The Constitutional Court found no 245 / 2012 Coll.
Findings of the Constitutional Court of 15 May 2012 sp. zn. Pl. ÚS 23 / 09 concerning the application for annulment of Sections 34 (3) and (4) of Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the duties of representatives of state authority and of certain state bodies and judges and Members of the European Parliament, as amended
Valid
The Constitutional Tribunal found
Text versions:
13.07.2012
245
FIND
The Constitutional Court
On behalf of the Republic
Act No. 31 / 2005, No. 31 / 2005, No. 31 / 2005, No 31 / 2005, No 31 / 2005, No 31 / 2005, No 31 / 2005, No 31 / 2005, No 31 / 2005, No 31 / 2005, No 31 / 2005, No 31 / 2005, No 31 / 2006, No 31 / 2006, No 31 / 2006, No 31 / 2006, No 31 / 2006, No 31 / 2006, No 49 / 2006, No 31 / 2006, No 49 / 2006.
as follows:
Motion denied.
Reasons
1. In accordance with Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution '), the appellant requested that the Constitutional Court annul the above mentioned provision under the heading of that Law, namely" in relation to judges'.
2. He stated that there is an action pending at the District Court in Jičín under sp. zn. 7 C 73 / 2008 for an action which the judge of the District Court in Mladá Byslav JUDr. R. H. seeks against the Czech Republic - the District Court in Mladá Bloslav - payment of CZK 8 118. The applicants claim that between 27.11.2007 and 29.5.2009 to 31.5.2009 he was incapacitated; he was paid a sickness insurance allowance of only CZK 160 for the day 27. 11. 2007, his average salary for that day was CZK 3 945; for days 29 May to 31 May 2009, the difference between the average salary for those days and the sickness insurance benefit actually paid was CZK 4,243. The amount claimed therefore represents the difference between the sickness insurance benefits actually paid and the average salary for those days.
3. The appellant stated that he had lost that difference as a result of the entry into force of Act No. 420 / 2002 Coll., which shortens the period of time for officials of state power and certain state bodies, judges and prosecutors to be paid in the event of temporary incapacity to perform their duties and provides for certain measures in sickness insurance (care) and pension insurance, which took effect on 1 January 2003. This law also amended the provisions of § 34 (3) and (4) 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 authorities and judges, so that the representative whose duties are governed by a special law and the Labour Code and the Judges do not, unless otherwise provided for, pay for the period for which he is temporarily not performing his duties for reasons for which compensation is not granted to employees under the Labour Code. A representative whose duties are governed by special legislation and the Labour Code and a Judge recognised as temporarily incapacitated shall be entitled to pay for a maximum of 20 working days for the same temporary incapacity to perform the duties or for more temporary incapacity to perform the duties incurred in one calendar year for the same period. For reasons and under the conditions laid down in the sentence, the other officials shall have their first salary for a maximum period of 30 calendar days. The assessment of temporary incapacity to perform duties shall be treated mutatis mutandis in accordance with the rules on the assessment of temporary incapacity for work.
4. Before the amendment implemented by Act No. 420 / 2002 Coll. read § 34 (3) of Act No. 236 / 1995 Coll.: "(3) A salary shall be payable to the representative and the judge, except where otherwise provided, for the period during which he is temporarily not in office and after which he would otherwise be entitled under the special rules to sickness insurance benefits replacing the deductible income but not exceeding six months; for any other period during which the representative or Judge temporarily fails to perform his duties, the salary shall be reduced in proportion to that period. ';
5. The appellant is of the opinion that the Institute for the provision of full pay in the event of temporary incapacity for work is to be considered as one of the guarantees of material protection of the judge. Therefore, the salary of judges cannot and must not be a moving factor, the development of which depends on the ruling group. From the explanatory memorandum issued to Act No. 420 / 2002 Coll. it is stated that the objective of the legislator was "to maintain a comparable position between groups of insured persons, i.e. civil servants, representatives of state authority and judges in the current sickness insurance scheme '; The position of representatives of state power and of certain state bodies and judges was considered disproportionate and unfair by the legislature to employees who were paid for the work they performed and who, from the first day of incapacity for work, were entitled to sickness benefit in a reduced amount, regardless of the income they were replacing.
6. The appellant cited Articles 81 and 82 of the Constitution, according to which the courts, on behalf of the Republic, exercise independent courts, the judges are independent in the performance of their duties and their impartiality must not be jeopardised. If the Constitution imposes the independence of the court and the judges, the appellant and the pay ratios of the judges must be stable, completely independent of the ideas of executive and legislative power based on politically motivated objectives and views. It is with regard to the independence of judges guaranteed by the Constitution that the legislature cannot apply the pay restrictions to judges according to the same principles as in other areas of the public sphere. The legislator's procedure in the "drafting 'of Law No 420 / 2002 Coll. considers the appellant to be unconstitutional, contrary to the judge's right to material security, which is one of the guarantees of his judicial independence guaranteed by the law and the Constitution.
7. In addition, the appellant summarised part of the case law of the Constitutional Court relating to the pay ratios of judges.
8. The appellant continued to quote the explanatory memorandum to Act No. 420 / 2002 Coll., which states, inter alia, that the proposed measure in sickness insurance for 2003 monitors the creation of a savings of the state's mandatorial spending over a period when it will be necessary to prioritise the costs related to the removal of the effects of floods from August 2002. The report also states that the savings resulting from the proposed legislation will not only be one-off in 2003, but will also have an impact on the amount of benefits in future years, and that the difficult situation of insured persons in the area of sickness insurance should be seen as an integral part of the complicity in dealing with the consequences of the natural disaster which hit the Republic in August 2002.
