Published on 7 June 202 1

SECOND SECTION

Application no. 61721/19 Ondřej KUBÁT against the Czech Republic and 5 other applications (see list appended) communicated on 18 May 2021

SUBJECT MATTER OF THE CASE

The applications concern the actions of some judges who sued the State for the unpaid part of their salaries, following Amendments nos. 425/2010 and 11/2013 to Act no. 236/1995 by virtue of which judges ’ salaries had been reduced for the period of 2011-2014, due to the economic situation. These amendments were later abrogated as unconstitutional by the judgments nos. Pl. ÚS 16/11, Pl. ÚS 33/11 and Pl. ÚS 28/13 of the plenary of the Constitutional Court. The Constitutional Court held that judges ’ salaries had been subject to repeated disproportionate reductions since 1997, contrary to salaries of other public servants which had been increasing, that the explanatory reports to the impugned amendments lacked any economic analysis in this respect and there had not been any exceptional circumstances to justify the reductions.

Nevertheless, by its decision no. Pl. ÚS 28/13, the Constitutional Court only abrogated Amendment no. 11/2013 (concerning the period of 2013 ‑ 2014) with ex nunc effect, as of 1 January 2015, considering that such a step was justified by the need to calm the general atmosphere at the political scene and among a wider public during a period of economic crisis, and to avoid increasing tensions between the public and the judges who were supposed to display a greater degree of generosity and helpfulness; furthermore, doing otherwise would represent an unforeseen budgetary expense. As a result, the judges were not able to recover the unpaid parts of their salaries for the period of 2013-2014.

The following decision of the Supreme Court directing the State to pay the unpaid part of judges ’ salaries for the period of 2011-2012 was quashed by the Constitutional Court ’ s judgment no. Pl. ÚS 20/15, referring to judgment no. Pl. ÚS 28/13 and holding that the ex nunc effect of the abrogation was applicable also in respect of the unpaid parts of salaries for the period of 2011-2012.

Consequently, the applicants ’ actions and, ultimately, their constitutional appeals were dismissed in application of the above-mentioned plenary judgments of the Constitutional Court.

Relying mainly on Article 6 the applicants complain that the domestic courts, including the Constitutional Court, did not sufficiently reason their decisions issued in their cases and did not deal with all their arguments and evidence aimed at refuting the reasoning of the plenary judgments. Under Article 1 of Protocol no. 1, taken alone and in conjunction with Article 14 , most of the applicants also claim that their legitimate expectation to receive their full salary was not met and they were discriminated against compared to other public servants and other individuals.

QUESTIONS TO THE PARTIES

1. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

In particular, did the courts, including the Constitutional Court, duly deal with the applicants ’ arguments and proposed evidence and are the relevant decisions sufficiently reasoned, especially in relation to the ex nunc effect of the plenary judgments of the Constitutional Court?

Did applicant no. 3 have a possibility to comment on the observations submitted to the Constitutional Court by the State?

2. Has there been an interference with applicants ’ nos. 1, 2, 3, 4 and 6 peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? In particular, did applicants nos. 1, 2, 3, 4 and 6 have any legitimate expectation that their salaries would be paid in full during the period of 2011-2014? If so, have they been deprived of such a legitimate expectation amounting to “possessions” in the public interest, and in accordance with the conditions provided for by law?

3. Have applicants nos. 1, 2, 3, 4 and 6 suffered discrimination in the enjoyment of their Convention rights, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1?

In particular:

- Were applicants nos. 1, 2, 3, 4 and 6 in a comparable situation to other public servants?

- Was applicant no. 2 in a comparable situation to working pensioners who could have benefited from reduced taxes for the period prior to the abrogation of provisions prohibiting such a reduction?

- Was applicant no. 6 in a comparable situation to judges who accepted, in domestic proceedings, a friendly settlement of their claims for the unpaid parts of their salaries?

If so, did those differences in treatment pursue a legitimate aim; and did they have a reasonable justification?

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

61721/19

Kubát v. the Czech Republic

18/11/2019

Ondřej KUBÁT 1977 Prague Czech

Jiří JANOUŠEK

2.

5496/20

Ožvald v. the Czech Republic

15/01/2020

Robert OŽVALD 1967 Tábor Czech

3.

21318/20

Makovcová v. the Czech Republic

13/05/2020

Alena MAKOVCOVÁ 1958 Prague Czech

Jiří DAVID

4.

33522/20

Pilařová v. the Czech Republic

29/07/2020

Adriana PILAŘOVÁ 1963 Prague Czech

Jiří JANOUŠEK

5.

43039/20

Biskupová Fišerová v. the Czech Republic

24/09/2020

Soňa BISKUPOVÁ FIŠEROVÁ 1974 České Budějovice Czech

Vlastimil HÁJEK

6.

55448/20

Pečený v. the Czech Republic

08/12/2020

Miroslav PEČENÝ 1976 Brno Czech

Jiří JANOUŠEK