Judgement
On Behalf of the Republic of Latvia
Riga,
18 January, 2010
in
Case No. 2009-11-01
The
Constitutional Court of the Republic of Latvia, composed of the Chairman of the
Court session Gunârs Kûtris, Justices Kaspars Balodis, Aija Branta, Juris
Jelâgins, Kristîne Krûma and Viktors Skudra,
having
regard to the constitutional applications of Kristîne Kalvâne-Radziòa, Valdis
Vazdiíis, Lolita Andersone, Baiba Jakobsone, Dagnija Bçrziòa, Marika Bebriða,
Sanita Rûtenberga, Ieva Reikmane, Inese Strelèa, Skaidrîte Hrebtova, Vivita
Voronova, Dace Íeire, Marita Ðalta, Signe Vilne, Jolanta Zaðkina, Gunta
Gultniece, Dina Suipe, Lîga Hâzenfuse, Ilona Petrovska, Linda Piusa, Indra
Meldere, Visvaldis Sprudzâns, Vilis Donâns, Inese Skudra, Svetlana Marðâne,
Elmârs Lenðs, Daina Treija, Ingûna Amoliòa, Iveta Brimerberga, Tamâra Broda,
Brigita Bûmeistere, Sandra Amola, Diâna Dumbre, Boriss Geimans, Smaida Gïazere,
Rihards Hlevickis, Daiga Kalniòa, Signe Kalniòa, Irîna Jansone, Ligita Kuzmane,
Guntars Kveska, Zinaida Lagzdiòa, Iveta Vîgante, Aina Nicmane, Aivars Uminskis,
Guntars Stûris, Inâra Ðteinerte, Irçna Logina, Þaneta Vçvere, Inese Laura
Zemîte, Ârija Þdanova, Juris Stukâns, Sandra Strence, Aivars Zâìers, Skaidrîte
Buivide, Daiga Vilsone, Juris Freimanis, Ligita Gavare, Dzintra
Zvaigznekalna-Þagare, Inta Jçkabsone, Sarmîte Vamþa, Valçrijs Maksimovs,
Silvija Sçbriòa, Jânis Bazçviès, Lîga Blûmiòa, Gunta Ozoliòa, Ineta Ozola,
Marianna Terjuhana, Inese Grauda, Milda Zelmene, Lidija Plièa, Lelde Grauda, Iveta
Bçrziòa, Mârtiòð Sviíis, Dace Jansone, Iveta Meldere, Zane Pçtersone, Mairita
Ðíendere, Sandra Krûmiòa, Svetlana Beïajeva, Dzintra Danberga, Tatjana Bormane,
Baiba Ozoliòa, Normunds Riòíis, Gatis Ðtauers, Gvido Ungurs, Uldis Danga, Ilze
Apse, Sanita Strakðe, Viesturs Gaidukçviès, Viktors Prudòikovs, Aija Âva, Dace
Kantsone, Anna Mihailova, Kristîne Vanaga, Ilze Freimane, Ojârs Priedîtis,
Mârtiòð Birkmanis, Dzintars Melbârdis, Aija Reitupe, Dace Âbele, Iveta Kromâne,
Kaspars Rinès, Juris Kokins, Arvîds Ozerskis, Silva Reinholde, Rita Vîva, Astra
Klaiðe, Vineta Ramba, Zaiga Zaiceva, Biruta Íeire, Laima Kraule, Roberts
Lazdâns, Ingrîda Junghâne, Inâra Rozîte, Sandra Mertena, Vineta Vaiteika, Linda
Vçbere, Dzintra Zemitâne, Aiga Freimane, Santa Sondare, Ineta Ðkutâne, Ilze
Vanaga, Inta Zaïâ, Ziedonis Strazds, Elita Stelte-Auziòa, Inese Siliòevièa,
Lauma Ðteinerte, Santa Bernharde, Þanete Þimante, Inta Rubene, Maruta Bite,
Jolanta Uminska, Inâra Strautiòa, Inguna Preisa, Velta Silamiíele, Regîna
Knabe, Dace Skrauple, Juris Siliòð, Daina Baltâ, Anita Misiuna, Intars Bisters,
Alberts Kokins, Lîga Aðmane, Irina Freimane, Inita Dzerkale, Daiga Danðina,
Kristîne Konderko, Judîte Mauliòa, Gunta Èepule, Iveta Salaka, Laila Fogele,
Iveta Kniploka, Dace Ruðko, Nellija Paòkiva, Ervîns Kuðíis, Eduards Pupovs,
Jânis Tiltiòð, Andrejs Lepse, Ramona Nadeþda Jansone, Inguna Radzevièa, Anita
Nusberga, Anita Poïakova, Ludmila Poïakova, Ausma Keiða, Pçteris Opincâns,
Iveta Krçvica, Anita Moïòika, Aelita Ignatjeva, Andrejs Mihaïèenko, Irçna
Millere, Dina Bondare, Ilze Celmiòa, Inga Krigena-Jurkâne, Ina Baiko, Ilze
Oðiòa, Svens Lorencs, Agita Dmitrenoka, Doloresa Bambere, Ilze Freimane, Agnese
Jurevica, Dagmâra Skudra, Ilona Rûíe, Jolanta Bebriða, Inga Zâlîte, Lilija
Kanaviòa, Inese Belicka, Sarmîte Daukðte, Dzintra Balta, Sandra Meliòa, Imants
Dzenis, Andis Celms, Rinalds Silakalns, Iveta Stuberovska, Vija Siliniece,
Solvita Glaudâne, Biruta Horuna, Anda Briede, Anita Èeròavska, Arnis Dundurs,
Raimonds Grâvelsiòð, Inta Lauka, Marika Senkâne, Sandra Briíe, Sanita
Zakrevska, Karina Krastiòa, Linda Vînkalna, Zita Kupce, Santa Liniòa, Ïubova
Kuðnire, Kaspars Beríis, Lîvija Slica, Valda Zommere, Ilze Amona, Anita
Ðteinberga, Una Mihailova, Sandra Gintere, Edgars Puriòð, Sanita Kanenberga, Mâris
Birzgalis, Margarita Osmane, Vilmârs Endzelis, Iluta Kovaïova, Mâra Balode,
Inâra Zariòa, Sarmîte Stûrmane, Sandra Zeire, Velta Karzone-Kere, Indra
Kreicberga, Antra Tiltiòa, Everita Ancâne, Inâra Zabarovska, Dainis Ðaicâns,
Helmuts Naglis, Skaidrîte Temïakova, Olita Blûmfelde, Mairita Zadiòa, Þanna
Zujeva, Sandra Breèa, Ieva Zabarovska, Vita Vjatere, Ilze Ieviòa, Antra Zute,
Ilze Ieviòa, Ilga Neimane, Liâna Liepiòa, Agnese Skulme, Inese Kazjonova, Irçna
Lavrinovièa, Una Melameda, Baiba Strauta, Maija Vçtra, Mârîte Vesele, Irçna
Cupika, Zeltîte Kusiòa, Arnis Naglis and Dainis Plaudis (hereinafter – the
Applicants),
according
to Article 85 of the Satversme [Constitution] of the Republic of Latvia
(hereinafter – the Satversme) and the Article 16, Paragraphs 1 and 3, Article
17, part one, Paragraph 11 and Articles 192 and 281
of the Constitutional Court Law,
on 18
December, 2008, the court session examined in written proceedings the case “On
Compliance of the second sentence of Paragraph 7 and Paragraph 17 of the Transitional
Provisions of the Law “On Judicial Power” (in the wording of 14 November, 2008
of the Law) to Articles1, 83 and 107 of the Satversme of the Republic of
Latvia”.
The
Constitutional Court has established:
1. The procedure for calculating the remuneration
of judges was set out in the Law of 19 June, 2003 “Amendments to the Law “On
Judicial Power”, which came into force on 1 July, 2003. The aforementioned Law
started a reform in the remuneration of the judges, based upon the Concept Document
“Remuneration of Judges and Court Employees”, approved with the Order No. 706
of the Cabinet of Ministers of 19 December, 2002 (hereinafter – the Concept
Document). The main aim of the Concept Document was to develop a system of
remuneration for judges, which would be the basis for the existence of a
professional, fair and independent court.
1.1. In accordance with
Article 1191 of the Law “On Judicial Power” a judge’s monthly salary
was tied to the average monthly gross remuneration of employees in the state of
the previous year, to which coefficient 4.5 was applied. At the same time a
gradual transition to the amount of remuneration set out in the Law was
envisaged. Till 2006 the monthly salary of a judge was calculated on the basis
of the average gross remuneration of the employees in 2001. Moreover, in
accordance with the Transitional Provisions, in 2003, 2004 and 2005 60, 70 and
80 percent of the calculated salary were paid, respectively.
1.2. The amendments to the Law
“On Judicial Power” of 23 February, 2006 provided that the salary should be
tied to the monthly average gross remuneration of 2001 not till 2006, but 31
December, 2006. The second sentence of Paragraph 7 of the Transitional
Provisions of the Law “On Judicial Power” also provides that the monthly salary
of judges, except the monthly salary of the judges of Land Register Offices, in
2007 and 2008 shall be calculated, taking into consideration the average
monthly gross remuneration of 2005, but in 2009 – the average monthly gross remuneration
of the employees in 2006, and that the coefficient 4.5 shall remain unchanged.
1.3. On 14 November, 2008
the Saeima [Parliament] of the Republic of Latvia (hereinafter – the Saeima)
adopted the Law “Amendments to the Law “On Judicial Power””, in which Paragraph
7 of the Transitional Provisions was worded differently. The second sentence of
this Paragraph provided: “The monthly salary of a judge, except the monthly
salary of a judge of a Land Register Office, in 2007, 2008 and 2009 shall be
calculated, taking into consideration the average monthly gross remuneration of
employees in 2005, keeping the coefficient 4.5 unchanged” (hereinafter – the contested
Paragraph 7).
1.4. The system of remuneration for judges of Land Register Offices was
introduced simultaneously with the system of remuneration for judges, by
including in the Law “On Judicial Power” Article 1201 ,worded as
follows: “The monthly salary of a judge of a Land Register Office shall be
calculated by applying the coefficient 2.5 to the average monthly gross
remuneration of the employees in the state, as announced in the official
statistical report of the Central Statistical Bureau, which has been
approximated till lats.”
1.5. With the amendments of 8 November, 2007 the coefficient 3.5 was set,
simultaneously envisaging a transitional period till 2009.
With the amendments of 14 November, 2008 the
coefficient 4.5 was set. However, Paragraph 17 of the Transitional Provisions,
provided:
“The monthly salary of a judge
of a Land Register Office shall be calculated as follows:
till 1 January, 2009 – in
accordance with the average monthly gross remuneration of the employees in the
state, as announced in the official statistical report of the Central
Statistical Bureau, which has been approximated till lats, applying to it the
coefficient 2.5;
in 2009 – taking into
consideration the average monthly gross salary of the employees in 2006,
applying the coefficient 2.5;
in 2010 – in accordance with
the average monthly gross remuneration of the employees in the state, as
announced in the official statistical report of the Central Statistical Bureau,
which has been approximated till lats, applying to it the coefficient 3.5”
(hereinafter also – the contested Paragraph 17; hereinafter the contested
Paragraph7 and 17 jointly also – the contested provisions).
2. The Applicants
consider that the contested provisions set out a more disadvantageous
regulation compared to the previous method (procedure) for calculating the
judge’s salary, since the contested provisions envisage that the judges’
salaries remain unchanged for three subsequent years – 2007, 2008 and 2009. This,
actually, is said to be a decrease in the amount of the judge’s remuneration.
The
Applicants indicate that it follows from Article 107 of the Satversme, which, inter alia, defines the rights to every
employee to receive a commensurate remuneration for the work done, that a
commensurate remuneration is such, which also adequately reflects the character
of the work done. Thus, for a remuneration to be commensurate, when setting it
the work to be done by the person must be duly taken into consideration. It is
said that also from the rights to receive a commensurate remuneration for the
work done follows that, when setting the remuneration for judges, the principle
of the independence of courts must also be taken into consideration. Namely,
the judges’ remuneration could be recognised as being commensurate for the work
done only if, when setting it, the principle of the independence of courts, had
been taken into consideration. Moreover, both the method for setting the
remuneration and the amount of remuneration should be of the kind that ensures compliance
with the principle of the independence of courts.
The
Applicants express the opinion that by setting the remuneration for judges the
principle of legal certainty, the principle of legal stability (Article 1 of
the Satversme) and the principle of the independence of courts (Article 83 of
the Satversme) have been violated. The judges’ social guarantees, which are
granted to the judge during the term in office, and also after the expiry of
the mandate, are said to be one of the elements of the independence of judges.
The judge should receive an adequate remuneration, which cannot be decreased
during the judge’s term in office. Any attempt to decrease the judges’ remuneration
or other social guarantees should be considered as a breach of the principle of
the independence of courts.
The
Applicants emphasize that the contested provisions also violate the principle
of legal stability. By arbitrary amending the procedure for calculating the
salary set out in the Law “On Judicial Power”, the Applicants are said to be
denied the possibility to base their future activities upon the laws and acts
of legislation that are in force and effectively plan their income and
expenditure.
The
Applicants’ legal certainty that the reform of the judges’ remuneration would
not be stopped had been even more strengthened by the principle of the
independence of judges. Namely, they had developed a certainty that the
legislator would abide by the principle of the independence of judges and would
not amend the law in such a way as to decrease the amount of the judges’
remuneration, which the judges had reckoned with.
After examining
the case materials the Applicant K. Kalvâne-Radziòa noted that a judge in administering
justice has been granted one of the state powers defined in the Satversme – the
judicial power. Therefore, the judge, undoubtedly, must be a highly qualified
lawyer, who is doing a responsible job and, thus, also receive remuneration
commensurate to it. However, the comparison of the remuneration of the judges
and the lawyers and heads of the structural units working in public
administration, allows concluding that the work of the judges is valued
significantly lower. This proves that the judges’ remuneration already before
the contested provisions were adopted was not commensurate to the status of the
judge. It could not be understood, why the remuneration of judges had to be
kept unchanged since 2007, but the remuneration of the officials of the
institutions of public administration since 2007 increased significantly,
moreover, even in 2009. Thus, the arguments provided by the Saeima about the
international commitments, which had set upon the legislator the duty to
decrease the remuneration of all employees working in institutions funded from
the state budget, do not hold ground, likewise – the arguments about the
principle of solidarity, upon which the decrease of the employees working in
all branches of state power, is founded.
After the
introduction of these amendments to the law the work of a judge, as regards its
material appreciation, is no longer attractive to a highly qualified lawyer.
Moreover,
the judge indicates that the reference made by the Saeima to the signed Letter
of Intent with the International Monetary Fund of 18 December, 2008 and
Memorandum of Understanding with the European Commission signed on 28 January,
2009 is not proper, since the aforementioned documents were created after the
adoption of the contested provisions.
3. The Saeima – the
institution that has passed the contested provisions – in its written response
indicates that the adoption of the contested provisions was linked to the fast
economic recession, which is still ongoing. The official data of the Central
Statistical Bureau prove that – considerable decrease of the gross domestic
product, revenues and expenditure deficit of the public sector, the decrease of
the industrial production, decreasing retail sales, growing unemployment level.
To compensate for the lack of finances, Latvia took international loans, in order
to obtain and to use them a number of conditions were set for Latvia, including
ones applicable to the decrease of remuneration. The Letter of Intent with the
International Monetary Fund, signed on 18 December, 2008, serves as the basis for
obtaining the loan, Paragraphs 24 and 30 of which envisage measures for
decreasing the remuneration both in 2009 and in subsequent years, and also the
Memorandum of Understanding with the European Commission signed on 28 January,
2009.
