87/2016 Sb.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court ruled under SP. zn. PL. ÚS 14/15 day 2. February 2016 in plenary
consisting of the President of the Court, Pavel Rychetského and judges Louis David,
Jaroslav Fenyka (reporter judge), Josef Fiala, John Philip,
Jaromír Jirsy, Tomáš Too, Jan Musil, Vladimir Sládečka,
Radovan Suchánka, Catherine Šimáčkové, Vojtěch Šimíčka, David, Uhlir
and Jiří Zemánek about the design of the circuit court for Prague 7, Fruit based
market 14, Prague 1, 112 96 lodged pursuant to article 4(1). 95 para. 2 of the Constitution of the United
President of the Senate of the Republic Mgr. Markéta Vodákovou on cancellation of the words
"2, 75násobek" in the provisions of § 3 para. 3 of Act No. 236/1995 Coll., on salary
and other formalities associated with the exercise of the functions of the representatives of the State
power and some State authorities and judges and members of the European
Parliament, as amended, with respect to the President,
the Vice President and members of the Supreme Audit Office, and the provisions of § 3a
Act No. 236/1995 Coll., on salary and other terms associated with the
the performance of the functions of the representatives of State power and some State authorities and
judges and members of the European Parliament, as amended,
with regard to the President, the Vice-President and the members of the Supreme Audit
the Office, with the participation of the District Court for Prague 7, Chamber of Deputies
Parliament of the Czech Republic and Senate of the Parliament of the Czech Republic as
the parties and the Governments of the United Kingdom as intervener
management,
as follows:
I. proposal for the abolition of the word "2, 75násobek" in the provisions of § 3 para. 3 and
the provisions of § 3a paragraph 2. 2, 3 and 4 of Act No. 236/1995 Coll., on salary and
other elements linked to the exercise of the functions of the representatives of the State
power and some State authorities and judges and members of the European
Parliament, as amended, with respect to the President,
the Vice President and members of the Supreme Audit Office, and the provisions of § 3a
paragraph. 1 of the Act, with regard to the President and Vice President
The Supreme Audit Office, is dismissed.
II. Proposal to repeal § 3a paragraph 2. 1 of the law No. 236/1995 Coll., on salary and
other elements linked to the exercise of the functions of the representatives of the State
power and some State authorities and judges and members of the European
Parliament, as amended, with respect to members of the
The Supreme Audit Office, is rejected.
Justification
(I).
Recap of the proposal
1. In the proposal delivered to the Constitutional Court of 16 December. 6. District Court for 2015
Prague 7, pursuant to section 64 para. 3 of Act No. 182/1993 Coll.
The Constitutional Court, as amended, (hereinafter referred to as "the law of
The Constitutional Court ") and according to the article. 95 para. 2 of the Constitution of the Czech Republic (hereinafter referred to
"the Constitution") proposed the abolition of the word "75násobek" in 2, the provisions of § 3 para.
3 of Act No. 236/1995 Coll., on salary and other terms associated with the
the performance of the functions of the representatives of State power and some State authorities and
judges and members of the European Parliament, last amended by Act No.
11/2013 Coll., with regard to the President, the Vice-President and the members of the
The Supreme Audit Office, and the provisions of § 3a of Act No. 236/1995 Coll.
the salary and other terms associated with the performance of the functions
representatives of State power and some State authorities and judges and
members of the European Parliament, last amended by Act No. 11/2013
Coll., concerning the President, Vice-President and members of the Supreme
the inspection authority. For the District Court of Prague 7 proposal brought the Chair
Senate Mgr. Markéta Vodáková.
2. The present proposal has been filed in connection with management operated by
The District Court for Prague 7 under SP. zn. 29 (C) 81/2015, in which the
the applicant as a member of the Supreme Audit Office is seeking payment of the
a supplement to their salary for the month of January 2015 amounting to 34 500 CZK. The applicants
salary determined was, inter alia, on the basis of the contested provisions of Act No.
236/1995 Coll., on salary and other terms associated with the performance of
the functions of the representatives of State power and some State authorities and judges and
members of the European Parliament, as amended, (hereinafter also
' the law on salary "), which are unconstitutional, and therefore, management
before the District Court for Prague 7 suggested to suspend and refer the matter
The Constitutional Court pursuant to § 64 para. 3 of the law on the Constitutional Court, and according to the article.
95 para. 2 of the Constitution.
3. the District Court of Prague 7 the applicant's proposal, the measure upheld
came to the conclusion that the provisions of section 3 (2). 3 in the word "2 75násobek" and §
3A law on salary, which shall be in solving things SP. zn. 29 (C) 81/2015
used, or if they relate to the President, Vice-President and members of the
The Supreme Audit Office, are in conflict with the constitutional order of the Czech
States with reference to the finding of the Constitutional Court of 10 December. 7.2014 SP. zn.
PL. ÚS 28/13 (N 137/74 SbNU 93; 161/2014), which were the provisions of the
contained in § 3 (1). 3 of the law on salary, last amended by Act No.
11/2013 Coll., expressed by the word "2 75násobek", with regard to the judges
District, regional, high courts, the Supreme Court and Supreme
Administrative Court, annulled.
4. the District Court of Prague 7 in its proposal states that the analogy
It is stated in the operative part of the award cited SP. zn. PL. ÚS 28/13, can be
do this even if the Supreme Audit Office in relation to its
Members, including its President and Vice President. According to the article. paragraph 97. 1
The Constitution of the Supreme Audit Office is an independent body, and to be able to
the Executive and legislative power. The independence of the Supreme Audit
the authority is also reflected in a special separate adjustments to the disciplinary proceedings or to
relation to the State budget and on the ratios of the President, Vice-President and
the members of the Supreme Audit Office does not regulate law No. 234/2014 Coll.
