232/2011 Sb.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court under the SP. zn. PL. ÚS 17/10 decided to 28 June. June 2011 in
the plenary consisting of the President of the Court, Pavel Rychetský and Stanislav
Ass-Bag, Vlasta Formánkové, Vojena Güttlera, Paul Holländera, Ivana
J (Judge-Rapporteur), Vladimir Crust, Dagmar Lastovecké, Jiří
Mucha, Jan Musil, Jiří Nykodýma, Miloslava Excellent, Elizabeth
Wagnerové and Michaela Židlické on the design of the circuit court for Prague 5,
that is the President of the Senate. Michal Holub, on abolition of the provisions of section
3 (3). 9 of Act No. 201/1997 Coll., on salary and some other
terms of prosecutors and amending and supplementing Act No. 143/1992
Coll., on salary and remuneration for stand-by duty in the budget and in the
certain other organisations and bodies, as amended
the regulations, as amended by Act No. 418/2009 Coll., with the participation of the
the Chamber of deputies of the Parliament of the Czech Republic and Senate of the Parliament of the Czech Republic
as parties to the proceedings and Msc. F. J. and Msc. P. N. as a side
the parties to proceedings
as follows:
I. proposal for the repeal of the provisions of section 3 (3). 9 of Act No. 201/1997 Coll., on
salary and some other aspects of the prosecutors and about the change and
additions to Act No. 143/1992 Coll., on salary and remuneration for work
stand-by in budgetary and certain other organizations and
the institutions, in the wording of later regulations, as amended by Act No. 418/2009
Coll., is rejected.
II. In the rest of the draft.
Justification
(I).
Recap of the proposal
1. The Constitutional Court was 25 February. March 25, 2010 delivered a draft of the district
Court for Prague 5 on abolition of the provisions of section 3 (3). 9 of Act No. 201/1997
Coll., on salary and some other aspects of the prosecutors and the
amendment and supplement of Act No. 143/1992 Coll., on salary and remuneration for work
stand-by in budgetary and certain other organizations and
the institutions, in the wording of later regulations, as amended by Act No. 418/2009
Coll. (hereinafter "Law No 201/1997 Coll.).
2. the applicant stated that before him under SP. zn. 10 C 22/2010
discusses the action, which the representative of the Government of the State of the city
the Prosecutor's Office in Prague against the Czech Republic seeks-City prosecutor
the Prosecutor's Office in Prague, the payment of the amount Czk 1 615, which represents
the difference between the amount of Czk 43 268 (which corresponds to the gross salary of the 58 400 Czk)
He belonged as the net salary for the month of January 2010 in accordance with the law
No 201/1997 Coll., and the amount of Czk 41 653 (which corresponds to a gross salary of 56 064
CZK), which actually was paid in February 2010, under the same law,
in the wording of Act No. 418/2009 Coll., amending Act No 236/1995 Coll.,
the salary and other terms associated with the performance of the functions
representatives of State power and some State authorities and judges and
members of the European Parliament, in the wording of later regulations, and act
No 201/1997 Coll., on salary and some other aspects of the State
representatives and amending and supplementing Act No. 143/1992 Coll., on salary and remuneration
for stand-by duty in budgetary and certain other
organisations and bodies, as amended.
3. the applicant States that, in the draft opinion on the validity of its claim to the
payment of the salary of the applicant dovozoval the conclusion that article. (II) Law No.
418/2009 Coll., section 3, paragraph 3, respectively. 9 of Act No. 201/1997 Coll., is inconsistent with the
the constitutional order of the Czech Republic.
4. the applicant considers that the form of the rules the issue of salary
the State Prosecutor claims in the form of the law was clearly an effort to permanently
(at least in the long term) consistently modify the salary requirements of the State
the representative, that this adjustment was not subject to political influences and
the mood of politicians and at the same time was an expression of the importance of the functions of the State
representative in the constitutional system of the Czech Republic as the form of the Act
almost exclusively edited the salary demands of functions in the public sector, which
modifies directly the Constitution of the Czech Republic (hereinafter "the Constitution"), and salaries
most of the employees of the State, by contrast, are determined by regulation of the Government.
Act No. 201/1997 Coll., the wage development in the non-business sphere
for the year before last, which dropped anchor and "pay" the solidarity of the State
representatives with the other employees paid from the public purse. The amount of the
the salary of a Prosecutor (as a judge), so the State is not
individually determined, but is given a certain objective criteria.
Such legislation on the one hand ensures that the salary of the State
the representative is not divorced from the evolution of the salaries of other employees of the State, and therefore
and the economic situation of the State, on the other hand, it prevents a targeted intervention
political power, in particular the legislative and the Executive, or its components, Government
in the exercise of the powers of the public prosecutor's Office, since such intervention in the
the amount of the salary of a Prosecutor would have to be preceded by a percentage before
same as intervention in the amount of the salaries of all the other employees in the public
sector.
5. the applicant further points out that the amount of the salary of the State
the representative is intended only to pay the base multiplied by coefficients with
regard to the number of years of experience and the classification in the hierarchy of the State
the Prosecutor's Office. The salary is fixed, therefore, without any moving components,
contributions, personal evaluation or remuneration. This treatment is intended to prevent
the economic pressures of the parent folders on the performance of the functions of the State
representative. The Prosecutor must not in principle, unlike for example. members and the
the senators, to carry out other gainful activity or perform any other
a paid function. Complete reliance on the salary is justified by the need to
the performance of the protection from external influences. How to adjust the grade
claims prosecutors and certain compensation method is limited
options the prosecutors actually affect the amount of his salary.
The applicant further States that public prosecutors (as judges) do not have
opportunity to participate in the legislative process, they have withdrawn the constitutional right
they do not have the option to strike, about the amount of his salary (collectively)
the employer to bargain or simply disagree with changing the working
the Treaty prevent the reduction in his salary. Not even their number (approximately 1 300) is not
sufficient for it to be able to realistically, for example. using the law
the Assembly, or legislature, affect the decision on Petitions in
amendments to the law on salary of State representatives.
6. the applicant further notes that the year 2010 is the 14th calendar
year in which the salary is intended to formally referred to by the law, and at the same time
the eleventh year, in which, according to this law, in fact, is not specified.
Currently, the salary set initially according to Act No. 201/1997 Coll.
reduced to two laws, Act No. 261/2007 Coll., on stabilisation of the
public budgets, when the freezing level above the base of the State
the representative at the level of 2007, which the legislature declared the "extraordinary
measures in determining the amount of the salary of prosecutors in 2008 to
2010 ", by Act No. 418/2009 Coll., the salary of a prosecutor compared
frozen base reduced by 4%. In 2010, the salary of the State is so
the representative of the 23% lower than it was under Act No. 201/1997 Coll. without
changes made to the law No. 261/2007 Coll. and no 418/2009 Coll., while from
in 1997 the average salary of the employees in the public sector grew between
1997 and 2007 about 106% (in the year 2010, at least 112%). In 2009, when
the second year was frozen the salary of prosecutors, which led to savings
a maximum of a few tens of millions of Crowns, an increase in the tabular
the salaries of public sector employees by 3.5%, which represented an increase
the expenditure of the State budget of approx. 7.7 billion. CZK. In the same year, he was in a State of
legislative emergency approved by Act No. 418/2009 Coll., that because of the
"stabilization" of the budget also reduced the salaries of prosecutors about 4%, which
According to the explanatory memorandum represents a saving of 31.2 million. CZK approx. 0.02%
the planned deficit for the year 2010 State budget. The disparity between
by raising the salaries of most of the employees of the State and targeted in a discriminatory
by reducing the salaries of prosecutors is so obvious, and the effort to be able to
negatively interfere with the legislative pay State requirements
a shortcut is a long-term and constantly escalating.
7. With regard to the above, the applicant finds the article. (II) Law No.
418/2009 Coll., section 3, paragraph 3, respectively. 9 of Act No. 201/1997 Coll., conflicting with the
the principle of reasonableness, proportionality and the merits of (rational)
the intervention of the legislative power, as the legislature change the law No 201/1997 Coll.
sufficiently substantiated and disproporcionálně and discriminatory manner, i.e.
hit her in the position of unconstitutionally public prosecutor's Office, and therefore be able to
the other. In justifying the need for the adoption of Act No. 418/2009 Sb.
in the legislature, it pointed out that the salary of about 4% reduced all
employees in the public sector. After lawmakers Act No.
418/2009 Coll., the Chamber of Deputies, however, decided to increase the
the State budget for the year 2010 for the appropriate amount to align salaries
employees in the public sphere of the year 2009, so that the amount of the remuneration
These employees were retained. Lawmakers actually only
the reason for the intervention of the law on salary of State representatives to its subsequent
the negotiations themselves have denied.
8. the applicant regards the adoption of the contested provisions of the law into action
the principle of the separation of powers (article 1 of the Constitution), the principle of democratic
the State (article 2, paragraph 1, of the Constitution) and the principle of legality [article 2, paragraph 3, of the Constitution,
article. 2 (2). 2 of the Charter of fundamental rights and freedoms (hereinafter as
"The Charter")]. In the opinion of the applicant exceeded the legislature adoption
Act No. 418/2009 Sb. its power, as one of the brakes or balances,
that is, in relation to any other power conferred, in contradiction with the constitutional
the principles of the exploited. Act No. 418/2009 Sb. it is therefore necessary to have a speech
the arbitrariness of the legislature, moving outside of legality and legitimacy.
In this connection, the applicant refers to the findings of the Constitutional Court of the
on 11 July. 6.2003, SP. zn. PL. ÚS 11/02 of 14 February 2000. 7.2005, SP. zn. Pl. ÚS
43/04 (see below) and the other, on which the applicant considers that it can be
apply also to the position of public prosecutors, and in which the Constitutional Court
said that any intervention in the wage entitlements of judges must be the legislative
the choir more than ever with regard to the status of the mailing standards to weigh,
While such pay restrictions could be merely an instrument of solidarity,
and not the first and only tool, as the legislature by law No.
418/2009 Sb..
