JOINT DISSENTING OPINION OF JUDGES EICKE, KOSKELO AND WENNERSTRÖM

1. Regrettably, we find ourselves wholly unable to agree with the majority of the Chamber that there has been a violation of Article 6 of the Convention in the present case. On the grounds explained below, we consider that the applicant’s complaints, as submitted, should have been declared inadmissible.

2. Our differences in this case arise out of a fundamental disagreement on matters of principle relating to the Court’s role and function. It is clear in our view that the Chamber has exceeded its competence and has gone well beyond the Court’s task as set out in the Convention.

3. As we see it, the breach of basic principles in the judgment of the majority is threefold. Firstly, the Chamber has examined issues which, contrary to the requirement of exhaustion of domestic remedies expressly raised by the respondent Government, were not in any manner raised by the applicant in the domestic proceedings. Secondly, the Chamber has examined matters which were not as such raised by the applicant even before this Court, but which were, instead, raised by the Chamber ex proprio motu , contrary to the established limits of the Court’s judicial function. Thirdly, the Chamber based its conclusions on an abstract review of the domestic legal framework, which according to the Court’s established case-law is not its task. To compound these fundamental flaws, the Chamber has gone on to give indications of general measures under Article 46, calling for regulatory action by the respondent State to address the deficiencies identified by it ex proprio motu .

4. The present judgment therefore represents a grave departure from normal practice, marking an unwarranted and inappropriate development in the Court’s activity. This is even more remarkable as the respondent Government in their submissions to the Court have firmly objected to such a course of action. In fact, in response to the various questions communicated by the Court during the proceedings, the Government strongly disagreed with the extension of the subject matter of the proceedings by the Court beyond the issues raised by the applicant. Despite these express objections, the majority have persisted in the approach as set out in the judgment.

5. It is therefore important at the outset to recall and emphasise the following basic principles:

(i) It is not the Court’s task to examine and resolve issues which have not first been raised and considered at domestic level in the relevant proceedings leading up to the final decision in the applicant’s case. The duty of the applicant under Article 35 § 1 to exhaust available and effective domestic remedies, which is also one expression of the principle of subsidiarity now enshrined in the Preamble to the Convention, is a cornerstone of the Convention system (see, for example, Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 83-86, 9 July 2015, and Vučković and Others v. Serbia (preliminary objection) [GC], no. 17153/11 and 29 other cases, §§ 69-72, 25 March 2014).

(ii) It is not the Court’s task to address matters of its own motion; the Court is bound by the scope of the complaint as submitted to it by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 108 ‑ 09, 20 March 2018, Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, §§ 102-06, 6 November 2018).

(iii) It is not the Court’s task to conduct an assessment of domestic legislation in abstracto (see Perinçek v. Switzerland [GC], no. 27510/08, § 136, ECHR 2015; Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 121, 15 November 2018; and Magyar Kétfarkú Kutya Párt v. Hungary [GC], no. 201/17, § 96, 20 January 2020).

6. With these general remarks, we move on to a closer analysis of the present case.

7. As set out in paragraphs 9-10 of the present judgment, the grievances raised by the applicant in his constitutional appeal were entirely based on the premise that the disciplinary proceedings conducted against him before the competent chamber of the Supreme Administrative Court were a form of criminal proceedings, that is to say, proceedings for the determination of a criminal charge. He alleged breaches of certain principles of criminal procedure (see paragraph 9), as well as the lack of access to an appeal procedure as required under Article 2 of Protocol No. 7 to the Convention in the context of criminal proceedings (see paragraph 10). Under the latter provision, he expressly advanced his case on the basis that the absence of a possibility of judicial review as required in criminal proceedings was only permitted in cases where the disciplinary court at first instance was the “highest tribunal” and argued that the disciplinary chamber of the Supreme Court did not satisfy the requirements of the “highest tribunal” for the purposes of Article 2 § 2 of Protocol No. 7.

8. Thus, the applicant’s constitutional appeal was entirely based on the erroneous assumption that the disciplinary proceedings against him were subject to the Convention principles governing criminal proceedings.

9. By contrast, nothing in the constitutional appeal was concerned with matters such as the procedures for the appointment of the members of the disciplinary chamber who were not professional judges, including the qualifications of such members – issues that are at the core of the Chamber’s examination in the present judgment.

10. The applicant’s complaints before this Court are essentially the same as those submitted in his domestic constitutional appeal.

