The Constitutional Court found No 354 / 2005 Coll.
The Constitutional Court's finding of 14 July 2005 on the application for annulment of Act No. 427 / 2003 Coll., which provides for exceptional measures 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 institutions, 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, in respect of one half of the additional salary for the first half of 2004 in relation to judges of the District, Regional, Supreme Court of Justice, Supreme Court and Supreme Administrative Court of Justice
Valid
The Constitutional Tribunal found
354
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 14 July 2005, as amended by the amending resolution of 30 August 2005 in plenary composed of Stanislav Balík, František Duchoň, Vojen Güttler, Pavel Holländer, Ivan Janů, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of the Municipal Court in Brno on the abolition of Act No. 427 / 2003 Coll., which provides for an extraordinary measure in 2004 to determine the amount of the salary and some compensation of expenses associated with the duties of representatives of state authorities, Members of the European Parliament, Judges and of State Representatives, the Supreme Court of Justice and the Supreme Court of Justice, and amending some related laws of the first half of the first half of the first half of the first half of the year 2004, and amending Act.
as follows:
The date of the publication of this finding in the Collection of Laws repeals the provisions of Section 2 of Act No. 427 / 2003 Coll., as amended by Act No. 626 / 2004 Coll. and Act No. 127 / 2005 Coll., as regards the Judge of the District, Regional and Supreme Court, Supreme Court and Supreme Administrative Court [§ 1 (i) of Act No. 427 / 2003 Coll., as amended by Act No. 626 / 2004 Coll. and Act No. 127 / 2005 Coll.].
Reasons
Definition and recap of the proposal
The Constitutional Court was served on 26 August 2004 with a motion by the Municipal Court in Brno to abolish "Act No. 427 / 2003 Coll. in the part concerning one half of the additional salary for the first half of 2004 in relation to judges of the District, Regional, Supreme Court, Supreme Court and Supreme Administrative Court [Paragraph 2 in relation to the provisions of Section 1 (h) of Act No. 427 / 2003 Coll.] '.
The appellant did so in accordance with Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, following its decision-making activities in accordance with Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), concluded that the provisions of Sections 1 (h) and 2 of the Act No. 427 / 2003 Coll., to be used in the resolution of the sp. zn. 33 C 236 / 2004, are contrary to Article 1 (1) in conjunction with Article 82 (1) of the Constitution and Article 1 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter).
In the case in point 33 C 236 / 2004, the Municipal Court in Brno is decided on an action by the judge of the same court, in which the claimant claims to the Czech Republic - the Municipal Court in Brno to pay one half of the additional salary for the first half of 2004, amounting to CZK 21 600, based on the provisions of § 4 of Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the office of representatives of the State Government and of certain state bodies and judges, as amended, which he considers to be fulfilled. However, half the additional salary for the first half of 2004 was not paid to him in the payment deadline set for 15 July 2004.
By withdrawing another salary for the first half of 2004, the appellant considered that there had been undue and repeated interference with judicial independence. By Law No 427 / 2003 Coll., half of the additional salary due for the first and second half of 2004, 2005 and 2006 was withdrawn, using a salary base of the amount obtained in accordance with the special legislation on 31 December 2003 (i.e. "salary freeze ') in those years. This measure was acceded to by the legislature at the time when it was aware of the grounds for the Constitutional Court's finding, sp. v. Pl. ÚS 11 / 02, the reasons for which the appellant referred.
The Municipal Court in Brno further points to the restrictions imposed by Act No 420 / 2002 Coll., which shortens the period of time by which officials and certain state authorities, judges and prosecutors are paid in the event of temporary incapacity to perform their duties, and which provides for certain measures in sickness insurance (care) and pension insurance, which significantly shortens the period of time for the judges to be paid in the event of temporary incapacity to perform their duties, from the original 6 months to 20 working days, even the Institute considers the provision of full pay in the event of temporary incapacity to be one of the guarantees of the judicial liability. It also identifies as a further limitation of the level of pay of judges the consequences resulting from Act No. 425 / 2002 Coll., which provides for exceptional measures for 2003 to determine the amount of the salary and certain reimbursement of the expenses associated with the performance of the duties of representatives of the State and of certain state authorities, judges and prosecutors, and which determine the level of additional salaries for the first and second half of 2003. Pursuant to Article 1 of that Law, a salary base of an amount reached on 31 December 2002 will be used for determining the salary and other allowances and expenses associated with the performance of the duties in 2003 for the appointed representatives and judges, and the salary base has not increased in that year in view of the changes in the regulations on the fees and the personal allowance made to the employees of the ministries with effect after 31 December 2002. Thus, although, in the normal course of events, the appellant considers that there should have been an increase in the salary of the judge as from 1 January 2003 as a result of a change in the regulations on the fees and the personal surcharge applied to ministerial staff, the ad hoc fee adopted by the law did not take place with the judges.
