Pl US 11/02
                               


If the Constitutional Court, a constitutional body, that is,  a
public  authority,  is not itself to act arbitrarily,  it  must
feel  itself  to  be  bound  by  its  own  decisions,  and  its
jurisprudence   may   depart  therefrom  only   under   certain
circumstances.  Since the Constitutional Court, rather it above
all,  is  obliged  to respect the bounds of the  constitutional
state,  in  which  arbitrary conduct by public  authorities  is
strictly forbidden, the Constitutional Court is also subject to
the  prohibition on arbitrary conduct.  The above postulate can
also  be  seen as an essential attribute of a democratic  state
governed  by  the rule of law. (Art. 1 para. 1  in  conjunction
with Art. 9 para. 2 of the Czech Constitution).
   The first circumstance in which the Constitutional Court may
depart from its own jurisprudence is a change of the social and
economic relations in the country, a change in their structure,
or  a  change in the society's cultural conceptions.  A further
circumstance  is  a  change or shift in the  legal  environment
formed  by  sub-constitutional  legal  norms  which  in   their
entirety influence the examination of constitutional principles
and  maxims without, of course, deviating from them but,  above
all,  not  restricting  the principle of the  democratic  state
governed  by  the  rule of law (Art. 1 para.  1  of  the  Czech
Constitution).  A further circumstance allowing for changes  in
the Constitutional Court's jurisprudence is a change in, or  an
addition  to, those legal norms and principles which  form  for
the  Constitutional Court its binding frame of reference,  that
is,   those   which  are  contained  in  the  Czech  Republic's
constitutional order, assuming, of course, that it is not  such
a  change as would conflict with the limits laid down by Art. 9
para.  2  of  the  Czech Constitution, that is,  they  are  not
changes  in  the  essential attributes of  a  democratic  state
governed by the rule of law.
  Pay relations of judges in the wider sense should be a stable
non-reducible  quantity, not a shifting factor with  which  the
governmental  grouping of the moment can engage in  trade-offs,
for  example, because they consider judges' salaries to be  too
high  in comparison with the salaries of state employees or  of
other professional groups.  In other words, if it is acceptable
for  the  principle of equality to apply in the sense mentioned
above   as   regards  an  exceptional,  economically  justified
reduction  in  salary  for  all, the  equality  of  all  above-
mentioned  groups as regards the final salary level  cannot  be
accepted (not even as a target category).  The striving  toward
such equality departs from the bounds of constitutionality;  it
is   a   political   aim  which  finds  no   support   in   the
constitutionally  conceived  principle  of  equality.   In  its
material  sense,  this  principle  finds  its  bounds  in   the
expression,  "similar things should not be arbitrarily  subject
to  different  rules,  but also unequal things  should  not  be
arbitrarily  subject  to  the same rules".   The  principle  of
equality  cannot be conceived of as the leveling  of  outcomes,
for  it  must  be interpreted as a guarantee of  equal  initial
opportunity.   The  legislature  evidently  did  not,  however,
respect  the  principle  of equality  as  interpreted  in  this
manner.


The  Constitutional Court Plenum decided 11 June  2003  on  the
petition proposing the annulment of the word "judges" from 1 of
Act  No.  416/2001 Coll., on the Withdrawal of  the  Additional
Salary  Payment for the Second Half of 2001 and the Designation
of the Level of the Additional Salary Payment for the First and
Second  Halves of 2002 in relation to Representatives of  State
Power and of certain State Bodies, Judges, State Attorneys, and
Members   of   the  Presidium  of  the  Securities  Commission,
Representatives of the Public Protector of Rights, and  Members
of the Bank Council of the Czech National Bank as follows:
   The  word "judges" in § 1 of Act No. 416/2001 Coll., on  the
Withdrawal of the Additional Salary Payment for the Second Half
of  2001  and  the Designation of the Level of  the  Additional
Salary  Payment  for the First and Second  Halves  of  2002  in
relation to Representatives of State Power and of certain State
Bodies,  Judges, State Attorneys, and Members of the  Presidium
of  the  Securities Commission, Representatives of  the  Public
Protector  of  Rights, and Members of the Bank Council  of  the
Czech  National Bank, is annulled due on the day this  judgment
is published in the Collection of Laws.


