The Constitutional Court found no 267 / 2011 Coll.
The Constitutional Court's finding of 2 August 2011 sp. zn. Pl. ÚS 16 / 11 on the application for annulment of certain provisions of Act No. 425 / 2010 Coll., amending Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the function of representatives of state power and of certain state bodies and judges and Members of the European Parliament, as amended, and Act No. 201 / 1997 Coll., on the salary and other requirements of the Act No. 143 / 1992 Coll., on the salary and remuneration for the employment of officials and of certain other bodies and bodies of the European Parliament, as amended, as amended, and on the repeal of certain provisions of Law No. 236 / 1995 Coll., on the salary and other elements linked to the performance of the functions of the Heads of State Government and of Justice and Members of the European Parliament, as amended acts, as amended
Valid
The Constitutional Tribunal found
Text versions:
12.09.2011
267
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 16 / 11 on 2 August 2011 in plenary composed of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimir Krok, Dagmar Lastovecká, Jan Musil, Jiří Nykodemí, Pavel Rychetský, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of the Municipal Court in Brno for annulment:
I.
1. I part of First Act No. 425 / 2010 Coll., amending 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 authorities and judges and Members of the European Parliament, as amended, and Act No. 201 / 1997 Coll., on the salary and certain other formalities of the prosecutors and on the amendment and addition of Act No. 143 / 1992 Coll., on the salary and remuneration of the duty of office in the budgetary and in certain other organisations and bodies, as amended, as regards judges of the District, Regional and Supreme Court of Justice, the Supreme Court of Justice and the Supreme Administrative Court of Justice, in case and as regards the Judges of the Constitutional Court,
2. Part of the First Act No. 425 / 2010 Coll., amending Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the duties of representatives of the State Government and of certain state authorities and judges and Members of the European Parliament, as amended, and Act No. 201 / 1997 Coll., on the salary and certain other formalities of the prosecutors, and on the amendment and addition of Act No. 143 / 1992 Coll., on the salary and remuneration for the duty of officials in the budgetary and certain other organisations and bodies, as amended, as amended, as far as it governs the judicial base of the judges from 2011 to 2014 (§ 3b (1), and (2), in case, and in so far as it regulates the salary basis of the Judges of the Constitutional Court of Appeal in 2011 to 2014 to 2014 (§ 3a);
II. in event
1. Paragraph 3 (3) of the 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. and Act No. 425 / 2010 Coll., as regards judges of the District, Regional and Supreme Courts, Supreme Court and Supreme Administrative Court, in event and as regards judges of the Constitutional Court,
2. the provisions of § 3b (1) and (2) 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. 425 / 2010 Coll.,
in event:
3. Clause 3a 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 institutions and judges and Members of the European Parliament, as amended by Act No. 425 / 2010 Coll., as regards judges of the Constitutional Court,
as follows:
I. Paragraph 3b (1) of the 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 by Act No. 425 / 2010 Coll., shall be deleted from the date of the publication of this finding in the Collection of Laws.
II. The remainder is rejected.
Reasons
Definition and recap of the proposal
The Constitutional Court received on 10 March 2011 a proposal from the Municipal Court in Brno to abolish the parts of Act No. 425 / 2010 Coll., amending Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the duties of representatives of the State Government and of certain state authorities and judges and Members of the European Parliament, as amended, and Act No. 201 / 1997 Coll., on the salary and certain other formalities of the prosecutors, and on the amendment and amendment of Act No. 143 / 1992 Coll., on the remuneration and remuneration of officials and judges, as amended by Act No. 425 / 2010 Coll. The application in question was accompanied by a submission by the appellant before the Constitutional Court on 25 May 2011.
The appellant did so pursuant to Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court), after having concluded, in the context of its decision-making activities in accordance with Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), that:
• Paragraph 3 (3) 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 by Act No. 309 / 2002 Coll. and Act No. 425 / 2010 Coll., as regards judges of the District, Regional and Supreme Courts, Supreme Court and Supreme Administrative Court, in the event and concerning the Judges of the Constitutional Court,
• the provisions of § 3b (1) and (2) of Act No. 236 / 1995 Coll., on the salary and other formalities connected with 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 by Act No. 425 / 2010 Coll.,
• Article 3a 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. 425 / 2010 Coll., as regards judges of the Constitutional Court,
which are to be used in the resolution of sp. zn. 35 C 35 / 2011 are contrary to Article 1 (1) in conjunction with Articles 81 and 82 (1) of the Constitution, or Article 83 of the Constitution, and Article 2 (1) of the Constitution, Article 1 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter ') and Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as" the Protocol').
In this case sp. zn. 35 C 35 / 2011, the Municipal Court in Brno decides on the action which the judge of the Brno Regional Court seeks to pay the amount of CZK 21 500 against the Czech Republic - Brno Regional Court. This is the difference between the claim of the plaintiff within the meaning of § 28 to 31 of Act No. 236 / 1995 Coll., as well as 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, (hereinafter referred to as "Act No. 236 / 1995 Coll.," or "the Law on Salary" or "the Salary Act" or "the Salary Act"), and the claim on the multiple-purpose flat-rate reimbursement of expenses (hereinafter referred to as "Reimbursement of the Salary Act No. 236 / 1995 Coll.," and other elements associated with the performance of the representatives of the State authorities and judges and Members of the European Parliament, as amended by Act No. 201 / 1997 Coll.
The appellant relies on a statement that, when dealing with the case in question, Paragraph 3b (1) of the Salary Act, as amended by Act No. 425 / 2010 Coll., determines the salary base for 2011, must be applied. In order to assess the claim claimed (the applicant requests a difference in salary and reimbursement of expenses arising from the setting of the ad hoc base for 2011 and from the reduction of the salary base in general), it also considers that Article 3 (3) of the Salary Act, as amended by Act No. 425 / 2010 Coll., should be applied as from 1 January 2011. It considers the interpretation of Article 95 (2) of the Constitution to be unsustainable, which would allow a separate assessment of the constitutionality of Section 3b (1) of the Salary Act (restriction for 2011) from the adjustment which led to a reduction of the remuneration base and the average wage in the non-business sphere (i.e. the adjustments contained in Section 3 (3) of the Salary Act) and which would result in the need for a repeated application by the Court in the same legal case. In addition, according to his view, the intention of the legislator to propose an amendment to the provision of Paragraph 3 (3) as "insurance before the intervention of the Constitutional Court ', as stated in the explanatory memorandum to print 133 (Government Bill, Annex 3), would be fulfilled. It also points out that the setting of a salary base for the years 2012- 2014 (freezing of a salary base) is so intrinsically linked (both in form and content) to the arguments underlying the relationship of the salary base for 2011 and Article 3 (3) of the Salary Act that it lacks procedural logic to separate this provision (Section 3b (2) of the Salary Law) from those whose use is undoubtedly more direct in the present case. In order to fulfil the conditions of active legitimacy, it then refers to the legal opinion of the Constitutional Court contained in the finds sp. zn. According to the appellant, it is not possible to imagine the existence of § 3b (2) of the Salary Act (i.e. the determination of a salary base in the years 2012- 2014) after the Constitutional Court found this proposal to be justified in relation to § 3b (1) and § 3 (3) of the Salary Act. In addition, the appellant is convinced that its active legitimacy also affects the consequences of the contested amendment of the salary law, incorporated in the title of the fourth Constitution governing the power of the judicial authorities (namely in the relationship between the elements of state power, but also in the hierarchy of relations within the various elements of state power), and since the Constitutional Court, as a judicial authority for the protection of constitutionality, is incorporated in the title of the fourth Constitution governing the power of the judicial authorities, also acts in a clear hierarchy of relations in relation to the general courts, the constitutionality of the legislature's intervention in the remuneration of the judges of the Constitutional Court of First Instance must be assessed in the context of this proposal under the Municipal Court of First Instance in its broader sense.
Referring to the finding of the Constitutional Court sp. zn. Pl. ÚS 12 / 10 of 7. 9. 2010 (269 / 2010 Coll.) in its proposal, the Municipal Court in Brno contends that the amendment of Act No. 236 / 1995 Coll., approved by the two chambers of Parliament and declared under No. 425 / 2010 Coll., was not under the jurisdiction of the Court of Justice, the judicial authority had no opportunity, during the preparation of the decision of the Government, to present its arguments and defend its position, since the judges were given a worse position than any public servants whose representatives the government had negotiated in the last year on salary issues, a worse position than other groups of staff not satisfied with the level of remuneration they had negotiated in the year. The Minister of Labour and Social Affairs submitted a proposal (under No. 2010 / 58228-52) in August 2010, which he did not intend to intervene in any way in Section 3 (3) of the Salary Act (method of determining the salary base) and limited the restriction to a single year, namely 2011 to a specific amount of the salary base of CZK 51 844. On 6 October 2010, however, the Government approved by Resolution No 720 a proposal completely different, which did not pass any hearing - this is also mentioned in the explanatory memorandum to the Government Bill (print 133), which reduced the pay base and wage level in the non-business sector from three times to 2.5 times, in addition to reducing the ad hoc salary base for 2011 and another ad hoc level for 2012- 2014. The statement in the explanatory memorandum that the proposal "reacts to the results of the reminder procedure..." is considered by the appellant to be completely misleading, since the opinions used (but on another proposal), for example, by the Supreme Administrative Court or the Judicial Union of the Czech Republic do not respond in any way. According to the Municipal Court in Brno, the provisions of Section 86 (3) of Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, as amended by Act No. 282 / 2004 Coll., were infringed by this procedure, since the draft law No. 425 / 2010 Coll. contained a reasoned report which did not contain the opinion of the judicial authority as a requirement required by the Constitutional Court under point 25 of the Act No. 12 / 10, which, according to its belief, is of a constitutional dimension with regard to the principle of division of state authority (Article 2 (1) of the Constitution). The appellant also relies on comparative analysis, in particular on the decision of the Constitutional Court of the Republic of Latvia of 18 January 2010 sp. zn. 2009- 11-01 and the decision of the Canadian Supreme Court of Reference re Remuneration of Judges of the Provincial Court (P.E.L) [1997] 3 S.C.R. 3. The two decisions conclude that, in order to avoid the possibility of political influence of justice, an independent body, whose expression is not binding, must be involved in the process of possible interference with the salary of judges, but without such an authority, any change in the judicial salary is unconstitutional.
The ground for the substantive illegality of the contested legal provisions depends on the recap of the relevant case-law of the Constitutional Court. In his view, the following basic thesis contains:
- 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 Court's finding sp. zn.
