2005/07/14 - Pl. ÚS 34/04: Judges´Salaries

14 July 2005

HEADNOTES

Regarding

the question of constitutionality of subsequent statutory withdrawal of

part of judges’ salaries, which was given a statutory entitlement

before that measure was passed, lets us derive these fundamental general

theses:
  - evaluation of the constitutionality of salary

limitations regarding judges for a specific period of the year falls

within the scope defined by the principle of judicial independence,
 

- the constitutional position of judges on one side and representatives

of the legislative and executive branch, especially the state

administration, on the other side, is differentiated in view of the

principle of separation of powers and the principle of judicial

independence, which also gives rise to a different scope of discretion

for the legislature for salary limitations regarding judges in

comparison with the scope of discretion for such limitations in other

areas of the public sphere,
  - interference in the material security

of judges guaranteed by law may not be an expression of arbitrariness

by the legislature, but must be, based on the principle of

proportionality, justified by extraordinary circumstances, e.g. by the

state’s difficult financial situation, and even if this condition is met

account must be taken of the different function of judges and that of

representatives of the legislative and executive branches, especially

the state administration; such interference may not create grounds for

concerns that it may limit the dignity of judges), or that it may be an

expression of constitutionally unacceptable pressure by the legislative

and executive branches on the judicial branch.

The principle of an independent judiciary is one of the essential

features of a democratic law-based state (Art. 9 par. 2 of the

Constitution). The requirement for an independent justice system stems

from two sources: the neutrality of judges, as a guarantee of a just,

impartial and objective trial and the ensuring of individuals’ rights

and freedoms by a judge separated from political power. Judicial

independence is guaranteed by guarantees of a special legal position

(which must include that they can not be demoted, can not be recalled,

and enjoy immunity), also by guarantees of organizational and functional

independence from bodies representing the legislative and in particular

the executive branch, as well as separation of the judiciary from the

legislative and executive branches (in particular by applying the

principle of incompatibility). In terms of content, judicial

independence is then ensured by the judges being bound only by the law,

i.e. ruling out any elements of subordination in judicial decision

making. The Constitutional Court has already comprehensively considered

the basic components of the principle of judicial independence in

judgment file no. Pl. US 7/02.

Arbitrary interference by the legislature in the area of material

security of judges, and within that framework also salary

limitations/restrictions, must be subordinated in the framework

protected by the principle of judicial independence for two reasons.

The independence of judges is, first of all, conditioned on their moral

integrity and professional level, but it is also tied with their

appropriate material security.

The second reason for subordinating the band on arbitrary interference

in the material security of judges (salary restrictions) in the

framework of the principle of judicial independence is to rule out the

possibility, of pressure by the legislative or executive branch on

judicial decision-making. In other words, to rule out arbitrary

interference in the material security of judges as a possible form of

“penalization” of judges by the legislative and the executive, and thus

also rule out forms of pressure on their decision-making.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Plenum of the Constitutional Court, composed of the Chairman Pavel

Rychetský, judge Stanislav Balík,  František Duchoň, Vojen Güttler, 

Pavel  Holländer, Ivana Janů, Dagmar Lastovecká, Jiří Mucha, Jan Musil, 

Jiří Nykodým, Miloslav Výborný, Eliška Wagnerová and Michaela Židlická

decided on 14 July 2005 on a petition from the Municipal Court in Brno

seeking the annulment of § 2 in relation to § 1 let. h) of Act no.

425/2002 Coll., which, for 2003, provides an extraordinary measure for

determining the level of salaries and certain reimbursements of expenses

related to the exercise of the office of representatives of state

authority and certain state bodies, judges, and state prosecutors, and

which provides for these persons the level of additional salaries for

the first and second halves of the year 2003, “in relation to judges of

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

Administrative Court,” with the participation of 1) the Municipal Court

in Brno, 2) the Chamber of Deputies of the Parliament of the Czech

Republic, 3) the Senate of the Parliament of the Czech Republic, as

parties to the proceedings, as follows:

 

As

of the day this judgment is promulgated in the Collection of Laws, § 2

of Act no. 425/2002 Coll. is annulled insofar as it concerns a judge of a

district, regional and high court, the Supreme Court, or the Supreme

Administrative Court [§ 1 let. h) of Act no. 425/2002 Coll.].

 


REASONING


I.
 

On

9 July 2004 the Constitutional Court received a petition from the

Municipal Court in Brno (the “petitioner”), represented by Panel

Chairwoman Mgr. D. D., seeking the annulment of the part of Act no.

425/2002 Coll., which, for the year 2003, provides an extraordinary

measure for determining the level of salaries and certain reimbursements

of expenses related to the exercise of the office of representatives of

state authority and certain state bodies, judges, and state

prosecutors, and which provides for these persons the level of

additional salaries for the first and second halves of the year 2003

(“Act no. 425/2002 Coll.”). The petitioner requests “that the

Constitutional Court of the CR, by judgment, decide to annul the part of

Act no. 425/2002 Coll. concerning one half of additional salaries for

the first and second halves of the year 2003 in relation to judges of

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

Administrative Court [§ 2 in relation to § 1 let. h) of Act no. 425/2002

Coll.]".
 

The petition was

filed under Art. 95 par. 2 of the Constitution and under provisions of

Act no. 182/1993 Coll., on the Constitutional Court, as amended by later

regulations, (the “Act on the Constitutional Court”) in connection with

the decision-making activity of the Municipal Court in Brno. The

Municipal Court is conducting civil proceedings, file no. 30 C 67/2004

on a complaint by JUDr. D. S., judge of the Municipal Court in Brno, in

which the plaintiff seeks from the defendant, the Czech Republic and the

Municipal Court in Brno, payment of CZK 43,200, because, as a result of

the passage of Act no. 425/2002 Coll., he was not paid two halves of

additional salaries for the first and second halves of the year 2003.

The petitioner, without issuing a decision to suspend the civil

proceedings [which it should have done under § 109 par. 1 let. c) of the

CPC], filed with the Constitutional Court a petition to annul the

abovementioned provisions of Act no. 425/2002 Coll., because under Art.

95 par. 2 of the Constitution it concluded that these provisions, which

are to be used in resolving the matter, are “inconsistent with the right

of a judge to have his judicial independence materially secured,” which

arises from Art. 1 par. 1 in connection with Art. 82 par. 1 of the

Constitution and Art. 1 of the Charter of Fundamental Rights and

Freedoms (the “Charter”).
 

In

the reasoning of its petition, the petitioner extensively reproduces

the arguments used by the Constitutional Court in judgment file no. Pl.

US 11/02 of 11 June 2003, which annulled part of Act no. 416/2001 Coll.,

on the withdrawal of additional salary for the second half of the year

2001 and setting the amount of additional salary for the first and

second halves of the year 2002 to representatives of state authority,

judges, state prosecutors, members of the presidium of the Securities

Commission, representatives of the Ombudsman, and members of the Banking

Council of the Czech National Bank. The petitioner is of the opinion

that the same arguments expression in Constitutional Court judgment file

no. Pl. US 11/02, apply to support the present petition, concerning Act

no. 425/2002 Coll.
 

The

petitioner also states that the legislature has impermissibly interfered

in judicial interference repeatedly in recent years, which it documents

with the following
- Act no. 427/2003 Coll. withdrew half of the

additional salary for judges for the first and second halves of the

years 2004, 2005 and 2006, and the same Act led to “freezing” salaries,

because in these years the salary basis reached as of 31 December 2003

was used;
- Act no. 420/2002 Coll., with effect as of 1 January 2003,

shortened the period during which judges are paid while temporarily

unable to work, from the original six months to 20 working days;
-

Act no. 425/2002 Coll. provided in § 1 that for determining the salary

and other reimbursement of expenses related to performance of the office

of a judge in the year 2003 the salary basis reached as of 31 December

2002 would be used, which, however, as a result of amendment of the

legal framework for pay grades and a personal supplemental payment, made

for employees of ministries, did not increase, although in the normal

course of events such an increase should have been made.
 

