2010/09/07 - Pl. ÚS 12/10: Judges´ Pay 2010

07 September 2010

HEADNOTES

 

"As

regards the constitutionality of the subsequent statutory removal of

part of the pay of judges, to which a statutory entitlement was given

before this measure was adopted, we can draw the following basic,

general theses:

-

reviewing the constitutionality of valid restrictions applicable to

judges for a particular year falls within the framework defined by the

principle of judicial independence,

-

the constitutional positions of judges, on the one hand, and

representatives of the legislative and executive branch, especially

state administration, on the other hand, differ, in view of the

principle of separation of powers and the principle of an independent

judiciary, from which follows the different discretion for the

legislature as regards pay restrictions on judges, in comparison with

the discretion for such restrictions 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,

based on the principle of proportionality, be justified by unusual

circumstances, e.g. the state being in a difficult financial situation,

but even if this condition is met the different functions of judges and

representatives of the legislative and executive branch, especially the

state administration, must be taken into account; such interference may

not give rise to concerns that it will limit the dignity of judges, e.g.

that it is not an expression of constitutionally impermissible pressure

by the legislative and executive branch on the judicial branch.

 

The

principle of an independent judiciary is one of the essential

requirements of a democratic state governed by the rule of law (Art. 9

par. 2 of the Constitution). The requirement of an independent judiciary

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

just, impartial and objective trial, and from ensuring the rights and

freedoms of individuals by a judge who is separate from the political

power. The independence of judges is guaranteed by guarantees of a

special legal status (these must include that they cannot be demoted,

recalled, or transferred), as well as by guarantees of organizational

and functional independence from bodies representing the legislative

and, especially, the executive branch, as well as separation of the

judiciary from the legislative and executive branches (by applying the

incompatibility principle). In terms of content, judicial independence

is ensured by the fact that judges are bound only by the law, i.e. by

ruling out any elements of subordination in judicial decision making.

The Constitutional Court comprehensively addressed the fundamental

components of the principle of an independent judiciary in judgment file

no. Pl. ÚS 7/02 (Collection of Decisions of the Constitutional Court,

volume 26, judgment no. 78; promulgated as no. 349/2002 Coll.).

 

Arbitrary

interference by the legislature in the area of the material security of

judges, including restrictions on pay, must be included in the sphere

that is protected by the principle of judicial independence for two

reasons. First, the independence of judges is conditioned on their moral

integrity and level of expertise, but it is also tied to appropriate

material security. The second reason for including a prohibition on

arbitrary interference in the material security of judges (restrictions

on pay) in the principle of judicial independence is to rule out the

possibility of pressure from the legislative branch, or the 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 ‘penalizing’ judges by the legislative and executive branch, and

thereby also to rule out forms of pressure on their decision making.”

 

The

Constitutional Court concludes that in the event of exceptional

circumstances, e.g. the state being in a difficult financial situation,

judges should not be disadvantaged in this manner next time, and in

order for the legislature to be able to impose pay restrictions, it

should obtain a relevant statement from the representatives of the

judicial branch, which should become part of the background report.

 

In

Constitutional Court judgment file no. Pl. ÚS 1/08 (N 91/49 SbNU 273;

251/2008 Coll.) the Constitutional Court adopted methods of legal

history, comparative legal studies, and legal philosophy, as aides to

legal studies. In this adjudicated matter we can also apply arguments

from the point of view of these disciplines. Art. III. part I. second

sentence of the Constitution of the United States of America, of 17

September 1787 states “The Judges, both of the supreme and inferior

Courts, shall hold their Offices during good Behaviour, and shall, at

stated Times, receive for their Services a Compensation, which shall not

be diminished during their Continuance in Office.”

 

The

Constitutional Court states that it is evident, just from the frequency

of its case law mentioned above, that judges’ salaries, unlike the

salaries of other “state servants,” have, for a long time, even with the

following intended perspective, been subject only to restrictions. The

measures concerning them then no longer seem exceptional and

proportional, but appear to be a targeted process aimed at returning

judges’ salaries to lower levels, and thus removing the, from the point

of view of the legislative and executive branches, “error” in setting

the rules for calculating judges pay, previously committed in the

mid-1990s. The consequences of such leveling necessarily lead to

reducing the status of judges in the social middle class, degradation of

its compensation in relation to other legal professions, and diminution

of its necessary social prestige.

 

In

order the declaring a state of legislative emergency would be

constitutionally conforming, it is not necessary the legislature

evaluates the requirements for declaring a state of legislative

emergency in the form of the threatened considerable economic damage

with the bill of the particular act that was to avert the danger of

considerable economic damage. A decision as to whether there is a danger

of considerable economic damage is not a decision on damage in the true

sense of the word, but arises from deliberations about wider political

consequences. A decision as to whether the state faces considerable

economic damage under A decision as to whether the state is in danger of

considerable economic damage, under § 99 par. 1 of the Rules of

Procedure need not contain an evaluation of the extent to which the

submitted bill is to avert or reduce the danger of considerable economic

damage, in a sort of analogy to § 417 par. 1 of Act no. 40/1964 Coll.,

the Civil Code.