- the constitutional position of the judges, on the one hand, and the representatives of the legislative and executive powers, in particular of the state administration, on the other hand, is different because of the principle of the division of power and the principle of the independence of the judges, which implies that the legislature has a different margin of discretion in terms of pay restrictions vis-à-vis judges as compared to the availability of such restrictions in other areas of the public sphere [Constitutional Court Opinion No 55 / 05 (paragraph 49)];
- intervention 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 fulfilled, taking into account the differences in the function of the courts and officials of the legislature and executive, in particular the administration of the State; Such intervention must not give rise to any concern as to whether it affects the limitation of the dignity of the judges, for example if the expression of the constitutionally unacceptable pressure of legislative and judicial power is not [Constitutional Court finding, p.
- the principle of an independent judiciary is one of the essential elements of the democratic rule of law within the meaning of Article 9 (2) of the Constitution [Constitutional Court finding sp. zn.
- the legislature's arbitrary intervention in the area of material protection of judges, including in the context of pay restrictions, must be placed under the framework protected by the principle of independence for two reasons. The independence of judges is primarily conditional on their moral integrity and professional level, but is also linked to their adequate material collateral. The second reason for subjecting the prohibition of arbitrary interference in the material security of judges (pay restrictions) to the principle of their independence is to exclude the possibility, possibly the coercion of legislative or executive powers in the decision-making process of judges, in other words, to exclude arbitrary interference in the material security of judges as a possible form of "penalisation" of judges by the legislature and the executive body, and thus the form of coercion on their decision-making [the Constitutional Court's finding spr. Pl. ÚS 43 / 04 of 14.7.2005 (N 139 / 38 SbNU 59; 354 / 2005 Coll.)];
- the pay ratios of judges in the broad sense are to be stable, not a variable with which it calculates this or that of the government group, for example, because it finds the fees of judges too high compared to those of civil servants or to another professional group. Efforts for such equality deviates from the category of constitutionality, a political objective which does not support the constitutionally understood principle of equality [the finding of the Constitutional Court sp. zn.
- a measure where the judge is withdrawn or reduced by the claim component of the remuneration should be regarded as a salary restriction, without such withdrawal or reduction being compensated by an increase in another claim component of the remuneration [the Constitutional Court's finding, sp. zl.
- another form of pay restriction should also be considered as a freeze of the statutory increase in the income of judges or of other constitutional officials, for example, a "permanent" salary freeze would undoubtedly be regarded by the Constitutional Court as a step constitutionally inadmissible. The pay ratios of judges in the broad sense are to be stable, as long as there are no exceptional exceptional circumstances of the State [Constitutional Court finding sp. zn. Pl. ÚS 13 / 08 (paragraph 41), mutatis mutandis that of sp. zn. Pl. ÚS 55 / 05 (paragraph 55)];
- a significant element of the guarantee of adequate material security for judges in terms of the principle of the division of state power into legislative, executive and judicial powers and the requirement of their mutual balance should also be considered as a direct link between the salary of the representatives of the legislature and executive on the one hand and the salary of the judges on the other hand. The construction of the Law on the salary of representatives of state power, which, with the help of the uniform salary base and the legal coefficients laid down by law, guarantees that, together with the increase in the salary of legislative and executive officials, the legal salary of judges will automatically increase, thus constitutes an important, built-in insurance in the legal order, that the ratio in the material security of the representatives of individual powers will be maintained in the future [Constitutional Court finding sp.
The appellant points out that the Constitutional Court also maintained the above arguments in its most recent case-law [see the findings of Pl. ÚS 12 / 10 (above) and Pl. ÚS 22 / 09 of 7.9.2010 (309 / 2010 Coll.), paragraph 40].
In favour of the conclusion on the unconstitutionality of the contested legal provisions, the Municipal Court in Brno also refers to a number of international documents. First of all, it points out the recommendation of the Council of Europe Committee of Ministers of 17 November 2010 on the CM / Rec (2010) 12 judges (Annex 5) [http: / / www.coe.int], which replaced the earlier Re Recommendation (94) 12. It follows from Articles 53 to 55 concerning the remuneration of judges that:
- the basic rules governing the remuneration of judges must be laid down by law,
- the remuneration of judges must express their role and responsibility and be at a sufficient level,
- the maintenance of a reasonable level of remuneration should be ensured at the time of sickness and maternity,
- the pension of judges should be in reasonable relation to the former salary,
- there should be special legal provisions preventing the salary of judges from falling.
From other international documents, the appellant draws attention to the report of the European Commission for Democracy through Law (Venice Commission), adopted from 12 to 13 March 2010 (Annex 6 - Part III, Article 6) [http: / / www.venice.coe.int], which states: "The Venice Commission considers that the financial evaluation of judges must be consistent with the dignity of their profession and that adequate evaluation is a prerequisite for protecting judges from undesirable external influences. [...] The evaluation level should be determined taking into account the social circumstances in the country and compared with the rating rate of senior officials. '; Finally, in the framework of the comparative analysis, the conclusions of the Advisory Committee of Judges in the framework of the activities of the Council of Europe, Conseil consultatif de juges européens (CCJE), of 2001 (Opinion No 1 (Avis No 1)), in which the need for legal provisions to prevent the reduction of the salary of judges and to ensure a de facto increase in salaries to maintain their value in relation to life costs (http: / / wcd.coe.int /) is emphasised.
In a further part of its proposal, the Municipal Court in Brno takes note of the development of the legislation on the material security of judges, in particular the development of its intentions, as well as the change of relations in relation to the material security of employees in the public administration. The material security of judges' salaries and the multipurpose reimbursement of expenses was enshrined in the Labour Act in the 2nd half of the 1990's, with the Judge's salary being constructed as the product of the salary base and the coefficient of classification, the reimbursement of expenses being determined by a share of the salary base of 5,5%. The salary base was derived from the highest fare of the Ministry official as double. The appellant accentuates the fact that the principle followed by this regulation, which was raised when discussing this concept of the remuneration of judges, was, among other things, the principle of the continuity of pay relationships between different functions and the principle of equal and automatic movement of salaries and other elements of the national and civil servants. At the same time, it was assumed that "the often undignified and politically misused negotiations on the level of pay in Parliament will fall once and for all '(stenorecord of the 34th meeting of Parliament of the Czech Republic, Chamber of Deputies, 1996, Part 6 / 32 - Annex 9). In 2002 [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 so-called accompanying Act on the draft Staff Act, the Government's proposal submitted to the Chamber of Deputies as a copy 794 - Annex 10] was amended (with effect from 1 January 2004) by forming three times the average salary of a natural person in the non-business sphere for the previous year according to published data of the Czech Statistical Office (§ 3 (3). 3 of the Act on Salary). The appellant states on this change that the result was a decline in the judge's salary in relation to the public salary, and that, according to him, the reasons which led to a strong reduction in the pay of judges and employees in the public sphere (from the original session to about 4.3 to 3.0) were never convincing and that Parliament did not actually address them at all. The press 794, in its explanatory memorandum to Article XXXV, stated that the link between the ministerial salary tariff and the constitutional base of the constitutional officials led to differences in salary increases and, in particular, to the proposed Staff Act, which was intended to significantly strengthen the conditions of service in the administration and to the" corresponding civil servants' valuation '. While maintaining the existing way of establishing the salary base, the salaries of constitutional officials would automatically increase "without changing the conditions for the performance of their functions." Therefore, a change was proposed "to establish a stable link between the salaries of constitutional officials and wage developments in the non-business sphere. In relation to the possibilities of pay differentiation... it is possible to consider the salary base as a reasonable relation to the average wage in the non-business sphere of three times." The municipal court notes, however, that the basic precondition for the reduction of the salary base and the change of its construction was not fulfilled at all: [Act No. 218 / 2002 Coll., on the service of civil servants in administrative offices and on the remuneration of these employees and other employees in administrative offices (the Staff Act)] has not yet become effective and civil servants are kept under the obligations of the Labour Code. However, the level of the salary base has not been reassessed. According to the appellant, the construction of a salary base as three times the average salary of individuals in the non-business area for the previous year (i.e. with a two-year time lag) constituted a significant intervention in the level of the judge's salary, but in the situation after the great flood of 2002 it could appear to be an acceptable intervention for future developments in the remuneration of judges. The change was related to the change to the 16-class remuneration system of officials whose highest rates increased from CZK 18570 to CZK 27700 between 2002 and 2004 (Government Decree No. 330 / 2003 Coll., on the pay ratios of employees in public services and administration), and the maintenance of the original system of setting the salary base would lead to its corresponding growth, which, as the applicant states, did not want to accept the executive power. In his view, therefore, the salaries of judges have been left to the same level since 2002, so that the salary base will fall in the necessary manner, and he considers it to be a sign that in the explanatory report to print 133, this restriction is called the "evolutionary method of correcting the erroneous salary base'.
The appellant further puts forward arguments in favour of the allegation of the nullification of judicial salaries compared to the level of public pay. In this context, it takes note of the intention and content of Act No. 427 / 2003 Coll., which provides for an exceptional measure for 2004 to determine the amount of the salary and certain reimbursement of expenses associated with the performance of the duties of representatives of the State and of certain state authorities, Members of the European Parliament, Judges and prosecutors, the amount of the additional salary of those persons for the first half of 2004 and amending certain related laws, as amended, and Act No. 261 / 2007 Coll., on the stabilisation of public budgets, as amended, which did not raise the salary base for determining the level of judges' salary for the years 2002 to 2004 and 2008 to 2010 respectively. According to him, for decades after 2000 (not to mention the period before this year), in relation to the material security of judges, it was marked by restrictions, under the slogans of "public finance reform 'or" stabilisation of public finances', which was not chosen by the State to any group of State employees; in this period, salaries in the public sphere have increased steadily, with significant advantages being granted to certain groups of persons (for example, members of armed forces have material security that the judges do not enjoy, although the nature of their activity will be borne in a number of respects of comparison and their constitutional status would justify such a type of material security customary in democratic countries). The appellant points to the economic situation of the state, seen by the annual increase in real GDP in 2003-2007 in record values of 3.6-6.8% (source: CSU: Czech Republic in figures - Annex No 15), projected GDP growth of 2.3% in 2010, macroeconomic predictions of the Czech Republic (source: Ministry of Finance, January 2011 - Annex No 17), which foresees wage increases of 2,6%, 2,9% and 4,1% in 2012, as well as losses of public resources, resulting in the existence of resources for material security of the judiciary at a level that was set in 2002 following devastating floods. The Municipal Court in Brno further notes that the Government, as the promoter of the contested law in the explanatory memorandum (press 133), stated that the so-called "salary base" was reasonably higher than in previous years' (until 31 December 2010, the frozen base was CZK 56 847, the base under Section 3 (3) of the Salary Act from 1 January 2011 is CZK 57 747), without any analysis of the evolution of public salaries and did not justify in any way (in addition to quantifying the costs of the state budget associated with the renewal of the legal salary mechanism as three times the average public salary), why it considers such interference to be necessary and necessary in the legal and in the long-term legitimate relations. For the above, it considers its practice to be an expression of insolence.
