REPUBLIKA SLOVENIJA

USTAVNO SODIŠČE

Case No.: U-I-60/06-200 U-I-214/06-22 U-I-228/06-16 Date: 7 December 2006

D E C I S I O N

Following a public hearing held on 13 April 2006, at a session held on 7 December 2006 in proceedings to decide upon petitions and proceedings to review constitutionality initiated upon the petitions of Aleš Zalar and other judges, the Slovenian Association of Judges, Ljubljana, represented by Janja Roblek, President, Hinko Jenull and other state prosecutors, and Branka Cizel - Varšek and other state attorneys, the Constitutional Court

d e c i d e d a s f o l l o w s:

1. The following provisions are inconsistent with the Constitution: - the second and fourth paragraphs of Article 44, the first and second paragraphs

of Article 45, the first paragraph of Article 49, the first paragraph of Article 49b, the first paragraph of Article 49c, Articles 50 and 50a, and the second paragraph of Article 51 of the Judicial Service Act (Official Gazette RS, Nos. 19/94, 8/96, 24/98, 48/01, 67/02, 71/04, 23/05 - official consolidated text, 17/06 and 41/06 - official consolidated text - hereinafter referred to as the JSA);

- the first paragraph of Article 36 of the Act Amending the Judicial Service Act (Official Gazette RS, No. 17/06 - hereinafter referred to as the JSA-F) and the first indent of Article 38 of the JSA-F, inasmuch as it refers to judges who were elected to judicial office prior to the application of the new salary regulation;

- the first and second paragraphs of Article 28 and the first paragraph of Article 30 of the State Prosecutors' Office Act (Official Gazette RS, Nos. 63/94, 59/99, 110/02, 14/03 - official consolidated text, 17/06, 20/06, 50/06 - official consolidated text - hereinafter referred to as the SPA) in conjunction with the second paragraph of Article 44, the first paragraph of Article 49, the first paragraph of Article 49b, the first paragraph of Article 49c, the first paragraph of Article 49č, the second and third paragraphs of Article 50, and the second paragraph of Article 50a of the JSA, and the fourth paragraph of Article 30 of the SPA;

- the first and second paragraphs of Article 25, the introductory provision of Article 26, and the first indent of Article 26 of the Act Amending the State Prosecutors' Office Act (Official Gazette RS, No. 17/06 - hereinafter referred to as the SPA-C),

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inasmuch as it refers to state prosecutors who were appointed to office prior to the application of the new salary regulation;

- the first indent of Article 35 of the Act Amending the State Attorneys' Office Act (Official Gazette RS, No. 17/06 - hereinafter referred to as the SAA-A), inasmuch as it refers to state attorneys who were appointed to office prior to the application of the new salary regulation;

- the second paragraph of Article 10 and the sixth paragraph of Article 49a of the Salary System in the Public Sector Act (Official Gazette RS, Nos. 56/02, 72/03, 115/03 - official consolidated text, 126/03, 20/04 - official consolidated text, 70/04, 24/05 - official consolidated text, 53/05, 70/05 - official consolidated text, 14/06, 32/06 - official consolidated text, 68/06 and 110/06 - official consolidated text - hereinafter referred to as the SSPSA), inasmuch as they refer to judges;

- Article 9 of the Act Amending the Salary System in the Public Sector Act (Official Gazette RS, No. 14/06 - hereinafter referred to as the SSPSA-E), inasmuch as it refers to judges, state prosecutors, and state attorneys who were elected or appointed to office prior to the application of the new salary regulation, and the first paragraph of Article 10 of the SSPSA-E, inasmuch as it refers to judges and state prosecutors;

- The Ordinance on Officials' Salaries (Official Gazette RS, No. 14/06 - hereinafter referred to as the OOS) in its entirety, inasmuch as it refers to judges, the fifth paragraph of Article 9 of the OOS, inasmuch as it refers to the office of the Deputy State Attorney General, and the seventh paragraph of Article 9 of the OOS, inasmuch as it refers to state prosecutors.

2. The National Assembly is obliged to remedy the inconsistencies with the

Constitution established in the preceding item within a period of one year from the publication of this decision in the Official Gazette of the Republic of Slovenia.

3. Until the unconstitutionality established by this decision is remedied, officials'

salaries, except for officials' salaries in local communities, are to be calculated and paid in accordance with the regulations on the basis of which they were calculated and paid until 1 March 2006, as well as on the basis of individual decisions issued on the basis of such regulations.

4. The following provisions are not inconsistent with the Constitution: - the first and second paragraphs of Article 28 and the first paragraph of Article 30

of the SPA in conjunction with the first and second paragraphs of Article 45 of the JSA;

- the second paragraph of Article 10 and the sixth paragraph of Article 49a of the SSPSA, inasmuch as they refer to public prosecutors;

- the first paragraph of Article 44 of the State Attorneys' Office Act (Official Gazette RS, Nos. 20/97, 17/06, and 41/06 - official consolidated text - hereinafter referred to as the SAA);

- Article 7 of the OOS, inasmuch as it refers to public prosecutors and state attorneys, and Article 1 and the fifth paragraph of Article 9 of the OOS, inasmuch as they refer to state prosecutors.

5. The following petitions are dismissed: - the petitions of judges that the procedure be initiated for the review of the

constitutionality of the third and fourth paragraphs of Article 24, the second

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paragraph of Article 34b, the first and third paragraphs of Article 44, the second and third paragraphs of Article 46, Articles 48, 49a, and 53 of the JSA, and the first paragraph of Article 7, Article 9, the fifth paragraph of Article 22, the first and third paragraphs of Article 23, Article 48, the first to fifth paragraphs and seventh paragraph of Article 49a, Article 49b, and the tenth paragraph of Article 52 of the SSPSA;

- the petitions of state prosecutors that the procedure be initiated for the review of the constitutionality of the first and second paragraphs of Article 28, the first paragraph of Article 30 of the SPA in conjunction with the fourth paragraph of Article 44 of the JSA, the second and third paragraphs of Article 30 of the SPA, the first paragraph of Article 49, and the first paragraph of Article 49c of the SSPSA, Articles 12 and 13 of the SSPSA-E, Articles 2 and 3, and the eighth paragraph of Article 9 of the OOS;

- the petition of Branka Cizel - Varšek that the procedure be initiated for the review of the constitutionality of the fifth paragraph of Article 42 of the SAA and Article 2 of the OOS.

6. The following petitions are rejected: - the petitions of judges that the procedure be initiated for the review of the

constitutionality of Article 26 of the JSA and the second paragraph of Article 10 of the SSPSA-E;

- the petitions of state prosecutors that the procedure be initiated for the review of the constitutionality of the second paragraph of Article 51 of the JSA and the second paragraph of Article 10 of the SSPSA-E;

- the petition of Branka Cizel - Varšek that the procedure be initiated for the review of the constitutionality of the third and fourth paragraphs of Article 9 of the OOS.

R e a s o n i n g

A.

The Petitioners' Allegations The Judges' Allegations

1. Petitioner Aleš Zalar challenges the second, third, and fourth paragraphs of Article 44, the first and second paragraphs of Article 45, Article 48, the first

paragraph of Article 49, 1 the first paragraph of Article 49b, the first paragraph of

Article 49c, 2 Articles 50 and 50a, and the second paragraph of Article 51 3 of the JSA, the first indent of Article 38 of the JSA-F, the second paragraph of Article 10, the fifth paragraph of Article 22, Article 48, and the sixth paragraph of Article 49a of the SSPSA, Article 9 and the second paragraph of Article 10 of the SSPSA-E, Articles 1, 2, 3 (A3), and 6, and the fourth, seventh, and eighth paragraphs of Article 9 of the OOS. The petitioner alleges that the challenged provisions are inconsistent with Article 2, the second paragraph of Article 3, the

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second paragraph of Article 14, Article 22, the first paragraph of Article 23, Articles 50, 87, and 125, and the third paragraph of Article 153 of the Constitution. In his petition he refers to numerous international instruments and to the constitutional case-law of several other countries. As a supplementation to his petition, he submitted to the Constitutional Court the expert opinion of the Honorary President of the International Association of Judges regarding the interpretation and implementation of international standards in the field of the economic independence of judges and a letter from the Director of Legal Co-operation of the Council of Europe.

2. The Constitutional Court received an additional 136 petitions for the review of the

constitutionality of the new regulation regarding judges' salaries. The majority of the petitions are the same as the petition of Aleš Zalar. Certain petitioners also challenge other provisions of the challenged regulations or present additional arguments to substantiate their petitions. They additionally challenge the third and fourth paragraphs of Article 24, Article 26, the second paragraph of Article 34b, the first paragraph of Article 44, the second and third paragraphs of Article 46, Articles 49a and 53 of the JSA, the first paragraph of Article 36 of the JSA-

F, 4 the first paragraph of Article 7, Article 9, the first and third paragraphs of Article 23, Article 49a in its entirety, Article 49b, and the tenth paragraph of Article 52 of the SSPSA, the first paragraph of Article 10 of the SSPSA-E, and Article 7 of the OOS. They allege that the challenged provisions are inconsistent with Articles 22, 49, 129, 133, and 155 of the Constitution.

3. According to the petitioners, judges' salaries should be determined by a law and

not by an ordinance which is an executive regulation. They point out that the difference between determining salaries by law or by an ordinance is significant due to the completely different procedures for adopting the two regulations. Regulating salaries by the OOS is allegedly also inconsistent with the Rules of Procedure of the National Assembly (Official Gazette RS, No. 35/02 et sub. - hereinafter referred to as the RPNA-1). In addition, this allegedly entails a lower level of procedural protection for determining judges' right to a salary than was guaranteed to judges on the basis of the regulations previously in force. Moreover, the statutory provisions which determine that judges' salaries are to be regulated by the collective agreement for the public sector or which leave it to the Government to regulate such issues by a decree are allegedly inconsistent with the Constitution.

4. Certain petitioners also oppose the placement of judicial offices into salary

brackets. They allege that judges are placed in lower salary brackets than the comparable officials of the executive and legislative branches of power. An evident disparity allegedly also exists between the salary brackets of officials within the judicial branch of power. One of the petitioners alleges that the fact that the criteria for placing officials into the salary brackets are not determined in the law is also inconsistent with the Constitution. Furthermore, he draws attention to the difference between the basic salaries of judges and civil servants, whose basic salaries are also determined on the basis of the placement of employment positions and titles into tariff classifications, the amount of which is directly proportional to the completed level of education. This element has allegedly been completely overlooked as regards judges, although in order to be elected to

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judicial office formal conditions with regard to education are required, whereas in the case of certain other officials (e.g. National Assembly deputies) they have no significance. Thus, in comparison with civil servants, judges are allegedly unjustifiably at a disadvantage or unjustifiably placed on the same level as the aforementioned officials.

5. In the opinion of the petitioners, the statutory provision regarding the reduction in

judges' salaries (the fourth paragraph of Article 44 of the JSA) is unconstitutional. With reference to the aforementioned, they point out that the prohibition of a reduction in salaries according to the new regulation only refers to the basic salary, that a reduction in salary is admissible in more instances than before, and that such can be determined by an executive regulation.

6. Furthermore, the petitioners allege that upon the implementation of the new

salary system, judges' salaries will in fact be reduced. They claim that the bonus for years of service will be reduced for all judges, which is allegedly inconsistent with Articles 2, 125, and 155 of the Constitution. They draw attention to the fact that the amount of the bonus for civil servants will allegedly remain the same, and that the transitional provision of Article 238 of the Employment Relations Act (Official Gazette RS, No. 42/02 - hereinafter referred to as the ERA) guarantees that all employees who were employed at the time of the enforcement of this act will retain the same amount of bonus for years of service regardless of its possible reduction in the collective agreement. Moreover, the reduction in the bonus for years of service is allegedly discriminatory as it will allegedly affect to a greater extent older judges, and especially female judges. In addition, the reduction in the aforementioned bonus and consequently the lower payment of social security contributions will allegedly reduce the scope of the right to social security of judges (Article 50 of the Constitution). According to the petitioners, the OSS is allegedly inconsistent with the Constitution (also) due to the fact that it allows a reduction in judges' salaries on the basis of the readjustment of salaries, as it determines that the readjusted nominal value of the basic salary of a judge according to the previous regulation be placed in the closest (possibly also lower) salary bracket according to the SSPSA.

7. As stated by the petitioners, the supplemental remuneration of judges for their

work performance is inconsistent with the Constitution. They especially point out that such remuneration of judges may be risky from the viewpoint of the trust of the public in the appearance of the independence and impartiality of judges, and it may also lead to a poorer quality of the work of judges. Allegedly other measures (i.e. a promotion system) are intended for the remuneration of judges. The challenged regulation, in their opinion, disproportionately interferes with the established manner of and procedure for evaluating judges; it creates a parallel system for evaluating the work performance of judges, and introduces a regulation according to which an individual (i.e. the president of the court) instead of a collective body (i.e. a personnel council) decides.

8. Furthermore, the petitioners allege that the challenged regulation regulates equal

legal situations differently without any justified reasons existing for such. The inadmissible criterion for such differentiation is allegedly the date of election or appointment to judicial office or to the office of senior judge. Judges who are

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elected to judicial office for the first time or appointed to the position of senior judge subsequent to the implementation of the new salary system will allegedly be immediately placed in higher salary brackets, which other judges have allegedly reached only gradually.

9. The provisions which exclude the possibility of the promotion of Supreme Court

judges with regard to salary brackets allegedly interfere with their acquired rights. A number of higher court judges also allege that with regard to promotion, their legal position has worsened. Moreover, what is also inconsistent with the Constitution is allegedly the fact that the SSPSA and the OOS do not determine that upon the readjustment of salaries, the attained placements into salary brackets must be observed in accordance with the previous regulation, such that the number of promotions prior to the implementation of the new salary regulation are taken into consideration, and, in addition, also the fact that upon the readjustment of salaries, the approximately same level that judges have attained within the system of salary brackets in comparison with judges in the same judicial position is not protected. It is allegedly inconsistent with the principle of equality that the position-based additional payments of the heads of judicial departments are determined as a percentage, whereas the extra payment to compensate for the management position of presidents of the courts is expressed in terms of a salary bracket. In the opinion of certain petitioners, an extra payment to compensate for the incompatibility of their office [with certain other activities as provided by law] should not be included in the basic salary. Article 10 of the SSPSA-E is allegedly inconsistent with the Constitution as it determines the immediate implementation of a reduction in salaries, and only a gradual increase. The fourth paragraph of Article 24 of the JSA is allegedly inconsistent with the Constitution as it only refers to the promotion of judges to a higher payment (now salary) bracket, and not also to the promotion of judges to a higher payment (now salary) bracket when their judicial service is in the process of being evaluated.

The State Prosecutors' Allegations

10. Petitioner Hinko Jenull challenges the first and second paragraphs of Article 28

of the SPA and Article 30 of the SPA in conjunction with the second and fourth paragraphs of Article 44, and the first and second paragraphs of Article 45 of the

JSA. 5 He furthermore challenges the first and second paragraphs of Article 30

of the SPA in conjunction with the first paragraph of Article 49, 6 the first paragraph of Article 49b, the first paragraph of Article 49c, the first paragraph of Article 49č, the second and third paragraphs of Article 50, the second paragraph of Article 50a, and the second paragraph of Article 51 of the JSA. He separately challenges also the third and fourth paragraphs of Article 30 of the SPA, the first

and second paragraphs of Article 25 of the SPA-C, 7 and the introductory

provision and the first indent of Article 26 of the above-cited act. 8 In the parts in which they refer to state prosecutors, he also challenges the second paragraph of Article 10, the sixth paragraph of Article 49a and the first paragraph of Article 49c of the SSPSA, Articles 9 and 10 of the SSPSA-E, Articles 1, 2, 3 (A4), 7, and the fifth, seventh, and eighth paragraphs of Article 9 of the OOS. With his application of 20 March 2006 he extended the petition to the first paragraph of Article 49 of the SSPSA and to Articles 12 and 13 of the SSPSA-E. He alleges

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that the challenged provisions are inconsistent with Article 2, the second paragraph of Article 14, Articles 50, 87, 135, and 136, the third paragraph of Article 153, and Article 155 of the Constitution.

11. A petition similar as regards content was also filed by a group of state

prosecutors.

12. The petitioners oppose the regulation of state prosecutors' salaries by regulations

that are lower than laws in the legal hierarchy. In their opinion, the OOS independently and newly determines the amount of state prosecutors' basic salaries, which allegedly applies not only to the basic placement of salaries but also to placement upon the readjustment of salaries. With reference to such, they point out that the criteria for the placement of offices into salary brackets are not determined by either a law or by the OOS. Determining the salaries of state prosecutors by the OOS is allegedly not appropriate in light of the provisions of Article 2 and the third paragraph of Article 153 of the Constitution. The rules on what a regulation that is lower than a law in the legal hierarchy can regulate and the rules on what must be defined and determined in a law (i.e. a normative framework) so that an executive regulation can further determine and implement a statutory provision (i.e. a statutory authorisation) on such basis, are allegedly violated. They also refer to Article 87 of the Constitution, from which allegedly follows the obligation that the relations between individuals and the state must be regulated by laws. Furthermore, they draw attention to Articles 135 and 136 of the Constitution, from which it allegedly follows that the position of state prosecutors concerning the requirements regarding the guarantee of their independence approaches that of the position of judges. It allegedly follows from the second paragraph of Article 135 that also state prosecutors' salaries must be regulated by a law. From the first paragraph of Article 135 of the Constitution, according to which state prosecutors file and present criminal charges, it allegedly follows that they are officials who are an indispensable element of a state governed by the rule of law. In this regard, they state that according to constitutional case-law, the state prosecutors' office is defined as an independent authority within the judicial branch of power which requires the highest degree of professional autonomy. Regulating salaries by the OOS is allegedly also inconsistent with the RPNA-1. Moreover, they allege that in accordance with the previous regulation, state prosecutors' salaries enjoyed a substantially higher degree of procedural protection in the procedure for determining and modifying such. The statutory provisions which determine that state prosecutors' salaries are to be regulated by the collective agreement for the public sector (regarding additional payments and payment for work performance) or a Government decree (regarding the payment for additional work performance and for an increased workload or an additional workload) are allegedly inconsistent with Articles 2, 87, and 153 of the Constitution. Thereby, they draw attention to the fact that state prosecutors are neither partners to collective bargaining nor have a representative regarding their interests in such procedures.

13. They allege that according to the new salary system, the bonus for years of

service will be reduced as regards all state prosecutors, which is allegedly inconsistent with the principle of trust in the law. Due to the lower bonus for years of service, the paid contributions for pension insurance will allegedly also be

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reduced, which allegedly entails a narrower scope of the constitutional right to social security. In their opinion, when reviewing the admissibility of such interferences with state prosecutors' salaries, the constitutional provisions regarding the competencies of state prosecutors and the incompatibility of their office [with certain other activities as provided by law] should also be taken into consideration. In this regard, they draw attention to the fact that the interferences with their salaries should be particularly justified, as a salary is the only source of income of state prosecutors. The reduction in the bonus for years of service is allegedly also inconsistent with the principle of equality. In connection with such, they claim that lowering the scope of rights can be implemented only for all entitled persons simultaneously, however, taking into consideration the salary regulation in force, the bonus for years of service (and all other additional payments) for civil servants are determined to be higher than for officials. Petitioner Hinko Jenull furthermore challenges Articles 12 and 13 of the SSPSA-E, as they determine the beginning of the calculation of salaries to be 1 March 2006 only for officials.

14. They point out that the reduction in the salaries of certain state prosecutors will

occur also due to being placed into the closest lower salary bracket upon the readjustment of salaries (the paragraph seven of Article 9 of the OOS). This allegedly entails a reduction without a necessary, substantiated, and proportional reason. The seventh paragraph of Article 9 of the OOS allegedly also violates the principle of equality as regards the fact that the placement into the closest salary bracket for certain state prosecutors entails being placed into a lower bracket, whereas for others it entails being placed into a higher salary bracket, which results in them permanently having a more favourable position. With reference to such, they explain that such regulation may lead to a situation in which prosecutors who previously had different coefficients are placed into the same salary bracket under the new regulation, or to illogically greater disparities between the basic salaries of prosecutors in view of the relations implemented thus far. This will allegedly lead to disadvantages with regard to promotion.

15. The constitutional principle of equality is allegedly violated also by the first

paragraph of Article 49 of the SSPSA, as it implements a prohibition on a reduction in salaries only for civil servants. Such inequality, allegedly, particularly and permanently affects career officials, who should be especially protected by law against a reduction in their salaries, as their independence must be ensured.