The

petitioner criticizes the legislature on the grounds that with these

pay changes it does not observe the goal declared by the government of

“preserving a comparable position of individual groups” of persons, i.e.

state employees, representatives of state authority, and judges,

expressed in the background report to the draft of Act no. 425/2002

Coll. The comparable position is allegedly violated by the following

measures, in particular:
- amendment of government directive no.

253/1992 Coll., implemented by government directive no. 582/2002 Coll.,

which, with effect as of 1 January 2003, increased the pay scale for

certain employees of state administration bodies;
- amendment of

government directive no. 251/1992 Coll., implemented by government

directive no. 583/2002 Coll., which, with effect as of 1 January 2003

increased the pay scale for certain employees of budgetary and other

organizations;
- amendment of government directive no. 79/1994 Coll.,

implemented by government directive no.. 584/2002 Coll., which, with

effect as of 1 January 2003 increased the pay scale for employees of the

armed forces, security corps and services, customs administration

bodies, members of fire brigades, and employees of certain other

organizations;
- passing Act no. 361/2003 Coll., which is supposed to increase the pay of members of security forces in the future.
 

The

petitioner disputes the hypothetical objection that the additional

salary of judges is, by its nature, only a kind of bonus, paid twice a

year in addition to the judge’s ordinary monthly salary, the withdrawal

of which can not be considered a restriction on compensation for work.

In the petitioner’s opinion, when evaluating the question of materially

securing judicial independence, it is necessary to take into account the

entire amount of a judge’s statutorily guaranteed annual income, which

must include additional salary for the first and second halves of the

calendar year, regulated in § 4 of Act no. 236/1995 Coll., on the Pay

and Other Compensation Connected with the Performance of the Office of

Representatives of State Authority and Some State Bodies and Judges, as

amended by later regulations (“Act no. 236/1995 Coll.”).
 

The

petitioner concludes that materially securing judicial independence is

one of the guarantees of impartial and just decision making on the

rights and legally protected interests of persons. Therefore, it

believes that withdrawing half of the additional salary to judges for

the first and second halves of the year 2003 is inconsistent with the

concept of a democratic law-based stated, expressed in Art. 1 par. 1 of

the Constitution, endangers judicial independence guaranteed in Art. 82

par. 1 of the Constitution, and violates the equality of rights

enshrined in Art. 1 of the Charter.
 


II.
 

The

Constitutional Court requested a position statement on the petition

from the Chamber of Deputies of the Parliament of the Czech Republic

(the “Chamber of Deputies” ), from the Senate of the Parliament of the

Czech Republic (the “Senate”) and from the Minister of Justice.
 

The

Chairman of the Chamber of Deputies, PhDr. Lubomír Zaorálek, in the

statement of 27 August 2004 ref. no. 8439/04 stated that the Chamber of

Deputies, when passing Act no. 425/2002 Coll., believed that not paying

additional salary to judges is not inconsistent with the constitutional

order and can not endanger the independence of judges, because this is

not surprising or deep interference in their material security. He

leaves it to the Constitutional Court to evaluate the constitutionality

of the Act.
 

The Chairman of

the Senate, doc. JUDr. P. P., in the statement of 8 September 2004,

ref. no. 9654/04, states that the Senate has already several times given

its opinion on the merits of the matter, i.e. the nature of additional

salary in relation to the material security of judges as one of the

aspects of the constitutional principle of judicial independence, e.g.

in the matter conducted at the Constitutional Court as file no. Pl. US

18/99, and he now refers to those statements.
 

(Constitutional

Court note: The matter under file no. Pl. US 18/99, to which the

Chairman of the Senate refers contains the opinion of the then

chairwoman of the Senate, PhDr. L. B., ref. no. 14781/99, sent to the

Constitutional Court in connection with the petition to annul Act no.

287/1997 Coll. The statement says that the Senate does not doubt that

the principle of judicial independence includes a number of aspects,

which can also include material security of judges. However, it is

appropriate to point out that this material security is realized

primarily in the form of a regular monthly salary, its amount and the

conditions for providing it, and no restriction affected that monetary

performance. Under the legal framework, additional salary is a one-time

financial payment provided under the specified conditions twice a year,

and the conditions themselves for the entitlement, one of them being the

that the judge continues to be employed as of the last day of the

calendar half-year, indicate that this financial payment can hardly be

considered material security for judges, the reduction or withdrawal of

which could violate the principle of judicial independence.)
 

In

the present statement of 8 September 2004, ref. no. 9654/04, the

Chairman of the Senate focuses primarily on the formal aspect of the

matter. He expresses doubts concerning the construction of the proposed

judgment in the petition submitted by the petitioner to the

Constitutional Court, because it is not clear from the proposed judgment

which provision of the Act is actually proposed to be annulled. In the

opinion of the Chairman of the Senate the petitioner’s request that the

Constitutional Court annul the part of the Act “in relation to judges of

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

Administrative Court [§ 2 in relation to § 1 let. h) of Act no. 425/2002

Coll.],” is not feasible. If it granted the petition, the

Constitutional Court, as a so-called “negative legislature” could not

derogate the contested § 2 of the Act only in relation to the group of

judges, and leave it in effect in relation to other groups of persons.

If the entire § 2 were annulled, the consequences of the annulment would

apply to all persons specified in § 1, which would impermissibly

deviate from the scope and content of the filed petition. Similarly, in

the opinion of the Chairman of the Senate, it is also not possible to

annul § 1 let. h), which applies only to judges, but the consequences of

the annulment would apply, beyond the framework of the petition, also

to the area of determining the level of their salary basis.
 

Therefore,

in the opinion of the Chairman of the Senate, there are doubts about

whether the petition concerns “individual provisions of a statute,” and

thus whether it meets the condition contained in article 87 par. 1 let.

a) of the Constitution, so that the Constitutional Court could discuss

it on the merits. The statement points to the Constitutional Court’s

settled case law (e.g. the decision in the matter file no. Pl. US

16/94), which indicates that the court is bound in its decision making

by the scope and content of the proposed judgment; it can not exceed

those bounds in its decision, just as it can not intervene in the

adjudicated statutory text otherwise than by a verdict of annulment.
 

The

Deputy Chairman of the government of the Czech Republic and the

Minister of Justice, JUDr. P. N., in his statement of 22 September 2004,

ref. no. 562/2004-PERS-SO/2, primarily states that he considers the

situation where the entitlements of judges are repeatedly limited by

special laws and there are subsequent proceedings on the

constitutionality of these laws completely unacceptable. In his opinion

this situation has a negative effect on the society-wide perception of

the judicial branch and the functioning of the separation of powers,

because it evokes an undesirable impression of consistent competition

between the judicial, legislative and executive branches about the level

of compensation for performance of offices. The Minister of Justice

considers the fundamental question, which he leaves to the

Constitutional Court to resolve, whether a judge’s income level as

originally set by statute may or may not be subsequently reduced, or

under what circumstances (in particular in relation to changes in the

state budget) such reduction may take place. The Minister does not agree

with the petitioner’s arguments that limiting the level of additional

salary in 2003 resulted in impermissible leveling of the position of

judges and other groups who receive compensation from the state budget.