It is
said that it follows from these documents that a targeted and timely
implementation of The Latvian Programme for Stabilising the Economy and
Restoring Growth (approved with Order No. 123 of the Cabinet of Ministers of 19
February, 2009) is the most significant pre-condition for obtaining the
international loan, and this Programme is said to apply also the judges’
remuneration. Consequently, the measures for preventing the economic recession
are focused upon reaching the aims referred to in Article 116 of the Satversme – protection of the rights of other
people and public welfare.
The
Saeima holds the opinion that the adoption of the contested provisions is only
one among numerous measures implemented to reach the aforementioned aims. The
contested provisions first of all are needed to safeguard the interests of the
state budget, since the actions of the state are founded upon self-financing,
and a situation, when the expenses exceed the revenue, could not be allowed in
the long-term. Thus the goal of the restrictions, which the contested
provisions contain, is said to be not only safeguarding the interests of the
state budget under the conditions of economic recession, when the budget
expenditure must be decreased and balanced with the revenue, but also to realise
the rights of other persons to social security. Thus, the adoption of the
contested provisions had been necessary and urgent, and it had a legitimate aim
– ensuring the public welfare and protection of the rights of other persons. Moreover,
the contested provisions have a fixed term.
The
Saeima simultaneously indicates that the principle of the independence of
courts cannot be linked only with the amount of judges’ remuneration set in the
legislation. A complex and systemic assessment of compliance with this principle
is needed.
The independence of the
system of courts (the institutional dimension) and the independence of judges
(the individual dimension) is said to follow from numerous criteria: absence of
direct interference of other powers (executive and legislative) in the
administration of justice, sufficient funding to the system of courts for fulfilling
its organisational and administrative functions, guaranteed social security and
activities to the judges (selection of candidates for the office of judge,
irrevocability and immunity of a judge), impartial allocation of cases, the
reviewing of the court judgements according to the procedure set out in the
legislation, etc.
The Saeima emphasizes that at present the remuneration
for judges’ work is commensurate with the character of the job, the skills
needed for performing the job and the responsibility, conforms with the
requirements and restrictions set in the law, and, moreover, is balanced with
the status and the remuneration of other officials of the judicial system, as
well as with the general level of salaries in the state. Therefore a breach of
Article 107 of the Satversme cannot be identified. Thus the adoption of the contested
provisions is said to follow logically from the legislator’s discretion and the
duty to strike a balance between the interests of various social groups. The
judges’ remuneration is not the only factor ensuring the independence of the
judiciary, and the stopping of its increase per
se does not create a threat to the independence of the judiciary,
especially so, considering the fact that the judges’ remuneration is far from
being incommensurably low.
The Saeima holds the opinion that the setting of the
remuneration falls within the sphere of social rights, which is inseparably
linked with the state’s financial possibilities, therefore the legislator, in
regulating the aforementioned legal relationship, has been granted a wide
discretion. The legislator’s decisions on the implementation of social rights have
an important political dimension, which is influenced by the economic situation
of the state and resources available to it, therefore concerning the
implementation of social rights the legislator cannot be set as strict
requirements as with regard to the ensuring of other human rights. Thus, the
social rights are said to be special and different from the human rights.
The
Saeima indicates that the contested provisions are an exceptional and fixed-term
measure, implemented under the conditions of economic recession. Moreover,
prior to the adoption of the draft law in the last reading, the possible alternatives
had been meticulously assessed. The possibility to compensate for the losses
incurred by the judges, if such were caused with the Paragraph 7 or 17 of the
Transitional Provisions, from the resources allocated to the Ministry of Finances
budget sub-programme “Resources for unforeseen events” had been considered. However,
this solution gained no support, because it would not have helped to reach the
legitimate aim on a sufficient scale, i.e., since the contested provisions were
adopted to economize the financial resources, the resources for introducing an
appropriate mechanism of compensation would also be lacking. By adopting the
contested provisions the Saeima did not breach the judges’ rights to adequate
financial guarantees at least on the minimum level, did not act unfairly vis-á-vis some social groups, and
did strike a balance between the rights of various social groups. Moreover, the
decrease of remuneration was introduced also with regard to other bodies of state
power, public and local government institutions of administration. The judges’
salaries are funded by the state budget. The remuneration of other officials
(employees) of state and local government institutions was decreased, but the
contested provisions envisage only staying the increase of the remuneration. In
view of the fact that the remuneration of all employees funded from the state
budget, including the President of the State, the Prime Minister, ministers and
members of the Saeima, was decreased, the Saeima holds the opinion that the
principle of solidarity was complied with. Thus, the contested provisions
comply with the principle of solidarity and do not breach the principle of the
independence of courts.
The
Saeima also does not agree to the opinion of the Applicants that the contested
provisions do not comply with the principle of legal certainty. The principle
of legal certainty is one of cornerstones of a democratic state, which follows
from Article 1 of the Satversme, and it has the aim to promote the
predictability and certainty of legal acts, as well as the stability of legal
relationship between the state and the person. However, the principle of legal
certainty does not prohibit introducing amendments, conforming to certain
requirements, to the existing legal regulation.
The
Saeima emphasizes that neither the principle of legal stability or fairness
prohibit deviating away from the previous practice. It is not only permissible,
but even necessary in those cases, when the most appropriate and obviously
better suited solution has to be chosen.
The
Saeima holds the opinion that in the said situation retreating from the legal
regulation most favourable to the person is admissible, since the individual is
granted the possibility to understand the motivation behind these actions, as
well as whether a regulation like this under these conditions is objectively
necessary and whether the breach is not arbitrary. The principle of legal
certainty is said to be a constitutional value. Likewise, the protection of the
rights of other persons and ensuring social welfare, by effectively
re-distributing the common good and by balancing the revenues and the
expenditure of the state, is also a constitutional value.
The
Saeima believes that in the case, when several constitutional values interact,
the legislator has the discretion to decide upon the most appropriate solution.
A mechanical protection of legal certainty in those cases, when it contradicts
other constitutional values, cannot be absolute.
In
addition to the aforementioned arguments about the necessity and the
proportionality of the contested provisions, the Saeima also notes that the in
this case the principle of legal certainty should be viewed also in the context
of the principle of equality, i.e., the intangibility or increase of the “benefits”
granted to one group automatically means the worsening of the material status
of a group of other persons. Thus, a situation when the decrease of
remuneration affected all employees of the public sector, but not the
representatives of the judiciary and a greater decrease of the remuneration
were applied to other employees of the public sector would not be permissible. The
Saeima, by assessing the experience of other countries – the Chez Republic,
Canada and Lithuania, in dealing with the issue of judges’ remuneration, has
concluded that in accordance with the case law of these countries, the decrease
of judges’ remuneration breaches neither the principle of the independence of
judges, nor the principle of legal certainty.
The
Saeima requests to declare the contested norms compatible with the Satversme.
4. The Ministry of Justice indicates
that the draft law “Amendments to the Law “On Judicial Power”” (in the wording
of 14 November, 2008) had to be drafted within a week, since it was scheduled
for examination at the Cabinet of Ministers meeting simultaneously with other 2
draft laws of the 2009 budget package. The Cabinet of Ministers, disregarding
the objections of the Minister for Justice, adopted this draft law.
The
Ministry of Justice holds the opinion that the breach of the principle of legal
certainty could be referred to only in the case if the previous legal
regulation established by the legislator had created grounds for legal
certainty. In applying the principle of legal certainty it is also important
whether the person’s relying upon a legal norm is lawful, justified and
reasonable, as well as, whether the legal regulation as to its essence is sufficiently
definite and permanent to be relied upon. Due to the instability of the
economic situation the provisions of the law, which set out the procedure for
calculating the judges’ remuneration in 2008 and 2009, have been amended
several times. The requirement for the legal provision to be consistent with
the system and the present assessment holds priority compared to the principle
of legal stability and strict abiding by the previous practice even when it is
no longer acceptable.
The Ministry of Justice notes that if abiding
by the principle of proportionality would create a situation when a decrease of
remuneration affects all public sector employees, except the representatives of
the judiciary, it would be inadmissible. In such a case even greater decrease
of funding would have to be introduced in other sectors of national importance.
Comparing the infringement of the judges’ interests caused by the decrease in
their remuneration to the infringement of the interests of the whole society in
the same situation and assuming that, for example, even greater decrease of
funding would be needed in the public administration or social sphere, it can
be concludes that in adopting the decision on decreasing the judges’
remuneration the principle of proportionality was complied with.
At the
same time the Ministry of Justice points out the negative consequences linked
to the decrease of the judges’ remuneration. The negative consequences can manifest
themselves both as difficulties in attracting qualified candidates for judge’s
office for working in the profession, as well as a negative impact upon the
prestige of the judiciary. In the context of the first aspect the Ministry of
Justice informs that the period from 2004 to 2009 constantly had constantly vacancies
for judges’ positions. Namely, it had been impossible to ensure the necessary
number of judges for effective functioning of courts and Land Register Offices.
The Ministry of Justice expresses the opinion that a competitive remuneration
is an essential pre-condition for selecting qualified candidates for the
judges’ position, as well as an incentive for highly qualified professionals to
stay in their jobs at the courts, instead of looking for another, better
remunerated position.
The number of judges set by the Saeima had not been ensured for several
years. Moreover, the workload of the courts and the number of cases submitted
to the courts is constantly growing. An exceptional increase of the number of
civil cases was observed in 2008 and 2009. For example, in 2009 the number of
civil cases submitted to the district (city) courts compared to the previous
year increased by almost 100 percent. Thus, taking into consideration the large
increase of the workload, the legislator had kept unchanged the amount of the
judges salary, which potentially, indeed, could lead to the aforementioned
negative consequences, as well turn into the grounds for increased term for
reviewing the cases.
The Ministry of Justice indicates that, on the one hand, the judges are
the ones who create and maintain the prestige of the judiciary, by passing fair
and justified judgements, but, on the other hand, the prestige of the judiciary
is the grounds for choosing the profession of a judge. The executive power and
the legislator by adopting decisions on the budget recourses needed by the
judiciary, indirectly and directly influence the funding of the judiciary and
thus – an effective functioning of the judiciary. The fact that the executive
power and the legislator can pass decisions related to the functioning of the
courts, without taking into consideration the objections expressed by the
representatives of the judiciary, may be a reason to doubt whether the
principle of equality among all branches of the state power is enforced.
Moreover, the Ministry of Justice draws attention to the fact that the
decrease of the judges’ salaries could lead to social consequences. This could adversely
affect the economy and the society in general, since the length of court
proceedings would increase.
However, the Ministry of Justice concludes that the decrease of judges’
remuneration per se does not breach
the principle of the independence of judges, or the principle of legal
certainty, and complies with the principles of equality and proportionality.
The Constitutional Court holds that:
5. The competence of the Constitutional Court to examine this case is not
disputed, however, the special character of the issue demands assessing and
justifying the rights of the Constitutional Court.
One of the fundamental principles of a democratic state enshrined in
Article 1 of the Satversme is the principle of the division of power, which
includes the control of the judiciary over the legislator and the executive
power. Not a single legal provision or an action of the executive power can
stay outside the control of the judiciary, if it infringes the interests of any
person. [see:
Judgement of 9 July, 1999 by the Constitutional Court in the case No. 04-03(99)
para. 1 of the Concluding Part]. The judiciary
as a whole and the Constitutional Court as part of it has to ensure as complete
control of two other branches of power as possible (see: Judgement of 22 February, 2002 by the Constitutional
Court in the case No. 2001-06-03 para. 1.2. of the Concluding Part).
Examining the competence granted to the
Constitutional Court by Article 85 of the Satversme to assess the compliance of
laws with the Satversme, it can be concluded that the Constitutional Court
decides on specific disputes concerning the compliance of legal norms with norms
of higher legal force. (see: Judgement of 20 December, 2006 by the
Constitutional Court in the case No. 2006-12-01, para. 9.2.).
The Constitutional Court, assessing the compliance of a law with the
Satversme, implements the principle of supremeness, thus ensuring
constitutional fairness. Neither the Satversme nor the Constitutional Court Law
grant to the Constitutional Court the right to refuse to examine the compliance
of a law or another legal provision with the Satversme, likewise, do not give
the rights to anybody to prohibit the Court from fulfilling its functions or to
restrict the Court in the fulfilment of its functions.
Thus the Constitutional Court has the jurisdiction to
examine the constitutionality of a decision adopted by another branch of power
even in those cases when such decisions affect the judiciary.
6. The Applications contain a request to assess the
compliance of the contested provisions with Articles 1, 83 and 107 of the
Satversme. The compliance of the contested provisions with the principle of
legal certainty, which follows from Article 1 of the Satversme, in the
framework of this case must be examined in interconnection with the independence
of the judge included in Article 83 of the Satversme.
Likewise,
in assessing the compliance with the right, set out in Article 107 of the
Satversme, to receive remuneration commensurate with the work done with regard
to the judges, the requirement of independence, included in Article 83 of the
Satversme, must be taken into consideration. Therefore, first of all the
content of Article 83 of the Satversme must be demonstrated, therefore the
Constitutional Court will start by assessing the compliance of the contested provisions
with Article 83 of the Satversme.
I
7. Article 83 of the Satversme provides: “Judges shall be independent and
subject only to the law.” The independence of the judges and the court defined by
this provision is one of the fundamental principles of a state, which is
democratic and governed by the rule of law.
“The
authors of the Latvian Satversme and the constitutions of democratic states
demand an independent judiciary and a special status of the judge not because
some people just like it, but because it is an absolutely necessary constituent
part of a democratic state, governed by the rule of law. (Endziòð A. Tiesu sistçmas un politikas saskarsme un dinamika. Jurista
Vârds, 2002. gada 7. maijs, Nr. 9 [Endziòð A. The Interrelation and
Dynamics of the System of Courts and Politics.]).
The
task of the judiciary is to see to it that in administering justice the state
constitution, laws and other legal acts are enforced, that the principle of the
rule of law is abided by, and that human rights and freedoms are protected (see:
Judgement of 18 October, 2007 by the Constitutional Court in the case No. 2007-03-01,
para. 26.).
The
independence of the court and the judges is not an end in itself, but only a
means for ensuring and strengthening democracy and the rule of law, as well as
a mandatory pre-condition for realising the rights to a fair trial; therefore
the principle of independence of the court and the judges included in Article
83 of the Satversme has to be examined in interrelation with Article 1 of the
Satversme, which includes the principle of the rule of law and the division of
power, as well as the first sentence of Article 92 of the Satversme, which sets
out the right of a person to defend his or her rights and lawful interests in a
fair court.
7.1. The concept “fair court”, mentioned in Article 92
of the Satversme, contains two aspects, namely, “a fair court” as an
independent and impartial institution of the judiciary, which reviews a case,
and “a fair court” as a proper procedure, conforming with a state ruled by the
rule of law, for reviewing a case. The first aspect is linked to the principle
of the judges’ independence included in Article 83 of the Satversme (see:
Judgement of 4 February, 2003 by the Constitutional Court in the case No. 2002-06-0,
para. 1. of the Concluding Part).
The
requirement set in the international documents for the independence of judges
falls within the content of the right to a fair court. Article 6 of The
European Convention for the Protection of Human Rights and Fundamental Freedoms
(hereinafter – the Convention) provides that everybody “is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.” Article 14 of the UN International
Covenant on Civil and Political Rights contains a similar wording.
