The Constitutional Court found no 87 / 2016 Coll.
The Constitutional Court's finding of 2 February 2016, sp. zn.
Valid
87
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 2 February 2016, under point Pl.
as follows:
I. The proposal to abolish the term "2.75 times" in the provisions of § 3 (3) and § 3a (2), (3) and (4) of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of the State and of certain state bodies and judges and Members of the European Parliament, as amended, as regards the President, Vice-President and Members of the Supreme Audit Office, and § 3a (1) of the Act cited, as regards the President and Vice-President of the Supreme Audit Office, is rejected.
II. The proposal for the annulment of Article 3a (1) of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of the State and of certain state bodies and judges and Members of the European Parliament, as amended, as regards members of the Supreme Audit Office, is rejected.
Reasons
Recital of the proposal
1. In the application submitted to the Constitutional Court on 16 June 2015 The Circular Court for Prague 7, pursuant to Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, ("the Law on the Constitutional Court ') and under Article 95 (2) of the Constitution of the Czech Republic (" the Constitution') proposed the abolition of the word "2,75 times' in the provisions of Article 3 (3) of the Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the duties of representatives of the State and of the judges and Members of the European Parliament, as last amended by the Act No. 11 / 2013 Coll., and the provisions of the Act No. 236 / 1995 Coll. On behalf of the District Court for Prague 7, the application was lodged by the President of the Chamber of Mgr. Markéta Vodáková.
2. The present application was made in connection with the proceedings held at the District Court for Prague 7 under sp. zn. 29 C 81 / 2015, in which the applicant, as a member of the Supreme Audit Office, seeks to pay a supplement to his salary for the month of January 2015 of CZK 34 500. The claimant was established, inter alia, on the basis of the contested provisions of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of the State Government and of certain state bodies and judges and Members of the European Parliament, as amended, (hereinafter referred to as "the Law on Salary '), which he considered to be unconstitutional, and therefore proposed to suspend and refer the case to the Constitutional Court under Article 64 (3) of the Law on the Constitutional Court and under Article 95 (2) of the Constitution.
3. The Circular Court of Justice for Prague 7 of the application of the applicant's application has complied with the provisions of § 3 (3) in the word "2.75 times' and § 3a of the Law on Salary to be used in the resolution of sp. zn. 29 C 81 / 2015, or, in so far as they concern the President, Vice-President and members of the Supreme Audit Office, the provisions of § 3 (3) of the Law on Salary, as last amended by Law No 11 / 2013 Coll.
4. The District Court for Prague 7 states in its proposal that, by analogy, as stated in the quoted operative statement of the decision of the sp. zn. Pl. ÚS 28 / 13, the Supreme Audit Office can be treated in relation to its members, including its President and Vice-President. Pursuant to Article 97 (1) of the Constitution, the Supreme Audit Office is an independent body, both for executive and legislative powers. The independence of the Supreme Audit Office is also reflected in the special separate disciplinary procedure or in relation to the state budget, and the circumstances of the President, Vice President and members of the Supreme Audit Office are not regulated by Act No 234 / 2014 Coll., on Civil Service. It can thus be concluded that independence is the main attribute of the work of the Supreme Audit Office, its President, Vice-President and Members, as in the case of judges. The President, the Vice-President and members of the Supreme Audit Office may then be extended by analogy to a number of other characteristics given to judges. The District Court for Prague 7 refers in this respect to points 61 and 76 of the sp. zn.
5. In its proposal, the District Court for Prague 7 concludes that, in the current situation where a salary base of 3 times the average nominal monthly salary of individuals in the non-business sphere is set for the judge, according to the published data of the Czech Statistical Office for the preceding calendar year and the level of the salary base for the relevant calendar year, the President, Vice-President and members of the Supreme Audit Office are placed in an unequal position compared to judges, if their role is similar to that of judges. Similarly, as was the case in the case of the finding of sp. zn. Pl. ÚS 28 / 13, according to the District Court for Prague 7, it is possible to decide on the annulment of the contested provisions only in relation to the President, Vice President and members of the Supreme Audit Office and to appeal to the legislature in order to remove the loophole created in the law by adopting a new regulation which would build a salary base for judges and presidents, vice president and members of the Supreme Audit Office on an equal footing.
Assessment of admissibility of the proposal
6. The Constitutional Court first examined the question whether the appellant was entitled to apply for annulment of the contested provisions.
7. Article 95 (2) defines the active legitimacy of the court to bring an application for annulment of the law or provision thereof. The Constitution so that, if the Court concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it shall bring the matter before the Constitutional Court. In order for a general court to question the constitutionality of a particular law, or its individual provision, and the matter to be brought before the Constitutional Court, its real application is necessary and not just its hypothetical use or other broader context [cf. Resolution of 1 April 2014 sp. zn. Pl. ÚS 29 / 13 (in SbNU not published, available at http: / / nalus.ujud.cz)].
