233/1999 Coll.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 15 December. September 1999, in the plenary on the proposal of the circuit court

for Prague 4 on the abolition of Act No. 269/1998 Coll., on the withdrawal of the additional salary

for the second half of 1998, officials and some

Government agencies, judges, prosecutors and members of the Presidium of the Commission

for securities,



as follows:



The provision of section 1 of Act No. 269/1998 Coll., on the withdrawal of the additional salary for

the second half of 1998, officials and some

Government agencies, judges, prosecutors and members of the Presidium of the Commission

for securities in the text "officials and some

State authorities, 1) judges, 2) national zástupcům3) and members of the Presidium

Securities Exchange Commission papíry4) next plat5) for the second half of 1998

does not belong to "the words" soudcům2) "day of judgment in the collection

laws.



In the remainder of the application for annulment of the Act No. 269/1998 Coll.

is rejected.



Justification



27 June 2002. in May 1999, the Constitutional Court delivered a draft of the circuit court

for Prague 4 on the abolition of Act No. 269/1998 Coll., on the withdrawal of the additional salary

for the second half of 1998, officials and some

Government agencies, judges, prosecutors and members of the Presidium of the Commission

for securities. The Constitutional Court – after the appellant on the basis of its

challenges to remedy defects of the design-found that the submission meets the formal

the elements of a proposal to repeal of the law that the Court is entitled to in

connection with his decision-making activities under art. 95 para. 2

Constitutional Act No. 1/1993 Coll., Constitution of the Czech Republic (hereinafter referred to as

"The Constitution")-(§ 64, paragraph 4, of Act No. 182/1993 Coll., on the constitutional

of the Court).



The appellant, for which act in accordance with the provisions of § 30 paragraph 2. 3 of the law

on the Constitutional Court the President of the Senate, René Fischer, in the proposal stated that the

According to his opinion, not in Act No. 268/1998 Coll. respected in General

a recognized requirement of rule of law-the prohibition of retroactive. Relies on the

in doing so, the provisions of § 4 para. 2 of law no 236/1995 Coll., on salary and other

formalities associated with the exercise of the functions of the representatives of State power and

some State authorities and judges, as amended, by

which belongs to the representatives and judges, which are determined by law, the next

salary, if in the calendar half-year, actually they at least

90 calendar days. Pursuant to Act No. 268/1998 Coll., however, this additional salary

officials and judges do not belong. Because the date of 5. November 1998,

i.e.. the effective date of the contested act (at this point, the Constitutional Court

points to the mistake of the applicant in determining the effective date of the contested

the law, the law took effect to 19. November 1998), already a major part of

leaders and judges the legal requirements of section 4, paragraph 4. 2 of law no 236/1995

Coll., for entitlement to additional salary for the second calendar half year

1998 meet and Act No. 269/1998 Coll. retroactively withdrawn the claim,

He-according to the plaintiff-the prohibition of retroactive. For this reason,

as well as referring to the spirit of the Constitution and the constitutional principles of the rule of law

the applicant finds the contradiction of Act No. 269/1998 Coll. with the article. 1 of the Constitution and article.

2 of the Charter of fundamental rights and freedoms ("the Charter").



The application for annulment of the Act is expressed by the party to the proceedings-Parliament

The United States, through the Chairmen of the two chambers, i.e.. Prof.

Ing. Vaclav Klaus, CSc., Chairman of the Chamber of Deputies, and PhDr. Libuše

Benesova, President of the Chamber.



In the Chamber of deputies are enhanced by the conditions, after which

meet belongs to leaders and judges (similarly to the Prosecutor and

Member of the Presidium of the Securities and Exchange Commission) for more salary. Act No. 268//1998

Coll. of legally relevant manner provided that the fulfilment of the other conditions

does not affect the entitlement to additional salary referred to entities (this circuit

the second condition could not be objectively at the time of publication of the Act No. 268/

met/1998 Coll.). Therefore, the President of the Chamber of Deputies maintains that the law

No 268/1998 Coll. are not retroactive, will not alter the elements on which it was created

a claim in the past, but modified the legal relations in the future-set,

before the fulfillment of the two conditions necessary for entitlement to additional

the salary that the fulfilment of these conditions will not lead to the creation of additional

salary. From the observations of the Chamber of Deputies, that the contested act

was approved by the required majority of the members of the legislature, signed

respective constitutional factors and properly declared in the collection of laws. From

for these reasons, the President of the Chamber of Deputies expressed the opinion that the

the legislature acted in the belief that the law is adopted in accordance with the

The Constitution, the constitutional order and our rule of law. Still, it kept on

The Constitutional Court, in the context of the examination of the proposal to assess the constitutionality of

the contested law and issued the appropriate decision.



