355/2005 Sb.
FIND
The Constitutional Court
On behalf of the United States
The Constitutional Court ruled on 14 June 2005. July 2005, as amended by an amending resolution
of 30 March 2004. August plenary consisting of Chairman Paul Rychetského, judges
Stanislav Bumpkin, Franz Duchoně, Vojena Güttlera, Paul
Holländera, Ivana Janů, Dagmar Lastovecké, Jiří Mucha, Jan Musil,
Jiří Nykodýma, Miloslava Excellent, Eliška and Michaela Wagner
Židlické about the design of the municipal court in Brno, Czech Republic for annulment of the provision of section 2 in the
relation to the provisions of § 1 (b). h) Act No. 425/2002 Coll., amending, for the
year 2003 provides an exceptional measure in determining the amount of the salary and some
compensation expense associated with the performance of the functions of the representatives of State power and
some State authorities, judges and prosecutors, and
of these persons, the amount of additional remuneration for the first and second half of the year
2003 "in relation to the judges of district, regional and high courts,
The Supreme Court and the Supreme Administrative Court ",
as follows:
Date of publication of this finding in the journal of laws shall be repealed the provisions of § 2
Act No. 428/2002 Coll., with regard to the judge of the district, regional and
the High Court, Supreme Court and Supreme Administrative Court [section 1 of the
(a). h) Act No. 425/2002.].
Justification
(I).
On 9 April. in July 2004, the Constitutional Court received a proposal from the municipal court in Brno, Czech Republic
(hereinafter referred to as "the applicant"), for which the President of the Chamber is Msc. D. D.,
the cancellation of the part of the Act No. 428/2002 Coll., laying down, for the year 2003
extraordinary measures in determining the amount of the salary and certain expenses
associated with the performance of the functions of the representatives of State power and some
State authorities, judges and prosecutors, and those persons
the amount of additional remuneration for the first and the second half of 2003 (hereinafter
' the law No 425/2002 Coll.). The applicant is requesting, "to the Constitutional Court
The CZECH REPUBLIC to its finding, held that the deleted part of Act No. 428/2002 Coll. in
the section on one side of the additional salary for the first and second
half of 2003 in relation to the judges of district, regional, top
the courts, the Supreme Court and the Supreme Administrative Court [the provisions of § 2 in
relation to the provisions of § 1 (b). h) Act No. 425/2002 Coll.] ".
The petition was filed under art. 95 para. 2 of the Constitution and according to the provisions of the Act
No. 182/1993 Coll., on the Constitutional Court, as amended, (hereinafter the
"the law on the Constitutional Court") in connection with decision-making activities
The municipal court in Brno, in that Court under SP. zn. 30 C 67/2004
civil proceedings relating to the action. (D), the judge of the municipal court in
Brno, which the applicant seeks to the defendant the Czech Republic-Urban
Court in Brno, payment of a sum of CZK 43.200, because as a result of
the adoption of Act No. 428/2002 Coll., have not been reimbursed for the two halves of the next
the salary for the first and the second half of 2003. The appellant without taking
the decision to suspend civil proceedings [which had to make under section
paragraph 109. 1 (b). (c)) of the row], filed to the Constitutional Court for annulment
the provisions of the above-mentioned Act No. 428/2002 Coll., because within the meaning of
article. 95 para. 2 of the Constitution, came to the conclusion that these provisions of the Act, which
the solution is to be used when things are "contrary to the judge on
the material security of its judicial independence ", which results from the
article. 1 (1). 1 in conjunction with article. paragraph 82. 1 of the Constitution and article. 1 of the Charter
fundamental rights and freedoms (the "Charter").
The appellant in support of its proposal for reproduces the line of argument extensively,
used by the Constitutional Court in finding SP. zn. PL. ÚS 11/02 of
11.6.2003, which was canceled by a part of the law No. 416/2001 Coll., on the withdrawal of the
additional salary for the second half of 2001 and the determination of the amount of other
the salaries for the first and the second half of 2002, officials and
some government agencies, judges, prosecutors, members of the Presidium
Securities and Exchange Commission, representatives of the Ombudsman and members of the
the Bank Board of the Czech National Bank. The appellant expresses the view that the
the same reasoning, spoken in the Constitutional Court SP. zn. Pl. ÚS
11/02, also applies to support the current proposal, relating to law No.
425/2002 Sb.
The applicant further submits that the undue interference of the legislator to
judicial independence occurs repeatedly in recent years, which
evidenced by the fact that
-Law No 427/2003 Coll. There has been a withdrawal of half the next salary
belonging to the judges for the first and second half of the years 2004, 2005 and 2006 and
the same law has occurred. "salary freeze" by the fact that in those
years, it's the salary base of achieved at the date of 31 December 2003;
-Act No. 422/2002 Coll. was with effect from 1 January 2003 the judges reduced
the period for which they are provided, the salary of temporary incapacity when
the performance features of the original six months for a period of 20 working days;
-Act No. 428/2002 Coll. in section 1 provided that, for the determination of salary and
other expenses and expenses related to the performance of the function of the judge in 2003
will be used for the salary base of formal of 31 December 2002,
However, due to changes in legislation, pay scales, and personal
the supplement, made for staff of ministries, has not increased, although
apparently at normal run-time event such increase should occur.
