The Constitutional Court terminated proceedings in the case on judge and public prosecutor’s remuneration reform
On 28 March 2012, the Constitutional Court terminated proceedings in the Case No. 2011-10-01 “On Compliance of Section 3 (7), Section 4 (2) and Section 16 (1), (2) and (3), insofar as they apply to judges (land registry judges) and public prosecutors, Section 4 (9), Section 6.1, Section 6.2, the First Sentence of Section 14 (1), Section 15 (7), of the Law „On Remuneration of Officials and Employees of State and Self-government Authorities” and Section 8.4 of Transitional Provisions thereof, as well as Compliance Section 89.11 Paragraph 9.1 of the Law “On Judicial Power”, Para 4 and Para 10 of the Law „Amendments to the Law „On Judicial Power””, and Section 2 and Section 5 (Regarding Crossing out of Section 55 (3)), Section 6 (Regarding Crossing out of Section 57.1 (4), Section 57.2 and Section 57.5) of 16 December 2010 Law „Amendments to the Office of the Prosecutor Law) with Article 1, Article 83 and Article 107 of the Satversme of the Republic of Latvia”.
On Cooperation of Public Branches when Determining Basic Remuneration Principles
Contested Norms
Section 3 (7) of the Remuneration Law: „A remuneration determined in the regulatory enactments for officials (employees) of a State or local government authorities shall be reviewed assessing the economic situation in the country (changes in gross domestic product, changes in productivity, inflation, deflation) and taking into account other justified criteria. A unified approach shall be applied for review of remuneration by the both, State and local government authorities.”
Section 4 (2) of the Remuneration Law: „The amount of the monthly salary for officials elected, shall be determined in accordance with the procedures provided for in this Law, applying the relevant coefficient to the amount of the average monthly remuneration for work for the workforce in the State as published in the official statistical notification of the Central Statistical Bureau of the year before last (hereinafter – amount of the average monthly remuneration for work), which is rounded off to full lats.”
Section 4 (9) of the Remuneration Law: „Monthly salary of judges shall be established by biding it to salary of a high qualified lawyer working in the public administration by applying the relevant coefficient. Monthly salary of public prosecutors shall be established by binding it to salary of district (city) judge without any qualification class by applying the relevant coefficient.”
Section 6.1 of the Remuneration law provides that „(1) District (city) court judges without any qualification class shall be established by equalling it to the maximum amount of salary of a manager of a legal structural unit of the direct public administration (group of 12 salaries) pursuant to Annex No. 3 of the present Law”. The following parts of the above mentioned section refer to coefficients for calculation of salary for different positions of judges, as well as regulate remuneration in case of transfer of substitution of a judge, provides for remuneration for fulfilling other work and monthly salary of a candidate for a position of a judge.
Section 6.2 of the Remuneration Law provides that monthly salary of public prosecutors is established by applying the coefficient (from 0.98 to 1.67) to monthly salary of a district (city) court judge without qualification class. The second part of the above mentioned section establishes monthly salary of candidate for a position of a public prosecutor.
The fifth sentence of Section 14 (1) of the Remuneration Law: „A judge and a public prosecutor shall receive an additional payment which is not more than 20 per cent of the monthly salary determined to him or her for his or her performance of other duties along with his duties of office.”
Section 15 (7) of the Remuneration law: „Region (city) court house presidents, based on a proposition of district (city) court presidents, and a regional court house president, based on a proposition of a regional court president, can be established an additional payment to the monthly salary at the amount of 10 per cent by coordinating it with the Court Administration and the Ministry of Justice.”
Section 16 (1), (2) and (3) of the Remuneration law establishes cases, procedure and amount of bonuses to be granted to certain officials.
Para 8.4 of Transitional Provisions of the Remuneration Law provides: „In 2011, the Supreme Court President or the Minister of Justice, with a view to ensure motivation of the most competent and loaded judges, may provide a bonus to the judge pursuant to guidelines and procedure established by the Council of Justice for individual professional contribution and work quality at the amount that does not exceed 30 per cent of his or her monthly wage. Number of judges who can be granted the bonus shall not exceed 10 per cent of the number of judges working at each particular judicial level. This Para shall not apply to presidents of the Constitutional Court and the Supreme Court.”
Section 89.11 ( 9.1) of the Law on the Judicial Power: „The Council of Justice shall prescribe the procedure, according to which judges would be granted additional remuneration pursuant to the Law „On Remuneration of Officials and Employees of State and Self-government Authorities””.
