The Constitutional Court found No 321 / 2000 Coll.

Motion denied.

On 10 April 2000, the Constitutional Court received a proposal from the District Court in Hradec Králové to abolish part of the provisions of Section 1 of Act No. 308 / 1999 Coll., on the withdrawal of another salary for the second half of 1999 and for the second half of 2000 to representatives of state power and certain state bodies, judges, prosecutors and members of the Securities Commission Presidium, namely the words "judges'. The President of Chamber 7 C, acting on behalf of the Regional Court in Hradec Králové - Mgr. Boris Nypl, stated that on 12 January 2000 the Court was served with an action in which the Judge of the Regional Court in Hradec Králové proposed that the Court should impose an obligation on the defendant of the Regional Court in Hradec Králové to pay a further salary for the second half of 1999 of CZK 64 900. The claimant is convinced that he was entitled to another salary on the basis of § 4 (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 authorities and judges, as amended. The appellant further stated that Law No 308 / 1999 Coll. However, the Court considers that that law is contrary to Article 2 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and Article 2 (1) of the Charter of Fundamental Rights and Freedoms in the part in which the salary of judges is withheld. It is well known that in the recent past the Constitutional Court has ruled on an analogous case. The finding published in the Collection of Laws under No. 233 / 1999 Coll. was partially repealed by Act No. 268 / 1998 Coll., on the withdrawal of another salary for the second half of 1998 to representatives of state power and certain state bodies, judges, prosecutors and members of the Securities Commission Presidium, namely the withdrawal of another salary to judges. The Constitutional Court, in its finding, expressed the view that withdrawing another salary from judges is a threat to the principle of judicial independence. Act No. 308 / 1999 Coll., to be used in the proceedings concerning the applicant's application by JUDr. P. K., according to the applicant, is contrary to the Constitution and the Charter of Fundamental Rights for the same reasons.

After finding that there are no grounds for rejecting the application pursuant to Article 43 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court '), or for terminating the proceedings under Article 67 of the Law on the Constitutional Court, the application was sent to the Chamber of Deputies and the Senate of the Parliament of the Czech Republic with a call for expression in accordance with Article 69 of the Law on the Constitutional Court.

The Chamber of Deputies, in its observations signed by the President of Prof. Ing. Václav Klaus, CSc., stated that, in the course of the examination of the draft law, the Chamber of Deputies' budget committee informed the Chamber of Deputies that, by the finding of the Constitutional Court of 15 September 1999 sp. zl. At the second reading of the bill, the rapporteur of the government bill submitted an amendment to remove judges from both the title of the law and the provisions of Section 1 of the government bill. However, the Chamber of Deputies did not accept this proposal and did not accept a similar text of the bill approved by the Senate. The Chamber of Deputies does not regard as a threat to judicial independence the fact that a part of the salary entitlement to all judges is withdrawn on a flat and one-off basis, as the judge does not consider that a special category of citizens should not be covered by the laws adopted. On the other hand, the threat to judicial independence would be that a specific judge in a particular decision-making case would be proposed either to increase or reduce the salary entitlement to make a decision in a particular way. Act No. 308 / 1999 Coll. was approved by the necessary majority of Members, signed by the relevant constitutional authorities and duly declared in the Collection of Laws. In this state of affairs, the Chamber of Deputies believes that the legislature acted in the belief that the adopted law is in accordance with the Constitution, the constitutional order of the Czech Republic and our legal order.

The President of the Senate, PhDr. Libuše Benešová, stated in her comments on the proposal that the Senate respected the decision of the Constitutional Court adopted in 1999 on the application for annulment of Act No. 268 / 1998 Coll., which was published under No. 233 / 1999 Coll. In this context, he points out the observations of the Senate sent to the Constitutional Court on the application for annulment of Act No. 287 / 1997 Coll., in which part III of which the Senate's view is expressed on the nature of the additional salary and respect for the constitutional principle of judicial independence. The observations point out that the substantive provision of judges is mainly made in the form of a regular monthly salary, its size and the conditions for granting. This cash performance was 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 granted under the conditions laid down once in the calendar year, on the basis of the conditions of entitlement, whereby one of them is the duration of a judicial relationship on the last day of the calendar half-year, it is apparent that such cash payment can hardly be regarded as material collateral for judges whose reduction could result in a breach of the principle of independence of judges.

The Senate discussed the bill at its 11th meeting on 18 November 1999 and returned it to the Chamber of Deputies as amended.

After examining the draft, the Constitutional Court did not find the merits of the grounds on which the motion to abolish the word "judges" in § 1 of Act No. 308 / 1999 Coll., as requested in the petition.

The proposal is a case of procedures for the specific control of standards. This means that, in its context, the Constitutional Court is examining the constitutionality of the contested provision of the law, which is generally binding, but this procedure was initiated for the purpose of dealing with a particular case before the General Court when the procedure was suspended in accordance with Article 95 (2) of the Constitution and the case (i.e. the application for annulment of part of the provisions of the law) was brought before the Constitutional Court.

However, it is also the case in this type of procedure that a simple majority of judges are not sufficient to take the decision of the Constitutional Court which abolishes the provision of the law, but a qualified majority of at least nine judges present (Paragraph 13 of the Law on the Constitutional Court). As a result, according to settled case-law of the Constitutional Court, "an application for annulment of a law or its individual provisions shall be rejected if the majority of the required law does not speak to it, i.e. even if the majority voting for annulment consists of less than nine Judges' (the finding of 15 May 1996 sp. zn.

