The Constitutional Court found No 210 / 2024 Coll.
Findings of the Constitutional Court sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
02.07.2024
210
FIND
The Constitutional Court
of 15 May 2024
sp. zn. Pl. ÚS 4 / 23 on the proposal to declare the inconstitutionality of § 3b (1) 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 effective from 1.1.2021 to 31.1.2022
On behalf of the Republic
On 15 May 2024, the Constitutional Court decided, under point Pl. Pl. ÚS 4 / 23 on 15 May 2024, in plenary composed of the President of the Court of Josef Boxy and judges and judges of Lucie Dolanská Bányai, Josef Fiala, Milan Hulmák, Jaromír Jirsy (Judge of the Tribunal), Veronica Christian, Zdeněk Kühn, Tomáš Licovník, Katřina Ronovska, Jan Svatona, Pavel Šámal, Vojtětěch Šimíček, David Uhír, Jan and Daniela Zemanova, on the proposal by the District Court of the European Parliament for the declaration of Inconstituency of Provisions § 3b (1) (1) of the Czech Parliament of the Czech Republic, on behalf of the Chamber of the Chamber of the Chamber of the Chamber of the European Parliament of the European Union, as a Member of the Court of the Czech Republic, as a Member of the European Court of the European Court of the Czech Republic and of the European Court of the European Court of the European Court of the Czech Republic, of the Czech Republic,
as follows:
Motion denied.
Reasons
Definition of the case
1. The Constitutional Court deals in this finding with restrictions on judicial salaries in 2021. The salary base for 2021 remained at the same level as for 2020, although it was intended to increase in line with the legal mechanism. The Constitutional Court therefore assessed whether the introduction of a temporary salary restriction in the light of specific circumstances, in particular in the light of the pandemic covid-19, does not contradict the constitutional order - the Constitutional Court concluded that exceptionally not.
2. The proceedings in the District Court in Mladá Byslav (hereinafter referred to as the "applicant") are under sp. c. 14 C 44 / 2023, in which the applicant JUDr. Lenka Engel - Judge of the District Court in Mladá Bloslav claims payment of the additional salary and reimbursement of expenses for January 2021 and February 2022. Her salary for January 2021 was determined on the basis of Article 3b (1) 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 bodies and judges and Members of the European Parliament, hereinafter referred to as "Act No. 236 / 1995 Coll.," as amended by Act No. 18 / 2022 Coll., amending Act No. 236 / 1995 Coll., and on the salary and other formalities associated with the function of representatives of state authorities and certain state bodies and judges and Members of the European Parliament, as amended by Act No. 18 / 2005 Coll. The appellant submits that the Judge's claim for payment of her salary in January 2021 and February 2022 will be assessed in accordance with those provisions. The dispute is decided by Judge Mgr. Tomas Křivský.
3. The appellant 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, (hereinafter referred to as the Law on the Constitutional Court) submitted to the Constitutional Court a proposal:
- the repeal of 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.;
- to declare the inconstitutionality of § 3b (1) of Act No. 236 / 1995 Coll., as effective from 1.1.2021 to 31.1.2022;
for their conflict with Article 1 (1) in conjunction with Articles 81 and 82 (1) of the Constitution, Article 1 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter) and Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Additional Protocol to the Convention).
4. Proposal in part for the repeal of 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. The Constitutional Court rejected as inadmissible the litispendence of Article 35 (2) of the Law on the Constitutional Court by means of resolution sp. zn. Pl. ÚS 4 / 23 of 24.4.2024 (the decision of the Constitutional Court is available at https: / / nalus.ujud.cz), since it is already being dealt with in the case under sp. zl. ÚS 15 / 22.
Arguments of the appellant and the courts involved
5. Since 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. The Constitutional Court rejected as inadmissible, in the context of clarity and text austerity, only a part of the appellant's argument concerning the application to declare inconstitutionality of Paragraph 3b (1) of Act No. 236 / 1995 Coll., as effective from 1.1.2021 to 31.1.2022 (hereinafter referred to as "the contested provision '). The Constitutional Court is also following up on other observations and proposals received.
Arguments of the appellant
6. The appellant contends that the legislature again reduced the level of the salary base for judges in contravention of their legitimate expectations, which they acquired after the publication of the decision of the Constitutional Court, Pl. ÚS 16 / 11 of 2.8.2011 (N 135 / 62 of the SbNU 99; 267 / 2011 Coll.), that the legislator will respect the case-law of the Constitutional Court and the Court of Justice no longer freeze without serious reason. The legal expectations for 2021 were reinforced by the fact that pursuant to § 3 (3) of Act No. 236 / 1995 Coll., as amended by 31.12.2020, and pursuant to § 3 of Government Decree No. 102 / 2018 Coll., on the definition of the non-business sphere for the purpose of determining the salary base, the Czech Statistical Office published on 3.9.2020 an indication of the achieved average nominal wage in the non-business area for the purposes of § 3 (3) of Act No. 236 / 1995 Coll., as effective by 31.12.2020, which for the calendar year 2019 amounts to 36 622 CZK. From 3.9.2020 to 31.12.2020, when Act No. 587 / 2020 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 bodies and judges and Members of the European Parliament, as amended, (hereinafter "Act No. 587 / 2020 Coll. '), the salary base for judges for the period from 1.1.2021 to 31.12.2021 was CZK 109 866, which was reduced to CZK 100 872 by the quoted amendment.
7. Repeated interventions by the legislature to reduce judicial salaries, according to the appellant, infringe the principle of protection of acquired rights. In doing so, restrictions on judicial salaries have or may have an impact on the social security of judges, namely on the amount of their old-age pensions.
8. The appellant submits that the amendment to Act No. 587 / 2020 Coll. was amended by Law No. 236 / 1995 Coll. in such a way that, on the one hand, the level of the salary base was determined in general pursuant to § 3 (3) of Act No. 236 / 1995 Coll. and, at the same time, for the time period from 1.1.2021 to 31.12.2021, it was determined differently according to § 3b (1) of Act No. 236 / 1995 Coll. Moreover, the contested provision was adopted on the basis of an amendment without a specific explanatory statement, and no one explicitly spoke to it in general or in detail.
9. The reason why the individual administrative act was superseded by a normative act for 2021 was explicitly unexpressed "public interest" and the intention of a political agreement. Thus, the legislator's procedure was contrary to the case law of the Constitutional Court [the findings of the sp. zn.
10. According to the appellant, in the context of the proportionality test, the alleged public interest in the adoption of the contested legislation does not stand up, since the rights of judges are, as a result, emptied and affected by judicial independence. In the current situation following the disappearance of the disease pandemic covid-19 and during the time of sanctions related to the war in Ukraine and their economic impact, some new facts - compared to the time before 2020 - should be taken into account. At the time of the pandemic, judges were exposed to risks associated with covid-19 disease, in many cases they were infected, to the extent that the administration of justice was partially crippled in some locations.