9. In its proposal, the applicant further points out the special status of
the Prosecutor's Office as a system of State organs, which combines
the characters and the Executive power of the Court. The principle of the independence of the State
the Prosecutor's Office is to ensure the impartiality of the Prosecutor in the supervision of the
the legality of preliminary proceedings, to allow him to represent them in proceedings before the
the Court in the public interest, which may not be the same as the interest of the State, and also
in the context of the principle of the indictment to ensure that individual criminal
cases will be submitted to the Court really his decision. In the opinion of
the plaintiff is the independence of the prosecutors form part of the basic constitutional
the principle of democratic rule of law. The independence of public prosecutors
can be derived from essentially the same legislation in their position, as
in the case of judges. Here it is possible to point out the limitations of the options
transfer of public prosecutors, the assumptions and the way of developing their functions,
exhaustively listed the reasons for the demise of the function, adjustment of the disciplinary proceedings, and
all of these attributes are otherwise in General without it
any doubts were accepted as guarantees of judicial
independence. For such a guarantee in the case of the judges been conceived and their
physical security, which has, inter alia, as the State
representatives, restrict the corrupting pressures against these leaders of State power.
For these reasons, the applicant considers that, in the case of the assessment of the constitutionality of
interventions to pay claims, prosecutors would have the Constitutional Court
proceed similarly as in the case of the minimum assessment of the interventions to be able to
in the same legislative rights of judges.
10. the applicant sees in the procedure of the legislature to reduce the salaries of the
prosecutors about 4% in 2010, also a violation of the prohibition of discrimination
(article 3, paragraph 1, of the Charter), since it is a procedure where a lot of the political
public employees will select just some reduced salaries, and those without
any rational justification; salaries were reduced only
the narrow group of employees of the State, so that the persons involved in the remediation
public budget deficits were identified according to their profession.
11. the applicant further points out the opinion of the plaintiff, that the Czech Republic
cannot unilaterally reduce its staff remuneration, because
such a procedure would be the least inconsistent with the constitutional principle of equality.
The amount of the wages of each employee is given, in principle, a contract of employment and
the employer cannot unilaterally change it. While the pay is, in principle,
determined by the market based on the agreement, employers and employees, the salary is
unilaterally determined by the employer on the basis of the basic regulation. This
the difference, however, is not able to interpret so that it allows (unlike
the "private" sphere of unilateral reduction of salary). The staff of the State would be
become a priori méněcennou categories of employees whose right to
equitable remuneration would be arbitrarily limited, therefore, that
their employer is the State, which also has the option to change the
legal provisions concerning the amount of remuneration for work.
12. the applicant also considers that the adoption of Act No. 418/2009 Sb.
There was an infringement of the constitutional rights of State representatives at the fair
the reward for the work, as the reason for the reduction in the salary of prosecutors apparently
It wasn't that the powers of the Prosecutor were reduced, transferred to the
another entity or that prosecutors less or worse working and
carry out their tasks. It is obvious that the salary, which is supposed to be a reward for the job
work and performs many of the functions for your recipient (security,
compensation, incentive), cannot be unilaterally by the employer,
unjustifiably reduced, moreover, in circumstances where the employer
its staff about the change of the amount of his salary or not.
13. In conclusion, the applicant expresses his belief that the legislature
the adoption of Act No. 418/2009 Coll., violated one of the fundamental principles
democratic rule of law, and that the principle of protection of legitimate expectations.
The Prosecutor comes to your function with the knowledge that his position
derived directly from the article. 80 (2). 2 of the Constitution, is regulated by law, including the
his wage demands. The State Prosecutor after taking office
legitimately expected legal adjustment of its status will be maintained.
The procedure of the legislature, which for no reason in particular serious aims to change
the pay rules in the field of justice, can be described as a form of violation of
General principles of law
pacta sunt servanda
and disproportionate unconstitutional interference with the legitimate expectations of those
for which have already been law for an indefinite period formulated certain conditions,
with the knowledge of the persons having an interest in the work of public prosecutors to
These features changeless Moon still carried. The frequent intervention of the legislature to act on the
In addition, the salary of prosecutors in effect undermine the principle of
the predictability of the legal standards for its addressees and the principle of legal
the security.
II.
14.26 March. 8.2010 was the Constitutional Court delivered a constitutional complaint
Mgr. F. J. and Msc. P. N. associated with a proposal to repeal the provisions of section 3 of the
paragraph. 9 of Act No. 201/1997 Coll. Both complainants, the representation of the same
a lawyer, are the prosecutors, who are in the proceedings before the General
a court fight over the amount of Czk 1 615, which they said was
applications the above law reduced salary to the level of 96% of the existing
the salary. The District Court in Hradec Králové, constitutional complaints in the contested
the judgment dismissed them, and since this is not against the judgment in the
meaning of section, paragraph 202. 2 of the code of civil procedure, the appeal
they turned the thing on the Constitutional Court. Whereas the said
constitutional complaints were directed against the same judgment of the General Court,
factually related and the same questions, argued in the same hitting a constitutionally
protected rights and the proposed provisions and the repeal of the same legal
the regulation, were in the interest of economy of procedure and in accordance with section 63 of the Act
No. 182/1993 Coll., on the Constitutional Court, and section 112, paragraph. 1 of the code of civil
the order of the associated resolutions of the Constitutional Court from April 6. 10.2010, SP. zn. I. ÚS
2493/10 to the joint management and decision. The resolution of the Constitutional Court
SP. zn. I. ÚS 2493/10 of 25 May. October 2010 was the management of the
of the constitutional complaint pursuant to section 78 of the Act on the constitutional
the court adjourned and the proposal to repeal the provisions of section 3 (3). 9 of Act No.
201/1997 Coll. has been referred to the plenary session of the Constitutional Court for a decision pursuant to article.
paragraph 87. 1 (a). and) of the Constitution. Due to the fact that the Constitutional Court in the
Now this case is identical with the draft proposal of the complainants,
was their later brought an application for revocation of that legal
provisions for barrier
lis pendens
on 18 July 2005. 11.2010 as inadmissible (article 35, paragraph 2, of the Act on the constitutional
Court) rejected the Constitutional Court under section 43, paragraph. 2 (a). (b)) of the law on
The Constitutional Court on the grounds set out in section 43, paragraph. 1 (a). (e)) of the same Act.
Mgr. F. J. and Msc. P. N. in doing so, they have the right to participate in the negotiations in now
the present case as minor participants (section 35 (2) sentence for
a semicolon to the law on the Constitutional Court).
III.
The progress of the proceedings and a recap of the representation of the parties
15. in accordance with section 69 of the Act on the Constitutional Court called on the Constitutional Court
Chamber of deputies of the Parliament of the Czech Republic (hereinafter referred to as "the House
the Chamber of Deputies ") and Senate of the Parliament of the Czech Republic (hereinafter referred to as the" Senate "), to
to the proposal.
16. The Chamber of deputies by the first Vice-President of the
The Chamber of deputies by Miroslava Nemcova said that the Bill, which
After its adoption was published under no. 418/2009 Coll., was in the Chamber of Deputies
the Chamber of deputies presented the Government 21. September 2009 as a house print no. 920. On
the request of the President of the Chamber of Deputies discussed the Government's proposal
the law in short negotiations in the framework of the declared state of legislative
of an emergency. The Government submitted to the Assembly print no 920 stated that the proposed
the legislation corresponds to the constitutional order and the rule of law in the Czech
of the Republic and is not contrary to international treaties by which the Czech
Republic, with the fact that the European Union leaves the legal adjustment of salaries
and the expenses of representatives of the State power, judges, prosecutors and
other employees of the State of national legislation. The Budget Committee
discuss House print no 920 23 July. September 2009 and advised of the
House of Commons, to be discussed in the general debate, no neprojednávala
his part in the debate detailed and approved it without comment. A proposal from the
the law was approved by 188 present deputies of 182 votes for, against 2
voices. The Chamber of Deputies on the draft law still acted on his 64.
the meeting after the Senate Bill returned to the Chamber of Deputies
amendments. These proposals, however, did not concern the contested article. (II)
Act No. 418/2009 Coll., and thus the provisions of section 3 (3). 9 of Act No.
201/1997 Coll., the Chamber of Deputies approved the Bill again in the text
in which he was sent to the Senate, 142 votes for, 3 votes against, from the
161 MPs. The President of the Republic signed the Act 13.
November 2009, and the law was promulgated in the collection of laws under no. 418/2009
SB. Chamber of Deputies expressed the opinion that the legislature
He acted in the belief that the law is adopted in accordance with the Constitution and the legal
regulations of the Czech Republic, and at the same time that agrees in this respect with the
abandonment of the oral proceedings before the Constitutional Court.
17. The Senate through its President MUDr. Přemysl Sobotka said,
that Bill, which was adopted under Act No. 418/2009 Coll., was delivered
The Senate 25 October. September 2009 and was being discussed as the Senate printing No 173 in
the two committees, and in the Committee of the ústavněprávním, which was the Committee
guarantee, and in the Committee on economy, agriculture and transport. To
the negotiations on the ústavněprávním Committee, that the matter relating to the
the proposed reduction in salaries has been quite widely discussed. Discussion
both were conducted generally in relation to all persons, to which the reduction
should apply when it was pointed out. freezing the wage base,
that was done for the period 2008-2010 in the framework of the law.
261/2007 Coll. on the stabilization of public budgets. In that context, there was
proposal for the consideration of whether the proposed reduction in the salaries should not be
associated. defrosting the salary base that a temporary reduction of the
the wage base for the year 2010 could be even greater. In addition to the
It was this issue discussed in relation to judges, since
the representatives of the Judicial Union, turned to some of the members of the Committee shall
the applications, to the exclusion of the proposed reduction of the salaries of the judges, and
publicly was presented a fundamental opposition to Judicial Union and Union
prosecutors with the proposed modification. These issues are expressed and
representatives of the petitioners, and after the debate to prevail in ústavněprávním Committee
the majority opinion, that the matter was not referred to the adjustment of the
The Chamber of Deputies tampered with and preserve the edit made by the
the Government, based on the fact that in the context of the urgent need to
financial savings has a 4% savings funds on salaries in
2010 for the whole budgetary sphere. The Committee for economy,
Agriculture and transport draft law discussed at their 15. the meeting held
on 5 July 2004. October 2009 and in its resolution No. 221 recommended the Senate
the present draft law approved by the Chamber in the wording of a transferred
the Chamber of Deputies. The Senate presented a Bill discussed on its 12. the meeting of the
on 5 July 2004. October 2009 and after a debate, adopted a resolution No. 290, which returned
the draft Bill to the Chamber of deputies in the text of the adopted amendments
the proposals, set out in the annex; These were amendments that
recommended to the Committee the adoption of constitutional law. For this resolution from 65
present senators voted 65 and nobody was against. Chamber
the Chamber of Deputies then 4. November 2009 remained on its proposal and the law was 27.