                           REASONING

I.
On  8  April  2002,  the Chairwoman of Panel  13  of  the  Brno
Municipal Court, submitted, pursuant to Art. 95 para.2  of  the
Constitution, in the version in effect until 31 May 2002, and §
64  para.  4  of  Act No. 182/1993 Coll., on the Constitutional
Court, (as of 1 January 2003, this provision is contained in 64
para.  3  of  this Act, hereinafter "Act on the  Constitutional
Court"),  a  petition  proposing the  annulment  of  the  word,
"judges", from § 1 of Act No. 416/2001 Coll., on the Withdrawal
of  the  Additional Salary Payment for the Second Half of  2001
and  the  Designation  of the Level of  the  Additional  Salary
Payment for the First and Second Halves of 2002 in relation  to
Representatives  of  State Power and of certain  State  Bodies,
Judges,  State Attorneys, and Members of the Presidium  of  the
Securities Commission, Representatives of the Public  Protector
of  Rights,  and  Members  of the Bank  Council  of  the  Czech
National  Bank.  That submission was connected to a  proceeding
on a complaint submitted by a judge of the Brno Municipal Court
against  the  Czech  Republic – Brno Municipal  Court  for  the
payment of an additional salary payment for the second half  of
2001  in the amount of 53 100 Kc and for reimbursement of costs
of  the proceeding before the Brno Municipal Court, file no. 13
C  27/2002.  As a consequence of the above-mentioned  provision
of  Act  No. 416/2001 Coll., the complainant was not  paid  the
additional salary for the second half of 2001 in the amount  to
which  he  is  entitled under § 4 para. 2 of Act  No.  236/1995
Coll, on the Salary and further Requirements connected with the
Holding  of  Office as a Representative of State  Power  or  of
Certain  State  Bodies,  or  a  Judge,  as  amended.   In  that
proceeding the Chairwoman came to the conclusion that the above-
cited  provision  of Act No. 416/2001 Coll.,  which  should  be
applied  in  the resolution of the matter, is in conflict  with
Art.  1  of  the Constitution of the Czech Republic  (currently
Art.   1   para.  1  following  the  amendment  introduced   by
Constitutional  Act  No.  395/2001 Coll.,  which  entered  into
effect  on  1 June 2002) and Art. 2 para. 1 of the  Charter  of
Fundamental   Rights  and  Basic  Freedoms  (hereinafter   "the
Charter"),  as  it represents a considerable encroachment  upon
judicial  independence guaranteed by Art. 82  para.  1  of  the
Constitution  of  the  Czech Republic.   She  stated  that  the
Constitutional Court had already come to the same conclusion in
its  judgment  of 15 September 1999, published as No.  233/1999
Coll.  (file  no.  Pl. US 13/99, Collection  of  Judgments  and
Rulings  of  the  Constitutional Court, Vol.  15,  p.  191  and
following), in which the Court annulled the word, "judges" from
§  1  of  Act  No.  268/1998 Coll., on the  Withdrawal  of  the
Additional  Salary  Payment for the Second  Half  of  1998  for
Representatives  of  State Power and of certain  State  Bodies,
Judges,  State Attorneys, and Members of the Presidium  of  the
Securities  Commission, and announced the  proposition  of  law
that the deprivation of additional pay constitutes a threat  to
the  principle  of  judicial  independence.   Although  in  two
subsequent judgments, announced on 3 July 2000 and published as
No.  320/2000  Coll. and No. 321/2000 Coll. (file  no.  Pl.  US
18/99  and  Pl.  US  16/2000, the Collection of  Judgments  and
Rulings  of  the Constitutional Court, Vol. 19,  at  p.  3  and
following,  and  at p. 23 and following), it  refused,  on  the
merits,  the  petition  proposing  the  annulment  of  Act  No.
287/1997  Coll., which supplements Act No. 236/1995  Coll.,  on
the Salary and other Requirements connected with the Holding of
Office  by Representatives of State Power and of Certain  State
Bodies,  and  by Judges, as amended by Act No. 138/1996  Coll.,
and  the  word, "judges", in § 1 of Act No. 308/1999 Coll.,  on
the  Withdrawal of the Additional Salary Payment for the Second
Half  of  1999  and  the Second Half of  2000  in  relation  to
Representatives  of  State Power and of certain  State  Bodies,
Judges,  State Attorneys, and Members of the Presidium  of  the
Securities  Commission, still it announced the  proposition  of
law that the removal of salary from judges is possible only  in
exceptional and isolated cases.

II.
At  the  Constitutional Court's request, the  Chairman  of  the
Assembly of Deputies of the Czech Parliament, Prof. Ing. Vaclav
Klaus,  CSc.,  and  the Chairman of the  Senate  of  the  Czech
Parliament,  Doc. JUDr. Petr Pithart, gave their views  on  the
petition  pursuant  to  §  69  para.  1  of  the  Act  on   the
Constitutional Court.
. . . .

III.
The  Constitutional Court proceeded in this case in  accordance
with § 68 of Act No. 182/1993 Coll.  Since no grounds have been
adduced  for rejecting the petition on preliminary  grounds  or
for  discontinuing the proceeding, the Court  verified  whether
Act  No. 416/2001 Coll. had been adopted and issued within  the
bounds  of the competence laid down in the Constitution and  in
the  constitutionally prescribed manner.  It  ascertained  that
the  contested  statute was duly debated  and  adopted  by  the
legislative   body,  signed  by  the  competent  constitutional
officials,   and  promulgated  in  the  Collection   of   Laws.
Accordingly,  there was nothing to prevent the adjudication  of
the contested statutory provisions in terms of their conformity
with the constitutional order of the Czech Republic.

