The Constitutional Court found No. 233 / 1999 Coll.

In Article 1 of the Act No. 268 / 1998 Coll., on the withdrawal of another salary for the second half of 1998 to representatives of state power and certain state bodies, judges, prosecutors and members of the Securities Commission Presidium, the word "judges' (2) to judges and members of the Securities Commission Presidium (4) to the second half of 1998 does not apply.

In its remainder, the proposal to repeal Act No 268 / 1998 Coll. is rejected.

On 27 May 1999, the Constitutional Court received a proposal from the District Court for Prague 4 to repeal Act No. 268 / 1998 Coll., on the withdrawal of another salary for the second half of 1998 to representatives of state power and certain state bodies, judges, prosecutors and members of the Securities Commission Presidium. The Constitutional Court - after having removed the defects of the proposal following its call - found that the submission fulfilled the formal requirements of the application for annulment of the law, which the court is entitled to file in connection with its decision-making activities under Article 95 (2) of Constitutional Act No. 1 / 1993 Coll., the Constitution of the Czech Republic (hereinafter referred to as the Constitution) - (also Article 64 (4) of Law No. 182 / 1993 Coll., on the Constitutional Court).

The appellant, for which he acts in accordance with the provisions of Paragraph 30 (3) of the Law on the Constitutional Court, the President of the Chamber Mgr. René Fischer, stated in the proposal that, in his view, Law No 268 / 1998 Coll. does not respect the generally recognised requirement of the rule of law - the prohibition of retroactivity. Paragraph 4 (2) of the Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the function of representatives of State authority and of certain state authorities and judges, as amended, according to which the officials and judges on which the law provides for it are entitled to an additional salary if they have actually performed a function of at least 90 calendar days in the calendar half of the year. According to Act No. 268 / 1998 Coll. however, this additional salary does not belong to officials and judges. Since on 5 November 1998, i.e. on the date of the effectiveness of the contested law (at this point the Constitutional Court points to the error of the appellant in determining the effective date of the contested law, the Act became effective until 19 November 1998), the majority of the representatives and judges of the legal conditions of § 4 (2) of Act No. 236 / 1995 Coll. for the creation of a claim for a further salary for the second calendar half of 1998, and Law No. 268 / 1998 Coll. withdrew that claim retroactively, the prohibition of retroactivity was applied according to the appellant. For this reason, as well as referring to the spirit of the Constitution and the constitutional principles of the rule of law, the appellant finds the contradiction of Law No 268 / 1998 Coll. with Article 1 of the Constitution and Article 2 of the Charter of Fundamental Rights and Freedoms ("the Charter ').

A party to the proceedings - Parliament of the Czech Republic, through the chairmen of both chambers, i.e. Prof. Václav Klaus, CSc., President of the Chamber of Deputies, and PhDr. Libush Beneš, President of the Senate, commented on the motion for the annulment of the law.

The terms of the Chamber of Deputies are accentuated by the conditions upon which the representative and the judge (likewise to the public prosecutor and member of the Securities Commission's presidium) are paid. Law No 268 / 1998 Coll. stated in a legally relevant manner that the fulfilment of the second condition did not affect the entitlement to a further salary of that group of entities (this second condition could not be fulfilled objectively at the time of publication of Law No 268 / 1998 Coll.). Therefore, the President of the Chamber of Deputies argues that Law No 268 / 1998 Coll. does not act retroactively, it does not remove the formalities for which the claim arose in the past, but amended the legal circumstances in the future - it stated, even before the two conditions required for the entitlement to the next salary were met, that compliance with these conditions would not lead to the entitlement to the next salary. It is further apparent from the Chamber of Deputies that the contested law was approved by the necessary majority of the legislators, signed by the relevant constitutional authorities and duly declared in the Collection of Laws. For these reasons, the President of the Chamber of Deputies expressed the view that the legislature acted in the belief that the law adopted was in line with the Constitution, the constitutional order and our rule of law. However, he left it to the Constitutional Court to examine the constitutionality of the contested law in the context of the proposal and to give the relevant decision.