9. The appellant is of the opinion that, if the time for which they are paid in the event of temporary incapacity to perform their duties has been significantly reduced by Law No 420 / 2002 Coll., and since the Institute of Providing Full Salary in the event of temporary incapacity is considered to be one of the guarantees of material protection of the judge, there has been undue interference with the judicial independence or the right of the judge to material protection of his judicial independence. Therefore, the appellant brought the proceedings before him under sp. zn. He considers the salary restriction against judges contained in the provisions of Part One of Law No 420 / 2002 Coll. to be a contradiction with Article 1 (1) in conjunction with Article 82 (1) of the Constitution and Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms. For the reasons set out above, the Constitutional Court is seeking a finding which the Constitutional Court would have complied with as indicated in its heading.
10. By order of the Municipal Court in Prague of 28 April 2008, this case was brought by the Prosecutor JUDr. R. H. at the District Court in Mladá Bloslav (due to the suitability of § 12 (2) of the Civil Code) to the District Court in Jicin.
11. The Constitutional Court requested comments from the Chamber of Deputies and the Senate of the Parliament of the Czech Republic on the proposal of the District Court in Jičín and also requested an opinion from the Ministry of Justice.
12. It is stated in the Chamber of Deputies of the Parliament of the Czech Republic that the draft law on salary and other formalities relating to the performance of the duties of representatives of the State and of certain state bodies and judges was presented to the Chamber of Deputies on 8 June 1995 as a document No 1820 by a group of Members represented by Mr Richard Mandelik. In the vote, the bill was adopted by the Chamber of Deputies; of 133 Members present was 99 for the proposal, 3 against. The Act was signed by the President of the Republic, Prime Minister and declared in the Collection of Laws on 26 October 1995 under No. 236 / 1995 Coll. The Government submitted to the Chamber of Deputies on 10 September 2002, as the House of Deputies, a draft law shortening the period of time for the representatives of the State and of certain state authorities, judges and prosecutors to be paid in the event of temporary incapacity for office and laying down certain measures in sickness insurance (care) and pension insurance. On a proposal from the Government, the President of the Chamber of Deputies declared a state of legislative emergency and the bill was discussed in a brief hearing under Section 99 of Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies. Three amendments have been tabled in a detailed debate, none of which have dealt with the constitutional complaints of the contested provisions. The entire bill submitted was voted on and the bill was passed by the Chamber of Deputies. Of the 187 Members present, 106 voted in favour, against 14. The bill was delivered to the Senate on 16 September 2002. The President of the Republic signed the Act on 23 September 2002, it was declared in the Collection of Laws on 27 September 2002 under No 420 / 2002 Coll. In the view of the Chamber of Deputies, that law was adopted and issued within the limits of the Constitution and the Constitution in a specified manner.
13. The observations of the Chamber of Deputies continue by stating that the provisions of § 34 (3) and (4) of Act No. 236 / 1995 Coll., as amended by the Act governing the financial security of the Judge in the event of temporary incapacity to perform his duties in the manner stated in his constitutional complaint by the applicant, were effective until 31 December 2007. Act No 261 / 2007 Coll., on the stabilisation of public budgets, in Part 30, contains two completely new versions of the provisions of Section 34 (4) of Act No. 236 / 1995 Coll., on the salary and other formalities connected with the performance of the duties of representatives of the State Government and of certain state bodies and judges and Members of the European Parliament, as amended, ("the Salary Act ') with effect from 1 January 2008 and with effect from 1 January 2009.
14. The Senate of the Parliament of the Czech Republic stated in its observations on the proposal that, in substance, the proposal was in principle identical to the proposal made by the same appellant on 13 November 2008, which was held in the Constitutional Court under sp. zl. on 11 February 2009, the Constitutional Court rejected the petition because of the unremovable defects of the petition, as it sought to abolish part of the first Act No. 420 / 2002 Coll., which is to abolish part of the amending Act. The present proposal is, in principle, identical in terms of its content to the proposal of the previous one (arguing against the amendment made by Act No. 236 / 1995 Coll. in Article 34 of Law No. 420 / 2002 Coll. with effect from 1 January 2003), with the difference that the appellant formulated a petition not in relation to the amending law but in relation to the relevant provisions of the amended Act (Sections 34 (3) and (4) of the Salary Act). By formulating a petition, the appellant proposes that the amendment in force on the date of the submission of the proposal be abolished, as can be seen from the list of all amendments to the law, including those amendments that followed the adoption of Act No. 420 / 2002 Coll. In this context, according to the Senate, the amendment approved in 2006 under Act No. 189 / 2006 Coll., amending certain laws in the context of the adoption of the sickness insurance law, which consisted in the fact that, following the new sickness insurance scheme, the general arrangements contained in the new Act No. 187 / 2006 Coll., on sickness insurance were reflected in the Act No. 189 / 2006 Coll. (the amendment was contained in Part Twenty-ninth Act No. 189 / 2006 Coll.). The regulation introduced by Act No 420 / 2002 Coll. was therefore repealed and replaced by a completely different regulation. This change was originally to take place with effect from 1 January 2007. In the context of the shift in the effectiveness of the new legal regulation of sickness insurance first to 1 January 2008 and then to 1 January 2009, this change was incorporated into Act No. 261 / 2007 Coll., on the stabilisation of public budgets (Part Thirty) and was deleted from Act No. 189 / 2006 Coll. (Part Twenty-ninth was deleted). Because the appellant invades only as an unconstitutional regulation adopted under Act No. 420 / 2002 Coll. and the further changes following the adoption of this law are not expressed in any way in its submission (although, as stated above in the heading, the petit is formulated differently), the Senate's observations (allegedly) are based on the proposal thus proposed and focuses mainly on the discussion of the argument-based appeal.