The appellant complains that the lawmakers that made employment salary adjustments
the Government does not comply with the declared objective of "maintaining a comparable position
each group of "people, IE. civil servants, representatives of the
State power and judges, expressed in the explanatory memorandum to the draft law No.
425/2002 Sb. Disrupting the comparable position had, in particular,
These measures:
-amendments to Decree-Law No 253/1992 Coll., made by a Government Ordinance
No 582/2002 Coll., which took place with effect from 1 January 2003 to increase the scale
pay scales for certain employees of State administration bodies;
-amendments to the regulation of the Government No. 251/1992 Coll., made by a Government Ordinance
No 583/2002 Coll., which took place with effect from 1 January 2003 to increase the scale
pay scales for some budget and some
other organizations;
-amendments to Decree-Law No. 79/1994 Coll., made by a Government Ordinance
No 584/2002 Coll., which took place with effect from 1 January 2003 to increase the scale
pay scales for employees of the armed forces, security forces
and services, customs administration authorities, members of the Corps fire protection and
employees of certain other organisations;
-the adoption of Act No. 361/2003 Coll., which occur in the future
increase in the salary of members of the security forces.
The appellant argues with the hypothetical caveat that additional salaries of judges
by their nature, are just some sort of bonuses, paid once per semester to
regular monthly income of a judge whose withdrawal cannot be considered
restriction of remuneration for work. In the opinion of the appellant in the assessment of
questions of material security is necessary to judicial independence
take into account the total guaranteed annual income Act penzu judge
to which it is necessary to include the other salaries for the first and second half of the year
calendar year, prepared in ust. § 4 of law No. 237/1995 Coll., on salary
and other formalities associated with the exercise of the functions of the representatives of the State
power and some State authorities and judges, as amended
(hereinafter referred to as ' law no 236/1995 Sb.).
The applicant concludes that the material ensure independence
one of the judges is the guarantee of an impartial and fair decisions about
the rights and legally protected interests of the people. Considers, therefore, that the withdrawal of the
half of the other salaries of judges for the first and the second half of 2003 is in
contrary to the concept of the democratic rule of law, expressed in the article. 1
paragraph. 1 of the Constitution, threatens judicial independence guaranteed in article. 82
paragraph. 1 of the Constitution and undermines the equality rights, as enshrined in article. 1 of the Charter.
II.
The Constitutional Court has requested comments on the proposal from the Chamber of Deputies
Parliament of the Czech Republic (hereinafter referred to as "Chamber of Deputies"), from the Senate
Parliament of the Czech Republic (hereinafter referred to as the "Senate") and from the Minister
Justice.
The President of the Chamber of Deputies, PhDr. Lubomír Zaorálek in representation of
27.8. 2004 no j. 8439/04 told the Chamber of Deputies was
the adoption of Act No. 428/2002 Coll., of the belief that the non-payment of a further
the salary of the judges is not in conflict with the constitutional order and cannot compromise the
the independence of judges, since it's not a surprise, not a deep action
in their environment. Leaves it to the Constitutional Court, in order to
to assess the constitutionality of this law.
The President of the Senate doc. JUDr. Petr Pithart in representation of 8.9.2004 No.
j. 9654/04 indicates that the substance of the matter, IE. the nature of the other salaries in the
relationship to ensure the judges as one of the aspects of the constitutional
the principle of judicial independence, the Senate has repeatedly expressed,
for example. in the case at the Constitutional Court under the SP. zn. PL. ÚS 15/99 and the
This representation is now referenced.
(Note: in case the Constitutional Court held under SP. zn. PL. ÚS 18/99, on
the President of the Chamber, found expression refers to the then Chair of the
PhDr. Libuše Benešová Senate no j. 14781/99, sent to the Constitutional Court to
application for annulment of the Act No. 283/1997 Coll. on this statement says that
The Senate does not deny that the principle of the independence of judges includes a variety of
aspects, which can be sorted and material security of judges. However, it is on the spot
point out that this material security is done mainly
in the form of a regular monthly salary, the amount and terms of,
and this cash with no restrictions on does not touch. Additional salary is
According to the legal provisions, a single act provided for
conditions laid down once each calendar half-year, while from
the conditions of the claim itself, when one of them is the duration of the work
the relationship of the judge to the last day of the calendar half-year, shows that this
Act can hardly be treated as material security of judges, whose
the reduction or withdrawal could entail a violation of the principle of
the independence of judges.)