Law No. 236 / 1995 Coll. was adopted, inter alia, to stabilise the situation of the judiciary in connection with the departure of judges to more lucrative legal professions. The result after 15 years is, as demonstrated in its proposal by the Municipal Court in Brno, the decline in the salary base and average public salary from 4.38 in 1996 to 2.34 in 2011, i.e. by 46%, i.e. almost half.
In particular, the appellant shall accentuate the evolution of the ratio between the salary of judges and the salary of senior officials. It recalls that in the programming declaration (Annex No 18), the Government stated that "sees the function of judge as the peak of all legal professions' (for example, the conditions for appointment of judges). The salary of a judge, not at the very beginning of his professional career (with 8 years of experience), must be compared to that of a senior official (as the internationally recognised standards also do); as such an official, considers the Director of the Department of Central Government Administration (or Chief Executive) in a situation where the management system of central government bodies is in no way regulated today. The judge of the District Court with eight years of practice is to have a monthly salary of CZK 54 600 in 2011, CZK 57 500 in 2014. In relation to the average public salary achieved in these years, it will be 2.3 to 2.4 times. However, this will be a salary which, after 5 years of experience, will normally be paid by university graduates in 2014 (People's newspapers published the result of the survey on 15 February 2011, according to which the salary of a graduate of the Faculty of Law of the Charles University in Prague is currently an average of CZK 43 049 for four to five years). According to published data from the information system on the average earnings of the Ministry of Labour and Social Affairs (extracts for the years 2003- 2009), the average monthly salary of the head of the Central Government Department increased by 33% in the years 2003- 2009 and was CZK 66734 in 2009, while the 9th Decil amounted to CZK 88751 (that means that almost 15% of the gross salaries of the directors of the Central Authorities was higher than CZK 88751). This means that a judge of high working age receives only about 2 / 3 of the salary of better-paid senior civil servants and is nowhere near average. In 2003 the salary of the judge was CZK 47,000 and the average salary of the head of the department of the central administration was CZK 50 187. In 2009 the difference was CZK 57 400 (judge) and CZK 66 734 (director of the department).
The average salary of the head of the Central Government Department in 2009 according to the above-mentioned source (ISPV MPSV) is 2,8 times the average public salary in the same year (CZK 23 099), with 25% of these salaries exceeding CZK 74 917 (3rd quarter), i.e. 3.2 times the average salary, and almost 15% of the amount of CZK 88 751, or 3.8 times the average salary. The salary of the district court judge with almost 10 years of experience before the 40th year of age (i.e. during a period of high living and professional productivity) in 2011 (at CZK 54 600) is 2.3 times the average salary (estimated average salary: CZK 22 869, i.e. 1% decrease in 2011 compared to 2010), in 2012 and following this ratio will be about 2.4 times the average salary. These differences are considered entirely unfounded by the appellant. In his view, the development of the relations in question constitutes a nivelisation which reaches an unconstitutional dimension to this extent. From a comparative point of view, it refers to a report issued by the Council of Europe in 2010, including the figures for 2008 [available at www.coe.int / (System judiciaires européens, édition 2010)], which compares the gross income of the judge at the beginning of his career with the average gross wage in Table 11.11 (Annex 8). According to it, the average session in the Council of Europe is 2.5, the Czech Republic has a value of 2.1 in 2008: higher values have such countries as Armenia, Bosnia-Herzegovina, Azerbaijan, Lithuania, Latvia, Estonia, Montenegro, Romania, Russia, Serbia, Slovakia. In many countries of the Council of Europe, judges enjoy different types of additional benefits (special pensions, housing-related refunds, reduced taxes, special types of life or health insurance, cars with drivers, representation costs or other types of benefits) with which 5.5% of the reimbursement of expenses for representation and literature of Czech judges cannot be compared. According to the appellant, it is not possible to point out lower values of this indicator for countries with continuous democratic developments after World War II, since in them even lower relation to average wages means undoubted jurisdiction of the judge to the middle class.
From the point of view of constitutional legal argument, the appellant contends - based on the outline of the development of the material security of judges after 1995 - that is, first and foremost, a legitimate expectation. It is based on the statement that the provision of Section 3 (3) of the Salary Act (laying down the rule for determining the salary base as three times the average salary in the non-business sector for the previous year) was incorporated into the Salary Act No 309 / 2002 Coll. with effect from 1 January 2004, it was incorporated in this form for a period of seven years, as a rule which replaced the original structure binding the salary base with the highest fare of the Ministry official. Since the adoption of Act No. 309 / 2002 Coll. so all judges (but also other constitutional officials) enjoyed a legitimate expectation that this already reduced level of their income was socially accepted and that it would be provided to them as part of material security within the framework of judicial independence. If this level was then suspended for a predetermined period, the judges had a legitimate expectation that the end of that period would again be the recipients of the salary which would guarantee the socially stable session. The Chamber of Deputies approved the government proposal submitted to it on 12 October 2010 on 10 December 2010, i.e. 20 days before the expiry of the three-year moratorium, reducing the session to 2.5 times - in absolute terms from CZK 69 297 (average salary in 2009: CZK 23 099 x 3 = CZK 69 297) to CZK 57 747. The Senate approved the bill six days later on 16 December 2010 and the President of the Republic signed it the following day after delivery on 17 December 2010. According to the appellant, the legislator's procedure documents concerns about the possible late adoption of this law. The impact on this legitimate expectation occurred just days before the end of the period after which the expected relations would return. The law was declared on December 30, 2010, when there was only one day left to restore expected relations.
According to the City Court of Brno, the legislature thus affected the legitimate expectations of judges within the meaning of Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms, in accordance with the case law of the European Court of Human Rights (judgment of the European Court of Human Rights of 22 June 2004, Broniowski v Poland (complaint No 31443 / 96, Reports 2004-)), and Article 1 of the Constitution (resulting in the principle of legitimate expectation as part of a democratic rule of law). In support of its claim, the appellant also refers to the comparative argument, by reference to the decision of the Constitutional Court of the Slovak Republic (page PL / 05 of 28 November 2007), which stated the inconstitutionality of the law (s), which, for several years (2003-2006), delayed the effectiveness of the law according to which the judges received a further salary. It did so with reference to the principle of legitimate expectations, clarity, stability and legal certainty, based on the general principle of the rule of law, according to which, in the view of the Constitutional Court of the Slovak Republic, it is not possible to talk about "temporary 'if the interventions last for several years. The application also refers to the decision of the Constitutional Court of the Republic of Latvia (sp. rev. 2009- 11-0 of 18.1.2010), which assessed the legal regulation of the material security of judges also by the principle of legitimate expectations.
Moreover, the appellant is convinced that this intervention was not sufficiently justified by the public interest. According to the explanatory memorandum and stenographic records from the consideration of the draft law (House Press 133, Senate Press 9), the amendment of Paragraph 3 (3) to the salary law was incorporated as a policy addressing the consequences of a possible derogatory statement by the Constitutional Court - the appellant already considers this objective to be grossly contradictory with the principle of democratic rule of law (submit and adopt laws as safeguards against possible interference by the Constitutional Court). The fact is, as it further states, that even a salary base of 2,5 times will not be used between 2011- 2014, as it will be suspended by the ad hoc bases provided for in Section 3b (and Section 3a) of the Salary Act in order to save: the explanatory report to the press 133 states: "it is necessary to save in all areas financed by the State budget '. In order for a given normative purpose to be constitutional, it must be demonstrated, according to the appellant, that a given normative instrument conforms to the stated purpose and meets the requirements (possible pluralism of possible normative means in relation to the intended purpose and their subsidiarity in terms of limitation of the Constitution of Protected Value). It states that if, for the period 2008-2014, i.e. for seven years, the salary base is maintained at the level of the average public salary in 2005, it can be predicted that the 2011 situation will be repeated in 2015, with 2.5 times the performance of which will require a" jump' increase; Such an approach cannot be judged otherwise than as a permanent salary moratorium, which cannot be regarded as constitutionally conformal. According to the City Court in Brno, the restrictions, if they really are to be restrictive and not permanent interference in the security of judges, must be relatively short-term and must, after the reasons for which they were introduced, lead to a return to the values originally set. The costs calculated by the explanatory note to Act No. 425 / 2010 Coll., associated with the return to the salary base at a level of three times the average salary in the public sphere, amount to CZK 814 million for all constitutional agents, with revenue from the state budget for 2011 being CZK 1,044 billion, spending CZK 1,179 billion, deficit CZK 135 billion. However, according to the appellant, the economic difficulties of the state cannot be underestimated, this is not an amount that would be fatally jeopardised by the state budget. In this context, it points out the practice of the Republic of Poland, where the Constitutional Court admits interference in the salary of judges only in a situation where the Polish Constitution prohibits the general debtor of the State (that is, in a situation where the public debt would exceed 3 / 5 of the value of the annual gross domestic product - Decision C 12 / 03 of the Constitutional Court of the Republic of Poland).
The appellant considers the intervention in Article 3 (3) of the salary law to be contradictory to Article 1 (1) of the Constitution, in conjunction with Article 82 (1) of the Constitution, Article 2 (1) of the Constitution, as well as Article 1 of the Protocol, which imposes on the State the obligation to ensure that judges are also materially independent, as a guarantee of impartial and fair decision-making, which further implies the principle of legitimate expectation and the right to good law, as well as Article 1 of the Charter of Fundamental Rights and Freedoms which provides equality in law, since the legislator has adjusted the judge's circumstances with a view to come closer to niverging in consequence. It also sees Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms, where the judicial authority has been excluded from the process of preparing and consulting the contested law, and also Article 89 (2) of the Constitution, i.e. in connection with the breach of the binding effect of the Constitutional Court's findings.
It further states that the situation in the present case is similar to that which was assessed by the Constitutional Court in the decision of the Constitutional Court on page Pl. ÚS 2 / 02 of 9.3.2004 (N 35 / 32 of the SbNU 331; 278 / 2004 Coll.) and when it considered that it was appropriate to repeal the amendment of the law, resulting in the restoration of the legal situation prior to non-constitutional intervention. It considers that in relation to the intervention in § 3 (3) of the salary law by Act No. 425 / 2010 Coll. it is necessary to talk not only about the amendment of the law, but about the material of the ad hoc departure from the generally established rules clearly defined by the previous text of the law. The general rule of the salary base is not to be applied until 2015, which is in addition a complicated "insured 'scheme against the intervention of the Constitutional Court. This, according to the appellant, means the complete exclusion of legislation ensuring a link to the level of public pay for a cumulative period of 7 years (2008-2014) and breaking it through ad hoc amounts. The procedure of the analogous procedure in the case sp. zn. In his view, the absence of a communication from the Ministry of Labour and Social Affairs on the level of the salary base in the Collection of Laws is not an obstacle to the enforceability of a possible finding of the Constitutional Court - on the one hand, such a communication should be issued immediately, and, should this not happen, the calculation of the salary base can be done according to data on the average nominal monthly wage of individuals in the non-business sector published by the Czech Statistical Office (these data are available until 2009). According to the appellant's conviction, this petition is in full line with the conclusions expressed by the Constitutional Court in the decision of 8 February 2011 sp. zn. I. ÚS 1696 / 09, available at http: / / nalus.ujud.cz (in particular paragraphs 36-37).
