The Constitutional Court found No 211 / 2024 Coll.
Findings of the Constitutional Court sp. zn. Pl. ÚS 5 / 24 concerning the application for annulment of Paragraph 3 (3) in the words "2,822 times" 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, as amended, and Article XXIX of Act No. 349 / 2023 Coll., amending certain laws relating to the consolidation of public budgets
Valid
The Constitutional Tribunal found
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211
FIND
The Constitutional Court
of 15 May 2024
sp. zn. Pl. ÚS 5 / 24 on the proposal for annulment of § 3 (3) in the words "2,822 times" of Act No. 236 / 1995 Coll., on the salary and other formalities involved in 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, and Article XXIX of Act No. 349 / 2023 Coll., amending certain laws relating to the consolidation of public budgets
On behalf of the Republic
On 15 May 2024, the Constitutional Court decided under sp. zl. Pl. ÚS 5 / 24 in plenary composed of the President of the Court of Josef Boxy and judges and judges of Lucie Dolanská Bányai, Josef Fiala, Milan Hulmák (Judge of the Rapporteur), Jaromír Jirsa, Veronica Christian, Zdeněk Kühn, Tomáš Ličník, Katřina Ronovska, Jan Svatona, Pavel Šámal, Vojtětěho Šimíček, David Uhlíř, Jan Wintra and Daniela Zemanova, on the motion of the District Court of Lab on the abolition of Section 3 (3) (3) (3) (3) (3) (3) (3) (3) (3) (3) (3) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5)
as follows:
I. Paragraph 3 (3) in the words "2,822 times" of Act No. 236 / 1995 Coll., on the salary and other formalities relating to 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State Government and of certain state bodies and judges and Members of the European Parliament, as amended, shall be repealed with effect from 31.12. 2024.
II. The proposal to repeal Article XXIX of Act No. 349 / 2023 Coll., amending certain laws in connection with the consolidation of public budgets is rejected.
Reasons
Definition of the case
1. The Constitutional Court is, at present, concerned with the legislator's intervention in the regulation of judicial salaries. The amount of the salary of judges shall be subject to the level of the salary base. This corresponded to 3times the average gross monthly nominal wage by 31 December 2023 for the converted number of employees in the national economy achieved according to the published data of the Czech Statistical Office for the preceding calendar year. Act No 349 / 2023 Coll., amending certain laws in connection with the consolidation of public budgets, reduced the original coefficient 3 times to 2,822 times.
2. The Judge of the Regional Court in Ústí nad Labem Lenka Rutová ("the applicant") is seeking the payment by the Regional Court in Ústí nad Labem ("the District Court" or "the applicant") of the additional payment of her salary and the reimbursement of expenses for the month January 2024. According to her, the contested legislation is unconstitutional.
3. The District Court has therefore repeatedly referred to the Constitutional Court in the proceedings for this action (referred to in sp. zn. 33 C 68 / 2024) with reference to the decision-making activities of the Constitutional Court, which has in the past already inconstitutionality of the reduction in the salaries of judges, as amended, to 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 a proposal to repeal Article 3 (3) concerning the words "2,822 times' of Act No. 236 / 1995 Coll., on the salary and other elements associated with the function of representatives of state authorities and judges and Members of the European Parliament, as amended.
Arguments of the appellant
4. The applicant contends that, as a result of the adoption of the finding of 2.8.2011 sp. zn. Nevertheless, pay restrictions were also introduced in 2021 and 2022, thereby violating the principle of the protection of rights acquired in good faith. The situation is analogous to the one decided by the Constitutional Court by the finding of sp. zn. Pl. ÚS 16 / 11.
5. According to the appellant, the contested provisions will not stand as part of the proportionality test. It follows from the explanatory memorandum to Act No 349 / 2023 Coll. that a permanent reduction of the starting value is proposed for the calculation of the salary bases of representatives of state authorities, judges and prosecutors. It will not stand up to the reason for the anticipated impact of salary restrictions on professions across the state sector. In fact, according to the members of the government, there is supposed to be an increase in salaries in a number of professions (police, teachers or doctors), and so pay restrictions are clearly selective. It is also envisaged to increase lawyers' fees. Moreover, since 2020, the minimum wage has risen and inflation rates have risen significantly, which raises the question of how unequal judges are compared with other professions.
6. The regulation interferes with judicial independence and there is no alleged public interest in its adoption, nor is it a temporary measure to bridge the crisis situation. Even in view of the pay restrictions in 2021 and 2022, judges' salaries are no longer stable. In addition, a new fact must be taken into account in relation to previous years, namely that the judges were exposed to the risks associated with the disease at the time of the pandemic of the disease. In many cases, the disease occurred.
7. In the context of other legislative measures, saving 500 million is completely marginal in addition to the estimated state budget outage of around 130 billion. In a situation where exceptional expenditure incurred in connection with a disease pandemic of covid-19 would, in the majority of cases, be covered by personal income tax revenues, in the absence of a tax burden reduction, exceptional conditions for pay restrictions are not met.
8. The appellant also points out that the contested provisions have not been dealt with by the representatives of the judiciary, which is contrary to the previously expressed opinion of the Constitutional Court. The salary restrictions constitute a form of intervention in one of the components of judicial independence and are not allowed to take place unilaterally [cf. The finding of 10.7.2014 sp. zl. ÚS 28 / 13 (N 137 / 74 SbNU 93; 161 / 2014 Sb.)]. In addition, the explanatory note to Act No 349 / 2023 Coll. does not contain any comprehensive economic analysis, although the Constitutional Court also considers that the intervention in the material position of judges is a necessary part of the proper justification.
9. Finally, the appellant asked for priority consideration of the submitted proposal. In the light of the alleged multiplicity of litigation, which may depend on the decision in the case under examination, and the fact that the operative part of the findings of the Constitutional Court does not have retroactive effects, the duration of the proceedings may increase the damage caused by non-constitutional intervention.
Comments on the proposal
10. The Constitutional Court has sent a motion for observations by Parliament as a party to the proceedings (Paragraph 69 (1) of the Law on the Constitutional Court) and the Government and the Ombudsman as potential interveners (Paragraph 69 (2) and (3) of the Law on the Constitutional Court). The Government entered the proceedings as an intervener, the Ombudsman informed the Constitutional Court that he would not use this authorisation.
11. The position of the interveners are also held by the Municipal Court in Brno, the District Court for Prague 4 and the District Court for Ostrava. These courts also initially submitted applications for annulment of the contested provisions. As their proposals had to be rejected as inadmissible for the litispendence obstacle (order of 7.5.2024 sp. zn. Pl. ÚS 7 / 24, of 24.4.2024 sp. zn. Pl. ÚS 8 / 24, of 24.4.2024 sp. zn. Pl. ÚS 9 / 24 and of 24.4.2024 sp. zn. Pl. ÚS 12 / 24; decision of the Constitutional Court is available at https: / / nalus.ujud.cz), these general courts have acquired the right to take part in this procedure in the status of secondary parties (§ 35 (2). The abovementioned courts decided to use this authorisation, referring to the submissions made by them in cases where their applications were found inadmissible.
Observation of Parliament's chambers
12. In its observations, the Chamber of Deputies stated that the contested provisions were inserted into the legal order by Act No 349 / 2023 Coll., and summarised the course of the hearing and approval of its proposal. The first reading took place at the 71st meeting of 12 to 14 July 2023, in which the press was ordered to discuss the Committee on Budgets as a Committee on Social Policy, Economic Committee, Constitutional Law and the Committee on Public Administration and Regional Development. The Committee on Budgets discussed the draft law and issued a resolution on 31 August 2023 with amendments delivered to Members as press 488 / 4. The Committee on Social Policy discussed the proposal and issued a resolution to Members on 30 August 2023 as press 488 / 1. The Committee on Economic Affairs discussed the proposal and issued a resolution on 31.8.2023 with amendments delivered to Members as press 488 / 3. The Constitutional Legal Committee discussed the proposal and issued a resolution to Members on 1 September 2023 as press 488 / 6. The Committee on Public Administration and Regional Development discussed the proposal and issued on 1 September 2023 a resolution to Members as press 488 / 5.
