Deutscher Verwaltungsrichtertag 2010: Report on working group 13 on independence and remuneration

Introduction

[1] The working group, attended by around 50 participants, was organised by the Association of European Administrative Judges upon the invitation of the organizers of the Verwaltungsgerichtstag and was chaired by Annika Sandström, Senior Judge and Head of Division at the Administrative Court of Stockholm.

[2] In his address, the Honourable Mr. Justice Bernard McCloskey, of the Supreme Court of Judicature of Northern Ireland, expounded dogmatically and comparatively the connection between the rule of law, judicial independence and remuneration. In further contributions from other members, different systems and recent developments concerning judges’ salaries in various European states were explained and discussed. On the background of varying occurance of judicial self administration, the questions discussed were by whom and according to which criteria salaries, in particular bonus payments, can be determined. As a general rule, national laws determine the minimum level of judicial salaries and this requires some degree of democratic legitimation.

Main Address

[3] In his address, the Honourable Mr. Justice Bernard McCloskey emphasised that remuneration of judges in a modern constitutional democracy is inseparably linked with the principles of separation of powers and the rule of law. Judicial independence is an internationally recognised cornerstone of the rule of law and is anchored in the EU Treaty. The meaning and scope of judicial independence were explained, by reference to the example of the UK’s Constitutional Reform Act 2005 and the jurisprudence of the European Court of Human Rights, in the context of Article 6 ECHR. In the common law world, the leading decision is one of the Canadian Supreme Court. The principles and values enshrined in this decision were duly exposed and examined. In particular, the separate individual and institutional dimensions of financial security for judges were considered. Institutionally, this requires a depoliticized relationship between the judiciary and the executive. Judicial salaries must have legal protection. Judges must not be drawn into a situation of negotiating with the executive for their payment.

[4] The issue of constitutional protection was also considered. It was suggested that whilst in many EU Member States there is extensive constitutional regulation of the judiciary, explicit protection of judicial remuneration is rare. The strongest constitutional protection of this kind is found in the Constitution of Ireland, a country where there is a modern democracy less than one hundred years old. However, even constitutions are susceptible to periodic change and the remuneration of all servants of the public, including judges, during times of economic crisis is obviously at risk. In this respect, public perceptions are indubitably important.

Slovenia

[5] The current development of the system for remuneration of judges in Slovenia was presented, in the context of two landmark decisions of the Slovenian Constitutional Court in 2006 and 2008, by Jasna Segan, President of the Slovenian Administrative Court in Ljubljana. The situation in Slovenia became problematic in the year 2005, when provisions of the Judicial Service Act and the Salary System in the Public Sector Act were changed. The new provisions were challenged in the Constitutional Court by judges, state prosecutors and state attorneys, where a decision was issued on 7th December 2006 (case no. U-I-214/06 and U-I-228/06). According to the constitution based principle of judicial independence, judges salaries may only be determined by law, so changes permitting an implementation by an ordinance of the National Assembly, a collective agreement for the public sector, a Government decree or an executive regulation would contravene the constitution. Disparities amongst officials’ salaries in the individual branches of state power would also infringe the principle of separation of powers. It would be inconsistent with constitutional principle of the independence of judges if the legislature ensures only protection against a reduction in their basic salary and if it permits additional instances of reduction of judges’ salaries to be determined by an ordinance of the National Assembly. Furthermore, a statutory regulation regarding the judges’ payment for (additional) work performances and regarding the placement of judges into salary brackets in the transitional period would be vague and as such inconsistent with the principle of the clarity of legal norms [ legal certainty ]. Following this decision, the legislature amended the Act on Salary System in the Public Sector, but neglected to give full effect to the conclusions of the Constitutional Court. This prompted around 300 law suits against acts determining salaries before the Administrative Court of the Republic of Slovenia, which stayed the procedures and requested a review of the constitutionality of the challenged provisions of the Act by the Constitutional Court.

[6] In a second decision issued on 11th of December 2008 (case no. U-I-159/08), the Constitutional Court decided that the constitutional equality of the judiciary in comparison with the legislative and executive branches of power, inter alia, would require that the independence of judges as well as the integrity and dignity of the judiciary are ensured. The regulation of the placement of judicial offices into salaries brackets, which establishes a significant disproportion between the salary brackets of judicial offices in comparison with offices of deputies and ministers, was deemed inconsistent with the principle of the separation of powers. Furthermore, a statutory provision which does not ensure for judges such regulation of the adjustment of their salaries as would protect them against significant reductions in their salaries was considered incompatible with the principle of judicial independence. Any failure the legislature to implement a decision of the Constitutional Court violates the principles of a state governed by the rule of law and the separation of powers. The decision of the Constitutional Court was a platform for the decisions made by the Administrative Court in which the illegality of the challenged acts had been declared.

[7] Meanwhile the new government had already decided to amend the challenged act in order to comply with the opinion of the Constitutional Court. The amendments subsequently adopted by Parliament were considered satisfactory by most, but not all, members of the judiciary. The new law in force since 1st of January 2010 now respects the basic principles of independence of judges and the separation of powers. Nonetheless judges – in common with members of parliament and members of the government - face a cut in their salaries of 4 % since April 2009 due to the financial crisis. Judges did not present a fresh challenge to this new law before the Constitutional Court since they consudered this unethical due to the economic situation which has an impact to the whole country.