8. As already stated in point 2 of the finding, the appellant made an application for annulment of the contested provision in the context of his decision-making activity, where, as a competent court, he is hearing, under point 29 C 81 / 2015, an action by a member of the Supreme Audit Office seeking payment of the supplement to his salary for January 2015. In view of the subject matter of the dispute, the contested provisions only apply to a member of the Supreme Audit Office and not to the President and Vice-President of the Supreme Audit Office. Therefore, in the part where the appellant, at least formally in the petit of his proposal, is opposed to the contested provisions in so far as they concern the President and Vice-President of the Supreme Audit Office, the proposal is rejected as it is submitted by a person manifestly unjustified.
9. In addition, since the dispute is the subject of a salary for the month of January 2015, the relevant provision of Section 3a (1) of the Salary Act, as amended by Act No 359 / 2014 Coll., is in substance in the present proceedings before the Circular Court for Prague 7, as amended by Act No 359 / 2014 Coll., since it contains a salary base for representatives (see Section 1 (f) of the Salary Act) for the period from 1 January 2015 to 31 December 2015. The Constitutional Court is aware that the appellant expressly states in the petition that the Constitutional Court annul Article 3a of the Salary Act, as last amended by Act No. 11 / 2013 Coll. However, in the quoted version, Section 3a of the Salary Act contained the legislation on the salary base of officials in 2011 to 2014 introduced by Act No. 425 / 2010 Coll., and by Act No. 11 / 2013 Coll., amending Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the duties of representatives of state power and of certain state authorities and judges and Members of the European Parliament, as amended, and certain other laws, were not affected. This formal petition defined by the contested part of the Salary Act is not only valid from 1 January 2015, since on that date it was repealed by Act No 359 / 2014 Coll., amending Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the function of representatives of the State Government and of certain state authorities and judges and Members of the European Parliament, as amended, but cannot be applied by the District Court of Prague 7 in the dispute concerning the salary in question until January 2015 (the form of the petition appears to have been the result of a mechanical takeover of the operative part of the decision of the Court of First Instance of 28 / 13).
10. On that point, the Constitutional Court notes, however, that although the petitioner in the petition of the proposal challenges Article 3a of the Salary Act, last as amended by Act No. 11 / 2013 Coll., it is clear from the justification of the proposal that the proposal seeks to repeal Article 3a of the Salary Act in force and effective as at 1 January 2015, the Constitutional Court, having regard to the exclusion of excessive formalism, concluded that the appellant is challenging Article 3a of the Salary Act, as amended by Act No. 359 / 2014 Coll.
11. In accordance with the above conclusions, the Constitutional Court then submitted to a substantive review only Article 3a (1) of the Salary Act as regards members of the Supreme Audit Office. As regards the parts where the appellant, in the light of the above, at least formally in the petit of his proposal, is opposed to the remaining paragraphs of Article 3a of the Salary Act, in which salary bases are set for the period 2016 to 2018, the proposal is rejected as it is submitted by a person manifestly unjustified.
12. As regards the part of the petition proposing the annulment of Section 3 (3) of the Salary Act, it is again explicitly stated that it is the last text under Act No. 11 / 2013 Coll. However, given that the contested part of Section 3 (3) of the Salary Act is identical both in the version of Act No. 11 / 2013 Coll. and in the version of the later regulations, there is no longer a conflict between the petition and the content of the proposal, as mentioned above in relation to the contested Section 3a of the Salary Act.
13. However, Paragraph 3 (3) of the Salary Act contains a salary base for the calendar year in general, without fixation for a specific period. Article 3 (3) of the Salary Act is therefore a general provision in the case under examination in relation to Article 3a of the Salary Act, the above-mentioned paragraph 1 of which applies to the calculation of the claimant's salary for January 2015 instead of Article 3 (3) of the Salary Act as a special provision (it is the lex specialis derogat legi generali method). The Constitutional Court therefore concludes that the District Court of Prague 7, in relation to the contested part of the provision of Section 3 (3) of the Salary Act, is not a legitimate appellant and therefore the conditions of its active legitimacy in the standard control procedure are not fulfilled in that part of its proposal.
