offence within the meaning of the Convention, he all eged a violation of Article 2 § 1 of Protocol No. 7 to the Convention as domestic law did not provide him with the possibility to appeal against the decision of the disciplinary chamber. As to the exception for “the highest tribunal” in Article 2 § 2 of the Protocol, the applicant pointed out that while the disciplinary chamber was formally a chamber of the Supreme Administrative Court, the majority of its members were not professional judges, had no experience in adjudication and were not required to fulfil the same eligibility conditions as judges of the highest courts. The applicant thus concluded in his constitutional appeal that the exception for the “highest tribunal” was not applicable in his case and that there had been a violation of his right of appeal in criminal matters.

By its decision of 11 September 2012 (I. ÚS 3257 / 12) the Constitutional Court rejected the applicant ’ s constitutional appeal. The court held that it was not in its authority to review compliance with ordinary laws, but only with constitutional law. It found that the disciplinary chamber had convincingly and logically reasoned its decision. Concerning the alleged violation of the right of appeal the Constitutional Court referred to its case-law (judgment no. Pl. ÚS 33/09 concerning disciplinary proceedings against a judge) without any further argumentation. Regarding the other complaints made by the applicant, the Court generally stated that “ the applicant ’ s arguments do not lead to the conclusion that the constitutional appeal is well-founded”.

B. Relevant domestic law and practice

1. Act No. 120/2001 on enforcement officers (as in force at the material time)

Section 116

“ (1) The e nforcement officer and the candidate enforcement officer are liable for disciplinary misconduct.

(2) If an enforcement officer breaches gravely or repeatedly his duties prescribed by this Act, professional regulations (...) , or if his conduct gravely or repeatedly lowers the dignity of the enforcement officer profession (hereinafter “disciplinary misconduct”), one of the following measures may be imposed:

a) a warning,

b) a written warning,

c) a fine up to a hundred times the minimal monthly wage,

d) removal from office.”

2. Act on Proceedings in Matters of Judges, Public Prosecutors and Enforcement Officers (Act No. 7/2002, as amended )

Section 3

Disciplinary court system

“The d isciplinary court hears and decides cases under this A ct. The Supreme Administrative Court is the disciplinary court. ”

Section 4b

Proceedings in Matters of Enforcement Officers

“(1) In proceedings in m atters of enforcement officers the disciplinary court hears and decides cases in chambers composed of a presiding judge, a deputy presiding judge and four lay assessor s. The presiding judge is a judge of the Supreme Administrative Court and the deputy presiding judge is a judge of the Supreme Court. Two of the lay assessors are enforcement officers, two are nominated according to subsection 4 third sentence. There shall always be at least one attorney-at-law and one person practising law in other fields (...).

(7) The chamber of the disciplinary court in matters of enforcement officers decides cases by a majority of votes of all members. In the event of a tie when ruling whether an enforcement agent is guilty of professional misconduct, the chamber acquits him.”

Section 5

Appointment Eligibility

“(2) The lay assessor of the disciplinary court for the proceedings in matters of judges, the lay assessor of the disciplinary court for the proceedings in matters of public prosecutors, except if he is a public prosecutor, the lay assessor of the disciplinary court for the proceedings in matters of enforcement officers, except if he is an enforcement officer, may only be a citizen of the Czech Republic who

a) at the time of swearing the oath is at least 30 years old,

b ) has legal capacity,

c) has obtained a Master ’ s degree in law,

d) is of good moral character,

e ) has experience and moral character ensuring he will hold the position dutifully,

f) fulfils other conditions prescribed by a special statute.

(6) ( ... ) Only an enforcement officer holding his office for at least 3 years and being of good moral character may be nominated to be put on the list of lay assessors for proceedings in matters of enforcement officers. ( ... ) ”

Section 12

Proce dure

“(1) (...) [The president of the chamber] informs the person against whom disciplinary charges have been brought of his rights under this Act and mutatis mutandis as an accused under the Code of Criminal Procedur e , in particular of his right to allege a personal bias of the chamber ’ s members, to express his opinion on the charges and evidence, to submit facts and evidence in his defence , and of his right to remain silent.”

Section 21

Appeal

“Appeal against decisions in disciplinary proceedings is not permitted.”

Section 22

Retrial request

“(1) A judge, president of the court, vice-president of the court, president of a division of the Supreme Court or of the Supreme Administrative Court, a public prosecutor or an enforcement officer may submit a retrial request within three years from the date of the legal effect of the chamber ’ s decision under Section 19 (1).

(2) No other remedy against the final decision in disciplinary proceedings is permitted.”