IV.
The Constitutional Court has already dealt with the given issue
three times.
  In its 15 September 1999 judgment, file No. Pl. US 13/99, the
Constitutional  Court Plenum decided on the petition  submitted
by the Divisional Court for Prague 4 proposing the annulment of
Act  No.  268/1998 Coll., on the Withdrawal of  the  Additional
Salary  Payment for the Second Half of 1998 for Representatives
of  State  Power  and  of certain State Bodies,  Judges,  State
Attorneys,  and  Members  of the Presidium  of  the  Securities
Commission:
   "On the day this judgment is published in the Collection  of
Laws,  the  word,  "judges" shall be annulled  from  the  text,
‘Representatives  of  state power and certain  state  bodies,1)
judges,2)  state attorneys,3) and members of the  Presidium  of
the  Commission  for Securities4) shall not be  entitled  to  a
further  pay5) for the second half of 1998' in § 1 of  Act  No.
268/1998  Coll,  on  the  Withdrawal of the  Additional  Salary
Payment  for  the  Second Half of 1998 for  Representatives  of
State   Power  and  of  certain  State  Bodies,  Judges,  State
Attorneys,  and  Members  of the Presidium  of  the  Securities
Commission.   The remaining part of the petition proposing  the
annulment of Act No. 268/1998 Coll. is rejected on the merits."
The  judgment was published as No. 233/1999 Coll.  A  qualified
majority of the Plenum declared at the time that, although  the
contested statute did not have any retroactive effect, that is,
that  it  did not violate the prohibition on retroactivity  and
did  not  deny to entitled persons already acquired rights,  in
relation to judges its adoption represented a violation of  the
constitutionally guaranteed principle of judicial independence,
arising  from  the  system of the separation  of  powers  as  a
foundation of the democratic law-based state.  In this  regard,
the Constitutional Court made reference to the Constitution  of
the  United  States of America.  It was stated in the  judgment
that  the  principle of judicial independence  contains  within
itself  a  whole range of aspects, certain of which  are  of  a
material  character.   Among other things,  the  Constitutional
Court  also remarked that its decision affects only  judges  of
ordinary  court,  that is of district, regional,  and  superior
courts, the Supreme Court and the Supreme Administrative Court,
but  not  of  the Constitutional Court, as by Act No.  236/1995
Coll.,  they  are classified as "representatives"  and  not  as
"judges",  despite the fact that they exercise  judicial  power
and  that  Art. 82 para. 1 of the Constitution, concerning  the
independence of judges, applies to them as well.
   By  it  3  July  2000 judgment, file no. Pl. US  18/99,  the
Constitutional Court rejected on the merits the petition  filed
by  the Brno Municipal Court, which pursuant to § 35 para. 2 of
Act  No. 182/1993 Coll., was joined by the Divisional Court for
Prague  2  and  the Pilsen-City District Court,  proposing  the
annulment of Act No. 287/1997 Coll., which supplemented Act No.
236/1995  Coll.,  concerning Salary  and  further  Requirements
connected  with  the Holding of Office as a  Representative  of
State  Power or certain State Bodies or as a Judge, as  amended
by  Act No. 138/1996 Coll. (during the course of the proceeding
the  petit was properly amended to read more specifically as  a
proposal to annul § 4a of Act No. 236/1995 Coll., as amended by
Act  No.  287/1997  Coll., and the Prague 2 Divisional  Court's
petition  was  formulated even more precisely, to request  that
the  word, "judges", be deleted from the text, "Representatives
and  judges  shall  not  be entitled to  an  additional  salary
payment  for the second half of 1997").  The same petition  was
submitted  as  well  by  two judges of the  District  Court  in
Olomouc.   By its rulings of 24 August 2000, file  no.  Pl.  US
31/2000,  and of 19 October 2000, file no. Pl. US 30/2000,  the
Constitutional  Court  rejected both  as  inadmissible  because
barred  as  res  judicata (§ 35 para. 1  of  Act  No.  182/1993
Coll.).
   By its rulings of 25 April 2000 and 5 May 2000, file no. Pl.
US  13/2000  and  file no. Pl. US 18/2000,  the  Constitutional
Court  rejected as inadmissible because barred by litispendence
(§  35  para.  2  of the Act on the Constitutional  Court)  the
petitions  submitted by the Prague 2 Divisional Court  and  the
Pilsen-City District Court.  The Constitutional Court stated in
the  reasoning  of its 3 July 2000 judgment, file  no.  Pl.  US
18/99,   published  as  No.  320/2000  Coll.,   that   judicial
independence  represents  one  of  the  fundamental  democratic
values, and that without dispute material provision that judges
receive assists in securing it.  In particular, it is essential
that  some other state body not impinge upon judicial  pay,  in
whatever  form,  either arbitrarily or repeatedly.   In  accord
with  the  decisional practice of the European Court  of  Human
Rights,  the Constitutional Court focused on the issue  whether
the  denial of the 14th salary payment to ordinary court judges
was  laid  down  in  a statute, whether it was  directed  at  a
legitimate  goal, and whether it was necessary in a  democratic
society.   The Constitutional Court affirmed that the statutory
form of the impingement into recognized rights was met and  the
adopted  statute does not have retroactive effect, and remarked
that  the  legislative technique employed in this case,  namely
the  amendment  of  the original statute, was more  appropriate
then  a special and separate statute, as was the case in  other
matters,  but that this distinction was not important in  terms
of constitutional law.  As concerns the issue of the legitimacy
of  the  goal  toward which the withdrawal from  judges  of  an
additional  salary  payment  was directed,  the  Constitutional
Court stated that it cannot disregard the difficult social  and
economic  reality  in  which the Czech Republic  finds  itself.
Proceeding  from the assumption that ordinary court  judges  do
not  live  in isolation or in some sort of "legal and  economic
vacuum",  it  expressed  the view  that,  one  cannot  take  as
unchanging  dogma  judges' right to material provision  set  in
advance which cannot in any manner or under any circumstance be
modified  by  legislation,  even  though  the  principle  still
applies, as was declared in the Constitutional Court's previous
decision  (No.  233/1999 Coll.), that the state is  obliged  to
establish the prerequisites for the independence of courts  and
to  stabilize  their  position as against the  legislative  and
executive   powers.    In  the  given  matter,   however,   the
legislative impingement affected the material provision of  the
entire  public  sector, not just of courts, and to  judge  that
group dissimilarly, even though they are specially protected by
the  constitutional principle of independence, would constitute
for   them,   in   the   given  context,  scarcely   acceptable
preferential treatment.
   In  its  3  July  2000  judgment, sp. zn.  Pl.  US  16/2000,
published  as  No.  321/2000 Coll.,  the  Constitutional  Court
rejected  on  the  merits the Hradec Kralove  District  Court's
petition (which was joined with that of a secondary party,  the
Pilsen-City  District  Court) proposing the  annulment  of  the
word,  "judges",  from § 1 of Act No. 308/1999  Coll.,  on  the
Withdrawal of the Additional Salary Payment for the Second Half
of   1999   and  the  Second  Half  of  2000  in  relation   to
Representatives  of  State Power and of certain  State  Bodies,
Judges,  State Attorneys, and Members of the Presidium  of  the
Securities  Commission, which reads "Representatives  of  state
power and of certain state bodies, judges, state attorneys, and
members of the Presidium of the Securities Commission shall not
be  entitled  to  an additional salary payment either  for  the
second  half of 1999 or the second half of 2000."  In addition,
two  judges  of  the Olomouc District Court and judges  of  the
Ostrava District Court, of the Pilsen-City District Court,  and
of  the Brno Municipal Court, submitted the same petition.   In
its   5  May  2000  ruling,  file  no.  Pl.  US  18/2000,   the
Constitutional Court dismissed the Pilsen-City District Court's
petition as inadmissible because barred by res judicata  (§  35
para  2  of  the  Act on the Constitutional Court).   The  four
remaining  petitions  were also dismissed  as  inadmissible  as
barred  by  res  judicata  (§ 35 para  2  of  the  Act  on  the
Constitutional  Court) by Constitutional Court rulings,  of  24
August 2000, file no. Pl. US 31/2000, of 19 October 2000,  file
no.  Pl.  US  30/2000, of 1 September 2000,  file  no.  Pl.  US
32/2000, and of 26 October 2000, file no. Pl. US 27/2000.
    After   consideration  of  the  petition   and   when   the
Constitutional  Court voted upon it, the  conception  that  was
applied   in  the  judgment  published  as  No.  321/2000   Sb,
(according  to  which  where a legislative  approach  generally
affected  the  material provision of the  public  sector  as  a
whole, to judge specially only one group of persons paid by the
state,  judges,  even  though the enjoy the  higher  degree  of
protection   conferred  by  the  constitutional  principle   of
independence, would constitute scarcely acceptable preferential
treatment)  prevailed over that which was asserted in  judgment
No.  233/1999  Coll., (proceeding from the view  that  to  deny
judges further pay devalues one of the basic democratic values,
namely  judicial  independence, and represents an  encroachment
upon  the  inherent  right of judges, as a guarantee  of  their
independence  and  of legal certainty, that their  pay  not  be
diminished).   On  the  other  hand  the  Constitutional  Court
distanced itself from the view that judges' salary should be  a
factor  that  shifts according to the momentary conceptions  of
one governmental grouping or another.  It therefore looked upon
the  solution  used  in this case as an exceptional  act  which
could  be  acceptable  only  on serious  grounds  and  only  in
connection  with a regulation of salaries in the entire  sphere
of state representatives and employees that is proportionate on
the  whole.  It was solely in this overall connection that  the
impact of the State's financial difficulties can be allowed  to
affect  judges'  salaries as well.  It  is  precisely  in  such
circumstances  that to admit an exception  would  result  in  a
violation of the constitutional principle of equality,  on  the
basis  of  which  the  entire  field  of  state  employees  and
constitutional officials is subjected to this statutory scheme.
Judges'  salaries  are  governed by  Act  No.  236/1995  Coll.,
according  to  § 3 para 2 of which the salary is determined  as
the  product of a basis and a salary coefficient set  depending
on  the  level  of responsibility and demanding nature  of  the
duties  performed.   Under § 3 para  3,  the  basic  salary  is
understood  as  the entirety of the highest pay scale  and  the
maximum  amount  of personal bonuses as laid  down  by  special
enactment  for  employees  of the ministries.   The  amount  of
salary is then directly derived from the amount of pay received
by   employees   of  state  administrative  bodies   and   this
connectedness  of  salaries, if  it  is  once  adopted  as  the
principle  for the compensation of state employees,  should  be
observed  both in cases of the valorization of the  pay  scales
(for  example,  the  17% increase from  1  January  1999  which
resulted  in  a  pay  raise for all state officials  and  state
employees,  including judges) as well as when  restricting  the
amount of certain material perquisites.  In making its decision
the  Constitutional  Court showed respect for  the  Parliament,
which,  in  adopting  Act  No. 308/1999  Coll.,  exercised  its
legislative powers and, departing from what the state's  budget
and  its  economic situation allows for, included  also  judges
into  its belt-tightening measures.  It took the view  that  to
deny  them  a  further  salary  payment  cannot  threaten   the
independence  of  judges, especially due to the  fact  that  it
constituted  neither  a surprising nor a  deep  intrusion  into
their  material provision.  The independence of judges is  also
characterized  by  a  whole host of constitutional  guarantees,
such  as appointment to office for an unlimited period of  time
or  the prohibition of transferring or recalling judges against
their  will.   To  rank this merely partial change  in  judges'
material  provision  above  the other  attributes  of  judicial
independence could, on the other hand, diminish citizen's trust
in  independent  justice.  At the same time as  the  additional
salary  payment  was  taken  from judges,  it  was  taken  from
officials  in the executive and legislative branches  as  well,
thus preserving the balance of the classical conception of  the
separation of powers.  Moreover, no rational grounds exist  for
exempting  judges  from this general intrusion  by  the  state,
especially when by Government Orders No. 248/1998 Coll.,  which
modifies  Government  Order  No. 253/1992  Coll.,  on  the  Pay
Relations  of  Employees  of  State Administrative  Bodies,  of
certain  further Bodies and of Municipalities, as  subsequently
amended,  and  No.  126/2000 Coll., which  modifies  Government
Order No. 253/1992 Coll., on the Pay Relations of Employees  of
State  Administrative Bodies, of certain further Bodies and  of
Municipalities,  as  subsequently  amended,  decreases  in  the
additional  salary payments had already occurred for  employees
of  state administrative bodies, of certain further bodies  and
of municipalities.

