In The Matter Of The Application For Revocation Of Section 3 (3). 4 Of Law No. 236/1995 Sb.

Original Language Title: ve věci návrhu na zrušení části § 3 odst. 4 zákona č. 236/1995 Sb.

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=71785&nr=269~2F2010~20Sb.&ft=txt

269/2010 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided on 7 December. September 2010 in the plenary, consisting of the President of the Court

Pavel Rychetský and Stanislav ass-bag (the judge rapporteur),

František Duchoně, Vlasta Formánkové, Vojena Güttlera, Paul

Holländera, Ivana Janů, Vladimir Crust, Dagmar Lastovecké, Jiří

Mucha, Jan Musil, Jiří Nykodýma, Miloslava Excellent, Elizabeth

Wagnerové and Michaela Židlické on the design of the municipal court in Brno, for which

This is JUDr. Ivan D C, on abolition of the provisions of section 3 (3). 4 of law No.

236/1995 Coll., on salary and other terms associated with the performance of

functions of the representatives of State power and some State authorities and judges and

members of the European Parliament, in the wording of Act No. 418/2009 Coll., if

relates to the judge, and the first part of article I of law No. 418/2009 Coll., if

concerns of the judge, with the participation of the Chamber of deputies of the Parliament of the Czech Republic and

Senate of the Parliament of the Czech Republic as parties to proceedings



as follows:



The provisions of section 3 (3). 4 of law No. 236/1995 Coll., on salary and other

terms related to the performance of functions of the representatives of the State power and

some State authorities and judges and members of the European Parliament, in

the text of Act No. 418/2009 Coll., concerning a judge, shall be abolished on the date of 30 June.

September 2010.



Justification



(I).



Recap of the proposal



1. The Constitutional Court was on 5 December. March 25, 2010 delivered a draft municipal court

in Brno on the repeal of section 3 (3) ". 4 of law No. 236/1995 Coll., as amended by law

No 418/2009 Coll., concerning the judge, part of the first article I of law No.

418/2009 Coll., amending Act No 236/1995 Coll., on salary and other

terms related to the performance of functions of the representatives of the State power and

some State authorities and judges and members of the European Parliament, in

as amended, and Act No. 201/1997 Coll., on salary and some

other aspects of the prosecutors and amending and supplementing Act No.

143/1992 Coll., on salary and remuneration for stand-by duty in budgetary and

in certain other organisations and bodies, as amended

the rules, if a judge is concerned. ". With this proposal and the proposal was linked to the

decision on the application of priority under section 39 of the Act No. 182/1993 Coll., on the

The Constitutional Court, as amended by Act No. 48/2002 Coll.



2. the applicant stated that before him under SP. zn. 33 C 18/2010

discusses the action, which the judge of the municipal court in Brno, seeks to

Czech Republic-Municipal Court, in payment of the amount of CZK 2 596. After

legally, it is entitled to a salary within the meaning of section 28 to 31 of law No.

236/1995 Coll., on salary and other terms associated with the performance of

functions of the representatives of State power and some State authorities and judges and

members of the European Parliament, as amended, (hereinafter also

"law no 236/1995 Sb.). The statement of the claim are such that for January

2010 was not paid full salary, on what would have been entitled but for the reduction

the provisions of section carried out salary the first article I of law No. 418/2009

Coll. Infected provisions was that the amount of the salary of a judge in the period

from the 1. 1. by 31 December 2010. 12.2010 amounts to 96% of the salary pursuant to the Act No 236/1995

And according to the article. XLVIII of the Act No. 261/2007 Coll., on stabilisation of public

budgets. As a result, the salary of the judge has been reduced for

the year 2010 about 4%. In addressing the matter, therefore, when hearing a dispute referred to

in article I of the proposal, the applicant in accordance with article. paragraph 95. 2

The Constitution of the Czech Republic (hereinafter referred to as "the Constitution") to the conclusion that the provisions of the

referred to in the proposed small print, which ultimately lead to the

pay cut from 1. 1. by 31 December 2010. 12.2010, and to be in the solution

This dispute is used, are in breach of article. 1 (1). 1 in conjunction with article.

paragraph 82. 1 of the Constitution, where appropriate, with article. 2 (2). 1 and with article. 1 of the Charter

fundamental rights and freedoms. The applicant therefore lodged under the provisions of section 64

paragraph. 3 the law on the Constitutional Court, as amended, (hereinafter the

"the law on the Constitutional Court") proposal for the annulment of the contested

the provisions.