Observations of the parties
14. The Chamber of Deputies of the Parliament of the Czech Republic ("the Chamber of Deputies") spoke on the proposal on 9 October 2015. The observations of the Chamber of Deputies signed by its President Jan Hamakk state that the current wording of Paragraph 3a was inserted into the Salary Act by Act No 359 / 2014 Coll. The draft law was submitted by the Government of the Czech Republic (hereinafter referred to as "the Government '). On 1 August 2014, the Chamber of Deputies was distributed to Members as Parliament Press 277. The first reading of House Press 277 started on 7 November 2014 at the 19th meeting of the Chamber of Deputies, where the discussion of the proposal was suspended. The Chamber of Deputies returned to the first reading of the draft law on 14 November 2014 at its 22nd meeting where it was ordered to discuss the Committee on Budgets, the Constitutional Law Committee, the Public Administration and Regional Development Committee and the Social Policy Committee. The Constitutional Legal Committee and the Committee on Public Administration and Regional Development have not discussed the draft law. The Committee on Budgets discussed the draft law on 24 November 2014 and issued a resolution which was circulated to Members as Parliament Press 277 / 1 (comprehensive amendment). The Committee on Social Policy discussed the draft law on 28 November 2014 and issued a resolution which was circulated to Members as House Press 277 / 2 (a comprehensive amendment).
15. The second reading of the draft law took place on 2 December 2014, when the draft law passed both a general and a detailed debate and the deadline for the opening of the third reading was changed to 48 hours after the adoption of amendments or other proposals to Members (Resolution 526). In a detailed debate, amendments were tabled, including the Members, which were subsequently circulated to Members on 2 December 2014 as House Press 277 / 3. At the third reading of the draft law, which took place on 5 December 2014, the parliamentary amendment of the President of the Chamber of Deputies, Jan Hamáček, was approved and, in view of this, the unvoting comprehensive amendments of the Committee on Budgets and the Committee on Social Policy became unvoting. The Chamber of Deputies then voted in favour of the Government's proposal (as amended by the Comprehensive Amendment of Jan Hamáček) by the number of votes 102 in favour and 5 against.
16. The Chamber of Deputies passed on 5. 12. 2014 a draft law (House Press 277) to the Senate of the Parliament of the Czech Republic (Senate), which discussed it at its meeting on 18. 12. 2014 and expressed the will not to deal with the bill. The President of the Republic signed the Act on 22 December 2014. On 23 December 2014, the approved law was delivered for signature to the Prime Minister and in the Collection of Laws the law was declared on 31 December 2014.
17. In conclusion, the President of the Chamber of Deputies stated that the proposal by the Circular Court of the contested part of Act No. 236 / 1995 Coll. was adopted after a properly implemented legislative process and that the legislature acted in the belief that these provisions were in line with the Constitution and our legal order. It is up to the Constitutional Court to examine the constitutionality of the provisions in question in the context of the proposal and to take a decision.
18. The Senate commented on the proposal on 13. 10. 2015. The Senate's observations signed by its President Milan Štěm state that, with regard to the adjustment contained in § 3a of Act No. 236 / 1995 Coll., this adjustment was not in any way affected by Act No. 11 / 2013 Coll., as stated by the appellant, but the current wording was adopted only in the amendment made by Act No. 359 / 2014 Coll. This was a comprehensive revision in the Chamber of Deputies after its submission by the Government of the Chamber of Deputies, with the adoption of the so-called comprehensive amendment tabled by Mr Jan Hamask concerning the addition of Paragraph 3 (3) on the adjustment of the salary base in relation to judges and the new version of Section 3a on the gradual increase of the coefficient during the years 2015 to 2018 in relation to the representatives of the State.
19. The bill was delivered to the Senate following its approval in the Chamber of Deputies on the same day, where it was discussed as Senate Document No 2 in the 10th term. The bill was ordered to discuss the Committee on Economic, Agriculture and Transport, which discussed it at its third meeting on 16 December 2014 and recommended the Senate to approve the bill as referred to by the Chamber of Deputies in Resolution 23. The Senate discussed the bill at its 4th meeting on 18 December 2014. Following the presentation of the Committee's rapporteur, pursuant to the procedure under Section 107 of Act No. 107 / 1999 Coll., on the Rules of Procedure of the Senate, a proposal was made by Senator Petr Vícha to express the Senate's will not to deal with the bill, which was justified by the fact that everything was essentially disclosed in the previous time on the matter and also in view of the need to adopt an amendment to the law by the end of 2014. This proposal, which was also supported by representatives of other senatorial clubs, was subsequently adopted - out of the 66 senators and senators present, 52 voted for the proposal, 3 against the proposal and 11 abstained. Therefore, when discussing the draft law at the Senate meeting, there was no debate on the content of which could possibly be given more details.
Statement by the Government of the Czech Republic
20. On 16. 10. 2015, the Constitutional Court received a communication from Minister Jiří Dienstbier that the Government, at its meeting on 12. 10. 2015, had negotiated an application for its entry into the proceedings before the Constitutional Court under sp. zl.