Government service. It can be noted that the main attribute of the activity
The Supreme Audit Office, its President, Vice-President and members of the
is, as in the case of the independence of the judges. The President,
the Vice President and members of the Supreme Audit Office can then by analogy
apply a variety of other characteristics relevant for the judge. District
Court of Prague 7 in this respect refers to recitals 61 and 76 award SP. zn.
PL. ÚS 28/13.
5. the District Court of Prague 7, in its proposal, concluded that in the current
situations where it is provided for the judge in the amount of 3 times the base salary
average nominal monthly wages of individuals in non-business sphere
achieved by the Czech Statistical Office figures for
before the calendar year and the amount of the salary base for the
calendar year announced by the Ministry of labour and Social Affairs in the collection
laws of communication, are the President, Vice-President and members of the Supreme
surveillance authority built over the judges into unequal position, if
otherwise, their role similar to the role of judges. Similarly, as was the case in
If found, SP. zn. PL. ÚS 28/13, according to the District Court for
Prague 7 and in that case decide on the annulment of the contested provision only
in relation to the President, Vice President and members of the Supreme
the inspection authority and appeal in the grounds of the legislature, so that the resulting
a gap in the law has removed by the adoption of new legislation which would
put the base salary of the judges and the President, Vice-President and members of the
The Supreme Audit institution on a par with.
II.
The assessment of the admissibility of the
6. the Constitutional Court of first instance assessed the question as to whether the applicant is entitled to
submit an application for annulment of the contested provisions.
7. Standing Court for the filing of the application for revocation of the legal
Regulation or its provisions, defined in article 1. 95 para. 2 of the Constitution, so that the
If the Court comes to the conclusion that the law, which is supposed to be when the solution matters
used, contrary to the constitutional order, refer the matter to the Constitutional Court.
To the General Court to challenge the constitutionality of a particular law,
or its individual provisions, and refer the matter to the Constitutional Court, is
necessary its fair application and not just its hypothetical use,
or other wider context [cf. resolution of 1 February. 4.2014 SP. zn.
PL. TC 29/13 (unpublished, available at SbNU
http://nalus.usoud.cz)].
8. As already mentioned in point 2, the petitioner filed a motion to
annulment of the contested provisions in the context of its decision-making
activities in which, as the Court hears under SP. zn. 29 (C) 81/2015
the action of a member of the Supreme Audit Office, which the applicant seeks
the payment of a supplement to their salary for the month of January 2015. With regard to the
the subject of the dispute, while experiencing the application of the contested provisions only in
relation to a member of the Supreme Audit Office, and not in relation to the
the President and Vice President of the Supreme Audit Office. Therefore, in the
parts, in which the plaintiff, at least formally, in the remedies their design, Rails
against the contested provisions as they relate to the President and
the Vice-President of the Supreme Audit Office, rejects the proposal, since it is
filed by a person obviously unjustified.
9. Whereas, Furthermore, that the subject of the dispute is a salary for the month of January
2015, the substantive law in the proceedings before the District Court
for Prague 7 applicable provisions of § 3a paragraph 2. 1 of the law on salary, as amended by
Act No. 359/2014 Coll., as in it is contained the salary base for
representative [see section 1 (b), (f)) of the law on salary] for the period from 1. January
2015 until 31 December 2006. December 2015. The Constitutional Court sews while aware that
the applicant in its proposal, the remedies expressly states that the Constitutional Court
set aside the section 3a of the law on salary, last amended by Act No. 11/2013 Coll.
However, the wording of section 3a of the abovementioned law on salary include legislation
the wage base of leaders from 2011 to 2014, the established by law
No. 425/2010 Coll., and Act No. 11/2013 Coll., amending Act
No. 236/1995 Coll., on salary and other terms associated with the performance of
the functions of the representatives of State power and some State authorities and judges and
members of the European Parliament, as amended, and some
other laws, is not in any way prejudice to § 3a. Petite defined formally as follows
the contested part of the law on salary, not only that it is not from 1. 1.2015 valid because the
to this day has been cancelled by law No. 359/2014 Coll., amending Act
No. 236/1995 Coll., on salary and other terms associated with the performance of
the functions of the representatives of State power and some State authorities and judges and
members of the European Parliament, in the wording of later regulations, but
There can be no District Court for Prague 7 in the present dispute related to
the salary for the month of January 2015 (the form of the remedies applied
apparently the operative part of the award was established by a mechanical seizing SP. zn. PL. ÚS 28/13
by the applicant).
10. The above, however, the Constitutional Court notes that, although the appellant in
the remedies of section 3a of the Act invades the proposal on salary, last amended by Act No.
11/2013 Coll., provided, however, from the grounds of the proposal it is clear that
the proposal seeks to repeal section 3a of the law on salary in force and effective
to 1. 1.2015, so the Constitutional Court with a view to eliminating excessive
formalism deduced that the applicant contests the § 3a of the law on salary, as amended by
Act No. 359/2014 Coll.
11. in accordance with the aforementioned conclusions of the Constitutional Court then subjected
meritornímu § 3a paragraph review only. 1 of the law on salary of with respect to
the members of the Supreme Audit Office. As regards the parts which the applicant
in the light of the above, at least formally, in its motion, the remedies
rail against the remaining paragraphs of section 3a of the Act on salaries, which are
fixed base salary for the period 2016 to 2018, is the proposal
he refuses, as is filed by a person obviously unjustified.
12. as regards the remedies portion of the proposal which it is proposed to repeal section §
3 (2). 3 of the law on salary, it is expressly stated once again that it is the wording of the
last by Act No. 11/2013 Coll., however, due to the fact that the
the contested part of § 3 para. 3 of the law on salary is the same as in the text of the Act
No. 11/2013 Coll., as amended, does not have to
conflict between the design and the content of Petite, as indicated above in relation
to the contested section 3a of the Act on salaries.