16. The petitioners allege an inconsistency with the principle of equality regarding the

challenged regulation also due to the fact that it allegedly allows a differentiation between state prosecutors depending on the date of their appointment to the office of state prosecutor. They claim that state prosecutors who are appointed to the office of state prosecutor for the first time in the transitional period will be immediately placed into higher salary brackets according to the OOS.

17. The petitioners also allege that the challenged salary regulation is dispersed,

disconnected, and unclear, and consequently it is impossible for it to be applied uniformly.

The State Attorneys' Allegations

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18. Petitioner Branka Cizel - Varšek challenges the fifth paragraph of Article 42 and

the first paragraph of Article 44 of the SAA, 9 the first indent of Article 35 of the SAA-A, Article 9 of the SSPSA-E, Articles 2 and 7, and the third, fourth, and fifth paragraphs of Article 9 of the OOS. She alleges that the challenged provisions are inconsistent with Articles 2, 14, 50, and 153 of the Constitution, and Article 1 of Protocol No. 12 to the Convention for the Protection of Human Rights and

Fundamental Freedoms. 10 19. She alleges that in accordance with the first paragraph of Article 44 of the SAA

and Article 7 of the OOS she was placed in the 53rd

salary bracket as a Deputy State Attorney General. Such regulation allegedly deprived her of the promotions that she has already attained, and her promotion in the year she substituted for the State Attorney General was made impossible. Therefore, she was allegedly in a significantly less favourable position than state attorneys in the same salary bracket and with the same conditions for promotion. Moreover, the fourth and fifth paragraphs of Article 9 of the OOS allegedly also cause discrimination in that an extra payment to compensate for a management position is considered upon the readjustment of salaries in the salaries of vice presidents of the courts and deputy prosecutors, but not as regards the Deputy State Attorney General. Article 7 of the OOS, which places the petitioner in the 53

rd salary bracket, allegedly also

interferes with already acquired rights (one or two promotions that she has already attained). In the opinion of the petitioner, the challenged regulation does not take into consideration the principle of legality and the principle of a state governed by the rule of law due to the fact that it leaves it to an executive regulation to determine fundamental frameworks for determining the salaries of state attorneys. She also proposes that the Constitutional Court establish the inconsistency of Article 7 of the OOS with the first and third paragraphs of Article 34 of the SAA-A and the fourth paragraph of Article 27 of the SAA.

20. In the petitioner's opinion, also the reduction in the bonus for years of service is

unconstitutional. Such regulation is allegedly inconsistent with the principle of trust in the law. In this regard, she refers to Constitutional Court Decision No. U-I-86/96, dated 12 December 1996 (Official Gazette RS, No. 1/97 and OdlUS V, 176). She points out that the legislature did not adopt the statutory amendment due to either the economic inability of the state to pay bonuses in the amount of 0.5% of a basic salary or in order to remedy the disparities. She points out that the bonus for years of service for civil servants is not reduced. The reduction in the bonus allegedly also entails a reduction in the right to social security. The group of state attorneys also opposes the reduction in the bonus for years of service for the same reasons.

The National Assembly's Reply

21. In its reply to the petition of Aleš Zalar and the other petitioners, the National Assembly states that judges' salaries must indeed by regulated by a law, however, individual issues which in terms of their content concern the implementation of the law can be regulated by an executive regulation. The placement of offices into salary brackets allegedly does not entail an independent regulation of rights, but only an implementation of the law. In addition, the

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difference between a law and an ordinance is allegedly only in the procedure for their adoption and in the hierarchy of both acts. Furthermore, the National Assembly rejects the allegations of the petitioner regarding the lower level of procedural protection in determining judges' salaries, whereby it states that the participation of judges in drafting and adopting the OOS was ensured through the Judicial Council. The National Assembly substantiates the regulation of the amount of additional payments in the collective agreement for the public sector, alleging that they are not specific additional payments for judges, and therefore it is justified that they are regulated uniformly.

22. With regard to the admissibility of the reduction in salaries by an ordinance, the

National Assembly states that only the placement of individual offices into salary brackets can be amended by an ordinance. Due to the fact that according to the new regulation, a basic salary also includes an extra payment to compensate for the incompatibility of office, the substance of the prohibition of the reduction is allegedly the same as the prohibition that applied before. As regards the factual reduction in the bonus for years of service, the National Assembly states that it does not follow from the Constitution or from international instruments that are binding on Slovenia that a reduction in judges' salaries is prohibited. According to the National Assembly, there could be an interference with the principle of the independence of judges if the reduction was substantial, if it referred only to judges, or if there existed no justified reasons for such. However, the disputed reduction in bonus for years of service allegedly occurred due to the implementation of the salary reform of the entire public sector, the primary objective of which was allegedly to ensure the openness, transparency, and comparability of salaries in the public sector, as well as to remedy disparities. The reduction will allegedly allow a gradual remedy of disparities without increasing the funds intended for salaries.

23. As regards the supplemental remuneration of judges for their work performance,

the National Assembly claims that thereby a legitimate goal is pursued, i.e. increasing the efficiency of the judiciary and reducing court backlogs. According to the National Assembly, such measure in and of itself cannot influence the quality of judicial work. In this regard, the National Assembly points out that this part of a salary is determined by the judiciary.

24. The National Assembly replied to the petitioner's allegations concerning the

different remuneration of judges with respect to the date of assuming judicial office by stating that also for newly appointed judges a transitional period will be observed. If such interpretation does not hold true, the National Assembly is of the opinion that there exist sound and justified reasons for such differentiation (a gradual remedy of disparities), which apply only in the transitional period.

25. The National Assembly did not reply to the other petitions sent to the National

Assembly for reply.

The Government's Opinion

26. The Government rejects the allegations of the judges regarding the unconstitutionality of the regulation of judges' salaries by the OOS. In the opinion

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of the Government, placing judges into salary brackets by an ordinance cannot be disputable from the viewpoint of consistency with the principle of legality which especially refers to the relationship between the legislative and executive branches of power. The Government is furthermore of the opinion that the placement of officials into salary brackets can be carried out by means of a concrete placement and without a prior determination of the criteria. Judges' salaries were allegedly regulated in the same manner also in the regulation previously in force. According to the Government, Article 87 of the Constitution cannot be interpreted in a manner such that a law should determine the concrete amount of salaries, as neither the salaries of other persons employed in the public sector nor the salaries of persons employed in the private sector are regulated in such manner. With reference to the petitioner's allegations regarding there being a different procedure for adopting a law or an ordinance, the Government points out that both procedures can be very similar if a law is adopted in the urgent or fast-track procedure. The alleged differences did not at all exist precisely in the case of adopting the OOS.

27. As regards the imbalance between the salaries of National Assembly deputies'

and the salaries of judges, the Government states that the placements of the highest offices in both branches of power are the same, whereas the lesser lower limit as regards judges is a consequence of the differences in the nature of both kinds of office (the organisation of courts at four different levels; the permanence of judicial office, and the limited term of office of a National Assembly deputy). In view of the fact that there have been no evaluations of the constitutionality of the regulation previously in force, the Government is of the opinion that also the new regulation, which is more favourable for judges, cannot be inconsistent with the principle of the separation of powers. In addition, the salary position of the presidents of the courts has allegedly also substantially improved.

28. According to the Government, the reasons which substantiate the necessity for

the new salary system and the financial consequences which could result thereof for the national budget and for public finances as a whole in the event of a decision in favour of a different system of transition to the new salary system, must be considered in reviewing the petition. In the opinion of the Government, the transition to the new salary system must not entail new burdens on public finances, and therefore more suitable salary relations between individual groups must be established by internal redistributions of funds for salaries. Such is presumed also by the reduction in individual salaries. The standpoint that the reduction in salaries is admissible in principle allegedly also follows from Constitutional Court Decision No. U-I-134/96, dated 23 September 1999 (Official Gazette RS, No. 86/99 and OdlUS VIII, 212). The Government emphasizes that we can speak of only a potential reduction in salaries at individual levels, and by no means of a reduction in judges' salaries in general, due to the fact that the scope of the funds for salaries in the judiciary has not changed. On the contrary, the statutory basis for remuneration for having an increased workload (outside the scope of the part of the salary for work performance) has caused an increase in the amount of funds for judges' salaries. A factual reduction in salaries at individual levels is allegedly possible only in cases in which the reduction in the bonus for years of service and the possible reduction because of the readjustment of salaries in the closest salary bracket (in the event of which an

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increase or reduction in the basic salary of up to 2% can occur) exceeds the amount of the supplemental part of the salary of judges for work performance which is introduced by the new salary system.

29. As regards the reduction in the bonus for years of service, the Government states

that due to the higher basis from which the aforementioned bonus will be calculated for civil servants in the future, the amount of such bonus had to be reduced. Maintaining a bonus at the level of 0.5% would, in the estimation of the Government, entail a substantial increase in the funds necessary for the payment of such bonus (i.e. 20.7 billion SIT) and simultaneously change the relative influence of years of service on the amount of the salary of the individual. A uniform salary system for officials and civil servants allegedly requires that the same rate of such bonus be determined for both groups. The amount of funds saved as a result of the reduced bonus for years of service is allegedly intended for remunerating judges for work performance.

30. According to the Government, the negative effects of a salary reduction due to

the readjustment of salaries can be avoided only in a manner such that the nominal values of all basic salaries would be readjusted into the first higher salary bracket instead of to the closest (higher or lower) salary bracket, which would, however, require approximately 1.6% additional funds upon the transition to the new salary system. As regards the fact that the same rule should be applied also for civil servants, such would require approximately 8.3 billion SIT of additional funds for salaries, in the Government's estimation. Apart from the above-mentioned, the gradual remedy of disparities in the period until 31 December 2009 will allegedly have positive consequences for the vast majority of judges.

31. The Government also rejects the petitioner's allegations regarding the

unconstitutionality of the remuneration of judges for their work performance. In this regard, the Government states that the Judicial Council determines the criteria for such remuneration, and consequently an appropriate level of autonomy of the judicial branch of power is preserved. In addition, each individual judge is allegedly free to decide to have an above-average workload. The Judicial Council will allegedly also be given the opportunity to create criteria for this kind of remuneration of judges so that the dilemma regarding the possible negative effects of the increased workload on the quality of judicial work will be resolved. Moreover, the Government explains that it is striving to create the conditions for reducing court backlogs, and one of these conditions is also the remuneration of judges and their additional remuneration in the event of an increased workload. Therefore, the systemic solutions of the new salary system, in the opinion of the Government, merely enable that the work of judges will be carried out more efficiently, which is certainly in the public interest, whereas the institution of permanent judicial office is intended for the implementation of the principle of trust in the law.

32. As regards the allegations regarding the unconstitutionality of the statutory

provisions which determine that additional payments supplementing judges' salaries are to be regulated by the collective agreement for the public sector, the Government alleges that such regulation is necessary regardless of the fact that

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judges do not take part in collective bargaining. Due to the uniform salary system for officials and civil servants, additional payments for judges must be determined in the same manner as in the collective agreement for the public sector.

33. In the opinion of the Government, the petitioner's allegations concerning the

different remuneration of judges with regard to the date when they assumed judicial office do not hold true. The salary of a new judge will be determined and calculated in the same manner as the salary of a comparable judge already holding judicial office. In the opinion of the Government, the only possible interpretation of the sixth and seventh paragraphs of Article 49č of the SSPSA is such that in all cases of an increase in salaries for employment positions and offices which the SSPSA applies to, the increase is to be carried out gradually throughout the period until 2009. The readjustment of salaries and the dynamics concerning the time of the remedying of salary disparities allegedly refer to offices and employment positions. This allegedly entails that individuals who take office or employment positions acquire rights regarding basic salaries which are determined for such employment positions or offices within the period of harmonisation.

34. As regards the allegations that attained promotions were not observed in the

placement of judges into new salary brackets, the Government states that regarding the applied method of the readjustment of salaries, what mattered was not the readjustment of salaries regarding the number of promotions an individual judge has attained, but the readjustment of salaries regarding the nominal value of the basic salary which within the attained framework of salary brackets also includes the attained level of promotion. By means of such method, the petitioner allegedly retained the level of the prior salary bracket. According to the Government, the amount of the petitioner's salary, including the effect of the promotion, was therefore not reduced with the readjustment of salaries, whereas a higher number of possible promotions according to the new system enables higher court judges additional possibilities for promotion and an increase in their salaries. The fact that due to their personal circumstances certain individuals possibly will not be able to take advantage of these possibilities cannot be considered a reason that makes the challenged regulation inconsistent with the Constitution.

35. During the proceedings the Government informed the Constitutional Court of the

starting points drafted by the Government for the harmonisation of officials' salaries.

The Ministry of Public Administration's Opinion

36. In its opinion on the petitions of the judges and on the petition of Hinko Jenull, the Ministry of Public Administration referred to the viewpoints provided within the framework of the Government's opinion on the petition of Aleš Zalar and several other judges. The Ministry proposes that the Constitutional Court take them into consideration in its deciding.

37. The Ministry of Public Administration particularly also rejects the allegations

concerning the unconstitutionality of the second paragraph of Article 46 of the

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JSA, the first paragraph of Article 7 of the SSPSA, and Article 7 of the OOS. The solution contained in the second paragraph of Article 46 of the JSA is allegedly appropriate for the relation between the basic salaries of district court judges and the basic salaries of Supreme Court judges. In view of the allegations concerning the unconstitutionality of the first paragraph of Article 7 of the SSPSA, the Ministry alleges that it is not at all clear what the petitioner is challenging. Furthermore, with reference to the allegations concerning the unconstitutionality of Article 7 of the OOS, the Ministry states that the levels of the basic salaries of state prosecutors and judges are harmonised, and that the differentiation allegedly follows from the fact that the courts are organised at four different levels.

The Judicial Council's Opinion

38. In its opinion regarding the petition of Aleš Zalar, the Judicial Council states that the salaries of certain judges will be reduced on the basis of the readjustment of salaries, whereas the salaries of all judges (except for the presidents and vice presidents of the courts) will be reduced due to the reduction in the bonus for years of service. The Judicial Council draws attention to the different regulation of the same positions and rights of civil servants and officials. The disparity caused to officials who will be entitled to lower salaries following the readjustment of salaries will be allegedly remedied with the beginning of the application of the SSPSA-E (the second paragraph of Article 10), whereas on the basis of Article 49 of the SSPSA, civil servants are allegedly ensured fixed salaries also in cases in which they received lower salaries after determining such according to the SSPSA. In the opinion of the Judicial Council, the amended provision of the fourth paragraph of Article 44 of the JSA entails that the judicial branch of power will be in an (absolutely) subordinate position due to its (absolute) financial dependency on other branches of power, which could substantially affect the independence of the judiciary and ensuring a state governed by the rule of law. The Judicial Council is furthermore of the opinion that the OOS places judges, in comparison with other officials, into salary brackets in a manner that is not appropriate. The Judicial Council points out that on the basis of the new regulation, judges who have not yet been elected will be placed in higher salary brackets than judges who had held their judicial office prior to the day of the application of the new salary system. The Judicial Council states that the salary reform could have vast negative consequences for ensuring effective judicial protection.

The Opinion of the State Prosecutor's Council

39. In its opinion with regard to the petition of Hinko Jenull, the State Prosecutor's

Council states that the petition is substantiated and also appropriately reasoned. The Council points out that the challenged regulation is inconsistent with the principle of trust in the law and the principle of equality before the law. The State Prosecutor's Council draws attention to the fact that state prosecutors' salaries will be reduced because of the readjustment of salaries and due to the reduction in the bonus for years of service. With reference to such, it alleges that because the SPA refers to the JSA, the salaries of state prosecutors, the same as the salaries of judges, should not be reduced. Furthermore, the Council draws

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attention to inadmissible differences between state prosecutors which will arise, as upon the readjustment of salaries the salaries of certain state prosecutors will be reduced due to placement into the closest salary bracket, whereas the salaries of certain others will be increased. The interference with the acquired rights allegedly also entails the payment of the additional payment for work performance, as the hitherto salary system was allegedly adjusted to the expected workload. A payment for an increased workload allegedly interferes with the basic salaries of state prosecutors in that no criteria are determined for remuneration on such basis. The State Prosecutor's Council moreover points out the inequalities which will arise as the salaries of state prosecutors with many years experience will increase only gradually according to the OOS and the SSPSA, whereas for newly appointed state prosecutors such gradual transition to the new salary regulation is not determined.

The Allegations of the Participants and Others Invited to the Public Hearing

40. In the case initiated upon the petition of the petitioner Aleš Zalar, the

Constitutional Court called a public hearing. 41. At the public hearing the petitioner opposed the arguments of the Government

regarding the similarity of the procedures for the adoption of an ordinance and a law. In his opinion, the legislative procedure affords substantially more opportunities for expert public discussion and the expression of the public opinion of interest groups. In the opinion of the petitioner, judges participated only ostensibly in the present reform. The fact that Article 28 of the Courts Act (Official Gazette RS, No. 19/94 et sub. – hereinafter referred to as the CA) determines the participation of the Judicial Council only in procedures for adopting laws which regulate the position, rights, and duties of judges, entails that in the future also the possibility of formal participation is allegedly excluded. The petitioner stated that the Government's allegations regarding the non-reduced amount of the funds for judges' salaries are irrelevant, as the right to a salary is an individual right of a judge which is exercised individually. With reference to the system of remunerating judges for their work performance, he pointed out that such system of remunerating judges should necessarily take into consideration that such remuneration cannot be carried out in monthly intervals, that quality as well as quantity of work should be considered, that such could entail only symbolic awards (in the sense of some manner of prestigious recognition), and that such remuneration should be regulated by law.

42. The representative of the National Assembly stated at the public hearing that it is

not disputable that the position of the judiciary and judges must be regulated by a law and that judges' salaries must be appropriate, however, the National Assembly is of the opinion that those two principles were respected in the procedure for adopting the challenged regulation. He drew attention to the fact that international instruments do not define a concrete amount of salary which would represent an appropriate salary for judges. In view of the organisation of the judiciary, the manner of electing judges, and the permanence of judicial office, also the relationship between judges' salaries and the salaries of officials from the other branches of power should be appropriately regulated. The fundamental criteria for the remuneration of judges for their work performance

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are, in the opinion of the National Assembly, already regulated in the law, and regarding such remuneration, all the criteria which the petitioner pointed out can allegedly be taken into consideration. The Judicial Council, thus the judiciary itself, allegedly has an essential role in such.

43. At the public hearing the representative of the Government pointed out that in the

discussed case what is mainly at issue is the questions regarding the appropriateness of the new regulation, which are not necessarily also constitutional issues. Furthermore, he drew attention to the fact that the numerous international instruments to which the petitioner refers, only have the nature of recommendations. As regards the possibility to regulate judges' salaries by an ordinance, he alleged that international instruments, if they are binding, indicate that the legislature must regulate such issues without concretely determining the nature of the act which must be applied thereby. As regards the first paragraph of Article 49 of the SSPSA, which guarantees civil servants protection against a reduction in their salaries, he alleged that it cannot be applied for officials, as in such case all the goals set for the salary reform could not be simultaneously achieved (i.e. remedying disparities in basic salaries, remuneration for work performance, and the preservation of the real amount of funds for salaries). There allegedly exists a considerable difference between judges, state prosecutors, and state attorneys for whom supplemental remuneration for their work performance is envisaged, and between other officials as regards the permanence of their office, and as regards the fact that in certain cases these offices are political. The advantage of the new system of supplemental remuneration for work performance in comparison with the already established system of evaluating judges' work and the envisaged possibility of the reduction in the salary of judges who do not perform their work adequately, is allegedly in the fact that according to the new regulation the work results of judges will be reflected already in their current salary and not only after a certain period in terms of their promotion. Such a system will allegedly also stimulate young judges. He furthermore alleged that the criteria for evaluating work performance are not necessarily only quantitative and that the periodicity of payments is not determined, thus the regulation of such issues is left to the judiciary. With reference to the placement of new judges in salary brackets, he alleged that the dynamics of the salary harmonisation until the end of 2009 refers to offices and not to individual persons (Article 10 of the SSPSA-E) and consequently a special regulation for new judges is allegedly not needed.