13. The second reading took place at the 75th meeting of 7 September 2023, all the amendments tabled were processed as press 488 / 7. The following third reading was held at the 77th meeting of the Chamber of Deputies on 22 and 27 September 2023 and on 11 and 13 October 2023. Of the 194 Members present it was for 108 and against 86. The motion was accepted.
14. The Chamber of Deputies passed the bill to the Senate on 16. 10. 2023, which it classified at its 18th meeting on 8. 11. 2023. The Senate approved the bill. The bill was delivered to the President for signature on 9 November 2023. The President signed the law on 22 November 2023. The law was declared on 12.12.2023 in the Collection of Laws in the amount of 163 under number 349 / 2023 Coll.
15. The Chamber of Deputies concluded that the law was passed by the necessary majority of Members of the Chamber of Deputies, signed by the relevant constitutional authorities and duly declared. It therefore expressed its belief that the law adopted was not contrary to the constitutional order. However, it is for the Constitutional Court to decide on the constitutionality of the contested provisions.
16. In its observations, the Senate first noted that, in accordance with the settled case law of the Constitutional Court, the amendment of the law does not have a separate legislative existence but becomes part of the amended legislation and as such its constitutionality is also assessed. He also summed up the course of the discussion of Bill No. 349 / 2023 Coll.
17. Bill No. 349 / 2023 Coll. was referred to the Senate by the Chamber of Deputies on 16 October 2023. In the Senate, the proposal was discussed as press press No 161 of the 14th term of office. The proposal was discussed by the Committee on Economy, Agriculture and Transport as a committee guaranteeing 1.11. 2023. The contested regulation of § 3 (3) of Act No. 236 / 1995 Coll., as amended, was not discussed. In view of the content of the debate on other parts of the proposal, the Committee on Economic, Agriculture and Transport has not adopted a resolution on the proposal. The proposal was further discussed by the Committee on Constitutional Law on 1.11.2023. Even when discussing this committee, the contested regulation was not thematic, and by Resolution 107, the Committee recommended approving the Senate's draft law as referred to by the Chamber of Deputies. The proposal was also addressed by the Committee on Territorial Development, Public Administration and the Environment on 1 November 2023. The contested regulation was not discussed in the debate. In view of the course of the debate on other parts of the proposal, the Committee, by Resolution 59, recommended that the Senate return the bill to the Chamber of Deputies with amendments. The Senate dealt with the bill at its 18th meeting in its 14th term of office on 8.11.2023. In the context of a comprehensive general debate led in particular to other parts of the draft law, Senator Věra Procházková made an amendment to Article 3 (3) of Act No. 236 / 1995 Coll., as amended. It accentuated that although the need for a social response to the unfavourable budgetary situation and the salary restrictions may be generally accepted in the case of the salary provided for in Act No. 236 / 1995 Coll., as amended, cannot be taken into account at the same time from the former case law of the Constitutional Court, which has described similar State interference in the salary of judges as unconstitutional. In view of this, it has indicated that a possible amendment was tabled in a detailed debate, which would maintain a coefficient for calculating the salary base for judges of 3 times.
18. Following the conclusion of the general debate, in accordance with Article 108 (2) of Act No. 107 / 1999 Coll., on the Rules of Procedure of the Senate, a draft law was approved by the Chamber of Deputies on the draft Constitutional Law Committee. In vote 7, the 74 were in favour of the proposal 53, against which there was 10, abstained 11. The proposal was therefore adopted, and the Senate concluded the bill.
19. The Senate concluded that it acted within the limits of the Constitution and the constitutional procedure when discussing the proposal. However, it is entirely up to the Constitutional Court to assess the compliance of the contested provisions with the constitutional order.
Government observations
20. According to the Government, the contested provisions are not unconstitutional and therefore proposed that the Constitutional Court reject the application for annulment.
21. The case law of the Constitutional Court gives rise to three conditions, the fulfilment of which is a prerequisite for a constitutionally conformal salary freeze. Stopping the growth of the salary base on the basis of Act No. 349 / 2023 Coll. is fulfilling it.
22. Firstly, there is no reduction in the nominal amount of the salary. The contested legislation does not reduce the salary base but freeze it and then slow down growth. In this sense, it is necessary to distinguish between, on the one hand, the situation where the existing level of the salary base is reduced and, therefore, the decline in the nominal amount of the judge's salary and, on the other hand, the situation where there is a temporary cessation of the level of the salary base, which the Constitutional Court found to be constitutional in the past under certain circumstances. Law No 349 / 2023 Coll. established a decrease from a coefficient of 3 times to 2,822 times to correspond to the rate of growth of average wages between 2022 and 2023. As a result, the salary base was effectively frozen for 2024. This procedure has been selected to follow the step increase in the salary base after the freezing. The coefficient was designed to bring about even marginal growth (and not decline) of the salary base. For the year 2023, according to the Communication of the Ministry of Labour and Social Affairs No. 391 / 2022 Coll. was set at CZK 113 709, for the year 2024 was determined at CZK 113 775, based on the Communication of the Ministry of Labour and Social Affairs No. 448 / 2023. it increased by 66 CZK.
23. The Government considers that, for the reasons set out above, no undue interference with the acquired rights of judges or their legitimate expectations could occur. The scope of Law No 349 / 2023 Coll. was focused purely on the future, with the protection of acquired rights being enjoyed, according to the Constitutional Court, only by public service obligations already paid. With reference to the finding of 15.5.2012 sp. zn. Even the possible legitimate expectations of the expected increase in the salary base in 2024 in part 2023 could not in itself have resulted in the inconstitutionality of the contested scheme. However, it is doubtful whether legitimate expectations could have arisen in the context of a public debate on the state budget situation and the proposed consolidation measures. Moreover, the legality of the legal rules governing the level of the salary of judges was not guaranteed to the judges in any authoritative form. On the contrary, the austerity measure under consideration in the area of judicial pay was discussed several times during 2023 with the participation of judges.
24. Secondly, there is no permanent reduction in the salary base. The suspension of pay growth rate is only temporary and the freezing of the salary base by Act No 349 / 2023 Coll. is designed only for 2024. However, it can be argued by the appellant that similar salary restrictions have been introduced in previous years (in 2021 and 2022), it cannot be overlooked that they are measures set out in comprehensive austerity measures against public employees whose restrictive effect is limited to those years only (2021, 2022 and 2024). Moreover, in the past, the Constitutional Court, for objective reasons, has addressed [cf. the finding of 2 March 2010 sp. zn. ÚS 13 / 08 (N 36 / 56 SbNU 405; 104 / 2010 Coll.)]. In 2023 there was a significant increase in the pay base of judges, namely from CZK 100 872 to CZK 113 709.
25. Thirdly, the Government states that the suspension of wage growth rates is not arbitrarily directed against judges. On 1 January 2024, the so-called salary tables according to the annexes to Government Regulation No 341 / 2017 Coll., on the pay ratios of employees in public services and administration, as amended, Government Regulation No 304 / 2014 Coll., on the pay ratios of civil servants, as amended, Government Regulation No 419 / 2022 Coll., setting out the scale of basic charges for members of the Security Corps, and Government Regulation No 59 / 2015 Coll., on the service tariffs and on the special allowance for professional soldiers, as amended. The Constitutional Court has in the past examined the procedure for freezing judicial salaries in situations where wages were only increased in selected professions and has not interrupted the freezing of judicial salaries until the payment of salaries was generally increased among public servants.