21. On 1 December 2015, the Constitutional Court received the Government's statement sent by the Minister for Labour and Social Affairs Mgr. Michaela Marks. First, the Government sets out the reasons on which the Constitutional Court should reject the application of the District Court for Prague 7. On the one hand, this is the obstacle to the matter decided, which is the procedural reason for making the proposal inadmissible and rejecting it. The Government considers that, in the case of the present application, the finding of the Constitutional Court of 10.7.2014 sp. zn. The second reason for rejecting the proposal now under consideration is, in the view of the Government, that the appellant petites his proposal, which is bound by the Constitutional Court, by requiring the Constitutional Court in fact to exceed its constitutionally anchored competence as a 'negative' legislator and to enter the legislator's domain "positive '.
22. The Government shall also state the reasons why the application should be rejected by the Constitutional Court if it is not to reject the application in question. The Government is of the opinion that the members of the Supreme Audit Office do not bear witness to the constitutionally guaranteed independence of the judiciary, including by the Constitutional Court of Judged Material Security. The Supreme Audit Office, unlike the courts, does not decide on the rights and obligations of natural and legal persons (except for decisions on objections to the Control Protocol and decisions on the imposition of a fine). The control of the Supreme Audit Office results only in the conclusion of the inspection. Thus, the jurisdiction of the courts is specific and unique compared to the Supreme Audit Office.
23. According to the Government, the appellant's argument lies in a circle in the sense that, from the compensations of certain - legislature already granted - identical guarantees of independence on the part of members of the Supreme Audit Office and judges, the appellant finds the need to interpret the Constitution to give further guarantees (in this case the same level of salary base). However, if the members of the Supreme Audit Office are not of a judicial nature, any conclusion on the need for an equal degree of guarantees of independence of the members of the Supreme Audit Office and the Judges would clearly go beyond the framework of the Constitution.
24. In addition, in the view of the Government, the Salary Act was designed and adopted in such a way as to express the equality of all three state powers in terms of salaries. Therefore, a single salary basis was established, with the fact that the importance, complexity and responsibility of the performance of each function being expressed by pay coefficients. The judges of the General Courts have been added to the basic scheme of the Salary Act only subsequently and are also an alien element in the system, in particular for the exceptional constitutional protection of the performance of duties, repeatedly declared by the Constitutional Court, which none of these representatives of the State are enjoying. This was also the reason for establishing a special, higher salary base only for judges, regardless of the economic situation of the State and the possible necessity of austerity measures. That is why, of course, judges' salaries are actually far above those of officials. The establishment of the same salary base for members of the Supreme Audit Office and for judges is fundamentally unacceptable, as a single system of remuneration for officials would be watered down so far and the Salary Act would completely lose its internal logic.
25. In conclusion, the Government proposes that the Constitutional Court reject or reject in full the application of the District Court for Prague 7.
Position of the Ombudsman on the proposal
26. In accordance with § 69 (2) and (3) of the Constitutional Court Act, he pointed out by letter dated 16 September 2015 The Constitutional Court of the Ombudsman of the pending proceedings, reminding the Ombudsman of the time within which he may intervene and, where appropriate, of his observations on the application. By letter dated 29 September 2015, the Ombudsman informed the Constitutional Court that she would not use her right to intervene.
Statement by the Supreme Audit Office
27. The District Court for Prague 7 also added to its application the observations of the Supreme Audit Office of 13. 5. 2015 sp. zn. 121 / 15- NKU45 / 81 / 15 submitted by the Supreme Audit Office of the District Court of Prague 7 as a statement of the defendant in the case under sp. zn. 29 C 81 / 2015. The opinion cited by the Supreme Audit Office without request was also received by the Constitutional Court from an attorney representing the Supreme Audit Office in the case under point 29 C 81 / 2015.
28. In that statement of the Supreme Audit Office, signed by its President, Ing. Miloslav Kalou, it is stated, inter alia, that the Constitutional Court, in its decision of 10 July 2014, sp. zn. Pl. ÚS 28 / 13, set, first, the parameters under which it may be possible to proceed with the adjustment of salaries and, secondly, that the contested provision was annulled only for a certain group of persons, namely the judge. In this finding, its conclusions are justified in particular in the light of the constitutional requirement of the independence of the courts and judges. In agreement with the appellant, the Supreme Audit Office considers that such justification is applicable and relevant in relation to the constitutionally anchored independence of the Supreme Audit Office and its representatives. When the Constitutional Court decided, in a cited finding, in relation to judges as it had decided, it established the scope for bringing actions in relation to other representatives of the State, whose salaries and other formalities related to the performance of their duties are governed by Act No. 236 / 1995 Coll., as amended, and in particular in relation to the representatives of the Supreme Audit Office, whose independence is also enshrined in the Constitution.
