On The Proposal To Repeal § 34 Par. 3 And 4 Of The Act No. 236/1995 Coll.

Original Language Title: ve věci návrhu na zrušení § 34 odst. 3 a 4 zákona č. 236/1995 Sb.

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=77829&nr=245~2F2012~20Sb.&ft=txt

245/2012 Coll.
FINDINGS


Constitutional Court
On behalf of the Republic


Constitutional Court decided under ref. Nos. Pl. US 23/09 on 15 May 2012
Plenum, composed of Stanislav Balik, Frantisek Duchon, Vlasta Formánková,
Vojen Güttler, Pavel Holländer, Ivana Janu, Vladimir Kurka, Dagmar
Lastovecká, Jiri Mucha, Jan Musil, Jiri Nykodým, Pavel Rychetsky and
Miloslav Vyborny on the proposal in Jicin District court for the annulment of § 34 paragraph
. 3 and 4 of the Act no. 236/1995 Coll., On salary and other terms
associated with the office of representatives of state power and some
state bodies and judges and Members of the European Parliament, as amended
Law no. 138 / 1996 Coll., Act no. 287/1997 Coll., Act no. 155/2000 Coll.
Act no. 231/2001 Coll., Act no. 309/2002 Coll., Act no. 420/2002 Coll.
Act no. 425/2002 Coll., Act no. 362/2003 Coll., Act no. 427/2003 Coll.
Act no. 49/2004 Coll., Law no. 359 / 2004 Coll., Act no. 626/2004 Coll.
Act no. 127/2005 Coll., Act no. 361/2005 Coll., Act no. 388/2005 Coll.
Law no. 531 / 2006 Coll., Act no. 181/2007 Coll., Act no. 261/2007 Coll.
And Act no. 305/2008 Coll., In relation to judges,

Follows:

The petition is denied.
Reason


I.

First The petitioner, in accordance with Art. 95 para. 2 of the Constitution of the Czech Republic
(hereinafter "Constitution"), its proposal demanded the Constitutional Court to abolish the
cited provisions in the header above the law, and that "in relation to | || judges ".

Second He stated that the District Court in Jicin proceedings are pending under ref. Ref. 7 C
73/2008 on the application, which the District Court judge in Mlada Boleslav JUDr.
RH seeks against the Czech Republic - District Court in Mlada Boleslav -
payment of the amount CZK 8,118. The applicant maintains that on 27. 11. 2007
29th 5. 2009 to 31. 5. 2009 was the incapacity; per day 27. 11.
2007, he was paid sickness benefits only in the amount of CZK 160
, while the average salary for that day amounted to CZK 3,945; for days
29th 5 to 31 5. 2009, the difference between the average salary for those days and really
Sickness insurance benefits paid 4,243 CZK. Defendant
amount thus represents the difference between the benefits paid
health insurance and the average salary fell on the indicated days.

Third The petitioner stated that a prosecutor said difference came in the wake
effect of Act no. 420/2002 Coll., Which shortens the time during which the
representatives of state power and some state bodies, judges and public
representatives paid while
temporary inability to exercise the functions and laying down certain measures
sickness insurance (care) and pension insurance, which came into force on 1
first 2003. This Act was amended, inter alia, the provisions of § 34 paragraph
. 3 and 4 of the Act no. 236/1995 Coll., On salary and other terms
associated with the office of representatives of state power and some
state authorities and judges, so that the officials whose performance is governed
special legislation and the Labour Code, and judges do not belong
if not stated otherwise, the salary for the time during which temporarily
serving as the reasons for which, according to the labor Code does
employees wage compensation. Representatives, whose performance
functions are governed by special legislation and the Labour Code, and judges
which was recognized temporarily unable to perform the functions for the salary
maximum period of 20 working days during the same temporary inability to || | performance of their duties, or more temporary inability to perform functions
incurred in a calendar year over the same period.
Other leaders belonging to the reasons and the conditions laid down in the first sentence
salary for a maximum period of 30 calendar days.
When assessing temporary inability to perform functions similar procedure shall be subject to appropriate assessment
temporary incapacity.

Fourth Before the amendment made by Act no. 420/2002 Coll. sounded § 34 par. 3
Act no. 236/1995 Coll .: "(3) representatives and judges belong
if not stated otherwise, salary and the period during which a temporary function and carries
after which he would otherwise under special regulations belonged benefits
sickness replacing chargeable income not exceeding
for six months; at another time, after which the officer or judge
serving as temporary, the salary be reduced in proportion to the length of this period. ".

Fifth The petitioner is of the opinion that the institute provide full pay during

Temporary incapacity must be considered as one component of material security guarantees
judge. Therefore, the salary of judges can not and must not be
moving factor for the development of which is dependent on just
ruling grouping. The explanatory report released by the Act no. 420/2002 Coll.
Is given that the legislature's objective was "preserving a comparable position
individual groups of insured, ie. State employees, representatives
state power and judges in the current system of health insurance";
Position of representatives of state power and some state bodies and judges
legislator considered to be inappropriate and unfair to
employees who salary is granted for work done and from the first day of incapacity
they are entitled to sickness benefits in reduced Limited
amount regardless of income, which it replaces.

6th The petitioner cited Art. 81 and 82 of the Constitution, according to which the judicial power
exercised in the name of the Republic by independent courts, judges in the performance of their functions
independent and their impartiality may not threaten anyone. If
The Constitution enshrines the independence of courts and judges, must be
petitioner and compensation of judges stable, totally independent of the imagination
executive and legislative powers stemming from politically motivated
goals and opinions. Now with regard to the independence of judges
guaranteed by the Constitution, the legislature can not access the pay
restrictions for judges, according to the same principles as in other areas
public sphere. Action by the legislature when "copy" of Act no. 420/2002 Coll
. petitioner considers unconstitutional, standing in conflict with the law
judge on material security, which is one of the guarantees of its
judicial independence guaranteed by law and the Constitution.

7th The petitioner summed up part of the jurisprudence of the Constitutional Court
relating to judges' pay.

