CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 1 juin 2023

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margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sC47DA4E2 { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.51pt; font-family:Arial; text-transform:uppercase } .s8B983D37 { text-transform:none } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s48FC6C54 { width:23.87pt; display:inline-block } .s446E0F47 { width:141.09pt; display:inline-block } .sA8208715 { width:9.2pt; display:inline-block } .s7BF29C1E { width:139.76pt; display:inline-block }   GRAND CHAMBER CASE OF GROSAM v. THE CZECH REPUBLIC (Application no. 19750/13)       JUDGMENT   Art 35 § 1 • Later addition by applicant of new complaint, after initial communication of case to respondent Government, not within six-month time-limit Art 34 • Individual application • Recharacterisation of applicant’s complaint by Chamber extending scope of case beyond that initially referred to it in application form   STRASBOURG 1 June 2023     This judgment is final but it may be subject to editorial revision.   In the case of Grosam v. the Czech Republic, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Síofra O’Leary,   Georges Ravarani,   Marko Bošnjak,   Gabriele Kucsko-Stadlmayer,   Pere Pastor Vilanova,   Arnfinn Bårdsen,   Branko Lubarda,   Mārtiņš Mits,   Jovan Ilievski,   Péter Paczolay,   Lado Chanturia,   María Elósegui,   Darian Pavli,   Ioannis Ktistakis,   Frédéric Krenc,   Mykola Gnatovskyy, judges ,   Pavel Simon, ad hoc judge , and Søren Prebensen, Deputy Grand Chamber Registrar , Having deliberated in private on 3 May 2023, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 19750/13) against the Czech Republic lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Czech national, Mr Jan Grosam (“the applicant”), on 13 March 2013. 2.     The applicant was represented by Mr J. Dajbych, a lawyer practising in Prague. 3.     The Czech Government (“the Government”) were represented before the Chamber by their Agent at the time, Mr V.A. Schorm, and before the Grand Chamber by his successor in that position, Mr P. Konůpka, both of the Ministry of Justice. 4.     In his application the applicant alleged, in particular, that in the disciplinary proceedings against him, which he considered to be criminal in nature, he had not had a right to appeal against the decision of the disciplinary chamber of the Supreme Administrative Court, even though that chamber could not, because of its composition and the lack of sufficient guarantees as to its expertise and independence, be considered the “highest tribunal” within the meaning of Article 2 of Protocol No. 7 to the Convention. He also raised various complaints under Article 6 of the Convention concerning the fairness of the proceedings. 5.     The application was allocated to the First Section of the Court (Rule   52 § 1 of the Rules of Court). On 17   September 2013 the Government were given notice of the application. The parties exchanged observations on the admissibility and merits of the application. 6 .     On 6 October 2015 and 26 September 2019, the parties were invited to submit further written observations, notably relating to whether, given its composition, the disciplinary chamber of the Supreme Administrative Court met the requirements of “a tribunal established by law” within the meaning of Article 6 § 1 of the Convention. 7.     On 23 June 2022 a Chamber of the First Section, composed of Krzysztof Wojtyczek, President, Tim Eicke, Pauliine Koskelo, Gilberto Felici, Erik Wennerström, Aleš Pejchal and Ksenija Turković, judges, and Liv Tigerstedt, Deputy Section Registrar, delivered its judgment. The Chamber, by a majority, declared admissible the complaint that the disciplinary court had not satisfied the requirements of an independent and impartial tribunal under Article 6 § 1 of the Convention and held, by four votes to three, that there had been a violation of that provision. It also held, by a majority, that there was no need to examine the admissibility and merits of the remaining complaints under Article 6 § 1 relating to the disciplinary court, and, unanimously, declared the remainder of the application inadmissible. Judges Eicke, Koskelo and Wennerström expressed a joint dissenting opinion. 8.     On 22 September 2022 the Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 14 November 2022 the panel of the Grand Chamber granted the request. 9.     The composition of the Grand Chamber was determined in accordance with the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 10.     As Kateřina Šimáčková, the judge elected in respect of the Czech Republic, withdrew from sitting in the case (Rule 28 § 3), the President of the Grand Chamber decided to appoint Pavel Simon to sit as an ad hoc judge both in this case and in Fu Quan, s.r.o. v. the Czech Republic , no.   24827/14 (Article 26 § 4 of the Convention and Rule   71 § 1 and Rule 29 § 1), which were to be examined simultaneously (Rule 71 § 1 and Rule 42 § 2). 11.     On 3 January 2023 the President, after consulting the parties, decided not to hold a hearing (Rule 71 § 2 and Rule 59 § 3 in fine ). 12.     The applicant and the Government each filed written observations on admissibility and the merits. The Government replied to the applicant’s observations, whereas the applicant did not reply to those of the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 13.     The applicant was born in 1963 and lives in Prague. 