In The Case Of A Proposal To Repeal The Law No 427/2003 Coll.

Original Language Title: ve věci návrhu na zrušení zákona č. 427/2003 Sb.

Read the untranslated law here: https://www.global-regulation.com/law/czech-republic/512753/ve-vci-nvrhu-na-zruen-zkona-.-427-2003-sb.html

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Get a Day Pass for only USD$19.99.
354/2005 Sb.



FIND



The Constitutional Court



On behalf of the Czech Republic



The Constitutional Court ruled on 14 July. July 2005, as amended by an amending resolution

of 30 March 2004. August 2005 in plenary in the composition of Stanislav Package, František

Duchoň, Turgut Güttler, Pavel Holländer, Ivana Janů, Dagmar Lastovecká,

Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Výborný,

Elisabeth Wagner and Michael Židlická, decided to design the municipal court

in Brno on the repeal of law No 427/2003 Coll., amending, for the year 2004

provides exceptional measures in determining the amount of the salary and certain refunds

expenses related to the performance of functions of the representatives of the State power and to some

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

representatives of the above further the salary of these persons in the first half of 2004, and

amending certain related laws, in the section "concerning one

half of the additional salary for the first half of 2004 in relation to the judges

District, regional, high courts, the Supreme Court and Supreme

Administrative Court [section 2 in relation to the provisions of section 1 (b), (h))

Law No 427/2003 Coll.] ",



as follows:



On the date of publication of this finding in the collection of laws shall be repealed the provisions of section 2 of the

Law No 427/2003 Coll. as amended by Act No. 626/2004 Coll. and Act No.

127/2005 Coll. with regard to a judge of the district, regional and high

Court, Supreme Court and Supreme Administrative Court [section 1 (b) (i)).

No 427/2003 Coll. as amended by Act No. 626/2004 Coll. and Act No. 127/2005

SB.].



Justification



(I).



The definition of things and a recap of the proposal



The Constitutional Court was 26 March. August 2004 proposal delivered to the municipal court in

Brno, Czech Republic to abolish the "Law No 427/2003 Coll. in the part concerning one

half of the additional salary for the first half of 2004 in relation to the judges

District, regional, high courts, the Supreme Court and Supreme

Administrative Court [section 2 in relation to the provisions of section 1 (b), (h))

Law No 427/2003 Coll.] ".



The appellant did so according to § 64 paragraph. 3 of Act No. 182/1993 Coll., on the

The Constitutional Court, as amended, and then, in

connection with his decision-making activities in accordance with the article. paragraph 95. 2

The Constitution has come to the conclusion that the provisions of section 1 (b). h) and section 2 of Act No.

427/2003 Coll., which has to be in solving things sp.. 33 C 236/2004

used, it is in breach of article. 1 (1). 1 in conjunction with article. paragraph 82. 1

Of the Constitution and article. 1 of the Charter of fundamental rights and freedoms (the "Charter").



In this case sp.. 33 C 236/2004 is the municipal court in Brno

decided on the action of the judge of the same court in which the plaintiff seeks to

Czech Republic-Municipal Court, in payment of one half of the

additional salary for the first half of 2004, a total of 21.600 CZK

While based on the claim the provisions of section 4 of Act No 236/1995 Coll., on

salary and other terms associated with the performance of the functions of representatives of

of State power and some State authorities and judges, as amended

regulations, be deemed to have satisfied the prerequisites. In the pay period,

set on day 15. in July 2004, however, as a result of Act No.

427/2003 Coll., half of the additional salary for the first half of the year 2004

was not paid.



Removing the additional salary for the first half of 2004, according to the

the petitioner to undue and repeated intervention in the judicial

independence. By law No 427/2003 Coll. that occurred was withdrawn

half of the additional salary payable for the first and the second half of 2004,

2005 and 2006, taking in those years, the salary used in the base

the amount of the obtained under special legislation on the date of 31. December

2003 (which represents the "salary freeze"). This measures the legislature

He came at a time when he was known to justify the finding of the Constitutional Court

SP. zn. PL. ÚS 11/02, on whose support the reasons for the plaintiff refers to.



Municipal Court points out further restrictions made by the Act No 420/2002

Coll., which was significantly shortened the time judges, after which they

provided the salary in the temporary inability to exercise the function of the

the original 6 months for a period of 20 working days, while the Institute

provision of full salary during the temporary incapacity is considered as one of the

part of the material guarantees the security of the peace. For other restrictions

the salary level of judges then indicates the consequences resulting from the law

No 425/2002 Coll., amending, for the year 2003 provides special measures in

determining the amount of the salary and some expenses related to the performance of

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

prosecutors, and fixing the amount of these persons, other salaries

for the first and the second half of 2003. According to the provisions of section 1 of the

the law for the determination of salary and other allowances and expenses associated with

the performance features in 2003 for the listed representative and judge

applies the salary base of formal to 31. December 2002,

and with regard to the amendment of the legislation pay scales, and personal

the supplement made for staff of ministries, with effect

following the date of 31. in December 2002, the salary base in that

the year has not increased. Although a normal run of events should be according to the

the petitioner from the 1. January 2003 to increase the salary of a judge as a result of

changes to the regulation of pay scales, and personal supplement made for

employees of ministries, ad hoc taken by the law on judges

avoid.



