The Constitutional Court found No. 320 / 2000 Coll.

Motion denied.

On 23 September 1999, the Constitutional Court received a proposal from the Municipal Court in Brno to abolish Act No. 287 / 1997 Coll., supplementing Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the duties of representatives of state authority and of certain state bodies and judges, as amended by Act No. 138 / 1996 Coll.

The President of the Chamber, JUDr. Eva Gottwald, acting on behalf of the Municipal Court in Brno pursuant to § 30 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, (hereinafter referred to as "the Law on the Constitutional Court ') stated that, pursuant to § 109 (1) (b), second and third sentences of the Civil Procedure Code, the Court of Justice of the Supreme Court of the Czech Republic suspended the proceedings for the payment of CZK 62 000 with the accessories to be paid in January 1998 as an additional salary for the second half of 1997 pursuant to § 4 of Act No. 236 / 1995 Coll. As a result of the amendment by Act No 287 / 1997 Coll., this amount was not paid to him even though he was entitled to it.

Since the law to be applied in the resolution of the case is, in the appellant's view, contrary to the constitutional law, pursuant to Article 95 (2) of the Constitution of the Czech Republic, it has brought the case before the Constitutional Court after the stay of proceedings. The City Court in Brno accuses the contested law of its retroactivity, thereby violating the principle of legal certainty and protecting citizens' trust in law. It is based on the applicant's claim that he was entitled to another salary for the second half of 1997, subject to the conditions laid down in § 4 (2) of Act No. 236 / 1995 Coll. already established on 29 September 1997 and that no other law may be waived once already acquired entitlement. This has seriously infringed Articles 1, 4 and 28 of the Charter of Fundamental Rights and Freedoms.

Since the proposal complied with the formal requirements of the proposal for the annulment of the law and was made in accordance with Article 64 (4) of the Law on the Constitutional Court, the Constitutional Court requested comments from both chambers of Parliament of the Czech Republic on the proposal.

In the observations of the Chamber of Deputies signed by the President of Prof. Ing. Václav Klaus, CSc., it is stated: Act No. 287 / 1997 Coll. amends Act No. 236 / 1995 Coll. by adding a new § 4a for the additional salary of officials and judges, which states that the representatives and judges are not entitled to another salary for the second half of 1997. According to Act No. 236 / 1995 Coll. the additional salary to the representative and the judge is due if, in the calendar half-year, the representative or judge has actually performed his duties for at least 90 calendar days and if, in the first half of the calendar year, the performance of that function does not end for the representative before 31 May and the judges before 30 June and for the second half of the calendar year, the performance of the duties will not end for the representative before 30 November and the judges before 31 December. The entitlement to a further salary for the calendar half of the year shall be subject to both conditions. Law No 287 / 1997 Coll. stating that the representative or judge is not entitled to another salary for the second half of 1997, it became effective on the date of its publication, i.e. on 28 November 1997, before the second condition was met. It follows that the right to an additional salary for the second half of 1997 did not arise and therefore that law could not intervene retroactively in the acquired law. Law No 287 / 1997 Coll. was approved by the necessary majority of Members, signed by the relevant constitutional authorities and duly declared in the Collection of Laws. Finally, the President of the Chamber of Deputies stated that the legislature acted in the belief that the adopted law was in accordance with the Constitution, the constitutional order of the Czech Republic and our legal order and that it was up to the Constitutional Court to assess the constitutionality of the contested law.