44. The President of the Supreme Court stated at the public hearing that, in

accordance with the majority opinion, Article 87 of the Constitution entails that the rights which are regulated by the OOS cannot be regulated by an executive regulation. The requirement of statutory regulation of the position of judges allegedly also follows from Article 1 of the JSA. He also drew attention to the inconsistency of the OOS with the second paragraph of Article 1 of the SSPSA, which determines the implementation of the principle of the same payment for work in comparable offices and in this regard, to the merely ostensible equalisation of the salaries of the highest officials of the judicial branch of power (i.e. the Supreme Court judges) with the salaries of the deputies of the National Assembly. While comparing the placement of individual offices into salary brackets it must be also taken into consideration, in his opinion, that judges are

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also entitled to an extra payment to compensate for the incompatibility of their office. He furthermore pointed out that in this case the Constitutional Court will also have to adopt a standpoint on the fourth paragraph of Article 44 of the JSA, which still provides that an ordinance has the power to abrogate ex nunc individual statutory provisions. The hitherto existing statutory restriction of the possibility to reduce judges' salaries is, in his opinion, a statutory upgrading of a constitutional right and as such (in view of certain standpoints in theory) a part of the constitutional regulation. He stated that it follows from the data of the Ministry of Public Administration that the salary reform necessarily entails a reduction in the nominal value of the salaries of the majority of judges even if the supplemental part of the salary for work performance is considered. As regards the system of the supplemental remuneration of judges for their work performance, he was of the opinion that such is based on the unspoken presumption that within the judiciary there still exist great reserves which could be activated in a manner such that judges would no longer be remunerated by levelling salaries regardless of the amount and quality of their work which, however, is based on a lack of knowledge regarding the work of the courts and the mechanisms by which the work performance of judges is ascertained and their remuneration. He drew attention to the fact that the new system will have a negative influence on the healthy professionalism and collegial competitiveness of judges and that it could lead to a situation in which judges will only work to meet the work quota.

45. At the public hearing the representative of the Judicial Council drew attention to

the fact that in Slovenia standards for regulating judges' salaries have already been established, as in the past they were entirely regulated by law. He expressed his conviction that in order to ensure a unified salary system it is not essential that such is regulated in only one regulation; what is essential are the unified grounds for such regulation. As regards the remuneration of judges for their work performance, he pointed out that such remuneration system is not envisaged for all officials. He drew attention to the fact that the elements of work performance are already contained in the JSA (i.e. the criteria for drafting the evaluation of judicial service). As regards the regulation of additional work performance, he was of the opinion that the judiciary will not be autonomous in this respect. He furthermore pointed out the possible difficulties with regard to transferring the institution of the supplemental remuneration of judges for their work performance into practice. In view of this, he claimed that upon creating the criteria for the supplemental remuneration of judges for their work performance, the Judicial Council should, mutatis mutandis, apply the collective agreement for the public sector, which does not yet exist. He also stated that every year the total amount of funds for supplemental work performance should be determined by the collective agreement for the public sector and for each individual fiscal year in the financial plans of budget users (i.e. individual courts), which was not taken into consideration while adopting national budgets for 2006 and 2007. In his opinion, problems could also arise due to the envisaged dualism of the system for evaluating judges' work performance (the personnel council and the presidents of courts). With reference to the reduction in the bonus for years of service, he pointed out that the regulation to the greatest extent affects female judges over the age of 50. He opposed the Government's allegations that preserving a bonus at a level of 0.5% would require an additional 20 billion SIT,

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and claimed that this is the amount which is already being paid. In his opinion, fewer than one thousand judges cannot have a significant influence on ensuring the financial stability of the system. Moreover, he dismissed the Government's allegations that the salaries of new judges should be determined on the basis of the sixth and seventh paragraphs of Article 49 of the SSPSA. Article 9 of the OOS allegedly has a transitory nature, and will allegedly cease to apply after the readjustment of the salaries of existing officials in the new system. In view of the above-stated, he was of the opinion that new judges are being placed into salary brackets without a transitory regime, which results in inequality.

46. The representative of the Slovenian Association of Judges stated at the public

hearing that in the opinion of the said Association, the position, rights, and obligations of judges must be regulated exclusively by law, with regard to which an appropriate regulation would be in the JSA. Also the Association of Judges are of the opinion that with the salary reform, a nominal reduction in judges' salaries took place, which they oppose, as they are of the opinion that this entails an interference with acquired rights. They furthermore are of the opinion that judges should be entitled to an extra payment to compensate for the incompatibility of their office. As regards supplemental remuneration for work performance, the representative alleged that a regulation which considers only the quantity and not also the quality of work is not consistent with the Constitution.

B. – I.

Procedural Issues

47. By Order No. U-I-60/03, dated 9 March 2006 (Official Gazette RS, No. 27/06), the Constitutional Court suspended until a final decision of the Constitutional Court the implementation of the provisions of the JSA, the SSPSA, and the OOS, inasmuch as they refer to the calculation and payment of officials' salaries after 1 March 2006. On the basis of the second paragraph of Article 40 of the Constitutional Court Act (Official Gazette RS, No. 15/94 – hereinafter referred to as the CCA), it determined that until the final decision of the Constitutional Court, officials' salaries are to be calculated and paid in accordance with the regulations on the basis of which they were calculated and paid until 1 March 2006. Petitions which refer exclusively to the regulation of the economic position of judges were joined for joint consideration and deciding. The petitions of state prosecutors and the petitions of state attorneys were joined each separately. The Constitutional Court decided to decide all the petitions by one decision.

48. The Constitutional Court recognized the legal interest of the judges as petitioners

to challenge the provisions of the regulations by which their legal position is interfered with. In view of the aforementioned, the Constitutional Court did not separately address the question whether also the Slovenian Association of Judges demonstrated legal interest for the review of the same provisions. The Constitutional Court recognized the legal interest of the state prosecutors and state attorneys to challenge the regulation which determines their salary position.

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49. The Constitutional Court sent the petition of Aleš Zalar, as the first petition, to the National Assembly for it to reply thereto. The Constitutional Court also sent to the National Assembly the other petitions of judges which it considered to in some way differ in their substance from the aforementioned petition. In addition, it sent to the National Assembly the petition of Hinko Jenull and its supplementation, as well as the petition of Branka Cizel - Varšek. The Constitutional Court did not send to the National Assembly other petitions which do not differ in their substance from the above-mentioned petition.

50. The Constitutional Court accepted the petitions of judges to initiate proceedings

to review the constitutionality of the second and fourth paragraphs of Article 44, the first and second paragraphs of Article 45, the first paragraph of Article 49, the first paragraph of Article 49b, the first paragraph of Article 49c, Articles 50 and 50a, and the second paragraph of Article 51 of the JSA, the first paragraph of Article 36, and the first indent of Article 38 of the JSA-F, and the challenged provisions of the second paragraph of Article 10 and the sixth paragraph of Article 49a of the SSPSA, Article 9 and the first paragraph of Article 10 of the SSPSA-E, and Articles 1, 6, and the fourth and seventh paragraphs of Article 9 of the OOS, inasmuch as they refer to judges.

51. Furthermore, the Constitutional Court accepted the petitions of state prosecutors

to initiate proceedings to review the constitutionality of the first and second paragraphs of Article 28, and the first paragraph of Article 30 of the SPA in conjunction with the second paragraph of Article 44, the first and second paragraphs of Article 45, the first paragraph of Article 49, the first paragraph of Article 49b, the first paragraph of Article 49c, the first paragraph of Article 49č, the second and third paragraphs of Article 50 and the second paragraph of Article 50a of the JSA, the fourth paragraph of Article 30 of the SPA, the first and second paragraphs of Article 25, and the introductory part as well as the first indent of Article 26 of the SPA-C. It also accepted the petitions to initiate proceedings to review the constitutionality of the second paragraph of Article 10 and the sixth paragraph of Article 49a of the SSPSA, Article 9 and the first paragraph of Article 10 of the SSPSA-E, Articles 1 and 7 (A4) and the fifth and seventh paragraphs of Article 9 of the OOS, inasmuch as they refer to state prosecutors.

52. The Constitutional Court accepted the petitions of state attorneys to initiate

proceedings to review the constitutionality of the first paragraph of Article 44 of the SAA, the first indent of Article 35 of the SAA-A, and Article 9 of the SSPSA-E, as well as the fifth paragraph of Article 9 of the OOS, inasmuch as they refer to state attorneys.

53. Due to the fact that the conditions determined in the fourth paragraph of Article

25 of the CCA were fulfilled, the Constitutional Court proceeded to decide on the merits. In doing so, it limited itself to reviewing the challenged provisions from the viewpoint of the positions of the petitioners, although individual provisions refer to all officials.

B. – II.

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The Consideration of the Judges' Petitions

The Principle of the Independence of Judges – Its Meaning and Contents

54. The subject of review in the discussed case are the regulations governing the

salary position of judges. The petitioners allege that they are inconsistent with various constitutional provisions, inter alia, also with Article 125 of the Constitution regarding the independence of judges. The aforementioned constitutional provision – in conjunction with other constitutional provisions which define the constitutional position of the judiciary and judges and which entail the concretisation of the constitutional principle of the independence of judges (Articles 129, 130, 131, 132, 133, and 134 of the Constitution), is, according to the Constitutional Court, of key importance for the review in the case at issue. The essential question which the Constitutional Court must review in the case at issue is namely the question of the constitutional position of the judiciary and judges, and within these frameworks the question of determining the guarantees which are ensured by the Constitution in relation to the other two branches of power.

55. At the outset it must be underlined that the constitutional principle of the

independence of judges, the bearers of which are judges, cannot be regarded as their privilege, but foremost as an essential element for ensuring the protection of the rights of persons who are parties to judicial proceedings. Ensuring the right to judicial protection and within this framework also the right to an independent judge can entail an essential element of the possibility to exercise all other

rights. 11 The implementation of the principle of the independence of the judiciary is thus not intended (only) for judges as such, but especially for those who need judicial protection of their rights. In addition, the independence of judges is a prerequisite for their impartiality in concrete judicial proceedings and thereby for the credibility of the judiciary as well as the trust of the public in its work.

56. The right to an independent judge has an important position in the catalogue of

human rights and fundamental freedoms in modern constitutions and numerous international instruments. The right of everyone to an independent court is

explicitly determined by the first paragraph of Article 23 of the Constitution. 12 It

is contained in the Universal Declaration of Human Rights 13 and in the International Covenant on Civil and Political Rights (Official Gazette SFRY, No.

7/71 and Official Gazette RS, No. 35/92, IT, No. 9/92). 14 Also the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No.33/94, IT, No. 7/94 – hereinafter referred to as the European Convention

on Human Rights) 15 lists this right among human rights. It is also contained in

the Treaty Establishing the Constitution for Europe. 16 57. According to the standpoint of the Constitutional Court, the principle of the

independence of judges can be viewed from different perspectives. On one hand, it is the principle according to which when deciding judges can be bound only by the Constitution and laws. From this perspective, anything or anyone can be the source of a threat to judicial independence, inter alia, also parties to proceedings,

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the mass media, the public, civil society, different pressure groups, and even the

judiciary itself. 17 58. On the other hand, the principle of the independence of judges is based on the

principle of the separation of powers into the legislative, executive, and judicial branches of power (the second paragraph of Article 3 of the Constitution). The principle of the separation of powers contains two important elements, i.e. the separation of individual functions of such power and the existence of checks and balances between them. The first element requires that the legislative, executive, and judicial branches of power are separated, which also entails that authorities or bearers of these individual branches of power are separated, i.e. that they are not the same. The second element of this principle requires that between the individual branches of power there must exist a system of checks and balances according to which each of these branches of power influences and constrains the other two, however, to a certain extent there must also exist cooperation, as otherwise the functioning of the system of state power as a whole cannot be imagined (see also Constitutional Court Decision No. U-I-83/94, dated 14 July 1994, Official Gazette RS, No. 48/94 and OdlUS III, 89).

59. The Constitutional Court has already underlined in its decisions that the essence

of the principle of the separation of powers is in its fundamental function of protecting individuals in relation to the state (Decision No. U-I-158/94, dated 9 March 1995, Official Gazette RS, No. 18/95 and OdlUS IV, 20; Decision No. U-I-224/96, dated 22 May 1997, Official Gazette RS, No. 36/97 and OdlUS VI, 65). The principle of the separation of powers is the principle which should prevent the abuse of power, which is always at the expense of people or at the expense of individuals' rights (Decision No. U-I-83/94). It is precisely the judiciary that plays the key role in ensuring the protection of the position of every person against the possible arbitrary interferences of the other two branches of power.

60. The judiciary has various mechanisms at its disposal by which it can influence

the other two branches of power. A certain factual power of the judiciary in relation to the legislative branch of power follows from the fact that statutory provisions are more or less precisely determined, whereas it is left to judges to fill the empty space between an abstract legal norm and a concrete case when

deciding in a concrete case. 18 An important competence of regular courts in relation to the legislative branch of power is that they may initiate the procedure for the review of the constitutionality of a law. In accordance with Article 156 of the Constitution, if a court deciding some matter deems a law that it should apply to be unconstitutional, it must stay the proceedings and initiate proceedings before the Constitutional Court. Concerning the relationship of the judiciary towards general acts of the executive branch of power, it can be established that the courts are, in accordance with the Constitution, bound only by the Constitution and laws (Article 125). This entails that they are not obliged to apply the regulations of the executive branch of power when deciding some matter if they deem such to be inconsistent with laws or the Constitution (i.e. exceptio illegalis). The judiciary also has jurisdiction to review the legality of individual acts and actions of administrative authorities (Article 157 of the Constitution). Finally, the judiciary also plays the role of an arbitrator in all disputes in which one of the parties is the state.

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61. Furthermore, the Constitutional Court, which is in an organisational sense

separate from the courts, while being a part of the judiciary in a functional sense, also has an important role in the system of the protection of everyone in relation to the legislative and executive branches of power. In accordance with the powers which the Constitutional Court has pursuant to Article 160 of the Constitution, in Article 1 of the CCA the Constitutional Court is defined as the highest body of the judicial power for the protection of constitutionality, legality, human rights, and fundamental freedoms. In constitutional complaint proceedings, the Constitutional Court decides on violations of human rights and fundamental freedoms by individual acts as the highest and last instance in the state. The most important power of the Constitutional Court in relation to the legislative and executive branches of power is the power to review the conformity of laws and other regulations with the Constitution, ratified treaties, and with the general principles of international law, and the power to review the conformity of executive regulations with laws. In addition, the Constitutional Court has the competence to adopt decisions which directly refer to the officials of the other branches of power (i.e. deciding on constitutional impeachment charges against the President of the Republic – Article 109 of the Constitution, and against the President of the Government and ministers – Article 119 of the Constitution). Furthermore, it decides on jurisdictional disputes between the National Assembly, the President of the Republic, and the Government (the ninth indent of the first paragraph of Article 160 of the Constitution). In view of the nature of decisions adopted by the Constitutional Court, in performing their office Constitutional Court judges can thus be subject to various political and other pressures to even greater extent than other judges. Therefore, the conclusions from this decision regarding all the necessary guarantees for ensuring the (economic) independence of judges must also refer to Constitutional Court judges.

62. A prerequisite for the judiciary to efficiently perform its role is that independence

in relation to the other two branches of power is ensured. Article 125 of the Constitution regarding the independence of judges does not explicitly determine the substance of this principle. Certain prerequisites for judicial independence follow from other provisions of the Constitution – i.e. the first paragraph of Article 129 (the permanence of judicial office), Article 130 (the election of judges), Article 132 (termination of and dismissal from judicial office), Article 133 (the incompatibility of judicial office), and Article 134 (the immunity of judges). In filling the substance of the constitutional principle of the independence of judges, various international instruments whose subject is the concretisation of the substance of the principle of the independence of judges, can be applied as an aid. Those that deserve mention include the United Nations Basic Principles on the Independence of the Judiciary, adopted in 1985 at the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, and endorsed by the General Assembly (hereinafter referred to as the United Nations Basic Principles), Recommendation No. R (94) 12 of the Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges, and in the Explanatory Memorandum to this report (hereinafter referred to as the Recommendation on the Independence, Efficiency and Role of Judges), and the

European Charter on the Statute of Judges. 19 In addition, the individual

opinions of the Consultative Council of European Judges 20 can be taken into

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consideration, e.g. Opinion No. 1 (2001) on standards concerning the independence of the judiciary and the irremovability of judges and Opinion No. 2 (2001) on the funding and management of courts with reference to the efficiency of the judiciary and to Article 6 of the European Convention on Human Rights. The aforementioned applies also for standards of judicial peer organisations (i.e. the Judges’ Charter in Europe, the Universal Charter of the Judge) which reflect the common positions of the representatives of the judiciary of different states on issues concerning judges' independence. Regardless of the fact that these instruments were not adopted as international legally binding instruments, they may serve as interpretative tools in determining the contents of Article 125 of the Constitution. They namely concern the established standards and measures which are inalienable in every democratic society.

63. The independent judiciary has several aspects. In addition to the independence

of individual judges, also the independence of the judiciary as a whole must be ensured (i.e. collective independence), in view of the fact that interferences with the independence of the judiciary as a whole are necessarily also reflected in the independence of individual judges. The collective independence of the judiciary refers to, e.g. questions with reference to the possibility of participation in deciding on the determination of the means for the operations of courts, in adopting decisions with reference to auxiliary personnel at courts, with reference to the technical equipment of courts and the maintenance of judicial buildings, as well as in deciding on the accountability of its members. The internal independence of judges must be mentioned as a special aspect of the independence of judges. This concerns the independence of an individual judge in relation to other judges or superiors. In connection with the independence of judges as individuals, not only functional but also organisational independence is important. While the functional aspect refers to the independence of judges in adjudicating, the organisational aspect entails the appropriate protection of judicial office and the regulation of the conditions for performing the judicial office. Ensuring the aforementioned aspects of judicial independence is attempted in various ways. It is worth mentioning the rules regarding the appointment and dismissal of judges, regarding the permanence of judicial office, the immunity of judges, and the incompatibility of judicial office. In addition, the independence of judges is significantly influenced by the system of education and remuneration of judges. As regards the latter, we can speak of the economic

independence of judges. 21 64. At the core of the dispute in the case at issue are questions which refer to the

material independence of judges. The economic security of judges entails one of the fundamental guarantees of judicial independence. Judges whose incomes do not reach an amount sufficient to satisfy their personal and family needs will to a greater extent be exposed to various political pressures and to corruption. Regarding the limitations arising from incompatibility of their office as one of the elements for ensuring judicial independence, the options for additional sources of income are namely very limited in the case of judges. Not only the amount of judges' salaries but also their relative stability play a key role in ensuring judicial independence. A high degree of independence in relation to the other two branches of power is enjoyed only by judges whose level of income is not only sufficient but also stable, so that judges need not worry that their economic

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security could worsen in the future. Finally, an appropriate system of remuneration for judges is important also from the viewpoint of ensuring the appearance of the independence of judges. In addition to being in fact independent, judges must namely also appear to be independent. If judges were paid so poorly that they could be regarded as susceptible to political pressures and corruption, the public trust in the independence of the judiciary could be undermined.

65. Sufficient funds for the functioning of the judiciary, and within the scope of such,

also for judges' salaries, must be ensured by the state. Thereby, it must consider that the scope of the ensured funds must correspond to the role of the judicial branch of power and the responsibility of judges. However, due to the fact that the judiciary is financed from the national budget, a certain level of influence exerted by the legislative and executive branches of power on the regulation of the (economic) position of judges cannot be avoided, however, it must be restricted such that it protects judicial independence to the highest degree possible. A central question in the case at issue is whether the economic regulation of the position of judges, as follows from the challenged regulation, corresponds to the constitutional requirements as regards the independence of judges. On the basis of the reasons stated below, the Constitutional Court established that the challenged regulation does not meet such requirements.

The Review of the Constitutionality of Individual Provisions of the JSA, the SSPSA, and the OOS On Regulating Judges' Salaries by Acts that are Lower than Laws in the Legal Hierarchy On Regulating Judges' Salaries by a National Assembly Ordinance

66. One of the principal allegations of the petitioners regarding the challenged

regulation is that it leaves the regulation of judges' salaries to a National Assembly ordinance, which is a regulation that is lower than a law in the legal hierarchy.

67. Regarding the placement of judges into salary brackets, the JSA determines that

upon a judge’s election or appointment, the judge is placed into a salary bracket in accordance with the ordinance which regulates officials' salaries (the first and second paragraphs of Article 45). Article 1 of the OOS determines that this ordinance regulates the placement of offices in state authorities and local community authorities in the Republic of Slovenia. Salary brackets for judicial offices are determined in Article 6 of the OOS. The SSPSA determines the amount of basic salaries for individual salary brackets (Annex 1) and the lowest and highest salary brackets in individual salary subgroups for officials (Annex 2). The concrete placement of individual offices into salary brackets is left to a National Assembly ordinance (the second paragraph of Article 10).

