The Constitutional Court found No 161 / 2014 Coll.
The Constitutional Court's finding of 10 July 2014, sp. zn.
Valid
161
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on page Pl. ÚS 28 / 13 on 10 July 2014 in plenary, composed of the President of the Court of Pavel Rychetský and Judge Louis David, Jaroslav Fenyk, Jan Filip, Vlasta Formánková, Ivana Jana, Vladimir Krářík, Jan Musil, Vladimir Sládeček, Radovan Suchánek, Kateřina Šimáková, Vojtěch Šimíček, Milady Tomková (Judge of the Rapporteur) and Jiří Zemánek, on the proposal of the Municipal Court in Brno, in accordance with Rule 95 (2) of the Constitution of the Czech Republic and Members of the European Parliament, in the wording of Act No. 11 / 2013 Coll., and in Section II of Act No. 11 / 2013 Coll.
as follows:
I. The provisions contained in Article 3 (3) of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of the State and of certain State institutions and judges and Members of the European Parliament, as last amended by Act No. 11 / 2013 Coll., expressed as "2.75 times" as regards judges of the District, Regional, Supreme Court, Supreme Court and Supreme Administrative Court, shall be repealed as from 31 December 2014.
II. The remainder is rejected.
Reasons
Definition and recap of the proposal
1. On 24 May 2013, the Constitutional Court received a motion from the Municipal Court in Brno to abolish the word "2,75 times' in the provisions of § 3 (3) of Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the duties of representatives of state power and of certain state authorities and judges and Members of the European Parliament, as amended, and on the provisions of Article II of Part One of Act No. 11 / 2013 Coll., amending Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of state authority and of certain state authorities and judges and Members of the European Parliament, as amended, and on certain other laws, together with the proposal for a preliminary ruling in the case under Article 39 of Law No. 182 / 1993 Coll.
2. The Municipal Court in Brno submitted the application in accordance with Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court) after having concluded, in accordance with Article 95 (2) of the Constitutional Law of the Czech National Council No 1 / 1993 Coll., the Constitution of the Czech Republic (hereinafter referred to as the Constitution), that:
• Paragraph 3 (3) of Act No. 236 / 1995 Coll., as amended by Act No. 11 / 2013 Coll., in the word "2.75 times"; and
• the provisions of Part One of Article II of Act No. 11 / 2013 Coll.,
which are to be used in the resolution of sp. v.
3. In the case in point 50 C 22 / 2012, the Municipal Court in Brno is decided on the action which the Court of Justice of the Regional Court in Brno seeks against the Czech Republic - Regional Court in Brno to pay the amount of the difference between the claim for a salary within the meaning of § 28 to 31 of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of the State and of certain state bodies and judges and Members of the European Parliament in relation to the period January and February 2013, as amended, (hereinafter referred to as "Act No. 236 / 1995 Coll.," or by extension of the Act on a salary ') and between the reimbursement of expenses (hereinafter "compensation of expenses') in relation to the period of January and February 2013, as amended by Act No. 11 / 2013 Coll.
4. With reference to the applicant's claim in the abovementioned case, the appellant states specifically that for January 2013 the claimant was not paid the full salary of CZK 105 800 and the full reimbursement of the expenses of CZK 4 100, to which he should be entitled without a reduction in salary and reimbursement of expenses by Act No. 11 / 2013 Coll. The claimant was paid a salary of only CZK 90 600 and the reimbursement of expenses in the amount of only CZK 3 500, the difference in salary and reimbursement of expenses is the defendant's sum of CZK 15 800. The same applies to February 2013.
5. The appellant in the Constitutional Court of the proposal under consideration in this context also refers to the provision of § 3 (3) of Act No. 236 / 1995 Coll., as amended by Act No. 11 / 2013 Coll., according to which the new salary base from 1 January to 31 December of the calendar year 2,75 times the average nominal monthly salary of individuals in the non-business sphere obtained according to published data of the Czech Statistical Office (hereinafter "the CSU") for the previous calendar year, the amount of the salary base for the relevant calendar year being published by the Ministry of Labour and Social Affairs in the Collection of Laws. This communication was published in the Collection of Laws on 22 January 2013 under No 18 / 2013 Coll. and the amount of CZK 62 856.75 was set as the platform for judges for 2013.
6. In relation to the unconstitutionality of the above-mentioned provisions, the appellant before the Constitutional Court took the following arguments. First he challenged the defects concerning the legislative process and objected to the inadmissible retroactivity of Act No. 11 / 2013 Coll. Subsequently, he presented an economic argument and described the evolution of pay restrictions against judges.
7. The appellant first argued that the reasons for declaring a state of legislative emergency by the President of the Chamber of Deputies of the Parliament of the Czech Republic (hereinafter referred to as the Chamber of Deputies), referred to in Section 99 of Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, as amended (hereinafter referred to as the Rules of Procedure), were not fulfilled. At the outset, the appellant recalled that the Constitutional Court, by finding sp. zn. Pl. ÚS 33 / 11 of 3 May 2012 (N 95 / 65 SbNU 259; 181 / 2012 Coll.), cancelled the word "2.5 times" in § 3 (3) of Act No. 236 / 1995 Coll., as amended by Act No. 425 / 2010 Coll., at the end of 31 December 2012, after which the Government submitted to the Chamber of Deputies an amendment to Act No. 236 / 1995 Coll. as a print No. 763 on 30 July 2012. However, according to the appellant, this proposal could hardly be considered a government bill within the meaning of Article 41 of the Constitution, since it could not be approved without further approval (it was tabled in five variants), with a comprehensive amendment to it being rejected on 12 December 2012. On 14 December 2012, the Government submitted to the Chamber of Deputies a draft amendment of Section 3 (3) of Act No. 236 / 1995 Coll., by which the salary base was set at 2.75 times the average wage in the non-business sector (Press No. 880). This proposal was discussed in a state of legislative emergency and approved by the Chamber of Deputies on 18 December 2012 (in the Collection of Laws it was published as Law No. 11 / 2013 Coll. on 17 January 2013) with the effectiveness provided for in Part Four Article V on 1 January 2013. In the explanatory memorandum to press No 880, the Government literally stated that press No 763 "was perceived primarily as a legislative medium for solutions resulting from general political consensus'. The appellant contends that the government did not act in a constitutional fashion in such a serious way as to determine the amount of the judge's salary, since it did not put forward in due time a proper bill which the legislature could discuss in due time. The subsequent use of the Institute of Legislative Emergency was then an abuse resulting from a poor design submitted as print No 763. Negotiating a bill in a state of legislative emergency cannot be an executive tool for the lax of power. Other appellants object to the fact that although the amount of the judge's salary was the subject of the legislation, the amendment of the Act was not declared under No 11 / 2013 Coll. the judicial power was debated, thus the judicial power had no opportunity to defend its position during the preparation of the Government's decision. In this context, the appellant submits that the Constitutional Court has already taken an alarming position on this issue once, namely in the sp. zn.
8. The applicant further commented on the question of retroactivity of Act No. 11 / 2013 Coll. According to Part Four of Article V of Act No. 11 / 2013 Coll., the Act was to take effect on 1 January 2013. In the Collection of Laws the law was published on 17 January 2013. The appellant is convinced that, in accordance with the provision of § 3 (3) of Act No. 309 / 1999 Coll., on the Collection of Laws and on the Collection of International Contracts, Act No. 11 / 2013 Coll. became effective on the 15th day following the publication, i.e. on 1 February 2013. According to the appellant, this conclusion was also reached by the Ministry of Labour and Social Affairs, which drew the attention of the Ministry of Justice to this fact and the need to collect social security contributions from the reimbursement of expenditure for January 2013. Therefore, there was a situation where, on 1 January 2013, the salary base for determining the salary of judges was not determined. This situation is affected by Article II of Part One of Act No. 11 / 2013 Coll., which provides that the salary base under this Act is to be used for the first time for determining the salary and reimbursement of expenses for January 2013. The appellant considers that such an arrangement does not constitute a retroactive retroactive retroactive retroactive provision in favour of the judicial authority, but considers that it is restrictive and therefore inadmissible retroactive.
9. The reasoning for the substantive illegality of the contested legal provisions is based on the recap of the relevant case law of the Constitutional Court concerning various aspects of the material security of judges. In his view, he contains the following basic thesis:
- the assessment of the constitutionality of salary restrictions against judges for a specific period of a particular year falls within the framework defined by the principle of judicial independence [the Constitutional Court's finding sp. zl. ÚS 55 / 05 of 16 January 2007 (N 9 / 44 SbNU 103; 65 / 2007 Coll.), paragraph 49],
- the constitutional position of judges, on the one hand, and the representatives of the legislature and executive, in particular the government, on the other hand, is different in view of the principle of division of power and the principle of independence of judges, which implies a different layout for legislators to pay restrictions on judges in comparison with those of such restrictions in other areas of the public sphere (the Constitutional Court's finding, point 55 / 05, paragraph 49),
- the intervention in the material security of judges guaranteed by the law must not be an expression of the legislature's indiscretions, but must be justified, based on the principle of proportionality, by exceptional circumstances, such as the difficult financial situation of the State, even if this condition is fulfilled, taking into account the difference in the function of judges and representatives of the legislative and executive powers, in particular the administration of the State; Such intervention must not give rise to any concern as to whether it does not affect the limitation of the dignity of judges, for example if the expression of the constitutionally inadmissible pressure of legislative and judicial power is not the expression of legislative power (the Constitutional Court's finding, p.
- the principle of an independent judiciary is one of the essential elements of the democratic rule of law within the meaning of Article 9 (2) of the Constitution (Constitutional Court finding sp. zn.
- the legislature's arbitrary intervention in the area of material protection of judges, including in the context of pay restrictions, must be placed under the framework protected by the principle of independence for two reasons. The independence of judges is primarily conditional on their moral integrity and professional level, but is also linked to their adequate material collateral. The second reason for subjecting the prohibition of arbitrary interference in the material security of judges (pay restrictions) to the principle of their independence is to exclude the possibility, possibly oppression of legislative or executive decision-making powers. In other words, to exclude arbitrary interference in the material detention of judges as a possible form of "penalisation" of judges by the legislature and executive, and thus the form of coercion on their decision-making [the finding of the Constitutional Court sp. zn.
