From Bar to Bench: Six Years

Tomáš Rychlý

It has been six years since I joined the Czech Supreme Administrative Court ("SAC"). I take (again) this opportunity to briefly look back and attempt to summarise in short notes my experience and the differences between the professions of an attorney and a judge (as I see them).

I.

It was a great honour to join a distinguished company such as the team of judges at the SAC. This means working in professional, collegial and very tolerant environment. Although each of the judges has his/her judicial philosophy, (sometimes very strong) value judgments and cultural or religious Weltanschauung, this has never prevented us to exchange our views and, once the matter is resolved, to remain good and respectful colleagues. And there are no snotty types among us either. I view this as something quite unique, especially given that our society appears more and more divided, various social groups tend to encapsulate themselves in separate social bubbles, and - sadly - people seem to be losing their ability to communicate across the dividing lines of different political allegiances and philosophical worldviews. 

The sense of collegiality is strengthened by the fact that all judges are communicating with each other on a first-name basis (in Czech this means calling people "ty" instead of "vy" which resembles the French concept of "se tutoyer").

The uniquely cordial and collegial atmosphere at the SAC is probably caused mainly by the fact that this is the "youngest" judicial institution in the Czech Republic, founded in 2003. Its enlightened first chairman, Mr. Josef Baxa, decided to select judges from various legal professions and created a unique "mix" of people with very diverse background but who share the good will to work together while keeping their own values and judicial philosophies.

II.

My experience of an attorney - viewed from a six years' distance - shows that the dynamics of the attorney's profession has dramatically changed, especially during the last decade. In the nineties, the lawyers working at commercial law firms were able to concentrate almost 100% on legal work and delegate most of the agenda of billing and marketing to non-legal staff. The work was incoming "naturally", almost without any efforts. However, the economic downturns (first in connection with dot.com bubble in 2000, and then in connection with the fall of Lehman Brothers in 2008) brought downward pressures on fees and upward pressures on non-legal skills of senior lawyers and partners. This could have been caused by my growing seniority, but I think that it was also caused by the changing dynamics of the legal market: I had to dedicate much more time to administration, billing, business development, debt collection, HR, etc. etc. 

The work of a judge at SAC -on the other hand - means the "luxury" of focusing only on questions pertaining to the cases. This is "pure lawyering" with minimal distractions of administrative work and obviously with the absence of interaction with clients. And that is how it should be, of course -the parties rightly require the judge to fully concentrate on their case! At the same time, the State guarantees relatively decent remuneration. While it is substantially lower than remuneration of a partner of top law firm in Prague, It provides the judge with the adequate level of security.

III.

In this context, it is quite unfortunate that the Czech government decided to reduce the salary of all judges with effect from 1 February 2022 as a part of the efforts to reduce the Czech state budget deficit. Although this has been rectified with effect from 1 January 2023 when the judges' salaries increased to appropriate, formerly guaranteed level, it remains a dangerous precedent which could be used (or misused) by the government again in the future.

The Czech government reduced the salaries in 2022 without any discussion with the professional association of judges, while (mis)using the emergency legislation procedure, which is normally dedicated to extraordinary situations such as the typical force majeure events (natural disasters etc.). This means that the government ignored not only common sense but also the precedential rules which had been earlier set out by the Czech Constitutional Court regarding the determination of judges' salaries in the context of the independence of judiciary.

Clearly, the source of these issues is the concept where the judges' salaries are in the same basket (governed by the same Act of Parliament) as the salaries of the members of the Parliament and of the government. So, in situations where the politicians from the executive or legislative branch of power wish to demonstrate their will to freeze or reduce their own salaries, they "automatically" cause the judges' salaries to change as well. And when the judges express their critical opinion concerning the above, some Czech politicians describe them as "greedy" and not showing enough "solidarity". This in turn creates unnecessary tensions between the judicial and the other branches of power.

This has been happening even though the judges' remuneration was made dependent on the development of macroeconomic criterion (average salaries in Czechia) so that it grows or declines automatically with the changes of the relevant criterion. It would be reasonable if the Czech politicians showed a "hands off" approach. Otherwise, the ever-occurring changes to the judges' salaries or to the method of their calculation will be an unwelcomed distraction and will create unnecessary tensions between different branches of power.

IV.

The Supreme Administrative Court is - as its name suggests - a "precedential" court and its key role is to unify the interpretation of the pertinent statutes. It is a level above the Czech regional courts which decide on the administrative matters as the first instance courts. However, the SAC also decides on many trivial matters; apart from (rather sparse) landmark rulings, e.g. it (a) re-examines the evidence, presented before the public authorities, (b) decides on appeals against resolutions of regional courts if they dismiss the motion for the appointment of a counsel, (c) decides on matters, even if the pertinent legal questions has already been resolved by SAC, which means that the SAC has only to repeat the arguments which have already been presented in the first SAC judgment of its kind. This issue of SAC deciding on trivial matters would be sufficient to fill in the programme of a one-week conference, so this needs to be rectified by urgent changes in the legislation.

V.

Under the Administrative Procedure Code, the complainant must be represented by a counsel who is a professional Czech attorney (or Czech law graduate). Unfortunately, the law is not always read, meaning that the counsel must draft the submissions to the SAC. Furthermore, even if the submission is drafted by the professional, this - quite unfortunately - does not guarantee high quality of the arguments presented. I was surprised to see that some counsels even fail to present any relevant arguments ("neprojednatelnost") which results in dismissal of their complaint without deciding on the merit. In my view, this shows the lack of appropriate education (at Czech universities) or training (e.g., organised by the Czech Bar) and the low-quality complaints are one of the many grains of sand which contribute to protracted proceedings before SAC.

Notes: The above text was originally published at LinkedIn in January 2022. This version has been updated on 6 February 2023. Any views expressed above are personal views of its author and should not be attributed to the Supreme Administrative Court.

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Image: https://www.denik.cz/galerie/tomas-rychly.html?back=3196535563-36-1&photo=3