13. in section 3, paragraph 3. 3 of the law on salary, however, is included in the base salary
calendar year in General, without fixation for specific periods. The provisions of § 3
paragraph. 3 of the law on salary is so in the present case the General provisions in the
relation to § 3a of the Act on salaries, which top-cited paragraph 1 shall, for
the calculation of the applicant's salary for January 2015 applies instead of article 3 paragraph 2. 3 of the law
about salary, as the provisions of the special (this is the method of lex specialis
derogat legi generali). Therefore, the Constitutional Court concluded that the district
Court of Prague 7 in relation to the contested part of the provisions of § 3 para. 3
the Act on salaries is not an eligible claimant, and not as in this section
his proposal met the conditions of its locus standi in proceedings relating to
control standards.
III.
Representation of the parties
14. The Chamber of deputies of the Parliament of the Czech Republic (hereinafter referred to as
"Chamber of Deputies") is expressed to the proposal on 9 April. 10.2015. In
representation of the Chamber of Deputies, signed by its Chairman John Hamáčkem
It is stated that the existing wording of paragraph 3a was the law on salary
inserted by Act No. 359/2014 Coll., the Government presented a Draft of this law
The Czech Republic (hereinafter referred to as the Government, ") the Chamber of Deputies on 1 May 2004.
August 2014 and was circulated to members as the house printing 277. First reading
House of printing has started 277 on 7 December. November 2014 to 19. a meeting of the
The Chamber of Deputies, where it has been discussing the proposal lost. The Chamber
the Chamber of deputies to the first reading of the draft law returned on 14 June 2005. 11.2014 at
its 22. the meeting, where he was commanded by the proposal for consideration to the budgetary
the Committee, the legal Committee, the Constitutional Committee for public administration, and
regional development and the Committee on social policy. Constitutionally the legal Committee
and the Committee on public administration and regional development, the Bill
neprojednaly. The Committee discussed the Bill on 24. 11.2014
and issued a resolution, which was sent out to members as house print
277/1 (a comprehensive amendment). The Committee for social policy proposal
the law discussed on 28. 11.2014 and issued a resolution, which was
sent out to members as house print 277/2 (comprehensive amendment
the proposal).
15. The second reading of the Bill took place on 2. 12.2014, when the proposal
the law has gone through both General and detailed debate and the time allowed for
the third reading was changed to 48 hours after delivery of the amendments
where appropriate, the other proposals (resolution No. 526). In a detailed
the debate have been tabled, including political groups, which
were then sent out to members on 2 February 2005. 12. as the Assembly print
277/3. In the third reading of the Bill, which took place on 5. 12.2014,
was approved by the Group of the amendment of the President of Chamber of Deputies
Jan Hamáček and since have become nehlasovatelné complex
amendments the Committee on Budgets and the Committee on social policy.
The Chamber of deputies after the final vote agreed with the
the Government's proposal (as amended by the comprehensive amendment of Jan
Hamáček) number of votes for and against 102 5.
16. The Chamber of Deputies referred the day 5. 12. the Bill 2014
(printing of 277) Senate of the Parliament of the Czech Republic (hereinafter referred to as
"The Chamber"), which it has discussed at its meeting on 18 July 2005. 12.2014 and expressed
will the draft Bill does not deal. President of the Republic signed the Act
on 22 November. 12.2014. On 23 December 2005. 12.2014 was approved the law delivered to
the signature of the Prime Minister and in the collection of laws was promulgated on 31 December 2004.
12.2014.
17. In conclusion, the President of the Chamber of Deputies noted that the proposal
the District Court, the contested parts of the law No. 236/1995 Coll. were adopted after
properly carried out by the legislative process, and that the legislature has acted in
the belief that these provisions are in accordance with the Constitution and our
the legal order. It is up to the Constitutional Court, in the context of the examination of the
the proposal to assess the constitutionality of the relevant provisions and the relevant issued
decision.
18. The Senate proposal on 13 June. 10.2015. In its observations the Senate
signed by its Chairman Milan Private States that if it is a
adjustment contained in § 3a of Act No. 236/1995 Coll., this adjustment has not been
in no way prejudice the law No. 11/2013 Coll., as stated by the appellant, but
the current version was adopted until the amendment made by Act No.
Sb 359/2014 was editing, which was in the Chamber of deputies after the
its submission the Government discussed as a printing house, 277, with the
the Government's proposal was for a relatively very difficult discussion in the Chamber of Deputies
comprehensively revised, the House when on 23. meeting held on 5 December. 12.
2014 was adopted by the so-called. a comprehensive amendment presented by Member
Jan Hamáčkem about updating § 3 para. 3 to adjust the level
the base in relation to judges and the new wording § 3a with the adjustment of the progressive
increasing the coefficient over the years 2015 to 2018 in relation to
representatives of State authority.
19. the Bill was after its approval in the Chamber of Deputies on the same day
delivered to the Senate, where he was heard as Senate document No 2 in 10.
term of Office. The Bill was referred to the Committee for
economy, agriculture and transport, which it discussed on its 3.
meeting held on 16. 12.2014, and in its resolution No 23 recommended
The Senate approved the Bill as amended by a transferred by the
the Chamber of Deputies. The Senate Bill has been examined on its 4. meeting on 18 July 2005. 12.
