The Constitutional Court of the Czech Republic
On behalf of the United States
The Constitutional Court of the Czech Republic decided on 8 June 1998. October 1996 in plenary in the matter
proposal III. the Chamber of the Constitutional Court of the Czech Republic for annulment of article 1(2). (II)
Act No. 308/1993 Coll., amending and supplementing Act of the Czech national
Council No. 389/1991 Coll., determining the emoluments of the judges, public notaries,
judicial and notarial trainees, as amended by the Act of the Czech National Council.
The proposal is rejected
On 18 July 2005. July 1995 handed JUDr. K. f., President of the Chamber of the regional
the Court in České Budějovice, Tábor, branch led by a constitutional complaint
under SP. zn. III. TC 189/95. In the complaint, sought the annulment of the judgment
The High Court in Prague from 26 March. May 1995 No. 6 and 81/94-14, in
connection with the decision of the military Office of social security
March 23, 1994, no. 53308309029903, and claimed that it was
discrimination, breach of the principle of equality of citizens before the law, and thus to
violation of the rights guaranteed by the Charter of fundamental rights and freedoms (hereinafter referred to as
"The Charter"). By decision of the Military Office of social security
23 March 1994 no. 53308309029903 was the complainant in the context of
his dismissal from the service of the soldier of occupation under section 26
paragraph. 1 (b). c) of Act No. 76/1959 Coll., on certain service conditions
soldiers, as amended, established pursuant to section 33 of the same Act
výsluhový contribution in the amount of $4500 per month. At the same time pronouncing
that, according to the article. (II) Act No. 308/1993 Coll., which amends and supplements the
the Czech National Council Act No. 389/1991 Coll., determining the emoluments of the judges,
State notaries, judicial and notarial trainees, as amended by law
The Czech National Council No. 7/1993 Coll., the payment of the contribution výsluhového
suspended for a period of performance of the duties of a judge of the General Court.
The applicant against that decision within the statutory deadline.
Ministry of defence of the Czech Republic (hereinafter referred to as "the Ministry"), Department of
social security, as the appellate body on 28. April, 1994 under no.
j 34/21-827-45/2, decided that the appeal lodged, and
the contested decision in its entirety. In the preamble to the
The Ministry referred to the article. II, section 2 of Act No. 308/1993 Coll., according
which, if the judge of the military court consents with the allocation to
a court, the Court for the performance of the judge shall be entitled to
payment výsluhového allowance under the Act No. 76/1959 Coll.
Subsequently, the complainant filed suit with the High Court in Prague, in which he asked
annulment of the decision of the Ministry, the Department of social security, no.
34/21-827-45/2. In the application he stated that administrative authorities when making decisions
incorrectly applied the law No 304/1993 Coll. Law took effect to
on 1 January 2004. January 1994 and cannot act retrospectively. Because the complainant
He was discharged from the service of a soldier by profession on 31 December. December
1993, i.e. before the effective date of Act No. 308/1993 Coll., no provision
This Act on his case, and therefore he should be výsluhový
post paid. The provisions of article. (II) Act No. 308/1993.
breach of the principle of equality of citizens before the law, and is therefore in conflict with the
By the Charter.
About this lawsuit, the High Court in Prague ruled by judgment No. 6 and 81/94-14
on 26 April. May 1995 so that the action is rejected and that none of the parties
does not have the right to pay the costs. The High Court in Prague in its judgment
motivated by the demise of the military courts was due to the article. 110
The Constitution of the Czech Republic (hereinafter referred to as "the Constitution") on 31 December 2007. December 1993 (that is,
in the midnight hour). Act No. 308/1993 Coll. came into effect on January 1. January
1994 (at 00.00 hrs.), that is, at the same time. Its provisions, therefore,
fall to the complainant in its full extent. If that was so, as reported by the
the applicant in the application, it must be concluded that the provisions of article. (II)
Act No. 308/1993 Coll. devoid of sense and is completely obsolete (from
beginning 1 January 2005. January 1994 could not already be a consent of the judge of the military
the Court, because no such thing existed).
The High Court in Prague and the question of whether the provisions of article. (II) point 2
Act No. 308/1993 Coll. is not contrary to the principle of equality before the
by law. Constitutional Court of CZECHOSLOVAKIA argued, published under no.
11/1992 collection of resolutions and of the findings of the Constitutional Court of Czechoslovakia, with the expectation that the adjustment
article. (II) Act No. 308/1993 Coll. has its justification is based on the public
interest, from the specifics of the service in the army, etc. The State must be granted
permission to provide some benefits to exclude a certain category
persons. Article. II, section 2 of Act No. 308/1993 Coll. is just such a retirement from
benefits and, in the opinion of the High Court in Prague, this provision cannot be
understood as an unjustified inequality between former military judges, and
other former professional soldiers.