3. The claimant in the first place, the proposal has raised objections on defects

the legislative process, set out the general constitutional argument,

a constitutional argument for a specific assessment of the case, set out

economic arguments and described the development of the pay restrictions against

the judges.



4. The appellant argued that the assumptions are not fulfilled for publication

State of legislative emergency the Chairman of Chamber of Deputies referred to in § 99

Act No. 90/1995 Coll., on rules of procedure of the Chamber of Deputies, in the text of the

amended, (hereinafter referred to as the "rules of procedure"). He described the procedure that

preceded by a declaration of a State of legislative emergency and paraphrased content

resolution of the Government of the Czech Republic from 21 October. 9.2009 No 1 231, decision

President of the Chamber of Deputies No. 58 of 21 June. 9.2009 and explanatory content

reports to the law, which was adopted under Act No. 418/2009 Coll. Deduced-

Apart from the Government and the President of the Chamber of deputies that ended State-

the threat of significant economic damage to the State according to § 99 paragraph. 1 of the rules of procedure,

for which reasons specifically to withstand economic, in that "standby

the amount represents 0.008% of the expenditure of the State budget ", and therefore, according to its

the opinion in this case was the Declaration of a State of legislative emergency abuse

to bypass the ordinary legislative process, since the estimated savings

expenditure in the State budget in a relatively small volume could not fulfill

the premise of the "značnosti" of the impending economic damage.



5. In the context of the general constitutional argument the appellant recalled

the previous case law of the Constitutional Court concerning the restrictions on the salaries of the

the judges, in particular decision SP. zn. PL. ÚS 13/99 of 15 December 1999. 9.1999 (N

125/15 SbNU 191; 233/1999 Coll. ^ *), pl. ÚS 18/99 of 3 February. 7.2000 (N

104/19 SbNU 3; 320/2000 Coll.), pl. ÚS 16/2000 of 3 February 2000. 7.2000 (N

105/19 SbNU 23; 321/2000 Coll.), pl. TC 11/02 of 11 March. 6.2003 (N 87/30

SbNU 309; 198/2003 Coll.), pl. ÚS 9/05 of 14 June. 7.2005 (N 140/38 SbNU

81; 356/2005 Coll.), pl. TC 34/04 of 14 June. 7.2005 (N 138/38 SbNU 31;

355/2005 Coll.), pl. TC 43/04 of 14 June. 7.2005 (N 139/38 SbNU 59;

354/2005 Coll.), as well as in his view, the essential legal sentences in these

findings made.



6. the applicant in the context of constitutional reasoning laid for a specific

the assessment of the case, in particular, stressed that compared with the original intent of the

the petitioner contested the law for other persons whose salaries are

paid from public sources, to avoid any reduction in salary, thereby

It is a condition that only a group of people whose salaries are paid from the

the State budget, in which reducing the salary of 1. January 2010,

are constitutional officials referred to in law no 236/1995 Coll. and State

the representatives. Reduction of salary for this limited group of people grossly violates the

the principle of proportionality, which is particularly significant in relation to the

the judges, apart from further financial savings in expenditure

the State budget is negligible in this situation. Reduction of salary

judges 4% to the year 2010, when was this reduction affected

only a very limited group of people, stray from the framework of exceptional and completely

exceptional measures taken to address the difficult situation of the State. To

emoluments of the judges of the legislator intervenes by turning the so-called. other

salary since 1997, to freezing the growth of salaries regularly accesses

Since 2002. Such measures lose their character of uniqueness and

the emergency, which is highlighted by the Constitutional Court as legitimate in

connection with the solution of the consequences of incidents.

extensive flooding in 2002. In the opinion of the appellant, there occurred

such exceptional circumstances that would justify the intervention of the grade

the ratios of the judges. Finally, the appellant recounted the development of freezing

the salaries of the judges since 2002 and that have already begun the legislative

the process of having the objective of level restrictions against judges from 2011 to the

the future.



7. In the framework of the economic argument, the appellant stressed that the adjustment

the same ratios of unequal occupational categories is clearly interference

the illegitimate. The appellant stated that the salary increases for judges only

conditions that will increase the average nominal monthly wage of physical

people in the non-formal sector, according to data published by the Czech

the Statistical Office for the year before the calendar year. In other words, if the

There is no increase of the average nominal wages in non-business sphere

There can be neither to the indexation of salaries in accordance with Act No 236/1995 Sb.