8th The petitioner continued to re-quoting the Explanatory Memorandum to the Act no. 420/2002 Coll
., Where, inter alia, that the proposed measures
health insurance for 2003 follows the creation of savings
state's mandatory expenditure in the period priority will be securing
from the state budget costs associated with
removing the consequences of floods of August 2002. the report also
noted that the savings resulting from the proposed legislation would not only
single in 2003, but will affect the amount of benefits in the future
years, and that the more difficulties insured in
health insurance must be conceived as an integral part
participation in addressing the consequences of natural disasters that hit the Republic
August 2002.

9th The petitioner is of the opinion that if the law no. 420/2002 Coll.
judges were significantly shortened the period during which it is paid while
temporary inability to perform the function, and given that the institute
provide full pay during temporary inability regarded as one of the components
guarantee material security of judges was unacceptable
interference in judicial independence, respectively. into law judge on physical security
its judicial independence. The petitioner therefore
management led by him under sp. Ref. 7 C 73/2008 broke and gave to the Constitutional Court
this proposal. Payment restriction on judges contained in the provisions
the first part of Act no. 420/2002 Coll. deemed to be in conflict with Art. 1.
l in conjunction with Art. 82 para. 1 of the Constitution and Art. 6 Sec. 1 of the Convention for the Protection
Human Rights and Fundamental Freedoms. For these reasons, seeks release
award which the Constitutional Court granted the petition of his, as his header
stated.

10th Municipal Court in Prague of 28. 4. 2008, this thing
prosecutor JUDr. RH led by the District Court in Mlada Boleslav
Commandments (for convenience according to § 12 para. 2 of the Civil Procedure
) District Court in Jicin.

II.

11th The Constitutional Court on the proposal of the District Court in Jicin
requested a statement from the Chamber of Deputies and the Senate of the Parliament of the Czech Republic and opinion
also asked the Ministry of Justice.

12th In the statement the Chamber of Deputies of the Czech Parliament is
stated that the draft law on salaries and other terms associated with
duties of representatives of state power and some state bodies and judges
was submitted to the Chamber of Deputies on 8 June 1995 as
print no. 1820 represented a group of deputies deputy Richard Mandelík.

In voting the bill was adopted by the Chamber of Deputies;
out of 133 deputies present, 99 were for the proposal, three against.
Act was signed by the president, prime minister and published in the Official Gazette on 26 October 1995
under no. 236/1995 Coll. The bill, which shortens the time
during which the representatives of state power and some state bodies,
judges and prosecutors are paid while
temporary inability to exercise the functions and laying down certain measures in sickness | || insurance (care) and pension insurance, the Government submitted to the Chamber of Deputies
10 September 2002 as Parliamentary print no. 43. at the proposal of the Government
announced the Chamber of Deputies chairman state of legislative emergency and the draft bill was
discussed in the summary hearing under § 99 of the Law no. 90/1995
Coll., on the Rules of Procedure of the Chamber of Deputies. The detailed debate were
presented three amendments, none of which did not envisage a constitutional complaint
contested provisions. About Throughout this bill was voted on and
law was adopted by the Chamber of Deputies. From the present
187 deputies voted for the 106 deputies to the 14th bill was delivered
Senate on September 16, 2002, the Senate dealt with it.
President signed the Act on 23 September 2002 in the Official Gazette was announced on 27
September 2002 under no. 420/2002 Coll. In the opinion of the Chamber of Deputies was
that law passed and issued within the bounds of constitutionally provided jurisdiction and
constitutionally prescribed manner.

13th Assembly of Deputies continues by stating that
provisions of § 34 par. 3 and 4 of the Act no. 236/1995 Coll., As amended, which regulates financial security
judge is temporarily unable to perform the functions
way that states in his petition the petitioner was
effective until 31 December 2007. Act no. 261/2007 Coll., on stabilization of public budgets
, in the thirtieth enshrines two brand new wording
§ 34 paragraph . 4 of the Act no. 236/1995 Coll., on salaries and other
indemnities associated with the position of representatives of state power and
some state bodies and judges and members of the European Parliament, in
amended (hereinafter "Act on pay") with effect from 1 January 2008
with effect from 1 January 2009.

14th Czech Senate, in its response to the petition stated
that the substance of the draft is essentially identical to the proposal submitted
same petitioner on 13 November 2008, which was before the Constitutional Court
as no. Nos. Pl. US 33/08 [resolution file. Nos. Pl. US 33/08 of
11th 2. 2009 (in SbNU unpublished, available at http
: //nalus.usoud.cz)]; the Constitutional Court on 11 February 2009 declined from
irreparable defects in the statement of claim, as it sought the annulment of the first
Act no. 420/2002 Coll., that the annulment of the amending Act
. Now the petition is in terms of its content, in principle
identical to the previous proposal (arguments directed against the amendment, which was
in § 34 of the Act no. 236/1995 Coll., Implemented by Act no. 420/2002
Coll., with effect from 1 January 2003), with the difference that the petitioner
petit formulated not in relation to novelizujícímu law,
but in relation to the relevant provisions of the amended Act (§ 34 paragraph
. 3 and 4 Act on salaries). The appellants formulations
statement of claim seeks annulment of the regulation in effect on the date of submission of the proposal, as can be inferred from
list of amendments to the Act, ie including those amendments that
followed the adoption of Act no. 420/2002 Coll. In this context, according to the statement
Senate mention in particular the changes approved in 2006
within the Act no. 189/2006 Coll., Amending certain laws in connection with the adoption
Health Insurance Act, which consisted
in that, in response to the new health insurance system to the Law on salaries
projected general legislation, which was included in the new Act no.
187/2006 Coll., on sickness insurance (change was
contained in the twenty-ninth of the Act no. 189/2006 Coll.). Modification introduced by Law no. 420/2002 Coll
. So zrušovala and replaced the contents quite another
finish. This change was originally to take place with effect from 1 January 2007. In connection with the shift
effectiveness of new legislation sickness insurance
first on January 1, 2008 and subsequently on January 1, 2009, then
happened, that this amendment has been incorporated into the Act no. 261/2007 Coll.
on stabilization of public budgets (some thirty) and Act no.

189/2006 Coll. It was launched (Part twenty-ninth it was canceled).
Because petitioner contests (ed. With arguments) as unconstitutional only
regulation adopted under the Act no. 420/2002 Coll. and other changes
following the adoption of this law in its submission any way
silent (although, as noted above in the header is formulated petit
otherwise), given the Senate's statement (supposedly) based on thus understood
proposal and focuses on discussing arguments contested regulation.