- the pay ratios of judges in the broad sense are to be stable, not a variable with which it calculates this or that of the government group, for example, because it finds the fees of judges too high compared to those of civil servants or to another professional group. Efforts for such equality deviates from the category of constitutionality, a political objective which does not support the constitutionally understood principle of equality [the finding of the Constitutional Court sp. zl. ÚS 11 / 02 of 11 June 2003 (N 87 / 30 SbNU 309; 198 / 2003 Coll.)],
- another form of pay restriction should also be considered as a freeze of the legally assumed increase in the income of judges or other constitutional officials, for example, a "permanent" salary freeze would undoubtedly be regarded by the Constitutional Court as a step constitutionally inadmissible. The pay ratios of judges in the broad sense are to be stable, unless there are exceptional exceptional circumstances of the State [the finding of the Constitutional Court sp. zn. Pl. ÚS 13 / 08 of 2 March 2010 (N 36 / 56 CollNU 405; 104 / 2010 Coll.), paragraph 41; similarly, the finding of sp. zl. ÚS 55 / 05, paragraph 55],
- a significant element of the guarantee of adequate material security for judges in terms of the principle of the division of state power into legislative, executive and judicial powers and the requirement of their mutual balance should also be considered as a direct link between the salary of the representatives of the legislature and executive on the one hand and the salary of the judges on the other hand. The construction of the Law on the salary of representatives of state power, which, with the help of the uniform salary base and the legal coefficients laid down by law, guarantees that, together with the increase in the salaries of officials of legislative and executive powers, they will automatically increase the salaries of judges in the same proportion, thus representing an important, incorporated insurance policy in the legal order, that the ratio in the material security of officials of individual powers will be maintained in the future (Constitutional Court's finding sp. P.P.ÚS 55 / 05, paragraph 59).
10. Furthermore, the appellant submits that these arguments are also contained in many other findings of the Constitutional Court relating to pay restrictions against judges. It points out that the Constitutional Court also applied for these generalising points in its finding of the sp. zn.
11. From the latter finding of the Constitutional Court sp. zn. Pl. ÚS 33 / 11, the following two generalising thesis are still selected:
- the judicial fees and, contrary to the salaries of the other servants of the State for a long period and with the following intended perspective, are subject to restrictions only. The measures in relation to them then do not appear to be exceptional and proportional, but as a targeted process aimed at returning the judicial salaries to lower levels, and thus to remove the legislative and executive errors made in the past in establishing rules for calculating the judicial salaries in the mid-1990s. Such a nivulation, in its consequences, inevitably leads to the descent of the judicial state within the middle class, its income degradation in relation to other legal professions and to the reduction of its necessary social prestige,
- the restriction contained in the reduction of the salary base coefficient from three times the value of 2.5 times the average nominal monthly salary of individuals in the non-business sphere is disproportionate and only towards judges, does not meet the conditions laid down by the Constitutional Court in the caselaw already outlined for acceptance of the judicial wage restrictions.
12. From another finding of the Constitutional Court, which does not concern pay restrictions against judges, it also recalls the conclusions set out in sp. zn.
"Contrary to the legislation and the executive body, a clear requirement of completed higher education, the composition of a judicial examination and further vocational training is imposed on the judge. The obvious requirement for judges is their moral integrity, which the law requires and assumes. The position of a judge is also linked to many restrictive measures that interfere with the personal life of a judge, including restrictions on secondary income... That is why the state has committed itself to ensuring with dignity."
13. In favour of the conclusion on the unconstitutionality of the contested legal provisions, the Municipal Court in Brno also refers to a number of international documents. First of all, it points out the recommendation of the Council of Europe Committee of Ministers of 17 November 2010 on the CM / Rec (2010) 12 (http: / / www.coe.int), which replaced earlier Recommendation R (94) 12. It follows from Articles 53 to 55 concerning the remuneration of judges that:
- the remuneration of judges must express their role and responsibility and be at a sufficient level,
- the maintenance of a reasonable level of remuneration should be ensured at the time of sickness and maternity,
- the pension of judges should be in reasonable relation to the former salary,
- there should be special legal provisions preventing the salary of judges from falling.
14. Among the other international documents, the appellant draws attention to the report of the European Commission for Democracy through Law (Venice Commission) adopted from 12 to 13 March 2010 (http: / / www.venice.coe.int), which states in Part III of Article 6: "The Venice Commission considers that the financial evaluation of judges must be consistent with the dignity of their profession and that adequate evaluation is a prerequisite for protecting judges against undesirable external influences... The evaluation level should be determined taking into account the social circumstances in the country and compared with the rating rate of senior officials. 'Finally, in the framework of the comparative analysis, the conclusions of the Council of Europe Advisory Committee on Judgments of 2001, which, in its Opinion No 1 (Avis No 1, paragraphs 61 and 62), underlines the need for legal provisions to prevent the reduction of the salary of judges and to ensure that their value is maintained in relation to life costs (http: / / wcd.coe.int /).
15. Before acceding to the constitutional argument relevant to the assessment of the case, the appellant referred briefly to the development of the remuneration of judges, referring to the reasoning of the proposals in the cases sp. zn. Pl. ÚS 16 / 11 [decided by the finding of sp. zn. Pl. ÚS 16 / 11 of 2 August 2011 (N 135 / 62 SbNU 99; 267 / 2011 Coll.)] and sp. zl. ÚS 33 / 11, in which the City Court of Brno detailed the disassembly of the system of remuneration of constitutional agents contained in Act No. 236 / 1995 Coll. This can, in his view, be characterised as an attempt to reduce their level of pay with dozens of interventions into material security components in relation to judges. First of all, he recalled the conclusions of the Constitutional Court contained in the finding in the sp. zn. The Constitutional Court found no reason to intervene so vigorously in the level of remuneration of judges ("restrictions... constitute disproportionate and only targeted action against judges..."). The appellant is convinced that the Constitutional Court, in this finding, has created no room for legislators to consider the boundaries of the salary base that are constitutionally conformal. In the case sp. zn. Pl. ÚS 33 / 11, the Constitutional Court considered only two borders, to which all the arguments put forward by the appellant: that the reduction of the salary base from three times to 2.5 times is in the context of a situation such as that of remuneration in the public sphere, against judges, and therefore unconstitutional, as judges enjoy increased constitutional protection in this regard. Thus, the only constitutional form measure was, in the appellant's view, to return the salary base to triple.
16. However, on 1 January 2013 the legislature was unable to adopt legislation guaranteeing the judicial power to implement the right to material security; up to 2.75 times the average wage in the non-business sector. The appellant considers that the only constitutionally possible interpretation of the question of the salary due to the judge on 1 January 2013 and throughout January 2013 is the one which uses the Constitutional Court's finding, sp. v. Pl. ÚS 33 / 11, and concludes that the judge was entitled to a salary corresponding to a salary of three times the average wage in the non-business sector for 2011 (as this was the level considered by the Constitutional Court to be conformal). The government, as a promoter of the reduction of the base to 2.75 times (print No 880) according to the Municipal Court in Brno, did not state anything relevant, only that a return to the triple would place high demands on state budget funds in 2013 and beyond, i.e. in the period when austerity measures are applied to virtually all population groups.
17. The complainant also used economic arguments to support its claims. In particular, he stated that it can be established from the data of the Czech Statistical Office that the average wage in the non-business sector on so-called recalculated figures (Table 1 (b as an annex to the publication of the Czech Statistical Office no. e-3106-12 entitled "The registration number of employees and their wages on the 4th quarter of 2012" published on 2 April 2013) did not decrease in nominal terms between 2000 and 2012 (for 2011 the figure 24469 CZK, for 2012 the figure 25015 CZK). The average wage in the non-business sector decreased by 36 CZK between 2009 and 2010 and 42 CZK between 2010 and 2011, already increased to 23453 CZK in 2012. These marginal fluctuations in the direction of the decline are reflected entirely by the fact that the salary base monitors the state of the average wage in both the non-business and the decline, i.e. the Czech Republic is probably one of the few countries where judges' salaries fall in proportion to the decline in public pay automatically. This regulation is not taken into account by the legislator at all. Thus, the reasons for a much more substantial decline in the level of pay of judges remain veiled or cannot bear constitutional light. In fact, according to the appellant, this is a long-term effort to reduce the relative remuneration of judges in the country, although the salaries of judges cannot be considered to be separated from reality from international comparison. The 2011 state closing account published on the website of the Ministry of Finance is listed in section ZV124; i ZV124; State budget expenditure in Chapter 3 "Drawing on the salary in the budget ', that in 2011 there was an increase in the salaries of teaching staff in regional education of CZK 1 554.4 million, with a decrease of 676 employees in the central authorities (Table 52) in the increase of vacant posts from 6 209 in 2010 to 14 745 in 2011. Against this background, the appellant finds no proportionality in reducing the judicial pay base by almost 12%. According to him, the media reports indicate that, despite the declared savings, the central government authorities still receive fees in the order of hundreds of thousands of crowns.
18. The appellant therefore concluded his substantive argument with the view that he considered the word 2,75 times stated in the provision of § 3 (3) of Act No. 236 / 1995 Coll., as amended by Act No. 11 / 2013 Coll., to be unconstitutional because of a conflict of the above-mentioned multiple with the right of judges to stable material security. In the case of the proposed annulment of part of the first Article II of Act No. 11 / 2013 Coll. then the violation of the right of judges to material security is treated as another reason for the breach of the prohibition of retroactivity. On the basis of the above, it therefore found the provisions in question contrary to Article 1 (1) in conjunction with Articles 81 and 82 (1) of the Constitution, Article 1 of the Charter and Article 1 of the Protocol.
19. The appellant adds that Paragraph 70 (1) of the Law on the Constitutional Court states that if the Constitutional Court concludes that the law or its individual provisions are contrary to the Constitutional Law, it shall decide that such a law or their individual provisions shall be repealed on the date specified in the decision. The appellant takes the view that the Constitutional Court should set a relatively short time limit for the legislator to adopt a new regulation in accordance with the pleading of reasons expressed in the decision. In other words, the date of annulment of the contested provisions, which the Constitutional Court must determine in the light of Article 70 (1) of the Law on the Constitutional Court, should be determined in such a way that, on the one hand, the legislator has some scope for adopting a new regulation, but on the other hand, there is no unnecessary delay in adopting a new regulation. It is widely known that the legislator has long been aware of the existence of many findings by the Constitutional Court regarding the pay restrictions of judges and that this issue is well known to him. The legislature is able to adopt the new legislation in a relatively very short time, which was also demonstrated in the case of the contested Act No. 11 / 2013 Coll., which was submitted to the Chamber of Deputies by the Government on 14 December 2012, the Chamber of Deputies approved the proposal on 18 December 2012, the Senate of the Parliament of the Czech Republic ("the Senate ') discussed the proposal on 28 December 2012 and the approved Act was delivered to the President for signature on the same day. Moreover, the longer the deadline for the legislature to adopt the new regulation, the longer the unconstitutional situation lasts.
20. At the same time, the appellant proposed that the Constitutional Court should, in accordance with Article 39 of the Law on the Constitutional Court, decide on the draft proposal as a matter of priority, with the argument of repeated action by the legislature in the direction of restrictions on the salaries of judges, their intensity and the general impact on decisions on the high number of actions by judges on the remuneration and reimbursement of expenses for January 2013.