In this connection, the appellant draws attention to the explanatory notes to Act No. 420 / 2002 Coll. and Act No. 425 / 2002 Coll., which, in his view, followed by them the objective of "maintaining the comparable position of individual groups' of persons, i.e. civil servants, representatives of state power and judges, the special position of judges in terms of the level of remuneration, appeared to be unfair and unequal. This procedure is considered by the Municipal Court in Brno to be unconstitutional, contrary to the right of a judge to material security, which is one of the guarantees of his judicial independence. It points out that the legislator later failed to comply with the requirement to maintain the" comparable position of individual groups' of persons mentioned in those explanatory notes because, inter alia:
- by amending Government Decree No 253 / 1992 Coll., on the pay ratios of employees of public authorities, certain other authorities and municipalities, as amended by Government Decree No 582 / 2002 Coll., with effect from 1 January 2003, there has been an increase in the scale of the salary charges by grade and grade for employees referred to in § 1 (2) of Decree No 253 / 1992 Coll.,
- the amendment of Government Decree No 251 / 1992 Coll., concerning the pay ratios of employees of budgetary and certain other organisations, as amended, by Government Decree No 583 / 2002 Coll., has taken place with effect from 1 January 2003, with effect from 1 January 2003, with an increase in the scale of the rates by grade and grade for employees referred to in Section 1 (2) of Government Decree No 251 / 1992 Coll.,
- amendment of Government Decree No. 79 / 1994 Coll., on the pay ratios of the employees of the armed forces, security bodies and services, customs authorities, members of the Fire Protection Corps and of the employees of certain other organisations (Staff Regulations), as amended, carried out by Government Decree No. 584 / 2002 Coll., with effect from 1 January 2003, there was an increase in the scale of the salary tariffs according to the grades and grades of the employees referred to in § 1 (2) of Decree No. 79 / 1994 Coll.,
- by the adoption of Act No. 361 / 2003 Coll., on the service relationship of members of the Security Corps, an increase of about 30% will take place with effect from 1 January 2005,
- the adoption of Decree No. 330 / 2003 Coll., on the pay ratios of employees in public services and administration, with effect from 1 January 2004, increased the scale of pay tariffs by grade and grade for employees referred to in § 1 (1) of Decree No. 330 / 2003 Coll.
In addition, the Municipal Court in Brno disputes with the intention of a law pending at the time of the application, according to which there should have been the abolition of additional salaries, which the appellant considers to be in direct conflict with the Constitutional Court's findings.
The proposal also contains an objection to any claim according to which the additional salaries of judges are essentially bonuses paid once a half to the ordinary monthly income of the judge. In the view of the City Court in Brno, the calendar period with the payment period is thus inappropriately mixed, since the payment period does not have to be covered with the calendar period because it is only "a certain total pension of the financial amount belonging to the judge for a legally defined period '. Thus, if only one of the other salaries is withdrawn, the judge's statutory annual income is automatically reduced.
However, a different interpretation of the terms "additional salaries" leads, in his view, to the view that the legislator's approach to pay issues relating to judges must be assessed in the sense of libel, both in the context of Act No. 427 / 2003 Coll., and in the past (Act No. 287 / 1997 Coll., Act No. 268 / 1998 Coll., Act No. 308 / 1999 Coll., Act No. 416 / 2001 Coll., Act No. 425 / 2002 Coll.).
Consequently, the removal of half of the additional salary for the first half of 2004 appears to be unconstitutional for the appellant as a result of a breach of the judge's right to material security of his judicial independence, which results from Article 1 (1) in conjunction with Article 82 (1) of the Constitution and Article 1 of the Charter. According to him, the material guarantee of independence is one of the guarantees of impartial and fair decision-making on the rights and rights of protected interests of persons.
The appellant further draws attention to the difficulty of constructing the petit of the proposal, which is due to the fact that the provisions of Section 1 of Act No 427 / 2003 Coll. does not only mention the types of functions which are covered by the withdrawal of the additional salary but also regulates the anchoring of the salary base as reached on 31 December 2003 (so-called salary freeze). However, the appellant only concerns the annulment of the part of Act No. 427 / 2003 Coll., which concerns judges, and only the withdrawal of another salary of one half for the first half of 2004.
For the above Municipal Court in Brno it proposes that the Constitutional Court should decide by finding that "the part of Act No. 427 / 2003 Coll. in the part concerning one half of the additional salary for the first half of 2004 in respect of judges of the District, Regional, Supreme Court, Supreme Court and Supreme Administrative Court [Paragraph 2 in respect of the provisions of § 1 (h) of Act No. 427 / 2003 Coll.] '.