Apart
from the aforementioned international documents ratified by the Republic of
Latvia, there is a number of documents developed by international institutions,
which have been adopted so that the member states in their laws and practice
would follow the principles they contain, for example, the United Nations Basic
Principles on the Independence of the Judiciary (See: Apvienoto Nâciju Tiesu varas neatkarîbas pamatprincipi //
Latvijas Vçstnesis, 1995. gada 28. septembris, Nr. 148 [The
United Nations Basic Principles on the Independence of the Judiciary]), the
Council of Europe Committee of Ministers Recommendation
No. R (94) 12 to Member States On Independence, Efficiency and
Role of Judges of 13 October, The Consultative Council of European Judges
Opinion No 1 on standards concerning the independence of the judiciary and the
irremovability of judges, European Charter on the Status of Judges, Council of
Judges, 8–10 July 1998, Universal Charter of the Judge adopted by the Central
Council of the International Association of Judges in 1999, Judges’ Charter in
Europe adopted by the European Association of Judges on March 20, 1998. Even though
these documents should be perceived only as guidelines, they impose strict
moral and political duties for the states and must be used as a means for
clarifying the content of the criterion of judges’ independence.
The
European Court of Human Rights, when analysing the content of the term “fair
trial” included in the first sentence of the first part of Article 6 of the
Convention, has concluded that several criteria must be considered, for
example, the procedure for appointing to the office the members of the said
institutions, the term for which they are appointed, safeguards against
external influence, the presence of external features of independence (see: Judgements of the European Court of
Human Rights in the case Campbell and Fell v. The United Kingdom 78. §,
judgement in the case Langborger v. Sweden 32. §, judgment in the case
Bryan v. The United Kingdom 37. § and judgement in the case Coeme and
others v. Belgium 120. §).
The independence of judges is important for everybody who turns to the court
and relies upon fairness in the administration of justice.
Thus, an effective realisation of human rights is
impossible, if the judges are not independent.
7.2. The principle of the rule
of law is one of the principles of a democratic state. Only an independent
judiciary is able to ensure a fair result of the court proceedings, which is
the foundation for the rule of law.
The
requirement that the judges must be protected against any kind of unfounded
interference into the administration of justice and the fulfilment of the
judges’ duties, is not only justified and reasonable, but is even essential for
safeguarding the rule of law.
The
United Nations Economic and Social Council in the Preamble to the Bangalore
Principles of Judicial Conduct (hereinafter – the Bangalore Principles) has
indicated: a competent, independent and
impartial judiciary is essential if the courts are to fulfil their role in
upholding constitutionalism and the rule of law. (See: Bangalore Principles of Judicial
Conduct, 29 April, 2003, United Nations Commission on Human Rights resolution
2003/43, Preamble). Anyone with regard to whom justice is administered is
interested in ensuring the independence of judges.
Thus, the independence of judges guarantees the
safeguarding of the rule of law in the interests of the society and the state.
7.3. Only in such a state, in
which the principle of the division of power guarantees the balance between the
branches of state power and reciprocal control, preventing the tendencies of
any branch to domineer, by promoting the moderation of power and thus ensuring
a truly independent judiciary, the independence of judges can be ensured.
The aim
of the division of power is to maintain the guarantees of person’s freedom, preclude
the replacement of the model of state governed by the rule of law with an
authoritarian regime or an autocracy of a single person. In a state governed by
the rule of law the principle of the division of power guarantees the balance
and reciprocal control between the branches of state power. This exactly gives
the judges the possibility to fulfil their duties in a proper way.
Thus the requirement of the judges’ independence is
closely linked with the independence of the judiciary and thus, also, with the
implementation of the principle of the division of power.
8. The Constitutional Court must asses, whether the
setting of the judges’ remuneration falls within the content of the principle
of the independence of judges contained by Article 83 of the Satversme.
The
Constitutional Court, when analysing the constitutional grounds, aims and
significance of the independence of the judge, already indicated that it is
impossible to ensure the necessary independence of the judge, unless the
judiciary itself as a whole is not free from unjustified influence or the
political pressure exerted by the executive power or the legislator.
8.1. The United Nations Basic
Principles on the Independence of the Judiciary provide that it is the duty of
every state to provide adequate resources to enable
the judiciary to properly perform its functions.
(See: Apvienoto Nâciju Tiesu varas
neatkarîbas pamatprincipi // Latvijas Vçstnesis, 1995. gada
28. septembris, Nr. 148, 7. § [The United Nations Basic Principles on
the Independence of the Judiciary). The UN ECOSOC in its Resolution No.
1989/ 60 of 24 May, 1989 has pointed out that the states must pay special
attention to the resources needed to ensure the functioning of the judiciary, inter alia, by setting an adequate
number of judges, appropriate for the number of cases to be examined, ensuring to
the courts the necessary staff support and technical means, by providing to the
judges appropriate personal security and remuneration. (see: Procedures for the effective implementation of the
Basic Principles on the Independence of the Judiciary, ECOSOC resolution
1989/60 of 24 May 1989).
Abiding
by the principle of the division of power included in the Satversme and the
requirement of the independence of judges, as well as other internationally
recognised requirements, the legislator in Articles 10 and 117, respectively,
of the Law “On Judicial Power” has provided that the system of courts shall be
funded from the state budget. The state, by envisaging an appropriate funding,
guarantees an effective legal protection of a person in a competent and
independent court. Therefore only such funding of the judiciary, which ensures
the fulfilment of these duties, complies with the Satversme.
On the one
hand, taking into consideration that the budget is a means for implementing the
policy of the state and that decisions concerning the state budget can be taken
only and solely by the legislator, but, on the other hand, taking into account
that the institutions of the judiciary themselves can make the most unbiased
estimates on the amount of resources needed to ensure the functioning of court,
a reasonable compromise must be found between the guarantees of the judiciary
and the budget possibilities.
The
legislator, prior to taking decisions on the functioning of courts – both on
issues linked to the budget, as well as other issues related to the realisation
of the functions of the courts, must give a possibility to the judiciary or an
independent institution, representing the judiciary, if such has been
established, to express their opinion on issues affecting the functioning of
courts. The Ministry of Justice likewise points out: in a situation, when decisions
linked to the functioning of courts can be adopted, without taking into
consideration the objections expressed by the representatives of the judiciary
“may be a reason to doubt whether the principle of the equality of all branches
of the state power is enforced” (case
materials, Vol.2, p.20). In a democratic state the principle of the
division of power not only divides the branches of the state power, but also
contains the requirement of their reciprocal cooperation, since the shared aim
of all branches of power is the strengthening of democracy in the interests of
the nation.
If the
legislator because of objective reasons cannot agree with the opinion of the
judiciary, it has to justify its decision.
8.2. The Constitutional Court
agrees to what the Saeima has pointed out in its written response, namely, “the
principle of the independence of court cannot be linked only with the amount of
judges’ remuneration set in the legislative acts, the adherence to this
principle needs a complex and systemic assessment” ( case materials, Vol.1, p.94).
The
independence of judges is connected with a number of such guarantees: guaranteed
tenure of the judge (the procedure for appointing or approving judges, the
qualification necessary for the appointment, guarantees of irremovability,
conditions for promotion and transfer to another position, conditions for
suspending and terminating the mandate), the immunity of the judge, financial
security (social and material guarantees), the institutional (administrative)
independence of a judge and the actual independence of the judiciary from the
political influence of the executive power or the legislator. All these
guarantees are closely interlinked, and, if even one of them is disproportionally
restricted, then the principle of the independence of judges is breached and
thus the fulfilment of the basic court functions and ensuring human rights and
freedoms come under threat.
The
financial security of a judge is one of the guarantees of the independence of
judges. The constitutional doctrine points out several aspects in judges’
financial security, however, in all democratic states the judges’ financial
security is clearly recognised as one of the most essential elements in
ensuring judges’ independence (See, for
example, the Judgement of 14 July, 2005 by the Constitutional Court of the
Czech Republic in the case Pl. US 34/04).
The
Constitutional Court of Lithuania has concluded that it is generally accepted
in democratic states that a judge, who has to examine legal disputes occurring
in society, including disputes between persons and the state, must have not
only high professional qualification and perfect reputation, but also must be
materially independent and feel secure about his or her future. (See: Judgement of 12 July, 2001 by the
Constitutional Court of the Republic of Lithuania in the case No. 13/2000-14/2000-20/2000-21/2000-22/2000-25/2000-31/2000-35/2000-39/2000-8/01-31/01,
para. 4.5., http://www.lrkt.lt/dokumentai/2001/r010712.htm).
The state has the obligation to set such remuneration for judges that would be
commensurate with the status, functions and responsibility of a judge. The
safeguarding of judges’ remuneration is one of the guarantees of judges’
independence.
Likewise,
the documents developed by international institutions point out that the
independence of judges must be linked with judges’ remuneration and other
material and financial guarantees.
The
UN Human Rights Committee in General Comment No 32 has indicated that member
states should take specific measures guaranteeing the independence of judges
and protecting judges from any form of political influence in their
decision-making, inter alia, by
establishing judges’ remuneration. (see:
International Covenant on Civil and Political Rights, Article 14, General Comment
No. 32, para. 19).
The
United Nations Basic Principles on the Independence of the Judiciary, which
have been defined to help the member states to fulfil their task – to ensure
and to promote the independence of the judiciary, provide, inter alia, that an adequate remuneration must be secured by the
law. (See: Apvienoto Nâciju Tiesu varas
neatkarîbas pamatprincipi, 11. punkts // Latvijas Vçstnesis,
1995. gada 28. septembris, Nr. 148 [The United Nations Basic
Principles on the Independence of the Judiciary).
The Council of Europe Committee of Ministers Recommendations No. R
(94)12 Principle III “Proper working conditions”, specifically its paragraph
1.”b” provides: “Proper conditions should be provided to enable judges
to work efficiently and, in particular, by ensuring that the status and
remuneration of judges is commensurate with the dignity of their profession and
burden of responsibilities” [Recommendation No. R (94) 12,
Principle III, para. 1. b].
Paragraph 6.1 of The European Charter on the Status of
Judges provides: “The level of the remuneration to which judges are
entitled for performing their professional judicial duties must be set so as to
shield them from pressures intended to influence their decisions or judicial
conduct in general, impairing their independence and impartiality” (European
Charter on the Status of Judges, para. 6.1).
Article 13 of The Universal Charter of Judge adopted by
the International Association of Judges in 1999 provides: “The judge must
receive sufficient remuneration to secure true economic independence. The
remuneration must not depend on the results of the judge’s work and must not be
reduced during his or her judicial service.” (Universal Charter of the Judge, para. 13).
Thus a commensurate remuneration for work falls within
the content of the principle of the independence of judges included in Article
83 of the Satversme.
9. The Constitutional Court already concluded that
the content of the independence of a judge contains an adequate remuneration. However,
as it follows from the documents developed by international institutions
already referred to in this Judgement, the remuneration of a judge must be comparable
to the prestige of his or her profession and the scope of responsibility. The
United Nations Economic and Social Council in the Preamble to the Bangalore
Principles has pointed out: if the courts are
to fulfil their role in upholding constitutionalism and the rule of law, it is
essential to have not only an independent and impartial judiciary, but also a
competent one. (See: Bangalore
Principles on Judicial Conduct, Preamble).
Taking
into consideration the status of the judge and the fact that he fulfils the
function of the administration of justice, the legislator has not only the
right, but also the duty to set with regard to him or her as the implementer of
the judiciary special requirements as to the competence, qualification and
experience, as well as restrictions aimed at ensuring the independence of the
judge. The Law “On Judicial Power” defines the requirements set for the judge,
the rights and the obligations, as well as the restrictions set for a judge.
But in accordance with the third part of Article 7 of the Law “On Avoiding the
Interest of Conflict in the Actions of State Officials”, the judges are allowed
to combine the status of a state official only with such positions that they
occupy in accordance with the law or international agreements approved by the
Saeima, regulations and orders of the Cabinet of Ministers, the work of a
pedagogue, researcher, professional athlete or creative work.
The
Supreme Court of Canada has pointed out that with regard to the setting of
judges’ remuneration, the independence of the judge and the court is not the
only essential issue. This requirements has two more purposes: 1) to
promote judicial productivity, since judges with a sense of financial security
are more likely to work above and beyond the call of duty; 2) to recruit
to the bench lawyers of great ability and first-class reputation (see. Judgement of 18 September, 1997 by the
Supreme Court of Canada, Reference re Remuneration of Judges of the Provincial
Court of Prince Edward Island, [1997] 3 S.C.R. 3).
The
constitutions or the constitutional laws of some countries include special
requirements with regard to the judges’ remuneration. For example, the second
paragraph of Article 178 of the Constitution of Poland provides that the
judges’ salaries should be consistent with the “dignity of their office” and scope
of their duties, Article 88 of the Constitution of Greece provides that the
judges’ remuneration should be comparable with the office of the judge.
It is
only justified and reasonable to set the remuneration commensurate with the
responsibility linked to the significance of the office and the workload, the
requirement of independence, as well as the rank of the specific office within
the constitutional legal order. For example, the Constitutional Court,
assessing the remuneration of the members of the Saeima, has found that:
“The
remuneration of a member of the Saeima should be commensurate with the
responsibility and the workload linked with the importance of the office, as
well as the rank of this office within the constitutional legal order. [...] Moreover,
the restrictions imposed upon the economic activities of the deputies by the Satversme
and the Law on Prevention of Corruption should be taken into consideration. The
deputy’s remuneration “is first of all a guarantee of his or her independence” (Judgement of 22
February, 2002 by the Constitutional Court in the case No. 2001-06-03, para. 5.1. and 6.1. of the
Concluding Part).
Likewise,
the purpose of judges’ remuneration is both to ensure the independence and to
partially compensate for the restrictions set in the law. Moreover, it should
be taken into account that a judge, who is independent, but lacks adequate qualification,
is unable to ensure the right to a fair trial, precise interpretation of the
laws and the protection of constitutional values.
Undeniably,
the state is interested in ensuring not only a sufficient number of independent
and competent judges, but also the functioning of other independent and
competent officials. The Constitutional Court agrees to what has been pointed
out by the Cabinet of Ministers that the President of the Bank of Latvia, his
deputy, the members of the Council of the Bank of Latvia, the chairperson,
deputy-chairperson and the council members of the Financial and Capital Market Commission
have to be both independent and competent. (see:
case materials, Vol. 7, pp. 66 - 71). However, these are not the only
officials, whose competence and independence the state and the society are
interested in.
Considering
the judge’s mandate, the qualification and competence requirements set for him
or her, as well as the impact and significance of a judge’s decisions, the
position of a judge should be the highest stage in a lawyer’s career. The
legislator has provided that this office can be occupied only by persons who
have reached the age of 30. For a lawyer, who has acquired certain experience,
to change a job and start a career of a judge at this age, he or she needs not
only the mandatory qualification, experience and confidence, but also an
appropriate financial security and guarantees.
Thus, the requirement to ensure an appropriate
remuneration to a judge is linked not only with the principle of the
independence of a judge, but also with the qualification and competence
requirements set for and the restrictions imposed upon a judge.
10. To establish, whether the
contested provisions infringe the independence of a judge, it must be examined,
whether Article 83 of the Satversme contains a prohibition to decrease judges’
remuneration.
Article 83 of the Satversme sets out that “judges shall be independent and subject only to the law.” Thus,
this provision expressis verbis does
not contain a prohibition to decrease judges’ remuneration. The Constitutional
Court already indicated that the scope and the content of the principle of the
independence of judges included in the Satversme is assessed not only in
interconnection with other constitutional provisions and principles, but also taking
into consideration Latvia’s international commitments in the field of human
rights.
10.1. Judges’ Charter in Europe indicates that one of the
principles of judges’ independence is that “judicial salaries must be adequate,
to ensure that the Judge has true economic independence and must not be cut at
any stage of a Judge's service.” (Judges’
Charter in Europe, para. 8). In some countries (for example, the United
States of America, Australia) the prohibition to decrease the remuneration of
judges is expressly set out in the constitution.