November 2009 in the collection of laws under no. 418/2009 Coll. in question
the Bill the Senate discussed within the limits of the Constitution laid down the competence and
constitutionally prescribed way. The proposed restrictions on the salaries of the
discussion of the Bill in the Senate, perceived and assessed in the context of
the fact that in principle comparable restrictions has to be carried out in 2010 for
all the people whose salaries are funded from the State budget, and
accepted the majority of it in the belief that it is in accordance with the constitutional
policy of the Czech Republic. The fact that the Senate was unable to
discussion to assume is that, after the approval of this legal
There was then a disruption of that unifying principle, when in the context of the
the Government's approval of the draft law on the State budget for the year 2010
It was not in the Chamber of Deputies adopted the Government proposed a 4% reduction in the volume
funding for staff salaries in the public sector. This
change the Senate subsequently could not be taken into account, since the hearing
the draft law on the State budget does not fall within its scope.
18. The Constitutional Court has sent the observations of the parties complainants and
allow him to comment. In the reply, the applicant stated that the
the facts presented are not parties to the dispute, but with the opinion of the
the constitutionality of the contested provisions, as stated in the draft, disagrees.
Submission of 23 July. 11. the representative of the minor participants 2010 Constitutional
the Court said that the proposal on the merits to the extent laid down in agreement
substantive arguments. As far as the arguments of a procedural nature
relating to the procedure of adoption of the law and leading to the cancellation of
novelizačního the provisions of (the original text of the small print of March 22, 2010)
so to them, the minor parties do not express, because they consider that the
with them, the Constitutional Court effectively settled in the award issued under SP. zn. PL.
US 12/10 of 7 May 2002. September 2010 (see below). To the expression Of
the House and Senate side participating in the State that do not challenge the formal
communication of a procedural nature, but disagree with the conclusion that issued
the law is not unconstitutional. In its comments, then the minor participants
They point to the principle of the independence of the performance of the duties of public prosecutors,
which, even if not explicitly expressed in the constitutional texts, can be derived
the interpretation. Secondary participants on pokazují on the findings of the Constitutional Court
in which he came to the conclusion that the permanence and stability of the remuneration of the judges,
who have a guaranteed steady income, is part of the guarantee of their
the independence, which is the material character of the rule of law. Side
participants believe that in relation to the principles of the performance of the duties of the State
the representative can be reached the same conclusions, even if some aspects of performance
a public prosecutor from different aspects of the performance of the duties of the judge.
Due to the obsáhlosti representation of the side of the participants on the draft Constitutional
the Court, after he became acquainted with its contents, for brevity, defines its
the main points: the relationship of independence and remuneration, the question of independence in
the context of the constitutional text, international comparisons of the independence of the State
representatives, historical analysis of the development of the legislation after 1989,
the difference to the independence of prosecutors from the independence of the judges
(fairness), the independence of the prosecutors in the light of the current
the case-law of the general courts and the Constitutional Court, international
standards of independence, the legal-philosophical reasons for the independence of the State
representatives, conflict with the right to unimpeded exercise of public functions, conflict with
the principle of equality, proportionality and legitimate expectations and the requirement
rationality of legal standards. In its formulovaném in writing the final
design of deltafina had the Constitutional Court 19 December. 5.2011 secondary participants
in particular, they pointed out, the ad hoc nature of the pay adjustment officials
Justice, which is in gross violation of the desired stability.
Although the legislature had challenged the law to justify as a transitional
measures with a view to future growth, they point out the minor participants
on to the next salary restriction in 2011. The legislature-
viewed with the benefit of hindsight-fundamentally call into question the legitimacy of the contested
the law. Achieved savings in the State budget shall be considered as secondary
participants for the illusory, because it is overshadowed by the primary effects on the system
the Prosecutor's Office, undermines the confidence of the public prosecutors in the sense
its mission and the respect of the company to them. The Group of State representatives
considered to be the only group that should be affected in 2010
pay restrictions. The contested provisions is to be only a placeholder
the symbol and the result of populist acts of the legislature. The secondary
the intention of the legislature should be suppression of the independence of the judiciary and restrictions
effective protection of society. Secondary participants reiterated their conclusion
opinion on the proposal.
19. On 21. 3.2011 added secondary participants in eventual petit,
which responded to the possible doubts about the projednatelnosti of the proposal after 31 December 2006.
December 2010: [the provisions of § 3 paragraph 9 of Act No. 201/1997 Coll.] "in the
force throughout the year 2010 was inconsistent with the constitutional
policy of the Czech Republic throughout the period of its validity. ". On join
the eventual petit, which should be made that [the provisions of section 3 (3).
9 of Act No. 201/1997 Coll.] "shall be repealed on 1. January 2010. ". Finally, the
Join cumulative petit, according to which [the provisions of section 9 of Act 3 (1).
No 201/1997 Coll.] "you cannot on the remuneration of public prosecutors in 2010
apply. ".
20. To query the Constitutional Court established the Department of the Ministry of economic
Justice in the file data on the average monthly salary of a judge and
the Prosecutor in the years 2006 to 2010 in the following form:
+---------------------+-----------+-----------+-----------+-----------+-----------+
| Average salary (EUR) | 2010 | 2009 | 2008 | 2007 | 2006 |
+---------------------+-----------+-----------+-----------+-----------+-----------+
| The JUDGES | 81 485 | 84 169 | 83 565 | 83 236 | 77 521 |
+---------------------+-----------+-----------+-----------+-----------+-----------+
| STATE REPRESENTATIVES | 70 475 | 73 492 | 74 527 | 73 120 | 68 297 |
+---------------------+-----------+-----------+-----------+-----------+-----------+
After a call to the Constitutional Court expressed either side
participants. The appellant questioned the value of data on the average
salaries, as these data do not reflect the closer in the courts and State
the Prosecutor's Office of the different age structure of human resources (staff, functional
inclusion, etc.). Also supporting the participants pointed to the fact that
the average salary is the result of many factors, in addition to the above salary
the base and the multiplier coefficients, seniority and functional
the classification. They pointed out the difference between the amount of the average of the salaries of the judges and
prosecutors with the fact that the relative difference in these salaries are
increases to the detriment of public prosecutors. In the second circuit arguments
secondary participants pointed to the long-term trend, when mainly in
the last decade the salaries of prosecutors are undergoing changes
indicating the level restriction. In contrast, wages in the non-business
the sphere, which is the result of the actual amount of the budgetary policy of the State,
they grew. On their side the participants proposals remained.
21. the proceedings before the Constitutional Court to be further noted that the appellant (No.
l. 33), the parties to the proceedings (no l 26 and no. l. 18) and minor participants
Management (No. l. 74) expressed agreement with the abandonment of the oral proceedings.
Whereas, since the oral proceedings, the Constitutional Court expected next
clarification of the matter, with reference to the section, paragraph 44. 2 of the law on the constitutional
and decided without oral proceedings.
IV.
The diction of the contested provisions
22. The contested provisions of section 3 (3). 9 of Act No. 201/1997 Coll., added: "from the 1.
January to 31. December 2010 is the salary of a prosecutor 96% of the salary pursuant to
This Act and according to the article. The Act No. 261/2007 Coll. ".
In the.
Locus standi of the petitioner
23. According to the article. paragraph 95. 2 of the Constitution if the Court concluded that the law, which
to be used in solving the case, is in conflict with the constitutional order,
refer the matter to the Constitutional Court. This permission is also instantiated in the section
64 paragraph. 3 the law on the Constitutional Court, according to which the Court may by the Constitutional
the Court may submit a proposal to repeal the law or its individual provisions.
The condition of the litigation consulting such a proposal is the fulfillment of the article.
paragraph 95. 2 of the Constitution, in the sense that it must act on the Bill, which has to be
When the solution is applied. Act or its provisions, which is
proposed to cancel the plaintiff are to be directly applied in the
the solution of a particular dispute. The Constitutional Court found this condition the filled,
Since the applicant will be considered an action for payment of the difference between the
the salary, which the applicants had prior to the adoption of the contested provisions
and after the contested provisions, carried out a reduction in salary.
VI.
The constitutional conformity of the legislative process
24. In the context of proceedings for annulment of the Act or part of the constitutional
the Court examines whether the contested regulation was adopted and published within the limits of the Constitution
established competence and constitutionally prescribed manner (section 68, paragraph 2
the law on the Constitutional Court). The Constitutional Court notes that Act No. 418/2009
Coll., article II of which was section 3 of Act No. 201/1997 Coll., supplemented by a paragraph
9, the contested provision was adopted and published within the limits of the Constitution
established competence and constitutionally in the prescribed manner, or that, in this
management did not detect anything that spoke for the opposite conclusion. To the same
the conclusion reached by the Constitutional Court in its finding of April 7. 9.2010 sp.
Zn. PL. ÚS 12/10 (declared under no 269/2010 Sb.; all cited
the case-law of the Constitutional Court is available in an electronic database on
http://nalus.usoud.cz). In relation to the conclusions of the Constitutional Court in recentním
finding SP. zn. PL. ÚS 55/10 of 1 March. 3.2011 (promulgated under no. 80/2011
SB.) should be noted that, as well as in finding SP. zn. PL-12/10,
the individual conclusions remained finding SP. zn. PL. ÚS 55/10
intact, the Constitutional Court does not find it a material violation of the principles of
the legislative process in the mere fact that the law was discussed in the
State of legislative emergency. The constitutional position of the opposition, or the relevant
Parliamentary minority could not be prejudice, when the draft law
It was approved from the 188 present deputies 182 votes in favour, 2 votes against,
or 142 votes for, 3 votes against 161 of MPs, thus
the vast majority of all the members. In assessing this question, it is the constitutional
the Court is bound by the findings of the award sp.. PL-12/10.