The applicant draws attention in this context to the explanatory memorandum to the Act

No 420/2002 Coll. and Act No. 425/2002 Coll., which according to him implies that

they watched the legislature the objective "maintaining a comparable position

each of the groups "of people, i.e.. civil servants, representatives of the

State power and judges, with the special status of judges as regards the

the amount of remuneration, the lawmakers seemed unfair and

fixed-width. This procedure shall be considered as the city court in Brno for the

unconstitutional, contrary to the judge on the physical security,

that is one of the guarantees of its judicial independence. Points out

the fact that the legislature while maintaining the requirement

"a comparable position of each groups ' persons, as referred to in

Moreover, later said the reports failed to comply with, because, among other things:



-amendments to the regulation of the Government No. 253/1992 Coll., on the emoluments

employees of State administration bodies, certain other bodies and municipalities,

carried out by regulation of the Government No. 582/2002 Coll., with effect from 1.

January 2003 to increase the scale of pay scales according to the grades and

grade grades for the employees referred to in section 1 (1). 2 regulation of the Government

No 253/1992 Coll.,



-amendments to the regulation of the Government No. 251/1992 Coll., on the emoluments

employees of budgetary and certain other organizations, carried out

Government Ordinance No. 583/2002 Coll., with effect from 1. January 2003 to

the increase in the scale of pay scales according to the grades and grade

degrees for the employees referred to in section 1 (1). 2 regulation of the Government No. 251/1992

SB.



-amendments to the regulation of the Government No. 79/1994 Coll., on the emoluments

the staff of the armed forces, security forces and services and authorities

the customs administration, members of the Corps and employees of certain fire protection

other organisations (staff salary regulations), carried out by regulation of the Government

No 584/2002 Coll., with effect from 1. January 2003 to increase the scale

pay scales according to the grades and salary grades for

the employee referred to in section 1 (1). 2 Government Regulation No. 79/1994 Coll.



-the adoption of Act No. 361/2003 Coll., on the service of members of

security forces, with effect from 1. January 2005 to increase

the salary of the members of the security forces by about 30%,



-the adoption of a regulation of the Government No. 330/2003 Coll., on the emoluments

staff in public services and administration, with effect from 1 January 2003.

January 2004 to increase the scale of pay scales according to the grades and

grade grades for the employees referred to in section 1 (1). 1 regulation of the Government

No 330/2003 Coll.



The municipal court in Brno, in addition, argues even with the intention of the law of the

at the time of submission of the proposal, according to which should lead to the cancellation of other salaries,

which the appellant considered standing in stark contrast with the already mentioned

the finding of the Constitutional Court.



The proposal is contained in a further objection to the eventual claim, according to which the

other salaries of judges are by their nature essentially bonuses paid

once for the half-year to the current monthly income of a judge. According to the opinion of the

The municipal court in Brno, this makes the calendar period are

with the pay period, the pay period will not interfere with the

calendar, because it is just "a certain amount of the total financial volume

belonging to the judges for a well-defined period by law. " Therefore, if a

withdrawal occurs even if only one of the other salaries are

automatically to the overall reduction in the guaranteed annual income Act

judge.



Different interpretations of the terms "other remuneration", however, as it leads to the fact that

access to the platovým legislature issues relating to judges to be

rate in the sense of arbitrariness, both in the context of the law No.

427/2003 Coll., and in the past (Law No. 287/1997 Coll., Act No.
268/1998 Coll., Act No. 308/1999 Coll., Act No. 416/2001 Coll., Act No.

425/2002 Coll.).



The withdrawal of half of the additional salary for the first half of 2004, it therefore seems

the claimant as unconstitutional as a result contrary to the judge on

the material security of his judicial independence, which is apparent from

article. 1 (1). 1 in conjunction with article. paragraph 82. 1 of the Constitution and with article. 1 of the Charter.

The material is then to ensure independence from him, one of the guarantees

an impartial and fair decisions on rights and law-protected

the interests of the people.



The applicant draws attention to the difficulty of further construction of the small print of the proposal,

that is caused by the fact that the provisions of section 1 of Act No 427/2003 Coll.

nevyjmenovává only the kinds of functions, which are covered by the withdrawal of a further

salary, but also regulates the anchor base grade of formal to

31. December 2003 (the so-called freezing of salary). The applicant accordingly but only

the cancellation of the part of the law No 427/2003 Coll., concerning judges and just about

the withdrawal of additional salary in the amount of one half of the first half of the year

2004.



For the municipal court in Brno, proposes that the Constitutional Court finding

decided that "repeals part of Act No 427/2003 Coll., in the section on

one half of the additional salary for the first half of 2004 in relation to the

the judges of district, regional, high courts, the Supreme Court and

The Supreme Administrative Court [section 2 in relation to the provisions of section 1 of the

(a). (h)) Law No 427/2003 Coll.] ".



II.



