THE CZECH REPUBLIC JUDGMENT IN THE NAME OF THE REPUBLIC

THE SUPREME COURT OF THE CZECH REPUBLIC 30 Cdo 2865/2012-275 THE CZECH REPUBLIC JUDGMENT IN THE NAME OF THE REPUBLIC In the case regarding R. H., born. 1967, residing in Děčín, Luby-Horní Luby, as the Assessed Person, represented by L.B. (her sister), born on, residing in, as the current Guardian, and M. L., Attorney-at-Law in Lysá nad Labem, Masarykova 1250/50, as the Guardian-ad-Litem, with the participation of Domov pro osoby se zdravotním postižením (Home for Persons with disabilities) in Luby, with its registered office at Luby-Horní luby 731, as the Petitioner, and with the participation of the District Prosecuting Attorney s Office in Cheb, the Supreme Court of the Czech Republic has decided through Pavel Pavlík, as the Presiding Judge, and Pavel Vrcha and Lubomír Ptáček, as the Judges on the Bench, on the restoration of legal capacity, a case conducted before the District Court in Cheb under File No. 19 P 36/2000, and on the Assessed Person s Application for Appeal Review on the Point of Law against the Judgment of the Regional Court in Pilsen of 23 May 2012, Ref. No. 18 Co 562/2011, as follows: The Judgment of the Regional Court in Pilsen of 23 May 2012, Ref. No. 18 Co 562/2011-247, is hereby set aside, the case being referred back to the said Court for further proceedings. R e a s o n s : By Ruling I of its Judgment of 1 September 2000, Ref. No. 19 P 36/2000-141, the District Court in Cheb revoked the decision on the Assessed Person s incapacitation which had previously been rendered by the District Court in Tachov on 29 December 1986, Ref. No. Nc 241//86-13. By Rulings II, III, IV and V, the District Court in Cheb ruled to release the current Assessed Person s Guardian from the Guardianship and appointment of a new Guardian and on the rights and obligations of the Curator. By Rulings VI and VII, the District Court in Cheb decided on the reimbursement of the costs of proceedings and the reimbursement of the costs of proceedings paid by the state. The First-Instance Court judged the case within the meaning of S. 10 (1) and (3) of the Civil Code, taking into

consideration also Article 26 of the Convention on the Rights of Persons with Disabilities promulgated under No. 10/2010 Sb. m.s. ( Convention ) whereunder states parties shall take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life. Based on the expert opinion, the court considered proved that the Assessed Person still had a mental disorder mental retardation on the boundary between a mild and a moderate handicap. The disorder is incurable, permanent and invariable. Furthermore, the Court ascertained that the Assessed Person was the Petitioner s client, living in the Petitioner s facility where she worked part-time as a laundry person. The Assessed Person was an active user of social services, being taught to buy consumer goods, to prepare meals, to travel, etc. Having interviewed the Assessed Person, the court held proved that the Assessed Person was capable to consider the need of various types of foodstuffs for day-to-day use, understood the meaning of the questions asked, and was capable of responding to them in an adequate and reasonable manner, the Assessed Person s social skills were gradually developing irrespective of her intellectual impairment, and the preparations for her moving to a rental flat were being finalised. Having said that, the Court held that, within the meaning of S. 10 (1) of the Civil Code, the Assessed Person still had a mental disorder of a permanent nature which (if judging it on the basis of the text of the Civil Code) would meet the conditions for adjudicating the Assessed Person incapable of legal acts. However, in the Court s opinion, a statutory provision cannot be interpreted in isolation, out of the context of the entire body of laws, but in accordance with the principle of reasonable application of a restrictive measure it must always be considered how the disability manifests itself in the person s day-to-day life and whether, practically, the person is limited or endangered by the disability at all. A decision on the necessity of application in accordance with the principle of reasonableness was rendered by the Constitutional Court in its Judgment of 18 August 2009, File No. I. ÚS 557/09, where the Constitutional Court provided direct guidance for the proportionality test in deciding on the legal capacity of an individual. The test consists of the following questions: a) Is the aim pursued a legitimate one? Is the aim that is pursed and promoted necessary in a free, democratic society? b) Is there a rational connection between the aim and the means selected to promote it? c) Are there alternative methods for achieving the aim which, when used, would make the interference in the fundamental right less intensive or rule it out entirely? In the above said decision the First-Instance Court said that when the principle of reasonableness had been applied, it became clear that the Assessed Person was an active participant of all the programmes needed for developing her personality, and in practically all the areas of her life the Assessed Person cooperated with social services providers and the Guardian her family