In the present observations of 8 June. 9.2004 No. 9654/04 the President of the Chamber
mostly focused on the formal side of things. Pronounced doubt
regarding the design of the proposal presented by the applicant to the constitutional remedies
the Court, because of this it is not clear that the remedies provisions of the Act is
actually proposed to cancel. The claimant's request to Constitutional Court
set aside the part of the law "in relation to the judges of district, regional and top
the courts, the Supreme Court and the Supreme Administrative Court [the provisions of § 2 in
relation to the provisions of § 1 (b). h) Act No. 425/2002 Coll.] "is by
the opinion of the President of the Senate, September 11. The Constitutional Court.
negative, the legislature should comply with the design could not contested
the provisions of § 2 of the Act derogovat only in relation to the Group
judges and leave them in place in relation to other groups of people. If
would be abolished, the whole of paragraph 2, the consequences of the cancellation
apply to all persons referred to in paragraph 1, which would be unacceptably
out of the scope and content of a submitted proposal. Similarly, you cannot follow
the opinion of the President of the Senate or of the provisions of paragraph 1 (b). (h))
Although only refers to judges, but the consequences of such abolition would be beyond the scope of
submitted the proposal fell on the area of determining the amount of their salary
the base.
Therefore, in the opinion of the President of the Senate, say the doubt about whether
submitted the proposal concerns "of the individual provisions of the law" and that, therefore,
satisfies the condition contained in article 87 para. 1 (b). and the Constitution to it)
the Constitutional Court could rule discussed. Observations points to a steady
the case-law of the Constitutional Court (e.g. a decision on SP. zn. Pl. ÚS
16/94), from which it follows that this Court is bound, when making its decision
the scope and content of the remedies in the decision and of its borders cannot
to move; nor can the text under consideration of the law to intervene
Likewise, other than the statement.
Deputy Prime Minister of the Czech Republic and the Minister of Justice. Pavel
German in its observations of 22.9.2004 No. 562/2004-PERS-SA/2
above all, notes that when the State repeatedly to reduce claims
the judges of the special laws and to subsequent proceedings on the constitutionality of these
laws shall be deemed completely unacceptable. Such a State has, by its
opinion, negative impact on the social perception of the judiciary and the
the perception of how the separation of powers, since it raises the adverse impression
the continuous rivalry between the judicial, legislative and Executive of the amount of
remuneration for the performance of the functions. A fundamental question which leaves
The Constitutional Court, the Minister of Justice, whether the law originally
the set level of income, the judge may or may not be subsequently reduced, respectively.
under what circumstances (particularly in relation to the development of public budgets) to
such reductions may occur. The Minister does not agree with the arguments
the petitioner, that limits the amount of other wages in 2003 there has been a
inadmissible a levelling of the status of judges and other groups, to be paid
out of public budgets. Points out that this legislation was
justification the injurious situation of the State budget. While the above
the next salary in 2003 was limited to all groups of people, to be paid
from public budgets alike, remained unaffected
differentiation resulting from the difference in the amount of monthly salary and other
the formalities associated with the exercise of the function.
The Minister of justice do not agree either with navrhovatelovým, claiming that
such a legislative measure is interference in the judicial independence. Material
Security is, in its view, only the one of the supportive conditions
creating an environment for the application of the principle of judicial
independence and between the material organisation and the essence of this principle
There is no immediate link. The Minister deems unacceptable the view
that the degree of independence of the judge, without regard to any existing
objective circumstances, directly dependent on the amount of tangible security. Further
notes that the level of physical security must reflect the General real
economic circumstances of the State in which the justice system as a service to the public
exercised.
In conclusion to its opinion, the Minister of Justice proposes that the constitutional
the Court proposal to repeal parts of the law No. 428/2002 Coll., refused. Pronounced
the view that the question that is the subject of this proposal, should in the future
the legislature resolved by removing from the pay system Institute
further salary and to compensate for a corresponding increase in the monthly
salary.
III.
The present legal ramifications and all the factual circumstances of the case
were sufficiently zřejmy of documentary materials and because of the oral
the negotiations could not be expected further clarification of the matter, the Constitutional Court is
the consent of all the participants dropped according to § 44 para. 2 of the Act on the constitutional
the Court.
IV.
The proposal will concern the following provisions of Act No. 428/2002 Coll.:
"§ 1
For the determination of salary and certain compensation expenses related to the performance of functions
and member of Parliament and Senator),
(b) the Member of the Government),
(c)) the President of the Republic,
(d) the judge of the Constitutional Court),
e) Member, Vice-President and President of the Supreme Audit Office,
f) Member, Vice-President and President of the Council for radio and television
the broadcast,
(g)), the Director of the security intelligence service
h) judge of the district, regional and High Court, Supreme Court and the
The Supreme Administrative Court,
I) Ombudsman and Deputy Ombudsman,
j) Chairman of the Securities and Exchange Commission and a member of the Presidium of the Securities and Exchange Commission
papers,
to the President of the Office for the protection) of personal data and the Inspector of the Office for
protection of personal data,
l) of the public prosecutor and the
m) Director of the Office of the Government representation in property Affairs and
staff of the Office of the Government representation in property Affairs
in 2003, it's the salary base of formal to 31. December
2002. As a result of changes to legislation, pay scales, and personal
the supplement made for staff of ministries, with effect
following the date of 31. in December 2002, the salary base in that
year does not increase.