V.
1.  After  the  Brno  Municipal Court  submitted  the  petition
currently  under consideration proposing the annulment  of  the
word,  "judges", in § 1 of Act No. 416/2001 Coll., in  addition
the  Prague 1 Divisional Court, the Prague 2 Divisional  Court,
the  Prague  5  Divisional Court, and the Prague-West  District
Court  also  submitted the same petition, thus they gained  the
status as secondary parties in this proceeding.  Pursuant to  §
43  para.  1, lit. e) and para. 2, lit. b) of the  Act  on  the
Constitutional  Court  (§  35  para.  2  of  the  Act  on   the
Constitutional Court), the Constitutional Court by its  rulings
(of  13  August 2002, 26 August 2002, 6 February 2003 a 27  May
2003,  file nos. Pl. US 13/02, Pl. US 18/02, Pl. US  3/03,  and
Pl. US 11/03) rejected these four petitions as inadmissible, as
the Constitutional Court already has the same matter before it.
   In  contrast  to  the  Brno Municipal Court,  which  in  its
petition  emphasized  encroachment upon judicial  independence,
these  other  courts objected also to the infringement  of  the
principles  of  the  prohibition  of  retroactivity   and   the
protection of acquired rights.
   So  far  as concerns the asserted retroactivity of  Act  No.
416/2001 Coll., which came into effect on 28 November 2001,  as
was  already stated in judgment No. 233/1999 Coll.,  concerning
Act  No. 268/1998 Coll., the statutory conditions for the right
to  a  further  paycheck to arise for the second half  of  1998
follow from § 4 para 2 of Act No. 236/1995 Coll., as amended by
Act No. 138/1996 Coll., namely either the actual performance of
duties  for a period of at least 90 calendar days in that  half
year  and  further the representative's continuance  in  office
until  30  November  1998  or,  for  a  judge,  continuance  in
employment  relations until 31 December 1998.   Thus,  entitled
persons  would only gain the right to a further salary  payment
upon the fulfillment of the last stated conditions, that is, at
the   earliest   on  30  November  1998,   in   the   case   of
representatives,  and  on 31 December  1998,  in  the  case  of
judges,  which in consequence means that the contested statute,
which  does  not  connect any legal effects with  any  sort  of
legally  relevant  facts occurring prior  to  its  coming  into
effect, does not operate retrospectively, and since, as  of  19
November 1998, the day it came into effect, nobody had acquired
an  individual right to a further salary payment, it could  not
have intruded upon any "acquired" rights.  The same was true of
Acts  No. 287/1997 Coll., which came into effect on 28 November
1997,  of No. 308/1999 Coll. (as far as concerns judges), which
entered  into force on 3 December 1999, as well as of  Act  No.
416/2001  Coll., which entered into force on 28 November  2001.
From  the  perspective  of  the temporal  effect  of  Acts  No.
287/1997  Coll.,  No. 268/1998 Coll., and No.  308/1999  Coll.,
which  withdraw  from the enumerated persons, judges  included,
the  further  salary payment only for the second  half  of  the
years 1997 through 2000, § 4 para 2 lit. a) of Act No. 236/1995
Coll., as amended by Act No. 138/1996 Coll., was of importance,
as  it  conditioned  the acquisition of a claim  to  a  further
salary  payment for the second half of the year, as was already
stated, in the case of representatives, upon the performance of
duties  until  30  November and, in the  case  of  judges,  the
continuance  of  employment relations until  31  December.   In
contrast,  Act  No.  416/2001 Coll., which withdraws  from  the
indicated persons a further salary payment not only in the full
amount  for  the second half of 2001, but also  for  both  half
years  of 2002 (but only one half of the payment for each  half
year),  lit.  b)  of  this statutory provision  plays  a  role,
according  to which the claim for an additional salary  payment
does  not  arise  in  the first half of the calendar  year  for
representatives who finish their duties before 31 May, and  for
judges whose employment relations terminate prior to 30 June.
   Act No. 416/2001 Coll. has no retroactive effect, so that it
cannot be criticized as an intrusion into acquired rights.  The
Constitutional  Court expressed its view  on  this  issue,  for
example, in its judgment of 28 February 1996, file no.  Pl.  US
9/95, published as No. 107/1996 Coll. and also reported in Vol.
5   of   the  Collection  of  Judgments  and  Rulings  of   the
Constitutional  Court,  on p. 107 and following,  in  which  it
rejected  on the merits a petition filed by a group of Deputies
proposing  the  annulment  of  Act  No.  34/1995  Coll.,  which
supplemented Act No. 76/1959 Coll., concerning certain  Service
Conditions for Soldiers, as subsequently amended, and  Act  No.
33/1995  Coll., which amends and supplements Act of  the  Czech
National   Council  No.  186/1992  Coll.,  concerning  Services
Relations  of  Members  of  the Czech Police,  as  subsequently
amended,  and  Act  No.  100/1970  Coll.,  concerning  Services
Relations  of  Members  of  the  National  Security  Corps,  as
subsequently  amended.   The  petitioners  asserted  in   their
petitions that the contested acts repealed acquired rights, for
they   withdrew   from  a  certain  group  of  citizens   their
statutorily  recognized  claims  to  service  contributions  or
claims   to  contributions  for  service.   According  to   the
Constitutional  Court,  one cannot  invoke  the  protection  of
acquired  rights  in relation to the removal or  diminution  of
those  benefits,  which mature only after the new  legal  rules
were  to  come  into  effect.  For even such  rights  to  enjoy
protection  would mean that it would never be possible  in  the
future to narrow them, regardless of, for example, the economic
situation of the state, etc.
   The Constitutional Court continues to adhere to its position
and  proceeds  on the basis of it even in this matter,  as  the
mentioned  benefits are comparable in character to the  further
pay under Act No. 236/1995 Coll. (the "13th and 14th pay").