68. The readjustment of the basic salaries of civil servants or officials to basic

salaries in accordance with the SSPSA presupposes that a nominal value of judges' salaries be determined, which entails the basis for the readjustment of salaries and the placement of this value into one of the salary brackets according

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to the new regulation. In accordance with the sixth paragraph of Article 49a of the SSPSA, the readjustment of officials' salaries to salary brackets according to the new act is determined by an ordinance, however, the SSPSA already determines the basis which is taken into consideration in the readjustment of nominal amounts of the basic salaries to officials' basic salaries in accordance with the SSPSA. Such is determined in the fourth paragraph of Article 49a. As regards determining the nominal value of judges' salary, which is the basis for the readjustment of salaries, the third paragraph of Article 49a of the SSPSA determines that the nominal value of the basic salary of civil servants or officials, which is the basis for the readjustment of salaries, is determined in a manner such that the sum of the coefficient which the civil servants or officials attained by

promotion with regard to employment position or title, 22 and additional payments determined in Article 49b of the same Act is multiplied by the value of the basis for a calculation of salaries. Additional payments which entail a basis for the readjustment of judges' salaries are determined in the first or fourth paragraphs of Article 9 of the OOS. It follows from these provisions that a readjusted nominal value of the basic salary of officials in the judicial branch of power (i.e. salary subgroup A3) is determined in a manner such that the coefficient is increased by judges’ extra payment to compensate for the incompatibility of their office, and such increased coefficient is multiplied by the applicable basis for determining officials' salaries. In the case of vice presidents and presidents of courts, the coefficient, which is increased by an extra payment to compensate for the incompatibility of judicial office, is additionally increased by an extra payment to compensate for a management position. As regards the placement of the readjusted nominal values of basic salaries into salary brackets, the seventh paragraph of Article 9 of the OOS determines that the readjusted nominal values of basic salaries are placed into the closest salary bracket from

the salary scale (Annex 1 to the SSPSA). 23 69. It follows from the aforementioned that judges' salaries are not entirely regulated

by law. The type of legal acts by which the position of judges is decided on importantly influences the degree of independence of judges. In order to prevent excessive or undesired influences or external pressures on judges, certain guarantees must be incorporated into the system of deciding on the regulation of the position of the judiciary and judges, in accordance with which the adoption of such regulations is carried out in a manner such that is envisaged for deciding on the most important and most sensitive social issues and which guarantees judges a high degree of legal certainty. In democratic societies the most important decisions are adopted by parliaments as representative bodies of the people. In the hierarchy of legal acts which are adopted by the National

Assembly, laws enjoy a very important position. 24 Therefore, the National Assembly in general passes laws in a multiphase legislative procedure which allows more thorough deliberation of the adopted legislative solutions and in principle does not allow expeditious changes to legislative regulation. However, as regards ordinances, the RPNA-1 to the contrary determines that as a general rule, the National Assembly discusses and adopts them at the same session; at such session, a general debate is held, followed by a debate and voting on the parts of the act and on amendments, and voting on the act in its entirety (the first paragraph of Article 171). Also the possibility of a veto by the National Council and the possibility of a referendum are envisaged only with reference to laws (the

26

third and fourth indents of Article 97 of the Constitution). In view of the aforementioned, the principle of the independence of judges requires that it is only appropriate that the position of the judiciary and judges be regulated by a law.

70. The requirement that the position of judges be regulated by acts which are in the

legal hierarchy not lower than laws also follows from international

instruments. 25 Certain of these instruments particularly emphasize that also

judges' salaries must be regulated by law. 26 In the opinion of the Government, what follows from the aforementioned instruments is namely only that the legislature should regulate judges' salaries, whereas the type of act by which the

legislature should regulate such is not determined. 27 According to the Constitutional Court, when treaties are being interpreted, the purpose for which they were adopted should also be taken into consideration. Such purpose is certainly to ensure the highest possible degree of the independence of judges. Therefore, the provisions of treaties regarding the type of regulations by which the position of judges can be regulated must be interpreted in accordance with the already mentioned requirement that decisions on the position of judges must be adopted in the same manner as the most important decisions in an individual state, which the regulation of judges' salaries undoubtedly is. In Slovenia, such a regulation is, as stated above, a law.

71. One of the fundamental guarantees for the independence of judges determined

in Article 125 of the Constitution is the requirement in accordance with which representatives of the judiciary must always be ensured the opportunity to take part in the process of the adoption of any regulation which refers to the position

of the judiciary and judges. 28 Such participation may not be merely formal. The body deciding on such issues is in fact not bound by the proposals of the judiciary, however, if it does not accept them it must provide a statement of reasons why it did not accept them. Thus, it is not required that deciding on such should be left entirely to the judiciary, however, it is required that the judiciary is not excluded [from the process of deciding on such]. The authorisation determined in the fourth indent of the first paragraph of Article 28 of the CA according to which the Judicial Council provides opinions on the proposed budget for the courts and provides the National Assembly with opinions on the laws governing the status, rights, and obligations of judges and court personnel, corresponds to the aforementioned requirement. Taking into consideration the principle of the independence of judges, this statutory provision may only be interpreted in a manner such that the Judicial Council's right comes up against the counter duty of the legislature to consider the Judicial Council's opinion as regards its content and if it does not agree therewith, to take a well-founded position thereon. If the position of judges is regulated by executive regulations, such possibility of their participation is not guaranteed by law. It is not important for the review that in the case at issue judges took part in the procedure for adopting the OOS.

72. It follows from the aforementioned that only a regulation which regulates judges'

salaries entirely by a law is in accordance with the principle of the independence of judges. As they determine that judges' salaries be determined by an ordinance, the provisions of the first and second paragraphs of Article 45 of the

27

JSA and the second paragraph of Article 10 and the sixth paragraph of Article 49a of the SSPSA, insofar as they refer to judges, are inconsistent with the principle of the independence of judges determined in Article 125 of the Constitution. Due to the fact that judges' salaries must be entirely determined by a law, also the OOS is inconsistent with the Constitution, insofar as it refers to judges. With regard to that, the Constitutional Court did not need to separately consider the allegations of the National Assembly with regard to the review of the salary regulation of judges that the placement of judicial offices into salary brackets only entails the implementation of the act.

On the Regulation of Judges' Salaries by Government Decrees and the Collective Agreement for the Public Sector

73. The petitioners also challenge the statutory provisions which leave the regulation

of issues connected to the determination of the economic position of judges to the Government and which in this respect determine the application of the collective agreement for the public sector.

74. In accordance with the second paragraph of Article 51 of the JSA, the conditions,

criteria, and scope of payments for an increased workload or an additional workload for individual judges are determined by the Government decree. Also Article 50a of the JSA regarding the payment for additional work performance provides for, mutatis mutandis, application of an executive act of the Government. The second paragraph of Article 50a of the JSA namely determines that, due to rationalisation purposes, the president of the court decides on the payment of a part of judges' salaries for additional work performance by applying, mutatis mutandis, the law which regulates the salary system in the public sector and an executive act which is adopted by the Government for the public sector. On the basis of criteria adopted in the same manner, the payment of a part of the salary of presidents of courts for additional work performance is also decided on in accordance with the third paragraph of Article 50a of the JSA. The second paragraph of Article 50a of the JSA with reference to the criteria for the payment of a bonus for additional work performance also refers to the act which regulates the salary system in the public sector (i.e. the SSPSA), which, however, does not regulate such criteria. This entails that it is left to the Government to determine the criteria according to which the part of the salary for additional work performance should be decided.

75. In accordance with the second paragraph of Article 50 of the JSA, the president

of the court decides on the payment of a part of a salary for additional work performance according to the criteria which are determined by the Judicial Council by applying, mutatis mutandis, the law which regulates the salary system in the public sector and collective agreements for the public sector. On the basis of criteria adopted in the same manner, the payment of a part of a salary of presidents of courts for additional work performance (the third paragraph of Article 50 of the JSA) is also decided. Also regarding the second paragraph of Article 50 of the JSA, it applies that with reference to the criteria for the payment for additional work performance, it refers to the act which regulates the salary system in the public sector (i.e. the SSPSA), which, however, does not regulate such criteria, which entails that it leaves it to the collective agreement for the

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public sector to determine such criteria. The legislature refers to the application of the collective agreement for the public sector also with reference to the regulation of payments that are additional to judges' salaries. The JSA determines that judges have the right to additional payments as a part of their salary under the conditions and in the amount which are determined by this act, the act which regulates the salary system in the public sector, and the collective agreement for the public sector (the second paragraph of Article 44 of the JSA and the first paragraph of Article 49 of the JSA). Judges are entitled to additional payments for working in less favourable working conditions and at a less favourable working time (the first paragraph of Article 49b and the first paragraph

of Article 49c of the JSA) 29 in the amount determined by the collective agreement for the public sector.

76. As regards the fact that only the regulation of the salary position of judges by a

law is in compliance with the principle of the independence of judges provided for in Article 125 of the Constitution, also the second paragraph of Article 44, the first paragraph of Article 49, the first paragraph of Article 49b, the first paragraph of Article 49c, the second and third paragraphs of Article 50, the second and third paragraphs of Article 50a, and the second paragraph of Article 51 of the JSA, as they leave the regulation of judges' salaries to Government decrees or to the collective agreement for the public sector, are inconsistent with this constitutional principle.

The Placement of Judicial Offices into Salary Brackets in accordance with the SSPSA

77. The petitioners also challenge the placement of judicial offices into salary brackets. In their opinion, the challenged regulation is inconsistent with the Constitution as it does not determine criteria on the basis of which individual offices were placed into salary brackets, as it does not value judicial offices highly enough in comparison with the offices of the other two branches of power, and as there exist internal disparities between the basic salaries of judges. It has already been established that the OOS, inasmuch as it refers to judges, is inconsistent with the Constitution already due to the fact that in accordance with the principle of the independence of judges, the regulation of issues concerning the position of judges must be reserved for a law. However, separately from the aforementioned, the Constitutional Court reviewed whether the regulation regarding the placement of individual judicial offices into salary brackets is in terms of its substance consistent with the Constitution.

78. Offices in state authorities and local community authorities in the Republic of

Slovenia are included in salary group A and placed into five salary subgroups: subgroup A1 – the President of the Republic and officials in the executive branch of power; subgroup A2 - officials in the legislative branch of power; subgroup A3 – officials in the judicial branch of power; subgroup A4 – officials in other state authorities; and subgroup A5 – officials in local community authorities (the first paragraph of Article 7 of the SSPSA and Article 3 of the OOS). The salary brackets of individual offices are determined in the subsequent provisions of the OOS in accordance with the aforementioned subgroups. The salary brackets of offices in the judicial branch of power are determined in Article 6 of the OOS.

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79. The allegation that the challenged regulation is inconsistent with the Constitution due to the fact that it is not determined in a law what the legislature used as a basis for the placement of individual offices into salary brackets is not substantiated. The Constitution namely does not require that the reasons for the adoption of a certain legislative solution should be determined in the text of the regulation itself.

80. Determining the amount of the salaries of civil servants or officials falls within the

field of discretion of the legislature, provided that the constitutional rights of individuals are not interfered therewith. In determining the amount of judges' salaries, the legislature must above all respect the requirement that a salary must

protect judges against pressures which could influence their deciding, 30 and it must be in compliance with the dignity of the judicial profession, i.e. it must be

adequate with regard to the role of judges and their responsibilities. 31 The Constitutional Court could have held that the legislature's decision regarding the amount of judges' remuneration is inconsistent with Article 125 of the Constitution only if the amount of such remuneration had been determined manifestly inappropriately. The petitioners do not allege such regarding the challenged regulation. They challenge the placement of judicial offices into salary brackets because they claim that an appropriate balance was not established between the salary brackets of judicial offices and the salary brackets of the offices of the other two branches of power. Such allegations of the petitioners may be important from the viewpoint of the consistency of the challenged regulation with the principle of the separation of powers determined in the second paragraph of Article 3 of the Constitution. The requirement that individual branches of power must be balanced namely also presumes a comparable remuneration of the officials of the different branches of power whose statuses are comparable.

81. Offices in the executive branch of power are placed into salary brackets ranging

from the 59th to the 65

th bracket (Article 4 of the OOS). The salary brackets in the

legislative branch of power range from the 55th to the 65

th salary bracket (Article 5

of the OOS). Regarding the offices in the judicial branch of power, only certain position-based offices (i.e. the office of the President of the Supreme Court in the 65

th salary bracket, the office of Vice President of the Supreme Court and the

presidents of certain other courts in the 57th to 60

th salary brackets) are placed in

the highest salary brackets. The highest placed non-position-based offices in the judicial branch of power – i.e. the office of senior Supreme Court judge in the 56

th

salary bracket and the office of Supreme Court judge in the 55th salary bracket –

barely reach the lowest placed office in the legislative branch of power and are placed lower than the lowest placed office in the executive branch of power. In comparison with offices in the executive and legislative branches of power, other non-position-based offices in the judicial branch of power are placed much lower (i.e. the office of higher court judge in the 47

th salary bracket, the office of district

criminal court judge in the 43rd salary bracket, the office of district court judge in the 42

nd salary bracket, and the lowest placed judicial office, i.e. the office of local

court judge in the 39th salary bracket). The ostensible comparability of the salary

brackets of the offices in the legislative and executive branches of power, on one hand, and the offices in the judicial branch of power, on the other, is thus possible only regarding the relatively high placement of certain highest position-based offices in the judicial branch of power, whereas in fact there exist

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noticeable differences between the salary brackets of the offices in the judicial branch of power in comparison with the other two branches of power. In the opinion of the Government, the lesser lower limit in the case of judges is a consequence of differences in the nature of the compared offices. With reference to such, the Government points out that only courts are organised at different levels, that there are differences in the manner of the election and duration of the offices in the different branches of power, and that different conditions are prescribed for assuming individual offices. As regards the required conditions for assuming office, it can be established that very demanding formal conditions are prescribed (i.e. education, work experience) even for the lowest judicial offices. The organisation of courts at different levels certainly can justify that the salary brackets of individual judicial offices are determined differently, it cannot, however, justify that with the exception of the judicial offices of the presidents and vice presidents of courts, all other judicial offices are placed lower than the lowest placed offices in the other two branches of power and that also the highest placed non-position-based judicial offices are placed lower than the lowest placed office in the executive branch power, i.e. they barely reach (exceed) the salary bracket of the lowest placed office in the legislative branch of power. The manner of the election and the duration of office can to a certain extent influence the amount of officials' salaries, they do not, however, justify such great differences between the salary brackets of offices in individual branches of power, as determined by the challenged regulation. Due to the fact that the opposing party did not state convincing reasons for such disparities, it can be concluded that Article 6 of the OOS, which determines salary brackets for individual offices in the judicial branch of power, is not only inconsistent with Article 125 of the Constitution, but also with the principle of the separation of powers determined in the second paragraph of Article 3 of the Constitution.

82. With reference to the issues connected to the placement of judicial offices into

salary brackets, the petitioners also allege that judges' salaries are less than the

salaries of the presidents and vice presidents of courts. 32 Upon the possible remedy of the inconsistencies determined in the previous paragraph, the legislature will also be able to remedy such disparities.

83. One of the petitioners alleges that the challenged regulation is unconstitutional as

it determines two different systems of remuneration of judges who have management positions. The remuneration to compensate for the management positions of presidents and vice presidents of courts is expressed in terms of higher salary brackets for these offices. In accordance with Article 49a of the JSA, judges who manage individual departments at courts or external departments of courts are entitled to a position-based additional payment determined in terms of a certain percentage of their basic salary (i.e. 5, 6, 8, or 10 percent). The existence of two different systems of remuneration of judges in management positions is in and of itself not inconsistent with the constitutional principle of equality. Certain differences in the amount of payment of presidents and vice presidents of courts in comparison with the amount of payment of judges who have other judicial management positions can be justified, insofar as they are substantiated by special competencies of the presidents or vice presidents of courts. Moreover, the petitioner did not support his allegation that

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the application of the challenged regulation could lead to a situation where heads of departments would have higher salaries than the president of the same court.

A Reduction in Judges' Salaries

84. The petitioners also challenge the statutory provisions which refer to a reduction

in judges' salaries. Protection against a reduction of judges' salaries during their term of office certainly entails one of the key elements of the independence of judges. Only a judge whose economic status is protected to the greatest extent possible can act truly independently. In this sense, the above-mentioned guarantee against the reduction of judges' salaries is primarily a measure which should prevent judges from being “forced” to also think about the political acceptability of their decisions when deciding. Furthermore, ensuring that judges have a stable economic status also allows them a high degree of independence in its broadest sense (e.g. protection against pressure from political parties and the public). The prohibition against a reduction of judges' salaries and their regular harmonisation and adjustment are equally important. From the viewpoint of the economic independence of judges, a regulation due to which the social security of judges is worsened can also be disputable.

85. A prohibition against a reduction of judges' salaries during their term of office is

contained in the legal systems of numerous countries. In certain countries the prohibition against a reduction of judges' salaries is included in the constitution

(see, e.g. the constitutions of the USA, 33 Brazil, India, Ireland, Israel, Japan, Malta, and New Zealand), in others, such prohibition is explicitly determined by law (such is the case in e.g. the Russian Federation, Lithuania, and Ukraine). Special protection of judges against a reduction of their salaries also follows from

international instruments. 34 86. In accordance with Article 125 of the Constitution, the protection of judges

against a reduction of their salaries during their term of office is namely not absolute; it does entail, however, that the reduction in judges' salaries is justified only in truly exceptional instances. An evaluation whether there exists such a case may be made only in each individual case separately after considering all

the circumstances by which such reduction is substantiated. 35

The Review of the Constitutionality of the Fourth Paragraph of Article 44 of the JSA

87. The petitioners challenge the fourth paragraph of Article 44 of the JSA as a

general provision regarding the admissibility of the reduction in judges' salaries. They allege that it introduces lower standards of protection against interferences with judges' salaries than were applied prior to its implementation. With reference to the aforementioned, they point out that the prohibition against the reduction in judges' salaries according to the new regulation only refers to the basic salary, that a reduction in salaries is admissible in more instances than before, and that such can be determined by an executive regulation.

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88. The fourth paragraph of Article 44 of the JSA reads as follows: “The basic salary of a judge may not be reduced during his term of office except in cases determined by this act”.

89. Protection against a reduction of the salary of an individual judge, if such is

intended to ensure its stability and consequently the judge's independence, must namely be understood as protection against any interference which might cause a reduction of the judge's salary which the judge justifiably expected upon assuming office. Thus, it is not only judges' basic salaries that are protected against a reduction but also all payments to which judges are entitled due to performing judicial office. We cannot speak of a reduction in judges' salaries only in cases in which judges receive a lower salary because they are no longer entitled to various additional salary payments which they are entitled to because they perform certain tasks (e.g. an additional payment for mentorship, and position-based additional payment) or because they carry out tasks in certain circumstances or under certain conditions (e.g. additional payments for working in less favourable working conditions and at a less favourable working time) if a judge does not perform judicial office during a certain period of time under such conditions. The same applies in cases of possible payments to judges for work performance which are also not a fixed part of a judge's salary.

90. As regards the above-mentioned, the fourth paragraph of Article 44 of the JSA,

inasmuch as it prohibits interferences only with judges' basic salaries is inconsistent with the principle of the independence of judges determined in Article 125 of the Constitution. Due to the fact that judges' salaries may only be regulated by a law, the fourth paragraph of Article 44 of the JSA is inconsistent with the principle of the independence of judges determined in Article 125 of the Constitution also in the part in which it allows that additional instances of a reduction in judges' salaries be regulated by an ordinance.

91. However, the allegations of the petitioners that the fourth paragraph of Article 44

of the JSA is inconsistent with the Constitution also because by using a plural form (…may not be reduced, except in cases…) the legislature can determine new instances of reduction, are not substantiated. As already mentioned above, in exceptional cases a reduction in judges' salaries is constitutionally admissible. This entails that it cannot be alleged that a statutory regulation which only in general determines that the legislature can adopt a regulation on a reduction in judges' salaries is as such inconsistent with the principle of the independence of judges.

The Tenth Paragraph of Article 52 of the SSPSA

92. The petitioners challenge the tenth paragraph of Article 52 of the SSPSA, as it

determines that the first paragraph of Article 49 of the same act does not apply to officials' salaries. The first paragraph of Article 49 of the SSPSA determines that if a judge receives a lower salary pursuant to the determination of the salary in accordance with the provisions of this act than the salary determined pursuant to the regulations which applied until the beginning of the calculation of salaries in accordance with this act, the difference up to the former amount of the salary shall be paid thereto until both sums are equal. Such protection against a

33

reduction in salaries does not apply for officials. The different protection of the payment position of officials is based on a different legal status, due to the fact that the position of officials is not comparable to the position of civil servants (Cf. Constitutional Court Decision No. U-I-175/97, dated 25 November 1999, Official Gazette RS, No. 101/99 and OdlUS VIII, 264). Therefore, the petitioners' allegations regarding the inconsistency of the challenged regulation with the second paragraph of Article 14 of the Constitution are not substantiated.

