Court annuls Kurti Government's decision to cut judges, prosecutors' salaries

The Parliamentary Court's Administrator Department in Pristina has generally approved the prosecution- Association of Kosovo Prosecutors, while it has annulled the UN indictee's decision -- the Government of the Republic of Kosovo -- to reduce the salaries of prosecutors and judges, November 23rd, 2022, thus ruling on February 12, 2020.

With the decision of October 13th 2023, the Court has estimated that the salaries of judges and prosecutors in the justice system cannot be reduced during their mandate, as they are acquired and guaranteed by law and as such cannot be violated, reports the “Justice Trust”.

“The court in the spirit of the Republic of Kosovo's Constitution, the superior legal provisions, the Constitutional Court Act, international instruments and judicial practices of various European countries came to the conclusion that the controversial decision of the indictee is not based on law, so the court, the prosecution's request, approved as based on the annulment of the indictment's decision, the Government of the Republic of Kosovo, the 23.2022, by a number of non-v.109, as against law, and power leaving the 122020th verdict, the Government issued by the Republic of Kosovo as the ruling of this constitution, as it is said in the constitution.

This act, it is said, replaces the cancelled administrative act and has binding character for the parties.

The court finds, with the decision of 12,02.20, the government of the Republic of Kosovo issued 01/02 by the administration's evidence, that the government of the Republic of Kosovo's decision by the number of the January 12th.20th, with a decision of 20,12.2017; 2. Salaries for positions defined with the decision abolished by point 1 return to the extent defined by the previous judicial regulation; 3. This decision has no effect on lowering current salaries in the justice system and the Constitutional Court in accordance with Article15 of Law No. 03 L-121 for the Constitutional Court of the Republic of Kosovo; Article 35, paragraphs 1 and 2, of Law No.06/L-054 for Courts, article 21 paragraphs 1, under paragraphs 1.1 to 1.10 of Law No. 03.L-225 for State Prosecutor; Article 18, paragraph 1, of Law No.06/L-055 for the Kosovo Judiciary Council; and Article 18, paragraph 1.06/ L-056 for the Prosecutorial Council; 4. This decision is valid until the Constitutional Court makes its decision regarding the Ko219/19 case for assessing the constitutionality of Law No.06/ L-111 for Salaries in Public Sector”, says the verdict.

Also, with the controversial decision of November 23, 2022, points 3 and 4 of the verdict reportedly have been abolished. The February 12th 2020, of the Government of the Republic of Kosovo, due to changing legal circumstances, where the salaries of the judicial system, including those of the Constitutional Court, return to the extent set by the previous judiciary, while other provisions remained unchanged.

The plaintiff, unhappy with the indictment's decision, has exercised indictments in this court on November 9th, 2022, contesting the legality of the same.

Otherwise, on November 29th, the Constitutional Court in Pristina had accepted the indictment by the Kosovo Prosecutors' Association towards the Government of Kosovo, following the decision made by the latter to cut salaries against judges and prosecutors, demanding that the indictment be approved as based and the controversial verdict of the indictee be annulled.

It says that in the indictment it is highlighted that the indictee's decision is illegal after violating all standards and guarantees of the justice system on institutional and financial independence of the institutions of justice, and it also runs counter to constitutional and legal provisions that guarantee the financial position of prosecutors and judges in the justice system, respectively.

However, it is said that the indictee in the answer to the 11 September 2023 indictment completely disputes the plaintiff's demand as unfounded, stressing that the indictment's decision, November 23, 2022, does not conflict with any legal provisions, rather judges and prosecutors' salaries are equivalent to government cabinet salaries.

The court, to assess the legality of the conflicting act, is said to have referred to Law No. 03L-225 for the State Prosecutor, Article 21, respectively, paragraph 1, subparagraph 1.10, which stipulates that, “irrespective of any other provision of the law, the state prosecutors' salary will not be reduced during their period of service unless it is appointed as sanction by the Prosecutorial Council or the Council Disciplinary Commission based on determining that the state prosecutor has committed improper conduct or any criminal act<1>.

The ruling states that the Court is also based on Article 35, paragraph 2 of Law No. 06/l-054 for the Court, which stipulates that, the “panel of a judge will not be reduced during the mandate in which the judge has been appointed, in addition to the disciplinary sanction imposed under the authority of the Kosovo Judiciary Council”.

Under the Foundation's decision, the salaries of prosecutors and judges are guaranteed by law and should be in proportion to the dignity of their profession and the burden of responsibility, and that their salary cannot be reduced through their mandate, in addition to extraordinary economic situations.

The foundation is also said to be based on the act of the Constitutional Court ref. ADR 1584 /20, which has determined that reducing the budget from executive power is an example that the sources of the judiciary can be put under excessive and unwanted pressure, not creating a rule that creates absolute guarantees that wages in the public sector cannot be reduced, but that wage cuts should be rational and never arbitrary, so lowering judicial wages can only occur under the conditions of a stressed financial crisis.

According to the Court, the conflicting decision of the indictee has not been issued on the basis of some exceptional situation or financial difficulties, since the budget itself for 2023 envisions economic growth in the value of 2.6%, which is considered by this to be considered that the indictee acted incorrectly because the state does not have an extraordinary financial crisis.

Otherwise, the Foundation Court in Pristina, the Department for Administrative Affairs on 2 December 2022, had decided on the suspension of the Government's decision to cut the salaries of judges and prosecutors.

Regarding the government's decision, civil society had also reacted, calling wage reductions in the justice system, justice intervention and increased corrupt potential. /Betimy for Justice