FIFTH SECTION
CASE OF KUBÁT AND OTHERS v. THE CZECH REPUBLIC
(Applications nos. 61721/19 and 5 others –
see appended list)
 
 
JUDGMENT
Art 1 P1 • 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of difference in judges’ salaries, unconstitutionally reduced during 2011-2014 financial crisis but legal provisions repealed only pro futuro • Decision in accordance with domestic law and pursuing a legitimate aim in the general interest based on consideration of economic and social issues • Impugned measure not putting at risk judges’ ability to exercise functions independently and impartially or constituting a threat to their livelihood • Level of judges’ remuneration to be fixed to protect them from pressures aimed at influencing their decisions and their behaviour in general
Art 6 § 1 (civil) • Fair hearing • Domestic courts’ decisions dismissing the applicants’ claims sufficiently reasoned and civil proceedings fair

 
STRASBOURG
22 June 2023
 
FINAL
 
06/11/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kubát and Others v. the Czech Republic,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Lado Chanturia, President,
 Carlo Ranzoni,
 Mārtiņš Mits,
 Stéphanie Mourou-Vikström,
 Mattias Guyomar,
 Mykola Gnatovskyy, judges,
 Mahulena Hofmannová, ad hoc judge,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the applications (nos. 61721/19, 5496/20, 21318/20, 33522/20, 43039/20 and 55448/20) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Czech nationals, Mr Ondřej Kubát, Mr Robert Ožvald, Ms Alena Makovcová, Ms Adriana Pilařová, Ms Soňa Biskupová Fišerová and Mr Miroslav Pečený (“the applicants”), on the various dates indicated in the appended table;
the decision to give notice to the Czech Government (“the Government”) of the complaints under Article 6 § 1, Article 1 of Protocol No. 1 and Article 14 in conjunction with Article 1 of Protocol No. 1, and to declare inadmissible the remainder of the applications;
the parties’ observations;
the decision of the President of the Chamber to appoint Ms Mahulena Hofmannová to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court), considering that Ms Kateřina Šimáčková, the judge elected in respect of the Czech Republic, withdrew from sitting in the case (Rule 28),
Having deliberated in private on 30 May 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applicants, who are serving judges, complained that their claims to a retroactive payment of the difference in their salaries had been refused owing to the fact that legislative amendments, by virtue of which the multiplication factor used to calculate judges’ salaries had been decreased for the period 2011-2014, had been repealed by the Constitutional Court only pro futuro. They complained, in particular, that the reasoning of the domestic courts’ decisions had been insufficient (Article 6 § 1 of the Convention), that their legitimate expectation of receiving a full salary during the period in question had not been met (Article 1 of Protocol No. 1) and that they had been discriminated against compared to other public servants and other individuals (Article 14 taken in conjunction with Article 1 of Protocol No. 1). THE FACTS
2. The applicants’ years of birth and places of residence and the names of their legal representatives can be found in the appended table. 3. The Government were represented by their Agent, Mr V.A. Schorm, of the Ministry of Justice. 4. The facts of the case may be summarised as follows. GENERAL BACKGROUNDSummary of the relevant events

5. The applicants are serving judges whose salaries were reduced for the period 2011-2014, following amendments to the Salaries Act; those amendments decreased, inter alia, the multiplication factor that linked judges’ base salary to the average salary in the non‑commercial sector (nepodnikatelská sféra) of the domestic economy (specifically – judges’ salary base was calculated by multiplying the average nominal monthly salary in the non-commercial sector by the multiplication factor – see paragraphs 19, 20 and 23 below). 6. Those amendments were later invalidated as unconstitutional by the plenary of the Constitutional Court (see paragraphs 10 and 11 below); 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 (that is to say the difference between the salaries that they had actually received and what would have been their salaries had the multiplication factor 3 been applied). 7. On 29 December 2014 the Supreme Court granted a claim submitted by a judge, who is not among the applicants, and ordered the State to pay to her the difference in her salary for the period 2011-2012 (judgment no.  21 Cdo 1440/2014 of the Supreme Court). Later, that judgment was partly quashed by the Constitutional Court (see paragraph 12 below), holding that the ex nunc repealing effect was applicable not only in respect of payment of the difference in judges’ salaries for the period 2013-2014 but also for the period 2011-2012. The remaining part of the Supreme Court’s judgment no. 21 Cdo 1440/2014 – according to which the claimant’s base salary had not been determined correctly because the relevant calculation had not reflected (taking into account the average nominal salary in the non-commercial sector) whether the receiver of that average salary worked full- or only part-time – remained unchanged. 8. In February 2015, representatives of the government and of 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 in accordance with the Supreme Court’s judgment no. 21 Cdo 1440/2014 (see paragraph 7 above). The judges who accepted that agreement thereby waived all other salary claims against the State in respect of the period 2011-2014. All judges were given an opportunity to enter the agreement; eventually, about 96% of them signed it, but the applicants did not. 9. Having not entered into the above-mentioned agreement, the applicants instituted proceedings claiming, inter alia, the retroactive payment of the difference in their salaries. They were unsuccessful (see paragraphs 13-18 below). Repealing judgments of the Constitutional Court, the pro futuro effect of which is challenged by the applicants