VII.
The legal evaluation of the Constitutional Court
25. the proposal is not, as regards the alleged unconstitutionality of the content of the contested
provisions, reasonable.
26. the applicant submitted several argumentačních headings: shall be considered
the contested adjustment for disproportionate and irrational action to
the independence of public prosecutors, the principle of the separation of powers and the independence of the
the justice system as a whole (article 1, article 2, paragraph 1, article 80, paragraph 2, article 81
Of the Constitution). Violation of the basic law also claims to equitable remuneration
for work (article 28 of the Charter). Further relied on the principle of equality and the prohibition of
discrimination (article 3, paragraph 1, of the Charter, article 1, of the Charter). Generic, then
points to the principle of legitimate expectations, the principle of legal certainty and
the principle of pacta sunt servanda (principles of the rule of law).
VII.)
The nature of the independence of public prosecutors
27. In the introduction of considerations the Constitutional Court it is necessary to reject the key
comparative argument of the petitioner, and stressed that the State
Prosecutor's Office does not exercise judicial power, and, therefore, are the options of the application
earlier findings of the Constitutional Court limited. If the applicant
systematically and in detail refers to the previous conclusions of the Constitutional Court in the
relation to the question of the (in) admissibility of the pay restrictions on the part of judges,
the Constitutional Court does not consider that some similar features of independence in
the performance of the functions of the public prosecutor represented the basis of your scalable
the status of the judges.
28. On this point it is useful to summarize the conclusions widely so far
the case-law of the Constitutional Court in relation to the platovým of the restrictions on the
judges [find SP. zn. PL. ÚS 13/99 of 15 December 1999. 9.1999 (N 125/15 SbNU
191; 233/1999 Coll.) ^*; find SP. zn. PL. ÚS 18/99 of 3 February. 7.2000 (N
104/19 SbNU 3; 320/2000 Coll.); find SP. zn. PL. ÚS 16/2000 of 3 February 2000. 7.
2000 (N 105/19 SbNU 23; 321/2000 Coll.); find SP. zn. PL. ÚS 11/02 of
on 11 July. 6.2003 (N 87/30 SbNU 309; 198/2003 Coll.); find SP. zn. Pl. ÚS
34/04 of 14 June. 7.2005 (N 138/38 SbNU 31; 355/2005 Coll.); find sp.
Zn. PL. ÚS 43/04 of 14 June. 7.2005 (N 139/38 SbNU 59; 354/2005 Coll.);
find SP. zn. PL. ÚS 9/05 of 14 June. 7.2005 (N 140/38 SbNU 81;
356/2005 Coll.); find SP. zn. PL-55/05 of 16 February. 1.2007 (N 9/44
SbNU 103; 65/2007 Sb.); find SP. zn. PL. ÚS 13/08 on 2 December. 3.2010
(promulgated under no. 104/2010 Sb.); find SP. zn. PL. ÚS 12/10 of 7 May 2002. 9.
2010 (promulgated under no. 269/2010 Sb.)]. For example will suffice. recalled the conclusion of the
repeated in the latter award, based on the (conflicting)
comparison of the constitutional position of the judges on the one hand, and representatives of the
the power of the legislative and the Executive on the other. Only, and only in relation to
the judicial power of the Constitutional Court was found to be "different in layout space
for the legislature to platovým the restrictions against judges in comparison with
the layout of the space for such restrictions in other areas of public
realm "(paragraph 21). A key constitutional value, which the Constitutional Court in its
the case-law in the Constitution was defended, explicitly formulated judicial
independence as a value, which is quite specifically conflict
interference to the emoluments of the judges. The consequence of that is a conclusion,
that the existing case law of the Constitutional Court does not contain such an interpretation
the constitutional order, that would group of prosecutors provided in
the pay issues as equivalent to the independence of the judiciary.
29. As is clear from the content of the proposal, attached to the application and expression of
the side of the participants, the applicant, as well as by participants,
still, consider that most of these conclusions valid for the judge to
a certain extent, also relate to the position of public prosecutors. Side
the participants to note that "mutual binding restrictions and unacceptable
independence applies in this case, regardless of the different type of
independence, because its assumptions-especially the independence of the
political power-are the same "(point 13). In the procedure of the legislature
resting in the (negative) to the salaries of prosecutors so
fro the illegal hit to their independence.
30. The Constitutional Court, therefore, on the basis of the conclusions of his above-mentioned
finding SP. zn. PL-12/10 and from earlier findings relating to the
the issue of "judicial salaries", stated objections in more detail
the appellant referred to in section VIII. 2 and 3 of the draft and to objections
the side of the participants referred to in the comments to the proposal in section 1,
concerning the independence of public prosecutors, that the status of the State
representatives of what is defined in the framework of the principle of judicial independence
comparable with the status of judges, whose independence is guaranteed by
directly to the article. and in particular article 81. paragraph 82. 1 of the Constitution. The relationship between the material
the security of judges and their independence, then the results directly from § 75
paragraph. 1 of Act No. 6/2002 Coll., on courts, judges, lay judges and the State
administration of courts and amending certain other laws (the law on the courts and
the Judges Act). Nevertheless, the Constitutional Court finds to objections of the petitioner and
secondary participants who placed in its proposal on the principle of
the independent exercise of the functions of the public prosecutor and, in General, its position in the
judicial system, great emphasis, the following.
31. The prosecution is systematically included in the Constitution in the head
the third governing the power of the Executive, and not to the part which concerns the Government (article 80
Of the Constitution). However the appellant and interveners take issue with this
the systematic inclusion of the public prosecutor's Office, under the power of the Executive and
It was from this that the Executive does not imply formal podřazení
any element depending on another public authority, it is a fact that
even the structure of the Act No. 283/1993 Coll., on the public prosecutor's Office, as amended by
amended, and even after the amendment made by Act No. 14/2002 Sb.
effective from the 1. 3.2002, contains a number of elements in the nesvědčících for judicial
the character of their independence. This corresponds to the completely different
the role of the Prosecutor in judicial proceedings: according to § 2 (2). 3 criminal
the order of the public prosecutor is obliged to prosecute all criminal offences, which are
know if the law or international treaty, the famous Czech
Republic, and otherwise. Of the Constitution (article 80 (1)) so the State
representatives have exclusive (if not here competitive Institute)
statement of the powers of the other powers conferred by the law [see
for example. section 4, paragraph 4. 1 and 2, section 5 and 42 of the Act No. 283/1993 Coll.; section 174-175
the criminal procedure code; section 62 and 62a of the Act No. 94/1963 Coll., on the family, in the text of the
amended; section 9 of Act No 182/2006 Coll., on bankruptcy and how to
his solution (insolvency law)]. This permission (or obligations)
is from the public prosecutor's Office, while the Authority (even in the constitutional plane)
specific compared to other public authorities (
authority of the sui generis
), but not the authority of the judiciary.
32. However, on the public prosecutor's Office, you can find a variety of
the legal guarantees of independence and impartiality, persist also controls
from the Court to be able to differentiate. Compare, for example, elements or authority
the district supervision (§ 11a, § 12, § 12 c, 12d, § § 12e Act No.
283/1993 Coll.) or detailed arrangements for the management of the public prosecutor
The Ministry of Justice (article 13 et seq.; see also editing creations in
section 18 of Act No. 283/1993 Coll.). Even the criminal protection of the judicial
the independence of the prosecutors does not indicate (cf. facts
crime of interference with the independence of the Court expressed in the provisions of the
section 335 of the Act No. 40/2009 Coll., Penal Code). Also, neither the right to petition
It is not for the benefit of prosecutors limited (cf. § 1 (3) of law No.
85/1990 Coll., on the law on Petitions).
33. State representatives are-apart from the judges-the law and promise
personally committed primarily to protect the public interest (section 18 (3)
Act No. 283/1993 Coll.), which can lead to legitimate doubts as to their
impartiality in the judging conflicts of fundamental rights and freedoms and the public
interest. To a different character and guarantees of judicial independence-in
the context of the principle of the separation of powers-on the contrary. find more detail in SP. zn.
PL. ÚS 7/02 of 18 June. 6.2002 (N 78/26 SbNU 273; 349/2002 Coll.) and
follow-up of case-law, has no need to further recap. None of the
These elements, or the absence of explicit guarantees (ESP. Article 80 of the Constitution in
compare with the article. 82 of the Constitution) does not constitute support for the conclusion of the
judiciálním
the nature of the independence of the public prosecutor's Office.
34. The law on the public prosecutor's Office defines in its section 1 (1). 1 State
the Prosecutor's Office as a system, the authorities of the State, intended to represent the State
When the protection of the public interest in matters entrusted by the law within the scope of
the Prosecutor's Office. The conditions under which the public prosecutor
shall perform its function, the anchors of section 24 of the Act on the State
the Prosecutor's Office. In particular, the demands on the expertise, impartiality,
moral integrity and impartiality in the performance of neovlivnitelnost function
the State Prosecutor. Thus, although the Constitution nor the law No. 283/1993 Coll. closer
nekonkretizují character of the independence of the Prosecutor, Constitutional Court
not disputed that, in terms of the subjective, therefore, in the interests of the
the ability of the public prosecutor "to be resistant to any (political,
media, civic) pressures "(find SP. zn. PL-12/10, paragraph 23), you can
inferred similar features as the subjectively independent judge. This
"inner independence", however, can be exercised only in a limited framework
"the independence of the external", or administrative. Administrative
independence is given in the case of the judges "system, the political and
the institutional conditions for the performance of independent
the judicial power ", which, however, in the structure of the public prosecutor's Office
for them to lose. The Constitutional Court on this matter expressed already in your
the award of 23 July. March 2004, SP. zn. I. ÚS 573/02 (N 41/32 SbNU 397)
where noted, that considers it important to stress, "said
the evaluation of the nature of the decisions of prosecutors should be understood from the aspects of the
strictly institutional, such as finding of objectively existing
potenciality, which in terms of the legislature elected term of Office
the arrangement does not prevent the possible ingerencím the Executive Branch institutionally to the
decision-making of public prosecutors. No it does not affect how the achieved
(and desirable) level of independence, constitutionally called representatives of the public
action, so a specific way to exercise the function of each State
representatives of their professional quality and the effort to decide impartially and
objectively when the provisions of the code of criminal procedure and other
regulations. However, just potencialita the possible effective pressure prevents
consider the public prosecutor for institution of an independent, as it has in mind
Convention. ". The nature and guarantees the independence of the public prosecutor in
remain on the above see closer Lata, j. Independent State representative
-wishful thinking or achievable reality? In advocacy, Newsletter 3/2010
with 66-73. The amount of the internal independence is, of course, and not confined to
the judge or the Prosecutor, but also for other groups of national
staff příkladmo staff of the Supreme Audit Office, etc.