In the comments of the Board, merely describes the progress of the legislative process in

this Chamber and expresses the intention of the Senate in approving the Bill.

A draft law on withdrawal of additional salary approved by the Senate as its proposal and

He advanced to the Chamber of Deputies for further discussion. The Senate this

the proposal followed the achievement that both employees of budget sphere,

as well as officials, judges, prosecutors and members of the

the Presidium of the Securities and Exchange Commission in 1998 will belong to only one

In addition, additional salary. The Senate assumed that the law will take effect on

such date in order to have any doubt about any retroaktivitě have been

excluded. The content of a submitted an application for annulment of the Act shall

The Senate would not comment.



Act No. 269/1998 Coll. was initiated by the Senate as its design and delivery

July 17, 1998 (when the vote of the members present voted in favor of the 61 45 for

adoption of the proposal, and 4 were against). The Chamber of Deputies approved the proposal 30.

October 1998 (of 184 MPs voted for a proposal from the 174 members

and 1 was against). On 5 July 2004. November 1998 the Senate then took advantage of their rights and

He expressed the will of the draft law is to dwell (voted for this procedure from the

57 37 senators present). The law was signed by the respective constitutional

agents and duly promulgated in the collection of laws on 19 December. November 1998 when

also took effect.



Of the application and of the demand documents before the District Court for Prague 4 sp.

Zn. 27 C-54/99, the Constitutional Court found that on 1 May 2004. March 1999

District Court for Prague 4 delivered the action, which the judge

The High Court in Prague against the Czech State is seeking-the High Court in

-Payment of additional salary of $ 40,000 with accessories

(The Constitutional Court here set aside the attention unsuitable designation

the defendant). The Court, without hearing-in accordance with the proposal

the applicant-management pursuant to § 109 paragraph. 1 (b). (b)) code of civil

order cut off, while the stay of proceedings was motivated by the fact that he came to the

the conclusion on the violation of Act No. 269/1998 Coll., which is supposed to be when the solution matters

used with the Constitution. After the final resolution on the suspension of proceedings filed by the

The Constitutional Court for annulment of the Act (article 95, paragraph 2

The Constitution and § 64 para. 4 of the law on the Constitutional Court).



The Constitutional Court, being aware of the exceptional severity of the case,

decided to concentrate on the essence of the problem itself, which sees the

the assessment of whether the contested act is or is not in breach of the principle of

judicial independence enshrined in article. paragraph 82. 1 of the Constitution. As

a democratic legal State, how the Czech Republic defines in article. 1

The Constitution, considered to be the source of all the people of the State (article 2 (1)

The Constitution, however, saying that the people of this State power is exercised through the

authorities able to legislative, Executive and judicial. The principle of the Division of State power

following our Constitution on the intellectual tradition that transparent

in the manner expressed by Charles Montesquieu, institutionally, then in particular

the American Revolution, which stressed and institutionalised,

the need for independence of the judiciary. However, therefore in the realm of justice

It does not even democratic State of maximalistické programs, on the other

side obliged to create the institutional prerequisites for fair

the independence of the courts, to stabilize their positions as, in relation to the

legislation and executive branch, a significant státotvorného, at the same time, however, i

"polemického" element. Where pursuant to article. 2 (2). 1 of the Charter, that our State

It is based on democratic values, then it should be just

emphasize that one of the extremely important values in this respect

being already established the principle of judicial independence. This principle

contains in itself a whole range of aspects that, in their aggregate they create

prerequisites for the courts to fulfil their tasks and obligations

in particular in the area of the rights and freedoms of man and citizen (article 1 of the Constitution). Can be

be considered to be natural, that some of these aspects can be

the nature of the material, although each such aspect is naturally at the same time

material subtext. Such is the case in the area provided refunds, where

as an example, might appear to be the text of the Constitution is contained in article 4(1) thereof. (III)

section 1: "the judges of the Supreme Court and the inferior courts shall remain in

features for life, if you behave well; for his service to receive in


fixed compensation, which may not be for the duration of their

service reduced. " Act No. 269/1998 Coll., on the withdrawal of the additional salary for

the second half of 1998, officials and some

Government agencies, judges, prosecutors and members of the Presidium of the Commission

securities, in the opinion of the Constitutional Court represents a breakthrough in

These "nezadatelnosti" rights of judges on the nekrácení provided by the compensation

and more or less is that categorizes as "civil servants". Such an approach

the legislature, after all, a renewed, even though outwardly can seem like a

moral gesture in the face of current social, economic, in particular

conditions, in fact only devalues one of the fundamental

democratic values, which represents judicial independence.