10. In its plenary judgment no. Pl. ÚS 33/11 of 3 May 2012 (see paragraph 22 below), the Constitutional Court observed that, in view of the principle of the separation of powers, the legislature had “different room” for manoeuvre in respect of restrictions on salaries of judges, compared to restrictions on salaries in other branches of the public sector. Therefore, it was only in very exceptional circumstances (such as the State finding itself in a poor financial situation) that interference with the material security of judges could be considered justified; even in such circumstances, however, account had to be taken of the different position of judges compared to that of representatives of the executive and legislative branches, and of the need for them to preserve their dignity and judicial independence. The Constitutional Court found, however, that in the case at hand, it was not possible to accept the argument according to which it was necessary to reduce public expenses by way of restricting judges’ salaries, given that the relevant legislation lacked any reference to “exceptional circumstances” (as mentioned above) and that the available data showed a very high level of salaries received by senior public servants such as deputy ministers and departmental directors. In such a situation, the impugned restrictions on judges’ salaries could no longer be considered to be extraordinary and proportionate; rather, their purpose appeared to be a decrease in judges’ salaries, which the executive power (that is to say the government) and legislature seemed to consider too high. The Constitutional Court was thus of the opinion that the lowering of the multiplication factor amounted to a disproportionate interference aimed only at judges, which did not comply with the conditions set out in its case-law governing restrictions on judges’ salaries. 11. In its plenary judgment no. Pl. ÚS 28/13 of 10 July 2014 repealing the 2.75 multiplication factor (see paragraph 24 below), the Constitutional Court noted that the solidarity of judges with other employees in the non‑commercial sector stemmed from the multiplication factor linking judges’ base salary to the average salary in the non-commercial sector; if the latter decreased, so did judges’ base salary (albeit with a delay). Furthermore, the Constitutional Court noted, the lowering of that multiplication factor from 3 to 2.75 had not been based on any analysis allowing the conclusion that such interference was proportionate and respectful of the limits of judges’ material security (as defined by constitutional law); nor had it reflected the legislature’s restricted room for manoeuvre. The freezing of judges’ salaries in 2002-2011 had already facilitated considerable budgetary savings, so judges had legitimately expected in 2011 that the system linking judges’ salaries to the average salary in the non-commercial sector would be restored. Therefore, while a difficult economic situation might have given cause for certain restrictions, the room for such restrictions had already been used to the maximum extent (if not exhausted), given that it was not (and had not been) possible to describe the country as being on the verge of collapse. According to the Constitutional Court, the legislature and the executive power had committed a strategic error in respect of the regulation of judges’ material security: unlike some neighbouring States affected by the financial and economic crisis, they had not adopted general and long-term fundamental measures in respect of public servants and partial and temporary measures in respect of judges, but instead had taken the opposite approach. Given the circumstances, the argument citing the limited possibilities of the State budget could not be accepted in view of the fact that the impugned legislation did not rely on any exceptional circumstances justifying the prioritisation of equal restrictions on the remuneration of public servants and judges over the principle of judicial independence. The restriction consisting of introducing the 2.75 multiplication factor was thus deemed by the Constitutional Court to be contrary to the Constitution. However, in order for the legislature to engage in a proper procedure aimed at adopting a constitutionally compliant link between the average salary in the non-commercial sector and the base salary of judges, the Constitutional Court had suspended the enforceability of the judgment for a reasonable period of time (until 31 December 2014). It observed that the repeal of a law did not, in principle, have any retroactive effect and that a repealing judgment (zrušující nález – that is, a judgment delivered by the Constitutional Court that had the effect of repealing a law) that was not accompanied by a suspension of enforceability had ex nunc effects. Consequently, a repealed provision did not expire until the date on which the judgment in question became enforceable. However, where a repeal was based on the finding that the application of the repealed legislation amounted to a