Against the decision of the High Court in Prague handed the complainant in a timely manner the constitutional
the complaint, in which, inter alia, argued that it is generally known that the payment of the
výsluhového post is denied the only former judges of the former
military circuit and higher military courts, who remained in the
4(4) a soldier by profession until January 31. December 1993, i.e.. to
the demise of the military courts under the Constitution, and in particular
the reason that they naléháno to this data remained in Office and
did not cause the collapse of the military justice system. Výsluhový post is the opposite
It paid the former judges of the High Court in military college
Prague, former military prosecutors who were appointed judges
General courts, shall receive the judges of military courts who
military justice left before 31 December 2006. in December 1993, and then were
appointed by the judges of the ordinary courts.
The inequality of citizens before the law is given by the complainant and by
výsluhový post is paid in accordance with those laws of the former
the soldiers, who left military active status, and without
the difference, not only to those whose military specialization seems so
close does not allow them in the conditions of the transition to civilian life
adequate exercise, but also former military doctors, zvěrolékařům,
technicians, etc., for which the social aspect is clearly missing.
III. the Senate's Constitutional Court when hearing this constitutional complaint
He came to the conclusion that article. (II) Act No. 308/1993 Coll. is in breach of article. 1
Of the Charter. Within the meaning of § 78 para. 2 Act No. 182/1993 Coll., on the constitutional
the Court, therefore, its resolution of 7 July. March 1996 No. III. TC
189/95-40 proceedings and submitted a proposal to the plenum of the Constitutional Court
annulment of article 1(2). (II) Act No. 308/1993 Coll.
According to § 42 para. 3 and section 69 of Act No. 182/1993 Coll. posted by Constitutional Court
design of the Chamber of deputies of the Czech Parliament. In its observations
the President of the Chamber of deputies confirmed Milan Uhde, in accordance
requirements contained in the provisions of § 68 para. 2 Act No. 182/1993
Coll., Act No. 308/1993 Coll. was approved by the required majority of members
on 7 December. in December 1993, he was signed by the respective constitutional officials, and was
properly declared. In the Chamber of Deputies President refers
the explanatory memorandum to article. (II) Act No. 308/1993 Coll., which is based on the
the proposition, according to which the referred legislation guaranteed to judges
military courts legally entitled to perform the duties of the judges of the ordinary courts, in
as a consequence, then there is no reason given to them for the performance of the
the judge also entitled to payment accruing to the výsluhového post. In conclusion, the
the President of the Chamber of Deputies gives its opinion, according to which: "
the assessment of the whole thing, in particular, of the factors referred to in the explanatory memorandum to the
citovanému law on the one hand and of the aspects contained in the resolution
The Constitutional Court of the Czech Republic of 7 April. in March 1996, on the other
However, the above provisions of the Act appear to be
discriminatory against certain former judges of military courts. "
According to § 42 para. 2 Act No. 182/1993 on the Constitutional Court's requested
as documentary evidence from the Chamber of Deputies House prints No 598, and no.
Act No. 308/1993 Coll. was published in 77 of the laws and the amount was
sent on 23 December 2005. December 1993. Its efficacy has been established on day 1.
January 1994. Act No. 308/1993 Coll. contains three articles:
-article. I updated the law No 394/1991 Coll., determining the emoluments of the judges,
State notaries, judicial and notarial trainees, as amended by law the CZECH NATIONAL COUNCIL
No 7/1993 Coll.
-article. (II) enshrined the provisions which form a separate normative content
Act No. 308/1993 Coll.
-article. (III) has established the effectiveness of Act No. 308/1993 Coll.
This Act with effect from 1. January 1994 edited by the demise of the business
ratios of former judges of the military courts and payment of certain benefits
associated with the termination of service of these judges.
According to the article. II, point 1 to this Act, if a judge grants the military court
consent with the allocation to a particular court and its service of the soldier from the
the profession not to release under a special regulation (section 26 of Act No.
76/1959 Coll., as amended), ceases its business ratio
the soldier's effective date of this Act. According to the article. (II) point 2, if the judge
the military court consents with the allocation to a particular court,
It is not for him after the performance of the duties of judge entitled to payment výsluhového
contribution according to a special regulation (section 33 of Act No. 76/1959 Coll., on
amended by Act No. 229/1992 Coll.). In accordance with the provisions of article. (II) section 4, if
the judge of the military court consents with the allocation to a particular court,
his entitlement to severance in accordance with specific rules (§ 33a of the law
No. 76/1959 Coll., as amended by Act No. 229/1992 Coll.).