35. Evaluation (constitutionally different from the specific and courts)
the position of the public prosecutor's Office is not in the case law of the Constitutional Court
no unusual or even surprising (this is the antithesis to the
the appellant's conclusions on the strengthening of the role of the public prosecutor). In this you can
refer to the specific consequences of that doctrine as reflected in
cancellation of the law (code of criminal procedure), in the area of
the decision-making activities of the public prosecutor. Example for example. the finding of the
30 March. 11.2004, SP. zn. PL. ÚS 15/04 (N 180/35 SbNU 391; 45/2005 Coll.),
which was repealed the provisions of § 146 paragraph. 2 Act No. 141/1961 Coll. on
criminal court proceedings (code of criminal procedure), as amended.
This was in addition to another so that the person that was a riot the fine
pursuant to § 66 criminal procedure stored in the preliminary proceedings, the police
authority or a public prosecutor, should be available to ordinary appeal
resource (the complaint). Complaints authority, however, in these cases, the
the Court was not, but the Prosecutor, who shall exercise the above preparatory
management supervision (if the fine imposed on the police authority), or
Senior State Prosecutor. However, the authorities referred to in this complaint
If not (could not) be considered as meeting the criteria
an independent and impartial tribunal within the meaning of article. 6 (1). 1 the Convention on the
the protection of human rights and fundamental freedoms ("the Convention").
36. Also from SP. zn. PL. ÚS 45/04 of 22 December. 3.2005 (N 60/36
SbNU 647; 239/2005 Coll.), which examined the guarantees of a fair
in the process, the mechanism of review of detention, State representative
in the opinion of the Constitutional Court or other official person is empowered to
by law to exercise judicial powers within the meaning of article. 5 (3). 4 of the Convention (to
making the case-law there cited also cf. European Court of human
the rights).
37. A relatively current example might be a further find of 8 June. 6.2010
SP. zn. PL. ÚS 3/09 (promulgated under no. 219/2010 Sb.), which was cancelled
the provisions of § 83a paragraph. 1 of the first sentence and second sentence of the criminal procedure code
in the words: ", in the preliminary proceedings, the Prosecutor or the police
authority. The police authority needs the prior consent of the State
representative. ". Also here, the Constitutional Court stated that on the issue of the order for
inspection of other premises and land cannot decide the Prosecutor,
but an independent and impartial authority. "Indeed, the fact cannot be ignored that the
prosecutors in adversarial proceedings of a public function
action and law, as well as the promise personally committed to the protection of
the public interest (section 18 (3) of the law on the public prosecutor's Office). In
the preparatory proceedings, where they have a dominant position, together with the
the police authority shall be obliged to organize their activities so as to effectively
contribute to timeliness and merits tests are applied a criminal prosecution (section 157, paragraph 1
the criminal procedure code). All this can lead to a legitimate doubt parties of their
impartiality (or its illusion) when assessing the conflict of fundamental rights
and freedoms of individuals with the public interest in the prosecution of the crime. ". In
the Constitutional Court also bequeathed to find sp.. PL. ÚS 11/04 of
26 March. 4.2005 (N 89/37 SbNU 207; 220/2005 Coll.), in which they were defined
the demands on the body, which materially speaking, has a quality,
that can be identified with the Court. "The constitutional order of the Czech Republic (article.
81 and 82 of the Constitution) provides that the judiciary is independent and only perform the
impartial courts, respectively, by independent and impartial judges, who are governed by the
the basic rules of a fair trial (article 1, paragraph 1, of the Constitution, the head of the
the fifth of the Charter). This provision can be interpreted as the institutional guarantees
the material of the performance of the judiciary, agricultural and, therefore, from the perspective of the right to
a fair trial is not necessary, that in all cases the Court was in
the meaning of the article. paragraph 36. 2 of the Charter solely authority incorporated into the system
General courts, but must go to an independent body, whose members
have the independence and impartiality when making its decision. In addition, the
nepodmiňovaný have access to the examination of all the relevant aspects of the case
(factual and legal), and must respect the fundamental principles of
a fair process (e.g. policy, no one shall be a judge in your own
things or policy must be heard by both parties), with enforceable
the decision can no longer be the next power Act to reverse (the definition of
the judiciary in the material sense). ".
38. Of the
prima facie
nonjudiciálního the nature of the position of the Prosecutor or of the State
the Prosecutor's Office, as is obvious, even referred to find SP. zn. Pl. ÚS
11/04, which was repealed the provisions of section 77k paragraph. 6 Act No 148/1998
Coll., on the protection of classified information and on the amendment to certain acts, in
as amended. Find, among other things, that the position of the
the independent tribunal in the formal and material sense not even
The College, on the protection of classified information in the highest State
the Prosecutor's Office (Section 7a of Act No. 283/1993 Coll., as amended to 28. 2.2006),
and also due to its institutional position: "However, for the College
the Court cannot be considered to be, and even in the material concept, since it doubts
of independence arise structurally in the objective plane, which, however,
While in no way questions the independence of the prosecutors or filling
tasks of public action, nor is it in any way calling into question the professional and human
the quality of existing or past members of the College. ".
39. These considerations lead the Constitutional Court in the present case now to the conclusion that
Although the prosecution has given its important mission
constitutionally envisaged role, which is to the functioning of the judiciary
irreplaceable, while not a direct State administration, this is not a
institution, of which the essential attribute would be impartial and independent
the performance of the power of the Court. To substantially the same conclusions on the part of the State
the Prosecutor's Office as part of the Executive authority with the status of
sui generis right
mature legal doctrine (l. Bahýľová, j. Philip, p. Molek, M.
Podhrázký, R., V. Prince, L. Vyhnánek. The Constitution of the Czech Republic
-Comment. Linde, 2010 Prague, 940, 943, with. s. 944, etc.). It seems
as appropriate to add that neither the application of the so-called. diversions in criminal proceedings,
in the preliminary proceedings, the Public Prosecutor [conditional discontinuance
prosecution under sections 307 and 308 the criminal procedure code, a settlement pursuant to section
309 314 to the criminal procedure code, withdraw from the prosecution of a juvenile
pursuant to section 70 and 71 of Act No. 218/2003 Coll., on liability for youth
unlawful acts and on the judiciary in matters of youth and change some
laws (the law on the judicial system in matters of youth), as amended
legislation, and the conditional postponement of the submission of the proposal for punishment under section 179g
and the criminal procedure code 179h] cannot be considered deciding on guilt and punishment
within the meaning of the provisions of the article. 90 second sentence of the Constitution and article. 40 paragraph. 1 of the Charter.
40. It does not alter the claims side the participants if the State
the Prosecutor's Office shall represent the public suit, it does so as a result of its own
an independent judgement on the content of the public interest, and this independently of the other
public authorities. The Constitutional Court does not question the importance of the independence of the
the Prosecutor in assessing individual cases, whether in the
the preparatory proceedings, when on his reasoning depends, whether initiated criminal
the prosecution, or in the stage of its deciding whether they are reasons to
the filing of the indictment or not. Certainly it can be said that both of the Constitution,
Act No. 283/1993 Coll., but also of the principle of equality of the participants
management and a fair trial implies the requirement of an independent performance
the functions of the public prosecutor, and that under the system of the State
the Prosecutor's Office, which, as a special separate authority
sui generis right
satisfies the Constitution and by the law provided for a task only to that authority
State power (see the judgments of the Supreme Administrative Court of 27 June. 10.
2005 No 6 As 58/2004-45 and of 12 June. 11.2009 No 1 As 9/2009-86).
However, potencialita the possible interference with the exercise of the functions of either the head of the
the Prosecutor or ordinary prosecutors does not allow to be seen on the
the performance of the functions of the Prosecutor with regard to the independence of the performance function
as to the exercise of judicial power. Therefore also unable to conclude that the threat
such independence through the intervention of the State in the amount of the salary
the representative of as it was previously considered by the judges.
41. International documents to the applicant the status of public prosecutors
points out for example. the rules for the role of prosecutors (Guidelines on the
The role of Prosecutors) adopted on 8. the UNITED NATIONS Congress on the prevention of crime
and the treatment of offenders, held in Havana in August to September
1990. the rules recommend "appropriate assessment" ("
adequate remuneration
") and emphasize the crucial role that prosecutors play in the functioning of the
criminal justice, but for example. point 10 of the rules explicitly separates the Office
the State representative from the judiciary ("
The office of prosecutors shall be strictly separated from judicial
functions
.“). In light of the article. 9 (2). 3 of the International Covenant on Civil and
political rights, which requires (for deciding the custody)
presentation before the judge, or "
an official who is authorised by law to exercise judicial power
"found the Committee for human rights (UN), that the Prosecutor cannot be
regarded as the bearer of the institutional objectivity and impartiality
characteristic for the performance of the judiciary (e.g.. Communication N ° 521/1992,
Vladimir Kulomin v. Hungary, UN document CCPR/C/56/D/521/1992, point
11.3).
42. Finally, the case law of the European Court of human rights attaches
specific role of prosecutors in the criminal proceedings, but does not find it at the
These guarantees of independence and impartiality as the judges (to these guarantees
for example. Huber against Switzerland, judgment of 23 June. 10.1990, no 12794/87,
§ 42; Niedbała against Poland, judgment of 4 December. 6.2000, no. 27915/95, §
48-50; Assenov and others v Bulgaria, judgment of 28 June. 10. in 1998,
No. 24760/94, § 146; Nikolova against Bulgaria [GC], judgment of 25 March 2002.