It follows that the remuneration of judges is not in any economic

vacuum, but that these salaries are directly linked to the development of

the average wages in the non-business sector, in other words, in the realm of

the staff largely paid from public sources. Application

indexation principle pursuant to Act No 236/1995 Coll. can therefore occur only

then, if there is an increase in the average wages of non-business sphere.

Such an increase in the average wage has, however, in their hands from crucial

part of the legislature.



8. the applicant then concluded that, given the above came to the

the conclusion that the provisions referred to in the proposed small print to be in
dispute resolution used, are in breach of article. 1 (1). 1 in conjunction with article.

paragraph 82. 1 of the Constitution, where appropriate, with article. 2 (2). 1 and with article. 1 of the Charter

fundamental rights and freedoms.



9. the Submission received at the Constitutional Court on 18 July 2005. August 2010 projector yet

supplement its arguments on the claim that the intervention of the legislature made

the contested legislation is the userland and leads to the violation of the principle of

equality and proportionality.



II.



The progress of the proceedings and a recap of the representation of the parties



10. in accordance with section 69 of the Act on the Constitutional Court called on the Constitutional Court

Chamber of deputies of the Parliament of the Czech Republic (hereinafter referred to as "the House

the Chamber of Deputies ") and Senate of the Parliament of the Czech Republic (hereinafter referred to as the" Senate "), to

to the proposal.



11. The Chamber of Deputies, through its President, Ing. Miloslava

Go said that the Bill eventually adopted under the number 418/2009

The SB was submitted to the Chamber of Deputies the Government 21. as of September 2009

House print 920. At the same time, the Prime Minister suggested that the President of the

The Chamber of Deputies declared in accordance with § 99 paragraph. 1 rules of procedure

State of legislative emergency to discuss the draft of the Act because of the

in exceptional circumstances, when the State is threatening substantial economic damage, and to

According to the provisions of § 99 paragraph. 2 rules of procedure presented by the Bill

was discussed in the summary of negotiations within the framework of the declared status

legislative emergency. On the basis of this request, the Chairman of the

the Chamber of Deputies declared decision No 58 of 21 June. September 2009 status

legislative emergency, for the period from 21. September 2009 to 30. September 2009. In

connection with the announcement of the State of legislative emergency the President issued

The Chamber of Deputies decision No. 59 of 21 February. September 2009

decided that printing will be in accordance with section 920, paragraph 99. 2 of the rules of procedure

In summary, the Council ordered the printing of 920 budgetary

Committee to consider opposing him and established a time limit for the submission of

resolution 23. September 2009 within 24 hours. The Committee discussed

House print 920 23 July. September 2009, recommended to the Chamber of Deputies, in order to

it to 25. September 2009 to 16:00 hours discussed that it discussed in

the general debate and neprojednávala any part in the debate.

The Chamber of Deputies according to § 99 paragraph. 4 rules of procedure before discussing

the draft agenda is 63. meeting 5. the electoral period in the voting order No 2

confirmed the duration of a State of legislative emergency to discuss the House of printing

920, when from the 191 MPs present was 182 members, no one

against. Furthermore, the Chamber of Deputies according to § 99 paragraph. 5 of the rules of procedure,

vote sequence No. 8, noted that the House of the press continue to be 920

the conditions exist for the discussion of the Government's draft law summary

the negotiations, when MPs from the 155 was 140 for and 1 against. From

the expression of opinion, that is served in the Chamber of Deputies submitted a proposal

the law discussed in State of legislative emergency in compliance with the legal

terms and conditions. The Government submitted to the Assembly print 920 stated that the proposed

the legislation corresponds to the constitutional order and the rule of law in the Czech

of the Republic and is not contrary to international treaties by which the Czech

Republic is bound. The European Union leaves the area of the salaries of the judges of the national

legislation. The Budget Committee recommended to the Chamber of Deputies, in order to

the House approved a 920 without printing the comments. In the second reading of the House

print B. S 920 members and Fox submitted the amendment,

that involved the salaries of judges. In the third reading the House of printing was 920

the draft law approved by 182 votes for, against 2 votes from 188 present

members. The Chamber of Deputies on the draft law still acted on his 64.

the meeting after the Senate Bill returned to the Chamber of Deputies

the amendments, which are unrelated to the contested provisions.

The Chamber of Deputies approved the Bill again in the text which

He was sent to the Senate, 142 votes for, 3 votes against, from 161

present members. The President of the Republic signed the Act 13. November

2009, and the law was promulgated in the collection of laws under no. 418/2009 Sb. In conclusion

It expressed the opinion that the legislature acted in the belief that

the adopted law is in accordance with the Constitution and our legal system. It is on the

The Constitutional Court to assess the constitutionality of the contested provisions and released

the relevant opinion.



