The Constitutional Court found No 355 / 2005 Coll.
The Constitutional Court's finding of 14 July 2005 on the application for annulment of the provisions of § 2 in relation to the provisions of § 1 (h) of Act No. 425 / 2002 Coll., which provides for exceptional measures for 2003 in determining the amount of the salary and certain reimbursement of expenses associated with the performance of the duties of representatives of the State and of certain state authorities, judges and prosecutors, and which determine the level of additional salaries for the first and second half of 2003
Valid
The Constitutional Tribunal found
Text versions:
15.09.2005
355
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 of the President of the Court of Paul Rychett and of the Judges of Stanislav Balík, František Duchona, Military Güttler, Pavel Holländer, Ivana Jana, Dagmar Lastovecká, Jiří Muchy, Jan Musil, Jiří Nykodým, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of the Municipal Court in Brno to abolish the provisions of § 2 in relation to the provisions of § 1 (h) of Act No. 425 / 2002 Coll., which provides for the first and second half of 2003, "in relation to the judges of the Court of Justice, the Republic of the Republic and the Supreme Court of Justice,",
as follows:
The date of the publication of this finding in the Collection of Laws repeals the provisions of Section 2 of Act No. 425 / 2002 Coll., as regards the Judge of the District, Regional and Supreme Court, Supreme Court and Supreme Administrative Court [§ 1 (h) of Act No. 425 / 2002 Coll.].
Reasons
On 9 July 2004, the Constitutional Court received a proposal from the Municipal Court in Brno (hereinafter referred to as "the appellant '), for which the President of the Chamber Mgr. D. D., to abolish part of Act No. 425 / 2002 Coll., which provides for an exceptional measure for 2003 in determining the amount of the salary and compensation 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 determines the level of additional salaries for the first and second half of 2003 (hereinafter referred to as" Act No. 425 / 2002 Coll.'). The applicant requests, "that the Constitutional Court of the Czech Republic decide by its finding that the part of Act No. 425 / 2002 Coll. in the part concerning one half of the additional salary for the first and second half of 2003 in respect of 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. 425 / 2002 Coll.] '.
The application was made pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and under the provisions of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court) in connection with the decision-making activities of the Municipal Court in Brno. In this court, under point 30 C 67 / 2004, civil proceedings are under way for the action of JUDr. D. S., Judge of the Municipal Court in Brno, which the plaintiff seeks to pay to the defendant Czech Republic - Municipal Court in Brno, because he was not paid two halves of his salary for the first and second half of 2003 as a result of the adoption of Act No. 425 / 2002 Coll.. The appellant, without issuing a decision to suspend civil proceedings [which was to be done in accordance with § 109 (1) (c) of the Civil Code], submitted to the Constitutional Court an application for annulment of the above-mentioned provisions of Act No. 425 / 2002 Coll., because, within the meaning of Article 95 (2) The Constitution concludes that the provisions of the law to be applied in the resolution of the case are "contrary to the right of a judge 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 of Fundamental Rights and Freedoms (" the Charter').
In the statement of reasons for his proposal, the appellant extensively reproduces the argument used by the Constitutional Court in the decision on page Pl. ÚS 11 / 02 of 11.6.2003, which repealed part of Act No. 416 / 2001 Coll., on the withdrawal of another salary for the second half of 2001 and setting the level of additional salaries for the first and second half of 2002 to representatives of the State Government and certain state bodies, judges, prosecutors, members of the Securities Commission Presidium, representatives of the Ombudsman and members of the Banking Board of the Czech National Bank. The appellant takes the view that the same argument set out in the Constitutional Court's finding, sp. zn. Pl. ÚS 11 / 02, also applies to the support of the current proposal concerning Act No. 425 / 2002 Coll.
The appellant further submits that the legislator's undue interference with judicial independence has been repeated over recent years, as demonstrated by the fact that
- Act No. 427 / 2003 Coll., providing 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 officials 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, has been withdrawn half of the additional salary due to judges for the first and second half of 2004, 2005 and 2006, and the same law has resulted in the so-called "salary freeze" by applying a salary base of 31 December 2003 in those years;
- Act No 420 / 2002 Coll., which shortens the period of time for officials of State authority and of certain state bodies, judges and prosecutors to be paid in the event of temporary incapacity to perform their duties, and which provides for certain measures in sickness insurance (care) and pension insurance, the period for which the judges are granted temporary incapacity to perform their duties has been reduced from the original six months to 20 working days, with effect from 1.1.2003;
- Law No 425 / 2002 Coll. laid down in Paragraph 1 that, in order to determine the salary and other allowances and expenses associated with the performance of the duties of judge in 2003, a salary base of the amount reached on 31 December 2002 was to be used, which, however, did not increase as a result of the change in the regulations on the fees and the personal charge made for the employees of the ministries, although such an increase should occur in the normal course of events.
