Ruling Out the Special Pension of the Judges – Contrary to Constitutional Provisions on Their Independence

On 27 July 2017, the Constitutional Court delivered a judgment on the constitutional review of Art. II of the Law no. 290 of 16 December 2016 on amending certain legislative acts.

Circumstances of the case

The case originated in a complaint asking for the constitutional review of Art. II of the Law no. 290 of 16 December 2016 on amending certain legislative acts, lodged by the Supreme Court of Justice.

Following the amendments brought to Art. 32 of the Law on the statute of the judges, which are to be  effective as of 1 January 2018, ”The judge is entitled to pension benefits under the Law no. 156-XIV of 14 October 1998 on the public system of pensions.”

Subsequently, the legal provisions on the special pension of judges are repealed.

The author of the complaint contended that limiting social guarantees of a judge amounts to an interference in their independence and affects their right to property. Subsequently, Art. II of the Law no. 290 of 16 December 2016 changing the pensioning system of the judges is in breach of Articles 46 and 116 of the Constitution.

The complaint was examined by the Court in the following composition:

Mr Tudor PANȚÎRU, President,

Mr Aurel BĂIEŞU,

Mr Igor DOLEA,

Mrs Victoria IFTODI,

Mr Veaceslav ZAPOROJAN, judges.

Conclusions of the Court

Hearing the reasoning of the parties and examining the casefiles, the Court noted that in line with Article 116.1 of the Constitution, judges sitting in the courts of law are independent, impartial and irremovable according to the law.

In its caselaw, the Court mentioned that the remuneration of a judge, which comprises any means of material or social insurance, represents a core component of his independence, it being a counterbalance to the imposed limits, prohibitions and responsibilities.

In this regard, the principle of independence of the justice system, as part of their financial stability, to the same extent as it safeguards the other guarantees of this principle.

The Court found that amending Art. 32 of the Law on the status of judges by the Law no. 290 of 16 December 2016, commencing with 1 January 2018 the special pension of the judges is to be eliminated, so that they enjoy pension benefits under the Law no. 156-XIV OF 14 October 1998 on the public pension system.

According to the Government, this amendment was determined by the need to bring about a balance in the pension system, to remove inequities from the system and by the economic and financial crisis the State is facing – both the State budget and the State social insurance.

The Court noted that in line with the data provided by the National Bureau of Statistics of Moldova, in 2016 the authorities reported a growth of 4.1% of the Gross Domestic Product (GDP) as compared to 2015 year, and 3.1% for the first quarter of 2017 year as compared to the same period of the last year.

Additionally, whereas the special pension of the judges was ruled out, the authorities increased the salaries of a number of categories of employees (i.e. prosecutors, who were provided with salaries amounting to those of the judges), as well as maintained the special pensions of other categories of employees.

In this context, the Court did not accept the reasoning of the Government, as there is no existent economic and financial crisis objectively declared and officially recognised – an indispensable condition provided by the Court in its caselaw (Judgment no. 25 of 6 November 2014).

Furthermore, the Court recalled that even under such conditions, the lawmaker is under the duty to consider the specificity and importance of the judiciary, so that the independence of the judges would not be affected.

The Court mentioned that, although constitutional provisions do not provide expressis verbis for a duty to provide for a special pension for the judges, the latter constitutes an element of the principle of independence of the judges.

The Court noted that the special pension of the judges was established aiming at stimulating the stability at work and at making a career in magistrature. Enjoying a special pension by the judges is not a privilege, it being justified objectively, as it constitutes a partial compensation for the incompatibilities resulting from the exigency of the special status they are bound by.

In its caselaw, the Court underlined that in a genuine democracy, both Government and citizens shall be aware of the fact that the judge – who ultimately decides on human rights, freedoms and life – along with a high professionalism and irrefutable reputation, has to enjoy material independence and a feeling of security with regards to his future.

The status of the judge shall not be compared or assimilated to that of other public authorities, irrespective of thereof hierarchy in the State.

The Court underscored that the requirement of a proper material insurance is also provided by international instruments guaranteeing the independence of judges, which read as follows: ”pensions and age of retirement should be adequately secured by law and […] the amount of the pension of a judge shall be as close as possible to the level of his last remuneration.”

In this regard, summarising the above stated, the Court held that ruling out the provisions regulating the special pension of the judges affects the principle of independence of a judge enshrined in Article 116 of the Constitution.

At the same time, the Court recalled that in its caselaw it provided that a social right may be covered by the right to property provided by Art. 46 of the Constitution and Art. 1 of Protocol no. 1 of the European Convention on Human Rights, only in cases when it is an acquired social right and when it bears an economic value. An acquired patrimonial right would mean the right to the pension which is being paid, which already bears an economic value and thus constitutes a right to property of that person.

Subsequently, the Court does not accept reasoning on the alleged infringement of the right to property, considering the amendments brought by the Law no. 290 of 16 December 2016 do not cover the pensions which are being paid, but only the pensions which are to be established for the judges after 1 January 2018.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court of Moldova:

-          Declared admissible the complaint and

-          Declared unconstitutional Art. II of the Law no. 290 of 16 December 2016 on amending certain legislative acts.

This judgment of the Constitutional Court of Moldova is final, cannot be subject to any appeal, shall be effective from the date of passing and shall be published in the Official Journal of Moldova.

This is an English language courtesy translation of the original press-release in Romanian language.