Recital of the essential parts of the observations of the parties
21. According to Articles 42 (4) and 69 of the Law on the Constitutional Court, the Constitutional Court sent the application in question to the parties. The Chamber of Deputies and the Senate sent its observations within the deadline. The Ombudsman announced by letter to the Constitutional Court on 10 June 2013 that he would not exercise his right to intervene. Similarly, by letter to the Constitutional Court on 22 July 2013, the Government did.
22. In its observations of 3 July 2013, the President of the Chamber of Deputies, Miroslav Nemcová, stated that the draft law, which was later published as Act No. 11 / 2013 Coll., was submitted by the Government to the Chamber of Deputies on 14 December 2012 and was distributed to Members as Press No. 880. The content of the proposal is, as the Government states in the explanatory memorandum, in response to the finding of the Constitutional Court, published under No 181 / 2012 Coll. (sp. zn. Pl. ÚS 33 / 11), which abolishes the general adjustment of the level of the salary base provided for in § 3 (3) of Act No. 236 / 1995 Coll., establishing a new level of salary base for determining the salary and some reimbursement of expenditure at 2.75 times the average nominal monthly salary of individuals in the non-business sphere achieved according to published data of the Czech Statistical Office for the previous calendar year. In the explanatory memorandum, the Government further states that the reduction of the salary base session to the average wage in the non-business area from three to 2.5 times that occurred since 1 January 2011 by Act No 425 / 2010 Coll., the Constitutional Court declared a salary restriction against judges which is contrary to Article 1 (1) in conjunction with Article 82 (1) of the Constitution. A return to the triple would place high demands on government funds in 2013 and beyond, i.e. in the period in which austerity measures are applied to virtually all population groups. In particular, given the current economic situation and the possibilities of the state budget, the government therefore considers the establishment of a salary base relationship to an average wage in the non-business sector of 2,75 times. Moreover, as the Government states in the explanatory memorandum, the proposed solution is based on the assumption that the cancelled pay base session to the average wage in the non-business sector of 2.5 times that is too low, but at the same time the Constitutional Court was left to the power of legislative and executive at what level it newly sets it. If, by the Constitutional Court, a salary base calculated as a multiple of the figure 2.5 was found to be unconstitutional and, in logic, the original salary base calculated as securely constitutionally conformal by multiple of the number 3, then a multiple of the number 2,75 was chosen for the compromise solution, i.e. in the middle of the extreme solution. As regards Article II of the draft law, the explanatory memorandum notes that the Constitutional Court annulled the level of the salary base in the general regulation by 31 December 2012 (i.e. for both the judges including the judges of the Constitutional Court and the representatives of the legislative and executive powers), and without making the relevant amendment, the provisions of Article 3 (3) of Law No 236 / 1995 Coll. would become inapplicable. The specific part of the explanatory memorandum relating to Article II therefore stresses that the newly established level of the salary base will be used to determine the salaries and reimbursement of expenditure for the whole of January 2013, even if the publication of the Law in the Collection of Laws takes place only during that month, for reasons of legal certainty.
23. On a proposal from the Government, the President of the Chamber of Deputies has declared a state of legislative emergency. The proposal was ordered to the Committee on Budgets, which discussed it and issued a resolution on 18 December 2012, recommending the Chamber of Deputies to approve the bill submitted by the Government, not to discuss it in a general debate, only in detail, to discuss it by Tuesday 18 December by 19 hours and to adopt a resolution that, within the meaning of Rule 99 (7) of the Rules of Procedure, it forgoes the general debate. On the same day, the Chamber of Deputies, when discussing the draft law, adopted a resolution with the number of votes of 168 Members 160 in favour and 3 against, which states that there are still conditions for negotiating the draft law in the abridged negotiations. The resolution of the Committee on Budgets was then adopted by a number of 161 Members 133 in favour and 2 against. Two amendments were tabled in a detailed debate on the draft law, of which Mrs Jana Suché's proposal, which replaced the word '2.75 times' by '3 times' by '3 times' by the number of votes of 106 Members 24 in favour and 32 against. The Chamber of Deputies then voted in favour of the Government's proposal by a number of votes from 99 Members 80 to 8 against. The Chamber of Deputies referred on 19 December 2012 to the Senate Bill, which discussed it at its meeting on 28 December 2012, when it expressed its willingness not to deal with the bill. The President of the Republic signed the Act on 11 January 2013. On 15 January 2013, the approved law was delivered for signature to the Prime Minister and in the Collection of Laws the law was declared on 17 January 2013.
24. According to the President of the Chamber of Deputies, it can therefore be concluded that the proposal by the Municipal Court in Brno of the contested part of Act No. 236 / 1995 Coll., as amended by Act No. 11 / 2013 Coll., was adopted following a properly implemented legislative process and that the legislature acted in the belief that these provisions were in line with the Constitution and our legal order. It is therefore up to the Constitutional Court to examine the constitutionality of the provisions in question and to take a decision in connection with the application of the Municipal Court in Brno.
25. The President of the Senate, Milan Štěch, sent a statement to the Constitutional Court on 24 June 2013. The draft law, which was published in the Collection of Laws under No. 11 / 2013 Coll., was submitted by the Government to the Chamber of Deputies on 14 December 2012 after the previous draft law submitted by the Government at the end of July 2012 and was discussed as House Press No. 763 was not approved in the final vote. In the Chamber of Deputies, the bill was discussed as House Press 880 in a state of legislative emergency, which was declared by the President of the Chamber of Deputies on a proposal from the Government for the period from 17 December 2012 to 21 December 2012. The government bill was approved together with amendments, which added an adjustment to ensure that, in the relevant laws governing social and public health insurance premiums, the reimbursement of expenses provided by a percentage of the salary base of the representatives of the State and of certain state authorities and judges was removed from the insurance income heading.
26. The Senate was referred to the Senate by the Chamber of Deputies on 19 December 2012, with the Government, through its President, asking the President of the Senate to discuss the Senate's bill in abridged negotiations. The bill was discussed as Senate Press Number 10, it was ordered to discuss three committees, namely the Committee on Economy, Agriculture and Transport, the Committee on Health and Social Policy and the Committee on Constitutional Law. The Committee on Economy, Agriculture and Transport, as a committee, discussed the guarantee bill at its third meeting on 28 December 2012 and recommended not to deal with the Senate in Resolution 18. The Committee on Health and Social Policy discussed the draft law at its 3rd meeting on 28 December 2012 and, after failing to obtain the support, the Committee recommended rejecting the draft law in its resolution 6. The Committee of the Constitutional-Legal Draft of the Law discussed at its 4th meeting held on 27 December 2012 and, after not having received the support of the proposal not to deal with the draft Act, the Committee in its Resolution No 14 recommended the Senate to return the draft Bill to the Chamber of Deputies with amendments adopted by the Committee. The purpose of the amendments was to set the total amendment to the draft law referred to by the Chamber of Deputies on the basis that, in Act No. 236 / 1995 Coll. in Clause 3 (3), the level of the salary base was set at three times the average nominal monthly wage, the amendments consisting of the use of the salary base applicable to the judges of the Constitutional Court and the deletion of the amendments to the draft law in the form of amendments relating to social security and health insurance premiums.
27. The Senate discussed the draft law at its third meeting on 28 December 2012, giving its initial approval to the Government's request for a brief hearing. Following the speech of the representative of the petitioner and the rapporteurs of the committees to which the draft law was ordered to be discussed, pursuant to Article 107 of the Act No. 107 / 1999 Coll., on the Rules of Procedure of the Senate, the Senate, without debate, voted on a proposal recommended by the Guarantee Committee, to express the Senate's will not to deal with the draft law. The Senate has given its assent to this proposal by its Resolution No 50, with 57 votes against the resolution of 74 senators present. To discuss the draft law in committees, it can be noted that a relatively comprehensive debate has taken place on the draft law, which has led to different conclusions in the relevant committees, as is apparent from the Committee's resolutions adopted. On the part of the petitioner, the proposed adjustment to the level of the salary base was stated that, in the view of the Government, the proposed adjustment was in line with the findings of the Constitutional Court, which was also mentioned in the explanatory memorandum, and the timescale resulting from the failure to adopt a previous government bill in the Chamber of Deputies, as a result of which it was necessary to proceed with a shortened procedure. A number of senators gave a different view to these arguments by the petitioner, in particular in the Constitutional Legal Committee, where reservations were raised, on the one hand, with regard to the fulfilment of the conditions for a legislative emergency, and, on the other hand, with regard to the proposed level of the salary base in relation to judges, where they expressed their views that, in accordance with the Constitutional Court's finding, the original regulation, expressed by the word 'triple', should be maintained for judges in the law, and the reservations were also added to the regulation in the government proposal in the form of amendments adopted in the Chamber of Deputies. In the Committee on Health and Social Policy, the reservations of some senators led to a resolution rejecting the draft law, and in the Committee on Legal Affairs, they led to the adoption of amendments which would undoubtedly be in line with the finding of the Constitutional Court. However, in the Committee on the Economy, Agriculture and Transport, which was a guarantee committee, they received support for the arguments that were also set out in the explanatory report on the government bill, which shows that this is a compromise solution that could be sustained in a future constitutional conformity test, and on the basis of this, a resolution recommending the Senate not to deal with the draft law was adopted by all the senators present. This resolution was subsequently adopted by the Senate, so there was no debate at the Senate plenary on the bill.
Abandonment of oral proceedings
28. The Constitutional Court noted that oral proceedings could not lead to a significant step forward in clarifying the case than those resulting from written acts of the parties. In the light of Article 44 of the Law on the Constitutional Court, as amended by Act No 404 / 2012 Coll., there is no need to question the parties to their position on this issue, therefore it was possible to decide without holding oral proceedings.
Derogation of the contested provisions
29. Paragraph 3 (3) of Act No. 236 / 1995 Coll., as amended by Act No. 11 / 2013 Coll., provides:
From 1 January to 31 December of the calendar year, the salary base shall be 2,75 times the average nominal monthly wage of individuals in the non-business sphere obtained according to published data of the Czech Statistical Office for the preceding calendar year. The level of the salary base for the relevant calendar year is announced by the Ministry of Labour and Social Affairs in the Collection of Laws by communication.
30. The provisions of Part One of Article II of Law No 11 / 2013 Coll. reads:
Transitional provision
The salary base under this Act shall be used for the first time for determining the salary and reimbursement of expenditure for January 2013.
Active ID of the applicant
31. The application for annulment of the part of Act No. 236 / 1995 Coll. and the transitional provision incorporated into the part of First Act No. 11 / 2013 Coll. together with the proposal for a preliminary ruling under § 39 of the Law on the Constitutional Court was submitted by the Municipal Court in Brno in accordance with § 64 (3) of the Law on the Constitutional Court.