In another part of its proposal, the Municipal Court in Brno submits arguments in favour of the alleged unconstitutionality of the contested provision of Section 3 (3) of the Salary Act. It states that the legislature has chosen an ad hoc method for this purpose (for 2011 there is a 5% decline in the 2007 base used until 2010, i.e. from CZK 56 847 to CZK 54 005, for 2012- 2014 in the amount of CZK 56 849, which is 2 CZK higher than in 2007-2010). The aim of the explanatory memorandum (print 133) is to reduce the salaries of representatives of all three powers in connection with the necessary austerity measures in public budgets; This measure is to be proportionate to the necessary austerity measures in other areas financed from public resources, such as wage restrictions for non-business workers. A "milder measure" was chosen for judges than for other constitutional agents [5% in 2011, then freezing at 2007 level (+ 2 CZK) until 2014]. Furthermore, the explanatory memorandum points out that, without this measure, "there would be a disproportionate disproportion to the level of the salaries of the representatives of state power vis-à-vis the whole non-business sector ', and further argues that" the austerity measures for the representatives of power, executive and legislative, as well as for public service and administration employees, are significantly higher'. The draft law "is based on the fact that the consequences of the global economic crisis, which affect and will affect all areas of society in the future, are exceptional and exceptional circumstances of the State, which justify some savings even in the salaries of judges, albeit significantly lower than those of other representatives of state power and all employees whose salaries are paid by the State budget." The explanatory memorandum also states that "the proposed adjustment, together with the adjustment contained in Act No. 261 / 2007 Coll., on the stabilisation of public budgets, and in Act No. 418 / 2009 Coll., by which salaries were first frozen in 2008 and 2009 and subsequently reduced in 2009 by 4%, can be considered as a comparable measure to the proposed remuneration solution in public administration and services'. Finally, the explanatory memorandum refers to the finding of the Constitutional Court, sp. zn. Pl. ÚS 18 / 99 of 3.7.2000 (N 104 / 19 SbNU 3; 320 / 2000 Coll.), which dealt with the withdrawal of so-called additional salary for the second half of 1997 - and referred to the European Commission's assessment report on the Czech Republic, which stated that" judges' salaries are relatively high 'in other areas, such as police and administrative structures, were referred to low levels of pay. In addition, the explanatory memorandum adds: "These differences have been achieved mainly due to the erroneous way of establishing the salary base [...] evolutionary correction process will take many years. The state's economic situation has never allowed a significant increase in salaries paid by the state budget, so today's situation, except perhaps for the police and other armed forces, is not very different from that of 2000. In addition, these employees will have a significant reduction in their wage funding. Therefore, the mitigation of the further severance of the level of salaries paid by the State budget cannot be regarded as an attempt to increase the size of the Community's view, as it is also a matter of mitigating the unjustified differences in the level of pay and in order to achieve proportionality when spending funds on salaries from the same source, i.e. the State budget." The appellant considers the reference to the 2000 European Commission assessment report to be impracticable, since the relation between the salary base and the average salary of judges and the salary base and the average public service salary was 3,7 in 1999 and only 2,34 in 2011.
In this connection, the appellant adds information on the level of public administration salaries received from the Judicial Union of the Czech Republic, which, in accordance with Act No. 106 / 1999 Coll., on free access to information, as amended, requested the various ministries to review the salaries of directors of trade unions, senior directors and deputy ministers. According to the data thus obtained, the appellant produces an overview of the average salaries of the directors of trade unions, senior directors and deputy ministers at each ministerial office in 2010:
| 2010 | ||||
|---|---|---|---|---|
| průměrný plat | počet osob | průměrný plat | počet osob | |
| Ministerstvo zemědělství | Ministerstvo práce a sociálních věcí | |||
| ředitel odboru | 48 404 | 127 | 79 498 | 19 |
| vrchní ředitel | 77 939 | 15 | 122 192 | 5 |
| náměstek ministra | 100 315 | 8 | 120 264 | 4 |
| Ministerstvo spravedlnosti | Ministerstvo životního prostředí | |||
|---|---|---|---|---|
| ředitel odboru | 91 738 | 14 | 64 262 | 37 |
| vrchní ředitel | 126 964 | 3 | 86 821 | 1 |
| náměstek ministra | 136 898 | 5 | 89 447 | 4 |
| Ministerstvo obrany | Ministerstvo dopravy | |||
|---|---|---|---|---|
| ředitel odboru | 60 975 | 33 | 56 492 | 21 |
| vrchní ředitel | 77 800 | 10 | 72 140 | 6 |
| náměstek ministra | 86 391 | 7 | 81 924 | 5 |
| Ministerstvo zahraničních věcí | Ministerstvo pro místní rozvoj | |||
|---|---|---|---|---|
| ředitel odboru | 62 550 | 49 | 66 291 | 34 |
| vrchní ředitel | 84 196 | 14 | 76 421 | 8 |
| náměstek ministra | 100 315 | 7 | 97 655 | 6 |
| Ministerstvo kultury | Ministerstvo vnitra | |||
|---|---|---|---|---|
| ředitel odboru | 60 641 | 23 | 79 741 | 56 |
| vrchní ředitel | 85 194 | 3 | 197 258 | 2 |
| náměstek ministra | 91 833 | 9 | 145 541 | 10 |
| Ministerstvo financí | ||
|---|---|---|
| ředitel odboru | 79 534 | 45 |
| vrchní ředitel | 106 322 | 4 |
| náměstek ministra | 100 556 | 11 |
| Úhrn 11 ministerstev | ||
|---|---|---|
| průměrný plat | počet osob | |
| ředitel odboru | 63 922 | 458 |
| vrchní ředitel | 89 072 | 71 |
| náměstek ministra | 105 479 | 76 |
| celkem | 72 094 | 605 |
| vrchní ředitelé a náměstci ministrů | 97 554 | 147 |
As regards the content of these figures, the appellant notes that 605 persons are employed in the positions of directors of trade unions, senior directors and deputy ministers in the above 11 ministries, with 150 persons in those positions, of which 127 are directors of trade unions with unusually low average salaries, reducing the total average salary of the directors of trade unions for all 11 ministries. This total average salary of the directors of the trade unions is represented for 458 persons by about CZK 64,000, but without the Ministry of Agriculture it would be CZK 70,000. In the positions of senior directors and vice-ministers, there are 147 people in 11 ministries, their average salary is close to CZK 100.000 (CZK 97.60.000), for 76 vice-ministers the average exceeds CZK 100.000 (CZK 105.5). It is thus possible to assume that a salary exceeding CZK 80,000 reaches about 190 persons in 11 ministries, a salary exceeding CZK 60,000 in 11 ministries reaches about 400 persons. The reports provided by individual ministries show, according to the appellant, that, at the level of the directors of trade unions, there are no exceptions to the salary that exceeds CZK 100,000, and at the level of the deputy ministers or senior directors, there are more than CZK 200,000. It concludes from the above that the salary of the judge of the District Court with almost 10 years of experience at the level of CZK 54 600 (except for the Ministry of Agriculture, where it is not clear what function exactly for 127 directors of trade unions) or the average salary of the head of the department in any of the ministries mentioned.
On the argument contained in the explanatory memorandum to the contested legal provisions, the Municipal Court in Brno further points to the savings resulting from the long-term moratorium, or the reduction of the salary of judges, as opposed to the current increase in public salaries, as well as the non-transparency of remuneration in companies with full or partial State participation, state funds, so-called public bodies. Finally, it also draws attention to other restrictions on the physical security to which judges are subject, in particular the further reduction in the security of the disease from 1.1.2011 (Part-Tenth Article XVII of Act No. 347 / 2010 Coll., which amends certain laws relating to the life-saving measures of the Ministry of Labour and Social Affairs), the taxation of multiple-purpose compensation and its submission to social security insurance [Section 6 (10) of Act No. 586 / 1992 Coll., on income taxes, as amended by Act No. 346 / 2010 Coll., as opposed to compensation under Section 6 (7) of Act No. 589 / 1992 Coll., which is not subject to tax], the increase of so-called social security ceilings from 2010 onwards (§ 15b of Act No. 589 / 1992 Coll.).
The appellant concludes with a statement that, if the reduction is related to the salary base which the judges legitimately expected on 1 January 2011, the reduction is 22%, i.e. an unprecedented intervention in the level of pay of each individual judge, with a 5% reduction of the base in 2011 not being placed in a session or a "new" base of 2.5 times the average wage in the non-business sphere: if this base is to be CZK 57 747 in 2011, then the reduction for 2011 is 6,5%. According to the appellant's conviction, the job of the judge has lost its exclusivity, which could at least to some extent be discussed after 1996, not to mention the exclusivity that it should enjoy to become the one in the government's programming statement of "top-level legal professions," and it is very likely that these interventions will lead to the departure of good lawyers from justice into far more lucrative private sectors (lawyer, notary, executor). The consequences for social prestige and bringing a judge to the so-called middle-class social class, which is undoubtedly linked to the social tradition of Central Europe, are simple and irrefutable, while judges do not pursue the exclusive and elite position that the judges of common law, including the level of remuneration, have. In this context, the Municipal Court in Brno also refers to the finding of the Constitutional Court, sp. zn. Pl. ÚS 12 / 10, according to which "nivulation in its consequences leads to the descent of the judicial state within the middle class, its income degradation in relation to other legal professions and the reduction of its necessary social prestige '.
The contested provision of Article 3b of the Salary Act then considers the appellant to be contradictory with the principle of universality of the Law, which arises from the principle of the rule of law pursuant to Article 1 (1) of the Constitution, since it does not meet the courts set out in its case law by the Constitutional Court for the adoption of laws governing unique cases [the findings of the sp. zl. The legislature setting out in § 3b of the Law on the salary of the specific, absolute figures expressed by the value of the pay base of judges according to the Municipal Court in Brno created an individual legal act (the addressees are by name identifiable, the amount of their salary also for a period of 4 years). This is a situation that the Salary Act specifically wanted to prevent: that is, the situation that an ad hoc legislature, for example, should determine every year, according to the political mood of the moment, how the judge will be rewarded. In the present case, it is clear, according to the appellant, that the Government has put forward a proposal that conforms to the scope of the parliamentary term. If this method is discussed, the judges will be held hostage by a government group with the necessary majority in Parliament. At the same time, they claim that an ad hoc salary measure reducing each employee's salary by a fixed amount for a pre-determined four-year period has not been adopted for public workers in any field, and therefore no rational argument can be found as to why a different legal regime should be established for the salaries of judges. The intention to save state budget funds and reduce the level of pay of judges in general and in 2011, in particular, and thus to return to the intended nivulation or distorted principle of equality when spending funds on national budget salaries, is not an objective that can be considered as an expression of a ratia justifying a possible non-action inequality.