11. The first tier of complaints, based on the assumption that the criminal limb of Article 6 was applicable, alleged a violation of the right to a fair trial under Article 6 §§ 1 and 3 (d) of the Convention, on the grounds that the disciplinary chamber did not explicitly invite the applicant to submit evidence. Relying on Article 6 § 2 of the Convention, the applicant also alleged a violation of the presumption of innocence, stating that he had been found guilty only because he had not been able to back up his defence with a copy of a particular document. According to the applicant, the disciplinary chamber did not gather all the evidence available and thus did not disprove his asserted defence (which we note was unsupported by any evidence; see paragraph 7 of the judgment) or determine the truth. The applicant further alleged that his right to a fair trial within the meaning of Article 6 § 1 of the Convention had also been infringed by the Constitutional Court, which had decided on his constitutional appeal in very vague terms.

12. It is evident that those complaints had nothing to do with the institutional aspects of the composition of the disciplinary chamber of the Supreme Administrative Court.

13. In a second tier of complaints, the applicant alleged a violation of Article 2 of Protocol No. 7 because of the fact that domestic law excluded appeals against decisions of the disciplinary chamber of the Supreme Administrative Court. He argued that none of the exceptions contained in paragraph 2 of that Article were applicable in his case, as he had been found guilty of an offence which could not be classified as being “of a minor character”, and that the disciplinary chamber of the Supreme Administrative Court could not be considered to be “the highest tribunal”. In this connection, the applicant’s complaint relied on the fact that the composition of the disciplinary chamber included members who were not professional judges.

14. As regards the first tier of complaints raised by the applicant (see paragraph 11 above), it suffices to briefly state that these are plainly inadmissible on the grounds of being manifestly ill-founded or incompatible ratione materiae with the provision relied on.

15. As regards the second tier of complaints, submitted under Article 2 of Protocol No. 7, the core allegation was that because of the composition of the disciplinary chamber of the Supreme Court, namely the presence of non ‑ judicial members on the panel, he should have had access to the possibility of an appeal before a judicial tribunal, and that the lack of such further appeal violated his rights.

16. Such a complaint is, in both factual and legal terms, essentially different from the issues to which the Chamber majority have devoted their attention in the present judgment (see paragraph 123 in fine of the judgment and paragraph 20 below).

17. As a matter of law, Article 2 of Protocol No. 7 is not applicable in the circumstances of the present case as the disciplinary proceedings did not concern the determination of a “criminal charge” within the autonomous meaning of that provision.

18. Even if that complaint were – generously – recharacterised under the civil limb of Article 6, in terms of the fact that the composition of the disciplinary chamber of the Supreme Administrative Court included members who were not professional judges, it is to be noted that there is no requirement under Article 6 according to which a disciplinary body should only be composed of professional judges. The Court has consistently held that the participation on tribunals of members without legal qualifications is not, as such, contrary to Article 6 (see, for instance, Haarde v. Iceland , no. 66847/12, §§ 103-08, 23 November 2017, regarding criminal proceedings conducted – at first and only instance – before a tribunal where the majority of the members were lay judges; see also Le Compte, Van Leuven and De Meyere v. Belgium , 23 June 1981, §§ 57-58, Series A no. 43, and Pabla Ky v. Finland , no. 47221/99, § 32, ECHR 2004 ‑ V). Indeed, it is not uncommon in practice that there are various disciplinary bodies which are mainly composed of members other than professional judges. Furthermore, the notion of a “tribunal” under that provision does not preclude a composition where the majority of members are not professional judges.

19. The second tier of complaints as submitted by the applicant are therefore also inadmissible either as incompatible ratione materiae (in terms of Article 2 of Protocol No. 7), or as manifestly ill-founded (even if recharacterised under the civil limb of Article 6).

20. It is important to note that none of the issues examined by the Chamber majority in paragraphs 123 to 146 of the present judgment (namely the manner of appointment of the disciplinary chamber’s members, the duration of their appointment, the existence of guarantees against outside pressure, the appearance of independence, or their impartiality) were raised by the applicant either in his domestic constitutional appeal or in the application submitted to the Court. There has been no recourse to a domestic remedy in respect of those issues. To the extent that the applicant has addressed these matters in his subsequent observations submitted to the Court, such comments have been prompted by the questions posed and formulated by the Court of its own motion. Even if one were to treat these subsequent observations as complaints before the Court, they would patently have been inadmissible as having been submitted out of time (see Ramos Nunes de Carvalho e Sá , cited above, §§ 103-06). The Court does not have jurisdiction to rule on any such grievances.

21. Instead of declaring the applicant’s complaints inadmissible, the Chamber majority have therefore proceeded to examine issues which were not raised in the application submitted to the Court. Acting of its own motion, the Court invited the parties to respond to various questions which were not based on the application before it but formulated on the Court’s own initiative. Such a course of action is clearly incompatible with the judicial function entrusted to the Court under the Convention. The instrumentalisation of an individual application by the Court for purposes other than the adjudication of grievances actually presented to it by the applicant is in our opinion wholly unacceptable.