In her comments, Senate President PhDr. Libusha Benešová commented on the progress of the legislative process. It stated that if its retroactive effect is contested by Law No 287 / 1997 Coll. the proposal is not justified in this respect. If this law is also being assessed in the light of respect for the constitutional principle of judicial independence, it is appropriate to express its opinion on this issue on the ground that it was not possible to do so in the case of the observations made on the application for annulment of Act No. 268 / 1998 Coll., on the withdrawal of another salary for the second half of 1998 by representatives of the State Government and certain state authorities, judges, prosecutors and members of the Securities Commission's presidium in which only its retroactive effect was challenged by the appellant. It will certainly not be questioned that the principle of the independence of judges covers a number of aspects, including the material provision of judges. However, it is appropriate to point out that this material security is mainly carried out in the form of a regular monthly salary, its amount and conditions of provision and this cash performance were not affected by any restrictions. It was also stated in the European Commission's evaluation report on the Czech Republic that "judges' salaries are relatively high ', while in other areas, such as police and administrative structures, a low level of pay was pointed out as a persistent problem. These aspects are strongly perceived by our public as well.

A further salary is, under the statutory arrangements, a one-off cash payment provided under the conditions laid down once in the calendar year, on the basis of which the actual conditions of entitlement, whereby one of them is the duration of the employment relationship of a judge on the last day of the calendar half-year, implies that such cash performance can hardly be regarded as material collateral for a judge whose reduction or withdrawal could result in a breach of the principle of independence of judges. The contested law was passed by the Senate by all senators present. The Senate's observations were accompanied by a short-term report from the Senate meeting, when it was stated when it presented draft law No 287 / 1997 Coll. that it was decided, when taking the government's stabilization and recovery measures, that workers in budgetary and certain other organisations and bodies who are remunerated under Act No. 143 / 1992 Coll., on the salary and remuneration for on-call work in budget and some other organisations and bodies should not be paid for the second half of this year. A similar provision was approved recently when the Law on the salaries of prosecutors was passed. The appellants of this law considered it right that similar adequate arrangements should be made for those persons who are remunerated by State resources under Act No. 236 / 1995 Coll. Such a regulation is moral, and it is about essentially everyone who is rewarded with state resources being in the same position this year.

The Constitutional Court is not bound by the grounds, but only by the petit of the motion, and therefore has also assessed it in terms of compliance with other constitutional standards and principles. In this context, it could not, in particular, overlook that the finding published under No 233 / 1999 Coll. as an unconstitutional act repealed part of a similar law (No 268 / 1998 Coll.), namely in relation to judges of general courts, and, therefore, had to address the question whether the contested law was contrary to the constitutionally guaranteed principles of democratic rule of law and judicial independence, as the Constitutional Court found in that case. It is from this point of view that the Constitutional Court has reached the following conclusions.

Judicial independence is one of the fundamental democratic values, and the material security of judges is undoubtedly helping to fulfil that independence. In particular, it is essential that the judicial compensation is not arbitrarily, repeatedly and in any form interfered with by other State bodies. This is why the Constitutional Court (in line with the European Court of Human Rights's decision-making practice) focused on the question of whether the contested intervention in guaranteed rights (i.e., in this case, withdrawal of the so-called 14 salary to judges of general courts) was provided for by law, 2. It aimed at a legitimate objective and 3.

1. On the first question, it can be concluded that the legal form of intervention was met. In doing so, the unfounded contention of the appellant is that the law is retroactive, since in the present case the situation is comparable to that declared under No 233 / 1999 Coll., in which the Constitutional Court has already sufficiently dealt with the objection of the retroactivity of such a law and in the present case it is therefore left to refer to that finding. The Constitutional Court also notes that, from a constitutional point of view, the fact that the contested law was adopted in a different legislative form in the present case is not relevant, i.e. by amending the relevant law as opposed to the adoption of a separate law. It is true, however, that it is constitutionally more appropriate to have an amendment to the original law, which sets out the pay and other requirements of the judges, in precisely a "sensitive 'area such as the limitation of the material benefits of the judges, and thus a systematic solution than when a separate law is adopted, which interferes with another law with its ad hoc material. However, from a constitutional point of view, this difference in itself is not decisive.

In this regard, therefore, the proposal to abolish the law in question is not justified as the contested measure took place in a legal form.

2. The second question is whether the contested law aimed at a legitimate objective, i.e. whether the withdrawal of the so-called 14th salaries of judges of the general courts was legitimate in the period in question.