15th Appeal stated that the law, adopted under no. 420/2002 Coll.
was, along with several other laws debated in the Chamber of Deputies
state of legislative emergency, which in connection with the August 2002 floods
declared the Government and President of the Chamber of Deputies for the period from 22 August 2002 until
13 September 2002. the Senate bill was referred
Chamber of Deputies on 16 September 2002;
government through its chairman requested the President of the Senate, the Senate debated the bill in summary consideration
. With this request, the Government Senate at its 21st meeting
held on September 18, 2002 consented, so the bill was discussed in shortened
negotiations within the meaning of § 118 of the Act no. 107/1999
Coll. Senate Rules of Procedure. Regarding the discussion of the bill in
relevant committees of the Senate, expressions, among others. Noted that although
were some doubts about the need to discuss the bill in question
shortened in negotiations (and also featured amounts of savings)
proposal won the support of senators Act, also with regard to the fact that this was an area
adjustments, which in the previous term of the Senate relatively
addressed in detail.

16th In 1999, the Senate adopted Senate is an amendment to Act no.
236/1995 Coll., On salary and other compensation related to performance
office of representatives of state power and some state bodies and judges
amended (it was the Senate press no. 90/1998,
by a group of senators - members of the constitutional Law Committee)
in which, among the other messages contained also change § 34 par. 3
in this provision, which was for representatives of state power and the judge set
entitled to a salary for up to six months instead of sickness insurance
been proposed new wording to the effect that "over the years, after which
representative and judge serving as temporary, the salary times
proportion to the length of this period - ". In the explanatory memorandum was for this correction
noted that "- in accordance with the constitutional principle of equality is proposed
officials and judges withdraw security of salary for six months
incapacity. For the period of incapacity as
for another time, after which the function will be temporarily exercised, will pay
curtailed, while for the period of incapacity will be officials and judges belong
sickness - ". It was therefore proposed to amend
consisting in the fact that the leaders and judges were introduced generally applicable legal
treatment based on the fact that the wage or salary for work performed includes
(ie that is short for time not worked) and depending on
reason for that work (functions) are not exercised, will
state authority representatives and judges belong cash benefits
sickness insurance in accordance with generally applicable legislation.
The proposed change is possible according to the statement from the Senate for the sake of completeness, mention
argument, which (among other things) when discussing the draft law
in the Senate, said a representative of the petitioners to the original (favorable) regulations:
"The law in as amended, as I have already signaled, it is in the best case
on the brink of constitutionality, but more likely is the claim that it is unconstitutional
that is inconsistent with the constitutional principle of equality.
And because all these representatives of state authority and judges
establishes the principle that, unlike other citizens of these representatives of state power
are entitled to make in each calendar year for a period of six months, whether
already incapacity or other barriers to work, such as
child care, maternity leave, etc., in these cases they drew
full salary. ". The Senate this change, along with changes in other provisions of the Act
approved and forwarded for further discussion of Deputies.
Time, however, the Chamber of Deputies (in which the bill was discussed as
Parliamentary Press no. 164/1999), the Senate bill by a narrow majority

Rejected, but probably for reasons other than the proposed change
§ 34 of Act no. 236/1995 Coll., As this adjustment was heard no objections.
This also reflects the situation in the next period, when the two chambers of Parliament
consistently adopted an amendment to § 34 of Law no.
236/1995 Coll., Which was the petitioner challenged as unconstitutional
(made with effective from January 1, 2003 Act no. 420/2002 Coll.) and
following a change related to the application of new legislation
sickness insurance (implemented with effect from January 1, 2008, respectively.
from January 1, 2009 Act no. 261/2007 Coll.). In this context
pointed out also that, when considering the above print Senate
no. 354 21st session of the Senate representative of the submitter (
Minister of Labour and Social Affairs) to the Government of the proposed amendment to § 34 of the Act no. 236/1995 Coll.
Stated that the proposed measures would bring some cost savings
funds, but that is not the main objective. As stated: "-
main objective is to achieve a comparable position of individual groups of insured
sickness insurance system. The current legislation can not be
with regard to the complexity of the functions performed regarded as reasonable and fair to employees
who from the first day of incapacity
belongs in reduced sickness limited amount of free
regardless of income, which replaces . The proposed solution is not limited
2003 because there is no reason to be after the expiration of the current legal
adjustment back. ".

17th According to the Senate, as the foregoing
if the petitioner considers that the reduction in the time which was defined circle
representatives of state power and judges are paid while
temporary inability to perform the functions were in relation to judges unconstitutional
majority opinion senators shortly before discussing such adjustments
Senate was quite the opposite; was considered unconstitutional
substantially more favorable treatment for those in power and judges
This view is also reflected in the discussion of the draft law on
mentioned 21st session of the Senate, and also in the next period, when even the
state authority representatives and judges were introduced application of the general arrangements
sickness insurance system. Regarding amendments to § 34 paragraph.
3 and 4 of the Act no. 236/1995 Coll. by Act no. 420/2002 Coll., the Senate
present a draft amendment to the law in his own words
discussed within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner; since
with conception Senate about the need to make an adjustment, passed
to this draft Act consistently (resolution not to consider the bill is adopted
) A majority believe that it is in line with the constitutional order
Czech Republic and its international commitments.
The same may be contested as well as subsequent amendments to the provisions of the Act,
which were approved in the next period. In relation to the amendments made
aforementioned Act no. 261/2007 Coll. then you can also point to the fact that it was
about the changes that were already in 2007 challenged as unconstitutional in the context of
several proposals submitted to the repeal of that Act or its
parts (among whom was given a part of the thirty), on which the Constitutional court ruled finding
sp. Nos. Pl. US 2/08 of 23. 4. 2008 (N 73/49 SbNU
85; 166/2008 Sb.). Regarding the proposal to repeal § 34 par. 3 and 4 of the Law on salaries
is considered by the Senate must be pointed out that abolition
proposed provision would create a state in which the judges
district, regional, and high courts, the Supreme court and the Supreme administrative court
there is no legislation that would
any way limit their right to receive salary even in cases where the
judge for whatever reason and for whatever period has carried
function. Such a conclusion may be established on the basis of settled case
Constitutional Court, expressing the view that "
repeal the unconstitutional provisions of the Act revive the earlier provisions which were unconstitutional
provision repealed or amended".