32. The Municipal Court in Brno under sp. zn. 50 C 22 / 2012 is in charge of proceedings in which the Judge of the Regional Court in Brno claims to pay against the Czech Republic - Regional Court in Brno the amount of the difference between the claimant's entitlement to pay and the flat-rate reimbursement of expenses, according to the extension of the claim, for January and February 2013 and between the actual salary paid and reimbursement of expenses which were reduced by Act No. 11 / 2013 Coll. This claimed reduction is 15 800 CZK for each month.
33. The condition of the active legitimacy of the General Court under Article 64 (3) of the Law on the Constitutional Court is that the position of the Law, or of its individual provision, which is proposed to be annulled, is that of the subject matter of the procedure which gives rise to the decision-making reasons for the assessment by the General Court. When assessing the entitlement to the payment of the salary and reimbursement of expenses for January and February, the General Court must apply Article 3 (3) of Act No. 236 / 1995 Coll. determining the amount of the salary base, including the transitional provision determining when the first change of the salary base is to take place (Article II of Act No. 11 / 2013 Coll.).
34. The Constitutional Court has repeatedly taken a legal view in its settled case-law, according to which the amendment does not have a separate legislative existence but becomes part of the amended legislation; has accepted the assessment of the amendment only in cases of opposition to its unconstitutionality due to the absence of normative competence or failure to comply with the constitutional procedure for its adoption and extradition. This situation is also a case where a transitional provision [cf. sp. zn. Pl. ÚS 6 / 13 of 2 April 2013 (112 / 2013 Coll.) is being challenged, since this provision does not become part of the amended law as a normative measure.
35. The applicant's active legitimacy is therefore given.
Constitutional conformity of competence and legislative process
36. The Constitutional Court is required, in accordance with the provisions of Paragraph 68 (2) of the Law on the Constitutional Court in the procedure for the control of standards, to assess whether the contested law (its individual provision) has been adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.
37. It was found from the House Press No. 880 / 0 (Government Bill), the shorthand reports, as well as from the observations of the party, the Government Resolution No 934 of 14 December 2012 (publicly available) and the decision of the President of the Chamber of Deputies No 48 and 49 of 14 December 2012 (available in the Digital Library of the Chamber of Deputies) that the Government approved the proposal submitted by the Minister for Labour and Social Affairs on 14 December 2012 by Resolution No 934, at the same time proposing the President of the Chamber of Deputies to declare, for the period from 17 to 21 December 2012, a state of legislative emergency for the discussion of this Government Bill, and requested that this proposal to be dealt with in a brief act of legislative urgency. At the same time, the government has asked the President of the Senate to discuss the government bill in abridged negotiations.
38. The President of the Chamber of Deputies declared a legislative emergency by Decision No 48 of 14 December 2012 for the period from 17 to 21 December 2012, stating in the decision that the request is justified by "exceptional circumstances in which fundamental rights and freedoms of citizens are significantly threatened." In Decision No 49 of the same day, it decided that House Press 880 would be dealt with in an abridged hearing (omission of 1 reading), that the press ordered the Budget Committee to discuss it and set an inexcusable deadline for the submission of the resolution by 18 December 2012 at 10.00.
39. According to the data of the Digital Repository of the Chamber of Deputies, Press No. 880 / 0 was sent to Members on 14 December 2012; The Committee on Budgets delivered an opinion on it in its resolution (No 880 / 1) of 18 December 2012, in which it recommended that the Chamber of Deputies not discuss the proposal in the general debate and discuss it by 19.00 by 18 December 2012.
40. The bill was discussed at the 49th meeting of the Chamber of Deputies on 18 December 2012 as point 164; in the introduction to the Chamber of Deputies (according to the shorthand report), assess whether the terms and conditions for discussion are given in the abridged negotiations; in the debate on this issue, none of the Members came forward; in vote 241 it was decided that there were still conditions for discussing the government bill (press No 880) in the abridged negotiations; 168 Members were enrolled, 160 votes in favour, against 3.
41. The Minister of Labour and Social Affairs, as a reason for submitting the bill, stated that "after the Government had not approved its previous proposal for a solution... proposed a salary base of 2.75 times the average monthly nominal wage of individuals in the non-business sphere... according to this salary base, only judges should be paid from 1 January 2013 and, in a way, prosecutors also... I firmly believe that the proposed government proposal will be approved, because otherwise no salary base will be set for judges and prosecutors..."
42. Then the Chamber of Deputies decided by vote No. 242 (registered 161, on 133, against 2) to abandon the general debate (pursuant to § 99 (7) of Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies).
43. Two amendments were tabled in a detailed debate (Mr Jan Čechlovský proposed to extend the government proposal to amend the social security and public health insurance rules so that the reimbursement of the expenses provided under Law No. 236 / 1995 Coll. was not subject to insurance contributions, and Mrs Jana Sucho proposed that instead of 2.75 times the salary base be 3 times the average salary in the non-business sector). In the debate, the Minister of Justice drew the House of Deputies's attention to the risks associated with the adoption of the government proposal and said that he would like to see the adoption of a 'three-fold', which would undoubtedly be 'more constitutionally consistent', and "perhaps finally quiet on this issue '. The first amendment was accepted (exclusion of expenses from insurance payments), the second - return of the salary base to triple - was not accepted.
44. The bill was adopted in vote 245 (99 Members were registered, 80 votes in favour, 8 against).
45. The Senate discussed the government bill as Press Number 10; The Chamber of Deputies referred it to the Senate on 19 December 2012, the Senate classified the press at the 3rd meeting of 28 December 2012; The Minister for Labour and Social Affairs stated in the Senate on the stenographer's record that "the bill tabled by the Chamber of Deputies has been debated in a state of legislative emergency and, therefore, found that this is an exceptional circumstance in which fundamental rights and freedoms of citizens are significantly threatened, in particular the right of citizens to a fair remuneration for their work, and therefore the reason for the legislative emergency." The Constitutional Legal Committee of the Senate in its resolution proposed to return the bill to the Chamber of Deputies; He rejected the interpretation by his President, who informed the Committee of the content of the resolution, that the 2.75 times determining the salary base means an increase in the salaries of judges, and, with reference to the findings of the Constitutional Court sp. zn. He also drew attention to the problematic state of the legislative emergency declared in his view only because the government is not in a position to submit the laws as it should. The Guarantee Committee was the Committee on Economy, Agriculture and Transport, which proposed not to deal with the draft law. This proposal was adopted by the Senate in vote 4 (resolution 50, registered by 74 senators, for proposal 57, against 11).
46. The law was delivered to the President of the Republic for signature on 28 December 2012, the President signed the Act on 11 January 2013, the Prime Minister was served on 15 January 2013, the publication in the Collection of Laws took place on 17 January 2013 under No 11 / 2013 Coll.
47. The appellant contends that the Institute of Legislative Emergency was misused, as the Government was inadvertently indiscriminate when submitting a proposal addressing the level of the salary base for determining the salaries of judges, and further underlines that the proposal was not discussed before the submission to the Chamber of Deputies with the power of the court. On 31 December 2012, the finding of sp. zn. Pl. ÚS 33 / 11 of 3 May 2012 annulled the adjustment according to which the salary base for judges was to be based from 2.5 times the average monthly non-business wage for the previous calendar year. Although the Government submitted to the Chamber of Deputies on 30 July 2012 a draft law (Document No 763 / 0) amending Act No. 236 / 1995 Coll., it did so in a rather rare way: it submitted five variants of the level of the salary base (from 2.51 to 3 times), at the same time proposing to abolish the freezing of the salary base contained in Section 3a of Act No. 236 / 1995 Coll. The Comprehensive Amendment to Press No. 763 / 0 was tabled by Mr Vladislav Vilímce, who determined 2.75 times the average monthly wage in the non-business sector for the base level and anticipated the gradual defrosting of their salary base (coefficients 2.51 and 2.61) for the so-called representatives remunerated under Law No. 236 / 1995. Some other amendments were also tabled to address the taxation of expenses, the extension of the freeze of the officials' salary base by 2015, but also the proposal to deal with the fall in the salaries of the judges of the Constitutional Court vis-à-vis the salaries of the judges of the general courts or the level of the salary base, depending on three times the average wage in the non-business sphere. The third reading of the proposal took place on 12 December 2012 and the bill (as amended by the comprehensive amendment) was not adopted.
48. The Constitutional Court has no doubt that the contested law has been adopted within the framework of the Constitution for the defined competence of Parliament; the answer to the question whether this has also happened in a constitutionally prescribed way is no longer so offered.
49. In the past, the Constitutional Court has repeatedly dealt with the shortcomings of the legislative process, including the declaration of a state of legislative emergency and the discussion of the draft law in the abbreviated negotiations; His views developed from considerable restraint [e.g. the finding of sp. zn. Pl. Pl. ÚS 24 / 07 of 31 January 2008 (N 26 / 48 SbNU 303; 88 / 2008 Sb.), the finding of sp. zn. Pl. ÚS 56 / 05 of 27 March 2008 (N 60 / 48 CollU 873; 257 / 2008 Sb.) or the finding of sp. zl. Pl. ÚS 12 / 10 of 7 September 2010 (N 188 / 58 SbNU 663; 269 / 2010 Sb.)] to give a strong reminder of the need for compliance with the principles of cohesive, transparent and predictable law as one of the attributes of the materially-understood state [for example of fl. Although the Institute of Legislative Absence is solely a legal institution, it must undoubtedly be viewed under the perspective of the principles of division of power, pluralism, the free competition of political forces and the protection of parliamentary minorities. In the find sp. zn. Pl. ÚS 55 / 10 The Constitutional Court has explained that the Institute limits or relativises these constitutional principles and therefore the conditions for its use must be interpreted strictly. The condition of the declaration of a state of legislative emergency is the existence of an exceptional circumstance which has the potential to threaten fundamental rights and freedoms in a fundamental way, or where the State is in danger of significant economic damage (§ 99 (1) of Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies). The conclusion on the existence of an exceptional circumstance must have a reasonable basis and be supported by factual circumstances, the justification for the declaration of a state of legislative emergency must also be supported by the assessment of the intensity of the grounds for declaring a state of legislative emergency in relation to the limitations of the constitutional principles in question, as the interest in preventing or eliminating its consequences should, in the light of the protected values in a particular case, outweigh the interest in the proper conduct of the legislative procedure (cf. points 84-85 of the sp. zl. ÚS 55 / 10). It is also impossible to ignore the fact that, in parliamentary practice, this institute is being used - as the Constitutional Court has also pointed out in the past - very often.