12. The Senate through its President MUDr. Přemysl Sobotka said,

that after the approval in the Chamber of Deputies, the Bill was delivered to the Senate

25 June. September 2009, where it was being discussed as the Senate printing No. 173, and it

in parallel with the Senate printing No. 172, which was a proposal for a law

changing some laws in connection with the proposal of the law on the State budget

The Czech Republic for the year 2010. Senate print no. 173 was discussed in two

committees, and in the Committee of the constitutionally-legal, which was the Committee of guarantee,

and in the Committee on economy, agriculture and transport. Observations in detail

Describes the progress of negotiations in committees that in the Committee of the constitutionally-legal

the discussion took place about the salaries of judges, responding to critical dissenting

the opinion of the Judicial Union of the Czech Republic and the request of the representatives of the Judicial

the Union of the Czech Republic in relation to certain members of the Committee, to

exemption from the proposed reduction of the salaries of the judges. To these issues, the

representatives expressed the petitioner, and after the debate to prevail in a constitutionally-

the legal Committee of the majority opinion in this matter was not to edit

all ceded from the Chamber of Deputies and preserve the edit

submitted by the Government, based on the fact that in the context of the urgent

the need for financial savings has a 4% savings funds to

salaries in 2010 for the whole budgetary sphere. Amendments then

It was addressed by the Committee on other matters. The Committee for economy,

Agriculture and transport draft law discussed at its meeting held of the day

October 5, 2009 and in its resolution No. 221 recommended the Senate discussed

to approve the text of the draft Bill in the Chamber of Deputies transferred. The Senate

presented by the draft law discussed at their 12. meeting on 5 December. October 2009 and

After the debate, adopted a resolution No. 290, which returned the Bill

The Chamber of deputies in the text of the adopted amendments, referred to

in the annex; These were amendments that recommend for adoption

constitutionally-legal Committee. For this resolution from the present 65 Senators

voted 65 and no one was against. The Chamber of Deputies then 4. November

2009 remained on its proposal and the law was 27. November 2009 in

The collection of laws under no. 418/2009 Coll., regarding objections of the petitioner

pointing to the fact that allegedly were not fulfilled for publication

State of legislative emergency in which a Bill may be discussed in the

summary, these objections do not concern the discussions in the

The Senate. The Senate, in its observations submits that at the time of consideration of the draft

the law could not assume that happens in the House of representatives to the

disruption of a unifying principle, and this change has already been subsequently could not take in

account. It is concluded that it is fully on the Constitutional Court to assess the constitutionality of

the design of the contested provisions and decided. In the opinion to supplement

the Senate proposal, he pointed out to the precocity of the appellant's argument,

as this is the opinion of the Senate attaches rather to de lege ferenda intentions.



III.



The diction of the contested provisions



13. The contested provisions of section 3 (3). 4 of law No. 236/1995, as amended by law

No 418/2009 Coll., as follows:



"From 1. January to 31. December 2010 is the salary of a Deputy, representative,

the judge and the members of the European Parliament, 96% of the salary pursuant to this Act

and according to the article. XLVIII of the Act No. 261/2007 Coll. ".



The contested article I of the first Act No. 418/2009 Coll., amending

Act No. 237/1995 Coll., on salary and other terms associated with the

the performance of the functions of State power and some of the representatives of State authorities and

judges and members of the European Parliament, in the wording of later regulations,

and Act No. 201/1997 Coll., on salary and some other aspects of the

prosecutors and amending and supplementing Act No. 143/1992 Coll., on salary

and the remuneration of the standby duty in budgetary and certain other

organisations and bodies, as amended, reads as follows:



"In section 3 of the Act No. 237/1995 Coll., on salary and other terms of

associated with the performance of the functions of representatives of State power and some

State authorities and judges and members of the European Parliament, in the text of the

Act No. 425/2002 Coll., Act No. 309/2002 Coll., Act No. 427/2003 Coll.

Law No. 626/2004 Coll. and Act No. 261/2007 Coll., shall be added to paragraph

4, which reads as follows:



"(4) from 1. January to 31. December 2010 is the salary of a Member

Representative, judge and member of the European Parliament by 96% of salary

This Act and according to the article. XLVIII of the Act No. 261/2007 Coll. ".".



IV.



