Regarding this proposal of the Minister of Justice to review the “laws of justice”, first of all, such an idea has never been debated, this being the first time such an amendment has been made, without any previous consultation with the body of magistrates.
Secondly, such a measure is likely to affect the status of the magistrate in one of its essential components- independence, diminishing its authority.
Such a solution raises several problems:
- a) it is a discriminatory solution, being thus unconstitutional:
– throughout the budgetary system consists of certain rules based on promotion in stages, given by degrees, that affect salaries; in all these cases, the acquisition of a higher position does not compel the person in question to change the workplace and does not make the payment of the degree of such a change conditional; (see annexes to Law No 153/2017 on the remuneration of staff paid out of public funds);
– in the case of the military system, the acquisition of a higher rank does not imply that the military judge/prosecutor will perform other tasks or that he will occupy another role, but only that it contributes to strengthening the vocation to ascend in the military hierarchy;
– in the case of the “diplomatic” occupational family (diplomatic degree is paid regardless of function);
– in the case of assimilated staff from the Justice Ministry, where a large number of the personnel already have a rank equivalent to the one given for the Courts of Appeal, the situation will be aberrant and the consequences would be preposterous. But this has already been confirmed on several plans, for instance salary and promotion, the assimilated personnel not being limited by the number of vacant places, unlike magistrates. The consequence would be that such assimilated staff would actually be given more rights than the ones whose jobs they bear resemblance to.
– in the case of teachers, doctors (but also in other categories), in the case of school inspectors, management functions for auxiliary teaching functions, patrimony administrator, etc., hospital managers, general managers, research directors, economic directors etc., in the case of the “culture” occupational family; in the case of staff from public authorities and institutions fully financed from their own revenues, subordinated to, under the authority of, in the coordination of the Government, ministries and other specialized bodies of the central and local public administration, under the coordination of the Prime Minister, and of those under the control of Parliament; in the case of the “administrative” occupational family.
- b) it represents an intrusion into the status of the magistrate, being thus unconstitutional;
– given that the magistrate’s income is included in the notion of his status, designed to guarantee his independence, the diminishing of income in such a way means the impairment of the status, which impinges on independence, so that the measure is, from this point of view, unlawful;
– no justification for such a measure has been provided, so it can not be known whether its purpose is legitimate or arbitrary;
– Even if a justification (purpose) has been found, the measure does not maintain a level of constitutional proportionality, since it represents the most drastic intrusion into the status of the magistrate, without taking into account other alternative methods of fulfilling it.
- c) it raises even more problems of inequity:
– assimilated staff will continue to benefit from the professional grades, although they do not perform judicial activities specific to the profession of magistrate;
– unlike magistrates, the assimilated staff will advance in rank and receive all the rights corresponding to the positions, although they will work in the same office, on the same computer, doing the same work;
– it will diminish the professional development of the magistrate, which will no longer be attracted by the perspective of presenting to sterile thorough examinations, which will not bring any benefit; the magistrate cannot be accused of having regard to the financial aspect of his status as long as the constraints of the position are well known.