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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
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.”