violation of individuals’ fundamental rights, the individuals concerned should in principle be afforded protection through the retroactive non-application of the unconstitutional legislation in question, provided that the provision of such protection was not precluded by another fundamental right or important point of public interest. In vertical legal relationships between the State and an individual, the protection of individual rights and freedoms should in principle prevail. Here, too, however, the fact had to be taken into account that the retroactive non-application of an unconstitutional law could, in certain circumstances, compromise the State’s ability to discharge its functions (for example, with regard to the impact on the State budget) or could put other important matters of public interest under threat, with the result that, by contrast, legal certainty and the preservation of the status quo should take precedence. The Constitutional Court further observed that although it was generally true that – even if the enforceability of a repealing judgment was suspended – the repeal should still have a manifest effect on the legal sphere in respect of the parties to the proceedings in question, in the present case the conditions were satisfied for the decision to be taken not to apply such rule. When considering the legal effects of a repealing judgment arising from a judicial review of legal provisions, it was necessary to also consider aspects – other than those that were purely procedural – that gave grounds for concluding that such a judgment should affect the parties concerned only from the moment at which it became enforceable. Thus, the present judgment did not establish the right to a retroactive payment of the difference in salary resulting from the application, as of 1 January 2013, of a factor of 2.75 instead of 3. The Constitutional Court stated that that conclusion had been guided primarily by the interest in calming the general atmosphere regarding judges’ salaries that had long prevailed on the political scene and, in particular, among the general public. Although the legislature had long acted in a deliberately unconstitutional and hence inexcusable manner in that matter, the Constitutional Court had to take into account the fact that the retroactive payment of the difference would constitute a significant and, in particular, unforeseen interference with the State budget, which would inevitably exacerbate the aforementioned tensions between society and judges. Nor could the Constitutional Court overlook the fact that the retroactive payment of the sums sought would relate 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. Such a solution would therefore probably elicit little sympathy from society and could potentially weaken the position of judges and bring their function into disrepute. Moreover, the Constitutional Court did not consider that applying the 2.75 factor would create a situation so intolerable that it would necessarily require correction – not only pro futuro but also retroactively. It also considered that judges – who were supposed to represent the true elite of society – were expected not only to be professional and to demonstrate a strong work ethic, but also to be more generous and accommodating than other groups. 12. By its plenary judgment no. Pl. ÚS 20/15 of 19 July 2016 the Constitutional Court quashed part of the Supreme Court’s judgment no. 21 Cdo 1440/2014 of 29 December 2014, which had granted a claim lodged by a judge seeking the retroactive payment of the difference between her actual salary and that which she would have received in 2011 and 2012 when calculated according to the multiplication factor 3 (see paragraph 7 above). The Constitutional Court observed that it clearly followed from the reasoning provided in judgments nos. Pl. ÚS 16/11, Pl. ÚS 33/11 and Pl. ÚS 28/13 that the objective independence of the judiciary constituted a protected interest and that there were limits to possible restrictions on the material security of judges, but that this did not “automatically” mean that the repealed provisions had resulted in an infringement of the individual right of judges to fair remuneration for the work that they had performed prior to the repeal of those provisions. Thus, although the Constitutional Court had previously repealed the provisions aimed at reducing judges’ salaries, it had done so in order to protect judicial independence, not the individual subjective rights of judges; it could not be argued that individual judges had a specific property claim that would ensure their independence as judges. The Constitutional Court further referred to its practice (nos. Pl. ÚS 48/05, Pl. ÚS 38/06, Pl. ÚS 1/10, Pl. ÚS-st. 31/10, Pl. ÚS 23/11), according to which its judgments had no retroactive effect and repealing effects applied ex nunc – that is to say from the date on which the judgment in question was published in the Official Gazette, unless expressly otherwise provided by the Constitutional Court. Similarly, in a previous judgment concerning a similar matter as that in issue in the instant case (no. Pl. ÚS 16/11, see paragraph 21 above), it had already rejected the concept of a “revival” of previous legislation, observing that as a consequence of a repeal, the impugned provision would be removed but that no new legislation would be created by way of a “revival” of the preceding legislation. The Constitutional Court also noted that by its judgment no. Pl. ÚS 33/11 (see paragraph 22 above), it had not removed the multiplication factor 2.5 from section 3(3) of