Recap the essential parts of the representation of a party to the proceedings



According to § 42 paragraph. 4 and section 69 of Act No. 182/1993 Coll., as amended

the rules, posted by the Constitutional Court, the present proposal from the Chamber of Deputies. In

its observations of 5 December. October 2004, the President of the Chamber of Deputies

Parliament of the Czech Republic, PhDr. Lubomír Zaorálek States that at the time of

consideration of the draft law, which was later published under the No.

427/2003 Coll., the Chamber of Deputies was aware that the

the issue of, i.e.. the withdrawal of the next salary of the judges, has already been

several times attacked for unconstitutionality due to an unacceptable intervention in the

judicial independence. Still, the Chamber of Deputies remained on its

the opinion that the non-payment of additional salary for the judges is not in conflict with

the constitutional order, for his partial non-payment could not endanger the

independence of judges, in particular because it is not a surprise, nor

deep intervention into their material security.



The President of the Chamber of deputies also confirmed, in accordance with the requirements of

contained in the provisions of section 68, paragraph. 2 Act No. 182/1993 Coll., as amended by

amended, law No 427/2003 Coll. was adopted after duly

carried out by the legislative process, was signed by the respective constitutional

agents and declared in the collection of laws. In conclusion, the expression then

notes that, in this state of things cannot be other than to express 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 the legal order of the Czech Republic, and

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

the constitutionality of this law and issued the appropriate decision.



According to § 42 paragraph. 4 and section 69 of Act No. 182/1993 Coll., as amended

the rules, posted by the Constitutional Court of the present proposal and the Senate of the Parliament of the Czech

of the Republic. Introduction of its observations of 5 December. October 2004, his then

Chairman doc.JUDr. Petr Pithart summarises the progress of the consultation

of the Act by Parliament. Notes that the proposal for the contested act

the Government presented the House of Commons 7. in July 2003, in the context of the proposals

laws related to the reform of public finances. The Bill, whose

part is designed to abolish, was after its approval in the Chamber of Deputies

the House delivered to the Senate the day 8. October 2003. In the Senate, as was the Senate

print no. 173 discussed in two committees,



-in the Committee on economy, agriculture and transport, which, as the Committee

the guarantee of the Senate to approve the Bill recommended in the text of the transferred

The Chamber of Deputies,



-in the Committee of the constitutionally-legal, who advised the Senate to return the Bill

The Chamber of Deputies with amendments, which the Committee adopted

(these were amendments concerning the determination of the salary base

and the legislative amendments of a technical nature in response to adjustments to

in other laws).



The Senate presented a Bill discussed on their 11. the meeting of 6 November.

November and after extensive discussion, adopted a resolution, which approved it in

the text of the Chamber of Deputies transferred. For this resolution from 69

present senators voted 40, 19 Senators against it.



To discuss the draft of the law, in expressing further States that in

the bodies of the Chamber have been applied to it from the perspective of critical reservation

nesystémovosti adaptations, in particular as regards further freezing of salary

the base. The question was also discussed the constitutionality of restrictions on reuse

other salaries, relating and judges. In addition to the views in this matter

challenging the constitutionality of the proposed modifications were performed and doubts as to whether

the proposal can be judged as unconstitutional, if there are different decision

The Constitutional Court in matters relating to restrictions other salaries of judges.

In the final vote, however, eventually most of the present proposal required

the law was approved by the Chamber of deputies in the wording of a transferred.



As proposed is materially identical to the petit petitem referred to in

proposal to repeal parts of the law No 425/2002 Coll., amending, for the year 2003

provides exceptional measures in determining the amount of the salary and certain refunds

expenses related to the performance of functions of the representatives of the State power and to some

State authorities, judges and prosecutors, and those persons

the amount of additional remuneration for the first and the second half of 2003, which

the Constitutional Court is kept below the SP. zn. PL. TC 34/04, the President of the Senate

Another refers to the representation of the Senate of December 8. September 2004 no j. 9654/04,

submitted to the design of led under SP. zn. PL. TC 34/04.



III.



The abandonment of an oral hearing



According to the provisions of section 44, paragraph. 2 Act No. 182/1993 Coll., as amended

legislation, the Constitutional Court may, with the consent of the participants from the oral proceedings

the refrain, if you cannot expect him to further clarification of the matter. Due to the

the fact that both participants, i.e.. the claimant in filing of 15 July. June 2005

and the parties to the proceedings in the Chamber of deputies of the Parliament President

Czech Republic of 2 July. June 2005 and President of the Senate of the Parliament

The Czech Republic of 9 December 1999. June 2005 expressed their agreement with the

abandonment of the oral proceedings and whereas, Furthermore, that the Constitutional Court has

but, since the meeting cannot be expected to further clarification of the matter, it was from the

the oral proceedings in the case dropped.



IV.



The diction of the contested legislation



According to the provisions of section 1 (b). (h)) Law No 427/2003 Coll. as amended by Act No.

626/2004 Coll., for the determination of salary and certain compensation expenses related to

the performance of the function of "judge of the district, regional and High Court,

The Supreme Court and the Supreme Administrative Court "shall apply in 2004

the salary base of achieved by special legal předpisu1)

31. December 2003. This special provision according to the note. 1 is the law No.

425/2002 Coll., amending, for the year 2003 provides special measures in

determining the amount of the salary and some expenses related to the performance of

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

prosecutors, and fixing the amount of these persons, other salaries

for the first and the second half of 2003.