 

 

CZECH REPUBLIC

CONSTITUTIONAL COURT
JUDGMENT

 

IN THE NAME OF THE CZECH REPUBLIC

 

On

7 September 2010, the Plenum of the Constitutional Court, consisting of

the Chairman of the Court, Pavel Rychetský and judges Stanislav Balík

(judge rapporteur), František Duchoň, Vlasta Formánková, Vojen Güttler,

Pavel Holländer, Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká, Jiří

Mucha, Jan Musil, Jiří Nykodým, Miloslav Výborný, Eliška Wagnerová and

Michaela Židlická, ruled on a petition from the Municipal Court in Brno,

represented by JUDr. Ivana Chlupová, seeking the annulment of § 3 par. 4

of Act no. 236/1995 Coll., on the Pay and Other Benefits Connected with

the Office of State Authorities and Certain State Bodies and Judges and

European Parliament Representatives , as amended by Act no. 418/2009

Coll., as regards judges, and the first part of Article I of Act no.

418/2009 Coll., as regards judges, with the participation of the Chamber

of Deputies of the Parliament of the Czech Republic and the Senate of

the Parliament of the Czech Republic as parties to the proceeding, as

follows:

 

The

provision of § 3 par. 4 of Act no. 236/1995 Coll., on the Pay and Other

Benefits Connected with the Office of State Authorities and Certain

State Bodies and Judges and European Parliament Representatives, as

amended by Act no. 418/2009 Coll., as regards judges, is annulled as of

30 September 2010.

 


REASONING

 

I.  Recapitulation of the Petition

 

1.

On 5 March 2010 the Constitutional Court received a petition from the

Municipal Court in Brno seeking the annulment of Ҥ 3 par. 4 of Act no.

236/1995 Coll., as amended by Act no. 418/2009 Coll., as regards judges,

the first part of Article I. of Act no. 418/2009 Coll., which amends

Act no. 236/1995 Coll., on the Pay and Other Benefits Connected with the

Office of State Authorities and Certain State Bodies and Judges and

European Parliament Representatives, as amended by later regulations,

and Act no. 201/1997 Coll., on the Pay and Other Benefits Connected with

the Office of State Authorities and amending and supplementing Act no.

143/1992 Coll., on Pay and Compensation for Being On Call for Work in

Budgetary Organizations and Certain Other Organizations and Bodies, as

amended by later regulations, as regards judges.”. Joined to this

petition was a petition for priority treatment of the petition under §

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

Act no. 48/2002 Coll.

 

2.

The petitioner stated that it is handling a complaint, file no. 33 C

18/2010, in which a judge of the Municipal Court in Brno seeks from the

Czech Republic, through the Municipal Court in Brno, payment of CZK

2,596. Legally speaking, this is a claim for pay under § 28 to 31 of Act

no. 236/1995 Coll., on the Pay and Other Benefits Connected with the

Office of State Authorities and Certain State Bodies and Judges and

European Parliament Representatives, as amended by later regulations,

(also referred to as “Act no. 236/1995 Coll.”). The claims in the

complaint are that he was not paid for January 2010 the full pay to

which he would have been entitled had judges’ pay not been reduced by

the first part of Article I of Act no. 418/2009 Coll. The contested

provisions led to the fact that the level of a judge’s pay in the period

from 1 January 2010 to 31 December is 96% of the pay under Act no.

236/1995 Coll. and under Art. XLVIII of Act no. 261/2007 Coll., on

Stabilization of Public Budgets. As a result, judges’ pay for 2010 was

reduced by 4%. In addressing the matter, i.e. when handling the dispute

cited in article I. of the petition, the petitioner concluded, in

accordance with Art. 95 par. 2 of the Constitution of the Czech Republic

(the “Constitution”) that the provisions cited in the requested

judgment, which lead to a reduction in pay from 1 January 2010 to 31

December 2010, and which are to be applied in resolving this dispute,

are inconsistent with Art. 1 par. 1 in connection with Art. 82 par. 1 of

the Constitution, or with Art. 2 par. 1, and also with Art. 1 of the

Charter of Fundamental Rights and Freedoms. Therefore, the petitioner

filed a petition under § 64 par. 3 of the Act on the Constitutional

Court, as amended by later regulations, (the “Act on the Constitutional

Court”), seeking the annulment of the contested provisions.

 

3.

In the petition, the petitioner firstly raised objections concerning

defects in the legislative process, presented general constitutional law

arguments, constitutional law arguments for evaluating the particular

matter, presented economic arguments, and described the history of pay

restrictions for judges.

 

4.

The petitioner claimed that the prerequisites for the Chairman of the

Chamber of Deputies to declare a state of legislative emergency,

provided in § 99 of Act no. 90/1995 Coll., on the Rules of Procedure of

the Chamber of Deputies, as amended by later regulations, (the “Rules of

Procedure”), had not been met. It described the procedure that preceded

the declaration of a state of legislative emergency, and paraphrased

the content of resolution of the government of the Czech Republic of 21

September 2009, no. 1 231, decision of the Chairman of the Chamber of

Deputies, no. 58 of 21 September 2009 and the content of the background

report to the Act, which was subsequently adopted as no. 418/2009 Coll.