11. Since 2020, the minimum wage has increased, the rate of non-contractual remuneration of lawyers has been increased in accordance with the Decree of the Ministry of Justice No. 177 / 1996 Coll., on the remuneration of lawyers and the compensation of lawyers for the provision of legal services (the legal tariff), as amended, and inflation rates are increasing significantly. It is a question of the extent to which judges are in an unequal position compared with other professions and whether the restrictions will stand in the terms of the criteria set out in the sp. zn.
12. In addition to other aspects of the issue of judicial fees, the appellant attaches arguments about the intervention in judicial independence and the repeated disregard of both the representation of the judiciary (Judicial Union) and the views of the judicial community as a whole. A judge with personal integrity can be and is destined to be solidarity. Judges are largely silent and without unnecessary pompous long-term solidarity in various ways; in this situation, it is unnecessary for them to be legally entrusted with uniform solidarity in relation to the State budget by means of wage restrictions.
Arguments of the Pilsen District Court
13. As a intervener of the Pilsen District Court, whose proposal to state that § 3b (1) of Act No. 236 / 1995 Coll., as amended from 1.1.2021 to 31.1.2022, was contrary to the constitutional order, the Constitutional Court for the Obstacle of Litispendence refused as inadmissible by resolution sp. zn. Pl. ÚS 40 / 23 of 11.10.2023.
14. In its proposal, the District Court of Pilsen first justifies its active legitimacy, then accuses the explanatory notes and speeches made in the hearing of the contested part of the law of the law of its substance and calls into question the difficult financial situation of the State to which the salary restriction was based. It refers to statistics showing that the ratio of government debt to gross domestic product is rather low in the Czech Republic compared to other European Union countries; Similarly, it argues for a deficit of the State budget. It also refers to inflation growth and the legislator's programme goal of reducing the tax burden and also mentions the abolition of the so-called super gross wage. While, on the one hand, the reduction in the salaries of judges is justified by the assertion that public finances are needed, taxes are also reduced and the salaries of public servants are increased.
15. According to the Pilsen Regional Court, the principle of equality in the area of pay restrictions was violated. Since 2021, the salaries of health professionals, doctors and teachers have increased without justification. The City of Pilsen considers the City of Pilsen to be problematic by increasing its net salary during the same period. In fact, the temporary salary cut in favour of the state budget is an exceptional tax. The argument of the promoters of the Profit Act is false because it contradicts the data published by the Czech Statistical Office.
16. Furthermore, the City of Pilsen Regional Court points to the general trend of pay restrictions for judges. Their impact as austerity measures taken to reduce the government deficit is marginal. Salary restrictions take place without an adequate analysis of how the judicial salary is reflected in the state's economic situation and whether it is a more serious burden on the state budget. Members themselves pointed out that freezing the salary base is symbolic. Solidarity or belonging as a legitimate objective of pay restrictions has not yet been generalized in the case-law of the Constitutional Court, while it is an integral part of the way in which judges pay. The City of Pilsen also contends that the freezing of the pay base for 2021 was not discussed with the representatives of the judiciary.
Arguments of the District Court in Nymburk
17. In addition, the District Court of Nymburc, whose application was rejected as inadmissible by resolution No 236 / 1995 Coll., in its version effective from 1.1.2021 to 31.1.2022, in order to prevent litispendence by means of resolution sp. zl. ÚS 11 / 24 of 24.4.2024, joined the proceedings.
18. The argument of the District Court in Nymburk is almost identical to that of the appellant and therefore the Constitutional Court does not recap it again.
Proceedings before the Constitutional Court
19. The Constitutional Court, pursuant to Article 69 of the Constitutional Court Act, also called on the Chamber of Deputies and the Senate, acting on behalf of a party to the proceedings, and the Government, together with the Ombudsman, as potential interveners in the proceedings, to comment. The Ombudsman informed the Constitutional Court that he did not intervene.
20. The Constitutional Court received a proposal by the District Court in Ostrava to intervene in order to settle its argument on the generality of the law. The procedure for his motion to declare unconstitutional § 3b (1) of Act No. 236 / 1995 Coll., as effective from 1.1.2021 to 31.1.2022, was terminated by resolution sp. zn. Pl. ÚS 6 / 24 of 27.3.2024. Since, contrary to the courts involved, the application of the District Court in Ostrava was not rejected as inadmissible for litispendence, it did not have the right to participate in proceedings under the sp. zn. Pl. ÚS 4 / 23 as an intervener under Paragraph 35 (2) of the Law on the Constitutional Court. At the same time, the Constitutional Court found no grounds for granting the District Court in Ostrava the status of intervener under Paragraph 76 (3) of the Law on the Constitutional Court, since its argument does not extend the grounds for declaring the inconstitutionality of the contested provision applied by the courts concerned.
Observations of the Chamber of Deputies
21. The Chamber of Deputies, in its observations, summarised the course of the legislative process:
22. The bill (later published under No. 587 / 2020 Coll.) was submitted by a group of Members to the Chamber of Deputies in the 8th parliamentary term on 19. 8. 2020 as House Press 978. The first reading took place on 7 October 2020, in which the Chamber of Deputies did not agree to the discussion so that the bill could be approved at first reading. The discussion continued at the same meeting and the press was ordered to discuss the Budget Committee as the Guarantee Committee. The Committee on Budgets discussed the draft law and issued a resolution on 5 November 2020 with a recommendation to approve the draft law. The resolution was delivered to Members as Press 978 / 2. The second reading took place at the 62nd meeting of 12 November 2020, where a comprehensive amendment was added, which was drawn up in a summary of amendments, such as print 978 / 3. The Committee on Budgets issued a resolution by the Guarantee Committee, which was delivered on 18 November 2020 to Members as House Press 978 / 4. The following third reading took place at the 66th meeting of the Chamber of Deputies on 20 November 2020. The bill was approved in the form of an adopted comprehensive amendment. Of the 92 Members present there were 91 pro, he abstained 1 and no against. The bill was passed on to the Senate on 24 November 2020, which at its third meeting on 17 December 2020 expressed the will not to deal with the bill. The law was delivered to the President for signature on 18 December 2020 and signed on the same day. According to the Chamber of Deputies, the laws were passed by the necessary majority of Members, signed by the relevant constitutional authorities and duly declared.