15. The Senate stated that the Act adopted under No 420 / 2002 Coll. was, together with several other laws, discussed in the Chamber of Deputies in a state of legislative emergency, which was declared by the President of the Chamber of Deputies on a proposal from the Government in August 2002 for the period from 22 August 2002 to 13 September 2002. The Senate was referred by the Chamber of Deputies on 16 September 2002; The Government, through its President, has asked the President of the Senate to discuss the bill in an abridged manner. The Senate agreed to this request by the Government at its 21st meeting held on 18 September 2002, so that the draft law was negotiated in abridged negotiations within the meaning of § 118 of Act No. 107 / 1999 Coll., on the Rules of Procedure of the Senate. As regards the consideration of the draft law in the relevant Senate committees, it is noted, inter alia, that although there were some doubts about the need to discuss the draft law in the short-lived negotiations (as well as the amounts of savings mentioned), the draft law received the support of the Senators, including in view of the fact that it was an area of adjustment that the Senate had been dealing with in relatively great detail during the previous term of office.
16. In 1999, the Senate adopted a Senate amendment to Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of State power and of certain state bodies and judges, as amended, (Senate Document No. 90 / 1998, submitted by a group of Senators - members of the Constitutional Law Committee), in which, in addition to other adaptations, the amendment of Section 34 (3) was also included. In that provision, in which the right to a salary has been established for representatives of the State and the judge for up to 6 months instead of sickness insurance benefits, a new text was proposed in the sense that "For the period during which the representative and the judge temporarily do not perform their duties, the salary shall be reduced in proportion to the length of that period... '. The explanatory memorandum stated in this regulation that..." in accordance with the constitutional principle of equality, it is proposed to the officials and judges to withdraw the salary security for six months of incapacity for work. In the period of incapacity for work as well as in any other period during which the post will not be suspended, the salary will be reduced, while in the period of incapacity for work the officials and judges will be entitled to a sick...'. A change was therefore proposed in order to introduce for representatives and judges a general rule of law based on the fact that the wage or salary is paid for the work carried out (that is to say, it is being reduced for an unworked period), and depending on the reason for which the work (function) was not carried out, the officials of the State authority and the judges will be entitled to cash sickness insurance benefits in accordance with the generally applicable legislation. The proposed amendment can be referred to by the Senate for the sake of completeness as an argument which, among other things, when discussing the proposed bill in the Senate, the representatives of the appellants made an initial (favourable) adjustment: "The law in force, as I have already announced, is, in a better case, on the verge of constitutionality, but more likely is the claim that it is unconstitutional, that it is contrary to the constitutional principle of equality. This is because, for all of these representatives of state power and judges, it lays down the principle that, unlike other citizens, those representatives of state authority are entitled to receive a full salary in each calendar year for six months, whether incapacity for work or other obstacles, such as childcare, maternity leave, etc., in these cases. 'The Senate approved this amendment, together with the amendments to the other provisions of the law, and has forwarded it to the Chamber of Deputies for further discussion. At the time, however, in the Chamber of Deputies (in which the bill was debated as the Chamber of Deputies No. 164 / 1999), the Senate bill was rejected by a narrow majority, but probably for reasons other than the proposed amendment to Section 34 of Act No. 236 / 1995 Coll., since there were no reservations about this amendment. This is also the case in the next period, when the amendment of the provisions of Section 34 of Act No. 236 / 1995 Coll., which was challenged by the appellant as an unconstitutional (implemented with effect from 1 January 2003 by Act No. 420 / 2002 Coll.) and the following amendment related to the application of the new legal regulation of the sickness insurance (implemented with effect from 1 January 2008 and 1 January 2009 by Act No. 261 / 2007 Coll.). In this context, it can also be pointed out that, when discussing Senate Press No. 354 mentioned above, at the 21st meeting of the Senate, the representative of the petitioner (Minister of Labour and Social Affairs) on the Government proposed amendment of Article 34 of Law No. 236 / 1995 Coll. stated that the proposed measure would bring about some savings of funds, but that is not the main objective. As he said:..." the main objective is to achieve comparable status between groups of insured persons in the sickness insurance scheme. The current legislation cannot be regarded as appropriate and fair to workers who, from the first day of incapacity for work, are entitled to sickness benefit in a reduced amount, regardless of the income they replace. The proposed solution is not limited only to 2003, as there is no reason to return to the current legislation after it has expired.'