26. Furthermore, there is no appropriate reference by the appellant to the forthcoming amendment of Decree No. 177 / 1996 Coll., on the remuneration of lawyers and the compensation of lawyers for the provision of legal services (the bar tariff), as amended. Lawyers are not civil servants and cannot be compared to the salaries of judges. There is also a difference in the way in which the non-contractual remuneration is not based on indexation but on irregular jump increases. Similarly, there is an odd argument about the increase in the minimum wage when the staff receiving it cannot be compared with the judges as a high-income group. Moreover, the increase in the minimum wage is also linked to the issue of the indexation of the compulsory remuneration derived from it. While a potentially relevant increase in the salary of educational staff in regional education, doctors and members of the Security Corps is the issue of long-term state strategic priorities. The Constitutional Court, in the finding of sp. zn. The increase in the salaries of members of the security forces is not the government's intention, but the promise of the Home Secretary, Vít Austusan, within the political meeting. Even if it were to occur on 1 October 2024, it would only be a more timely increase that would be expected by default during 2025.
27. The contested legislation also meets the requirements of the principle of proportionality. It does not interfere with judicial independence, either directly or indirectly, by creating personal pressure on judges. It also does not interfere with the material security of judges when judicial salaries show a sustained increase in the medium to long term. Independence, moreover, is not an institution solely testifying to judges, but is also present with other officials.
28. According to the Government, the adjustment cannot be found to be disproportionate even from the point of view of the effects of the disease covid-19. This disease occurred without exception on the whole company in the Czech Republic. In the case of judges, the exposure rate was not higher than that of other employees, with salaries growing only to selected public staff groups significantly affected by this disease.
29. Expansion of public expenditure in 2021 (i.e. at the time of the disease pandemic covid-19) is not relevant for assessing the issue of budgetary savings since 2024. Failure to achieve optimal fiscal savings does not cause wage restrictions to happen without further unconstitutionality. The funds thus saved are an unnecessary part of the state budget. Nor can it be argued that less income or expenditure is, in total, devoid of substance and therefore completely unnecessary. The sum of small items may be more significant than one larger item. Moreover, the contested legislation was a response to an unfavourable situation, i.e. the need to reduce the so-called structural deficit of the state budget.
30. According to the Government, in accordance with the case law of the Constitutional Court, the measures taken were repeatedly discussed with the representatives of the judiciary under the contested legislation. On 9 May 2023, a meeting took place between the Minister of Justice and the management of the two supreme courts and the President of the Judicial Union on the possibility of austerity measures. The reduction of the calculation coefficient of judges to 2.82 was the subject of consultations with these judicial officers on 18.5.2023 and 29.5.2023, with the participation of senior and regional courts. Moreover, the judges' salaries were discussed on 6 September 2023 at the subcommittee on justice, where the intention to reduce the calculation coefficient was presented by Deputy Minister of Justice Antonín Stanislav.
31. Finally, the Government pointed out that Law No 349 / 2023 Coll. does not require economic analysis. Economic analysis in the sense of the finding sp. zn. Freezing a salary base for one year is not such an intervention.
Observations of the Municipal Court in Brno
32. According to the Municipal Court, Paragraph 3 (3) of Act No. 236 / 1995 Coll. as amended by Act No. 349 / 2023 Coll. is contrary to the Constitution and therefore proposed that the Constitutional Court annul the word "2,822 times" contained in that provision. According to the Municipal Court, the conflict with the Constitution is determined by two relatively separate headings, namely by serious legislative defects in the legislative process in the adoption of the law and at the same time in the content of the law, since, contrary to Article 1 (1) in conjunction with Article 82 (1) of the Constitution, it interferes with judicial independence.
33. The Municipal Court also summarized the course of the legislative process. It pointed out that the case law of the Constitutional Court required the legislator to obtain the relevant position of the representatives of the judicial authority upon accession to the salary restrictions, which should also be included in the explanatory memorandum. However, the examination of the government's proposal took place in a hearing held at the Ministry of Justice on 9 May 2023 where the representatives of the judiciary were generally aware that the government was considering "some" wage restrictions without a specific proposal to discuss or comment. On 12 May 2023, an article was published on the Internet with an annex to the section version of the government proposal reducing the multiple of the average wage from three to two times. Even later, no negotiations or discussions with the judiciary officials with the government were conducted. Nor does the service of the application to the Supreme Court and the Supreme Administrative Court in the context of a brief comment procedure change this, as this was not preceded by its discussion with the representatives of the judiciary.
34. The reason report on the government proposal does not meet constitutional requirements. In the find sp. zn. Pl. ÚS 28 / 13 The Constitutional Court stated that intervention in the position of judges must be duly justified, including a comprehensive economic analysis. Such analysis must be part of the explanatory memorandum to the draft law. The explanatory note to Act No. 349 / 2023 Coll. did not meet such requirements, is brief and flat-rate, with only general proclamation. It merely selectively argues for the past findings of the Constitutional Court. In addition, the Constitutional Court, in its decision of 7 September 2010, sp. zn. With the finding of sp. zn. Both reductions are nominally not distant.
35. As regards the material inconsistency of the contested provision with the Constitution, the Municipal Court pointed out that the case law of the Constitutional Court implies a requirement for the payment ratios of judges in a broad sense as a stable, non-variable variable, not a moving factor (finding sp. zn. Even a partial withdrawal of the already achieved level of material security could be difficult to address by the Constitutional Court, especially if the income of other "servants' of the State [the finding of 3.5.2012 sp. zn. ÚS 33 / 11 (N 95 / 65 SbNU 259; 181 / 2012 Coll.)] were not affected at the same time. The contested regulation has resulted in such a reduction because, if it had not been for the reduction of the multiple of the three times to 2,822 times (i.e. by 6%), the judicial salary base for 2024 would have also increased by 6%. The salary base for 2024 is CZK 113 775 (Communication of the Ministry of Labour and Social Affairs No. 448 / 2023 Coll.), which is the product of the number 2,822 and amount of CZK 40 317 as the average wage in the national economy reached according to published data of the Czech Statistical Office for the previous calendar year 2022. Without the adoption of the contested law, the salary base for 2024 would be CZK 120 951 (CZK 40 317 as the average salary in the national economy x 3). The difference between these pay bases (CZK 120 951 and CZK 113 775) is CZK 7 176 in 2024, i.e. 6%. Moreover, the contested legislation consistently makes the difference in the salary base between the above-mentioned multiples of the average wage (three times and 2,822 times) 0,178, i.e. 6%.
36. Moreover, the resulting reduction of the multiple to the exact value of 2,822 cannot by its nature be the result of a serious analysis of the amount of the judge's salary for the future, but it is the short-cut result of the current mathematical game with numbers. There is no reason for a permanent reduction in the multiple of the average wage, even from the perspective of the present case-law of the Constitutional Court. The structure of the salary base three times the average wage (in the non-business sphere) has already been positively evaluated by the Constitutional Court [the finding of 16.1.2007 sp. zn. ÚS 55 / 05 (N 9 / 44 SbNU 103; 65 / 2007 Coll.)]. After all, the temporary salary restriction 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 formalities of the prosecutors, and amending and supplementing Act No. 143 / 1992 Coll., on the salary and remuneration of the emergency work in the budget and in certain other organisations and bodies, as amended, for the year 2010, which had been temporarily reduced by 4%, the Constitutional Court of First Instance found to be unconstitutional. Similarly, it considered unconstitutional wage restrictions to be a reduction in the average wage in the base (cf.
37. The restrictions on the salaries of judges introduced by Law No 349 / 2023 Coll. are, according to the Municipal Court, contrary to the principle of proportionality. The contested provision only reduces the salary of judges, even permanently. There was no (let alone a permanent) salary reduction for other groups of employees, some of them were increased - specifically for government, teachers, doctors, municipal politicians and representatives.
38. Law No 349 / 2023 Coll. is not justified by the "exceptional" circumstances, the existence of which the Constitutional Court makes wage restrictions against judges conditional. The explanatory note to Act No 349 / 2023 Coll. also contains an estimate of savings. Even if the savings of the state budget on the salaries of judges as a result of the contested restriction would be about CZK 500 million, the projected deficit of the state budget in 2024 is less than CZK 252 billion.