He points out that this statutory framework arose out of the objective

reason that the state budget was in an unfavorable condition. While the

level of additional salary was limited in 2003 to an equal extent for

all groups of persons compensated from the state budget, the

differentiation arising from various levels of monthly salary and other

compensation related to performance of office remained unaffected.
 

The

Minister of justice also does not agree with the petitioner’s claim

that this statutory provision interferes in judicial independence. In

his opinion, material security is only one of the supporting conditions

which create an environment for the principle of judicial independence,

and there is not a direct connection between material security and the

essence of that principle. The Minister considers unacceptable the

opinion that the degree of a judge’s independence is, regardless of any

existing objective circumstances, directly dependent on the level of

material security. He also states that the level of material security

must reflect the general real economic situation of the state in which

the judiciary functions as a public service.
 

In

the conclusion of his statement the Minister proposes that the

Constitutional Court reject the petition to annul part of Act no.

425/2002 Coll. He states the opinion that the legislature should in

future resolve the question which is the subject of this petition by

removing from the payment system the institution of additional salary,

and compensating it by increasing the monthly salary.
 


III.
 

The

legal issues and all factual circumstances of the case were

sufficiently clear from the submitted documents, and because no further

clarification of the matter could be expected from a hearing, the

Constitutional Court waived a hearing with the consent of all the

parties, pursuant to § 44 par. 2 of the Act on the Constitutional Court.
 


IV.
 

The filed petition concerns these provisions of Act no. 425/2002 Coll.:
Ҥ 1
For determining the salary and certain reimbursements of expenses related to the performance of the office of
a) a deputy and senator of the Parliament,
b) a member of the government,
c) the president of the republic,
d) a judge of the Constitutional Court,
e) a member, vice president and president of the Supreme Audit Office,
f) a member, Deputy Chairman and Chairman of the Council for Radio and Television Broadcasting,
g) the director of the Security Information Service,
h) a judge of a district, regional and high court, the Supreme Court, or the Supreme Administrative Court,
i) the Ombudsman and the Ombudsman’s representative,
j) the Chairman of the Securities Commission and a member of the presidium of the Securities Commission,
k) the Chairman of the Office for Protection of Personal Data and an inspector of the Office for Protection of Personal Data,
l) a state prosecutor, and
m)

the director of the Office for Representing the State in Property

Matters and employees of the Office for Representing the State in

Property Matters
the salary basis in the year 2003 shall be that

reached as of 31 December 2002. As a result of amendment of the legal

framework for pay scales and the personal supplemental payment

implemented for employees of ministries, taking effect after 31 December

2002, the salary basis in the specified year is not increased.

§ 2
If,

under a special legal regulation, the persons specified in § 1 are

entitled to an additional salary, it shall be provided to them for the

first and second halves of the year 2003 only in the amount of half of

the amount to which they would otherwise be entitled.”
 

The

government presented the draft of this Act to the Chamber of Deputies

on 10 September 2002 as part of the drafts of eight statutes whose

purpose was to address the budget situation which arose after the

catastrophic floods in August 2002. The government requested that all

these drafts be discussed under conditions of legislative emergency, and

they were so discussed by the Chamber of Deputies.
 

In

the background report to the draft of this Act the government states

that the changes in pay were aimed at saving expenses in the state

budget, “...in connection with the economic situation resulting from the

floods in August of this year.” The background report estimates the

total savings which the new regulations are supposed to bring at CZK

480-500 million; out of that, the savings from cutting back additional

salaries is estimated at CZK 250 million (in addition, savings are

expected by “freezing” the pay scale at the 2002 level and the further

unspecified savings of other expenses, e.g. for covering expenditures

derived from the salary basis level).
 

The

Chamber of Deputies discussed the draft Act as Chamber of Deputies

publication no. 46. On 11 September 2002 the draft was discussed by the

guarantee Committee for Social Policy and Health Care, which recommended

that it be approved. The plenary session of the Chamber of Deputies

discussed the draft at its 5th session on 13 September 2002; out of 187

deputies present, 154 deputies voted to approve it, and no one voted

against.
 

The draft Act was

delivered to the Senate on 16 September 2002, where it was evaluated, as

Senate publication no. 356 in two committees:
- the committee for

economics, agriculture and transportation, whose resolution recommended

that the Senate not consider the draft Act,
- the constitutional law committee, which, as the guarantee committee did not pass any resolution concerning the draft Act.
 

The

Senate then discussed the draft Act at its 21st session on 19 September

2002 and passed a resolution in which it expressed its will not to

consider the draft Act. Out of 49 senators present, 32 voted in favor of

the resolution, and six were against.
 

After

being signed by the president on 25 September 2002, the Act was

published on 1 October 2002 in part 151 of the Collection of Laws as

number 425/2002 Coll., and went into effect on the same day.
 

The

Constitutional Court states that of Act no. 425/2002 Coll. was passed

and issued within the bounds of constitutionally provided jurisdiction

and in a constitutionally prescribed manner. It determined that the

contested Act was duly discussed and approved by the legislative

assembly, signed by the appropriate constitutional officers, and

promulgated in the Collection of Laws. Therefore, nothing prevented

evaluating the contested provision of the Act in terms of its

consistency with the constitutional order of the Czech Republic.

 

V.
 

The

Constitutional Court has considered the issue of valid restrictions

regarding judges in the form of withdrawal of “additional” salaries in a

number of its decisions. A detailed summary of this case law is

contained in Constitutional Court judgment file no. Pl. US 11/02.

Despite this, as the Constitutional Court is repeatedly confronted with

this problem, it has no choice but to repeat an outline of that summary.


 

In the derogative judgment

file no. Pl. US 13/99 of 15 September 1999 the Constitutional Court

annulled part of § 1 of Act no. 268/1998 Coll., on the withdrawal of

additional salary for the second half of the year 1998 from

representatives of state authority and some state bodies, judges, state

prosecutors and members of the presidium of the Securities Commission,

specifically the provision governing the withdrawal of additional

salaries from judges for the second half of 1998. The key reason in the

judgment was the argument based on the principle of judicial

independence, into which the court also extended “aspects of a material

nature.” Another argument was the reference to the different position of

judges on one side, and representatives of the legislative and

executive branches, especially the state administration, on the other.
 

In

its judgment of 3 July 2000, file no. Pl. US 18/99, the Constitutional

Court denied the petition to annul parts of § 4a of Act no. 236/1995

Coll., as amended by Act no. 287/1997 Coll., regulating the withdrawal

of additional salaries from judges for the second half of 1997. In that

judgment too it emphasized that judicial independence is one of the

fundamental democratic values, and that the material security of judges

undoubtedly assists in ensuring it. it considered it important that

other bodies of state power not interfere in the pay of judges, in any

form, arbitrarily and repeatedly. However, in the adjudicated case the

legislature’s intervention did not show signs of arbitrariness.

According to the Constitutional Court, in evaluating the

constitutionality of the contested statutory provision it was not

possible to disregard the difficult social and economic reality in which

the Czech Republic found itself in 1997.
 

On

the same day, i.e. 3 July 2000, the Constitutional Court, in judgment

file no. Pl. US 16/2000, also denied the petition to annul part of § 1

of Act no. 308/1999 Coll., on withdrawal of additional salaries for the

second half of 1999 and for the second half of 2000 from representatives

of state authority and some state bodies, judges, state prosecutors,

and members of the presidium of the securities Commission, specifically

the provision governing the withdrawal of additional salaries from

judges for the second half of the year 1999 and of the year 2000. In

doing so, it did not change the basic starting point for evaluating that

problem. It emphasized that the judges’ compensation should not be a

moveable factor depending on the momentary ideas of one or another

government. Therefore, it considered the withdrawal of “additional

salaries” as an extraordinary act, which can be justified only for

serious reasons, and it consider the effect of the state’s financial

problems to be such reasons, and only in connection with the complex of

implemented savings measures concerning salaries in the entire sphere of

state representatives and employees.
 