14 .     He worked as an enforcement officer ( soudní exekutor ). In that capacity, as a member of a liberal profession (see paragraphs 30 and 37 below), he was in charge on the State’s behalf of ensuring the execution of enforcement titles such as final civil court decisions, arbitration awards, enforceable notarial deeds and enforcement officers’ records. Events giving rise to the disciplinary proceedings against the applicant 15 .     On 11 November 2008 the applicant drew up an enforcement officer’s record ( exekutorský zápis s doložkou přímé vykonatelnosti ), whereby company U., represented by its finance director, agreed to pay a debt of 67,762,535 Czech korunas (CZK – approximately 2,689,502 euros (EUR) at the time) in three instalments to a particular lawyer ( advokát ). The record contained an enforcement clause entitling the creditor to apply directly for enforcement of the said claim without the need to institute civil proceedings beforehand. In order to prove that he was authorised to act on behalf of the debtor company, its finance director submitted the company’s Articles of Association ( stanovy ), its organisational structure ( organizační struktura ) and the document certifying his appointment as the company’s finance director. He also declared that under the Articles of Association and the company’s internal regulations he was authorised to perform such transactions. 16.     On 3 July 2009 the above claim was transferred to another company, with its registered office in Cyprus. On the basis of the enforcement clause, that company subsequently applied for enforcement in respect of an amount of CZK 22,000,000 (EUR 851,963 at the time), and on 23 November 2009 the Prague 4 District Court ( obvodní soud ) issued an enforcement order against the debtor company in respect of its assets. 17 .     Further to a request by the Ministry of Justice, in a letter of 23 March 2010 the applicant submitted his comments on the circumstances in which the enforcement officer’s record of 11 November 2008 had been drawn up (see paragraph 15 above). He admitted that, according to an extract from the Commercial Register ( výpis z obchodního rejstříku ) which the applicant had had at his disposal when drawing up the enforcement officer’s record, the finance director, as an ordinary member of the board of directors ( představenstvo ), had not been authorised to act alone on the company’s behalf. The applicant referred, however, to Article 15 § 1 of the Commercial Code, which entitled persons entrusted to perform certain activities within a company to undertake all transactions in relation to that activity, from which he had inferred that the finance director was entitled to sign the record in question. Such entitlement, he further noted, therefore arose ex lege and there was no need for a separate authority form or any other document. Moreover, the finance director had told him that under the Articles of Association and the company’s internal regulations, he was entitled to perform such transactions and that this fact was also apparent from the letter confirming his appointment as finance director. Disciplinary proceedings against the applicant 18 .     On 21 May 2010 the Minister of Justice, in the capacity of a disciplinary petitioner ( kárný žalobce ), lodged a disciplinary action ( kárná žaloba ) against the applicant with the disciplinary chamber ( kárný senát ) of the disciplinary court ( kárný soud ), which was the Supreme Administrative Court ( Nejvyšší správní soud ). The applicant was charged with two acts of misconduct, namely drawing up an enforcement officer’s record attesting to the recognition of a debt by an unauthorised person (see paragraph 15 above), and another, unrelated, disciplinary offence in respect of which the proceedings were later discontinued. The Minister left it to the disciplinary court’s discretion to determine which disciplinary measure ( kárné opatření ) should be imposed on the applicant. 19 .     The disciplinary chamber of the Supreme Administrative Court was composed of a judge of that court acting as president; a judge of the Supreme Court acting as deputy president; and four lay assessors: two enforcement officers, one lawyer ( advokát ) and one professor of law (see paragraph 38 below). The applicant was represented by a lawyer ( advokát ). 20 .     On 25 June 2012 a hearing took place before the disciplinary court. At the beginning of the hearing, the disciplinary petitioner proposed that the applicant be fined, at the court’s discretion. The applicant, in contrast to his previous statement (see paragraph 17 above), submitted that the finance director of the debtor company had at the time presented him with the letter confirming his appointment as finance director, authorising the director to act on behalf of the company without any restrictions. However, the applicant had not made a copy of that document and had not enclosed it with the enforcement officer’s record. The applicant argued that he did not have a legal obligation to make a copy of that document and that it was up to the petitioner to prove his guilt, since the Code of Criminal Procedure was applicable by default (see paragraph 38 below). When the president of the disciplinary chamber pointed out that pursuant to the internal regulations the finance director was only authorised to sign documents concerning transactions up to CZK 1.5 million (EUR 58,088 at the time), the applicant replied that the letter of appointment clearly indicated that the finance director had been authorised to sign the enforcement officer’s record in question and that the director had confirmed that his authority had not been limited. The president of the disciplinary chamber then showed the letter of appointment to the applicant, who replied that this was not the document the finance director had shown him. 21 .     