According to the said provisions of section 1 (b). (h)) Law No 427/2003 Coll., valid

before the amendment made by Act No. 626/2004 Coll., i.e.. in the text of the

valid until 31 December 2006. in December 2004, for the determination of salary and certain refunds

expenses related to the performance of the function of "judge of the district, regional and

the High Court, Supreme Court and Supreme Administrative Court "applies

the salary base of achieved by special legal předpisu1 to

31 December 2003, and not just in 2004, but in 2005 and

2006.



In accordance with the provisions of section 2 of the Act, in the wording of the article. And section 5 of Act No.

626/2004 Coll. applies: "If under special legislation belongs to

the persons referred to in section 1 of the additional salary, provide them for the first and second

half-year 2004 amounting to only half of the amount to which they would otherwise

entitlement. " In its original diction section 2 of law No 427/2003 Coll. before

the said amendment to regulate the provision of further identical way

the salary of the persons referred to in section 1 of the Act, not only for the first and second

half of 2004, but the years 2005 and 2006.



In the.



The conditions of the appellant's evidence is active



The proposal to abolish the "Law No 427/2003 Coll. in the part concerning one

half of the additional salary for the first half of 2004 in relation to the judges

District, regional, high courts, the Supreme Court and Supreme

Administrative Court [section 2 in relation to the provisions of section 1 (b), (h))

Law No 427/2003 Coll.] "was filed with the municipal court in Brno from

the provisions of § 64 paragraph. 3 of Act No. 182/1993 Coll., as amended

regulations.



As was already mentioned in naraci, SP. zn. 33 C 236/2004

The municipal court in Brno decided to judge of the same court in which
the plaintiff is seeking against the Czech Republic-the municipal court in Brno

the payment of one half of the additional salary for the first half of the year 2004 in

the total amount of 21.600 CZK, and relies his claim about the provisions of section 4 of the

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

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

judges, as amended, whose assumptions considered

to be satisfied. In the pay period, as stated on day 15. in July 2004, he

However, as a result of Act No 427/2003 Coll., half of the additional salary for the first

half-year 2004, was not paid.



The municipal court in Brno, then what in the context of its decision-making

activities in accordance with the article. paragraph 95. 2 of the Constitution, came to the conclusion that the

the provisions of section 1 (b). h) and section 2 of Act No 427/2003 Coll., which has to be

the solution things sp.. 33 C 236/2004 applies, is in contradiction with article. 1 (1). 1

in conjunction with article. paragraph 82. 1 of the Constitution and article. 1 of the Charter, after the suspension of

Tribal management pursuant to § 109 paragraph. 1 (a). (c)) on the s. row. The Constitutional Court

submit the present proposal on control standards.



A procedural condition for the locus standi of the General Court according to § 64 paragraph. 3

Act No. 182/1993 Coll., on the Constitutional Court, as amended,

such is the position of the law. its individual provisions, which

the repeal is proposed, to the subject of tribal control, which is based on

the assessment of the case by the General Court of the reasons for the decision.



As is apparent from the description of the proceedings at the General Court, therefore, on

side of the petitioner stated fulfillment of its active

the evidence for the control of inspection standards.



VI.



The assessment of the merits tests are applied to stop the proceedings according to section 67 of Act No. 182/1993 Coll.



The provisions of section 1 (b). h) and section 2 of Act No 427/2003 Coll. was during the

of the proceedings before the Constitutional Court partially amended article. (I)

points 4, 5, of Act No. 626/2004 Coll., amending certain laws in the wake of

on the implementation of the public finance reform in the field of remuneration. This

legislation in force on 1 January 2005. January 2005 (article. XXIII of Act No.

626/2004 Sb.).



According to section 67, paragraph. 1 of the law on the Constitutional Court is given a reason for the termination of the proceeding,

If the law, other legal regulations or their individual provisions,

the repeal is proposed, will expire before the end of the trial

before the Constitutional Court.



To the interpretation of that legal reason to stop the proceedings is the constitutional

the Court expressed in particular in finding SP. zn. PL. ÚS 15/01. On the basis of

the meaning and purpose of section 67, paragraph. 1 of law No. 182/1993 Coll.,

change to the cancellation of the proposed legal provisions establishing the reason

termination of the proceeding on the control standards only if the assessment of the

the constitutionality of this provision irrelevant.



From the perspective of the following terms as defined by the interpretation and application of section 67 of the Act

No. 182/1993 Coll. then be concluded that the change in the provisions of section 1 of the

(a). h) and section 2 of Act No 427/2003 Coll., article. I, points 4, 5 of the law

No 626/2004 Coll., the touch sense and purpose of the amended legal

provisions only restrict their scope of time for 2004 and

eliminate their coverage for the years 2005 and 2006, and thus nezaložila the reason

stopping of the control on the control standards. The next time the scope of the

the pay restrictions on the withdrawal of the incident other salaries in years

2005 and 2006 had allowed to lapse after the cancellation of the Institute other salaries by law No.

