Notification on decision in case KO 79/23

The Constitutional Court of the Republic of Kosovo has decided on the Referral in the case KO 79/23, submitted by the Ombudsperson, based on the provisions of subparagraph (1) of paragraph 2 of article 113 [Jurisdiction and Authorized Parties] of the Constitution, pertaining to the constitutional review of Law no. 08/L-196 on Salaries in the Public Sector.

The Court, unanimously, has decided to declare the referral admissible and to find, unanimously, that: (i) paragraph 2 of article 2 (Scope) and paragraph 2 of article 45 (Repeal) in conjunction with paragraph 2 of article 24 (Allowances for labor market conditions), paragraph 5 of article 25 (Performance Allowance), paragraph 4 of article 28 (Allowance for labor market conditions) and paragraphs 2 and 3 of article 42 (Determining the equivalence) of the contested Law, are not in compliance with paragraph 1 of article 4 [Form of Government and Separation of Power] and paragraph 1 of article 7 [Values] of the Constitution; (ii) paragraph 6 of article 6 (Basic Salary) of the contested Law, is not in compliance with paragraphs 1 and 2 of article 46 [Protection of property] of the Constitution, in conjunction with article 1 (Protection of property) of Protocol no.1 of the European Convention on Human Rights; (iii) paragraph 2 of article 41 (Transitional allowance) of the contested Law, is not in compliance with paragraphs 1 and 2 of article 46 [Protection of property] of the Constitution, in conjunction with article 1 (Protection of property) of Protocol no. 1 of the European Convention on Human Rights and paragraph 1 of article 4 [Form of Government and Separation of Power] and paragraph 1 of article 7 [Values] of the Constitution; (iv) paragraph 3 of article 41 (Transitional allowance) of the contested Law, is not in compliance with paragraphs 1 and 2 of article 46 [Protection of property] of the Constitution, in conjunction with article 1 (Protection of property) of Protocol no. 1 of the European Convention on Human Rights and paragraph 1 of article 24 [Equality before the Law] of the Constitution, in conjunction with article 14 (Prohibition of discrimination) of the European Convention on Human Rights; (v) paragraph 4 of article 41 (Transitional allowance) of the contested Law, is not in compliance with paragraph 1 of article 24 [Equality before the Law] of the Constitution, in conjunction with article 1 (General prohibition of discrimination) of Protocol no.12 of the European Convention on Human Rights; (vi) paragraphs 2, 3 and 4 of article 41 (Transitional allowance) and paragraph 2 of article 45 (Repeal) of the contested Law, to be declared invalid upon entry into force of the Judgment; (vii) in accordance with paragraph 1 of article 116 [Legal Effect of Decisions] of the Constitution, to order the Assembly of the Republic of Kosovo, within six (6) months from the entry into force of the Judgment, to undertake the necessary actions for the supplementation and amendment of paragraph 2 of article 2 (Scope) and paragraph 6 of article 6 (Basic Salary) of the contested Law, in compliance with the Constitution and this Judgment; (viii) until the supplementation and amendment of paragraph 2 of article 2 (Scope) of the contested Law, paragraph 3 of article 2 (Scope), paragraph 2 of article 22 (Allowances), paragraph 5 of article 24 (Allowances for labor market conditions), paragraph 8 of article 25 (Performance allowance), paragraph 7 of article 28 (Workload allowance) and paragraph 4 of article 42 (Determining the equivalence), shall be applied in compliance with the Constitution and this Judgment; and (ix) this Judgment enters into force on 1 February 2024.