2014. the Rapporteur of the Committee after the performance was based on the procedure under §
107 of Act No. 107/1999 Coll., on rules of procedure of the Senate, filed by Senator
Peter Víchou proposal to the Senate expressed the will of the draft law
dwell, which was justified by the fact that the matter was in the
the previous time, in principle, all told, and also with regard to the need
the adoption of the amendment by the end of 2014. This proposal, which was
also supported by representatives of other Senatorial clubs, was subsequently adopted-
in a vote with a serial number 27 is from the present 66 senátorek and
Senators voted in favor, 52 against 3 for the design of the proposal and 11 delayed them.
Under the given situation when discussing the draft law mentioned at the meeting
The Senate debate was not about the content, it would be possible to State
Alternatively, for more information.
IV.
Observations of the Government of the Czech Republic
20. On 16. 10. The Constitutional Court has received a communication from the 2015 Minister Jiří
Dienstbier, the Government at its meeting on 12 June 2006. 10.2015 design
on your entry to the proceedings instituted before the Constitutional Court under the SP. zn. PL.
TC 14/15, and it adopted a resolution No. 818, which approved his entry
in that proceeding.
21. On 1 May 2004. 12. The Constitutional Court has received expression of 2015 the Government sent
the Minister responsible for labour and Social Affairs Mgr. Michaela Marksovou.
The Government at first the grounds under which should a constitutional
the Court of the District Court for Prague 7 refuse. The first is this
obstruction case decided that procedural reason for
voicing the inadmissibility of this proposal and its refusal. The Government has for the
that, in the case of the proposal is to be considered a barrier to matter
decided to consider the finding of the Constitutional Court of 10 December. 7.2014 SP. zn.
PL. ÚS 28/13 (see above). The second reason for rejecting the present
the proposal is, in the opinion of the Government, the fact that the appellant petit their
the proposal, which the Constitutional Court is bound, so that in fact formulates
requests from the Constitutional Court that has exceeded its constitutionally enshrined
the competence of the "negative" of the legislature and entered into the domain of the legislature
"positive".
22. the Government has also, in the absence of a refusal of the proposal lists
reasons why you should be in this case, the proposal of the Constitutional Court
rejected. The Government is of the opinion that the members of the Supreme Audit Office
constitutionally guaranteed judicial independence does not indicate, including Constitutional
the Court judikovaného of tangible security. The Supreme Audit Office, on
Unlike the courts, the rights and obligations of natural and
legal persons (except for decisions on objections to the inspection
Protocol and deciding on the imposition of a fine). The result of the checks
The Supreme Audit is merely monitoring the conclusion. In comparison with the
The Supreme Audit Office are therefore specific powers of the courts and
unique.
23. According to the Government, the argument of the plaintiff moves in a circle in the
meaning that from the comparison of certain-already allocated by the legislature-
the same guarantees of independence on the part of the members of the Supreme Audit
the Office of the rapporteur considers the need for judges and the interpretation of the Constitution to infer
guarantees for more (in this case, the same amount of salary base). If
However, members of the Supreme Audit Office, the Constitution does not confer judicial
the character, he probably would have any conclusion about the need for the same range of warranties
independence of the Supreme Audit Office and judges clearly above the
the framework of the Constitution.
24. Furthermore, in the opinion of the Government, the law was conceived and received the salary,
even in matters of remuneration for the performance of functions expressed by the equality of all three
of State power. Therefore, a uniform salary base was established, with the
the importance, complexity and responsibilities of the individual features are
employment salary coefficients to be expressed. The judges of the ordinary courts were to
the basic scheme of the law on salary expenditures and added are also
foreign element in this system, in particular for an extraordinary constitutional
protection performance, repeatedly declared by the Constitutional Court, which
None of the listed representatives of the State can not enjoy. This was also the
the reason for the establishment of a special, higher base pay only for judges,
and regardless of the economic situation of the State and the eventual need for
austerity measures. Therefore, the salaries of judges, of course, realistically move
high above the salaries of officials. With the fixing of the same base pay
for the members of the Supreme Audit Office and for judges in principle cannot be
agree, as it is not yet a unified system for the remuneration of the representatives of the
rozmělnil and the law on salary would be absolutely lost its internal logic.
25. In conclusion, his Government proposed that representation of the Constitutional Court
The District Court for Prague 7 refused, or in its entirety.
In the.
The Ombudsman's position on the proposal for
26. in accordance with the provisions of § 69 para. 2 and 3 of the law on the Constitutional Court
draw the attention of non-16. 9.2015 public protector of Constitutional Court
rights on the ongoing proceedings, noting the period within which may
control to enter as the intervener and, where appropriate, also to the design of
Express. The Ombudsman of non-29. 9.2015 announced
The Constitutional Court without further representation, that their right to access to the
control does not use the.
Vi.
Expression of the Supreme Audit Office
27. the District Court of Prague 7 to your proposal, joined as an attachment
also the observations of the Supreme Audit Office of 13 September. 5.2015 sp.
Zn. 121/15-NKU45/81/15 that the Supreme Audit Office handed the circuit
the Court of Prague 7 as a defendant in the case conducted under the SP. zn.
29 (C) 81/2015. Cited by the representation of the Supreme Audit Office without
the Constitutional Court also received a request from a lawyer representing the Highest
the EFTA surveillance authority in the case conducted under the SP. zn. 29 (C) 81/2015.
28. In the above representation of the Supreme Audit Office, signed by its
President Ing. Miloslav Kalou, is, among other things, that the constitutional
the Court in the award of 10 June 1999. 7.2014 SP. zn. PL. ÚS 28/13 on the one hand set
the parameters for which you might be able to go to adjust salaries, and
on the validity of the contested provision set aside just for a particular group
people, therefore, judge. In this, his conclusions to justify in particular the
regard to the constitutional requirement of independence of courts and judges. In conformity with the
the plaintiff has the Supreme Audit Office considers that such reasoning is
useful and significant in relation to the constitutionally enshrined independence
The Supreme Audit institution and its leaders. If the decision of the constitutional
the Court in the abovementioned findings in relation to the judges, as decided, he founded
This space for bringing actions in relation to other State
power, whose salaries and other formalities connected with the performance of their functions
regulates Act No. 236/1995 Coll., as amended, and in particular
then in relation to officials of the Supreme Audit Office, whose
independence is also enshrined in the Constitution.