17. According to the Senate's observations, as is apparent above, if the appellant considers that the shortening of the period for which a temporary incapacity for office was granted to a limited number of representatives of state power and judges was unconstitutional in relation to judges, the majority opinion of the Senators was quite the opposite not long before the Senate had discussed such arrangements; an anti-constitutional arrangement was considered to be significantly favourable to representatives of state power and judge, and this view was also reflected in the discussion of the draft law in question at the 21st meeting of the Senate, as well as in a further period when the general regulation of the sickness insurance scheme was introduced for representatives of state power and judges. With regard to the amendments to the provisions of Sections 34 (3) and (4) of Act No. 236 / 1995 Coll. implemented by Act No. 420 / 2002 Coll., the Senate has, according to its observations, discussed the draft amendment in question within the limits of the Constitution established competence and the constitutional procedure; As it corresponded to the Senate's views on the need to amend the regulation in question, it agreed on this draft amendment to the law in agreement (by not dealing with the draft act was adopted) in the majority belief that it was in line with the constitutional order of the Czech Republic and its international obligations. The same can also be said for subsequent amendments to the contested provision of the law, which were approved in the next period. In relation to the changes made by Act 261 / 2007 Coll. above, it can also be pointed out that the amendments were already contested in 2007 as an unconstitutional one within the framework of several proposals for the annulment of the Act or parts thereof (including part thirty), which the Constitutional Court ruled on by the finding of the sp. zn. With regard to the proposal to abolish paragraphs 34 (3) and (4) of the Salary Act, the Senate considers that it is appropriate to point out that the abolition of the proposed provisions would give rise to a situation in which, for judges of the District, Regional and Supreme Courts, the Supreme Court and the Supreme Administrative Court, there is no rule which would in any way restrict their right to receive a salary even in cases where the judge, for any reason and for any period of time, does not perform his duties. This conclusion can be reached on the basis of the settled case-law of the Constitutional Court, which states that "the repeal of an unconstitutional provision of the law does not revive an earlier provision which has been abolished or amended by the unconstitutional provision '.
18. In particular, the opinion of the Ministry of Justice (designed as an expression of the Minister of Justice at the time) states that if the proposal in question is not rejected in the light of the amendment of Paragraph 34 (4) of the Salary Act, implemented by Act No. 326 / 2009 Coll., on the promotion of economic growth and social stability, with effect from 1 July 2009, the Minister notes that, in general, it is not in favour of withdrawing salaries or other formalities associated with the performance of the judicial function. The assessment of whether or not the legislative power is, in connection with the development of the state of public budgets in the Czech Republic, entitled by law to limit the period for which a group of persons is paid instead of sickness insurance benefits, and whose remuneration is financed from these budgets, without any undue restriction of the principle of judicial independence being imposed on judges, is, however, solely a matter for the Constitutional Court. However, the view that the degree of independence of the judge, regardless of any objective circumstances, is directly dependent on the level of material security, does not consider the Minister of Justice to be acceptable. It is also convinced that, by reducing the period from the original six months, in turn as a result of the repeated amendments to Article 34 of Act No. 236 / 1995 Coll., to 14 calendar days after which, with effect from 1 January 2009, the representative whose duties are governed by a special law and the Labour Code, and the judges are entitled to a reduced salary of 60% (except for the first three working days for which the salary is not due), there was no undue interference with the judicial independence and the law of the judge on material security of his judicial independence. The question of judicial independence in relation to material security cannot (allegedly) be interpreted in such extensive terms and it cannot be taken into account that, for the duration of temporary incapacity for work, the Judge does not perform his own duties. The Minister of Justice is also convinced that the legislature did not jeopardise the "proper working conditions' of the judges under which, according to the recommendation of the Council of Europe's Committee of Ministers of 13 October 1994, the provision of adequate status and remuneration of judges, taking into account the dignity of their profession and the workload, cannot be discussed in the event of temporary incapacity for work. This is not de facto a salary but a special way of determining entitlement to social security benefits. Similarly, this act of the legislature, which is the subject of a motion by the District Court in Jičín, cannot, according to the opinion, be regarded as a wage restriction against judges in the true sense of the word, since the difference between the parties concerned has been taken into account. The Minister of Justice has concluded that the independence of judges, guaranteed by the law and the Constitution, has not been undermined or compromised by this action by the legislator; the special provisions governing the provision of the salary to judges instead of sick leave, which would otherwise be due to them as other employees, as they are generally subject to the Act No. 187 / 2006 Coll., on sickness insurance, as amended, has been maintained. It therefore proposed that the Constitutional Court reject the proposal.
19. The Constitutional Court first examined, in accordance with Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., whether the law in respect of which the appellant objects to the unconstitutionality of his provisions had been adopted and issued within the limits of the Constitution established competence and by the constitutionally prescribed procedure. From the observations of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic, as well as from the relevant Parliament's press and voting data, he found that the contested Act No. 236 / 1995 Coll., as well as its amendments amending the contested provisions of § 34 (4) (Act No. 420 / 2002 Coll. and Act No. 261 / 2007 Coll.) were adopted in accordance with the provisions of Article 39 (1) and (2) of the Constitution, duly signed by the relevant constitutional authorities and published in the ECR; they have therefore been issued by the Constitution in the prescribed manner and within the limits of the Constitution laid down by competence.
20. Legislative developments were as follows.
21. Paragraph 34 (3) and (4) 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, as applicable and effective from 1 January 2003 until 31 December 2007 (Act No. 420 / 2002 Coll.), concerning the first date of the application, i.e. 27 November 2007, read:
- Paragraph 34 (3), including footnotes 9) and 10):
"(3) A representative whose duties are governed by special legislation and the Labour Code, 9) and judges shall not, unless otherwise provided for, pay for the period during which he temporarily does not perform his duties for reasons for which there is no compensation for his staff under the Labour Code, 10) unless otherwise provided for. '
22. Paragraph 34 (4):
"(4) A representative whose duties are governed by special legislation and the Labour Code, 9) and a judge recognised as temporarily incapacitated shall be entitled to pay for a maximum of 20 working days for the same temporary incapacity to perform the duties or for more than one calendar year for the same period. For reasons and under the conditions laid down in the sentence, the other officials shall have their first salary for a maximum period of 30 calendar days. The assessment of temporary incapacity to perform duties shall be treated mutatis mutandis in accordance with the rules on the assessment of temporary incapacity for work.
