Pristina, 3 October 2018 – The executive power continues discriminate access to the judicial power in Kosovo. The Kosovo Government has approved the Draft Law on Salaries in the Public Sector through which it intervenes directly in the independence of the judiciary and creates inequalities of power and inequality between the justice system itself, ie judges and prosecutors.
The Government of Kosovo through this Draft Law, sponsored by the Ministry of Public Administration, definitely witnesses the bad practices of the executive, which have a clear intent, the degradation of the judicial power over the two other powers. The judicial and prosecutorial powers under this draft law will be ranked lower than executive and legislative powers. Moreover, in its content, this draft law creates an even bigger conglomerate in public sector salaries by building a salary system that will not be compensated in an equivalent way by merit as defined by the purpose of this law itself.
KLI has analyzed the content of this law, focusing on regulating the status of judges and prosecutors. International practices and standards for judges and prosecutors prohibit the game with the judicial certainty of judges and prosecutors, explicitly asking for their salaries to be regulated exclusively by law and being equivalent to other powers. But the draft law on salaries in the public sector again reduces the salaries of judges and prosecutors, making them unequal to the executive power.
Powers in Kosovo are also equivalent to the Constitution of the Republic of Kosovo, which guarantees the principle of their separation. The principle of separation of powers also means guaranteeing the exercise of power independently and without interference, and that the restriction must be based on the balancing of powers only to the extent permitted by the Constitution and the powers of each power.
The game with judicial power and with the salaries of judges and prosecutors has a long history since the end of the war in Kosovo. The executive has consistently created dependence on judges and prosecutors over the executive, who have been largely influenced by politics. The latter, through the Assembly of Kosovo in 2010, adopted the Law on Courts and the Law on State Prosecutor by building a standard salary leveling for judges and prosecutors with salaries in the executive of the country, respectively salaries of the President of the Supreme Court and The Chief State Prosecutor were equaled with the salary of the Prime Minister of the country, while salaries of prosecutors and judges were leveled with the salaries of ministers in government. This is the first time that an equivalence in basic salaries has been created between executive power and the judicial power.
KLI, that systematically monitors the justice system, as well as other local and international organizations such as the European Commission Progress Report and the US State Department Report have raised concerns for the political influence in the justice system.
As a result of these political influences in the judicial and prosecutorial power, there was no response from the representatives of these powers on December 2017, when the Kosovo Government unlawfully through the decision has increased salaries for itself, consequently for judges and prosecutors.
Unlike the judicial and prosecutorial power, who have been beneficiaries of salary increases, the KLI has publicly responded to Decision no. 4/20, of the Government of Haradinaj adopted on 20 December 2017 for the increase of the salaries of the government officials, judges and prosecutors. The European Union Office in Pristina and other organizations reacted to this decision.
By this decision the salaries of the above-mentioned positions have almost doubled. The salary of the Prime Minister of Kosovo was increased to 2950 euros, while the salary of the Deputy Prime Ministers was increased to 2500 euros. Salaries of Ministers with this decision have been increased to 2000 euros. Also, salaries of the President of the Supreme Court and Chief State Prosecutor were increased to 2950.
The Government’s decision, according to the legal analysis of the KLI, had exceeded the competencies defined by the Law and the Rules of Work of the Government, which in none of its provisions does not specify the competences and responsibilities of the Government for determining salaries or compensation for the Prime Minister or ministers. Pursuant to the Constitution and applicable law in Kosovo, competent to decide regarding salaries of senior public officials in Kosovo, especially for the position of the Prime Minister and ministers is the Kosovo Assembly. Therefore, this decision by KLI is considered unlawful and direct arbitrary interference with the powers of the Assembly of Kosovo. The decision adopted by the Government of Haradinaj, except that it was done in violation of the applicable law, was done without proper legal analysis and without evaluation or consultation regarding the financial interference that this decision entails for the budget of the executive power and the judicial power.
Although this decision was unlawful, there was no response from the prosecution body – the State Prosecutor. Unlike the State Prosecutor, there was a reaction from the Anti-Corruption Agency (ACA). The decision to increase salaries is in contradictory to the Criminal Code of Kosovo, respectively Article 424, which defines situations of conflict of interest in cases where senior state officials take part personally in an official issue in which he or a member of the family or any legal entity that has to do with him has a financial interest. For this situation of conflict of interest, the ACA has also implemented the mandate, which has informed the Government that the decision on salaries represents a conflict of interest and that the same can not be implemented, otherwise it constitutes a criminal offense. For the time being, ACA is investigating the case of conflict of interest for salaries, while for the same decision Levizja Vetevendosje has raised a criminal charge, which is still in the Prosecution’s Office and is not being treated.
Finally, while the mentality of the executive power does not change, which through unlawful decisions creates privileges for the government officials and creates legal uncertainty in the public sector salary system, especially among judges and prosecutors, proves that the established logic of interfering and degrading the judicial power is continuing.
Therefore, the KLI requires that the Draft Law on Salaries in the Public Sector be finalized as soon as possible, in which the conglomerate with salaries should be regulated in all public institutions of the Republic of Kosovo. Within this law, should be regulated the issue of salaries of judicial and prosecutorial office holders, which should be done in merit, based on the principles of the Constitution of the Republic of Kosovo on equality of powers.
For more, read the brief legal analysis and salary comparisons between the executive power and judiciary power. Download the report – KLI’s brief legal analysis for the draft law on salaries in the public sector.