the Salaries Act until 31 December 2012, thereby making it clear that it considered such a base salary as constitutionally compliant until that date and that it did not find any reason for the judgment to be retroactively reflected in judges’ individual entitlements for the period prior to its enforceability. Referring to its case-law concerning the “precedential” binding nature of its judgments, including their ratio decidendi, the Constitutional Court observed that a failure on the part of an ordinary court to use such ratio decidendi as a basis for its decision-making would amount to disregarding a binding interpretation of the constitutional law and to a violation of the Constitution, which was why it was necessary in the instant case to quash a part of the Supreme Court’s judgment. Indeed, the manner in which the Constitutional Court had dealt with the issue of judges’ salaries in its judgments nos. Pl. ÚS 16/11 and Pl. ÚS 33/11 clearly indicated that the conclusions concerning the legal effects in respect of 2013 and 2014 of repealing judgment no. Pl. ÚS 28/13 could also be applied to claims concerning judges’ salaries in 2011 and 2012, and the Supreme Court had not submitted relevant arguments to the contrary. The two periods under review differed only in the level of the multiplication factor employed (2.5 and 2.75, respectively); however, that did not mean that the retroactive payment of the difference in salary resulting from the application of a reduced multiplication factor was inadmissible. PROCEEDINGS BROUGHT BY THE APPLICANTS
13. The applicants each lodged a claim in respect of their salary claims concerning the period 2011-2014. Their respective claims were granted in the part concerning the difference between the salaries actually paid to them and the amount that they would have received had the correct calculation of the base salary been applied (see paragraphs 7 and 8 above). However, in so far as the applicants lodged a claim against the State for the retroactive payment of the difference in their salaries, compared to what they would have received had the multiplication factor 3 been applied, their claims were dismissed with reference to the above-mentioned plenary judgments of the Constitutional Court (in particular judgments nos. Pl. ÚS 28/13 and Pl. ÚS 20/15), which did not allow such retroactive payment. 14. Subsequent constitutional appeals by the applicants were dismissed as follows. 15. The first applicant’s constitutional appeal was dismissed as manifestly ill-founded by the Constitutional Court’s decision no. II. ÚS 53/19 of 14 May 2019. As to the complaint raised under the right to a fair trial, the Constitutional Court noted, firstly, that the Supreme Court had responded to the applicant’s arguments by stating that it had found no reason to depart from the conclusions reached by the Constitutional Court in its judgments nos. Pl. ÚS 28/13 and Pl. ÚS 20/15. Secondly, in so far as the applicant challenged those conclusions from the point of view of domestic law and case-law, the Constitutional Court referred to its respective judgments, deeming that they had amply addressed that aspect and that its reasoning also applied to the applicant’s objections. Concerning the complaints submitted by the first applicant under Article 1 of Protocol No. 1 and Article 14 of the Convention, the Constitutional Court considered that the Strasbourg Court’s case-law did not support the first applicant’s arguments. The applicant was seeking the reimbursement of the salary that had not been granted to him owing to the above-mentioned legislative amendments; indeed, the fact that salaries in 2004-2010 had been calculated in a certain manner set by Law no. 236/1995 was not in itself sufficient to create a legitimate expectation that the same method would be applied in the following years – especially in the light of the fact that law had been repeatedly modified. The Constitutional Court further considered that, Article 1 of Protocol No. 1 not being applicable, there could not have been any violation of the prohibition of discrimination. Moreover, reiterating the fact that the State enjoyed a wide margin of appreciation, it was convinced that even if there had been a different treatment, it would not have amounted to discrimination, for the same reasons as those advanced to justify why the repeal of the above‑mentioned amended provisions had not created any right to reimbursement. 16. The constitutional appeal lodged by the third applicant was dismissed as manifestly ill-founded by the Constitutional Court’s decision no. II. ÚS 3160/19 of 30 October 2019. In the Constitutional Court’s view, the applicant was essentially engaged in a polemic regarding its judgments nos. Pl. ÚS 28/13 and Pl. ÚS 20/15, which she deemed illogical, based on non-existent facts and contrary to the principle of legal certainty and to the Constitutional Court Act. Yet the Constitutional Court had repeatedly addressed the issue of the retroactive payment of the difference in judges’ salaries, not only in the judgments mentioned above but also in a number of decisions dismissing constitutional appeals lodged in cases similar to the applicant’s (for example, decisions nos. I. ÚS 1700/19, II. ÚS 53/19, IV. ÚS 3692/18 and III. ÚS 2673/18), to which it could not but refer. Furthermore, the ordinary courts had already sufficiently dealt with the applicant’s complaints and explained why they had not considered her arguments relevant or likely to overrule the established and long-standing case-law of the Constitutional Court. Although the latter could be overruled, a reference to a plenary judgment of the Constitutional Court dealing with an identical issue was a crucial argument and, in the interest of legal certainty, a different finding was possible only if extremely relevant and compelling arguments were put forward. 