Recital of the essential parts of the party's observations
Pursuant to Articles 42 (4) and 69 of Act No. 182 / 1993 Coll., as amended, the Constitutional Court sent the proposal in question to the Chamber of Deputies. In its observations of 5 October 2004, the President of the Chamber of Deputies of the Parliament of the Czech Republic, PhDr. Lubomír Zaorálek stated that, at the time of the discussion of the draft law, which was later published under No. 427 / 2003 Coll., the Chamber of Deputies was aware that the issue, i.e. the withdrawal of part of the additional salary to judges, had already been challenged several times for inconstitutionality due to undue interference with judicial independence. Nevertheless, the Chamber of Deputies maintained its view that the non-payment of part of the additional salary to judges is not contrary to the constitutional order, since its partial non-payment cannot jeopardise the independence of judges, particularly because it is neither surprising nor a deep intervention in their material security.
The President of the Chamber of Deputies further confirmed, in accordance with the requirements contained in the provisions of § 68 (2) of Act No. 182 / 1993 Coll., as amended, that Law No. 427 / 2003 Coll. was adopted after a properly implemented legislative process, signed by the relevant constitutional authorities and published in the Collection of Laws. Finally, it notes that, in this situation of the case, it is impossible to express the view that the legislature acted in the belief that the adopted law is in accordance with the Constitution, the constitutional order and the rule of law of the Czech Republic, while it is up to the Constitutional Court to assess the constitutionality of the law in the context of the proposed proposal and to give its decision.
Pursuant to Articles 42 (4) and 69 of Act No. 182 / 1993 Coll., as amended, the Constitutional Court sent the proposal to the Senate of the Parliament of the Czech Republic. First of all, its observations of 5 October 2004 were made by its then President, Doc. JUDr. Petr Pithart recap the course of the discussion of the law in question by Parliament. It states that the Government submitted the draft contested law to the Chamber of Deputies on 7 July 2003 in the framework of the draft laws relating to the reform of public finances. The bill, part of which is proposed for annulment, was delivered to the Senate on 8 October 2003 after its approval in the Chamber of Deputies. In the Senate, Senate Press No. 173 was discussed in two committees:
- in the Committee on Economic, Agriculture and Transport, which, as a guarantee committee, recommended the Senate to approve the draft law as referred to by the Chamber of Deputies,
- in a committee of constitutionally-legal ones which recommended to the Senate to return the bill to the Chamber of Deputies with amendments adopted by that committee (these were amendments concerning the establishment of a salary base and amendments of a legislative-technical nature responding to adjustments in other laws).
The Senate debated the bill at its 11th meeting on 6 November 2003 and adopted a resolution approving it after a comprehensive debate, as referred to by the Chamber of Deputies. 40 of the 69 senators present voted in favour, 19 senators opposed.
In order to discuss the draft law in question, it is further noted that critical reservations have been raised in the Senate bodies regarding the non-systemic nature of the adjustment, in particular as regards the further freezing of the salary base. The question of the constitutionality of the rerestriction of other salaries concerning judges was also discussed. In addition to the views cast on the constitutionality of the proposed regulation, there were doubts as to whether the proposal could be regarded as unconstitutional, if there were divergent decisions by the Constitutional Court on matters relating to the restrictions on the further salaries of judges. In the final vote, however, the necessary majority of those present approved the bill in the version referred to by the Chamber of Deputies.
Since the proposed petition is identical in substance to the petition set out in the proposal for the annulment of part of Act No. 425 / 2002 Coll., which provides for an exceptional measure for 2003 to determine the amount of the salary and some compensation of the expenses associated with the performance of the duties of representatives of the State Government and of certain state authorities, judges and prosecutors, and which provides for the amount of additional salaries for the first and second half of 2003, which is carried out by the Constitutional Court under sp. v. Pl. ÚS 34 / 04, the President of the Senate in a further reference to the observations of the Senate of 8 September 2004 No 9654 / 04 submitted to the application under sp.
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. In view of the fact that both the participants, i.e. the appellant in the submission of 15 June 2005 and the parties in the submissions of the President of the Chamber of Deputies of the Parliament of the Czech Republic of 2 June 2005 and the President of the Senate of the Parliament of the Czech Republic of 9 June 2005, expressed their agreement to abandon the oral hearing and, furthermore, the Constitutional Court considers that further clarification cannot be expected from the hearing, the oral hearing in the present case has been abandoned.
