The Constitutional Tribunal stated that the rules for remunerating judges, specified in the budget-related act for 2023, are unconstitutional. He also found the unconstitutionality of three provisions of this Act, which also apply to judges of the Supreme Court and the Constitutional Tribunal.
These regulations were appealed to the Constitutional Tribunal by the first president of the Supreme Court in the second half of December last year Małgorzata Manowska, President of the Supreme Administrative Court Jacek Chlebny and the National Council of the Judiciary. The Tribunal ruled on Wednesday in a panel of five judges, the ruling was unanimous.
“The remuneration of judges in recent years has been shaped by the legislator in a completely discretionary manner, both as to the principles of determining their basis and the growth rate,” noted judge Rafał Wojciechowski in the justification of the Constitutional Tribunal’s judgment. He added that “such discretion should not apply to judges’ remuneration”, the special nature of which is confirmed by the constitution.
Moreover – as Judge Wojciechowski pointed out – “the Constitutional Tribunal stated that in the face of a potentially difficult budget situation (…), it is even more necessary to ensure special protection of judges’ remuneration.”
– The solutions regulated in the budget-related act for 2023 are not only inconsistent with the solutions contained in the Law on the System of Common Courts, the Act on the Supreme Court and the Act on the status of judges of the Constitutional Tribunal. They are not even consistent as to the level of salary increase and the nature of its basis with the analogous provisions of the budget-related acts for 2021-2022 – said the Constitutional Tribunal judge.
As he recalled, “the act for 2023 does not refer to the level of average remuneration at all, and the basis is set in terms of amounts.” – This discretion does not provide judges with constitutional guarantees as to the amount of their future income and does not protect them against potential manipulation by the legislator – emphasized Judge Wojciechowski.
The issue of remuneration for judges. Remarks of the first president of the Supreme Court
In accordance with the general principle of remuneration of judges, specified in the acts relating to the court system, “the basis for determining the basic remuneration of a judge in a given year is the average remuneration in the second quarter of the previous year, announced in the Official Journal of the Republic of Poland, Monitor Polski, by the President of the Central Statistical Office.” The judge’s remuneration is the product of this base and a multiplier depending on the position held by the judge.
However, the contested provisions assumed that “in 2023, the basis for determining the basic remuneration of a judge (…) is the amount of PLN 5,444.42”.
In her motion, the first president of the Supreme Court pointed out, among other things, that these provisions “base the model for shaping judges’ remuneration on the discretionary – in a given year – determination of the basis for this remuneration, which means the total dependence of the judiciary on other authorities.”
“By introducing an episodic regulation included in the budget-related act, instead of permanent rules for remunerating judges, the legislator actually reduced the indexation of judges’ remuneration adopted in the first provisions. The average gross remuneration in the second quarter of 2022 announced in the announcement of the President of the Central Statistical Office of August 9, 2022. amounted to PLN 6,156.25,” argued the president of the Supreme Administrative Court in his application.
Opinion of the Ministry of Finance
In April, in an opinion sent to the Constitutional Tribunal, the Minister of Finance, Magdalena Rzeczkowska, assessed that a ruling on the unconstitutionality of the contested provisions of the budget-related act “would have multidimensional effects, including economic ones.” “Savings in the expenditure of the state budget for 2023 due to determining the basis for determining the remuneration of judges and prosecutors, assuming an increase adequate for the entire budget sphere at the level of 7.8%, amounted to a total of approximately PLN 750 million, of which approximately PLN 512 million concerns judges’ remuneration (…). The remaining amount constitutes savings in expenses for prosecutors’ remuneration,” wrote the minister.
In August, the complainant submitted a fourth, similar request for another provision of the budget-related act relating to the basis basic salary prosecutors – filed with the Constitutional Tribunal by the Trade Union of Prosecutors and Prosecutor’s Office Employees. The prosecutors’ union then requested that the Constitutional Tribunal consider all four applications regarding the remuneration of judges and prosecutors together. However, the Tribunal did not decide to attach the ZZPiPP application to the case of judges’ remuneration.
“The budget reserve for wage equalization should be released immediately”
In the opinion of the chairman of the prosecutors’ union, prosecutor Jacek Skała, Wednesday’s judgment of the Constitutional Tribunal “provides the basis for the indexation of the remuneration of judges, but also of prosecutors in 2023 in accordance with the regulations contained in the Act on the system of common courts and the Law on the Public Prosecutor’s Office.”
– In this situation, the budget reserve for wage compensation should be released immediately. The matter of claims for 2021 and 2022 remains open. In my opinion, the government should develop systemic solutions in this area. Otherwise, the only option left is to go to court, and after the Tribunal’s ruling, the courts may face a flood of lawsuits. Going to court involves additional costs, including interest and legal representation,” said prosecutor Skała after the Constitutional Tribunal’s judgment.
In his opinion, the government should also immediately correct the proposed budget-related act for 2024. “It contains the same, unconstitutional solution,” added the head of ZZPiPP in a comment for PAP.
He also informed that he is currently waiting for a reference number to be assigned to the case initiated in the Tribunal by the ZZPiPP application, and that the case “successfully passed the results of the formal control”.
Main photo source: TVN24