Principle of Judicial Independence in the Case-Law of the Constitutional Court of the Republic of Latvia: Modern Trends
Mr. Gunars Kutris
Chairman of the Constitutional Court of the Republic of Latvia
Ms Laila Jurcena
Adviser to the President, Constitutional Court of Latvia
Published in „Kонституционое правосудие” No 3(53)2011
Introduction
I’ll start by saying that I do not want to contradistinguish the words “classical” and “modern”. I am convinced that the case law developed by Constitutional Courts should be considered a classical value. Obviously, life evolves, specific circumstances change, exceptional situations arise, which make the Court respond, possibly, in an untraditional way – modify classical tests, look for arguments and justification for some deviations from the limits set previously.
The Constitutional Court acts as the balancer of public interests. It assesses the balance between various rights, interests or principles of law; between the rights, on the one hand, and the need to ensure public interests, on the other hand. The judgement of the Constitutional Court is always influenced by the public interests of the given moments, which, due to various circumstances, can change (of course, within the limits defined by the Constitution).
Everything mentioned falls within the concept “development of the constitutional jurisprudence”. It is the specific feature of our work that we are as “modern” as the concrete circumstances, political decisions, economic situation, etc. make us.
Therefore I’ll discuss the evolution of one concrete issue – the principle of the judicial independence in the case law of the Constitutional Court of the Republic of Latvia.
During the recent years we have discussed the independence of the judiciary quite often (both in Bucharest and Rio de Janeiro, also during other conferences). However, I have chosen this issue to demonstrate the way the concrete circumstances influence the assessment of the issue by the Constitutional Court. Namely, the issues to be assessed and the references included in the judgments, as well as the way conclusions are substantiated, and the limits of the Court’s jurisdiction are influenced.
In this paper I’ll examine two judgments of the Constitutional Court connected with the principle of the judicial independence. These are judgments on the decrease of judges’ remuneration. Both cases were initiated on the basis of constitutional complaints submitted by more than half of all Latvian judges (excluding the Constitutional Court Justices).
Before analysing concrete issues, I would like to point out two facts:
First, I fully agree to what was indicated in one of the judgments of the Constitutional Court: judges do not live in a social vacuum, and the concrete situation, whatever has caused it (a natural disaster, economic recession, the government’s actions or failure to act or irresponsible decisions of the state), applies to them[1].
Secondly, in all its judgments thus far the Constitutional Court recognised that the legislator’s actions are not in conformity with the Constitution. When the Constitutional Court made its first judgment, the judges received 62% of the remuneration envisaged by the law. When the Court made its second judgment, the judges were receiving remuneration in the amount of 38%, some – even in 33% of the one envisaged by the law. However, numbers (the amount of remuneration) was not the only reason, why these provisions were recognised to be unconstitutional.
1. The Principle of Judicial Independence
The judicial independence is connected with a number of 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. As the Constitutional Court indicated in its first judgment on the decrease of judges’ remuneration: “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”[2].
The judgments I refer to analyse one guarantee of the independence of judges – the financial security. 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[3].
2. Concrete Circumstances that Influence the Examination of the Issue
The understanding of general values, including the independence of judiciary and democracy, depends upon the history and 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[4]. I already indicated that the examination of the issue by the Court is influenced by concrete circumstances. In the cases regarding the decrease of judges’ remuneration, not only the existing legal provisions, but also the arguments and the substantiation provided by the legislator and the executive power directly revealed the essence of the problem. Unfortunately, we can still talk about insufficient understanding of the significance and the meaning of the judicial independence.
The other factor, which influenced the Court’s judgement in these cases, is the situation of economic recession (economic crisis) in Latvia. The decrease of judges’ remuneration is one of the issues most directly linked with the crisis. Thus, not only the legislator’s action, but also the substantiation and interpretation of the Court’s judgement were influenced by “the crisis background”.
3. Main Reasons for the Constitutional Court’s Conclusions
Due to the already mentioned lack of understanding or, possibly, unwillingness to understand the importance of judicial independence, the Constitutional Court had to substantiate repeatedly in each judgement the vital importance of judicial independence in a democratic state.
Perhaps the Constitutional Court could arrive at the part of conclusions also without repeated references to obvious things. However, by responding to the lack of understanding of the judicial independence and the still unsecured position of the judicial power among other branches of power, and hoping that it is possible to educate and to inform society also with the help of the Constitutional Court judgments, the Court repeatedly indicated:
- 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[5];
- an effective realisation of human rights is impossible, if the judges are not independent[6];
- the independence of judges guarantees the safeguarding of the rule of law in the interests of the society and the state[7].
The Court indicated in its judgments that decisions directly influencing the actions of the 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, can be taken solely by the legislator.