In his closing argument the applicant’s representative stated: “We are able – actually not now, on the spot, but potentially – to provide supplementary evidence that [the finance director] signed ... tens of contracts, in particular on claim transfer and claim assignment, to the tune of tens of millions, and that he signed everything on the basis of that letter of appointment.” 22 .     On the same day, 25 June 2012, the disciplinary court found the applicant guilty of drawing up an enforcement officer’s record attesting to the recognition of a debt by an unauthorised person. Specifically, the court held that the applicant had failed to act conscientiously and with due care within the meaning of Article 5 of the Rules of Professional Ethics and that, by his grossly negligent conduct, he had been in serious breach of his professional duties (see paragraph 39 below). 23.     The court fined the applicant CZK   350,000 (EUR 13,554 at the time). In so deciding, it took into account the fact that this was not the applicant’s first case of disciplinary misconduct, and that it had serious consequences for the debtor company. 24 .     The applicant then lodged a constitutional complaint ( ústavní stížnost ) in which he alleged violations of several principles of criminal procedural law, namely the presumption of innocence, the duty of the court to gather evidence and the in dubio pro reo principle. The applicant argued that the disciplinary court could have summoned the finance director as a witness to confirm the existence of the document authorising him to act on behalf of the debtor company. Furthermore, he claimed that the court had not invited him to propose additional evidence during or at the end of the hearing, even though it had been required to do so under the Code of Criminal Procedure, which was applicable by default to the disciplinary proceedings (see paragraph 38 below). 25 .     Arguing that he had been charged with a criminal offence within the meaning of the Convention, the applicant further alleged a violation of Article   2 § 1 of Protocol No. 7 in that domestic law did not provide him with the possibility of appealing against the disciplinary court’s decision. As to the exception concerning the “highest tribunal” in the second paragraph of Article 2 of Protocol No. 7, the applicant pointed out that, while the disciplinary court 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 criteria as judges of the highest courts. The applicant thus concluded that the exception concerning the “highest tribunal” was not applicable in his case and that there had been a violation of his right of appeal in criminal matters. Referring to plenary decision no. Pl. ÚS 33/09 of the Constitutional Court, dated 29 September 2010 (see paragraph 42 below), the applicant argued, inter alia , as follows: “... In its decision the Constitutional Court ruled that the right to appeal against a decision of a judicial authority was not enshrined in the constitutional order of the Czech Republic. The complainant therefore claims this right under Article 6 of the Convention and Article 2 of Protocol [No. 7]. The Protocol [No. 7] provides for the right to seek review of a decision in the context of proceedings on criminal charges. ... By the impugned decision [of the disciplinary court] the complainant was found guilty in the context of proceedings which are, by their nature, proceedings on a criminal charge. However, he was not allowed to seek a review of the impugned decision. This interfered with the complainant’s right to a fair trial and violated Article 36 § 1 of the Charter [of Fundamental Human Rights and Freedoms of the Czech Republic], Article   6 § 1 of the Convention and Article   2 of the Protocol [No. 7 to the Convention]. ... The complainant is aware of the provisions of Article 2 § 2 of Protocol [No. 7], which lay down exceptions to the right to review in the cases defined therein. Under that provision, an exception to the right to review by a higher judicial body may be allowed if the charge was determined at first instance by the highest tribunal. Accordingly, in order for this exception to be applied, two conditions would have to be met simultaneously: the determining authority would have to be a tribunal within the meaning of Article 6 of the Convention and, at the same time, it would have to be the ‘highest’ tribunal within the meaning of Article 2 § 2 of the Protocol [No. 7]. In relation to the assessment whether the disciplinary chamber of the Supreme Administrative Court (hereinafter also referred to as the ‘disciplinary chamber’) is a tribunal within the meaning of Article 6 of the Convention, the Constitutional Court has already expressed its view that the disciplinary chamber is such a tribunal (Pl.   