17. The constitutional appeal lodged by the fourth applicant was dismissed as manifestly ill-founded by the Constitutional Court’s decision no. III. ÚS 3884/18 of 28 January 2020. As to the applicant’s arguments that there was no reason to consider the Constitutional Court’s judgments universally binding and that the repealing judgment no. Pl. ÚS 28/13 should have had ex tunc effect, the Constitutional Court found that they had been already addressed in its judgment no. Pl. ÚS 20/15. In this respect, reference was made also to a plenary opinion (no. Pl. ÚS-st. 31/10 of 14 December 2010), according to which the repealing effects of a judgment came into existence ex nunc – that is, only as of the day on which the judgment was published in the Official Gazette, unless that judgment expressly provided otherwise. The Constitutional Court further noted that the finding made in its judgment no. Pl. ÚS 20/15 about the existence of a public interest in calming the atmosphere in society and fostering public confidence in the judiciary (which overrode a judge’s individual right to retroactive payment) did not need to be supported by evidence because it concerned the justification of the necessity of a specific course of action taken by the Constitutional Court in respect of the temporal effects of its rulings. The Constitutional Court also observed that it did not follow from its case-law that there existed a legitimate expectation that judges would be paid a certain amount in salary. 18. The other applicants directed their constitutional appeals only against the decisions issued by the Supreme Court in respect of their appeals on points of law. As to the second and fifth applicants (whose appeals on points of law had been rejected without an examination of the merits), the Constitutional Court endorsed the application by the Supreme Court of the relevant procedural rules regarding the conditions of admissibility of an appeal on points of law, and found its conclusions to be pertinent; it accordingly dismissed the constitutional appeals by the second and fifth applicants as manifestly ill‑founded (decisions no. I. ÚS 1700/19 of 9 July 2019 and no. I. ÚS 339/20 of 25 March 2020, respectively). In its decision no. IV. ÚS 2902/19 of 16 June 2020 the Constitutional Court dismissed as manifestly ill-founded also the constitutional appeal lodged by the sixth applicant. It endorsed the Supreme Court’s decision finding the applicant’s appeals on points of law not admissible on the grounds that the ordinary courts’ decisions challenged by the applicant before the Supreme Court had followed the relevant established case-law and had been duly reasoned, clear, reasonable and logical. Those decisions had been based, inter alia, on the Constitutional Court’s judgment no. Pl. ÚS 20/15, which had been binding and from which the Constitutional Court found no reason to depart in the instant case. RELEVANT LEGAL FRAMEWORK AND PRACTICE
LEGISLATION GOVERNING JUDGES’ SALARIES
19. Law no. 236/1995 on salaries and other benefits related to the performance of the duties of representatives of State authority and certain State bodies, judges and members of the European Parliament (“the Salaries Act”) applies, apart from the above-mentioned specific categories, also to members of parliament and of the government and to the President of the Czech Republic. Section 3(3) of the Act, as in force from 1 January 2004 until 31 December 2010, provided that the base salary in any given year should be three times the average nominal monthly salary in the non-commercial sector in the year preceding the previous year. 20. With effect from 1 January 2011 Law no. 425/2010 decreased the multiplication factor in the above-mentioned provision from 3 to 2.5. This amendment also added section 3b to the Salaries Act, whose subsection 1 provided that in 2011 the base salary for judges would be 54,005 Czech crowns (CZK)[1] (which represented a decrease of 5% compared to 2010, while three times the average nominal monthly salary in the non‑commercial sector would in 2011 normally jump to CZK 69,300[2] owing to the restoration of valorisation mechanisms), and subsection 2 provided that in 2012 the base salary for judges would be CZK 56,849[3]. 21. By its plenary judgment no. Pl. ÚS 16/11 of 2 August 2011 the Constitutional Court repealed section 3b(1) of the Salaries Act as of the date of the publication of the judgment in the Official Gazette (12 September 2011). It emphasised that the only consequence of that repeal was the removal of that provision from the Czech legal order – not a de facto creation of new legislation by way of the “revival” of a provision that had been abrogated previously. For procedural reasons related to the lack of standing of the appellant to seek the abrogation of section 3(3) of the Salaries Act, the Constitutional Court did not examine that provision, and the 2.5 factor remained in force. 22. Furthermore, by its plenary judgment no. Pl. ÚS 33/11 of 3 May 2012 the Constitutional Court repealed section 3b(2) as of the date of publication of the judgment in the Official Gazette (1 June 2012). At the same time, it repealed the 2.5 factor laid down in section 3(3) with effect from 1 January 2013. 23. With effect from 1 January 2013 Law no. 11/2013 introduced a new version of section 3(3) of the Salaries Act, setting the multiplication factor at 2.75. 24. By its plenary judgment no. Pl. ÚS 28/13 of 10 July 2014 the Constitutional Court repealed the 2.75 factor, in so far as it applied to judges, with effect from 1 January 2015. 25. As of 1 January 2015, section 3(3) of the Salaries Act set the multiplication factor at 3 again. THE CONSTITUTIONAL COURT ACT (LAW NO. 182/1993)
