The Constitutional Court found no 208 / 2024 Coll.
Findings of the Constitutional Court sp. zn.
Valid
The Constitutional Tribunal found
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208
FIND
The Constitutional Court
of 15 May 2024
sp. zn. Pl. ÚS 15 / 22 concerning the application for annulment of Article 4 of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of State power and of certain state bodies and judges and Members of the European Parliament, as amended, and Article II of Act No. 201 / 1997 Coll., amending Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the functions of representatives of State authority and of certain state authorities and of Members of the European Parliament, as amended, and Act No. 201 / 1997 Coll., as amended by the Act No 236 / 1995 Coll.
On behalf of the Republic
The Constitutional Court decided on page 15 / 22 on 15 May 2024 in plenary of the President of the Court of Josef Boxy (Judge) and judges of Lucie Dolanská Bányai, Josef Fiala, Milan Hulmák, Jaromír Jirsa, Veronica Christian, Zdeněk Kühn, Tomáš Licovník, Katřina Ronovska, Jan Svatona, Pavel Šámal, Vojtěch Šimíček, David Uhlíř, Jan Wintra and Daniela Zeman, on the application of the Law No. 236 / 1995 Coll.
as follows:
I. Paragraph 4 in the words "and for the judge 100 872 CZK" of Act No. 236 / 1995 Coll., on the salary and other formalities connected with the performance of the duties of representatives of state power and of certain state bodies and judges and Members of the European Parliament, as amended by Act No. 18 / 2022 Coll., is hereby deleted from the date of the declaration of findings in the Collection of Laws and International Treaties.
II. Article II in the words "and the Communication of the Ministry of Labour and Social Affairs No 493 / 2021 Coll., on the declaration of the level of the salary base for determining the salary and certain reimbursement of the expenses of judges under 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," Act No. 18 / 2022 Coll., amending Act No. 236 / 1995 Coll., on the day of the declaration of finalisation of laws and other requirements of civil servants, and on the remuneration and remuneration of officials and in the subsequent acts, and Act No. 201 / 1997 Coll.
III. The remainder is rejected.
Reasons
Definition of the case
1. The Constitutional Court currently deals with restrictions on judicial salaries between February and December 2022. It also clarifies the case law on the state of legislative emergency and on the abbreviation of laws, as well as the requirement that draft laws on restrictions on judicial salaries be discussed in advance with the power of the court.
2. The Constitutional Court has devoted 15 times in its findings to intervening in the regulation of judicial fees. There is no other legislation that the Constitutional Court would have to deal with so many times in its 30-year history and examine its constitutionality. In the past, the Constitutional Court has repeatedly expressed its conclusions on the legislative and executive procedure, in the hope that future interventions in judicial salaries, if necessary, will strictly respect constitutional requirements. The case under examination, as will be stated below, has not filled that hope again.
3. The amount of the salary and the flat-rate compensation due to the Judges shall depend on the salary base. In 2022, the salary base for judges under the original rules was to be CZK 106 986 (§ 3 (3) of Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the duties of representatives of the State and of certain state authorities and judges and Members of the European Parliament, as amended, and on the salary and other formalities associated with the duties of representatives of the State and of certain state authorities and Members of the European Parliament).
4. However, this salary base was based only on the setting of salaries and flat-rate refunds for January 2022. In this month, the government submitted a bill to Parliament, which returned the salary base to 2020 and 2021 for the period from February to December 2022, to CZK 100 872.
5. The Chamber of Deputies, at the request of the Government, has discussed the bill in an abridged act in a state of legislative emergency. The Senate has expressed its willingness not to deal with the bill. The Act was thus adopted in January 2022, signed by the President of the Republic and declared as Act No. 18 / 2022 Coll., amending Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the duties of representatives of the State Government and of certain state authorities and judges and Members of the European Parliament, as amended, and Act No. 201 / 1997 Coll., on the salary and certain other formalities of the prosecutors, and on the amendment and addition of Act No. 143 / 1992 Coll., on the salary and remuneration for the duty of duty in the budget and in certain other organisations and institutions, as amended, as amended.
6. As a result of this amendment to the remuneration and flat-rate compensation of judges and judges for the months of February to December 2022, they decreased compared to January 2022.
7. Judge at the Regional Court in Ústí nad Labem Roman Buchal ("the plaintiff") brought an action against the Czech Republic - Regional Court in Ústí nad Labem, seeking payment of the salary and standard compensation for February 2022, namely CZK 10 500 and CZK 300. It considers that the change made to the salary base is unconstitutional and that it is entitled to a salary and flat-rate compensation of the original amount.
8. The District Court of Ústí nad Labem ("the District Court 'or" the appellant') is conducting proceedings for this action under sp. zn. 22 C 120 / 2022. The District Court was in agreement with the applicant's argument and therefore addressed the Constitutional Court pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, with the proposal to repeal Article 4 of Act No. 236 / 1995 Coll., as amended by Act No. 18 / 2022 Coll., and Article II of Act No. 18 / 2022 Coll.
Arguments of the appellant
9. According to the appellant, the contested provisions are contrary to Article 82 (1) of the Constitution (independence of judges) in conjunction with Article 1 (1) of the Constitution. Its arguments are based on the arguments put forward before it by the applicant.
10. The appellant contends first of all that Law 18 / 2022 Coll. was not adopted in a manner consistent with the constitutional order. The reasons for adopting this law were not fulfilled in a state of legislative emergency. The conditions for declaring such a condition must be interpreted strictly. The declaration of a state of legislative emergency must therefore have a reasonable basis and be supported by factual circumstances. According to the State's explanatory memorandum, there was considerable economic damage in the event of a failure to adopt the law. However, this condition could not be met. The savings that Law No 18 / 2022 Coll. should have brought were only 0.1% of the government deficit. Nor does the explanatory memorandum show that there was a need to intervene in the judicial fees, a comprehensive economic analysis, as required by the case law. Moreover, the draft law was not discussed with a judicial authority which had no opportunity to express its position during its preparation.
11. Furthermore, the appellant contends that the contested provisions led not to the freezing of judicial salaries but to a reduction of 6%. Such restrictions are contrary to the principle of proportionality; moreover, they were selectively directed against judicial power. For other groups whose salaries are also paid by the State budget, there was only a freeze or even an increase in the salary during the same period. The appellant recalls that the salary base for determining the judicial salary depends on the average wage in the national economy for the year before last. If the average wage falls, the judge's wages will fall, and vice versa. The solidarity of the judiciary with all employees is therefore a solid part of the system. The judges' salaries and wages of other employees are "joined vessels' and the legislator's intervention in this system" degrades its meaning and function '. The freezing of judges' salaries between 2002 and 2011 has already brought billions of savings to the state budget, other savings being made after the judges in 2015 waived part of their salary claims for unconstitutional restrictions in previous years. Moreover, in the appellant's view, the judges did not object to the salary freeze in 2021, thereby showing solidarity again, even though there was an increase in salaries for other professional groups at that time.
12. Although the limitation of judicial salaries is justified in the explanatory statement by the need to implement general measures to save public expenditure, at the same time the budget chapter of the Office of the Government increased from CZK 1 047 452 030 (for 2021) to CZK 1 532 645 653 (approved budget for 2022), i.e. CZK 485.2 million. According to the appellant, under certain conditions, there could be a temporary change in the determination of the judicial fees, but this would have to happen in accordance with the constitutional order.
Comments on the proposal
13. The Constitutional Court sent a motion for observations by Parliament as a party to the proceedings (§ 69 (1) of the Law on the Constitutional Court, as amended by Act No. 18 / 2000 Coll.) and the Government and the Ombudsman as potential interveners (§ 69 (2) and (3) of the Law on the Constitutional Court, as amended). The Government entered the proceedings as an intervener, the Ombudsman informed the Constitutional Court that he would not use this authorisation.
14. The position of the intervener is also held by the District Court for Prague 5 and the District Court for Mladá Byslav. These courts also initially lodged an application for annulment of the contested provisions. Since their proposals had to be rejected as inadmissible for the obstacle to litispendence (other proceedings initiated) (the order of 28.6.2022 sp. zn. Pl. ÚS 18 / 22 and the order of 24.4.2024 sp. zn. Pl. ÚS 4 / 23), the two courts became entitled to take part in the procedure as an intervener (Section 35 (2) of the Constitutional Court Act). They decided to use this authority.