3.1. The Legislators’ Discretion and Obligation to Listen
The Constitutional Court in several of its judgments has referred to the legislator’s discretion in different fields and about the “duty to listen to and to assess” in the legislative process.
For example, in the case, when the Constitutional Court examined the rights to social security, the Court indicated that in the process of drafting the law, the Parliament performs its duty to listen to and to assess in the framework of legislative procedure. To meet the requirement of listening it is sufficient that the opinion of the respective person has been made known orally or in writing to the Parliament, namely, to the members of the committee in charge[8].
The Court provided a detailed analysis and substantiation of the Parliament’s duty to “listen and to assess” in its judgments on the decrease of judges’ remuneration. In this case it is important that the Court not only assessed, whether this legislator’s duty had been adequately ensured, but also provided motivated, clear indications as to what this legislator’s duty included, if the decisions that affect the functioning of the judiciary are taken.
The Court pointed out that 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, to express their opinion on issues affecting the functioning of courts[9]. Listening to the opinion of the judiciary in the context of the division of power means that in case, if this opinion is not taken into consideration or is only partially taken into consideration, the legislator has the duty to provide substantiation of its actions in the scope that, if the Constitutional Court would have to assess the constitutionality of the legislator’s action (the decision adopted), this substantiation would provide all the necessary information needed to perform the proportionality test[10].
The Constitutional Court in its judgement, on the basis of the principle of the division of power, outlined the limits, at the same time leaving room for the legislator’s discretion as set out in the Constitution. Namely, the legislator can elaborate a separate procedure for deciding on issues significant for the judicial power. The legislator is entitled to establish a separate committee for deciding on these issues (similarly as in Canada in connection with judges’ remuneration). In our case the legislator thus far has not defined special procedures; but for listening to the opinion of the judiciary, the Council for the Judiciary is used.
Simultaneously, the Constitutional Court pointed out risks, namely, that the involvement of some representatives of the judiciary in solving the issue of judges’ remuneration should be avoided. It can adversely impact the public trust in the independence and objectivity of courts. When budget issues are debated, the judicial power, undeniably, is in a weaker position compared to the other branches of power. Thus, direct negotiations between the legislator and separate representatives of the judiciary is not the most appropriate way of communicating between the branches of power, since in such negotiations the legislator has at least the perceived possibility to influence the judiciary and its decisions, but even such a perceived possibility is inadmissible[11].
Listening to the opinion of the judiciary, when dealing with issues essential for its functioning, is the legislator’s obligation, which follows from the principle of the division of power. Thus, not only the scope of legislator’s discretion is different, namely, to listen to the judiciary and to substantiate its decision, but also the competence of the Constitutional Court in assessing, whether the opinion of the judiciary has been listened to and taken into consideration, and whether substantiation has been provided in those cases, when this opinion has not been or has been only partially taken into consideration[12]. In view of the “sensitivity” of the issue, both powers should listen to the other’s opinion and treat it with special respect and true understanding.
3.2. Indications to the Legislator
It must be admitted, that the background mentioned before – the insufficient understanding of the place of the judicial power and the system of division of power and the significance of its independence – has been the reason why these judgments contain several “indications” and “hints” to the legislator.
In a democratic country governed by the rule of law, considering the scope of functions given to the institutions of state authority, the identification and elimination of the insufficiencies in legal regulation primarily falls within the competence of the legislator. However, the duty of effective co-operation between the branches of power not only allows, but also imposes the obligation upon the Constitutional Court to draw the legislator’s attentions to inadmissible actions or better solutions.
In the judgments on the decrease of judges’ remuneration the Constitutional Court is discussing at length the need to have a stable and long-term system of remuneration for judges, since only such a system creates financial security.
In view of the fact that the execution of the judgement made the legislator introduce amendments in the regulation on judges’ remuneration, the Constitutional Court outlined clear “red lines” for the legislator, which follow from the Constitution:
a) it is impossible to develop a new remuneration system in a period of crisis or under the influence of a crises (a temporary situation), when a system, which complies with the Constitution and the international requirements, is already functional. It would not comply with the principle of the independence of courts and judges, since in a democratic state the system of judges’ remuneration must function in the long-term[13].
b) when deciding on the development of a new system in the absence of crisis, taking into consideration that the procedure for setting judges’ salaries should be independent, effective and impartial, the Constitutional Court pointed out the logical steps in the legislative procedure and the legislators’ duties:
- – to substantiate the need for the new system in such a scope that in case, if the Constitutional Court had to assess its compliance with the Constitution, this substantiation would provide all information necessary for assessment;
- – to listen to the opinion of an independent institution representing the judiciary, respecting it in accordance with the principle of the division of power;
- – 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 Constitutional Court had to assess its compliance with the Constitution, this substantiation would provide all information necessary for examination;
- – to set a sufficient transition period, allowing the judges, who have chosen their position for life, to re-qualify for an equal position[14].