26. Pursuant to section 11, the plenary is composed of all judges of the Constitutional Court and has authority, among other things, to (i) abrogating laws or specific provisions thereof and (ii) for delivering an opinion on a legal opinion of one of its chambers which differs from the one expressed by the Constitutional Court in a judgment (nález). OTHER CASE-LAW OF THE CZECH CONSTITUTIONAL COURT
27. In its dismissing plenary judgment no. Pl. ÚS 16/2000 of 3 July 2000, the Constitutional Court acknowledged that judges of ordinary courts did not find themselves in a legal or economic vacuum that would isolate them from economic and social reality. Therefore, it could not be argued that those judges had an a priori right to a level of material security that the legislature would not be able to modify in any way and in any circumstances. On the other hand, the Constitutional Court was far from thinking that judges’ salaries should be a factor that could be changed according to the views of different governments. The impugned measure (the suppression of the so-called “fourteenth salary”) was thus to be considered as an exceptional act which could only be justified by serious reasons and within the framework of proportionate overall adjustments of salaries over the whole public sector. 28. In its plenary judgments nos. Pl. ÚS 55/05 of 16 January 2007 and Pl. ÚS 13/08 of 2 March 2010 dismissing applications for the invalidation of several legislative provisions that had ultimately led to the freezing of judges’ salaries in the periods 2003-2004 and 2008-2010, the Constitutional Court emphasised that the impugned measure had not led to a reduction in judges’ salaries or to a permanent decrease in their material security. Indeed, a temporary suspension of the increase in judges’ salaries was different from any permanent deprivation of salary (or a part thereof), which would most likely have a negative impact on the level of their material security. It reiterated in this connection that, while the judges could not be said to have a permanent and unquestionable right to an annual increase in their salaries, their remuneration, in a broad sense, should be stable and irreducible in quantity – except in the event that the State found itself in truly exceptional and extraordinary circumstances. 29. In its decision no. II. ÚS 1831/18 of 19 June 2018, the Constitutional Court pointed to the explanation provided in its judgment no. Pl. ÚS 28/13 as to why it had deemed that the repeal of the provisions on judges’ salaries should have pro futuro effect. It reiterated that a retroactive payment of the difference in judges’ salaries would constitute an unforeseen interference with the State budget that would inevitably heighten tensions between society and judges. Rather than ensuring that all amounts claimed by judges were paid, the relevant repealing judgments aimed at making the legislature aware of the limits that cannot be overstepped when legislating on judges’ salaries. RELEVANT INTERNATIONAL DOCUMENTS
30. Under Chapter 6 (“Remuneration and Social Welfare”) of the European Charter on the Statute for Judges (Department of Legal Affairs of the Council of Europe Document (98)23), which is a non-binding document, judges exercising judicial functions in a professional capacity are entitled to remuneration, the level of which is fixed so as to shield them from pressures aimed at influencing their decisions (and, more generally, their behaviour within their jurisdiction), thereby impairing their independence and impartiality. 31. In its Recommendation CM/Rec(2010)12 of 17 November 2010 on the independence, efficiency and responsibilities of judges, the Committee of Ministers observed (points 53 and 54) that the principal rules of the system of remuneration for professional judges should be laid down by law; that judges’ remuneration should be commensurate with their profession and responsibilities and be sufficient to shield them from inducements aimed at influencing their decisions; and that specific legal provisions should be introduced as a safeguard against a reduction in remuneration aimed specifically at judges. 32. In its Report on the Independence of the Judicial Systems, adopted on 12–13 March 2010, the European Commission for Democracy through Law (“the Venice Commission”) was of the opinion (paragraphs 51-53) that in respect of judges a level of remuneration should be guaranteed by law, and that even in times of crisis the proper functioning and the independence of the judiciary should not be endangered; courts should not be financed on the basis of discretionary decisions taken by official bodies but in a stable manner on the basis of objective and transparent criteria. In its Amicus Curiae Brief for the Constitutional Court of “the Former Yugoslav Republic of Macedonia” concerning amendments to several laws relating to the system of salaries and remuneration of elected and appointed officials, adopted on 17–18 December 2010, the Venice Commission observed (in paragraph 20) that in the absence of an explicit constitutional prohibition, a reduction in judges’ salaries could, in exceptional situations and under specific conditions, be justified and could not be regarded as amounting to an infringement of the independence of the judiciary. In the process of a reduction of judges’ salaries dictated by an economic crisis, proper attention should be paid to the question of whether judges’ remuneration continued to be commensurate with the dignity of a judge’s profession and his or her burden of responsibility and complied with the requirement that judges’ remuneration be adequate. 