9) For example Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, Act No. 166 / 1993 Coll., on the Supreme Audit Office, as amended.
10) Sections 127 and 128 of the Labour Code. '
23. As mentioned above, this legislation was in force until 31 December 2007. When examining the proposal in question - at the stage of examining the question of the existence of the conditions of the procedure - the Constitutional Court found that Act No 261 / 2007 Coll., on the stabilisation of public budgets, which, in part thirty, provides for two completely new versions of the provisions of Paragraph 34 (4) of the Salary Act, with effect from 1 January 2008 and 1 January 2009.
24. Consequently, the contested provision of Paragraph 34 (4) - which concerns, with effect from 1 January 2009, the second period of the application lodged by the applicant on 29 May to 31 May 2009 - was:
25. From 1.1.2008
"(4) A representative whose duties are governed by special legislation and the Labour Code, and judges who have been recognised as temporarily incapacitated, shall not be entitled to pay for the working days which fall on the first three calendar days of the temporary incapacity to perform the duties; from the fourth calendar day, the salary shall be payable for a maximum of 18 working days for the same temporary incapacity to perform the duties or for more than one temporary incapacity to perform the duties incurred in one calendar year, for the same period, without any salary being paid for working days that fall within the first 3 calendar days of the temporary incapacity to perform the duties. The other representatives and Members of the European Parliament shall be entitled, for the reasons and under the conditions laid down in the sentence, to pay the first salary for a maximum period of 27 calendar days, provided that, in the event of no temporary incapacity to perform their duties, they are not paid for the first 3 calendar days. However, in the event of temporary incapacity to perform the duties arising from an accident at work or an occupational disease, the salary shall be paid from the beginning of the temporary incapacity to perform the duties for a maximum of the period specified in the first and second sentences. The assessment of temporary incapacity to perform duties shall be treated mutatis mutandis in accordance with the rules on the assessment of temporary incapacity for work; For the purposes of this Act, the quarantine ordered shall also be deemed to be temporarily incapacitated. ';
26. From 1.1.2009
"(4) A representative whose duties are governed by a special legislation and by the Labour Code and by judges who have been recognised as temporarily unfit for work or who have been ordered to be quarantined shall have a reduced salary of 60% within the first 14 calendar days of temporary incapacity for work (quarantine), except for the first 3 working days for which the salary is not due. For the period from the fourth calendar day of temporary incapacity for work (quarantine) to the 14th calendar day of temporary incapacity for work (quarantine), the other representatives and Members of the European Parliament shall be entitled to pay a reduced salary for each calendar day of 60% of one-thirtieth of the salary; the salary is not subject to temporary incapacity (quarantine) for the first 3 calendar days. The salary established under the first and second sentences shall be reduced by 50% where sickness insurance is reduced to half 10a). The amount of the reduced salary per day shall be rounded up to the whole crown. However, in the event of temporary incapacity for work due to accidents at work or occupational disease, the full salary shall be paid from the beginning to the 14th calendar day of temporary incapacity.
10a) § 31 of Act No. 187 / 2006 Coll., on sickness insurance. '
27. Thus (atypical) the divided effectiveness of the various versions of Section 34 (4) of the Salary Act is based on Article LXXXI of Act No 261 / 2007 Coll., under which: "This Act takes effect on 1 January 2008, with the exception of the provisions... (c)... Article XLVI (3), which takes effect on 1 January 2009," (Article XLVI (3) concerns Article 34 (4) of the Salary Act).
28. For the sake of completeness, it should be noted that the provision in question was subsequently affected by the amendments two more times by Act No. 326 / 2009 Coll. with effect from 1 July 2009 and Act No. 364 / 2011 Coll., amending certain laws in connection with austerity measures under the jurisdiction of the Ministry of Labour and Social Affairs, with effect from 1 January 2012 (note which is no longer relevant to this present case). Therefore, the provision in Article 34 (4) currently reads as follows:
"(4) A representative whose duties are governed by special legislation and the Labour Code and by judges who have been recognised as temporarily unfit for work or who have been ordered to be quarantined shall be entitled to a reduced salary of 60% of the average earnings during the first 14 calendar days and from 1 January 2012 to 31 December 2013, except for the first 3 working days for which the salary is not due for temporary incapacity. For the period from the fourth calendar day of temporary incapacity for work (quarantine) to the 14th calendar day and from 1 January 2012 to 31 December 2013 to the 21st calendar day of temporary incapacity for work (quarantine), the other representatives of the European Parliament shall be entitled to pay for each calendar day at a reduced rate of 60% of one-twentieth of the salary; the salary shall not be subject to temporary incapacity for work for the first 3 calendar days and shall be subject to a reduced amount of 60% of one-thirtieth of the salary for the first 3 calendar days of the quarantine ordered for each calendar day. The salary established under the first and second sentences shall be reduced by 50% where sickness insurance is reduced to half 10a). For the purposes of determining the reduced salary according to the first sentence, the average earnings established shall be adjusted in the same way as the average earnings for determining the compensation under Section 192 of the Labour Code; for the purposes of determining the amount of the salary reduced in accordance with the sentence of the second sentence, one thirtieth of the salary shall be adjusted in the same way as the daily assessment basis for determining the sickness insurance allowance. The amount of the reduced salary per day shall be rounded up to the whole crown. However, in the case of temporary incapacity for work due to accidents at work or occupational disease, the full salary shall be paid from the beginning to the 14th calendar day and from 1 January 2012 to 31 December 2013 to the 21st calendar day of temporary incapacity. ';
29. It is clear that there has been a somewhat specific procedural situation in this case. If the case is recaptured once again, according to the file material sent by the applicant (file of the District Court in Jičín sp. zn. 7 C 73 / 2008), it can be concluded that the applicant JUDr. R. H. filed on 12 March 2008 an action seeking payment of CZK 3,785 against the Czech Republic as a difference between the average salary for 27 November 2007, when he was incapacity for work, and the actual amount of sickness insurance paid. On 7 November 2008, the Court of First Instance suspended the proceedings and made its first application to the Constitutional Court for annulment of part of Act No 420 / 2002 Coll. The Constitutional Court, by order of 11.2.2009 sp. zn. Pl. ÚS 33 / 08 (see above), rejected the proposal for a petite defect as the appellant contested an amendment and not an amendment, i.e. Act No. 236 / 1995 Coll. Then the plaintiff JUDr. R. H., by application of 8 June 2009, completed the action before the District Court in Jičín with the fact that he was once again incapacitated from 29 May 2009 to 31 May 2009 and missed 4 234 CZK as a result of the applicable legislation; It therefore extended its action. Subsequently, the appellant (Jičín County Court) made this proposal, which is now under discussion, in the heading of this finding.