Observation of Parliament's chambers
15. The Chamber of Deputies, in its observations, summarised the course of discussion and approval of the draft law, which was issued as Act No. 18 / 2022 Coll. At the request of the Government, this law was negotiated in a state of legislative emergency in an abridged act, approved by the necessary majority of Members of the Chamber of Deputies, signed by the relevant constitutional authorities and duly declared. The Chamber of Deputies has expressed the belief that the law adopted is not contrary to constitutional order. However, it is for the Constitutional Court to decide on the constitutionality of the contested provisions.
16. The Senate also summarised in its observations the course of the draft law which was issued as Act No. 18 / 2022 Coll. Negotiations on the bill ended with the expression of the will not to deal with the bill. According to the Senate, the law was passed within the limits of the Constitution and the constitutional procedure. The examination of the constitutionality of the contested provisions leaves the Senate to the decision of the Constitutional Court.
Government observations
17. The Government has proposed that the Constitutional Court reject the application for annulment of the contested provisions. According to the Government, pay restrictions are not contradictory to Article 1 (1) of the Constitution (the principle of democratic rule of law), Article 2 (1) of the Constitution (the principle of division of state power) or Article 82 (1) of the Constitution (the principle of independence of judicial authority).
18. According to the Government, the judicial salaries were frozen subject to three conditions based on the present case-law of the Constitutional Court. Firstly, there was no reduction in the nominal amount of the salary. The Government recognises that in January 2022, judges and judges were paid a higher salary and reimbursement than in the months following, but this was due to complications of the legislative process, combined with the relatively late onset of the new government after the elections to the Chamber of Deputies held in October 2021. The intention to freeze salaries was taken by the government at the end of 2021 and at that time publicly announced it. However, since it was not possible to adopt an amendment to the law in such a short time, and the possible restriction of salaries already in January 2022 would have unduly intervened in legitimate expectations and was truly retroactive, the salary restriction was applied only to salaries from February 2022. The Government points out that in the long term there is a rise in the salary of judges, as evidenced by a comparison of the level of salaries for 2009, 2021 and 2023.
(19) Secondly, the Government states that the suspension of wage growth rates was only temporary. It was only for 11 months. Therefore, this restriction cannot be compared, for example, with an unlimited, systemic reduction in the salary base. In the past, the Constitutional Court also addressed the freezing of the salary base for 1 and 3 years [the finding of the sp. zn.
20. Third, the suspension of growth rates was not arbitrarily directed against judges. On the contrary, the Government has agreed to freeze the salaries of civil servants and of civil servants in public services and administration by Government Regulation No 531 / 2021 Coll., amending Government Regulation No 341 / 2017 Coll., on the remuneration of civil servants in public services and administration, as amended, Government Regulation No 341 / 2017 Coll., on the remuneration of civil servants, as amended, and Government Regulation No 304 / 2014 Coll., as amended, and Government Regulation No 341 / 2017 Coll., amending Government Regulation No 347 / 2021 Coll., amending Government Regulation No 304 / 2014 Coll. It is with public-sector workers that judges are supposed to have primary solidarity, according to the government.
21. Only teaching staff and social and social services workers, health workers, doctors and dentists as well as members of the safety corps and professional soldiers were excluded from the area freeze. The increase in the salaries of teaching staff reflects a long-term strategy and the remaining groups have been above normal involved in resolving the pandemic situation. In the past, the Constitutional Court had already addressed the restriction of judicial salaries, even though there was a rise in teachers' pay at the same time (Figure Pl. ÚS 13 / 08).
22. Furthermore, the Government refers to the procedure for the adoption of Act No. 18 / 2022 Coll. and to the fact that it was adopted in an abridged act in a state of legislative emergency. The government and the Chamber of Deputies have the primary responsibility to assess the existence of a legislative emergency. The decision of the President of the Chamber of Deputies to declare a state of legislative emergency is compulsory for the Chamber of Deputies to review it and may cancel or limit the period for which a state of legislative emergency is declared. According to the Government, "neither the Constitutional Court nor the Constitutional Court Act provides for the power of a decision [...] on the declaration of a state of legislative emergency (and hence its justification) to be reviewed as it is an act of a political nature '. The law adopted in this way could be repealed by the Constitutional Court only if the opposition's rights were affected by a defect in the legislative process.
23. The Chamber of Deputies has confirmed the duration of the legislative emergency by a strong majority: of 183 Members present voted in favour of 176. A significant majority of Members also voted in favour of the draft law under consideration at the third reading: of the 178 who were present, 173 voted in favour. Therefore, a broad consensus was reached when the law was negotiated, as required by the case law [the finding of the sp. zn.
24. Moreover, according to the Government, the condition of the existence of an exceptional circumstance justifying the draft law in a state of legislative emergency was met. At the beginning of 2022, the Czech Republic was in a budget commission and the state's spending situation was a crisis. The effects of the disease pandemic COVID-19 represented a very exceptional and serious intervention in the economic situation of the State. Due to a two-year pandemic, unforeseen situations have led to uncertainty and severe effects on private operators. It was only possible to provide assistance to a certain extent and to certain areas. The effects of the pandemic and the emerging energy crisis and increased inflation have led to a deepening of the public deficit. Therefore, at the end of 2021 and at the beginning of 2022, a number of extraordinary austerity measures were taken to avoid further economic damage.
25. These included salary restrictions, which were introduced on a flat basis by the Government Decree No. 531 / 2021 Coll. However, the amendment of Act No. 236 / 1995 Coll. In the standard legislative process, however, it would only be possible to take effect in the middle of 2022. Shortened discussion was to speed up the adoption of this part of austerity measures, ensure equal access to professions whose salaries are paid out of the state budget, and strengthen social cohesion and solidarity. However, it was not possible to achieve an earlier adoption of the law so that restrictions could already take place in relation to the salary for January 2022. The amendment carried out by Act No. 18 / 2022 Coll. in 11 months saved 56.7 million CZK on the salaries of politicians (representatives), around CZK 403.7 million on the salaries of judges and around CZK 138.3 million on the salaries of prosecutors. A total of approximately CZK 0.6 billion. However, this is only a sub-measure which cannot be downgraded by reference to the total amount of the State budget deficit.
Expression of the District Court for Prague 5
26. The District Court in its observations and its additions supports the application for annulment of the contested provisions.
27. His argument is already against the way Act No. 18 / 2022 Coll. When describing the preparation and approval of the Government's draft law, the District Court stressed that it had not been discussed in the comments or in the working committees of the Legislative Council of the Government in order to be heard by the Government on 5 January 2022. According to the opinion of the President of the Legislative Council of the Government of 4 January 2022, the Government was informed of the risk of the unconstitutional adoption of the draft law and of its possible content conflict with constitutional order due to interference with the pay base of judges (wages will not be frozen but reduced compared to their amount in January 2022). The intervener also describes the debate in the Chamber of Deputies, which implies that some Members (Radek Vondráček, Helena Vlaková, Zuzana Ožanova and others) drew attention to the fact that the conditions for dealing with a legislative emergency are not met and that it is not a freeze but a reduction in salaries.
28. The Circuit Court questioned the fulfilment of the conditions for the approval of Act No. 18 / 2022 Coll. in a state of legislative emergency and referred in this regard to the case law of the Constitutional Court. It shows that these conditions are to be interpreted strictly. In the present case, therefore, this legal institute has been misused. The aim of the bill was to save a total of approximately CZK 600 million (in the case of judges only CZK 403.7 million), which was one promile of the state budget deficit. The state was therefore not threatened with "significant economic damage." Only six days have passed since the bill was distributed to its approval, so that Members could not get to know the material in question properly, and there was no consensus across the parliamentary clubs on the matter of the state of legislative emergency. The Circuit Court also states that the Government has not discussed the draft law with the judiciary, despite the case law of the Constitutional Court, which requires this procedure in these cases. The explanatory memorandum was also inadequate as it did not contain a real economic analysis of the case contrary to the finding of sp. zn. Where reference has been made to the consequences of the measures taken to mitigate the effects of the COVID-19 epidemic, the annual report of the Supreme Audit Office of 4.4.2022 indicates that almost 90% of the annual increase in State expenditure was not related to these measures.