For
example, Article 3, Section I of the United States Constitution already from
the end of the 18th century contains a direct prohibition to
diminish a judge’s remuneration during his term in office. The Supreme Court of
the United States in its Judgement of 1920 indicated that the primary purpose
of this provision was not to benefit the judges, but to attract fit men to the
bench and insure independence of action and judgment. Any withholding from the
judge of what was promised to them must be regarded as within the prohibition
set out in the Constitution. (See: The
Judgement of the US Supreme Court in the case Evans v. Hatter 532 U.S. 245
(1920) http://supreme.justia.com/us/253/245/case.html).
Thus, the prohibition directly included in the Constitution of the state to
decrease judges’ remuneration is aimed also at the safeguarding the judges’
independence.
10.2. The understanding of general values, including the independence of
judiciary and democracy, depend upon the history and the traditions of a state.
In those states, in which quite recently a single partly ruled, it might be
difficult to accept the understanding that the independence of the judiciary
demands its separation from the political power. (See: The Cambridge Yearbook of European Legal Studies, Volume 4, 2001, p. 54).
The issue
of decreasing judges’ remuneration, as well as other aspects linked to the
financial security of judges have been examined not only by those states, where
due to historical reasons there could be discussions about the scope and the
contents of the independence of the judiciary (the Czech Republic, Russia,
Lithuania, Poland, Slovenia), this question has been topical also in Australia,
the United States of America, Canada, Germany and elsewhere.
In the
aforementioned countries the constitutional courts or other institutions implementing
the constitutional supervision, have established that in a situation when a
state experiences financial difficulties, the judges’ salaries must be
especially protected against excessive and adverse fluctuations (See: Judgement of 18 February, 2004 by the
Constitutional Tribunal of the Republic of Poland in the case No. 12/03 http://www.trybunal.gov.pl/eng/summaries/documents/K_12_03_GB.pdf).
The social and material guarantees of judges are part of the guarantees protected
by the principle of the independence of judges and courts. Thus, any attempt to
decrease judges’ remuneration or social guarantees or decrease the budget for
the courts should be interpreted as an infringement upon the independence of
the judiciary. (See: Judgement of 6
December, 1995 by the Constitutional Court of the Republic of Lithuania in the
case No. 3/95 http://www.lrkt.lt/dokumentai/1995/n5a1206a.htm).
The judge has inalienable rights to unreduced salary (See: Judgement of 15 September, 1999 by the Constitutional Court of the
Czech Republic in the case Pl. US 13/99). Therefore it is inadmissible to decrease
the judges’ salaries with the aim of preventing budget deficit (See: Judgement of 18 September, 1997 by the
Supreme Court of Canada in the case Reference re Remuneration of Judges of the
Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3). One of the
essential constitutionally protected guarantees of the independence of the
judiciary is the protection of judges against the decrease of salary during
their term in office. Moreover, a stable economic situation of the judges
ensures to them also a high degree of independence in the broadest sense. (See: Judgement of 11 December, 2009 by the
Constitutional Court of the Republic of Slovenia in the case U-I-159/08-18, para.
33).
To allow the judges to fulfil their functions
effectively, complying with the requirements of independence and competence, as
well as with the set restrictions, the legislator, taking into account the
requirements defined by international organisations, has envisaged to them
remuneration not only in the form of concrete salaries, but also as social and security
guarantees, etc. Thus, the prohibition of decrease applies not only to judges’
remuneration.
The
requirement to safeguard the judges’ remuneration and other guarantees follows
from the principle of the independence of courts and judges, which has the
purpose to protect judges from any kind of influence: the impact of the legislator,
the executive power, institutions and officials, various organisations,
business entities, legal and natural persons.
Thus, Article 83 of the Satversme contains also
prohibition to decrease the remuneration set for the judges during their term
in office.
10.3. Judges do not live in a social vacuum, and the concrete situation of
the state applies to them, whatever its causes – a natural disaster, economic recession,
the government’s actions or failure to act or irresponsible decisions. And yet,
the prohibition to decrease the judges’ remuneration during the term in office
(mandate) does not mean that any actions of the legislator, which, could,
possibly, have a negative impact upon the judges’ remuneration, are absolutely
prohibited. Judges are also citizens, and their special status and role does
not grant them immunity in situations, when the state, in dealing with a
complex situation, passes decisions with regard to its population.
Other constitutional courts have also concluded that the prohibition to
decrease judges’ remuneration cannot be absolute. The Czech Constitutional
Court has pointed out that “a total immunity of judges’ remuneration would be
illusory and contrary to the elementary conditions of the social reality”
(Judgement of 14 July, 2005 by the
Constitutional Court of the Czech Republic in the case Pl. US 34/04, dissenting
opinions of Justices Vojen Guttler, Jan Musil, Pavel Rychetsky). The
Constitutional Court of Slovenia noted: “The
protection of judges against a reduction of their salaries is namely not
absolute; it does entail, however, that the reduction of judges' salaries is
justified only in truly exceptional instances, on the basis of a review of the
concrete circumstances in each individual case.” (Judgement of 11 December,
2009 by the Constitutional Court of Slovenia in the case U-I-159/08-18). The doctrine developed by the Constitutional Court
of Lithuanian indicates that “the decrease of salaries is prohibited, unless
exceptional conditions are present.” (Judgement
of 15 January, 2009 by the Constitutional Court of the Republic of Lithuania in
the case No. 15/98, 33/03). The Supreme Court of Canada established: “A
temporary reduction in judicial salaries is permitted in case of economic
emergency” (Judgement of 18 September, 1997 by the Supreme
Court of Canada in the case Reference re
Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997]
3 S.C.R. 3).
The judiciary must fit organically into society and it
needs to be approved (accepted) and respected by the society. The judiciary
itself and also the legislator and the executive power have a significant role
in achieving and ensuring that. High standards of conduct and ethics have been set
for judges, they also impose certain restrictions. However, a person, who
decides to become a judge, must take into account certain standards of the
profession. Under the conditions of economic crisis social solidarity means
that every citizen assumes a proportional responsibility for eliminating the harsh
consequences of the crisis, but the state officials, including the judges, act
in solidarity with the inhabitants of the state.
The
legislator’s decision to decrease judges’ salaries may put the independence of
courts at risk. The Supreme Court of Canada has indicated that taking the
decision on decreasing judges’ remuneration, theoretically, gives the
legislator the possibility to exert political influence upon judges with the help
of economic manipulations. (See: Judgement
of 18 September, 1997 by the Supreme Court of Canada in the case Reference re
Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997]
3 S.C.R. 3). Nevertheless, this theoretical possibility does not allow
concluding and declaring that the decrease of judges’ remuneration under all
conditions should be viewed as influencing the judiciary and an infringement
upon the principle of the independence of judges. Theoretically an ungrounded
increase of the judges’ remuneration could likewise be considered as influencing
the judiciary.
Thus, under special conditions - in a situation of
economic recession, when the state is forced to introduce a general decrease of
remuneration in the institutions funded by the state budget, it is possible to
derogate from the principle prohibiting the decrease of judges’ remuneration.
11.
The Constitutional Court, in assessing what kind of legislator’s activities
regarding the setting of the judges’ remuneration is prohibited or allowed by
the principle of the independence of courts and judges included in the
Constitution, examines the contested provisions in interconnection with the
principle of the division of power, the principle of independence and,
especially, the financial security of judges.
The system of courts is funded from the state budget. Abiding
by the principle of the division of power, it is the duty of the legislator,
when developing a respective legal regulation, to ensure to the judges
remuneration complying with the requirements of the Satversme and the international
law – remuneration, social and security guarantees. In a democratic state it
would be inadmissible if the judges’ themselves or the executive power would
set their salary or if the salary of the officials of other independent
institutions were set by the executive power or the independent institution itself.
The right to set the judges’ remuneration, even if this right is not absolute,
is granted to the legislator.
The fact that the legislator passes the decisions on
the budget and remuneration of the officials in independent institutions,
including courts, does not yet mean that it infringes the independence needed
to execute the said functions.
11.1. An
adequate remuneration is one of the elements in judges’ financial security.
Judges need the financial security as a guarantee against external influence
and for maintaining their qualification.
The individual level (scope) of financial security depends
upon the life style of each specific person (judge). The state cannot and
should not assume responsibility for excessive expenses or disproportionate
financial plans of a judge. However, a situation when the state decreases a
judge’s remuneration to the extent that a judge, who has taken on financial
commitments commensurate to his or her remuneration, becomes insolvent and thus
his or her independence is threatened, is inadmissible. The state has the
obligation to ensure judges’ financial security on a level needed by the judge
to execute his or her official duties.
The financial security of a judge, which includes
setting a commensurate remuneration, namely, remuneration, social guarantees,
including pensions, for judges, serves as a guarantee of a proper administration
of justice and as a ground for setting high requirements to a judge, and allows
maintaining confidence in his or her competence, independence and fairness.
Thus, the financial security is an integral element
of judges’ independence.
11.2. The financial security of
judges – it means that a judge feels secure that the remuneration, which was
set at the moment when he started fulfilling the duties of his office, will not
be decreased and in that case the living expenses increase, would be increased accordingly.
If the law does not set out a procedure for automatically adjusting the remuneration
to the changing costs of living, then the law should provide for another
mechanism ensuring this correspondence. The legislator in Latvia has provided a
regulation, which ensures maintaining the real value of the judges’
remuneration both in the case of economic recession and economic growth.
Likewise,
the Supreme Court of Canada has noted the prohibition to decrease the real
value of remuneration and the need to define in the law a concrete procedure
for ensuring it. The legislator’s failure to act, namely, abstaining from
increasing judges’ remuneration corresponding to the real increase in the
living costs, contradicts the financial security of judges and is to be
perceived as a de facto decrease. (See: Reference re Remuneration of Judges of
the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3). The US
Supreme Court has made a similar conclusion, indicating in its judgement that
the Constitution has granted the legislator the right to set the remuneration
and relies upon the integrity and the common sense of the representatives
elected by the people. If the law does not contain a formula, which keeps the
judges’ remuneration set by the legislator on a certain level compared to the
average salary, then the legislator sets judges’ remuneration and a clear
procedure for regular increase of such remuneration. [See: Judgement of the US Supreme Court in the case United States v.
Will 449 U.S. 200 (1980) http://supreme.justia.com/us/449/200/case.html].
The Consultative Council of European Judges in
Paragraph 62 of Opinion No. 1 has also pointed out the need to introduce a
regulation that would ensure the increase of judges’ remuneration corresponding
to the costs of living (See: CCJE Opinion
No. 1, para. 62). The protection
of the judge against decrease in remuneration, in view of its purpose – ensuring
the independence of a judge, should be understood as a protection against any
interference, as the result of which the salary, with which the judge had
reasonably counted with when choosing the career of a judge, could decrease.
This condition applies both to the protection of the judge’s basic salary, as
well as to the additional guarantees, which are part of the judge’s
remuneration.
Thus,
Article 83 of the Satversme protects the actual value of judges’ remuneration, ordering
to retain it.
11.3. Not
only the amount of a judge’s remuneration, but also its stability has an
essential role in ensuring the independence of the judiciary. The UN Human
Rights Committee in its General Comment No. 32 has included the requirement to
the states to adopt laws that would lay down clear procedures and impartial
criteria for setting the judges’ remuneration (See: International Covenant on Civil and Political Rights, Article 14,
General Comment No. 32, para. 19). Considering the purposes of the
financial security, the requirement to set clear procedures and impartial
criteria means not only an understandable and transparent, but also a stable
and sustainable system. The Czech Constitutional Court has indicated that “the
compensation of judges, in the wider sense, should be a stable, non-reducible
value, not an adjustable factor which one or another government calculates,
e.g. because judges' salaries seem too high to it in comparison with the
salaries of state employees, or in comparison with another professional group.”
(Judgement of 14 July, 2005 by the Constitutional
Court of the Czech Republic in the case Pl. US 34/04).
If
the legislator were given unlimited rights to influence judges’ salaries
according to its political choice, then the concept of the independence of the
court would be rendered meaningless, since the stability of remuneration is one
element of the independence of the court and judges.
Thus, only a stable system of remuneration creates
financial security.
11.4.
The financial and material conditions needed for the functioning of courts can
be made worse and the judges’ remuneration can be decreased by law in special
exceptional cases and temporarily – while the financial and economical
situation of the state is particularly difficult. However, even under
exceptionally difficult economic conditions neither the funding of the courts,
nor the judges’ remuneration can be decreased to the extent that the courts become
unable to fulfil their constitutional function – administering justice. The
guarantees for the independence of judges must be always ensured - both during
the period of extraordinary situation that the state undergoes and after it is
over. In view of the principle of the division of power and the principle of
the independence of judges, the legislator’s discretion in deciding on the
judges’ remuneration differs from the discretion when deciding upon
restrictions in other public sectors.
Thus, a
temporary decrease of judges’ remuneration is admissible in the presence of
serious, socially justifiable reasons and if it is decreased in compliance with
the principles enshrined in the Satversme.
11.5. The legislator draws up the
legal regulation on the judges’ remuneration. In any case this regulation is a
complex solution, and its purpose is to ensure a remuneration that would comply
with the requirement of judges’ independence and the actual value of which
cannot be decreased. The laws of some countries contain a concrete judge’s
salary and set out a mechanism for regular reassessment of the judges’
remuneration. Other states have developed systems, which compare judges’
remuneration with the average monthly remuneration of employees in the state.
To a certain extent this solution allows ensuring the value of a judge’s
salary, because with the growth of the average salary, the judge’s remuneration
also increases, and with the decrease in the average salary the judges’
remuneration also decreases proportionally. This kind of system exists also in
Latvia. The first part of Article 1191 of the Law “On Judicial
Power” sets out: “The monthly salary of a judge of a district (city) court
shall be calculated by applying the coefficient 4.5 to the average monthly
gross salary of the employees in the state of the previous year, as published
in the official report of the Central Statistical Bureau, approximated till
lats.” The first part of Article 1201 of this law similarly provides:
“The monthly salary of a judge of a Land Register Office shall be calculated by
applying the coefficient 4.5 to the average monthly gross salary of the
employees in the state of the previous year, as published in the official
report of the Central Statistical Bureau, approximated till lats.”
Thus,
the Saeima, when drafting the legal regulation with regard to the judges’
regulation, in accordance with Article 83 of the Satversme has established a
procedure, which precludes the decrease in the real value of judges’ remuneration.
The
legislator not only develops the legal regulation with regard to the judges’
remuneration, but also decides upon the conditions under which the system
should be changed and also upon the changes themselves. The legislator has the
right to develop a new system of judges’ remuneration, if it has a legitimate
purpose, as well as serious reasons and, thus, reasonable grounds for
developing a new system. In realising the rights of the Saeima to adopt, amend
and supplement laws and other acts of legislation or to declare them invalid,
the compliance with the procedures set out by the Satversme and the principles
included in the Satversme must be ensured. The legislator, when using the law
to regulate specific relationships, also when changing the system of judges’
remuneration or developing a new system for it, must not breach the
constitutional principles.
Since
in a democratic state the system of judges’ remuneration must function in the
long-term, the development of a new system in a period of crisis or under the
influence of a crises – thus, a temporary situation, when a system, which
complies with the Satversme and the international requirements, is already
functional, would not comply with the principle of the independence of courts
and judges. Article 84 of the Satversme guarantees to the judge tenure for
life, thus the right of the judge to receive remuneration “for life” is also
constitutionally defined.
