Found at the Constitutional Court of the Czech Republic No. 286 / 1996 Coll.
The finding of the Constitutional Court of the Czech Republic of 8 October 1996 on the application for annulment of Article II of Act No. 304 / 1993 Coll., amending and supplementing the Act of the Czech National Council No. 391 / 1991 Coll., on the pay ratios of judges, state notaries, judicial and notarial candidates, as amended by the Act of the Czech National Council No. 7 / 1993 Coll.
Valid
The Constitutional Tribunal found
Text versions:
29.11.1996
286
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided on 8 October 1996 in plenary on the proposal of the III Chamber of the Constitutional Court of the Czech Republic to repeal Article II of Act No. 304 / 1993 Coll., amending and supplementing the Act of the Czech National Council No. 391 / 1991 Coll., on the salary ratios of judges, state notaries, judicial and notarial waiters, as amended by the Act of the Czech National Council No. 7 / 1993 Coll.,
as follows:
Motion rejected
Reasons
On 18 July 1995, JUDr. K. F., President of the Chamber of the Regional Court in České Budějovice, Branch of Tabor, lodged a constitutional complaint under point III of the ÚS 189 / 95. In the complaint, he requested the annulment of the judgment of the Supreme Court in Prague of 26 May 1995 No 6 A 81 / 94-14, in conjunction with the decision of the Military Social Security Office of 23 March 1994 No 53308309029903, and claimed that there had been discrimination against the principle of equality of citizens before the law, and thus that the rights guaranteed by the Charter of Fundamental Rights and Freedoms ("the Charter ') had been infringed.
By decision of the Military Social Security Office of 23 March 1994 No 53308309029903, in connection with his discharge from the service of an occupational soldier under Section 26 (1) (c) of Act No. 76 / 1959 Coll., on certain service conditions of soldiers, as amended, a service allowance of CZK 4500 per month was established pursuant to Section 33 of the same Act. It was also stated that pursuant to Article II of Act No. 304 / 1993 Coll., amending and supplementing the Act of the Czech National Council No. 391 / 1991 Coll., on the pay ratios of judges, state notaries, judicial and notarial candidates, as amended by the Act of the Czech National Council No. 7 / 1993 Coll., the payment of the service allowance is suspended for the duration of the duties of judge of the general court.
The complainant lodged an appeal against this decision within the legal period. The Ministry of Defence of the Czech Republic (hereinafter referred to as "the Ministry '), the Social Security Department, as appellate body on 28 April 1994 under No 34 / 21-827-45 / 2, decided not to comply with the appeal and confirmed in full the contested decision. In the preamble, the Ministry referred to Article II (2) of Act No. 304 / 1993 Coll., according to which, if a court-martial grants consent to an assignment to a court, he is not entitled to payment of the service allowance under Act No. 76 / 1959 Coll.
Subsequently, the complainant brought an action against the Supreme Court in Prague requesting the annulment of the decision of the Ministry of Social Security No 34 / 21-827-45 / 2. In the application, he stated that the administrative authorities incorrectly applied Act No 304 / 1993 Coll. The Act became effective only on 1 January 1994 and cannot be retroactive. Since the complainant was dismissed from the service of an occupational soldier on 31 December 1993, i.e. before the application of Act No. 304 / 1993 Coll., the provisions of this Act cannot be applied to his case and therefore the service allowance is to be paid to him. Article II of Law 304 / 1993 Coll. is a violation of the principle of equality of citizens before the law and is therefore contrary to the Charter.
By judgment No 6 A 81 / 94- 14 of 26 May 1995, the Supreme Court of Prague ruled on this action by rejecting the action and by not having the right to pay the costs. The Supreme Court in Prague justified its judgment by the fact that the military courts were terminated in the light of Article 110 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) on 31 December 1993 (i.e. 24.00 hours). Law 304 / 1993 Coll. came into force on 1 January 1994 (at 00.00 a.m.), at the same time. Its provisions therefore fully affect the complainants. If this were to be the case, as stated by the complainant in the action, it would have to be concluded that Article II of Law 304 / 1993 Coll. lacks any meaning at all and is completely obsolous (from the beginning of 1 January 1994 it could no longer have been the consent of a court-martial, since there was no such thing).
The Supreme Court in Prague also addressed the question whether Article II (2) of Law 304 / 1993 Coll. is not contrary to the principle of equality before the law. He argued that the finding of the Constitutional Court of the CSFR, published under No 11 / 1992 of the Reports of the Resolutions and Finals of the Constitutional Court of the CSFR, was justified by Article II of Law No 304 / 1993 Coll. based on the public interest, the specificities of the service in the military etc. The State must also be authorised to exclude a certain category of persons from the granting of certain advantages. Article II (2) of Law No 304 / 1993 Coll. is precisely such an exception to the advantages and, in the view of the Supreme Court in Prague, this provision cannot be seen as an unjustified inequality between former military judges and other former professional soldiers.