50. The declaration of a state of legislative emergency was based on essentially a law dictation in Decision No 48 of the President of the Chamber of Deputies of 14 December 2012 ("exceptional circumstances where fundamental rights and freedoms of citizens are significantly threatened '). However, the facts can be reliably reconstructed from the above-mentioned list of legislative processes; The reason for the declaration of a state of legislative emergency was that since 1 January 2013 there was no provision in the legal system from which the amount of the judge's salary could be constructed (and subsequently the public prosecutor), and on 12 December 2012 the Chamber of Deputies rejected Press 763 / 0, which it had discussed since 31 July 2012 following the abolition of part of the salary base provision in Act No. 236 / 1995 Coll. Constitutional Court (Findings sp. zn. Pl. ÚS 33 / 11). The Constitutional Court has provided the legislature with seven months to resolve the unconstitutional reduction of the salary base and the relation of the judge's salary to the average wage in the non-business sector in a constitutional manner. The first error, which was in principle most likely triggered by a chain of events that were concluded by the rejection of the draft in print No 763 / 0, was committed by a government which did not submit a draft law in the material sense of the press, which could have been approved by the Chamber of Deputies, but, as it itself stated in the explanatory report on the government bill submitted on 14 December 2012," a medium for solutions resulting from a general political consensus. "Following the rejection of the" carrier "by the Government in two days' time (during which it certainly failed to make a comment procedure, let alone a hearing with the representative of the judicial authority, which, in the current state of affairs, must be regarded as the vertices of the judicial system, namely the Supreme Court and the Supreme Administrative Court), submitted a new proposal to the Chamber of Deputies (Press 880 / 0) in connection with the request for a state of legislative emergency. In this time pressure (only 17 days left until 31 December), two chambers of Parliament had to discuss the draft law, the signing of the President of the Republic and the Prime Minister, and the law had to be declared. It is no wonder that this did not fully succeed, although this time was" sufficient "to complete the proposal to amend the provisions governing social security contributions and public health insurance - but the appellant did not make that part of the law the subject of his objections and could not possibly do so with regard to the subject matter of the proceedings, and therefore the Constitutional Court leaves it aside (the law was finally declared in the Collection of Laws on 17 January 2013).
51. If the Constitutional Court compared the intensity of the reasons for declaring a state of legislative emergency (here the right of judges to pay for their work, as the Minister of Labour and Social Affairs stated when discussing the Senate proposal) with an interest in sound and good legislative procedures, it must state that in the time situation it was the only way to try not to leave the judges unrewarded for their work from 1 January 2013. Nor can it be ignored that at the beginning of press hearing No 880 of the 168 Members enrolled, 160 (i.e. more than three-fifths of all Members) voted in favour of concluding that the conditions for discussing the draft law were laid down in the abridged negotiations. Although it can be argued that in four days the Chamber of Deputies could not properly consider the proposal properly, the fact that the subject in question was discussed by the House in the form of Press No 763 since 31 July 2012, so that Members were well informed of the substance and nature of the legislation, the only ambition of which was to replace the coefficient 2,5 by a coefficient of other, constitutionally conformal, as explained in the opinion of Mr Pol. ÚS 33 / 11 by the Constitutional Court, when the coefficient 2.5 was excluded by its decision. Similarly, the Senate was in great time stress to discuss a proposal of 10 days, including Christmas holidays.
52. The Constitutional Court is forced to state that both the government and Parliament have repeatedly treated - as regards the way in which the law is adopted, which significantly affects the material security of judges - with a third part of the state power, namely the power of the court, in a way that is difficult to find in the European democratic and legal space. In the past, the Constitutional Court has appealed several times to executive and legislative powers to respect the rules of democratic political culture; in paragraph 25, the Constitutional Court stated: "The judges have found themselves in a relevant position to show their will to defend their salary in a worse position than the other professions... in exceptional circumstances, such as the difficult financial situation of the State, they should not, in future, be so disadvantaged by the judges and should obtain a relevant opinion from the representatives of the judiciary, which should also be part of the explanatory report, in order to enable the legislator to proceed to pay restrictions. 'In the find sp. zn. Pl. ÚS 16 / 11 The Constitutional Court recalled with all urgency the constitutional principles of a democratic society, with which the constitutional state stands and falls - in the words of the finding at the time, in sp. zn. Pl. ÚS 19 / 93 of 21 December 1993 (N 1 / 1 SbNU 1; 14 / 1994 Coll.)"... "the law and justice is not the subject of the free disposition of the legislator and thus the law, since the legislator is bound by certain fundamental values which the Constitution declares untouchable." The pay restrictions of judges will always mean a form of intervention in one of the components of judicial independence (as will be further justified), and it is therefore unacceptable for such intervention to take place unilaterally; The judges represent the most numerous group of persons in terms of the personal scope of Law No. 236 / 1995 Coll. and, moreover, the group that enjoys - as will also be further emphasised - constitutional special protection and the scope for intervening in their position is narrower than those of other constitutional actors. The power of the court does not have representation in our constitutional conditions, yet the judicial system is concluded by the two highest courts - they must willingly fulfil the necessary role of the representatives of the judiciary in this situation. It was already stated in the find of sp. zn.
53. Derogation would therefore only be a simple consequence of the government and legislature's continued, literally negligent approach to judicial power, which, perhaps at a distance of almost 25 years from the fundamental social change, is perceived only as a group of state officials dependent on the state and paid as much as the political representation wants; However, the Constitutional Court had to weigh the consequences of such a procedure, also taking into account that the appellant, although pregnantly expressing reservations about the shortcomings of the legislative process, made it clear by the formulation of the petition that he intended to raise material objections and preferred to assess the constitutionality of the contested law from a material point of view. From the point of view of the demands on the legislative process in the future, it will not be possible for the Constitutional Court to discuss any procedure that will pass with representatives or representatives of independent justice, both at executive and legislative levels. Interventions in the material status of judges must be duly justified, including a comprehensive economic analysis showing the possibilities of the State budget following the economic situation of the State, and proper data on the remuneration situation, in particular, of senior civil servants and other persons with the highest remuneration for the work provided by the State budget must be provided. It can only be recalled that in countries with long-standing democratic traditions, for example, the possibility of intervening in the material security of judges is limited only on the basis of the conclusions of the comprehensive opinion of a group of independent experts (cf. the situation in Canada, for example).
54. Formal repeal of the legislation embodied in Act No. 11 / 2013 Coll. (its Article I, i.e. amendment of Article 3 (3) of Act No. 236 / 1995 Coll.) - without assessing the impact of the law on material constitutionality - should, in these circumstances, give way to the requirements of effective protection of constitutionality. However, this does not prejudge situations in which, as he has already done in the past, the Constitutional Court will consider derogating intervention because of the inconstitutionality of the legislative process to be the only one possible. In the present case, he preferred the effective protection of constitutionality and, in the next step of his review, made an assessment of the constitutionality of the provisions which the appellant has indicated in his proposal.
Compliance of the contested provisions with the constitutional order
Paragraph 3 (3) of Act No. 236 / 1995 Coll., as last amended by Act No. 11 / 2013 Coll.
Overview of the situation in the remuneration of judges
55. The Constitutional Court considers it necessary for the scope of the assessment of the constitutionality of the contested provision to be recalled, as it has already done several times (in particular in the finds sp. zn. There is no need to repeat the content of any restrictive adjustments, the following summary reflecting in particular the development of the salary base, which is determined for the determination of the judge's salary and flat-rate reimbursement of expenses.
56. In the context of a change in the concept of setting the salary base of persons remunerated under Act No. 236 / 1995 Coll. by Act No. 309 / 2002 Coll. (linked to the average monthly salary of individuals in the non-business sector for the previous calendar year), the freezing took place in 2003, i.e. the anchoring of the salary base on 31 December 2002 (Act No. 425 / 2002 Coll.), which lasted until 2005 and resulted in a reduction of the average earnings in the non-business sector and the salary base (which, for example, in 1996 was 4,38: the salary base of 31 200 CZK, the average salary in the non-business sector according to CSU data in 1994 was 7122 CZK; in 2002 value 3.65: salary base 46 440 CZK, average salary in the non-business area according to the data of ČSÚ in 2000 was 12731 CZK) from value approx. 3.33 in 2003 to value 3.00 in 2005. The model according to which the salary base was to copy (with a shift of two years) the development of average salaries in the non-business sphere was applied only in 2005, 2006 and 2007 and since 2008 as a result of Act No. 261 / 2007 Coll., on the stabilisation of public budgets, as amended, there is a refreezing of the salary base with anchor on 31 December 2007 (the amount of the base 56 847 CZK). This freeze lasts until 2010 (when the nominal reduction was abolished by the finding of sp. zn. Pl. ÚS 12 / 10), the pay base and average salary in the non-business sector for 2008 was about 2.5 in 2010.
57. This decrease in salary base and salary in the non-business area from 4,38 to 2,5 between 1996- 2010 was the result of a change in the concept of determining the salary of constitutional agents in 2002 and the double freezing of the salary base in 2003- 2004 and 2008-2010. From 2011 until 2014 (Act No. 425 / 2010 Coll.), the ad hoc set salary bases were to be applied in each year, and only as a "policy against the Constitutional Court's decision" was the "general" salary base reduced to a value of 2.5 times, i.e. the value achieved as a result of the freezing of the base in 2008-2010, while the legislator assumed that this base would only be applicable again in 2015.
Findings of the Constitutional Court relating to the salary base in the period after 31 December 2010
58. The Constitutional Court, by finding sp. zn. Pl. ÚS 16 / 11, annulled § 3b (1) of Act No. 236 / 1995 Coll., as amended by Act No. 425 / 2010 Coll., the date of publication in the Collection of Laws (12 September 2011), i.e. the base applicable to judges of CZK 54 005 in 2011 for the conflict with Article 1 (1) in conjunction with Article 82 (1) of the Constitution. In view of the previous case law, the Constitutional Court pointed out that
- the assessment of the constitutionality of pay restrictions against judges for a specific period of a particular year falls within the framework defined by the principle of judicial independence,
- the constitutional position of judges, on the one hand, and the representatives of the legislative and executive powers, in particular the administration of the state, on the other hand, is different in view of the principle of division of power and the principle of independence of judges, which implies a different layout for legislators to pay restrictions on judges compared to those of such restrictions in other areas of the public sphere,
- the intervention in the material security of judges guaranteed by the law must not be an expression of the legislature's indiscretions, but must be justified, based on the principle of proportionality, by exceptional circumstances, such as the difficult financial situation of the State, even if this condition is fulfilled, taking into account the difference in the function of judges and representatives of the legislative and executive powers, in particular the administration of the State; Such intervention must not give rise to any cause for concern if the restriction of the dignity of judges does not affect, or if it is not an expression of constitutionally unacceptable pressure of legislative and judicial power. In the case under consideration, the Constitutional Court found, for example, no exceptional deficit in the international comparison, further accentuating the long-term trend in the reduction and freezing of judicial salaries, which it considered to be the abandonment of rational relations between the level of judicial pay and public administration salaries. Such divisification leads to a decline in the judicial state within the middle class and to a reduction in social prestige. In doing so, the Constitutional Court pointed to the extraordinary increase in public salaries in 2010, which it considered contradictory with the declared goal of saving.