2.   The Constitutional Court was further obliged to raise  the
issue  as  to  whether  the prerequisites exist  for  continued
adherence to the proposition of law which it announced  in  its
two most recent judgments concerning an analogous problem.
    First  and  foremost,  it  must  be  stated  that,  if  the
Constitutional Court, a constitutional body, that is  a  public
authority,  is  not  itself to act arbitrarily,  it  must  feel
itself  to be bound by its own decisions, and its jurisprudence
may  depart therefrom only under certain circumstances.   Since
the  Constitutional Court, rather it above all, is  obliged  to
respect  the  bounds  of  the constitutional  state,  in  which
arbitrary  conduct by public authorities is strictly forbidden,
the Constitutional Court is also subject to the prohibition  on
arbitrary conduct.  The above postulate can also be seen as  an
essential attribute of a democratic state governed by the  rule
of  law. (Art. 1 para. 1 in conjunction with Art. 9 para. 2  of
the Czech Constitution).
   The first circumstance in which the Constitutional Court may
depart from its own jurisprudence is a change of the social and
economic relations in the country, a change in their structure,
or  a  change in the society's cultural conceptions.  A further
circumstance  is  a  change or shift in the  legal  environment
formed  by  sub-constitutional  legal  norms  which  in   their
entirety influence the examination of constitutional principles
and  maxims without, of course, deviating from them but,  above
all,  not  restricting  the principle of the  democratic  state
governed  by  the  rule of law (Art. 1 para.  1  of  the  Czech
Constitution).  A further circumstance allowing for changes  in
the Constitutional Court's jurisprudence is a change in, or  an
addition  to, those legal norms and principles which  form  for
the  Constitutional Court its binding frame of reference,  that
is,   those   which  are  contained  in  the  Czech  Republic's
constitutional order, assuming, of course, that it is not  such
a  change as would conflict with the limits laid down by Art. 9
para.  2  of  the  Czech Constitution, that is,  they  are  not
changes  in  the  essential attributes of  a  democratic  state
governed by the rule of law.