The Factual Reduction in Judges' Salaries

93. The petitioners allege that also the factual reduction in judges' salaries which

allegedly arose due to provisions regulating the amount of a bonus for years of service is inconsistent with the Constitution. Before the amended JSA-F, the JSA determined that judges' salaries be increased by 0.5% for each year of service begun, however by no more than 20%. Moreover, the act determined that for female judges with more than twenty-five years of service the percentage of 0.5% was increased by an additional 0.25% for each year over twenty-five years of service begun (the third paragraph of Article 46 of the Judicial Service Act, Official Gazette RS, No. 23/05 – official consolidated text – hereinafter referred to as the JSA-OCT1). On the basis of the amended regulation of judges' salaries for each completed year of service, judges are entitled to a bonus in the amount of 0.3% of the basic salary for each year of service begun (the first indent of Article 38 of the JSA-F).

94. The petitioners are of the opinion that reducing the bonus for years of service is

inconsistent with the principle of equality before the law determined in the second paragraph of Article 14 of the Constitution. With reference to such, they refer to Article 238 of the ERA, which ensures the workers to whom this act applies the right to an unreduced bonus for years of service. This allegation is not substantiated. The principle of equality before the law namely does not require a general equality of all, but merely binds the legislature to regulate essentially similar situations equally. The position of judges as officials is not comparable with the position of workers in an employment relation.

95. A bonus for years of service is not a constitutional category. Due to the fact that

the legislature may regulate such or not, also its reduction or even possible abolishment is in and of itself not disputable from a constitutional point of view. However, from the point of view of the consistency with Article 125 of the Constitution, such reduction can be disputable if in fact it causes a factual reduction in judges' salaries. With reference to such, it must be taken into consideration that judges must be ensured such protection only inasmuch as their salaries would not be increased for some other reason which would entail a fixed part of their salary, and which could compensate for the reduction in salaries related to the bonus for years of service.

96. The Government alleges that despite the reduction in the bonus for years of

service, it can be said that judges' salaries were potentially reduced only at individual levels and by no means that judges' salaries were reduced in general, due to the fact that the scope of the funds for judges’ salaries allegedly has not changed. However, this cannot influence the review. The protection against a

34

reduction in salaries namely refers to each individual judge, whereas the challenged regulation does not ensure that on its basis individual reductions in salaries would not occur. In addition, it is not relevant for the review that according to the Government a factual reduction is only possible in exceptional cases, i.e. in cases in which the reduction in salaries relating to the bonus for years of service and the reduction in judges' basic salaries because of the readjustment of salaries would not be substituted for by an additional payment for work performance. As follows from paragraph 89 above, the possible additional payment for work performance is not a fixed part of judge's salary and therefore a reduction in the salary of an individual judge cannot be compensated for therewith.

97. The Government substantiated the reduction in the bonus for years of service by

citing the need to ensure the funds for additionally remunerating judges for their work performance and by alleging that equality between civil servants and officials must be ensured, as in the future also civil servants should be paid a bonus for years of service in the amount of 0.3%. The National Assembly alleges that such reduction is necessary in order to implement a salary reform of the entire public sector, as thereby a gradual remedy of disparities would be possible without increasing the funds intended for salaries. These alleged reasons cannot substantiate the reduction. The intention of the legislature to equally regulate a bonus for years of service for officials and civil servants in the future does not substantiate the reduction in judges' salaries during their term of office. Furthermore, the reduction cannot be substantiated merely by referring to the need to ensure the funds for certain other purposes (in the case at issue, for supplemental payments for work performance and to remedy salary disparities in the public sector). The fact that the legislature would like to obtain funds for other purposes namely does not suffice to justify the reduction in judges' salaries.

98. The petitioners allege that the factual reduction in judges' salaries will take place

also in the event of the placement of judges into salary brackets upon the readjustment of salaries. On the basis of the seventh paragraph of Article 9 of the OOS, the readjusted nominal value of officials' basic salaries is placed into the closest salary bracket from the salary scale according to Annex 1 to the SSPSA, thus possibly also lower. The Constitutional Court also had to review the reduction as provided for by this provision from the perspective of Article 125 of the Constitution. The Government substantiates the reduction due to the readjustment of salaries by alleging that it is a transition from one salary system to another, whereby a readjustment of salaries to the new salary system could allegedly not be carried out in a different manner. A readjustment of salaries to the closest higher salary bracket would namely (due to the fact that the same system should allegedly also be applied for civil servants) allegedly require 8.3 billion SIT of additional funds for salaries. These arguments cannot substantiate the reduction. The prohibition against a reduction in judges' salaries namely does not require the placement of readjusted nominal values of judges' basic salaries into the closest higher salary brackets, but merely the maintenance of their salaries in the same amount as before the readjustment of salaries. This can be achieved in a manner such that judges who were entitled to lower basic salaries according to the new regulation due to the placement into the closest (lower) salary bracket, are ensured higher basic salaries until the amounts of judges'

35

basic salaries according to previous and new regulations are equal. Neither the National Assembly nor the Government allege that such solution is not acceptable from the viewpoint of public finance. In this regard, it must also be taken into consideration that in the case of a reduction due to the readjustment of salaries, the reduction is only temporary.

99. As regards the above-mentioned, the first indent of Article 38 of the JSA-F and

the seventh paragraph of Article 9 of the OOS, inasmuch as they refer to judges who were elected to judicial office prior to the application of the new salary regulation, are inconsistent with Article 125 of the Constitution. The same applies to Article 9 of the SSPSA-E, inasmuch as it refers to the above-mentioned group of judges.

The Supplemental Payment of Judges for Work Performance

100. In the opinion of the petitioners, also the supplemental payment of judges for work performance is inconsistent with the principle of the independence of judges. The fifth paragraph of Article 22 of the SSPSA determines that officials, except for judges, state prosecutors, and state attorneys, if such is determined by law, are not entitled to the supplemental part of the salary for work performance. The third paragraph of Article 44 of the JSA determines that a judge has the right to the supplemental part of the salary for work performance and the right to a part of the salary for additional work performance under conditions determined by this act and by the act which regulates the salary system in the public sector. Moreover, Article 48 of the JSA determines that a judge's salary is determined in a manner such that the value of a salary bracket in which a judge is placed is increased (inter alia also) for the supplemental part of the salary for work performance or for additional work performance in accordance with Articles 50 and 50a of this act. Article 50 of the JSA determines that a judge who in the performance of judicial office achieved in the current year above-average work results relative to the department or court or had an above-average workload is entitled to the supplemental part of the salary for work performance (the first paragraph). Article 50a of the JSA determines that a judge who is employed or assigned to a court which saved funds for salaries by implementing a rationalisation programme, is entitled to the part of the salary for additional work performance (the first paragraph).

101. As explained above, the second and third paragraphs of Articles 50 and

50a of the JSA are inconsistent with Article 125 of the Constitution because they determine that the criteria for additionally remunerating judges according to (additional) work performance are to be regulated by the collective agreement for the public sector or by the executive act of the Government (see paragraphs 74 and 75 above). The petitioners moreover allege that these provisions are inconsistent with the Constitution also because the supplemental payment of judges for work performance is as such inconsistent with the constitutional principle of the independence of judges. The supplemental payment of judges for work performance can be disputable from the viewpoint of the independence of judges especially in cases in which it is intended only or foremost for encouraging the productivity of judges (in the sense of the number of closed cases as the only or key criterion for evaluating their work performance). Such system can namely

36

give the impression to parties to proceedings or to the general public that when deciding judges give priority to financial motives before the fundamental principle on which adjudication must be based, i.e. deciding on the basis of the Constitution and laws. This can have a negative effect on the appearance of the

impartiality of judges; 36 in addition, this can in fact cause that when deciding, an excessive strain is put on judges to meet expectations as regards the planned amount of work performed, which can influence the course of court proceedings. This especially holds true if performance is evaluated in a period of time that is too short. The above-stated does not entail that any regulation which would provide that a part of the judge's salary depends on the evaluation of the judge's work performance would be inconsistent with Article 125 of the Constitution. Thus, the allegations regarding the inconsistency of the third paragraph of Article 44 of the JSA and the fifth paragraph of Article 22 of the SSPSA are not substantiated. The above-mentioned provisions namely only in general determine the right of judges to the supplemental part of the salary for work performance or additional work performance and as such cannot be inconsistent with the Constitution. The same applies for Article 48 of the JSA.

102. The review of the consistency of the regulation at issue, which envisages

the supplemental payment of judges for work performance, with the principle of the independence of judges determined in Article 125 of the Constitution could be carried out only on the basis of a detailed evaluation of the effects of such system on the position of an individual judge. However, in the case at issue this cannot be done due to the insufficiently determined and vague statutory provisions that are challenged, which regulate the supplemental payment of judges for work performance (Articles 50 and 50a of the JSA). In accordance with the first paragraph of Article 50 of the JSA, a judge who in the performance of judicial office achieved in the current year above-average work results relative to the department or court or had an above-average workload is entitled to the supplemental part of the salary for work performance. In view of the fact that supplemental payment for an increased workload or for an additional workload of a judge is separately determined in Article 51 of the JSA, the relation between both statutory provisions is not clear. Furthermore, the criteria according to which the supplemental payment of the part of the salary for work performance is decided are completely indefinite. The second paragraph of Article 50 of the JSA determines that the act which regulates the salary system in the public sector and the collective agreements for the public sector be applied, mutatis mutandis. The SSPSA does not regulate such in more detail and the collective agreement for the public sector has not yet been adopted. The same applies as regards the criteria for the payment of the part of the salary for additional work performance in accordance with Article 50a of the JSA. In accordance with this statutory provision, a judge who is employed or assigned to a court which saved funds for salaries by implementing a rationalisation programme, is entitled to the part of the salary for additional work performance, whereby the act which regulates the salary system in the public sector and the executive regulation adopted by the Government for the public sector are applied, mutatis mutandis. The SSPSA in this regard determines that the Government decree be applied (the fifth paragraph of Article 21). The Government adopted the Decree concerning Additional Work Performance in the Public Sector (Official Gazette RS, No.

14/06), which, however, does not determine such criteria. 37 It is also not clear

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what “saved funds for salaries by implementing a rationalisation programme” entails. Inasmuch as such can be understood to entail achieving the same results (in the sense of the number of closed cases) with a smaller number of judges, which would entail an increased workload (or above-average workload) of already employed judges, also the relation between this statutory provision with the provisions of Articles 50 and 50a of the JSA is not clear, which also refer to the supplemental part of the salary for work performance in cases of an increased workload or above-average workload of a judge. The legal position of judges with reference to supplemental payment of judges for work performance pursuant to Articles 50 and 50a of the JSA is thus unclear and unpredictable. As such, these two provisions are inconsistent with Article 2 of the Constitution.

The Placement of Judges into Salary Brackets in the Transitional Period

103. The petitioners allege that the challenged salary regulation is also inconsistent

with the principle of equality before the law determined in the second paragraph of Article 14 of the Constitution, as it allows different remuneration of judges in the transitional period. An inadmissible criterion for such differentiation is allegedly the date of election of a judge to judicial office or the date of promotion to the office of senior judge. Judges who have already performed (will perform) judicial office or attained (will attain) the position of senior judge upon the implementation of the new salary system, will allegedly, on the basis of the first paragraph of Article 10 of

the SSPSA-E, 36 be placed into lower brackets than judges who will be elected to judicial office or appointed to the position of senior judge after this date. In the opinion of one of the petitioners, such regulation is allegedly also inconsistent with Article 49 of the Constitution.

104. If judges who are already performing judicial office had in fact been placed lower

than newly elected judges, without a constitutionally admissible reason existing for such, such regulation would have been inconsistent with the second paragraph of Article 14 of the Constitution. However, the Government is of the opinion that this will not happen. It alleges that also for judges who will be elected to judicial office or appointed to the position of senior judge subsequent to the implementation of the new salary system, the sixth and seventh paragraphs of Article 49č of the SSPSA or the first paragraph of Article 10 of the SSPSA-E must be applied, however, the standpoint of the Judicial Council is just the opposite. After the implementation of Article 10 of the SSPSA-E, which independently determines the manner in which disparities in officials' basic salaries be remedied and time-limits for such, reference to the sixth and seventh paragraphs of Article 49č of the SSPSA, which determine the manner in which disparities in civil servants' basic salaries be remedied and time-limits for such, i.e. they envisage the application of the same system for civil servants and officials, is no longer possible. Considering the fact that the Placement of Judges into Salary Brackets in the Transitional Period Act does not contain a transitional provision, it is not possible to establish whether the first paragraph of Article 10 of the SSPSA-E can be applied also for judges who will be elected to judicial office or appointed to the position of senior judge during the transitional period.

105. As regards the above-mentioned, the first paragraph of Article 10 of the SSPSA-

E, inasmuch as it refers to judges is inconsistent with Article 2 of the Constitution.

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Therefore, the Constitutional Court did not need to address the allegations regarding the inconsistency of the challenged regulation with Article 49 of the Constitution.

The Review of the First Paragraph of Article 36 of the JSA-F

106. Two of the petitioners explicitly challenge also Article 36 of the JSA-F. It follows from the contents of their petition that this in fact refers only to the first paragraph of the above-mentioned article. They substantiate their petition most of all by alleging that in their case the Judicial Council erroneously applied provisions regarding the readjustment of salaries, which cannot be the subject of a constitutional review of a regulation; in addition they allege that these statutory provisions are not clear. The allegation that the first paragraph of Article 36 of the JSA-F is not clear, is substantiated.

107. The first paragraph of Article 36 of the JSA-F reads as follows: “Judges who are

placed into salary brackets on the basis of provisions of the Judicial Service Act (Official Gazette RS, No. 23/05 – official consolidated text) are placed into salary brackets in accordance with this act and the act which regulates the salary system in the public sector in a manner such that the value of the salary bracket in which they are placed corresponds to their basic salary, which includes the attained coefficient of the salary bracket and an extra payment to compensate for the incompatibility of their office; in the case of presidents and vice presidents of courts, it also includes an extra payment to compensate for a management position.” Taking into consideration the text of the above-cited provision (judges…are placed into salary brackets in accordance with this act and the act which regulates the salary system in the public sector in a manner such…), it can be understood only in a manner such that it regulates the second part of the readjustment of salaries, i.e. the placement of the readjusted amounts of judges' basic salaries into salary brackets in accordance with the new regulations. As regards the fact that in general the readjusted amounts of salaries will not completely correspond to any of the new salary brackets, which entails that placing judges into new salary brackets in accordance with the above-cited provision apparently would not at all always be possible, thus such interpretation of this provision is not possible. Therefore, the meaning of the above-cited provision remains unclear and undefined. This entails that also this provision is inconsistent with Article 2 of the Constitution.

B. – III.

The Consideration of the State Prosecutors' Petitions

On the Constitutional Position of State Prosecutors

108. With reference to the state prosecutors' petition, the Constitutional Court must first take a standpoint regarding the allegations that the position of state prosecutors concerning the requirements regarding the guarantee of their independence approaches that of the position of judges, which allegedly follows from Articles 135 and 136 of the Constitution. If such allegations were substantiated this would consequently entail that also for the regulation of the

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salary position of state prosecutors the same guarantees should apply as are ensured to judges on the basis of Article 125 of the Constitution.

109. The first paragraph of Article 135 of the Constitution determines that state

prosecutors file and present criminal charges and have other powers provided by law. In accordance with the second paragraph of Article 135 of the Constitution, the organisation and powers of the state prosecutors' offices are provided by law. Article 136 of the Constitution determines that the office of state prosecutor is not compatible with office in other state bodies, in local self-government bodies, and in bodies of political parties, as well as with other offices and activities provided by law. The Constitution thus explicitly determines only the fundamental function of state prosecutors (i.e. the prosecution of criminal offenders) and the incompatibility of their office, whereas the other powers of state prosecutors are determined by the legislature, which must also regulate the organisation and powers of the state prosecutors' offices (which only refers to the regulation of the position of state prosecutors' offices as state authorities, and not also to the position of individual state prosecutors).

110. In view of the above-mentioned, it cannot be concluded that as regards the

requirement of the independence of state prosecutors, the Constitution ensures the same guarantees as follow from Article 125 of the Constitution for judges.

111. This does not entail that in the Slovene constitutional order a state prosecutors'

office is regarded as an authority that can be made subordinate to the executive branch of power. State prosecutors decide only on the basis of the Constitution and laws (the second paragraph of Article 1 of the SPA). Therefore, it must be ensured that state prosecutors perform their prosecutorial function independently and it must be prevented that they decide in accordance with the wishes of the other

branches of power, especially the executive. 39 The Constitutional Court has already adopted the standpoint that the state prosecutors' offices are authorities with such specific functions that they cannot be considered as being within any of the three branches of power. They are a part of the judiciary in the broader

sense, 40 within which judicial power is performed only by judges (Constitutional Court Decision No. U-I-307/94, dated 14 May 1998, Official Gazette RS, No. 42/98 and OdlUS VII, 84). A reason for the different regulation of the constitutional positions of judges and state prosecutors as regards the protection of their independence in terms of substance can be found precisely in the above-mentioned authoritative function of judges as bearers of the third branch of power. As follows from paragraph 54 and the subsequent paragraphs above, the constitutional principle of the independence of judges is namely based on the principle of the separation of powers into the legislative, executive, and judicial branches of power (the second paragraph of Article 3 of the Constitution). The essence of this principle lies in its fundamental function of protecting individuals in relation to the state, whereby the key role is played (considering its powers) by the independent judiciary.

The Review of the Constitutionality of Individual Provisions On Regulating State Prosecutors' Salaries by Regulations that are Lower than Laws in the Legal Hierarchy

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112. The petitioners oppose the regulation of state prosecutors' salaries by regulations

that are lower than laws in the legal hierarchy (e.g. ordinances, the collective agreement for the public sector, and Government decrees). With reference to such, they challenge various provisions of the SPA, the JSA, the SSPSA, and the OOS. They allege the inconsistency with Articles 2, 87, 135, and 136, and with the third paragraph of Article 153 of the Constitution.

113. With reference to the regulation of the state prosecutors' salaries, attention must

be drawn to the relation between the challenged provisions of the SPA and the JSA. Certain provisions of the JSA regulating judges' salaries namely also apply to state prosecutors on the basis of the first and second paragraphs of Article 28 and

the first paragraph of Article 30 of the SPA. 41 Therefore, the Constitutional Court reviewed the challenged provisions of the first and second paragraphs of Article 45 (placing offices into salary brackets by an ordinance), the second paragraph of Article 44, the first paragraph of Article 49, the first paragraph of Article 49b, the first paragraph of Article 49c, the first paragraph of Article 49č, the second and third paragraphs of Article 50 (determining that the regulation of additional payments and a supplemental payment for work performance be provided for in the collective agreement), and the second paragraph of Article 50a of the JSA (determining that the regulation of a supplemental payment for additional work performance be provided for in a decree) in connection with the relevant provisions of the SPA. The Constitutional Court separately reviewed the second, third, and fourth paragraphs of Article 30 of the SPA. The second paragraph of Article 30 of the SPA regarding mutatis mutandis application of the JSA with reference to deciding on the remuneration for holding office namely does not determine that any of the challenged provisions of the JSA be applied. The same applies for the third paragraph of Article 30 of the SPA, which, taking into consideration the fourth paragraph of Article 30 of the SPA, only determines that the first paragraph of Article 51 of the JSA be applied, which, however, is not challenged. Finally, the fourth paragraph of Article 30 of the SPA is a special provision regarding state prosecutors.

On Regulating State Prosecutors' Salaries by a National Assembly Ordinance

114. The petitioners allege that the legislature leaves the regulation of state prosecutors' salaries to an ordinance, which is inconsistent with the Constitution. With reference to such, they challenge the first and second paragraphs of Article 28 and the first paragraph of Article 30 of the SPA in conjunction with the first and second paragraphs of Article 45 of the JSA, as well as the second paragraph of Article 10 and the sixth paragraph of Article 49a of the SSPSA, Articles 1, 2, 3, and 7 (A4), and the fifth, seventh, and eighth paragraphs of Article 9 of the OOS, inasmuch as they refer to state prosecutors.

115. The allegations that Articles 2 and 3 as well as the eighth paragraph of Article 9

of the OOS are unconstitutional, as it is allegedly an instance of the regulation of the salary position of state prosecutors by an executive regulation, are not

substantiated. The eighth paragraph of Article 9 of the OOS 42 merely entails the contents of the statutory provision of the fourth paragraph of Article 49a of the

SSPSA 43 expressed in a concretely determined amount. The same applies for

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Article 3 of the OOS, concerning the salary groups and salary subgroups of offices in state authorities and local communities, which merely entails a restatement of the contents of Article 7 of the SSPSA. Article 2 of the OOS merely determines that salary brackets and therewith basic salaries for individual offices are determined by Annex 1 and Annex 2 to the SSPSA. It must be reviewed, however, whether the statutory regulation which determines that a National Assembly ordinance be applied for the placement of individual state prosecutors' positions into salary brackets and partly also for the regulation of the readjustment of state prosecutors' salaries, and the provisions of the OOS issued on such basis, are consistent with the Constitution.