18th In the opinion of the Ministry of Justice (conceived not as
opinion of the then Minister of Justice) states in particular that
unless the petition is rejected with regard to the amendment
provisions of § 34 para. 4 of the law on salary by Act no. 326 / 2009

Coll., On fostering economic growth and social stability, with effect from
first 7. 2009, the Minister notes that in general is not keen on withdrawing
salaries or other compensation related to the performance of the judicial function
. In determining whether legislative power or not, in relation to the
evolution of public budgets in the Czech Republic is entitled by law
limit the period during which a certain group of people instead of health insurance benefits provided
salary, and whose
remuneration of these budgets funded, but would be in the case judges
impermissible restriction on the principle of judicial independence is not solely the
Constitutional court. However, the view that the degree of independence of judges is not
regardless of any existing objective circumstances
directly dependent on the level of material security, does not the Minister of Justice for
acceptable. It is also believed that shortening the time from the original
six months, gradually due to repeated amendments to § 34 of the Act no.
236/1995 Coll., For 14 days, after which, with effect from 1 first | || 2009 officials whose performance is governed by a special legal regulation and
Labour Code, judges and receives salary at a reduced rate, and that
60% (except for the first three working days worth of salary || | is not), no undue interference with judicial independence and the right
judge on material security
his judicial independence. Question of judicial independence in relation to the material
security can not (apparently) be interpreted so broadly and can not have on
mind that after a period of temporary incapacity judge their own performance
functions performed. Minister of Justice is also convinced that the amended provisions
legislator endanger the "proper working conditions
" judges, under which, according to the recommendations of the Committee of Ministers of the Council of Europe
dated 13. 10. 1994 ranks as well as ensuring that the status and | || remuneration of judges is commensurate with the dignity of their profession and
burden, as in the case of temporary incapacity can not talk about
remuneration. This is not a de facto salary, but a special way of determining
entitlement to social security benefits. Identically so this achievement
legislature, which is the subject of a proposal District Court in Jicin, not
according to the statement described as salary restriction on judges in the truest sense
because the difference affected entities were taken into account.
Minister of Justice concluded that the independence of the judiciary, guaranteed by law and the Constitution
was not disturbed by this step the legislature or threatened;
well as specific legislation providing salaries for judges instead
sickness that would otherwise be theirs in the amount
as other employees, since it generally subject to the Law no. 187/2006 Coll., on Sickness Insurance
, as amended, was retained.
Therefore proposes that the Constitutional Court dismissed the petition.

III.

19th The Constitutional Court first, in accordance with § 68 para. 2 of Act no. 182/1993
Coll., On the Constitutional Court, as amended by Act no. 48/2002 Coll., Examined whether
law, the petitioner claims its provisions unconstitutional,
was adopted and issued within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner
. From the statements of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic
as well as relevant parliamentary publications and
voting records found that the contested Act no. 236/1995 Coll.
Well as its amendment changing contested provisions of § 34 paragraph. 3 and 4 (
Act no. 420/2002 Coll., and Act no. 261/2007 Coll.) was adopted at the quorums
provided for in Article. 39 paragraph. 1 and 2 of the Constitution, duly signed
relevant constitutional representatives and promulgated in the Official Gazette; So they were issued
constitutionally prescribed manner and within the bounds of constitutionally provided jurisdiction.

IV.

20th The legislative development was as follows.

21st The provisions of § 34 par. 3 and 4 of the Act no. 236/1995 Coll., On salary and other terms
associated with the duties
representatives of state power and some state bodies and judges, as amended and effective
from 1 January 2003 to 31 December 2007 (Act no. 420/2002 Coll.) - which
data relating to the first plaintiff claimed proposal, ie. 27. 11. 2007, sounded
:

- § 34 paragraph 3, including footnotes Nos. 9) and 10):

"(3) representatives, whose performance is governed by special legal

Regulation and the Labour Code, ^ 9) and judges not be paid if further
otherwise provides for the time during which temporarily serving as a
reasons for which, according to the Labor Code does not provide employees
wage compensation, ^ 10) unless stipulated otherwise. ".

22nd § 34 paragraph 4:

"(4) representatives, whose performance is governed by a special legal regulation and
Labour Code ^ 9), and the judges, which was recognized
temporarily unable to perform the functions for the salary for a maximum period of 20 working | || days during the same temporary inability to perform duties, or more
temporary inability to perform the functions arising in one calendar year
over the same period. Other officials belong to the reasons and
conditions laid down in the first sentence salary for a maximum period of 30 calendar days
. When assessing temporary inability to perform the functions
proceed similarly to the rules on assessment of temporary incapacity.

9) For example, Act no. 182/1993 Coll., On the Constitutional Court, as amended
amended, Act no. 166/1993 Coll., On the Supreme Audit Office
, as amended.

10) § 127 and 128 of the Labour Code. "

23rd As mentioned above, the legislation in force until 31 December 2007.
Constitutional Court in assessing the present proposal - in phase
examining the question of the existence of conditions proceedings - found that later was
issued Law no. 261 / 2007 Coll., on stabilization of public budgets, which in part
thirtieth enshrines two brand new wording of § 34 para. 4
law on salary, secondly, effective from 1 January 2008, and from 1 January | ||, 2009.