However, when deciding on the development of a new
system in the absence of crisis and taking into consideration that the
procedure for setting judges’ salaries should be independent, effective and
impartial, the legislator would have the duty to: 1) substantiate the need
for the new system in such a scope that in case, if the court had to assess its
compliance with the Satversme, this substantiation would provide all information
necessary for assessment; 2) to listen to the opinion of an independent
institution representing the judiciary (in the absence of such, the opinion of
the judiciary itself), respecting it in accordance with the principle of the
division of power; 3) if this opinion is not taken into consideration or is
only partially taken into consideration, provide a substantiation for one’s
actions in such a scope that in case if the court had to assess its compliance with
the Satversme, this substantiation would provide all information necessary for
examination; 4) to set a sufficient transition period, allowing the judges, who
have chosen their position for life, to re-qualify for an equal position.
Thus, the Satversme restricts the legislator’s
discretion in developing the legal regulation for judges’ remuneration.
II
12. To verify whether the
Saeima in adopting the contested provisions has complied with the principle of
the independence of a judge included in Article 83 of the Satversme, the
Constitutional Court must verify:
1) whether the contested provisions restrict the
financial security of judges;
2) whether the restrictions have been set forth in a
law;
3) whether the restrictions have a legitimate purpose;
4) whether the restrictions are proportional.
13. Considering the fact that
the situation in the field of interior and judicial affairs has been emphasized
as an important criterion in assessing the European Union candidate countries,
Latvia prior to the accession to the European Union had to implement consistent
and progressive reforms in the system of courts, which included also the issues
of the remuneration of judges and court employees. On the basis of the need to
implement reforms in the national judicial system, required by the program for
integration into the European Union, inter
alia, to ensure the independence of the courts and judges in compliance
with the constitutional provisions, a Concept Document was developed. (See: http://polsis.mk.gov.lv/LoadAtt/file37887.doc,
accessed on 4 December, 2009). The solutions included in the Concept
Document were implemented when the Saeima in 2003 adopted the Law “Amendments
to the Law “On Judicial Power”” (See: case
materials, Vol. 2, p.17). These amendments set out the procedure for
calculating the monthly remuneration for judges and judges of Land Registry
Offices, which is included in Articles 1191,
1192, 120 and 1201 of the Law “On Judicial Power”.
In
accordance with the Concept Document and the transitional period set in
accordance with Paragraph 2 of the Transitional Provisions of the Law of 19 June, 2003 a gradual approximation of
judges’ salaries with the remuneration set out in the Law was planned, i.e.,
with the remuneration recognised by the legislator as being commensurate with
the office of a judge. In accordance with it in 2003 60% of a judge’s monthly
remuneration was paid, in 2004 – in the amount of 70%, in 2005 – in the amount
of 80 %, and in 2006 – in the amount of 100%. It means that the system of
judges’ remuneration provided by the law, which would be able to guarantee judges’
financial security to the extent that would ensure the independence of judges,
had to be fully implemented in 2006.
The
statement in the written response of the Saeima that actually the contested
norms extend the period of transition for implementing the system of judges’
remuneration defined in the Law “On Judicial Power” cannot be agreed with.
Paragraph
7 of the Transitional Provisions (in 23 February, 2006 wording of the Law)
provided that the judges’ remuneration in 2006 should be calculated, taking
into account the increase of the monthly gross remuneration of the employees
compared to the previous year, but in 2007 and 2008 it should be calculated by
taking into account the monthly gross remuneration of the employees in 2005, but
in 2009 – by taking into account the average monthly gross remuneration in
2006.
The
contested Paragraph 7 did not extend the transitional period set in 2003. It
changed the procedure for calculating the salary defined in the Law, by
providing that in 2009 a judge’s monthly salary should be calculated not by
taking into account the average monthly gross remuneration of employees in
2006, as was previously provided by the Law, but the average remuneration of
2005. Moreover, the annotation to the draft law points out that “starting with
2010 the payment of salaries to the judges and the judges of Land Registry
Office will start in the previously planned amount” – taking into account the
average monthly gross remuneration of employees in 2008, i.e., in conformity
with the system provided by the Law.
Thus,
the contested Paragraph 7, by providing that in 2009 the monthly salary of a
judge should be calculated as in 2008, decreases the judges’ remuneration
previously provided by the Law.
Paragraph
17 of the Transitional Provisions applies to the remuneration of the judges of Land
Register Offices. Paragraph 17, introduced with the amendments to the Law of 8
November, 2008, provided a transitional period till 2009, however, this
transitional period was connected with the introduction of a new coefficient in
Article 1201 of the Law (the previous coefficient 2.5 was replaced
with 3.5). The contested Paragraph 17 provides that in 2009 monthly salary
should be calculated as in 2008, and extends the transitional period till 2011.
This transitional period is linked to the substitution of coefficient 3.5 set
out in Article 1201 of the Law with coefficient 4.5.
Thus
the contested Paragraph 17 sets a transitional period for the implementation of
the new system of remuneration for the judges of Land Register Offices provided
in the Law, but the rule on calculating a judge’s monthly salary in 2009 like
in 2008 decreases the remuneration of the judges of Land Register Offices,
since the previous wording of the Law provided that in 2009 the salaries would
be calculated in accordance with the average remuneration of 2006, applying the
coefficient 2.5.
Thus, the contested provisions decrease the judges’
salary and consequently restrict the financial security of judges.
14.
The Constitutional Court already established that judges’ remuneration can be
defined only by a law adopted by the Saeima. The Contested provisions are included
in the Law “On Judicial Power” with the Law “Amendments to the Law “On Judicial
Power””adopted by the Saeima on 14 November, 2008, published in the official
newspaper “Latvijas Vçstnesis” on 25
November, 2008 and is in force.
Thus, the restrictions to the judges’ financial
security have been established by a law passed by the legislator.
15. Any restriction of the
independence of judges should be founded upon conditions and arguments about
its necessity, i.e., the restriction is set because of important interests –
with a legitimate aim. In the Constitutional Court proceedings the duty to
demonstrate and substantiate the legitimate aim of any restriction first of all
rests upon the institution that passed the contested act, in this specific case
– upon the Saeima. The Saeima in its written response points out that the
contested provisions were adopted in the framework of measures for preventing
the economic recession and were targeted at reaching the aim set in Article 116
of the Satversme – to protect the rights of other people and public welfare.
The contested provisions are only one among the numerous measures implemented
to salvage the national economy, to balance the state budget, to protect other
constitutional values and to ensure vitally important public and state
interests.
The
Constitutional Court agrees that the prevention of economic recession at a time
when the state is in a complicated financial situation, should be regarded as
an action aiming to protect the interests of other people and public welfare –
therefore it must be recognised as a legitimate aim.
Thus, the contested restriction has a legitimate aim.
16.
The restriction of the guarantees of the judges’ independence must be regarded
as proportional, if the legislator has complied with the limits of its
discretion, i.e., when adopting the decision, affecting the independence of
judges, has complied with all principles following from the Satversme. The
Constitutional Court, in assessing, whether the legislator with its action has
infringed upon the independence of judges, must assess all actual conditions in
each specific situation. The actions of the legislator, which in one case lead
to disproportional restriction, in another case, taking into account the
specific conditions, could be recognised as proportional and complying with the
constitutional requirements.
The Constitutional Court, when assessing the
proportionality of a restriction, must take into consideration both the cause
of the restriction, i.e., the legitimate aim, and the way in which the
restriction was set, as well as the possible consequences of this restriction. The
legislator must be able to prove that it has tried to set the decrease of the
judges’ remuneration as fairly as possible, complying with all principles
following from the Constitution. If the legislator has acted exactly like this,
then the decrease could be recognised as constitutional.
17. To assess the
proportionality of the restrictions laid down with the contested provisions,
the Constitutional Court will assess the system of judges’ remuneration, its
aims, basic principles, the procedure of implementation and the amendments
introduced to the system.
When
setting up the system of judges’ remuneration, the Saeima in the annotation to
2003 draft law “Amendments to the Law “On Judicial Power”” noted: “The
situation, which has currently developed in the state, is that the remuneration
of court employees is not commensurate with their job duties and the
responsibility for the work done. The low remuneration for judges is the reason
why there is no serious competition for the office of a judge, thus it is
impossible to ensure the involvement of highly qualified lawyers in the
judicial work. The low remuneration is also causing large staff turn-over, which
leaves a negative impact upon the work of the courts in general; it also
creates preconditions for corruption.” Thus, a direct link was identified
between the remuneration and the possibility to attract qualified lawyers, the
possible risks, which have to be considered, if the remuneration is not
adequate, were also indicated. The Constitutional Court agrees to what has been
pointed out by the Ministry of Justice, that “a remuneration, which is
commensurate to the office and is competitive, is an essential condition for
ensuring the independence of the judiciary” (case materials, Vol. 2, p.17).
17.1. The
system of judges’ remuneration provides that the monthly salary of a judge is
calculated, by applying a coefficient to the average monthly gross salary of
the employees in the state, as published in the official statistical report of
the Central Statistical Bureau. Thus the system is pegged to the average
monthly gross salary of the employees in the state. Such a system, typical of
the majority of modern democratic states, does not provide that the legislator
should introduce a special mechanism for reviewing the judges’ remuneration in a
case, when its real value diminishes. The amount of the judges’ salary reflects
the remuneration trends within the state. In the period of economic growth,
when the average salary in the state increases, the judges’ remuneration also
increases and thus the real value of their remuneration is preserved. Under the
conditions of economic recession, when the average salary in the state decreases,
in the framework of this system the judges’ remuneration also decreases.
Thus,
the system of judges’ remuneration in Latvia has been developed so as to the
extent possible avoid the need to amend it.
17.2. Under the conditions of
economic recessions the legislator’s decision because of the lack of financial
resources to decrease the judges’ remuneration simultaneously with the salaries
of other employees of the public sector is understandable and justifiable. However,
the system of judges’ remuneration already per
se envisages automatic decrease of their remuneration in a situation like
that, and it would not be fair to allow a repeated decrease of the judges’
remuneration – both simultaneously with the decrease of the remuneration of
employees in other state institutions, and on the basis of the decrease of the
average monthly gross remuneration of the employees in the state. It can be
recognised that this second decrease because of the specific character of the
system happens with certain delay in time; however, the salary increase
similarly takes place with a delay of two years. The procedure for calculating
the remuneration of the members of the Saeima and ministers includes a provision
that corrects this drawback, thus ensuring a more timely response to the
changes in the average remuneration.
The
Constitutional Court has no grounds to assert that within two years time the
legislator, identifying the repeated decrease in the judges’ remuneration will
not implement measures to prevent the possible negative consequences. However,
on the basis of the materials available in the case, it cannot be established
that in the specific case the legislator had taken into account that the
decrease in the average remuneration in the state will cause a repeated
decrease in the judges’ remuneration in two years time.
The
Constitutional Court already established that the financial security of judges includes
also social guarantees, including a judge’s pension. (See: para. 11.1. of this Judgement). Thus, the principle of the
independence of judges included in Article 83 of the Satversme protects judges’
pension in the same way as other guarantees of judges’ financial security.
Taking into consideration the procedure for calculating the pension set out in
the law, also in the case of economic growth, a judge, whose pension depends
upon this decreased remuneration, would receive a pension calculated in this
way, namely, his social guarantees would be restricted.
Thus, the contested provisions not only cause
immediate negative consequences, but also influence judges’ financial security
in the future.
17.3. The system of judges’
remuneration was developed with the aim to promote the career development of a
judge, since it provides a different remuneration to judges of different level
courts. The Ministry of Justice has indicated that the system was developed to
ensure a commensurate remuneration for work and to guarantee independence in
the administration of justice. (See: case
materials, Vol.2, p. 17).
A
judge working at the court of any level must be independent. Judges have been
granted the right to take final decisions concerning the life, freedom, rights,
obligations and property of a person. (See: Apvienoto
Nâciju Tiesu varas neatkarîbas pamatprincipi // Latvijas Vçstnesis,
1995. gada 28. septembris, Nr. 148 [The United Nations Basic
Principles on the Independence of the Judiciary]). The judges at the court
of all levels pronounce a judgement on the behalf of the people and the state
of Latvia, the judgement has the force of a law, it is mandatory to all, and it
must be treated with the same respect as the law. A judgment passed by a judge
at the court of any level can influence the interests of the whole society. The
significance of a judgement does not depend upon the level of the court, in
which the judge has passed it, therefore ensuring the independence of all
judges is in the interests of the society and the state. Therefore the
legislator, when deciding upon the conformity of the judges’ remuneration with
the status of the judge, the scope and character of the work, the requirements
set for the office and the guarantees of independence, should take the
remuneration of the judge in the lowest level court as the basis.
17.4. When developing the system
of judges’ remuneration, the legislator at the same time set a transition
period, envisaging a gradual, but complete implementation of this system (See: para. 13 of this Judgement). Thus
the legislator created a system of judges’ remuneration, set a transition
period and a procedure for calculating the remuneration in this period, as well
precisely indicated the term, when the system set out in the Law would become
fully functional.
The
Applications indicate that every judge, “when choosing to work in the office of
a judge or to continue this work, undoubtedly, has carefully planned his or her
future – both the responsibility in executing the duties of the office, and the
remuneration linked to it. The long-term reform of the system of judges’
remuneration, which was launched in the state, as well as the basic principles
of a judge’s remuneration defined in the law, was and still is a significant
factor for every judge.” (case materials, Vol. 1, p. 3).
Thus, the Law “On Judicial Power” defined the moment, when
the judges were supposed to receive remuneration commensurate with their
office, and therefore judges could reasonably rely upon it.
17.5. The Ministry of Justice
indicates that “the level of remuneration laid down in the Law thus far has not
been reached yet”, because the set transition period has been extended several
times, taking into consideration the economic situation. (See: case materials, Vol. 2, p. 17). The changes, which influenced
the calculation of judges’ salaries and consequently also their amount, were introduced
in the Transitional Provisions with the amendments of 23 February, 2006, 8
November, 2007 and the contested 14 November, 2008 amendments, as well as with
the amendments that were adopted later, i.e., on 12 December, 2008 and 1
December, 2009.
17.6. The amendments of 23
February, 2006 to the first part of Article 1191 provided that the
salary was calculated not on the basis of the average monthly gross salary of
the previous year, but on the basis of the average monthly gross salary of the
employees in the state as published in the official statistical report on the
previous year. As the result of this amendment the judges’ remuneration was in
fact calculated not on the basis of the average remuneration of the previous
year, but the average remuneration two years ago. Initially the introduced
amendments caused a situation when the judges’ remuneration was “frozen” for
one year.
17.7. The same amendments change Paragraph
1 of the Transitional Provisions, extending the initially defined transition
period for one year. The annotation to the law indicates that this transition
period conforms to the Concept Document. However, the Concept Document states
that in 2006 the judges’ remuneration should be paid in the amount of 100%. Also
during the meeting of the Saeima Legal Committee on 4 June, 2003, debating the
draft law “Amendments to the law “On Judicial Power”” , Elita Stivriòa, the Ministry
of Justice representative, indicated that Paragraph 1 of the Transitional
Provisions “in 2006 will no longer be functioning” (See: case materials, Vol. 6, p.8). Thus amendments, which for one
more year prohibited judges to receive the remuneration planned in the law,
were introduced into the Law.
The Association of Latvian Judges formally
expressed its opinion on these amendments, indicating the need to ensure the
calculation of judges’ remuneration in accordance with Article 1191 of
the Law “On Judicial Power” (See: case
materials, Vo.2, p. 173).
