Czech courts are regulated in way that guarantees independence of the Czech judiciary while plans for the new Polish regime will put such guarantees at risk.
Reading the judiciary crisis through the lens of the Polish government, one may wonder why Brussels has decided to interfere with the functioning of the Polish judicial system. Although member states are primarily concerned with how they organise their courts and the judiciary, the European Union (EU) acts as a guardian over the functioning of the rule of law.
Indeed, member states can decide their own model for a justice system, however, they should do so in a way that ensures the respect the rule of law. This requires them to safeguard the independence of the judiciary, separation of powers and legal certainty.
A breach of the rule of law in one member state has an effect on all member states and the Union as a whole. The concept of a European democracy comprises the independence of the judiciary as a value, which means it should be free from undue political interference. An independent judiciary, together with the media and civil society, act as fundamental safeguards for the functioning of liberal democracy. That is why politicians with more authoritarian tendencies either try to limit these institutions or to subordinate them to their influence.
The recent developments in several EU member states – for example, Czechia, Hungary, Slovakia and Malta – have raised concerns over how far this commitment is actually being observed in practice. Czechia is therefore not the state where the rule of law would function exemplary well however this article only concentrates on comparison of the disciplinary regimes of judges in Czechia and Poland in order to rebut the argument of the Polish government that the regime is the same.
According to the European Commission, the new Polish disciplinary regime undermines the judicial independence of Polish judges by not offering necessary guarantees to protect them from political control. Simply speaking, the Commission claims that Polish judges are being subjected to disciplinary investigations on the basis of their judgements and it argues that the disciplinary process is overseen by judges selected by a panel appointed by MPs.
This article will look at the concrete allegations made by the European Commission and compare the situations in Poland and Czechia.
To start with, in Czechia, the judges are appointed by the President of the Republic, with the consent of the Government in the form of a contra-signature of the Prime Minister, without a time limitation. One should, however, keep in mind that function as a judge ceases to exist upon the expiry of the calendar year in which the judge reached the age of 70.
While there is no exception to this rule in Czechia, in the Polish law condemned by the Court of Justice of the EU the Ministry of Justice would have the capacity to prolong the mandate of judges.
A first allegation made by the Commission concerns the fact that Polish law allows to subject ordinary court judges to disciplinary investigations, procedures and ultimately sanctions, on account of the content of their judicial decisions.
One should recall that in the legal tradition of continental Europe, the principle is that a judge is responsible neither for the content nor for the way it has made its decision (except for review appeals).
In Czechia, ordinary judges are subject to disciplinary investigations, procedures and ultimately sanctions as well. Judges can be tried by special bodies, namely by the Disciplinary Chambers at the Disciplinary Court, which is the Supreme Administrative Court (SAC).
A judge’s disciplinary wrongdoing is defined as a culpable breach of the judge’s duties, as well as a culpable behaviour or conduct whereby the judge violates the dignity of the judicial function or compromises confidence in independent, impartial, professional and fair decision-making by the courts.
Even though a judge may commit a disciplinary offence even when deciding a case, there would need to be such serious defects in the application of the law so she or he would be in breach of the principle that the judge is bound by the law or breach of his/her duty to decide fairly, impartially and independently. Thus, a different legal opinion alone cannot be considered as a disciplinary offence.
The legal literature explains that correcting bad legal opinions is one of the functions of higher courts, which can correct such errors and even return the case to a lower instance with a legal opinion (binding on the lower court). Only if the judge in such a case does not follow the legal opinion expressed by the higher court, she or he would commit a violation of duty and therefore disciplinary offence.
As such, in Czechia, a judge cannot be disciplinarily condemned for the content of the judgement unless it would not regard the legal opinion of the higher court that would be binding for him/her by the law.
Independent and impartial
A second allegation concerns the issue that the new disciplinary regime does not guarantee the independence and impartiality of the Disciplinary Chamber of the Polish Supreme Court, which reviews decisions taken in disciplinary proceedings against judges. This Disciplinary Chamber is composed solely of new judges selected by the National Council for the Judiciary whose judges-members are now appointed by the Polish Parliament (Sejm).
Furthermore, the new disciplinary regime does not ensure that a court “established by law” will decide in the first instance on disciplinary proceedings against ordinary court judges, because it empowers the President of the Disciplinary Chamber to determine, on an ad-hoc basis and with almost unfettered discretion, for the Disciplinary Court of First Instance to hear a given case.
It is important to note here that to avoid the selection of members of the disciplinary chamber by the executive or legislation (as would be the case according to the proposal in Poland), the European Court of Human Rights (hereinafter the ECHR) already made it a condition for the members of the disciplinary chambers to be elected directly by judges.
The Czech legislation in this context states that members of the disciplinary chambers are selected by lot from the lists of potential members to whom they are assigned by the presidents of courts, i.e. judges. Therefore, there seems to be no risk of influencing their selection by the executive and legislation and subsequent politicization of disciplinary proceedings as it the case in Poland where the members would be appointed by the legislative branch (MPs).
Sufficiently strong position
The third and final allegation is that the new disciplinary regime for judges restricts the procedural rights of defendants in disciplinary proceedings.
In Czech disciplinary proceedings, the judge appears to have a sufficiently strong position. She or he is allowed to be represented by a lawyer or judge, may comment on all evidence and propose others in his/her favour.
Disciplinary proceedings with judges are single-instances without the possibility of an appeal against the decision. The only remedy of the convicted person is the possibility of filing a petition for retrial within three years and a constitutional complaint as well as a legal challenge at the ECHR.
This is seen as a shortcoming, especially by judges themselves, but was considered already by the Czech Constitutional Court  as constitutional given the fact that the disciplinary proceedings do not fall under Art. 2, par. 1 of Protocol 7 to the European Convention of Human rights as it cannot be considered as (ordinary) criminal proceedings.
Polish independence at risk
There could be a discussion whether such disciplinary proceedings should be double-instance but for the purpose of this analysis, I would like to conclude that this cannot jeopardise the independence of the judicial system in a way the Polish reforms do. In this respect, the main finding is that the Disciplinary Chambers should be appointed by judges themselves without the interference of the execution of legislation.
To conclude, even though the Czech judiciary is not perfect, when it comes to all allegations made by the Commission towards Polish judiciary reforms, the Czech system of disciplinary regime for judges and a possibility to control the content of decision-making of Czech courts are regulated in way that guarantees independence of the Czech judiciary while plans for the latter (a new Polish regime) will put such guarantees at risk.
 Art. 94 point. a) of the Czech Court and Judges Act 6/2002
 Judgment in case C-192/18 – Commission v Poland
 As confirmed in legal literature, such as e.g. KUČEROVÁ, Pavla. Independence and responsibility of judges. Legal views, 2011, n. 10, p. 356.
 Art. 87/1 of the Czech Judges and Courts Act 6/2002.
 Decision of the Disciplinary Chamber of the SAC on 12. 2. 2015, sp. zn. 11 Kss].
 ŠIŠKEOVÁ, Sylva. Overview of the case-law in judges matters, Praha: Wolters Kluwer ČR, 2013, 433-439.
 ECHR, Olujić v. Croatia, 5 February 2009.
 Art. 4 of the Disciplinary Code 7/2002
 Art. 17 of the Disciplinary Code 7/2002.
 Case PL. ÚS 33/09, 29. 9. 2010.