Legal summary

June 2023

Kubát and Others v. the Czech Republic - 61721/19, 5496/20, 21318/20 et al.

Judgment 22.6.2023 [Section V]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Proportionate denial of retroactive payment of difference in judges’ salaries, unconstitutionally reduced during 2011-2014 financial crisis but legal provisions repealed only pro futuro : no violation

Facts – The applicants are serving judges whose salaries were reduced for the period 2011-2014, following legislative amendments which, inter alia , decreased (from 3 to 2.5 and later to 2.75) the multiplication factor that linked judges’ base salary to the average salary in the non‑commercial sector of the domestic economy. Those amendments were later invalidated as unconstitutional by the Constitutional Court. However, the provisions relating to the decreased multiplication factor were repealed only with ex nunc/pro futuro effect. As a result, the judges were not able to recover the difference in their salaries for the period 2013-2014. Subsequently, the Constitutional Court made clear the ex nunc repealing effect was also applicable to the period 2011-2012. The government and the judiciary reached an agreement according to which the State undertook to pay judges the difference between salaries actually paid in 2012-2014 and the amount that they would have received had the correct calculation of the base salary been applied, acceptance of which waived all other salary claims in respect of the period 2011-2014. The applicants did not enter the agreement. They unsuccessfully brought proceedings claiming, inter alia , the retroactive payment of the difference in their salaries.

Law – Article 1 of Protocol No.1:

(a) Admissibility – The applicants’ complaints concerned the lawfulness of measures concerning the payment of their salaries, with it being undisputed that they had had a right to receive the full lawful amount, constitutive of a proprietary interest. The Court had doubts in the specific circumstances as to whether the applicants had had a legitimate expectation and therefore a “possession”. However, that did not need to be determined as in any event there had been no breach of Article 1 of Protocol No. 1. The Court thus proceeded on the assumption that that provision was applicable and that the refusal of retroactive payments could be regarded as an interference with the applicants’ rights.

(b) Merits – The applicants’ grievances were related to the fact that the Constitutional Court had decided to give only pro futuro effect to its repealing judgments. As a result, the applicants had not been able to recover the difference in their salaries for the period 2011-2014 until the multiplication factor 3 had been restored in 2015. Therefore, the interference complained of did not directly concern the legislation that reduced judges’ salaries, but the Constitutional Court’s choice not to give retroactive effect to its repealing judgments. The present case was thus distinguishable from Savickas and Others v. Lithuania. In the Court’s view, a finding that exceptional circumstances might justify the delivery of a repealing judgment with ex nunc/pro futuro effect constituted a different matter from that of a reduction of judges’ salaries. It therefore concentrated its analysis on the lawfulness and justification of the former. Given the circumstances of the case, the interference complained of fell to be examined under the general rule of protection of property under Article 1 of Protocol No. 1.

(i) Lawfulness of the interference – The Court reiterated that the possibility for a supreme authority to adjust to a given timeframe the effects of a declaration of unconstitutionality (where, in exceptional circumstances, public-interest considerations so required) could not be regarded as incompatible with the principle of lawfulness and might indeed be necessary to avoid any manifestly excessive consequences of such a declaration in such a sensitive area as the economic policy of a country during a serious economic crisis. The present case concerned neither divergent approaches nor a reversal of case-law by the Constitutional Court, whose decision to ascribe to the impugned judgments ex nunc / pro futuro effect had been in line with its previous practice and the Czech constitutional-law tradition. Hence, the approach it had taken in the applicants’ cases had had a legal basis in the domestic law and practice. The cuts suffered by the applicants, stemming from the fact that they had been denied the retroactive payment of the difference in their salaries, had thus been allowed by the Constitutional Court, in accordance with domestic law.

(ii) Aim of the interference – The Constitutional Court had given additional reasons as to why the repeal of the provisions on judges’ salaries should be covered by the rule of ex nunc (or even pro futuro ) effect. It considered the claimed retroactive payment of the difference in judges’ salaries would have constituted a significant and unforeseen interference with the State budget in a period of economic crisis and would have exacerbated the existing tensions between society and judges. The Constitutional Court could not overlook the tense social and political climate as well as the fact that the executive power and the legislature had considered judges’ salaries to be too high. Therefore, it had to bear in mind the time that had elapsed from the adoption of the impugned legislation and the resulting total amount of the one-off payment, which would have had to cover a retroactive period of some years and which would have placed too great a budgetary burden on the State. Those essentially had been the considerations guiding the Constitutional Court in its decision to ascribe ex nunc/pro futuro effect to the repealing judgments at stake. The aim of the interference with the applicants’ rights had thus been based on a consideration of economic and social issues. The Court attached weight to the arguments advanced by the Constitutional Court which did not appear to lack reasonable foundation. Therefore, in excluding the possibility of retroactive payment the Constitutional Court had pursued a legitimate aim in the general interest.

(iii) Proportionality of the interference – The Court did not find sufficient basis to consider arbitrary or manifestly erroneous the Constitutional Court’s assessment that the retroactive payment of the sums sought related to a period when the Czech Republic had been in a financial crisis or at a stage when it had been slowly recovering from that crisis. Most importantly, nothing in the case-file allowed the Court to consider that the impugned measure had put at risk the ability of judges (including the applicants) to exercise their judicial functions independently and impartially or that it had constituted a threat to their livelihood. In this connection, most judges (but not the applicants) had waived the impugned claims within the framework of their settlement with the State. Further, according to the data submitted by the Government (which had not been challenged by the applicants), despite the decrease of the multiplication factor, judges’ average monthly salary had been raised almost every year over the relevant period (2011-2014) and even compared to 2010.

The Court was nevertheless sensitive to the applicants’ argument that the situation complained of had been ultimately profitable to the State, allowing it to save to the judges’ detriment. It found it worrying that, as stated by the Constitutional Court, the Czech legislature had long acted in a deliberately unconstitutional manner in the matter of judges’ salaries, overstepping the limits that had been set by the Constitutional Court’s long-standing case-law. In this connection, the level of judges’ remuneration had to be fixed to shield them from pressures aimed at influencing their decisions – and, more generally, their behaviour, and that a failure to ensure that judges were paid the judicial benefits to which they were entitled by law constituted a circumstance liable to impede the exercise of their judicial functions with the necessary dedication.

That being so, the fact that the Constitutional Court had already acted to protect judges’ legitimate interests regarding their salaries was inevitably relevant in the assessment of the proportionality of the impugned decisions not to give retroactive effect to its findings that the laws reducing judges’ salaries had been unconstitutional. Assuming that Article 1 of Protocol No. 1 had been applicable, any interference with the applicants’ proprietary interests had been proportionate.

Conclusion: no violation (unanimously).

The Court also found, unanimously, that there had been no violation of Article 6 § 1 as it did not consider that the domestic courts’ decisions dismissing the applicants’ claims had been insufficiently reasoned or the civil proceedings otherwise unfair. Lastly, it dismissed as manifestly ill-founded the complaint under Article 14 taken in conjunction with Article 1 of Protocol No. 1 since the applicants concerned had not demonstrated that they had been in an analogous or relevantly similar situation to public servants holding senior positions in government ministries, or that their situation could be compared to that of working pensioners or judges who had entered into a settlement agreement with the State.

(See also Savickas and Others v. Lithuania (dec.), 66365/09 , 15 October 2013)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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