29. The Supreme Audit Office is convinced that the action (in the case brought by the District Court for Prague 7 under sp. zn. 29 C 81 / 2015) cannot be upheld mainly on the grounds that the finding of the Constitutional Court of 10 July 2014 sp. zn. Pl. ÚS 28 / 13 is based on the fact that the necessity of maintaining three times the average nominal monthly wage of individuals in the non-business area causes a constitutionally anchored requirement of independence of the courts and judges. This must therefore also apply to the Supreme Audit Office and its representatives, as the Constitution also raises the same demand for their independence in relation to them. Therefore, it cannot be pointed out that there are formal differences in the outputs of the courts and the Supreme Audit Office, for example, in the fact that the courts decide on individual matters, whereas the output of the Supreme Audit Office consists in adopting the control conclusions underlying the further procedure of the State authorities.
Abandonment of oral proceedings
30. Following the above-mentioned course of the procedure, the Constitutional Court concluded that there was no need for oral hearing in the case, as it would not have brought any further, or better and clearer clarification of the case than, in particular, from the written acts of the appellant, the parties and the intervener. In view of the wording of Article 44 of the Constitutional Court Act, the Constitutional Court decided without holding oral proceedings.
Constitutional conformity of the legislative process
31. The Constitutional Court, in accordance with the provisions of § 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., first addressed in further steps the question of whether the law, the unconstitutionality of which the provision of which is contested, was adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.
32. As found by the Constitutional Court from the relevant parliamentary press, from the data on the voting process and from the observations of the chambers of Parliament, draft Act No 359 / 2014 Coll. The Chamber of Deputies duly approved it at its meeting on 5 December 2014 (Resolution No 543). The Senate then expressed its willingness not to deal with the bill at its meeting on 18 December 2014 (Resolution 64). The President of the Republic signed the Bill on 22 December 2014. After the signature of the Prime Minister the law was declared in the Collection of Laws in the amount of 143 under number 359 / 2014 Coll.
33. The law in question was therefore adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.
Derogation of the contested provision
34. The contested provisions of the Salary Act are:
Salary base of representatives from 2015 to 2018
(1) From 1 January 2015 to 31 December 2015, the salary base for representatives shall be 2,25 times the average nominal monthly salary of individuals in the non-business sphere obtained according to published data of the Czech Statistical Office for the preceding calendar year. '
Legal evaluation of the Constitutional Court
35. The proposal is unfounded as to the alleged unconstitutionality of the content of the contested provision.
36. The substance of the argument put forward by the District Court for Prague 7 is that the conclusions reached by the Constitutional Court in the sp. zn.
37. In the opening of the Constitutional Court's reasoning, it should be pointed out that the Supreme Audit Office does not exercise judicial authority and therefore the possibility of applying the earlier findings of the Constitutional Court relating only to and only to judicial authority is significantly limited. Where the appellant refers in his argument to the previous conclusions of the Constitutional Court in relation to the question (not) of the admissibility of the salary restrictions on the part of the Judges, the Constitutional Court does not consider that some similar features of independence in the performance of the duties of the members of the Supreme Audit Office constitute the basis for a symmetrical position with the Judges, as explained below [cf. sp. zl. ÚS 17 / 10 of 28.6.2011 (N 123 / 61 SbNU 767; 232 / 2011 Sb.)].
38. The conclusions contained in the derogation finding sp. zn. Pl. ÚS 28 / 13 are based on the narrowed disposition area of the legislature in the area of the judicial pay restrictions. That restriction of the legislature is that the legislature's intervention in the field of material protection of judges (in other words, pay restrictions) must be placed under the framework protected by the principle of independence guaranteed by Article 82 (1) of the Constitution. In other words, according to the finding of sp. zn. In this context, the appellant contends that the salary restriction implemented by Act No 359 / 2014 Coll. is a similar violation of Article 97 (1) of the Constitution, which guarantees the independence of the Supreme Audit Office.
39. In the light of the foregoing, the Constitutional Court therefore considers it essential for the assessment of the present case to compare the independence of the judges and the independence of the Supreme Audit Office and its members.
The nature of the independence of judges under Article 82 (1) of the Constitution
40. The Constitution provides that judges are independent in the performance of their duties and that their impartiality must not be jeopardised. This independence of the Judge is guaranteed, in addition to the duration of the duties of the Judge (Article 93 (1) of the Constitution), its fundamental irrevocability and non-transferability (Article 82 (2) of the Constitution), its incompatibility with other functions (Article 82 (3) of the Constitution), its material security. Pursuant to Article 75 (1) of Act No. 6 / 2002 Coll., on the Courts, Judges, Addresses and Government Administration of the Courts and on the amendment of certain other laws (Law on Courts and Judges), the State also guarantees the independence of judges by their material security. It is through the latter component of the independence of judges that the legislator's wage restrictions can be placed under a framework protected by the principle of the independence of judges.
