In The Matter Of The Application For Revocation Article. (Ii) Act No. 308/1993 Coll.

Original Language Title: ve věci návrhu na zrušení čl. II zákona č. 304/1993 Sb.

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=44533&nr=286~2F1996~20Sb.&ft=txt

286/1996 Coll.



FIND



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.

7/1993 Coll.



as follows:



The proposal is rejected



Justification



(I).



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.



II.



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.



III.



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.

636.



IV.



and



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

SB.



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.



(b)



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.

December 1993).



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

etc.).



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

SB.).



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,

engineers, etc.).



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.