626/2004 Coll. of rational sense. The same statement also applies to a change

(a) designation of the provision contained in article 1 of law No.

427/2003 Coll. as amended by Act No. 626/2004 Coll., the Act No.

127/2005 Coll. 1



In addition, you can mention the fact that even the subject of proceedings for

The municipal court in Brno under the SP. zn. 33 C 236/2004, of which the proposal to

repeal of the provisions of section 1 (b). h) and section 2 of Act No 427/2003 Coll., is

entitled to judge the General Court of the Czech Republic-Municipal Court

Brno concerning the payment of one half of the next salary for the first half of the year

2004.



VII.



Constitutional competence and conformity of the legislative process



The Constitutional Court, in accordance with the provisions of section 68, paragraph. 2 Act No. 182/1993

Coll., is in the control of the standards required to assess whether the contested act,

its individual provisions. another legal regulation or his

individual provisions, was accepted and published in the limits of the Constitution laid down

competence and constitutionally prescribed way.



Of Council publications and těsnopiseckých reports, as well as the observations of the participant

proceedings, it was found that the Chamber of Deputies approved the proposal

the law in question 3. reading on their 20. the meeting of 26 July. September 2003

resolution No. 668, when MPs from the present 196 and members 139

voted for and 40 against.



The Senate on its 11. the meeting, held June 6. November 2003, the Government's proposal

the law, which for the year 2004 an extraordinary measure in determining the

the amount of the salary and some expenses related to the performance of functions

representatives of the State power and certain public bodies, members of

The European Parliament, judges and prosecutors, the amount of the additional salary

These persons in the first half of 2004, and amending some of the

related laws, approved by the Chamber in the wording of a transferred

the House, in a vote which of the present senátorek and 69

Senators voted 40 to 19 and was against.



The law in question was signed by the respective constitutional actors and was under the

No 427/2003 Coll. properly declared in the amount of 139 collection of laws, which was

circulated to 12 June. in December 2003, and according to section 6 came into effect on the date of

publication, or on the date of dispatch of the relevant amount of the collection of laws.



VIII.



The content of the contested legal provisions compliance with the constitutional order

(the constitutionality of the pay restrictions against judges)



The Constitutional Court is the issue of the pay restrictions against judges in the form of

the withdrawal "of the next salary" dealt with in a number of its decisions. The detailed

a recap of this case law is contained in the finding of the Constitutional Court sp.

Zn. PL. ÚS 11/02.



Despite this fact, because the Constitutional Court is the problem

again, we can only repeat this recapitulation of the General.



In the derogačním finding SP. zn. PL. ÚS 13/99 of 15 December 1999. September 1999 of the constitutional

the Court annulled the part of the provisions of section 1 of Act No. 268/1998 Coll., on withdrawal

additional salary for the second half of 1998, representatives of the State power and

some State authorities, judges, prosecutors and members of the Presidium

Securities and Exchange Commission, and that the provisions governing the withdrawal of other

the salary of the judges for the second half of 1998. The main reason for this award was

the argument of the principle of judicial independence, the Court within whose framework

i put my "aspects of material nature". Another argument has become

voucher for the diversity of the constitutional position of the judges on the one hand, and

representatives of legislative and executive power, particularly of the State administration, on the

the other side.



The discovery of 3. July 2000, SP. zn. PL. ÚS 18/99 of the Constitutional Court

on the cancellation of part of the provisions of Section 4a of the Act No 236/1995 Coll., as amended by

Act No. 287/1997 Coll., relating to the withdrawal of the additional salary for judges

the second half of 1997, has rejected. Even the award while he emphasized that

judicial independence is one of the fundamental democratic

values, which certainly helps ensure the material security

judges. Considered for substantial, to the salaries of the judges of the other authorities

the State may not, in whatever form, arbitrarily and repeatedly.

But for the intervention of the legislature rozhodovaný case characters showed no arbitrariness.

According to the Constitutional Court to assess the constitutionality of the contested legal

the provisions could not be put aside from the difficult social and economic

the reality, in which the Czech Republic in 1997.



The same day, i.e.. July 3, 2000, the Constitutional Court finding SP. zn. Pl. ÚS

16/2000 rejected a proposal to repeal part of the provisions of section 1 of Act No.

308/1999 Coll., on the withdrawal of the additional salary for the second half of 1999 and for the

the second half of the year 2000, the representatives of the State power and to some

State authorities, judges, prosecutors and members of the Presidium of the Commission

for securities, the provisions governing the withdrawal further salary

the judges for the second half of 1999 and the year 2000. Has not changed yet

the basic way out of the problem assessment. He emphasized that the salary

judges should not be the moving factor according to immediate liking it

or that the Government group. The withdrawal "of the next salary" assessed, therefore,

as an exceptional Act which can be authorized only for serious reasons, for which

consider the impact of the financial problems of the State, and only in connection with

complex adopted austerity measures relating to salaries in the whole sphere

State officials and employees.