ÚS   33/09). However, in that decision the Constitutional Court did not elaborate on whether the disciplinary chamber should be regarded as the ‘highest’ tribunal within the meaning of Article 2 § 2 of the Protocol [No. 7] (this was not significant for the case examined in the decision in question), or, more accurately, that decision contains no arguments to that effect. However, that issue was dealt with in detail in a dissenting opinion by Judge Dagmar Lastovecká, to which the complainant refers and some of whose arguments are elaborated on below. As the ‘highest’ court within the meaning of Article 2 § 2 of the Protocol [No. 7], a particular body cannot be judged on the basis of its designation. It is necessary to examine both the formal features (the designation) and the substantive features (composition, requirements for performance of functions, ...). Pursuant to section   4b of Act no. 7/2002 Coll., a disciplinary chamber composed of the president of the chamber, his or her deputy and four lay assessors hears [disciplinary] cases concerning enforcement officers. ... It is clear from the foregoing that judges of the highest judicial bodies are represented in the disciplinary chamber, but they are in a minority. The majority of the disciplinary chamber consists of lay assessors who are not judges of the highest judicial bodies – they are not even judges, but members of other legal professions. They do not have any experience in decision-making in judicial matters and do not have to satisfy any qualification requirement for decision-making (minimum experience in the judiciary in order to become judges of a high judicial body; minimum age; psychological test, ...) and in this respect, they have to be seen as laypersons (despite their legal training). Decision-making in chambers composed of judges and lay assessors is exceptional in the legal order of the Czech Republic and is typical for simpler legal disputes (some criminal and labour-law first-instance proceedings). There is always a risk in these cases that the legal professionals whose job description includes decision-making will be outvoted. Thus, at first instance [a decision is always taken by both] judges and lay assessors, and decisions that may be erroneous (due to the fact that the judges were outvoted) can be corrected on appeal. If that guarantee of a fair decision exists in civil proceedings (labour disputes), it should be a matter of course also in proceedings concerning criminal charges. In the event that lay assessors outvote judges in disciplinary proceedings, regardless of the reasoning ..., any remedy is excluded. In view of the foregoing, the complainant considers it obvious that, although the designation of the disciplinary chamber contains the word ‘supreme’, it is not the highest judicial body. Its members do not satisfy the common requirements for exercising the function of a member of the highest judicial body; they are not even judges. Such an organ cannot sufficiently guarantee the correctness, or even the fairness, of the decision-making process. The complainant believes that the disciplinary chamber is not the ‘highest tribunal’ within the meaning of Article 2 § 2 of Protocol [No. 7]. The aforementioned exception under Article 2 § 2 of Protocol [No. 7] is inapplicable and disciplinary defendants should be guaranteed the right to have the decisions against them reviewed by a court of higher instance. ...” 26 .     On 11 September 2012 the Constitutional Court ( Ústavní soud ) dismissed the applicant’s constitutional complaint. It held that it was not within its authority to review compliance with ordinary laws, but only with constitutional law. It found that the disciplinary court had provided convincing and logical reasons for its decision. Referring to its case-law (decision no. Pl. ÚS 33/09 concerning disciplinary proceedings against a judge, see paragraph 42 below), it stated, in particular, as follows: “As regards the reasons expressed in the constitutional complaint concerning the impossibility of applying for a review of the decision delivered in the disciplinary proceedings and the composition of the disciplinary chamber, the Constitutional Court refers to the reasoning in its plenary judgment no. Pl. ÚS 33/09, by which the chamber [sitting in the present] case is bound. [In the above plenary judgment] the proposal to invalidate section 21 of Act no. 7/2002 as amended by Act no. 314/2008 was rejected [and] ... the Constitutional Court, for the reasons set out therein, [and having assessed] the disciplinary chamber from the point of view of its composition, found that the [legal provisions] which did not [confer on] a person charged with a disciplinary offence [the right] to lodge an appeal against a decision of the disciplinary chamber were not unconstitutional. ...” 27 .     Regarding the other complaints made by the applicant, the Constitutional Court made the following general statement: “[T]he complainant’s arguments do not lead to the conclusion that the constitutional complaint is well-founded.” 28 .     The Constitutional Court’s decision of 11 September 2012 was served on the applicant on 17 September 2012. The applicant’s application to the Court 29 .     On 13 March 2013 the applicant lodged an application with the Court in which he raised various complaints under Article 6 § 1 of the Convention (see paragraph 53 below) concerning unfairness of the above disciplinary proceedings. He also raised a complaint under Article 2 of Protocol No. 7 to the Convention. Since the scope of the latter complaint became a contentious issue before the Court (see paragraph 66 below), it is deemed useful to reproduce the following extracts from the application form: “ B. VIOLATION OF ARTICLE 2 OF PROTOCOL No. 7 TO THE CONVENTION 15.24.     