It concluded – unlike the government and the Chairman of the Chamber of

Deputies – that there was no situation of danger of considerable

economic damage to the state under § 99 par. 1 of the Rules of

Procedure, for which it gave economic grounds, consisting primarily of

the fact that “the amount saved is 0.008% of state budget spending,” and

thus, in its opinion, in this case the declaration of legislative

emergency was misused in order to circumvent the regular legislative

process, because such a relatively small expected saving in state budget

spending could not meet the requirement of danger of “considerable” the

economic damage.

 

5.

In its general constitutional law arguments, the petitioner pointed to

the Constitutional Court’s case law concerning restriction of the pay of

judges, in particular judgments file no. Pl. ÚS 13/99 of 15 September

1999 (N 125/15 SbNU 191; 233/1999 Coll.), Pl. ÚS 18/99 of 3 July 2000 (N

104/19 SbNU 3; 320/2000 Coll.), Pl. ÚS 16/2000 of 3 July 2000 (N 105/19

SbNU 23; 321/2000 Coll.), Pl. ÚS 11/02 of 11 June 2003 (N 87/30 SbNU

309; 198/2003 Coll.), Pl. ÚS 9/05 of 14 July 2005 (N 140/38 SbNU 81;

356/2005 Coll.), Pl. ÚS 34/04 of 14 July 2005 (N 138/38 SbNU 31;

355/2005 Coll.), and Pl. ÚS 43/04 of 14 July 2005 (N 139/38 SbNU 59;

354/2005 Coll.), as well as, in its opinion, the essential statements of

law made in these judgments.

 

6.

In the constitutional law arguments presented for the evaluation of

this matter, the petitioner emphasized, in particular, that, in contrast

to the original intent of the sponsor of the contested Act, there was

no reduction in pay for other persons who are paid from public funds,

which resulted in a situation where the only group that is paid from the

state budget whose pay was reduced as of 1 January 2010 are the

constitutional authorities specified in Act no. 236/1995 Coll. and state

prosecutors. Reducing the pay for this limited group of persons grossly

violates the principle of proportionality, which is especially marked

in relation to judges, not to mention the further fact that in this

situation the financial savings in state budget spending is quite

negligible. Reducing judges’ pay by 4% for the year 2010 in a situation

where only a very limited group of persons was affected by this

reduction departs from the framework of extraordinary and completely

exceptional measures adopted to solve a difficult situation that the

state is in. The legislature has been intervening in judges’ pay by

removing so-called since 1997; it has frozen pay increases regularly

since 2002. Such measures cease to be exceptional or extraordinary,

qualities which the Constitutional Court has emphasized as legitimate in

connection with addressing the consequences of extraordinary events,

such as, for example, the extensive floods in 2002. In the petitioner’s

opinion, exceptional circumstances that would justify intervention in

judges’ pay have not arisen. Finally, the petitioner recapitulated the

history of freezing judges’ pay since 2002 and pointed out that a

legislative process has already begin that would restrict judges’ pay

from 2011 into the future.

 

7.

In its economic arguments, the petitioner emphasized that regulation of

the same relationships in professional categories that are not the same

is clearly illegitimate interference. The petitioner stated that

judges’ pay is increased only if there is an increase in the average

nominal monthly wage of individuals in the non-entrepreneurial sphere,

according to published data from the Czech Statistical Office for the

calendar year two years previous to the current one. In other words, if

the average nominal wage in the non-entrepreneurial sphere does not

increase, salaries under Act no. 236/1995 Coll. cannot be adjusted. That

indicates that judges’ pay is not in an economic vacuum, but that their

salaries are directly connected to the growth of average wages in the

non-business sphere, in other words in the sphere of employees

predominantly paid from public funds. Therefore, the adjustment

principle in Act no. 236/1995 Coll. can be applied only if the average

wage in the non-entrepreneurial sphere increases. However, such an

increase in average wage is largely in the hands of the legislature.

 

8.

The petitioner then closed by saying that, in view of the foregoing, it

concluded that the provisions stated in the requested judgment, which

are to be applied in resolving the dispute, are inconsistent with Art. 1

par. 1 in connection with Art. 82 par. 1 of the Constitution, or with

Art. 2 par., and also with Art. 1 of the Charter of Fundamental Rights

and Freedoms.

 

9.

In a filing that the Constitutional Court received on 18 August 2010

the petitioner added to its arguments the claim that the legislature’s

interference through the contested legal regulation is unsystematic and

violates the principles of equality and proportionality.


 

II. Conduct of the Proceeding and Recapitulation of the Statements from the Parties

 

10.

In accordance with § 69 of the Act on the Constitutional Court, the

Constitutional Court called on the Chamber of Deputies of the Parliament

of the Czech Republic (the “Chamber of Deputies”) and the Senate of the

Parliament of the Czech Republic (the “Senate”) to respond to the

petition.

 

11.