39. The construction of a salary base as three times the average wage has in the past been found to be constitutionally conformal by the Constitutional Court. It is built on the solidarity principle of a pay machine that reflects employee wage developments.
40. The Municipal Court further pointed out that, as amended, the construction of the salary base was amended by the Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the function of representatives of the State Government and of certain state bodies and judges and Members of the European Parliament, by following up on the average wage in the national economy and not on the average wage in the non-business sector. This change may also be regarded as a salary restriction against judges, which is negative in terms of the salary of judges. In the absence of changes to the structure of the salary base as a result of the adoption of Act No. 587 / 2020 Coll., according to which the salary base since 2021 depends on the average salary in the national economy (in 2019 it was CZK 34 111), the judicial salary base for 2021 would amount to CZK 102 333 [in the absence of a salary restriction (also) carried out by Act No. 587 / 2020 Coll. in the form of a one-off establishment of the salary base for that amount]. At the moment, judges' salaries are becoming a political issue, despite the historical political consensus to determine the salary of legislative, executive and judicial officials through a "pay machine."
41. The Municipal Court further stated that the judges were involved in the savings of the state budget in the past as no other professional group, as pointed out by the Constitutional Court in the sp. zn. Even the contested legislation is justified by the need for savings on the expenditure side of the state budget. In addition, according to the City Court, the payment restrictions in 2021 justified by the "adverse economic situation of the State, enhanced by the effects of the Covid-19 epidemic, the deficit rate of the State budget and the resulting savings needs on the spending side 'do not correspond to later information, according to which almost 90% of the annual increase in State expenditure was not related to expenditure incurred in relation to the Covid-19 disease. Moreover, in these years, the State was extremely generous in paying remuneration in ministries, administrative offices and other state-run institutions. The City Court also added to this claim the remuneration tables for 2021 and 2022.
42. Moreover, the contested provisions interfere with the principle of the independence of judges, as this is arbitrary interference by the legislature in the area of the material security of judges. The independence of judges is subject to moral integrity and professional standards, but is also linked to their adequate material collateral. At the same time, the substitutability of such interventions to the principle of independence of judges is justified by the exclusion of legislative or executive power from judicial decisions.
43. The inconstitutionality of Act No. 349 / 2023 Coll. is also based on historical circumstances. It was adopted to deny the reasons and motives for which the judges concluded an agreement with the State in 2015 to waive most of the salary entitlements for the years 2011 to 2014. As a result of disputes between judges and the State following the annulment findings, Pl. By concluding these agreements in 2015, the state budget saved around CZK 4 billion. The agreement was concluded that in the future there would be no interference in the salary of judges.
44. Finally, the Municipal Court stated that the contested Law No 349 / 2023 Coll. marks the peak of targeted, long-standing and gradual erosion of the material security of judges whose work is absolutely necessary for the functioning of the democratic rule of law, despite the fact that the work of judges is assessed very well.
Expression of the District Court for Prague 4
45. The Circuit Court in the references proposed the annulment of Paragraph 3 (3) of Act No. 236 / 1995 Coll., as amended, in the words "2,822 times the average gross monthly nominal wage on the converted number of employees in the national economy achieved according to published data of the Czech Statistical Office for the preceding calendar year." According to the Circular, that legislation is contrary to constitutional order and to the established decision-making practice of the Constitutional Court.
46. In the past, the Constitutional Court has repeatedly opted for the repeal of legislation establishing restrictions on the salaries of judges. In doing so, it was only in cases where exceptional circumstances were in its possession. In doing so, it has designed the general criteria for assessing such changes by the legislator. These include, in particular, the creation of institutional assumptions for the independence of courts, which may also be material in nature [cf. the finding of 15.9.1999 sp. zn. ÚS 13 / 99 (N 125 / 15 CollNU 191; 233 / 1999 Coll.)]. Adequate material collateral is also linked to the moral integrity and professional level of judges. Although judges are not in a "legal and economic vacuum," the legislature's margin for restrictions on the salaries of judges is narrower, and the intervention in their salaries must not be due to indiscretions or violations of the principle of legal certainty. The intervention can only take place for serious reasons in the context of an overall appropriate adjustment across the entire sphere of civil servants, must be based on the principle of proportionality and be justified by exceptional circumstances. The Court of First Instance has consistently held that the measure under appeal does not constitute an arbitrary and disproportionate interference with the substantive security of judges. It permanently and realistically reduces their salaries, is not justified by exceptional circumstances, and is already a number of interference by the legislator in the judicial fees over the last few years.
47. According to the Circuit Court, the contested adjustment of the judge's salary against the average wage decreases permanently. Although the legislator did not express this openly in the explanatory memorandum, the legislation was again adopted with the intention of "rectifying" the legislator's too high judicial pay. In the past, similar pay restrictions were found by the Constitutional Court to be unconstitutional. In addition, according to the Circular Court, the decision-making practice of the Constitutional Court allows, in exceptional circumstances, only temporary "freezing" of judicial salaries. Moreover, the possibility of permanently reducing judges' salaries creates potential scope for an unacceptable influence of executive and legislative power in the future. Similarly, the view expressed in the explanatory memorandum to Act No 349 / 2023 Coll., that the pay restrictions also affect the representatives of the other elements of the State. The legislature, with the amendment made by Law No 587 / 2020 Coll. decided to establish the salaries of judges and other officials on average wages in the national economy, not on average wages in the non-business sector. However, after that change, pay restrictions against judges can no longer be justified by stagnation of growth in most public administrations in 2024. The intervention is all the more serious when any additional demand or non-interest remuneration cannot be used to increase the revenues of judges. Moreover, a solid legal mechanism for calculating judicial salaries does not mean ensuring "eternal growth" of salaries, but reflects the state of remuneration in the economy, thereby ensuring the necessary solidarity of judges with current budgetary needs. Moreover, the restrictions imposed by the contested legislation took place in a situation where average annual inflation in the Czech Republic was 10,7% in 2023, and the judges were thus "seriously poorer."
48. According to the Circuit Court, pay restrictions are not justified by exceptional circumstances. The contested legislation constitutes a broader consolidation package with a view to reducing the structural deficit of the state budget. It cannot be concluded from the explanatory memorandum or other circumstances that this need would have been triggered by unexpected exceptional events. However important current or recent events are, they are not exceptional events. The consolidation package is to implement long-term, systemic measures. The way of making savings in the state budget, however much the legislator's political considerations, must respect constitutional limits, including the independence of judges and the division of power.
49. The District Court considers the legislator's procedure arbitrary in the context of repeated interference in the material security of judges. Already in the find sp. zn. Pl. ÚS 28 / 13 The Constitutional Court has accused the legislators of continuous interference in the material status of judges since 1997, while increased pressure has also been shown recently in 2021 and 2022. At this time the provisions of Sections 3b and 4 of Act No. 236 / 1995 Coll., as amended, were amended and the pay base of judges was fixed at CZK 100 872 from 1.1.2021 to 31.12.2021 and from 1.2.2022 to 31.12.2022. Repeated interventions in the remuneration of judges create a state of uncertainty, which is completely unacceptable in terms of the independence of judges and the division of power.
Observation of the District Court in Ostrava
50. The District Court stated that there is no longer a sustainable classic normative idea that the judge is merely a mechanical tool for applying the legal standards, the meaning of which is clearly determined by the legislator. When finding the right, its content completes in concreto a principled value argument. If an independent judge is to perform his constitutional role properly, then any pressure on his decision-making by legislative and executive power must be eliminated. I pursuant to Article 82 In the performance of their duties, judges shall be independent and their impartiality shall not be jeopardised. It follows from the finding of sp. zn. The contested legislation continues to reduce the level of the judicial salary achieved. The amount of the multiple thus introduced is contrary to the right of judges to stable material security, arbitrarily interfering with judicial independence and is therefore unconstitutional. The irrevocability of material security is also due to the finding of Pl.
