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Making the Re-Examination of Judges Salaries Contingent on the Will of the Executive Power – Unconstitutional
On 2nd of May 2017, the Constitutional Court of Moldova delivered a judgment on the constitutional review of certain provisions of Article 10/1.1 of the Law no. 328 of 23 December 2013 on salaries of judges and prosecutors.
Circumstances of the case
The case originated in the application lodged by the Supreme Court of Justice with the Constitutional Court on the constitutional review of Article 10/1.1 of the Law no. 328 of 23 December 2013 on salaries of judges and prosecutors.
The challenged provision reads as follows: “ The basic official salaries of judges and prosecutors provided under the conditions laid down by Article 1 are re-examined annually as of 1st of April, within the limits of the amounts envisaged for these purposes in the public national budget.”
The author of the application alleged particularly that establishing a margin of appreciation on re-examining the salaries of judges – in case the amounts provided in the national budget are not suffice - affects the independence of judges guaranteed by Article 116 of the Constitution.
The application was examined by the Constitutional Court of Moldova in the following composition:
Mr Alexandru TĂNASE, President,
Mr Aurel BĂIEŞU,
Mr Igor DOLEA,
Mr Tudor PANȚIRU,
Mr Victor POPA,
Mr Veaceslav ZAPOROJAN, judges.
Conclusions of the Court
Hearing the reasoning of the parties and examining the casefiles, the Court noted that in line with Article 116.1 of the Constitution, the judges of the law-courts are independent, impartial and immovable, under the law. Within a democratic system of checks and balances, in order for the rule of law to be applied, the independence of judiciary is important.
In its caselaw, the Court mentioned that the independence of the judiciary cannot be achieved without a financial independence of the judges. The remuneration of a judge, which comprises any means of financial or social security, represents one of the basic components of his independence, it being a counterbalance to the imposed restrictions, prohibitions and responsibilities.
The Court noted that in a genuine democracy, both the government and the people should admit that the judge who ultimately decides on human lives, freedoms and rights, along with a high professional level and sound reputation, should also enjoy financial independence and a sense of security.
The requirement of financial security is provided by international standards governing the independence of judges. Thus, Council of Ministers of the Council of Europe states the following in Recommendation (2010)12: “Judges remuneration should be commensurate with their profession and responsibilities, and be sufficient to shield them from inducements aimed at influencing their decisions.” The Consultative Council of European Judges in the Opinion no. 2 (2001) mentioned that “although the level of funding a country can afford for its courts is a political decision, care must always be taken, in a system based on the separation of powers, to ensure that neither the executive nor the legislative authorities are able to exert any pressure on the judiciary when setting its budget.”
Assessing the material guarantees of the judges as one of the pillars of their independence, the Parliament adopted on 23 December 2013 the Law no. 328 on their salaries.
The Court found that the Law does not establish a fixed amount of the salary, but a mere formula of its calculation. Therefore, Article 1 of the Law provides as a matter of principle that the unitary system of salaries is based on the average salary raised in the previous accounting year as a reference unity.
The Court noted that under Art. 1 of the Law, the amount of the salary of a judge shall be recalculated annually depending on the amount of average salary raised in the previous accounting year as a reference unity.
At the same time, the Court mentioned that on 16 December 2016 the Parliament passed the Law no. 281 on amending and supplementing certain legislative acts thereby inter alia amending the Law no. 328 of 23 December 2013 with Article 10/1, under which: “The basic official salary of the judges and prosecutors provided under the conditions of Art. 1 is re-examined annually as of 1st April, within the limits of the amounts envisaged for these purposes in the public national budget.”
The Court found that although a legal provision (Article 1.1) provides as a matter of principle that the salaries of judges and prosecutors are calculated based on the average salary raised in the previous accounting year, at the same time this unit of reference becomes inoperable. In other words, adopting the provision, the lawmaker has entirely conditioned the amount of the salary of a judge by the decision to be taken annually by the executive and legislative powers in allocating financial means for the salary fund of the judiciary.
The Court held that under such conditions, the amount of the salary of a judge has been rendered uncertain, contingent on the discretion of the decision-makers, which may damage the independence of judiciary.
The Court reiterated that establishing policies in the management of salaries, including those of the judges, falls within the competence of the legislative and of the executive. At the same time, when adopting solutions in the management of salaries, applicable constitutional principles shall be observed.
Concluding, the Court held that the incompatibilities and prohibitions established for the judges in the Basic Law and developed in special laws, as well the responsibilities and risks of this job, impose the requirement that the salary of the judges would be regulated in line with their status, in a way that would ensure the foreseeability of its amount. For this purpose, the provisions comprised in Article 10/1.1 of the Law no. 328 of 23 December 2013 on the salary of judges and prosecutors, in the part relating to the conditioning of the amount of the salary by the limit of the allocations envisaged in the public national budget, is in breach of Articles 6 and 116 of the Constitution of Moldova.
Judgment of the Court
Stemming from the above reasoning, the Constitutional Court of Moldova:
- Admitted partially the application of the Supreme Court of Justice and
- Declared unconstitutional the phrase ”within the amounts envisaged in the public national budget” of the Law no. 328 of 23 December 2013 on the salaries of judges and prosecutors.
The judgment of the Constitutional Court of Moldova is final, cannot by subject to any appeal, comes into effect as of the date of adoption and is published in the Official Journal of Moldova.
This is an English language courtesy translation of the original press-release in Romanian language.