After Dr. Karel Čermak, in response to salary restrictions against the judiciary, resigned from the post of Minister of Justice in June 2004, in the article "Hoden is the judge of his wages," published in Law on 1 June 2004, he wrote: "The legislature and executive may well be said, injustice does not happen to the [...] Compensation will take place here in a level of political preferences or more intensive secondary activity. But there are no such compensatory options for justice." These words are valid according to the applicant after seven years with even higher intensity.
For that purpose, the Municipal Court in Brno finds an ad hoc basis for judges in 2011, and also in 2012- 2014, contrary to Article 1 (1) of the Constitution, in conjunction with Articles 81 and 82 (1) of the Constitution, which lay down the values of the democratic rule of law, such as the universality of the rule of law, proportionality of the intervention, the availability of the legislature, the dignified material security of judges, Article 2 (1) of the Constitution, which contains the principles of division of state power in relation to the way of dealing with restrictions on the judiciary, Article 1 of the Charter governing the principle of equality, with Article 1 of the principle of legitimate expectation of the acquisition of property, and, where applicable Article 6 (1) of the Convention on the protection of human rights and fundamental freedoms of fundamental freedoms. According to the appellant, the arguments put forward for the annulment of § 3 (3) of the Law in question are similar in the present case to the situation of the Constitutional Court in the case at issue, in the light of the opinion of the appellant, when he considered that the amendment of the law was appropriate, as a result of the restoration of the legal situation before the non-constitutional intervention.
The Municipal Court in Brno also draws attention to the unconstitutional impact of the contested legal provisions not only on judges of general courts but also on judges of the Constitutional Court. It states that the judges of the Constitutional Court have been remunerated under the salary law on the basis of the same salary base as the judges, but the contested amendment of the Law has incorporated the Constitutional Court's judges as representatives and has not granted them treatment as judges of general courts. However, the mutual position in the vertical judicial power is clear. As a result of the crackdown on these relations, the Presidents of the Chambers of Supreme Courts and the Presidents of the colleges of these courts have a higher salary than the judges of the Constitutional Court (0.8% and 4.9% respectively in 2011, 6.2% and 10.4% respectively in 2012 and 2014). Such a situation is, in his view, contrary to the thesis already expressed by the Constitutional Court, sp. zn. Pl. ÚS 55 / 05, in which the salary base is protected as a fail-safe against the reversal of originally built relations, it affects the entire judicial authority in the wider sense and establishes an inconstitutionality at the level of Article 1 (1) of the Constitution in conjunction with Articles 81 and 83 of the Constitution. The Court of Justice of the European Union shall have jurisdiction over the courts of the Constitutional Tribunal.
At the end, the appellant draws attention to the petit formulated in a possible form and, at the same time, proposes that the Constitutional Court, if the arguments set out above are relevant, should also include the Constitutional Court judge in the heading of the persons to be affected by the delegation. In the event of compliance with the proposal in the event of the repeal of the amendment of Act No. 236 / 1995 Coll., implemented by Act No. 425 / 2010 Coll., which would result in the restoration of the legal status before the non-constitutional intervention, in the absence of the suspension of the performance of the derogatory finding, the appellant considers it important to clarify the legal effects (ex tunc or ex nunc) of such a finding. In the event of compliance with the proposal in the eventuality of the annulment of the contested provisions of Act No. 236 / 1995 Coll., as amended by Act No. 425 / 2010 Coll., the appellant considers it necessary to defer the enforceability of the derogatory finding, since the legislative action would then be necessary in order to fill the existing gap in the law.
At the same time, the Municipal Court in Brno proposed that the Constitutional Court should rule on the proposal submitted by the Constitutional Court as a matter of priority in accordance with Article 39 of the Law on the Constitutional Court. The reason for this is a repetition of the pay restrictions by the legislature, the intensity of the restriction in question, as well as the submission of 527 actions by judges to pay the additional salary and reimbursement of expenses at the end of April 2011 to 527 judges, of which a total of 131 actions by judges of the Municipal Court in Brno, the Regional Court of Brno, the Regional Court of Brno and the Supreme Administrative Court are currently under discussion.
Recital of the essential parts of the party's observations
Pursuant to Articles 42 (4) and 69 of the Constitutional Court Act, the Constitutional Court sent the proposal in question to the Chamber of Deputies of the Parliament of the Czech Republic. In its observations of 19 April 2011, the President of the Chamber of Deputies of the Parliament of the Czech Republic Miroslava Nemcová refers to the explanatory memorandum to the draft law amending Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the duties of representatives of the state power 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 other requirements of the prosecutors, and on the amendment of Act No. 143 / 1992 Coll., on the remuneration and remuneration for the duty in budgetary and in some other organisations and institutions, as amended, in which the Government is aware of the fact that the proposed legislation is in accordance with the constitutional order and legal order of the Czech Republic, and does not contradict of international treaties by the Czech Republic, because it does not regulate the latter issue, whereas the government is aware that the government is aware of the independence of the provision of the provision of the exceptional constitutional protection, but it, it, it must arise, that the consequence, that the consequences of the fact that the consequences of the fact that it, that it, that the consequences of a global economic crisis,
In the course of the discussion of the draft law in question, it is noted that the proposal was discussed by the Committee on Budgets and the Committee on Constitutional Law, whose amendments, inter alia, amended by the Government's proposed version of § 3a and 3b of Act No. 236 / 1995 Coll. At the second reading of the draft law held on 7 December 2010, six Members submitted their proposals in a detailed debate (the shy, Vilímek, Klasnová, Klasček, Peake and Opalka), but none of them proposed amendments to the draft provisions in question. In the vote at the third reading of the draft law, which took place on 10 December 2010, the Chamber of Deputies did not support the proposal of the Constitutional Law Committee on the new text of the provisions of Sections 3a and 3b, and these provisions, as well as the provisions of Section 3 (3), were adopted in the Government's proposed text in the final vote, in which the Chamber of Deputies agreed to the text of the draft law, when 167 Members 147 voted in favour and 1 opposed. The Chamber of Deputies passed on 10 December 2010 a draft Senate law, which was discussed and approved at its meeting on 16 December 2010. The President of the Republic signed the Act on 17 December 2010. The Approved Act was delivered for signature to the Prime Minister and was declared in the Collection of Laws on 30 December 2010.
The President of the Chamber of Deputies of the Parliament of the Czech Republic has expressed the conviction that Act No. 425 / 2010 Coll., amending Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the duties of representatives of the State Government and of certain state bodies and judges and Members of the European Parliament, as amended, and Act No. 201 / 1997 Coll., on the salary and certain other formalities of the prosecutors, and on the amendment and addition of Act No. 143 / 1992 Coll., on the salary and remuneration for the employment of the budgetary and certain other organisations and bodies, as amended, on the salary and certain other formalities of the civil servants, was adopted after a proper legislative procedure and it is at the Constitutional Court, in connection with the submitted proposal of the Municipal Court in Brno on the annulment of this Law, and gives its Constitution.
Pursuant to Articles 42 (4) and 69 of the Law on the Constitutional Court, the Constitutional Court has also sent the proposal to the Senate of the Parliament of the Czech Republic. At the beginning of his speech of 15 April 2011, his President Milan Štěch recaptures the course of the discussion of the law in question by Parliament. It states that after its approval in the Chamber of Deputies, the draft of the contested law was delivered to the Senate on 10 December 2010, where it was discussed as Senate Document No 9 in the 8th term of office. The draft law was debated in two committees, namely the Committee on Economic, Agriculture and Transport, which was the committee of guarantee, and the committee of constitutional and legal. The Committee on Economic Affairs, Agriculture and Transport discussed the draft law at its third meeting on 15 December 2010 and in its Resolution No 23 recommended the Senate to approve the draft law as referred to by the Chamber of Deputies. The Committee of the Constitutional-Legal Committee discussed the draft law at its 3rd meeting on 15 December 2010 and in its resolution No 10 recommended the Senate to return the draft law to the Chamber of Deputies of the Parliament of the Czech Republic with amendments adopted by the Committee. The purpose of these amendments was to accept the proposed permanent change in the reduction of the salary base coefficient (reduction from three times to 2.5 times in Act No. 236 / 1995 Coll., or 2,7 times in Act No. 201 / 1997 Coll.), with the fact that, following this adjustment, a 5% reduction of the salary base would have been applied to all persons concerned only for the period 2011, based on the salary base calculated in accordance with the general adjustment, i.e. the salary base which would no longer be frozen. This conclusion was reached by the Constitutional Legal Committee following a detailed discussion on the draft law in which all the members of the Committee present spoke and in which there was also room for presentation of views to two representatives of the judiciary present (JUDr. J. Baxter, President of the Supreme Administrative Court, and JUDr. L. Vávr, President of the District Court for Prague 1). The Senate discussed the draft law at its third meeting on 16 December 2010. In a comprehensive debate, many reservations were made by the Senators on the proposed adjustment, of which the President of the Senate points out reservations about the ever-repeated wage restrictions, the many-year so-called salary freeze, the non-systemic nature, where a temporary introduction of a fixed salary base amount was proposed, or reservations as to whether it is a proposal for a further adjustment which may be presumed to be contested by the Constitutional Court. It further states that, in that context, support has been given to some Senators for the amendments recommended for adoption by the Constitutional Legal Committee. However, in addition to the criticism of the draft law under discussion, quite a large part of the debtors also stressed their perception of the proposed regulation as an expression of solidarity in relation to the austerity measures adopted in the remuneration of civil servants, or the austerity measures taken in many other areas.
It is further noted that the Senate adopted Resolution 67 following a comprehensive debate, which approved the draft law as referred to by the Chamber of Deputies, as recommended by the Guarantee Committee in its resolution. 46 votes in favour of this resolution from 68 senators present, with 3 and 19 abstentions. The Act was published on 30 December 2010 in the Collection of Laws in the amount of 147 under the number 425 / 2010 Coll.
In conclusion, the President of the Senate expresses the conviction that it is up to the Constitutional Court to examine the constitutionality of the draft contested legislative provisions and to rule.