The appellant accuses the legislator that the payment arrangements made do not respect the government's stated objective of "maintaining the comparable position of individual groups" of persons, i.e. civil servants, representatives of state authority and judges, as expressed in the explanatory report on draft law 425 / 2002 Coll. It is alleged that the distortion of a comparable position took place in particular by the following measures:
- amendment of 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., which has taken effect since 1.1.2003, increased the scale of the rates for certain employees of public authorities;
- by amending Government Decree No 251 / 1992 Coll., on the pay ratios of budgetary staff and of certain other organisations, as amended, by Government Decree No 583 / 2002 Coll., which increased, with effect from 1 January 2003, the scale of the rates for certain budgetary staff and certain other organisations;
- amendment of Government Decree No 79 / 1994 Coll., on the pay ratios of armed forces, security corps and services, customs authorities, fire protection officers and employees of certain other organisations (Staff Regulations), as amended, by Government Decree No 584 / 2002 Coll., which took effect from 1 January 2003, increased the scale of fees for armed forces, security forces and services, customs authorities, fire protection corps and employees of certain other organisations;
- the adoption of Act No. 361 / 2003 Coll., on the service relationship between members of the Security Corps, which is intended to increase the salary of members of the Security Corps in the future.
The appellant disputes with a hypothetical objection that the additional salaries of judges are, by their nature, mere bonuses, paid once a half to the ordinary monthly income of a judge whose withdrawal cannot be considered as a restriction on remuneration for work. In the appellant's view, when assessing the issue of material security of judicial independence, account should be taken of the total pension of a legally guaranteed annual income of a judge, in which other salaries for the first and second half of the calendar year, as provided for in the provisions of § 4 of Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the duties of representatives of the State Government and of certain state authorities and judges, as amended ("Act No. 236 / 1995 Coll. ').
The appellant concludes that the material guarantee of the independence of judges is one of the guarantees of impartial and fair decision-making on the rights and rights of protected interests of persons. It therefore considers that the withdrawal of half of the additional salaries to judges for the first and second half of 2003 is contrary to the concept of a democratic rule of law as set out in Article 1 (1) of the Constitution, endangers the judicial independence guaranteed in Article 82 (1) of the Constitution and distorts the equality of rights enshrined in Article 1 of the Charter.
The Constitutional Court requested comments on the proposal from the Chamber of Deputies of the Parliament of the Czech Republic (hereinafter referred to as the Chamber of Deputies), the Senate of the Parliament of the Czech Republic (hereinafter referred to as the Senate) and the Minister of Justice.
The President of the Chamber of Deputies PhDr. Lubomír Zaoralek, in his statement of 27 August 2004 No 8439 / 04, stated that the Chamber of Deputies was based on the belief that the non-payment of another salary to judges was not contrary to constitutional order and could not compromise the independence of judges, as neither surprising nor profound interference in their material security. It leaves the Constitutional Court to examine the constitutionality of this law.
In its observations of 8 September 2004 No 9654 / 04, the President of the Senate, Dr Petr Pithart, points out that the substance of the case, i.e. the nature of the additional salaries in relation to the substantive securing of judges as one of the aspects of the constitutional principle of judicial independence, has already been expressed several times, for example in a case brought before the Constitutional Court under point (b) of the first subparagraph of Article 18 / 99, and now refers to these observations.
(Note to the Constitutional Court: In the case under sp. zn. Pl. ÚS 18 / 99 referred to by the President of the Senate, the observations of the then President of the Senate PhDr. Libuš Beneš no. 14781 / 99, sent to the Constitutional Court on the application for annulment of Act No. 287 / 1997 Coll., supplementing Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the functions of representatives of state authority and of certain state bodies and judges, as amended by Act No. 138 / 1996 Coll. It is stated in this statement that the Senate does not dispute that the principle of the independence of judges covers a number of aspects, including the substantive provision of judges. However, it is appropriate to point out that this material security is carried out mainly in the form of a regular monthly salary, its amount and the conditions for granting it, and this cash performance was not affected by any restrictions. A further salary is, according to the legal arrangements, a one-off cash payment provided under the conditions laid down once in the calendar year, on the basis of which the term of employment of a judge is one of them on the last day of the calendar half-year, it appears 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.)