Section 4 of 16 December 2010 Law „Amendments to the Law „On Judicial Power”” supplements the law with Chapter 9.1. „Remuneration and Long-Service Pensions of Judges” that comprises the following two sections:
„Section 66.1: Remuneration of judges. Remuneration of judges is established according to the Law “On Remuneration of Officials and Employees of State and Self-government Authorities”.
„Section 66.2: Long-service pensions of judges. Basis for granting long-service pensions to judges, as well as the procedure for granting, calculation and disbursement of judges shall be established in a special law.”
Section 10 of 16 December 2010 Law „Amendments to the Law „On Judicial Power”” excludes Part V of the law including the following four chapters: Chapter 19 „Material Provisions of the Court System”, Chapter 20 „Remuneration for Work Principles for a Judge”, Chapter 21 „Payment for Work of the Officials of Departments of Courts”, and chapter 22 „Social Guarantees for Judges”.
Section 2 of 16 December Law „Amendments to the General Prosecutor’s Law” provides for the following wording of Section 52 of the law: „Remuneration of public prosecutors shall be established pursuant to the Law „On Remuneration of Officials and Employees of State and Self-government Authorities””. At the same time, it excludes Section 52 (2), (3) and (4) of the law that regulated salary and bonuses of public prosecutors, as well as they wage during their traineeship.
Section 5 of 16 December Law „Amendments to the General Prosecutor’s Law” provides for a new wording of Section 55 of the law. It no more includes the third part of the previous wording that established that „the State shall be committed to providing life and health insurance for public prosecutors up to the amount of 15 monthly salaries”.
Section 6 of 16 December Law „Amendments to the General Prosecutor’s Law” excludes several sections of the Law. Exclusion of Section 57.1 (4), Section 57.s and Section 57.5 of the Law is contested. The above mentioned norm regulated the right of public prosecutors to receive benefit in case of decease of a family member or a dependant, a benefit in case of child birth, as well as a benefit when taking annual leave.
The Facts
By means of 19 December 2002 Cabinet of Minister Order No. 706, the concept on remuneration of judges and court staff was approved. The Concept was introduced by 19 June 2003 Law “Amendments to the Law “On Judicial Power”” that came into force on 1 July 2003.Sectoin 119.1 and 120.1 of the Law “On Judicial Power” establishes the procedure for calculation of monthly salary of judges and land registry judges. Calculation of remuneration was based on the average gross monthly wage of employees in the State for the previous year published in the official statistical report by the Central Statistical Bureau, the remuneration being rounded in lats and indexed by applying the respective coefficient of 4.5. As to higher officials, their wages exceeded the above mentioned average gross wage from 10 to 50 times.
Section 52 (2) of the Office of the Prosecutor Law provided that monthly salary of a public prosecutor depends on his or her office and monthly wage of a judge of the respective position.
In judgment of 18 January 2010 and that of 22 June 2010, the Constitutional Court has indicated that such procedure of establishment of remuneration does not permit reduction of the real amount of remuneration of judges. It ensures financial security of judges at the amount necessary to protect independence of judges. The system ensures balance of branches of power and ensures that the judicial power is no more constrained to discussing on the amount of remuneration of judges with the executive or legislative power. The system is also regarded as flexible, namely, it ensures binding of the remuneration of a judge to the average wage in the State (see: Judgment of 22 June 2010, Para 19.3).
By means of 16 December 2010 Law “Amendments to the Law “On the Judicial Power””, the Law “Amendments to the Office of the Prosecutor Law” and the Law “Amendments of the Law “On Remuneration of Officials and Employees of State and Self-government Authorities””, reform of remuneration of judges (land registry judges included) and public prosecutors was performed. By means of the above mentioned laws, a new judge and public prosecutors remuneration system was introduced.
Applicants hold that the judges and public prosecutors’ remuneration reform is performed contrary to the principle of separation of powers established in Article 1 of the Satversme, the principle of independence of a judge enshrined in Article 83 of the Satversme, as well as is at variance with judgments of 18 January and 22 June 2010 by the Constitutional Court.
The Findings and the Ruling
On the circle of persons enjoying independence guarantees
When assessing whether public prosecutors enjoy independence guarantees that do apply to judges, the Constitutional Court indicated that, in Latvia, when establishing conjunction of salaries of prosecutors with those of judges and respecting independence and role of the office of prosecutors, the legislator has decided to stipulate such financial security in respect to prosecutors that are equal to financial security of judges as to its amount and content. When assessing the remuneration system for prosecutors, the Constitutional Court took into account financial security level established by the legislator in respect to prosecutors [23].