Finally

on 11 June 2003 the Constitutional Court, in judgment file no. Pl. US

11/02, annulled part of § 1 of Act no. 416/2001 Coll., on the withdrawal

of additional salaries for the second half of the year 2001 and setting

the amount of additional salaries for the first and second halves of

the year 2002 to representatives of state authority and certain state

bodies, judges, state prosecutors, members of the presidium of the

Securities Commission, representatives of the Ombudsman, and members of

the Banking Council of the Czech National Bank, those regulating the

withdrawal of additional salaries for judges for the second half of 2001

and reducing additional salaries for the first and second halves of

2002 to one half of the amount to which they would otherwise be

entitled.
 

In the

Constitutional Court’s opinion, the adjudicated change in the statutory

framework applying to judges’ pay exceeded the constitutional limit for

acceptance of the “extraordinariness” of the act which withdrew

additional salaries from judges, as the court had defined that limit in

previous decisions. It further stated that if, under quite extraordinary

circumstances, one can give precedence to the principle of equality in

the area of limitations in compensating state employees, constitutional

officials and judges over the principle of comprehensively understood

judicial independence, that relationship between the two principles does

not apply generally as having been set once and for all in all

circumstances. On the contrary, the compensation of judges, in the wider

sense, should be a stable, non-reducible value, not an adjustable

factor which one or another government calculates, e.g. because judges’

salaries seem too high to it in comparison with the salaries of state

employees, or in comparison with another professional group. In other

words, if we can accept application of the principle of equality in the

abovementioned sense as regards an exceptional, economically justified,

reduction of everyone’s salaries, we can not accept the equality of all

the abovementioned groups (even as a target group) as regards the final

salary level. Striving for such equality deviates from the category of

constitutionality that concerns a political aim which has no support in

the constitutionally understood principle of equality. The limits of

this principle in a substantive sense are found in the expression that

“equal things may not arbitrarily be regulated unequally, although at

the same time unequal things may not arbitrarily be regulated equally.”

The principle of equality can not be understood as a leveling in

results, but it must be interpreted as a guarantee of opportunities at

the starting point. However, in the Constitutional Court’s opinion, the

legislature evidently did not observe the principle of equality, thus

interpreted, § 1 of Act no. 416/2001 Coll. In judgment file no. Pl. US

11/02 the Constitutional Court formulated a generalizing maxim under

which the principle of equality in the area of limiting compensation to

state employees, constitutional officials and judges can be given

precedence over the principle of a comprehensively understood judicial

independence under quite extraordinary circumstances, and it thus

delineated space for constitutionally consistent limitations on

compensation as regards judges.
 

From

a comparative viewpoint, in the developed democracies of western Europe

one can not find a case of salary limitation affecting judges; thus

doctrine has also not been faced with this issue. Comparable situations

appear only in the post-communist European countries.
 

This

is illustrated by the extensive case law of the Constitutional Court of

the Polish Republic on issues of the constitutionality of the legal

framework of judges’ salaries (see, in particular, decision file no. P

1/94 of 8 November 1994, K 13/94 of 14 March 1995, P 1/95 of 11

September 1995, P 8/00 of 4 October 2000). In all these decisions the

court considered the constitutionality of viewpoints for setting the

level of judges’ salaries in terms of Art. 178 par. 2 of the

Constitution of the Polish Republic, under which judges’ salaries must

correspond to the dignity of their office and ensure fulfillment of

their obligations.
 

In

decision file no. K 12/03 of 18 February 2004, the Constitutional Court

of the Polish Republic in evaluating the constitutionality of rates of

increase in judges’ salaries (which were reduced, not retroactively)

expressed two key theses in the context of pay limitations regarding

judges: Under the first, if the state has budget difficulties judges’

salaries are to be protected from “excessive unfavorable fluctuation.”

The second is the principle that it is impermissible to lower the pay of

judges, which, according to the court, is “exceptionally strongly

protected by the Constitution” (Art. 178 par. 2 of the Constitution of

the Polish Republic). The only constitutionally acceptable exception to

this principle is considered to be, under Art. 216 par. 5 of the

Constitution of the Polish Republic, the case where public debt exceeds

3/5 of the annual national product.
 

The

outline of the Constitutional Court’s case law, as well as the

comparative illustration using the case law of the Constitutional Court

of the Polish Republic regarding the question of constitutionality of

subsequent statutory withdrawal of part of judges’ salaries, which was

given a statutory entitlement before that measure was passed, lets us

derive these fundamental general theses:
- evaluation of the

constitutionality of salary limitations regarding judges for a specific

period of the year falls within the scope defined by the principle of

judicial independence,
- the constitutional position of judges on one

side and representatives of the legislative and executive branch,

especially the state administration, on the other side, is

differentiated in view of the principle of separation of powers and the

principle of judicial independence, which also gives rise to a different

scope of discretion for the legislature for salary limitations

regarding judges in comparison with the scope of discretion for such

limitations in other areas of the public sphere,
- interference in

the material security of judges guaranteed by law may not be an

expression of arbitrariness by the legislature, but must be, based on

the principle of proportionality, justified by extraordinary

circumstances, e.g. by the state’s difficult financial situation, and

even if this condition is met account must be taken of the different

function of judges and that of representatives of the legislative and

executive branches, especially the state administration; such

interference may not create grounds for concerns that it may limit the

dignity of judges (see recommendation of the Committee of Ministers of

the Council of Europe no. R (94) 12 of 13 October 1994), or that it may

be an expression of constitutionally unacceptable pressure by the

legislative and executive branches on the judicial branch.
 

The

principle of an independent judiciary is one of the essential features

of a democratic law-based state (Art. 9 par. 2 of the Constitution). The

requirement for an independent justice system stems from two sources:

the neutrality of judges, as a guarantee of a just, impartial and

objective trial and the ensuring of individuals’ rights and freedoms by a

judge separated from political power. Judicial independence is

guaranteed by guarantees of a special legal position (which must include

that they can not be demoted, can not be recalled, and enjoy immunity),

also by guarantees of organizational and functional independence from

bodies representing the legislative and in particular the executive

branch, as well as separation of the judiciary from the legislative and

executive branches (in particular by applying the principle of

incompatibility). In terms of content, judicial independence is then

ensured by the judges being bound only by the law, i.e. ruling out any

elements of subordination in judicial decision making. The

Constitutional Court has already comprehensively considered the basic

components of the principle of judicial independence in judgment file

no. Pl. US 7/02.
 

Arbitrary

interference by the legislature in the area of material security of

judges, and within that framework also salary limitations/restrictions,

must be subordinated in the framework protected by the principle of

judicial independence for two reasons.
 

The

independence of judges is, first of all, conditioned on their moral

integrity and professional level, but it is also tied with their

appropriate material security. This component of the principle of

judicial independence was also established in the recommendation of the

Committee of Ministers of the Council of Europe no. R (94) 12 of 13

October 1994 on the independence, effectiveness, and role of judges,

according to which the “proper working conditions” of judges also

include “ensuring that the status and remuneration of judges is

commensurate with the dignity of their profession and burden of

responsibilities” (Principle III, point 1b). A similar maxim is also

found in Art. 6.1 of the European Charter on the Status of Judges,

passed by the participants of a multilateral conference organized by the

Council of Europe on 8 to 10 July 1998, under which judges exercising

judicial functions in a professional capacity are entitled to

remuneration, the level of which is fixed so as to shield them from

pressures aimed at influencing their decisions and more generally their

behaviour within their jurisdiction, thereby impairing their

independence and impartiality.
 