In its current statement of 8 September 2004 No 9654 / 04, the President of the Senate focuses mainly on the formal side of the matter. It expresses doubts about the design of the petition submitted by the appellant to the Constitutional Court, since it is not clear from that petition which provision of the law is actually proposed to be repealed. The request of the appellant for the Constitutional Court to abolish part of the law "in relation to judges of district, county and supreme courts, Supreme Court and Supreme Administrative Court [Paragraph 2 in relation to the provisions of § 1 (h) of Act No. 425 / 2002 Coll.] 'is, in the view of the President of the Senate, unfeasible. The Constitutional Court, as a so-called negative legislator, could not, in the event of compliance with the proposal, derogate from the contested provision of Paragraph 2 of the Act cited only in relation to a group of judges and keep them in force in relation to other groups of persons. If the entire provision of Paragraph 2 were to be repealed, the consequences of its annulment would apply to all persons referred to in Paragraph 1, which would inadvertently exclude the scope and content of the application. Similarly, in the view of the President of the Senate, the provisions of Paragraph 1 (h), which, although only apply to judges, cannot be repealed, but the consequences of such cancellation would, in addition to the proposal, affect the area of determination of their salary base.
In the opinion of the President of the Senate, it is therefore possible to raise doubts as to whether the proposal in question relates to a "single provision of the law 'and therefore fulfils the condition laid down in Article 87 (1) (a) of the Constitution in order for the Constitutional Court to be able to discuss it meritantly. The observations point to the settled case-law of the Constitutional Court [for example, the judgment in the case in Sp. zn. Pl. ÚS 16 / 94, the Collection of finds and orders of the Constitutional Court (hereinafter referred to as" the Reports of the Judgments'), Volume 2, Act No 14], which implies that the Court is bound by the scope and content of the petition in its decision and cannot step up from its borders; Nor can it intervene in the text of the law under consideration unless it is cancelled.
The Vice-Prime Minister of the Government of the Czech Republic and the Minister of Justice JUDr. Pavel Němc, in his observations dated 22 September 2004 No 562 / 2004-PERS-SO / 2, first of all, notes that he considers that the situation in which the rights of judges are repeatedly restricted by specific laws and subsequent proceedings on the constitutionality of these laws is completely unacceptable. In his view, such a situation has a negative impact on the social perception of judicial power and on the perception of the way in which power division operates, as it gives an unwelcome impression of continuous competition between judicial, legislative and executive powers of the level of remuneration for the performance of functions. The Minister of Justice considers as a fundamental question the solution to the Constitutional Court that the judge may or may not subsequently be reduced or, in what circumstances (especially in relation to the development of public budgets) such a reduction in income may occur. The Minister does not agree with the appellant's argument that the limitation of the level of additional salaries in 2003 resulted in an inadmissible increase in the position of judges and other groups remunerated from public budgets. It points out that this legal regulation took place on objective grounds of the unfavourable state budget situation. While the amount of the additional salary was reduced equally in 2003 to all groups of persons remunerated from public budgets, the differentiation resulting from the difference in the monthly salary and other formalities associated with the performance of the duties remained unaffected.
Nor does the Minister of Justice agree with the appellant's claim that such a legal measure constitutes an intervention into judicial independence. In his view, material security is only one of the conditions of support creating an environment for the application of the principle of judicial independence and there is no immediate link between material security and the substance of this principle. The Minister considers it unacceptable that the degree of independence of the judge, irrespective of any objective circumstances, depends directly on the level of material security. It further states that the level of physical security must reflect the general real economic circumstances of the State in which the judiciary is carried out as a public service.
Finally, the Minister of Justice proposes that the Constitutional Court reject the application for annulment of Part of Act No. 425 / 2002 Coll.. It takes the view that the question which is the subject of this proposal should be resolved by the legislator in the future by removing from the salary system the Institute's additional salary and compensating for it by increasing the monthly salary accordingly.
The legal issues discussed and all the facts of the case were sufficiently clear from the paper documents and, since the oral proceedings could not be expected to be further clarified, the Constitutional Court, with the consent of all the parties, waived it under Paragraph 44 (2) of the Constitutional Court Act.