Abandonment of oral proceedings
According to the provisions of Paragraph 44 (2) of Law No 182 / 1993 Coll., the Constitutional Court may, with the consent of the parties, refrain from oral proceedings if it cannot expect further clarification of the case. Since both the appellant, in its submissions to the Constitutional Court on 23 June 2011 and the party to the proceedings in the letter of the President of the Chamber of Deputies of the Parliament of the Czech Republic, registered at the Constitutional Court on 28 June 2011, and the President of the Senate of the Parliament of the Czech Republic, registered at the Constitutional Court on 24 June 2011, expressed their consent to the termination of the oral hearing and, furthermore, the Constitutional Court considers that further clarification of the case cannot be expected from the hearing, the oral hearing in the present case has been abandoned.
Derogation of the provision of the contested legislation
According to the provisions of § 3b (1) of Act No. 236 / 1995 Coll., as amended by Act No. 425 / 2010 Coll.: "From 1 January 2011 until 31 December 2011, the salary base for judges is CZK 54005." According to paragraph 2 of that provision: "From 1 January 2012 until 31 December 2014, the salary base for judges is CZK 56 849 '.
Paragraph 3 (3) of Act No. 236 / 1995 Coll., as amended by Act No. 309 / 2002 Coll. and Act No. 425 / 2010 Coll., states: "The salary base is 2.5 times the average nominal monthly salary of individuals in the non-business sphere obtained according to the published data of the Czech Statistical Office for the preceding calendar year from 1 January to 31 December of the calendar year. 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 by communication '.
Pursuant to the provisions of § 3a of Act No. 236 / 1995 Coll., as amended by Act No. 425 / 2010 Coll., from 1 January 2011 to 31 December 2014, the salary base for representatives (i.e. member of the Government, President of the Republic, judge of the Constitutional Court, member, Vice-President and President of the Supreme Audit Office, member, Vice-President and President of the Radio and Television Council, member, Vice-President and President of the Council of the Institute for the Study of Totalitarian Procedures) is CZK 51 731.
Conditions for the applicant's active legitimacy
The proposal for the annulment of the parts of Act No. 425 / 2010 Coll., amending Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of State power and of certain state bodies and judges and Members of the European Parliament, as amended, and Act No. 201 / 1997 Coll., on the salary and other requirements of the Act No. 143 / 1992 Coll., on the salary and remuneration for the duty of officials and certain civil servants and Members of the European Parliament, as amended, as amended by the Act No. 425 / 2010 Coll., if they contain restrictions in the remuneration of judges (§ 3 (§ 3b. 3), § 3b), together with the proposal for a preliminary ruling in accordance with Article 39 of the Law on the Constitutional Tribunal, was brought by the Municipal Court of Parliament in accordance with Article 64 (3) on the Law on the Law on the Law on the Law on the Law on the Law on the subject.
As already mentioned in the national case, in Case No 35 C 35 / 2011, the Municipal Court in Brno is decided on an action by the judge of the Brno Regional Court seeking payment of CZK 21 500 against the Czech Republic - Brno Regional Court. This is the difference between the claimant's claim for salary within the meaning of § 28 to 31 of Act No. 236 / 1995 Coll. and the claim for a multipurpose flat-rate reimbursement within the meaning of § 32 (1) (a) of Act No. 236 / 1995 Coll., for January 2011, and between the actual salary paid and the reimbursement of expenses reduced with effect from 1 January 2011 by Act No. 425 / 2010 Coll.
The Municipal Court in Brno, after having concluded, in accordance with Article 95 (2) of the Constitution, that the provisions of Sections 3 (3) and 3b (1) of the Salary Act, as amended by Act No. 425 / 2010 Coll., and in eventum of the Act No. 3a of the Act No. 236 / 1995 Coll., as amended by Act No. 425 / 2010 Coll., to be applied in order to resolve the case sp. zn. 35 C 35 / 2011, are contrary to Article 1 (1) of the Protocol, in conjunction with Article 81 and Article 82 (1) of the Constitution, or Article 83 of the Constitution, and Article 2 (1) of the Charter and Article 1 of the Protocol, after the termination of the ordinary proceedings pursuant to Article 109 (1) (c) of the Constitution of the Constitution.
The procedural condition of the active legitimacy of the General Court under Article 64 (3) of the Law on the Constitutional Court is such a position of the Law, or of its individual provision, the abolition of which is proposed, on the subject of the tribal proceedings, which sets out the reasons for the General Court's assessment of the case. The appellant relies on the assertion that Article 3b (1) of the Salary Act, as amended by Act No. 425 / 2010 Coll., determining the salary base for 2011, must be applied when dealing with the present case. In order to assess the claim claimed (the applicant also claims that the difference in salary and reimbursement of expenses arising from the setting of the ad hoc base for 2011 and the reduction of the salary base in general) it is necessary to apply Article 3 (3) of the Salary Act, as amended by Act No. 425 / 2010 Coll., determining the method of determining the salary base from 1 January 2011.
As is apparent from the description of the procedure at the General Court, it is therefore possible to state on the part of the appellant that the conditions of his active legitimacy for the standard control procedure are fulfilled only in relation to the provisions of Paragraph 3b (1) of the Salary Act, as amended by Act No 425 / 2010 Coll.
Conditions resulting from Article 95 (2) However, the Constitution does not meet the proposal in relation to the provisions of § 3b (2) of the Salary Act, as amended by Act No. 425 / 2010 Coll., and in relation to § 3a of the Salary Act, as amended by Act No. 425 / 2010 Coll., as well as in relation to § 3 (3) of the Salary Act, as amended by Act No. 425 / 2010 Coll.
The first is because the provision in question defines the level of the judicial salary base from 1 January 2012 to 31 December 2014, i.e. there are no legal consequences for the legal claims of the judge on January 2011, but there are no legal consequences for the judges of the general courts for the second provision in question. In this context, the appellant argues that the Constitutional Court's legal opinion, contained in the findings of the sp. zn. In the present cases, however, the condition of "indirect 'impact or impact" was met in the broader sense of the "legal provisions in question on the subject, in the words of the Constitutional Court, it was a provision which did not constitute" direct legal basis, but undoubtedly influenced (or may have had an effect) the whole nature of the proceedings brought by the appellant' (sp. zn. However, this condition is not met in the present case - as already noted, Paragraph 3b (2) of the Salary Act defines the level of the judicial salary base from 1 January 2012 to 31 December 2014, i.e. there are no legal consequences for the legal claims of the judge on January 2011, either indirect or in the wider sense of the law.
Conditions of active legitimacy under Article 95 (2) The Constitution also does not apply to § 3 (3) of the Salary Act, as amended by Act No. 425 / 2010 Coll. The salary base for determining the salary of judges is governed by § 3 (3) and § 3a and 3b of the Law in question. Their relationship is a relationship of legi speciali to legi generali, i.e. the effectiveness of the mechanism enshrined in § 3 (3) starts only from 1 January 2015. By derogation from Article 3b (1) of the Salary Act, as amended by Act No. 425 / 2010 Coll., the salary base for determining the salary of judges is defined by the provisions of § 3 (3), which, without implementation in its present form, is not applicable, since its content is the authority of the Ministry of Labour and Social Affairs to determine the salary base and its amount in the form of a communication in the Collection of Laws, the last such communication of the Ministry of Labour and Social Affairs was issued under No 582 / 2006 Coll. Therefore, for both its applicability and, where appropriate, for the assessment of its constitutionality in view of the reasons which led the Constitutional Court to derogate from the provisions of Paragraph 3b (1), it is necessary to issue the communication in question. The constitutionality of the empowerment provision § 3 (3) of the Salary Act, as amended by Act No. 425 / 2010 Coll., can therefore be assessed, as stated, for the purposes of the derogatory provisions of § 3b (1), only in view of the specific amount of the Ministry of Labour and Social Affairs laid down by the Salary Base, and therefore the absence of active legitimacy on the part of the appellant at the time when the case was decided by the Constitutional Court.
If the explanatory memorandum to the draft legislative structure as reflected in the provisions of § 3 (3) and § 3b (1) and (2) of the Salary Act, which, in the event of possible depreciation of § 3b (1) of that Law, establishes the effectiveness of the provision of § 3 (3), which provides a reduced level of pay base for determining the amount of the judge's salary, the purpose of which is to anchor the "insurance 'in case..." The Constitutional Court has concluded, after a possible action by the judges, that even such a limited restriction on the salaries of judges is not constitutionally conformal, "the Constitutional Court is, in this context, forced to rule on the part of the legislator that the principle of democratic constitutional political culture is out of line.
For all the reasons so interpreted, the Constitutional Court had no choice but to reject the application for annulment of the provisions of § 3b (2), § 3a and § 3 (3) of the Salary Act, as amended by Act No. 425 / 2010 Coll., by a manifestly unauthorised person pursuant to § 43 (1) (c) and § 2 (b) of the Law on the Constitutional Court.
Constitutional conformity of competence and legislative process
The Constitutional Court, in accordance with the provisions of Paragraph 68 (2) of the Law on the Constitutional Court, is required to assess whether the contested law, its individual provision, or any other legislation, or its individual provision, has been adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.
It was found from the Parliament's press and shorthand reports, as well as from the observations of the party, that the Chamber of Deputies approved the draft law in question at its third reading at its 9th meeting on 10 December 2010 by Resolution No 216, when 167 Members present voted in favour and 1 against.
At its third meeting held on 16 December 2010, by Resolution No 67, the Senate approved that draft law, as referred to by the Chamber of Deputies, when 46 of the 68 Senators present voted in favour, 3 and 19 abstained.
The Law in question was signed by the relevant constitutional authorities and was duly declared under No 425 / 2010 Coll. in the amount of 147 Collection of Laws, which was circulated on 30 December 2010 and became effective on 1 January 2011 pursuant to Article III.
To the appellant contended with the constitutional relevance of not discussing the draft of the contested legal provisions with the representatives of the judiciary, the Constitutional Court already stated in the finding in sp. zn. He formulated an appeal stating that the adoption of the contested provisions was essentially a unilateral act by the legislature, without an audiendi alterae partis, and therefore the judges found themselves, in terms of the possibility of showing their will to be relevant and defending themselves in a worse position than the other professions, which were also intended to carry out salary restrictions. He called on the legislature not to be so disadvantaged in exceptional circumstances, such as the difficult financial situation of the State, as well as for the legislator to obtain the relevant opinion of the representatives of the judiciary before accepting the salary restrictions, which should also be part of the explanatory memorandum.
As is apparent from the recap of the discussion and adoption of the law in question (according to the explanatory memorandum "for time reasons the content of the proposal has not been consulted"), the representatives of the judiciary again did not have the opportunity to comment on its content. In this context, the Constitutional Court is repeatedly confronted with a situation of non-respect for the fundamental principles of democratic political culture, where, from the legislator's point of view, the decision-making grounds contained in the Constitutional Court's case-law are only expected to respond to a derogatory intervention, not a moral political appeal. The Constitutional Court is aware that this negative situation puts pressure on the extension of interpretation of the principles of constitutional order, on the subjection of the rules of democratic political culture under a constitutional framework.