The Chamber of Deputies, through its Chairman, Ing. Miloslav Vlček,

stated that the bill subsequently adopted as Act no. 418/2009 Coll. was

presented to the Chamber of Deputies by the government on 21 September

2009 as Chamber of Deputies publication 920. The Prime Minister proposed

that the Chairman of the Chamber of Deputies, in accordance with § 99

par. 1 of the Rules of Procedure, declare a state of legislative

emergency for discussion of the bill on the grounds of extraordinary

circumstances, where the state is in danger of considerable economic

damage, and that, under § 99 par. 2 of the Rules of Procedure, the bill

be discussed in shortened debate within the framework of legislative

emergency. On the basis of that request, the Chairman of the Chamber of

Deputies, in decision no. 58 of 21 September 2009, a state of

legislative emergency for the period from 21 September 2009 to 30

September 2009. In connection with declaring a state of legislative

emergency, the Chairman of the Chamber of Deputies issued decision no.

59 of 21 September 2009, in which he decided that Chamber of Deputies

publication 920 would be discussed, under § 99 par. 2 of the Rules of

Procedure, in shortened debate, assigned Chamber of Deputies publication

920 to the Budget Committee for discussion, and gave it a

non-extendable deadline to submit a resolution by 23 September 2009 at

midnight. The Budget Committee discussed Chamber of Deputies publication

920 on 23 September 2009, recommended to the Chamber of Deputies that

it discuss it by 25 September 2009 at 4:00 p.m., that it discuss it in

general debate and not discuss any part of it in detailed debate.

Pursuant to § 99 par. 4 of the Rules of Procedure, the Chamber of

Deputies, before discussing the draft agenda for its 63rd session in its

5th electoral term, in vote no. 2 confirmed the continuing state of

legislative emergency for the discussion of Chamber of Deputies

publication 920, out of 191 deputies present, 182 deputies were in

favor, and none against. The Chamber of Deputies, pursuant to § 99 par. 5

of the Rules of Procedure, in vote no. 8, stated that with Chamber of

Deputies publication 920 conditions still existed for discussing the

government bill in shortened debate; out of 155 deputies present, 140

were in favor and 1 against. The statement provides the position that

the Chamber of Deputies discussed the bill in a state of legislative

emergency, and observed the statutory conditions. In Chamber of Deputies

publication 920, the government stated that the proposed legal

framework conforms to the constitutional order and legal order of the

Czech Republic and does not conflict with any international treaties by

which the Czech Republic is bound. The European Union leaves judges’ pay

to domestic legislation. The Budget Committee recommended that the

Chamber of Deputies approve Chamber of Deputies publication 920 without

notes. In the second reading of Chamber of Deputies publication 920

deputies B. Sobotka and O. Liška submitted an amending proposal, which

did not concern judges’ pay. In the third reading of Chamber of Deputies

publication 920, the bill was approved by 182 votes in favor and 2

votes against, out of 188 deputies present. The Chamber of Deputies

discussed the bill again at its 64th session after the Senate returned

the bill to the Chamber of Deputies with amending proposals, which did

not concern the contested provisions. The Chamber of Deputies approved

the bill again in the version that was passed to the Senate, with 142

votes in favor and 3 votes against, out of 161 deputies present. The

President signed the Act on 13 November 2009, and it was promulgated in

the Collection of Laws as no. 418/2009 Coll. In closing, the statement

says that the legislative assembly acted in the belief that the adopted

Act is consistent with the Constitution and our legal order. It is up to

the Constitutional Court to review the constitutionality of the

contested provisions and issue the appropriate decision.

 

12.