29. If the content of the contested provisions is concerned, according to the Circular Court, salary restrictions against judges may jeopardise their independence. In the present case, the judicial salaries were not frozen but reduced. The original level of the salary base effective for the year 2022 represented CZK 106 986 and the contested legislation reduced it to CZK 100 872, i.e. by 6%. A similar attempt in 2010 was found by the Constitutional Court by finding sp. zn. Pl. ÚS 12 / 10 unconstitutional. In the legislative procedure, the intervener sees the arbitrage and breach of the principle of proportionality as the intervention in the material security of judges was not justified by exceptional circumstances. The pay ratios of judges are intended to be stable. It is not to be a variable factor based on the interest of the current government majority. In the present case, the income restriction concerned only judges, and not other "servants of the state," whose salaries were merely frozen or even increased. The District Court also recalls that in this way the salary of judges was reduced to the level of 2020, as the last increase took place on 1.1. 2020. The current salary was derived from the average wage in the non-business sector in 2018, so for 2022, the judicial salary base was set from that date and was delayed for four years.
30. The Circuit Court also stressed that the construction of the judicial pay base as three times the average wage in the non-business sector, which was in force until the end of 2020, was considered by the Constitutional Court to be constitutionally conformal in the past. The current structure, which derives from the judicial salary base from three times the average gross nominal wage in the national economy, represents a "pay machine 'and includes the systemic solidarity of judges with the state economy. Therefore, if the average wage falls, the salary of judges will fall one year apart and the judges cannot object to that. Thus, the salary of judges and the wages of other employees are" joined vessels, "and any interference in this systemic solution completely degrades its meaning: it is a clean policy. Therefore, the Circuit Court does not question the change in the new basis of pay from the nominal wage in the national economy, although this change represents a nominal reduction in the salary of judges (the average salary in the national economy was CZK 36 176 in 2020, whereas in the state-regulated sphere, CZK 39 747), because it considers this change to be rational and constitutionally acceptable. In addition, the intervener shall provide evidence of the specific data from which the remuneration (in particular) of certain Deputy Directors in the Central Authorities of the State, which amounted to hundreds of thousands in 2021.
31. The District Court concludes that the contested legislation interferes with the principle of the independence of judges and seriously distorts the reconciliation between executive and judicial powers achieved in 2015 and should therefore be abolished as an unconstitutional one.
Statement of the District Court in Mladá Bloslav
32. The District Court in Mladá Byslav referred to the argument on which the application for annulment of the contested provisions was based. As these are similar claims to those made by the appellant and the District Court, they do not need to be further distributed.
Observations of the Judicial Union
33. The Constitutional Court received observations (so-called amicus curiae brief) from the Judicial Union of the Czech Republic, p., which supported the position of the applicant (and the Circuit Court). It agreed that the contested provisions were contrary to the Constitution on two separate grounds. The first of these constitute defects in the legislative process when adopting Act No. 18 / 2022 Coll., the second contradiction lies in the intervention into judicial independence in its part concerning the material security of judges, which is contrary to Article 1 (1) in conjunction with Article 82 (1) of the Constitution.
34. The Judicial Union, in agreement with the appellant, has identified as defects in the legislative process the failure to comply with the conditions for the approval of the law in a state of legislative emergency, the failure to discuss the draft law with the power of the court and the content of the explanatory note to the government's draft law which, in its view, does not meet constitutional requirements. On the material mismatch of Act No. 18 / 2022 Coll. with the Constitution, she stated that the judicial salaries had not been frozen but reduced and that the first attempt to reduce the salary of judges was made by Act No. 418 / 2009 Coll., amending Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the duties of representatives of the State Government and of certain state authorities and judges and Members of the European Parliament, as amended, and Act No. 201 / 1997 Coll., on the salary and certain other requirements of the state prosecutors, and on the amendment and amendment of Act No. 143 / 1992 Coll., on the salary and remuneration for the duty of budgetary and in certain other organisations and bodies, as amended by the Act, which the Constitutional Court of the Constitutional Court found against the Constitution. Compared to the current reduction in the salary of judges, it is clear, according to the Judicial Union, that, while the salary reduction was 4% in 2010, it is now an even more rapid salary reduction, by 6%. Law No 18 / 2022 Coll. is an expression of the legislature's insolence, violates the principle of proportionality, is not justified by exceptional circumstances and removes the level of pay already achieved by the judges. The Judicial Union also draws attention to the general increase in public sector pay rates, which took place on the basis of Government Decree No 264 / 2022 Coll., amending Government Decree No 341 / 2017 Coll., on the pay ratios of public service and administration employees, as amended, and Government Decree No 304 / 2014 Coll., on civil servants' pay ratios, as amended, from 1.9.2022. In order to support the argument of the impartiality of Act No. 18 / 2022 Coll., against the judges, it states the amount of remuneration paid in ministries and the Government Office in 2022.
35. Furthermore, the Judicial Union described the development of the method of determining the pay base of judges since the effectiveness of Act No. 236 / 1995 Coll., the systemic solidarity of the construction of the pay base of judges vis-à-vis other employees (the pay machine) and the change of the structure of the pay base of judges since 2021 (i.e. the transition from the average wage in the non-business sphere to the average wage in the national economy) and its acceptance by the judge. It also stated the amount of State budget savings resulting from salary restrictions on the salaries of judges between 2002 and 2014 and the conclusion in 2021 that judges were involved in the State budget savings in the past as no other professional group, in the billions of orders. From the various restrictions on the pay base of judges, the Judicial Union has indicated that the power of executive and legislature continued to dismantle and dismantle the system of remuneration of judges with the obvious aim of "eliminating the error made in the past," leading to the level of the salary of judges not consistent with the views of politicians. In its observations, the Judicial Union referred to the conclusions drawn from the case-law of the Constitutional Court, in particular in relation to the independence of judges and their material security. Arguments on the inconstitutionality of Act No. 18 / 2022 Coll. In the broader context, the Judicial Union also relied on the existence of agreements concluded by the judges in 2015 with the State (for which the Government acted), the renunciation of most of its salary entitlements for the years 2011 to 2014. The adoption of the contested law seriously disrupted the settlement that arose between the judges and the State in 2015. At that time, the officials of the judiciary believed the government's promise that in the future, there would be no interference in the pay of judges. According to the Judicial Union, it is evident that the situation of 2011 to 2014 (pay restrictions on the salaries of judges) is now recurring, only with the difference that this time the salary of judges has been reduced directly, and that the State is acting unconstitutionally, despite its earlier promise, no longer interfere with the salary of judges.
Abandonment of oral proceedings
36. The Constitutional Court has concluded that further clarification of the case cannot be expected from oral proceedings and that no evidence is needed or required. Therefore, pursuant to Article 44 of the Law on the Constitutional Court, as amended, it decided on a case without a regulation of oral proceedings.
Amendment of the Judge-Rapporteur
37. The Judge-Rapporteur was originally designated by Jiří Zemánek in accordance with the schedule of work. The draft decision drawn up by it was not adopted at the sitting on 11 April 2023. The President of the Constitutional Court, Pavel Rychetský, therefore appointed Vladimir Sládek as the Judge-Rapporteur under Article 55 of the Constitutional Court Act. By the passing of 4 June 2023, Vladimir Sládek's office as Constitutional Judge ceased to exist. In accordance with the schedule of work, he became the new judge of the rapporteur Josef Baxter.
Text of the contested provisions
38. Paragraph 4 of Law No. 236 / 1995 Coll. reads:
The amount of the salary base until 31 December 2022
By 31 December 2022, the salary base is CZK 84 060 and CZK 100 872 for judges.