The Constitutional Court already declared in the first of its findings adopted in the procedure for the control of standards sp. zn. Pl. ÚS 19 / 93 of 21.12.1993 (N 1 / 1 SbNU 1; 14 / 1994 Coll.) in this connection with all urgency and seriousness: "The legitimacy of the political regime cannot be based solely on formal legal aspects, because the values and principles on which the regime is based are not only legal but primarily political. The principles of our Constitution, such as the sovereignty of the people, representative democracy, the rule of law, are principles of a political organisation of a society that are not normally completely defined. Positive legislation is based on it, but the content of these principles is not exhausted by the regulatory regulation - it remains more and more... Even in terms of the scope of legislative competence within the constitutional state, there is no question of the sovereignty of the law. In the concept of a constitutional state on which the Constitution of the Czech Republic is based, the law and justice are not subject to the free disposition of the legislator, and hence the law, because the legislator is bound by certain fundamental values which the Constitution declares untouchable. The Constitution of the Czech Republic, for example, states in Article 9 (2) that" the amendment of the essential elements of the democratic rule of law is inadmissible. "This puts the constitutional principles of democratic society in the framework of this Constitution above the legislative competence and hence the 'ultra vires' of Parliament. With these principles, the constitutional state stands and falls. The removal of any of these principles, carried out by any, albeit majority or entirely unanimous decision of Parliament, could not be interpreted differently than as the removal of this constitutional state itself."
The Constitutional Court persists on this fundamental thesis even with a distance of almost 20 years. The principles of the constitutional system of freedom and democracy are not completely definable, but the content of these principles is not exhausted by the normative regulation - it remains more and more. Therefore, even in the present case, the Constitutional Court has assessed the absence of a hearing on the pay restrictions of judges and, therefore, certain forms of intervention in one of the components of judicial independence - the principle of the stability of the material security of judges - without their discussion with representatives of independent justice, such as a violation of the rules of democratic political culture, for the future in cumulation with other circumstances, contrary to the principles of constitutional order, does not preclude derogation in this context.
On the basis of the above, the Constitutional Court notes that Act No. 425 / 2010 Coll., amending Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the duties of representatives of the State Government and of certain state authorities and judges and Members of the European Parliament, as amended, and Act No. 201 / 1997 Coll., on the salary and certain other requirements of the prosecutors, and on the amendment and addition of Act No. 143 / 1992 Coll., on the salary and remuneration of the emergency at work in the budget and in certain other organisations and bodies, as amended, was not adopted in such an intensive manner as to the constitutional courts and legislative procedure which would give rise to the cause for its deregulation.
Content compliance of the contested legal provision with the constitutional order (constitutionality of salary restrictions against judges)
The Constitutional Court has repeatedly addressed the issue of judicial salaries in the past. In its earlier case-law, the Court of First Instance summarised its findings in the "Pl. ÚS 55 / 05 ', which it referred to in its other findings on the issue of judicial salaries, in the" Pl. ÚS 13 / 08' and "Pl. ÚS 12 / 10 '. Since it is evident that the parties are aware of this caselaw, the Constitutional Court does not consider it necessary to recap it repeatedly in detail.
From the case-law of the Constitutional Court and from its comparison with the case-law of the European Constitutional Courts (see, in particular, the judgment of the Constitutional Court of the Republic of Poland sp. zn. P 1 / 94 of 8 November 1994, C 13 / 94 of 14 March 1995, P 1 / 95 of 11 September 1995, P 8 / 00 of 4 October 2000, C 12 / 03 of 18 February 2004), on the constitutionality of the salary restrictions against judges, the following fundamental generalising thesis follows:
• the assessment of the constitutionality of pay restrictions against judges for a specific period of a particular year falls within the framework of the principle of judicial independence;
• the constitutional position of judges, on the one hand, and the representatives of the legislative and executive powers, in particular the administration of the state, on the other hand, is different due to the principle of the division of power and the principle of the independence of judges, which implies a different layout for legislators to pay restrictions on judges compared to those of such restrictions in other areas of the public sphere;
• intervention 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, while taking into account, even if this condition is met, the differences in the function of judges and officials of the legislature and executive, in particular the state administration; 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.
According to the case law of the Constitutional Court, the principle of independent justice is one of the essential elements of the democratic rule of law (Article 9 (2) of the Constitution). The requirement of independent justice stems from two sources: the neutrality of judges, as a guarantee of fair, impartial and objective judicial proceedings, and the safeguarding of the rights and freedoms of individuals by a judge separated from political power. The independence of judges is guaranteed by guarantees of a special legal status (which must include incapacitation, irrevocability, integrity), guarantees of organisational and functional independence from the bodies representing legislative and, in particular, executive powers, and separation of the judiciary from legislative and executive powers (in particular, application of the principle of incompatibility). From the point of view of content, judicial independence is ensured only by the binding of judges by law, i.e. excluding any elements of subordination in judicial decision-making. The Constitutional Court has dealt with the fundamental components of the principle of independence of the judiciary in a comprehensive manner in the finding of point Pl. ÚS 7 / 02 of 18.6.2002 (N 78 / 26 SbNU 273; 349 / 2002 Coll.).
In accordance with the settled case-law of the Constitutional Court, the legislature's intervention in the field of material protection of judges, including in the context of salary restrictions, must be placed under the protection of their independence for two reasons. The independence of judges is primarily conditional on their moral integrity and professional level, but is also linked to their adequate material collateral. This component of the principle of independence of judges was also enshrined in Recommendation No 94) 12 of 13 October 1994 of the Council of Europe Committee of Ministers on the independence, effectiveness and role of judges, according to which "ensuring the adequacy of the position and remuneration of judges with regard to the dignity of their profession and workload '(Principle III, paragraph 1b). A similar maximum is also contained in Article 6.1 of the European Charter on the Statute of a Judge, adopted by participants in a multilateral meeting organised by the Council of Europe on 8 to 10 July 1998, according to which professional judges have the right to a salary to be set in such a way as to protect them from pressure to influence their decisions and, in general, to influence their conduct in finding a right which could jeopardise their independence and impartiality. In this context, the Constitutional Court repeatedly points out the fact (see the finding in point sp. zn. The reason for the second subordination of the prohibition of arbitrary interference in the material security of judges (pay restrictions) within the framework of the principle of their independence is to exclude the possibility, possibly the coercion of legislative or executive decision-making power. In other words, to exclude arbitrary interference in the material security of judges as a possible form of" penalisation "of judges by legislation and executive, and thus a form of pressure on their decisions.
The Constitutional Court then expressed a thesis, which is also a key aspect of the assessment of the constitutionality of the contested provision of Paragraph 3b (1) of the Salary Act: "The legislator's step, by which (would) not suspend the rate of increase in the salary of judges, but even partial withdrawal of the level of material security already achieved, could hardly be addressed by the Constitutional Court in terms of democratic rule of law. In particular, this would be the case if such a severely unacceptable restriction would prove to affect only or primarily the income ratios of judges and not the income of other" servants "of the state."
The development of opinions on the issue of guarantees of judicial independence took place in parallel at the level of European institutions. In Recommendation CM / Rec (2010) 12 of 17 November 2010 on judges, the Council of Europe Committee of Ministers laid down a requirement that the remuneration of judges should express their role and responsibility and be a sufficient barrier to the incentives aimed at influencing their decisions, and a guarantee of that purpose is regarded as a guarantee of a situation in which, among other things, judicial pensions are reasonable in relation to the former salary and in which there are special legal provisions preventing the reduction of the salary of judges (Article 54).
The explanatory memorandum to the draft contested law initially refers to the legislature's mechanism of determining the salary base of state officials as "unrealistic 'and requiring judges to have the principle of independence of the" evolutionary method of correction', with the objective of the legislative amendment being to: "in the context of the necessary austerity measures in public budgets to find a solution that would allow the salaries of representatives of all three state authorities to be reduced from the state budget but did not contradict the principles of proportionality of pay adjustment in judges who benefit from increased constitutional protection '. The whole complex of changes in the proportions of the material security of judges in relation to public administration employees is then described in the explanatory memorandum as" alleviating unjustified differences in pay levels and achieving proportionality when spending funds on salaries from the same source, i.e. the State budget. In no way can the proposed solution be seen as a restriction of the dignity of the judges or as an expression of the constitutionally unacceptable pressure of legislative power and of the power exercised by the judiciary, since the salaries of judges will be highly high-standard even after the measures proposed are implemented and the proposed measure will be much more closely affected by the legislative and executive representatives. "
In connection with the complex of changes embodied in Act No. 236 / 1995 Coll. by amendment implemented by Act No. 425 / 2010 Coll. In the light of the subject matter of the procedure, the Constitutional Court is obliged to distinguish between, on the one hand, the reduction in the salary of the judges established by Article 3b (1) of the Salary Act and, on the other hand, the reduction in the salary of the Judges provided for by the provisions of Articles 3b (2) and 3 (3) of the Salary Base.
In relation to § 3b (2) and § 3 (3) of the Act, in respect of the salary for which the Constitutional Court has provided for the absence of active legitimacy on the part of the appellant in order to assess their constitutionality, the Constitutional Court, such as obiter dictum, notes that the statement of reasons on the European Commission's 2000 evaluation report, which stated that "judges' salaries are relatively high ', while in other areas, such as the police and administrative structures, the Constitutional Court of First Instance was pointed out to a low level of salaries, it cannot be considered as impracticable in 1999, since the remuneration base and the average salary of judges and the public administration, according to the data of the appellant which were not in question - only 2,34 in 2011. A judge with many years of experience receives only about 2 / 3 of the salary of better-paid senior civil servants and is nowhere near their average income. In 2003 the salary of the judge was CZK 47,000 and the average salary of the head of the department of the central administration was CZK 50 187. In 2009 the difference was CZK 57 400 (judge) and CZK 66 734 (director of the department).
In the find sp. zn. Pl. ÚS 11 / 02 The Constitutional Court noted on the margin of that trend that "the pay ratios of judges in a broad sense are to be stable, not a variable factor with which it calculates this or that of the government group, for example, because it appears to it that the fees of judges are too high compared to the salaries of civil servants or to another professional group '. As a result, the President of the Chambers of the Supreme Courts and the Presidents of the College of these Courts had a higher salary than the judges of the Constitutional Court (0,8% and 4,9% respectively in 2011, 6,2% and 10,4% respectively in 2012-2014).