Log on to our Constitution and the Charter of the existence of the value of the order

that represents a fundamental pillar and the company, then the bolt

the legislature, as well as the Executive Branch, must in all their acts,

respect his priority, even in relation to ethical and

legal regulatory system. Also the Constitutional Court therefore considers that the

the provisions of section 1 of Act No. 269/1998 Coll., by odejímá salary also

the judges, is in breach of article. 1 of the Constitution and article. 2 (2). 1 of the Charter.



The principles, which take into account led the Constitutional Court concludes, are

so dominant in their light, in part, "vybledávají" more

issues relating to the prohibition of retroactive and the protection of acquired rights.

Therefore, just on the edge of the Constitutional Court in this connection points to the whole

a number of its decisions, for example. PL. ÚS 3/94 (TC, vol. 1, p. 279-291), Pl.

TC 12/94 (TC, vol. 3, p. 123-134), pl. ÚS ÚS (9/95, vol. 5, p. 107-

146), pl. ÚS 21/96 (TC, vol. 7, pp. 87-97). PL. ÚS 33/96 (TC, vol. 8, p.

163-172), and sees no reason for a change in those decisions

contained opinions. The provisions of § 4 para. 2 of law no 236/1995 Coll.

as amended, the result the following legal

the conditions for entitlement to the additional salary for the second half of 1998, and

First, the actual performance of the functions for at least 90 calendar days in the

This semester, and the duration of the performance of the duties of a representative at 30.

November 1998, respectively, the duration of the working relationship of the judge on the date of 31.

December 1998. The right to additional salary, therefore, was the beneficiary of

only by fulfilling the conditions mentioned above, i.e. at length. First, on 30 November.

November 1998, which in effect means that the contested Law,

nespojující no legal effects with any legal facts nastavší

before its effect does not retroactively, and because on the date of its

efficiency, IE. to 19. November 1998, yet no person there is

subjective right to additional salary, could not intervene. the acquired

rights.



Zrušované the word "judges" refers to the provision of section 1 of Act No. 269/1998

Coll. Note No. 2) the provisions of paragraph 1 (b). g) Act No. 237/1995 Coll.

sounding "judge of the district, regional and High Court, Supreme Court

and the Supreme Administrative Court (hereinafter referred to as "judge") ". The Judges Of The Constitutional

the Court is given the note No. 1) the provisions of section 1 of Act No. 269/1998

Coll. classified in category "representatives of State power and some

the State authorities "[§ 1 (a)) to f) of Act No. 237/1995 Coll.]. However

The Constitutional Court is not part of the system of general courts and its organization,

as well as the proceedings before it are separately regulated in articles 83 to 89

Of the Constitution and in Act No. 182/1993 Coll., as amended,

It is also very much in the head, the Court modified the fourth Constitution and also on the

the judge applies. paragraph 82. 1 of the Constitution dealing with judicial

independence. The Constitutional Court, being aware of both of these moments, he decided to

However, the question does not deal with the associated, meaning that the word

"the judges" was cancelled within the meaning and scope of annotation # 2) to the provisions

section 1 of Act No. 269/1998 Coll.



The Constitutional Court because of the reasons mentioned in paragraph 1 of the law No.

268/1998 Coll., on the withdrawal of the additional salary for the second half of 1998

officials and some government agencies, judges,

prosecutors and members of the Presidium of the Securities and Exchange Commission, in the text

"Officials and some State authorities, 1) judges, 2)

a zástupcům3) and members of the Presidium of the papíry4 Commission) for more

plat5) for the second half of 1998 does not belong "under the provisions of section 70

paragraph. 1 Act No. 182/1993 Coll., the word ' soudcům2) "set aside the day of its publication

hit in the collection of laws, for his conflict with the article. 1 of the Constitution and article. 2

paragraph. 2 of the Charter, while the rest of his proposal to repeal the law

No 268/1998 Coll. pursuant to section 70 para. 2 Act No. 182/1993 Coll. rejected.



This finding is enforceable on the day of its publication in the journal of laws.



The President of the Constitutional Court:



JUDr. Kessler v. r.



Different opinion referred to in section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

the decision of the plenum have been judges. Miloš Holeček, JUDr. Ivana Janů

and JUDr. Zdeněk Kessler and its justification. Vladimir Paul.