33. According to the 2014 and 2016 reports issued by the European Commission for the Efficiency of Justice (CEPEJ) on European judicial systems (which indicated both the gross annual salary of judges in each country and the ratio of that salary to the average gross annual salary of employees working in the national economy), in 2012 and 2014 the gross annual salary of a judge in the Czech Republic at the beginning of his or her career had been, respectively, EUR 26,492 and EUR 27,915, which had amounted to 2.1 and 2.5 times the average gross annual salary of employees in the national economy. The average level of this figure for all Council of Europe countries in those years had been, respectively, 2.3 and 2.4 times the average national salary. 34. In its judgment C-64/16: Associação Sindical dos Juízes Portugueses v. Tribunal de Contas of 27 February 2018, the Court of Justice of the European Union addressed the issue of the reduction of judges’ salaries within the context of the economic crisis in Portugal. Within that context, it observed, inter alia, that adequate financial remuneration of judges was one of the prerequisites for the independence of judicial bodies; however, that did not preclude general salary-reduction measures aimed at eliminating an excessive budget deficit. THE LAW
        JOINDER OF THE APPLICATIONS
35. Having regard to the similar subject matter and factual background of the applications, the Court finds it appropriate to examine them, in accordance with Rule 42 § 1 of the Rules of Court, jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
36. The applicants complained that the domestic courts (including the Constitutional Court) had not sufficiently reasoned the decisions issued in their cases, limiting themselves to referring to the Constitutional Court’s existing case-law. They submitted, in particular, that the courts had not addressed all those arguments and evidence that they had submitted with a view to refuting the reasoning of the Constitutional Court’s plenary judgments nos. Pl. ÚS 28/13 and Pl. ÚS 20/15, which in their view had not sufficiently explained why their repealing effect applied only ex nunc. The applicants relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Admissibility
37. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe applicants

38. The applicants argued that while the Constitutional Court had ascribed ex tunc effect to judgments nos. Pl. ÚS 16/11 and Pl. ÚS 33/11 and had not indicated therein any reason why judges should not be entitled to the retroactive payment of their salary claims, it had adopted a completely different approach in its subsequent plenary judgments nos. Pl. ÚS 28/13 and Pl. ÚS 20/15, thereby denying to judges the right to such a retroactive payment but without providing any legal analysis or explanation as to why it had deviated from its previous judgments. 39. The applicants also considered it unacceptable that the courts, in the proceedings brought by them personally, had failed to address their specific arguments that the key conclusions of plenary judgments Pl. ÚS 28/13 and Pl. ÚS 20/15 could not apply in their cases. In the applicants’ view, those conclusions (which had been based only on general political and social grounds and had not addressed the specific legal issues to which they had subsequently pointed during the proceedings at hand) could not have had any precedential value or have constituted settled case-law. Thus, there had been no basis for dismissing their claims with a mere reference to those plenary judgments, without the courts having carefully dealt with their arguments demonstrating the lack of any exceptional circumstances. 40. The applicants contested the Government’s arguments that the Constitutional Court’s judgments could have ex tunc effect only when final criminal judgments were thereby repealed. In their view, the effect of the Constitutional Court’s repealing judgments should be determined in such a way as to ensure that fundamental rights were preserved as much as possible. However, despite the fact that it had found the impugned legislation unconstitutional, by ruling that its judgment no. Pl. ÚS 28/13 would have ex nunc (or pro futuro) effect, the Constitutional Court – followed by the courts dealing with the applicants’ claims, which had refused to reconsider this aspect in the light of their submissions – had completely emptied their rights of their substance (the applicants referred to Malysh and Others v. Russia, no. 30280/03, § 82, 11 February 2010). Moreover, their cases did not concern a “revival” of previous regulations (see paragraph 44 below) but rather the determination of their salary entitlements in accordance with their legitimate expectation that the multiplication factor 3 would be applied, and with the criteria clearly set out by the Constitutional Court. 41. In the applicants’ view, they had thus suffered a violation of Article 6 of the Convention on three counts: the failure to consider their arguments and evidence, the inconsistency of the domestic decisions, and their being denied material justice. The Government