30. Therefore, the key passages of the part of the contested provision § 34 (4) of Act No. 236 / 1995 Coll. have undergone several amendments and are currently worded differently (cf. above). However, the appellant seeks to review the provisions of the law to be applied in the applicant's case by the Constitutional Court in the context of a specific standard check, once in the version applied to him on 27 November 2007 (first incapacity for work) and twice in relation to 29 May to 31 May 2009 (second incapacity for work).
31. Under the provisions of Section 66 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the proposal is inadmissible if the law, other legislation or individual provisions which are proposed to be repealed have ceased to apply before the application is served on the Constitutional Court.
32. The Constitutional Court expressed its view on the interpretation of that situation in a similar case (in relation to the possibility of termination of proceedings), in particular in the light of the finding in the sp. zn. Pl. ÚS 38 / 06 of 6.2.2007 (N 23 / 44 CollNU 279; 84 / 2007 Coll.), in which it summarised in detail all its relevant case-law relating to the issue. This finding may be referred to briefly; The Constitutional Court, in a somewhat simplified manner, concludes, inter alia, that, in the absence of explicit intertemporal provisions, i.e. in a situation where the legislator is silent both on the question of whether the claim under the previous regulation is maintained and on the applicability of the new regulation, it is necessary, according to the Constitutional Court, to adopt an interpretation which saves the meaning and substance of the fundamental law, in the present case the right to legitimate expectations. If the General Court, which has referred to the Constitutional Court pursuant to Article 95 (2) of the Constitution, is to apply the law in its version before its amendment, the possibility of the Constitutional Court to rule on the case by an academic, declaratory, statement stating the unconstitutionality of an already repealed legal provision is permitted. According to the cited finding, however, that procedure affects cases where the addressee is a public authority. True retroactivity in the event of the declaration of the unconstitutionality of an already repealed law and an assessment of previous facts by constitutionally conformal legislation with the effects of ex tunc on the public side does not constitute a breach of the principle of protecting citizens' trust in law, or interference with legal certainty or acquired law. However, the situation is different in cases of horizontal application of fundamental rights and freedoms. In relation to third parties, the principles of protection of citizens' trust in law, legal certainty, or acquired rights must be applied to these cases, and, in the sole possible case, the breach of the prohibition of retroactive application of the legal standard in the procedure for the control of standards for the horizontal application of fundamental rights and freedoms may be accepted to protect values falling within the framework of the material core of the Constitution in accordance with Article 9 (2).
33. In the present case, it is clear that this is a case in which public authority is the addressee and the exercise of fundamental rights has a vertical structure; Thus, there is nothing to prevent the review of the constitutionality of the already repealed or amended but, in particular, still applicable provisions of the contested law.
34. From a procedural point of view, it is also worth recalling, as the Senate of Parliament has also done in the above-mentioned statement on this proposal, that the amendments to the Salary Act implemented by the said Act No. 261 / 2007 Coll. have already been challenged as an unconstitutional one within the framework of several proposals for the annulment of that Act (see Act No. 261 / 2007 Coll.), or parts thereof (among which the relevant part of the 30th amendment to the Salary Act was mentioned here); they were decided by the Constitutional Court by finding sp. zn. Pl. ÚS 2 / 08 (see above).
35. In the cited finding (cf. paragraphs 33 to 36 in particular), the Constitutional Court stated, inter alia, that "the amendment does not have a separate legislative existence but is becoming part of the amended legislation... and as such, its constitutionality is assessed. If, in the procedure for the control of standards, the reasons for the absence of standard competence or breach of the constitutional procedure for adopting the law are derogatory, the constitutionality of the amendment itself is then assessed... '. The Constitutional Court has repeatedly' stressed that, when assessing the infringement of the law, or its individual provisions, it is bound by the constitutional order only by a petition and not by its justification... If the appellant opposes the content of the non-compliance of the law with the constitutional order, it is not sufficient for the purposes of constitutional review only to indicate the law (or its individual provisions) proposed for annulment, but also to state the reason for the unconstitutional plea. If the appellant does not bear the burden of allegation of unconstitutionality in the procedure for checking the standards, it cannot be regarded as contradictory with the provision of Paragraph 34 (1) of the Constitutional Court Act and therefore as ineligible de meritre hearing... The consequences of that conclusion are those parts of the petition in which a group of 67 Members sought the annulment of the part of the fifteenth to twenty-second, twenty-fourth to thirty-ninth and of the part of the forty-fourth act. In addition to procedural objections, no content (material) complaints were raised against these parts of the law by this group of plaintiffs (i.e. a group of 67 Members)."