3.1999, no 31195/96, § 49-50; Merit against Ukraine, judgment of the day
30.3. 2004, no 66561/01, § 62-63; Nevmerzhitsky against Ukraine,
judgment of 5 May. 4.2005, no 54825/00, § 56, section 125). „
Furthermore, the prosecution authorities not only belong to the
Executive branch of the State, but they also concurrently perform
investigative and prosecution functions in criminal proceedings and are
a party to those proceedings. The Court therefore reiterates its position
as to the status of the prosecutor, who cannot be regarded as an
officer authorised by law it exercise judicial power
‘ (...)“ (Salov against Ukraine, judgment of 6 April 2006. 9.2005, no.
65518/01, § 58).
43. Although there is no ambition nor the duty of the Constitutional Court to specify the
the constitutional status of public prosecutors or the detail to other groups
State employees to identify, it is sufficient for the above conclusion that
does not indicate if prosecutors constitutionally guaranteed independence of the
judicial, cannot be relied upon even those guarantees that this judicial
ensure the independence of the Constitutional Court, including judikované of permanence
the basic position. The argument of the claimant is moving in a circle in the
the meaning of comparison certain-already allocated by the legislature-
the same guarantees of independence on the part of prosecutors and judges
notes the need for the interpretation of the Constitution to infer additional guarantees (now the constancy of
emoluments). However, if the State Constitution does not confer
judicial character, went to the possible conclusion of the need for the same range
guarantees of the independence of public prosecutors and judges apparently beyond the scope of the Constitution.
44. The Constitutional Court also considered the extent to which a significant in the present case
It is spoken in the partial conclusion of finding SP. zn. PL-55/05 (see above), by
that a form of "pay restriction, however, is to be considered as well as the freezing of
the law envisaged income growth of judges or even
other constitutional factors
While for example. permanent ' freezing salaries
some of the leaders of the State
the Constitutional Court would undoubtedly be judged as constitutionally unacceptable step "
(point 55; italics for the purposes of this award). Account must be specified
interpreted in the context of the present case, then, and especially in light of the
the fact that this consideration (obiter dictum) was not in the later case-law
further fleshed out and developed, from which it can be inferred relativity
referred to the thesis. The question of budgetary measures in the realm of pay without a doubt
cannot be seen solely through the lens of the subjective interests of certain groups
employees of the State, but taking into account the fact that the functioning of the public
Administration, constitutional institutions of the State and the public prosecutor's Office is not directly
an end in themselves. By means of these institutions had become especially
carry out their tasks given by the Constitution, which include the implementation of the policy
the democratic rule of law and protection of fundamental rights and freedoms. If
the legislature (or within the limits of its competence, the Government) limited in the considerations of the
the pay restrictions against certain officials of the State, then it is in the
the first and foremost consideration to the factual conclusions that the salary restrictions in some
the segment of the public sector. If the apparent effect (or
even the intention) salary restrictions, which turns out to groups of employees
the State was eg. the breakdown in the area of public administration, or a reduction in
procedural protection of fundamental rights and freedoms, in sum, failure
in the implementation of the constitutional obligations of State elementary would be
no doubt the Act constitutionally illegal.
45. However, the Constitutional Court also notes that, in the assessment of the amount of the
given the intensity of unconstitutionality (paralysis of some of power) is not
the question of expenditure on staff salaries only determining aspect. In reflection
The Constitutional Court would have to be reasonably included total material
conditions that are provided to each of the arms of the power. From
submitted by the opinions of the participants and by parties to the proceedings, however,
not in any way imply that it would now pay restrictions under consideration was
to prosecutors, respectively. the system of the prosecution service such
the intervention, which meant de facto or even deliberate impeding or obstructing the
the tasks of the public prosecutor's Office, the Constitution and Act No. 283/1993 Coll.
store.
46. It is possible to přisvědčit the claimant that, in the case of public prosecutors
was not filled with the requirement that any of the restrictions has been platovým
After the legislature capped the relevant opinion of their
representatives, which should become a part of the explanatory memorandum. To
the adoption of the contested provision has on the part of the legislature in
the principle of unilateral zkonem, without
audiendi partis alterae
. Account should be taken of the fact that even the Union of public prosecutors of the Czech Republic
is the only voluntary body nepolitickým Association of State
the representatives of the Czech Republic, as well as in the case of judges of the Judicial Union
Of the Czech Republic. These organizations, as it seems to have the ability to intervene
in the legislative process, or the relevant manner in this
the process to represent their comments (see find SP. zn. PL-12/10,
point 25). Now, however, in the present case, in the absence of other aspects of the
consistent with the finding of the SP. zn. PL-12/10, it is not a reason to cancel the
the contested edits.
VII. b)
To the right to equitable remuneration
47. According to the article. 28 of the Charter of fundamental rights and freedoms of the citizens have the right to
fair compensation for the work, with details provided for by law (article 28 of the
the second sentence of the Charter), and this law, you can sue only within the limits of
the laws, which these provisions shall be carried out (article 41, paragraph 1, of the Charter).
48. One of the essential characters of the democratic rule of law is
the principle of proportionality, in particular, assumes that the measures restricting
the fundamental rights or freedoms may not exceed its negative consequences
the pros, which represents the public interest in such measures. To limit the
fundamental rights or freedoms may exceptionally arise even in the case of
their collision with any of the public goods (public interest); a substantial
However, in this context, the maxima, according to which fundamental right or
freedom can be restricted only in the case of exceptionally strong and properly
justified in the public interest, in a careful investigation of the nature and meaning of
the lifting of the basic law. The first condition is the mutual
measurement in the collision of a stationary base rights and the public interest (the so-called.
false conflict, unlike the conflict of two fundamental rights), the second is
the investigation request, the nature and meaning of the lifting of the basic law, respectively.
freedom (article 4, paragraph 4, of the Charter). Mutual weighing of conflicting
fundamental rights, then, as usual, lies in particular in the following
criteria: the first is the criterion of suitability, searching for the answer to the question,
whether the Institute restrictive certain basic law allows you to achieve
the objective pursued, followed by the criterion of necessity, consisting in the
comparison of the basic right of legislative restrictive resource, respectively.
freedom with other measures that enable it to achieve the same goal, but
nedotýkajícími the fundamental rights and freedoms, and continues the criterion
comparisons concerned, in a collision of standing of fundamental rights [cf. for example.
find SP. zn. PL. ÚS 40/02 of 11 March. 6.2003 (N 88/30 SbNU 327;
199/2003 Coll.)].
49. When considering the applicability of the principle of proportionality (proportionality)
However, you cannot see that in practice, the Constitutional Court may not always be the
understanding the main criterion of the constitutionality of the considerations of the legal
the provisions. It, therefore, that the principle of proportionality applies in particular in the
the field of human rights and fundamental freedoms (the head of the other Instruments); in
the area of economic, social and cultural, however, should be
just take to the article. paragraph 41. 1 of the Charter of the opening Ziroký space
for the legislature in the election of various solutions. Due to the article. paragraph 41.
1 of the Charter may not be statutory in strict relation of proportionality to
the objectives of the regulation, which is being monitored, IE. do not go for measures in
democratic society needed, as is the case with other
rights, which can be invoked directly from the Charter (cf., however, e.g. Article 27
paragraph. 1, 2 and 3 of the Charter and the rights stated therein, which are not article 41 paragraph.
1 limited). Test the constitutionality, in this sense, passes such legal
the adjustment, which can detect the tracking of a legitimate objective and that
so in a way that can be thought of as a reasonable means to
his achievement, though it may not be a resource the best, the best,
the most effective or the wisest [find SP. zn. PL. ÚS 83/06 of 12 March. 3.
2008 (N 55/48 SbNU 629; 116/2008 Coll.)]. In other words, the provisions of
article. 28 of the Charter is thus primarily released to lawmakers is
filled with specific content (cf. the second sentence of the provision itself,
that refers to the details provided for common law). The social and
economic rights, to which the right to remuneration for work and
satisfactory working conditions, differ from the classic fundamental rights in
the fact that there are a priori as unlimited basic rights that may
be constrained only by the legislator for reasons envisaged in the Charter, but
on the contrary, the legislator gives them the content and scope.
50. In the case of economic and social rights therefore constitutional guarantees
represent the constitutionally guaranteed protection of institutions (employment, wages,
social security, family, parenting, etc.), not protection
specific public subjective rights. As the constitutional criteria
the review can therefore be used only where the legislature by the constitutional
the protection of these institutions completely ignored or negated. The same is true in the
relation to the interpretation of laws containing adjustment of these institutions.
If the courts interpret and apply such law is their
activity in terms of the constitutional procedure, only from the perspective of the possible
the exercise of arbitrary power, but not from the perspective of the article itself. 28 of the Charter.
Instantiating the economic and social rights belong only to legislators,
not to the Constitutional Court. [resolution SP. zn. II.-1372/2007 of 19 October. 6.
2007 (in SbNU unpublished); CF.. also find SP. zn. PL. ÚS 8/07 from
on 23 December 2005. 3.2010 (promulgated under no. 135/2010 Sb.); find SP. zn. Pl. ÚS
2/08 of 23 December 2003. 4.2008 (N 73/49 SbNU 85; 166/2008 Coll.), etc.].
51. In the case the Constitutional Court it is sufficient the findings resulting from the
the explanatory memorandum that the legislator followed its procedure in the saving
public expenditure, taking into account the economic situation of the State. The affected
a prescription is not the result of e.g.. apparently irrational behavior
the legislature or random changes (mistakes) in the course of the legislative process.