Derogation of the contested legislation
Under the provisions of § 1 (h) of Act No. 427 / 2003 Coll., as amended by Act No. 626 / 2004 Coll., on the amendment of certain laws following the implementation of the reform of public finances in the field of remuneration, on the determination of the salary and compensation of the expenses associated with the performance of the duties of "Judge of the District, Regional and Supreme Court, Supreme Court and Supreme Administrative Court ', a salary base of the amount achieved under the Special Legislative Decree (1) shall apply in 2004 at 31 December 2003. This special regulation under Note 1 is Act No. 425 / 2002 Coll., which provides for exceptional measures for 2003 to determine the amount of the salary and certain reimbursement of expenses associated with the performance of the duties of representatives of the State Government and of certain state authorities, judges and prosecutors, and which determine the level of additional salaries for the first and second half of 2003.
Pursuant to that provision of § 1 (h) of Act No. 427 / 2003 Coll., in force before its amendment by Act No. 626 / 2004 Coll., in the version in force until 31 December 2004, a salary base of the amount achieved under the Special Legislative Decree (1) shall be used for determining the salary and compensation of the expenses associated with the performance of the duties of "Judge of the District, Regional and Supreme Court, Supreme Court and Supreme Administrative Court ', not only in 2004 but also in 2005 and 2006.
According to the provisions of Section 2 of that Act, as amended by Article I (5) of Law No 626 / 2004 Coll., "If, under the special legislation, the persons referred to in Section 1 are entitled to an additional salary, they shall be granted only half the amount to which they would otherwise be entitled for the first and second half of 2004. 'In his original dictation § 2 of Act No. 427 / 2003 Coll. before that amendment, he provided for the provision of additional remuneration to the persons mentioned in § 1 of the Act in question not only for the first and second half of 2004 but also for 2005 and 2006.
Conditions for the applicant's active legitimacy
The proposal for the annulment of Act No. 427 / 2003 Coll. in the part concerning one half of the additional salary for the first half of 2004 in relation to the judges of the District, Regional, Supreme Court, Supreme Court and Supreme Administrative Court [Paragraph 2 in relation to the provisions of § 1 (h) of Act No. 427 / 2003 Coll.] was submitted by the Municipal Court in Brno pursuant to § 64 (3) of Act No. 182 / 1993 Coll., as amended.
As already stated in the national case, in case sp. zn. 33 C 236 / 2004, the Municipal Court in Brno is decided on an action by a judge of the same court, in which the claimant seeks to pay one half of the additional salary for the first half of 2004, amounting to CZK 21 600, based on the provisions of § 4 of Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the office of representatives of state authority and of certain state bodies and judges, as amended, which he considers to be fulfilled. However, half the additional salary for the first half of 2004 was not paid to him in the payment deadline set for 15 July 2004.
The Municipal Court in Brno, after having taken up its decision-making activities in accordance with Article 95 (2) of the Constitution, concluded that the provisions of Sections 1 (h) and 2 of Act No. 427 / 2003 Coll., to be applied in the context of the resolution of Case No 33 C 236 / 2004, in conjunction with Article 82 (1) of the Constitution and Article 1 of the Charter, after the suspension of the tribal proceedings pursuant to § 109 (1) (c) of the Civil Code of the Constitutional Court, submitted a proposal for the control of the standards in question.
The procedural condition of the active legitimacy of the General Court pursuant to § 64 (3) of Act No. 182 / 1993 Coll., as amended, is such a position of the Act, or its individual provision, which is proposed to be annulled, on the subject of the tribal proceedings which gives rise to decision-making reasons for the assessment of the case by the General Court.
As is apparent from the description of the procedure in question at the General Court, the appellant can therefore be found to fulfil the conditions of his active legitimacy for the standard control procedure.
Assessment of the justification for the termination of the procedure under Section 67 of Act No. 182 / 1993 Coll.
Paragraph 1 (h) and § 2 of Act No. 427 / 2003 Coll. was partially amended in the course of the present proceedings before the Constitutional Court by Article 1 (4) and (5) of Act No. 626 / 2004 Coll., on the amendment of certain laws following the implementation of the reform of public finances in the field of remuneration. This legal arrangement is valid on 1 January 2005 (Article XXIII of Act No. 626 / 2004 Coll.).
Under Paragraph 67 (1) of the Law on the Constitutional Court, the reason for the termination of proceedings is given if the law, other legislation or individual provisions which are proposed to be annulled expire before the end of the proceedings before the Constitutional Court.