The applicant submits that the present proceedings violated Article 2 of Protocol No. 7 to the Convention (‘the Protocol’), which governs the right to appeal in criminal proceedings. 15.25.     As stated above, the applicant believes that the disciplinary proceedings should be assessed as proceedings on criminal charges. On the basis of this assessment, he concludes that the provisions of Article 2 § 1 of the Protocol, which enshrine the right to appeal against a decision, are applicable to the present case. However, the applicant was denied that right. 15.26.     The applicant is of course aware of the provisions of paragraph 2 of this Article, which provides for exceptions to the need for review under paragraph 1. However, he is of the view that none of these exceptions apply to the present case. 15.27.     The first exception under Article 2 § 2 of the Protocol applies to minor offences provided for by law. The applicant considers that the law does not define any less serious offences that should be exempted from the right of review, but generally prohibits the right to appeal in disciplinary proceedings, regardless of the sanction ... in a given case. He believes that the provisions of Article 2 of the Protocol imply an obligation on the Contracting Party to clearly define by law the offences for which no right of review is required, and not to determine this according to the manner in which proceedings are conducted in respect of such offences. The applicant believes that the legislation could be discriminatory, since the right of review may be granted or not granted for similar misconduct, based only on which authority will decide on the offence. The applicant refers to the seriousness of the possible sanctions that may be imposed in the disciplinary proceedings. 15.28.     The applicant also believes that it is not possible to accept the disciplinary chamber of the Supreme Administrative Court as the highest tribunal under Article 2 §   2 of the Protocol. He believes that a decision-making authority does not become the highest tribunal by virtue of being designated as such or being assigned to the Supreme Administrative Court. The decisive factor must undoubtedly be how the decision-making authority is staffed and its composition, and also whether it provides a sufficient guarantee of expertise and independence. 15.29.     Pursuant to section 4b of Act No. 7/2002 Coll., the disciplinary chamber dealing with cases concerning enforcement officers is composed of its president, his or her deputy and four lay assessors. The president of the chamber is a judge of the Supreme Administrative Court, and his deputy is a judge of the Supreme Court. Two of the lay assessors are enforcement officers and two are persons nominated pursuant to paragraph 4, third sentence. Among the lay assessors who are not enforcement officers, there must always be at least one lawyer ( advokát ) and one person practising another legal profession. It is clear from the foregoing that judges of the highest judicial institutions are represented in the disciplinary chamber, but that they are in a minority. The majority of the disciplinary Chamber is made up of lay assessors who are not judges of the highest judicial institutions, they are not even judges at all and are, therefore, not subject to the requirements imposed on judges in terms of their expertise and independence. Lay assessors also do not have to meet the conditions required for participation in the highest judicial institution (minimum age, psychological testing, certain number of years in the judiciary, etc.). In the situation at issue, where the majority of the members of the disciplinary chamber do not meet the conditions for membership of the highest judicial institution, it is not possible to speak of the disciplinary chamber as the highest tribunal within the meaning of Article 2 § 2 of the Protocol. 15.30.     The legal order of the Czech Republic allows decisions to be made by chambers composed of judges and lay assessors, who are not judges, in other cases but these are usually simpler cases (some criminal proceedings at first instance, labour disputes at first instance). There is always a risk in these cases that the legal professionals (judges) will be outvoted by the non-professionals (lay assessors). If such a situation occurs at first instance, possibly wrong decisions of the lay assessors can be corrected on appeal. However, if this occurs in disciplinary proceedings, and the disciplinary chamber is considered to be the highest court, no remedy is available to the accused. 15.31.     With regard to the aforementioned facts, the applicant concludes that since he was not allowed to lodge an appeal against the decision of the disciplinary chamber, his right guaranteed by Article 2 of the Protocol was violated.” RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW Relevant legislation Enforcement Procedure Act 30 .     As part of efforts to bolster civil enforcement in the Czech Republic, a function hitherto conferred only on the civil courts, a new Act no.   120/2001 on Enforcement Officers and Enforcement Activities and Amendments to Other Acts (hereinafter “the Enforcement Procedure Act”) was passed on 28   January 2001. Amongst the provisions introduced by the Act was the establishment of a new liberal profession of enforcement officer, henceforth entrusted with civil enforcement on behalf of the State alongside the civil courts. In exercising their enforcement activities enforcement officers would perform a State function, thus wielding a part of the State’s power. 