As stated in the next part of the preamble, in the present case, the Constitutional Court dealt with an analogous proposal after nine months and after the legislator's reestablishment in the original opinion in different circumstances and in a somewhat different composition to that of the hearing in the sp. zn. Since the proposal to abolish the provisions of the law in this case did not reach a legally qualified majority of nine judges, it was rejected and the argument of the opponents of the law or the contested provision was therefore overruled. This situation is a result of a conflict of double access to the alleged violation of the principle of independence of judges, which has occurred both in relation to the first finding and now.

The first concept, which was upheld in the decision of 15 September 1999, sp. zn. Pl. ÚS 13 / 99 (No 233 / 1999 Coll.) and which was dealt with by the analogous situation concerning the additional salaries of judges for the second half of 1998, is based on the view that this way of dealing with the issue of the additional salaries of judges by the legislature actually devalues one of the fundamental democratic values of the judge's independence. According to the advocates of this concept, the withdrawal of the so-called fourteenth salary to judges means a breakthrough into a sort of "inalienable" right of judges to not reduce the compensation they are granted as a guarantee of their independence and legal certainty.

On the contrary, the second concept, which prevailed in the final vote in the present case, considers it important to emphasise that the different assessment of only one group of State-paid persons - judges, although protected to an increased extent by constitutional courts of the principle of independence, would, in that context, hardly be an acceptable advantage when the legislator's procedure has been generally affected by the material security of the public sphere as a whole. In view of the legitimacy of the objective of the contested law, the Constitutional Court recognises that 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 judges of the General Courts have an apriorial right to such material security, which cannot be changed in any way and under any circumstances in a legislative way. On the other hand, however, the Constitutional Court is of the opinion that the salary of judges should be a variable factor according to the immediate vision of one or the other government group. It therefore considers the solution found to be an exceptional act, which can only be justified for serious reasons and only in the context of an overall appropriate adjustment of salaries across the whole sphere of state officials and employees. Only in this overall context can the impact of the state's financial difficulties also be recognised on judicial salaries.

It is in these circumstances that an exemption would infringe the constitutional principle of equality, on the basis of which the entire area of civil servants and constitutional actors are subject to such legislation. According to the explanatory memorandum to Act No. 308 / 1999 Coll., "it is considered correct that, as in 1997 and 1998, officials of State authority and other persons whose salary is derived from the salaries of the employees of the ministries should be removed from the entitlement to another salary for the second half of 1999 '. The salaries of judges are regulated by Act No. 236 / 1995 Coll., as amended. According to Article 3 (2) of the Act, the salary shall be determined as the product of the salary base and the salary coefficient determined in accordance with the responsibility and complexity of the duties performed. According to paragraph 3 of the same paragraph, the salary base shall mean the sum of the highest fee and the maximum amount of the personal surcharge provided for by the special regulation for ministerial staff. The amount of the salary is therefore directly dependent on the level of the salaries of employees of the public authorities. In the view of the Constitutional Court, such pay interconnections, once adopted as a principle of remuneration for State employees, should be respected both in the case of tariff indexation (e.g. an increase of 17% from 1 January 1999, which resulted in an increase in the salaries of all representatives of state authority and civil servants, including judges) and also in the reduction of certain material benefits.

The Constitutional Court respected the Parliament of the Czech Republic, which, by adopting Act No. 308 / 1999 Coll., used its legislative powers (Article 15 (1) of the Constitution) and based on the possibilities of the state budget and the economic situation of the State, concluded that belonging to others was one of the civil virtues of which the members of the judiciary are carriers and which is justified even in a liberal society. Failure to pay another salary cannot jeopardise the independence of judges, in particular because it is neither surprising nor a deep intervention in the material security of judges. The independence of judges is also characterised by a number of constitutional guarantees such as appointment without a time limit (Article 93 (1) of the Constitution) or a ban on being withdrawn or translated against its will (Article 82 (2) of the Constitution). On the other hand, by overriding this entirely partial change in the material security of judges over other attributes of judicial independence, citizens' confidence in independent justice could be reduced, as the judges themselves, as the Constitutional Court envisages, are aware.

As regards the unconstitutionality of the withdrawal of additional salaries for the second half of 1999 and for the second half of 2000, it should be added to the judges that these additional salaries were, at the same time, taken from the judges by executive and legislative officials. The extraordinary financial cut in income throughout the whole area of power legislative, executive and judicial respected the balance of classical division of power and, in its scope, the limited time dimension did not provide a rational reason for the unilateral exclusion of judges from this general intervention of the State, when Government Regulations 248 / 1998 Coll. and 126 / 2000 Coll. had previously reduced the additional salary of employees of public authorities, certain other authorities and municipalities. The legislature, which was in time delay, could not, in view of a possible objection to retroactivity, use the same methods of halving the salary (i.e. both additional salaries) to achieve the stated objective of budgetary austerity, as well as reducing the inequality of the two categories of beneficiaries of the additional salary, and therefore acceded to the withdrawal of the entire one at a later date.

For all these reasons, the Constitutional Court found the procedure of the Parliament of the Czech Republic to be appropriate to the situation and did not reach the conclusion that the principle of independence of judges had been violated by the contested law. Therefore, the Constitutional Court rejected the application for annulment of the word "judges' in § 1 of Law No 308 / 1999 Coll. (§ 82 (1) of the Law on the Constitutional Court).