On the interpretation of the legal reason for the termination of proceedings, the Constitutional Court stated, in particular, in the decision of the Constitutional Court on page 5 of the ÚS 15 / 01 [Collection of finds and orders of the Constitutional Court ("the Reports of the Judgments'), Volume 24, Found No 164; published under No 424 / 2001 Coll.]. On the basis of the meaning and purpose of Section 67 (1) of Law No 182 / 1993 Coll. stated that the amendment to the repeal of the proposed legal provision constituted a reason for the termination of the standard control procedure only if it is relevant for the assessment of the constitutionality of that provision.
From the point of view of the interpretation and application of Article 67 of Act No. 182 / 1993 Coll. it must then be concluded that the amendment of the provisions of Sections 1 (h) and 2 of Act No. 427 / 2003 Coll., implemented by Article I (4) and (5) of Law No. 626 / 2004 Coll. did not affect the meaning and purpose of the amended legal provisions, only limited their temporal scope to 2004 and excluded their scope for 2005 and 2006, and therefore did not constitute a reason for the termination of the regulatory control procedure in question. In fact, after the abolition of the Institute of Other Salaries by Act No. 626 / 2004 Coll. a reasonable sense was lost in the other period of time of the salary restrictions, affecting the withdrawal of additional salaries in 2005 and 2006. The same statement also applies to the amendment of the designation of the letter of the provision in question contained in Section 1 of Act No. 427 / 2003 Coll., as amended by Act No. 626 / 2004 Coll., established by Act No. 127 / 2005 Coll., on Electronic Communications and amending certain related laws (Act on Electronic Communications).
In addition, the fact that even the subject of the proceedings before the Municipal Court in Brno under sp. zn. 33 C 236 / 2004, from which the application to abolish the provisions of § 1 (h) and § 2 of Act No. 427 / 2003 Coll. was issued, is a claim by the judge of the General Court against the Czech Republic - Municipal Court in Brno for payment of one half of the additional salary for the first half of 2004.
Constitutional conformity of competence and legislative process
The Constitutional Court, in accordance with the provisions of § 68 (2) of Act No. 182 / 1993 Coll., is required to assess whether the contested law, its individual provisions, or any other law or its individual provision, has been adopted and issued within the limits of the Constitution established competence and in a constitutionally prescribed manner.
It was found from the Parliament's press and shorthand reports, as well as from the observations of the parties, that the Chamber of Deputies approved the draft law in question at its third reading at its 20th meeting on 26 September 2003 by Resolution No 668 of 196 Members present voted in favour and 40 against.
At its 11th meeting, held on 6 November 2003, the Senate, the Government's draft law laying down extraordinary measures 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 institutions, Members of the European Parliament, Judges and Prosecutor's Councils, the amount of the additional salary of those persons for the first half of 2004, and amending certain related laws, was approved by the Chamber of Deputies in a vote of 40 in favour and 19 in favour of the 69 senators present.
The law in question was signed by the relevant constitutional authorities and was duly declared under No 427 / 2003 Coll. under No 139 of the Collection of Laws, which was circulated on 12 December 2003, and according to Section 6 it became effective on the date of its publication, i.e. the date of distribution of the relevant amount of the Collection of Laws.
Content compliance of the contested legal provision with the constitutional order (constitutionality of salary restrictions against judges)
The Constitutional Court dealt with the issue of pay restrictions against judges in the form of withdrawal of the "additional salary 'in a number of its decisions. The detailed recap of this case-law is contained in the decision of the Constitutional Court sp. zn.
Despite this fact, since the Constitutional Court is confronted with the problem again, it is all that remains to repeat this recap in a framework.
In the derogatory finding sp. zn. Pl. ÚS 13 / 99 of 15 September 1999 (Reports of Decisions, Volume 15, Found No. 125; published under No. 233 / 1999 Coll.) The Constitutional Court annulled part of the provisions of Section 1 of Act No. 268 / 1998 Coll., on the withdrawal of another salary for the second half of 1998 to representatives of state authority and certain state bodies, judges, prosecutors and members of the Securities Commission Presidium, namely the provision governing the withdrawal of another salary from judges for the second half of 1998. The underlying reason for the finding was the principle of judicial independence, in which the court also drew "material aspects." Another argument was the difference between the constitutional status of judges, on the one hand, and legislative and executive officials, in particular government, on the other.
Findings of 3 July 2000 sp. zn. The Constitutional Court rejected the application for annulment of part of the provisions of § 4a of Act No. 236 / 1995 Coll., as amended by Act No. 287 / 1997 Coll., governing the withdrawal of another salary to judges for the second half of 1997. Even in this finding, he stressed that judicial independence is one of the fundamental democratic values, which is undoubtedly supported by the material security of judges. In doing so, he considered it essential that other authorities of State power should not interfere in the salaries of judges, in any form, arbitrarily and repeatedly. However, for a decision-making case, the legislator's intervention did not show signs of insolence. According to the Constitutional Court, when assessing the constitutionality of the contested legal provision, it was not possible to look at the difficult social and economic reality in which the Czech Republic was located in 1997.
