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Constitutional Act No. 326/1991 Coll.

It is one of the key constitutional acts reacting on the change of the totalitarian regime to democratic and it is the most important postrevolutionary federal constitutional act concerning judicial power. It radically changed Chapter eight of the Constitution of 1960 concerning courts and prosecution. This Constitutional Act defined newly the role of the courts that were mainly supposed to protect constitutional order and the rights of individuals and legal entities and not socialist state or the organisation of working people. The courts and prosecution do not since then educate people “to devotion to their country and the cause of socialism.” On the other hand the independence and impartiality of judges is emphasised which leads to number of institutional changes. In the first place, the supervision (and de fact also superiority) of the prosecution over courts was abolished. Secondly, the obligation of the Supreme Court of the Czech and Slovak Federal Republic and both republic supreme courts to submit reports on the state of socialist lawfulness to legislative bodies was also abolished. Thirdly, the mechanism of the selection of judges changed. The Constitutional Act No. 326/1991 Coll. abolished election of judges by legislative bodies and replaced it by their appointment by the president of the Czech and Slovak Federal Republic (in case of federal judges) or the presidency of national council (in case of republic judges). Judges of the Supreme Court of the Czech and Slovak Federal Republic were appointed by president on the proposal of the chairman of the Supreme Court of the Czech and Slovak Federal Republic and after consultation with both republic governments, judges of military courts on proposal of the Minister of Defence. Judges of republic courts were appointed by presidency of national council on proposal of the government of the republic concerned. Fourth, time-limited mandate of judges, of ten years at the time, was abolished and judges were newly appointed for lifetime. Fifth, the possibility to dismiss judges has diminished. The principle of “who appoints, dismisses” was abolished and on the other hand the principle of possibility to dismiss by disciplinary court and for violation of its obligations only was enshrined. By such moves the democratic regime reacted to the most problematic mechanisms abused by communist regime to influence judicial power and intimidate judges. Some other important aspects of the administration of justice such as dismissal and competences of judicial officers, temporary assignment of judges to Ministry of Justice, court schedules or cessation of the office of the judge by reaching certain age were left by the Constitutional Act No. 326/1991 Coll. unregulated.

Among other changes brought by the Constitutional Act No. 326/1991 Coll., it also changed denomination of individuals participating on the execution of judicial power – the professional judges and the judges of people were renamed to judges and lay judges. The judges of ordinary courts were newly bound by law (and not by “socialist legal order”) and were obliged to take impartial, independent and just decisions (and not those “consistent with socialist legal sense”). Following the creation of the Constitutional Court of the Czech and Slovak Federal Republic the constitutionality review was enshrined – if an ordinary court reached a conclusion that certain legal regulation contradicts law, it was obliged to interrupt the ruling and submit a petition to Constitutional Court. The decision of the Constitutional Court was then binding to that court as well as to all other courts.

From the point of view of federalism, the Constitutional Act No. 326/1991 Coll. did not bring anything new. The Supreme Court of the Czech and Slovak Federal Republic, military courts and, in times of military emergency, also provost courts remained the only federal courts. All other courts, that is the Supreme Court of the Czech Republic, the Supreme Court of the Slovak Republic, regional and district courts, remained republic courts. Due to restricted competences of the Supreme Court of the Czech and Slovak Federal Republic, that included mainly questions of jurisdictions and interpretation of federal laws, both republic judicial structures operated de facto independently and developed its own case law in different ways and the Supreme Court of the Czech and Slovak Federal Republic had no means to prevent it.