24th Thus contested § 34 paragraph 4 - which concerns with effect from 1
1, 2009 the second period, the plaintiff relied on the proposal for
days of the 29th 5-31 5. 2009 - was:

25th Since 1. 1. 2008

"(4) representatives, whose performance is governed by a special legal regulation and
Labour Code, and judges who were recognized
temporarily unable to perform the function, it is not a salary for working days, which accrue
for the first three calendar days of temporary inability to perform functions
; from the fourth calendar day salary for the maximum period of 18 working days
at the same temporary inability to perform functions or
more temporary inability to perform functions arising in one calendar year after
same time that at no of them pay for
weekdays, falling for the first three calendar days of temporary
inability to perform the function does.
Other leaders and Members of Parliament for the reasons and under the conditions laid down
in the first sentence salary for a maximum period of 27 calendar days
that during any temporary inability to perform the duties they pay does
for the first three calendar days.
During temporary inability to perform the duties arising because of a work injury or occupational disease
however, provides a stipend from the beginning
temporary inability to perform a function for a maximum period specified in the first sentence and
second. When assessing temporary inability to perform the functions
similar procedure to the rules on assessment of temporary incapacity
; a temporary inability to perform the functions for the purposes
this Act also mandated quarantine. "

26th 1. 1. 2009

"(4) representatives, whose performance is governed by a special legal regulation and
Labour Code, and judges who were recognized temporarily work
incapacitated or have been ordered into quarantine, for the first time in 14
calendar days of temporary incapacity (quarantine)
salary reduced rate, amounting to 60%, with the exception of the first 3 working days
for which the salary is not. Other officials and MPs
European Parliament for the period from the fourth calendar day
temporary incapacity (quarantine) the fourteenth calendar day
temporary incapacity (quarantine) salary for each calendar day
at a reduced rate, and 60% of one-thirtieth of salary;
salary is not for the first three calendar days of temporary work incapacity
(quarantine). Salary determined by the first and second sentences are
reduced by 50% if it is a case where sickness under the regulations on health insurance
halved ^ 10a). The salary at the reduced
amount for a single day is rounded to the nearest crown upwards.

For temporary incapacity resulting from an accident at work because
or occupational disease, however, provides a salary in full from beginning to
fourteenth calendar day of temporary incapacity.

10a) § 31 of Act no. 187/2006 Coll., On Health Insurance. "

27th Thus (atypically) split the effectiveness of different wording of § 34 para. 4
law on salary is based on Art. LXXXI Act no. 261/2007 Coll., By which
: "This Act shall take effect on January 1, 2008 except
provisions - c) - Art. XLVI point 3 - which come into effect on 1 January 2009
"(referred to in Article. XLVI point 3 refers to § 34 para. 4 of the
salary).

28th For completeness, it should be noted that later that the provision
affected by changes twice by Act no. 326/2009 Coll.
with effect from 1 7th 2009 and the Act no. 364/2011 Coll., amending certain laws in connection with
austerity measures by the Ministry of Labour and Social Affairs
, with effect from 1 January. 1, 2012 (ed. which is already the stuff
current concern). At present, therefore, referred to § 34 paragraph
. 4 reads:

"(4) representatives, whose performance is governed by a special legal regulation and
Labour Code, and judges who were recognized temporarily work
incapacitated or have been ordered into quarantine, for the first time in 14
calendar days and from 1 January 2012 to 31 December 2013
during the first 21 calendar days of temporary incapacity (quarantine)
pay at a reduced rate, amounting to 60% of average earnings, excluding
the first 3 working days after that when temporary incapacity
salary is not. Other officials and members of the European Parliament
for the period from the fourth calendar day
temporary incapacity (quarantine) the fourteenth calendar day and the
first January 2012 to 31 December 2013 in the twenty-first calendar day
temporary incapacity (quarantine) salary for each calendar day
at a reduced rate, amounting to 60% of one-thirtieth of salary;
salary is not for the first three calendar days of temporary work incapacity and
during the first three calendar days for the ordered quarantine
per calendar day at a reduced rate, amounting to 60% of one-thirtieth salary
. Salary determined by the first and second sentences are
reduced by 50% if it is a case where sickness under the regulations on health insurance
halved ^ 10a). For purposes of determining
reduced salary in the first sentence, the average earnings adjusts
same way as the average earnings for wage fixing
under § 192 of the Labor Code; for the purposes of determining the amount of salary reduced by the amount
second sentence thirtieth salary adjusted in the same manner
which is adjusted daily assessment basis for determining the health of
health insurance. The salary at a reduced rate for a single day
rounded to the nearest crown upwards. When
temporary work incapacity was due to an accident at work or occupational disease
however, provides salary in full from the beginning of the fourteenth calendar day
and from 1 January 2012 to 31 December 2013 the twentieth || | first calendar day of temporary incapacity. ".

29th It is obvious that in this case there was a rather specific procedural
situation. If recapitulate once more the development of the whole thing, according
file material sent by the petitioner (Docket District Court
Jicin sp. Ref. 7 C 73/2008), it can be stated that the applicant JUDr. RH
filed on 12 3. 2008 lawsuit that sought against the Czech Republic
payment of the amount CZK 3,785 as the difference between the average salary
28. For completeness, it should be noted that the provision in question was eventually affected | || changes twice by Act no. 326/2009 Coll. with effect from 1
7th 2009 Act no. 364/2011 Coll., Amending certain laws in connection with
austerity measures by the Ministry of Labour and Social Affairs
, with effect from 1. 1. 2012 (ed. That already this
current things not related). At present, therefore, referred to § 34 paragraph
. 4 reads:

"(4) representatives, whose performance is governed by a special legal regulation and
Labour Code, and judges who were recognized temporarily unable to work or they
quarantine has been imposed, it is for the first time