17.8. At the same time also
amendments to Paragraph 7 of the Transitional Provisions were introduced, providing
that: “The monthly salary of judges, except the monthly salary of the judges of
Land Register Offices, in 2007 and 2008 shall be calculated, taking into
consideration the average monthly gross remuneration of the employees in 2005,
without changing the coefficient 4.5, but in 2009 – taking into account the
average monthly remuneration in 2006, without changing the coefficient 4.5. “ This
provision included in the Law created the right for the judges to reckon that
in 2010 the judges’ salaries would be paid in full, i.e., in accordance with
Article 1191 of the Law “On Judicial Power”. The available materials
of the case allow establishing that this provision was developed on the basis
of the objections of the Saeima Legal Affairs of Article 1191” (case materials, Vol. 6, pp. 90. 96 and 101).
The
amendments of 8 November, 2007 introduced changes, which affected the
remuneration of the judges of Land Register Offices. In Article 1201 of
the Law the coefficient 2.5 was replaced with 3.5, a transitional period till 1
January, 2009 was also envisaged, supplementing the Transitional Provisions
with Paragraph 17, expressed as follows. “The monthly salary of a judge
of a Land Register Office shall be calculated by applying the coefficient 2.5
to the average monthly gross remuneration of the employees in the state, as
announced in the official statistical report of the Central Statistical Bureau,
which has been approximated till lats.” Consequently, in 2005 the salary of a
judge of a Land Register Office had to be calculated by applying coefficient
3.5 to the average remuneration of 2007. The annotation to the draft law points
out that the current “remuneration of the judges of Land Register Offices is
not competitive” and that it is necessary to increase the remuneration in order
“to prevent moving of qualified and experienced Land register judges to district
(city) courts, vacant legal professions or better remunerated work in private
entities.” The annotation states: “The legal regulation that is in force provides
that the status of the judges of Land Register Offices shall be equalled to the
status set for the district (city) court judges. Consequently the criteria for
setting the remuneration of a judge of a Land Register Office must be equalled
to the status of a judge of a district (city) court” (case materials, Vol. 6, p. 127). Thus, the
legislator admitted that applying the coefficient 2.5 to the remuneration of the
judges of Land Register Offices was not an adequate solution; that the
calculated remuneration was not competitive and was not commensurate with the
office of a judge.
17.9. The Constitutional Court
already established that the amendments of 14 November, 2008 (the contested
provisions) decreased the remuneration of both judges and the judges of Land
Register Offices. Moreover, the transitional period for implementing the system
of remuneration for the judges of Land Register Offices was extended.
Each
judge of Land Register Offices had a lawful right to rely upon the salary set
in the law, as it was prior the coming into force of the contested Paragraph
17. This contested provision caused a decrease of salary by 46 percent compared
to the salary, which was set by the Law of 2009 in the previous wording. Thus in
accordance with the contested Paragraph 17 the coefficient that should be
applied when calculating the salaries of the judges of Land Register Offices is
1.89 (not 3.5, as it was previously provided by the Law).
Each
judge had lawful rights to rely upon the salary set in the law, as it was prior
to the coming into force of the contested Paragraph 7. This contested provision
caused a decrease of salary by 19 percent compared to the salary, which was set
by the Law of 2009 in the previous wording. Thus in accordance with the
contested Paragraph 17 the coefficient that should be applied when calculating the
salaries of the judges of Land Register Offices is 2.78 (not 4.5, as it was
previously provided by the Law).
Thus, the legislator, by adopting the contested
provisions, decreased the salary set in Law, which the judges had the right to
rely upon.
18.
The Constitutional Court already established that a temporary decrease of
judges’ remuneration is admissible, if it is justified by serious, socially
acceptable causes and if the remuneration is decreased in compliance with the
principles enshrined in the Satversme. The Saeima points out that the contested
provisions are “an exceptional and fixed-term measure” (see: case materials, Vol. 1, p. 96). In accordance with the contested
regulation the judges will receive the defined remuneration in full in 2010,
but the judges of Land Register Offices – in 2011, i.e., the law provided that
in 2010 judges’ salary would be calculated on the basis of the average monthly
gross salary of the employees in 2008, but the salary of the judges of Land
Register Offices in 2011 would be calculated on the basis of the average
monthly gross salary of the employees in the state in 2009.
Consequently it can be established that the contested provisions
envisaged decreasing the judges’ remuneration.
19. According to the statements
included in the written response of the Saeima, the decrease of the judges’
remuneration is one among many measures implemented to balance the state
budget.
The
harsh economic conditions force the state to review and to decrease the funding
for all employees of the public sector, irrespective of the branch of power
they belong to, the way the budget of the institution is formed and its field
of function. It would be inadmissible to decrease the funding of only one
branch of power – the court or only the judges’ remuneration, likewise it would
be inadmissible to keep unchanged the funding of only one branch of power
contrary to other branches of state power and institutions. Such an approach
would not comply with the principle of fairness and equality.
Also
under the conditions of economic recession the funding can be decreased only
and solely by complying with the constitutional principles and constitutional
procedures, i.e., by respecting the fundamental rights and freedoms, especially
the constitutional principle of equality.
Prime Minister Ivars Godmanis, speaking at 11 December, 2009 Saeima
session, pointed out that “an absolute solidarity” must be observed in
decreasing salaries. The legislator had to find a solution, which would
simultaneously ensure solidarity, would not breach fundamental rights and would
comply with all constitutional principles.
When deciding upon an decrease of salary, which would meet equality and
solidarity criteria, not only the amount of remuneration of concrete persons,
but also the scope of work, different functions, requirements and restrictions
set for the office in all branches of power – judges, the representatives of
the legislative and executive power, as well as independent institutions should
be taken into consideration, moreover, the option of giving up certain functions
or the possibility of decreasing the number of positions should be considered.
Solidarity has not been observed in the decrease of salaries, if it applies to
all employees of the public sector, but the amount of decrease has not been
assessed and substantiated separately for each group working in the public
sector.
In fact, the contested norms set the judges’ remuneration in 2009 not on
the level of 2008, but of 2007, thus decreased it.
The remuneration of the members of the Saeima, in its turn, was
recalculated at the beginning of 2008, namely, it was increased, but at the end
of 2008 one part of the Saeima members’ remuneration, i.e., which consists of
the salary, premium payment to the Saeima officials, remuneration for work in
parliamentary committees, representation expenses, in accordance with 11
December, 2008 Law “Amendments to the Saeima Rules of Procedure” was left
unchanged, namely, “frozen”.
Likewise, the monthly salaries of the members of the Cabinet of
Ministers were also recalculated in 2008, when the Law on the Rules of Procedure
of the Cabinet of Ministers of 15 May, 2008 came into force, and in accordance
with this Law the monthly salary remained unchanged from 1 July, 2008 till 31
March, 2009. With the Amendments of 31 December, 2008 to the Law on the Rules
of Procedure of the Cabinet of Ministers the monthly salary was “frozen” till 1
March, 2010.
The materials of the case allow establishing that during the first six
months of 2009 the average monthly salary of the heads of the ministerial legal
departments was by 6.4 percent higher than the average salary of 2008, but the
monthly salary of the state secretaries at the ministries were raised by 3.4
percent. In some ministries the monthly salaries of the state secretaries was
increased even in April of 2009, for example, at the Ministry of Finances – by
35 percent and the Ministry of Health – by 30 percent (See: case materials, Vol.
5., pp. 140 – 156).
The Saeima, trying to prove the compliance with the solidarity
principle, pointed out that not only the contested provisions decreased the
remuneration for judges, but that the remuneration was decreased for all other
officials and employees of state and local government institutions, as the law
passed on 12 December, 2008 “On the remuneration of the officials and employees
of the state and local government institutions in 2009” limited all expenses of
the state and local government institutions for remunerating officials
(employees) (See: case materials Vol. 5,
p. 160). The Constitutional Court points out that this law and the restrictions
included in it, inter alia, the
decrease of the funding for the purposes of remuneration by at least 15 % of
the initially approved funding of this institution for this purpose, applies
also to court and judges.
The Saeima in its written response indicates that on the basis of the
law passed on 16 June, 2009 “Amendments to the Law “On the State Budget for
2009”, in July the expenditure for remunerating the employees of the public
sector was decreased. Likewise it notes that the amendments to the laws
introduced in June decreased the remuneration of the members of the Saeima (a
20% decrease was applied to a part of the remuneration, but it did not apply to
compensations) and the salaries of ministers by 20 percent. The Constitutional
Court cannot agree with this interpretation of solidarity and its application
to the decrease of judges’ remuneration at the end of 2008, because the
decrease with regard to the legislator and the executive power was implemented
in June, 2009 (see: case materials, Vol.
5, pp. 160, 161), i.e., at the time, when the judges’ remuneration was
decreased repeatedly (16 June, 2009 amendments to the law “On Judicial Power”).
The Constitutional Court has initiated several cases with regard to the
conformity of the second sentence of Paragraph 7 and the second sentence of
Paragraph 20 of the Transitional Provisions of the Law “On Judicial Power” (in
the wording of 16 June, 2009) to Articles 1, 8 and 107 of the Satversme of the
Republic of Latvia. In these cases the provisions that envisage to set the
judges’ remuneration, “frozen” in 2009 (on the level of 2007), in the amount of
85 percent are contested. Thus the compliance of the proportional decrease of judges’
salaries, introduced in 2009, with the Satversme, will be examined by the Court
in future cases.
The Saeima points out that by adopting the contested provisions it did
not act unfairly towards individual social groups; however, it does not provide
any confirmation or proof on what way the attitude towards various social
groups was in fact assessed. (See: case
materials, Vol. 1, p. 97). Likewise the Saeima does not indicate, which
were the social groups, whose interests it balanced, and the way it was done.
The Saeima in its written response refers to the judgement of the Supreme Court
of Canada, in which it is stated that the decrease of the judges’ remuneration
is to be considered as lawful, if, firstly, it has been implemented simultaneously
with the decrease of the remuneration of all public sector employees, secondly,
if the judges even with the decreased remuneration still enjoy sufficient
economic independence, and, thirdly, if the remuneration is not decreased below
such a minimum level, which would not be compatible with the office of a judge.
(See: case materials, Vol. 1, p. 98).
The Saeima does not provide any information proving that it assessed the
situation and the conditions in order to arrive at any of the aforementioned
conclusions. Neither can it be established from the materials of the case.
Thus, in decreasing the judges’ remuneration with the
contested provisions, the principle of solidarity was not complied with.
20.
Even if the decrease of judges’ remuneration were a part of general economic
measures, in the framework of which the salaries of absolutely all employees of
the public sector were decreased, such a decrease could be regarded as rational
(reasonable) and therefore justifiable (fair) only in case all other requirements,
which restrict the legislator’s discretion, were met.
The Saeima in its written response erroneously pointed
out that the issue of setting the remuneration for judges fell within the field
of social rights, in which the legislator had a broad discretion. A judge’s
remuneration is one of the guarantees of his independence. The legislator, in
setting the judges’ remuneration, enjoys certain discretion; however, as the
Constitutional Court already pointed out, the legislator’s discretion in this
field has strict limitations.
The
documents developed by international institutions also point out the necessity
to set a commensurate remuneration for the judge. Recommendation No. R. (94)12
of the Council of Europe Committee of Ministers indicates that the remuneration
should be set in the law and should be commensurate with the dignity, respect
and load of responsibility of the office [See:
Recommendation No. R (94) 12, Principle III 1.b]. The
Opinion No. 1 of the Consultative Council of the Judges of Europe provides: an
adequate level of salaries is necessary to ensure that the judges can work
freely and are protected against pressure, aimed at influencing their decisions
and actions (See: CCJE Opinion No 1,
para. 61).
When setting up the system of judges’ remuneration,
the legislator chose to calculate the salary, taking into account the average
monthly gross salary of the employees in the state and applying coefficient 4.5
to it. The legislator admitted that this system could be regarded as
commensurate with the office of a judge, i.e., firstly, it is sufficiently
competitive to attract to the position of a judge capable and competent
lawyers. Secondly, the salary is sufficient for the judges to enjoy adequate
financial independence, taking into account the significance and the impact of
the decisions taken by judges, the prohibition to hold another job set in the
law, as well as the workload of judges.
It is pointed out in the annotation to the draft law
that “in 2009 the judges and the judges of Land Register Offices will not be
ensured remuneration commensurate with the volume and the character of their
work”. However, the Saeima in its written response, without offering any
assessment or substantiation, indicated that “at present the judges’
remuneration set in the state is adequate to the character of the job to be
performed, the skills that are necessary for fulfilling the position and the
restrictions, and it is also balanced with the status and remuneration of other
officials of the judiciary, as well as the salary in the state in general” (case materials, Vol. 1, p. 95).
21.
In order to ascertain, whether the judges’ remuneration is commensurate with
the responsibility of the office and the workload, the requirements of
independence, restrictions linked to the office, as well as the rank of the
office within the constitutional order, the Constitutional Court shall examine,
whether the Saeima, which asserts that the judges’ remuneration conforms to the
office of a judge, has assessed, firstly, the restrictions on holding another
job, secondly, increasing volume of work, and, thirdly, the ability of the
remuneration to attract qualified lawyers.
21.1.
The society’s faith in the independence of the judiciary would be impaired, if
the judges were paid so low salaries as to cause even the slightest doubts that
the judges could be influenced, by exerting a political influence through
economic means. The Supreme Court of Canada has also noted: if the remuneration
is too low, then there is always risk, even theoretical, that the
representatives of the judiciary could adjudicate cases in a specific way to
achieve that the legislator sets a higher remuneration for them, or could
receive presents or other benefits from the parties of a case (See: Judgement of 18 September, 1997 of the
Supreme Court of Canada in the case Reference re Remuneration of Judges of the
Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 and Judgement of 14
February, 2002 in the case Mackin v. New Brunswick (Minister of Finance); Rice
v. New Brunswick, [2002] 1 S.C.R. 405, 2002 SCC 13).
The
judges have a significantly restricted possibility of holding another job.
Thus, a judge cannot alongside his job as judge engage in commercial activities
or take another paid job, except for the ones envisaged in the law. Essentially
a judge’s remuneration includes also a special compensation for the prohibition
to hold another job. (See: Judgement of
11 December, 2009 by the Constitutional Court of Slovenia in the case
U-I-159/08-18, para. 33). The judges’ possibilities to gain other income
are limited. The prohibition to combine jobs is set because of the special
legal status of the judge and also the judiciary as one of the branches of
state power. The purpose of this prohibition is to ensure the independence of
judges, which is a precondition for fair administration of justice. Assessing
the proportionality of the amount of judges’ remuneration from this aspect, it
has to be noted that so strict restrictions regarding holding another job have
not been set for the officials working in public administration, and they have
the right to receive remuneration also in other places of employment.
Thus the restrictions on holding another
job and receiving another income set for the judges place an obligation upon
the state to set for them a sufficient remuneration and social guarantees,
which conform to the status of a judge.
21.2. The Constitutional Court
recognizes that a judge’s workload also influences his possibilities of holding
another job. The case materials allow establishing that during the recent years
the workload of judges has been constantly growing. For example, the number of
cases received by the first instance courts in 2008 compared to 2007 had
increased by 17 817 cases or 40 percent.
The average number of cases received and adjudicated (workload) by a judge in
2008 compared to 2007 had increased by 20 percent, but in Riga City courts – by
52 percent. The years 2008 and 2009 saw an especially fast increase in the
number of civil cases. As the Ministry of Justice has pointed out, the number
of civil cases received by district (city) courts in 2009 compared to the
previous year has increased almost by 100 percent. The Ministry of Justice has
also noted that, irrespectively of the significant increase of the workload,
the legislator has left the amount of remuneration unchanged, which could
potentially lead to social consequences, as well as increased term of case
adjudication. The excessively long terms of case adjudication could be a ground
for complaints of inhabitants to the European Court of Human Rights, and thus,
unavoidably, would cause material losses to the state.