36. In the present case, therefore, the contested legislation for the present proceedings does not have the consequences of rei iudicatae and the Constitutional Court could deal with the application in substance.
37. For the sake of clarity, it is appropriate to reiterate the text of the contested legal provisions, for which the Constitutional Court examined their compliance with the constitutional order of the Czech Republic as part of the so-called specific control of constitutionality.
38. Paragraph 34 (3):
"(3) A representative whose duties are governed by special legislation and the Labour Code, 9) and judges shall not, unless otherwise provided for, pay for the period during which he temporarily does not perform his duties for reasons for which there is no compensation for the staff under the Labour Code, 10) unless otherwise specified. '
39. Paragraph 34 (4) (as applicable and effective until 31 December 2007)
"(4) A representative whose duties are governed by special legislation and the Labour Code, 9) and a judge recognised as temporarily incapacitated shall be entitled to pay for a maximum of 20 working days for the same temporary incapacity to perform the duties or for more than one calendar year for the same period. For reasons and under the conditions laid down in the sentence, the other officials shall have their first salary for a maximum period of 30 calendar days. The assessment of temporary incapacity to perform duties shall be treated mutatis mutandis in accordance with the rules on the assessment of temporary incapacity for work.
9) For example Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, Act No. 166 / 1993 Coll., on the Supreme Audit Office, as amended.
10) Sections 127 and 128 of the Labour Code. '
40. Paragraph 34 (4) (as applicable and effective from 1.1.2009 to 1.7.2009)
10a) § 31 of Act No. 187 / 2006 Coll., on sickness insurance. '
41. This is the text of the legal provisions to be applied by the appellant (General Court) in the case of the applicant in the case in question (JUDr. R. H.), once in the version applied to him on 27 November 2007 and the second on 29 May to 31 May 2009.
42. The Constitutional Court has therefore taken a substantive review of these provisions. He didn't find it inconsistent with constitutional order.
43. At the outset, on the above text, it should also be noted that the provisions of § 34 (3) of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of State power and of certain state bodies and judges and Members of the European Parliament, as amended by Act No. 420 / 2002 Coll., clearly failed to recognise the changes and still apply as quoted. This could lead, at the outset, to consider that, in the event of its unconstitutionality, it could be abolished, and the Constitutional Court would not have to rule in this case (in relation to Paragraph 34 (3)) only by a declaratory statement. However, any discrepancy with the constitutional order cannot be found in relation to this provision - apart from its follow-up to the following Paragraph 34 (4) - (cf. wording:... the judge is not entitled, unless otherwise provided, to a salary for a period of time for which he is temporarily not performing his duties for reasons for which, under the Labour Code, workers are not paid compensation unless otherwise specified); that provision does not address a specific restriction in the material security of the judge in the wider sense, it is essentially merely a terminology for the following paragraph (§ 34 (4)), which already contains such a specific restriction. Paragraph 34 (3) cannot therefore, in substance and in the light of the arguments put forward by the appellant, be assessed by constitutional law separately from the provisions of Paragraph 34 (4) of the Salary Act.
44. As has already been indicated, the issue under examination falls, in a broader sense, within the scope of the safeguards on the material security of judges. The argument of the principle of judicial independence (Article 82 (1) of the Constitution), which included the Constitutional Court and aspects of material nature, was the main reason for many findings by the Constitutional Court in this area concerning the salaries of judges. In doing so, he repeatedly emphasised that judicial independence is one of the fundamental democratic values, which is undoubtedly supported by the material security of judges. According to the constant case law of the Constitutional Court, the principle of independent justice is one of the essential elements of the democratic rule of law within the meaning of Article 9 (2) of the Constitution.
45. The Constitutional Court has summed up several times [from a recent point of view of sp. zn.
46. - the assessment of the constitutionality of salary restrictions against judges for a specific period of a particular year falls within the framework defined by the principle of judicial independence,
47. - 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 because of the principle of the division of power and the principle of the independence of judges, which implies a different margin of discretion for legislators to pay restrictions on judges compared to those of such restrictions in other areas of the public sphere, and
48. - The interference in the material security of judges guaranteed by the law must not be an expression of the legislature's indiscretions, but must be justified, based on the principle of proportionality, by exceptional circumstances, such as the difficult financial situation of the State, even if this condition is met, taking into account the difference in the function of judges and representatives of the legislature and executive, in particular the administration of the State; Such intervention must not give cause for concern if the limitation of the dignity of the judges does not affect [see Recommendation No. (94) 12 of 13 October 1994 of the Council of Europe Committee of Ministers], or if it is not an expression of constitutionally unacceptable pressure of legislative and judicial power.
49. Thus, the other reason for the prohibition of arbitrary interference in the material security of judges (pay restrictions), taking into account the principle of their independence, is to exclude the eventuality of legislative or executive pressure on the decisions of courts and judges. The pay ratios of judges are to be stable, not a variable with which it calculates this or the government group, for example, because they seem to be too high for judges' salaries compared to those of civil servants or other professional groups.