On 26 April. October 1995 came into effect Act No. 237/1995 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. This law in its part of the
Fifth, transitional and final provisions in § 44 point 2 set aside the law of the CZECH NATIONAL COUNCIL
No 391/1991 Coll., as amended by Act No. 7/1993 Coll. and Act No. 308/1993
Act No. 237/1995 Coll. was repealed Act No. 308/1993 Coll., but
only that portion of it which related to the annulled Act No. 394/1991
SB. Other parts of Act No. 308/1993 Coll. (which have a separate
canonical existence, i.e.. article. (II) and (III)) shall remain in force.
After the entry into force of Act No. 237/1995 Coll. began Military authority
former social security judges of military courts výsluhový
post pay. The situation is therefore contradictory. After a period of Military
Social Security Office whether výsluhový post. Then, without
It was abolished by law, on which the payment of the contribution výsluhového
suspended (and without having been issued in the case of some major general
decision), was restored to payday. This fact can be explained only
canonicalization derogačního relation to Act No. 237/1995 Coll. in
relation to Act No. 308/1993 Coll.
In assessing the constitutionality of the provisions of article. (II) Act No. 308/1993.
should be mainly addressed the question of whether the discriminatory character of the
relation to other categories of professional soldiers, who were in the same or
similar to the social situation, as the judges of the military courts (from the perspective of
interpretation of the term "military courts" within the meaning of section 21 to 24 of Act No.
335/1991 Coll. on courts and judges, as in force at the date of 31.
In connection with the termination of employment pursuant to the provisions of section 33 to
33B of the Act No. 76/1959 Coll., as amended, the soldiers of
the profession is paying certain benefits, výsluhový and severance grants, contribution
If the service of the death of a soldier, it is paid to the surviving úmrtné.
These cash benefits are social and motivational nature, guarantee the
social security by troops from the occupation due to the mental and physical
performance of military service, a potential threat to life in the preparation
the combat activity, carrying out services in place as necessary armed
forces. Last but not least these benefits also compensate for the limitations of certain
at present, economic and even political rights. As a result of
the nature of the service, most of the soldiers from the profession after a period of service
physically and mentally worn and part of them ends with the service, whether
already the decision by the official authorities, or at their own request,
before the origin of the right to old-age pension. The transition of these soldiers from the
the profession into civilian life is a very problematic especially from
with regard to their integration into working life, in particular, of civil and
(a number of military occupations in the civic life is not applicable).
Výsluhový allowance and severance grants have this transition easier. Entitled to them
all professional soldiers who meet the conditions laid down by law.
Benefits are paid to all soldiers by profession, who are leaving the military
, regardless of their specific social situation. Paid
even those former soldiers by profession, whose application in the civil
sector does not in essence, problems (doctors, vets, technicians
The judges of all former military courts were within the meaning of
applicable legislation, professional soldiers. At the time of their services
therefore subject to, inter alia, the provisions of Act No. 76/1959 Coll., on
as amended, including the provisions on monetary claims
United with the departure from military service.
As a result of changes in the organisation of the courts caused by the adoption of the Constitution and, in particular,
Law No. 17/1993 Coll., amending and supplementing Act No. 335/1991
Coll., on courts and judges as amended by Act No. 265/1992 Coll., the part of the judges
the military courts were in favour, in accordance with article. (II) point 5 of law No.
17/1993 Coll. consent with the allocation to a specific General Court the same
the degree. In this context, these judges order the Secretary of Defense
No. 205/1993 laid off from employment pursuant to section 26 paragraph 1. 1 (b). (c))
Act No. 76/1959 Coll., as amended. Some of these
the judges left the military justice earlier, some in connection with the
effect of Act No. 5/1993 to 31 October 1994. December 1993. The latter
referred to was not výsluhový post paid for some time and was not them
entitlement to severance.
From the message of the Ministry of výsluhových contributions paid from day 9.
October 1995 No. 1682-44/2 show that former military judges
the courts, who have granted consent to the allocation to a particular court, belongs to the
výsluhový post only after the performance of the duties of a judge. In the current
the time is thus paid to výsluhový post in four cases.
The judges of the military College of the High Court in Prague. Supreme
Court, who after leaving the permission to
the allocation to a particular court, výsluhový was granted. Is
paid in six cases. The soldiers of the occupation-judicial čekatelům
military courts-is entitled to výsluhový post also retained.
It is paid in two cases. Former military prosecutors and
military investigators prokuratur výsluhový contribution is paid
the end of the performance of the duties of the public prosecutor. It is paid in two cases.
The rule of law to 31. in December 1993 he used the expression "military courts" in two
the importance of:
1. the first meaning was intended by the Act No. 335/1991 Coll., as amended
31. December 1993, which he incorporated into the title of the second system of courts
the military courts, for which indicate military circuit courts (§ 21,
22) and higher military courts (art. 23, 24). Under the marginal category "military
the courts ', the Act did not include the Military Collegium of the Supreme Court and
Military College of the high courts.