59. As a result of the abolition of the salary base for 2011, the activations of the legislature and executive-created "insurance policy... would prevent the irreversible step-by-step increase in the salaries of judges, which would have occurred without any change in the general regulation in § 3 (3) of Act No. 236 / 1995 Coll., as amended by Act No. 309 / 2002 Coll.... In view of the case-law of the Constitutional Court in the future, the salary thus obtained would probably no longer be significantly reduced" (press release No 133 / 0). By the communication of the Ministry of Labour and Social Affairs published under No. 271 / 2011 Coll., a salary base of CZK 57 747.50 was announced for 2011 (2.5 times the average salary of individuals in the non-business sphere for 2009).
60. By finding sp. zn. Pl. ÚS 33 / 11 The Constitutional Court annulled, on the one hand, the ad hoc set salary base for the years 2012 to 2014 (§ 3b (2) of Act No. 236 / 1995 Coll., as amended by Act No. 425 / 2010 Coll.) on the day of the declaration of the finding in the Collection of Laws, i.e. 1 June 2012, on the other hand, the word "2.5 times" in § 3 (3) of Act No. 236 / 1995 Coll., as last amended by Act No. 425 / 2010 Coll., expired on 31 December 2012.
61. In doing so, he referred to the previously defined generalising thesis laying down the limits of possible restrictions on the material security of judges, to the comparison with the case-law of the European Constitutional Courts and stressed and clarified the principle of an independent judiciary as one of the essential elements of the democratic rule of law (Article 9 (2) of the Constitution). The requirement of independent justice stems from two sources: the neutrality of judges as a guarantee of fair, impartial and objective judicial proceedings and the safeguarding of the rights and freedoms of individuals by a judge separated from political power. The independence of judges is guaranteed by guarantees of a special legal status (which must include inconsistencies, irrevocability, integrity), guarantees of organisational and functional independence from the bodies representing legislative and, in particular, executive powers, and separation of the judiciary from legislative and executive powers (in particular, application of the principle of incompatibility). From the point of view of content, judicial independence is ensured only by the binding of judges by law, i.e. excluding any elements of subordination in judicial decision-making. The Constitutional Court dealt with the fundamental components of the principle of independence of the judiciary in a comprehensive manner in the decision of the General Court on page Pl. ÚS 7 / 02 of 18 June 2002 (N 78 / 26 CollNU 273; 349 / 2002 Coll.).
62. The Constitutional Court, on the fringe of the provisions of § 3 (3) and § 3b (2) of Law No. 236 / 1995 Coll. in the cited finding, repeated the observation already made in the sp. zn. Pl. ÚS 12 / 10:... "the judicial salaries, as well as the salaries of the other servants of the State 'for a long period of time and with the following intended perspective, are subject only to restrictions. The measures in relation to them then do not appear to be exceptional and proportional, but as a targeted process aimed at returning the judicial salaries to lower levels, thereby removing the legislative and executive powers made in the past, a mistake in establishing rules for calculating the judicial salaries in the mid-1990s. Such lack of approval is bound to lead, in its consequences, to the descent of the judicial state within the middle class, its income degradation in relation to other legal professions and to the reduction of its necessary social prestige." This fact does not change the assertion of the legislator that the adjustment contained in Section 3b (2) of the Salary Act returns the salary base "ca." to the level of 2007-2009.
63. Conversely, the restriction contained in the reduction of the coefficient for determining the salary base from a value of three times the value of 2.5 times the average nominal monthly salary of individuals in the non-business sphere (Paragraph 3 (3) of the Salary Act, as amended by Act No. 425 / 2010 Coll.) constitutes a disproportionate and only against judges-oriented intervention and does not meet the conditions laid down by the Constitutional Court in the case-law already outlined for the acceptance of restrictions on the salaries of judges.
64. The result of the finding of sp. zn. Pl. ÚS 33 / 11 was that the Ministry of Labour and Social Affairs announced, for the period from 1 June 2012 to 31 December 2012, a salary base of 2.5 times in relation to the average salary achieved in the non-business area in 2010, CZK 57 222.50 (the judges thus had a salary set out from the base "frozen" of CZK 56 849, i.e. a salary base of almost CZK 1 000 in nominal terms compared to 2011).
65. The Constitutional Court does not consider as the reference criteria the conclusions drawn by the Constitutional Court in the findings relating to the "freeze" of the salary base in the years 2003-2010, since these conclusions were substantially overcome by developments and by case law practice after 31 December 2010.
Determination of a salary base for judges 2.75 times the average salary of individuals in the non-business sphere
66. In particular, the Constitutional Court points to the initial maximum which it has identified as relevant in the finds sp. zn.
67. The procedure of the Executive Board and the Chamber of Deputies after the Constitutional Court has declared the finding sp. zn. The Executive Authority presented a draft law in five variants and the Chamber of Deputies could not find the necessary majority for an opinion on how to adjust the pay base for judges, although there was no need to hesitate to read the Constitutional Court's findings and although, during the hearing, there were reminders of the finding of the Constitutional Court's decision on the part of the Court of First Instance, Pol. ÚS 33 / 11 from the mouth of the Minister of Justice himself and the Senate from the President of the Constitutional Law Committee, in which the proposals were made by Members to return the relevant session to triple.
68. The Constitutional Court under sp. zn. If the executive and legislative powers were unable to understand or did not want to understand the conclusions of the Constitutional Court, it would be clear that the reduction of relative values in the judicial remuneration system was the result of the long-standing freeze of the salary base in the first decade after 2000, which the executive and legislative powers should have been well aware of, including the fact that "defrost 'after a long time must be associated with a certain" jump increase', if only to be frozen, and not a targeted approach towards a permanent reduction in relative circumstances, it was the result of targeted pressure (documented quotations from the Constitutional Court's findings) on the salaries of judges and their convergence with the salaries of officials and, however, which were never mentioned by his groups).
69. The Constitutional Court does not consider the relative relationship between the base for judicial salaries and the average wage in the non-business sphere to be a constitutionally untouchable parameter; However, it was justified why the Constitutional Court considered a reduction of around 16% to be non-discriminatory in view of all the facts taken into account.
70. The press release No 880 / 0 contains only one figure justifying the 2,75-fold threshold, namely "a return to the triple would place high demands on resources from the state budget in 2013 and beyond, i.e. in the period in which austerity measures are applied to virtually all population groups. In particular, given the current economic situation and the possibilities of the state budget, the establishment of a session of 2,75 times."
71. It is not the role of the Constitutional Court to formulate extensive economic analyses in its decision and to examine the possibilities of the state budget; that was supposed to be part of the explanatory memorandum to the bill. This was neither in Act No. 425 / 2010 Coll. nor in Act No. 11 / 2013 Coll. As regards the austerity measures against the population as a result of the financial and economic crisis, the executive and legislative powers need not use populist general statements: judges' salaries succumbed to a significant real decline in their value (probably as no group of employees remunerated from the state budget) as a result of interventions in the public sector in 2002-2010, when no austerity measures were applied in terms of remuneration in the public sector, which would have been reflected in the average wage figures in the non-business sector. According to the CSU data publicly available (publication e-3106- 13 published on 25 March 2014), the average gross monthly wage in the non-business sector - recalculated figures - in the years 2000-2013 (Annex 1b) did not decrease in either year, even in the years declared as a crisis period; growth of between 4.2% and 9.5% is reported by 2009, stagnation (0.2% growth) in 2010 and 2011, 2.2% growth in 2012 and 0.9% growth in 2013.
72. This development is reflected only by a delay in time (if the average salary falls, the salary of judges will fall only with a time delay - this is due to the adjustment contained in Section 3 (3) of Act No. 236 / 1995 Coll.). The solidarity of judges with other employees in the non-business sphere is therefore built very firmly in the system.
73. The claimed austerity measures (as stated in the press release No 880 / 0) did not thus find their expression in terms of average non-business wages. The legislature has in no way analytically argued by structural changes in employment in the public sphere or by the decline in employees' salaries in the highest hierarchy of government. According to available publicly available data (information system on average earnings published at www.mpsv.cz), the median gross monthly salary of the highest civil servants of central government increased from 80 271 (revised results on 26 March 2014) to 84 139 CZK (results on 26 March 2014; the average was 91 398 CZK in 2013). The macroeconomic forecasts (e.g. the Ministry of Finance, as specified on 11 April 2014) say that the gradual revival of economic activity should continue, GDP could increase by 1.7% this year, growth could accelerate to 2% in 2015; Other forecasts published in publicly available sources indicate the possibility of up to 3% growth, the analytical consensus foresees this year's growth in the Czech economy from 2.5% to 3%.
74. The Constitutional Court therefore finds that neither the reduction of the relationship between the salary base and the average wage in the non-business sphere from 3 to 2.75 times is supported by an analysis that would indicate that it is an appropriate intervention, within the limits of a constitutionally defined area of intervention in the material security of judges. On the other hand, from the quoted public resources, it can be concluded that the salary base, reduced from three times to 2,75 times from 2013 to 8,3%, is out of the reach of growth - albeit moderate - of average non-business wages (recalculated figures) in the same period, and is no longer in the correlation to about 4,6% of the median increase in the average salary of senior civil servants between 2012 and 2013. Moreover, the salaries of judges are fixed and, unlike civil servants, they cannot be increased by granting any remuneration.
75. Freezing the salaries of judges in the decade between 2002- 2011 has already brought savings to the state budget in the order of billions of CZK; saving on the salary of one county court judge at the beginning of his career as a result of salary freeze can only be estimated at more than 400000 CZK in 2007-2011. Another significant savings (in the billions) were recorded by the state budget "thanks to the chosen method of wage regulation, i.e. the ad hoc base for the years 2011- 2014, probably aware that the decision of the Constitutional Court is essentially ex nunc. However, the Constitutional Court will comment on the temporal issues later.