The Judgment initially clarifies that the contested Law was published in the Official Gazette on 5 January 2023 and entered into force on 5 February 2023. The same was adopted after the previous law, namely Law no.06/L-111 on Salaries in the Public Sector, after the request of the Ombudsperson, was declared in violation of the Constitution, through the Judgment of the Court KO219/19. The Judgment further clarifies that the contested Law, with the aim of creating a “uniform system of salaries in the public sector”, repeals (i) Law no. 03/L-147 on Salaries of Civil Servants; (ii) certain provisions of special laws related to independent institutions and agencies; and (iii) any law and other by-laws that are in violation of its provisions. According to the clarifications provided in the Judgment, the same, through the relevant Annexes, categorizes all functionaries/officials and public servants, who fall within the scope of the contested Law, into positions, groups, classes and coefficients. The effect of such categorization in conjunction with the coefficient value set forth through Law no. 08/L-213 on Amending and Supplementing Law no. 08/L-193 on Budget Appropriations for the Budget of the Republic of Kosovo for the Year 2023, results into a substantial increase of the salary level for a part of the public sector and a substantial decrease of the salary level for a part of the remainder. The categories affected by the decrease of the salary levels, benefit from a transitory period of two (2) years after the entry into force of the law, namely (i) during the first year, one hundred percent (100%) of the transitional allowance and consequently, during this year they are not affected by the decrease of their salary levels; while, (ii) during the second year, fifty percent (50%) of the transitional allowance. The Judgment also clarifies that from the rights of the transitory period, the contested Law excludes (i) the members of the foreign service of the Republic of Kosovo, who were consequently affected by an immediate decrease of their salaries levels upon the entry into force of the contested Law; and (ii) all persons who were employed in the public sector following its entry into force. Furthermore, according to the clarifications given in the Judgment, the contested Law also (i) delegates the determination of the coefficient value to another law, namely the Law on Budget Appropriations of the Republic of Kosovo; (ii) specifies that a salary level decrease in the Republic of Kosovo can only be made in two exceptional circumstances, namely in the event of a “macroeconomic shock” or the declaration of a state of emergency; (iii) specifies the rules for determination of the categories of allowances and compensations, including the respective budget ceilings/limits, also specifying that these issues are exclusively regulated by this law and may be further regulated only by other by-laws; and (iv) stipulates the competence of the Ministry of Internal Affairs (MIA), to approve, among others, issues related to the structure, components or levels of coefficients for the public institutions of the Republic of Kosovo.

The Judgment also clarifies that, the contested Law has already created its effects on the categories whose salary levels were increased, as well as on the categories whose salaries were decreased and which were not subject to the protection through the transitory period, namely (i) for all functionaries/officials/employees for the first fifteen (15) years of work experience, because the amount of the work experience allowance was reduced by half upon the entry into force of the contested Law; and (ii) the foreign service of the Republic of Kosovo, which was excluded from the right to the transitional allowance. With the elapse of the one (1) year period of the transitional allowance, namely as of 5 February 2024, all functionaries/officials/employees who fall under the scope of the contested Law and whose salary levels were decreased as per the provisions of the contested Law, will be affected with a decrease of fifty percent (50%) of the transitional allowance.

The Ombudsperson, also relying on one hundred and four (104) complaints submitted to its Institution by functionaries/officials/employees, organizations and associations, with allegations for violation of fundamental rights and freedoms as a result of the salary levels decrease in the public sector, in essence, argues before the Court that the contested Law was adopted in violation of (i) the fundamental rights and freedoms, including the right to equality before the law and the right to peaceful enjoyment of property; and (ii) the separation and balance of powers in the Republic of Kosovo, in violation of the constitutional guarantees for the independence of independent institutions. The Ombudsperson, more precisely, argues that the contested Law is in violation of the principles of the rule of law, legal certainty and foreseeability, among others, due to the fact that it delegates the determination of the coefficient value to the Law on Budget Appropriations, which was adopted after the entry into force of the contested Law, resulting into the selective and arbitrary decrease of the salary level for a considerable part of the public sector, in violation of the provisions of the contested Law itself, according to which salaries may decrease only as a consequence of a macroeconomic shock or when a state of emergency is declared in the Republic of Kosovo. Moreover, the Ombudsperson also argues that (i) the disproportionate decrease of the salary levels for judges and prosecutors is a fundamental violation of the Constitution, applicable laws, international standards and the Judgments of the Constitutional Court; (ii) the arbitrary decrease of the salary levels for the foreign service of the Republic of Kosovo, as the only category of the public sector which the contested Law has excluded from the two (2) year transitory period, is in violation of the principles of equality before the law; (iii) all functionaries/officials/employees who were employed in the public sector following the entry into force of the contested Law, are treated unequally during the transitory period, given that they do not receive “equal pay for equal work” contrary to the guarantees provided for by the contested Law itself; (iv) the right to peaceful enjoyment of property for all functionaries/officials/public servants with up to fifteen (15) years of work experience, has been violated as a result of the deduction of the allowance level for work experience, without pursuing any legitimate aim; (v) the functional, organizational and budgetary independence of the judiciary and of constitutionally independent institutions, has been violated in complete contradiction with the constitutional guarantees and the case-law of the Constitutional Court; and (vi) the Judgment of the Constitutional Court KO219/19, through which the principles related to salaries in the public sector were determined and through which, the previous Law on Salaries in the Public Sector, was declared in violation of the Constitution, has not been implemented by the Government and the Assembly. Further, the Ombudsperson requests that only the segments of the contested Law which have resulted in the decrease of salary levels, be subject to the constitutional review, and not those segments that have resulted into an increase of the salary levels, taking into account that the rights of the latter, were not affected/violated through the contested Law.