member. These objective circumstances, together with the determined subjective level of the Assessed Person s handicap, practically exclude endangerment of the public interest in protecting the rights of the Assessed Person alone. In the event of an unexpected excess which might occur due to an unanticipated legal act of which the Assessed Person was subjectively incapable, invalidity of any such act is ensured by virtue of S. 38 (2) of the Civil Code. In addition, the Court judged the Assessed Person s legal capacity based on the results of her decision-making using what is called a functional test. The court said that no decision made by the Assessed Person in the past had been detected which would require her formal incapacitation. Upon an Appeal filed by the District Prosecuting Attorney s Office in Cheb, the Regional Court in Pilsen by way of its Judgment of 4 May 2011, Ref. No. 18 Co 467/2010-176, set aside Rulings I, IV, V, VI and VII of the Judgment of the First-Instance Court, referring the case in the said extent to the First-Instance Court for further proceedings. Being in agreement with the fact findings of the First-Instance Court, the Regional Court in Pilsen held that the evidence taken by the First-Instance Court showed that since the time of decision-making on the incapacitation of the Assessed Person, her capacity to make a range of ordinary legal acts had changed. Thus, the conditions for her full incapacitation were not met any more. The appellate was in agreement with the opinion of the District Prosecuting Attorney s Office in that due to the Assessed Person s disability she should be restricted in her legal capacity in some way, among other things with regard to legal certainty in specific legal relationships where third-party rights might be endangered. The Appellate Court ordered the First-

Instance Court to consider the areas where the Assessed Person is not capable of adequate legal acts. The Appellate Court was of the opinion that the area of management of higher financial amounts might be considered. During the subsequent proceedings, the District Court in Cheb, by way of Ruling I of its Judgment rendered on 9 September 2011 under Ref. No. 19 P 36/2000-206, changed the Assessed Person s incapacitation which was decided on by the Judgment of the District Court in Tachov of 29 December 1986, Ref. No. Nc 241/86-13 in such a manner that the Assessed Person was incapable only of such legal acts which concerned things of value of more than CZK 5,000 (cca 200 EUR). By Ruling II, the Court ruled that the Assessed Person s Guardian was entitled to make any and all legal acts in which the Assessed Person was restricted by virtue of Ruling I. By Ruling III, the Court decided that the Assessed Person s Guardian was entitled to attend any and all legal acts made by the Assessed Person and remained entitled to represent the Assessed Person in such legal acts which were connected with the personal situation, the personality or the protection of health of the Assessed Person. No legal act under Ruling III could be made by the Guardian against the Assessed Person s will. By Ruling IV, the Court rendered a decision on the reimbursement of the costs of proceedings and the reimbursement of the costs of proceedings paid by the state. Being bound by the above said legal opinion of the Appellate Court, the First-Instance Court drew the same conclusions in regard of the Assessed Person s mental disorder (among other things on the basis of the supplemented evidence) as in the previous decision. Once again the First-Instance Court took into consideration the provisions of S. 10 (1) of the Civil Code and Article 26 of the Convention on the Rights of Persons with Disabilities promulgated under No. 10/2010 Sb. m.s. ( Convention ). Thereafter, the First-Instance Court held that the Assessed Person still had a mental disorder of a permanent nature due to which she was obviously capable only of some legal acts. The Court said that the need to apply the said provision of the Civil Code in accordance with the principle of reasonableness had been pointed out also by the Constitutional Court of the Czech Republic in its Judgment rendered on 18 August 2009 under File No. I.ÚS 557/09. The First-Instance Court further said that the legal opinion which was binding in the present case required application of S. 10 (2) of the Civil Code to the established facts, and that specifically in relation to the property-related acts of the Assessed Person. In that, the Court took as the basis for its opinion the expert assessment of the Assessed Person s mental condition and other findings made in the proceedings whereupon the Court resolved that the Assessed Person was capable of managing autonomously amounts up to CZK 5,000. However, at the same time the Court said that no real endangerment of third-party rights by the Assessed Person s conduct had been proved. The Assessed Person participated actively in any and all programmes required for developing her personality and cooperated with social services providers and with the Guardian her family member in practically all the areas of the Assessed Person s life. These objective circumstances, together with the determined subjective level