The complainant lodged a constitutional complaint against the decision of the Supreme Court in Prague in a timely manner, in which he argued, inter alia, that it was generally known that the payment of the service allowance was denied only to former judges of former military districts and higher military courts who remained in the service relationship of an occupational soldier until 31 December 1993, i.e. to the very end of the military courts under the Constitution, particularly because they were urged to remain in office until that date and not to cause the collapse of military justice. On the other hand, the service allowance is paid to former judges of the Military College of the Supreme Court of Prague, former military prosecutors who were appointed Judges of the General Courts, who left the military judiciary before 31 December 1993 and were then appointed Judges of the General Courts.
The inequity of citizens before the law is given, according to the complainant, also by the fact that the service allowance under those regulations is paid to former professional soldiers who have left military active duty, without distinction, namely not only those whose military specialisation appears to be so narrow that it does not allow them adequate application in terms of transition to civil life, but also former military doctors, zodiacs, technicians, etc., for whom the social aspect is clearly lacking.
The III Chamber of the Constitutional Court, when discussing this constitutional complaint, concluded that Article II of Law No 304 / 1993 Coll. is contrary to Article 1 of the Charter. Pursuant to Article 78 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, by its Resolution of 7 March 1996 No III. The ÚS 189 / 95-40 suspended the proceedings and submitted an application to the full court for annulment of Article II of Law 304 / 1993 Coll.
Pursuant to Articles 42 (3) and 69 of Act No. 182 / 1993 Coll. the Constitutional Court sent a proposal to the Chamber of Deputies of the Parliament of the Czech Republic. In his observations, the President of the Chamber of Deputies, PhDr. Milan Uhde, confirmed, in accordance with the requirements contained in the provisions of § 68 (2) of Act No. 182 / 1993 Coll., that Law No. 304 / 1993 Coll. was approved by the necessary majority of Members on 7 December 1993, was signed by the relevant constitutional authorities and was duly declared. In the opinion of the President of the Chamber of Deputies, reference is made to the explanatory memorandum to Article II of Act No 304 / 1993 Coll., which is based on a thesis according to which that law guarantees the judges of the military courts a legal right to perform the duties of Judges of the General Courts, as a result of which there is no reason for the judge to be entitled to payment of the service allowance for the duration of their duties. Finally, the President of the Chamber of Deputies takes the view that, after examining the whole matter, the above provisions of the Act may, however, appear to be discriminatory against some former judges of the military courts, in particular from the aspects set out in the explanatory report on the cited law, on the one hand, and from the aspects contained in the Order of the Constitutional Court of the Czech Republic of 7 March 1996 on the other hand. '
In accordance with Article 42 (2) of Act No 182 / 1993 Coll., the Constitutional Court also requested, as documentary evidence from the Chamber of Deputies, the House's prints No 598 and No 636.
and
Act No. 304 / 1993 Coll. was published in 77 Collection of Laws and was distributed on 23 December 1993. Its effectiveness was set at 1 January 1994. Law 304 / 1993 Coll. contains three articles:
- Article I amended Act No. 391 / 1991 Coll., on the pay ratios of judges, state notaries, judicial and notarial waiters, as amended by Act No. 7 / 1993 Coll.,
- Article II enshrined provisions which constitute the separate legislative content of Act No. 304 / 1993 Coll.,
- Article III provided for the effectiveness of Act No. 304 / 1993 Coll.
The Act amended, with effect from 1 January 1994, the termination of the employment arrangements of former judges of military courts and the payment of certain benefits associated with the termination of the service of such judges.
According to Article II (1) of the Act, if a court-martial has given his consent to be assigned to a court and his professional relationship has not ceased to be made redundant under a special provision (Section 26 of Act No. 76 / 1959 Coll., as amended), his service relationship of a soldier shall cease to be effective on the date of that act. According to Article II (2), if a court-martial gives its consent to be assigned to a court, he shall not be entitled to payment of a service allowance under a special provision (Section 33 of Act No. 76 / 1959 Coll., as amended by Act No. 226 / 1992 Coll.) during the term of office of the judge. According to Article II (4), if a court-martial gives his consent to be assigned to a court, his right to severance pursuant to a special provision (§ 33a of Act No. 76 / 1959 Coll., as amended by Act No. 226 / 1992 Coll.) shall cease.
On 26 October 1995, 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 took effect. This Act in its part of the fifth, transitional and final provisions, in § 44 (2) repealed Act No. 391 / 1991 Coll., as amended by Act No. 7 / 1993 Coll. and Act No. 304 / 1993 Coll.