The Senate's observations only describe the course of the legislative process in this chamber and express the intention of the Senate in approving the bill. The Senate approved the bill of withdrawal as a proposal and forwarded it to the Chamber of Deputies for further consideration. By this proposal, the Senate monitored the achievement that both the staff of the budgetary sphere and the representatives of the state power, judges, prosecutors and members of the Securities Commission's presidium will have only one additional salary in 1998. The Senate assumed that the law would take effect on such a date that any doubts about possible retroactivity would be excluded. The Senate did not comment on the content of the application for annulment.

Law No 268 / 1998 Coll. was initiated by the Senate as its proposal on 17 July 1998 (45 of the 61 who were present for the adoption of the proposal were voted against). The Chamber of Deputies approved the proposal on 30 October 1998 (174 Members voted in favour of the proposal and 1 opposed). On 5 November 1998, the Senate then exercised its right to express its will not to deal with the bill (57 of the 37 senators present voted in favour). The Act was signed by the relevant constitutional authorities and duly declared in the Collection of Laws on 19 November 1998, when it also became effective.

From the application lodged and from the requested file of the District Court for Prague 4 sp. zn. 27 C 54 / 99 The Constitutional Court found that on 1 March 1999 an action was served on the District Court for Prague 4, which the judge of the Supreme Court in Prague seeks against the Czech State - the Supreme Court in Prague - to pay another salary of CZK 40 000 with accessories (the Constitutional Court leaves aside the inappropriate title of the defendant). The Court of First Instance, without ordering the hearing - in accordance with the applicant's proposal - suspended the procedure provided for in Paragraph 109 (1) (b) of the Civil Code, which justified the stay of proceedings by the fact that it reached a conclusion on the infringement of Act No. 268 / 1998 Coll., to be applied to the case, with the Constitution. Following legal power, the order to stay proceedings was filed with the Constitutional Court for annulment of the Law (Article 95 (2) of the Constitution and Article 64 (4) of the Constitutional Court Act).

The Constitutional Court, aware of the exceptional gravity of the present case, decided to concentrate on the very nature of the problem which it sees in the assessment of whether or not the contested law is contrary to the principle of judicial independence enshrined in Article 82 (1) of the Constitution. As a democratic rule of law, as defined in Article 1 of the Constitution, the Czech Republic considers the people to be the source of all state power (Article 2 (1) of the Constitution, however, with the people exercising this state power through the authorities of power legislative, executive and judicial. Thus, the principle of the division of state power is that our Constitution builds on the idea tradition already expressed in a transparent manner by Charles Montesquieu, in particular the US Revolution, which highlighted, and also institutionalised, the need for the independence of the judiciary. Thus, even if a democratic state does not seek maximalist programs in the justice sphere, it is obliged to create institutional preconditions for the real independence of the courts, to stabilise their position as, in relation to legislation and executive, an important state-making, but also a "polemical" element. Where applicable pursuant to Article 2 (1) The Charter that our state is based on democratic values, then it is here that one of the extremely important values is the principle of judicial independence that has already been stated in this regard. This principle contains a number of aspects which are intended to create in their totality the preconditions for courts to carry out their tasks and duties, particularly in the area of the rights and freedoms of man and citizen (Article 1 of the Constitution). It can be considered natural that some of these aspects may also be material in nature, although each such aspect naturally has a material subtext. This is also the case in the field of compensation provided, where the wording of the US Constitution contained in Article III (1) may appear as an example: "Judges of the Supreme Court and of the lower courts shall remain in office for life, if they behave well; in respect of their service, they shall receive compensation within the specified time limits which may not be reduced during the duration of their service. '; Act No 268 / 1998 Coll., on the withdrawal of an additional salary for the second half of 1998 to representatives of state power and certain state bodies, judges, prosecutors and members of the Securities Commission Presidium, constitutes, in the view of the Constitutional Court, a breakthrough in the said" inalienable' right of judges to not reduce the compensation granted and categorise them more or less as "civil servants'. Such an approach by the legislator, once again, even if it may appear as a moral gesture in the face of current social, particularly economic, proportions, in fact only devalues one of the fundamental democratic values that judicial independence represents. If both our Constitution and the Charter are committed to the existence of a value order representing a fundamental pillar and a pillar of society, then the legislator, as well as the executive, must respect its priority in all its acts, even in relation to the ethical and legal regulatory system. The Constitutional Court therefore considers that the provision of Article 1 of Law No 268 / 1998 Coll. by also withdrawing the salary from judges is contrary to Article 1 of the Constitution and Article 2 (1) of the Charter.