On the same day, i.e. 3 July 2000, the Constitutional Court, by finding sp. zn. In doing so, it did not change the underlying basis for assessing the problem. He stressed that the salary of judges should not be a variable factor according to the immediate vision of one or the other government group. The withdrawal of the "additional salary 'was therefore regarded as an exceptional act which could only be justified for serious reasons which it considered to have had an impact on the financial difficulties of the State and only in relation to the complex of the austerity measures taken on salaries across the whole sphere of state officials and employees.
Finally, on 11 June 2003, the Constitutional Court, by finding sp. zn. Pl. ÚS 11 / 02, annulled part of the provisions of Section 1 of Act No. 416 / 2001 Coll., on the withdrawal of another salary for the second half of 2001 and setting the amount of additional salaries for the first and second half of 2002 to representatives of the Czech National Bank's banking board, providing for the withdrawal of additional salaries for judges for the second half of 2001 and reducing the additional salary for the first and second half of 2002 to the amount to which they would otherwise be entitled.
The Constitutional Court came to that conclusion on the basis of the assessment of other related legal adjustments.
By Act No 425 / 2002 Coll., which provides for an exceptional measure for 2003 to determine the amount of the salary and certain allowances of the expenses associated with the performance of the duties of representatives of the State and of certain state authorities, judges and prosecutors, and to determine the level of additional salaries for the first and second half of 2003, which took effect on 1 October 2002, it was stipulated in Article 1 that a salary base of the amount reached on 31 December 2002 would be used to determine the remuneration and other allowances and expenses associated with the performance of the duties in 2003 for the appointed officials and judges. As a result of the change in the regulations governing the fees and the personal surcharge applied to ministerial staff with effect after 31 December 2002, the salary base did not increase in that year. Paragraph 2 of the Act contains a halving of the additional salary to the same persons due under the special rules for 2003. Paragraph 3 excluded, for the period from 1 January 2003 to 31 December 2003, the application of Article 3 (3) of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of State authority and of certain state bodies and judges, as amended by Act No. 309 / 2002 Coll. In the grounds for finding sp. zn. Pl. ÚS 11 / 02 The Constitutional Court referred to the wording of the explanatory notes on the draft of the two above-mentioned laws, which clearly show that the appellant was pursued by an objective of "maintaining the comparable position of individual groups' of persons, i.e. civil servants, representatives of state authority and judges, with the particular position of judges as regards the level of remuneration, which appeared to be unfair and non-discriminatory. The assessment of the constitutionality of § 1 (h) and § 2 of Law No. 425 / 2002 Coll. is the subject of proceedings before the Constitutional Court under sp. zn.
In the opinion of the Constitutional Court, the proposed changes to the legal arrangements relating to the pay ratios of judges exceeded the constitutional limits for accepting the "exceptional" act by which a further salary was withdrawn from the judges as defined in the previous decisions. He also stated that, if, in very exceptional circumstances, the principle of equality in the field of restrictions on the remuneration of civil servants, constitutional officials and judges is to be accentuated before the principle of comprehensively understood independence of judges, the session of both principles is not generally valid as once and for all and under all circumstances. On the contrary, the pay ratios of judges in a broad sense are to be stable, not a variable with which it calculates this or that of the government group, for example, because it appears that the fees of judges are too high compared to those of civil servants or to another professional group. In other words, if it is possible to accept the application of the principle of equality at the top of that sense as regards the exceptional economically justified reduction of all salaries, the equality of all top of those groups (even as a target category) as regards the final level of pay cannot be accepted. Efforts for such equality deviates from the category of constitutionality, a political objective that does not support the constitutionally understood principle of equality. This principle finds, in the material sense, its boundaries in a statement that "the same must not be treated inequally, but at the same time the same must not be treated differently." The principle of equality cannot be understood as a nivulation in the result, but must be interpreted as guaranteeing the same starting chances. However, according to the opinion of the Constitutional Court in § 1 of Act No. 416 / 2001 Coll. he clearly failed to respect the principle of equality.
From a comparative point of view in the advanced democracies of Western Europe, a case of pay restrictions against judges cannot be found, so even the doctrine is not confronted with this issue. Comparable situations occur only in post-communist European countries.