29. The Supreme Audit Office is convinced that action (in case
held with the District Court for Prague 7 under SP. zn. 29 C 81/2015) cannot be
oppose mainly due to the fact that the finding of the Constitutional Court of 10 December.
7.2014 SP. zn. PL. ÚS 28/13 is inherently based on the fact that
the need to maintain three times the average nominal monthly wage
individuals in the noncommercial realm raises the constitutionally enshrined
the requirement of independence of courts and judges. This essence must therefore apply
for the Supreme Audit Office and its representative, as also in relation to
them the Constitution raises exactly the same request to their independence. Cannot be
thus pointing out the formal differences in the outputs of the courts and of the Supreme
Audit Office, for example, in the fact that the courts in the individual
matter, while the outputs of the Supreme Audit Office
consist in the adoption of inspection conclusions which are the basis for the
other institutions of State power.
VII.
The abandonment of an oral hearing
30. After the above rekapitulovaném the course of proceedings, the Constitutional Court decided to
the conclusion that there is no need to hold an oral hearing in the matter, as it did not bring
For more or better and clearer clarification of things than how she
in particular from the written acts of the claimant, the participants and the adjacent
party to the proceedings. Having regard to the wording of section 44 of the Act on the Constitutional Court
the Constitutional Court ruled without holding an oral hearing.
VIII.
The constitutional conformity of the legislative process
31. The Constitutional Court, in accordance with the provisions of § 68 para. 2 of law No.
182/1993 Coll., on the Constitutional Court, as amended by Act No. 48/2002 Coll.,
next steps first dealt with the question of whether the unconstitutionality of a law,
the provision is raised, has been accepted and published within the limits of the Constitution
set out competences and constitutionally prescribed way.
32. How the Constitutional Court found from competent Council prints, data on
during the vote, and the observations of the houses of Parliament, the draft law No.
359/2014 Coll., the Chamber of Deputies duly approved at its meeting held
on 5 July 2004. 12.2014 (order No. 543). The Senate at its meeting held after the date of
18.12. 2014 expressed the will of the draft law does not deal (resolution No.
64) President of the Republic a Bill signed on 22 November. 12.2014. After
the signature of the Prime Minister has been promulgated in the collection of laws in the amount
Sb 143 under the number 359/2014.
33. The Act was therefore accepted and issued within the limits of the Constitution laid down
competency and constitutionally prescribed way.
IX.
The diction of the contested provisions
34. the contested provisions of the law on salary:
' section 3a
Salary base leaders in 2015-2018
(1) from 1. January 2015 to 31. on 31 December 2015 shall be the salary base for
representative 2, 25 times the average nominal monthly wage physical
people in the non-business sector, according to figures obtained by the Czech
the Statistical Office for the past calendar year. "
X.
Legal assessment of the Constitutional Court
35. the proposal is, as regards the alleged unconstitutionality of the content of the contested
provisions nedůvodný.
36. The essence of the argument of the design of the circuit court for Prague 7 is that
conclusions reached by the Constitutional Court in finding SP. zn. PL. ÚS 28/13 of 10 June 1999.
7.2014 (N 137/74 SbNU 93; 161/2014) on the salary restrictions
against the judges turn out to also pay restrictions on the members of the
The Supreme Audit Office.
37. In the introduction of considerations the Constitutional Court it is necessary to point out that the highest
the EFTA surveillance authority does not exercise judicial power, and therefore are the application options
earlier findings of the Constitutional Court only and only related to the
the Court severely limited. If the projector in its line of argument
refers to the previous conclusions of the Constitutional Court in relation to the question
the (in) admissibility of the pay restrictions on the part of the judges, does not consider
The Constitutional Court, that some similar features of independence in the performance of functions
the members of the Supreme Audit Office, represented a basis souměřitelnému
the status of judges, as will be explained further [cf. find SP. zn. PL.
TC 17/10 of 28 June. 6.2011 (N 123/61 SbNU 767; 232/2011)].
38. The conclusions contained in the derogačním finding SP. zn. PL. ÚS 28/13 are based on
from the confined space, that has layout of the legislature in the field of
the pay restrictions for judges. The legislature that limit lies in the fact
that the intervention of the legislature in the field of material ensuring of judges (in other
words, level restrictions) are to be classified within the framework of the protected
the principle of their independence guaranteed by article. paragraph 82. 1 of the Constitution. Otherwise,
told by finding SP. zn. PL. ÚS 28/13, of which the appellant is in the
now the present case alleges was carried out by the law, pay restrictions
No. 11/2013 Coll., the violation of the article. paragraph 82. 1 of the Constitution, and therefore constitutionally
undue interference in the independence of the judiciary. The petitioner in this
the context argues that the pay restrictions made by law No. 359/2014
SB is a similar breach of article. ". paragraph 97. 1 of the Constitution, which guarantees the
the independence of the Supreme Audit Office.
39. in the light of the above, therefore, the Constitutional Court shall be deemed to
assessment of the present case, the relevant comparison
the independence of judges and the independence of the Supreme Audit Office and its
members.
X.)