The

second reason for subordinating the band on arbitrary interference in

the material security of judges (salary restrictions) in the framework

of the principle of judicial independence is to rule out the

possibility, of pressure by the legislative or executive branch on

judicial decision-making. In other words, to rule out arbitrary

interference in the material security of judges as a possible form of

“penalization” of judges by the legislative and the executive, and thus

also rule out forms of pressure on their decision-making.
 

The

Constitutional Court consistently applied the thus-analyzed viewpoints

for evaluating the constitutionality of salary limitations regarding

judges in judgment file no. Pl. US 11/02, in which it annulled part of §

1 of Act no. 416/2001 Coll., specifically the provision regulating the

withdrawal of additional salaries from judges for the second half of

2001 and reducing the additional salaries for the first and second

halves of 2002 to one half of the amount to which they would otherwise

be entitled.
 

Similarly to

all democratic constitutional courts the Constitutional Court of the

Czech Republic also, for resolving a conflict of fundamental rights, or

public values protected by the constitutional order, in proceedings to

review a norm and in proceedings on constitutional complaints, applies

the principle of proportionality (it first comprehensively analyzed it

in a case of evaluating the constitutionality of maintaining the

confidentiality of the personal data of witnesses in a criminal trial –

Pl. US 4/94). The present matter involves conflict between, on the one

side, the principle of judicial independence and the fundamental rights

arising from the constitutional principle of equality, and on the other

side of the public good, solidarity during an extraordinary event, and

securing the funds to mitigate or remove its consequences.
 

Methodologically the principle of proportionality is based on three steps:
 

The

first is evaluation of simple law from the point of view of

suitability, which involves evaluating the selected normative measure in

terms of the possible fulfillment of the aim pursued. If a given

normative measure is not capable of achieving the aim pursued, or is not

consistent with the declared aim, there is an expression of

arbitrariness on the part of the legislature, which is considered

inconsistent with the principle of a law-based state.
 

The

second step in applying the principle of proportionality is evaluating

simple law from the point of view of necessity, which entails analysis

of the variety of possible normative measures in relation to the

intended aim and their subsidiarity in terms of limiting

constitutionally protected values – a fundamental right or a public

value. If the aim pursued by the legislature can be achieved by

alternative normative means, then the constitutionally consistent one is

the one which limits the constitutionally protected value to the

smallest extent.
 

If, on the

one hand, the evaluated simple law pursues the protection of a

particular constitutionally protected value, on the other hand it limits

another one; the third aspect of the principle of proportionality,

balancing, is a methodology for weighing these conflicting

constitutional values.
 

For

deriving a conclusion in a case of conflict of fundamental rights, or

the public good, as principles, in contrast to a case of conflict of

norms of simple law, the Constitutional Court is guided by the

optimization imperative, i.e. the postulate of minimizing the limitation

of a fundamental right or freedom, or public good. It contains the

maxim that if it is concluded that giving priority to one of two

conflicting fundamental rights, or public values is justified, a

necessary condition for the final decision is to apply all the

possibilities to minimize interference in one of them. The optimization

imperative can be normatively derived from Art. 4 par. 4 of the Charter,

the fundamental rights and freedoms must be preserved in employing

provisions concerning limitations on the fundamental rights and

freedoms, and so, analogously, this must also be done if they are

limited as a result of being in conflict.
 

Based

on these aspects of constitutional evaluation of the given issue, we

must state that the legislature did not meet the safeguards arising from

the postulate of suitability, i.e. the relationship between the legal

means applied and the legislature’s aims.
 

The

Minister of Labor and Social Affairs, Z. Š., summarized the intentions

which led the legislature to pass Act no. 425/2002 Coll., in his speech

at a meeting of the Chamber of Deputies of the Parliament of the Czech

Republic on 13 September 2002 [during discussion of the government draft

of the Act which provides for 2003 an extraordinary measure for

determining the level of salaries and certain reimbursements of expenses

related to the exercise of the office of representatives of state

authority and certain state bodies, judges, and state prosecutors, and

which provides for these persons the level of additional salaries for

the first and second halves of the year 2003 (Chamber of Deputies

publication 46)] as follows: “the submitted government draft contains

one of the measures which are meant to bring necessary savings in the

expenses in the state budget for 2003. In connection with the economic

situation that arose as a consequence of floods in August of this year

it was necessary to propose a second postponement of the implementation

of a new, 16-grade pay system for public services and public

administration employees, and reduce the amount of funds allocated for

their pay increases by more than half. At present it will not be

possible to give public services and public administration employees an

additional salary in each half of 2003 in an amount corresponding to the

components of their monthly salary, but, as in past years, only half of

that amount. These necessary measures led to preparation of the

submitted draft Act, which will freeze the pay of all representatives,

senators, government ministers, judges, state prosecutors, and other

persons, at their 2002 levels. This will limit the further distancing of

the pay level of these persons from the pay level of public services

and public administration employees until the new method for setting the

salary basis goes into effect, which will slow the rate of pay

increases for state authority representatives and certain other persons

starting in 2004 and will bring it in line with pay increases financed

from public funds. At the same time, it is proposed that state authority

representatives, just like public services and administration

employees, be provided only half of the amount of additional salary, if

they are entitled to it, in each half of 2003. In addition to being an

expression of solidarity with the citizens stricken by the floods,

passing the proposed regulation would represent a savings in budget

expenses totaling ca. 480-500 million crowns.”
 

Thus,

according to the statement from its proponent, the purpose of Act no.

425/2002 Coll., was to ensure proportionality in the pay level of public

administration and services employees and government authority

representatives, certain state bodies, judges, and state prosecutors,

and further, to demonstrate solidarity with citizens stricken by the

floods, as well as to obtain funds for removing the consequences of the

floods.
 

However, the

government, as the proponent of the Act, cast doubt on the declared

intentions of Act no. 425/2002 Coll., by increasing the pay scale for

public sector employees with effect as of 1 January 2003 (government

directives no. 582/2002 Coll., no. 583/2002 Coll., no. 584/2002 Coll.,

no. 330/2003 Coll.), as well as by the state budget passed for 2003.

According to the appendix to the draft state budget for 2004, submitted

by the government to the Chamber of Deputies, for employees in the

central state administration bodies the actual amount of funds for

salaries in 2002 was CZK 4,840,899,000, the 2003 budget was CZK

5,669,263,000, and the 2004 proposal was CZK 5,916,963,000 (table no.

9); in state organization the actual amount of funds for salaries in

2002 was CZK 8.,55,060,000, the 2003 budget was CZK 10,319,286,000, and

the 2004 proposal was CZK 10,524,110,000 (table no. 10), in defense,

security, customs and legal protection the actual amount of funds for

salaries in 2002 was CZK 26,999,082,000, the 2003 budget was CZK

29,161,674,000, an the proposal for 2004 was CZK 30,156,796,000 (table

no. 11), in the “other” state organization components the actual amount

of funds for salaries in 2002 was CZK 11,406,195,000, the 2003 budget

was CZK 12,545,862,000, and the proposal for 2004 was CZK 13,205,240,000

(table no. 12).
 

In these

circumstances, it is difficult to accept the thesis of “necessary

savings in funds expended for the salaries of public services and

administration employees”; on the contrary, it must be said that the

content of Act no. 425/2002 Coll. does not match its declared purpose.

The violation of the principle of proportionality thus created must then

be classified as an expression of arbitrariness on the part of the

legislature, which is inconsistent with the principle of a law-based

state (Art. 1 par. 1 of the Constitution).
 