Finally, on 11 July. in June 2003, the Constitutional Court finding SP. zn. PL-11/02

set aside the part of the provisions of § 1 of the law No. 416/2001 Coll., on the withdrawal of other

the salary for the second half of 2001 and the determination of the amount of additional remuneration for the

the first and the second half of 2002, representatives of the State power and to some

State authorities, judges, prosecutors, members of the Presidium of the Commission for the

securities, representatives of the Ombudsman and members of the Bank Council

The Czech National Bank, relating to the withdrawal of an additional salary of judges
for the second half of 2001 and further reducing the salary for the first and second

half of the year 2002 the amount of half of the amount to which they would otherwise

the entitlement.



The Constitutional Court has come to the conclusion on the basis of the assessment and other

related legal provisions.



Act No. 425/2002 Coll., amending, for the year 2003 provides exceptional

measures in determining the amount of the salary and certain compensation expenses related to

the performance of the functions of State power officials and some State authorities,

judges and prosecutors, and fixing the amount of such persons

other salaries for the first and the second half of 2003, which became effective

October 1, 2002, section 1 provided that, for the determination of salary and other

compensation and expenses related to the performance of functions in 2003 for the listed

Representative and the judge applies the salary base of formal to 31.

December 2002. As a result of changes to legislation and pay scales

personal supplement made for staff of ministries, with effect

following the date of 31. in December 2002, the salary base in that

the year has not increased. The provisions of § 2 of the law contains further shortening of the salary

the same persons belonging to the specific legislation for the year 2003

half. The provisions of section 3 has ruled out, for the period from 1. January 2003 to 31 December 2004.

December 2003 the use of section 3 (3). 3 of the law no 236/1995 Coll., on salary and

other terms associated with the performance of the functions of Heads of State

power and some State authorities and judges, as amended by Act No. 309/2002

Coll. in the grounds of the award SP. zn. PL. ÚS 11/02 the Constitutional Court pointed out

the text of the message to drafts of both the reason of the above-cited laws, of which

It is obvious that the claimant was a goal of "maintaining the

a comparable position of various groups of persons, i.e. ". State

employees, representatives of the State power and judges, with a special

the status of judges as regards the amount of compensation, the claimant was

as unfair and fixed. The assessment of the constitutionality of § 1 (b).

h) and section 2 of Act No. 425/2002 Coll. is the subject of the proceedings conducted prior to the

The Constitutional Court under the SP. zn. PL. TC 34/04.



Implied changes in the legislation relating to the platovým conditions

the judges of the Constitutional Court considers exceeded constitutional limits for the

acceptance of the "uniqueness" of the Act, which was to withdraw the next salary

the judges of the Court, as defined in previous decisions. Said

further, if exceptional circumstances accentuate the principle

equality in the area of restrictions in the remuneration of public servants,

constitutional factors and judges before principle comprehensively understood

the independence of the judges, this session does not apply both principles in General as

once and for always and in all circumstances. On the contrary, remuneration

the judges in the broad sense to be stable, nesnižovatelnou

rather than moving the factor with which to compute this or that Government clusters

for example. Therefore, the salaries of judges seem to him too high in comparison with the

the salaries of civil servants or compared to another professional group.

In other words, if you can accept the application of the principle of equality in the above

that sense of what an exceptional reduction to economically reasoned salaries

all, you cannot accept the equality of all of the above mentioned groups (or as

the target category) to the final amount of the salaries. The pursuit of such

equality stray from the category the constitutionality, it is a political objective, which

does not have a foothold in the constitutionally understood the principle of equality. This principle is found in the

material terms of their boundaries in terms, according to which "the same shall not

be adjusted arbitrarily, unevenly, but it must not be the sole

adjusted arbitrarily as well ". The principle of equality cannot be understood as a

standardisation in the result, but it should be interpreted as a guarantee

the same starting chances. However, the principle of equality laid out as follows

the legislature according to the beliefs of the Constitutional Court in section 1 of the law No. 416/2001

Coll. clearly failed to comply with.



From the perspective of comparative in developed democracies of Western Europe cannot

find the case against judges pay restrictions, with this issue

It is therefore not confronted or doctrine. A comparable situation appear

only in the post-Communist countries of Europe.



Illustrations is extensive case law of the Constitutional Court of the Republic of Poland to the

questions of the constitutionality of the statutory adjustments to the salaries of judges (see, in particular, the decision of the

SP. zn. P 1/94 of 8 December. November 1994, 13/94 of 14 September. March

1995, P 1/95 of 11 December. September 1995, P 8/00 of December 4. October 2000). In

all of the above decisions, the Court dealt with aspects of ústavností

the determination of the amount of the salaries of the judges from the perspective of article. 178 odst. 2 of the Constitution of the Polish

of the Republic, according to which the salaries of judges must match the dignity of their

Office and to ensure fulfilment of their obligations.



In the decision of the SP. zn. 12/03 of 18 June. in February 2004, the Constitutional Court of Poland

Republic in the assessment of the constitutionality of the rates of increase in the salaries of judges (at

which was not retroactively to a reduction) in the context of

the pay restrictions against judges two key propositions: according to the first in the case of

the State's budget problems to be the salaries of judges are protected against

"excessive adverse fluctuations". The other is then a principle of inadmissibility

the reduction of the salaries of the judges, which according to the Court, the "Constitution of the exceptionally strong

protected "(article 178 (2) of the Constitution of the Republic of Poland). The only constitutionally

acceptable exception from this principle shall be considered within the meaning of article. 216

paragraph. 5 of the Constitution of the Republic of Poland, in case if the public debt exceeds 3/5

the value of the annual national product.