14 calendar days from 1 January 2012 to 31 December 2013
during the first 21 calendar days of temporary incapacity (quarantine)
pay at a reduced rate, amounting to 60% of average earnings, with
exception of the first 3 working days after that when temporary incapacity
salary is not. Other officials and members of the European Parliament
for the period from the fourth calendar day
temporary incapacity (quarantine) the fourteenth calendar day and the
first January 2012 to 31 December 2013 in the twenty-first calendar day
temporary incapacity (quarantine) salary for each calendar day
at a reduced rate, amounting to 60% of one-thirtieth of salary;
salary is not for the first three calendar days of temporary work incapacity and
during the first three calendar days for the ordered quarantine
per calendar day at a reduced rate, amounting to 60% of one-thirtieth salary
. Salary determined by the first and second sentences are
reduced by 50% if it is a case where sickness under the regulations on health insurance
halved ^ 10a). For purposes of determining
reduced salary in the first sentence, the average earnings adjusts
same way as the average earnings for wage fixing
under § 192 of the Labor Code; for the purposes of determining the amount of salary reduced by the amount
second sentence thirtieth salary adjusted in the same manner
which is adjusted daily assessment basis for determining the health of
health insurance. The salary at a reduced rate for a single day
rounded to the nearest crown upwards. When
temporary work incapacity was due to an accident at work or occupational disease
however, provides salary in full from the beginning of the fourteenth calendar day
and from 1 January 2012 to 31 December 2013 the twentieth || | first calendar day of temporary incapacity ".. per day 27. 11.
2007, when he was unable to work and actually benefits paid
health insurance. The court stayed the proceedings and filed on 7 11. 2008
in this case the first draft of the Constitutional Court to annul the first part of Act no. 420/2002 Coll
. The Constitutional Court Resolution of 11. 2. 2009 sp. Nos. Pl.
US 33/08 (see above) rejected the proposal for a defect requested relief as petitioner
attacked amending regulation, not regulation revised, ie.
Law no. 236/1995 Coll. Then prosecutor JUDr. RH administration of 8. 6. 2009
lawsuit in the District Court in Jicin added that he was in the days since 29
fifth 2009 to 31. 5. 2009 again unfit for work and for these days in his
due to current legislation missed CZK 4,234; Of this amount, therefore its
action spread. Subsequently, the petitioner (District Court in Jicin) filed
this, now under consideration, the draft concretised in the header of this finding.

30th Therefore, there was the fact that the key passages of the contested provision, §
34 par. 4 Act no. 236/1995 Coll. underwent several changes and now
now worded the provision differently (cf. above). However, the petitioner seeks
it to the Constitutional Court within a specific review of norms
examined the provisions of the Act, which is applied in the case of the plaintiff, once in
version which was applied against him in relation to the day 27 . 11. 2007
(first incapacity) and a second time in relation to the days of the 29th 5-31
fifth 2009 (second incapacity).

31st Pursuant to § 66 of the Act no. 182/1993 Coll., On the Constitutional Court, as amended
Act no. 48/2002 Coll., Is inadmissible, if the law, another
law or its individual provisions, the
cancel the proposed exhausted before an application at the Constitutional court.

32nd The interpretation of that situation in a similar case (in relation to
stopping the proceedings) Constitutional Court has addressed in its judgment.
Brand. Pl. US 38/06 of 6. 2. 2007 (N 23/44 SbNU 279; 84/2007 Coll.), In which
detail sums up all its relevant case
related to this issue. This award is for brevity
refer; The Constitutional Court, somewhat simplified terms, is growing among others.
Concluded that in the absence of explicit intertemporal
provisions, ie. A situation where the legislature is silent as to whether the
eligible under the previous arrangements be maintained and the applicability of the new
adaptation, according to the Constitutional court must adopt an interpretation which saves
meaning and essence of fundamental rights, in this case the right to

Legitimate expectations. If the general court, which turned to the Constitutional Court under Article
. 95 para. 2 of the Constitution, the procedure to apply the law in
version prior to its amendment, admit the possibility that the Constitutional Court ruled in the case
academic, declaratory, the statement
finding an unconstitutional statutory provision has been canceled. According to the judgment, however, cited
above procedure applies to cases in which the addressee by
public power. Right retroactivity in the case
declaration of unconstitutionality of the law already canceled a previous assessment of the facts
negotiations constitutionally consistent with legislation ex tunc side
public authority does not constitute a violation of the principle of protection of citizens', or
. interference with the legal certainty, respectively. acquired rights.
Situation is different, however, occurs in cases of horizontal effect of fundamental rights and freedoms
. On such cases in relation to third parties should be in accordance with this finding
relate the principles of protection of citizens' trust in the law, legal certainty
respectively. acquired rights and the only possible exception to the prohibition
retroactivity of the law in the norm control proceeding with
horizontal effect of fundamental rights and freedoms can accept protection
values ​​that fall within the framework of the substantive core of the Constitution under its Art. 9
paragraph. second

33rd In the test case, it is clear that this was a case in which the addressee of the obligations
public power and effect of fundamental rights has
vertical structure; review of constitutionality has been canceled or altered, but
in a specific case is still under
applicable provisions of law, therefore nothing to prevent.

34th From a procedural perspective it should also be noted, as it did
and Senate in the above statement reproduced on this proposal that
amendments to the law on salaries made by the said Act no. 261/2007 Coll.
already been challenged as unconstitutional in several proposals submitted
repeal the Act (ie the Act no. 261/2007 Coll.), respectively.
its components (among which was mentioned here the relevant parts of the thirty
amending the law on salaries); for them, the Constitutional Court judgment file.
Brand. Pl. US 2/08 (see above).

35th In the cited judgment (cf. In particular paragraphs 33 to 36) when the Constitutional Court
among others. He stated that "the amendment to the legislation has no independent
normative existence, becomes part of the renewed legal
regulation - and as such it is considered as its constitutionality. If the
norm control proceedings derogatory reasons for the lack of norm
competence, respectively. violation of the constitutionally prescribed manner of adopting
legislation, then the constitutionality of the amendment itself - ".
Constitutional Court there "repeatedly stressed that in assessing the conflict
Act or its individual provisions, the constitutional
is bound only by the verdict, and not its justification - a petitioner against the substantive conflict
Act with the constitutional order, for the purposes of constitutional review
not enough to simply mark law (or its individual provisions
), designed to abolish, but it is necessary to mention the reason
alleged unconstitutionality. If you can not bear the petitioner in proceedings to review norms
burden allegations of unconstitutionality can only be considered
such a proposal in conflict with § 34 para. 1 of the Constitutional Court
, and thus not eligible for consideration on the merits - The consequences of that | || conclusion to those parts of the statement of claim, in which a group of 67 deputies
sought the annulment of the fifteenth to twenty-second, twenty-fourth to
thirty-ninth and forty-fourth part of the law. In addition to procedural objections
been to these parts of the law by this group
petitioners (ie. A group of 67 deputies)
raise any substantive (physical) complaints. "(Ed. Proposal for the next group of 43 deputies
material not related to the thirtieth of the Act no. 261/2007 Coll., which corresponds to the portion
now contested statutory provisions).

36th In the case under review now therefore not contested legislation for the current proceedings
consequences of res judicata and the Constitutional Court, the proposal could
deal substantively.

V.