41. This personal independence of judges, including their material security component, guaranteed by Article 82 (1) The Constitution must be distinguished from the institutional independence of the courts guaranteed by Article 81 of the Constitution, which provides that the judicial authority is exercised by independent courts on behalf of the Republic. While the institutional independence of the courts means their independence in relation to other powers (principle of division of power), the personal independence of judges means their psychological (conscious and unconscious) state of mind as a body whose jurisdiction consists primarily of decision-making. In so doing, the independence of the court, which can be regarded as objective independence in this respect, and the independence of the judge, which can be regarded as subjective independence, are linked and in a relationship of cross-compliance. However, these are not the same terms and their distinction is not without meaning.
42. Should the principle of independence of the courts be infringed, it is a matter of institutional formation of the court as a judicial authority in which there is a risk of the influence of one of the two remaining fundamental powers being transferred and therefore of a breach of the balance between them, which is the fundamental principle of the division of powers enshrined in Article 2 (1) of the Constitution. On the contrary, if the independence of judges were to be violated, it would be a breach of the independence of the Court's own decision-making activities [cf. sp. zn.
43. This distinction between institutional and personal independence is also relevant in the question currently under consideration, as, in view of the above, wage restrictions may only be an intervention in the personal, subjective independence of judges, or in one of its components, and no longer an intervention in the independence of courts, as an objective.
44. In the light of the above, it is a key question which the Constitutional Court must answer in order to examine the application lodged by the District Court for Prague 7 whether the independence of the Supreme Audit Office guaranteed by Article 97 (1) The Constitution also includes the personal independence of the members of the Supreme Audit Office, or is "only 'the guarantee of institutional independence, which does not fall within the framework of the legislature's salary restrictions, in the light of the above.
The nature of the independence of the Supreme Audit Office under Article 97 (1) of the Constitution
45. The existence of the Supreme Audit Office in the Constitution is enshrined in the separate title of Title 5 separately from the classic three components of State power and is not a judicial authority. At the same time, the Supreme Audit Office is not carrying a separate component of State power and therefore does not hold legislative, executive and judicial comparable positions in the system of State authorities. That system of the Constitution corresponds to the fact that the Supreme Audit Office is to be independent of other State authorities (see Gerloch, A., Tryzna, J. On the position of the Supreme Audit Office in the system of state authorities and to change its competences. Administrative law. Praha: Ministry of Interior, 2014, No 5, p. 281).
46. Accordingly, Article 97 (1) of the Constitution provides that the Supreme Audit Office is an independent body. The Supreme Audit Office is hereby constitutionally guaranteed independence from both legislative powers (Parliament) and executive powers (government and other executive executors) in order to eliminate the political influence on its activities [Constitutional Court finding of 25.1.2011 sp. zl. ÚS 15 / 10 (N 6 / 60 SbNU 51; 39 / 2011 Sb.)]. The Supreme Audit Office thus performs its function on its own without having an authority to give binding instructions to the Supreme Audit Office (Pouper, O. in Control mechanisms for the functioning of public administration. Olomouc: Periplum, 2009, p. 199).
47. This constitutional regulation of the independence of the Supreme Audit Office constitutes an institutional guarantee of its existence, suggesting the protection of independent control of the Supreme Audit Office not only from the Executive Office, but also from the legislator (Filip, J., Bahěžová, L., Molek, P., Podhrazký, M., Suchanek, R., Šimek, V., Vyzvanek, L. Constitution of the Czech Republic. Comments. Prague, 2010, p. 1327). Article 97 (1) guarantee The Constitution is therefore the Supreme Audit Office as a whole, its organisational and institutional establishment in relation to other public authorities.
48. The guarantee of such independence for the Supreme Audit Institution ("Supreme Audit Institution"), adopted in 1977 by the ninth Congress of the International Organisation of Supreme Audit Institutions (INTOSAI), includes, inter alia, the majority of European States, including the Czech Republic.
49. According to the Constitutional Court, it can therefore be partially concluded that Article 97 (1) of the Constitution guarantees the institutional independence of the Supreme Audit Office in relation to other powers (systemic or external organisational independence) in the same way as Article 81 of the Constitution in relation to courts. However, it is not a guarantee of the personal independence of the members of the Supreme Audit Office, which would be similar to the guarantee of the personal independence of judges under Article 82 (1) of the Constitution. Thus, the Constitution does not guarantee the members of the Supreme Audit Office (Supreme Audit Office) personal or judicial independence, unlike, for example, the German Constitution (Basic Law), which expressly guarantees the members of the Federal Court of Auditors (Bundesrechnungshof) judicial independence (richterliche Unabhängigkeit - Article 97 of the German Basic Law) in Article 114 (2).