The case-law of the Constitutional Court from disclosing, as well as from a comparative illustration

the case law of the Constitutional Court of the Republic of Poland, to the question of the constitutionality of

the subsequent legal withdrawal of part of the salary of the judges, which was before

the adoption of this measure, given the legal claim, draw these basic

generalizing theses:



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

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

the independence,



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

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

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

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

the restrictions against judges compared to the layout area to such

restrictions in other areas of the public sphere,



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

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

proportionality, justified by exceptional circumstances, for example. burdensome

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

take into account the difference in the functions of the judges and representatives of the power of the legislative and

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

concern, without prejudice to the limitations of the dignity of judges [see recommendation

The Committee of Ministers of the Council of Europe no. r (94) 12 of 13 June. October 1994].

If the expression is not constitutionally unacceptable pressure to be able to power the legislative and

the power of the Executive to court.



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

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

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

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

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

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

position (to be classified, the finality of the nesesaditelnost,

integrity), further guarantees of the organizational and functional independence

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

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

principles of incompatibilities). In terms of subject matter, then the judicial

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

any of the elements in the first subordinace decision making. Basic

the components of the principle of independence of the judiciary, the Constitutional Court complex

dealt with in finding SP. zn. PL. ÚS 7/02.



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

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

their independence accommodated for two reasons.



The independence of the judges in the first place is conditional upon their moral integrity

and professional levels, but at the same time is linked with their appropriate

the material provision. This component of the principle of the independence of judges

He was enshrined in the Council of Europe Committee of Ministers Recommendation no r (94) 12

of 13 June. October 1994 concerning the independence, efficiency and role of judges,

According to which, between the "proper working conditions" and "ensure the ranks of the judges

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

their profession and work load "(principle III, paragraph 1b). Similar to the

the Maxima is contained in the article. 6.1 the European Charter on the Statute for judges,

adopted by the participants in the multilateral meetings organized by the Council of Europe

in the days of 8. up to 10. in July 1998, according to which the judges of the profession have the

the right to salary, the amount to be fixed so that it is protected

pressure, leading to affecting their decision and to
affecting their behavior when finding rights, which could be

compromised their independence and impartiality.



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

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

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

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

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

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

pressure on their decisions.



Following the assessment of the constitutionality of the terms set out pay restrictions against

the judges applied consistently by the Constitutional Court in finding SP. zn. PL. ÚS 11/02,

in which set aside part of the provisions of § 1 of the law No. 416/2001 Coll.,

the provisions governing the withdrawal of additional salary for the judges in the second

half of 2001 and further reducing the salary for the first and second half of the year

the year 2002 in the amount of half of the amount to which they would otherwise be entitled.



The intentions of the legislator, that led to the adoption of the law No. 416/2001 Coll., are

in doing so, identical with the intentions of attaining, which led to the adoption of salary

restrictions on judges in law No 427/2003 Coll., Were by them by the legislator

the alleged plight of public finances and the disproporcionalita in the level of

the salaries of the judges and other areas of the public sphere. According to the explanatory memorandum

the draft law No. 427/2003 Coll.: "Necessary resource savings

spent on the salaries of employees in public services and administration.

does not allow to other salaries provided in each half calendar

of the year have been ... in the following years, paid in full. Of the listed

reasons, in the present draft law proposes that for the summer of 2004,

2005 and 2006, the salary base for determining the amount of salary and certain refunds

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

other persons sought, and to them was another salary in each half

those years provided (as well as employees in public services

and Administration) in half of the amount. -The proposed adjustment, "continues

the explanatory memorandum to the Government, "is in line with the constitutional order of the Czech

of the Republic. "



Should be recalled that the proposal had been approved by the Chamber of Deputies, 26. September

2003, the Senate then 6. November 2003, the Constitutional Court SP. zn. PL.

TC 11/02 was adopted on 11 July. June 2003. However, the Constitutional Court, therefore, before

the adoption of the Act clearly formulated the principle according to which the maximum,

equality in the area of restrictions in the remuneration of public servants,

constitutional factors, and judges can be emphasized before the principle of comprehensive

the perceived independence of judges in wholly exceptional circumstances, and the

defined the scope of the constitutional-conformity level restrictions on judges,

However, the legislature is in the process of adopting this maximou Act No.

427/2003 Coll..



The Government in the position of the appellant questioned the truthfulness of the heralded yet

the intention of the law No 427/2003 Coll., and the increase in the scale of pay

the scales of the staff of the public sphere, with effect from 1. January 2003

(Government regulations No 582/2002 Coll., no 583/2002 Coll., no 584/2002 Coll., no.

330/2003 Coll.). Declaration of Zdeněk Škromacha, Minister of labour and

Social Affairs, 2. reading the discussion of the draft law No 427/2003 Coll.