51. The District Court also pointed out that, although the legislator's objective is to make even higher levels of government debt reduction legitimate, it must do so in accordance with constitutional order. A number of other instruments have been offered to reduce government debt. In accordance with the principle of proportionality, the legislator should have chosen an alternative regulatory instrument which minimises the constitutional protection of value.
52. According to the District Court, there are also doubts as to whether legitimate objectives have been pursued by pay restrictions for 2024. The salary restrictions also took place in 2021 and 2022. The contested legislation is already constantly reducing the judicial salary and may lead to a gradual reduction in the importance and prestige of the judicial profession.
53. In this context, the District Court also referred to the judgment of the European Court of Human Rights in the case of Cubate and others against the Czech Republic of 22 June 2023 No 61721 / 19, in which the Court considered it worrying how long-term the Czech legislature has moved the salaries of judges, since it deliberately acted unconstitutionally and crossed the limits resulting from the case-law of the Constitutional Court.
Replication of the applicant
54. The Constitutional Court sent the observations of the two chambers of Parliament and the Government to reply to the appellant. According to the appellant, the government's impracticable reference to the finding of Pl. ÚS 13 / 08. In this finding, the Constitutional Court took into account the fact that, despite the reduction in the judge's gross salary, their net salary was increased as a result of tax reform and tax reductions. In the present case, the situation is the opposite, when, despite small nominal increases in gross salary, the judge's net salary has decreased. Furthermore, the appellant referred to the finding of sp. zn. This guarantee was distorted when politicians' salaries were tied to judges' salaries in such a way that, when the Constitutional Court's pay restrictions were abolished, politicians' salaries were increased.
55. The Government's argument that interventions are not aimed solely at judges does not correspond, according to the applicant, to statistical data. Given the establishment of a wage base on wages in the national economy, any stagnation of wage growth in the national economy would be reflected in the salary of judges and there would be no reason to interfere with the calculation mechanism. However, between 2022 and 2023, the average gross wage increased. Nor can it be agreed with the Government's view that an increase in remuneration according to the legal tariff will not lead to an increase in the income of lawyers. The increase in turnover at unchanged costs leads to an increase in profits, which, in the case of a provision by a lawyer, will lead to a significant increase in State costs. If the government justifies increasing the salaries of doctors and teachers with a strategic priority, it implicitly says that justice is not such a priority.
56. The appellant further pointed out that, through pay restrictions, there is pressure on judges to decide. After all, even candidates for a Constitutional Court judge are regularly asked in the Senate committees how they would have decided on the payment actions of judges. In addition, in the Czech Republic, the Minister of Justice has strong authority over judges, which should be linked to non-interference in the independence of the judiciary.
57. The government's alleged discussion with the representatives of the judiciary only took place when, on 9 May 2023, the representatives were generally familiar with the intention of "some" wage restrictions, while already on 12 May 2023 there was an article on the Internet with a section text of the government bill, including a reduction of the average wage from three times to two times. Moreover, the appellant does not understand the Government's argument that, when the contested legislation was adopted, it was not necessary to draw up an economic analysis when it was not an intervention in the material security of judges. This is an intervention, which is not devoid of purpose. The cumulative effect of salary restrictions in the years 2021, 2022 and 2023 represents hundreds of thousands of crowns. In addition, judges have limited opportunities to make a living compared to other professions. As a result of high inflation and restrictive measures, their pension savings are limited.
58. In conclusion, the appellant stated that the context and the way in which the current salary restrictions were adopted constituted a reason to deviate from the case law of the Constitutional Court [cf. the findings of sp. zn. Pl. ÚS 28 / 13 and sp. zn. The Constitutional Court, when accepting these findings, was based on a thesis on the protection of the state budget by an unforeseen intervention that would lead to a further increase in tension between society and judges. But the repeated acceptance of these tendencies leaves the legislator the opportunity to "save" and to delegate responsibility for failing to manage the state budget to judicial power.
Observations of the City Court in Brno on the Government's observations
59. The Constitutional Court sent the observations of the two chambers of Parliament and the Government of the Municipal Court in Brno, the District Court for Prague 4 and the District Court in Ostrava as interveners. Only the Municipal Court in Brno spoke in the Constitutional Court designated by the deadline.
60. According to the municipal court, the government incorrectly assesses the consequences of the adoption of Law No 349 / 2023 Coll.. This is a permanent reduction in the level of the judicial salary achieved because, if it were not for a reduction of 3 times the amount of 2,822 (i.e. 6%), the judicial salary base would also increase by 6% for 2024. It follows from the case law of the Constitutional Court that the pay ratios of judges in a broad sense are to be stable, not a variable. In the past, the Constitutional Court has repeatedly abolished salary restrictions, both in the case of a percentage of a permanent salary reduction of 4% per calendar year (cf. sp. zn. Pl. ÚS 12 / 10) and in cases of a reduction of multiple of the average salary in the salary base (cf. sp. zn.
61. The Municipal Court considers the government's information on the "significant" growth of the judicial salary base in 2023 misleading and purposeful. The increase in the salary base for 2023 took place after almost 3 years of its freezing at 2020 level, and it is therefore logical that after such a long period of time it had to have a jump increase. According to the municipal court, the actual construction of the judicial salary base clearly shows the systemic solidarity of the judge's salary. In addition, in order to assess the development of the salary of judges, a comparison should be made between the level of the salary base and not the salary of a particular judge, taking into account the pay coefficient according to the number of years counted.
62. The Municipal Court also recalled the principle of proportionality, which means that wage restrictions must not affect only or above all judges. The contested provisions are directly contrary to this principle. They only reduce the salary to judges [and to a number of groups: prosecutors and representatives within the meaning of § 1 (a) to (f) of Act No. 236 / 1995 Coll., as amended]. No other group of employees whose revenues are covered by the State budget or public budgets had a salary reduction, but some groups had an increase.
63. The contested law considers the municipal court to be an expression of the arbitrariness of the legislator, contrary to the principle of proportionality, is not justified by exceptional circumstances and, in consequence, infringes the principle of independence of judges. Moreover, it is clear from the Government's observations that the Government sees the judge as "public employee 'or" civil servant'. However, it is overlooked that the judge is not an employee (neither state nor public). Contrary to a staff member who performs dependent work according to the instructions of the employer, the judge is not subordinate to the employer, to the State or to any other body (Article 82 of the Constitution) and is not bound by their instructions. The judges and the powers of the courts are not subordinate to executive or legislative powers (Articles 81 and 82 of the Constitution), which manifests itself in a certain limit to the possibility of intervening in the position of judges.
64. The municipal court further emphasised that there was no discussion of the government bill with the power of the court. The pay restrictions of judges will always mean a form of interference with judicial independence, which must not be unilaterally. The reason report on the contested legislation does not contain a comprehensive economic analysis or opinion of the representatives of the judiciary, although the Constitutional Court places these requests on the grounds of reports on draft laws interfering with the material status of judges.
Abandonment of oral proceedings
65. 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 Constitutional Court Act, it decided on a case without a regulation of oral proceedings.
Text of the contested provisions
66. Paragraph 3 - from which paragraph 3 is contested in the words "2,822 times" - of Act No. 236 / 1995 Coll., as amended, reads:
Salary
(1) The salary is a monthly cash payment of the amount and under the conditions laid down below.
(2) The salary shall be determined as the product of the salary base and the salary coefficient determined according to the responsibility and complexity of the function performed. The salary is rounded up to CZK 100.