76. It can therefore be summed up that in establishing the relationship between the average wage in the non-business sector and the judicial salary base, the maximums set out by the Constitutional Court in its case-law in the past were not taken into account. no account has been taken of the narrow layout that the legislator has in this area. After years of salary freeze, the judges legitimately expected the system to restore regular links to the average wage achieved in the non-business sector in 2011. The difficult economic situation may have given rise to certain restrictions, but it is in the past that this area has already been narrowed down as much as possible, if it is not exhausted in a situation where the economic situation in our country has not been and cannot be assessed as a pre-bankruptcy situation (fortunately). The Constitutional Court, being subjected to a series of motions by the courts, has repeatedly become aware of the position of the judicial public, which undeniably understands and must understand that, in the event of economic difficulties, restrictions may also affect judicial powers in a defined constitutional area. However, such restrictions must always be proportionate within the area reserved for it and must not create inequalities. If every employee (or at least most of them) in the public sphere were affected by such a real reduction in the value of his pay for work in the period 2002- 2013, as was the case with the judges, then restrictive measures, even in a constitutionally defined disposition area, could, in theory, also affect the judge. It cannot be seen, however, that even in the period of wage cuts in the public domain, areas in which these restrictions have not even occurred (e.g. education, health) have been set aside. However, restrictive interventions in the past in the area of the protection of judges in sickness or the taxation of expenses are also being carried out. Although the Constitutional Court does not intend to follow the conclusions made in the past in the sp. zn. In addition, judges differ from other constitutional actors by a substantial limitation on any possibility of obtaining additional income, for example, from the performance of another post, employment relationship or even business, so the judge cannot replace the loss of income by other work activities (those permitted by the majority are unable to replace the failure - educational or scientific activity). Moreover, the profession of judge is usually a lifelong choice, which should not be influenced by continuous interference with material security. In this respect, judicial power is the most stable pillar of state power, as it is not subject to electoral cycles, the lawfulness of which is likely to lead legislative and executive officials to seek to accommodate the public's mood as well as in terms of remuneration for the execution of the parliamentary mandate. This approach, however, is not applicable in relation to judicial power and leads to breaches in the hierarchy of relations between the various parts of the state with regard to the level of material security, as set out in the introduction of the system of a single salary base for representatives of state power and judges.
77. The legislature and the executive have made strategic mistakes in relation to the regulation of the material security of judges: unlike some surrounding states also affected by the financial and economic crisis, they have not taken general and long-term fundamental measures in relation to public administration employees and partial and time-limited measures in relation to judges, but the opposite. The Polish Constitutional Court, for example, was able to state in the decision in sp. zn. C 1 / 12, P 35 / 12 that the freezing of judges' salaries in 2012 was not unconstitutional; In doing so, he relied on the finding that since 2008 the remuneration of all civil servants and officials of state institutions had been frozen and the general mechanism for increasing judges' salaries remained unchanged - only an occasional one-year adjustment to the state's financial situation. At the same time, however, he added that in the long term the judge's salary should show an upward trend, which should not be lower than a similar trend regarding the average public sector remuneration. Otherwise, the international computation of the decisions of the European Constitutional Courts shows that these institutions ensure that the Constitution does not give up the economic reality of the country, but stress that the Constitution is endowed with specific normative autonomy, which prevents economic objectives from being unrestricted over equality or comprehensively understood independence of the judiciary, which is protected by constitutional principles (e.g. the Portuguese Constitutional Tribunal in Decision No 353 / 12 of 5 July 2012, the Constitutional Court of the Slovak Republic in the decision of sp. zn. PL.
78. It remains to be pointed out repeatedly what the Constitutional Court had already said in 2003 (finding sp. zn. Pl. ÚS 11 / 02): "The pay ratios of judges in a broad sense are to be stable, not a variable with which it or the government group calculates, for example, because they seem to be too high in terms of the salaries of civil servants or of another professional group." As a result, not only the Presidents of the Chambers and the officials of the two Supreme Courts, the Presidents of the Supreme Courts, the Presidents of the Supreme Courts with 30 years of experience and their officials, and even the Presidents of the Chambers of the Regional Courts and their officials, have a higher salary than the judges of the Constitutional Court, and again to repeat what the Constitutional Court said in 2012 (Opinion No 33 / 11).
79. Under these circumstances, the notion of limited State budget options cannot be accepted, and no argument has been put forward in law that could be regarded as a "exceptional circumstance" justifying the priority of equality in the area of restrictions on the remuneration of civil servants, constitutional officials and judges against the principle of comprehensively understood independence of judges. In addition, as mentioned above, the Constitutional Court does not find any arguments that would suggest equal treatment in terms of remuneration of civil servants and judges (in terms of equal restrictions - a reduction in the public wage volume may not lead to a reduction or a freeze in pay for each individual, as opposed to each judge).
80. The salary restriction contained in § 3 (3) of Act No. 236 / 1995 Coll., as last amended by Act No. 11 / 2013 Coll., in the word "2.75 times," is contrary to Article 1 (1) in conjunction with Article 82 (1) of the Constitution, and therefore the plenary of the Constitutional Court decided pursuant to § 70 (1) of the Law on the Constitutional Court on the deregation of the provision in question, as stated in the operative part of the operative part of the decision of sub I. In view of the above reasons, there is no longer room for restrictive interference in the relative ratio enshrined in Article 3 (3) of the Salary Act, as established by Act No. 309 / 2002 Coll. (at the level of 3 times). In order to adopt a constitutionally conformal session between the average wage in the non-business sphere and the judicial salary base, the Constitutional Court has provided for a postponement of the enforceability of the finding for a reasonable period of time sufficient for the proper legislative process of this legislative change.
Compliance of Article II of Act No. 11 / 2013 Coll. with the constitutional order
81. I shall apply for the first time to the Judge's salary for January 2013. This provision must be read at the same time as the provisions of Article 4 (1) (a) of Regulation (EU) No 1308 / 2013. On the effectiveness according to which the Act entered into force on 1 January 2013. It was published in the Collection of Laws on 17 January 2013. According to the explanatory memorandum to press No 880 / 0, the transitional provision is justified as follows: "For reasons of legal certainty, it is emphasised that the newly established level of the salary base will be used to determine the remuneration and reimbursement of expenditure for the whole of January 2013, even if the publication of the Law in the Collection of Laws takes place only during that month. 'The effectiveness of the Act was stated:" The effectiveness of the proposed solution must take place immediately after the abolition of the level of the salary base by the Constitutional Court, i.e. after 31 December 2012. "
82. The appellant submits that the legislation is inadvertently retroactive.
83. Article 52 (1) The Constitution needs to be declared for the validity of the law, as provided for in paragraph 2, the manner in which the law is published. This law is Act No. 309 / 1999 Coll., on the Collection of Laws and on the Collection of International Treaties, as amended. According to Article 3 (1) of Act No. 309 / 1999 Coll. the legislation is valid on the day of their publication in the Collection of Laws. According to Article 3 (2) of the Act, the date of publication of the law is the date of distribution of the relevant amount of the Collection of Laws referred to in its heading and, in accordance with paragraph 3, if no later effective, the legislation becomes effective on the 15th day following its publication (general vacatio legis). Where an urgent general interest so requires, an earlier start of effectiveness may exceptionally be established, but first on the date of publication. Those provisions of the Constitution and of Law No 309 / 1999 Coll. preclude the adoption of the legislation from producing the intended effects before it was declared.
84. Act No. 11 / 2013 Coll. was published in 7 Collection of Laws, which was distributed on 17 January 2013. If, therefore, it is in Article 2 (1) (c), Article 2 (1) (a) and (c) of Regulation (EU) No 1308 / 2013. It was stated that the Act takes effect on 1 January 2013, then it is quite clear that the effectiveness of the Act is established in breach of Article 52 (1) of the Constitution and Article 3 (3) of Act No. 309 / 1999 Coll. Therefore, if Law No 11 / 2013 Coll. provided, by virtue of Articles II and V, that its effects had already taken place before the date of publication, i.e. before it was declared, it had retroactive effect. The effectiveness of this legislation is thus preceded by its validity, and the legislation provides for a binding rule consisting of a reduction of the salary base from 3 times to 2.75 times back when the law was not published. For the sake of completeness, it should be added that the appellant submitted only a transitional provision for review to the Constitutional Court, not a provision on the effectiveness of the law.
85. The Constitution does not provide an explicit prohibition of retroactive legal standards for all areas of law, but it follows from the principle of the rule of law under Article 1 (1) of the Constitution, which includes the principle of legal certainty and the protection of trust in law. This prohibition applies in principle to cases of genuine retroactivity; the content of the prohibition as a constitutional principle is not to exclude any retroactive legal rule, but only one which, at the same time, constitutes an intervention in the principle of protection of trust in law, legal certainty or acquired law. The Constitutional Court has in the past formulated the scope of the permissible exemptions from the prohibition of genuine retroactivity [cf. point 146 of the sp. zn. Pl. ÚS 53 / 10 of 19 April 2011 (N 75 / 61 of SbNU 137; 119 / 2011 Coll.)]: that is the situation where the entity had to count on retroactive regulation, the application of a legal standard which is directly contrary to the fundamental, generally recognised principles of humanity and morality, in civil relations could also be used by a "ordre public 'voucher, a public policy if it would be affected by rules absolutely cogent, which were issued as a result of a certain marginal situation of the conversion of values in society.
86. Therefore, Article II of Act No. 11 / 2013 Coll. (which, despite the provisions on effectiveness as of 1 January 2013, could not take effect earlier than 1 February 2013) bears the characteristics of genuine retroactivity and in the circumstances of its adoption, it is not possible to find a reason to admit any of the exceptions previously established by the Constitutional Court to the prohibition of genuine retroactivity. Nor is it an in favor of the judges of the general courts; After the derogation of "2.5 times' by the Constitutional Court on 31 December 2012, the new regulation cannot be regarded as a reduction of the level achieved in the long-term legislation (" 3 times'). The above-mentioned content of the debate in both chambers of Parliament merely illustrates that some members of the legislature pointed out the clarity and clarity of the last finding of the Constitutional Court, all the more so that the addressees of this standard could not expect the legislator to regret again at the base level. As already stated by the Constitutional Court in 2002 [cf. sp. zn.
87. In the case under examination, the legislature could have taken the floor in terms of time running (the Constitutional Court provided, in the decision sp. zn. Pl. Pl. ÚS 33 / 11, time space of about 7 months) and only as a result of the government's progress and disagreement on the solution, intervened retroactively in the material security of judges. The judge who began his duties on 1 January 2013 did not know whether and how he would be remunerated, contrary to the provisions of § 34 (1) of Act No. 236 / 1995 Coll., which provides that the judge is paid from the date on which he fulfilled the legal conditions for the performance of his duties. It was not even possible for such a judge to draw up a salary notice in connection with the beginning of his term of office (although, for all other employees, the employer must do so in accordance with Paragraph 136 (1) of the Labour Code on the day of taking up work). This does not change the fact that the salary for January 2013 was due no later than the calendar month following the month in which the right to pay arose (Paragraph 37 (1) of the last sentence of Law No. 236 / 1995 Coll. in conjunction with Section 141 (1) of the Labour Code).
88. Although the Constitutional Court finds the contested provision of Article II of Law No 11 / 2013 Coll. by the rule of anti-constitutional, its absence as a result of the deregulation would result in even greater interference in the constitutional order of the protected value of the independence of the judge, namely the absence of a legal basis for the material security of judges in the period of January 2013. If the intervention of the Constitutional Court cannot lead to a constitutional state of conformity, it would be against the principle of the effectiveness of the protection of constitutionality to apply deregation mechanically without taking into account its consequences. Moreover, the time run in the past cannot be reversed by a decision of the Constitutional Court, the legal consequences of the provision under assessment, which occurred on 1 February 2013, a satisfactory finding of the Constitutional Court having effect ex nunc would not have been able to change anything in the light of Article 71 (4) of the Constitutional Court Act. Therefore, pursuant to Paragraph 70 (2) of the Law on the Constitutional Court in the rest of the case, the Constitutional Court rejected the proposal [see also, for example, similar conclusions of the finding of sp. zn.