39. Article II of Law No 18 / 2022 Coll. reads:
Transitional provision
Communication from the Ministry of Labour and Social Affairs No 491 / 2021 Coll., on the declaration of the level of the salary base for determining the salary and certain reimbursement of the expenses of officials under Act No. 236 / 1995 Coll., on the salary and other formalities related to the performance of the duties of representatives of the State and of the judges and Members of the European Parliament, as amended, shall not apply from the date of entry into force of this Act.
Proceedings before the Constitutional Court
40. The Constitutional Court first assessed whether the procedural conditions of the proceedings were fulfilled.
41. Pursuant to Article 64 (3) of the Law on the Constitutional Court, as amended, the court is entitled to file a motion for annulment of the law or its individual provisions in the context of its decision-making activities pursuant to Article 95 (2) of the Constitution. According to that provision, the court submits the case to the Constitutional Court if it concludes that the law to be applied in the resolution of the case is contrary to the constitutional order.
42. The Constitutional Court has consistently interpreted this provision in such a way that the court is entitled to propose the annulment of such a law or provision, the application of which is immediate and unavoidable in the present case. The law (its provision) must prevent the constitutional outcome of proceedings. Therefore, it is not sufficient to apply the hypothetical possibility or other broader context of the law (its provision) to a case dealt with by the General Court [Order sp. zn. Pl. ÚS 39 / 2000 of 23.10.2000 and the finding of sp. zn. Pl. ÚS 3 / 06 of 6.3.2007 (N 41 / 44 SbNU 517; 149 / 2007 Coll.), paragraph 26; the finding of sp. zl. ÚS 49 / 10 of 28.1.2014 (N 10 / 72 SbNU 111; 44 / 2014 Sb.), paragraph 17; the finding of 16.5.2018 (N 95 / 89 SbNU 409; 116 / 2018 Coll.), paragraph 32].
43. The District Court shall decide whether the claimant - Judge of the Regional Court - is entitled to a supplement to the salary and flat-rate reimbursement of expenses for February 2022. The amount of the judicial salary and compensation depends on the salary base determined by the contested § 4 of Act No. 236 / 1995 Coll. in the part concerning judges, i.e. in the words "and for judges 100 872 CZK '. Accordingly, the application of this provision is immediate and unavoidable and prevents the result which the district court considers to be constitutionally conformal.
44. The contested Article II of Act No. 18 / 2022 Coll. provides, inter alia, that from the effective date of the Act, the Communication of the Ministry of Labour and Social Affairs No 493 / 2021 Coll., which declared the original level of the salary base for judges in 2022, does not apply. The application of this part of the provision is also immediate and unavoidable and prevents the district court from leaving the original pay base for judges.
45. The remainder of Section 4 of Act No. 236 / 1995 Coll. and Article II of Act No. 18 / 2022 Coll. regulates salary bases for representatives other than judges. However, the proceedings before the District Court concern the salary of a judge and not of other representatives, so that the District Court does not apply those parts of the contested provisions at all. The mere factual link between these parts of the provisions is not enough to establish active legitimacy.
46. The District Court is therefore actively authorised to file an application for annulment of Article 4 of Act No. 236 / 1995 Coll. in words "and for judges 100 872 CZK" and Article II of Act No. 18 / 2022 Coll. in words "and the Communication of the Ministry of Labour and Social Affairs No. 493 / 2021 Coll., on the declaration of the level of the salary base for determining the salary and certain reimbursement of the expenses of judges under Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the office of representatives of state power and of certain state authorities and judges and Members of the European Parliament, as amended,". In the rest, the proposal of the District Court must be rejected under Paragraph 43 (1) (c) of the Law on the Constitutional Court, as amended by Act No. 77 / 1998 Coll., as a proposal made by someone manifestly unauthorized.
47. The examination of the relevant part of Article II of Law No 18 / 2022 Coll. does not preclude the provision of amending legislation. The Constitutional Court's caselaw assumes that the amendment does not have a separate legislative existence and its provisions become part of the amended regulation. Therefore, the proposal to repeal should normally challenge the amended legislation. However, some of the amendments have a separate legislative existence and do not become part of the amended regulation. Typically, these are transitional provisions of the amendment, which can be directly challenged by a proposal for cancellation [of the sp. zn. This transitional provision is also Article II of Act No. 18 / 2022 Coll.
48. The Constitutional Court concludes that the procedural conditions for the review of Article 4 of Law No. 236 / 1995 Coll. and Article II of Law No. 18 / 2022 Coll. are given in the abovementioned words.
Review of the procedure for the adoption of the contested provisions
49. The Constitutional Court also examined whether the contested legal provisions had been adopted within the limits of the Constitution established competence and in a constitutional manner (§ 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.).
Progress of the legislative process
50. The Government submitted to the Chamber of Deputies on 5. 1. 2022 a draft law which was finally declared under No 18 / 2022 Coll. In the Chamber of Deputies, this government proposal was conducted as Parliament Press 117 (9th Election Period, since 2021).
51. The Government also requested that a state of legislative emergency be declared and that a draft of the law under consideration (House Press 117) and a further draft of the law (House Press 116) should be discussed in the abridged negotiations.
52. The explanatory memorandum to the draft law under consideration foresees that a broad consensus will be reached in the Chamber of Deputies in a brief discussion. In that case, it would have been permissible for a shorter hearing, according to the case law of the Constitutional Court. The explanatory note points out that if there is no timely adoption of the draft law, there is a risk of significant economic damage resulting from the growing debt of the Czech Republic. This has increased particularly in the last two years due to the measures that had to be taken to mitigate the effects of the COVID-19 epidemic. The result of the deficit of the state budget at 30. 11. 2021 was thus 401 billion CZK. In addition, the Czech Republic is in the budget commission. In view of the exceptional increase in prices for goods and services, the state's expenditure situation is a crisis. In addition, measures on the spending side of the state budget must now be taken to help mitigate the negative effects of enormous increases in energy prices on vulnerable populations. Therefore, in this extremely difficult situation, "savings on the spending side of the state budget must be sought to the maximum and widest extent possible, quickly '. The estimated savings in 11 months (February to December 2022) would represent about CZK 56.7 million for representatives of state power, CZK 403.7 million for judges and CZK 138.3 million for prosecutors, i.e. CZK 0.6 billion for total.
53. The explanatory memorandum also stresses that the wage restrictions of the State budget for 2022 are flat. Valorisation of salaries will only take place for persons who have been "first-line" involved in the fight against the COVID-19 epidemic, i.e. members of the security corps, professional soldiers, health professionals and workers in social services. In addition, only the increase in pay rates of teachers in regional education can be considered justified.
54. The Government's draft law did not go through a comment procedure and the position of the judicial authority was not given. The Minister for Legislative Affairs and the Chairman of the Legislative Council of the Government of Michal Solomon, in his Opinion of 4 January 2022, pointed out that the examination of a bill in a state of legislative emergency in a shortfall would "burden the legislative process with a defect which is capable of causing negative consequences in the event of a review of [...] at the Constitutional Court," and that, by intervening in the pay base of judges, the draft law is "in a possible conflict with constitutional order." He cited in detail the case law of the Constitutional Court (Opinion of the President of the Legislative Council of the Government No 6 / 22).
55. The President of the Chamber of Deputies met the Government's request on 5 January 2022. It has declared a state of legislative emergency (Decision No 10 of the President of the Chamber of Deputies) and has decided that the two bills tabled will be discussed in abridged negotiations (Decision No 11 of the President of the Chamber of Deputies).
56. The Chamber of Deputies decided at the sixth meeting of 11 January 2022 that the state of legislative emergency would persist [Paragraph 99 (4) of Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, hereinafter referred to as the Rules of Procedure]. Of the 183 Members present, they voted in favour of 176, against none and abstained 6 (vote 2).
57. The Chamber of Deputies discussed and approved, in the abridged negotiations, the draft law adopted as House Press 116, and then launched the discussion of House Press 117, i.e. the bill under consideration.
58. First of all, a debate was held as to whether the conditions for discussing the draft law were laid down in the abridged negotiations (Section 99 (5) of the Rules of Procedure). Member Radek Vondráček, Helena Vladková and Zuzana Ožanova argued that these conditions were not met, and Radek Vondráček, Helena Vondráček and Tomáš Kohoutek further expressed their belief that the proposed law would irrevocably reduce the salaries of judges and judges against the situation reached in January 2022.