116. On the basis of the first and second paragraphs of Article 28 and the first

paragraph of Article 30 of the SPA, the first and second paragraphs of Article 45 of the JSA are applied also for state prosecutors. Pursuant to this statutory provision, upon their appointment, state prosecutors are placed into a salary bracket in accordance with the ordinance which regulates officials' salaries. As already established in paragraph 67 above, the SSPSA determines the amount of the basic salaries for individual salary brackets (Annex 1 to the SSPSA) and the lowest and highest salary brackets in individual salary subgroups for officials (Annex 2 to the SSPSA), whereas the concrete placement of individual offices into salary brackets is left to the OOS (the second paragraph of Article 10 of the SSPSA). On the basis of the statutory regulation it can thus be established that state prosecutors' positions which are placed into salary subgroup A4 (Article 7 of the SSPSA) can be placed into salary brackets from 37 through 65 (Annex 1) by an ordinance, whereas the concrete placement of individual positions into salary brackets is determined by the OOS (Article 7 – A4).

117. On the basis of the sixth paragraph of Article 49a of the SSPSA, the

readjustment of state prosecutors' salaries is regulated by an ordinance. Regardless of the above-mentioned, the fourth paragraph of the above-cited statutory provision determines the basis which is considered upon the readjustment of the nominal values of basic salaries into officials' salaries in accordance with the SSPSA. The third paragraph of Article 49a of the SSPSA determines that the nominal value of the basic salary of officials, which is a basis for the readjustment of salaries, is determined in a manner such that the sum of the coefficient which the officials attained by promotion with regard to employment position or title, and the additional payments determined in Article 49b of the same act is multiplied by the value of the basis for the calculation of salaries. Additional payments for state prosecutors are determined by the first and fifth paragraphs of Article 9 of the OOS. The OOS also regulates the placement of the nominal values of state prosecutors' salaries into salary brackets in accordance with the SSPSA (the seventh paragraph

of Article 9). 44 118. The petitioners allege that the legislature acted contrary to Article 87 of the

Constitution because it left the regulation of state prosecutors' salaries to the OOS. This provision determines that the National Assembly may determine the rights and obligations of citizens and other persons only by laws. However, this does not entail that the legislature must regulate all details concerning these rights by laws. The legislature may leave a more detailed regulation of the rights and obligations of individuals to ordinances, whereby it must in advance regulate the foundations of

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the subject which should be the subject of the regulation and determine the framework and guidelines for its more detailed executive regulation so that legal subjects are aware of their position or can anticipate such already on the basis of

the law. 45 In the case at issue, these guidelines were respected. As the SSPSA determines the amount of the basic salaries for individual salary brackets (Annex 1) and the lowest and highest salary brackets in individual salary subgroups for officials (Annex 2), it namely provides a sufficient basis for a more detailed regulation of state prosecutors' basic salaries by the OOS. The sixth paragraph of Article 49a of the SSPSA is the statutory basis for the regulation of the readjustment of state prosecutors' salaries by the OOS, whereby the SSPSA itself also provides for criteria for determining the nominal values of basic salaries, which is the basis for the readjustment of salaries (i.e. a salary basis, coefficient, additional payments). Therefore, the challenged regulation is not inconsistent with Article 87 of the Constitution. For the same reasons it is also not inconsistent with the principle of legality as one of the principles of a state governed by the rule of law determined in Article 2 of the Constitution.

119. Furthermore, the petitioners reference to the third paragraph of Article 153 of the

Constitution is not relevant. Pursuant to this constitutional provision, executive regulations must be in conformity with the Constitution and laws. In cases in which the Constitutional Court reviews the consistency of an executive regulation with the law which served as a basis for the executive regulation to determine a more detailed manner of the implementation of individual rights or obligations, it most of all reviews whether the executive regulation specifies the statutory provision within the framework which is admissible for such a legal act. In view of the above-mentioned statutory regulation, it cannot be claimed that the regulation of state prosecutors' salaries by the OOS falls outside the scope of the statutory regulation.

120. Allegations concerning the inconsistency of the challenged provisions with

Articles 135 and 136 of the Constitution are not substantiated for the same reasons as presented in paragraphs 109 and 110 above.

121. With reference to the petitioners' allegation that the challenged regulation is

inconsistent with the Constitution also due to the fact that it is not determined in a law what the legislature used as a basis for the placement of individual offices into salary brackets, the Constitutional Court refers to paragraph 79 above. With reference to the RPNA-1, the petitioners' allegation that by an ordinance the National Assembly may regulate only the organisation and work of the National Assembly and the rights and obligations of National Assembly deputies, is not substantiated. Even if the provisions of the RPNA-1, which regulate what the contents of an ordinance may be, could be interpreted in the same manner as are understood by the petitioners, this does not entail that the legislature could not determine by a law that the ordinance may also regulate other issues, considering the criteria stated in paragraph 118 above.

122. As regards the above-mentioned, the first and second paragraphs of Article 28

and the first paragraph of Article 30 of the SPA in conjunction with the first and second paragraphs of Article 45 of the JSA, as well as the second paragraph of Article 10 and the sixth paragraph of Article 49a of the SSPSA, and Articles 1, 7

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(A4), and the fifth and seventh paragraphs of Article 9 of the OOS, inasmuch as they refer to state prosecutors, are not inconsistent with the Constitution.

On Regulating State Prosecutors' Salaries by the Collective Agreement for the

Public Sector

123. The petitioners challenge the statutory provisions which determine that payments that are additional to state prosecutors' salaries and the criteria for the supplemental part of the salary for the work performance of state prosecutors be regulated by the collective agreement for the public sector. The challenged provisions are: the first and second paragraphs of Article 28 and the first paragraph of Article 30 of the SPA in conjunction with the second paragraph of Article 44, the first paragraph of Article 49, the first paragraph of Article 49b, the first paragraph of Article 49c, the first paragraph of Article 49č, and the second and third paragraphs of Article 50 of the JSA as well as the introductory provision of Article 26 of the SPA-C.

124. Determining that state prosecutors' salaries be regulated by the collective

agreement for the public sector is inconsistent with the principles of a state governed by the rule of law determined in Article 2 of the Constitution. Due to the fact that state prosecutors do not participate in the process of negotiating the collective agreement, which entails that their interests are not represented, the legislature should not, for this fact alone, leave the regulation of state prosecutors' salaries to the collective agreement. Therefore, the challenged provisions of the first and second paragraphs of Article 28 and the first paragraph of Article 30 of the SPA in conjunction with the second paragraph of Article 44, the first paragraph of Article 49, the first paragraph of Article 49b, the first paragraph of Article 49c, the first paragraph of Article 49č and the second and third paragraphs of Article 50 of the JSA, and the introductory provision of Article 26 of the SPA-C are inconsistent with Article 2 of the Constitution.

On Regulating State Prosecutors' Salaries by a Government Decree

125. The petitioners also challenge the fourth paragraph of Article 30 of the SPA, as it leaves the regulation of issues that refer to the regulation of state prosecutors' salaries to a Government decree. With reference to such, they also challenge the second paragraph of Article 51 of the JSA, which is, however, not applied for state prosecutors. The fourth paragraph of Article 30 of the SPA and the second paragraph of Article 51 of the JSA are namely the same, whereby only the special provision of the fourth paragraph of Article 30 of the SPA applies for state prosecutors.

126. The fourth paragraph of Article 30 of the SPA determines that the Government

determine the conditions, criteria, and scope of payments for an increased workload or an additional workload for individual state prosecutors or assistants to state prosecutors. The statutory authorisation contained in the fourth paragraph of Article 30 of the SPA is a bare authorisation. The legislature namely left it to the Government to independently regulate the entire issue of remuneration for an increased workload without determining any criteria for such. In addition, the legislature also did not determine a framework which would limit the Government in

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regulating this field. Such authorisation given to the Government is inconsistent with the second paragraph of Article 120 of the Constitution. Pursuant to the aforementioned constitutional provision, administrative bodies perform their work, thus also issue regulations, within the framework and on the basis of the Constitution and laws and do not have the power to issue regulations without a substantive basis in the law. It follows from the aforementioned constitutional provision that when it authorises the executive branch of power to issue executive regulations, the legislature must beforehand regulate the foundations of the subject which should be the subject of the regulation and determine the framework and guidelines for its more detailed executive regulation (see, Constitutional Court Decision No. U-I-73/94, dated 25 May 1995, Official Gazette RS, No. 37/95 and OdlUS V, 51). Statutory provisions may not contain authorisations on the basis of which executive regulations regulate subjects (i.e. contents) for which there is no basis in law, and they especially may not allow that executive regulations independently regulate rights and obligations. This is precisely the content of the fourth paragraph of Article 30 of the SPA, and no other provision of the SPA contains a substantive basis for such executive regulation. The SPA namely does not contain substantive provisions regarding an increased workload which would entail a normative framework and a substantive basis for issuing the executive regulations envisaged in the fourth paragraph of Article 30 of the SPA. Therefore, the fourth paragraph of Article 30 of the SPA is inconsistent with the principle of legality determined in the second paragraph of Article 120 of the Constitution.

127. Also the petitioners' allegation concerning the unconstitutionality of the first and

second paragraphs of Article 28 and the first paragraph of Article 30 of the SPA in conjunction with the second paragraph of Article 50a of the JSA is substantiated. Due to the fact that the SPA does not contain special provisions regulating the right to the part of the salary for additional work performance, whereas the first paragraph of Article 30c envisages that state prosecutors be remunerated for such, thus Article 50c of the JSA must also be applied for state prosecutors. In accordance with the second paragraph of Article 50a of the JSA, with regard to the payment of this part of the salary, the SSPSA and an executive regulation which is adopted by the Government apply, mutatis mutandis. The SSPSA does not regulate such criteria, which entails that determining such is left entirely to the Government. However, such regulation is inconsistent with the second paragraph of Article 120 of the Constitution.

128. With reference to the above-mentioned, the first and second paragraphs of

Article 28 and the first paragraph of Article 30 of the SPA in conjunction with the second paragraph of Article 50a of the JSA and the fourth paragraph of Article 30 of the SPA are inconsistent with the second paragraph of Article 120 of the Constitution.

A Reduction in State Prosecutors' Salaries

129. Sate prosecutors also challenge provisions which refer to a reduction in their

salaries. With reference to this, they allege that the first paragraph of Article 49 of the SSPSA is unconstitutional as it ensures protection against a reduction in salaries only to civil servants and not also to officials. Such allegations are not substantiated for the same reasons, as the Constitutional Court stated in paragraph

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92 above with reference to the tenth paragraph of Article 52 of the SSPSA, which was challenged by the judges.

130. The Constitutional Court separately reviewed the petitioners' allegations

concerning the unconstitutionality of provisions regulating the reduction of the bonus for years of service and the provision on the basis of which the basic salaries of state prosecutors may be reduced due to placement into the closest lower salary bracket upon the readjustment of salaries (the seventh paragraph of Article 9 of the OOS).

131. On the basis of the new salary regulation, state prosecutors are entitled to a

bonus for years of service in the amount of 0.3% of the basic salary for each concluded year of service (the first indent of the first paragraph of Article 26 of the SPA-C), whereas previously they had been entitled to such a bonus in the same amount as judges on the basis of the first and second paragraphs of Article 28 and Article 30 of the State Prosecutors' Office Act (Official Gazette RS, No. 14/03 – official consolidated text – hereinafter referred to as the SPA-OCT1) in conjunction with the third paragraph of Article 46 of the JSA-OCT1 (see paragraph 93 above). Just as for judges, also for state prosecutors the reduction in their salaries can be based on the seventh paragraph of Article 9 of the OOS in accordance with which the readjusted nominal value of the basic salary of officials is placed into the closest salary bracket from the salary scale determined in Annex 1 to the SSPSA, which can also entail that they are placed into a lower salary bracket.

132. The reduction of state prosecutors' salaries is allegedly inconsistent with Article

2, the second paragraph of Article 14, Article 50, Article 136 and the second paragraph of Article 155 of the Constitution.

133. The allegation concerning the inconsistency of the challenged regulation with

Article 136 of the Constitution is not substantiated. Merely the fact that the principle of the incompatibility of the office of state prosecutor with other offices and activities follows from Article 136 of the Constitution does not alone entail that every reduction in state prosecutors' salaries is inconsistent with the Constitution. It does indeed follow from this principle that state prosecutors' salaries must be appropriate, it does not, however, protect them from any reduction in their salaries.

134. In addition, also the petitioners' allegation that the reduction in the bonus for

years of service is inconsistent with the principle of equality provided for in the second paragraph of Article 14 of the Constitution, due to the fact that the bonus for years of service is for the present being reduced only regarding officials, and not also civil servants, is not substantiated. The same applies also to the allegation of

the petitioner Hinko Jenull that Articles 12 and 13 of the SSPSA-E, 46 are unconstitutional as they do not envisage simultaneous implementation of a new salary regulation also for civil servants. As follows from paragraph 92 above, due to the different legal status of officials and civil servants, it is in principle constitutionally admissible to regulate their salaries differently. In addition, the preliminary implementation of the salary reform for officials could not in and of itself entail a violation of this article. The petitioners reference to the fact that they are paid a lower percentage of a bonus than civil servants is not relevant. In its opinion the Government namely explained that the basis on which the bonus for years of

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service is (still) calculated for civil servants’ salaries is lower than the basis for officials. Therefore, there is no de facto inequality due to the fact that a lower basis for the calculation of this bonus is determined for officials.

135. In addition, the allegation that the right to social security provided for in the first

paragraph of Article 50 of the Constitution is violated is not substantiated. A reduction in the bonus for years of service and consequently a reduction in social insurance contributions in and of itself does not entail an interference with this constitutional right.

136. The reference to Article 155 of the Constitution is not relevant. This constitutional

provision prohibits the retroactive effect of legal acts. In compliance with the established constitutional case-law, a regulation has retroactive effect when the beginning of its application is determined to be some time before the moment of its implementation. Such is not the case in the case at issue. The challenged provisions entered into force on 18 February 2006, the envisaged beginning of their application was determined to be 1 March 2006 (Article 32 of the SPA-C). A reduction in the bonus for years of service is thus determined only for the time after the implementation of the act, which entails that it did not have retroactive effect. The fact that the right to the bonus for years of service depends on the number of years of service which naturally must have occurred also prior to the implementation of the disputable statutory regulation cannot influence such conclusion.

137. Protection against statutory interferences with individuals' rights ex nunc is

guaranteed by the principle of trust in the law as one of the principles of a state governed by the rule of law provided for in Article 2 of the Constitution. This principle ensures individuals that the state will not worsen their legal position arbitrarily, i.e. without a sound reason that is justified in the prevailing public

interest. 47 From the viewpoint of the criteria for a review of the admissibility of such an interference, the protection is undoubtedly less strict than in the case of Article 125 of the Constitution. From the viewpoint of Article 125 of the Constitution, a reduction can only be justified in exceptional cases, whereas for the admissibility of the interference with the principle of trust in the law, it suffices for the reduction that there exist reasons substantiated in the prevailing public interest.

138. As explained in paragraph 95 above, a bonus for years of service is not a

constitutional category, therefore also its reduction or even possible abolishment is, in and of itself, not disputable from a constitutional point of view. A reduction in the bonus is one of the measures within the framework of a comprehensive salary reform by which the salaries of the employees in the public sector are determined entirely anew. The legislature's decision to reduce this bonus and thereby change the relative influence of the number of years of service on the amount of officials' salaries is a matter of the legislature's discretion. However, as such concerns a transition from one salary system to another, in the event that the position of individual categories of employees is worsened, Article 2 of the Constitution must be respected, from which follows the requirement that individuals who are affected by the challenged change must be given the opportunity to gradually adapt to the new regulation. With reference to such, it must be taken into consideration that an immediate reduction in the bonus for years of service could cause a substantial

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reduction in the salaries of the older state prosecutors and especially female state prosecutors, which could also influence their social position. The protection against such a reduction does not entail the protection of the attained amount of salary from the bonus for years of service on the day of the implementation of the new salary system, it does, however, require a gradual reduction in the salaries of state prosecutors, who upon their appointment to office could justifiably expect a salary in the amount to which they were entitled upon the calculation of a bonus in the amount of 0.5% of their basic salary. Therefore, inasmuch as it refers to state prosecutors who were appointed to office prior to the application of the new salary regulation, the first indent of Article 26 of the SPA-C is inconsistent with Article 2 of the Constitution, as it does not envisage a gradual reduction of their salaries. As already stated in paragraph 95 above, such protection must be ensured to affected individuals only inasmuch as their salaries would not be increased for some other reason which would entail a fixed part of their salary, and which could compensate for the reduction in salaries related to the bonus for years of service. In such a case it is not necessary to ensure a gradual transition to the new regulation which should ensure time for individuals to prepare for such regulation. Naturally such compensation is not applicable in cases of an increase in salaries because of various additional salary payments which judges are entitled to because they perform certain tasks (e.g. an additional payment for mentorship, and position-based additional payment) or because they carry out tasks in certain circumstances or under certain conditions (e.g. additional payments for working in less favourable working conditions or at a less favourable working time) as well as in cases of supplemental payments to judges for work performance.

139. Furthermore, the seventh paragraph of Article 9 of the OOS is inconsistent with

Article 2 of the Constitution, inasmuch as it refers to state prosecutors who were appointed to office prior to the beginning of the application of the new salary regulations and inasmuch as it can cause a factual reduction in their salaries. Reasons for such temporary reduction in salaries are not demonstrated. The Government refers to the circumstance that the readjustment of salaries to only the higher salary bracket is not possible as such would – considering the fact that the same regulation should apply also to civil servants – require an additional 20 million SIT. As explained in paragraph 98 above, the Government does not allege that what would not be acceptable from the viewpoint of public finance is a solution according to which officials whose salaries would be merely temporarily reduced upon the readjustment of salaries are paid at least the same amount of salaries as before the readjustment of salaries until the amounts of basic salaries in accordance with the old and new regulations are equal. Inasmuch as challenging the seventh paragraph of Article 9 of the OOS entails allegations concerning an inconsistency with the principle of the equality before the law provided for in the second paragraph of Article 14 of the Constitution because placement into the closest salary bracket for certain state prosecutors entails placement into a lower and for others into a higher salary bracket, which for the latter entails a permanently more favourable position, such allegations are not substantiated. State prosecutors were namely placed into different salary brackets already within the framework of the former salary system. With the salary system reform the legislature did not interfere with the relations between state prosecutors placed into the same salary bracket. Possible different relations between the salary brackets of officials in accordance with the new regulation are a consequence of the different salary

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system itself and of the placement of officials into new salary brackets. It is namely understandable that the new salary system cannot be exactly the same as the former salary system, as otherwise we could not speak of a reform of the system.

140. As regards the above-mentioned, the first indent of Article 26 of the SPA-C,

inasmuch as it refers to state prosecutors who were appointed to office prior to the implementation of the new salary regulations, is inconsistent with Article 2 of the Constitution. The same applies to Article 9 of the SSPSA-E, inasmuch as it refers to this group of state prosecutors. In addition, the seventh paragraph of Article 9 of the OOS is inconsistent with Article 2 of the Constitution, inasmuch as it allows a temporary reduction in state prosecutors' salaries upon the readjustment of the salaries.

The Placement of State Prosecutors into Salary Brackets in the Transitional Period

141. Also state prosecutors allege that the challenged regulation is inconsistent with the second paragraph of Article 14 of the Constitution, as the state prosecutors who will be appointed to the office of state prosecutor for the first time in the transitional period will immediately be placed into higher salary brackets, whereas state prosecutors who were appointed to office prior to the implementation of the new salary system will be paid salaries in the above-stated amount in its entirety only at the end of 2009. The Constitutional Court has already established that the first paragraph of Article 10 of the SSPSA-E, inasmuch as it refers to judges, is not clear and as such inconsistent with Article 2 of the Constitution (paragraph 105 above). The same also applies for state prosecutors, therefore, the Constitutional Court refers to the reasoning contained in paragraph 104 above.