Even though the productivity of work does not directly depend upon
remuneration, the workload should be taken into account in setting the number
of judges and their remuneration.
The fact that the courts have limited possibilities to ensure the
necessary financial and human resources needed to carry out the work of a court
properly creates an additional load for judges. The Saeima also in its written
response has pointed to the low remuneration of court staff
(See: case materials, Vol.5, p.161). Qualified
staff is needed for effective organisation of judges’ work, moreover, the
institutional or administrative adequacy of courts directly depends both upon
the funding and the possibilities of the court to decide independently about
issues linked with the use of resources (both financial and human).
Insignificant
interest about the office of a judge, i.e., weak completion and long-term
unfilled vacancies can cause problems in ensuring the function of administration
of justice in the state. The current situation presents evidence that this risk
is real. The Ministry of Justice has indicated that there are cases, when a
competition for the vacant judge’s position has to be advertised repeatedly,
since no applicant has applied, or when none of the applicants can be advanced
further because of not meeting the minimum level of skills and professional abilities
set in the acts of legislation”. For example, in 2008 out of 71 announced
competitions four had no applicants, but in 13 competitions none of the
applicants was advanced further (See: case
materials, Vol.2, pp. 18, 19)
The
second problem is that the judges can leave their work at the court to work in
another legal profession, which would allow them to lead a respectable life, commensurate
with their knowledge and qualification. It is noted in the annotation to the
draft law: “The regulation included in the draft law could facilitate a situation, in which judges decide to give up the career of a
judge in favour of another, better remunerated job. Thus it could lead to
problems in ensuring effective fulfilment of the court function, as the result
of which the terms for adjudicating cases at court would extend.”
21.3. In assessing the compliance
of the decrease of judges’ remuneration only such comparison between a judge’s
salary and other salaries, which can be considered as justified, can be used.
In
the countries of the European Union the averaged salary of a judge at the
beginning of a judge’s career is 3.3 times higher that of a same level judge in
Latvia, but the highest remuneration exceeds the remuneration of a Latvian
judge12.4 times
[See:
European judicial systems, Edition 2008 (data 2006): Efficiency and quality of
justice, Council of Europe, September 2008, p. 185, 186]. One cannot
reprove the legislator of setting inadequate salary for the judges only because
it is too low compared to the judges’ salaries in other states of the European
Union. However, this difference in remuneration should urge the legislator to
assess the reasons and the possible risks linked to it.
21.4. The principle of the
division of power does not define special arithmetic proportions between the
levels of remuneration in different branches of power, nor between the level of
remunerations of persons in as it were comparable positions. The comparison of
positions in different branches of power is always controversial, considering
the diverse complicated factors characterising a position. Quite frequently
these are completely different jobs with completely different scopes of
responsibility. The character of the work, degree of stability in serving in
the office, the authorisation linked with the functions to be fulfilled, also
the time of tenure differ to the same extent. Because of these and other similar
reasons it is unjustified to compare positions and to demand that officials
belonging to one branch of power should earn exactly as much as the officials
belonging to another branch of power. (See:
Judgement of 18 February, 2004 of the Constitutional Court of the Republic of
Poland in the case No12/03 http://www.trybunal.gov.pl/eng/summaries/documents/K_12_03_GB.pdf).
Several constitutional courts (for example, in Estonia, Canada, Poland),
dealing with the issues linked with judges’ remuneration, have noted that the
levelling of remuneration in various branches of power should not be set as an
aim. The Constitutional Court of Lithuania has pointed out that “in some
countries the judges’ remuneration is higher than the remuneration of the Prime
Minister – and that does not surprise anyone” (See: Judgement of 6 December, 1995 of the Constitutional Court of the
Republic of Lithuania in the case No. 3/95 http://www.lrkt.lt/dokumentai/1995/n5a1206a.htm). The Constitutional Court of Slovenia, in its
turn, compares the remuneration of a judge in the lowest level court with the
minimum remuneration of a minister and a member of the Parliament (See. Judgement of 11 December, 2009 of the
Constitutional Court of the Republic of Slovenia in the case U-I-159/08-18,
para. 33).
The Constitutional Court already indicated that the setting of salaries
falls within the competence of the legislator and that to a certain extent it
is a political decision. And yet, the Satversme restricts also political
decisions. If the principle of equality ensures that, for example, during
economic recession, by providing a lawful justification for this need,
everybody’s remuneration can be decreased, and yet such an interpretation of
the principle of equality, leading to setting an identical level of
remuneration for all branches of power, is unacceptable. The European Charter
on the Status of Judges also chooses the condition that the level of
remuneration should be such as to protect judges against pressure, it does not
provide that the level of remuneration should be harmonised with the
remuneration of the highest officials of the legislator and the executive
power, since such a comparison is impossible. (See: European Charter on the Status of Judges, para. 6.1).
21.5. In order to attract to the
office of judge the most competent and knowledgeable specialists, judges should
receive an adequate remuneration compared to the remuneration of other highly
qualified lawyers.
The
Constitutional Tribunal of Poland has indicated that a judge’s salary should be
equal to the remuneration that practicing professional lawyers receive –
attorneys, legal advisors, notaries (See:
Judgement of 4 October, 2000 of the Constitutional Tribunal of the Republic of
Poland in the case No. 9/00 http://www.trybunal.gov.pl/OTK/otk_odp.asp?sygnatura=P%208/00).
It is clear that the purpose of such possible comparison of remuneration is to
attract to the office of a judge highly qualified lawyers, however, it would
not be proper to compare the remuneration of judges with the income received by
the representatives of free legal professions, who in their activities are
financially independent. It must be noted that financial independence means not
only the possibility to earn much more, but also certain risks and additional
expenditure (investments in the place of practice, pension). Therefore the
Constitutional Court agrees with the Saeima that comparing a judge’s
remuneration with, for example, remuneration of a sworn attorney-at-law, would not
be justified. The judges in addition to the remuneration set in the law are
provided with social guarantees and appropriate working conditions.
However,
the statement made by the Saeima that “when assessing the remuneration of
judges the remuneration of court staff should also be taken into consideration”
is unacceptable. Undoubtedly, the remuneration of the court staff should correspond
to their job duties and the necessary qualification. Moreover, the Saeima itself
has noted in the letter that the court staff has “already low” salaries (See: case materials, Vol. 5, p. 163).
However, only because the court staff have low remuneration, there are no
grounds to declare that because of this the judges’ remuneration should be
decreased, i.e., equated with the remuneration of the court staff (See: case materials, Vol. 5, p. 161).
The
comparison with the prosecutors’ remuneration is equally improper, since the
legislator itself in the Law on the Prosecutor’s Office has envisaged the
principle of proportionality in the remuneration of prosecutors and judges.
21.6. It is also impossible to
assess the adequacy of judges’ remuneration, using a judge’s individual
material needs as a basis. In order to determine, whether the level of judges’
remuneration is appropriate, it should be assessed in connection with the
trends and proportions of the level of remuneration in the public sector.
The
Saeima maintains that “a reasonable proportionality in setting the remuneration
for work of equal value to judges and the employees of the public
administration in legal profession has been ensured” (case materials, Vol. 5, p. 161). In the framework of the case
information on the remuneration to employees of legal profession working in
other branches of the state power, heads of independent institutions and the
highest civil servants of the state – the ministerial state secretaries was
requested.
The Constitutional Court established that the salary
of judges already since 2007 had been significantly lower than the average
salary of the heads of ministerial legal departments; the salary of the ministerial
state secretaries was almost two times higher than a judge’s salary. The
average salary of the heads of independent institutions exceeded the salary of
a judge in 2007 – 3.6 times, in 2008 – 4.3 times, but the salary of the members
of the councils of independent institutions exceeded judges’ salary in 2007 –
2.6 times and in 2008 – 3.6 times. Moreover, till 2009 the officials of public
administration were receiving premium payments, thus the average total
remuneration of the highest officials of public administration in 2007 and 2008
surpassed the judges’ remuneration even three times (in some ministries the
remuneration of the state secretaries in 2007 and 2008 is 5.5 times larger than
the remuneration of a judge and even 10 times larger than the remuneration of a
judge of a Land Register Office).
The
average increase of salary in the public administration in 2007 (68 – 88
percent) and in other independent institutions (25 percent) significantly
exceed the increase of the judges’ salary (16 percent).
Moreover,
in 2008, when the judges’ salaries were already “frozen”, the salaries of the highest
civil servants of public administration increased by 17 – 19 percent, but the
salaries of the heads of other independent institutions – by 20 percent.
With
all due respect towards all professions and offices, without doubting the influence
and significance of the adopted decisions, but at the same time taking into
account the importance of a fair and independent court in the protection of
human rights and freedoms and in ensuring the rule of law, as well as the
duties, responsibilities, restrictions and competence requirements of judges,
such a difference between the remuneration of judges and the representatives of
other branches of power cannot be recognised as reasonable and proportional.
22. The Ministry of Justice has
pointed out that the appropriate level of remuneration defined in the law still
has not been reached, because the transitional period has been extended several
times, due to the “economic situation in the state” (see: case materials, Vol. 2, p. 17). The statement that in the
previous years the judges’ remuneration was “frozen” because of the economic
situation in the state is not justified, since the materials obtained in the
process of preparing the case prove the opposite. The Saeima in its letter of
response indicated that the economic development significantly worsened in 2008
and that on 7 November, 2008 the Central Statistical Bureau for the first time
publicised information about the decrease of gross domestic product (See: case materials, Vol. 5, p. 159). This
is also proven by the fast increase of the average remuneration of the public
sector employees, including the increase of the wages of the ministers, the
Saeima deputies and officials of the independent institutions, implemented in
2008. Prime Minister I. Godmanis, addressing the Saeima deputies during the
session of 11 December, 2008, indicated that already in 2007 the increase in
wages had reached even 30 percent, and at present we “simply cannot afford such
increase in salaries, which we were able to afford during the previous years” (See: Transcript of 11 December, 2008 session
of the Saeima http://www.saeima.lv/steno/Saeima9/081211/st081211.htm,
accessed on 26 December, 2009). The judges’ remuneration was
decreased at the time when the monthly salary of many employees of the public
sector was significantly increased.
Thus
the Saeima, when deciding to decrease the judges’ remuneration, did not assess
its balance with the changes in remuneration of officials in other branches of
power, it also did not take into considerations the restrictions on holding
another job set for the judges, and all the possible consequences and risks
following from it.
23. The Constitutional Court
already noted that only a stable remuneration guarantees the financial security
of judges (See: Para. 11.3 of this
Judgement). Prior to initiating this case the amendments to the Transitional
Provisions of the Law “On Judicial Power”, which influenced the calculation of
the judges’ salary, were implemented with the amendments of 23 February, 2006,
8 November, 2007 and the contested amendments of 14 November, 2008. The
judgement establishes that the changes, which were introduced with the 2006 and
2007 amendments to the law, were not linked with extraordinary situation or any
exceptional circumstances. The amendments to the law adopted in 2006 and 2007
are not being assessed in the framework of this case, however, the Constitutional
Court noted that these have influenced not only the stability of the system of
judges’ remuneration, but together with the contested provisions influence the
present amount of the judges’ remuneration and, consequently, the conformity
with the status of a judge.
The
statement of the Ministry of Justice that with regard to the procedure for
calculating the judges’ remuneration “the requirement that the legal provision must
conform with the system and the present assessment, has a primary significance
compared to the principle of legal stability and the previous practice, if the
existing practice is no longer acceptable” cannot be agreed to (case materials, Vol.2, p.17). The
Constitutional Court already established that the system of judges’
remuneration is flexible and adjusts to the general economic situation in the
state, thus a need to deviate from this system could arise only under special
exceptional conditions. In such a case a temporary stepping away, in compliance
with the Satversme, from the principles for setting the salary set out in the
law and consequently from the general prohibition to decrease the judges’
remuneration, does not undermine the stability of the system of remuneration.
However, such amendments of acts of legislation, which without reason influence
the stability of the judges’ remuneration, do not meet the requirements of the
judges’ financial security.
Thus, the legal regulation on the setting of judges’
remuneration, which is in force and which has been influenced by repeated
amendments to the law, including the contested provisions, cannot be regarded
as stable.
24. The
principle of distribution of power prohibits the executive power to decide upon
issues, which directly influence the actions of judiciary and the functioning
of courts, i.e., the issues of funding, the number of judges, the necessary
staff, its competence requirements, remuneration and other issues. This is
exactly the reason why the legislator has to give the possibility to the
judiciary or an independent institution, which represents the judiciary, to
express its opinion on issues, which affect the functioning of courts, but the
taking of decisions concerning them fall within the competence of the
legislator. The legislator has the right to disagree with the opinion of the
judiciary, however, the legislator has to listen to it and to treat it with
respect and due understanding.
To ascertain, whether the legislator in adopting the contested provisions, has
complied with the independence of the branches of power included in the
principle of the division of power, the Constitutional Court will assess the
procedure of adopting these provisions.
24.1. The contested norms are
included in the draft law “Amendments to the Law “On Judicial Power””, drafted
by the Ministry of Justice, “implementing the paragraph 1. § 9. of the
Minutes No. 62 of the Cabinet of Ministers September 4, 2008 meeting, in which
the ministries, taking into consideration the amount of supported expenditure
stated in the Indent 3 of the said Paragraph, were given the task to asses and,
if necessary, draft amendments to the acts of legislation”. It is noted in the
letter from the Ministry of Justice that “the draft law and its annotation had
to be drafted within a week, since the draft law was scheduled for the Cabinet
of Ministers meeting together with other draft laws of the 2009 budget package”
(case materials, Vol. 2., p.15)
It
is noted in the annotation to the draft law that “by changing the procedure for
calculating the monthly salary set out in the law, the principle of the
independence of the judiciary and the judges, which is enshrined in Article 83
of the Satversme of the Republic of Latvia and in the Law “On Judicial Power” is
indirectly affected, the principle of legal certainty is also infringed. Thus,
negative consequences with regard to the further development of the system of
courts are possible, including difficulties in filling the vacant positions of
judges and judges of Land Register Offices.”
Part
V of the annotation, in which the commitments following from international
agreements, as well as “compliance assessment” have to be indicated, contains an
entry “not applicable”. In accordance with Paragraph 4 of the Cabinet of
Ministers Instruction No. 20 of 18 December, 2007 “The Procedure for Filling in
the Annotation to a Draft Law” and entry “not applicable” has to be made regarding
those issues that are not affected by the draft legal act. This Instruction
provides that the compliance with the case law of the European Court of Human
Rights must be assessed. Since the annotation to the draft law contained a note
that the introduced amendments to the law had an impact upon the independence
of the judiciary and the judges, Part V of the annotation had to contain an
assessment of the case law of the European Court of Human Rights regarding the
requirement included in Article 6 of the Convention to guarantee the right to
an independent trial.
The
Supreme Court also categorically objected against the draft law, since the
“amendments will have a significant impact upon the principle of the
independence of the judiciary and the judges, which is enshrined in Article 83
of the Satversme of the Republic of Latvia. The principle of the independence
of the judiciary and the judges does not allow a situation when the representatives
of the judiciary have to “bargain” about the financial resources, which are
needed to ensure the court functions set out in the law. A situation like that
not only threatens the principle of independence of courts, but also the rights
of everybody enshrined in the Satversme and international documents to an
independent and fair trial, inter alia, can cause doubts about the impartiality
of the judgements of the court” (case
materials, Vol. 1, p. 84).
The
Minister for Justice Gaidis Bçrziòð in the letter to the Prime Minister of 30
September, 2008 noted: “By changing the procedure for calculating the monthly
salary established in the law, the principle of the independence of the
judiciary and the judges is indirectly affected” (case materials, Vol. 1, p. 86).