The allegations of the Ombudsperson were challenged by the Government, through the MIA. The latter, according to the clarifications given in the Judgment, emphasizes that the purpose of the contested Law is “the harmonization of salaries in the public sector” and, moreover, that the same has not resulted in the salary level decrease in the public sector. This, according to the Ministry, among others, because (i) the coefficient value was not determined through the contested Law, but through the Law on Budget Appropriations, which has not been challenged before the Court; (ii) the contested Law is foreseeable because it defines the circumstances under which the salaries may be decreased in the future, whereas it defines a two (2) year transition period, during which the salary levels will be maintained as per the escalation stipulated therein; (iii) the independence of the judiciary has not been infringed on because the salaries of judges and prosecutors were not decreased, but rather increased, taking into account that the Government Decision [no. 20/14] of 20 December 2017, which resulted in the increase of judges’ and prosecutors’ salaries, was rendered in violation with the applicable law and as a result, was repealed by the current Government through its Decision [no. 03/109] of 23 November 2022. Moreover, according to the MIA and among others, (i) based on the Constitution, it is the Government that proposes and the Assembly that approves the budget of the Republic of Kosovo; (ii) the contested Law is compatible with the separation and balance of powers and does not violate the independence of independent institutions; and (iii) the decrease of the value for the work experience allowance is in compliance with the purpose of the legislator to “support and stimulate the contribution as a service to the state and society”.

In the context of the scope of Court’s assessment, the Judgment, in what follows and among others, emphasizes that (i) the Assembly has the full constitutional competence to adopt laws and to select policies contained therein, to the extent that the adopted laws are in compliance with the Constitution and the values and principles proclaimed therein; and (ii) according to its consolidated case-law, in reviewing the constitutionality of the contested acts, the Court focuses only on the interpretation and protection of the constitutional norms, and not on the assessment of the selection of the public policy that has led to the adoption of a certain law.

In the aforementioned context and in reviewing the constitutionality of the contested Law, the Judgment, among others, initially elaborates (i) the general principles related to the separation and interaction of powers in the Republic of Kosovo, including the independence of the judiciary, the prosecutorial system and the constitutionally independent institutions; (ii) the general principles stemming from the relevant case-law of the Constitutional Court, with an emphasis on the judgments that through the years have specifically elaborated issues pertaining to the functional, organizational and budgetary independence of the constitutionally independent institutions, including in the context of their internal organization and regulation of specifics related to their personnel; and (iii) the principles that were set forth by the Court Judgment KO219/19 related to the salaries in the public sector, including in the context of the separation and balance of powers and fundamental rights and freedoms. Furthermore, the Judgment also elaborates on the general principles stemming from the relevant international standards, including (i) Opinions of the Venice Commission; (ii) the case-law of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), through which the alleged violations of fundamental rights and freedoms as a result of decrease of salaries/benefits in the public sector were reviewed; and (iii) the case-law of other Constitutional Courts in reviewing laws related to salaries in the public sector, including but not limited to the Constitutional/Supreme Courts of Bosnia and Herzegovina, Canada, Latvia, Poland, Portugal, Cyprus, Slovenia and Republic of Albania.

The Judgment also recalls the fact that through the Judgment KO219/19, the Court, among others but specifically, had drawn the attention that based on the constitutional principles, the laws applicable in the Republic of Kosovo and the relevant international standards, (i) the salaries of judges and prosecutors cannot be decreased during the exercise of their function, unless the respective decrease is proportional and in the context of officially recognized economic crises; (ii) the functional, organizational and budgetary independence of the constitutionally independent institutions must be respected; (iii) the burden of decreasing salaries, if deemed necessary due to the economic crisis, should be proportional, so that no particular sector bears an excessive burden; and (iv) the Government, as the proposer of the laws and the Assembly, as the legislator, during the drafting of the legislation related to the salaries in the public sector, whether through a general law or through some special laws or when amending the existing legislation, must take into account the principle of foreseeability, as an integral part of the legal certainty and the rule of law principles, including the constitutional rights for equality before the law and peaceful enjoyment of property, for all persons who may be affected by the possible decrease of the salary levels.