Statement by the Senate
23. The Senate also summarised in its observations the progress of the legislative process:
24. The bill (later announced under No. 587 / 2020 Coll.) was passed to the Senate by the Chamber of Deputies on 23 November 2020. In the Senate, the proposal was dealt with as Press Number 12 of the 13th term. The proposal was discussed by the Committee on Economy, Agriculture and Transport as a committee guaranteeing 9 December 2020. As part of the debate, it was noted, on the one hand, that the objective of the draft law is to respond to the negative budgetary effects of the disease pandemic covid-19 and its associated effects. On the other hand, it was noted that, if the legal design of establishing the salaries of the representatives of the State has been chosen for the reference statistical variable, an effective response to both the economic cycle and budgetary solidarity is incorporated in this solution. There is therefore no reason to interfere with the system on an ad hoc basis. In connection with this, it was said that due to the expected deficit of the state budget in 2021 of CZK 320 billion, the announced saving of CZK 0.5 billion to be brought by this proposal is ultimately insignificant. The issue of the constitutional admissibility of pay restrictions in relation to judges was not discussed. The Committee on the Economy, Agriculture and Transport subsequently recommended rejecting the bill by Resolution 18 of 9 December 2020. The Senate dealt with the bill at its third meeting in its 13th term of office on 17 December 2020. Following the presentation of the rapporteur of the committee, the Senate's Rules of Procedure, as amended by Act No. 16 / 2015 Coll., proposed that the Senate should express its willingness not to deal with the draft law before the debate was opened. In vote 79, in favour of this motion of the 67 senators present and the senators expressed 44.4 opposed, 19 abstained. Thus, by Decree No 89, the Senate expressed the will not to deal with the draft law, which ended the negotiations on the draft law. The Senate summarises that, when discussing both draft laws, it acted within the limits of the Constitution and in a constitutionally prescribed manner.
Government observations
25. The Government approved its entry into the proceedings within the meaning of Article 69 (2) of the Law on the Constitutional Court by order No 251 of 12 April 2023 and submitted a comprehensive statement to the present proposal, drawn up by the Minister for Legislation in cooperation with the Deputy Prime Minister and the Minister for Labour and Social Affairs and the Ministers for Justice and Finance.
26. First of all, the Government contends that the appellant is not actively legitimate in bringing the present proposal, since there are reasonable doubts as to its unbiased nature (bias of Judge Mgr. Tomáš Křivský). First of all, the appellant's legal interest in the present case, namely the payment of the difference in the applicant's salary and compensation, is given. The appellant himself could be a party to the proceedings on the part of the plaintiff or may be affected by the decision of the court (including the Constitutional Tribunal) on his rights. Furthermore, according to the Government, the appellant's ratio to the parties to the proceedings, in particular to the applicant's person, is to that effect. According to the content of the proposal and the schedule of the work of the District Court in Mladá Bloslav for 2023, the applicant is a fellow judge of Mgr. Křivský from the civil sector. There are 20 judges in this court, and they are therefore among the smaller courts. It is common for judges outside the Chamber of Procedure to meet or otherwise consult on problematic issues and procedures from their judicial files. The applicant is simultaneously in an inadmissible double procedural position in respect of the subject-matter of the proceedings before the court seised - firstly, in the position of the party claiming to be entitled to a payment of cash and secondly, in the position of one of the representing Judges of the appellant. This contradicts the general legal principle nemo iudex in causa sua. Even if the case of the representative of the judge had not been actually dealt with, it would be a hypothetical but not unrealistic situation in which the judge decided to apply Mgr. The Křivský and the action attacked the applicant's department 19 C, ad absurdum faulty procedural procedure of the applicant.
27. If the conditions for exclusion are fulfilled at the beginning of the proceedings before the General Court, the Judge shall bring the matter before the President of the Court without dealing with its substance, i.e. before the application of the contested legal provisions has been made. The appellant was therefore wrong to consider the applicability of Article 3b (1) of Act No. 236 / 1995 Coll., as amended from 1.1.2021 to 31.1.2022, § 4 of Act No. 236 / 1995 Coll., as amended by Act No. 18 / 2022 Coll., and Article II of Act No. 18 / 2022 Coll. and made a proposal to the Constitutional Court for the annulment of these provisions.
28. In the event that the Constitutional Court does not reject the application, the Government also makes factual arguments. On the alleged material defects of Act No. 587 / 2020 Coll. the Government states that by declaring the amount of the average nominal wage translated in the non-business sector for 2019 by the Czech Statistical Office in September 2020, the legitimate expectation of a future increase in the salary base could not arise, because the so-called second wave of covid-19 disease took place in October 2020, which brought significant social consequences. At the beginning of 2021, pay tables were validated only for professions that were significantly affected by the disease pandemic covid-19 or were significantly involved in its fight against it (medical staff, employees of social services facilities and teachers).
29. According to the Government, it is not correct to apply the freezing of the salary base for the year 2020 to CZK 100 872 to the designer mentioned the limit of CZK 109 866, since the calculation mechanism was changed by Act No. 587 / 2020 Coll. after which the judge's salary base without the existence of § 3b (1) of Act No. 236 / 1995 Coll. would be CZK 103 734. Furthermore, the Government submits that the de facto net amount of the judicial salary increased as a result of the abolition of the calculation of the employee income tax base on the so-called super gross wage, together with an increase in the basic income tax rebate, which amounts to an increase of around 6%. The Constitutional Court has in the past taken into account the financial effects of the tax changes on the level of the judge's salary in the context of the tax reform with the freezing of the salary base [finding sp. zn. Pl. ÚS 13 / 08 of 2.3.2010 (N 36 / 56 SbNU 405; 104 / 2010 Coll.), paragraph 55].
30. According to the Government, intervention in judicial independence would only be imaginable in the contested regulation if it was significantly affected by the material security of judges, but this cannot be said of, since judicial salaries show a sustained increase in the medium to long term, which does not alter the suspension of the pace. It is also difficult to imagine that a temporary wage outage in the order of lower thousands per month would jeopardise the material security of a salary-bearing judge between three and five times the average salary. The appellant's argument that the minimum wage or the rates of non-contractual fees of lawyers have been increased over the period considered is not possible. Also, from the perspective of the effects of the disease, covid-19 cannot be found to be excessive. The disease ended without exception on the whole company in the Czech Republic and the appellant overestimates its effects on judges. In the case of judges, as employees performing predominantly office-type work, the exposure rate was not higher than for other employees.
31. Arguments of findings sp. zn. Pl. ÚS 24 / 04 and sp. zn. Pl. ÚS 24 / 08 are not, according to the Government, suitable for the situation here. The appellant can be attested that the contested provisions are not general by nature, but the Czech legislative practice covers several cases of legal provisions with specific content which are considered constitutionally conformal. The Government also does not consider the alleged breach of Article 1 of the Additional Protocol to the Convention to be relevant. The appellant's contested legislation therefore does not constitute a salary restriction contrary to the constitutional order.
