Foto: Jakub Hněvkovský
A decision is expected by the end of February, and it could cost the state billions of crowns.
The NSS, based in Brno, South Moravia, is still a fairly young institution. Baxa says that seven years is a fairly long time for the court to be able to gain respect and credibility and to gain a place in the public consciousness so people can stop mistaking it for the Supreme Court (NS ČR). “But otherwise, I think that seven years in the life of a new institution is almost nothing,” he says.
Baxa became a magistrate at the Regional Court in Plzeň, West Bohemia, in 1984 and became the court’s deputy chair in 1990. In the 1990s, he took part in establishing the law school at the University of West Bohemia in Plzeň, where he still lectures on criminal law.
He became deputy minister of justice in 1998. He remained in this role until 2002 and was involved in preparing the major amendment of the Criminal Code, as well as the creation of a new institutional and procedural framework for administrative justices. In January 2003 then-President Václav Havel appointed him to chair the NSS, a position he retains to this day.
Q: What were the first seven years in the existence of the NSS like?
A: Our court is still trying to catch up because it hasn’t been around for long. Specialized administrative courts did not exist in post-war Czechoslovakia. Some elements were created in the 1990s, but only in 2003 was a full-fledged supreme institution established. So there is much catching up to do. That’s why we are still trying to synchronize everything internally. To the outside world, the court must have a single mouthpiece. It isn’t good if individual panels of judges make different decisions because then the court works more like a lottery and this weakens the credibility of each ruling.
Q: You have made 20,000 rulings so far. Is the content of these rulings changing in any way? Could some opinion in a ruling from, say, 2004 differ from the court’s opinions today?
A: Of course. The court jurisprudence is supposed to be a point of stability in today’s legislative craziness, but it can’t become stale. Increasing access to the court is a strong trend, derived from the long absence of administrative courts. In the past, a long list of decisions by administrative institutions that affected the rights of natural persons and corporations could not be examined by courts. An institution would make a decision, and that would be it. These rulings would be considered as strictly procedural or as not having any effect on people’s rights. The current trend is to remove these opaque areas. For instance, the policies of financial offices regarding insurers or chattel mortgages, the binding decisions of heritage offices regarding investors’ building reconstruction plans, or cases where, for example, someone’s driver’s license is suspended while a ruling on a traffic offence is pending.
Q: What do you appreciate about the work your court does?
A: I always feel very good when we bring justice somewhere where it wasn’t before—when we don’t resolve just one thing but also make a bigger impact, when institutions then change their policies. I am also pleased that our court has never succumbed to political pressure and has thus always been able to make nonpartisan, independent decisions.
Q: What can political pressure look like?
A: Of course, it’s not about someone picking up the phone and telling us what ruling we should make. No one is that stupid these days. But it can happen through media pressure. Certain statements made by politicians contain a coded message: ‘You should realize that if you continue making certain types of decisions, it just might happen that there won’t be enough money for your salaries.’ You can also come across opinions that unelected, irresponsible judges wield too much power. There are proposals to change laws so that courts would have less power and judges a more limited role.
Q: In the first half of 2007, Czech law lacked information on establishing a base amount to calculate social security payments. Experts say this could cost the state more than Kč 100 billion (€3.8 billion). Could that happen?
A: Of course. I don’t want to anticipate how this case will end, but I would expect some self-criticism in politicians’ discussions of their own actions that have led to a situation that is today a source of court disputes. It should have been a lesson that laws simply cannot be created and changed this way.
This specific case is not an exception; it’s a typical example of the legislative chaos that accompanies the adoption of laws. Sometimes a flaw creeps in by accident. And sometimes the procedure can be used to quietly smuggle in some change. But instead of reticence, we read all sorts of excuses or strong statements, combined with catastrophic scenarios that could befall us all as a result of some court decision.
Q: Can the high amount in some way affect the judges making the ruling?