59. Vice-Prime Minister and Minister of Labour and Social Affairs Marian Jurečka stated that the Government had proposed a short hearing because of the impending economic damage. He pointed out the extreme burden on the state budget and the unprecedented increase in state debt and state spending. The government has made a political decision to present the bill on 29 December 2021, which has also been mentioned in the public space. The salary for January 2022 could not be covered by the draft law because such an adjustment could not be accepted in time and would be unduly retroactive. Therefore, the proposed adjustment concerns only the salaries for the period February to December 2022.
60. The Minister for Legislation Michal Solomon stated that the risk of the possible abolition of the proposed regulation by the Constitutional Court was discussed with the Government. As a collective body, the government has decided to present the bill.
61. The Chamber of Deputies then decided that the conditions for discussing the draft law are laid down in the abridged procedure (Section 99 (5) of the Rules of Procedure). Of the 173 Members present, there were 110 votes against 6, 57 abstentions (vote 31).
62. In view of the discussion of the bill in the abridged negotiations, it was agreed to a second reading. It had a general and detailed debate. Two amendments were tabled, so that the salary freeze would last until the end of 2025 (Mr Jan Hrnčíř) or until the end of 2026 (Ms Alena Schiller). All entries were made and speaking time was not shortened. Immediately after the second reading, there was a third reading in which no one came forward. Both amendments were rejected. The Chamber of Deputies subsequently gave its assent to the government bill. Of the 178 Members present, 173 voted in favour, no one abstained (vote No 37).
63. The Chamber of Deputies of 12. 1. 2022 passed the Senate Bill.
64. The Senate at the 19th meeting of 20. 1. 2022 expressed the will not to deal with the bill. Of the 62 senators and senators present, 45 voted against, 3 abstained (vote 15).
65. The law adopted was signed by the relevant constitutional authorities, on 28.1.2022 it was declared under No 18 / 2022 Coll. The Commission shall be assisted by a committee. Done at 1.2.2022.
Shortening of negotiations in a state of legislative emergency
66. The appellant and the District Court argue that the conditions for a brief discussion of the bill in a state of legislative emergency have not been met. On the contrary, the Government states that, in view of the exceptional circumstances, the legal conditions for a short discussion have been met and that there was a broad consensus on this type of discussion.
General considerations
67. The Constitutional Court has dealt many times with the negotiation of laws in a state of legislative emergency in a shortfall. He summarised his case-law in sp. zn. In the present case, it follows this caselaw and further specifies it.
68. On a proposal from the Government, the President of the Chamber of Deputies declares a legislative emergency "[of] and exceptional circumstances in which fundamental rights and freedoms of citizens or the security of the State are significantly threatened or there is a threat of significant economic damage to the State '(§ 99 (1) of the Rules of Procedure). In this situation, the President of the Chamber of Deputies, acting on a proposal from the Government, is also entitled to decide that a government bill will be dealt with in an abridged manner (Section 99 (2) of the Rules of Procedure).
69. However, the Chamber of Deputies ultimately decides whether the state of legislative emergency is actually being given and whether the conditions for a short discussion of the government bill are being met. Before discussing the draft agenda, the Chamber of Deputies assesses whether the state of the legislative emergency is still in place (Section 99 (4) of the Rules of Procedure), and before discussing the government bill, it assesses whether the conditions for abridged negotiations are met (Section 99 (5) of the Rules of Procedure).
70. The shortened negotiations on the government bill really shortens the course of the legislative process in the Chamber of Deputies. This is mainly because the first reading of the draft law does not take place at all (Section 99 (6) of the Rules of Procedure); the second reading may be waived from the general debate and treated directly to a detailed debate, while speaking time may be limited to up to five minutes; and third reading may be followed immediately after second reading (Section 99 (7) of the Rules of Procedure). Nor are certain time and procedural restrictions applicable (see section 99 (7) of the last sentence and paragraphs 8 and 9 of the Rules of Procedure).
71. The short discussion of the government bill therefore differs significantly from the normal course of the legislative process in the Chamber of Deputies. It may, on the one hand, reduce the parliamentary debate and the rights of the parliamentary minority (opposition Members) and, on the other, reduce the time-frame in which public debate and opinion is held on the draft law. As the abbreviated discussion restricts the important constitutional principles affecting the legislative process, the conditions for this procedure are interpreted strictly.
72. It follows from the present case-law that the draft law can be negotiated in a state of legislative emergency in two short-term situations: either in the case of (A) compliance with the legal conditions or in the case of (B) broad consensus on this procedure. It is an alternative requirement, so that if one of them is met [finding sp. zn.
73. With regard to (A) the legal terms for the short-stay discussion, there are three in total. (1) Exceptional circumstances have to occur, which either (2a) puts the fundamental rights and freedoms of individuals at major risk, or (2b) the security of the State is at fundamental risk, or (2c) the State is at risk of significant economic damage and, at the same time, (3) the urgent need to adopt the law (§ 99 (1) of the Rules of Procedure and the finding sp.
74. The assessment of whether these conditions have been met is based on the situation existing at the time when the state of legislative emergency was declared and the short-lived negotiations on the draft law took place. The relevant factors are the circumstances and information at the time available and not the later developments [finding sp. zn. Therefore, the conclusion on the fulfilment of the conditions for the shortened discussion must be based on a reasonable basis and be supported by specific facts already in existence at the time of the announcement of the emergency situation and of the shortened discussion (Case 55 / 10, paragraph 84, paragraph 74).
75. O (1) The exceptional circumstances are in the case of an event which is out of the ordinary and which was therefore unexpected and difficult to predict. Examples of such situations are natural disasters such as earthquakes, floods, storms, droughts or epidemics, as well as particularly serious accidents or "shock" disruptions to the state's economic or financial situation. This is not a shock distortion in the case of upward or downward movements within the economic cycle, nor in the case of a long-term foreseeable crisis (finding sp. zn.
76. As a result of exceptional circumstances (2a) the fundamental rights and freedoms of individuals must be significantly threatened, or (2b) the security of the State must be significantly threatened, or (2c) the State must be threatened with significant economic damage. Not every exceptional circumstance is linked to the risk of such serious impacts and therefore both conditions need to be met cumulatively. The threat must be sufficiently intense to be able to talk about a "substantial" or "significant" threat, and must be real and immediate, not just hypothetical (the finding sp. zn.
77. If there is a threat of significant economic damage (2c), the concept of "economic damage" cannot be narrowed down to "damage" in the civil sense and must be understood in the context of "wider political contexts" (Ref. The economic damage can thus also be seen as a major deterioration in the state's public finances, which the State is not able to deal with by normal means, without jeopardising the performance of other socially important tasks (Pol.
78. The last condition is (3) the urgent need to adopt the law. This condition is implicitly contained in the legislation and must be fulfilled together with the two previous ones. The urgent need to adopt a law is given if, for reasons of time distress, it was not possible to adopt a draft law in the ordinary legislative process and to avoid the imminent negative consequences (finding sp. zn. Pl. ÚS 30 / 23, paragraph 88; cf. Similarly, finding sp. zn. Pl. 55 / 10, paragraph 85, and finding sp. zn. Pl. ÚS 53 / 10, paragraph 115, according to which the reasons for a brief discussion "must outweigh the interest in the proper course of legislative procedures', or the finding of sp.
79. What is important is not only the time left for the adoption of the government bill since it was presented to the Chamber of Deputies. It shall also be examined what period of time has elapsed since the occurrence and detection of the exceptional circumstances and the imminent negative consequences until the submission of the government bill. The government's questioning of the draft law calls into question the exceptional, serious and intense nature of the threat. It would be unacceptable for a government to deliberately wait to submit a draft law to create a state of legislative emergency and to allow for a brief discussion of the proposal. Such a procedure would bear the signs of abuse of law and insolence (Case 30 / 23, paragraph 89).
80. Even if the legal conditions for a shorter discussion are not fulfilled, the government's bill can still be discussed in this way, if there is a broad consensus on that.