The Chamber of Deputies on 24. September 2003: "for the next year, despite the

the problems that exist today, salaries will be increased by more than 3.6%.

So the increase in budgetary and contributory sphere will be. "



According to the table of the annex to the draft State budget for the year 2004,

submitted by the Government of the Chamber of Deputies, then for the employees in the

the central bodies of State administration was the actual amount of

funding for salaries for the year 2002 4.840.899 ths. CZK, the budget for the year 2003

5.669.263 ths. CZK, the proposal for the year 2004, then 5.916.963. CZK (table no.

9), in organizational components of the State represented the actual amount

funding for salaries for the year 2002 8.755.060 ths. CZK, the budget for the year 2003

10.319.286 ths. CZK, the proposal for the year 2004, then 10.524.110. CZK (table

No 10), defense, security, customs and legal protection

was the actual amount of funds to salaries for the year 2002 26.999.082

ths. CZK, the budget for the year 2003 29.161.674 thous. CZK, the proposal for the year 2004

30.156.796 ths. CZK (table 11). other organizational

components of the State was the actual amount of funds to salaries for the year

2002 11.406.195 ths. CZK, the budget for the year 2003 12.545.862 thous. KC design

for 2004, then 13.205.240. CZK (table 12). In these circumstances,

It is hard to accept the notion of "necessary cost savings in resources

spent on the salaries of employees in public services and administration "

in General, specifically for salary restrictions the judges then examined the legal

Edit lacks any argument of "exceptional circumstances", which would

justify the priority of the principle of equality in the area of restrictions in

the remuneration of civil servants and judges, constitutional factors before

the principle of the independence of the judges understood comprehensively.



On the basis of the following reasons, landed post should be considered as restricting the

to the judges is contained in the provisions of section 1 (b). I) and section 2 of Act No.

427/2003 Coll. as amended by Act No. 626/2004 Coll., in rozpornou with the article. 1

paragraph. 1 in conjunction with article. paragraph 82. 1 of the Constitution and article. 6 (1). 1 the Convention on the

the protection of human rights and fundamental freedoms.



IX.



The wording of the statement derogačního award



In accordance with the provisions of section 2 of the Act, in the wording of the article. And section 5 of Act No.

626/2004 Coll. applies: "If under special legislation belongs to

the persons referred to in section 1 of the additional salary, provide them for the first and second

half-year 2004 amounting to only half of the amount to which they would otherwise

entitlement. " According to the provisions of section 1 (b). I) Law No 427/2003 Coll., in

the text of Act No. 626/2004 Coll., for the determination of salary and certain refunds

expenses related to the performance of the function of "judge of the district, regional and

the High Court, Supreme Court and Supreme Administrative Court "in the

2004 applies the salary base of achieved under the Special

legal regulation on 31 December. December 2003, and referred to the provisions of section 1 of the

contains letters) to about).



The ratio decidendi of the award turns out therefore on a defined class of persons

(the judge), which relates to the provisions of section 2 of the Act, and

This circuit is modified by reference to other provisions of the same law,

for these persons lays down other rights. obligations. The link is

While formulated in General, IE. not only in relation to the judges, but also other

clearly defined bodies.



The cancellation of the referencing standards in its entirety, i.e.. provisions expressed in the

§ 2 of the law 427/2003 Coll., as amended by the law 626/2004 Coll., the words "section 1"

Therefore, and on persons, for which the reasons for the derogation is not indicative.

Cancellation provisions expressed in section 1 of the Act, 427/2003 Coll., as amended by

Law No. 626/2004 Sb.) the words "and the judge of the district, regional and high

Court, Supreme Court and Supreme Administrative Court "would be vybočilo from

framework of the subject of the proceedings, the judge would represent for the abolition of editing

the salary base.



In finding SP. zn. PL. ÚS 24/94 (collection, volume 3, decision finding no. 19;

declared under the No 80/1995 Coll.), which was then followed by the case-law in the

control of inspection standards, the Constitutional Court had defined the notion of legal

provisions by means of any portion of the text of the legislation with the

the normative content, i.e., an expression containing any language

the funds, whose purpose is to express the legal standards or one of the

components of its merits (e.g. radius of bodies or situations),

or legal effect (i.e., legal obligations or sanctions).



The provisions of section 1 of the Act, as was already mentioned, contains

letters and) up to), so these letters contains implicite and standard

referring to the provisions contained in section 2 of the Act provides: "If the

under special legislation belongs to the persons referred to in section 1 for more

salary, provide them for the first and second half of the year 2004 in the amount of

half of the amount to which they would otherwise be entitled to. "



Starting from this, the plenary of the Constitutional Court decided to grant the

of the legal provisions in the text, as shown in the statement

This award. This means, that the finding of the Constitutional Court repealed section 2

law 427/2003 Coll., as amended by the law 626/2004 Coll., implicitly contained

reference to the provisions of section 1 (b). I) of the same Act.



The President of the Constitutional Court



JUDr. Rychetský v.r.



Different opinions under section 14 of Act No. 182/1992 Coll., on the Constitutional Court,

as amended, adopted a decision to the plenary

judge Stanislav package and Miloslav Excellent.

Related Laws