A: Yes, judges read newspapers. They don’t live detached from the world. But their task is not to guard the state coffers; it is to protect basic rights and freedoms. The economic situation of the state shouldn’t play any role in the decisions made in connection with this case. The important thing is to make fair decisions in line with basic legal principles and with the Constitution. The value of that is incalculable. It would be wrong to categorize decisions based on how expensive they are and to try to avoid expensive ones and make economic decisions. Justice can be costly, but ultimately the price of injustice ends up being much higher for everyone.
Q: The Supreme Administrative Court was planned since 1993, but wasn’t established until 2003. What are the negative impacts of this delay?
A: The absence of court control allowed everyone to do whatever they wanted. The executive branch could make decisions without any effective court control. In the 1990s administrative justice existed only in a very basic form. At the time, it was referred to as regional law because there was no procedural mechanism in place able to streamline the decisions of regional courts. Laws evolved differently in every region, and the executive branch knew this, so it didn’t worry too much about regional courts. The Supreme Administrative Court helps streamline the decisions made by regional courts and thus gives them greater weight.
Q: But even today state administrators ignore court decisions. How can they be persuaded to respect your court’s decisions?
A: The power of the judicial branch is always the weakest because it doesn’t have its own soldiers who could enforce decisions. If an institution ignores a court ruling, a whirlwind starts up. When the court gets another similar case, it makes the same decision in a more forceful way. The state administration sometimes continues to ignore our jurisprudence, but some of our decisions are so unacceptable for administrative bodies that they try to change existing laws.
This then logically generates new conflicts that then end up before a court. But I would say that the situation is generally improving. We’re not seeing any consistent disregard of court decisions. Sometimes it takes institutions a while to adopt our decisions, but in the end they fall in line.
Q: Do institutions respect court decisions in specific cases or not?
A: They do. Sometimes grudgingly, but in the end they do. The problem is that they refuse to apply court decisions in a general way. The institution might say that the ruling is binding in some specific case but won’t adjust its general policies in line with the ruling. State administrators are not yet accustomed to being restricted by judicial powers. But I don’t want to appear to be discrediting state administrators. Administrative institutions aren’t particularly fond of administrative courts, but they generally pay heed to them and respect their decisions.
Q: What was your life like as a magistrate?
A: In the long term, I felt that the court was dealing with less important matters rather than the sort of criminal activity that has a truly negative impact on society.
Q: Do you have in mind economic criminal activities, for instance?
A: Yes, for example. But generally, cases, where, if the court ruling is fair and timely, you can feel that the judicial system works and helps protect us. I was starting to feel that we are spending time on insignificant cases and neglecting the really big issues.
Q: What would you say is the biggest benefit of the new Penal Code?
A: The new code has meant taking stock and revising the old penal code. It did away with a code that dated back to the 1960s, revising its content. We now have new facts of the case that reflect the current social situation. No one can refuse anymore to uphold laws simply because they are hangovers from the communist system.
Q: The changes made to criminal law are basically twofold—the Penal Code and the Code of Criminal Procedure. But the changes to the administrative law are fragmented into many different regulations. How much of a problem is this?
A: Criminal justice is like an ocean without boundaries. The nature of administrative law doesn’t allow for codification. It is too diverse. But it is necessary to cultivate it through common principles. For instance, I don’t even know why the administrative law can’t stand alongside the tax law—two very extensive and opaque, but at the same time similar, as well as different procedural regulations.
Administrative justice is typical magisterial law, made up by officials. It undergoes a legislative process, the law then comes back to them and then they apply it. Besides that, it is affected by ‘departmentism’: each ministry prepares its laws alone, and there is no force unifying the process of law creation.
Along with the ever-expanding legal system and its increasing chaos, unnecessary interpretation puzzles are created. The laws are not streamlined, in some cases simply because everyone uses different terminology for similar things. In the last few years, courts are trying sort through the thicket. Trying to find a solution for specific conflicts may be their job, but it just weakens the symptoms rather than helping find a cure.