81. A broad consensus means "acclamation, or at least a majority that is comparable to the majority required for the adoption of the Constitutional Law" (see already the finding of the Pl. ÚS 55 / 10, paragraph 80). A qualified (constitutional) majority is therefore the minimum that can only be considered to fulfil the terms of a broad consensus. The Constitutional Court states and stresses that achieving a qualified majority does not in itself mean fulfilling this condition. Therefore, it is not true that a qualified majority of 120 Members can always proceed to a brief discussion of the government bill and limit the rights of a minority of Members and that the Constitutional Court will without further ado and discuss such a procedure. A broad consensus can be talked about in situations where none of the Members or, at the most, individuals oppose a brief discussion of the bill.
82. Furthermore, the Constitutional Court states that a broad consensus must relate to the discussion of the relevant government proposal in a brief hearing. A broad consensus replaces compliance with all legal conditions. It is not decisive which majority of Members voted in favour of the conclusion that the state of the legislative emergency continues (Section 99 (4) of the Rules of Procedure). This vote is yet to open up the possibility of discussing some government bills in abridged negotiations. The key is how a large proportion of Members will then say in favour of the conclusion that the conditions for the shortened negotiation of a specific government bill are met (Section 99 (5) of the Rules of Procedure). In other words, the agreement on the state of legislative emergency is not enough; a broad consensus is needed on the shortened discussion of the relevant bill.
83. The opposite interpretation would open the way for abuse of a state of legislative emergency. If there are objectively grounds for declaring a state of legislative emergency, it can be expected that the absolute majority of Members will support the conclusion in the initial vote that the state of legislative emergency continues. The state of legislative emergency as such will therefore be based on a broad consensus in the Chamber of Deputies. However, if the Constitutional Court considered this very first vote to be crucial, the government could subsequently abuse the situation and bring forward, for a brief discussion, laws which have nothing to do with resolving the emergency situation for which the state of legislative emergency was declared. A simple majority of votes in the Chamber of Deputies would then be sufficient to discuss and adopt the bill briefly, which is usually not difficult for governments. The state of legislative emergency would therefore be transformed into a blank check, allowing the government and the simple majority of Members to briefly discuss any bill and restrict parliamentary debate as they please.
84. Nor can it be decisive which majority of Members will vote in favour of the draft law after a brief discussion. In fact, it can shorten the legislative process in the Chamber of Deputies in such a way that Members who oppose the adoption of the draft law do not in fact get the opportunity to give their opinion and convince others, and that even the public will not have the space to submit a motion of criticism and thus indirectly influence their representatives in the Chamber of Deputies. Therefore, a short discussion of the law may be one of the reasons why the draft law will receive considerable support in the final vote in the Chamber of Deputies. The outcome of this vote cannot therefore, in itself, serve as a retroactive justification for the shortfall. As a large majority of the bill in the Chamber of Deputies has been obtained, one of the relevant circumstances is when assessing whether a brief discussion has restricted the debate in the Chamber of Deputies and the public debate in a disproportionate way. This assessment is already taking into account the overall course of the discussion of the draft law, namely whether Members and the public had the opportunity to submit to its draft criticism (see below).
85. The Constitutional Court summarises that a government bill can be negotiated in a short-lived negotiation, even if the legal conditions for this are not met, if a broad consensus is reached in this way. Compliance with this condition shall be assessed on the basis of the outcome of the vote as to whether the conditions for consideration of the draft law are met in the abridged procedure provided for in Rule 99 (5) of the Rules of Procedure.
86. If neither (A) legal conditions nor (B) broad consensus are given for the abbreviated negotiations, and if, in spite of this, the Chamber of Deputies considers a draft law in the abbreviated negotiations, it will burden the legislative process with a defect. However, this defect may not in all cases achieve an unconstitutional intensity and establish the unconstitutional nature of the adopted law.
87. The defect in the legislative process is the reason for the repeal of the law only if it led to a breach of constitutional rule or principle. In fact, the Constitutional Court is not a protector of "mere" legality of parliamentary procedure or of a "appeal instance," the task of which would only be to examine the reason for the declaration of a state of legislative emergency [finding sp. zn.
88. A short discussion of the bill in a state of legislative emergency may result in violations of constitutional rules and principles, in particular in two respects.
89. Firstly, there may be disproportionate restrictions on parliamentary debate.
90. The legislative process must allow for an "open discussion between competitors, including minority views" [see already the finding of the sp. zn. This requirement reflects the fundamental principles of parliamentary decision-making - the principle of pluralism based on the principle of free competition between political parties and political forces (Article 5 of the Constitution and Article 22 of the Charter), the principle of majority decision-making and the principle of the protection of minorities (Article 6 of the Constitution and on the finding of sp. zn.
91. Therefore, individual Members must have a real opportunity to get to know the content of the bill, to examine it and to give an opinion on it before voting on it. For this purpose, it must have sufficient time (sp. zn. Pl. ÚS 53 / 10, paragraph 108).
92. The aim and purpose is to enable the confrontation of views across the political spectrum. The right of Members to present their views on the draft law cannot therefore be understood as self-serving and interpreted as guaranteeing an unlimited opportunity for each Member to express themselves (point 73 of the PSC. Only rational political discourse is protected at constitutional level. While obstructive acts and other procedures may be permitted by the Rules of Procedure and may be legal instruments in this respect, they do not enjoy constitutional protection (point 127 of the Rules of Procedure).
93. Only Members whose procedural permissions have been shortened may oppose a disproportionate limitation of the debate in the Chamber of Deputies (point 104). In the past, therefore, the Constitutional Court has explained, for example, that, if the Members concerned themselves did not contact him, his role is not to provide them with protection on the basis of a proposal from a group of senators [finding sp. zn.
94. In addition, the Group of Members has limited time to assert that their procedural rights have been violated in the short term. The motion must be tabled with this objection without undue delay after the publication of the law. It must therefore not be a longer time distance moving in the order of several months or even years. The Members concerned cannot keep this objection 'in advance' until they consider the bill to be most advantageous. If the Constitutional Court does not raise that objection in due time, this should be considered as an implicit statement of consent to the limitation of their procedural authorisations and the late application of the objection cannot therefore be found to be justified [finding sp. zn.
95. Secondly, a short discussion of the draft law may unduly restrict public debate.
96. The Constitutional Court's caselaw underlines that the legislative process must be open to scrutiny and criticism by the public. Therefore, the draft law needs to be known for a certain period of time and can be discussed in public. In addition to the opposition, it is up to the professional and lay public to make use of time space and to draw attention to any shortcomings in the draft law and the risks associated with its adoption. The adoption of the laws should not take place "cabinet ', except in public control (finding sp. zn.
97. It remains to be added that the above-mentioned rules are not a binding algorithm that would firmly establish the order of action to be followed in the review. While it may sometimes be appropriate to comment first on the fulfilment of the conditions of legislative emergency and on the short-term discussion of the draft law, in other cases it may be appropriate to proceed directly to the assessment of whether constitutional rules or principles have been infringed by the abbreviated examination of the draft law. If the constitutional rules and principles of the legislative process have not been infringed, neither is the faulty declaration of a state of legislative emergency and the abridged conduct grounds for the repeal of the law.
Assessment of the case
98. In the case under consideration, the Government argues that both the legal terms and conditions of the short-lived discussion of the draft law and the broad consensus on this method have been given.
99. The Constitutional Court notes that (A) the legal conditions for the abbreviation of the draft law have not been fulfilled. In fact, three sub-cumulative conditions were not imposed at the same time.
100. O (1) Exceptional circumstances are only in the event of an unexpected and difficult to predict event. The salary base for the judicial salaries is determined according to the figures "for the previous year" (Section 3 (3) of Act No. 236 / 1995 Coll.), so what will be the amount of this base for 2022 was detectable and known for a number of months in advance, i.e. with a great deal of time.
101. Even the state of public finances argued by the government cannot be considered unexpected. Indeed, it is clear directly from the explanatory memorandum that the increase in debt has been taking place continuously over recent years due to the measures that had to be taken to mitigate the effects of the COVID-19 epidemic. Neither the state of public finances nor the continuation of the debt in the case of the budget commission, i.e. as a difficult to predict event, can be seen.