The

principle of necessity then gives rises to a maxim for the legislature,

under which, if the aim pursued can be achieved by multiple normative

means, the constitutional means is the one which limits the particular

constitutionally protected value (fundamental right or freedom, public

good) to the smallest extent.
 

Solidarity

in the case of extraordinary events (such as the floods in 2002) can be

achieved through constitutional procedures, i.e. those which respect

the fundamental rights and freedoms, especially the constitutional

principle of equality. The same safeguards also apply for obtaining

funds to mitigate or remove the consequences of such events.
 

The

government attempted to implement a solution which would demonstrate

solidarity and ensure the necessary funds, but simultaneously not

violate the constitutional framework of protection of fundamental

rights, and submitted to Parliament a draft Act which was to amend Act

no. 587/1992 Coll., on Consumption Taxes, Act no. 588/1992 Coll., on

Value Added Tax, and Act no. 586/1992 Coll., on Income Tax. According to

the government’s calculations, this draft, called the “floods tax

package,” would have increased state budget revenue in 2003 by CZK 10.7

billion, and that revenue was to be allocated for compensating flood

damage. The government draft was discussed as Chamber of Deputies

publication no. 38 at a session of the Chamber of Deputies on 13

September 2002, i.e. before discussion of the contested Act no. 425/2002

Coll., and the Chamber of Deputies rejected it.
 

Thus,

the legislature’s process also did not meet another of the components

of the principle of proportionality, the principle of necessity,

because, given the existence of more than one possible normative means

for the intended aim, it did not respect their subsidiarity from the

point of view of limiting a constitutionally protected value – the

fundamental right arising from the constitutional principle of equality

and constitutional protection of judicial independence.
 

Based

on these reasons, as analyzed, the payment restriction on judges

contained in § 1 let. h) and § 2 of Act no. 425/2002 Coll. must be

considered inconsistent with Art. 1 par. 1 in connection with Art. 82

par. 1 of the Constitution, Art. 1 of the Charter and Art. 6 par. 1 of

the Convention for the Protection of Human Rights and Fundamental

Freedoms.

 

VI.
 

Under

§ 2 of the cited Act: “If, under a special legal regulation, the

persons specified in § 1 are entitled to an additional salary, it shall

be provided to them for the first and second halves of the year 2003

only in the amount of half of the amount to which they would otherwise

be entitled.” Under § 1 let. h) of Act no. 425/2002 Coll. for

determining the pay and certain reimbursement of expenses connected with

exercise of the position of “a judge of a district, regional and high

court, the Supreme Court, or the Supreme Administrative Court” in 2003

the salary basis reached as of 31 December 2002 shall be used; the cited

§ 1 contains letters a) to m).
 

Thus,

the ratio decidendi of this judgment affects a defined circle of

persons (judges), affected by § 2 of the Act in question, and that

circle of persons is governed by a reference to another provision of the

same Act, which also provides other rights, or obligations, for those

persons. That reference is formulated generally, i.e. not only in

relation to judges, but also others precisely defined subjects.
 

Thus,

annulling the referring norm in full, i.e. the provision expressed in §

2 of Act 425/2002 Coll. by the words “§ 1” would also affect persons to

whom the grounds for derogation do not apply. However, annulling the

provision expressed in § 1 of Act 425/2002 Coll. by the words “h) a

judge of a district, regional and high court, the Supreme Court, or the

Supreme Administrative Court” would deviate from the scope of the

subject matter of the proceedings, because it would be annulment of the

regulation of the salary basis for judges.
 

In

judgment file no. Pl. US 24/94, which was then followed by case law in

proceedings on review of norms, the Constitutional Court defined the

term “statutory provision” to mean any part of the text of a legal

regulation with normative content, i.e. an expression containing

linguistic means of any kind whose purpose is to express a legal norm or

one of the components of its factual elements (e.g. the circle of

subjects or situations), or its legal consequence (i.e. a legal

obligations or penalty).
 

As

already stated, § 1 of the Act in question contains letters a) to m),

so these letters are also implicitly contained in the referring norm,

contained in § 2 of the Act, insofar as it provides: “If, under a

special legal regulation, the persons specified in § 1 are entitled to

an additional salary, it shall be provided to them for the first and

second halves of the year 2003 only in the amount of half of the amount

to which they would otherwise be entitled.”
 

Based

on the foregoing, the Plenum of the Constitutional Court decided on

derogation of the statutory provision in question, in the wording stated

in the verdict of this judgment. That means, that the Constitutional

Court judgment annuls in § 2 of Act 425/2002 Coll. the implicitly

contained reference to § 1 let. h) of that Act.

Notice: Decisions of the Constitutional Court can not be appealed.

Brno, 14 July 2005
 

 

 


Dissenting Opinion
of Constitutional Court judges Vojen Güttler, Jan Musil and Pavel Rychetský to judgment file no. Pl. US 34/04 of 14 July 2005

We

do not agree with the verdict and part of the reasoning in the judgment

of the Plenum of the Constitutional Court of 14 July 2005 file no. Pl.

US 34/04, and we file a dissenting opinion to it pursuant to § 14 of Act

no. 182/1993 Coll., on the Constitutional Court, as amended by later

regulations. We believe that the petition from the Municipal Court in

Brno to annul § 2 in relation to § 1 let. h) of Act no. 425/2002 Coll.,

should have been denied.
 

1.

The mere fact that the legislature repeatedly (in recent years annually)

intervened in the statutory framework of salaries for judges and

executive branch representatives testifies to the instability and

incompleteness of the then-existing legal framework. This situation

evoked undesirable conflicts, led to unnecessary court disputes, and to

the filing of repeated petitions to the Constitutional Court to annul

laws. It is undesirable for the legislature to function in such a way,

and it is appropriate to criticize this.
 

2.

Generally we agree with the opinion that the constitutional principle

of judicial independence, stated in article 82 par. 1 of the

Constitution, is a very important attribute of a law-based state, and

that this principle also includes the essential aspect of appropriate

material remuneration of the judicial profession. It is certainly

desirable for an adequate level and stability of a judge’s pay to create

defenses against potential influencing of judicial decision making both

by private persons and, especially, by the executive and legislative

branches. Judges’ salaries may not become subject to any sort of

manipulation which would threaten the independence of the judicial

branch. Salary adjustments may not be the subject of pressure on a

judge, and may not be arbitrary or unjustified.
 

3.

However, one can not derive from the constitutional principle of

judicial independence an absolute imperative for judges’ nominal or real

salaries to not be reduced under any circumstances whatsoever. However

desirable it is for judges’ salaries to be stable, it must be admitted

that under quite extraordinary circumstances it is possible, by

statutory means, to temporary withdraw or reduce part of the salary

compensation of state representatives, including judges, if it can be

justified on the basis of serious, reasonable, and socially acceptable

grounds. Long historical experience shows that the growth of a state’s

economy, and the development of state budgets which are dependent on it,

and from which judges’ salaries are derived, is not completely stable,

but is subject to exceptional fluctuations, which force exceptional

savings measures. These fluctuations are influenced both by social and

economic factors and by natural factors, which can not be influenced by

human activity (natural catastrophes, and so on).
 

As

the Constitutional Court has also repeatedly said (judgment file no.

Pl. US 18/99, published as no. 320/2000 Coll.; judgment file no. Pl. US

16/2000, published as no. 321/2000 Coll.), judges also do not live in a

social vacuum, and they share the fates of their social environment. The

requirement for complete “inviolability” of judges’ salaries is

illusory, and contrary to the elementary conditions of social reality.
 