The Senate, through its Chairman, MUDr. Přemysl Sobotka, stated that

after being approved in the Chamber of Deputies, the bill was delivered

to the Senate on 25 September 2009, and was discussed as Senate

publication no. 173, concurrently with Senate publication no. 172, which

was a bill amending certain Acts in connection with the Act on the

state budget of the Czech Republic for 2010. Senate publication no. 173

was discussed in two committees, the Constitutional Law Committee, which

was the guarantee committee, and in the Committee for the Economy,

Agriculture, and Transportation. The Senate’s statement describes the

discussion in the committees in detail; the Constitutional Law Committee

discussed judges’ pay, responding to the opposed position of the

Judges’ Union of the Czech Republic and a request from representatives

of the Judges’ Union of the Czech Republic in relation to certain

members of the committee, that judges be removed from the proposed

reduction in pay. The sponsor’s representatives also addressed these

questions, and after debate the majority opinion of the Constitutional

Law Committee was to not interfere in this matter in the legislation

submitted by the Chamber of Deputies and preserve the legislation

proposed by the government, based on the aim, in connection with the

urgent need to make savings, of saving 4% of funds for salaries in 2010

in the entire state sector. Amending proposals in the committee

addressed other matters. The Committee for the Economy, Agriculture, and

Transportation discussed the bill at its meeting on 5 October 2009, and

in its resolution no. 221 it recommended that the Senate approve the

bill in the version provided by the Chamber of Deputies. The Senate

discussed the bill at its 12th session on 5 October 2009, and after

debate it adopted resolution no. 290, by which it returned the bill to

the Chamber of Deputies, as amended by the adopted amending proposals

provided in the attachment; these were amending proposals that the

Constitutional-Legal Committee recommended for adoption of the bill. Out

of 65 senators present, 65 voted in favor of the resolution, and no one

was against. The Chamber of Deputies then on 4 November 2009 passed its

own draft, and on 27 November 2009 the Act was promulgated in the

Collection of Laws as number 418/2009 Coll. As regards the petitioner’s

objections that the requirements for declaring a state of legislative

emergency, in which a bill can be discussed in shortened debate, were

allegedly not met, these objections do not apply to the discussion of a

bill in the Senate. In its statement, the Senate adds that at the time

the bill was being discussed, it could not have expected that the

Chamber of Deputies would subsequently violate the principle of unity,

and could not subsequently take this change into consideration. The

statement concludes that it is fully up to the Constitutional Court to

review the constitutionality of the contested provisions and make a

ruling. In its position on the supplement to the petition, the Senate

pointed out that part of the petitioner’s argumentation was premature,

as, in the Senate’s opinion, it was connected more to aims de lege

ferenda.

 


III. The Text of the Contested Provisions

 

13. The contested provision of § 3 par. 4 of Act no. 236/1995, as amended by Act no. 418/2009 Coll., reads:

 “From

1 January to 31 December 2010 the pay of a deputy, representative,

judge, or member of the European Parliament is 96% of the pay set under

this Act and under Art. XLVIII of Act no. 261/2007 Coll.”.

 The

contested Article I of the first part of Act no. 418/2009 Coll., which

amends Act no. 236/1995 Coll., on the Pay and Other Benefits Connected

with the Office of State Authorities and Certain State Bodies and Judges

and European Parliament Representatives, as amended by later

regulations, and Act no. 201/1997 Coll., on the Pay and Certain Other

Benefits of State Attorneys and amending and supplementing Act no.

143/1992 Coll., on Pay and Compensation for Being On Call at Work in

State Budget Organizations and in Certain Other Organizations and

Bodies, as amended by later regulations, reads:

“In

§ 3 of Act no. 236/1995 Coll., on the Pay and Other Benefits Connected

with the Office of State Authorities and Certain State Bodies and Judges

and European Parliament Representatives, as amended by Act no. 425/2002

Coll., Act no. 309/2002 Coll., Act no. 427/2003 Coll., Act no. 626/2004

Coll. and Act no. 261/2007 Coll., paragraph 4 is added, which reads:

“(4)

From 1 January do 31 December 2010 the pay of a deputy, representative,

judge, or European Parliament representative is 96% of the pay under

this Act and under Art. XLVIII of Act no. 261/2007 Coll.”.”

 


IV.  Petitioner’s Active Standing

 

14.

Under Art. 95 par. 2 of the Constitution, if a court concludes that a

statute that is to be applied in resolving a matter is inconsistent with

the constitutional order, it shall submit the matter to the

Constitutional Court. More detail on this authorization is provided in §

64 par. 3 of the Act on the Constitutional Court, under which a court

may submit to the Constitutional Court a petition seeking the annulment

of a statute or its individual provisions. The prerequisite for

addressing such a petition on the merits is that Art. 95 par. 2 of the

Constitution must have been met, in the sense that this must be a

statute that is to be applied in resolving the matter, i.e. the statute,

or the provision, that is proposed to be annulled, is to be directly

applied by the petitioner in resolving the particular dispute. The

Constitutional Court found that this prerequisite had been met, because

the petitioner will review a complaint seeking the payment of CZK 2,596,

the difference between the pay that the plaintiff would have been

entitled to before the contested provisions were adopted and the pay

after the reduction implemented by the contested provisions.

 


V.  Constitutional Conformity of the Legislative Process

 

15.

In a proceeding on a petition to annul a statute or part thereof the

Constitutional Court reviews whether the contested regulation was

adopted and issued within the bounds of constitutionally provided

competence and in a constitutionally prescribed manner (§ 68 par. 2 of

the Act on the Constitutional Court). The petitioner contests the

constitutional conformity of the legislative process as regards the

discussion of the bill later adopted as Act no. 418/2009 Coll., during a

state of legislative emergency in the Chamber of Deputies. As regards

discussion in the Senate, the petitioner raises no objections regarding

the constitutional conformity of the legislative process. The

Constitutional Court verified that in the Senate the bill was not

discussed in shortened debate, and the Senate did not consider the

question of shortened debate at all.

 

16.

In view of these facts concerning the constitutional conformity of the

legislative process, the Constitutional Court further focused only on

the petitioner’s objections concerning the discussion of the bill in the

Chamber of Deputies. First, the Constitutional Court points out that in

Constitutional Court judgment file no. Pl. ÚS 7/03 (N 113/34 SbNU 165;

512/2004 Coll.) it stated that “if the legislative framework of the

legislative process, which is a component of simple law, is not an

expression of a constitutional principle, possible violation of it does

not establish grounds for derogation, in the meaning of § 68 par. 2 of

Act no. 182/1993 Coll., as amended by later regulations, due to failure

to observe the constitutionally prescribed manner of adoption of a

statute or other legal regulation.” The Constitutional Court was then

guided by that principle in other judgments, in particular file no. Pl.