The submitted proposal concerns the following provisions of Act No. 425 / 2002 Coll.:
For determining the salary and certain reimbursement of expenditure relating to the performance of the duties
(a) the Member and Senator of Parliament,
(b) a member of the Government;
(c) the President of the Republic,
(d) a judge of the Constitutional Court;
(e) a member, Vice-President and President of the Supreme Audit Office;
(f) a member, Vice-President and President of the Broadcasting Council,
(g) Director of the Security Information Service,
(h) Judge of the District, Regional and Supreme Court, Supreme Court and Supreme Administrative Court,
(i) the Ombudsman and the Ombudsman's representative,
(j) the President of the Securities Commission and a member of the Securities Commission Presidium;
(k) the Chairperson of the Office for the Protection of Personal Data and the Supervisor of the Office for the Protection of Personal Data,
(l) a public prosecutor; and
(m) Director of the State Representation Office in matters of property and staff of the State Representation Office in matters of property
a salary base of 31 December 2002 shall apply in 2003. As a result of the change in the rules governing the remuneration tariffs and the personal surcharge applied to ministerial staff with effect after 31 December 2002, the salary base shall not be increased in that year.
If, under the special legislation, the persons referred to in Paragraph 1 are entitled to an additional salary, they shall be granted for the first and second half of 2003 only half of the amount to which they would otherwise be entitled. '
The Government submitted the draft law On 10 September 2002, the Chamber of Deputies, in the framework of proposals for eight laws aimed at addressing the budgetary situation following the catastrophic floods in August 2002. For all these proposals, the Government has asked them to be dealt with in a state of legislative emergency, and this is how they were discussed by the Chamber of Deputies.
In the explanatory memorandum to the draft law, the government states that payment adjustments follow the savings of the state budget's expenditure, "in the context of the economic situation resulting from the floods this August." The total savings to be made by the new adjustment are estimated at CZK 480 - 500 million in the explanatory statement, of which the savings resulting from the reduction of additional salaries are estimated at CZK 250 million (in addition, the savings resulting from the "freeze" of the salary base at the level of 2002 were foreseen and the unspecified savings of additional expenses, e.g. for reimbursement of expenses derived from the level of the salary base).
By the Chamber of Deputies, the bill was discussed as House Press No. 46. The proposal was addressed on 11 September 2002 by the Social Policy and Health Guarantee Committee, which recommended its adoption. The Chamber of Deputies was held at its 5th meeting on 13 September 2002; 154 Members voted in favour of it, and none were against it.
The bill was delivered on 16 September 2002 to the Senate, where it was assessed as Senate Press No. 356 in two committees, namely:
- in the Committee on Economic, Agriculture and Transport, which in its resolution recommended the Senate not to deal with the bill,
- in a committee of constitutionally-legal ones, which, as a committee guaranteeing the draft law, has not adopted any resolution.
Then the Senate debated the bill at its 21st meeting on 19 September 2002 and adopted a resolution expressing the will not to deal with the bill. 32 votes for this resolution of the 49 senators present, six against it.
After the signing of the President of the Republic on 25 September 2002, the Act was published on 1 October 2002 in the amount of 151 Collection of Acts under No. 425 / 2002 Coll. and took effect on the same day.
The Constitutional Court notes that Law No 425 / 2002 Coll. was adopted and issued within the limits of the Constitution established competence and in a constitutional manner. He found that the contested law had been properly debated and approved by the legislature, signed by the relevant constitutional authorities and declared in the Collection of Laws. Therefore, nothing prevented the contested provision of the Act from being assessed in terms of its compliance with the constitutional order of the Czech Republic.
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.
In the opinion of the Constitutional Court, the legislative amendment under review relating to the pay ratios of judges exceeded the constitutional limits for accepting the "exceptional" act by which the 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. The Constitutional Court found in sp. zn. Pl. ÚS 11 / 02 formulated a generalized maximum, according to which the principle of equality in the field of restrictions on 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, thereby defining the scope of constitutional conformity of pay restrictions against judges.
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 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 general considerations can be inferred from the question of the constitutionality of the subsequent legal removal of part of the salary of the Judges to whom the legal right was given before the adoption of this measure is taken:
- 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 incapacitability, irrevocability, integrity), guarantees of organisational and functional independence from the institutions 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 second reason for subjecting the prohibition of arbitrary interference in the material security of judges (pay restrictions) to the principle of their independence is to exclude the possibility, possibly oppression of legislative or executive decision-making powers. 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.