3.  The Constitutional Court has taken the view that the matter
under consideration must be adjudged in the light of changes in
the   legal  order  which  have  occurred  since  the   Court's
announcement of its judgment in the matters Pl. US 16/2000  and
Pl.  US  18/99,  that is, since July, 2000 until  the  present.
Although  the  Constitutional Court was considering  a  statute
issued  in 2001, in its adjudication, it is bound by the  maxim
that  for  a court, and for the Constitutional Court  as  well,
what  is  decisive  is the state of affairs  at  the  time  the
decision (here the judgment) is announced.
   Sec. 34 para. 4 of Act No. 236/1995 Coll. was amended,  with
effect  from  1 January 2003, by Act No. 420/2002 Coll.,  which
Shortens  the Period during which State Officials and Officials
of  Certain State Bodies, Judges, and State Attorneys are  Paid
during  Temporary Incapacity to Carry Out the Duties and  which
lays down certain Measures in Sickness Insurance (Care) and  in
Pension Insurance.  The amendment provides that officials,  the
performance  of  whose  duty  is  governed  by  separate  legal
enactments  and by the Labor Code, and judges,  who  have  been
declared  temporarily incapable of carrying out  their  duties,
are  entitled  to pay for a period not to exceed 20  work  days
during the same incapacity to carry out their duties or, in the
case  of  repeated  temporary incapacity to carry  out  duties,
occurring in a single calendar year during the same period.  On
the  grounds and under the circumstances laid down in the first
sentence, other officials are entitled to pay for a period  not
to exceed 30 calendar days.
   Prior  to  the entry into effect of Act No. 420/2002  Coll.,
that  is  until  31  December 2002, § 34 para.  3  of  Act  No.
236/1995  Coll. provided that both state officials  and  judges
are  entitled  to pay regardless of the period of  time  during
which they are temporarily unable to carry out their duties and
during  which  they  would otherwise be entitled,  pursuant  to
separate legal enactments, to sickness insurance payments for a
6 month period.
   Act No. 425/2002 Coll., which lays down exceptional measures
for  2003  in  determining the level  of  pay  and  certain  of
expenses  connected  with the performance of  their  duties  by
state  officials and officials of certain state bodies,  judges
and  state  attorneys,  and  which  lays  down  the  level   of
additional  salary for these persons for the first  and  second
halves of 2003, entered into effect on 1 October 2002.  Section
1  of that Act provides that the level of base pay attained  as
of  31  December 2002 shall serve for determining the  pay  and
reimbursement  for expenses connected with the  performance  of
duties  in  2003  in relation to the enumerated  officials  and
judges.  As a consequence of the legal changes in the pay scale
and  additional personal payments implemented for employees  of
the ministries with effect following 31 December 2002, the base
pay  did  not rise in mentioned year.  Pursuant to § 2  of  the
Act,  the additional pay to which the same persons are entitled
in 2003 pursuant to special enactments is cut in half.  Sec.  3
excludes the application, during the period 1 January  2003  to
31  December 2003, of § 3 para. 3 of Act No. 236/1995 Coll., on
the Salary and other Requirements connected with the Holding of
Office  by  Representatives of State Power,  of  Certain  State
Bodies, and by Judges, as amended by Act No. 309/2002 Coll.
   At the same time, it is clear from the explanatory report on
the  bills  for  both  of  the above-mentioned  acts  that  the
proposers'  aim consisted in "the maintenance of  a  comparable
status  for  particular  groups"  of  persons,  that  is  state
employees, state officials, and judges, whereas those proposing
the statute considered the special status of judges, so far  as
the  level  of  compensation is concerned,  to  be  unjust  and
disproportionate.

4.   In  the Constitutional Court's view, the indicated changes
in  the  statutory framework relating to judges' pay  relations
has exceeded the constitutional limits for the acceptability of
an  "exceptional"  act  which results in  depriving  judges  of
further  pay,  in  the  way as defined  in  the  Constitutional
Court's  judgment No. Pl. US 16/2000, published as No. 321/2000
Coll., so that it was necessary to proceed on the basis of  the
argument of principle which the Constitutional Court elucidated
in  its  judgment No. Pl. US 13/99, published as  No.  233/1999
Coll.
   If  in  entirely exceptional circumstances the principle  of
equality may be accentuated in the area of restrictions in  the
compensation of state employees, constitutional officials,  and
judges  in  preference to the principle of the independence  of
judges as conceived in its entirety, the relation of these  two
principles does not apply generally, once and for all, and as a
given in all circumstances.  On the contrary, pay relations  of
judges  in  the  wider  sense should be a stable  non-reducible
quantity,  not  a  shifting factor with which the  governmental
grouping  of the moment can engage in trade-offs, for  example,
because  they  consider judges' salaries  to  be  too  high  in
comparison  with the salaries of state employees  or  of  other
professional  groups.  In other words, if it is acceptable  for
the principle of equality to apply in the sense mentioned above
as  regards an exceptional, economically justified reduction in
salary  for all, the equality of all above-mentioned groups  as
regards the final salary level cannot be accepted (not even  as
a  target category).  The striving toward such equality departs
from  the  bounds of constitutionality; it is a  political  aim
which  finds  no  support  in  the  constitutionally  conceived
principle  of equality.  In its material sense, this  principle
finds its bounds in the expression, "similar things should  not
be  arbitrarily  subject to different rules, but  also  unequal
things  should not be arbitrarily subject to the  same  rules".
The  principle  of  equality cannot  be  conceived  of  as  the
leveling of outcomes, for it must be interpreted as a guarantee
of  equal  initial opportunity.  The legislature evidently  did
not,  however, respect the principle of equality as interpreted
in this manner.
   The Constitutional Court adjudged the contested part of  the
statute from the just-mentioned perspective and has come to the
conclusion  that  it is in conflict with Art.  1  para.  1,  in
conjunction  with  Art.  82 para. 1 of the  Constitution,  from
which   flows  the  state's  duty  to  ensure  judges  material
independence,  as a guarantee of impartial and  fair  decision-
making  on the rights of persons.  It inferred a conflict  with
these constitutional provisions in adjudging the contested part
of  the  statute in the context of the above-stated  new  legal
framework,  which  in  its totality could represent  a  genuine
threat   to  judicial  independence,  with  all  the   negative
consequences  that  entails  for  the  protection  of  persons'
private  rights.  The Constitutional Court has further come  to
the  conclusion that the contested part of the  statute  is  in
conflict with Art. 1 para. 1 of the Charter, which provides for
equality in rights, as it deduced that, in the given case,  the
legislature utilized the same employment relations to  regulate
different professional categories, with the goal of approaching
toward  a  leveling  of  results, and the Constitutional  Court
viewed this goal as illegitimate.