Section 22

Application of the Code of Criminal Procedure

“Unless stated otherwise or unless it follow s from the nature of the matter, the Code of Criminal Procedure shall be applied in default in disciplinary proceedings. ”

3. Case-law of the Constitutional Court

On 27 October 2009 a disciplinary chamber of the Supreme Administrative Court in charge of disciplinary proceedings against a judge reached the conclusion that Section 21 of Act No. 7/2002 (prohibiting appeals against decisions of the disciplinary chamber) was contrary to the Czech Charter of Fundamental Rights and Freedoms as well as to the Convention and filed a motion (11 Kss 4/2009 – 92 ) for annulment of that provision to the Constitutional Court .

By its judgment of 29 September 2010 ( Pl. ÚS 33/09 ) the plenary composed of all fifteen judges of the Constitutional Court dismissed the motion (with six judges dissenting), holding (point 53):

“In the light of the above mentioned [Engel] criteria the Constitutional Court concludes that disciplinary proceedings against judges of general courts are not proceedings on criminal charges. Firstly, from the perspective of domestic law they do not fall under criminal proceedings, in spite of the fact that the Code of Criminal Procedure applies in default. Proceedings against judges are by their nature typically disciplinary and not criminal; although it is ruled on liability for violating obligations prescribed by law, the proceedings concern only specific obligations of judges. Nor the third criterion (nature and severity of the punishment) of the Engel test is fulfilled, despite the fact that it is usually the one that makes it possible to include disciplinary proceedings into the “criminal” proceedings sphere. Indeed, only a sanction modifying conditions of the relationship between the judge and the State or terminating the relationship may be imposed on a judge for breaching his obligations. According to Section 88 of Act No. 6/2002 on judges and courts as amended, reprimand, removal from the position of president of a court, removal from office, or reduction in pay up to 30 % for up to a year (up to 2 years in case he has been found guilty in other disciplinary proceedings and the sentence has not been deleted yet) may be imposed on a judge in disciplinary proceedings. The possible sanctions are thus related only to conditions (reduction in pay) or continuation (removal from office) of the relationship between the State and the judge, therefore their nature is disciplinary, not criminal. For example, a fine, which could be considered as a criminal punishment, may not be imposed on a judge, “only” his pay may be reduced or his pay increase may be removed.”

The plenary therefore did not need to examine whether the disciplinary chamber constituted the „ highest tribunal “ within the meaning of Article 2 § 2 of Protocol No. 7.

COMPLAINTS

1. Arguing that the criminal limb of Article 6 is applicable to his case as both the maximum potential fine (CZK 800 000) and the fine actually imposed on him (CZK 350 000) are severe enough to be considered as “criminal” sanctions, the applicant submits the following complaints:

a. He alleges a violation of his right to a fair trial under Article 6 § § 1 and 3 (d) of the Convention, complaining that the disciplinary chamber did not explicitly invite him to submit evidence.

b. Relying on Article 6 § 2 of the Conv ention, the applicant alleges a violation of the presumption of innocence, stating that he was found guilty only because he was not able to back his defence with a copy of the document which had been presented to him by the finance director acting on behalf of the debtor. According to the applicant, the disciplinary chamber did not gather all the evidence available and thus did not disprove his defence nor determine the truth.

c. The applicant claims that his right to a fair trial within the meaning of Article 6 § 1 of the Convention was infringed also by the Constitutional Court which decided on his constitutional appeal in very vague terms, without considering and responding to his complaints.

2. Finally, the applicant alleges a violation of Article 2 of Protocol No. 7, stemming from the fact that domestic law excludes appeals against decisions of the disciplinary chamber. He argues that none of the exceptions contained in paragraph 2 of that article are applicable in his case, as he was found guilty of an offence which cannot be qualified as being “of a minor character” and the disciplinary chamber of the Supreme Administrative Court cannot be considered to be “the highest tribunal”.

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QUESTION S TO THE PARTIES

1. Was Article 6 § 1 of the Convention under its civil and/or criminal head applicable to the proceedings in the present case? Was Article 2 of Protocol No. 7 to the Convention also applicable?

2. Assuming that Article 6 § 1 of the Convention was applicable, d id the applicant at all stages of the proceedings have access to a court satisfying all the requirements of this provision, including the right to a reasoned decision?

3 . Assuming that Article 2 of Protocol No. 7 was applicable, w as the applicant afforded the right to have his conviction or sentence reviewed, as envisaged by paragraph 1 of that article ? If not, d id the absence of an appeal in the present case fall within the exceptions laid down by paragraph 2 ?