§ 2
If under special legislation shall belong to the persons referred to in paragraph 1 of the
additional salary, shall also be given for the first and the second half of 2003, only in
half the amount they would otherwise be entitled to. "
The draft of this law, the Government has submitted to the Chamber of Deputies on 10. September
2002 in the context of the proposals of eight laws, whose purpose was the solution to the budget
After the catastrophic situation created by the floods in August 2002. For all
These proposals, the Government has requested that were discussed in the State
legislative emergency, and the Chamber of deputies have also been discussed.
In the explanatory memorandum to the draft law, the Government states that employment salary
editing monitors the State budget expenditure and saving it "...
connection with the economic situation resulting from the floods in August
This year ". The total savings, which the new arrangements bring, in
the explanatory memorandum is estimated at 480-500 million, of which the savings resulting from the
reducing other salaries is estimated at 250 million (in addition,
anticipated savings resulting from the "freezing" of the wage base on the level
in 2002, and unspecified other expenses, such as savings. on
compensation for expenses derived from the amount of the salary base).
The Chamber of Deputies the draft of this law being discussed as the Council
print no. 46. Proposal on 11 December 2001. September 2002 dealt with the guarantee Committee for
social policy and health, which recommended its adoption. A Chamber
The Chamber of Deputies was pending on 5. meeting on 13 November. September 2002; from
187 present deputies voted 154 for approval by members,
No one was against.
The Bill was delivered on 16. September 2002, the Senate, where he was as a Senate
print no. 356 assessed in two committees,
-in the Committee on economy, agriculture and transport, which, in its
the resolution recommended the Senate Bill is to dwell,
-the Committee of constitutional laws, which guarantee to the Committee, the draft law
did not adopt any resolution.
Then the Senate discussed the Bill at its 21. meeting on 19 December. September 2002 and
adopted a resolution in which it expressed the will of the draft law is to dwell on. For
This resolution of the 49 Senators present voted 32, six were against.
The law was after the signature of the President of Republic on 25 April. 9.2002 published
on 1 May 2004. 10.2002 the amount of the collection of laws under no. 151 428/2002 Coll. and the
on the same day entered into force.
The Constitutional Court notes that Act No. 428/2002 Coll. was adopted and published in the
the limits of the Constitution laid down the competence and constitutionally prescribed way.
He found that the contested act has been duly discussed and approved by the legislative
the choir, signed by the competent constitutional officials, and declared in the collection
laws. Therefore, plan and assess the contested provisions of the Act of
with regard to its compliance with the constitutional order of the Czech Republic.
In the.
The Constitutional Court is the issue of the pay restrictions against judges in the form of
the withdrawal of "the next salary" dealt with in a number of its decisions. Detailed
recap of that case-law is contained in the Constitutional Court sp.
Zn. PL. ÚS 11/02. Despite this fact, because the Constitutional Court is to
the problem confronted again, this recap
generally repeated.
In the derogačním finding SP. zn. PL. ÚS 13/99 of 15 December 1999. September 1999 Constitutional
the Court annulled the part of the provisions of section 1 of Act No. 269/1998 Coll., on withdrawal
additional salary for the second half of 1998, representatives of the State power and
some government agencies, judges, prosecutors and members of the Presidium
Securities and Exchange Commission, and that the provisions governing the withdrawal of other
the salary of the judges for the second half of 1998. The main reason for this award was
argument principle of judicial independence, to which the Court
i put my "aspects of material nature". Another argument has become
voucher for the diversity of the constitutional position of the judges on the one hand, and
representatives of legislative and executive power, particularly the Government, to
the other side.
Finding of 3 June. July 2000, SP. zn. PL. ÚS 18/99 of the Constitutional Court
on the cancellation of part of the provisions of Section 4a of the Act No. 237/1995 Coll., as amended by
Act No. 285/1997 Coll., regulating the withdrawal of additional salary for judges
the second half of 1997, has rejected. Even given the award while he emphasized that
judicial independence is one of the fundamental democratic
values, which certainly helps ensure security and material
judges. In doing so, he considered essential to the salaries of the judges of the other authorities
the State can not, in any form, arbitrarily and repeatedly.
For rozhodovaný case but the intervention of the legislator showed the characters of arbitrariness.
According to the Constitutional Court, in assessing the constitutionality of the contested legal
the provisions could not be put aside from the difficult social and economic
reality, in which the Czech Republic was in 1997.
On the same day, i.e.. July 3, 2000, the Constitutional Court finding SP. zn. Pl. ÚS
16/2000 rejected a proposal to repeal part of the provisions of section 1 of Act No.
308/1999 Coll., on the withdrawal of the additional salary for the second half of 1999 and for the
the second half of the year 2000, officials and some
Government agencies, judges, prosecutors and members of the Presidium of the Commission
for securities, the provisions governing the withdrawal of additional salary
the judges for the second half of 1999 and the year 2000. Has not changed yet
fundamental basis of assessment of the problem. He emphasized that the salary of the
judges should not be the moving factor according to immediate liking it
or that of a Government grouping. The withdrawal of "the next salary" assessed, therefore,
as an exceptional measure which can authorize only for serious reasons, for which
consider the impact of the financial problems of the State, and only in connection with
complex adopted austerity measures relating to salaries in the whole sphere
State officials and employees.
