In The Matter Of An Application For Annulment Of The Provisions Of Section 2 Of The Act No. 428/2002 Coll.

Original Language Title: ve věci návrhu na zrušení ustanovení § 2 zákona č. 425/2002 Sb.

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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Date of publication of this finding in the journal of laws shall be repealed the provisions of § 2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.

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