But during 7 October, 2008 meeting of the Cabinet of Ministers the Minister for
Justice submitted his dissenting opinion on the draft law, noting the threat to
the principle of the independence of judges. The Minister also drew attention
to the case law of the constitutional courts of other countries and warned that
internationally a measure like that could be assessed as an attempt to
influence the independence of the judiciary, untypical of democratic states (See: case
materials, Vol. 1, pp. 57 and 91).
Notwithstanding
all of the above mentioned, the Cabinet of Ministers did not eliminate the
drawbacks mentioned in the annotation and did not assess the expressed objections.
24.2. During the Saeima session
of 16 October, 2008, when the decision to submit the draft law to the
committees was taken, the member of the Saeima S. Âboltiòa called not to support
the draft law and indicated: “Judges and court employees are the only ones for
whom the increase in salary is defined in law [...].So then we today are aiming
to support amendments, which can be easily revoked through the Constitutional
Court” (Transcript of the Saeima meeting of 16 October, 2008 , http://titania.saeima.lv/LIVS/SaeimaLIVS.nsf/0/314baab01ee91aeec22574e90030c1ff/$FILE/LP0902_0.htm,
accessed on 26 December).
During
the Saeima session of 30 October, 2008 the draft law was recognised as urgent
and was adopted without discussions in the first reading (See: Transcript of the Saeima
meeting of 30 October, 2008 http://titania.saeima.lv/LIVS/SaeimaLIVS.nsf/0/B249E1AF4F1AB4CFC22574F90049798A?OpenDocument,
accessed on 2 December, 2009).
To
recognise that the salary decrease is justifiable, it is not enough to have an
important aim. The aim must be proportional to the means used to achieve it,
i.e., the legislator has to prove that the chosen means are proportional.
The
Saeima in its written response points out that “prior to the adoption of the
draft law in the final reading possible alternatives were carefully assessed” (See: case
materials, Vol. 1, p. 96). Namely, the Saeima points to the proposal submitted
by the Legal Office of the Saeima on the possibility that the judges and the
judges of Land Register Offices could be compensated for losses, if such would
be caused by the draft law (See:
case materials, Vol. 5, pp. 161 – 162).
It
can be established from the materials of the case that the Legal Office of the
Saeima in its opinion on the draft law drew the committees attention to several
conditions that needed to be assessed, i.e., the need to assess the compliance
of the amendments with the principle of the independence of judges, included in
Article 83 of the Satversme, and the principle of legal certainty, which
follows from Article 1 of the Satversme. Likewise, the Legal Office also
indicated that the amendments should provide for considerate transition to the
new regulation and compensation for the losses caused (See: case
materials, Vol. 6, pp. 192
–195).
These
proposals were not supported, and on 14 November, 2008 the draft law was
adopted in the second reading without discussions (See: Transcript of the Saeima
session of 14 November, 2008 http://titania.saeima.lv/LIVS/SaeimaLIVS.nsf/0/5053320642BBC31DC22575200054D9B7?OpenDocument,
accessed on 26 December, 2009).
Even
though the Saeima itself admits that “it would not help to achieve the
legitimate purpose on a sufficient scale”, it is impossible to find in the case
materials a confirmation that not only alternative solutions, but also the
compliance of the amendments with Article 83 of the Satversme and also the
principle of legal certainty, which follows from Article 1 of the Satversme,
were assessed (See: case materials, Vol. 1, p. 96).
Thus
the legislator, when adopting the contested provisions, did not asses with
sufficient care the alternative solutions to establish whether less restrictive
measures existed.
24.3. It is noted in the written
response of the Saeima that “Latvia has taken international loans, and several
conditions were set for obtaining them, among them also such that refer to the
decrease of remuneration” (case
materials, Vol. 1, p. 193). To concretize this argument the Saeima pointed
out that the procedure for receiving and using international loan was defined
by certain rules, which “are included in the Memorandum of Understanding between
the European Communities and the Republic of Latvia, Paragraph 2 of which
provides decreasing the amount of remuneration and the number of employees in state
and local government institutions” (case
materials, Vol. 5, p. 168).
The
contested provisions were adopted on 14 November, 2008, but the Memorandum of
Understanding between the European Communities and the Republic of Latvia was
signed on 28 January, 2009. Thus, the Saeima’s reference to the requirements
set in this Memorandum is not correct.
The
Constitutional Court has already pointed out that the international lenders,
within the framework of their competence, define the main aims for the state,
however, the choice of the most suitable and adequate means for reaching these
aims is left at the discretion of the state. The Constitutional Court did not
receive information that the international lenders had set the adoption of the
contested provisions as the pre-condition for receiving the loan (See: Judgement
of 21 December, 2009 by the Constitutional Court in the case No. 20019-43-01,
para. 30.1.). Moreover, the international commitments undertaken by the
Cabinet of Ministers cannot serve as an argument for restricting the
independence of judges defined in Article 83 of the Satversme.
24.4. It can be established from
the materials of the case that the Parliamentary Legal Affairs Committee in
connection with the draft law received many letters from Latvian courts. During
29 October, 2008 meeting of the Legal Affairs Committee the committee member
Vineta Muiþniece pointed out: “Courts have submitted letters with substantive
argumentation, with pronounced disagreement, however, we are at the same time
politicians, responsible for the situation in the state, and therefore we have
to take a decision on the course of the draft law” (case materials, Vol. 7, p. 35).
During
the Saeima meeting on 30 October, 2008 the member of the Saeima S. Âboltiòa
noted with regard to the adoption of the budget and the judges’ salaries, that
“nobody, except the Minister for Justice, has tried to reach an agreement with
judges and to arrive at a kind of a compromise.” Neither does the Saeima deny that,
when deciding on the contested provisions, the opinion of the judiciary was not
heard. The Saeima in its written response noted directly that “such
consultations would be meaningless”, moreover, the issue had been very urgent (see: case
materials, Vol. 1, p. 96).
The
obligation to listen to the opinion of an institution representing the
judiciary follows from the principles of the division of power and the
independence of judges. The argument about the urgency of the issue cannot
justify the infringement of these principles. Moreover, the materials of the
case allow establishing that the representatives of the judiciary had expressed
their opinion. The Saeima, in its turn, has not submitted materials proving
that it assessed the opinion expressed and arguments presented by the judges.
Thus, the legislator, in adopting the contested
provisions, did not comply with the principle of the division of power.
25. This judgement
establishes a number of incompatibilities, which influence the financial
security of judges and, thus, also the independence of judges. The introduced amendments
and the identified breaches, in view of the existing conditions, cannot be
regarded as reasonable and acceptable. The other guarantees of the independence
of the judiciary, which, undoubtedly, have great significance, do not
compensate for the disproportional restrictions of a judge’s financial
security.
Since by disproportionally restricting the financial
security of judges the principle of the independence of judges has been
breached, the contested provisions are incompatible with Article 83 of the
Satversme.
26. In accordance with the case
law of the Constitutional Court, if the contested legal provisions are declared
incompatible with a provision of the Satversme, the Court does not asses the
compliance of these provisions with other provisions of the Satversme.
27. In the examination of a case
the Constitutional Court is bound by the limits of the claim, i.e., it has to
verify the compatibility of the contested provisions with the provisions of
higher legal force, taking into consideration the argumentation of the
Applicants and the motives and considerations reflected in the Applications. In
this case the Applicants have contested the second sentence of Paragraph 7 and
Paragraph 17 of the Transitional Provisions of the Law “Amendments to the Law
“On Judicial Power”” in 14 November, 2008 wording of the Law. As it was already
indicated in this Judgement, while this case was being prepared and
adjudicated, the contested provisions were amended further with the Law of 16
June, 2009 “Amendments to the Law “On Judicial Power”” and the Law of 1
December, 2009 “Amendments to the Law “On Judicial Power”. The amendments to
the Law adopted in June and December, 2009 envisage, inter alia, to apply the “freezing” of the judges’ salaries also to
the years 2010 and 2011, but with regard to the judges of Land Register Offices
– also to 2012. Namely, the second sentence of the contested Paragraph 7 in the
wording, which is currently in force, provides “the monthly salary of a judge,
except the monthly salary of a Land Register judge, in 2007, 2008, 2009, 2010
and 2011 shall be calculated, taking into consideration the average monthly
gross remuneration of employees in 2005, keeping the coefficient 4.5
unchanged.” The contested Paragraph 17, in its turn, envisages that the monthly
salary of a judge of a Land Register Office shall be calculated “in 2010 and
2011 – taking into consideration the average monthly gross remuneration of the
employees in 2006, applying the coefficient 2.9; in 2012 – by applying the
coefficient 3.5 to the average monthly gross remuneration of the employees in
the state in the previous year, as announced in the official statistical report
of the Central Statistical Bureau, which has been approximated till lats.”
Since
the principle of “freezing” equally applies both to 2009 and also 2010, 2011
and 2012, the new wording of the contested provisions, to the extent they prolong
the period for “freezing” the salaries, essentially maintain the situation of
the judges set by the contested provisions for several more years.
Therefore, abiding by the principle of procedural
economy, the Constitutional Court has the grounds to broaden the claim and
attribute its conclusions also to Paragraphs 7 and 17 of the Transitional
Provisions, to the extent they in the same way as the contested provisions define
the procedure for calculating the judges salary also in 2010, 2011 and 2012.
28. The Constitutional Court
already concluded that the contested provisions envisaged decrease of judges’
remuneration (See: para. 18 of this
Judgement). Upon establishing that the principle of “freezing” is applied
also to the years 2010 and 2011, but with regard to the judges of Land Register
Offices - also to 2010, it can be concluded that the period of decreasing judges’
remuneration has been significantly extended. In fact the “freezing” of
salaries has been set for the period from 2007 till 2011, while it is being
calculated on the basis of the average remuneration in 2005.
However,
taking into consideration that in 2009, 2010 and 2011 various remuneration
linked restrictions have been set also with regard to the representatives of
other branches of state power, the Constitutional Court can agree to the
statement that the decrease of remuneration till 2012 can be regarded as having
a fixed term. The legislator has
provided that judges will receive remuneration in full amount starting with
2010, but the judges of Land Register Offices – starting with 2013. Wherewith
the legislator has envisaged a fixed-term decrease of the judges’ remuneration
and has clearly set in the law the end of the term of decreased remuneration.
29. In accordance with Paragraph 11 Article 31 of The
Constitutional Court Law, in the case when the Constitutional Court declares a
legal provision incompatible with a norm with higher legal force, it has to set
a date as of which said provision would become invalid. The Applicants in this
case have requested to declare the contested provisions invalid from the day of
their coming into force, i.e., 9 December, 2008. Thus the Constitutional Court
has to determine a date, as of which the contested provisions should be
regarded invalid.
The third part of Article 32 of The Constitutional
Court Law provides that a legal provision (act), which the Constitutional Court
has declared incompatible with a legal provision with a higher legal force,
shall be regard invalid as of the day when the judgement of the Constitutional
Court is published, unless the Constitutional Court has provided otherwise.
Thus the legislator has granted to the Constitutional Court discretion to
decide the date as of which the contested provision, which has been declared
incompatible with a legal norm with a higher legal force, becomes invalid. To
declare the contested provision invalid from another day, not the moment when
the judgement is published, the Constitutional Court has to substantiate its
opinion.
In determining the moment when the contested provisions
on decreasing judges’ remuneration become invalid, the Constitutional Court, to
the extent possible, should see to it that the interests of these persons are
not harmed, i.e., the unlawfully withheld remuneration should be paid. Even
though the members of the Saeima have been informed about the possible
consequences, namely, deputy S. Âboltiòa pointed out that the savings made by
decreasing judges’ remuneration was “illusory”, because “these will have to be
repaid”
(Transcript
of 16 October, 2008 and 30 October, 2008 sessions of the Saeima), the
Constitutional Court still has to assess the specific conditions, since such a
situation, which would be incompatible with the Satversme even more than the
situation if the consequences of the contested provisions would continue for
some time, would not be admissible. Moreover, the payment of judges’ salaries
in full amount and compensation for all unpaid sums could seriously threaten
the stability of the basic budget of the state and the welfare of the whole
society, including the Applicants themselves. It has been recognised in the case
law of the Constitutional Court: even though certain provisions have been
recognised as incompatible with the Satversme, however, instant increasing of
the financial resources to be paid to the persons, without considering the
possibility of taking well-considered measures to ensure the payments, could
significantly influence the payments intended for other persons, hinder the implementation
of the functions of other institutions and thus encumber the fulfilling of the
state functions in general. (See: Judgement of 4 January, 2007 by the Constitutional Court in the
Case No. 2006-13-0103, para. 12)
With the annulment of the contested provisions, the salary of judges should be set in accordance with the Articles 1191 and 1201 of the Law “On Judicial Power”, to the extent that this salary is not restricted by the amendments to the law that envisaged decrease in percentage of the judges’ remuneration. Taking into consideration what has been established in this case – that the judges’ salary, which is being paid in accordance with the contested provisions, is calculated by multiplying the average remuneration with coefficient 2.78, but the judges of Land Register Offices – coefficient 1.89, not 4.5 or 3.5 as was previously envisaged in the Law, it can be concluded that the salary of judges, if it were paid in full amount, i.e., in accordance with the provisions of the system of judges’ remuneration, it would increase almost twice.
An immediate enforcement of the Judgement could have
an adverse impact upon the state budget. The annulment of the contested
provisions starting as of the date they came into force, i.e., 1 January, 2009,
could create even more adverse consequences. Therefore the Constitutional Court
has to set the most appropriate date on which the contested norms shall become
invalid.
30. Paragraph 12 of Article 31 of the Constitutional
Court Law in substance envisages similar rights as the ones granted to the
constitutional courts of other states for ensuring the enforcement of their
judgements, i.e., an authorisation granted to the constitutional court itself
to define significant legal consequences of its judgements. Moreover, the law
not only authorises the Constitutional Court, but also places responsibility
upon it, so that its judgements in the social reality would ensure legal
stability, clarity and peace (See: Judgement
of 21 December, 2009 by the Constitutional Court in the case No 2009-43-01,
para. 35.1).
The Constitutional Court has already concluded that
it, to the extent possible, should see to it that the situation, which could
develop starting with the moment when the contested provisions become invalid,
should not breach the fundamental rights of the Applicants and other persons guaranteed
in the Satversme and would not cause significant harm to the interests of the
state or society (See: Judgement of 16
December, 2005 by the Constitutional Court in the case No. 2005-12-0103 ,
para. 25 and Judgement of 21 December, 2009 in the case No. 2009-43-01, para. 35.1).
If the Constitutional Court were not to decide upon
issues linked with the enforcement of this Judgement, i.e., would not set the
date as of which the contested provisions become invalid, a situation, which
might threaten the stability of the state budget, could develop.
The Substantive Part
On the basis of Articles 30 – 32 of the Constitutional Court Law, the Constitutional
Court
h o l d s:
1. To declare the second sentence of Paragraph 7 of
the Transitional Provisions of the Law “On Judicial Power”, in the wording of
the law from 14 November, 2008, 16 June, 2009 and 1 December, 2009 incompatible
with Article 83 of the Satversme of the Republic of Latvia and invalid starting
with 1 January, 2011.
2. To declare Paragraph 17 of the Transitional Provisions
of the Law “On Judicial power”, in the wording of the law from 14 November,
2008, 16 June, 2009 and 1 December, 2009 incompatible with Article 83 of the Satversme
of the Republic of Latvia and invalid starting with 1 January, 2011.
The Judgement is final and not subject to appeal.
The Judgement comes into force on the day of its
publication.
The Presiding Judge
G. Kûtris