The Review of the First and Second Paragraphs of Article 25 of the SPA-C

142. The petitioners also allege that the challenged regulation is not clear. The allegations that the first and second paragraphs of Article 25 of the SPA-C are not clear are substantiated. In accordance with the first paragraph of Article 25, state prosecutors are placed into salary brackets in accordance with the SPA and the SSPSA in a manner such that the value of the salary bracket in which they are placed corresponds to their basic salary, which includes the attained coefficient of the salary bracket and an extra payment to compensate for the incompatibility of their office; in the case of the State Prosecutor General, Deputy State Prosecutor General, and the heads and deputy heads of state prosecutors’ offices it also includes an extra payment to compensate for a management position. In accordance with the second paragraph of Article 25 of the SPA-C, deputy state prosecutors are placed into salary brackets in a manner such that the value of the salary bracket in which they are placed corresponds to their basic salary, which includes the attained coefficient of the salary bracket. These provisions are in their substance the same as is the provision of the first paragraph of Article 36 of the JSA-F. Therefore, for the same reasons as stated in paragraph 107 above, also the first and second paragraphs of Article 25 of the SPA-C are unclear and therefore inconsistent with Article 2 of the Constitution.

B. - IV.

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The Consideration of the State Attorneys' Petitions

On Regulating State Attorneys' Salaries by Regulations that are Lower than Laws in the Legal Hierarchy

143. The petitioner Branka Cizel - Varšek challenges the first paragraph of Article 44

of the SAA and Article 7 of the OOS. The allegations raised by the petitioner that on the basis of these provisions she was deprived of her rights to promotion, are not substantiated and therefore the Constitutional Court could not review them. The Constitutional Court did, however, review the challenged provisions from the viewpoint of the petitioner's allegations concerning the unconstitutionality of the regulation of state attorneys' salaries by the OOS.

144. The first paragraph of Article 44 of the SAA determines that the State Attorney General and Deputy State Attorney General are placed upon appointment into a salary bracket determined by the ordinance on the officials' salaries. Article 7 (A4) of the OOS regulates, inter alia, also the placement of individual offices of state attorneys into salary brackets. The challenged provisions are not inconsistent with the Constitution. The SSPSA namely entails a sufficient basis for a more detailed regulation of the basic salaries of state attorneys with the OOS (compare paragraph 119 above). Inasmuch as the petitioner alleges that Article 7 of the OOS is unlawful, such allegation is not substantiated.

Reducing the Bonus for Years of Service

145. State attorneys also challenge the first indent of Article 35 of the SAA-A and

Article 9 of the SSPSA-E, inasmuch as they entail the basis for reducing the bonus for years of service of state attorneys. They allege that the challenged provisions are inconsistent with Article 2, the second paragraph of Article 14, and Article 50 of the Constitution.

146. On the basis of the new salary regulation, state attorneys are entitled to a bonus for years of service in the amount of 0.3% of the basic salary for each concluded year of service (the first indent of Article 35 of the SAA-A), whereas in accordance with Article 45 of the former SSA (Official Gazette RS, No. 20/97), they were entitled to this bonus in the same amount as judges (see paragraph 93 above).

147. As regards the allegation concerning the inconsistency of the challenged

regulation with the second paragraph of Article 14 of the Constitution and the first paragraph of Article 50 of the Constitution, everything that the Constitutional Court established when reviewing the state prosecutors' petitions in paragraphs 134 and 135 above applies. The allegations that the first indent of Article 35 of the SAA-A and Article 9 of the SSPSA-E are inconsistent with Article 2 of the Constitution are, inasmuch as these two provisions refer to state attorneys who were appointed to office prior to the beginning of the implementation of the new salary regulation, are substantiated for the same reasons as follows from paragraphs 138 and 139 above.

The Readjustment of the Salary of the Deputy State Attorney General

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148. The petitioner Branka Cizel - Varšek also disagrees with the manner of determining the nominal value of the basic salary, which entails the basis for the readjustment of the salary of the deputy state attorney into a salary bracket according to the new regulations. With reference to such, she challenges the fifth paragraph of Article 9 of the OOS. She alleges that the challenged provision is inconsistent with the second paragraph of Article 14 of the Constitution. She alleges that upon the readjustment of the nominal value of the basic salary of the deputy state attorney, an extra payment to compensate for a management position is not considered, whereas in the cases of presidents and vice presidents of the courts as well as heads and deputy heads of state prosecutors’ offices, such extra payment is allegedly considered. The petitioner's allegations are substantiated. The nominal value of the basic salary of management positions in the judiciary and at state prosecutors’ offices, with which the petitioner justifiably compares herself, was in fact readjusted by the legislature in a manner such that already upon the readjustment itself it considered an extra payment to compensate for a management position and placed the management position into a separate salary bracket (the fourth and fifth paragraphs of Article 9 of the OOS). The legislature placed the office of Deputy State Attorney General into a separate salary bracket. However, upon the readjustment the legislature did not consider an extra payment to compensate for a management position, which was a constituent part of the salary of a Deputy State Attorney General. No sound reasons can be found for such differentiation. The reasons are not stated in the legislative materials to the draft SAA-A, neither did the National Assembly reply to the petition. As regards the above-mentioned, the fifth paragraph of Article 9 of the OOS, inasmuch as it refers to the office of Deputy State Attorney General, is inconsistent with the second paragraph of Article 14 of the Constitution.

B. - V.

The Decision of the Constitutional Court regarding the Provisions Reviewed in

Sections B. - II. and B. - IV. of the Reasoning of this Decision (Paragraphs 1 to 4 of

the Operative Provisions)

149. The Constitutional Court may in whole or in part abrogate a law which is not in conformity with the Constitution (Article 43 of the CCA). The Constitutional Court annuls or abrogates regulations or general acts issued for the exercise of public authority that are unconstitutional or unlawful (the first paragraph of Article 45 of the CCA). If the Constitutional Court deems a law, other regulation, or general act issued for the exercise of public authority unconstitutional or unlawful as it does not regulate a certain issue which it should regulate or it regulates such in a manner which does not enable annulment or abrogation, a declaratory decision is adopted on such (the first paragraph of Article 48 of the CCA).

150. In the case at issue, some of the provisions that the Constitutional Court established are inconsistent with the Constitution are of such nature that they could be abrogated. However, due to the fact that some provisions could not be abrogated, and the fact that the challenged regulations are mutually connected and refer to each other, the Constitutional Court issued a declaratory decision regarding all the established inconsistencies with the Constitution (paragraph 1 of the operative provisions).

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151. As regards the fact that the Constitutional Court decided by a declaratory

decision and that the decision of the Constitutional Court abrogated Order No. U-I-60/06, dated 9 March 2006, by which the implementation of the provisions of the new salary regulations were suspended, after issuing the decision of the Constitutional Court, the new salary regulation should begin to apply including the provisions that the Constitutional Court established are inconsistent with the Constitution. In order to prevent this, the Constitutional Court determined the manner of the implementation of its decision on the basis of the second paragraph of Article 40 of the CCA. It determined that until the unconstitutionality established by this decision is remedied, officials' salaries, except for officials' salaries in local communities, are to be calculated and paid in accordance with the regulations on the basis of which they were calculated and paid until 1 March 2006, as well as on the basis of individual decisions issued on the basis of such regulations (paragraph 3 of the operative provisions). Although the Constitutional Court reviewed the challenged regulation only from the viewpoint of the positions of the petitioners, it nevertheless could not limit itself to only this in determining the manner of the implementation of the decision. Calculating and paying salaries on the basis of the former regulation to only the petitioners could cause inequalities between individual categories of officials; in addition, certain established inconsistencies of the challenged regulation with the Constitution are of such nature that they could also refer to officials who did not file petitions. By extending the period of the application of the former salary regulations, the Constitutional Court enabled the legislature to remedy with a new regulation also the possible inconsistencies with the Constitution which refer to the regulation of the salaries of the other officials by taking into consideration the reasons stated in this decision. The Constitutional Court decided on this manner of implementation regardless of the fact that for certain officials for whom the application of the new salary system would entail an increase in their salaries, these salaries will in fact not increase. The Constitutional Court did not decide on a different solution which would enable the implementation of the new salary system and at the same time protect the position of those officials whose salaries could not be (immediately) reduced in accordance with this decision, because the Constitutional Court could not predict the financial consequences that such would have for the national budget.

152. The manner of implementation does not apply to officials in local communities. With reference to such, the Constitutional Court took into consideration that the regulation of their salaries does not interfere with the salary relations between the officials of individual branches of state power and does not directly burden the national budget of the Republic of Slovenia.

153. As the legislative procedure will have to be carried out in order to remedy the

established inconsistencies with the Constitution, the Constitutional Court determined that the established inconsistencies must be remedied within a period of one year (paragraph 2 of the operative provisions).

B. - VI.

The Petitions Dismissed (Paragraph 5 of the Operative Provisions)

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The Judges' Petitions The Promotion of Supreme Court Judges to Higher Salary Brackets

154. One of the petitioners also challenges Article 26 and the third paragraph of Article 46 of the JSA, as allegedly she, as a Supreme Court judge, was prevented from being promoted to a higher salary bracket, which allegedly interfered with her acquired right to regular promotion to a salary bracket with a coefficient of 3.72, which she was allegedly guaranteed by the former regulation.

155. The possibility of the promotion of Supreme Court judges to higher salary brackets is explicitly excluded by the third paragraph of Article 46 of the JSA. Article 26 of the JSA, which regulates the promotion of local court, district court, and higher court judges to higher salary brackets, thus does not apply to the promotion of Supreme Court judges to higher salary brackets.

156. The petitioner's allegations regarding the unconstitutionality of the third

paragraph of Article 46 of the JSA due to the changed position of Supreme Court judges regarding the possibility of their promotion to higher salary brackets could be relevant from the viewpoint of the consistency of such regulation with Article 2 of the Constitution. Namely, this constitutional provision to a certain extent also ensures protection from interferences with legitimate expectations.

157. The Supreme Court judges (including the petitioner) who prior to the

implementation of the new salary regulation were placed into the salary bracket with a coefficient of 3.43, could, taking into consideration Article 26 and the first paragraph of Article 47 of the JSA-OCT1, legitimately expect to be placed into the salary bracket with a coefficient of 3.72 upon their next promotion. According to the new regulation, the difference between these salary brackets is two salary brackets. Namely, the salary bracket with a coefficient of 3.43 was to be readjusted to the 51

st salary bracket, whereas the salary bracket with a coefficient of 3.72 was

to be readjusted to the 53rd salary bracket. For the decision at issue, what must be determined is whether Supreme Court judges can attain the 53

rd salary bracket

also in accordance with the new regulation. In accordance with Article 6 of the OOS, the office of Supreme Court judge is placed into the 55

th salary bracket. The

new regulation thus allows Supreme Court judges to be placed into an even higher salary bracket than the petitioner could have attained with the expected promotion in accordance with the former regulation. However, it is true that (as regards the first paragraph of Article 10 of the SSPSA-E on the gradual remedy of disparities with regard to the basic salaries of officials) Supreme Court judges will be able to reach the 53

rd salary bracket in (and not before) December 2007. In view of the fact

that the petitioner could be promoted already before the above-mentioned date, the challenged regulation perhaps indeed interferes with her legitimate expectations regarding a future increase in her salary, which could be a relevant allegation from the viewpoint of Article 2 of the Constitution. However, in view of the fact that such interference is only very temporary and that the petitioner did not demonstrate that thereby her salary position could be importantly affected, and taking into consideration that protection against interferences with legitimate expectations cannot be as intensive as protection against a factual reduction in salaries, the

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petitioner did not substantiate the unconstitutionality of the third paragraph of Article 46 of the JSA by means of the above-mentioned allegations.

The Promotion of Higher Court Judges to Higher Salary Brackets

158. The petitioners (i.e. higher court judges) allege that in accordance with the new regulation their legal position regarding promotion will worsen. They allege that all higher court judges who on the day of the application of the new salary system for judges were placed into lower salary brackets than the salary bracket with a coefficient of 3.47 (as the highest salary bracket for higher court judges in accordance with the former regulation) interferes with their legitimate expectations regarding promotion. They allege that in order to reach the highest salary bracket in accordance with the new regulation, higher court judges must be promoted several times, which entails that they will be able to reach the highest salary bracket only after many years. In addition, in accordance with the new regulation they will be able to be promoted to the position of a senior higher court judge only after 21 years of performing the office of higher court judge, whereas in accordance with the former regulation they could be promoted to such position after 9 years. In accordance with the new regulation, after three promotions they can allegedly only reach the 50

th salary bracket, whereas in accordance with the former regulation,

they were entitled to a coefficient of 3.47 after three promotions, which is readjusted to the 52

nd salary bracket. In their opinion, such entails a violation of the

principle of trust in the law. They also allege that they are in a less favourable position than higher court judges who on the day of the application of the new salary system for judges were already placed into salary bracket 3.47.

159. Before the challenged amendments were adopted four salary brackets were

envisaged for higher court judges, with coefficients of 2.89, 3.02, 3.14, and 3.47 respectively (the first paragraph of Article 47 in conjunction with the fifth paragraph of Article 44 of the JSA-OCT1). Judges who satisfied the conditions for promotion could be promoted to a higher salary bracket every three years (Article 26 of the JSA-OCT1). Higher court judges were able to reach the highest salary bracket envisaged for the office of higher court judge, which has been readjusted to the new 52

nd salary bracket, after three promotions, i.e. after nine years. Upon this third

promotion they also attained the position of senior higher court judge (the third paragraph of Article 27 of the JSA-OCT1). The former lowest coefficient for a higher court judge (2.89) has been readjusted in accordance with the new regulation to the 47

th salary bracket, a coefficient of 3.02 to the 48

th salary bracket,

a coefficient of 3.14 to the 49th salary bracket, and a coefficient of 3.47 to the 52

nd

salary bracket. Regular promotion to higher salary brackets is also now possible every three years (Article 26 of the JSA). Also in accordance with the new regulation, a higher court judge attains the position of a senior higher court judge upon the third promotion to a higher salary bracket at the same judicial position, and in exceptional cases even before that (the third paragraph of Article 27 in conjunction with the third indent of the third paragraph of Article 34b of the JSA). In accordance with the third paragraph of Article 34b of the JSA, a higher court judge who is promoted to the position of senior higher court judge is placed in the appropriate salary bracket of a senior higher court judge. The salary bracket of a senior higher court judge is not determined in the OOS. With reference to such, what must be applied is the fourth paragraph of Article 46 of the JSA, in

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accordance with which a senior judge, upon being promoted to the position of senior judge, is placed into one salary bracket higher than the highest salary bracket otherwise possible for a judge of the given court. Taking into consideration the second paragraph of Article 46 of the JSA, according to which higher court judges can be promoted by 6 salary brackets, senior higher court judges are thus placed into the 54

th salary bracket. This entails that a higher court judge will reach

the position of a senior higher court judge after the third promotion also in accordance with the new regulation, whereby they will even be placed into a higher salary bracket than in accordance with the former regulation.

The Protection of the Number of Placements or the Approximate Same Level

Attained within the Same Group of Judges upon the Readjustment of Salaries

160. The petitioners furthermore allege that the SSPSA and the OOS are unconstitutional as they allow that judges' salaries be reduced also by not determining that upon the placement of judges into new salary brackets, the already attained placement into salary brackets must be taken into consideration. In their opinion, upon their placement into salary brackets in accordance with the new regulation, judges should not be deprived of the number of placements attained in accordance with the former regulations, whereby a placement should be considered the placement of a judge into a salary bracket upon assuming judicial office and upon each promotion. Furthermore, a similar allegation is that upon the placement of higher court judges into new salary brackets, [higher court] judges should be ensured salary brackets at the approximately same level within the framework of the salary brackets of higher court judges as they were entitled to in accordance with the former regulation. Such allegations are not substantiated. Inasmuch as the readjustment of salaries into the new salary brackets can cause a reduction in the basic salary of judges, the Constitutional Court refers to its above-stated conclusions. The Constitution, however, does not guarantee judges the bare protection of the number of attained promotions or placements into the salary brackets of a certain level within the salary bracket group of judges of the same level.

An Extra Payment to Compensate for the Incompatibility of Office

161. Certain petitioners are of the opinion that the regulation of judges' salaries is inconsistent with Article 133 of the Constitution, as it does not determine an extra payment to compensate for the incompatibility of their office as a separate part of judges' salary. Such allegations are not substantiated. As already stated above, judges' salaries must be adequate in order to protect judges against pressures which could influence their deciding. In determining judges' salaries, the legislature must certainly also take into consideration the fact that judges are limited as regards earning additional income due to the requirement that their office is incompatible with certain activities. This does not entail, however, that an extra payment to compensate for the incompatibility of their office must be a separate element of judges' salary. It would be constitutionally disputable if the legislature determined judges' salaries in an amount so low that they evidently could not protect their independence, which, however, the petitioners do not allege. As regards the above-mentioned, the Constitutional Court dismissed the petition that the procedure be initiated for a review of the constitutionality of the first paragraph

55

of Article 44 of the JSA and the first and third paragraphs of Article 23 of the SSPSA.

The Fourth Paragraph of Article 24 of the JSA

162. One of the petitioners also challenges the fourth paragraph of Article 24 of the JSA. She alleges that it is inconsistent with Article 2, the second paragraph of Article 14, Articles 50, 125, and 129, and with the first paragraph of Article 153 of the Constitution. It is allegedly inconsistent with the Constitution that when judges' judicial service is in the process of being evaluated, deciding on promotion (until the termination of the evaluation process) is suspended only in cases of the promotion of judges to a higher salary (in accordance with the former regulation a payment bracket) bracket, and not also in cases of the promotion of judges to a higher judicial position. She alleges that on 11 May 2004 as a local court judge she submitted to the personnel council a proposal for the evaluation of her judicial service, and on 17 June 2004 she was appointed to the position of district court judge and placed into the 2.40 salary bracket, whereby it was not taken into consideration that the evaluation process was pending. She alleges that had she not been promoted to a higher judicial position she could have, upon fulfilling the conditions for a regular promotion on 28 June 2004, been promoted to the 2.56 salary bracket, as she fulfilled the conditions for a faster promotion. She is of the opinion that there are no reasons that upon promotion to a higher judicial position and upon the best evaluation of judicial service, a judge could not be placed two salary (in accordance with the former regulation payment brackets) brackets higher. In addition, she draws attention to the fact that judges who deserve promotion to a higher judicial position cannot submit the evaluation of judicial service which would enable them an even higher position, whereas if they had remained at the lower position they could do so.

163. It follows from the above-mentioned that the petitioner does not agree with the fact that because she was promoted to the position of a district court judge she could not simultaneously be regularly promoted to a higher salary bracket for which she allegedly fulfilled the conditions after three years had lapsed from her last promotion to a higher the salary bracket. She erroneously thinks that this is a consequence of the fourth paragraph of Article 24 the JSA. For the promotion of judges to a higher salary bracket if they have fulfilled the conditions for promotion to a higher judicial position within three years from the last promotion to a higher salary bracket, the interpretation of Article 26 of the JSA is essential, in accordance with which judges can be promoted to a higher salary bracket every three years (it is a question whether the period of three years is counted from the last promotion to a higher salary bracket or from the last placement into the salary bracket). This question, however, could be the subject of concrete judicial proceedings and the possible subject of constitutional complaint proceedings, but not the subject of a petition.

Considering the Element of Education in Determining Judges' Salaries

164. The allegations that Article 9 of the SSPSA is unconstitutional, which the petitioner substantiates by alleging the unequal position of judges in comparison with civil servants and other officials regarding the consideration of the element of

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education in determining basic salaries, are not substantiated. On the basis of Article 8 of the SSPSA, in accordance with which the basic salaries of civil servants are determined also on the basis of the placement of employment positions and titles in tariff classifications, it cannot be concluded that in determining judges' salaries the legislature is not obliged to also consider the element of education determined as a condition for assuming all judicial offices. Naturally this cannot entail that all judicial offices would be for this fact alone valued higher than certain other offices, with reference to which the element of education cannot be prescribed as a condition for assuming office (e.g. in the case of National Assembly deputies).

Other

165. The reasons for the dismissal of the allegations concerning the unconstitutionality of the third paragraph of Article 44 and Article 48 of the JSA and the fifth paragraph of Article 22 of the SSPSA are stated in paragraph 101 above, and the reasons for the dismissal of the allegations concerning the unconstitutionality of the tenth paragraph of Article 52 of the SSPSA in paragraph 92 above.

166. The allegations concerning the unconstitutionality of the third paragraph of Article 24, the second paragraph of Article 34b, the second paragraph of Article 46, and Article 53 of the JSA are not substantiated and therefore the Constitutional Court could not review them.

167. Inasmuch as the petition to initiate the procedure for the review of the

constitutionality of Article 49a of the JSA concerns different remuneration of judges who have a management position, the Constitutional Court has already addressed such (see paragraph 83 above), in the remaining part, the allegations concerning the unconstitutionality of this provision are not substantiated.

168. Also the petitions to initiate the procedure for the review of the constitutionality of

the first paragraph of Article 7 and Article 48 of the SSPSA, which the petitioners substantiate merely by referring to unequal treatment of judges in comparison with other officials are not substantiated.