42. The Government pointed out that the scope of the courts’ obligation to state reasons for their decisions was to be determined in the light of the circumstances of each case and according to whether there had been a departure from the existing case-law and to what extent (in this respect, they cited Atanasovski v. the former Yugoslav Republic of Macedonia, no. 36815/03, § 38, 14 January 2010). Thus, detailed reasoning was not required if a court decision relied fully on the existing domestic case-law concerning the matter at stake. Furthermore, it was not contrary to Article 6 for a court not to respond to less crucial arguments put forward by an applicant if the proceedings as a whole could be described as fair (the Government referred to Čivinskaitė v. Lithuania, no. 21218/12, §§ 142-144, 15 September 2020). 43. The Government observed that in the cases at hand, the ordinary courts had proceeded in a manner that had been in full compliance with domestic law, under which the Constitutional Court’s judgments had been binding as “quasi-precedents”. Had they decided otherwise – that is to say had they granted the applicants’ claims, contrary to the legal opinion previously expressed by the Constitutional Court – they would have failed to respect the binding nature of the Constitutional Court’s enforceable judgments. Thus, in the Government’s view, the reasoning of the ordinary courts’ decisions in the applicants’ cases had been in line with the requirements of Article 6 of the Convention. 44. Concerning the reasoning underlying the Constitutional Court’s judgments nos. Pl. ÚS 28/13 and Pl. ÚS 20/15, the Government emphasised that, as a general and traditional rule applicable in non-criminal cases, the repealing judgments of the Constitutional Court were intended to have ex nunc effect. Indeed, that court had constantly rejected the concept of a “revival” of previous regulations and had confirmed that as a consequence of a repeal, an impugned provision would simply be removed from the legal order (see paragraph 12 above) . 45. Therefore, in the above-mentioned plenary judgments the Constitutional Court clearly had not “deviated” from the existing approach; on the contrary, the solution chosen had been fully in compliance with the relevant regulations, the constitutional-law tradition and the Constitutional Court’s previous practice. Furthermore, the Constitutional Court advanced specific arguments in favour of repealing – with ex nunc effect – the provisions decreasing the multiplication factor used in calculating judges’ salaries, such as (i) the fact that the retroactive payment of the sums requested would result in significant and unforeseen budget expenditure during a period of financial crisis or slow recovery, which would thus elicit little sympathy from the public and could potentially weaken the position of judges, (ii) the application of a decreased multiplication factor had not led to such an unbearable situation for judges that would necessarily require that situation to be remedied not only pro futuro but also retroactively, (iii) judges, who were supposed to represent the elite of society, could also be expected to be more generous and accommodating than other groups, (iv) although there were limits to possible restrictions on the material security of judges, the repeal of the impugned provisions had not automatically established a breach of judges’ individual right to fair remuneration for their work prior to that repeal, since the reason for the repeal had been to protect judicial independence rather than any specific property claims lodged by judges, and (v) the repealing judgments had been aimed mainly at making the legislature aware of the limits that could not be exceeded when legislating on judges’ salaries, rather than at ensuring that all amounts claimed by judges would be paid (see paragraphs 11-12 and 29 above). 46. Regarding the dismissal of the constitutional appeals lodged by the first, third and fourth applicants (see paragraphs 15-17 above), the Government were convinced that the Constitutional Court had duly addressed the applicants’ complaints and arguments. It was decisive in this respect that the Constitutional Court had found no reason to depart from its previous plenary judgments concerning the issue of judges’ salaries. Seen in that light, the endorsement by the Constitutional Court of the reasons advanced in the ordinary courts’ decisions was capable of satisfying the requirements of Article 6 § 1 of the Convention. In the Government’s view, the same considerations applied to the decisions issued by the Constitutional Court in respect of the second, fifth and sixth applicants (see paragraph 18 above). 47. Lastly, as to the complaint about the lack of adversarial proceedings raised by the third applicant, who asserted that the Constitutional Court had failed to send her the observations made by the State on her constitutional appeal, the Government submitted that it did not appear from the content of the relevant file (no. II. ÚS 3160/19 – see paragraph 16 above) that the Constitutional Court had requested any such observations, nor were there any such observations in the file. One could only speculate that the third applicant had been referring to statements submitted by the State in the proceedings that had led to plenary judgment no. Pl. ÚS 20/15; however, there was no requirement under the Convention that parties be informed of the content of statements submitted during proceedings conducted in respect of previous similar cases.

Outcome for Article 6: no_violation