The nature of the independence of judges according to the article. paragraph 82. 1 of the Constitution
40. The provisions of article. paragraph 82. 1 of the Constitution provides that judges shall in the exercise of
its functions independent and nobody may jeopardize their impartiality. This
the independence of judges is guaranteed in addition to the persistence of a judge (article 93
paragraph. 1 of the Constitution), its fundamental finality and nepřeložitelnosti (article.
paragraph 82. 2 of the Constitution), the incompatibility of the exercise the function of judge with other
functions (article 82, paragraph 3, of the Constitution) also its material security.
Under section 75 para. 1 of the law No. 6/2002 Coll., on courts, judges,
lay judges and the State administration of courts and amending some other acts
(law on courts and judges), the State ensures the independence of the judges also
their material organisation. Just through the latter components
the independence of judges can be classified as pertaining to salary restrictions the legislature into the framework
protected by the principle of the independence of judges.
41. The personal independence of judges, including their component
the material security, guaranteed by article. paragraph 82. 1 of the Constitution is to be
distinguished from the institutional independence of the judiciary guaranteed by article. 81
The Constitution, which provides that the judicial power exercised on behalf of the Republic of
independent courts. While the institutional independence of the courts is
to their independence in relation to other folders (principle of power
separation of powers), the personal independence of judges is their psychological (a conscious
and ignorant) status as a body whose jurisdiction consists primarily of
the decision-making activities. While the independence of the Court, which can be used in this
respect to mark independence with objective, and the independence of the judge, which
independence can be described as subjective, are related and are in a relationship
mutual cross-compliance. This is not, however, the concepts are identical and their
the distinction is not without importance.
42. where should be infringed the principle of the independence of the courts, it is the
the issue of the institutional building of the Court as an institution of the judiciary,
in which the movement of the influence of some of the other two fundamental
power, and thus the balance between them, which is an essential
the principle of the separation of powers enshrined in the article. 2 (2). 1 of the Constitution. On the contrary, if the
should be violated the independence of judges, it would be a violation of the independence of the
own the Court's decision-making activities [cf. find SP. zn. PL. ÚS 60/04 from
28 June 1999. 4.2005 (N 96/37 SbNU 297; 264/2005)].
43. such a distinction the institutional and personal independence is important
even now, as the question under consideration in view of the above, it can be
only by the intervention of the wage restrictions to personal, subjective independence
judges, or to one of its components, rather than by the
the independence of the courts, the independence of the objective.
44. In the light of the above, the key question that must be Constitutional
the Court for the purpose of the assessment of the application to the District Court for Prague 7
answer whether the independence of the Supreme Audit Office guaranteed
article. paragraph 97. the Constitution also includes the personal independence of the members of
The Supreme Audit Office, or "merely" on the guarantee of the independence of the
the institutional framework in which the legislator's salary restrictions, with
view of the above, are not covered.
X b)
The nature of the independence of the Supreme Audit Office according to art. 97
paragraph. 1 of the Constitution
45. the Existence of the Supreme Audit is stationed in the Constitution enshrined in
a separate title fifth separately from the classic three components of State authority, and
not even a body of judicial power. Supreme Audit Office at the same time is not
the bearer of a separate folder of State power, and, therefore, does not take the system
authorities with the authorities of the power of legislative, Executive and judicial
a comparable position. Referred to the structure of the Constitution corresponds to the
Supreme Audit Office should be independent of the other institutions of the State
power (see Gerloch, a., Trizna, j. on the position of the Supreme Audit
authority in the system of State authorities and a change in its fields of competence. Administrative
the right. Prague: Ministry of the Interior, 2014, no 5, p. 281).
46. in accordance with this article. paragraph 97. 1 of the Constitution provides that the Supreme
the EFTA Surveillance Authority is an independent body. The Supreme inspection also maintains this
constitutionally guaranteed independence of both the power of legislative (Parliament),
and the Executive (the Government and other Executive vykonavatelích)
eliminate political influences on his work [constitutional
of the Court of 25 June. 1.2011 SP. zn. PL. ÚS 15/10 (N 6/60 SbNU 51; 39/2011
SB.)]. Supreme Audit Office fulfils its function independently, without
There is authority to the Supreme Audit Office had
parent permission to issue binding guidelines (Pouperová, in
The control mechanisms for the functioning of the public administration. Olomouc: BWA Wroclaw, 2009,
p. 199).
47. this constitutional modification of the independence of the Supreme Audit Office
represents the institutional guarantee its existence, indicating conservation
independent review of the Supreme Audit Office, not only from the Executive,
but also by the legislature (Filip, j., Bahýfová, l., Molek, p., Podhrázký,
M., Suchánek, r., Prince, v., Vyhnánek, l., Constitution of the Czech Republic.
Comment. Prague, 2010, p. 1327). The object of the guarantee of article. paragraph 97. 1 of the Constitution
It is therefore the Supreme Audit Office as a whole, its organizational and
institutional anchoring in relation to other arms of the public authority.
48. The guarantee of such independence for Supreme Audit institutions
("Supreme Audit Institution") is required in its preamble also Limská
the Declaration of principles of the directives of the audit (Lima Declaration of Guidelines
on Auditing Precepts) adopted in 1977, the ninth Congress of the international
organisation of supreme audit institutions (INTOSAI), among whose members
include most European countries, including the United States.
49. According to the Constitutional Court can thus make the interim conclusion that article. paragraph 97.
1 of the Constitution guarantees the institutional independence of the Supreme Audit
of the Office in relation to other folders (System power or also
external organizational independence) Similarly, as does article. 81 of the Constitution in
relation to the courts. But this is not a guarantee of the personal independence of the members of the
The Supreme Audit Office, which would have been similar to guarantee personal
the independence of judges according to the article. paragraph 82. 1 of the Constitution. The Constitution thus members
The Supreme Audit Office personal or judicial independence
does not guarantee, and that unlike the German Constitution (Basic
of the Act), that the members of the Federal Court of Auditors (Bundesrechnungshof)
judicial independence (richterliche Unabhängigkeit-article 97 of the German
The basic law explicitly guarantees in article). paragraph 114. 2.