Finally, on 11 July. June 2003 the Constitutional Court finding SP. zn. PL. ÚS 11/02
set aside the part of the provisions of § 1 of the law No. 416/2001 Coll., on the withdrawal of other
salaries for the second half of 2001 and the determination of the amount of additional remuneration for the
the first and the second half of 2002, officials and some
Government agencies, judges, prosecutors, members of the Presidium of the Commission for the
securities, representatives of the Ombudsman and members of the Bank Council
The Czech National Bank, relating to the withdrawal of an additional salary of judges
for the second half of 2001 and further reducing the salary for the first and second
half of 2002 on the amount of half of the amount to which they would otherwise
qualify.
Involving a change in legislation related to gender pay circumstances
the judges of the Constitutional Court's opinion has exceeded constitutional limits for the
acceptance of the "uniqueness" of the Act, which was to withdraw the next salary
the judges, as the Court had defined in previous decisions. Said
further, that if it can be in wholly exceptional circumstances, focusing on the principle of
equality in the area of restrictions in pay of civil servants,
constitutional officers and judges before principle comprehensively understood
the independence of judges, this session does not apply both principles in General as
once and for all and in all circumstances. On the contrary, remuneration
judges in the broad sense to be stable, nesnižovatelnou
not the moving factor, which calculates this or that Government formation
for example. because he seem to salaries of judges too high in comparison with the
the salaries of civil servants or compared to another professional group.
In other words, if you can accept the application of the principle of equality in the above
that sense of what an exceptional reduction to economically reasoned salaries
of all, you cannot accept the equality of all above mentioned groups (or as
the target category) to final salaries. The pursuit of such
equality stray from the category of constitutionality, it is a political goal, that
finds no support in the constitutional field understood the principle of equality. This principle lies in the
material terms of their boundaries in the observations, according to which "the same shall not
be adjusted arbitrarily unevenly, but unequal shall not be
adjusted arbitrarily as well ". The principle of equality should not be understood as
in the result, but watering must be interpreted as a guarantee
the same starting chances. However, the principle of equality laid out as follows
the legislature according to the beliefs of the Constitutional Court in § 1 of the law No. 416/2001
Coll. clearly failed to comply with. The Constitutional Court in finding SP. zn. PL. ÚS 11/02
to formulate the maximum, that generalize the principle of equality in the field of
restrictions in the remuneration of public servants, constitutional officers and
judges can be comprehensively understood before focusing on the principle of the independence of the
judges in wholly exceptional circumstances, and this defined the scope of the constitutional
conformance to the pay restrictions on judges.
From the perspective of comparative in developed democracies of Western Europe cannot
find case grade restrictions against judges, with this issue
It is therefore not confronted or doctrine. A comparable situation appear
only in post-Communist Europe.
Illustrations is the extensive case law of the Constitutional Court of the Republic of Poland to the
questions the constitutionality of legal provisions, the salaries of judges (see, in particular, the decision of the
SP. zn. P 1/94 of 8 February 2005. November 1994, 13/94 of 14 September. March
1995, P 1/95 of 11 December. September 1995, P 8/00 of day 4. October, 2000). In
all of the above decisions, the Court dealt with the ústavností aspects
fixing the amount of the salaries of the judges from the perspective of the article. 178 odst. 2 of the Constitution of the Polish
Republic, according to which the salaries of judges must match the dignity of their
Office and to ensure fulfilment of their obligations.
In the decision of the SP. zn. 12/03 of 18 May. February 2004 the Constitutional Court of Poland
States in assessing the constitutionality of the rates increase the salaries of judges (at
which was not retroactively to a reduction) in the context of
the pay restrictions against judges two key propositions: according to the first in the case of
the State's budget problems to be salaries of judges are protected against
"excessive adverse fluctuations". The second is the principle of the inadmissibility of the then
the reduction of the salaries of the judges, which according to the Court, the "Constitution of the exceptionally strong
protected "(article 178, paragraph 2, of the Constitution of the Republic of Poland). The only constitutionally
acceptable exception to this principle is considered to be within the meaning of article 87(1). 216
paragraph. 5 of the Constitution of the Republic of Poland, in case if the public debt exceeds 3/5
the value of the annual national product.