Act No. 236 / 1995 Coll. was not repealed by Act No. 304 / 1993 Coll. all but only the part of it which concerned the repealed Act ČNR No. 391 / 1991 Coll. Other parts of Act No. 304 / 1993 Coll. (which have a separate regulatory existence, i.e. Articles II and III) remain in force.
After the entry into force of Act No. 236 / 1995 Coll., the Military Social Security Office began to pay a service allowance to former judges of military courts. So the situation is contradictory. For a certain period of time, the Military Social Security Office did not pay the service allowance. Then, without abolishing the law on the basis of which payment of the service allowance was suspended (and without any major general decision being given), the payment was renewed. This can only be explained by the incorrect interpretation of the derogatory relationship of Act No. 236 / 1995 Coll. in relation to Act No. 304 / 1993 Coll.
b
When assessing the constitutionality of the provisions of Article II of Law 304 / 1993 Coll. it is necessary to consider in particular whether it is discriminatory in relation to other categories of professional soldiers who were in the same or similar social situation as judges of military courts (from the interpretation of the term "military courts' within the meaning of § 21 to 24 of the Act No. 335 / 1991 Coll., on courts and judges, as amended on 31 December 1993).
In connection with termination of service, according to the provisions of § 33 to 33b of Act No. 76 / 1959 Coll., as amended, certain benefits, service allowance and severance pay are paid to professional soldiers, if the service is terminated by the death of a soldier, they are paid to the survivors of the death penalty.
These cash benefits are of a social and motivational nature, guaranteed by the social security of professional soldiers due to the psychological and physical complexity of military service, the potential threat to life in preparation for combat activity, the exercise of duty on site as required by the armed forces. Last but not least, these benefits also compensate for restrictions on certain economic and currently political rights. As a result of the nature of the service, the majority of professional soldiers are physically and mentally worn out after a certain period of service, and part of them end up in employment, whether by decision of the service authorities or at their own request, before they become entitled to an old-age pension. The transition of these soldiers from occupation to civil life is particularly problematic in terms of their integration into civil and, in particular, working life (many military professions are not applicable in civil life). The service contribution and severance grants are intended to facilitate this transition. They are entitled to all professional soldiers who fulfil the statutory conditions. Benefits are paid to all professional soldiers who leave military service, regardless of their particular social situation. It also pays off to those former professional soldiers whose use in the civil sector does not essentially cause problems (doctors, vets, technicians, etc.).
The judges of all former military courts were undoubtedly professional soldiers within the meaning of the applicable legislation. At the time of their service they were therefore covered, inter alia, by the provisions of Act No. 76 / 1959 Coll., as amended, including provisions on cash claims related to the withdrawal from military service.
As a result of changes in the organisation of the courts initiated in particular by the adoption of the Constitution and the Law of the Czech Republic No. 17 / 1993 Coll., amending and supplementing Act No. 335 / 1991 Coll., on Courts and Judges, as amended by Act No. 264 / 1992 Coll., a part of the Judges of the Military Courts gave their consent to be assigned to a certain general court of the same degree in accordance with Article II (5) of the Law No. 17 / 1993 Coll. In connection with this, these judges were dismissed by order of the Minister of Defence No. 205 / 1993 from service pursuant to § 26 (1) (c) of Act No. 76 / 1959 Coll., as amended. Some of these judges left the military judiciary earlier, some in connection with the effectiveness of the ČNR Act No. 17 / 1993 Coll. only on 31 December 1993. The latter was not paid for a period of time and was not entitled to severance payments.
The Ministry's report of 9 October 1995 on the payment of the service allowances No 1682-44 / 2 shows that the judicial authorities of the former military courts who have given their consent to be assigned to a court are entitled to the service allowance only after the duties of the judge have ceased. At present, a service allowance is paid in four cases. The judges of the Military College of the Supreme Court of Prague, or the Supreme Court, who, after being released from the service, gave their consent to be assigned to a court, were granted a service allowance. It is paid in six cases. The right to a service allowance is also maintained for professional soldiers - waiting for judicial officers of military courts. It is paid in two cases. The former military prosecutors and investigators of the military prosecutors shall be paid a service allowance upon termination of the office of the prosecutor. It is paid in two cases.
Until 31 December 1993, the legal order used the term "military courts' in two respects:
1. The first importance was determined by Act No. 335 / 1991 Coll., as in force on 31 December 1993, which in the second part incorporated in the system of courts the military courts, which he referred to as the military district courts (§ 21, 22) and higher military courts (§ 23, 24). Under the marginal heading "Military Courts', that law did not include the Military College of the Supreme Court and the Military College of the Supreme Courts.