Observations of the Judicial Union
32. During the proceedings, the Constitutional Court received observations from the Judicial Union of the Czech Republic, hereinafter referred to as "the Judicial Union '. In relation to the freezing of the pay base for 2021, the Judicial Union refers to the statement of its Republic Council of 20 January 2022 by which it showed solidarity with the State budget at the time of the Covid-19 epidemic, and this position remains so far, despite the fact that the political argument at that time on the need for the solidarity of judges with regard to the negative effects of the epidemic on the state budget was not based on a fair basis, since the annual report of the Supreme Audit Office of 4 April 2022 revealed that almost 90% of the annual increase in State spending was not linked to the expenditure incurred in connection with that epidemic.
Replication of the applicant
33. In the reply, the appellant refers in particular to the Government's argument on the lack of active legitimacy to submit the proposal. The ruling judge considered whether the grounds for its exclusion (Paragraph 14 (1) of the Civil Code) were given, but did not find any such reason and therefore could not even notify the President of the Court in accordance with the procedure laid down in Paragraph 15 (1) of the Civil Code. According to the appellant, the Civil Code does not impose on the judge (s) that, if he does not find any grounds for doubting his unbiased nature, he should record it or notify the parties thereof and assure them that he is not genuinely biased.
34. The Government's conclusion that the annulment of the provision of the law in question and the declaration of non-constitutionality of the legislation previously in force are objectively in the interests of the appellant is absurd as no judge could claim payment of a salary which can only be applied before a court. Any judge of any court would be biased in advance because, hypothetically in the future, he could also claim his entitlement to pay back.
35. The fact that a decision-making judge operates in the same workplace as the participants does not give rise to reasonable doubts as to his unbiased nature. Representation within the Mladá Bloslav District Court is mutual for all civil judges, who are nine, and not just between Chambers 14 C and 19 C, as could result from the Government's observations. Furthermore, the appellant refers to the government-neglected part of the work schedule, which shows that the appointment of the representative judge is not an automatic case but is subject to the control of the President (Vice-President) of the Court. At the same time, it is clear from the work schedule that the applicant does not have a specified professional specialisation in the case at hand.
36. The Government notes that Law No 587 / 2020 Coll. amended the method of determining the basis for the salaries of judges, namely that instead of the average gross nominal wage on the converted number of employees in the non-business sector, the average wage of employees in the national economy will be the new one; he then states that in connection with this, Section 3b (1) of Act No. 236 / 1995 Coll. of the judge's fixed salary of CZK 100 872 was established for the coming year. However, according to the appellant, there is no indication of why the fixing of the fixed salary base should be linked to a change in its calculation. From the next text of the statement it is clear that the pay base of judges based on the amended method of calculation was CZK 103 734.
37. The appellant does not agree with the Government's assertion that judges are employees performing predominantly office-based work, in particular when it comes to the judge of the criminal and custody section. In the case of guardianship judges, normal visits to healthcare establishments are also in the course of their duties. The government's recommendations on how to conduct decision-making activities issued by the Ministry of Justice for the protection of the disease of covid-19 could hardly have affected the procedural procedures of the courts established by law.
38. Furthermore, the appellant refers to the argument contained in its proposal.
Abandonment of oral proceedings
39. After the above recap of the proceedings, the Constitutional Court concluded that there was no need for oral hearing in the case, as it would not have brought any further clarification of the case than from the written observations requested. Having regard to the wording of Paragraph 44 of the Constitutional Court Act, it therefore decided without oral hearing.
Proceedings before the Constitutional Court
40. The Constitutional Court shall have jurisdiction to hear the application. In addition, he was concerned about whether the application was lodged by a legitimate appellant under Article 64 (3) of the Constitutional Court Act.
41. The Constitutional Court has repeatedly stated that the Court's active legitimacy to file an application for annulment of the law or part of it depends on the subject matter of the dispute and legal qualifications. The Court of First Instance may make an application for annulment of only such a law (or its sub-provisions) as it is to apply directly (immediately) in dealing with a particular case. Consideration of such an application must be justified, derived from the fulfilment of the conditions of the procedure, including the substantive legitimacy of the participants, and if it is a substantive rule, from the unambiguous finding that the regulation is to be applied [see sp. zn. It must, therefore, be a law which impedes the achievement of a desirable (constitutional) outcome - if not removed, the outcome of the present proceedings would be different. It is not only a hypothetical possibility of its use or a broader connection of the case with such a law [cf. sp. zn. Pl. ÚS 34 / 10 of 24.7.2012 (N 130 / 66 CollNU 19; 284 / 2012 Coll.), paragraph 32].
42. The Government challenges the appellant's active legitimacy by giving reasons for bias in the matter of the ruling judge and therefore the contested legislation cannot be applied in the present case - this reasoning, according to the Constitutional Court, is incorrect. First of all, the Government forgets that the appellant is not the chairman of the Senate in the matter, but the District Court in Mladá Bloslav, which is the court in charge of the hearing and decision of the case. Allocation of matters to specific judges is a matter for the relevant work schedule.
43. Any doubts as to the unbiased nature of a particular judge or associate are not a reason for which it would not be possible to discuss and decide the case in that court (s). Nothing prevents the parties from contesting before the general courts the bias of the ruling judge (cf. paragraphs 14 et seq. of the Civil Code) in order to maintain their right to a legal judge (Article 38 (1) of the Charter). However, the question of the immediate applicability of the contested legislation and the related question of the applicant's active legitimacy is irrelevant.
44. The Constitutional Court takes the view that, in this specific type of procedure, it is not primarily about the protection of the subjective rights of the parties, but about the protection of constitutional order in its objective position [cf. Resolution sp. zn. The Constitutional Court is not entitled to examine the possible grounds for exclusion in the case of decision-making judges in order to replace the activities of the general courts preceded by legal procedure. The application of the contested legislation, or the fulfilment of the conditions of the procedure or of the substantive legitimacy, is not disputed by the Government and the Constitutional Court did not find any obstacles to the direct application of the contested legislation. The Constitutional Court therefore concluded that the application to declare the inconstitutionality of Paragraph 3b (1) of Law No 236 / 1995 Coll. was submitted to that effect by a legitimate appellant pursuant to Article 64 (3) of the Law on the Constitutional Court.
45. In relation to the proposal to declare the inconstitutionality of the contested provision, it is also admissible [cf. also the finding of sp. zn. Pl. ÚS 33 / 2000 of 10.1.2001 (N 5 / 21 SbNU 29; 78 / 2001 Coll.) or the finding of sp. zn.
Review of the procedure for the adoption of the contested provision
46. The Constitutional Court first examined, in the terms of Paragraph 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., whether the contested provision was adopted within the limits of the Constitution laid down by competence and in a constitutional manner.
