CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ CZECH REPUBLIC BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS IN 2023 Court agreed with the Czech Constitutional Court that such reasons were not present in the case at hand. The retroactive payment of judges’ salaries would bring a significant and unforeseen interference with the state budget at a time of economic crisis, leading to tensions between judges and society. Moreover, the reduction in judges’ salaries was not such as to adversely affect their ability to exercise their profession independently and impartially or to jeopardise their livelihood. Although the calculation coefficient had been reduced, the average salaries of judges had nevertheless increased. The Court therefore concluded that there had been no violation of the applicants’ right to the protection of their property as protected by Article 1 of Protocol No. 1 to the Convention. However, the Strasbourg Court also made a critical remark about the Czech authorities’ action. It found it worrying that the legislature has long acted in a deliberately unconstitutional manner in the area of judges’ salaries that has also been noted by the Constitutional Court, which has repeatedly struck down interventions in the area of judges’ salaries for being contrary to the constitutional order. This appeal to the Czech government and legislature to act in accordance with the constitutional rules in the future is still very relevant a year later. In May of this year, the Constitutional Court considered three measures by which the legislature again introduced salary restrictions on judges for 2021, 2022, and 2024. 24 In two rulings, 25 the Constitutional Court concluded that the legislature had again failed to respect the constitutional limits for such action. In this light, as the legislature continues to depart from constitutional norms in the matter of judicial salary restrictions, it is not entirely inconceivable that the Court may be less lenient in the future in the event that making up for unconstitutionally reduced salaries only occurs pro futuro , and thus the state’s unlawful profit is tolerated. In the above-quoted ruling in Case No. Pl. ÚS 15/22, the Constitutional Court adopted the same approach as the Court examined in the Kubát and Others judgment . It proceeded to abolish the salary restrictions only ex nunc. If some of the judges concerned had sought retroactive salary compensation, as the applicants Kubát and Others had done, and had subsequently applied to Strasbourg if unsuccessful, it would have been interesting to see whether the Court would have stuck to its conclusions in Kubát and Others , or whether the same repeated disregard for the limits on interference with judges’ salaries by the government and the legislature would lead the Court to strike a fair balance in favour of the judges concerned. 1.4 Proceedings before the Constitutional Court The fairness of proceedings before the Czech Constitutional Court is dealt with by the Court quite frequently. The Court has issued dozens of judgments and decisions on this issue. In most of them, the problem was identical – the applicant’s complaint of a violation of the right to an adversarial procedure in a situation where the Constitutional Court did not send them for comments on the observations of the general courts that decided their case and which the Constitutional Court requested. In about ten cases, the Court found a violation of Article 6 of the Convention, which enshrines the right to a fair trial. 26

24 See the judgments nos. Pl. ÚS 4/23, Pl. ÚS 15/22 and Pl. ÚS 5/24. 25 These were the second and third judgments mentioned in the previous footnote.

26 E.g., Milatová and Others v. Czech Republic (no. 61811/00, judgment of 21 June 2005), Vokoun v. Czech Republic (no. 20725/05, judgment of 3 July 2008), Kysilková and Kysilka v. Czech Republic (no. 17273/03, judgment of 10 February 2011), or Janyr v. Czech Republic (no. 42937/08, judgment of 31 October 2013).

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