Similarly, as is the case with all democratic constitutional courts, the Constitutional Court of the Czech Republic has applied the principle of proportionality (for the first time it has fully interpreted it when assessing the constitutionality of the institute of the confidentiality of the personal data of witnesses in the criminal proceedings - sp. zl. Pol. ÚS 4 / 94, Reports of the Decision, Volume 2, Found No 46). In the present case, there is a conflict of principle, on the one hand, the independence of judges and fundamental rights arising from the constitutional principle of equality, on the other hand, the public good, solidarity in the event of an exceptional event and the provision of means of mitigation, or the elimination of their consequences.
The principle of proportionality is based on a methodology based on three steps:
The first is an assessment of the simple right of suitability, which includes an assessment of the chosen normative device in view of the possible fulfilment of the intended purpose. If the normative instrument is not capable of achieving the intended purpose or does not correspond to the stated purpose, the legislator's view is arbitrary, which is considered contradictory to the rule of law.
The second step in the application of the principle of proportionality is to assess the simple right of necessity, which follows the analysis of the plurality of possible legislative means in relation to the intended purpose and their subsidiarity in terms of restrictions on constitutional protection of value - fundamental law or public good. If the legislature of the intended purpose is to achieve alternative normative means, the constitutionally conformist is the one who limits the constitutional value to the minimum.
If the simple right under consideration, on the one hand, pursues the protection of a certain constitutionally protected value, on the other hand, it limits another, the third aspect of the principle of proportionality, which is the measurement, is the methodology for considering these in a conflict of standing constitutional values.
In order to draw a conclusion in the event of a conflict of fundamental rights, or of public good as a principle, contrary to the case of a conflict of the standards of simple law, the Constitutional Court follows the order for optimisation, i.e. by postulating the minimisation of restrictions on fundamental law and freedom, or public good. Its content is a maximum, according to which, in the event of a conclusion on the merits of the priority one before the other of the two in a collision of standing fundamental rights or public goods, it is a necessary condition for a final decision, also to use all possibilities of minimising intervention in one of them. The order for optimisation can normally be derived from the provisions of Article 4 (4) of the Charter, according to which fundamental rights and freedoms must be investigated in the application of the provisions on the limits of fundamental rights and freedoms, thus also analogous in the case of restrictions on them as a result of their mutual conflict.
On the basis of the tenets of the constitutional assessment of the issue in question, it must be noted that the legislature has no longer been able to comply with the courts resulting from the appropriate postulation, i.e. the relationship between the legal means used and the legislative objectives.
In his speech, the Minister of Labour and Social Affairs, Zdeněk Škromach, at the meeting of the Chamber of Deputies of the Parliament of the Czech Republic on 13 September 2002 [in the context of the discussion of the government bill setting out extraordinary measures for determining the amount of the salary and some compensation of the expenses associated with the performance of the duties of representatives of the State and of certain state bodies, judges and prosecutors, and setting the level of additional salaries for the first and second half of 2003], "The government draft of the law submitted contains one of the necessary savings in the expenditure for the 2003 budget. In the context of the economic situation created as a result of the floods in August this year, it was necessary to propose a second delaying of the implementation of a new, 16-grade pay system for public service and administration employees, reducing the amount of funds to increase their salaries by more than half. At the same time, it will not be possible to provide public service and administration employees with an additional salary for each half of 2003 of the amount corresponding to the monthly salary components provided but, as in previous years, only half of that amount. Following these necessary measures, a draft law has also been drafted to freeze the salaries of Members, Senators, Members of the Government, Judges, prosecutors and other persons at the level reached in 2002. This will avoid further diverging these persons from the level of pay of employees in public services and administration, up to the effectiveness of the new way of determining the level of the salary base, which will slow down the development of the salaries of representatives of state power and of some other persons since 2004 and adapt the development of public-funded salaries. At the same time, it is proposed that representatives of state power, as well as public service and administration employees, should they be entitled to another salary, should they be paid only half the amount in each half of 2003. In addition to the expression of solidarity with citizens affected by floods, the adoption of the proposed adjustment would mean saving in the expenditure of the state budget of about CZK 480 - 500 million."
The purpose of Act No. 425 / 2002 Coll. according to the supporter of his proposal was therefore to ensure proportionality in terms of the salaries of public administration and services employees and representatives of state authorities, certain state bodies, judges and prosecutors, to further apply solidarity with citizens affected by floods, as well as to obtain funds to eliminate their consequences.