We

believe that in the case of the passage of Act no. 425/2002 Coll.,

which provided judges of district, regional and high courts, the Supreme

Court and the Supreme Administrative Court additional salary for the

first and second halves of 2003 of only half the amount to which they

would otherwise be entitled, the conditions for taking away part of the

additional salaries of judges had been met, because there were

extraordinary circumstances which urgently required making savings in

the state budget and thus obtaining funds to repair the damage caused by

a natural disaster (the floods) which had no equal in the modern

history of the Czech lands.
 

4.

We do not agree that the contested statutory provision is

unconstitutional interference in judicial independence. In our opinion

judicial independence, as a principle of a democratic law-based state,

is, first of all, conditioned on the moral integrity and professional

level of judges, their special legal position (they can not be demoted,

recalled, and enjoy immunity), as well as the guarantee of organization

and functional independence from bodies of the legislative and executive

branches.
 

In our opinion,

the present Constitutional Court judgment overly exaggerates the

material aspect (i.e. the inviolability of judges’ salaries) and assigns

it excessive weight in the structure of components of judicial

independence, which, as a result, devalues other, in our opinion far

more essential, attributes of an independent judiciary.
 

5.

In the situation in which the contested statutory provision was passed,

absolutely no connection can be found between the enacted norm and an

alleged threat to judicial independence.
 

The

very judgment to which we are taking a dissenting opinion points out in

the reasoning that judicial independence could be threatened by

interference in the material security of judges if the interference were

arbitrary and represented pressure by the legislative or executive

branch on judges, and could influence their decision making and conduct

when making legal findings. However, in this case nothing of that sort

was actually determined. In our opinion the Constitutional Court can not

classify the enacted statutory norm as “an expression of arbitrariness

by the legislature” if in this case that is not based on indisputably

determined facts.
 

6. When

enacting the contested Act the legislature pursued a legitimate aim – to

acquire funds for removing the extensive damage caused by a natural

disaster, the floods of 2002, by making savings in state budget

expenses. There are no facts from which one could conclude that this aim

was only a pretense.
 

It is

a completely indisputable fact that the floods in August 2002 affected a

considerable part of the Czech Republic and that their scope was

catastrophic, unequaled in the last centuries. For example, in the

capital city of Prague the flow of water in the Vltava was measured as a

“five hundred year” water level (see Hospodářské noviny of 20 July

2005). the total amount of flood damage in the Czech Republic exceeded

70 billion crowns. In this extraordinary situation it is completely

understandable that the government and the parliament looked for savings

measures, including in the socially sensitive area of salaries paid

from public budgets. In these circumstances there can be no doubt about

the need to pass savings measures.
 

One

can justifiably say that the natural catastrophe brought the entire

society and state authority into a situation of extreme emergency, where

it was necessary to take quick and effective measures. It must be

acknowledged that the executive and legislative branches had to find a

suitable legislative solution very quickly, and that there was not

enough time to look for a consensus on starting points. The state is

also bound by legal regulations to take effective measure to deal with

natural catastrophes. For example, under Act no. 12/2002 Coll., on State

Assistance in Renewing a Territory Affected by a natural or Other

Disaster, the state is required to ensure the removal of damage to state

property and non-state property that serves to ensure the basic

services in the territory. It was also necessary to find domestic funds

and make savings in the state budget because that was required by

conditions for the provision of foreign aid and foreign loans that were

offered to the Czech Republic at the time (see, e.g., the background

report to the government draft Act on the Czech Republic’s acceptance of

a framework loan from the European Investment bank in order to finance

and remove flood damage from 2002, Chamber of Deputies publication no.

101). It would certainly be strange if the Czech Republic accepted

foreign aid given as an expression of solidarity and did not try to find

domestic funds by making savings in the state budget.
 

7.

The government estimated the expect savings achieved by reducing the

additional salaries of representatives of state power as a result of Act

no. 425/2002 Coll., at CZK 250 million (of which, of course, only part

came from judges’ salaries). We consider the judges’ share of salary

savings measures in the entire sector of public budgets to be

proportional in relation to other social groups of citizens and to the

total amount of flood damage.
 

Act

no. 425/2002 Coll. itself applied not only to judges, but also to other

representatives of the state power, and certain state bodies and state

prosecutors. It is appropriate to point out that together with the

passage of the Act, the government, in its competence, issued several

directives which decided that only half of the additional salaries for

the first and second halves of 2003 would be provided for other groups

of persons as well. These measures applied to all employees of state

administration bodies, certain other bodies and municipalities, the

employees of budget and certain other organizations, e.g. teachers and

health care workers, employees of the armed forces, security forces and

services, customs administration bodies, members of Fire Brigades,

employees in public services and administration, and employees of

certain other organizations. This was done by government directives no.

582/2002 Coll., no. 583/2002 Coll., no. 584/2002 Coll. and no. 330/2003

Coll. Thus, these savings measures affected practically the entire

sector of workers paid out of public budgets.
 

This

is not changed at all by the objection raised by the petitioner and

accepted in the Constitutional Court’s judgment, that the abovementioned

government directives as regards the cited categories of employees and

members, along with taking away the additional salaries, also raised the

pay scale, and this automatically compensated for the non-payment of

additional salaries. The government justified the raising of the scale

of pay grades with the need to improve the great under-compensation of

workers in the public sectors, which, even after the changes made as of 1

January 2003, was not particularly high. As an By illustration, even

after the increases under the cited government directives no. 582/2002

Coll., no. 583/2002 Coll. and no. 584/2002 Coll. the highest possible

pay grade (in the highest class, 12, and the 12th grade, i.e. after more

than 32 years of eligible work) was CZK 20,070 per month. Government

directive no. 330/2003 Coll., which increased the pay scales of certain

employees in public services and administration (especially as a result

of increasing the number of pay classes from twelve to sixteen), did not

go into effect until 1 January 2004, i.e. outside the relevant period

to which the contested Act no. 425/2002 Coll. applies.
 

According

to data from the Ministry of Justice, the average monthly salary of a

judge (for all judges in the general courts) in 2002 was CZK 64,300 (see

information made public in discussion in the Chamber of Deputies of the

Parliament of the Czech Republic on 13 September 2002 during discussion

of chamber of Deputies publication no. 43). The average monthly wage of

a person in the Czech Republic in 2002 was CZK 15,866 (see data from

the Czech Statistical Office on the webpage www.czso.cz). It is

obvious from the cited statistical data that in the context of the Czech

Republic at that time judges salaries were considerably above average,

and it is absolutely indisputable that this marked difference between

judges’ salaries and the salaries of other professional groups was

preserved even after Act no. 425/2002 Coll. was passed. Present

statistical data on wage growth also testify that this differentiation

has continued since the passage of the contested Act: in the first

quarter of 2005 the average wage in the Czech Republic was CZK 17,678

(see data from the Czech Statistical Office on the webpage

www.czso.cz), while the expected average monthly salary of a

judge in 2005, according to data from the Ministry of Justice, was CZK

72,330 (see data published in the daily newspaper Právo on 15 June

2005).
 

Thus, the

restrictions consisting of reducing by half the two additional salaries

in 2003, i.e. by one fourteenth of total annual pay, could not be

significant interference in the total annual income of judges, or an

undesirable leveling of judges’ pay in comparison with the pay of other

groups of persons, such as could be interpreted as a threat to judicial

independence. The interference in judges’ salaries can not be considered

disproportionate or arbitrary, let alone an interference which

threatens the constitutional principle of judicial independence.
 

8.

We are of the opinion that in such a situation the legislative

regulation passed was one of the possible and legitimate methods for

addressing a state of emergency. One can consider hypothetically whether

the legislature could have achieved its aim by other means as well,

e.g. by introducing a “flood tax” which would have distributed the

burden of flood damage more evenly across wider levels of citizens.