Carried out the salary correction clearly does not compromise the meaning and essence of the
the Basic Law (article 4, paragraph 4, of the Charter), as for example. salary level
prosecutors still remains significantly higher than for nationals
employees. Even when session state wage base assessment
representatives to the base salary of the judges, which is in favor of the judges
affected by the finding of the SP. zn. PL-12/10, cannot talk about extreme
the disproportion. Therefore, you cannot treat the salary level of the State representatives for
unfair. If the Senate suggested in its comments that, when
approval of the contested provisions of the assumed reduction in salary levels for
all employees in the public sector, this account cannot be considered
When the constitutional review of a finding, which could possibly
come the initiative to the Government. If the Constitutional Court has not yet reached a conclusion about the violation of the rights of
on fair compensation for the work referred to in article. 28 of the Charter, cannot be
find violations of the right to unimpeded exercise of public functions referred to in article. 21
paragraph. 4 of the Charter, the violation of the minor participants argued right through
the reduction in salary.
VII. c)
Other objections
52. The Constitutional Court does not share nor straightforward belief that appellant
the legislature is authorized to reduce the salaries of employees in State
sector. If the applicant invokes the protection of legitimate expectations, must be
Note that under this designation in the case-law of the courts appears more
legal concepts. It occurs both in the position of principle, according to which no one
cannot be disappointed in their confidence in acts of public authority, and in the position
property claim (folder title) resulting from the article. 1
The additional protocol to the Convention on the protection of human rights and fundamental
freedoms. The concept of the petitioner (and minor participants) is approaching the concept of
the second, however, it is significant that the Constitutional Court did not admit this character
or platovým the demands of the judges (in the above case-law). Legitimate
expectations in the current case-law of the Constitutional Court was its basis
in specific legislation, supplemented by such acts of the public authorities (in particular.
judicial decisions), which specify the scope and content of the properly;
judicial protection of the legitimate expectations so it received as an existing
folder ownership. The Institute of protection of legitimate expectations does not protect
nezměnitelnost emoluments of civil servants in the future, as
you are (as in this case) dependent, at least on the economic
the situation of the State and also partly by political considerations (priorities)
that may be reflected in adjustments to the Organization of State power. Violations of the
protection of legitimate expectations
on future income ("not frozen salary")-and the judges-that
their salary will be a certain evolve as expected, so there was no
found, for example, or in finding SP. zn. PL. ÚS 13/08 on 2 December. 3.2010
(No 104/2010 Sb.) [which compare different opinion of judge E.
Wagnerové]; even in finding SP. zn. PL. ÚS 9/05 of 14 June. 7.2005 (N
140/38 SbNU 81; 356/2005 Coll.) [cf. different opinion on the justification of the
the finding of the judge with the ass-bag.]; even in finding SP. zn. PL. ÚS 43/04 of 14 June.
7.2005 (N 139/38 SbNU 59; 354/2005 Coll.) [cf. different opinion on the
justification for the finding of the judge with the ass-bag.]. If part of the constitutional
order generic nezměnitelnosti imperative (nezhoršitelnosti) grade
conditions for State employees (dovozený from any of the general constitutional
the principles), it would have been called into question the existing case-law line of argument
in matters of emoluments of the judges, that this infers exclusively
from the constitutional principle of judicial independence have postulated and the separation of powers in the
State.
53. The Constitutional Court in this connection points to the fact that in a number
their decision [e.g. findings in cases conducted under the SP. zn. Pl. ÚS
16/93 of 24 June 1993. 5. the 1994 (N 25/1 SbNU 189; 131/1994 Coll.), SP. zn. PL.
TC 36/93 of 17 December. 5. the 1994 (N 24/1 SbNU 175; 132/1994 Coll.), SP. zn.
PL. ÚS 5/95 of 8 June. 11.1995 (N 74/4 SbNU 205; 6/1996 Coll.), SP. zn.
PL. ÚS 33/96 of 4 June. 6.1997 (N 67/8 SbNU 163; 185/1997 Coll.)] He explained
the content of the constitutional principle of equality. Aligned with the understanding
equality, as expressed by the Constitutional Court of CZECHOSLOVAKIA in its award of 8. 10.
1992, SP. zn. PL. ÚS 22/92 (published under no. 11 Collections and resolution
the findings of the Constitutional Court of CZECHOSLOVAKIA). The Constitutional Court of the CSFR it conceived the equality
as the relative category, which requires the removal of unjustified
differences ("it is for the State, in the interest of the security of their functions, decided
that a certain group will provide fewer benefits than others. Even here, however, must not
follow completely arbitrarily. If the law specifies the benefit of one
the Group and at the same time lays down the obligations of the other, may be disproportionate, so
the State only with reference to the public values. "). The principle of equality in the rights
It is therefore necessary to understand the way that legal distinction in the approach to certain
the rights may be a manifestation of will, however, come not from the conclusion that the
each had to be granted any right [find SP. zn. PL. ÚS 15/02
of 21 April 2004. 1.2003 (N 11/29 SbNU 79; 40/2003 Coll.)].
54. In the matter of SP. zn. PL. ÚS 4/95 of 7 July. 6.1995 (N 29/3 SbNU 209;
168/1995 Sb.) The Constitutional Court. He stated that the inequality in the social
relations, if a touch of fundamental human rights, must reach the
the intensity of the call, at least in a certain direction, already the very essence of
equality. This usually happens when there is a violation of the equality
linked to violations of other fundamental rights. In the field of the rights of
economic, social, cultural and minority, with regard to the
the fact balancing relations between different groups of complex social,
culturally, professionally or otherwise stratified society-the legislature
logically, it has a wider area to apply their ideas about
the permissible limits of de facto inequality. From the arguments of the appellant in the
the principle implies that to platovým the existing grade
the relationships between different groups of public servants (officials
State power) only has experience across the Board, and not selectively,
or that the legislature does not have the ability to change the existing remuneration
one group of prosecutors, if at the same time does not change (in the same
ratio) remuneration of other groups of public servants. With this
The Constitutional Court does not identify.
55. In relation to the assessment of the degree of potential prejudice to the neakcesorické
equality (article 1 of the Charter) by the contested provisions of the Constitutional Court States that the
unconstitutionality in sufficient intensity there is nothing. In the area of
the budget and economic policy of the State Constitutional Court of long-term
demonstrates a high degree of restraint. On the issue of assessment
the constitutionality of restrictions on civil servants ' pay cannot be regarded
the lens is more stringent than on other economic policy measures, for example.
tax tools. On the contrary, in the case of fixing the amount of the salary of the State
the employee is not about interference to existing ownership rights
(cf. the relationship between article 11, paragraph 1, and paragraph 5, of the Charter), but rather about measures
purely prospective, thus indicating at least as wide a space
for the consideration of the legislature, as in the case of taxation. And for now at hand
the important thing is that the issue of the appropriateness and necessity of the measure is
in principle left to the will of the legislature, which in its decision carries
political responsibility, which however does not mean absolute discretion
the lawmaker, whose limits are given by the exclusion of conflict with the constitutional
the principle of akcesorické and neakcesorické equality [to guest tax
tools for the last time in finding SP. zn. PL. ÚS 53/10 of 19 April. 4.2011
(promulgated under no. 119/2011 Sb.) with reference to the previous case law].
56. After the exclusion of the intervention into the basic rights (above), both alone and in
connection with the principle of equality, therefore, the Constitutional Court to the exclusion of all
doubt, assess whether the contested regulation is not unconstitutional by reason of
contrary to the principle of equal neakcesorické (article 1 of the Charter), which can be
simply as a prohibition of arbitrariness (irrationality) legislature
during an intervention that is not guaranteed by the basic law restrictions (IE.
the general equality before the law).
57. To consider the extent to which the public prosecutor can be considered
the only
, respectively.
arbitrarily
and
irrationally
a selected group of government employees, which should touch the salary
restrictions, the Constitutional Court notes that Act No. 418/2009 Coll. prosecutes
a similar reduction in salaries (base pay) about 4% not only State representative,
but a number of other representatives of the State power, and that members and Senators
Parliament, the members of the Government, the President of the Republic, the judge of the Constitutional Court
Members, the Vice President and the President of the Supreme Audit Office, members,
Vice-Chairman and Chairman of the Council for radio and television broadcasting,
the members of the Council, Vice-Chairman and President of the Institute for the study of totalitarian
schemes, members of the Council and the President of the Czech Telecommunications Office, judge
(see, however, find SP. zn. PL. ÚS 12/10) and member of the European Parliament
(cf. Article enumeration. (I) Act No. 418/2009 Coll., in conjunction with § 1 of law No.
236/1995 Sb.). In this respect, it should be noted that the State representatives
they are not the group to which the legislature individually and irrationally
target. Act No. 418/2009 Coll., on the contrary, rationally touches the
representatives of the State authority whose remuneration are set out directly
by law, or a similar legal mechanism. At the same time for the chosen
a group of representatives of the State, that the law granted
the salary ratios are clearly above average and that set out the political intention of the
expense savings in principle cannot be implemented by other means (eg.
dismissal). Should be noted that the legislator in relation to other
State employees does not have the real possibility of direct salary restrictions,
because of the amount of the salaries of State employees are to a large extent things
de facto
, often compounding the unfolding in salary from the individual
the decision in the context of labour relations. In this, the Constitutional Court cannot
take into account the level of the excesses to which according to the publicly available information
occurs mainly in the central bodies of State administration, which are
responsible for specific executives. These phenomena cannot be part of the
the benchmarks in the framework of the possible comparison of grade levels
different groups of public servants and the Constitutional Court is not even entitled to
These grade session judge. From the explanatory memorandum to the Act No. 418/2009
Coll. implies that restrictions applies in addition to the approximately 1 300 public prosecutors
and approximately 3 500 other officials (including judges). The adoption of law No.
418/2009 Sb. Furthermore, it was used to justify "due to the current worldwide
the economic crisis, "or" austerity expenditure
the State budget ". From the discretionary power of the legislature cannot be found,
because Materia of the present Constitutional Court repeatedly in the area
economic measures in the form of Act i of the generally known information from
activities of the Government and Parliament, it is clear that the intention of the political
team was and is to reduce the expenditure of the State budget in many
areas, including a broad group of civil servants. This intention
It is implemented in a number of steps already for several years, therefore i
the contested provisions cannot be considered as an individual against arbitrary interference
a group of prosecutors, but rather in the context of other economic series
the measures, which took place, and in the future
(including other measures grade).