From the outline of the case-law of the Constitutional Court, as well as from a comparative illustration
the case law of the Constitutional Court of the Republic of Poland, to the question of the constitutionality of
the subsequent legal withdrawal of part of the salary of the judges, to what it was before
adoption of the measure given the legally entitled, draw these basic
generalizing theses:
-the assessment of the constitutionality of the pay restrictions against judges for specific
the period of a particular year falls within the framework of a defined principle of judicial
the independence,
-constitutional status of judges on the one hand, and representatives of the can
the legislative and the Executive, in particular public administration, on the other hand
due to the principle of the separation of powers and the principle of the independence of judges, distinguished
which implies a different disposition as well as space for the legislature to pay
the restrictions against judges compared to the layout area to such
restrictions in other areas of the public sphere,
-intervention in the material security of judges guaranteed by law shall not
be an expression of the arbitrariness of the legislature, but must be based on the principle of
of proportionality, is justified by exceptional circumstances, for example. oppressive
financial situation of the State, and even in this condition must be
take into account the difference in the function of judges and representatives of the governance and
the Executive, in particular public administration; such intervention may not give a reason for
concern, without prejudice to the limitations of the dignity of judges (see recommendation
The Committee of Ministers of the Council of Europe no. r (94) 12 of 13 April. October, 1994).
If the expression is not constitutionally unacceptable pressure and be able to act
Executive on judicial power.
The principle of an independent judiciary is one of the essential requirements
democratic rule of law (article 9, paragraph 2, of the Constitution). Request
independent of the judiciary stems from two sources: from the neutrality of judges, such as
the guarantee of a fair, impartial and objective legal proceedings and of
safeguarding the rights and freedoms of individuals by the judge odčleněným from the political
power. The independence of judges is guaranteed by a special legal safeguards
position (to be classified, non-repudiation, nesesaditelnost
integrity), further guarantees of organisational and functional independence from the
bodies, representing the legislative and executive power in particular, as well as
separation of the judiciary from the legislative and executive powers (in particular by the
the principle of incompatibility). In terms of the content is then judicial
independence ensured only by law, judges vázaností IE. the exclusion of
any elements which in his decision making. The essential
the components of the principle of independence of the judiciary, the Constitutional Court comprehensively
dealt with in finding SP. zn. PL. ÚS 7/02.
Arbitrary interference by the legislature in the field of material ensuring of judges, in
how the pay restrictions, should be protected in the framework of the principle of
their independence, for their part, for two reasons.
The independence of judges is primarily conditioned by their moral integrity
and professional levels, but it is associated with their appropriate
the material provision. This component of the principle of the independence of judges
He was enshrined in the Council of Europe Committee of Ministers Recommendation no r (94) 12
of 13 October. October 1994 concerning the independence, efficiency and role of judges,
which is between the "proper working conditions" and "ensure the ranks of the judges
the adequacy of the remuneration of judges and the position with regard to the dignity
their profession and work load "(principle III, paragraph 1b). Similar
Maxima is contained also in article. 6.1 the European Charter on the Statute for judges,
adopted by the participants in the multilateral meetings organised by the Council of Europe
in the days of 8. up to 10. July 1998, according to which the judges of the profession have the
the right to salary, the amount to be fixed so that it is protected
pressure, leading to their decision and generally affected to
affecting their behavior when finding the law that could be
compromised their independence and impartiality.
The second reason downshift the prohibition of unfair interference with the material
ensure the judges (of the salary restrictions) within the framework of the principle of their
the independence is to exclude the possibility, the possibility of coercion Act,
or Executive on the decisions of the judges. In other words, exclude arbitrary
alterations to the material to ensure the judges as the eventual form of the
"penalty" of judges by the legislation and executive branch, and thus forms
coercion in their decision making.
Following the assessment of the constitutionality of the terms set out pay restrictions against
the judges applied consistently in the Constitutional Court finding SP. zn. PL. ÚS 11/02,
in which set aside part of the provisions of § 1 of the law No. 416/2001 Coll.,
the provisions governing the withdrawal of additional salary for the judges in the second
half of 2001 and further reducing the salary for the first and second half of the year
in 2002 to half the amount they would otherwise qualify.
Similarly, as is the case with all democratic constitutional courts, constitutional
Court of the United States for the settlement of the conflict of fundamental rights, or
the constitutional order of protected public goods, in proceedings for review of
standards in the proceedings on constitutional complaints, applies the principle of
proportionality (for the first time to comprehensively laid out in the case of the assessment of the
the constitutionality of the Institute privacy of witnesses in criminal proceedings-
PL. ÚS 4/94). In the present case of the conflict of principle on the part of
one of the independence of judges and of the fundamental rights conferred by virtue of the constitutional
the principle of equality, on the other, then the public good, solidarity in the
the case of exceptional events, and provide funds to
to mitigate this, eventually. the removal of their consequences.
The principle of proportionality is based methodologically on the three steps:
The first is the evaluation of a simple law aspect of suitability, whose
the content of the assessment of the selected resource from the perspective of a normative
the possible fulfillment of the reference purpose. If it is not the operative resource
capable of achieving the purpose of the investigation, and with the ostensible purpose of
does not match, it comes from the part of the legislature is a sign of arbitrariness, which is considered to be
for contradictory to the principle of rule of law.
The second step is to assess the application of the principle of proportionality
a simple rights aspect of Neediness, pursues the analysis of pluralism
possible normative resources in relation to their intended purpose and their
subsidiarity in terms of limitation of the Constitution protected the values-base
rights or public good. If the legislature pursued purpose
achieve alternative normative means, is constitutionally
conformist, the constitutionally protected value restricts the extent
the smallest.