Illustration is the extensive case-law of the Constitutional Court of the Republic of Poland on questions concerning the constitutionality of the legal arrangements governing the salaries of judges (see, in particular, Case P 1 / 94 [1994] ECR C 13 / 94 of 14 March 1995, P 1 / 95 of 11 September 1995, P 8 / 00 of 4 October 2000). In all those decisions, the Court dealt with the constitutionality of the aspects of determining the level of the fees of judges from the perspective of Article 178 (2) of the Constitution of the Republic of Poland, according to which the fees of judges must correspond to the dignity of their office and ensure that their duties are fulfilled.
In Decision No 12 / 03 of 18 February 2004, the Constitutional Court of the Republic of Poland, when assessing the constitutionality of the rates of increase in the salaries of judges (not retroactively reduced), expressed two key points in the context of pay restrictions against judges: First, in the event of budgetary difficulties in the State, judges' salaries are to be protected against "excessive adverse fluctuations'. The second is the principle of the inadmissibility of the reduction in the salaries of judges, which, according to the Court, is" exceptionally heavily protected by the Constitution '(Article 178 (2) of the Constitution of the Republic of Poland). The only constitutional exception to this principle shall be considered to be the case within the meaning of Article 216 (5) of the Constitution of the Republic of Poland if the public debt exceeds 3 / 5 of the value of the annual national product.
On the basis of the case-law of the Constitutional Court, as well as the comparative illustration of the case-law of the Constitutional Court of the Republic of Poland, the following fundamental generalising arguments can be inferred on the question of the constitutionality of the subsequent legal withdrawal of part of the salary of the judges to whom the legal claim was made before the adoption of this measure:
- 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 position of judges, on the one hand, and the representatives of the legislature and executive, in particular the government, on the other hand, is different, given the principle of division of power and the principle of independence of judges, which implies a different layout for legislators to pay restrictions on judges in comparison with those of such restrictions in other areas of the public sphere,
- the 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 difference in the function of judges and representatives of the legislative and executive powers, in particular the administration of the State; Such intervention must not give cause for concern if the limitation of the dignity of the judges does not affect [see Recommendation No. (94) 12 of 13 October 1994 of the Council of Europe Committee of Ministers], or if it is not an expression of constitutionally unacceptable pressure of legislative and judicial power.
The principle of an independent judiciary 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 inconsistencies, 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 the "sp. zn.
The legislature's own intervention in the area of material protection of judges, including in the framework of pay restrictions, must be placed under the framework protected by the principle 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.
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 has consistently applied the aspects of the assessment of the constitutionality of salary restrictions against judges in the sp. v. Pl. ÚS 11 / 02, in which it annulled part of the provision of § 1 of Act No. 416 / 2001 Coll., which provides for the withdrawal of additional salary from judges for the second half of 2001 and which reduces the additional salary for the first and second half of 2002 to half the amount to which they would otherwise be entitled.
Intentions that led the legislator to adopt Act No. 416 / 2001 Coll., are identical to those that led it to accept pay restrictions against judges in Act No. 427 / 2003 Coll. They were the legislature claimed by the plight of public finances and the discrimination in the level of the salaries of judges and other areas of the public sphere. According to the explanatory memorandum to draft Act No. 427 / 2003 Coll.: "The necessary savings in the funds spent on salaries of employees in public services and administration... will not allow the additional salaries provided for each half of the calendar year to be paid in full in subsequent years. For the reasons set out above, the draft law proposes not to increase the salary base for 2004, 2005 and 2006 for determining the amount of the salary and certain allowances associated with the performance of the duties of representatives of the State and of certain other persons, and to give them a half-salary in each half-year of those years (as well as public service staff).... The proposed regulation" continues the government's explanatory report, "is in accordance with the constitutional order of the Czech Republic."
It must be recalled that the proposal was approved by the Chamber of Deputies on 26 September 2003, the Senate then on 6 November 2003, the Constitutional Court's finding of the sp. zn. 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 legislature did not follow that maximum in the process of adopting Law No 427 / 2003 Coll.
The Government, in its capacity as appellant, questioned the truthfulness of the declared intent of Act No. 427 / 2003 Coll., by increasing the scale of the public sector employees' pay tariffs with effect from 1 January 2003 (Government Regulations No. 582 / 2002 Coll., No. 583 / 2002 Coll., No. 584 / 2002 Coll., No. 330 / 2003 Coll.), or by a declaration by Zdeněk Škromach, Minister of Labour and Social Affairs, at the 2nd reading of the draft Act No. 427 / 2003 Coll. The Chamber of Deputies on 24 September 2003: "For the next year, despite the problems that exist today, wages will increase by more than 3.6%. So there will be an increase in budget and contribution."