c) during a period of crisis the remuneration may be decreased, if equality and solidarity requirements are met. Namely, 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[15].
d) the Constitutional Court defined “appropriate salary” for judges. Such remuneration for judge’s work could be regarded as appropriate, which is 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 set in the law to hold another job, as well as the workload of judges[16].
e) the principle of the division of power does not define special arithmetic proportions between the levels of remuneration in different branches of power[17]. However, setting judges’ remuneration on the basis of the legislator’s political will is contrary to the principle of the division of power and the judicial independence. If the legislator were given unlimited rights to influence the judges’ salaries according to its own political choice, the concept of judicial independence would become meaningless[18].
3.3. Influence of Crisis upon Conclusions of the Constitutional Court
The majority of the courts represented here have examined the decreasing of judges’ remuneration and social guarantees in different contexts, under different circumstances, in different periods of time. Poland, Lithuania, the Czech Republic, Russia, Estonia, Slovenia, Germany. Each case followed from different circumstances, in each case different legal regulation was assessed.
In none of these countries (just like in Latvia) the Constitution contains expressis verbis prohibition to decrease judges’ remuneration. Article 83 of the Constitution of the Republic of Latvia states that “judges shall be independent and subject only to the law.” In assessing, whether this provision contains a prohibition to decrease the judges’ remuneration, the Constitutional Court evaluated the scope and content of the principle of the judicial independence not only in interconnection with other norms and principles of the Constitution, but also by considering Latvia’s international commitments in the field of human rights.
The Constitutional Court established that the requirement to safeguard judges remuneration and other guarantees follows from the principle of the independence of courts and judges, which aims to protect judges against any kind of influence: of the legislator, the executive power, institutions and officials, various organizations, commercial structures, legal and natural persons. Thus, Article 83 of the Constitution contains the prohibition to decrease judges’ remuneration set by the law during their term in office.
At the same time the Court pointed out that 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[19]. 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 Constitution[20].
It is possible to make the financial and material conditions for court functioning worse and to decrease judges’ remuneration only by law in special exceptional cases and for a short term – until the financial and economic circumstances of the state are particularly hard. However, even under particularly difficult economic conditions, neither the funding of the courts, nor the judges’ remuneration can be decreased to the point that the courts are no longer able to fulfil their constitutional function – to administer justice. The safeguards for judges’ independence must be ensured always – both during the exceptional situation that has arisen in state and after it is over[21].
[1] The Judgment of 18 January, 2010 by the Constitutional Court of the Republic of Latvia in the Case No. 2009-11-01, para 10.3.
[2] The Judgment of 18 January, 2010 by the Constitutional Court of the Republic of Latvia in the Case No. 2009-11-01, para 8.2. 3 The Judgment of 14 July, 2005 by the Constitutional Court of the Czech Republic in the Case Pl. US 34/04 4 The Cambridge Yearbook of European Legal Studies, Volume 4, 2001, p. 54
[3] The Judgment of 14 July, 2005 by the Constitutional Court of the Czech Republic in the Case Pl. US 34/04
[4] The Cambridge Yearbook of European Legal Studies, Volume 4, 2001, p. 54
[5] The Judgment of 18 January, 2010 by the Constitutional Court of the Republic of Latvia in the Case No. 2009-11-01, para 7
[6] ibid., para 7.1.
[7] ibid., para 7.2.
[8] The Judgment of 29 October, 2010 by the Constitutional Court of the Republic of Latvia in the Case No. 2010-17-01, para 10.1.3.
[9] The Judgment of 18 January, 2010 by the Constitutional Court of the Republic of Latvia in the Case No. 2009-11-01, para 8.1.
[10] The Judgemnt of 22 June, 2010 by the Constitutional Court of the Republic of Latvia in the Case No. 2009-111-01, para 29.1.p.
[11] Judgment 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. Ref. 3.
[12] The Judgment of 22 June, 2010 by the Constitutional Court of the Republic of Latvia in the Case No. 2009-111-01, para 29.2.p.
[13] The Judgment of 18 January, 2010 by the Constitutional Court of the Republic of Latvia in the Case No. 2009-11-01, para 11.5.
[14] ibid.
[15] ibid., para 19
[16] ibid., para 20.
[17] ibid., para 21.4.
[18] The Judgment of 22 June, 2010 by the Constitutional Court of the Republic of Latvia in the Case No. 2009-111-01, para 14
[19] The Judgment of 18 January, 2010 by the Constitutional Court of the Republic of Latvia in the Case No. 2009-11-01, para 10.3.
[20] Ibid., para 11.4.
[21] Ibid