37th For clarity, it is appropriate to reiterate the wording of the contested
statutory provisions where the context so.
Specific review of the constitutionality of the Constitutional Court to examine their compliance with the constitutional order
Czech Republic.

38th § 34 paragraph 3:


"(3) representatives, whose performance is governed by a special legal regulation and
Labour Code ^ 9) and judges not be paid if further
otherwise provides for the time during which temporarily serving as the
reasons for which, according to the Labour Code provides employees
wage compensation, ^ 10) unless stipulated otherwise. "

39th § 34 paragraph 4 (as amended and in effect until 31 December 2007
)

"(4) representatives, whose performance is governed by a special legal regulation and
Labour Code ^ 9), and the judges, which was recognized
temporarily unable to perform the functions for the salary for a maximum period of 20 working | || days during the same temporary inability to perform duties, or more
temporary inability to perform the functions arising in one calendar year
over the same period. Other officials belong to the reasons and
conditions laid down in the first sentence salary for a maximum period of 30 calendar days
. When assessing temporary inability to perform the functions
proceed similarly to the rules on assessment of temporary incapacity.

9) For example, Act no. 182/1993 Coll., On the Constitutional Court, as amended
amended, Act no. 166/1993 Coll., On the Supreme Audit Office
, as amended.

10) § 127 and 128 of the Labour Code. "

40th § 34 paragraph 4 (as amended and effective from 1 1st 2009 to 1
7. 2009)

"(4) representatives, whose performance is governed by a special legal regulation and
Labour Code, and judges who were recognized temporarily work
incapacitated or have been ordered into quarantine, for the first time in 14
calendar days of temporary incapacity (quarantine)
salary reduced amount, 60%, except for the first 3 days, after which
case of temporary incapacity and the pay is not at
ordered quarantine salary provides at a reduced rate of 25%.
Other leaders and Members of Parliament for the period from
fourth calendar day of temporary incapacity (quarantine)
to the fourteenth calendar day of temporary incapacity (quarantine)
salary for each calendar day at a reduced rate, and 60% of one-thirtieth
salary; salary is not for the first three calendar days
temporary incapacity and during the first three calendar days
ordered quarantine belongs per calendar day at a reduced rate, and
amounting to 25% of one-thirtieth of salary. Salary set under the first sentence and second
is reduced by 50% if it is a case where sickness by
regulations on health insurance reduces by half-10a).
Salary at a reduced rate for a single day is rounded up to whole crowns
facing upwards. Case of temporary incapacity owing for work
injury or occupational disease, however, provides pay in full by
beginning of the fourteenth calendar day of temporary incapacity.

10a) § 31 of Act no. 187/2006 Coll., On Health Insurance. "

41st This is the text of the legal provisions that the petitioner (general
court) apply in the case of the plaintiff in the legal case (JUDr. RH) and
once in the version which was applied against him on 27 11th
2007, and again from 29 5 to 31, 2009. the fifth

VI.

42nd The Constitutional Court thus turned to merits review of these provisions
. It found that the constitutional order in non-compliance.

43rd At the outset it should be - to the above text - even conclude that
provisions of § 34 par. 3 of Law no. 236/1995 Coll., On salaries and other
indemnities associated with the position of representatives of state power and || | some state bodies and judges and members of the European Parliament, in
amended by Act no. 420/2002 Coll., apparently remained broadly unchanged and cited wording
still valid. It would, upon initial view on the matter could lead to the consideration that
might be - if it is unconstitutional - and the Constitutional Court annulled
would not in this case (in relation to § 34 para. 3) to decide just | || declaratory statement. However, any inconsistency with the constitutional order
not in relation to this provision - cut off from its connection with the following
§ 34 para. 4 - find (cf. Wording: - judges do not belong
if not stated otherwise, salary for the time during which temporarily
serving as the reasons for which, according to the Labour Code

Employees provides wage compensation, if not stated otherwise);
That provision does not address the specific restriction in the material security
judge in a broader sense, it is basically just an introduction to the terminology
following paragraph (§ 34 para. 4), which has a
contains specific restriction. The provisions of § 34 para. 3 can not, and it
the nature of things in terms of argumentation The approach petitioner
constitutionally considered separately from the provisions of § 34 para. 4 of the
salary.

44th As already indicated, the issues examined falls in the broader sense
understood under the scope of the guarantees material security of judges.
The main reason for many of the Constitutional Court in this field, dealing
salaries of judges, the argument of the principle of judicial independence
(Art. 82 para. 1 of the Constitution), in whose framework put forth by the Constitutional Court aspects
a material nature. Repeatedly emphasized that judicial independence
represents one of the fundamental democratic values, to whose
ensure undoubtedly assists and material security of judges.
According to the constant jurisprudence of the Constitutional Court, the principle of an independent judiciary
one of the essential democratic rule
State within the meaning of Article. 9 Sec. 2 of the Constitution.

45th The Constitutional Court summarized several times [cf. recent. Finding sp. Ref.
Pl. US 16/11 of 2 8. 2011 (267/2011 Coll.)]
Fundamental general proposition, according to which particular:

46th - Assessing the constitutionality of salary limitations regarding judges
for a specific period of the year falls within the framework defined by the principle of judicial independence
,

47th - The constitutional position of judges on the one hand, and representatives of legislative and executive
, especially the government, on the other hand
because of the principle of separation of powers and the principle of independence of judges differs
implying a different layout and space for the legislature to pay
restrictions on judges in comparison with the layout space for such
restrictions in other areas of the public sphere, and

48th - Interference in the material security of judges guaranteed by law
must be an expression of arbitrariness by the legislature, but must be, based on
proportionality principle, be justified by extraordinary circumstances, eg.
The difficult financial situation of the state, while also in compliance with this condition shall
be taken into account different function of judges and representatives of the legislative and executive
, especially the state administration; such interference may not create grounds for
concerns that it may limit the dignity of judges [
see the recommendations of the Committee of Ministers of the Council of Europe. r. (94) 12 dated 13 October 1994]
possibly not- an expression of constitutionally unacceptable pressure by the legislative and executive power
on the judicial power.