According to the table annex of the draft state budget for 2004, submitted by the Government of the Chamber of Deputies, for employees in the central authorities of the state, the actual amount of the funds for salaries for 2002 was CZK 4,840 899 000, the budget for 2003 CZK 5,669 263 000, the draft for 2004 was CZK 5,916 963 000 (Table 9), the actual amount of the funds for salaries for 2002 represented CZK 8,755 060 000, the budget for 2003 CZK 10,319 286 286 thousand, the draft for 2004 was CZK 10,524 110 thousand (Table 10), the actual amount of the funds for salaries for 2002 26 999 082 000, the draft for 2004, the draft for 2004, the proposal for CZK 36,796 thousand (Table 11), in the so-other organisational components of the state, represented the actual amount of the actual funds for 2002 EUR 11406 195 000, the budget for 2003, the year, the budget for 2003 budget for CZK 299,66,674 000.
Under these circumstances, it is difficult to accept the notion of "the necessary savings in the resources spent on public service and administration" in general, especially for pay restrictions on judges, that the legislation under assessment lacks any argument of "exceptional circumstances" that 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.
On the basis of the grounds thus set out, it is necessary to consider the salary restriction against judges contained in the provisions of Sections 1 (i) and 2 of Act No. 427 / 2003 Coll., as amended by Act No. 626 / 2004 Coll. and Act No. 127 / 2005 Coll., as a contradiction with Article 1 (1) in conjunction with Article 82 (1) of the Constitution and Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms.
Formation of the operative statement
According to the provisions of Section 2 of that Act, as amended by Article 1 (5) of Act No. 626 / 2004 Coll., "If, under the special legislation, persons referred to in Section 1 are entitled to an additional salary, they shall be paid only half the amount to which they would otherwise have been entitled for the first and second half of 2004. 'Pursuant to the provisions of § 1 (i) of Act No. 427 / 2003 Coll., as amended by Act No. 626 / 2004 Coll. and Act No. 127 / 2005 Coll., to determine the salary and some compensation of the expenses associated with the performance of the duties of" Judge of the District, Regional and Supreme Court, Supreme Court and Supreme Administrative Court', the salary base shall be used in 2004 in the amount achieved under the special legislation on 31 December 2003, with the provisions of § 1 containing points (a) to (p).
Therefore, the definition of the scope of the decision falls within the scope of Article 2 of the law in question, which is regulated by reference to another provision of the same law which provides for other rights or obligations for those persons. The reference is formulated in general, i.e. not only in relation to judges but also to other well-defined bodies.
The repeal of the reference standard in its completeness, i.e. the provision set out in § 2 of Act No. 427 / 2003 Coll., as amended by Act No. 626 / 2004 Coll., in the words "§ 1 ', would therefore also affect persons for whom the derogatory reasons do not exist. The annulment of the provision set out in Section 1 of Act No. 427 / 2003 Coll., as amended by Act No. 626 / 2004 Coll. and Act No. 127 / 2005 Coll., in the words" (i) the judge of the district, county and supreme court, Supreme Court and Supreme Administrative Court "would, however, be out of the scope of the proceedings, namely the abolition of the salary base for judges.
In the decision No 80 / 1995 Coll.), which was then followed by the case-law in the procedure for the control of standards, the Constitutional Court defined the concept of a legal provision by which it understood any part of the text of the legislation with a normative content, that is to say, an expression containing any language means of expression of the legal standard or of one of the components of its factual nature (e.g. a circle of entities or situations) or a legal consequence (i.e. legal obligation or penalty).
Paragraph 1 of the Law in question, as already stated, contains points (a) to (p), i.e. it contains an implicit and a standard referring to the provision of § 2 of the Law, if it states: "If, under the special legislation, the persons referred to in § 1 are entitled to an additional salary, they shall be granted only half the amount to which they would otherwise be entitled for the first and second half of 2004. '
On the basis of the above, the plenary of the Constitutional Court decided to derogate from the legal provision in question, as set out in the operative part of that finding. This means that the finding of the Constitutional Court is abrogated in § 2 of Act No. 427 / 2003 Coll., as amended by Act No. 626 / 2004 Coll. and Act No. 127 / 2005 Coll., implicitly included reference to § 1 (i) of the same Act.
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 by the Judges Stanislav Balík and Miloslav Excellent to justify the decision.
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Regulation Information
| Citation | The Constitutional Court found No 354 / 2005 Coll., on the application for annulment 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 Government and of certain state bodies, Members of the European Parliament, Judges and Prosecutor's Councils, the amount of the additional salary of those persons for the first half of 2004, and amending certain related laws, as amended, in respect of one half of the additional salary for the first half of 2004 in relation to judges of the District, Regional Court, Supreme Court of Justice, Supreme Court and Supreme Administrative Court of Justice |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 15.09.2005 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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