22. Furthermore, the Chamber majority have not only acted of their own motion but they have conducted an abstract review of the domestic legislation governing the composition of the disciplinary chamber of the Supreme Administrative Court, a review which, by its very broad nature, impacts not only disciplinary proceedings against enforcement officers like the applicant but also has the potential to undermine disciplinary processes in relation to others, such as judges and prosecutors (all of which are governed by Act no. 7/2002 on Proceedings in Matters concerning Judges, Public Prosecutors and Enforcement Officers (as amended); see paragraph 32 of the judgment and paragraph 133 of GRECO’s most recent (Fourth) Evaluation Report in respect of the Czech Republic, “Corruption prevention in respect of members of parliament, judges and prosecutors”, adopted in 2016). The majority set out to “assess whether the manner in which the disciplinary chamber was set up... might have produced results that were incompatible with the object and purpose of the Convention right to an ‘independent tribunal’” (see paragraph 127 of the judgment). According to the majority, the “key issue” in the present case – notwithstanding the absence of any complaint in this regard – was the transparency of the procedure by which the lay assessors of the disciplinary court were appointed, in particular the system of nomination of persons to the lists from which lay assessors were drawn (see paragraph 130).

23. In this context, the majority address, inter alia , issues which clearly had no bearing on the case in question. For instance, it is stated that the lay assessors who were enforcement officers were nominated “without any predetermined selection criteria”, apart from the requirement that the candidates on the list from which the members for a specific composition were drawn had to have held office for three year and satisfied the subjective condition of good moral character. According to the Government’s uncontested submissions, however, both of the enforcement officers who sat in the applicant’s case were among the most experienced members of the profession and had practised continuously for a dozen years by the time of the proceedings against the applicant. The lay assessor drawn from the members of the legal profession in turn was a lawyer who had practised for more than twenty years. The fourth lay assessor was an academic in the field of private law and civil procedure. It is difficult to see on what basis the composition of the disciplinary chamber sitting in the applicant’s case could, in the light of the Court’s established case-law, be subject to legitimate doubts from the point of view of the requirements of the independence or impartiality of the non-judicial members. In any event, the applicant has raised no such allegations in his complaint to the Court.

24. Similarly, in paragraphs 134-45 of the judgment the majority engage in an abstract examination, ex proprio motu , of the institutional arrangements surrounding the composition of the disciplinary chamber in general. This analysis, too, is extended to cover circumstances which have no relevance whatsoever to the composition of the chamber that sat in the applicant’s case (see paragraph 137).

25. Apart from the finding of a violation of Article 6, and the award to the applicant in respect of non-pecuniary damage even though he himself failed to raise the respective complaints, the judgment finds its culmination in the indication of general measures under Article 46, in effect calling for legislative or other regulatory measures to be taken by the respondent State to correct the purported deficiencies identified by the majority of their own motion and without proper adversarial argument on the points addressed. There is a certain irony in the fact that the finding of a violation is based on concerns relating to the guarantees of independence and impartiality as regards the disciplinary chamber of the domestic court, whereas the present judgment itself entails a deviation by this Court from the role incumbent on it as an impartial adjudicator in cases brought before it. Apparently, the majority are not bothered by the institutional problem of principle involved, or by the injustice caused to those applicants before the Court in respect of whom the normal rules of admissibility are duly applied. In our view, the judgment amounts to an ultra vires act with the consequence that the respondent State can hardly be bound by the indications set out in reliance on Article 46 of the Convention.

26. Respect for the rule of law is a topical issue in these times, often underlined by the Court in its case-law. We would like to point out that it is also a part of the rule of law that courts, including this one, should respect the basic limits of their function. This is not a matter of undue formalism. It is a matter of fundamental principles.

[1] Rectified on 10 August 2022: the previous version read “... (namely, that he had acted on behalf of a debtor without the proper authorisation).”

[2] Rectified on 10 August 2022: the previous version read “3. In section 4(1)…”

[3] Rectified on 10 August 2022: the previous version read “Under paragraph 2…”

[4] Rectified on 10 August 2022: the previous version read “Under Article 2 § 1, data on …”

[5] Rectified on 10 August 2022: the previous version read “CZK 20,000”.

[6] Rectified on 10 August 2022: the previous version read “section 166 (2)”.

[7] Rectified on 10 August 2022: the previous version read “… under the Disciplinary Act….”