Decision No. 1 of 31 January 2017 on Constitutional Case No. 6/2016
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by the Plenum of the Supreme Court of Cassation. The subject matter of the case is the constitutionality of the provision of Article 166, paragraph 3 of the Judiciary Act, which provides that a judge, prosecutor, or investigating magistrate may not be released from office pursuant to Article 165, paragraph 1, item 2 if disciplinary proceedings have been instituted against him or her, until the conclusion of such proceedings. The request argues that the provision is unconstitutional on the grounds that it is contrary to Article 129, paragraph 3, item 2 of the Constitution, concerning resignation as an unconditional constitutional ground for the release from office of a judge, prosecutor, or investigating magistrate; to the principle of the rule of law enshrined in Article 4, paragraph 1 of the Constitution; and to the prohibition of forced labour under Article 48, paragraph 4 of the Constitution.
Summary of the Court’s Reasoning
The Constitutional Court holds that the challenged provision infringes the principle of freedom of labour, which guarantees the right of every citizen freely to choose his or her profession and place of work. The constitutionally guaranteed subjective transformative right to terminate an employment relationship by tendering a resignation may not be restricted by the legislator in pursuit of illegitimate aims, such as enabling the Supreme Judicial Council to exercise its disciplinary powers or depriving the person concerned of a one-time monetary compensation.
According to the Supreme Judicial Council, the objectives pursued by the restriction of the constitutional right to release from office by reason of resignation are the exercise of its power to impose disciplinary sanctions on judges, prosecutors, and investigating magistrates in line with public expectations, as well as depriving them of a one-time monetary compensation. Neither of these objectives possesses the characteristics of grounds on the basis of which the Constitution permits restrictions on rights. In this respect, the restriction of the right to freedom of labour introduced by the challenged provision is disproportionate in light of the principle of the rule of law under Article 4, paragraph 1 of the Constitution.
Article 129, paragraph 3, item 2 of the Constitution unconditionally grants an irremovable judge, prosecutor, or investigating magistrate the right to be released from office by the respective body of the judiciary upon tendering a resignation. The internal contradiction between the content of Article 129, paragraph 3, item 2 of the Fundamental Law and Article 166, paragraph 3 of the Judiciary Act affects the precision of the legal framework and creates legal uncertainty, thereby undermining the principle of the rule of law.
The initiation of disciplinary proceedings against judges, prosecutors, or investigating magistrates does not mean that such proceedings will necessarily end with disciplinary release from office. Until the decision imposing the disciplinary sanction enters into force, they are presumed innocent of having committed a disciplinary offence; therefore, it cannot be asserted that those who have meanwhile tendered their resignation have in fact committed the violations under Article 129, paragraph 3, item 5 of the Constitution and that they will be disciplinarily released from office. The occurrence of a future uncertain event cannot constitute grounds for restricting rights guaranteed by the Constitution.
The submission of a resignation by a judge, prosecutor, or investigating magistrate during pending disciplinary proceedings against him or her does not constitute an abuse of rights within the meaning of Article 57, paragraph 2 of the Constitution, as asserted in certain opinions. Rather, it constitutes the exercise, in his or her own interest, of a constitutionally guaranteed right to release from office by reason of resignation. If, by exercising the right to resign, the person also seeks to obtain the one-time monetary compensation provided for by law, that issue falls outside the scope of the present constitutional review of the challenged provision and is to be regulated by the legislator pursuant to Article 22, paragraph 4 of the Constitutional Court Act.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 of the Constitution (the competence to rule on requests for a declaration of unconstitutionality of laws), the Constitutional Court declares unconstitutional the provision of Article 166, paragraph 3 of the Judiciary Act on the grounds of its inconsistency with the principle of freedom of labour under Article 48, paragraph 3 and the principle of the rule of law under Article 4, paragraph 1 of the Constitution.