In its capacity as appellant, the Government challenged the truthfulness of the stated intent of Act No. 425 / 2002 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. and No. 330 / 2003 Coll., on public service and administration pay ratios) as well as the adopted state budget for 2003. According to the spreadsheet 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 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 funds for salaries for 2002 represented CZK 8,755 060 000, the budget for 2003 CZK 10,319 286 286 000, the draft for 2004 was CZK 10,524 110 000 (Table 10), in the components of defence, security, customs and legal protection represented the actual amount of the salaries for 2002 CZK 26999 082 000, the budget for 2003 29161 674 000 CZK, the draft for 2004, the draft for 2004 (Table 11).
In these circumstances, it is difficult to accept the thesis on "the necessary savings in the funds spent on public service and administration salaries', on the contrary, it must be noted that the content of Act No. 425 / 2002 Coll. does not match its declared purpose. This fundamental breach of the principle of proportionality must then be qualified as a manifestation of arbitrariness by the legislator, which is contrary to the rule of law (Article 1 (1) of the Constitution).
The principle of necessity implies a maximum for the legislature, according to which, if the intended purpose can be achieved by alternative regulatory means, the constitutionally conformist is the one who limits the constitutional value (fundamental rights and freedoms, public good) to the minimum.
Solidarity in the event of exceptional events (such as floods in 2002) can be achieved through constitutionally consistent procedures, i.e. respect for fundamental rights and freedoms, in particular the constitutional principle of equality. Corresponding coutels also apply to obtaining funds to mitigate or eliminate the consequences of such events.
The government tried and submitted to Parliament a draft law amending Act No 587 / 1992 Coll., on excise duties, as amended, Act No 588 / 1992 Coll., on value added tax, as amended. According to government calculations, this proposal, referred to as the "flood tax package," was intended to bring an increase in government budget revenue in 2003 of CZK 10.7 billion, which was intended to cover flood damage. The government proposal was discussed as House Press No. 38 at the meeting of the Chamber of Deputies on 13 September 2002, before the contested Act No. 425 / 2002 Coll., was rejected by the Chamber of Deputies.
Thus, by its action, the legislator failed to comply with another component of the principle of proportionality, the principle of necessity, when the existence of pluralism of possible legislative means in relation to the intended purpose did not respect their subsidiarity in terms of limiting the constitutional protection of value - the fundamental right arising from the constitutional principle of equality and the constitutional protection of the independence of judges.
On the basis of the grounds thus set out, it must be regarded as a contradiction with Article 1 (1) of the Constitution, Article 1 of the Charter and Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms.
According to the provisions of Paragraph 2 of that Law: "If the persons referred to in Paragraph 1 are entitled to an additional salary, they shall be granted only half the amount to which they would otherwise have been entitled for the first and second half of 2003. 'According to the provisions of § 1 (h) of Act No. 425 / 2002 Coll. to determine 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', the salary base of the amount reached on 31 December 2002 shall be used in 2003, with points (a) to (m) of Article 1.
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 Section 2 of Law No 425 / 2002 Coll. by the words "§ 1 ', would therefore also affect persons for whom the derogatory reasons do not exist. However, the annulment of the provision set out in Article 1 of Law No 425 / 2002 Coll. by the words" (h) Judge of the District Court, Regional Court and Supreme Court, Supreme Court and Supreme Administrative Court' would be excluded from 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 (m), i.e. it contains an implicit and a standard referring to the provision of Paragraph 2 of the Law, if it states: "If, under the special legislation, the persons referred to in Section 1 are entitled to an additional salary, they shall be granted for the first and second half of 2003 only half the amount to which they would otherwise have been entitled. '
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 annulled in § 2 of Law No 425 / 2002 Coll. implicitly contained reference to § 1 (h) of the same law.
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, Vojen Güttler, Jan Musil and Pavel Rychetský for a decision and for his reasons Judge Miloslav Excellent.
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Regulation Information
| Citation | The Constitutional Court found no. 355 / 2005 Coll., on the application for annulment of the provisions of § 2 in relation to the provisions of § 1 (h) of Act No. 425 / 2002 Coll., which provides for an exceptional measure for 2003 to determine the amount of the salary and certain reimbursement of expenses associated with the performance of the duties of representatives of state authority and of certain state authorities, judges and prosecutors, and which determines the level of additional salaries for the first and second half of 2003 |
|---|---|
| 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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