49th Another reason for the prohibition of arbitrary interference in the material security of judges
(salary restrictions) with respect to the principle of independence
is therefore ruled out of pressure by the legislative power, respectively.
executive on decisions of courts and judges. Compensation of judges to be stable
nesnižovatelnou quantity, not moving factor, with which it calculates
or another government eg. Because he
judges' salaries seem too high in comparison with the salaries of civil servants or
comparison with another professional group.

50th The Constitutional Court is still in its case dealt with in relation to judges
restrictions purely salary; it was such. cases where the judges
withdrawing a lump sum, or. so reduced. additional salary, which by the end of 2004
formed one of the components of remuneration entitlement
representatives of state power for performance, or when in the years 2003 and 2004 there was a reduction
growth rate of wages and the like. now the present case, however
Constitutional court is confronted with an entirely different condition; As to the situation
judge recognized temporarily unfit to work (for appointment).
The Constitutional Court therefore had to consider whether, in this case at all
talk about interference in the material security of judges in terms of existing
findings. On this question it is necessary, in the opinion of the Constitutional Court to answer
basically positive, but with the proviso that the above proposition, hence
principles contained in the judgments of the Constitutional Court, in particular concerning
salary restrictions, can be examined issue apply only in part,
mutatis mutandis. It is obvious that the contested legal provisions
(in both versions of the contested § 34 par. 4 of the salary) was not

Hit up some of the components of remuneration entitlement judge specifically been
reduced their monthly salary, salary or some other lump-sum compensation in
given calendar year compared to the prior state.

51st The Constitutional Court does not intend to in the contested legal regulation, minutely detailed
analyze every word of detailed legislative solutions examined issues.
Its essence - in terms of constitutionality - is obvious; with effect from 1
1st 2003 (as further amendments were only logically form and content with the decision reached
linked) was enacted in Act no. 420/2002 Coll.
to limit the time during which the judges were completely securing full pay and
sick leave (for up to six months initially,
unlimited moreover, not calendar year), as stated in the key passages
explanatory Memorandum (part of a general and specific) of this Act, to which reference should be made
.

52nd The Constitutional Court has already expressed [see. Finding sp. Nos. Pl. US 55/05 of
16th 1, 2007 (N 9/44 SbNU 103; 65/2007 Coll.), In particular paragraph 55] that
to determine the impact of the contested statutory provisions in
material security of judges must be based on the total regular income of judges || | in a calendar year; monthly income already given the existence of other
salaries paid only in certain months of the year compared can not, moreover
economic, budgetary and tax system is naturally built on
cycle of the calendar year. Quantification of material security of judges
in the form of their total income in the calendar year and the Constitutional Court
fundamental criterion for determining whether a result of measures in the sphere
remuneration of judges did or did not pay restriction.

53rd The Constitutional Court concludes that a reduced salary in a situation where a judge is temporarily
recognized for work unfit to perform the function, can not be considered as part of the regular
judge's income; such income is not of the nature
rewards for performance without more, is provided irregularly and
a Judge must never, ever; therefore, as any quantification
this sense for that time of year is problematic, since it can not quantify
clearly the monetary amount. It is obvious that this is not a constitutionally impermissible
pay cut to judge because
salary and compensation for the period of incapacity can not be equated.

54th The Constitutional Court is of the opinion that although there has been in the security
judges sick leave for some restriction (from a certain perspective
even significant), it did not affect the level achieved
material security of judges in a way that would inevitably led to wonder whether it is not a
arbitrary action by the legislature intended to limit judicial independence
was the fundamental constitutional criteria.

55th As regards the protection of judicial independence, which is closely connected with
adequate material security - but first and foremost is conditioned
moral integrity and professional level court - the Constitutional Court on this site
adds that judicial independence is not an end in itself about myself;
is only a means to achieve higher targets (character of this value is instrumental
), which is a state approaching the most
idea of ​​justice. The function of the courts is not a socially important and prestigious
only because of the financial remuneration of judges, but mainly because the general
courts are entitled and bound to protect constitutional values ​​that are
bound for the state, but sometimes against State itself in favor of the inhabitants of the Czech Republic to defend
(cf. Art. 4 of the Constitution).

56th Constitutional entitlement to a fixed amount of security
judge in case of temporary disability can not be inferred from the constitutional order.
Status of judges to ensure the full salary for a long time even if
incapacity to perform his duties is not from a comparative perspective
justified; In this regard you can admit a certain relevance
opinion contained (above) in the statement of the Czech Senate
questioning this adjustment, among other things. the perspective of the principle of equality. I
recommendations of the Committee of Ministers of the Council of Europe dated 17. 11. 2010 judges
CM / Rec (2010) 12 [see. Constitutional Court of 2 8. 2011 sp. Ref.
Pl. US 16/11 (see above)] assumes, among other things. That the financial security
judge in sickness and maternity should be ensured
maintain a reasonable level of remuneration; There certainly is not a necessity
receive a salary or other remuneration in the same amount as in the performance of their duties.


57th Therefore examined the restriction in the opinion of the Constitutional Court does not
itself a real negative impact on the physical security of judges
reaching constitutional dimension. The actual impact on the income situation of Judge
(by way of example in the annual accounts) - as already mentioned above - can not be
is so high that it could lead to doubts about whether
been no violation of judicial independence as defined above
scale of constitutionality.

'58. Finally, the Constitutional Court emphasizes that any further
restrictive regulation in this area should no limits to what can be
considered constitutional, might touch or even exceed it;
This applies even if it would be economically justified by the persistent
need for stabilization of public finances and solidarity with others.
Category material security of judges enjoying increased institutional
of protection is broader than eg. A reduction or freezing of salaries and
reasonably (though less severely) applies to all other
pecuniary claims arising out of the office of judge . Even here it is
conceivable that the legislature adopts unconstitutional legislation, which would then
Constitutional Court had no choice but to cancel; even in this area
therefore derogatory intervention can not be ruled out for futuro.

59th In the case considered it did not happen, and therefore
Constitutional Court rejected the proposal, as is evident from the statement of reasons for that finding.

60th The Constitutional Court decided that the hearing could not be expected
clarify things, and therefore from him with the consent of the parties dropped
(§ 44 para. 2 of Act no. 182/1993 Coll., On the Constitutional Court).

Chairman of the Constitutional Court:

JUDr. own hand