50. The position of the Supreme Audit Institutions, as well as their respective powers in the various European States, varies according to the structure of the national legal system and the historical development of its control institutions (see Cupalová, M., Cavena, M. Comparative Study No 1.202. Responsibility of the highest control institutions to parliaments in selected EU states and comparison with the Czech Republic. The Parliamentary Institute. Chamber of Deputies of the Parliament of the Czech Republic, 2011, p. 3). If the Czech Constitution did not provide the members of the Supreme Audit Office with a constitutional legal guarantee of their personal independence or gave them judicial independence, this is to a certain extent consistent with the nature of the activities of the Supreme Audit Office as an institution of the non-judicial type, which does not have a command authority, unlike the highest control institutions of the so-called French type, whose characteristic feature is judicial control or decision-making in the form of a judicial decision (finding a right) on the accounts submitted (e.g. the decision of the French Cour des comptes is directly enforceable - cccomptes.fr).
51. The Supreme Audit Office (SAO), if any, finds errors in the treatment of public funds "only ', notes, however, that it is not entitled to impose publicly or impose penalties for such errors. The control activities of the Supreme Audit Office result in control conclusions which do not impose any obligations, but have the nature of signaling, or warning and recommending or, where appropriate, informative. The control conclusions of the Supreme Audit Office can subsequently be used as evidence for the decision-making activities of another public authority (cf. Judgment of the Supreme Administrative Court of 5.6.2008, sp. zn. 9 Aps 3 / 2008), but the Supreme Audit Office does not have the power to initiate such proceedings on the basis of its action (following the control carried out). As stated by the Constitutional Court in its resolution of 16.1.2001 sp. zn. II. ÚS 451 / 2000 (available at http: / / nalus.ujud.cz), the Supreme Audit Office" does not have executive or judicial powers; perform only the control function, with the authority and obligation to publish the results of the checks carried out, so as to alert the competent authorities of the State to the deficiencies identified during the inspection. However, it is not entitled to impose sanctions (excluding penalties for infringement of procedural rules) or measures to remedy deficiencies. The findings of the SAO are only an incentive or a basis for further action by state authorities.'
52. The appellant can be attested that Act No. 166 / 1993 Coll., on the Supreme Audit Office, as amended, provides for certain guarantees of personal independence for members of the Supreme Audit Office, similar to those of judges, such as incompatibility with certain functions (§ 12 (7), limitation of other gainful activities (§ 12 (8)) or early termination conditions (§ 12 (9)). These legally determined elements of the personal independence of the members of the Supreme Audit Office respect the institutionally independent status of the Supreme Audit Office guaranteed by Article 97 (1) of the Constitution or the constitutionally established system independence of the Supreme Audit Office. However, they shall not give members of the Supreme Audit Office the same status as judges, or give them judicial independence, as the appellant claims.
53. A similar conclusion was reached by the Constitutional Court in relation to the issue of pay restrictions against prosecutors, when, despite the finding of certain legal guarantees of their independence comparable to those of the judges (assumptions and manner of establishment of the function, limitation of the possibility of transfer, taxiously defined reasons for termination of the function, regulation of disciplinary proceedings, failure to pursue other gainful activities, etc.), the Constitutional Court concluded that the prosecutors did not demonstrate the constitutionally guaranteed independence of the judge [finding sp. zn. In addition to this comparison, it can be added that while prosecutors decide whether or not the conditions for the initiation of criminal proceedings are met, are responsible for its legal conduct and (together) the protection of human rights, have the right to appeal against decisions of the police authorities or prosecutors of a lower degree, assess whether or not the grounds for bringing an indictment are met and are an exclusive prosecutor in criminal proceedings, as a party to proceedings before the courts, have the right to appeal against decisions, and therefore even have very similar guarantees of independence as judges (see § 12e, § 18 (2), § 19, 24, 31 of the Law No 283 / 1993 Coll., on the Supreme Audit Office, as amended by the law, and, for example Fenyk J. Public Actions, Part I, Ministry of Justice of the Czech Republic, p.
54. It cannot, of course, be ruled out that the legislature will extend the powers of the Supreme Audit Office to the authorisation to initiate, in a similar manner, the correction of the deficiencies identified, within the meaning of the recommendation of Article 11 (2) of the Lima Declaration, according to which, if the audit findings of the Supreme Audit Institution do not take the form of legally binding and enforceable judgments, the Supreme Audit Institution is to be entitled to apply to the authority responsible for taking the necessary measures and to require the account party to take its responsibility. It can no longer be ruled out that, following the activities of the International Organisation of Supreme Audit Institutions in the future, legal and constitutional changes may gradually take place which will place members of the Supreme Audit Office in a comparable position to that of judges. However, in the current situation, the members of the Supreme Audit Office do not have such status.