(3) The salary base for judges is 2,822 times the average gross monthly nominal wage for the converted number of employees in the national economy from 1 January to 31 December of the calendar year of the Czech Statistical Office for the preceding calendar year. the salary base for representatives shall be 83,3% of the salary base for judges from 1 January to 31 December of the calendar year. The salary base is rounded to the top of the crown. The level of the salary base for the relevant calendar year shall be declared by the Ministry of Labour and Social Affairs in the Collection of Laws and International Treaties (1). ';
67. Article XXIX of Law No 349 / 2023 Coll. reads:
In Article 3 of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of State authority and of certain state bodies and judges and Members of the European Parliament, as amended by Act No. 309 / 2002 Coll., Act No. 425 / 2010 Coll., the Constitutional Court's finding, published under No. 181 / 2012 Coll., Act No. 11 / 2013 Coll., Act No. 587 / 2020 Coll. and Act No. 18 / 2022 Coll., paragraph 3 reads:
, (3) The salary base for judges shall be 2,822 times the average gross monthly nominal wage for the converted number of employees in the national economy from 1 January to 31 December of the calendar year of the Czech Statistical Office for the preceding calendar year; the salary base for representatives shall be 83,3% of the salary base for judges from 1 January to 31 December of the calendar year. The salary base is rounded to the top of the crown. The level of the salary base for the relevant calendar year shall be declared by the Ministry of Labour and Social Affairs in the Collection of Laws and International Treaties (1). ';
Proceedings before the Constitutional Court
68. The Constitutional Court first assessed whether the procedural conditions of the procedure were fulfilled.
69. According to Article 64 (3) of the Law on the Constitutional Court, the court is entitled to apply 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.
70. 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 of 23.10.2000 sp. zn. Pl. ÚS 39 / 2000 (U 39 / 20 SbNU 353) and the finding of 6.3.2007 sp. zn. Pl. ÚS 3 / 06 (N 41 / 44 SbNU 517; 149 / 2007 Sb.), paragraph 26; the finding of 28.1.2014 sp. zn. Pl. ÚS 49 / 10 (N 10 / 72 SbNU 111; 44 / 2014 Sb.), paragraph 17; the finding of 16.5.2018 sp.
71. The District Court shall decide whether the applicant - the judge of the Regional Court - is entitled to the payment of the additional salary and flat-rate reimbursement of expenses for the month of January 2024. The amount of the salary and compensation depends on the salary base determined for the period under review by the contested Section 3 (3) of Act No. 236 / 1995 Coll., as amended, as 2,822 times the average gross monthly wage for the previous year (simplified). The application of this provision is therefore immediate and unavoidable. This provision precludes the district court from basing itself on a salary of 3 times the average gross monthly salary for the previous year, that is to say, the earlier adjustment to the judicial salary base, which the district court considers to be constitutionally conformal. Therefore, in the case of this provision, the procedural assumptions of the procedure are fulfilled.
72. Furthermore, the Constitutional Court examined whether the District Court could directly challenge Article XXIX as a provision of amending Act No 349 / 2023 Coll.
73. As a rule, according to the case law of the Constitutional Court, it is not possible to seek annulment of amending legislation or its individual provisions, since such a regulation and its provisions generally do not have a separate legal existence. They gain this only as part of the amended legislation, and it is precisely against it that the motion for annulment must be directed. However, there are exceptions to this rule. The amendment or its provisions may be challenged directly if it is argued that they have not been adopted within the limits of the Constitution or the constitutional procedure. Those provisions of the amendment which do not form part of the amended Regulation can also be directly challenged, for example, transitional provisions [see in more detail the findings of 2.4.2013 sp. zn. ÚS 6 / 13 (N 49 / 69 CollNU 31; 112 / 2013 Coll.), paragraphs 15 to 16 and the caselaw cited there].
74. The contested Article XXIX of Act No 349 / 2023 Coll. has the character of an amending provision which has become part of the amended Act. The appellant, together with a part of the interveners, contends that the contested provision was not adopted in a constitutionally prescribed manner, since it was not dealt with with with the power of the court. However, as will be explained below, this claim in itself cannot in itself lead to the annulment of the contested scheme for procedural reasons. This objection does not therefore open up the scope to review the amendment. Therefore, in relation to the contested Article XXIX of Law No 349 / 2023 Coll., the general rule applies that the amendment itself cannot be reviewed and therefore the proposal in this section must be rejected.
75. The Constitutional Court concludes that procedural assumptions are given only for the review of § 3 (3) in the words "2,822 times" of Act No. 236 / 1995 Coll., as amended.
Review of the procedure for the adoption of the contested provision
76. The Constitutional Court also examined whether the contested provision was adopted within the limits of the constitutional competence and the constitutionally prescribed manner (Paragraph 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.).
77. The contested provision is the result of an amendment carried out by Act No 349 / 2023 Coll. Data on the procedure for the adoption of this law contained in the statements of the Chamber of Deputies and the Senate correspond to publicly available documents relating to the legislative process. From the point of view of the procedure, there is only a dispute between the parties as to whether the draft law was discussed in advance with the power of the court.
Dissolution of a motion with the power of the court
78. According to the appellant and part of the interveners, the requirements of the Constitutional Court's caselaw were not complied with and the application was not dealt with with with the power of the court. On the contrary, the Government argues that the proposal has been sufficiently discussed. On 9 May 2023, a meeting took place between the Minister of Justice and the management of the two supreme courts and the President of the Judicial Union on the possibility of austerity measures. The reduction of the calculation coefficient of judges to 2.82 was the subject of consultations with these judicial officers on 18.5.2023 and 29.5.2023, with the participation of senior and regional courts. The judges' salaries were also discussed on 6 September 2023 at the subcommittee on justice, where the intention to reduce the calculation coefficient was presented by Deputy Minister of Justice Antonín Stanislav.
General considerations
79. The present case law of the Constitutional Court has repeatedly emphasised that the judicial authority should be given the opportunity to comment on the draft law on restrictions on judicial salaries. The Constitutional Court has already stated, in its finding in sp. zn. In the findings sp. zn. These conclusions were followed by the finding of sp. zn.
80. The Constitutional Court has specified how the pay restrictions are to be dealt with in advance with the power of the court, as well as the consequences associated with failure to comply with this requirement, in the judgment in Pol. It therefore refers to its conclusions in detail and only summarises them briefly in the present case.
81. Infringement of the requirement to negotiate with the power of the court is not in itself a ground for the annulment of the law and may only become a derogatory ground in conjunction (cumulation) with other circumstances (concurrently found sp. zn. The omission to discuss the bill with the power of the court cannot, however, and cannot be discussed (the finding in the sp. zn. Pl. ÚS 28 / 13, paragraph 53). Failure to comply with the requirement to discuss the bill with the power of the court will therefore be reflected in the content assessment as to 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 position of the judiciary has been responded - that is, the observations have been fully or partly complied with or have been dealt with by arguments which are not circumstantial - it may even be an attenuating factor to 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.
82. It is sufficient for the Constitutional Court to consider whether the draft law in the aforementioned sense 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 judges [cf. Article 175 of Law No 6 / 2002 Coll. on the Courts, Judges, Addresses and Government Administration of the Courts, and on the amendment of certain other laws (the Law on Courts and Courts)] on whose internal rules of organisation are to be laid down. 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. Although it is appropriate that the position of the judicial authority and its settlement should be part of the explanatory memorandum (the finding of point SP.v. Pl. ÚS 12 / 10, paragraph 25), this is not strictly necessary.
83. 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.
84. In conclusion, the Constitutional Court complements that negotiations with the power of the judiciary should constitute dialogue led by an attempt to find a solution. Judicial power must not just be an object in a political game of power executive, or legislative. The subject of judicial pay cannot be merely a means of obtaining political points, thus manipulating the public in order to undermine confidence in justice and weaken judicial power.
Assessment of the case
85. It follows from the Government's assertion that, to some extent, the power of the executive has tried to negotiate pay restrictions with the power of the court. According to the Government, the Minister of Justice discussed on 9 May 2023 possible salary restrictions with the leadership of the two Supreme Courts and Supreme Courts and the President of the Judicial Union. A specific form of restriction, i.e. a reduction of the coefficient from 3 times to 2,82 times, was discussed by the Minister of Justice at the meeting on 18.5.2023 and at the meeting on 29.5.2023, with the participation of higher and regional courts.