The Constitutional Court may, on the fringe of the provisions of § 3 (3) and § 3b (2) of the Salary Act, only repeat the statement already made in the sp. zl. The measures in relation to them then do not appear to be exceptional and proportional, but as a targeted process aimed at returning the judicial salaries to lower levels, and thus to remove the legislative and executive errors made in the past in establishing rules for calculating the judicial salaries in the mid-1990s. Such a nivulation, in its consequences, inevitably leads to the descent of the judicial state within the middle class, its income degradation in relation to other legal professions and to the reduction of its necessary social prestige. "
The reduction in the salary of judges is accompanied by paradoxically contradictory facts: on the one hand, it is justified by the legislator's need for public finance savings and the reduction of disproportionality in relation to the salaries of public servants, on the other hand, it is accompanied by the increase in public administration salaries and, on the other hand, by not reducing them.
The reduction in the salary of the judges for 2011, based on the provisions of Paragraph 3b (1) of the Salary Act, is then contrary to the courts set out by the Constitutional Court for such restrictions in settled case-law.
Government Decree No. 44 / 2011 Coll., amending, with effect from 1 March 2011, Government Decree No. 564 / 2006 Coll., on the pay ratios of employees in public services and administration, as amended, was in no way affected by the level of staff in accordance with § 5 (2) (a) of Government Decree No. 564 / 2006 Coll., as amended, (civil servants under § 303 (1) of the Labour Code). The reduction in wage resources for that group of employees does not in any way indicate the real level of restrictions in the whole area (in view of the reduction in the number of employees, for example by cancelling vacant posts, or by different forms of termination of employment or similar relationship) and does not contain any information on structural restrictions at all. On the contrary. The data submitted by the appellant - and uncontested by the party to the proceedings - show an exceptionally high level of public administration pay: the total average salary of the directors of ministries' trade unions is approximately CZK 64,000 in 458 persons (without the Ministry of Agriculture it would be CZK 70,000); the average salary of 147 senior directors and vice-ministers operating in 11 ministries is close to CZK 100.000 (CZK 97.60.000), for 76 deputy ministers the average exceeds CZK 100.000 (CZK 105.5). Moreover, the Constitutional Court is aware of the fact that, contrary to the fixed amount of the judicial remuneration paid by certain public servants, the multiple of the judicial fees may also be due to the fact that their salary, as opposed to the judges, is not just fixed tariffs, but also other, either regular financial amounts (personal evaluation) and (or) supplemented by one-off amounts (remuneration). In addition, a number of public administration staff are open to the possibility of income arising from other work activities.
The Constitutional Court notes that, according to the data of the Czech Statistical Office (http: / / www.czso.cz / csu / csu.nsf / information / chdp060911.doc), the gross domestic product, adjusted for price, seasonal and calendar effects in the first quarter of 2011, increased by 2.8% and 0.9% respectively by an accurate estimate on an annual basis.
GDP developments in 2010 (%, standing prices)
| Hrubý domácí produkt | 1. čtvrtletí | 2. čtvrtletí | 3. čtvrtletí | 4. čtvrtletí | Rok 2010 |
|---|---|---|---|---|---|
| K předchozímu čtvrtletí (očištěno o sezónnost a pracovní dny) | + 0,8 | + 0,6 | + 0,8 | + 0,5 | x |
| Ke stejnému období roku 2009 (očištěno o sezónnost a pracovní dny) | + 1,2 | + 2,3 | + 2,6 | + 2,7 | + 2,2 |
| Ke stejnému období roku 2009 (sezónně neupravené údaje) | + 1,2 | + 2,9 | + 2,3 | + 3,0 | + 2,3 |
As regards the level of the general government deficit, the Constitutional Court notes from Eurostat Communication No 60 / 2011 of 26 April 2011 (http: / / epp.eurostat.ec.europa.eu / portal / page / portal / government _ finance _ statistics / introduction) that the lowest debt ratio (debt ratio to gross domestic product) in Estonia (6,6%), Bulgaria (16,2%), Luxembourg (18,4%), Romania (30,8%), Slovenia (38,0%), Lithuania (38,2%), the Czech Republic (38,5%) and Sweden (39,8%) was at the end of 2010; 14 European Union countries had a debt quota of more than 60% of gross domestic product: Greece (142,8%), Italy (119,0%), Belgium (96,8%), Ireland (96,2%), Portugal (93,0%), Germany (83,2%), France (81,7%), Hungary (80,2%), United Kingdom (80,0%), Austria (72,3%), Malta (68,0%), the Netherlands (62,7%), Cyprus (60,8%) and Spain (60,1%).
Thus, although the Constitutional Court clearly formulated a maximum prior to the adoption of the Law, according to which the principle of equality in the remuneration of civil servants, constitutional officials and judges can be accentuated before the principle of comprehensively understood independence of judges under very exceptional circumstances, thus defining the scope of constitutional conformity of pay restrictions against judges, the legislator did not follow that maximum in the process of adopting Law No 425 / 2010 Coll. In the above circumstances, the argument on the necessary savings of public expenditure cannot be accepted through restrictions on the salary of judges, while the legal arrangements under examination lack any argument of "exceptional circumstances" which would justify the priority of the principle of equality in the field of restrictions on the remuneration of civil servants, constitutional officials and judges against the principle of comprehensively understood independence of judges.
Other moments can be considered as a form of income restriction against judges in the sense of the constitutional principle of equality, guarantees of independence and dignity of the position of judges, as well as recommendations from the Committee of Ministers of the Council of Europe CM / Rec (2010) 12.
The provisions of § 157 to 163 of Act No. 361 / 2003 Coll., on the service relationship of members of the Security Corps, as amended (according to § 1 (1) of the quoted Act the Security Council means the Police of the Czech Republic, the Fire Rescue Corps of the Czech Republic, the Customs Administration of the Czech Republic, the Prison Service of the Czech Republic, the Security Information Service and the Office for Foreign Relations and Information), and the provisions of § 131 to 137 of the Act No. 221 / 1999 Coll., on professional soldiers, as amended, are enshrined by the Institute of Service Contribution. Paragraph 110 (b) and paragraphs 112 to 121 of Act No. 218 / 2002 Coll., on the service of civil servants in administrative offices and on the remuneration of such employees and other servants in administrative offices (Staff Act), as amended, providing that, according to Article 254 of the Act in question, as amended by Act No. 381 / 2008 Coll., the Staff Act takes effect on 1 January 2012 - that civil servants are entitled to social security, which includes a contribution for service of service years to retirement.
Thus, the judges of the General Courts and the judges of the Constitutional Court (as well as the prosecutors) remain the only "servants' of the State who do not receive such compensation and social recognition for the performance of their duties. This deficit of Act No. 6 / 2002 Coll., on Courts, Judgments, Addresses and Government Administration of the Courts and on the amendment of certain other laws (the Law on Courts and Judgments), as amended, the Law on the Constitutional Court, as well as Act No. 283 / 1993 Coll., on the Prosecutor's Office, as amended, constitutes a non-action-related inequality in relation to judges of the General Courts and Judges of the Constitutional Court, from the point of view of the recommendation of the Committee of Ministers of the Council of Europe CM / Rec (2010) 12 as well as a restriction of one of the guarantees of judicial independence (according to which the judicial pension should be in a reasonable relation to the former salary). This national disproportion has its own pandana in the international disproportion (e.g. in relation to the status of judges of constitutional courts with the Czech Republic of comparable Central European countries of Poland and Slovakia - see Section 16a of the Národnej Council of the Slovak Republic no. 38 / 1993 Z. z., o organizácia Ústavný súd Slovenské republiky o konaní o konané prední, z 2000 r. nr. 48, poz. 552 i Nr. 53, poz. 638, z. 2001 r. Nr. 98, poz. 1070, z. 2005 r. Nr. 169, poz. 1417 oraz z. The removal of that constitutional deficit requires active action by the legislator, with the consequences of the Constitutional Court's case-law on the lawfulness of loopholes (whether true or false) for the area in question; 17 / 17 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 / 2006 /
On the basis of the grounds thus set out, it must be regarded as a contradiction with Article 1 (1) of the Constitution in respect of the judges, which was set out in Article 3b (1) of the Act No. 236 / 1995 Coll., as amended by Act No. 425 / 2010 Coll., as being contrary to Article 1 (1) in conjunction with Article 82 (1) of the Constitution, and the plenary of the Constitutional Court decided to derogate from the legal provision in question, as set out in the operative part of that decision.
If the appellant wishes to conclude in a similar manner to that of the Constitutional Court in the decision of the Constitutional Court on the decision of the Pol.
In relation to the point The Constitutional Court also notes that, in its established case-law, it has repeatedly taken the legal view that the amendment of the law does not have a separate legislative existence, but is forming part of the amended legislation [the findings of sp. zn. Pl. Pl. ÚS 5 / 96 of 8.10.1996 (N 98 / 6 SbNU 203; 286 / 1996), Pl. ÚS 33 / 01 of 12.3.2002 (N 28 / 25 SbNU 215; 145 / 2002 Sb.), Pl. ÚS 7 / 03 of 18.8.2004 (N 113 / 34 SbNU 165; 512 / 2004 Sb.), I. ÚS 504 / 10 of 21.3.2011, I. ÚS. The Constitutional Court accepted the assessment of the amendment of the law in the case where its unconstitutionality is contested because of the absence of standard competence or because of failure to comply with the constitutionally prescribed procedure for its adoption and extradition [cf. the findings of sp. zn. These legal conclusions also fully affect the case under examination, therefore the Constitutional Court's proposal by the Municipal Court in Brno to abolish the provisions of Article 2 (1) of Act No. 425 / 2010 Coll., amending Act No. 236 / 1995 Coll., and the provisions of Article 3 (3) of the Act No. 425 / 2010 Coll. I part of the First Act No. 425 / 2010 Coll., amending Act No. 236 / 1995 Coll., on grounds of apparent unfounded under § 43 (2) (a) and (b) of the Law on the Constitutional Court.
In view of the urgent discussion and decision-making in the present case, the Constitutional Court considers that the decision on the urgency of the case under Paragraph 39 of the Law on the Constitutional Court is irrelevant.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken to justify the decision by the Judges Stanislav Balík, František Duchůň, Vlasta Formánková, Pavel Holländer, Ivana Janů, Vladimir Krórek, Dagmar Lastovecká and Eliška Wagner.
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Regulation Information
| Citation | The Constitutional Court found no 267 / 2011 Coll., on the application for annulment of certain provisions of Act No. 425 / 2010 Coll., amending Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the duties of representatives of state power and of certain state authorities and judges and Members of the European Parliament, as amended, and Act No. 201 / 1997 Coll., on the salary and certain other requirements of the prosecutors and on the amendment of Act No. 143 / 1992 Coll., on the salary and remuneration of the duties of officials and of certain state authorities and of Members of the European Parliament, as amended, as amended, and on the abolition of certain provisions of Act No. 236 / 1995 Coll., on the salary and other elements associated with the performance of the duties of officials of state authorities and of certain state authorities and judges and of Members of the European Parliament, as amended acts, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 12.09.2011 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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