2. The second meaning was determined in particular by the provisions of Sections 14 and 15 of the Code of Criminal Procedure, the content of which and the marginal section "Powers of the Military Courts' indicated that military courts are courts exercising jurisdiction under those provisions, i.e. not only military circumferential and higher military courts, but also the Supreme Court and Supreme Courts, more precisely their military chambers. The second meaning of the term" military courts' also resulted from certain provisions of Act No. 335 / 1991 Coll., as amended on 31 December 1993. This is the case in Section 20, according to which "the military courts rule on all criminal matters of members of the armed forces, prisoners of war and other persons on whom the law so provides'. It follows from that provision that these courts were not only military circumferential and higher military courts, but also supreme courts and Supreme Court. Furthermore, the provisions of § 25 (1) (b) and (d) of the cited Act, the heading of which was" Enforcement of the Administration of Military Courts', have also been regulated by the administration of the Military College of the Supreme Court and the Military College of Supreme Courts.
Article II of Law No 304 / 1993 Coll. can therefore be interpreted in two ways. either as a provision applicable only to judges of military circumferential and higher military courts, or as a provision applicable also to judges of military colleges of supreme courts and Supreme Court, i.e. to judges of all courts exercising the jurisdiction of military courts.
Interpretation first leads to discrimination (or unjustified privilege) within a group of former members of military justice, by applying Law 304 / 1993 Coll. only to judges of former military districts and higher military courts. Other former professional soldiers who served in military justice (i.e. members of the Military College of the Supreme Court in Prague and the Military College of the Supreme Court, the waiting persons of the military courts) allow the service allowance to be paid without limitation. Same goes for the severance package. Such an interpretation by granting some former judges of military courts and some former military justice officers a service allowance and not some, although they are in a comparable social situation when leaving the active service, results in a breach of the equality of citizens before the law (Article 1 of the Charter).
In a situation where a provision of legislation permits two different interpretations, one complying with the constitutional laws and international treaties provided for in Article 10 of the Constitution and the other contradicts it, there is no reason to repeal that provision. In its application, it is the responsibility of all state bodies to interpret the provision in a constitutional way (see the finding of the Constitutional Court of Pl. ÚS 48 / 95 No. 121 / 1996 Coll.).
In the present case, therefore, Article II of Law No 304 / 1993 Coll. must be interpreted from the point of view of § 14 and 15 of the Code of Criminal Procedure, as in force on 31 December 1993, and from the point of view of § 20 and § 25 (1) (b) and (d) of the Act No. 335 / 1991 Coll., as in force on 31 December 1993, and therefore to apply the provisions contained therein not only to judges of former military court and higher military courts, but also to judges of the military colleges of the Supreme Court in Prague and Supreme Court of Justice, as well as to the judicial candidates of military courts.
When assessing the compliance of Article II of Law 304 / 1993 Coll. with constitutional laws and international treaties pursuant to Article 10 The Constitution must also address the issue of equality between the status of judges of military courts who have not been awarded a service allowance, with the status of former military prosecutors and the status of those former professional soldiers whose application in the civil sector does not give rise to significant problems (doctors, vets, technicians, etc.).
Payment of benefits under Act No. 76 / 1959 Coll., as amended, to former military prosecutors who have become legal prosecutors is provided for in § 35 (1) of Act No. 283 / 1993 Coll., on the Prosecutor's Office. That provision, according to which the prosecutors whose employment has ceased after having expressed opposition to the competent authority of the Public Prosecutor's Office are entitled to severance or severance pay under a special law, must be interpreted and contrario and per analogiam in such a way that those who do not express such disagreement and remain ex-prosecutors do not receive benefits under § 33 to 33b of Act No. 76 / 1959 Coll., as amended. The same interpretation of the provision in question was also applied in practice, as is apparent from the report of the Ministry on the payment of the service contributions of 9 October 1995, No 1682-44 / 2, when the service allowance is paid to the former military prosecutors and investigators of the military prosecutors after the performance of the duties of the prosecutor. Therefore, the comparison between former judges of military courts and former military prosecutors with regard to the provision of the service allowance does not contain an element of inequality.
The last question is a comparison between the situation of former military judges and those former professional soldiers whose application in the civil sector does not pose major problems (doctors, vets, technicians, etc.) and whose right to a service contribution has not been withdrawn by legislation. However, the two groups of persons differ significantly. In the case of judges of military courts, the law has guaranteed their continued presence as judges of general justice, and in the event of their departure they are granted a service allowance, regardless of whether they continue in the legal profession.
In the light of all the above reasons, the Constitutional Court rejected the application for annulment of Article II of Law No 304 / 1993 Coll. rejected.
President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
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Regulation Information
| Citation | The finding of the Constitutional Court of the Czech Republic No. 286 / 1996 Coll., on the application for annulment of Article II of Act No. 304 / 1993 Coll., amending and supplementing the Act of the Czech National Council No. 391 / 1991 Coll., on the pay ratios of judges, state notaries, judicial and notarial candidates, as amended by the Act of the Czech National Council No. 7 / 1993 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 29.11.1996 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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