86. If the government has made some effort to negotiate a pre-pay restriction with judicial power, it is certainly a step in the right direction. However, the way in which the government has chosen is not sufficient for the Constitutional Court.
87. The case-law of the Constitutional Court was therefore based from the outset on the fact that, before the legislature acceded to the salary restrictions, it should obtain a "position of the representatives of the judiciary, which should also be part of the explanatory memorandum '(Ref. As the Constitutional Court has interpreted, it is not entirely necessary that the position of the representatives of the judiciary be included in the explanatory memorandum. However, it is essential that Members have the opportunity to learn about this position and how it has been dealt with.
88. The government has not demonstrated in any way that Members have this possibility. The government's alleged hearing on 6 September 2023 on the subcommittee for justice, on which the salary restriction was presented by Deputy Minister of Justice Antonín Stanislav, is completely inadequate. It is not clear whether and how the position of the representatives of the judiciary has been presented, but above all, it is important that all Members and not just the members of a single subcommittee have the opportunity to get acquainted with this opinion.
89. Nor did the reference procedure on the draft law provide for a hearing with judicial authority. In fact, only the Supreme Court and the Supreme Administrative Court, not a sufficiently wide range of representatives of the judiciary, could comment on the salary restriction.
90. In addition, the conduct of the comment procedure demonstrates that the Government has not made a request for a hearing with judicial authority of sufficient seriousness. An exceptionally short period of only 5 working days was set for the submission of comments. However, even in such a short period of time, the Supreme Court was able to make a comment on the proposal, which stated that the proposed salary restriction was contrary to constitutional law and was not actually discussed with the representatives of the judiciary (see eKLEP to the public, https: / / odok.cz / portal / veklep / material / pripominky / KORNC3JLKC2 /). In the settlement of the comments, not only is this comment not materially settled, but it is not even mentioned at all (see eKLEP to the public, https: / / dok.cz / portal / veklep / material / KORNCS3JLKC2 / KORNCSKLARY).
91. The Constitutional Court is aware that it did not specify the detailed requirements for dealing with the power of the court until in the sp. zn. But the power of executive and legislative did not comply with the requirement that was already clear from the previous case-law of the Constitutional Court - that is, Members must be able to know the position of the judiciary and the way in which it was dealt with. It is therefore necessary to conclude in the present case that the Government and Parliament knowingly did not respect the case-law of the Constitutional Court and did not ensure the proper negotiation of the proposal for a salary restriction with the power of the judiciary. Surely, the government does not need to obtain the consent of the judicial authority to propose a salary restriction, and Parliament does not need the consent of the judicial authority to accept it. However, the government and Parliament cannot decide to obtain a position of power from the courts or the courts.
92. The failure to deal with pay restrictions with the power of the court in itself is not sufficient to abolish the law. However, this is an aggravating factor to conclude that the salary restriction adopted is disproportionate, which the Constitutional Court will take into account in the substantive review.
Summary
93. The contested provision, which is the result of the amendment carried out by Act No 349 / 2023 Coll., leads to the restriction of judicial salaries (see in more detail paragraph 113 et seq.), but which, contrary to the case law of the Constitutional Court, has not been dealt with in advance with judicial power, not by Parliament or by the Government, although the amendment was based on a government bill. Although this defect in itself does not justify the annulment of the contested scheme, it is an aggravating factor to the conclusion that it is not appropriate.
94. Other shortcomings in the legislative process are not objected to by any of the participants or by any of the interveners and were not detected by the Constitutional Court. Since the Constitutional Court found no defect in the legislative process which could lead to the annulment of the contested provision, it has undertaken to review its content.
A substantive review of the contested provision
95. According to the original rules, the salary base for the calculation of the judicial salaries was to be determined as "3 times the average gross monthly nominal wage for the converted number of employees in the national economy achieved according to published data of the Czech Statistical Office for the preceding calendar year" (Section 3 (3) of Act No. 236 / 1995 Coll., as amended by 31.12.2023). However, the amendment made by Act No 349 / 2023 Coll. amended that calculation. According to the contested provision, since 2024, the salary base of judges' salaries is thus determined as "2,822 times' of the average gross monthly salary set out above.
96. The immediate consequence of this change was as follows. In 2023 the salary base determined according to the original rules (using 3 times) was CZK 113 709 (Communication from the Ministry of Labour and Social Affairs No. 391 / 2022 Coll.). In 2024 it was to reach CZK 120 951 according to the original rules (3 times). According to the contested provision (using 2,822 times), however, its amount is CZK 113 775. Compared to 2023, the salary base grew by 66 CZK in 2024, but it is also 7 176 CZK lower than it would have been under the original rules.
97. According to the appellant and the interveners of the general courts, the change in the calculation of the salary base constitutes a permanent wage restriction which does not comply with the constitutional order. This salary restriction was not properly justified, it is not proportional and does not rely on a comprehensive economic analysis to demonstrate its necessity, as required by the Constitutional Court's caselaw.
98. On the contrary, the Government argues that the contested provision complies with the requirements of the constitutional order and the case law of the Constitutional Court. According to the Government, the contested provision does not lead to a permanent reduction in the judicial salaries, but only to a temporary de facto freezing of the salary base for 2024. Then the salary base will grow again following wage developments. This salary restriction was not only directed against judicial power, but also applies to legislative and executive representatives. According to the Government, salary restrictions are also proportional. According to the Government, this restriction did not need to be preceded by an economic analysis, as it is only required in the event of intervention in the material position of judges, according to the sp. zn. Freezing a salary base for one year is not such an intervention.
General considerations
99. The Constitutional Court has repeatedly addressed restrictions on judicial salaries in the past. The basic principles on which its case-law is based were summarised in the finds sp. zn.
- 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, given the principle of the division of power and the principle of the independence of judges, which implies a narrow disposition of the legislature to pay restrictions on judges compared to those of such restrictions in other areas of the public sphere,
- the intervention in the material security of judges guaranteed by the law must be justified by exceptional circumstances, such as the difficult financial situation of the State, based on the principle of proportionality and taking into account the difference in the function of judges from officials of legislative and executive powers.
100. The earlier findings of the Constitutional Court were not entirely irrelevant. However, their precedence is weakened as, as is apparent from the findings of the sp. zn.
101. It therefore refers again to its reasoning in detail and summarises only the principles relevant to the case under consideration.
Independence of judicial power and division of power
102. Pursuant to Article 81 of the Constitution, the judicial authority is exercised by independent courts. Article 82 (1) The Constitution shall be independent of the judges in the performance of their duties. The independence of judicial authority is one of the important principles of the rule of law (Article 1 (1) of the Constitution) and must be seen in the light of the principle of division of power (Article 2 (1) of the Constitution).
103. In order for the judiciary to function as an independent body of state power, it must have adequate material collateral. The requirement of adequate material security shall not only apply to the judicial authority as a whole, but also to its representatives, namely judges and judges. In the end, it is the individual judges and judges who exercise the judicial power and therefore the requirement of adequate material collateral affects them in particular in their capacity as constitutional actors. Although the independence of judges is "primarily conditional on their moral integrity and professional level, it is also linked to their appropriate material collateral '[see, for example, the finding of 14.7.2005 sp. zn. Pl. ÚS 34 / 04 (N 138 / 38 CollNU 31; 355 / 2005 Coll.); the finding of sp. zn. Pl. ÚS 55 / 05, paragraph 51; the finding of sp. zn. Pl. ÚS 16 / 11]. Adequate material collateral protects judges and judges from the pressure of legislative and executive power, as well as third parties, who would" influence their decisions and generally influence their conduct in finding a right' (see there). The guarantee of adequate material protection of judicial power therefore follows - as other guarantees of independence - the following purpose in particular: "to secure the position of a judge which requires his role in the process of impartial, fair judicial decision-making in which the judge is bound, in the sense of his promise, only by the rule of law and his best knowledge and conscience" [finding sp. zn. It is therefore one of the safeguards for individuals to seek the protection of their rights in an independent and impartial court (see, in more detail, the finding of the Court of Justice in sp. v. ÚS 15 / 22, paragraphs 147 to 152).