47. Both the appellant and the courts concerned import the inconstitutionality of the contested provision, inter alia, because the representation of the judiciary is repeatedly overlooked. Neither the observations of the parties nor the explanatory memorandum to Act No. 587 / 2020 Coll., by which the contested provision was inserted into Act No. 236 / 1995 Coll. reveal whether the contested provision was consulted with the representatives of the judiciary.
48. In the past, the Constitutional Court has requested that, in view of the claims to the legislative process, intervention in the salaries of judges should always be discussed with representatives or representatives of independent justice [the finding of sp. zn. Pl. ÚS 28 / 13 of 10.7.2014 (N 137 / 74 CollNU 93; 161 / 2014 Coll.), paragraph 53, also the finding of sp. zn. Pl. ÚS 12 / 10 of 7.9.2010 (N 188 / 58 SbNU 663; 269 / 2010 Coll.), paragraph 25 or the finding of sp. That requirement of the Constitutional Court, in its decision in sp. zn. The Constitutional Court will therefore take this into account when assessing the content of the contested provision with the constitutional order (see sub-paragraph 86).
49. The contested absence of a reasoned report is without relevance for the assessment of the Constitutional Court in this part of the review, not to mention that the explanatory memorandum was annexed to Law No 587 / 2020 Coll..
50. The Constitutional Court finds that the data provided in the statements of the Chamber of Deputies and the Senate (see sub-paragraphs 21 to 24) are sufficient to conclude that Act No. 587 / 2020 Coll., which includes the contested provision, was adopted and issued within the limits of the Constitution established competence and in a constitutional manner.
Meritorious review of the proposal
51. After examining the formal elements of the proposal and the process of adopting the contested provision, the Constitutional Court examined it in substance and, on the basis of the considerations set out below, concluded that the proposal to declare its inconstitutionality was not justified in this case.
52. The deduction of the contested § 3b (1) of Act No. 236 / 1995 Coll., as effective from 1.1.2021 to 31.1.2022, reads: "From 1 January 2021 to 31 December 2021, the salary base is CZK 84 060 and for judges CZK 100 872."
Generally, on the issue of judicial salaries
53. The Constitutional Court has dealt with the issue of interference in judicial salaries (pay restrictions) in its decision-making activity many times since 1997, which in itself raises doubts about the respect of the executive and legislator for the established "salary" case law of the Constitutional Court. In Part IX, 1 of the sp. zn. Pl. ÚS 15 / 22 The Constitutional Court summarised and specified the general bases on the judicial salaries and their restrictions, on which it is based in the present case and on which it refers in detail. For further consideration, at least the core thesis can be summarised:
54. When assessing the limitations on judicial salaries, the Constitutional Court is based on the assumption that judicial independence is one of the essential elements of the democratic rule of law (Article 9 (2) of the Constitution), the provision of which is also supported by the material security of judges (see page 5 of the ÚS 13 / 99 of 15.9.1999 (N 125 / 15 of the SbNU 191; 233 / 1999 Coll.) or the finding of page 7 / 02 of 18.6.2002 (N 78 / 26 of the SbNU 273; 349 / 2002 Coll.)). The legislature's intervention in the area of material protection of judges must be placed under the framework protected by the principle of their independence for two reasons: the independence of judges is primarily conditional on their moral integrity and professional level, and is also linked to their adequate material security. The second reason is to exclude the possibility of coercion of legislative and executive decision-making by the judges [finding sp. zn.
55. In the finds sp. zn. Pl. ÚS 34 / 04 of 14.7.2005 (N 138 / 38 SbNU 31; 355 / 2005 Coll.) and sp. zn. The Constitutional Court has established the following (generalising) maxima to which it has repeatedly applied, including in relation to the assessment of restrictions on judicial salaries in the period after 31.12.2010 [see sp. zn. Pl. ÚS 28 / 13, paragraph 58, or sp. zn. Pl. ÚS 20 / 15 of 19.7.2016 (N 127 / 82 SbNU 61), paragraphs 73 and 74]:
- 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 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 compared to those of such restrictions in other areas of the public sphere;
- the involvement 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 is fulfilled, account must be taken of the difference in the function of judges and officials of the law and executive authority.
56. The construction of Act No. 236 / 1995 Coll., 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 the legislative and executive representatives will automatically increase the salaries of judges in the same proportion, constitutes an important insurance policy that the ratio in the material security of the representatives of individual powers will be maintained in the future [Fr. The pay ratios of judges in the broad sense are to be stable, not variable, with which it is calculated by this or the government grouping [the findings sp. zn. Pl. ÚS 16 / 2000 of 3.7.2000 (N 105 / 19 SbNU 23; 321 / 2000 Coll.), sp. zn. Pl. ÚS 11 / 02 of 11.6.2003 (N 87 / 30 SbNU 309; 198 / 2003 Coll.) or sp. zn. ÚS 9 / 05 of 14.7.2005 (N 140 / 38 SbNU 81; 356 / 2005 Coll.)].
57. Any measure that modifies the rules on the determination of the salary of judges (so-called "pay machine") must be understood by the salary restriction and as a result of which the salary is lower than that which would have been the case under those rules. In the find sp. zn. Pl. ÚS 15 / 22 The Constitutional Court divided salary restrictions into permanent and temporary terms. Temporary restrictions do not change the pay machine but replace it for a limited period by specific rules; as this is an exception to the general rule, it must be justified by exceptional circumstances. In addition, temporary restrictions may be divided into three forms depending on severity and rigour: (a) the least significant is the reduction in the rate of growth; (b) the moderate is the so-called "freeze" of salary; and (c) the most binding form of restriction is the reduction of salary. The basic criterion for determining whether or not there has been a salary restriction as a result of the measure in the area of the remuneration of judges is the sum of their income in a calendar year (point 55).
Content compliance of the contested provision with the constitutional order
58. The Constitutional Court considers it important to first determine whether the contested provision introduced a salary restriction and, where appropriate, in what form.
59. The contested provision sets a salary base for judges for the period from 1.1.2021 to 31.12.2021 (i.e. for the calendar year 2021) to CZK 100872. The salary base for the judges for (previous) year 2020 was the communication of the Ministry of Labour and Social Affairs No. 295 / 2019 Coll., on the declaration of the level of the salary base for determining the salary and some 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 authority and of certain state bodies and judges and Members of the European Parliament, as amended, declared in the amount of CZK 100 872.