55. The Constitutional Court does not in any way call into question the importance of the existing independence of the members of the Supreme Audit Office in the performance of their activities resulting from the specific mission of the Supreme Audit Office as defined in Article 97 (1) of the Constitution, or the specific objectives of the audit carried out by it, which are the proper and effective use of public funds and the development of sound financial management (cf. the preamble of the Lima Declaration). Therefore, in the context of this, both of the Constitution and the Supreme Audit Office Act, the requirement of independent and impartial performance of the functions of the members of the Supreme Audit Office, or the objectivity of the audit activity and its conclusions, which are necessary to ensure that the resources of the State are not used in an inefficient and uneconomical manner, thereby jeopardising the stability and development of a democratic state.
56. However, the position of the judges on the one hand and the members of the Supreme Audit Office on the other hand is different due to the constitutionally guaranteed independence of the judges, resulting in a different or more restricted margin for legislature to pay restrictions on judges compared to the vacancy for such restrictions on members of the Supreme Audit Office [cf. the finding of 16.1.2007 sp. zl. ÚS 55 / 05 (N 9 / 44 SbNU 103; 65 / 2007 Coll.)].
57. In other words, if the members of the Supreme Audit Office do not testify to the constitutionally guaranteed personal independence comparable to the independence of the judiciary, the guarantees which guarantee that judicial independence cannot be relied on, including by the Constitutional Court the judicated relative integrity of the salary position. Although the members of the Supreme Audit Office of the legislature also grant certain guarantees of independence similar to those of the judges, the need cannot be found in the present interpretation of the Constitution as to the existence of additional common guarantees of independence (now in pay). If the members of the Supreme Audit Office do not guarantee personal independence, any conclusion on the need for an equal range of guarantees of their independence and constitutionally anchored judicial independence would clearly go beyond the framework of the Constitution (cf.
Conclusion
584 / 2004 Sb., Pl. Pl ÚS 13 / 08 of 2.3.2010 (N 36 / 56 SbNU 405; 104 / 2010 Sb.), Pl ÚS 12 / 10 of 7.9.2010 (N 188 / 58 SbNU 663; 269 / 2010 Sb.)) defended, there was explicitly formulated judicial independence in the Constitution as a value which completely varied in a specific way in the way of interference in the pay ratios of judges. However, as explained above, the position of members of the Supreme Audit Office is not comparable to that of the Judges within the framework defined by the principle of judicial independence. The Constitutional Court has repeatedly pointed out in the above case-law that the principles of remuneration in the various public authorities are uneven, but the removal of this disproportion is in the hands of the legislator.
59. As a consequence, it is concluded that the present case law of the Constitutional Court, including the finding of the sp. zn. Pl. ÚS 28 / 13, does not contain an interpretation of constitutional order which would provide members of the Supreme Audit Office with a position of similar independence of the judiciary on salary issues.
60. The Constitutional Court concluded that the regulation of the salaries of members of the Supreme Audit Office does not interfere with the constitutional guarantee of the independence of the Supreme Audit Office pursuant to Article 97 (1) of the Constitution. Even taking into account the above-mentioned role of the members of the Supreme Audit Office and the existing position of the Supreme Audit Office within the structure of the State institutions, the Constitutional Court did not find that the contested provision of the law constituted an infringement of the constitutional order authorising the Constitutional Court to exercise the powers of deregation conferred on it.
61. On the basis of the reasons set out in sections X. (a) and (b), the Constitutional Court therefore rejected the proposal of the District Court for Prague 7 to abolish the provisions of Section 3a (1) of the Law on Salary with regard to members of the Supreme Audit Office (§ 70 (2) of Act No 182 / 1993 Coll., on the Constitutional Court) and, as regards the President and Vice-President of the Supreme Audit Office, the proposal for the annulment of Section 3a (1) of the Salary Act was rejected as manifestly unjustified. In the section requesting the declaration of unconstitutionality of part of the provisions of Sections 3 (3) and 3a (2), 3 and 4, in so far as they concern the President, Vice-President and members of the Supreme Audit Office, the proposal by the District Court for Prague 7 was rejected because of the lack of active procedural legitimacy of the appellant [Paragraph 43 (1) (c) in conjunction with the provisions of Section 43 (2) (b) of the Law on the Constitutional Court].
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 87 / 2016 Coll., on the application for annulment of certain provisions of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of the State Government and of certain state bodies and judges and Members of the European Parliament, as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 23.03.2016 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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