Pursues a simple right to be assessed on the one hand the protection of certain
constitutionally protected values, on the other hand, however, a different limits, the third
aspect of the principle of proportionality, which is the measurement that represents the
the methodology for the consideration of these conflicts-standing constitutional values.
For drawing a conclusion in the case of collision of fundamental rights, or
the public good, such as principles, unlike the case of the conflict of standards
a simple law, the Constitutional Court controls the use to optimize, i.e..
postulátem minimizing restrictions on basic rights and freedoms.
the public good. Its content is maximum, according to which in case of the conclusion of the
the merits of the priority of one over the other in the collision of two standing
fundamental rights, or public goods is a necessary condition for the final
the decision also use all options to minimize interference with the one
of them. Command to optimize the arbitrary can be inferred from the provisions of article. 4
paragraph. 4 of the Charter, according to which the fundamental rights and freedoms must be investigated
in applying the provisions on limits of fundamental rights and freedoms, thus
also, by analogy, in the case of their limitations as a result of their mutual
collision.
On the basis of the following aspects of the constitutional assessment outlined the
the problem must be stated, that the legislature has already delivered kautelám
arising out of the postulátu suitability, IE. the relationship between the applied laws
the means and objectives of the legislature.
The intentions of the legislator, which led to the adoption of Act No. 428/2002 Coll., summed up the
in his speech, the Minister of labour and Social Affairs Zdeněk Škromach, on
acts of Parliament of the United Kingdom on 13 November. September
2002 [under consideration of the Government's draft law, fixing for the year 2003
provides an exceptional measure in determining the amount of the salary and certain refunds
expenses related to the performance of the functions of the representatives of State power and some
State authorities, judges and prosecutors, and those persons
the amount of additional remuneration for the first and the second half of 2003
(print 46)] as follows: "the Government presented a draft law contains
one of the measures to bring about necessary savings in expenditure
the State budget for the year 2003. In the context of the economic situation
suffered as a result of the floods in August of this year, it was necessary to propose
the second delay, implementation of a new pay system for 16třídního
the staff of public services and administration, reduce the amount of funds
to increase their salaries by more than half. At the same time will not be able
provide employees with the public service and administration in each half
in 2003 an additional salary to the amount corresponding to a month provided by
salary, but as in past years, only half of the
of this amount. Following on from this the necessary measures has been drawn up and
presented by the draft law, which will freeze the salaries of parliamentarians,
the senators, members of the Government, judges, prosecutors and other persons on the
level achieved in 2002. This prevents further out level
These people from the level of the salaries of employees in public services and administration,
until the efficacy of a new way of determining the amount of the wage base,
that the development of the salaries of the officials of State power and some other people from the
in 2004 slow and adapt to the evolution of salaries funded from public
sources. At the same time, it is proposed to officials was
as well as employees of the public service and the Administration provided additional
salary, if you are eligible for it, in each semester of 2003 only
half of the amount. In addition to the expression of solidarity with the citizens affected by floods
the adoption of the modifications proposed savings in the expenditure of the State
the budget for a total of about 480-500 million Czech Crowns. "
The purpose of Act No. 428/2002 Coll., according to the promoters of its proposal,
It was therefore to ensure proportionality in the amount of the salaries of public employees
Administration and services and representatives of the State power, some State authorities,
judges and prosecutors, to exercise solidarity with citizens
affected by the floods, as well as raise funds for
the removal of their consequences.
The Government in the position of the applicant in doing so, questioned the veracity of the professed
the intentions of the Act No. 428/2002 Coll., the increase in the scale of pay
tariffs of the employees of the public sphere, with effect from 1. January 2003
(Government regulations No 582/2002 Coll., no 583/2002 Coll., no 584/2002 Coll., no.
330/2003 Coll.), as adopted by the State budget for the year 2003. According to the
the product table of the annex to the draft State budget for the year 2004, submitted by the
the Government of the Chamber of Deputies, for employees in the central authorities
the State administration was the actual amount of funds to salaries per year
2002 4.840.899 thous. EUR, budget 2003 5.669.263 thous. CZK, design
for 2004, then 5.916.963. CZK (table 9), in organizational
components of the State was the actual amount of funds to salaries per year
2002 8.755.060 thous. EUR, budget 2003 10.319.286 thous. CZK, design
for 2004, then 10.524.110. $ ("Table # 10), defense,
security, customs and legal protection was the actual amount of
resources for salaries for the year 2002 26.999.082 thous. EUR, budget
2003 29.161.674 thous. CZK, the proposal for the year 2004 then 30.156.796 thous. CZK
(table 11). other organizational components of the State
was the actual amount of funds to salaries for the year 2002 11.406.195
ths. EUR, budget 2003 12.545.862 thous. CZK, the proposal for the year 2004
13.205.240 ths. CZK (table 12).