ÚS 24/07 (N 26/48 SbNU 303; 88/2008 Coll.).

 

17.

In the presently adjudicated matter, first, we cannot fully agree with

the petitioner that the legislature should have balanced meeting the

requirements for declaring a state of legislative emergency, in the form

of the threatened considerable economic damage, with the bill of the

particular act that was to avert the danger of considerable economic

damage. A decision as to whether there is a danger of considerable

economic damage is not a decision on damage in the true sense of the

word, but arises from deliberations about wider political consequences. A

decision as to whether the state faces considerable economic damage

under under § 99 par. 1 of the Rules of Procedure need not contain an

evaluation of the extent to which the submitted bill is to avert or

reduce the danger of considerable economic damage, in a sort of analogy

to § 417 par. 1 of Act no. 40/1964 Coll., the Civil Code.

 

18.

In the adjudicated matter we cannot overlook the fact that in the

voting to confirm the state of legislative emergency a considerable

majority of deputies always voted in favor, that during discussion of

the bill in the Chamber of Deputies and its committees no distinct

minority was formed whose rights could be seen to have been abridged,

and in the voting in the third reading and the voting after the bill was

passed back by the Senate a considerable majority of deputies was in

favor. Thus, in this particular case, the Constitutional Court, keeping

in mind the principle of minimizing interference, agreed with the

position of the Chamber of Deputies that “it discussed the bill in a

state of legislative emergency and observed the statutory requirements.”


 

VI.  The Constitutional Court’s Legal Review

 

19. The petition is justified, as regards the claimed unconstitutionality of the contested provisions.

 

20.

The Constitutional Court has considered the issue of judges’ pay

several times in the past. It summarized its older case law in

Constitutional Court judgment file no. Pl. ÚS 55/05 (N 9/44 SbNU 103;

65/2007 Coll.), to which it also referred in its most recent judgment

concerning the issue of judges’ pay, file no. Pl. ÚS 13/08 (no. 104/2010

Coll.). As it is evident that this case law is familiar to the parties,

the Constitutional Court does not consider it necessary to summarize it

in detail again.

 

21.

The basic starting point for the further development of case law are

the theses stated in Constitutional Court judgment file no. Pl. ÚS

13/08: “in view of the principles of a democratic state governed by the

rule of law, the Constitutional Court could hardly approve of an action

by the legislature that would lead not to slowing the rate of growth of

judges’ pay, but to removal, even partial removal, of the level of

material security for judges already achieved. This is especially so if

it were shown that this fundamentally impermissible restriction affects

only or primarily the income of judges, and not the income of other

state “servants.” It is appropriate to expressly point out the

Constitutional Court’s conclusions in its judgment file no. Pl. ÚS

34/04.”. The related footnote no. 8 in that judgment reads: “As regards

the constitutionality of the subsequent statutory removal of part of the

pay of judges, to which a statutory entitlement was given before this

measure was adopted, we can draw the following basic, general theses:

-

reviewing the constitutionality of valid restrictions applicable to

judges for a particular year falls within the framework defined by the

principle of judicial independence,

-

the constitutional positions of judges, on the one hand, and

representatives of the legislative and executive branch, especially

state administration, on the other hand, differ, in view of the

principle of separation of powers and the principle of an independent

judiciary, from which follows the different discretion for the

legislature as regards pay restrictions on judges, in comparison with

the discretion for such restrictions 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, based on the principle of

proportionality, be justified by unusual circumstances, e.g. the state

being in a difficult financial situation, but even if this condition is

met the different functions of judges and representatives of the

legislative and executive branch, especially the state administration,

must be taken into account; such interference may not give rise to

concerns that it will limit the dignity of judges, e.g. that it is not

an expression of constitutionally impermissible pressure by the

legislative and executive branch on the judicial branch.

The

principle of an independent judiciary is one of the essential

requirements of a democratic state governed by the rule of law (Art. 9

par. 2 of the Constitution). The requirement of an independent judiciary

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

just, impartial and objective trial, and from ensuring the rights and

freedoms of individuals by a judge who is separate from the political

power. The independence of judges is guaranteed by guarantees of a

special legal status (these must include that they cannot be demoted,

recalled, or transferred), as well as by guarantees of organizational

and functional independence from bodies representing the legislative

and, especially, the executive branch, as well as separation of the

judiciary from the legislative and executive branches (by applying the

incompatibility principle). In terms of content, judicial independence

is ensured by the fact that judges are bound only by the law, i.e. by

ruling out any elements of subordination in judicial decision making.

The Constitutional Court comprehensively addressed the fundamental

components of the principle of an independent judiciary in judgment file

no. Pl. ÚS 7/02 (Collection of Decisions of the Constitutional Court,

volume 26, judgment no. 78; promulgated as no. 349/2002 Coll.).

Arbitrary

interference by the legislature in the area of the material security of

judges, including restrictions on pay, must be included in the sphere

that is protected by the principle of judicial independence for two

reasons. First, the independence of judges is conditioned on their moral

integrity and level of expertise, but it is also tied to appropriate

material security. The second reason for including a prohibition on

arbitrary interference in the material security of judges (restrictions

on pay) in the principle of judicial independence is to rule out the

possibility of pressure from the legislative branch, or the 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 ‘penalizing’ judges by the legislative and executive branch, and

thereby also to rule out forms of pressure on their decision making.”