31.     Under section 1(1) of this Act, an enforcement officer is a natural person fulfilling the conditions under the Act who has been entrusted by the State with the office of enforcement officer. 32 .     Pursuant to section 2 of the Act, enforcement officers must exercise their enforcement activities independently. In the exercise of those activities they are bound only by the Constitution, laws and other statutory instruments. 33 .     Under section 8, the Minister of Justice appoints and removes enforcement officers and also determines and, as applicable, increases their overall number. 34 .     Under section 28, enforcement is carried out by the enforcement officer named by the enforcement creditor in his or her application for enforcement and recorded in the register of enforcement proceedings. Acts carried out by enforcement officers in enforcement proceedings are deemed to be acts of the court. 35 .     Under section 116, enforcement officers are liable for any disciplinary misconduct they commit. Disciplinary misconduct means, inter alia , a serious or repeated breach of the duties prescribed by legal or professional regulations, or of the profession’s dignity. In the event of disciplinary misconduct, any of the following disciplinary measures may be imposed on an enforcement officer: a reprimand, a written reprimand, a fine of up to a hundred times the minimum monthly wage, and removal from office. 36 .     Under section 117(2), disciplinary action can be brought only by the Minister of Justice, the chairman of the audit committee or the chairman of the review committee of the Chamber of Enforcement Officers, the president of the regional or district court if the enforcement officer’s registered office is within the jurisdiction of that court, or the president of the district court that has authorised the enforcement officer to carry out the enforcement. 37 .     The explanatory memorandum to the draft Enforcement Procedure Act (Parliamentary Paper no. 725/0, special part) states, concerning section 1 of the Act, as follows: “The enforcement officer is a non-State body – a natural person to whom the State delegates a part of its powers which otherwise belongs to the courts. The enforcement officer performs the activity as a member of a liberal profession and has the status of a public official.” Act no. 7/2002 on Proceedings in Matters concerning Judges, Public Prosecutors and Enforcement Officers 38 .     The relevant provisions of the Act, as in force at the material time, read as follows: Section 3 “The disciplinary court shall hear and decide cases coming under this Act. The Supreme Administrative Court is the disciplinary court.” Section 4 “... (4)     The president of the disciplinary court shall keep a list of lay assessors ... Further to a request by the president of the disciplinary court and within the time-limit fixed by [him or her], ... the Prosecutor General, the President of the Czech Bar Association and the deans of the faculties of law of public universities ... shall each nominate ten lay assessors from among the public prosecutors and members of the Bar to be entered in the list of lay assessors ...” Section 4b “(1)     In proceedings in matters concerning enforcement officers the disciplinary court shall hear and decide cases in chambers composed of a presiding judge, his or her deputy, and four lay assessors. The presiding judge shall be a judge of the Supreme Administrative Court and his or her deputy shall be a judge of the Supreme Court. Two of the lay assessors shall be enforcement officers, and two shall be nominated according to subsection 4, third sentence. Among the lay assessors who are not enforcement officers, there shall always be at least one lawyer ( advokát ) and one person engaged in another field of law, provided that he or she is registered on the list of lay assessors for proceedings in matters concerning judges. ... (4)     The president of the disciplinary court shall keep lists of lay assessors for proceedings in matters concerning enforcement officers. [He or she] shall include in the list the names of ten enforcement officers nominated by the president of the Chamber of Enforcement Officers ... at the request of the president of the disciplinary court. As regards the other lay assessors, section 4(4), third and fourth sentences, shall apply as appropriate. (5)     The president of the disciplinary court shall appoint, by drawing lots from the lists mentioned in subsection 4, lay assessors, four substitutes from among enforcement officers and four substitutes from other lay assessors according to the fixed order. [He or she] shall appoint, by drawing lots, other lay assessors and substitutes from among other lay assessors so that the disciplinary chamber always includes at least one lawyer ( advokát ) and one person engaged in another field of law, provided that he or she is registered on the list of lay assessors for proceedings in matters concerning enforcement officers. (6)     The term of office of the chamber in matters concerning enforcement officers is five years. (7)     The chamber of the disciplinary court for proceedings in matters concerning enforcement officers shall decide cases by a majority of votes of all the members. In the event of a tied vote when ruling on whether an enforcement officer is guilty of professional misconduct, the chamber shall acquit him or her.” Section 12 “(1)     The presiding