VI.
In  light  of  the above-mentioned grounds, the  Constitutional
Court  has therefore decided, pursuant to § 70 para. 1  of  the
Act  on  the Constitutional Court, on the annulment, as of  the
day  this  judgment is published in the Collection of Laws,  of
the  word,  "judges" in § 1 of Act No. 416/2001 Coll.,  on  the
Withdrawal of the Additional Salary Payment for the Second Half
of  2001  and  the Designation of the Level of  the  Additional
Salary  Payment  for the First and Second  Halves  of  2002  in
relation to Representatives of State Power and of certain State
Bodies,  Judges, State Attorneys, and Members of the  Presidium
of  the  Securities Commission, Representatives of  the  Public
Protector  of  Rights, and Members of the Bank Council  of  the
Czech  National Bank, due to its conflict with Art. 1 para.  1,
in  conjunction  with Art. 82 para. 1 of the  Constitution  and
with Art. 1 para. 1 of the Charter.


Notice:  Constitutional Court decisions may not be appealed.

Brno, 11 June 2003


Dissenting opinion
of Constitutional Court Justices P.V. and M.V.
                               
We  voted against the annulment of the word, "judges" from §  1
of Act No. 416/2001 Coll., for the following reasons:
  1) We find no grounds which required the Constitutional Court
to depart from the proposition of law it stated in its judgment
published as No. 321/2000 Coll. in the same matter, that is, to
judge  specially only one group of persons paid by  the  state,
judges,  even though they enjoy the higher degree of protection
afforded by the constitutional principle of independence, would
constitute  scarcely acceptable preferential treatment  of  one
group.    The   failure  to  pay  them  an  additional   salary
installment  definitely  cannot threaten  the  independence  of
judges.   On the one hand, this is neither a surprising  nor  a
deep  intrusion  into  their  material  provision;  first   and
foremost,  however, the independence of the judicial status  is
sufficiently guaranteed by other institutes.  On the  contrary,
to  emphasize that the diminution of the financial compensation
for  the  performance of their duties can have an influence  on
judges'  independence, might give rise,  on  the  part  of  the
public,  to  justified doubts as to whether  the  judiciary  is
independent,  as  well  as concerning  the  basis  of  judicial
independence.   Summarily stated, we do  not  consider  that  a
restriction  on  compensation, applied equally to  all  persons
paid  from  public  funds,  can in any  way  give  grounds  for
concluding  that the compensation of judges has perhaps  become
the  subject of accidental or even intentional manipulation  on
the part of the executive or legislative branches.
   2) We consider the reasons the Constitutional Court gave for
departing  from its prior case-law, such as they are stated  in
the  judgment  of  11  June  2003,  to  be  unpersuasive.    In
particular,   we   consider  as  opportunistic   the   argument
concerning the statutory revisions which occurred subsequently,
that  is only after the adoption of the provisions reviewed  by
the  Constitutional  Court in this case.   While  a  subsequent
modification  of the material provision can hardly,  when  this
Court  engages  in  norm  control,  be  considered  as  factual
argumentation, in no way does that take away from the fact that
even now the provision for judges in case of illness are above-
standard.   In this part of the reasoning, argued primarily  on
the basis of the equality principle, the Court finds itself  in
a position where de facto it is demanding that judges be ranked
as  a privileged group, without providing persuasive reasons as
to why such a privileged status passes muster.
  3) In a whole host of its decisions, the Constitutional Court
reproached  the  ordinary  courts  that  they  approached   the
application  of  law  in a formalistic manner  and  that,  when
resolving concrete cases, they were not keeping an eye  on  the
consideration  that  the  resolution  reached  must   also   be
acceptable  from  the  perspective  of  generally  acknowledged
justice and decency (aequitas est mater exceptionis).   Now  it
has itself decided at variance with this maxim.
   4)   Apart from the above-stated arguments of principle,  we
consider  it necessary also to say that the judgment  does  not
provide  a  clear  response to the (by no means  insignificant)
question as to what the actual impact of this decision  is,  or
will  be.   There  is  no disputing the  fact  that  the  Court
invalidates  a legal enactment which, at the time of  judgment,
had already accomplished its purpose and would not lay down for
the future any further binding rules of conduct.  If a judgment
of  annulment  has  in  principle effects  ex  nunc,  then  (in
contrast to the majority) we cannot deduce from § 71 para. 4 of
Act  No. 182/1993 Coll., on the Constitutional Court, that  the
subsequent  duty of the state to pay out the "withheld"  salary
installment is a self-evident effect of the annulling judgment.

Brno, 11 June 2003


Dissenting opinion
of Constitutional Court Justice M.H.

