What Czech Judges Can and Cannot Do? Practice of Judicial Disciplinary Authorities in the Czech Republic: Empirical Analyses of All Disciplinary Decisions between 2008 and 2014
| DOI | 10.1177/2322005815607134 |
| Date | 01 January 2016 |
| Published date | 01 January 2016 |
| Subject Matter | Articles |
Article
What Czech Judges Can and Cannot
Do? Practice of Judicial Disciplinary
Authorities in the Czech Republic:
Empirical Analyses of All Disciplinary
Decisions between 2008 and 2014
Tomáš Friedel1
Michal Urban2
Abstract
The article analyzes all judicial disciplinary decisions issued by the disciplinary court in the Czech
Republic since 2008, when the reform of the disciplinary court took place. The authors, after
introducing the Czech disciplinary system, describe the conduct of the judges, which were found
inappropriate by the court. In the second part of the article, they offer an analysis of the cases tried by
the disciplinary court, in which the court found no substantial breach of the standards of professional
judicial ethics or which were suspended before reaching a decision. In the last part of the article, the
authors summarize their findings, offer their interpretation and place their findings in a broader Czech
context. The article, thus, offers an overview of the most recent practice of the Czech disciplinary
court, which may be used for international comparison with the judicial disciplinary practice in
other states.
Introduction
The discussion about professional responsibility of judges remains remarkably silent, as if it was an
inappropriate conversational topic even among lawyers—at least in the Czech Republic. When it is
discussed, the core of the debate concentrates on the question: whether it is possible to regulate the
behaviour of judges? And if it is possible, is it benecial to do so? Surprisingly, concrete cases of judicial
misbehaviour do not aid in deepening the debate, but rather tend to make it even more supercial.
That is mainly caused by two interconnected reasons. First, the topic of professional responsibility
draws limited attention from both legal practitioners and scholars. Fortunately, this situation is slowly
improving. For example, three out of four Czech public law schools have established optional courses
1 PhD candidate at the Charles University in Prague, Faculty of Law, Czech Republic.
2 Senior Lecturer at the Charles University in Prague, Faculty of Law, Department of Political Science and Sociology, Czech
Republic.
Asian Journal of Legal Education
3(1) 22–37
© 2016 The West Bengal National
University of Juridical Sciences
SAGE Publications
sagepub.in/home.nav
DOI: 10.1177/2322005815607134
http://ale.sagepub.com
Corresponding author:
Tomáš Friedel, Charles University in Prague, Faculty of Law, Czech Republic.
E-mail: friedel@prf.cuni.cz
Friedel and Urban 23
of professional legal ethics3 in the last three years (namely, law faculties of the Charles University in
Prague, the Masaryk University in Brno and the Palacký University in Olomouc).4 Second, when the
disciplinary responsibility of judges is discussed, the debate is too much shaped by journalists and their
view of the issue, which concentrates mostly on publicly sensational failures of individual judges
(half-naked female judge participating in a beauty contest,5 a shoplifting judge,6 etc.). Naturally, this kind
of a debate brings us nowhere closer to understanding under what circumstances and whether at all
Czech judges follow norms of their professional ethics. The aim of the article is to cast more light into
the matter of professional judicial conduct in the Czech Republic based on the analysis of Czech
disciplinary authority decisions. We believe that it may serve as a useful example, either good or bad, for
other countries.
It is worth pointing out that the debate about professional liability of judges, sooner or later, turns into
a debate on judicial accountability7 or judicial independence.8 As we have already stated earlier, the
intention of this article is not to deal with the topic of professional judicial ethics in a theoretical way, but
rather to provide the reader a concrete insight into the area of judicial discipline in the Czech Republic
based on case analysis. Our conclusions may support theoretical approaches to the topic, or they may
serve as an impulse to reformulate them according to our findings.9 However, the aim of the article is to
summarize and analyze available empirical data, not to reformulate theoretical approaches to judicial
discipline. In this respect, we are limited not only by the format of the article but, more importantly, by
serious terminological difficulties that appear in any debate on judicial accountability and which have
been closely analyzed by David Kosař.10 The author identifies in the debates on judicial accountability
a conceptual confusion stemming from the fact that there is no consensus among experts on the content
of the term and especially its scope.11 Under these circumstances, we therefore concentrate almost
3 For the question of whether legal ethics should be turned into a compulsory subject, see Kim Economides & Christine Parker,
Roundtable on Legal Ethics in Legal Education: Should It Be a Required Course?, 14
LegaL ethics
109 (2011). As regards the
way it should be taught and reasons for teaching it, see, e.g., Kathleen Clark, The Legacy of Watergate for Legal Ethics Instruction,
ssRN schoLaRLy PaPeR
(Social Science Research Network, Rochester, NY, 2000), available at http://papers.ssrn.com/
abstract=2056374 (last visited October 5, 2015); Russell G. Pearce, Legal Ethics Must Be the Heart of the Law School Curriculum,
159
JouRNaL of the LegaL PRofessioN
26 (2001–02); or Ken McPhail, The Other Objective of Ethics Education: Re-humanising
the Accounting Profession—A Study of Ethics Education in Law, Engineering, Medicine and Accountancy, 34
JouRNaL of
BusiNess ethics
(Issues 3–4) 279 (2011). As regards the possibility of teaching legal ethics though legal clinics, see, e.g., Anna
Cody, What does Legal Ethics Teaching Gain, if Anything, from Including a Clinical Component? 22
iNteRNatioNaL JouRNaL
of cLiNicaL LegaL educatioN
1 (2015).
4 At the last of four public law schools in the Czech Republic, University of West Bohemia in Pilsen, the professional legal ethics
had been taught already before.
5 See, e.g., Tomáš Němeček, Kárnářízení od Miss monokini k alkoholu v síni [Disciplinary Proceedings from Miss Monokini to
Alcohol in the Court Room],
ihNed.cz
, 24 May 2007, available at http://archiv.ihned.cz/c1-20252110-karna-rizeni-od-miss-
monokini-k-alkoholu-v-sini (last visited October 5, 2015).
6 See, e.g., Karel Steigerwald, Dámy a pánové, krást je hanba [Ladies and Gentlemen, Theft is Scandalous],
idNes.cz
, 28 May
2004, available at http://zpravy.idnes.cz/damy-a-panove-krast-je-hanba-df1-/domaci.aspx?c=A040127_202552_nazory_fri (last
visited October 5, 2015).
7 See, e.g., Michael Kirby, Judicial Accountability in Australia, 6
LegaL ethics
41 (2003). Kirby includes among various ways
of disciplining the judges not only the questions of appointment and promotion, judicial performance, judicial reasons, appeal and
review, but also the question of discipline by a removal.
8 David Kosař, The Least Accountable Branch, 11
iNteRNatioNaL JouRNaL of coNstitutioNaL Law
(Issue 1) 234, 255–57 (2013).
The author illustrates on concrete examples that the mechanism of judicial accountability may be perceived both as threat to
judicial independence and means of safeguarding judicial independence.
9 The same conclusion is drawn by Kosař. Id. at 258.
10 Id. at 234–60.
11 Id. at 238–40. In other words, it is not clear what the term judicial accountability means. The author does not leave the topic with
this declaration and proposes that the future authors writing about judicial accountability should: ‘A) make clear whether she
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