 

22.

Chapter Four of the Constitution regulates the “judicial power.” Under

Art. 81 of the Constitution, the judicial power shall be exercised in

the name of the Republic by independent courts. Under Art. 82 par. 1 of

the Constitution, judges shall be independent in the performance of

their duties. Nobody may threaten their impartiality.

 

23.

Inter omnes constat, that the independence of courts, judges, and the

judicial branch contains a number of components, “systemic, political

and institutional conditions created for the exercise of a truly

independent judicial branch,” that is, administrative independence, and

“the independence and freedom from influence of each individual judge,

his ability to resist any (political, media, or civic pressure),” i.e.,

subjective independence (cf. also J. Jirsa, L. Vávra, K. Janek, P.

Meduna, Klíč k soudní síni. [The Key to the Courtroom] Prague 2006, p.

17). The judicial branch consists of the competence with which courts

are endowed, a community of persons who, after taking the oath of

office, took on the judicial function, traditionally described as the

“judicial corps” or the “judicial estate,” and, finally, each individual

judge. The attributes of judicial independence include dignity. “The

fact that the judiciary was heretofore seen only as a certain kind of

administration signals the deep lack of understanding of the unique

position of the judiciary in society. This view is incorrect, and often

led to various negative effects on courts and judges. It must be

emphasized that courts are unique state bodies that represent an

independent power, firmly defined by constitutional principles … This

must also be reflected in the social position of employees of the

judiciary, especially judges.” (cf. D. Burešová, Najít cestu ke skutečné

nezávislosti soudu [Finding a path to true judicial independence],

Socialistická zákonnost [Socialist Lawfulness] no. 3/1990, p. 121).

 

24.

Guarantees of judicial independence are conceived not as privileges for

judges, but for the benefit of those for the protection of whose rights

the courts were established. Some of these guarantees restrictively

limit judges to a certain degree, as compared to representatives of the

legislative and executive branches, or other “servants” of the state.

These guarantees include, e.g. the incompatibility of judicial office

with a number of political, entrepreneurial, or employment activities.

The judicial estate in the Czech Republic does not have an independent

representative body – unlike the majority of legal professions in the

service of justice in a wider sense (attorneys, notaries, court

executors). The judges’ union of the Czech Republic is not a

professional association or a public law entity, an interest-based

self-administering body that includes all members of the judicial

estate; it is merely a civil association, and membership in it is not

mandatory. Judges may not organize in unions, and are not subject to

labor law regulations concerning, e.g. collective bargaining, strikes,

etc.

 

25.

The contested provisions were adopted by the legislature in a one-sided

act, without audiendi alterae partis. The opportunity for the

representatives of the Judges’ Union of the Czech Republic to speak for

the judges’ estate – as the Senate’s statement indicates – was only of

the nature of a private recommendation. In terms of the opportunity to

relevantly express their will and defend themselves in the question of

pay, the judges found themselves in a worse position than other

professions for which implementation of pay restrictions was also being

considered, which led to the result that in the end they remained among

those whose pay the legislature was actually able to reduce. The

Constitutional Court concludes that in the event of exceptional

circumstances, e.g. the state being in a difficult financial situation,

judges should not be disadvantaged in this manner next time, and in

order for the legislature to be able to impose pay restrictions, it

should obtain a relevant statement from the representatives of the

judicial branch, which should become part of the background report.

 

26.

The Constitutional Court could not do otherwise than to agree with the

petitioner that “reducing pay only for a limited group of persons

grossly violates the principle of proportionality, which is especially

marked as regards judges, not to mention the further fact that the

financial savings in the state budget in this situation is quite

negligible.” At that time the Constitutional Court took into

consideration the fact that “a professional group whose opportunity to

earn income other than salaries is considerable restricted by law has

been taking part, long-term in the reduction of state budget deficits”

(cf. dissenting opinion of Judge Vlasta Formánková to judgment file no.