In this context, the Constitutional Court could not ignore the social and economic reality of the Czech Republic, which was in a difficult economic and social situation at the time of the adoption of this law, which, in consequence, led to the abolition of so-called 14 civil servants' salaries (albeit in a slightly different form from those of constitutional officials) and also to the withdrawal of so-called 14 constitutional officials' salaries. In view of the legitimacy of the objective, the Constitutional Court therefore takes the view that even judges of general courts are not in a "legal and economic vacuum" that would completely isolate them from the surrounding economic and social reality. Therefore, it cannot be categorically argued that the judges of the General Courts have an apricot right to such material security, which cannot be amended in any way and under any circumstances in a legislative way.

In the finding published under No 233 / 1999 Coll. The Constitutional Court has declared that the State is obliged to create institutional preconditions for the real independence of the courts and for stabilising their position in relation to legislation and enforcement. The courts must carry out their duties and duties in particular in the area of the rights and freedoms of man and citizen, and these principles must not be undermined by legislative means. The Constitutional Court has changed nothing on this fundamental basis. In the present case, material security of the entire public sphere was affected by the legislature's procedure (taking into account the relationship between the amendment of Act No. 236 / 1995 Coll. and the amendment of Act No. 143 / 1992 Coll.) and not just the judges. A different assessment of only one group, even if protected to an increased extent by constitutional coupons of the principle of independence, would be difficult in that context to obtain an acceptable advantage. In every legislative intervention and in the material security of judges, it is therefore necessary to strictly respect the fundamental principles of the material rule of law and the value orientation of the constitutional order of the Czech Republic. In particular, such intervention must not take place as a result of wilful or breach of the principle of legal certainty. In such a case, there would clearly be a breach of the legitimacy of the objective pursued.

However, it is in this direction that we must see the difference in the situation of the two cases. If in the case of a finding declared under No 233 / 1999 Coll. The Constitutional Court ruled in a situation where the intervention in the independence of judges was an immediate and timely act of the contested legislative act, in the case under appeal, compliance with the application would, as a result, entail the granting of the relevant material benefits with more than two years' delay (when the claimant lodged his proposal before the Municipal Court in Brno for more than a year after the contested law became effective) and the annulment of the contested law for the protection of judicial independence would be of the utmost difficulty from a constitutional point of view. The Constitutional Court must, in its activities, seek effective protection of constitutionality and, in this situation, the annulment of the contested law would be manifestly inefficient and would not adequately fulfil the purpose declared by the Constitutional Court in the finding published under No 233 / 1999 Coll.

The Constitutional Court notes that, in the present case, it did not find any contradiction between the legitimacy of the objective pursued and the contested intervention and that the law in question was not unconstitutional even from that point of view.

3. The third aspect addressed by the Constitutional Court was whether the contested law was a necessary measure in a democratic society. This means that the Constitutional Court had to focus on the question of whether the legitimate objective pursued could not be achieved otherwise than by the adoption of this law. In the present case, the Constitutional Court found that the chosen solution - despite all the reservations mentioned - could not be regarded as unconstitutional either because it did not constitute a necessary measure in a democratic society. For all these reasons, the contested law did not jeopardise the institutional assumptions for the real independence of the courts and cannot even be characterised as an arbitrary act of the legislator. In carrying out its tasks, the Constitutional Court must also consider the intensity of intervention in the fundamental principles of constitutionality and the contested law as an anti-constitutional derogate only if it concludes that the degree of non-constitutionality of the contested law effectively violates the fundamental constitutional principles. However, the Constitutional Court did not reach that conclusion in the present case.

The Constitutional Court acts to abolish the legislation if it finds that the benefit of the deregulation outweighs the undesirable consequences arising therefrom and thus follows the principle of proportionality in the material rule of law. Even in this regard, the Constitutional Court did not find the reason for the annulment of the contested law.