2. the second meaning was intended, in particular, the provisions of sections 14 and 15 of the criminal
the order of the content and of the marginal headings "jurisdiction of military
the courts "that military courts are courts exercising jurisdiction
According to those provisions, i.e.. not only the military perimeter and higher
military courts, but the Supreme Court and high courts, more specifically their
the military panels. Referred to a second meaning of the term "military courts" resulted
even from some of the provisions of Act No. 335/1991 Coll., as amended
31. December 1993. This is a section 20, according to which "military courts
decide on all criminal matters, members of the armed forces,
prisoners of war and other persons, of which it shall lay down the law ". From
that provision implies that these courts were not only military
the perimeter and the higher military courts, but also the high courts and the Supreme
the Court. In addition to the provisions of § 25 para. 1 (b). b) and d) of the Act,
the title was "the performance of the administration of military courts", also has been redesigned
management of the military College of the Supreme Court and military colleges
the high courts.
The provisions of article. (II) Act No. 308/1993 Coll. can thus interpret double
manner; as either provisions applicable only to the judges of the military
the perimeter and the higher military courts, or as the provisions applicable
to judge the military formations of the high courts and the Supreme Court,
i.e.. to the judges of all courts exercising the jurisdiction of the military courts.
Interpretation of the first leads to discrimination (or for unjustified
privilege) within the Group of former members of the military justice system, and it
by Act No 304/1993 Coll. on the only judge of the former
military circuit and higher military courts. Other former soldiers
by profession, who have served in the military justice (i.e., members of the military
the College of the High Court in Prague and the military College of the Supreme Court,
judicial čekatelům the military courts), allows the výsluhový post
pay without restrictions. Similarly, it also concerns the severance grants. Such
interpretation by certain former judges of military courts and
some of the former workers of the military justice výsluhový post
grants and some not, although when you leave active duty in
comparable social situation leads to violation of citizens ' equality before the
by law (article 1 of the Charter).
In a situation in which certain provisions of the legislation allows for two different
interpretation, one is in accordance with constitutional laws and
the international treaties referred to in article. 10 of the Constitution, and the second is with them in the
contrary, the reason for the cancellation is not given to this provision. When the application is
the task of all State bodies to interpret the provision constitutionally
Conformal manner (see Constitutional Court pl. TC 48/95 no 121/1996
In this case, therefore, the provisions of article should be interpreted. (II) Law No.
304/1993 from the perspective of article 14 and 15 of the code of criminal procedure, in force on the
31. in December 1993, and from the perspective of section 20 and section 25 para. 1 (b). (b)), and (d))
Act No. 335/1991 Coll., as amended at the date of 31. in December 1993, and
therefore relate not only involved in the adjustment to the judges of the former
military circuit and higher military courts, but also to the judges
military colleges, the High Court in Prague and the Supreme Court, as well as
on judicial or military courts.
When assessing the compliance of article. (II) Act No. 308/1993 Coll. to the constitutional laws
and the international treaties referred to in article. 10 of the Constitution to solve
the question of the equality of the status of judges of military courts, not granted
výsluhový post, with the status of former military prosecutors,
as well as with the status of those former soldiers by profession, whose application
in the civilian sector does not raise major problems (doctors, veterinarians,
The payment of benefits under the Act No. 76/1959 Coll., as amended
law, a former military prosecutors, who have become legally
prosecutors, is regulated in § 35 para. 1 of Act No. 283/1993 Coll., on the
the Prosecutor's Office. That provision, according to which the State
the representatives, which has lapsed after the employment of expressions of disagreement with the
inclusion in the competent authority of the public prosecutor's Office, it is for the
severance pay or severance package by a special Act, must be interpreted and
on the other hand, and at the same time, by analogy, that those who have such
the opposition does not take effect and remain the ex lege prosecutors, the benefits
According to § 33-33b of the Act No. 76/1959 Coll., as amended,
do not provide. The same interpretation of the provision was applied and
in practice, as is apparent from the report of the Ministry of výsluhových paid
the contributions of 9 June. October 1995 No. 1682-44/2, when former
military prosecutors and military investigators prokuratur is
výsluhový contribution paid after the performance of the duties of the State
representative. Comparison of the status of the former judges of the military courts and the
former military prosecutors to provide the výsluhového
the contribution, therefore, does not contain an element of inequality.
The last issue is the comparison of the situation of former military judges and those
former soldiers by profession, whose application in the civilian sector does not
the fundamental problems (doctors, veterinarians, technicians, etc.) and that the right to
výsluhový contribution legislation has not been withdrawn. The two groups
people, however, substantially different. For the judges of the military courts of law
guarantee their tenure as the judges of the General justice,
in the case of their departure they provided výsluhový post
and regardless of the fact whether the Act later in the legal profession.
Having regard to all the foregoing, the Constitutional Court of the application for annulment of article 1(2).
(II) Act No. 308/1993 Coll. rejected.
The President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.