169. The allegations concerning the unconstitutionality of Articles 49a and 49b of the

SSPSA, which the petitioners substantiate by alleging that in their case, upon the readjustment of their salaries, additional payments were not taken into consideration, are not substantiated. A petition can namely not be substantiated by referring to the possible erroneous interpretation of statutory provisions. In view of the above-mentioned, the Constitutional Court also dismissed the petition to initiate the procedure for the review of the constitutionality of Article 49a (except for the sixth paragraph of this provision, which the Constitutional Court reviewed separately) and Article 49b of the SSPSA.

170. Also the allegation concerning the inconsistency of the challenged regulation with

the second paragraph of Article 14 of the Constitution is not substantiated, as in accordance with the new regulation, allegedly only higher court judges will not be placed into higher salary brackets. In accordance with the new regulation, the higher salary brackets in the case of certain judicial offices are a consequence of

57

remedying salary disparities, which according to the legislature manifestly do not exist in the case of higher court judges.

The State Prosecutors' Petitions

171. The Constitutional Court has explained the reasons which indicate a manifest inconsistency in the state prosecutors' allegations concerning the unconstitutionality of Articles 2 and 3 and the eighth paragraph of Article 9 of the OOS above (paragraph 115 above). The same applies regarding the first paragraph of Article 49 of the SSPSA (paragraph 129 above) and Articles 12 and 13 of the SSPSA-E (see paragraph 134 above).

172. The petitioners furthermore challenge the first and second paragraphs of Article

28 and the first paragraph of Article 30 of the SPA in conjunction with the fourth paragraph of Article 44 of the JSA. They substantiate their petition merely by alleging that also on the basis of this provision their bonus for years of service is reduced, which is, however, not true. The basis for the reduction of this bonus for state prosecutors is the first indent of Article 26 of the SPA-C. This entails that they cannot substantiate the petition by the above-mentioned allegations.

173. The petitioners' allegation concerning the unconstitutionality of the first paragraph

of Article 49c of the SSPA is not substantiated, therefore, the Constitutional Court could not review such. The same applies for the allegations with reference to the second and third paragraphs of Article 30 of the SPA.

The State Attorney's Petition

174. The Constitutional Court dismissed the petition of Branka Cizel - Varšek that the

procedure be initiated for the review of the constitutionality of the fifth paragraph of Article 42 of the SAA. The allegation concerning the unconstitutionality of this provision is not substantiated, therefore, the Constitutional Court could not review such. The same applies for the petition that the procedure be initiated for the review of the constitutionality of Article 2 of the OOS.

B. – VII.

The Petitions Rejected (Paragraph 6 of the Operative Provisions)

175. The Constitutional Court rejected the petitions of the judges and state prosecutors that the procedure be initiated for the review of the constitutionality of the second paragraph of Article 10 of the SSPSA-E. The second paragraph of Article 10 of the SSPSA-E determines that the disparity which occurred in the case of officials who are entitled to a lower basic salary than the readjusted salary, determined in accordance with the regulations which applied until the beginning of the application of this act, shall be remedied upon the beginning of the application of this act. This provision does not apply for judges and state prosecutors and therefore the petitioners did not demonstrate a legal interest for its review. The challenged provision namely only refers to the reduction of basic salaries in order to remedy salary disparities (and not also to the temporary reduction of salaries due to the readjustment of salaries), whereas after the salary disparities are remedied, all

58

judges' and state prosecutors' offices will be placed into a higher salary bracket or into a salary bracket which is at least the same as their salary bracket prior to the implementation of the new salary system. In view of the above-mentioned, also the allegation concerning the inconsistency with the second paragraph of Article 14 of the Constitution which is allegedly due to the fact that, with reference to officials who are entitled to a lower basic salary than their readjusted salary, the disparity shall be remedied immediately (the second paragraph of Article 10 of the SSPSA-E), whereas the basic salary will be increased gradually (the first paragraph of Article 10 of the SSPSA-E), is not relevant.

176. The Constitutional Court rejected the petition of a Supreme Court judge that the procedure be initiated for the review of the constitutionality of Article 26 of the JSA. This provision does not refer to Supreme Court judges (see paragraph 161 above) and therefore the petitioner did not demonstrate a legal interest for its review.

177. The Constitutional Court rejected the state prosecutors' petitions that the

procedure be initiated for the review of the constitutionality of the second paragraph of Article 51 of the JSA. In accordance with this provision, the conditions, criteria, and scope of payments for an increased workload or an additional workload, for individual judges are determined by a Government decree. In view of the fact that the fourth paragraph of Article 30 of the SPA separately regulates such for state prosecutors, the petitioners did not demonstrate a legal interest to challenge the second paragraph of Article 51 of the JSA. In accordance with the first and second paragraphs of Article 28 and the first paragraph of Article 30 of the SPA, the provisions of the JSA regulating judges' salaries apply to state prosecutors only if the SPA does not determine otherwise.

178. The Constitutional Court also rejected the state attorney's petition that the

procedure be initiated for the review of the constitutionality of the third and fourth paragraphs of Article 9 of the OOS. These provisions regulate a readjustment of the nominal value of the basic salary of the officials of the legislative branch of power and of the officials of the judicial branch of power, and as such do not apply for state attorneys, which are officials of other state authorities. Therefore, the petitioner did not demonstrate a legal interest for their review.

C.

179. The Constitutional Court reached this decision on the basis of Articles 21, 25, the

second paragraph of Article 26, and Article 48 as well as the second paragraph of Article 40 of the CCA, composed of: Dr. Janez Čebulj, President, and Judges Dr. Zvonko Fišer, Lojze Janko, mag. Marija Krisper Kramberger, Milojka Modrijan, Dr. Ciril Ribičič, Dr. Mirjam Škrk, Jože Tratnik, and Dr. Dragica Wedam Lukić. The decision was reached unanimously, except regarding the fourth indent of the fourth paragraph of the operative provisions, inasmuch as it refers to state prosecutors, and regarding the second indent of the fifth paragraph of the operative provisions, inasmuch as it refers to the OOS, which was reached by eight votes against one. Judge Fišer voted against and submitted a dissenting opinion.

Dr. Janez Čebulj

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President

Notes:

1 The petitioner states that he challenges Article 49 of the JSA in its entirety, however, it follows from the contents of his petition that he opposes this provision only in the part which determines that payments that are additional to judges' salaries are determined by the collective agreement for the public sector, which is stated in the first paragraph of this article.

2 The petitioner states that he challenges Article 49c of the JSA in its entirety, however, it follows from the contents of his petition that he opposes only the first paragraph of this article, inasmuch as it determines that the amount of the additional payments be determined by the collective agreement for the public sector.

3 The petitioner states that he challenges Article 51 of the JSA in its entirety, however, it follows from the contents of his petition that he opposes only the second paragraph of this article, which determines that the conditions, criteria, and the scope of payments for additional work performance are determined by the Government.

4 The petitioners state that they challenge this article in its entirety, however, it follows from the contents of their petition that they challenge only the first paragraph of this article.

5 The petitioner states that he challenges these provisions also with regard to the second paragraph of Article 3 of the SPA. In view of the fact that it follows from the contents of the petition that he opposes only the regulation of the salary status of state prosecutors, whereas the second paragraph of Article 3 of the SPA places state prosecutors on the same level as judges regarding all rights following from their office, the Constitutional Court deemed that he in fact challenges the aforementioned provisions of the JSA only in conjunction with the provisions of the SPA which determine that the provisions of the JSA are applied for state prosecutors precisely with reference to salaries.

6 The petitioner states that he challenges Article 49 of the JSA in its entirety, however, it follows from the contents of his petition that he in fact opposes only the part which determines that the collective agreement regulate such, which is stated in the first paragraph of the aforementioned provision.

7 The petitioner states that he challenges Article 25 of the SPA-C in its entirety, however, it follows from the contents of his petition that he alleges that the statutory regulation is ambiguous, by which he substantiates the petition in this part, especially with regard to the readjustment of state prosecutors' salaries. The readjustment of salaries is directly mentioned only in the first and second paragraphs of Article 25 of the SPA-C. Therefore, the Constitutional Court deemed that in fact only the aforementioned two provisions are challenged.

8 The petitioner states that he challenges Article 26 of the SPA-C. However, it follows from the contents of his petition that he challenges only the introductory part of the aforementioned provision which determines that payments that are additional to state prosecutors' salaries are regulated by the collective agreement, and the first indent of the same provision regarding the amount of the bonus for years of service.

9 The petitioner alleges that she challenges the fifth paragraph of Article 19 and the first paragraph of Article 21 of the SAA-A, which do not exist. However, it follows from the contents of her petition that she in fact opposes the fifth paragraph of Article 42 and

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the first paragraph of Article 44 of the SAA, which were amended by the provisions of Articles 19 and 21 of the SAA-A.

10 Protocol No. 12 entered into force on 1 April 2005, Slovenia signed it on 7 March 2001, however, it has not yet ratified it.

11 Without the appropriate system of the judicial protection of rights, their normative recognition could be merely formal. For similar regarding human rights and fundamental freedoms, see P. Jambrek in: L. Šturm (editor): Komentar Ustave Republike Slovenije, Fakulteta za podiplomske državne in evropske študije, Ljubljana 2002, pp. 258 and 259.

12 The first paragraph of Article 23 of the Constitution reads as follows: ”Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law.” The fourth paragraph of Article 15 of the Constitution in particular guarantees also the right to the judicial protection of human rights and fundamental freedoms.

13 Regarding the Universal Declaration of Human Rights, the Constitutional Court has already adopted the standpoint that it is considered to be international customary law (see, Order No. Up-97/02, dated 25 February 2004).

14 The Universal Declaration of Human Rights (Človekove pravice, Zbirka mednarodnih dokumentov, I. del, Univerzalni dokumenti, Družba za ZN za Republiko Slovenijo, Ljubljana, 1995, pp. 1-7) in Article 10 reads as follows: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” The International Covenant on Civil and Political Rights in the first paragraph of Article 14, inter alia, reads as follows: “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

15 The first paragraph of Article 6, inter alia, reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial

tribunal established by law. … ”

16 Article II-107 (2), inter alia, reads as follows: “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law…”. Slovenia has already ratified the treaty (Official Gazette RS, No. 15/05, IT, No. 1/05), however, it has not yet entered into force.

17 The same, for instance, in Recommendation No. R (94) 12 of the Committee of Ministers to Member States on the Independence, Efficiency, and Role of Judges, which determines that in the decision-making process, judges should be independent and be able to act without any restriction, improper influence, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason (Principle I, item (2)(d)).

18 For more see: Boštjan M. Zupančič: Prvine pravne kulture: Nadzor in ravnotežje v družbi, Fakulteta za družbene vede, Ljubljana, 1994, pp. 116-118.

19 The Charter was adopted by the participants of a multilateral meeting on the statute for judges in Europe organised by the Council of Europe between 8 and 10 July 1998.

20 It is a consultative body of the Council of Europe.

21 For different elements of judicial independence, see, e.g. Shimon Shetreet: Judicial Independence: New Conceptual Dimensions and Contemporary Challenges, Judicial Independence, Martinus Nijhoff Publishers, Netherlands, 1985, pp. 590-681. See also, Dr. Mihajlo Dika: Pravo na nezavisnog suca, Zbornik Pravnog fakulteta u Zagrebu, No. 5-6/1989, pp. 855-878.

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22 The use of the terms employment position and title with regard to officials is not appropriate. Officials perform the office to which they were appointed or elected. For the majority of officials their status is already determined by the Constitution (i.e. the deputies and President of the National Assembly, the President of the Republic, the President of the Government and ministers, judges, and state prosecutors), and for others by individual laws. Their office does not depend on an employment position which is classified in the position classification plan, and they do not perform their office under a title, which is otherwise the case for other civil servants in the public sector. Judges and state prosecutors are exceptions, in that they can be promoted to a directly higher title in accordance with law.

23 Regarding the first paragraph of Article 36 of the JSA-F as a possible statutory basis for the readjustment of salaries, see below (paragraphs 106 and 107 below).

24 Article 107 of the RPNA-1 reads as follows: “The National Assembly adopts constitutional acts amending the Constitution, laws, authentic interpretations of laws, the state budget, the supplementary state budget, amendments to the state budget and the annual financial statement of the state budget, the Rules of Procedure of the National Assembly, ordinances, resolutions, declarations, recommendations, decisions, and official consolidated texts of laws.”

25 The European Charter on the Statute for Judges, for example, determines that in each European State, the fundamental principles of the statute for judges are set out in internal norms at the highest level, and its rules in norms at least at the legislative level (item 1.2).

26 Item 11 of the United Nations Basic Principles determines that adequate remuneration of judges shall be adequately secured by law. Principle I(2)(a)(ii) of the Recommendation on the Independence, Efficiency and Role of Judges reads as follows: “The terms of office of judges and their remuneration should be guaranteed by law.”

27 Thereby the Government evidently followed the English version of the text of the United Nations Basic Principles (item 11), in which the word “law” is used, whereas it did not consider the French version of the text, which in the same paragraph uses the word “loi” (and not “droit”), which in French means a law.

28 This is also required by the European Charter on the Statute for Judges. Item 1.8 of the Charter reads as follows: “Judges are associated through their representatives and their professional organizations in decisions relating to the administration of the courts and as to the determination of their means, and their allocation at a national and local level. They are consulted in the same manner over plans to modify their statute, and over the determination of the terms of their remuneration and of their social welfare.”

29 The same applies for the first paragraph of Article 49č of the JSA, which is, however, not challenged by the judges.

30 The same is also determined in the European Charter on the Statute for Judges, which in item 6.1 reads as follows: “Judges exercising judicial functions in a professional capacity are entitled to remuneration, the level of which is fixed so as to shield them from pressures aimed at influencing their decisions and more generally their behaviour within their jurisdiction, thereby impairing their independence and impartiality.”

31 The same is also provided for in the Recommendation on the Independence, Efficiency and Role of Judges. It namely follows from Principle III(1)(b) of this Recommendation that: “Proper conditions should be provided to enable judges to work efficiently and, in particular, by ensuring that the status and remuneration of judges is commensurate with the dignity of their profession and burden of responsibilities.” The same is case regarding the Opinion of the Consultative Council of European Judges,

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which in item 73/8, inter alia, determines: “Judges’ remuneration should be commensurate with their role and responsibilities.”

32 The differences between the salary brackets of the presidents of courts in comparison with the starting salary brackets of the judges of individual courts are: e.g. 10 salary brackets at the Supreme Court, 13 or 12 salary brackets at higher courts, 16 or 15 salary brackets at district courts (and 15 or 14 salary brackets for criminal court judges), and even 19 or 18 salary brackets at local courts. The differences between the salary brackets of the vice presidents of courts in comparison with the starting salary brackets of other judges of individual courts are 5 salary brackets at the Supreme Court, 9 or 8 salary brackets at higher courts, 13 or 12 salary brackets at district courts (and 12 or 11 salary brackets for criminal court judges), and even 16 or 15 salary brackets at local courts.

33 Section 1 of Article III of the Constitution of the United States reads as follows: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” Regarding the fact that the Constitution of the United States does not otherwise regulate the position of judges, it is evident from the above-cited provision what great importance the constitution framers assigned to the protection of judges against a reduction in salaries.

34 The Opinion No. 1 of the Consultative Council of the European Judges in item 62 reads as follows: “It is generally important to make specific legal provision guaranteeing judicial salaries against reduction and to ensure at least de facto provision for salary increases in line with the cost of living.” The Judges' Charter in Europe in item 8 reads as follows: “Judicial salaries must be adequate to ensure that the Judge has true economic independence and must not be cut at any stage of a Judge's service.” The Universal Charter of the Judge in Article 13 reads as follows: “The judge must receive sufficient remuneration to secure true economic independence. The remuneration must not depend on the results of the judges work and must not be reduced during his or her judicial service.”

35 Positions vary regarding the question what such exceptional cases are. A reduction in salary is as a general rule always admissible in cases of disciplinary sanctions. In the constitutional case-law of the constitutional courts of other countries other cases can be found in which a reduction in judges' salaries is considered constitutionally admissible. The Constitutional Court of Slovakia decided that the Constitution does not prohibit the adjustment of salaries based on the state of the national economy (Decision No. PL. US 52/99, dated 4 July 2000). The Constitutional Court of Poland (Decision No. K 12/03, dated 18 February 2004) underlined that the only exception from the principled prohibition against a reduction in judges' salaries can be in a case in which the national debt exceeds three fifths of the value of the annual gross domestic income. The Constitutional Court of the Czech Republic (see e.g. Decision No. Pl. US 16/2000, dated 3 July 2000) adopted the position that a reduction in judges' salaries is exceptionally admissible on the basis of serious reasons and in connection with the regulation of salaries in the entire public sector.

36 As a consequence, such system can even cause counter effects if the general public loses trust in judges' work, i.e. that due to the increased number of appeals against judges' decisions, proceedings in individual cases are prolonged and consequently also court backlogs are increased.

37 Article 15 of the Decree concerning Additional Work Performance in the Public Sector determines that the criteria for distributing funds for payments for additional work

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performance are adopted upon the proposal of a director by the management authority of the public entity or that the criteria which are determined in the collective agreement for the public sector may also be applied mutatis mutandis.

38 The first paragraph of Article 10 of the SSPSA-E reads as follows: “Disparities in the salaries of officials who are entitled to higher basic salaries in comparison with the readjusted basic salaries, determined in accordance with the regulations which applied until the beginning of the application of this act, shall be remedied in the following manner: disparities in basic salaries which are greater than four salary brackets are remedied in the amount of the disparity above four salary brackets upon the beginning of the application of this act; the remaining disparities in basic salaries are remedied in the period from 2006 through 2009, whereby upon the calculation for month of December, 25% of the disparity in basic salaries is remedied each year.”

39 With reference to such, attention must be drawn to the third paragraph of Article 66c of the SPA, in accordance with which when conducting judicial supervision it is not allowed to interfere with the legality and professionalism of work of state prosecutors' offices with reference to police proceedings, judicial proceedings, and administrative proceedings before other state authorities.

40 This also follows from the SPA, in accordance with which state prosecutors' offices, as a part of the judiciary, are independent state authorities (the second paragraph of Article 5).

41 On the basis of the first and second paragraphs of Article 28, the salaries of a state prosecutor and a deputy state prosecutor are determined on the same basis, with the same additional payments, and in the same manner as the salary of a judge of the comparable title or position. The first paragraph of Article 30 of the SPA determines that a state prosecutor and a deputy state prosecutor is, in addition to a salary, entitled to income, bonuses, and additional payments, compensations, and reimbursements in the same instances and in the same amount as a judge of the comparable title or position, if the SPA does not determine otherwise.

42 In accordance with the eighth paragraph of Article 9 of the OOS, upon the readjustment of the nominal value of basic salaries into officials' basic salaries in accordance with the SSPSA, the basis for determining officials' salaries, applicable from 1 July 2005 onwards, in the amount of 145,010 SIT, or the starting salary for non-commercial activities for tariff classification I, applicable from 1 July 2005 onwards, in the amount of 54,823 SIT, must be taken into consideration.

43 In accordance with this provision, the basis for the calculation of the salaries of civil servants and officials, for which the starting salary in accordance with the Collective Agreement for Non-Commercial Activities is applied, is the amount of the starting salary for tariff classification I which applied on the day of the readjustment of salaries. The basis for the calculation of the salaries of civil servants and officials, for which the starting salary in accordance with the Collective Agreement for Non-Commercial Activities is not applied, is the amount determined by the regulations and collective agreements which applied on the day of the readjustment of salaries for determining their salaries.

44 As regards the first and second paragraphs of Article 25 of the SPA-C as a possible statutory basis for the readjustment of state prosecutors' salaries, see paragraph 144 below.

45 These are similar criteria as follow from the second paragraph of Article 120 of the Constitution regarding the relations between the legislature's legal acts and the regulations of the executive branch of power.

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46 Article 12 of the SSPSA-E determines that officials' salaries begin to be calculated in accordance with this act on the day of the beginning of the application of this act. Article 13 of the SSPSA-E determines that the act comes into force the next day after its publication in the Official Gazette of the Republic of Slovenia, and begins to be applied on 1 March 2006.

47 The Government erroneously interprets the contents of Constitutional Court Decision No. U-I-134/96 from which, in the opinion of the Government, follows the standpoint that it is in principle admissible to reduce salaries. The Constitutional Court in this decision indeed held that a salary in a certain amount cannot be regarded as an acquired right, as it can change in accordance with laws, collective agreements, and general acts. However, this does not entail that when amending the salary regulation the legislature should not consider the principle of trust in the law provided for in Article 2 of the Constitution.