Locus standi of the petitioner



14. According to the article. paragraph 95. 2 of the Constitution, if the Court concluded that the law, which

to be used in solving the case, is in conflict with the constitutional order,

refer the matter to the Constitutional Court. This permission is also instantiated in the section

64 paragraph. 3 the law on the Constitutional Court, according to which the Court may by the Constitutional

the Court may submit a proposal to repeal the law or its individual provisions.
The condition of the litigation consulting such a proposal is the fulfillment of the article.

paragraph 95. 2 of the Constitution, in the sense that it must act on the Bill, which has to be

When the solution is applied. Act or its provisions, which is

proposed to cancel the plaintiff are to be directly applied in the

the solution of a particular dispute. The Constitutional Court found this condition the filled,

because the applicant brought an action for payment will be assessed 2 596 CZK

the difference between the salary, which the claimant had before the adoption

the contested provisions and provisions carried out after the contested reduction

the salary.



In the.



The constitutional conformity of the legislative process



15. In the context of proceedings for annulment of the Act or part of the constitutional

the Court examines whether the contested regulation was adopted and published within the limits of the Constitution

established competence and constitutionally prescribed manner (section 68, paragraph 2

the law on the Constitutional Court). The appellant challenges the constitutional konformitu

the legislative process with regard to the consideration of the draft law,

adopted under Act No. 418/2009 Coll., on the State of legislative emergency in the Chamber

House of Commons. As regards the consideration in the Senate, then against the constitutional conformity

the legislative process the applicant raises no objection. The Constitutional Court

Verify that in the Senate Bill was not discussed in the summary

and the Senate is a matter of short talks at all.



16. The Constitutional Court with regard to the above, the parties to the constitutional

conformity of the legislative process focused on only on navrhovatelovy

the objections relating to the consideration of the Bill in the Chamber of Deputies.

The Constitutional Court first observes that in finding Constitutional Court SP. zn. PL.

TC 7/03 (N 113/34 165 SbNU; 512/2004 Sb.) said that "If there is no adjustment

the legislative process, which is part of a simple law, the expression of

the constitutional principle, and its possible violation of the reason for the derogation, in

the meaning of section 68, paragraph. 2 Act No. 182/1993 Coll., as amended

regulations, failure to comply with the prescribed method for the adoption of the law constitutionally

or another legal act, does not constitute ". This principle is then the constitutional

the Court directed the other findings, in particular the SP. zn. PL. ÚS 24/07 (N 26/48

SbNU 303; 88/2008 Coll.).



17. In the first place, now considered the matter cannot fully agree with the claimant,

that the legislature should weigh the fulfillment of conditions for the publication of

State of legislative emergency in the form of an impending major economic damage with the

the design of a specific Act, which is a threat of significant economic damage

to avert. The decision about whether there is a risk of damage, it is not

decision-making on the damage in the legal sense of the word, but is based on considerations of

broader political konsekvencích. The decision, whether the State is threatened with a significant

economic damage within the meaning of § 99 paragraph. 1 of the rules of procedure, the assessment in the

binding to the extent to which it has submitted the draft Bill to the emergence of the impending

considerable economic damage in some sort of analogy to the provisions of § 417, paragraph. 1

Act No. 40/1964 Coll., the civil code, to prevent or reduce the impending

the damage may not contain.



18. In the case under consideration could not be overlooked that in voting to confirm

State of legislative emergency, for she always pronounced the majority

Members that during the discussions in the Chamber of Deputies nor in

its committees nezformovala the significant minority whose rights could

appear to be shortened, and that even when the vote on the third reading, even when

the vote following the cession of the Senate Bill was for a significant majority

members. In this particular case, the Constitutional Court, bearing in mind the

and the principle of minimizing the intervention, said the opinion of the Chamber of Deputies,

that "the draft law discussed in State of legislative emergency in compliance with the

statutory conditions ".



VI.



The legal evaluation of the Constitutional Court



19. the proposal is, as regards the alleged unconstitutionality of the content of the contested

provisions, reasonable.



20. The Constitutional Court is the issue of judicial salaries in the past

repeatedly dealt with. Its earlier case law summarized in the ruling

Court SP. zn. PL-55/05 (N 9/44 SbNU 103; 65/2007 Sb.)

in this respect, i left in her latest findings concerning the

the issue of judicial salaries SP. zn. PL. ÚS 13/08 (No. 104/2010 Sb.).

Since it is evident that the parties to the case-law of the constitutional

the Court is aware, the Constitutional Court does not consider it necessary to repeatedly in detail

recap.