Determination of judicial salaries (so-called pay machine)
104. The calculation of the salary of individual judges and judges is governed by Act No. 236 / 1995 Coll., as amended. The judge's salary is determined from the salary base. She's roughly expressing the starting judge's salary. This base shall be multiplied by coefficients depending on the length of the practice of a particular judge and on the position of the judicial system.
105. Since the adoption of Act No. 236 / 1995 Coll. the way in which the salary base itself is determined has undergone substantial changes. Originally, the salary base was derived from the "highest salary of a civil servant '(simply put). Since the amendment of Act No. 309 / 2002 Coll., on the amendment of the laws relating to the adoption of the Act on the Service of Civil Servants in Administrative Offices and on the Remuneration of These Employees and Other Servants in Administrative Offices (Staff Act), the salary base has been designated as" three times the average nominal monthly wage of individuals in the non-business sector, "in a simple way, from the average of salaries paid by public budgets. Both structures were at one time criticised as objective.
106. Since the amendment by Act No. 587 / 2020 Coll., the salary base has been designated as "3 times the average gross monthly nominal wage for the converted number of employees in the national economy achieved according to published data of the Czech Statistical Office for the previous calendar year." It is therefore no longer dependent on public-budget salaries, but on the level of wages in the national economy. This figure is objectively identifiable and generally known. The amendment of the coefficient from 3 times to 2,822 times is the subject of an assessment in this case (see below).
107. As judges' salaries are linked to wages in the national economy, the economic situation of the state and individual circumstances are also reflected. Thus, the judges' salaries reflect economic developments, only with time delays resulting from the fixation of the previous year.
108. If wages went down, the judge's wages would go down in time. Thus, this system implies a "rare possibility of a nominal salary reduction" - if wages fall, "the judge's salary will fall only with time delay [...] The solidarity of the judges with other employees [...] is therefore built very firmly in the system '(the finding sp. zn. Pl. ÚS 28 / 13, paragraphs 72 and 97). The amount of the judge's salary may therefore be reduced in nominal terms and, in this respect, the conclusions of the finding of 15.9.1999 sp. zn. Pl. ÚS 13 / 99, which (referring, for example, to the Constitution of the United States of America) indicated that such a reduction was not possible.
109. The amount of the judge's salary changes automatically thanks to this setting and "breathes" along with the economic development of the company. If the components of this imaginary pay machine correspond to the requirements of constitutional order, its application does not constitute a restriction on the judicial salary. In other words, even if there is a nominal reduction in the judge's salary on the basis of a pay machine, this will not be a restriction and the salary thus determined will not be contrary to constitutional order.
110. By applying this mechanism, the salary of judges may increase at a faster or slower rate, stagnate or decline; it all depends on the state of the economy. Thus, the judges do not have a "permanent and undeniable right to annual wage increases' (Case 55 / 05, paragraph 57). A pay machine linked to the state of the economy cannot guarantee such growth by its nature. The use of this instrument for determining judicial salaries is consistent with constitutional order.
111. Deciding on salaries has been, is and remains the subject of critical public attention, as it is entrusted (also) to those whose salaries are concerned. It was all the more important to find a mechanism that will "automatically" in all directions depending on the possibilities of society in times of calm and complex, and will be resistant to almost permanent efforts to intervene in its construction, often with a purpose motivation or justification.
Restrictions on judicial salaries
112. The Constitutional Court regards as a salary restriction any measure that modifies the above-mentioned rules on the determination of the salary of judges (the "pay machine ') and which results in the salary being lower than would be under those rules.
113. As restrictions interfere with the material security of judicial power, they are affected by the requirements arising from the principle of independence of judicial power, interpreted in the light of the principle of division of power.
114. In terms of time, two basic types of restrictions can be distinguished - temporary and permanent.
115. Temporary restrictions do not change the pay machine but replace it for a limited period by specific rules. As this is a temporary exception to the general rules for determining judicial salaries, it must first be justified by exceptional circumstances. Judge's salaries are not untouchable. The representatives of the judiciary do not live "in a legal and economic vacuum 'which would completely isolate them from the surrounding economic and social reality" [the find sp. zn. The Constitutional Court therefore accepted and acknowledged that exceptional circumstances, such as the difficult financial situation of the State, may justify temporary restrictions (the finding of the sp. zn.
116. On the other hand, permanent restrictions change the parameters of the pay machine to make the judge's pay lower.
117. The case-law of the Constitutional Court is based on the fact that "the pay ratios of judges in the broad sense are to be stable in an unmitigated amount" [see already the finding of 11.6.2003 sp. zn. ÚS 11 / 02 (N 87 / 30 CollNU 309; 198 / 2003 Coll.]]. Similarly, the Constitutional Court stated that even if the level of [...] material security [...] had been partially withdrawn, the Constitutional Court could hardly, in terms of the principles of the democratic rule of law, discuss it. In particular, this would be the case if such a strictly unacceptable restriction would prove to affect only or in particular the income ratios of the judges and not the income of other servants of the State "(the find sp. zn. This does not mean that the parameters of the pay machine could never be changed. Indeed, the caselaw cited refers to the stability of pay ratios" in the broad sense "and, in relation to the withdrawal of the achieved level of material security, it refers to" fundamental inadmissibility, "not inadmissibility without further action.
118. However, a permanent reduction in the level of judicial pay is undoubtedly the most serious type of restriction. It is therefore subject to the strictest requirements.
119. A typical example of this restriction is the reduction of the "multiple" average wage on which the salary base is based. The amendment of this coefficient is not excluded from the constitutional legal point of view, but is subject to very strict claims. The appropriate multiple "is not a constitutionally inviolable quantity. In order to intervene, however, there would have to be very strong arguments, supported by proper analysis of remuneration in the public sphere, in a situation of very limited possibilities for the State, while respecting the constitutional guarantees of the independence of the judiciary" (Ref.
120. Another example of a permanent restriction would be a permanent freeze of the judges' salaries, i.e. the abolition of the pay machine and the exclusion of salary growth. This would undoubtedly be considered by the Constitutional Court to be a constitutionally inadmissible step (paragraph 55).
121. It is also true that permanent restrictions, like any other, would have to meet the proportionality criterion. In order to be able to withstand permanent restrictions, it would have to pursue a legitimate objective which could not be achieved by other means, and would not be allowed to unduly limit the material security of the judicial authority - so it would have to take into account the specificities of its operation and would not be allowed to weaken its position unduly compared to the remaining elements of State power. The legal reason for the modification of the pay machine is not in itself that certain government groups "seem too high for judges' salaries compared to civil servants' salaries or with other professional groups' (Figure sp. above, ÚS 11 / 02). The permanent restriction cannot be justified even by the" budgetary costs of the judges' salaries separately considered '(sp. zn. Pl. ÚS 28 / 13, paragraph 97).
122. In order to examine the proportionality of the permanent salary restriction, it should be duly justified, "including a comprehensive economic analysis showing the possibility of a state budget following the economic situation of the State '(point 53 of the PSC. The role of the Constitutional Court is not to formulate in its decision extensive economic analyses examining the possibilities of the State budget; they should be part of the explanatory memorandum (paragraph 71). The economic analysis must also allow comparison with the legislative and executive pay ratios. The Constitutional Court therefore pointed out in the past, for example, that, in the context of economic analysis," proper data must be provided on the situation of remuneration in particular for senior civil servants and other persons with the highest remuneration for the work provided by the State budget' (paragraph 53).
123. It remains to be added that none of the two restrictions currently under assessment, consisting of changes in the "multiple '(see in more detail the find sp. zn.
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Regulation Information
| Citation | The Constitutional Court found No 211 / 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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