of the Assessed Person s disability, practically ruled out endangerment of the public interest in protecting the rights of the Assessed Person alone. In the event of an unexpected excess which might occur due to an unanticipated legal act of which the Assessed Person was subjectively incapable, or which was made in an instant situation of a more serious indisposition, invalidity of any such act is ensured by virtue of S. 38 (2) of the Civil Code. The Court concluded that the reasons that had originally led to the incapacitation of the Assessed Person ceased to exist. Because, having said that, it was clear from the fact findings that the results of the proportionality test covered the position and conduct of the Assessed Person in its entirety, there was no need to restrict her legal capacity beyond the scope of property-related acts with a worth exceeding CZK 5,000 in order to protect third parties. Upon an Appeal filed by the Assessed Person, the Regional Court in Pilsen, by its Judgment rendered on 23 May 2012 under Ref. No. 18 Co 562/2011-247, affirmed the Judgment of the First- Instance Court in accordance with S. 219 of the Code of Civil Procedure and decided on the reimbursement of the costs of the appellate proceedings. The Regional Court in Pilsen was in agreement with the conclusion of the First-Instance Court in that the conditions for full incapacitation of the Assessed Person were not met any more. The Regional Court said that due to the Assessed Person s disability the above said restriction of her legal capacity was correct, among other things

with regard to legal certainty in specific relationships where third-party rights might be endangered, but also with regard to the protection of the rights of the Assessed Person. The Judgement of the Appellate Court was served upon the Assessed Person on 13 July 2012, and became final and conclusive as of the same date. On 2 August 2012, the Assessed Person filed an Application for Appeal Review on the Point of Law against the Judgment of the Regional Court in Pilsen. The Application was filed via the Assessed Person s attorney and in a due time. The Assessed Person s Legal Counsel joined the Application by his submission dated 17 August 2012. The Assessed Person inferred admissibility of the Application from S. 237 (1) (b) of the Code of Civil Procedure and filed the same on the ground of S. 241a (2) (b) of the Code of Civil Procedure in her belief that the decision was based on an erroneous determination of law in the case. The Assessed Person said that the First-Instance Court concluded in its first judgment that no endangerment of third-party rights was proved and, at the same time, these objective circumstances, together with the determined subjective level of the Assessed Person s disability, practically exclude endangerment of the public interest in protecting the rights of the Assessed Person alone. The Assessed Person said that protection of the rights and interests of the Assessed Person as well as third parties was ensured by a system of measures where the key protective measure subsisted in providing support, any restrictive measures being considered an extreme solution. In this context, the Assessed Person referred to the Convention on the Rights of Persons with Disabilities (Article 12) and, to a certain extent, to the provisions on the principle of support as a priority measure and the principle of strict subsidiarity of legal capacity restriction which is explicitly embodied in the newly enacted Civil Code. The wording of S. 10 of the current Civil Code and the established practice are probably based on what is called a status approach. In addition, in S. 21 of its Judgement of 18 August 2009, File No. I.ÚS 557/09, the Constitutional Court said that a legal norm that permits restriction of fundamental rights must be interpreted and applied in view of the significance and extent of relationships that cover the fundamental rights being restricted. The legal norm can be applied only determining carefully which conflicting fundamental rights of third parties, or which public interests, are in conflict with the fundamental rights of the person whose rights are being restricted, and such determination must be stated in the reasoning of the decision. The said Judgment of the Constitutional Court (S. 22) provides direct guidance for using the proportionality test. Although in the reasons for the decision vacating the first-instance judgment the Appellate Court said that it considered undoubted that incapacitation, or restriction of legal capacity, always represents a serious interference with the personal integrity of the restricted person and that it was aware of the current trends and that no endangerment of third-party rights was obviously proved in the present case and the established objective circumstances, together with the determined subjective level of the Assessed Person s disability practically excluded endangerment of the public interest in protecting the rights of the Assessed Person alone, on the other hand the Appellate Court resolved as follows: However, the appellate court is in agreement with the opinion of the District Prosecuting Attorney s Office that in view of the Assessed Person s