The provisions of the Law on State Service relating to the removal of state servants from their duties are in conflict with the Constitution
The Constitutional Court has noted that, according to the Constitution, inter alia, paragraph 1 of Article 33 thereof and the provision of paragraph 1 of Article 48 thereof “Everyone may freely choose a job”, the legislature, when regulating the relationships of state service and pursuing the constitutionally justified objective to ensure the credibility of persons holding office in state service and the authority of the institutions in which they work and that of state service as a whole, as well as the confidence of the public and citizens in the state service system, may impose the requirement relating to the reputation of such persons that they must not be suspected or accused of having committed certain criminal acts and to provide for the temporary removal of persons who do not comply with such a requirement from duties. In establishing such a requirement, the constitutional principle of proportionality must be respected, among others, the preconditions must be created for applying this measure by assessing as much as possible the individual situation of each state servant and taking into account all relevant circumstances, including the importance of the state servant’s current position in state service, the particularities of the functions performed by him/her, his/her responsibilities, and the possibility of transferring him/her to another post.
According to the assessment of the Constitutional Court, according to the Constitution, inter alia, the provision of paragraph 1 of Article 48 thereof “Everyone … shall have the right … to receive fair pay for work”, the legislature has the discretion to establish such a legal regulation under which, during a reasonable period of time, remuneration would not be paid for state servants who are temporarily removed from their duties; on the other hand, the temporary removal of a state servant who is suspected or accused of having committed a certain criminal act must not be turned into a punishment for the criminal act of which he/she is suspected or accused. Thus, the legislature, having imposed the requirement relating to the reputation of persons holding duties in state service that they must not be suspected or accused of having committed certain criminal acts and having provided for the temporary removal of persons who do not comply with such a requirement from their duties, in accordance with the Constitution, inter alia, the provision of paragraph 1 of Article 48 thereof “Everyone … shall have the right … to receive fair pay for work and social security in the event of unemployment”, the constitutional principles of justice and proportionality, taking into account the particularities of the implementation of the legal status of state servants removed from their duties, inter alia, the rights and freedoms that they have under the Constitution and laws, among others, the right to work and to receive social security in the event of unemployment, must not establish such a legal regulation under which, after a reasonable period of time laid down by the legislature after the commencement of the removal of a state servant from his/her duties, the said state servant who has been removed form his/her duties on a long-term basis will not continue to receive remuneration (or part of it), thereby failing to ensure even his/her minimum socially acceptable needs.
The Constitutional Court has also noted that, when determining the amount of remuneration for such persons, the legislature must take into account, among others, the fact that they do not perform the duties of a state servant during the period of the removal from their duties, as well as assess the extent of restrictions on the right to do other work or engage in other activities.