On the scope of the rights included in Article 107 of the Satversme, namely, the right to receive appropriate remuneration for the work done
By emphasizing once again conclusions already made in previous judgments in respect to appropriate remuneration for the work done by judges, the Constitutional Court indicated that any restriction of the rights established in Article 107 of the Satversme causes infringement of Article 83 of the Satversme. However, not each violation of Article 83 of the Satversme constitutes infringement of the rights established in Article 107 of the Satversme [25].
The Applicants contested principles of remuneration of judges and prosecutors, as well as the procedure for introduction of the remuneration system. They also contested reduction of remuneration of judges and prosecutors resulting from the introduction of the system and its compliance with the principle of legitimate expectations. The Constitutional Court concluded that compliance of remuneration of judges insofar as it is related with reduction of salary, shall be assessed in the frameworks of Article 107 of the Satversme. However, the claim regarding content of the remuneration system and the procedure of introduction thereof follows from the principle of independence of judges included in Article 83 of the Satversme [27.1].
The Court indicated that the claim on the content of the remuneration system and the procedure of introduction thereof follows from the principle of independence of judges included in Article 83 of the Satversme. Consequently, such claim as such, unless it is related with infringement of the fundamental rights, cannot be a subject-matter of a constitutional claim. To resolve such disputes, the Law “On Judicial Power” and the Constitutional Court Law establish only the right of the Judicial Council to lodge an application before the Constitutional Court. If the Contested Norms have not reduced factual value of salary of judges and prosecutors, the Constitutional Court does not have the grounds to continue proceedings in the present case [27.2].
On factual value of salary of judges and prosecutors
The Constitutional Court emphasized that economic crisis made the government reassess actual economic possibilities of the State. Considering the situation, it had to elaborate a remuneration system for all officials and employees covered by the State budget, the system being based on common principles and observing the principle of proportionality. Under such circumstances, reassessment of remuneration value of judges is possible, admissible and, in certain cases, even indispensable [29.1].
The Constitutional Court concluded that, even if remuneration of judges would be reduced in the terms of figures, it does not have any reason to consider that, under the present economic situation and taking into account relations between remuneration of judges, prosecutors and other employees of the public sector, the factual value of salary of judges and prosecutors would be reduced [29.3].
The Court concluded that the Contested Norms do not infringe the right of the Applicants to receive appropriate remuneration for the work done as guaranteed in Article 107 of the Satversme; therefore, there is no reason to continue proceedings of the case initiated based on a constitutional claim and to assess compliance of the Contested Norms with Article 1 and Article 83 of the Satversme.
On the role of the Judicial Council in representation of interests of the judicial power
In the judgment of 18 January 2010 in the case No. 2009-11-01, the Constitutional Court has indicated that, in a democratic state, it is impermissible that salary of judges is determined by judges themselves or the executive power. To represent the judicial power and protect its interests, an independent institution should be founded.
By means of 3 June 2010 Law “Amendments to the Law “On Judicial Power”” that came into force on 1 August 2010, the Judicial Council was founded to participate in elaboration of the judicial system’s policy and strategy and represent the judicial power. The Law also establishes rights of the Judicial Council, acting within the frameworks of its jurisdiction, to submit an application to the Constitutional Court to initiate a matter.
The Constitutional Court indicated that existence of the Judicial Council does not restrict the amount of individual rights of judges and prosecutors. However, its scope of competence makes concluding that the judicial council has broader procedural rights to protect independence guarantees of courts before the Constitutional Court if compared to an individual. The Judicial Council can submit an application before the Constitutional Court also in case if a law fails to comply with Article 83 of the Satversme, though such non-compliance causes no infringement of the fundamental rights of a person established in the Satversme [26].
On cooperation of the legislator with the judicial power
The Constitutional Court concluded that, in the course of implementation of the remuneration reform, communication of the legislator with each judge individually was not only inacceptable but also, in the light of the principle of separation of powers applicable in the present case, formal [30].
The Constitutional Court emphasized that the Saeima is committed to assess, as carefully as possible, suggestions and opinion of the Judicial Council on draft laws influencing functioning of the judicial power. Interaction of the legislator and the Judicial Council, the latter representing judicial power institutions, should be aimed at strengthening democracy and functioning of the judicial power, as well as ensuring the rights to a fair trial in the most effective manner possible. Moreover, when implementing judicial power reforms, interaction of the Judicial Power with the legislator or any other party elaborating a particular draft law should be present at all stages of such reform.
According to the Constitutional Court, the most effective way to prevent problems of remuneration system is cooperation between the legislator and the Judicial Power in the frameworks of their jurisdiction.
The judgment of the Constitutional Court is final and not subject to appeal.
Linked case: 2011-10-01