handicap, the Assessed Person should be restricted in in her legal capacity some way, taking into consideration, among other things, certain legal certainty in specific legal relationships where third-party rights might be endangered. In the opinion of the Assessed Person, such conclusion is in conflict with the fact findings of the First-Instance Court and its legal arguments. Therefore, restriction of the Assessed Person in her legal capacity is a result of an erroneous determination of law in the case by the Appellate Court. Based on that, the Assessed Person filed the Application for Appeal Review on the Point of Law to move the Supreme Court of the Czech Republic for vacating Ruling I of the Regional Court in Pilsen and the Decision of the First-Instance Court of 9 September 2011. The District Prosecuting Attorney s Office in Cheb provided its opinion on the Application for Appeal Review on the Point of Law, referring to its previous response to the Assessed Person s Appeal, and moved for the Application for Appeal Review on the Point of Law to be dismissed. The Supreme Court, as the Appeal Review Court (S. 10a of the Code of Civil Procedure) took into consideration Article II Section 12 of Act No. 7/2009 Sb., to amend Act No. 99/1963 Sb., the

Code of Civil Procedure, as amended, and other related laws (the Judgment of the Appellate Court was rendered on 23 May 2012; therefore, the said procedural regulation is applied in the version effective as of 1 July 2009). The Appeal Review Court decided that the Application for Appeal Review on the Point of Law was filed by an entitled person, duly represented by an Attorney-at-Law pursuant to S. 241 (1) of the Code of Civil Procedure, and within a period defined by S. 240 (1) of the Code of Civil Procedure. The Application for Appeal Review on the Point of Law has the contentrelated and formal elements as required by S. 241a (1) of the Code of Civil Procedure. Therefore, the Application is admissible insofar as it was filed against the ruling on the merits of the case pursuant to S. 237 (1) (b) of the Code of Civil Procedure. Thereupon, the Appeal Review Court reviewed the ruling on the merits of the case challenged by the Application in accordance with S. 242 (1) to (3) of the Code of Civil Procedure, and concluded that the Application was reasonable. As it follows from S. 242 (1) to (3) of the Code of Civil Procedure, the legal regulation on the concept of application for appeal review on the point of law is generally based on the principle of the Appeal Review Court being bound by the filed application for appeal review on the point of law. In that, the Appeal Review Court is bound not only by the extent of the Application, but also by the reasons claimed in the Application. As well, where the Application for Appeal Review on the Point of Law is admissible, the Appeal Review Court must take into account also any errors listed in S. 229 (1), S. 229 (2) (a) and S. 229 (3) of the Code of Civil Procedure and any other errors in the proceedings which might have led to an erroneous decision in the case, even if such errors were not claimed via the Application for Appeal Review on the Point of Law. However, no such errors were found in the contents of the file. The appeal review reason which was claimed pursuant to S. 241a (2) (b) of the Code of Civil Procedure applies to cases where the decision challenged by an application for appeal review on the point of law is based on an erroneous determination of law in the case. It is a court s error in applying the law to the established facts. Such situation occurs when the court either uses a legal norm other than should have been used, or applied a correct legal norm but interpreted the same wrongly. An erroneous determination of law may provide an eligible appeal review reason only if it was decisive for the ruling of the appellate court. The concept of incapacitation, or restriction of legal capacity, is not a sanction. It is a measure used primarily to protect the interests of the individuals who cannot make legal acts with sufficient own accountability due to their mental condition. As well, it serves for the protection of persons who entered into legal relationships with such individuals. If an individual who was incapacitated pursuant to S. 10 (1) of the Civil Code or an individual whose legal capacity was restricted pursuant to S. 10 (2) of the Civil Code makes a legal act of which such individual is incapable under a court s decision on incapacitation or restriction of legal capacity, such legal act is null and void in accordance with S. 38 (1) of the Civil Code (see, for example, the Judgment of the Supreme Court of 12 February 2009, File No. 30 Cdo 2542/2008). Restriction of legal capacity or incapacitation is a measure subsisting in necessary limitation which may last only for the shortest time possible, as long the reasons having led to the restriction of legal capacity or incapacitation remain persist (see the Judgment of the Supreme Court of 19 February 2009, File No. 30 Cdo 4582/2008). At the same time, it is essential to point out that the Constitutional Court, for example in its Judgment of 13 December 2007, File No. II. ÚS 2630/07, proceeded in fact from the