The Future of the Constitutional Court Depends on the Past of Its Judges

Newly elected President Peter Pavel faces both a major challenge and a unique opportunity to shape on important part of the legal system. The terms of seven of the Czech Constitutional Court’s fifteen judges expire this year and four more need to be appointed next year. They include former President Pavel Rychetský, who stepped down in August after 20 years at the court, and both vice-presidents.

The establishment of the new Constitutional Court will inherently alter the course of Czech law for the next decade. Moreover, the whole process seems to be more complicated and uncertain than expected. Despite President Pavel’s best efforts to increase the efficiency and transparency of the entire process, he has faced criticism and difficulties. In light of the previous widespread discussion and concerns that the appointment procedures of the previous two presidents were questionable and lacked transparency, Mr. Pavel established a constitutional committee of highly respected experts in the field to assist in the selection of potential candidates for the office, and asked relevant institutions in the country, such as higher courts, bar and other professional associations, and universities, to send him their lists of potential candidates.

The candidates proposed by the President must be approved by the Czech Senate, the upper chamber of the Czech Parliament. So far, five new judges have been appointed through this process, including Josef Baxa, a highly respected former president of the Czech Supreme Administrative Court, who now succeeds Pavel Rychetský as president of the Czech Constitutional Court. However, some of the proposed candidates gave rise to very emotional discussions not only in the Czech Senate but also in the public. The most controversial was Robert Fremr, a former vice-president of the International Court of Justice in The Hague, a judge at the International Criminal Tribunal for Rwanda and a former criminal judge at the Czech Supreme Court. However, his integrity was questioned after his past in the communist judicial system came to light. Historians found that Fremr had already judged the “Olšanské hřbitovy” case in 1988, which turned out to be a political trial manipulated by the StB (former Czechoslovak State Security Agency), as well as several other cases closely related to the politics of the time. Fremr’s nomination was approved by the Senate despite the controversy, although some members of the chamber strongly opposed the candidacy. As more information surfaced, particularly about Fremr’s convictions for illegal emigration in the 1980s, President Pavel decided to put Fremr’s nomination on hold. Fremr himself withdrew his nomination in mid-August, citing his inability to overcome the distrust of the Czech public and the intolerable pressure of the media. This dispute reopened the discussion of whether and under what circumstances the Czech Republic had properly dealt with its past by allowing most of the pre-1989 judges to remain in office and establish, often a highly respected, career after the revolution. Many commentators have also suggested that all decisions of judges who become candidates for the judiciary should be reviewed and controlled, which could be very dangerous for the principle of the independence of judges.

In early September, another nomination was submitted to the Senate by Pavel’s committee – Judge of the Czech Supreme Court Pavel Simon, who is also considered one of the best experts among local lawyers and judges. However, his nomination is also subject of a debate among the members of the Senate. During his time on the Supreme Court, the Constitutional Court overturned several of his rulings (as it does in many cases), which disqualifies him as a suitable candidate for some senators. The biggest critic of Simon’s work, however, is Senator Hana Marvanová Kordová, a lawyer who represented the (unsuccessful) plaintiffs in some of these cases and thus may not be completely impartial. His personal interests are also a matter of contention, particularly his interest in Qigong courses, a traditional Chinese training that is considered “inappropriate” and “unscientific”. In the end, Pavel Simon was the first nominee of the president Pavel who was directly declined by the Czech Senate and thus will not become the justice of the Constitutional Court. Therefore, President Pavel has to keep looking for other candidates. The appointment of judges to the Czech Constitutional Court is one of the strongest powers of the Czech President. Despite President Pavel’s strong efforts to make this process as transparent and fair as possible, it is again a broadly discussed topic that is not always focused on relevant issues and questions. Nevertheless, the Czech Constitutional Court will have to face many important and relevant decisions and challenges, as many political issues are expected to be dealt with by it, given the unstable social and economic situation. Let us hope that the President and the Senate will find suitable experts and good judges who will be able to face the challenging times ahead.

By JUDr. Marie Zámečníková

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