judge of the chamber shall serve the notice of proceedings on the person against whom the disciplinary charges are brought ... and ... shall advise him or her of the right to allege bias on the part of the members of the chamber, to express his or her opinion on [the charges] and evidence, to submit facts and evidence in his or her favour, and also of the right to remain silent.” Section 17 “... (4)     The presiding judge of the chamber shall hear the person against whom the charges have been brought and take any other evidence as necessary. ... (5)     After the evidence has been heard, the petitioner, defence counsel and the person against whom disciplinary charges have been brought may express their opinions on the case. The person against whom the charges have been brought shall always make the closing submission. (6)     The oral hearing shall be public.” Section 21 “No appeal lies against a decision taken in disciplinary proceedings.” Section 25 “Unless this Act provides otherwise or unless the nature of the case suggests otherwise, the provisions of the Code of Criminal Procedure shall apply as appropriate.” Rules of Professional Ethics and Rules on Competition for Enforcement Officers 39 .     Rule 5 of these Rules provides that in performing their activities, enforcement officers must act independently, conscientiously and with due care. Relevant case-law of the Constitutional Court The status of enforcement officers 40.     In its opinion no. Pl. ÚS-st. 23/06 issued on 12 September 2006, the plenary Constitutional Court held that enforcement officers, in executing a final decision, were in the same position as public officials as they held judicial power. That premise was subsequently relied on in a number of subsequent decisions, for example, I. ÚS 636/14 of 28 July 2014, II. ÚS 918/14 of 3 September 2014, II. ÚS 2690/13 of 5 September 2013, IV.   ÚS 146/12 of 17 May 2012, and many others. Disciplinary matters 41.     On 27 October 2009 a disciplinary chamber of the Supreme Administrative Court, in disciplinary proceedings against a judge, reached the conclusion that section 21 of Act no. 7/2002 (see paragraph 38 above), which prohibited appeals against decisions of the disciplinary chamber, was contrary to the Charter of Fundamental Rights and Freedoms of the Czech Republic ( Listina základních práv a svobod ) and to the Convention. It requested the Constitutional Court to review the constitutionality of the provision in question. 42 .     In a judgment of 29 September 2010 (Pl. ÚS 33/09), the plenary Constitutional Court decided by a majority to dismiss the petition, stating as follows: “53.     In the light of the [ Engel ] criteria, the Constitutional Court concludes that disciplinary proceedings against judges of the general courts are not proceedings for the determination of criminal charges. Firstly, from the perspective of domestic law, they do not fall under the heading of criminal proceedings, in spite of the fact that the Code of Criminal Procedure applies by default. Proceedings against judges are by their nature typically disciplinary and not criminal; although they entail a ruling on liability for breaches of obligations prescribed by law, the proceedings concern only the specific duties of judges. Nor is the third criterion (nature and severity of the punishment) of the Engel test fulfilled, despite the fact that it is usually this criterion that makes it possible to include disciplinary proceedings within the ‘criminal’ sphere. Indeed, only a sanction modifying the conditions of the relationship between the judge and the State or terminating the relationship may be imposed on a judge for breaching his or her obligations. In accordance with section 88 of Act no. 6/2002 ... as amended, a reprimand, removal from the position of president of a court, removal from office, or a reduction in pay of up to 30% for up to a year (up to two years if the judge has previously been found guilty in other disciplinary proceedings and the sentence has not yet been erased from the disciplinary records) may be imposed on a judge in disciplinary proceedings. The possible sanctions thus relate only to the conditions (reduction in pay) or the continuation (removal from office) of the relationship between the State and the judge, and therefore their nature is disciplinary, not criminal. For example, judges may not be ordered to pay a fine, which could be regarded as a criminal punishment, but may ‘only’ have their pay reduced or a salary increase withheld. ... 60.     In the Constitutional Court’s view, the disciplinary chamber of the Supreme Administrative Court constitutes a ‘tribunal’ within the meaning of Article 6 of the Convention and (in particular) Article 81 of the Constitution, and this conclusion is not affected by the fact that it is not composed of judges of the said court only, but also of judges of other courts and representatives of other legal professions. In fact, the disciplinary chamber of the Supreme Administrative Court possesses the formal and substantive characteristics of a tribunal. As regards the formal characteristics, the Constitutional Court considers it necessary to mention that the disciplinary chamber forms part of the organisational structure of the Supreme Administrative Court and is always presided over by a judge (of the Supreme Administrative Court or the Supreme Court). As regards the substantive characteristics, the Constitutional Court refers to the existence of systemic guarantees of independence and impartiality, which also apply to the disciplinary chamber of the Supreme Administrative Court in the same way as to a court composed of judges only, and this is reflected in the wording of sections 5 and 6 of the impugned Act in particular. The possibility that other citizens, in addition to judges, may participate in the courts’ decision-making follows, moreover, from Article   97 § 2 of the Constitution; therefore, the very fact that the court’s chamber is composed of both judges and lay assessors is not capable ex constitutione of preventing that chamber being described as a ‘tribunal’. ... 