102. Such an event could be considered, hypothetically, only in the explanatory memorandum, the exceptional increase in the prices of goods and services associated with energy growth and the need to spend additional costs on dealing with these crises. But the government would have to prove that it was a shock to the economic situation, not a result of rising or descending movements within the economic cycle or a long-term foreseeable crisis.
103. The same applies, mutatis mutandis, to the condition that (2c) the State faces significant economic damage that the government considers to be met. A mere budget commission and the associated continuation of the state budget spending rate, as set out in the previous year, but cannot be described as a threat of significant economic damage. On the contrary, the Constitutional Court concluded that the "threat 'of the budget provision was not a reason for the use of the Institute of Legislative Emergency and the abbreviation of the draft law.
104. Nor is the partial requirement to be "significant 'damage met. According to the explanatory memorandum, the bill was to bring savings of CZK 0.6 billion, of which CZK 0.4 billion as a result of the restriction of judicial salaries. The fact that the State itself would have to spend between CZK 0.4 and CZK 0.6 billion on failure to accept the bill does not mean that it was threatened with significant economic damage. Without the Constitutional Court's intention to downplay this amount, in the context of the total expenditure of the state budget (and the deficit of €401 billion), it is indeed a lower amount. While it would be possible to consider whether the draft law would bring about any relevant savings in conjunction with other laws and measures, the Government did not specify this argument. On the contrary, the Constitutional Court found that 2022 was not the period of" maximum savings to the widest extent, "as the explanatory memorandum states (see paragraphs 208-209 and 212-213 below).
105. Above all, however, (3) the urgent need to adopt the law has not been given. As has already been explained, the level of the judicial salary base for 2022 was known in good time and in good time the key figures concerning the state budget at the beginning of 2022 were also predictable. The government therefore had sufficient scope to submit a draft law on restrictions on judicial salaries earlier and to allow it to be discussed in the standard legislative process. This is particularly clear from the fact that the pay restrictions for the previous year 2021 were introduced by law adopted in the standard legislative process (cf. Act No. 587 / 2020 Coll., amending Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the function of representatives of state power and of certain state bodies and judges and Members of the European Parliament, as amended). Therefore, the pay restrictions for 2021 could be discussed in the standard legislative process, although already at the time they were discussed, the State had to deal with the effects of the COVID-19 epidemic and the budgetary consequences of the measures taken to mitigate this crisis. The Constitutional Court therefore finds no reason why the standard legislative process was not sufficient in the case of restrictions for 2022.
106. Finally, the urgent need to adopt the law cannot be taken from the fact that, after the elections to the Chamber of Deputies in October 2021, the new government was appointed only in December 2021. Each government bears a separate political responsibility for the actions it has taken or has not taken. From a constitutional point of view, however, the government operates continuously. Where the Government has given its resignation or is withdrawn, it shall, under the authority of the President of the Republic, perform its duties provisionally pending the appointment of a new Government [Article 62 (d) of the Constitution]. The Constitution is therefore based on the concept of "permanent activity of the executive authority '[finding sp. zn. Pl. ÚS 6 / 07 of 9.2.2010 (N 20 / 56 SbNU 207; 66 / 2010 Coll.), paragraph 49]. Therefore, the failure of one government alone cannot" excuse "the government following it and justify it in the legislative process to use extraordinary funds, such as the shortened discussion of the draft law.
107. The exchange of governments can certainly be accompanied by a complete staff rotation of its members. However, the government and its members have a large professional apparatus which is largely stable and which is intended to enable the new government to build on the work of the previous government as smoothly as possible, which is, moreover, ensured by the legal regulation of the state service. This is particularly necessary in relation to those areas of operation of the State which must show long-term stability. The regulation of the material security of judicial power - as the most permanent personnel of state power - must show such long-term stability. The change in the personnel composition of the political representation and the related change in its political opinion cannot therefore in itself justify the accelerated enforcement of discount changes in legislation. Indeed, the preparation of all the state budget parameters, including the planning of regular mandatorial spending (such as the salaries of constitutional officials without a doubt), is essentially a continuous activity that is not "waiting" for the results of parliamentary elections and the establishment of a new government.
108. For these reasons, therefore, there was no urgent need to adopt the law. Since it is one of the conditions which must be fulfilled cumulatively, it is clear that neither (A) the legal conditions for a shorter hearing have been fulfilled.
109. Moreover, the Constitutional Court notes that even the government (B) of a broad consensus was not given on the abridged discussion of the draft law.
110. The Chamber of Deputies confirmed the existence of a state of legislative emergency by the vote of 176 Members (no one opposed and the other 6 abstained). However, the outcome of this vote only expresses agreement that there is a state of legislative emergency and that some bills may be discussed briefly.
111. In the subsequent vote on whether the conditions for the shortened discussion of the law under consideration are met, only 110 Members voted for this conclusion (against 6 and 57 abstentions). This result reflects the course of the previous debate, in which several Members argued that the terms of the shortened discussion were not met. It is precisely the result of the vote on whether the conditions for shortened discussion of the draft law (Section 99 (5) of the Rules of Procedure) are given. As the Constitutional Court has already stated, this vote requires a minimally qualified (constitutional) majority of 120 votes in order to consider the existence of a broad consensus at all. In the case under consideration, the lower limit was not reached either, as only 110 Members supported the shortened discussion. Thus, there was no broad consensus on the abbreviated discussion and this condition was not met either. The majority of Members who ultimately supported the adoption of the draft law is only taken into account when assessing the impact of the shortened debate on the parliamentary debate (see below).
112. The Chamber of Deputies therefore debated the bill in the abbreviated act in a state of legislative emergency, even though neither the legal conditions nor the way in which it was discussed were met, there was a broad consensus. This burdened the legislative process with a defect.
113. However, not every procedural defect is of constitutional intensity and justifies the repeal of the contested law. The Constitutional Court also addressed whether there was a disproportionate restriction on parliamentary debate or public debate on the draft law.
114. The Constitutional Court notes that the shortened discussion did not lead to any significant restriction of the debate in the Chamber of Deputies. Members had only a few days to study the draft law (the proposal was submitted on 5 January 2022 and was already voted on on 11 January 2022), but the substance of the proposal was not difficult: it was an understandable amendment leading to the return of the constitutional base from February to December 2022. In addition, there has been a debate in the Chamber of Deputies on whether the draft law can be discussed briefly and whether the restriction of judicial pay is constitutional. At the same time, the debate was closed only when no one applied for it, so all those who wanted to present their position on the bill had this possibility. Above all, however, 173 Members voted in favour of the bill, no one was against it and only 5 abstained. Since, in fact, all Members who were interested were able to speak on the draft law in the debate, and because, in the end, no one voted against the draft law, it is clear that there has been no undue restriction on parliamentary debate.
115. Moreover, the Constitutional Court recalls that only those Members who would be shortened on their procedural rights could invoke them in the Constitutional Court and seek the annulment of the adopted law on this basis. The General Court's proposal could therefore not lead to the annulment of the law for that reason.
116. The Constitutional Court also notes that even the public debate was not restricted in a very substantial way. It is true that the overall length of the legislative process was very short. However, it should be taken into account that the risks associated with the adoption of the law have already been brought to the attention of the public in the opinion of the Chairman of the Legislative Council of the Government, pointing to both the possible unconstitutionality of the short discussion of the draft law and the possible unconstitutionality of the restriction of judicial salaries. Moreover, the professional legal public - from which it can be expected to comment on the draft law under consideration - may be subject to increased claims in relation to draft laws which concern them well-known issues. Thus, while the public debate was limited to a certain extent by the short time frame of discussion, it was not yet an unacceptable restriction.
117. The Constitutional Court concludes that, although the conditions for the shortened examination of the draft law under consideration have not been met, this procedural defect has not reached such an intensity in view of the circumstances as to establish the unconstitutional nature of the adopted law.
118. Finally, the Constitutional Court considers it appropriate to make a comparison of the case under assessment with that dealt with in sp. zn. In the indexation of pensions, the Constitutional Court concluded that the legal conditions for declaring a state of legislative emergency had been fulfilled. This conclusion could not be drawn in the present case.