21. For the further development of the case-law are the basic starting point the proposition

the finding of the Constitutional Court expressed in SP. zn. PL. ÚS 13/08: "step

the legislature, which (should) not to pause in the growth rate of the salary

judges, but to even the partial withdrawal has already achieved the level of their

material security, hardly could the Constitutional Court in terms of

the principles of the democratic rule of law aprobovat. In particular, this is true,

If it turned out that such a principle inadmissible restriction extends

only or primarily the income ratios of judges, and not at the same time revenue

other "servants" of the State. For that it is appropriate to recall the

the conclusions of the Constitutional Court in its finding SP. zn. PL. TC 34/04. ".

Follow-up footnote 8 of the award reads: "to the question of

the constitutionality of the subsequent legal withdrawal of part of the salary of the judges, to which

before the adoption of this measure was given a legal claim, you can draw these

Basic generalizing theses:



-the assessment of the constitutionality of the applicable restrictions against judges for specific

the period of a particular year falls within the framework defined by the principle of judicial

the independence,



-constitutional status of judges on the one hand, and representatives of the power

the legislative and the Executive, in particular, of the State administration, on the other hand,

due to the principle of the separation of powers and the principle of the independence of judges,

which implies a different layout and space for the legislature to platovým

the restrictions against judges compared to the layout area to such

restrictions in other areas of the public sphere,



-intervention in the material security of judges guaranteed by law shall not

be an expression of the arbitrariness of the legislature, but must be, on the basis of the principles of

proportionality, justified by exceptional circumstances, for example. burdensome

the financial situation of the State, and also for the fulfilment of this requirement shall be

take into account the difference in the function of the courts and representatives of legislative power and

the Executive, in particular, of the State administration; such action shall not give a reason for the

concern, without prejudice to the limitations of the dignity of judges, for example. If it is not

expression of constitutionally unacceptable pressure of legislative and executive power on the

the power of the Court.



The principle of an independent judiciary is one of the essential requirements

democratic rule of law (article 9, paragraph 2, of the Constitution). Request

independent of the judiciary stems from two sources: from the neutrality of judges as

the guarantee of a fair, impartial and objective legal proceedings and of

ensuring the rights and freedoms of individuals, the judge odčleněným from the political

to be able to. The independence of judges is guaranteed by a special legal guarantees

position (which should be include nesesaditelnost, nonrepudiation,

integrity), further guarantees of the organizational and functional independence

bodies representing the legislative and executive power in particular, as well as

separation of the judiciary from the legislative and executive power (in particular

the application of the principles of the incompatibilities). In terms of the content is then

judicial independence of judges is ensured by law vázaností only, IE.

the exclusion of any elements of the subordinace in the career decision-making process.

The basic components of the principle of the independence of the judiciary, the Constitutional Court

comprehensively dealt with in finding SP. zn. PL. ÚS 7/02 (collection of findings and

the resolution of the Constitutional Court, Volume 26, finding no. 78; promulgated under no.

349/2002 Coll.).



Arbitrary intervention by the legislature in the field of material ensuring of judges, in the

about the salary restrictions, should be protected in the framework of the principle of

their independence accommodated for two reasons. The independence of the judges is in

first of all conditioned their moral integrity and professional levels,

at the same time but is linked with their reasonable desire.

The second reason of the prohibition of arbitrary interference with podřazení material

ensure the judges (the pay restrictions) within the framework of the principle of their

the independence is to exclude the possibility of coercion may happen legislative,

or executive decisions of the judges. In other words, exclude arbitrary

interventions to the material to ensure the judges as the eventual form of the

"penalizing" of judges by the Executive and the legislature and thereby forms

pressure on their decisions. "



22. The head of the fourth Constitution modifies the "judicial". According to the article. 81 of the Constitution

judicial power is exercised by independent courts on behalf of the Republic. According to the article. 82

paragraph. 1 of the Constitution, judges are independent in the performance of their functions. Their

impartiality must not threaten no one.



23. The Inter omnes constat that the independence of the courts, judges and judicial power in the

carries a wide range of components, and that "the political system, and

institutional conditions created for the exercise of independent judicial

to be able to ", or administrative independence and" the independence and

neovlivnitelnost of each individual judge, his ability to be

resistant to any (political, media, and civic pressures).

the independence of the subjective (cf. also j. J, l., k. Jack,
P. Meduna, key to the courtroom. Prague 2006, p. 17). The power of the Court then

form competencies, which are nadány courts, a community of those who, after

judges took oath, known traditionally as the

"the judiciary" or "judicial status", and finally the individual

judge. The attributes include the judicial independence and dignity.