deliberations that interference must be avoided with rights protected by the Constitution, specifically with the capacity to have rights (Article 5 of the Charter of Basic Rights and Freedoms). It is necessary to avoid a procedure which would have features of a formal, schematic view of the case at issue, without any effort to take an individual approach to each case while accepting uncritically the conclusions of expert opinions which frequently formulate answers to the courts enquiries in a way going beyond the scope of an expert assessment and influencing directly the decision-making by the court, giving a direct instruction as to how the court should decide in the case. Thus, the decision is not a decision of an autonomous court; it is a decision of the court-appointed expert. In this context, the Supreme Court considers essential to point out the identical legal conclusions

of the legal doctrine and case law of (primarily) the Constitutional Court, there being no reason to depart from these in the present case. One of such conclusion is, mainly, that a medical professional s statement in the form of an expert opinion is of major importance and one of the key means of evidence in the proceedings where a decision is to be rendered on a person s capacity to make legal acts. In that, the tendencies of the courts towards limiting themselves to the expert opinion as the only piece of evidence and accepting its conclusions uncritically without reviewing them at all need to be refused fully (the case law was negative about such practice even during the totalitarian state; see for example decisions No. R 44/1967 or R 3/1979). Another such conclusion is that the court must determine how the person subject to assessment really behaves, how he or she acts in contact with people, takes care of his or her household, manages his or her property; the experts must be confronted with these findings and give their opinion on the same when examined. On the other hand, the court must consider and decide whether there is any reason at all for restricting legal capacity (Švestka, J., Spáčil, J., Škárová, M., Hulmák, M. a kol. Občanský zákoník I. 1-459. Komentář. 1. vydání. Praha: C. H. Beck, 2008, str. 109 / Švestka, J., Spáčil J., Škárová, M., Hulmák, M. and other authors, Civil Code I. SS. 1 to 459. Comments. Issue 1, Prague: C. H. Beck, 2008, p. 109). Also, in its Judgment of 18 August 2009, File No. I. ÚS 557/09, the Constitutional Court analysed in detail and from the point of view of constitutional law the concept of incapacitation (restriction of legal capacity). For the purposes of this case, the following legal arguments can be quoted: In judicial decisions to restrict legal capacity, it will always be necessary to diligently see to it that the legal capacity not be restricted in a scope greater than what is absolutely necessary to protect the fundamental rights of third parties and other constitutionally protected values for the benefit of whom or which the fundamental rights of the affected person are to be diminished; as the extreme limit (which, however, cannot always be reached in terms of the principle of proportionality), it is necessary to respect the limit set by Article 4 (4) of the Charter 1. From that point of view, the institution of removal of legal capacity, which is an obvious relic of the old regime, is constitutionally considerably problematic. [It is surely significant, that the legal orders of our western neighbouring states, Austria and Germany, do not recognize removal of capacity to perform legal acts, or removal of capacity to manage one s own affairs, and as of 1 January 2009 this concept has also disappeared from the French Code Civil, where, from the late date, we can conclude that this is a result of the (somewhat delayed) French acceptance of the normative effect of fundamental rights on the activity of the law-maker.] The general courts must always measure all the more moderate alternatives [s. 23 (c)] through which the pursued aim could still be attained in terms of protection of specific, identified competing rights or public interests derivable from the constitutional order, and restriction of legal capacity must always be considered the most extreme means. The fact alone that a person suffers from a mental disorder does not still provide grounds for restricting his or her capacity to perform legal acts, or, to use the language of fundamental rights, for restricting his or her fundamental rights (the right to legal personality and human dignity); it must always be specifically stated, who, or what, is endangered by the full legal capacity (preservation of legal personality) of the affected person, and it is also necessary to justify why the situation cannot be addressed using more moderate means. In other words when deciding to restrict a person s capacity to perform legal acts (or the scope thereof) the subsidiarity of that measure must always be applied thoroughly (the newly prepared codification of civil law also takes into account this constitutionally normative principle arising from the very essence of a substantive law-based state see sections 19, 20, 21) in cases where decisions are made on restricting a person s legal capacity, the court is required to identify, in the particular case, the competing right or value or interest protected by the constitutional order because of which the restriction of the abovementioned fundamental rights of the affected person is to take place. In connection with this requirement, the court is obligated to ensure complete and reliable findings on the personal situation of the affected person, i.e. how he or she behaves in social contact with members of the civil society, takes care of him and his family s needs, manages money, behaves at his or her workplace, as the case may be, etc. In this type of proceedings an expert opinion is a 1 Charter of fundamental rights and freedoms (Czech Republic)