60. Paragraph 3 (3) of Act No. 236 / 1995 Coll., as effective from 1.1.2021 to 31.1.2022, shows that the salary base for judges is three times the average gross monthly nominal wage for the converted number of employees in the national economy obtained according to the published data of the Czech Statistical Office for the preceding calendar year. The average gross monthly nominal wage for the converted number of employees in the national economy amounted to CZK 34 125 for the whole year 2019 (see publicly available information available at the Czech Statistical Office on https: / / www.czso.cz). According to the pay machine, the salary base was therefore to be CZK 102 375 (it is not apparent from which sources the government concluded that it was CZK 103 734 - but it is not decisive). The salary base for the calendar year 2021 considered has not changed in nominal terms compared to the previous calendar year (its level was maintained), although it should have increased. The salaries of the judges were therefore "frozen 'and are therefore a salary restriction with an intermediate degree of seriousness. The salary restriction was limited by a period of one year and therefore has a temporary character.
61. The Constitutional Court further notes that, if Article 3 (3) of Act No. 236 / 1995 Coll., in its version effective until 31 December 2020, according to which the salary base for judges is three times the average nominal monthly wage for the converted number of employees in the non-business sector achieved according to the published data of the Czech Statistical Office for the preceding calendar year, the salary base for 2021 would amount to CZK 109 866 (see information published by the Czech Statistical Office pursuant to Decree No. 102 / 2018 Coll., on the definition of the non-business area for the purpose of establishing the salary base). If, at the same time as the contested provision, the latter provision had not been amended, the platform for 2021 would have been even higher than before the adoption of Act No. 587 / 2020 Coll. However, Article 3 (3) of Act No. 236 / 1995 Coll., as effective from 1.1.2021 to 31.1.2022, is not the subject of the current review.
62. If the Government considers that, as a result of the reduction in personal income tax from 1.1.2021 onwards, the net revenue of constitutional officials has increased (also point A of the general part of the explanatory memorandum to Act No 587 / 2020 Coll.), reference can be made to the finding of sp. zn. The tax context is irrelevant for the assessment of the Constitutional Court in a situation where the change in tax rules is flat and affects an unlimited number of addressees in a comparable position. Such a circumstance could be relevant if only the power of the court is involved - but this is not the case now.
63. The appellant's objection to a constitutionally inadmissible statement of public interest is not justified by law. It is not clear, first of all, what the contested provision lacks a statement of generality. The rule of law contains a number of generally binding laws which, by fulfilling their purpose or the expiry of time, cease to be effective but not valid. The appellant's reference to the finding of the sp. zn. Similarly, the appellant contended that the level of the salary base was set in general and at the same time for a certain period of time was set in a one-off different manner, in itself does not indicate the inconstitutionality of the contested provision (see, for example, the finding of sp. zn. The salary restriction may also be a temporary exception to the general rule (pay machine).
64. It can therefore be concluded in part that, as a result of the contested provision, a salary restriction consisting of temporary freezing of the salary of judges took place in the year considered. The Constitutional Court therefore had to assess whether this restriction could be regarded as satisfying the constitutional order in the light of specific circumstances.
65. The Constitutional Court first examined whether the introduction of temporary pay restrictions was justified by exceptional circumstances. In assessing the constitutionality of the contested provision, it is not possible to ignore the difficult social and economic reality in which the Czech Republic was located in 2020 (i.e. 2021). The pandemic of the disease covid-19 was an unprecedented event in the modern history of the Czech Republic in terms of meaning and scope [Found sp. zn. Pl. ÚS 20 / 21 of 7.12.2021 (4 / 2022 Coll.), paragraph 140]. Its development was difficult to predict [finding sp. zn.
66. At that time, the government took a number of radical emergency measures to protect health, which restricted more fundamental rights and freedoms and which significantly affected the social and economic life of the population [cf. sp. zn. Pl. ÚS 21 / 20 of 8.12.2020 (N 224 / 103 SbNU 282; 29 / 2021 Coll.), paragraph 45]. The global pandemic can undoubtedly be considered as a qualified and unrecognised crisis situation in which both income and expenditure aspects of public budgets are significantly negatively affected and in which increased emphasis is placed on solidarity between individuals and the state, as well as on the need to distribute economic burdens (point 2.2 of the page, OJ C 20 / 21, paragraph 143).
67. On the other hand, it should be pointed out that the existence of a pandemic of covid-19 disease cannot be regarded as a notional "bianco chequette" which would justify on a flat-rate basis and make the legislator's constitutional conformity with all the legislative interventions in constitutionally protected values. All the more so, if it is doubtful whether the pandemic had the alleged effects on the state budget at all (see, for example, the Annual Report of the Supreme Audit Office of 2021 of 4.4.2022, available at https: / / www.nku.cz); It is, however, necessary to add that the Constitutional Court cannot assess the constitutionality of the contested provision in the light of the following developments and in the light of the circumstances that arose only after its adoption and, more importantly, after the end of 2021.
68. It follows from the explanatory memorandum to Act No. 587 / 2020 Coll. that, given the effects of the disease pandemic covid-19 and its associated effects on the Czech economy, it is appropriate that the salaries of Members, Representatives and Judges should not be increased in 2021. Preservation of the current indexation scheme would mean an increase in their salaries in a way that is impracticable to the economic reality of employees and traders (point B of the general part of the explanatory memorandum).
69. The Constitutional Court therefore assessed whether the alleged effects of a pandemic of covid-19 disease (which explicitly justify the freezing of a salary base), or, more generally, the situation of the end of 2020 when the contested legislation was adopted, and in 2021 for which the judicial salary base was frozen, could be regarded as an exceptional circumstance for which temporary salary restrictions could be sought.
70. Since the onset of the pandemic was rapid and unexpected, the pay machine could not respond immediately. While the mechanism set up to determine the judicial salaries reflects the economic situation of the state and the circumstances of individuals, it does so with time delay resulting from the fixation in the previous year [see further section IX.l.b) of the finding sp. zn. Pl. ÚS 15 / 22]. In general, it was therefore possible to consider a certain salary restriction which would respond promptly to the situation. According to the Constitutional Court, however, it is doubtful whether the situation was as financially burdensome as the explanatory memorandum foresees.
71. The argument of saving the state budget in excess of half a billion CZK (see point E of the general part of the explanatory report to Act No. 587 / 2020 Coll.) does not appear to be very convincing in the light of the overall deficit of the state budget in 2021 reaching almost CZK 420 billion. It is not the role of the Constitutional Court to formulate large-scale economic analyses in its decision and to examine the possibilities of the State budget, as this is precisely the basis of the report (cf. sp. zn. It is also not possible to exclude from the fact that already in the sp. zn. The Constitutional Court stated that "[the difficult economic situation could have given rise to certain restrictions, but it is in the past that this area has already been narrowed down as much as possible, unless it is exhausted in a situation where the economic situation in our country has not been and cannot be assessed as a pre-bankruptcy situation (fortunately) '.