58. the reasonableness of the objective pursued (saving on expenditure page
the State budget) in relation to the used instruments (the salary restrictions)
the Constitutional Court notes that elementary rational basis by the legislator
the chosen route was given, as in the explanatory memorandum stated intention
Save amount of 31.2 million. CZK, on the salaries of prosecutors, respectively.
about 126.7 mln. On the side of all 4 800 representatives of the State power
(including judges) is clearly in principle and in particular the amount of the
rational measures of considerable importance. At the same time, as was
found above, this measure alone person in specific existing
of the total emoluments of prosecutors does not raise the intervention in
Basic Law (ESP. right to equitable remuneration provided for in article 28.
Of the Charter). Therefore, it can be said that the procedure of the legislature was reasonable
a stated purpose. Any voucher for a relatively low amount
that has to be referred to the legislature as a result of austerity (in the context of
the total amount of the State budget), in the sense that the low savings
sufficiently justifies the procedure of the legislature, has disputed argumentative
the value of the. The higher the amount of the budgetary savings would not necessarily mean at the same time
much more intense intervention in the emoluments of each of the concerned
persons and any possible breach of the basic law. When the adoption of such
the argument would basically never, in practice, can be found a balanced status
the adequacy of the salary restrictions, because such action would be moved
only in two positions: either the legislature proceed arbitrarily, since on
his hand is no (intensive enough) in the public interest, or would
the salary restrictions while appreciable savings in the State budget,
However, for the price of a drastic reduction in the salary levels and the subsequent potential
violation of any of the fundamental rights on the part of government employees and
the threat to some of the functions of the State.
59. The Constitutional Court therefore did not, in their restraint to evaluate the overall
remuneration of civil servants (representatives of State power)
are always a work of expression of the political will and the work of the expression of
the situation of the State, that the legislature of the limits of the rational
decision making is so intense in a way that would be especially professional
a group of prosecutors has become a group of disadvantaged (in platově
the result of the undervalued). The resulting state of the salary levels of public prosecutors
does not constitute irrational levelling of emoluments of different groups
State employees, and thus violating the principle of equality in the
aspect, which asks to accompany different position State rationally
representatives (in the light of the above, as opposed to other groups by State
a higher level of staff) levels. In the present case now
not in any way talk about the constitutional inequities, inequalities, respectively.
before the law. For completeness should be added that, in the event
establishment of the derogačního statement of the Constitutional Court on the argument
neakcesorické inequality, which would be marked by the legislature selected
a group of 4 800 representatives of the State (including judges), victim of the legislative
arbitrariness, would support the grounds for such a finding necessarily on
another group of representatives of the State concerned (
Nota bene
including members of Parliament and Senators of the Parliament and a number of other according to § 1 of the law
No 236/1995 Sb.).
VIII.
Obiter dictum
60.
Obiter dictum
The Constitutional Court through the above recalls that of the legislature by law No.
283/1993 Coll. stores the public prosecutor's Office (and thus the State
representatives, whose acts are in accordance with § 23 paragraph. 2 of the same Act
considered as acts of the State Prosecutor's Office) and a number of significant other
in particular, the tasks of the authority of priceless in criminal proceedings, which provides
the protection of the public interest as a public authority action, irreplaceable is
also the role of the public prosecutor's Office in the prevention and sanctioning of criminal
activities, for example. corruption and economic crime.
61. at the discretion of the State, whether and how it will affect the
crime. The Constitutional Court on the doctrine that the persistence of criminal proceedings
represents only the relationship between the offender and the State, therefore, that constitutionally it is not
guaranteed the right of a third person (notifier, damaged), to any other person
She was prosecuted and convicted. At the same time, however, cannot be ignored, that is
the clear duty of the State to ensure the protection of fundamental rights, including the
the rights guaranteed by the Convention, including through effective criminal
proceedings, or that in certain situations, you can talk about the effective protection
(the victims) only through the criminal law. The failure of the State in this
the obligation may constitute a violation of article typically 2
paragraph. 1, article. 3 or article. 8 Convention [X and Y against the Netherlands, judgment of the day
26.3. 1989 No 9,179/80, § 27: "
This is a case where fundamental values and essential aspects of
private life are at at stake. Effective deterrence is indispensable in
This area and it can be achieved only by criminal-law provisions (...)
“; M. c. against Bulgaria, judgment of 4 December. 12.2003, no. 39272/98, §
150-153; Assenov and others v Bulgaria, judgment of 28 June. 10. in 1998,
No. 24760/94, § 102; Osman v United Kingdom judgment
28.10. 1998, no. 23452/94, § 115-116; and other]. Especially to the
its unique role of the Prosecutor in the proceedings before the Court notes
The Constitutional Court, that a fair criminal proceedings without the active participation of
the Prosecutor cannot lead, since taking over the functions of the Court
by establishing reasonable grounds for doubts about the impartiality of the Court in specific
things, and violations of the principles of the indictment [Thorgeir Thorgeirson against Iceland,
judgment of 25 November 2003. 6.1992, no. 14463/88, section 53; in particular the Ozerov
against Russia, judgment of 18 February 2004. 5.2010, no 64962/01, § 54-55
(violation of article 6, paragraph 1, of the Convention for the absence of the public prosecutor); in
recently, then the Krivoshapkin against Russia, judgment of 27 June. 1.2011
No. 42224/02, § 44-46 (violation of article 6, paragraph 1, of the Convention for the absence of
the State Prosecutor)].
62. The above conclusion that the material security of State
representatives as an aspect of their independence, unlike the judges, does not enjoy
direct constitutional protection and is guaranteed only in the plane of the law, it is therefore
necessary to add the following. Bytostným the reason on which it is based
the existence of the State, State power, ensuring the security of citizens. The task of the
political power in a democratic legal State is to create the optimal
rules for the establishment and functioning of mechanisms that a reliable and
an effective way to ensure the investigation, prosecuted and judging offences
acts and other objectionable (tort) in the company. For
a functioning judiciary and the public prosecutor's Office, i.e., the system, which
just follow and are the other components of the State power is indispensable,
to ensure selection of the best lawyers, who are in the
the area and the time available. Content words
the best
It is not only the formal qualifications and professional experience, but in particular the
personal integrity and its individual manifestations such as neúplatnost,
responsibility, decency, honesty, diligence, moderation, courage,
diligence and access to the understanding of the devolved power services company.
The judge nor the Prosecutor should not be called when taking up their duties.
Tabula rasa
about which he knows nothing, but on the contrary, a sheet of frequently described, which can be
conclude that the power that is his function takes, not misuse. For
the Prosecutor should be a matter of honor to defend before the judge
persuasiveness and credibility of the submitted evidence, the
which has built its work-impeachment-if he was convinced of its
merits tests are applied to and the necessity of the personal sphere of the individual, which
the criminal proceedings. Overall, the quality and fairness of criminal
the judgment very fundamentally depends not only on good defense, but
in particular, even on high quality work and preparation of the indictment.
63. It is on the Executive Branch and its political representation, to carry out an analysis of the
material security in the various legal professions (judges,
prosecutors, lawyers, notaries, bailiffs etc.) and adopt such
measures to ensure the material and professional options were in the proper
proportion in relation to the performance of the work and responsibilities of the individual
legal professions with a view to ensuring their mutual permeability.
Cannot be overlooked include from the current emoluments, in particular, on some of the
ministries, the public gradually learns.
64. The legislature repeatedly accesses to the negative interference in the salary
prosecutors-unlike other State employees. To be
Therefore, mention the concern that their nekoncepčními steps will wipe away wage differences
between the prosecutors and other groups of employees of the State of the realm
so much so, that it will threaten the stability of the functioning of the public prosecutor's Office. Such
development is hard to justify the political objective of selective savings
the State budget, as he got into conflict with the above konstatovanými
the obligations of the State or the basic international documents ("
Like for judges, remuneration in line with the importance of the tasks
performed is essential for an efficient and just criminal justice
System. And sufficient remuneration is also necessary to reduce the
danger of corruption of prosecutors
.“ The report of the Venice Commission on the European standards of independence
the judicial system: part II-public prosecutor's Office, taken 17.-18.
December 2010, study No. 494/2008, paragraph 69). In this context, the constitutional
the Court does not condone the Government's responsibility aware of the efforts of the
to strengthen the level of stability in the system of the public prosecutor
through links on the salary level of judges from 2012 (House
print 341).
IX.
The conclusion of the
Even taking into account the above indicated the role of public prosecutors in the criminal
management and their current status within the structure of State bodies
the Constitutional Court did not find that the contested provisions of the Act constitute a
already a violation of the constitutional order in the intensity of qualifying to the Constitutional Court
use of the derogation, which powers pertain. For reasons set out in
sections VII. and), b), c), so the proposal was rejected under section 70, paragraph. 2
the law on the Constitutional Court. Due to the fact that the minor participants
in the course of any proceedings connected and cumulative proposals modifying
intertemporální effects of the original proposal, for which the procedure was sp..
PL. ÚS 17/10 started, to which, however, the fall in its entirety the decision-making
the reasons for the above, does the Constitutional Court now these proposals
separately (e.g. from aspects of their formal projednatelnosti in already
ongoing management due to the procedural position of the side
the participants), but rejects these proposals in their entirety as manifestly
unwarranted under the provisions of section 43, paragraph. 2 (a). and Constitutional law)
of the Court. The material constitutional court sees motions as a (legitimate)
Miscellaneous request participants to the Constitutional Court settled with
intertemporálními the effects of its eventual derogačního award. In this
The Constitutional Court refers for example. in its opinion on the SP. zn. PL. ÚS-Wed, 31/10
of 14 June. 12.2010 (published under no. 426/2010 Sb.)
the promise that the Constitutional Court will be to "time aspects of enforceability"
their findings more consistently pronounce with regard to individual
the nature of things, when the obligation on there expressed understanding.
The President of the Constitutional Court:
JUDr. Rychetský in r.
Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, the judges took the decision of plenum Vlasta
Formankova, Pavel Holländer, Vladimir Crust, Jan Musil, Pavel Rychetský
and Elisabeth Wagner, and his justification of the judge Turgut Güttler.
* Note. Red: a collection of findings and resolutions of the Constitutional Court, 15 u.s.c.
find no 125, p. 191, no. 233/1999 Sb.