However, we can assume with high probability (as experience with passing

any kind of tax laws shows), that this would have taken a very long

time, whereas in the particular situation it was necessary to act

immediately. In this specific situation it is unrealistic to require the

legislature and executive to take only such legislative measures as

would ensure absolutely equal distribution of the economic consequences

of a natural disaster on every citizen of the state and which would find

general agreement about all groups of the population. That would

necessarily require long-term, minutely detailed calculation of all the

economic consequences of the legislative changes, and thus also lengthen

the legislative process. That kind of maximalistic requirement of a

“just tax burden” can perhaps be addressed as part of long-term tax

reform, but not in a legislative emergency. Moreover, such blanket

taxing of the population (natural persons) would undoubtedly also affect

the sizeable group of citizens who were stricken by the floods in 2002,

as it would not be possible to successfully remove that group of people

from the exceptional blanket taxation.
 

In

our opinion the Constitutional Court is not authorized to speak on the

suitability of a fiscal or tax solution, or on other economic or

political alternatives which could have hypothetically provided an

optimal solution to the given situation. The Constitutional Court is

supposed to evaluate a contested statute only from the perspective of

constitutionality, i.e., in a particular case, whether the implemented

salary adjustments violated or endangered the principle of judicial

independence; we believe that such unconstitutional interference did not

take place.
 

9. We think

that the Constitutional Court should, in its case law, also reflect

“meta-legal,” i.e. social and ethical principles for the functioning of

the bodies of power in a democratic society. It is one of the generally

recognized norms of social behavior in civilized countries all levels of

the population participate, in solidarity, and proportionately in

removing the consequences of natural catastrophes, and citizens are

generally willing to take on no small sacrifices in such situations.

That was also what happened in the case of the catastrophic floods in

2002, when the degree of civic solidarity, the extend of public

financial contributions to help flood victims, etc., reached unusual

proportions, as is well know from all publicly available sources of

information; in the context of the catastrophic floods the savings

measures met with public understanding and were accepted as unavoidable.

As far as we know, no other professional group of public sector workers

(with the exception of judges) did not raise any objections to wage

saving measures at that time.
 

We

believe that the authority and seriousness of the judiciary, and

ultimately even the prestige of the democratic state, suffers if, in

such an exceptional situation, judges are taken out of this social

context. If the judiciary in a democratic society is to fulfill its

role, it must enjoy a natural authority with the citizens, it must be

organically anchored in social structures, and must be positively

accepted by the public. The judiciary is a public service; a judge has

voluntarily decided to perform it, and by accepting the status he has

also accepted the particular ethical norms of the judicial profession.

Judges are rightly expected to have certain “above standard” civic

values, which include the expectation that in a time of emergency caused

by force majeure they will contribute their proportional personal share

to overcoming social difficulties.
 

We

consider it regrettable that the Constitutional Court did not take this

opportunity to point out in its judgment that when the conflict of

various social interests is weighed, account should also be taken of the

principle of social solidarity, a justified requirement that a citizen

will play a proportionate part in removing the tragic consequences of a

heavy natural catastrophe, a requirement of loyalty by public officials

(including judges) to the democratic state and to their fellow-citizens,

and ultimately also a requirement of decency and elementary human

sympathy with the victims afflicted by the natural disaster.
Brno, 14 July 2005

 


Dissenting Supplementary Opinion
of Judge Miloslav Výborný to the reasoning of judgment file no. Pl. US 34/04

The

judgment’s reasoning closely analyzes the legal conclusions which the

Constitutional Court reached in judgment Pl. US 11/02; I did not vote

for that judgment, and published by dissenting opinion, together with

other Constitutional Court judges (see Collection of Decisions vol. 30,

no. 87).
 

Although I have no

serious reason to retreat from my dissenting opinion at that time, I now

voted in favor of the judgment granting the petition, primarily for the

following reasons.
 

Judgment

Pl. US 11/02 was passed despite the opinion of four dissenting judges

and was duly published in the Collection of Laws on 2 July 2003, as no.

198/2003 Coll. It is quite clear from my dissenting opinion at that time

that I had (and have) absolutely no doubts about that part of its

substantial grounds, according to which “If the Constitutional Court

itself, as a constitutional body, i.e. a body of public power, is not to

commit the arbitrariness, the ban on which it is also subject to,

because the Constitutional Court too, or especially it, is required to

respect the framework of a constitutional state in which exercise of

arbitrariness by bodies of public power is strictly forbidden, it must

feel bound by its own decisions, which it can overcome through its case

law only under certain conditions. This postulate can be characterized

as an essential requirement of a democratic law-based state.” In the

dissenting opinion written jointly with Judge Pavel Varvařovský I

indicated as the fundamental reason for disagreement with the verdict of

judgment Pl. US 11/02 the lack of grounds for abandoning the opinion

stated by the Constitutional Court in the same matter in the judgment

published as no. 321/2000 Coll. In other words, the reason for my

disagreement was the belief that conditions for changing the previous

case law of the Constitutional Court had not been met; however, that was

an opinion held by only a small minority of the Plenum of the

Constitutional Court.
 

Given

my full agreement with the abovementioned parts of the reasoning of that

judgment, I could not now take a different position than that agreeing

with the verdict of the judgment, precisely because in the adjudicated

matter none of the alternatives under which the Constitutional Court

could and would be permitted to depart, without being arbitrary, from

its previous case law , i.e. from judgment Pl. US 11/02, as well as form

judgment Pl. US 43/04. As in the dissenting supplemental opinion to the

reasoning of judgment Pl. US 43/04, I state my conviction that although

I did not agree with judgment Pl. US 11/02, I consider observing it to

be a value which can not be denied.
That opportunity did not arise,

for reasons analyzed in the judgment, even from the existence of the

catastrophic floods which afflicted the Czech Republic in 2002.
 

It

is also not insignificant for me that, as a result of two judges not

being appointed, the Constitutional Court decided on the submitted

petition in an incomplete, i.e. only 13-member plenum. With the four

dissenting opinions presented to the verdict of the judgment, my

disagreement would lead to denying the petition, and thus to further

splitting of the Constitutional Court’s case law concerning the issue of

judges’ salaries despite the fact that the majority of judges of the

Constitutional Court would hold the contrary opinion.
 

 



Dissenting Opinion
of judge Stanislav Balík

I voted to deny the petition, for these reasons:

1) In the dissenting opinions to the reasoning of judgments file no.

Pl. US 43/04 and Pl. US 9/05, of 12 August 2005, I expressed by

reservations to the repeated efforts of the legislature to take

additional salaries from judges, and explained why I am convinced that

the withdrawal of additional salaries, in and of itself, in the

conditions at the time could not be an impulse which in any way affected

the independence of judicial decision making. At the same time, I

stated the opinion that I do not rule out the possibility that

additional salaries could be removed for especially serious reasons

under certain circumstances, and really on a one-time basis, in a

constitutional manner.
 

2)

The contested § 2 of Act no. 425/2002 Coll. was passed by the

legislature precisely in circumstances which, in my opinion, do not rule

out that its passage could be constitutional. I can not leave aside the

ethical aspects, the requirement for high moral integrity of judges and

the judicial profession, which can be summarized in the motto “noblesse

oblige.” A statement by the late philosopher, judge emeritus of the

Constitutional Court, Vladimír Čermák has been handed down: “You will

recognize a member of the elite only by his social performance, that is,

by whether he is capable of sacrificing himself or sacrificing

something, even if he already has property or education. The world is

founded on sacrifices.” (Most recently quoted in: MF DNES, 4 August

2005, p. B16).
 

Weighing the aspects of the principle of proportionality, I considered this sentence to be the weightiest.