50. the status of supreme audit institutions, as well as their
the powers of the individual European States differ in the following
the structure of the legal system of the State and historical development of its
audit institutions (see Toronto, m., Kavěna, m., comparative studies
No 1,206. The responsibility of the supreme audit institutions to the parliaments of the
in selected countries of the European Union and the comparison with the Czech Republic.
Parliamentary Institute. The Chamber of deputies of the Parliament of the United Kingdom,
2011, p. 3). If a Czech ústavodárce did not give the members of the Supreme
surveillance authority no constitutional guarantee of their personal independence,
or has not granted them judicial independence, to a certain extent it corresponds to the
the nature of the activities of the Supreme Audit Office as an institution nesoudního
a type that does not have the přikazovací permission, and that unlike the highest
audit institutions of the so-called. the French type, which
a characteristic feature, however, is judicial review, respectively.
decision making in the form of a judicial decision (finding) of the
the submitted financial statements (e.g. the decision of the French Cour
des comptes are directly enforceable-cf. URwww.ccomptes.fr).
51. The Supreme Audit Office or found misconduct in the handling of
public means "only" notes is not, however, entitled to their
publicly without any inkling of order or remedy such misconduct penalties.
The result of the inspection activities of the Supreme Audit Office are
the audit findings, which impose any obligations, but they have
the nature of the signal and warning, respectively, recommending, or, just
informative. The audit findings of the Supreme Audit Office can be
subsequently used as a basis for the decision-making activity of another authority
public authorities as one of the means of proof (cf. judgment of the
The Supreme Administrative Court of 5 November. 6.2008, SP. zn. 9 Aps 3/2008)
However, the Supreme Audit Office is not authorized such a procedure on the basis
their action (following the inspection). How
the Constitutional Court said in its resolution of 16 December 2004. 1.2001, SP. zn.
II. TC 451/2000 (available at http://nalus.usoud.cz), Supreme Audit
the authority does not have the Executive. the jurisdictions; performs only
the function of the control that is entitled and obliged to the results of
controls expose, and so to notify the competent authorities of the State power on
the deficiencies found during the inspection. However, it does not have permission to save penalties
(apart from the penalties for violations of procedural legislation) or
Elimination of deficiencies. The conclusions of the SAO are becoming merely an incentive, or
the basis for the other institutions of State power. "
52. The applicant in regard to that Act 166/1993 Coll., on
Supreme Audit Office, as amended, provides for the
members of the Supreme Audit Office some safeguards personal independence,
similar to those that belong to the judges, for example. incompatibility with some
features (section 12 (7)), constraints, other gainful activities (§ 12 para. 8)
or conditions of early termination function (§ 12 para. 9). These law
set out the elements of the personal independence of the members of the Supreme Audit Office
respect the institutional independence of the Supreme Audit
the Office guaranteed article. paragraph 97. 1 of the Constitution, constitutionally enshrined respectively.
System independence of the Supreme Audit Office.
Does not establish, however, the members of the Supreme Audit Office the position of identical
with the status of judges, and they do not confer judicial independence, so
her claimant.
53. like the conclusion of the Constitutional Court has already made in connection with the question
the pay restrictions against prosecutors, where, despite the reunion
some of the legal guarantees of their independence, comparable to those
that belong to the judges (assumptions and the way of developing features, limitations
cross-dock opportunities, exhaustively defined grounds of termination of, edit
the disciplinary proceedings, the inability to engage in any gainful activity, etc.),
the Constitutional Court has come to the conclusion that prosecutors does not indicate a constitutionally
guaranteed the independence of the judicial [find SP. zn. PL. ÚS 17/10 of the day
28.6. 2011 (N 123/61 SbNU 767; 232/2011)], from which the restriction is
the pay restrictions dovozováno. The above comparison is possible, moreover,
added that while prosecutors decide whether they are fulfilled
the conditions for the initiation of criminal prosecution, are responsible for his legal
progress and (co-) defence of human rights, deciding about
brought against the decision of the police or prosecutors
at a later stage, consider whether there are grounds for filing an indictment or
not, and are the sole plaintiff in the criminal proceedings as a party
in proceedings before the Court have the right to submit legal remedies
decisions, and therefore, they even have a very similar guarantees
independence as judges (see § 12e, section 18, paragraph 2, § 19, 24, and 31 of the Act
No. 283/1993 Coll., on the public prosecutor's Office, as amended
regulations, and to do so in more detail eg. Norman f j. Public action, part I.
The Ministry of Justice of the CZECH REPUBLIC, 2001, vol. 62, pp. 149-158), the members of the
The Supreme Audit Office in their area of competence, or such
privileges, obligations and guarantees, as stated above, do not have.
54. of course, it cannot be excluded that the future legislature will extend
the powers of the Supreme Audit Office as well as the permissions in a similar way
initiate the remedy any identified deficiencies, within the meaning of article recommendations. 11
paragraph. 2 in the Lima Declaration, according to which if the audit findings of the highest
audit institutions do not have the form of a legally binding and enforceable
judgments, the supreme audit institutions shall be entitled to apply to the
the authority, which is responsible for taking the necessary measures, and should,
a party consisting of accounts has taken its responsibility. To be further
exclude that in the future, following the activities of the international
Organization of supreme audit institutions, gradually occur even to such
changes in the legal and constitutional adjustments, which members of the Supreme Audit
the Office will build into a comparable position, to the judges. For
the current state of the members of the Supreme Audit Office, however, such
position do not have.