In these circumstances, it is hard to accept the argument of "necessary savings in
resources spent on the salaries of employees in public services and
the Administration ", conversely, it should be noted that the content of the Act No. 428/2002 Coll.,
with its avowed purpose does not match. This violation of the principle-based
of proportionality must then qualify as a sign of arbitrariness on the part of
the legislature, which is in contradiction with the principle of the rule of law (article 1, para.
1 of the Constitution).
Then follows from the principle of the need for the legislature, according to which the maximum if it can be
the reference to the purpose of achieving alternative normative means, is
then constitutionally conformal, a constitutionally protected value
(fundamental rights and freedoms, public good) limits to the extent possible.
In order to achieve solidarity in the event of rare incidents (such as
floods in 2002) it can be constitutionally konformními procedures, i.e. When
respect for fundamental rights and freedoms, in particular the constitutional principle of
equality. The same kautely also applies to obtain funds for
mitigate or eliminate the consequences of such events.
The Government is to promote a solution that would be the application of solidarity
and provision of the necessary financial resources, but should not disturb the
the constitutional framework for the protection of fundamental rights, and attempted to present to Parliament
the Bill, which was to change the Act No. 586/1992 Coll., on consumer
taxes, Act No. 586/1992 Coll., on value added tax and the law No.
586/1992 Coll., on income taxes. This proposal, known as the
"flood" tax package ", according to calculations by the Government should bring an increase in
the income of the State budget in 2003 of EUR 10.7 billion. EUR, and
This income should be designed to cover flood damage. Referred to Government
the proposal was being discussed as the parliamentary print no. 38 at the meeting of the
the Chamber of Deputies on 13 November. September 2002, even before the cases of unconstitutionality
Act No. 428/2002 Coll., the Chamber of Deputies rejected.
Your procedure of the legislature therefore short of even further from components
the principle of proportionality, the principle of the need for the existence of
the plurality of possible normative resources in relation to the intended purpose
disregarding the subsidiarity with regard to limitation of their Constitution protected
value-the basic rights arising from the constitutional principle of equality and
the constitutional protection of the independence of judges.
On the basis of the following reasons, be considered as a landed the grade restriction
against the judges contained in paragraph 1 (b). h) and section 2 of Act No.
425/2002 Coll., for rozpornou with the article. 1 (1). 1 in conjunction with article. paragraph 82. 1
Constitution, article. 1 of the Charter and article. 6 (1). 1 of the Convention for the protection of human rights and
fundamental freedoms.
Vi.
According to the provisions of § 2 of the Act applies: "If under the Special
the law shall belong to the persons referred to in paragraph 1 of the additional salary,
them for the first and second half of the year 2003 in the amount of only half of the amount for
which would otherwise be entitled to. " According to the provisions of § 1 (b). h) of the Act
No 425/2002 Coll., for the determination of salary and certain compensation expenses related to
the performance of the function of "judge of the district, regional and High Court
The Supreme Court and the Supreme Administrative Court "in 2003, it
salary base of formal to 31. December 2002, and such
paragraph 1 contains the letters a through m).)
The ratio decidendi of the award turns out therefore on a defined group of persons
(the judge), which refers to the provisions of § 2 of the Act, and
This group of persons is regulated by reference to other provisions of the same law,
for these people, which provides for other rights. obligations. The link is
While formulated in General, IE. not only in relation to the judges, but also other
precisely defined subjects.
The cancellation of the referencing standards in its entirety, i.e.. provisions expressed in
section 2 of the Act No. 428/2002 Coll., the words "paragraph 1" thus shone and persons
for which reasons are not derogatory. Cancellation provisions, expressed
in section 1 of the Act No. 428/2002 Coll., the words "h) judge of the district, regional and
the High Court, Supreme Court and Supreme Administrative Court "would be
vybočilo from the scope of the subject of the proceedings, the judge would have represented for the
the cancellation of the salary adjustments of the base.
In finding SP. zn. PL. ÚS 24/94, which was then followed by the case-law in the
proceedings for review of the standards, the Constitutional Court had defined the notion of legal
provisions by means of any portion of the text of the legislation with the
the normative content, i.e. an expression containing any language
the funds, whose purpose is to express the rules of law or one of the
the components of its merits (e.g. circle of subjects or situations),
or legal effect (i.e., legal obligations or sanctions).
The provisions of § 1 of the Act, as was already mentioned, contains
the letters a through m)), these letters contains implicite and standard
that reference, contained in the provisions of § 2 of the law provides: "If the
under special legislation shall belong to the persons referred to in section 1 for more
salary, shall also be given for the first and second half of the year 2003 in the amount of
half of the amount to which they would otherwise be entitled to. "
Starting from this, the plenary of the Constitutional Court decided to grant the derogation
of the legal provisions, as amended, as referred to in the operative part
This finding. This means that the Constitutional Court repealed section 2
law 428/2002 Coll., implicitly contained a reference to the provisions of § 1 (b).
(h)) of the same Act.
The President of the Constitutional Court:
JUDr. Rychetský v.r.
Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, a decision of the plenary, the judges adopted a
Stanislav Balík, Turgut Güttler, Jan Musil and Pavel Rychetský, and to his
the preamble to the judge Miloslav Výborný.