I disagree with the 11 June 2003 decision of the Constitutional
Court Plenum that, on the day it is published in the Collection
of  Laws, the word, "judges", in § 1 of Act No. 416/2001 Coll.,
on  the  Withdrawal of the Additional Salary  Payment  for  the
Second  Half  of 2001 and the Designation of the Level  of  the
Additional  Salary Payment for the First and Second  Halves  of
2002  in  relation  to Representatives of State  Power  and  of
certain  State Bodies, Judges, State Attorneys, and Members  of
the Presidium of the Securities Commission, Representatives  of
the Public Protector of Rights, and Members of the Bank Council
of  the  Czech  National Bank, shall be annulled.  Accordingly,
pursuant  to § 14 of Act No. 182/1993 Coll., I write a separate
opinion in respect of it.
   The Constitutional Court has now decided for the fourth time
on the withdrawal from judges of additional salary payments.
   I  disagreed  with  the  holding of the  15  September  1999
judgment,  file  no. Pl. US 13/99, published  as  No.  233/1999
Coll., according to which the word, "judges" in § 1 of Act  No.
268/1998  Coll.,  on  the Withdrawal of the  Additional  Salary
Payment  for  the  Second Half of 1998 for  Representatives  of
State   Power  and  of  certain  State  Bodies,  Judges,  State
Attorneys,  and  Members  of the Presidium  of  the  Securities
Commission,   was  annulled  on  the  day  of  the   judgment's
publication  in  the  Collection of Laws, and  I  expressed  my
reservations in a separate opinion in respect of it, which  was
appended  to  the judgment and published also  on  p.  196  and
following of Vol. 15 of the Collection of Judgments and Rulings
of  the Constitutional Court.  I refer to them in this case  as
well.   By  its  3  July 2000 judgment, file no.  Pl.US  18/99,
published  as  No. 320/2000 Coll., the Court  rejected  on  the
merits  a petition proposing the annulment of § 4a of  Act  No.
236/1995  Coll.,  concerning Salary  and  further  Requirements
connected  with  the Holding of Office as a  Representative  of
State  Power or certain State Bodies or as a Judge, as  amended
by  Act  No.  287/1997 Coll., pursuant to which  an  additional
salary  installment for the second half of 1997 was not due  to
representatives of state power and judges, and by  it  judgment
of  the  same  day, file no. Pl. US 16/2000, published  as  No.
321/2000  Coll.,  the Court rejected on the merits  a  petition
proposing the annulment of the word, "judges" in § 1 of Act No.
308/1999  Coll.,  pursuant  to which representatives  of  state
power  and  various state bodies, judges, state  attorneys  and
members  of the Securities Commission were not entitled  to  an
additional  salary installment either for the  second  half  of
1999 or for the second half of 2000.
  I agreed with both of these decisions, as they found that the
legislature's   intrusion   into   the   sphere   of   judicial
compensation was reasonable from the perspective of the state's
economic  situation, was proportionate, and was  in  conformity
with the principle of equality.
  I am convinced that, in this case as well, the Constitutional
Court  should have dismissed the petition on the merits, as  it
is  no  different from the preceding matters.  The statutes  on
the   withdrawal  of  further  pay  installments  from   public
officials,  including judges, which have been  the  subject  of
proceedings before the Constitutional Court, cover  the  period
from 1997 until 2002 without interruption.  Parliament was  led
to   adopt  them  on  the  basis  of  the  same  reasons,   the
possibilities and situation of the state budget.  In my view it
did  so  within the bounds of the legislative powers which  the
Constitution endows it, without at the same time disturbing the
balance  between  the  legislative and the  judicial  branches.
There  is  nothing  to  indicate  either  that  the  Parliament
violated  the  principle of proportionality between  the  means
employed  and  the aim sought or that reasonable and  justified
grounds  were  lacking  for its adoption  of  the  statute.   A
democratic legislature is empowered by the Constitution to make
just  such interventions.  The sense for assessing and weighing
values as a criteria for its decision-making, in other cases  a
"powerful  weapon"  of the Constitutional Court,  has  misfired
this time.
   The belt-tightening measures applied as well to judges,  who
do  not  make  up  an  exclusive elite for  whom  societal  and
economic  reality  would  not  exist.   On  the  contrary,   in
observing  the principle of equality, they have both the  legal
and the moral duty to share together with others in the burdens
of economic restrictions.
  Whereas not even in its first judgment concerning this matter
did   the   Constitutional  Court  accept  the   objection   of
retroactivity and the deprivation of acquired rights,  focusing
its  reasoning  instead exclusively on the threat  to  judicial
independence, in this judgment it states as the grounds for its
decision of annulment, in the first place, changes in the legal
order  resulting from Acts No. 420/2002 Coll. and No.  425/2002
Coll.  and the worsening of the compensation scale for  judges,
which have occurred since June 2000, when the Court issued  its
two  judgments  denying petitions on the merits;  in  the  end,
however,  it  reiterated  the thesis  that  the  withdrawal  of
additional  salary  installments represents  a  threat  to  the
independence of judges.
   I  cannot  concur  with that view.  The  contested  Act  No.
416/2001  Coll., related to the period ending  on  31  December
2002,  after which it expired, whereas Acts No. 420/2002  Coll.
and  No.  425/2002 Coll. did not take effect  until  1  January
2003.   The  assertion that statutes which begin to  apply  and
form  legal  relations only as of 1 January 2003 can  influence
the  situation which existed up until 31 December 2002  is  not
compatible with my legal thinking.  I have always been  against
the privilege which accorded representatives of state power and
judges  claims  to  pay for a 6 month period  during  temporary
incapacity  to  carry  out their duties  as,  according  to  my
convictions,  there are not sufficient grounds,  nor  any  that
would  be  comprehensible  and  acceptable  for  society,   for
according some advantages over others.
    I disagree with the assertion that the Constitutional Court
is  now  faced  with  a different point  of  departure.   I  am
convinced  that  no  substantial  change  of  circumstance  has
occurred,  not even as the result of the temporary "freeze"  of
basic  salaries, and that the Constitutional Court has  decided
on the same matter as in the previous cases.
   The withdrawal of an additional salary installment threatens
neither  the  independence of judges in the true sense  of  the
word   nor  their  material  independence;  consequently,   the
conditions  for  their impartial and just decision-making  were
not  threated either.  In adopting Act No. 416/2001  Coll.,  by
which  it  intruded upon the pay scale as well of  judges,  the
Parliament violated no constitutional act, thus, pursuant to  §
70 para. 2 of the Act on the Constitutional Court, the petition
should have been rejected on the merits.  I expressed this view
when the vote was held.

Brno, 11 June 2003


Dissenting opinion
of Constitutional Court Justice V.G.

I  was  led  to  write  a separate opinion  for  the  following
reasons, in particular:
   1)  Constitutional Court jurisprudence in this matter is not
consistent.  I am of the view that the grounds upon  which  the
judgment  published  as  No. 321/2000 Coll.  rested,  have  not
changed in principle.
   2)  It is certain that the adequate material provision which
judges  receive serves as well as a guarantee of their judicial
independence.  However, without any doubt, to take away a  part
of  the  "additional" salary payment, cannot, in and of itself,
threaten  the  independence  of judges.   3)  Even  though  the
judicial profession is very distinctive, it cannot be made into
an  entirely  privileged group.  This state's current  economic
situation, particularly in the area of public finance,  compels
it  to  adopt many restrictions; in this respect, judges should
also  show solidarity with the other groups of employees  which
are affected by this restriction.
   4)  An  arrangement in which the removal  of  an  additional
salary  payment  (or a part thereof) is effected  nearly  every
year   by  means  of  a  separate  statute  can  certainly   be
criticized.   This practice should be changed as  it  does  not
contribute  to  the strengthening of the legal  (and  material)
certainty of those who are affected thereby.

Brno, 11 June 2003