50. The Constitutional Court, in its case law, has so far dealt with purely salary restrictions in relation to judges; These include cases where the judges were once removed or the so-called additional salary was reduced, which, by the end of 2004, was one of the demanding components of the remuneration of a representative of state authority for the performance of their duties, or where, in 2003 and 2004, the rate of increase in their salaries was reduced, etc. In the present case, however, the Constitutional Court is confronted with a completely different situation; is the situation of a judge temporarily recognised as unfit for work (to perform his duties). Therefore, the Constitutional Court had to consider whether, in the present case, any intervention in the material security of the judge could be discussed in the sense of the findings. In the opinion of the Constitutional Court, this question must be answered in principle in a positive way, but subject to the condition that the above-mentioned thesis, namely the principles contained in the Constitutional Court's findings concerning, in particular, pay restrictions, can only be applied in part to the subject under examination, mutatis mutandis. It is clear that the contested legal provisions (in the two contested versions of Section 34 (4) of the Salary Act) did not affect one of the legal components of the judge's remuneration, in particular the monthly salary, additional salary or some flat-rate compensation in a given calendar year as compared to the current situation.
51. The Constitutional Court does not intend to discuss every word of a detailed legislative solution to the issue under review in the contested legislation. Its substance - from a constitutional point of view - is clear; with effect from 1 January 2003 (since further amendments were already logically only in the form and content of the adopted solution), the adoption of Act No. 420 / 2002 Coll. has limited the period during which judges were fully paid even at the time of incapacity for work (for originally up to six months, unlimited in addition to the calendar year), as stated in the key passages of the explanatory report (both general and special) to that act, to which reference can be made.
52. The Constitutional Court has already stated [cf. the monthly income cannot be compared, in view of the existence of additional salaries paid only in certain months of the year, and the economic, budgetary and tax system is naturally built on the calendar year cycle. The quantification of the material security of judges in the form of a sum of their income in a calendar year is therefore a fundamental criterion for the Constitutional Court to determine whether or not a salary restriction has taken place as a result of the measure in the area of the remuneration of judges.
53. The Constitutional Court takes the view that a reduced salary in a situation where a judge is temporarily recognised as incompetent for the performance of his duties cannot be regarded as part of the regular income of the Judge; such income does not have the character of remuneration for the performance of its duties without further delay, it is provided on a non-regular basis and may never be granted to a judge; Therefore, any quantification in this sense is problematic over that annual period as it cannot be quantified clearly by the amount of money. It is clear that this is not a constitutionally inadmissible reduction in the salary of a judge, as regular pay and compensation for incapacity cannot be identified.
54. The Constitutional Court is of the opinion that, although there has been some restriction on the protection of judges at the time of incapacity for work (from a certain point of view also significant), this did not affect the level of material protection achieved by judges in such a way that it would necessarily lead to the consideration of whether the legislature's arbitrary procedure aimed at limiting judicial independence as the central criteria of constitutional law was no longer an option.
55. As regards the protection of judicial independence, which is also linked to adequate material security - but is primarily conditional on the moral integrity and professional level of the judge - the Constitutional Court adds that judicial independence is not a purpose in itself; is merely a means of achieving a higher objective (the nature of this value is instrumental), which is to become as close as possible to the idea of justice. The function of the courts is not socially important and prestigious only because of the financial evaluation of the judges, but especially because the general courts are also entitled and committed to protecting the values of the constitutional ones which are required to be a state, but sometimes against the state itself for the benefit of the people of the Czech Republic (cf. Article 4 of the Constitution).
56. The constitutional right to an unchanging level of protection of the judge in the event of his temporary incapacity for work cannot be derived from the constitutional order. The status of judges providing full pay for a long period, even in the event of incapacity to perform the duties, is not justified from a comparative point of view; in this respect, it is possible to acknowledge a certain relevance to the opinion contained (above) in the opinion of the Senate of the Parliament of the Czech Republic questioning this arrangement, inter alia, at the point of view of the principle of equality. The recommendation of the Committee of Ministers of the Council of Europe of 17.11.2010 on the Judgments of CM / Rec (2010) 12 [cf. the finding of the Constitutional Court of 2.8.2011 sp. zn. Pl. ÚS 16 / 11 (see above)] provides, inter alia, that in the field of financial security, a judge at the time of sickness and maternity should be ensured to maintain a reasonable level of remuneration; This is certainly not about the need to receive a salary or remuneration of the same amount as in the performance of his duties.
57. Thus, in the view of the Constitutional Court, the restrictions under examination do not in itself constitute a real negative impact on the material security of judges reaching the constitutional dimension. Indeed, the actual impact on the judge's income situation (e.g. in the annual accounts) - as already mentioned above - cannot be so high as to lead to doubts as to whether the judicial independence has already been violated as a standard of constitutionality defined above.
58. In conclusion, however, the Constitutional Court points out that any further restrictive arrangements in the area in question could already affect or exceed the limits of what can still be regarded as constitutionally conformal; This applies even if they are economically justified by the continuing need to stabilise public finances or solidarity with others. The category of material security for judges enjoying increased constitutional protection is wider than, for example, the reduction or freezing of salaries, and adequately (albeit less strictly) relates to all other monetary claims arising from the judicial function. It is also conceivable here that the legislator will adopt an anti-constitutional rule, which would then be left with the Constitutional Court to abolish; In this area, therefore, the interference with the futuro cannot be excluded.
59. In the present case, however, this did not occur and, therefore, the Constitutional Court rejected the proposal, as is clear from both the operative part and the justification for this finding.
60. The Constitutional Court considered that further clarification of the case could not be expected from oral proceedings and therefore, with the agreement of the parties, abandoned it (§ 44 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court).
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 245 / 2012 Coll., on the application for annulment of paragraphs 34 (3) and (4) of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of the State and of certain state bodies and judges and Members of the European Parliament, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 13.07.2012 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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