72. The claim of the exceptionally difficult economic situation of the State is weakened by the steps that have made power efficient in the year 2021 considered. The Constitutional Court failed to see that in this year the State was "generous" in the payment of remuneration at ministries, administrative offices and other state-run institutions, often at hundreds of thousands of levels [cf. Data published on the basis of information provided by the competent institutions pursuant to Act No. 106 / 1999 Coll., on free access to information, as amended, on the website https: / / platyurednik.cz, managed by the State Guard Project (https: / www.hlidacsta.cz)]. In addition, the executive authority has increased the wage charges for some employees (see below).
73. It can therefore be further concluded that the economic context in itself does not justify the conclusion on the proportionality of the salary restriction, in which the Constitutional Court attaches to the appellants and the interested courts.
74. Contrary to the real economic impact of the contested provision on the state budget (whose influence is at least questionable), the Constitutional Court could not, in this case, ignore the symbolic and solidarity importance of the salary restrictions under consideration. As has already been mentioned, the unexpected onset of the pandemic and its extent were quite extraordinary - until then in modern history unrecognised - a circumstance that was negatively reflected in the life of almost every citizen of the Czech Republic, whether in the property sphere, in his health or otherwise.
75. The judge of the Constitutional Court Miloš Holeček, in a different opinion on the finding of sp. zn. Pl. ÚS 13 / 99, excelled that "belonging to others is one of the civil virtues of which the members of the judicial status of the holder and which is justified in a liberal society" (the quoted passage was subsequently taken over by the Constitutional Court to justify the finding of sp. zl. ÚS 16 / 2000). Similarly, the Constitutional Court pointed out in the finding that the function of judge is not limited to professional but also to personality, showing that the judge is not only expected to have expertise and high workload, but also to have integrity and above-average personal integrity. Therefore, the Constitutional Court concluded that judges, as members of the "society's elite," could be required to have a higher degree of generosity, social performance and friendliness than other citizens (recital 95 to the finding).
76. In the context outlined, it is necessary to take into account that although, as a result of the pandemic of covid-19 disease, the economic effects were perceived by the whole company, the working part of the endangered class in services and care professions was most affected - see sociological research "Divided by freedom: impact of pandemic" of 26.11.2020, available on https: / / www.stem.cz. On the contrary, negative effects are slightly declining with rising income and in the case of persons with above-average assets (see above). It can be concluded from the above that the subjective sense of injustice about the hardness of the effects of the disease of covid-19 and the distribution of the associated economic burden is more (generally) perceived by a group of citizens who have already been significantly affected by the pandemic or who have been strongly concerned about the negative effects in the future. In this case, the accentuated element of solidarity and the interest in preserving social cohesion becomes even greater.
77. In particular, in relation to the year 2020 in which the contested provision was adopted, in which the disease covid-19 also spread to the territory of the Czech Republic, and partly in relation to the year 2021 for which the salary base was frozen, it was not possible to reliably anticipate the effects of a starting (and ongoing) pandemic not only on the health and lives of people, but also on the economic and economic situation of the state. The concerns about significant economic damage were appropriate at the time; at that time it was not possible to rely on the experience and data for previous years.
78. It is in the preamble to the surprise and ignorance of the situation that can be seen, taking into account its scope, the element of exceptional (exceptional) for which it is legitimate to consider the adequacy of the salary restriction under review. The above attributes are comparable to those accepted by the Constitutional Court as legitimate in the context of the (similarly unexpected) large floods in 2002 in the sp. zn. However, the importance of this element has weakened and is still weakening in the coming years precisely because it was no longer an unexpected situation, although its effects on the state's economy could be similar or even worse.
79. The Constitutional Court further examined whether the salary restrictions concerned only judges or other "servants' of the State. The adequacy of the salary restriction can be inferred, inter alia, if a real reduction in the value of the remuneration for the work of each employee (or at least most of them) in the public domain (cf. sp. zn. Pl. ÚS 15 / 22, paragraphs 178 and 179, or in sp. zn. Pl. ÚS 28 / 13, paragraph 76).
80. The contested provision introduced a salary restriction in relation to all representatives under Act No. 236 / 1995 Coll., that is, also to the legislative and executive officials. The restrictions were also affected by prosecutors whose salary depends on the salary base intended for judges (§ 3 (3) of Act No. 201 / 1997 Coll., on the salary and certain other requirements of the prosecutors, as amended). It cannot therefore be concluded that the salary restriction under consideration is an expression of a constitutionally unacceptable pressure of legislative and executive power, which in itself indicates the inconstitutionality of the contested legislation (cf. sp. zn.
81. The restrictions were equally applied to most other "servants" of the state whose salaries are paid by public budgets. For employees referred to in Article 5 (1) of Decree-Law No 341 / 2017 Coll., on the pay ratios of civil servants in public services and administration, as amended by 31.12.2021 ("Government Decree No 341 / 2017 Coll. ') and for employees referred to in Article 2 (1) of Decree-Law No 304 / 2014 Coll., on the pay ratios of civil servants, as amended by 31.12.2021 (" Government Decree No 304 / 2014 Coll.'), the fees for the year under consideration remained unchanged, thus also frozen at the level of the previous year.
82. On the contrary, some employees in 2021 have increased their salary rates. These were employees referred to in § 5 (2) to (4) of Decree of the Government No 341 / 2017 Coll. and employees referred to in § 2 (2) of the Decree of the Government No 304 / 2014 Coll. This increase in salary rates was applied to doctors, medical staff, social workers and educational or academic staff. These persons were in most cases either directly in the so-called "first line 'of the disease covid-19 (persons referred to in § 5 (2) and (3) of the Government Regulation 341 / 2017 Coll., working in health), or their consequences were increased (teachers referred to in § 5 (4) of the Government Regulation 341 / 2017 Coll., who had to adapt their activities to strict and volatile requirements arising from anti-epidemic measures and distance teaching, not to mention the increased risk of transmission between pupils). The Constitutional Court notes that this partial increase in salary charges was closely targeted and related to the solution to the exceptional situation that led to the introduction of the salary restrictions. In these specific circumstances, the partial increase in salaries is acceptable and does not create the unconstitutionality of pay restrictions in relation to judges.
83. The Constitutional Court also addressed the adequacy of the restriction of judicial salaries. According to the Constitutional Court, it is not possible to accept the appellant's claim (in which it attaches to the Government's statement) that the occurrence of covid-19 disease would have a particularly negative effect on judicial activities or would have a disproportionate impact on the judges compared to others. The impact of the pandemic on them was relatively low compared to the professions that had to be with a larger number of people in direct contact on a daily basis, and in particular in relation to workers who were directly involved in combating the disease pandemic (covid-19), regardless of the possibility of judges working from home or health (anti-epidemic) measures in negotiations. According to the Constitutional Court, the appellant's claim that the non-contractual remuneration rate of lawyers has risen cannot be accepted, on the contrary, without taking into account inflation, the so-called flood tax has been abolished and the remuneration has thus returned to 1997. In these respects, therefore, the salary restriction cannot be considered disproportionate.