The principles which have led the Constitutional Court to take account of such a conclusion are so dominant that, in light of them, "in part, 'other issues relating to the prohibition of retroactivity and the protection of acquired rights are" blur'. The Constitutional Court therefore points only to a number of its decisions in this context, such as Pl. ÚS 3 / 94 (ÚS 1, p. 279-291), Pl. ÚS 12 / 94 (ÚS 3, p. 123-134), Pl. ÚS 9 / 95 (ÚS 5, p. 107-146), Pl. ÚS 21 / 96 (ÚS 7, p. 87-97). ÚS 33 / 96 (ÚS, Sv. 8, p. 163 - 172), and does not see any reason to change these decisions of the opinions contained. Paragraph 4 (2) of Act No. 236 / 1995 Coll., as amended, resulted in the following legal conditions for the creation of the right to an additional salary for the second half of 1998, on the one hand, the actual performance of the duties for at least 90 calendar days in that half year, and the duration of the post of representative on 30 November 1998 or the duration of the judicial employment relationship on 31 December 1998. Thus, the right to another salary would be created only by the fulfilment of that condition, i.e. at the earliest on 30 November 1998, which in consequence means that the contested law, which does not link any legal effects to any legal effects with any legal fact, sets it before its effect, is not retroactive, and since, on the date of its effectiveness, i.e. on 19 November 1998, no person has been able to obtain a subjective right to another salary, it could not even intervene in so-called acquired rights.

The deleted word "judges" refers in the provision of § 1 of Law No 268 / 1998 Coll. by footnote 2 to the provision of § 1 (g) of Law No 236 / 1995 Coll. to the phrase "judge of the district, county and supreme court, Supreme Court and Supreme Administrative Court (" judge ")." The judges of the Constitutional Court, in the light of footnote 1) of the provision of § 1 of Law No 268 / 1998 Coll. are classified as "representatives of State power and certain state bodies' [§ 1 (a) to (f) of Act No 236 / 1995 Coll.]. Although the Constitutional Court is not part of the system of general courts and its organisation, as well as the proceedings before it are individually governed by Articles 83 to 89 of the Constitution and by Act No 182 / 1993 Coll., as amended, it also constitutes the power of the judicial procedure laid down in Title Four of the Constitution and also of its Judges, Article 82 (1) of the Constitution which imposes judicial independence. However, the Constitutional Court, being aware of both of these moments, decided not to deal with the question related to it, which means that the word" judges "was abolished within the meaning and scope of footnote 2) on the provision of § 1 of Act No 268 / 1998 Coll.

The Constitutional Court therefore, for the reasons set out in Article 1 of Act No 268 / 1998 Coll., on the withdrawal of another salary for the second half of 1998 to representatives of state power and certain state bodies, judges, prosecutors and members of the Commission's presidium for securities, in the text "Representatives of State power and of certain state authorities, 1) to the judges, 2) to the prosecutors) and members of the Commission's presidium for securities 4) to the second half of 1998, does not belong to the" under the provisions of Article 70 (1) of Law No. 268 / 1993 Coll. "

This finding is enforceable on the day of its publication in the Collection of Laws.

In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, the Judges JUDr. Milos Holecek, JUDr. Ivan Janů and JUDr. Zdeněk Kessler took a different position on the decision and on his justification, Dr Vladimir Paul.