Legal consequences of sub-sub-I derogatory opinion on legislators and courts
89. The repeal of the Law under Article 87 (1) (a) of the Constitution does not give rise in principle to retroactive effects and, if the operative part is not linked to the deferral of enforceability, it acts with the effects of ex nunc. The expiry of the annulled legal provision is thus only due to the date of enforceability of the finding. The repeal of the anti-constitutional legislation in itself does not mean a revision of individual legal acts based on its application. Therefore, according to Article 71 (4) of the Law on the Constitutional Court, "the rights and obligations arising from legal relations arising before the repeal of the law remain unaffected '. On the other hand, it cannot be overlooked that, if the Constitutional Court finds in its finding that a law or other law is contrary to the constitutional order, that contradiction has been established for the period of its effectiveness. In particular, in cases where the fact that the application of the repealed legislation constitutes a breach of the fundamental rights of individuals is a natural consequence of providing the individuals concerned with the protection of their fundamental rights and freedoms precisely by not applying the law in question retroactively to the extent that the expropriation ground set out in the Constitutional Court's finding is affected. Finally, the provision of such protection is, as will be confirmed below, the main purpose of the court's authorisation under Article 95 (2) of the Constitution (taking into account Article 4 of the Constitution). However, this applies only if the granting of such protection does not prevent any other fundamental right or important public interest to which priority must be given in the event of a collision. If, for example, in legal relations between individuals, the non-retroactive application of an unconstitutional law would mean the protection of the fundamental rights of one party to that legal relationship, but at the same time a negative interference in the fundamental rights of another participant, who has previously acted in confidence in the law, such a consequence of a derogation, taking into account the principle of legal certainty (except for some extreme cases of interference with fundamental rights), would be excluded. On the contrary, in the case of vertical legal relations between the State and the individual, the protection of fundamental rights and freedoms of the individual has a fundamental priority. Here, however, it should also be taken into account that the non-retroactive application of the anti-constitutional law could, in certain circumstances, lead to a threat to the State's ability to perform its functions (for example, in view of the impact on the state budget) or to the threat of other important public interest, as a result of which, on the contrary, it would be necessary to give priority to the legal certainty and maintenance of the current situation [more closely to the interpretation referred to above, for example, the finding of Spl. Decision No 1777 / 07 of 18 December 2007 (N 228 / 47 of the SbNU 983); find sp. zn. Pl. ÚS 16 / 09 of 19 January 2010 (N 8 / 56 SbNU 69; 48 / 2010 Coll.); the finding sp. zn.
90. That consequence shall apply mutatis mutandis in the case of the establishment of the Constitutional Court in both abstract and specific control of standards. Finally, Article 71 (2) of the Law on the Constitutional Court foresees the inoperability of decisions given under an unconstitutional law (provided that there is a relevant derogatory ground for such application, cf. the finding of the Constitutional Court of 4 September 1777 / 07), which is undoubtedly not to be interpreted as meaning that general courts or other public authorities should continue to issue decisions which are not enforceable in advance. However, in these cases, abstract and specific control of standards should be distinguished. In fact, if the abstract control of the standards is valid practically without exception, the particular control of the standards must be carefully weighed against the presumption of the constitutionality of the contested law and the interest in legal certainty, on the one hand, and the interest of the person who initiated the standard control procedure at the Constitutional Court, on the other. To put it mildly, it would not make any reasonable sense if a satisfactory finding by the Constitutional Court of an application for annulment of the statutory provision could not be expressed positively in the legal sphere of the party who either made this application for annulment of the legal provision together with a constitutional complaint (Section 74 of the Constitutional Court Act), or was a party to the proceedings before the General Court, which, pursuant to Article 95 (2) of the Constitution, submitted to the Constitutional Court a proposal for annulment of the law to be applied in the settlement of the case [See also the Opinion in sp. However, even this rule does not have to apply without exception, given the need to measure the fundamental rights of that party on the one hand and the requirement of legal certainty, the protection of the fundamental rights of other parties or of other constitutionally protected values on the other (see above). The result of this measurement may not be clear from the point of view of the General Court, which puts the matter before the Constitutional Court, and the conclusions contained in the possible derogation finding will be a key starting point for its assessment.
91. According to the provisions of Paragraph 70 (1) of the Law on the Constitutional Court, the annulment of the contested law will take place "on the date specified in the finding." Under Article 58 (1) of the same law, the findings issued in the standard control procedure "are enforceable on the day of their publication in the Collection of Laws, unless the Constitutional Court decides otherwise '. According to the Constitutional Court's constant case-law, it follows that the Constitutional Court is given the possibility, where justified, to postpone the enforceability of the annulment of the standard control procedure. This is in particular the case where the immediate repeal of the legislation would result in more negative consequences than its temporary tolerance. Therefore, even in the present case, the Constitutional Court has held that the enforceability of the procedure has been postponed (see paragraph 80).
92. However, since it is a case of so-called specific control of standards in the present case, it is necessary to consider the effects that this deferral of enforceability will have on the proceedings which led to the issue of this finding, or also on the proceedings in the cases of other judges, which were suspended by the Municipal Court of Brno for the purpose of making this proposal and in which this finding could be taken into account in the decision.
93. In addition, the Constitutional Court states that the determination of the temporal effects of the repeal of an unconstitutional law is to some extent a question in which it cannot be limited to purely constitutional reasoning. Indeed, if the Constitutional Court could not take into account the arguments, interests and values of another, then it should not actually approach the postponement of enforceability. In assessing whether to defer enforcement and for what period, it necessarily takes into account, for example, the complexity of the legislation which should replace the regulation repealed or the length of the legislative process, and cannot ignore aspects such as the term of the elections to the Chamber of Deputies. If it had not done so, it would not have been expedient to determine the postponement of the enforceability of such a finding. It is therefore not random that, in the past, the Constitutional Court has provided for a postponement of enforceability of both a few months and more than one year.
94. In the present case, the Constitutional Court notes that, however generally, even when determining the suspension of the enforceability of the annulment, this annulment should be reflected in the legal sphere of those parties whose proceedings led to the issue of a satisfactory finding, in the present case, the conditions for concluding that this rule does not apply. In considering the legal effects of the finding in the standard control procedure, other aspects than purely procedural should be considered, as is the case with the constitutional courts of other European countries. The Constitutional Court considers that these aspects, in summary, lead to the conclusion that the effects of this finding can only be applied to the cases of such participants from the time of its enforceability and that this finding does not give rise to the right to pay back the difference in salary and other elements resulting from the base amount of 2,75 times the average wage in the non-business area for the preceding calendar year and the constitutional form of the three-fold which should have been included in the legal regulation as of 1 January 2013.
95. This conclusion is primarily led by the Constitutional Court's interest in calming the overall atmosphere, which has long been on the political scene and, in particular, in the wider public regarding the salaries of judges. Although the Constitutional Court insists that the legislature has been deliberately unconstitutional and therefore inexcusable in the long term in this matter, it must be seen at the same time that repayments of these amounts would mean significant and, in particular, unforeseen interference with the state budget, which would necessarily lead to a further increase in the said tension between society and judges. At the same time, the Constitutional Court could not overlook that the repayment of the required amounts would also concern the period when the Czech Republic was in a financial crisis or was only slowly recovering from the crisis. This solution would therefore appear to lead to a misunderstanding by the company and would also be capable of weakening the position of judges and undermining their function. Indeed, the Constitutional Court does not consider that the applied coefficient of 2.75 times the average wage in the non-business area of the judges would trigger a situation that could be considered as so intolerable that it would unconditionally require correction not only in the future but also in return. He also considered that the function of judge should be seen not only in the professional but also in personality. Simply put, the judge is not only expected to have expertise and high workload, but also to have integrity and above-average personal integrity [see, for example, Section 80 of Act No. 6 / 2002 Coll., on Courts, Judges, Addresses and Government Administration of Courts and on the amendment of certain other laws (Law on Courts and Judges)]. Therefore, the Constitutional Court considers that this group, which should represent the true elite of society, can also be demanded of greater generosity and friendliness than of other groups.
Obiter dictum
96. The Constitutional Court issued this finding in the notional "continuous numbering" under order number XIV. He has had to deal with interference in the material security of judges 14 times in recent years. He has also expressed several times the hope that this is perhaps the last time and that the legislator will perceive the limits of possible intervention by overriding constitutional principles applicable to the independence of judicial power.
97. The legislation on the material security of judges, built on a three-time session of the average wage in the non-business sector with a two-year delay reflecting developments in the non-business sector, could place the judge in a higher middle class. This is an adjustment that is not out of the way for European standards and is essentially the average of the position of judge, for example, in the Member States of the Council of Europe. It also contains a rare possibility of a nominal salary reduction if the average salary in the non-business sector is reduced - in many countries the judge's salary is protected from such a decline. In the repeated proceedings before the Constitutional Court, the legislature's intervention has proved to be arbitral, even according to the explanatory notes, the intention to put pressure on the average salary and salary base for judges to humiliate the session. Such pressure cannot simply be justified by the budgetary costs of the judges' salaries; on the other hand, the judicial authority does not exist outside the economic reality of the state and the session is not a constitutionally untouchable quantity. However, there would have to be very strong arguments to intervene, supported by proper analysis of remuneration in the public sphere, in a situation of very limited state possibilities, while respecting constitutional guarantees of the independence of the judiciary. The Constitutional Court has not, by its decision, established a right to retroactive payments for a period when judges were unconstitutionally damaged by a reduction in their level of material security, which does not mean once and for all that anti-constitutional intervention cannot have a very significant impact on the state budget. It assumes that, at the date of enforcement of this finding, the legislature will place a regulation weighing the salary base on a constitutionally conformal level of three times the average salary in the non-business sphere, and on the other hand, the Constitutional Court would not be surprised if the judges had retreated from the litigation and a period of understanding and mutual respect was established after several years of dispute, belonging to officials representing the pillars of state power.
98. The Constitutional Court was unable to comply with the appellant's request for priority consideration (Section 39 of the Law on the Constitutional Court) in respect of the personnel replacement of the majority of plenary of the Constitutional Court in 2013.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions pursuant to Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by Judge Jan Musil and Radovan Sukánek on the operative part of the judgment of Judge Vladimir Sládeček.
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Regulation Information
| Citation | The Constitutional Court found No 161 / 2014 Coll., on the application for annulment of Section 3 (3) of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of state authority and of certain state bodies and judges and Members of the European Parliament, as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 04.08.2014 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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