84. In order to assess the adequacy of the freezing of the salary base, it is also important that, at the time of the adoption of the contested provision, the first legislative intervention in the remuneration of judges has been taken since the Constitutional Court's finding, sp. zn. Thus, the Court's pay base for 2021 was frozen after six years of its continuous increase according to the pre-legal (and constitutionally and disproportionately) pay machine. In this context, the remuneration freeze currently under assessment for 2021 differs from the Constitutional Court in the past of the repeatedly dealt with vigorous salary restrictions against judges, where, on the contrary, the long-term trend in the reduction and freezing of their salaries has been accentuated (see, for example, the sp. zn.
85. The Constitutional Court did not consider that the dignity of the judges or their material security would be compromised as a result of the contested provision, taking into account the amount by which the salary base would have been increased (in the order of lower thousands of CZK); This small difference can therefore be considered to be a circumstance in favour of the conclusion on the proportionality of the restriction.
86. On the contrary, as a "aggravating" factor, consideration should be given to the failure to discuss the proposed salary restrictions with the judiciary. However, its importance is weakened by the fact that, in the case of Act No 587 / 2020 Coll. it was a parliamentary proposal, not a government proposal, as in the case of the findings of sp. zn. Pl. ÚS 12 / 10, sp. zn. Pl. ÚS 16 / 11, sp. zn. The above findings did not clarify the specific way in which the proposals should be discussed, which was only specified in the sp. zn.
87. In addition, that deficiency was at least partially recovered from the ex post since the Judicial Union, as an interest organisation under Section 175 of Act No. 6 / 2002 Coll., on courts, judges, sitting and administration of the courts and on the amendment of certain other laws (the Law on Courts and Courts), with which the proposal for a salary restriction should be discussed (see page 5 of the Act No 15 / 22, paragraph 127), stated in the Declaration of the Republic of the Council of 20 January 2022 (as well as in its observations) that it did not counteract against the freezing of the salaries of judges for 2021 and does not support the attempt to seek payment claims by the courts (as opposed to the freezing of the pay base for 2022).
88. The Constitutional Court, having assessed the circumstances outlined above, concluded that the freezing of the judicial pay base for 2021 could be considered exceptionally reasonable. The salary base was frozen with regard to a pandemic that was unprecedented in modern history and whose development (and impact on the state's economy) could not be reliably predicted. It is during this period that - for the Constitutional Court, it is important - the preamble to the gesture of solidarity between judges with the difficulties and challenges that the citizens of the Czech Republic faced at the time. The solidarity of judges in particularly difficult times does not threaten their dignity, according to the Constitutional Court, but strengthens society's confidence in the strength of their moral and state integrity.
89. The contested provision does not conflict with the requirements of Article 1 of the Additional Protocol to the Convention and the case-law of the European Court of Human Rights (ECHR). The Convention on the Protection of Human Rights and Fundamental Freedoms does not give rise to any right to continue the payment of a salary of a certain amount (judgment of the Grand Chamber of the ECHR in Vilho Eskelinen and Others v Finland of 19.4.2007, complaint No 63235 / 00, paragraph 94; judgment of the ECHR in Lelas v Croatia of 20.5.2010, complaint No 55555 / 08, paragraph 58). It is in the discretion of the State to determine what remuneration it will grant to its employees from the state budget. The State may therefore introduce, suspend or revoke payment of a certain remuneration through legislative changes (the decision of the ECHR in the Mihăieşand Senteşanti-Romania case of 6.12.2011, complaint No 44232 / 11 though 44605 / 11, paragraph 15).
90. In the Savickas Decision and Others against Lithuania of 15 October 2013, complaint No 66365 / 09, the ECHR stated that the temporary reduction in the salaries of judges by applying a coefficient of 1,75 instead of 2,5, given the economic and financial crisis of the State, did not jeopardise their livelihood and was therefore not disproportionate. Nor did it find that the temporary reduction in the salaries of judges would cause them to bear an excessive burden, or that as such would have an impact on their independence or the ability to perform their duties with the dignity required by their profession (see, inter alia, paragraph 94 of that Decision; Cf. Mutatis mutandis also the ECHR decision in the Koufafi and Adeda case against Greece of 7.5.2013, Complaint No 57665 / 12 and 57657 / 12, paragraphs 44 and 46, or the ECHR decision in the Khoniakina case against Georgia of 19.6.2012, Complaint No 17767 / 08, paragraph 78).
91. In its decision in the case of Cubate and others against the Czech Republic of 22 June 2023, complaint No 61721 / 19 and five others, the ECHR concluded that the failure to pay the salaries of Czech judges for the years 2011- 2014 (when the coefficient was reduced from 3 to 2.5 and 2.75 respectively) did not infringe their right to a fair trial under Article 6 of the Convention or the right to protect ownership under Article 1 of the Additional Protocol to the Convention; It did not consider that the contested measure would jeopardise the ability of judges to exercise their judicial function independently and impartially. However, the ECHR considered it a worrying long-term procedure by the Czech legislature in relation to the salaries of judges, who knowingly acted unconstitutionally and crossed the limits established by the established case law of the Constitutional Court.
Conclusion
92. The Constitutional Court summarises that the temporary freeze on the salaries of judges for 2021 did not affect their level of material collateral so far achieved in a way that would raise doubts as to whether the legislature's arbitrary action aimed at limiting or losing judicial independence was an option. At such an exceptional time as 2021 and the period prior to it, when a pandemic of disease covid-19 hit the whole society hard, judges as society's elite must exceptionally bear the restriction of their salaries.
93. At the same time, the Constitutional Court is forced to express its regret at the position of the legislator, who does not treat judges' salaries as a fundamentally immutable quantity, but rather as an ad hoc political instrument. The fact that the Constitutional Court still considers the salary restriction currently under consideration, given the exceptional circumstances, to be constitutionally acceptable does not mean that it would in future address shortcomings in the legislative procedure identified (not only) in this finding. It is therefore necessary to appeal to the legislature to fully respect the limits resulting from the Constitutional Court's case-law and thus not to increase the tension between the various components of state power and the public.
94. For all the above reasons, the Constitutional Court decided, in accordance with § 70 (2) of the Law on the Constitutional Court, on the application to declare the inconstitutionality of § 3b (1) of Act No. 236 / 1995 Coll., as effective from 1.1.2021 to 31.1.2022, by rejecting it.
President of the Constitutional Court:
JUDr.
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Regulation Information
| Citation | The Constitutional Court found no 210 / 2024 Coll., sp. zn. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 02.07.2024 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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