Estonia

[8] From Estonia, Tiina Pappel, Judge at the Administrative Court in Tallinn, reported on the impact of the economic crisis on salaries of Estonian judges. From 2002 to 2009, there was a period of economic growth. Between thee years, the governing law determined a connection between the salaries of judges in Estonia and other higher state public servants and the average salary of the inhabitants of Estonia, multiplied by a factor determined by law. As a result, there was a slight annual increase in judges’ salaries during this period. When the economic crisis started in 2008, public opinion turned against the existing salary regulation of higher state public servants. This led to amendments of the law, the first of which became effective on 1st January 2009 and which froze the salaries of all higher state public servants.

[9] Members of parliament were exempted because due to the Constitution of Estonia they are not allowed to pass laws that affect their own salaries. Hereby the link between the salaries of members of Parliament and other higher state public servants was broken for the first time. While the remuneration of members of parliament continued to increase, the salaries of higher state public servants remained static. A second amendment enacted on 1st March 2009 provided the reduction of judges’ salaries by 7% until 31st December 2010 and abolished a law based prohibition of reductions in judges’ salaries. The reasons given were that the reduction would not affect the judges’ level of subsistence. An opinion on the second amendment of the law provided by the Estonian Association of Judges at the request of the Chancellor of Justice suggested that neither international law nor the Constitution of Estonia explicitly prohibited the reduction of judges’ salaries, but that this must coincide with an equal remuneration of all higher state public servants. It was further suggested that it would be imprudent to draw parallels between the adequacy of a judge’s income and the judge’s level of subsistence. Moreover, it was observed the legislature had neglected the necessary requirement of consultation with the Council for the Administration of Courts. In his decision published in January 2010, the Chancellor of Justice did not concede a violation of the Constitution, but recognised a violation of the tradition of fair legislative procedures which included participation of the judges and their representative associations.

[10] On 1st July 2009, a third amendment of the law entered into force introducing a reduction of judges’ salaries by 1 % and of all other servants by 8% (therefore an equal reduction of 8%) until 31st December 2010. On 1st April 2011 a new law will enter into force stipulating a new basis for the calculation of salaries for all higher state public servants. The salary for all higher state public servants (including members of parliament) will no longer be related to the increase in the average salary but to the annual changes in the consumer price index and the annual shift in the accrual of social tax. For county and administrative court judges it equals to that of common members of parliament and for circuit court judges it equals to the remuneration of chairmen of standing committees of parliament.

General Discussion 

[11] The remuneration systems in some other European states, together with existing and possible threats to adequate payment for judges, were addressed in further contributions. There was reference to the activities of the Council of Europe and its endeavours to extend the recommendation of the standing committee of Ministers no. R(94)12 by not only stating the requirement of a law for the determination of judges’ salaries but also the criteria of sufficient remuneration and pensions.

[12] The Swedish bonus system was criticized as it entails a large measure of subjectivity, is vulnerable to abuse and can generate inconsistencies . The payment of a bonus to an individual judge is not based on the quantity of cases processed or any assessment of the quality of the judicial decision making. Rather, a wide discretion is conferred on the president of the court in question. The governing criteria are general responsibility and skill, specially delegated responsibility, special functions and administrative responsibility. The system will be under review this year.

[13] Because of the link between the salaries of public servants and the remuneration of members of parliament in Greece there were no concerns reported. France was one ot the first European countries to implement a bonus system for judges, about 6 years ago, which led to an over all increase in salaries. The Council of State (Conseil d’Etat) is responsible for the determination of the bonus, which is not determined by law but by an ordinance of the government. Criteria for the disbursement of the bonus are the number of cases heard by a judge and the quality of the decisions. The latter criterion suffers from vagueness and subjectivity. However, there is public support for the French bonus system.

[14] From the German perspective, there was a report on the remuneration debate started in 2008 by the Association of German Administrative Judges and the German Judges Association as well as on the difference in remuneration between the German Länder due to the transfer of responsibility for determination of remuneration from the federal to the Länder level. Here the danger for a quality gap occurs when some Länder with lower salaries due to a lack of financial attractiveness are not able to attract the best qualified lawyers. Attempts to implement a bonus system for judges in some of the Länder have failed.

[15] In the Netherlands, judges’ salaries are determined by law on the same level of comparable public servants or office holders of the other state powers. This law has a special status. The courts administer their own budgets. They apply for the budget at the Justice Council, where the budget is distributed along with a quota for solved cases. If the court does not meet the agreed quota, it has to pay back a part of the budget to the Justice Council, what leads to a reduction of the budget for clerks and court staff.

[16] The Italian remuneration system is based on a law from the year 1981 and contains a fixed part linked with the average increase of the salaries of public servants and a bonus. The latter results from negotiations with the government, where the danger of “do ut des”agreements exists. Furthermore, excessive ancillary activities of some judges have been reported, leading to a considerable increase in salaries, which should be limited.

[17] The Latvian system, with its link between salaries and average income, is comparable to the Estonian. Remuneration is determined by law and on the basis of constitutional adjudication a right of maintenance of judges’ salary levels exists – other than for other public servants - so it cannot be reduced. Nevertheless, a purported reduction of judges’ salaries by 25% was introduced and a challenge to this has been presented to the Constitutional Court.

Conclusion

Reports and deliberations of this Working Group identified two particular threats to the remuneration of judges: on the one hand a reduction of salaries in systems where a link with the average income or where a disconnection from the salaries of other public servants and members of the state powers exists. On the other hand the circumstances by whom (which body) and in which way (determination by law or negotiation) and in by which procedure salaries are determined have an important impact on the adequancy of judges’ salaries. Bonus systems are objectionable on the grounds of subjectivity and inconsistency. All of these factors are conducive to unfairness. Inadequacies and frailties of this kind are, ultimately, self defeating since good quality candidates for judicial office are likely to be deterred and judicial independence may be undermined.

July 2010