major piece of evidence, but it may not be the only evidence, and may not make up for a lack of findings of fact. Before the fall of communism, the judiciary believed that removal or restriction of legal capacity was a measure that was to protect, but not damage or endanger interests in the capacity of the affected citizen (further, see From the Report on the Quality of Proceedings and Decision-Making by Courts of the Czech Socialist Republic in Matters of Legal Capacity, discussed and approved by the Civil Law Division of the Supreme Court of the Czech Socialist Republic, No. Cpj 160/76 of 18 November 1977, R 3/79). In the present legal environment, formed by the Czech constitutional order, this idea (which then arose from the achieved unity of the interests of the individual, the whole society, and the state, as that unity of interests was presumed to exist by the Constitution of the Czechoslovak Socialist Republic of 1960, demonstrating thereby the achievement of socialism on this issue, see Wagnerová E.: Základní práva [Fundamental Rights], in Komunistické právo v Československu, Kapitoly z dějin bezpráví [Communist Law in Czechoslovakia: Chapters from the History of Lawlessness], M.Bobek, P.Molek, V.Šimíček (eds.), Masarykova univerzita [Masaryk University], 2009, pp. 330-363) must be modified by separating the interests of the individual, the society, and the state (as is standard in the constitutional law theory of democratic liberal states), and also it is essential to take as a starting point the idea of priority of a fundamentally free, autonomous individual who cannot be prevented by the state from pursuing his idea of happiness by forcing upon him state protection where the individual, perhaps with the help of his family, can take care of himself (the principle of subsidiarity). As it follows from the very brief reasoning of the Judgment challenged, the Appellate Court used as the basis for its deliberations the fact that the Assessed Person suffers from a mental disease which is not only temporary. Furthermore, the Court provided (without any further and more detailed assessment) a picture of the manner in which the Assessed Person provides for her needs and the circumstances under which she does so. The decision whereby the extent was defined of the restriction of the Assessed Person s legal capacity was in principle explained by the Appellate Court by the above mentioned statement that due to the Assessed Person s handicap she should be restricted in her legal capacity in some way, among other things with regard to legal certainty in specific legal relationships where third-party rights might be endangered, but also with regard to the protection of the rights of the Assessed Person. It is beyond any doubt that a decision which is so reasoned and determines and specifies the extent of the restriction of legal capacity must be regarded as entirely vague and not in accordance with the principles of application of S. 10 (1) and (2) of the Civil Code as explained above. As the above shows, from the perspective of the asserted reason for the Application for Appeal Review on the Point of Law the challenged decision cannot be considered correct. Therefore, the Supreme Court of the Czech Republic, acting in the capacity of the Appeal Review Court (S. 10a of the Code of Civil Procedure), vacated the Judgment of the Appellate Court taking into consideration S. 243b (2) and (3) of the Code of Civil Procedure. Since the First-Instance Court was bound by the legal opinion of the Appellate Court which quashed its previous decision on the merits of the case, the reasons for vacation by the Appeal Review Court apply also to its Judgment of 5 September 2012. Therefore, the Appeal Review Court quashed also that decision and referred the case back to the First- Instance Court for further proceedings (S. 243b (3) sentence (2) of the Code of Civil Procedure). The Appellate Court (First-Instance Court) is bound by the legal opinion of the Appeal Review Court (S. 243d (1) sentence (1) of the Code of Civil Procedure in connection with S. 226 (1) of the Code of Civil Procedure). The decision on the reimbursement of the costs of proceedings, including the costs of the appeal review proceedings, will be rendered as part of the new decision on the merits of the case (S. 243d (1) sentence (2) of the Code of Civil Procedure). No remedy against this Judgment is available. In Brno on 22 November 2012

Person responsible for the accuracy hereof: Ivana Čechovská JUDr. Pavel P a v l í k Presiding Judge