Q: So it is not possible to streamline administrative laws into a single legal code. Is it possible to do this with procedural regulations?
A: Certainly. If you need to take care of administrative matters these days, you might go, for instance, to the social office, the financial office or the building office. In every place, you will encounter completely different procedural regulations. The administrative officers in each place will speak a different language. But these differences are often artificial. It’s because the laws are made by different groups of legislators.
Q: Do you have a recipe for avoiding complications when interacting with various state institutions?
A: If you arrive at the office annoyed because you have to be there, you are likely to get yourself into a conflict. We should try to understand one another better, and then we can find common ground. A state administrator could do more than he has to, and do it gladly, if the person interacting with him isn’t making it clear that the administrator’s salary comes from taxpayer money and that the administrator is slacking off. If this stereotype appears, the administrator is less likely to cooperate.
Q: What sort of a message would you say the NSS gave when it made its ruling on the proposal to dissolve the far-right Workers’ Party?
A: Imagine two sides of a scale, being used to evaluate basic constitutional values. On the one side, there is freedom of speech [and] freedom to assemble in public, and on the other side there is what our proposal claims: a violation of the Constitution and of laws and a threat the democratic principles of the state. If that were, indeed, the case, it would be a matter of whether or not the society is strong enough to withstand the pressure of such an organization in the public sphere or if the need to activate mechanisms that serve to protect democracy will win, and we will say, no, such organizations do not belong in democratic politics.
Q: What are the risks if we choose to activate the protective mechanisms?
A: The proposal to suspend the activities of the party or to dissolve the party can come from the government or from the president—the current winners of political competition, and therefore not in any way neutral institutions. These are political institutions and they have their political powers and political interests. Simply put, it means that the winning political force has the opportunity to propose doing away with another political competitor from the next political competition, In other words, it can eliminate its future competitor. And that can be very tempting.
The winning competitor thus has a tool to knock another competitor out of the race. Only a third party—that is, the court—can decide whether that tool is being used fairly and wisely. So now it’s not a matter of whether or not the government proposal will be carried out. It’s more important to be able to say why we are doing this. It will be a precedent for future situations. We can leave aside the question whether this concerns some obscure party or an established political organization.
Q: Is our society strong enough? Or is it fragile and in need of protection?
A: That is the subject of our discussions. The older ones among us have spent a significant part of their lives living in a society that wasn’t free. And maybe for that reason, we are more sensitive to any signs of curbing freedom. But that is just one of several opinions.
Q: Do you think that the system we live in is sustainable?
A: With all due respect for what we have accomplished and for those who have helped us get where we are, I think it is necessary that our system undergoes some change. I feel that the elite groups are failing somewhat, and that there is a lack of debate among strong personalities in the public sphere that would help formulate key ideas about the state of our society and about where we should be heading. Such a debate would help single out the key values of our society.
Q: But the demand doesn’t seem to be that high...
A: That is true. And I would say that this should be the job of the media, which can actively seek out issues and initiate public discussion on how the issues should be resolved. The media should give more space to the ruling elites. But today the media sphere is replete with the private lives of comedians, pseudo-issues of all kinds—basically many words but very few ideas.
The pages of newspapers shouldn’t be filled with the recycled ideas of the same group of politicians and their short-term political interests. There should be room for wise individuals who are able to formulate certain ideas. People who would read something like this or see it on TV would then maybe seek out such ideas in the platforms of the parties they plan to vote for. ...
Q: How can things change?
A: I believe in the arrival of a new generation. Our generation carried the weight of the social transformation. Our backs are now sore. Someone needs to help us and take our place—people who have spent a significant part of their lives in a free society and are aware of what is still lacking. They will be the ones who limit the time spent on unimportant issues and the agents of these issues and who will bring new topics and new demands to the public sphere. Maybe they will convince those with the power change the system and to enforce the order necessary for the functioning of a free society to actually use that power.