KLI: Executive power with the decision for supplements discriminates Kosovar judges and prosecutors and affects independence of the judicial and prosecutorial system

KLI: Executive power with the decision for supplements discriminates Kosovar judges and prosecutors and affects independence of the judicial and prosecutorial system

KLI: Executive power with the decision for supplements discriminates Kosovar judges and prosecutors and affects independence of the judicial and prosecutorial system

Pristina, 25th January 2016 – Kosovo Law Institute (KLI) expresses concern about games of the executive power with salaries of judicial functions holders of the judicial power in Republic of Kosovo. Government of the Republic of Kosovo on 15th January 2016 has approved request of the Kosovo Judicial Council for reimbursement of supplements and financial stimulation for 74 judges of the Serious Crime Department for year 2016, amounting from 279.720. Through this decision, every judge of this department will be paid as compensation with 300 euro supplement.

KLI initially expresses concern that this form of compensation and stimulation of the judges is done against legal provisions continuing bad precedent created with supplements of prosecutors of the Special Prosecution of Republic of Kosovo. This practice creates legal uncertainty for judges and prosecutors for their income, building standards, through which seriously violates independence of the judicial and prosecutorial system, and through this form makes submission judicial power against executive by submitting requests and approving them unlawfully.

Request of the Kosovo Judicial Council and Decision of Government of Kosovo, is in contradiction with a plurality of practices and international standards applicable directly in Kosovo.

Violation or breach of this practices and standards by the Decision of Government means violation of Constitution or basic principles for preservation of independence of the judicial power in Kosovo.

Commission of Venice shares the opinion that salaries for judges must correspondent with profession dignity of the judge and that adequate salary it is of particular significance to protect the judge from external influence. Salary level must be placed based on social conditions, comparing salary level of higher officials. Setting of salary must be based in a general standard and to determine in objective and transparent criteria’s, and no way in individual performance of judge. Bonuses or supplements include elements of discretion and must be excluded.

Almost identical position regarding salaries of judges holds also the Commission for the human rights of United Nations in comment no: 32, related with the implementation of article 14 of Convent for the political and civil rights applicable directly in Kosovo. Council of the Ministers of Council of Europe holds the same position through recommendation no. R (94) 12, Principle III, before, 1b. Also article 13 of Universal Card of Judges determines that judges must receive sufficient salary to ensure real economic independence. Salary should not be based on judge results, and must not be reduced during his service. Although protecting of judges independence is guaranteed also with Constitution, as is the case of article 3, section of USA Constitution that comprises direct prohibition for reduction of judge salary while the exercise of his function. Surely, reduction of salary of the judges or prosecutors can be done only when to them is imposed disciplinary measure by internal mechanism of accountability.

Also request of KJC and Government Decision is in contradiction with the spirit of the law for KJC, which law is changed and fulfilled by the Kosovo Assembly on July 2015, in order to maintain independence of the judiciary guaranteed with Constitution, foreseeing that budget request by KJC to directly address to the Kosovo Assembly, exceeding the Government.

Government Decision in specific case exceeds the Kosovo Assembly, taking powers and responsibilities which by law belong to the legislature, in specific case to the Kosovo Assembly.

KLI estimates that compensation and stimulation of judges and prosecutors cannot be dependent by the executive power in the form of decisions ad hoc. This form creates directly legal uncertainty for salaries of judges and prosecutors, influence and violation of their independence in the independently exercise, impartial and in a professional manner to their sacred function.

This concern of KLI, for which has reacted publicly continuously, it’s proved with the supplements practice of the Special Prosecutor of Republic of Kosovo, to which executive power approves it and refuses, according to his will.

KLI reminds that salaries and compensation of judges and prosecutors are legal category and for the same cannot be created unlawful practices by the executive power, where the increase of incomes of judges and prosecutors, is based on executive will, through decisions ad hoc.

KLI has expressed continuously support for the judges and prosecutors, requests that their financial support to increase much more within possibilities of Budget of the Republic of Kosovo, but requires this to be done exclusively through changes and legal completions and no way through ad-hoc decisions of the executive power.

Another concern regarding decision of 15th January 2016 for supplements of judges is inequality placed between judges and prosecutors of the same level, in this matter of Department of Serious Crimes. In all democratic countries, states that has created legislation that regulates field of judiciary system, also based on international standards, judges and prosecutors of the same level are treated equally. Therefore, KLI considers that through this selective decision; create inequality and discrimination of prosecutors of the Department of Serious Crimes, which are equivalent with the judges of this department.

KLI expressed concern with this mentality of executive power, which has built this practice also in the past with the creation of the Special Prosecutor of Republic of Kosovo, to which special prosecutors continuously were treated with bigger privileges even in income, but in the same way were not treated judges of the Department of Serious Crimes, who have judged and judge exactly issues that arise from the Special Prosecutor of Republic of Kosovo. In this matter, KLI estimates that should have been establish a Department or Special Court, which will deal with the treatment of cases that arise from Special Prosecutor and through legal provisions, must be treated as equal in all spheres prosecutors and judges in these institutions.

Estimating this way of action as a game of the executive power and no way as will to support judicial and prosecutorial system, KLI considers that Government of Republic of Kosovo, must urgently reconsider its decision of 15th January 2015 for these compensation supplements from 300 euro for the judges and her will for supporting judges and prosecutors to express it through legal changes, that these revenues to be settled in law and no way to remain only as ad hoc decision, which is valid only for the year 2016.

KLI finally urges the Government and Parliament of the Republic of Kosovo to treat seriously equality of the judicial power with them, same as is guaranteed with the Constitution of Republic of Kosovo.

In this regard, requires to finalize as soon as possible the Draft law on Salaries of Public Functionaries, to which must be regulated conglomerate with salaries in all public institutions of the Republic of Kosovo. Within this law, must be regulated also matter of salaries of holders of judicial and prosecutorial functions, which must be done on merits, based on principles of the Constitution of Republic of Kosovo for the equality of powers.

KLI reminds that executive power through this draft law had tried to degrade the judiciary power, reducing salaries significantly in compare with two other powers. On year 2011, starting with defined applicable provisions for Courts and Law for the State Prosecution, was enabled leveling of salaries for judges and prosecutors with those of the executive, marking a big step towards powers equality and implementation of the separation of powers as guaranteed by the Constitution of Republic of Kosovo. In this matter, draft law for salaries of public functionaries must be compiled as soon as possible and to mark progress in promotion of judges and prosecutors position, creating balance between the powers in Kosovo.