119. The salary base of the judges' salaries depends on the data "for the preceding calendar year." The amount for 2022 was precisely established and publicly known several months before the beginning of that year. Therefore, the level of the salary base for 2022 cannot be regarded in any way as an exceptional, unpredictable circumstance. On the other hand, in the indexation of pensions, the Constitutional Court concluded that only on the basis of the inflation figures in January 2023, which were found at the beginning of February 2023, it was clear that the legal conditions for extraordinary indexation in June 2023 were met and that the level of such extraordinary indexation was precisely determined, as they depend on the inflation observed (in this case the increase in the index of living costs of pensioners). According to the dissenting judges in the indexation of pensions, the government had and could have foreseen exceptional indexation and its amount before February 2023. However, even in the light of this view, it can be concluded that the level of the judicial fees in 2022 was precisely known in advance of the amount of extraordinary indexation only predicted or estimated. Thus, the increase in the pay base of the judges' salaries in 2022 cannot be regarded as an exceptional circumstance and the existence of any other relevant exceptional circumstances has not been sufficiently demonstrated by the government or Parliament.
120. Since the level of the pay base of the judges' salaries in 2022 was well known in advance of a number of months, even the condition of the urgent need to adopt a law that will change that salary base could not be met in a brief act in a state of legislative emergency. The government and Parliament had many months' space to achieve legislative changes in the proper legislative process. Moreover, the adjustment of the judicial salaries for 2021 was adopted in this proper manner (cf. sp. zn.
121. According to the conclusions of the Constitutional Court, the conditions for a short discussion of the draft law in a state of legislative emergency were laid down in the indexation of pensions, so that the legislative process did not show any defect in this respect. On the other hand, these conditions were not met in the present case, so the legislative process was burdened with a defect. However, despite this partial distinction, the outcome of the procedural review on both matters is the same. In the present case, the defect did not reach constitutional intensity, so that, in the case under examination, as in the indexation of pensions, the shortened examination of the draft law in a state of legislative emergency could not lead to its annulment.
Dissolution of a motion with the power of the court
122. Both the appellant and the district court further contend that the government bill was not discussed in advance with the power of the court, even though it concerns restrictions on judicial salaries. In their view, such a procedure is contrary to the case law of the Constitutional Court.
General considerations
123. The case-law has repeatedly stressed that the judicial authority should be given the opportunity to comment on the draft law on restrictions on judicial salaries. In the present case, the Constitutional Court specifies this requirement as well as the consequences of its infringement.
124. The Constitutional Court has already stated in its finding in sp. zn. In the findings sp. zn. Pl. ÚS 16 / 11 of 2.8.2011 (N 135 / 62 SbNU 99; 267 / 2011 Coll.) and sp. zn. Pl. ÚS 33 / 11 of 3.5.2012 (N 95 / 65 SbNU 259; 181 / 2012 Coll.), he identified the non-compliance with this requirement as a "breach of the rules of democratic political culture" and pointed out that in the future such infringement "in cumulation with other circumstances, which are contrary to the principles of constitutional order," could lead to a derogation intervention. The findings were followed by the finding of sp. zn.
125. However, failure to comply with the requirement to discuss with the power of the judicial bill, which introduces restrictions on judicial salaries, in itself is never enough reason to repeal the law. This requirement does not anchor constitutional order in the form of an explicit rule. This is a reflection of the principle of division of power and independence of judicial power, which, in itself, does not reach such an intensity as to violate these constitutional principles. The infringement of the requirement to negotiate with the power of the court can therefore only become a derogatory ground in conjunction (cumulation) with other circumstances (concurrently found sp. zn.
126. However, the failure to discuss the bill with the authority of the Constitutional Court cannot and cannot discuss it (the finding in sp. zn. Pl. ÚS 28 / 13, paragraph 53). The Constitutional Court therefore states that non-compliance with the requirement to discuss the bill with the power of the court will be reflected in the content assessment of whether the salary restriction is consistent with the constitutional order. If the draft law has not been discussed with the power of the court at all or if its position has remained unresponsive, it is an aggravating factor suggesting that restrictions are disproportionate. It is not only that the power of the court is to be heard but also that it receives certain answers to the arguments put forward. If, on the contrary, the opinion of the judiciary was responded - that is to say, the comments were fully or partly complied with or were dealt with by arguments which are not circumstantial - it may even be a factor in favour of the conclusion that the restrictions adopted are appropriate. The Constitutional Court notes that the representatives of the judiciary in the past have given their consent to some of the pay restrictions, so that there is no argument that a positive position on the salary restriction can never be obtained when negotiating with the judicial authority.
127. As regards the question with which, by the power of the court, the draft law is to be discussed, the scope of the judicial authorities addressed should be adequately broad and representative and reflect the organisation and functioning of the judicial system. In view of this, the Constitutional Court will consider it sufficient if the draft law is discussed with the Presidents of the Supreme Court, the Supreme Administrative Court, the Supreme Courts and the Regional Courts, and with the interest organisations of the Judges [cf. Article 175 of Act No. 6 / 2002 Coll., on Courts, Judges, Addresses and Government Administration of the Courts, and on the amendment of certain other laws (the Law on Courts and Judges)], whose internal rules of organisation are to which they entrust their opinion.
128. The salary restrictions on judicial salaries are decided by Parliament, which must adopt them by law. In order to comply with the requirement to negotiate with the judiciary, Members must already be able to familiarise themselves with the position of the judiciary and with how it has been dealt with. It must, of course, be given this option before they decide on the bill, ideally at the time of the bill being submitted to the Chamber of Deputies. While it is appropriate that the position of the judicial authority and its settlement should be part of the explanatory memorandum (finding sp. zn.
129. It is the role of legislative power, in cooperation with executive power, to organise the process of adopting and drafting laws in such a way as to enable the draft law to be discussed with judicial power.
130. In the case of a government bill, an established process of reminder proceedings can be used. Moreover, according to the current rules, the substantive intention of the law and subsequently the draft law are also sent to the Supreme Court and Supreme Administrative Court for comments, "if they are related to [...] as organisational elements of the State, or their jurisdiction, or the procedural rules governing them '[Article 5 (1) (e), in conjunction with Article 8 (1) of the Government's legislative rules]. In the event of restrictions on judicial salaries, it would only be necessary to extend the range of points of reference to other representatives of the judiciary.
131. While the government usually proposes restrictions on judicial salaries, it cannot be ruled out that the draft of such a law is submitted by someone else or that the salary restriction will only be proposed in the context of an amendment to the law.
132. It is up to the Chamber of Deputies to find a way of dealing with the power of the court to draft a law submitted by an appellant other than the Government. However, the co-operation of the Government, which has the right to comment on such a bill within 30 days, can be used to do so (Article 44 (1) and (2) of the Constitution and Article 87 (2) of the Rules of Procedure). The government may also use this space of time to ensure that a proposal with judicial power is dealt with.
133. In the case of restrictions proposed only in the amendment of the law - whether during the discussions in the Chamber of Deputies or in the Senate - it is up to the appropriate chamber to ensure that the power of the court is discussed. It remains to be repeated that it is up to Parliament and both of its chambers to allow the procedure laid down by them to deal with the draft law to meet the requirements of constitutional order.
Assessment of the case
134. In the present case, the government bill introducing restrictions on judicial salaries was not discussed at all.
135. This omission does not justify the government's alleged exceptional situation. Already in the finding of sp. zn. Pl. ÚS 12 / 10, paragraph 25, the Constitutional Court stated that the requirement for consideration also concerns "exceptional circumstances such as the difficult financial situation of the State '. In addition, there was no exceptional, unpredictable situation in the present case. As the Constitutional Court has already stated, the level of the judicial fees in 2022 was well known in advance. Thus, the government, to be seen as a continuous body, had sufficient time to ensure that the proposal was dealt with with with the power of the judiciary.
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Regulation Information
| Citation | The Constitutional Court found no 208 / 2024 Coll., sp. zn. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 01.07.2024 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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