Pl. ÚS 13/08, available at http://nalus.usoud.cz ),

and it also could not overlook the following passage from the

dissenting opinion of Judge Eliška Wagnerová to judgment file no. Pl. ÚS

13/08: “Thus, reducing pay, just like freezing pay, was not general, it

did not affect any state employees. It seems to me that in recent years

an unfortunately disliked professional group – judges – which,

moreover, has an irreplaceably unique position in the constitutional

system, which arises from the function that judges fulfill, has become a

sort of hostage of politics, an instrument in its populist actions

which, however, as indicated above, have no real effect. Yet, the

relevant (official) authorities regularly keep silent about the fact

that the compensation for certain state employees may be a multiple of

judges’ pay, because their wages, unlike those of judges, need not

consist merely of fixed tariffs, but also other, either regularly

repeating amounts (personal assessment), and/or supplemented by one-time

amounts (bonuses).” The Constitutional Court also took into account the

arguments from the dissenting opinion of Judge Vladimír Kůrka to

judgment file no. Pl. ÚS 13/08, according to which, “it is worth

emphasizing, as the Constitutional Court has also repeatedly mentioned

[and as was stated in the Recommendation of the Committee of Ministers

of the Council of Europe (94) 12 of 13 October 1994], that “due working

conditions” include “ensuring the proportionality of the status and

compensation of judges, in view of the dignity of their profession and

their workload.” In this context, protection of the dignity of judges

can also be ensured by seeing to it that they will not be repeatedly and

on a long-term basis exposed to concentrated pressure form the

executive branch (or the legislative branch) for the gradual reduction

of their – heretofore guaranteed by law – material status and

corresponding social expectations; it does not suit the dignity of

judges for them, each time they lose a dispute with the executive branch

(which is a tradition, because they do not have any defenders), in the

context of a feeling of shame created by the media, in the role of

supplicants, to have to resort to the hope that the Constitutional Court

will help them.”

 

27.

In Constitutional Court judgment file no. Pl. ÚS 1/08 (N 91/49 SbNU

273; 251/2008 Coll.) the Constitutional Court adopted methods of legal

history, comparative legal studies, and legal philosophy, as aides to

legal studies. In this adjudicated matter we can also apply arguments

from the point of view of these disciplines.

 

28.

Art. III. part I. second sentence of the Constitution of the United

States of America, of 17 September 1787 states “The Judges, both of the

supreme and inferior Courts, shall hold their Offices during good

Behaviour, and shall, at stated Times, receive for their Services a

Compensation, which shall not be diminished during their Continuance in

Office.”

 

29.

In its judgment of 11 June 2003, file no. Pl. ÚS 11/02 (N 87/30 SbNU

309; 198/2003 Coll.), the Constitutional Court, in a similar context

stated that “… the salaries of judges, in a wider sense, should be a

stable, non-reducible value, not a variable factor, which one or another

government group re-calculates because it thinks that judge’s salaries

are too high compared to the salaries of state employees or compared to

the salaries of another professional group. In other words, if we can

accept the applicability of the principle of equality in the

abovementioned sense to the economically justified reduction of

everyone’s salaries, one cannot accept the equality of all the

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

salary level. Striving for such equality deviates from

constitutionality, it is a political aim that has no support in the

constitutionally understood principle of equality. This principle finds

its limits, in the material sense, in the statement that “identical

matters may not be arbitrarily regulated in a non-identical manner, but

at the same time non-identical matters may not be arbitrarily regulated

identically.” The principle of equality cannot be understood as a

leveling in results, but it must be interpreted as a guaranteed of equal

sporting chances.”

 

30.

The Constitutional Court states that it is evident, just from the

frequency of its case law mentioned above, that judges’ salaries, unlike

the salaries of other “state servants,” have, for a long time, even

with the following intended perspective, been subject only to

restrictions. The measures concerning them then no longer seem

exceptional and proportional, but appear to be a targeted process aimed

at returning judges’ salaries to lower levels, and thus removing the,

from the point of view of the legislative and executive branches,

“error” in setting the rules for calculating judges pay, previously

committed in the mid-1990s. The consequences of such leveling

necessarily lead to reducing the status of judges in the social middle

class, degradation of its compensation in relation to other legal

professions, and diminution of its necessary social prestige.

 

31.

“I think it is not necessary to prove that our judiciary is in crisis.

Our republic pays so little attention to its judiciary that it has been

in heavy crisis for a number of years. Immediately after the overthrow,

our public, particularly our legislators, considered it obvious that the

authority and independence of the judiciary must be defended and

fortified using all means. But, said in Slovak: the republic does not

treat either the judge or the political official equally,” wrote the

then-first president of the Supreme Court of the Czechoslovak Republic,

later professor of civil law, minister of justice, and post-war

Czechoslovak representative at the Permanent International Court in the

Hague Vladimír Fajnor (1875–1952) in 1933 (cf. V. Fajnor, Reforma

súdnictva [Reform of the Judiciary]. Právný obzor [Legal Horizon] no.

11/1933, p. 361). The Constitutional Court adds to this, that the

legislature should also not overlook legal ethical aspects when ruling

out arbitrariness.

 

32. In resolution file no. Pl. ÚS 13/10 of 27 May 2010 (available at http://nalus.usoud.cz )

the Constitutional Court stated: “For too long we had a system of

government by one party, in which even the judiciary belonged to that

party. This view of the judiciary survives in many minds even today. The

idea still survives of a judge not as a representative of the judicial

branch, but as a state official, loyal to the state, dependent on the

state, and paid by the state as the whim of the governing group decides …

The independence and impartiality of the judiciary … is not its

privilege, but is a necessary prerequisite for it to function for the

good of the entire society, in particular in “uncomfortable” times.”

 

33.

For the abovementioned reasons, the Constitutional Court concluded that

the requirements for reducing the pay of judges were not met in this

matter, and in the context of its case law cited above, it concluded

that the contested provision is inconsistent with Art. 1 par. 1 in

connection with Art. 81 and Art. 82 par. 1 of the Constitution,

wherefore it ruled, under § 70 par. 1 of the Act on the Constitutional

Court, that this provision is annulled as of 30 September 2010.