"The deep lack of understanding of the specific status of the judiciary in society

It signals the fact that the justice system was not yet understood only as a

the kind of administration. Such a view is incorrect and often meant for

the courts also judge a variety of negative impacts. It should be stressed that the

the courts are specific authorities state that represents an independent, constitutional

understanding firmly defined. This must be reflected in the

the social position of workers justice, particularly judges. "

(cf.. D. Burešová, Find the path to the real independence of the Court,

Socialist legality of no 3/1990, p. 121).



24. The guarantee of the independence of judges are designed not as a

judicial privilege, but in favour of those whose rights to protection

the courts were established. Some of these guarantees to some extent compared with

representatives of legislative and executive power, or other "servants" of the State

judge strictly limits. To such guarantees.

the incompatibility of the function of judge with a wide range of activities in the political,

business or employment. The judges ' status in the Czech Republic

not unlike most of the legal professions in the service of the wider

the judiciary (lawyers, notaries, bailiffs)-your independent

representation. The judicial Union of the Czech Republic is not a professional Chamber and

public body, bringing together all government interest

members of the judiciary, is simply the civic association with

non-membership. Judges cannot be the Union organized,

do not apply to them with respect to labour legislation, for example. about

collective bargaining, strike etc.



25. the adoption of the contested provisions has occurred on the part of the legislature in

the principle of a unilateral act, without audiendi alterae partis. The possibility of

representatives of the Union of the Czech Republic-Judge as follows from observations

Senate-comment for the judges ' status not than privately

recommending nature. The judges found themselves in terms of options relevantly

demonstrate its will to defend the issue of salary in a worse position than

other professions, which also was intended to perform grade

the restrictions, which ultimately led to the fact that stayed between

those who actually managed to reduce the salaries of legislators. The Constitutional Court

concludes that, in the case of exceptional circumstances, for example. difficult financial

the situation of the State, should henceforth not be disadvantaged in this way and the judges

ensure that the legislature could accede to the platovým restrictions should

to obtain the relevant opinion of the representatives of the judicial power, which should be

become a part of the explanatory memorandum.



26. The Constitutional Court was to nod the claimant, in that "the reduction of

salary for only a limited group of people grossly violates the principle of

of proportionality, which is particularly significant in relation to the judges,

Apart from further financial savings in expenditure of the State

the budget is negligible in this situation. " The Constitutional Court took

This time, that "the reduction of the public budget deficits are already

long involved in the professional group, which is legally very significantly

possibility of achieving other income than salary "(cf. different

opinion of judge Vlasta Formánkové to finding SP. zn pl. ÚS 13/08,

available at http://nalus.usoud.cz), and even he could not overlook

the following passage from a different opinion of judge Of Wagnerové to

finding SP. zn. PL. ÚS 13/08: "the reduction of salaries, as well as the freezing of

salaries, General, could therefore not be affected by any of the public servants.

It seems to me that in recent years, alas: the professional group-

judges, moreover, irreplaceable, a specific position in the constitutional

the system, which follows from the function that judges, it has become a sort of

hostage policy instrument in its populist steps that

However, as indicated above, do not have any real impact. The relevant

(caretaker) of doing so regularly that the remuneration of some smlčují

employees of the State and can represent multiple judicial salaries have

because their wage, unlike judges, may not be the only firm

the tariffs, but also other, either periodic financial amounts

(personal assessment), and/or supplemented by the one-off amounts (rewards). ".

The Constitutional Court took into account the arguments of the different opinions of the judge

Vladimir Crust to finding sp.. PL. ÚS 13/08, according to which "stands for

highlight what is already fact, the Constitutional Court also repeatedly mentioned [and what

It was expressed in the Council of Europe Committee of Ministers recommendation (94) 12 of

13.10. 1994], that between the "proper working conditions" and "ensure the ranks

the adequacy of the remuneration of the judges and the position with regard to the dignity

their profession and work load ". The protection of the dignity of judges can then be

in the context of the set and that will not be repeated and long-term

exposed to the concerted pressure of the Executive (hence the legislative power) to the

the gradual reduction in their guaranteed-by law-Bari

material position and the korespondujících of social expectations;

the dignity of judges does not indicate that, after a dispute with the Executive

lose (which is a tradition, as they do not advocate), in the circumstances of the medial

set up the sense of shame, in the role of elbowing had clamped to

hope that helps, the Constitutional Court. ".



27. the findings of the Constitutional Court SP. zn. PL. ÚS 1/08 (N 91/49 SbNU 273;

251/2008 Sb.) the Constitutional Court signed on to the methods of history of legal,

comparative jurisprudence and legal philosophy as an auxiliary science to law.