61.     It must be added that even if the Constitutional Court concludes that the proceedings under the impugned Act have the nature of criminal proceedings, this conclusion alone would not necessarily result in the Act’s invalidation, either as a whole or as regards section 21. This finding is also supported by Article 2 § 2 of Protocol No.   7 to the Convention, under which – even if the proceedings concerned are criminal proceedings – the right of appeal against a decision delivered in the proceedings does not have to be guaranteed if the highest tribunal has decided as the court of first instance. Given that fact ... it is also not possible to accept the argument that proceedings at one level of jurisdiction only can affect the quality of the decision on the merits. ...” 43 .     In decision no. Pl. ÚS 38/09 of 3 August 2011 the plenary Constitutional Court examined a petition by the Supreme Administrative Court to invalidate certain transitional provisions of Act no. 183/2009, which amended the Enforcement Procedure Act (see paragraph 30 above), and other laws. The court noted, inter alia , as follows: “29.     [U]nder the new legislation, criticised by the petitioner, (enforcement officers) have at their disposal an entire procedure conducted from the very outset before the Supreme Administrative Court’s highly qualified chamber, the composition of which guarantees an equal, fair and independent assessment of all cases regardless of the stage reached in the proceedings when they were referred to it. ... 30.     Thus it can be concluded that the public interest in thorough and impartial decision-making in disciplinary proceedings against enforcement officers is guaranteed by the fact that a special chamber of the Supreme Administrative Court, that is to say, the highest tribunal, guaranteeing the independence and impartiality of the whole process, adjudicates in disciplinary proceedings against enforcement officers. ...” 44 .     In decision no. IV. ÚS 1335/12 of 9 July 2013, following the judgment of the plenary court (see paragraph 42 above), the Constitutional Court addressed the issue whether the conclusions set out in that judgment could be directly applied to disciplinary proceedings in matters concerning enforcement officers. In this connection the court held, inter alia , as follows: “For the sake of completeness, it is noted that in judgment no. Pl. ÚS 33/09 the Constitutional Court concluded that the impossibility of lodging an appeal against the disciplinary court’s decision is not contrary to the constitutional guarantees of the right to a fair trial. It held that the constitutional system guaranteed a right of appeal only in criminal matters (Article 2 § 1 of Protocol No. 7 to the Convention) and that there were exceptions to this rule under Article 2 § 2 of Protocol No. 7 to the Convention ... The Constitutional Court supported its conclusion on the constitutionality of the impugned provision by arguing that disciplinary proceedings concerning judges were not proceedings for the determination of a criminal charge within the meaning of Article   6 §   1 of the Convention (this conclusion does not apply directly in the present case) and pointing out that the Supreme Administrative Court’s decisions were delivered by the highest tribunal within the meaning of Article 2 § 2 of Protocol No. 7 to the Convention (a fact which is also relevant in the present case).” 45 .     The Constitutional Court expressed a similar opinion in decision no.   IV. ÚS 2047/13 of 15 October 2013. It stated as follows: “The Constitutional Court did not find any violation of the rights asserted by the complainant. First, in respect of his allegation of a violation of the right to an effective domestic remedy, the Constitutional Court referred ... to its decision no. Pl. ÚS 33/09 ... The Constitutional Court [in that decision] reached the conclusion that ‘a legal regulation which does not allow a person accused of a disciplinary offence to appeal against a decision of the disciplinary chamber is not unconstitutional; a general right to appeal is not protected in the constitutional order’. When the disciplinary proceedings do not involve the determination of a criminal charge within the meaning of Article 6 of the Convention ... and Article 2 of Protocol No. 7 to the Convention, the right to appeal against a decision taken in such proceedings is, accordingly, not explicitly guaranteed in the constitutional order and it is not otherwise possible to infer such a right from the constitutional order. These conclusions are also fully valid in respect of cases concerning breaches of discipline by enforcement officers.” 46.     By decision no. I. ÚS 12/14, delivered on 24 June 2014, the Constitutional Court dismissed a constitutional complaint in which the complainant, an enforcement officer, had alleged a violation of his righ