55. The Constitutional Court does not question the importance of this in any way existing
independence of the Supreme Audit institution in the performance of their
activities, arising from the specific mission of the Supreme Audit
authority as defined in article 2(1). paragraph 97. 1 of the Constitution, or the specific objectives it
carried out by the audit, which is the proper and effective use of public
resources and the development of sound financial management (cf. the preamble in the Lima
the Declaration). In connection with the above, therefore, from both the Constitution and the law
on the Supreme Audit Office follows the requirement of an independent and impartial
performance of the duties of the members of the Supreme Audit Office, or objectivity
control activities and its findings, which are necessary for it to
the resources of the State were not used by the neúčelně and wasteful our behaviour and the
threatened stability and development of a democratic State.
56. However, the status of judges on the one hand, and of members of the Supreme
on the other hand, authority is given to the constitutionally guaranteed
the independence of the judges of the different, which implies a different and narrower, respectively.
the layout area for the legislature to pay restrictions against judges
compared to the layout area to such restrictions apply to members of
The Supreme Audit Office [cf. award of 16 April 2003. 1.2007, SP. zn.
PL. ÚS 55/05 (N 9/44 SbNU 103; 65/2007)].
57. In other words, unless the members of the Supreme Audit Office
constitutionally guaranteed personal independence comparable to independence
may not be cited, or those warranties that this judicial
secure the independence, including the Constitutional Court, the relative judikované
the immutability of the basic position. Although the members of the Supreme Audit
the Office of the legislature some guarantee of independence similar to those
that also belongs to the judges, it cannot be inferred in that, a fortiori, the need for
the interpretation of the Constitution guarantees the independence of the existence of other common (now
emoluments). If the members of the Supreme Audit Office
The Constitution does not guarantee the personal independence, the possible conclusion went on the need for
the same range of guarantees of their independence and a constitutionally enshrined
judicial independence clearly beyond the scope of the Constitution (cf. find SP. zn.
PL. ÚS 17/10).
XI.
The conclusion of the
58. A key constitutional value, which the Constitutional Court in its finding of sp.
Zn. PL. ÚS 28/13 (see above), but also in the preceding case law to
the restrictions on the pay of judges [in particular, SP. zn. PL. ÚS 33/03 from
on 20 April. 10.2004 (N 151/35 SbNU 109; 584/2004), pl. ÚS 13/99 of the day
15.9. 1999 (N 125/15 SbNU 191; 233/1999), pl. ÚS 18/99 of 3 June.
7.2000 (N 104/19 SbNU 3; 320/2000), pl. ÚS 16/2000 of 3 June. 7.
2000 (N 105/19 SbNU 23; 321/2000), pl. ÚS 11/02 of 11 March. 6.2003
(N 87/30 SbNU 309; 198/2003), pl. ÚS 34/04 of 14 June. 7.2005 (N
138/38 SbNU 31; 355/2005 Coll.), pl. ÚS 43/04 of 14 June. 7.2005 (N
139/38 SbNU 59; 354/2005 Coll.), pl. ÚS 9/05 of 14 June. 7.2005 (N 140/38
SbNU 81; 356/2005 Coll.), pl. ÚS 55/05 (see above); PL. ÚS 13/08 on 2 December.
3.2010 (N 36/56 SbNU 405; 104/2010), pl. ÚS 12/10 of 7 November. 9.
2010 (N 188/58 SbNU 663; 269/2010)] defended, was in the Constitution explicitly
formulated judicial independence as a value that fully
specifically conflict with interventions in the emoluments of the judges. However,
explained above, the position of the members of the Supreme Audit Office is not what
in the framework of a defined the principle of judicial independence, comparable to the
status of judges. The Constitutional Court in the above case law repeatedly
pointed out that the remuneration policies in different organs of public authority
are uneven, but deleting this disproportion is in the hands of
the legislature.
59. The consequence of that is the conclusion that the existing case law of the constitutional
Tribunal, including finding SP. zn. PL. ÚS 28/13, does not contain such an interpretation
the constitutional order, which would be the members of the Supreme Audit Office
provided in the pay issues as equivalent to the independence
the judicial office.
60. the Constitutional Court concluded that the adjustment of salaries of members of the Supreme
the inspection authority is not a constitutional guarantee of independence to
The Supreme Audit Office according to art. paragraph 97. 1 of the Constitution. Even with the
taking into account the approach outlined above, the role of the members of the Supreme Audit Office and
the current status of the Supreme Audit Office within the structure of
the State authorities, the Constitutional Court did not find that the contested provision
the Act constitute a violation of the constitutional order authorizing the constitutional
the Court to use the derogatory jurisdiction.
61. On the basis of the reasons set out in parts X a) and (b)), the Constitutional Court
Therefore, the design of the circuit court for Prague 7 on abolition of the provisions of § 3a
paragraph. 1 of the law on salary, with regard to the members of the Supreme Audit
the Authority rejected (article 70, paragraph 2, of Act No. 182/1993 Coll., on the Constitutional Court),
with respect to the President and Vice-President of the Supreme Audit
the Office was a proposal to repeal § 3a paragraph 2. 1 of the law on salary is rejected as
This person clearly ineligible. In the section that asks you to give the
the unconstitutionality of the provisions of § 3 paragraph 1 section. 3 and § 3a paragraph 2. 2, 3 and 4,
If they relate to the President, Vice-President and members of the Supreme
Audit Office, was a proposal from the District Court for Prague 7 rejected from
due to lack of evidence of the applicant's active process [§ 43 para.
1 (b). (c)) in conjunction with the provisions of § 43 para. 2 (a). (b)) of the
The Constitutional Court].
The President of the Constitutional Court:
JUDr. Rychetský in r.