Even in this case, you can withstand the souzeném argument of the Visual angle of the

disciplines.



28. According to the article. III. the second sentence of section I of the Constitution of the United States

America from 17. September 1787 "Judges of the Supreme Court and lower courts

They shall remain in Office for life, if you behave well; for his

service to receive compensation within a specified period, which shall not be

during the duration of their service shall be reduced. "



29. In the award of 11 September. 6.2003, SP. zn. PL. ÚS 11/02 (N 87/30 SbNU 309;

198/2003 Coll.) The Constitutional Court in similar terms stated that "...

remuneration of judges in a broad sense to be stable

nesnižovatelnou, not the moving factor, which calculates

This or that government groups eg. Therefore, he seem to salaries of judges

too high in comparison with the salaries of civil servants or in comparison

with another professional group. In other words, if you can accept the application

the principle of equality in the above sense in exceptional

reduction of the salaries of all economically reasoned, cannot accept equality

all of the above mentioned groups (or as the target category) to

the definitive amount of the salaries. The pursuit of such equality to stray from categories

the constitutionality, it is a political objective, which does not have a foothold in the constitutionally understood

the principle of equality. This principle is found in the material sense their

the border in the comments, according to which "the same shall be adjusted

any unequal, but it must not be edited are unequal

arbitrarily as well ". The principle of equality cannot be understood as a levelling in the

the result, but it should be interpreted as a guarantee of the same

Starter chance ".



30. The Constitutional Court notes that, from his frequency above mentioned

the case law is clear that judicial salaries and unlike salaries

other "servants of the State" after a long period with the following

the intended perspective are only subject to the restrictions. Measures in respect of

to them, then do not seem extraordinary and proportional, but as a targeted

the process of pointing to the fact that judicial salaries back to the lower

levels, and thus to eliminate this way from the angle of vision to be able to

the legislative and the Executive in the past made the "error" in the determination of

the rules for the calculation of judicial salaries in the mid-1990s. years 20. of the century.

Such a nivelizace then, in effect, leads inevitably to the descent

the judiciary within middle-class social layers, its

income degradation in relation to other legal professions and to

umenšování the necessary social prestige.



31. "That's our súdnictvo in krízi, netreba, I think dokazovať. Nasha

Republic focused on svojmu súdnictvu so little concern that it already

rokou postihnuté ťažkou krízou lots. Directly after the prevrate Nasha

the public, hiring our legislative činitelia, they samozrejmé,

that authority, and the independence of the súdnictva advocated and musia even anchoring

všetkými prostriedkami. But after the Slovak Republic of povedané: nenakladá

Even so, nor rovnomerne sudcom with political úradníkom, "written in 1933

then the first President of the Supreme Court of Czechoslovakia,

later Professor of civil law, the Justice Minister and post-war

Czechoslovak representative at the Permanent International Court of arbitration in the

The Hague, Vladimir Fajnor (1875-1952) (cf.. Fajnor, Reform in the. súdnictva.

Právný the horizon No 11/1933, p. 361). The Constitutional Court comes to arciť,
that the legislature should not exclude or marginalize aspects of legal arbitrariness

ethical.



32. In its resolution SP. zn. PL. ÚS 13/10 of 27 July 2000. 5.2010 (available on

http://nalus.usoud.cz) then the Constitutional Court stated inter alia: "for too long

Here, insisted the system of one-party rule, when even justice this side.

This way the perception of justice survives in some heads today. Still

survives the judge rather than as a representative of the concept of judicial power, but as a

the civil servant, loyal to the State, dependent on the State and the State

paid as commanding a momentary whim of the ruling group.

Independence and impartiality of the judiciary ... is not a privilege, but it is

a prerequisite for the good functioning of the whole society,

especially in times of "discomfort".



33. The Constitutional Court then from the above reasons, concluded that the

the conditions for the reduction of the salaries of the judges were not meant to be filled with this stuff,

and in terms of its top-cited case law came to the conclusion that the

the contested provision is in breach of article. 1 (1). 1 in conjunction with article. 81, and

article. paragraph 82. 1 of the Constitution, therefore decided according to section 70 paragraph. 1 of the law on

The Constitutional Court, so that this provision repeals the day 30. September 2010.



The President of the Constitutional Court:



JUDr. Rychetský in r.



* Note. Red: a collection of findings and resolutions of the Constitutional Court, 15 u.s.c.

find no 125, p. 191, no. 233/1999 Sb.