Considering the aforementioned principles which are elaborated in detail in the Judgment and the connection between allegations and challenged provisions, the constitutional review of the aforementioned Law, in principle, results in findings of the Court that are related to two categories of issues, namely (i) the system of salaries and rewards and respective procedures to the extent they affect the functional, organizational and budgetary independence of the constitutionally independent institutions; and (ii) fundamental rights and freedoms in relation to the decrease of the salary levels for functionaries/officials/public servants.

(i) rules and requirements for the determination of the salary level that are related to the justice system and constitutionally independent institutions

The Judgment clarifies that the contested Law, among others, also specifies the rules for determining allowances, compensations, and equivalences, including the creation of new functions, positions or designations/titles in the public institutions. The same, in the context of the employees in (i) the Presidency of the Republic of Kosovo; (ii) the Constitutional Court; (iii) the Justice System; (iv) the Assembly of the Republic of Kosovo; and (v) the constitutionally independent institutions, specifies that “it is applied to the extent that it does not infringe their functional and organizational independence guaranteed by the Constitution”. Nevertheless, despite this formulation, the contested Law also (i) specifies that the rules and requirements for determining the salaries, allowances and compensations for employees in the public sector are exclusively subject to regulation by this law and may be regulated by other by-laws/sub-legal acts, only when explicitly stipulated by this law; while it (ii) repeals any provision of the law or any other by-law/sub-legal act, including the relevant provisions of special laws of independent institutions and their by-laws/sub-legal acts, which regulate the issues of salaries, compensations, allowances, rewards or any other category in the field of salaries, which has not been explicitly authorized pursuant to the provisions of the contested Law. Consequently and as per the clarifications given in the Judgment, the fulfillment of the functional, organizational and independent budgetary administration competencies of the constitutionally independent institutions, has been conditioned only to the issuance of by-laws/sub-legal acts under the specific limitations of the contested Law. Such an approach has not been followed in the context of the independent institutions through the Law no. 08/L-197 on Public Officials, which has been subject to the constitutional review through the Court’s Judgment in the case KO216/22 and KO220/22, a law that recognizes the right of the aforementioned institutions to exercise their respective functions with special laws, too. As per the given clarifications, such provision of the contested Law, conditions and infringes upon the independence of independent institutions, with an emphasis on two categories of issues, namely: (i) the determination of the level of allowances on the basic salary; and (ii) the determination of the equivalences.

In the context of the first issue, namely the conditions and budget ceilings for determining the allowances, the Judgment clarifies, in principle, that as per the contested Law, the amount of allowances is determined at the amount of zero point one percent (0.1%) to zero point five percent (0.5%) of the total funds used for the basic salary for the public officials of the relevant budgetary organization in the same fiscal year, while for this purpose, the Government is treated as one (1) single budgetary organization. Beyond the finding that conditioning the independent institutions in fulfilling their constitutional independence only through promulgation of by-laws/sub-legal acts under the circumstances conditioned specifically through the contested Law, infringes upon their organizational and budgetary independence, the Judgment, among others, emphasizes the three following issues, namely: (i) that the fulfillment of the purpose of the norms that determine the budgetary ceilings for allowances, is related to the entirety of funds for the basic salary available to the respective institution, and in the context of determining that the Government will be treated as one (1) single budgetary institution, and taking into account that the total funds available to it are incomparably higher than those of the constitutionally independent institutions, the Government is placed in a more favorable position compared to the other institutions; (ii) moreover, in less than two (2) months following the entry into force of the contested Law, through Law no. 08/L-213 on Amending and Supplementing Law no. 08/L-193 on Budget Appropriations for the Budget of the Republic of Kosovo for Year 2023, the Government was enabled to exceed the budgetary ceilings for the allowances specified through the contested Law, by decision of a Minister, subsequently exempting, at least the Government from the limitations of the contested Law; and (iii) for the deputies of the Assembly and/or the members of the municipal assemblies, the contested Law has been determined the amount of thirty percent (30%) of the allowances on top of the respective basic salary. Such an approach, through which the independent branches of government and the independent institutions are, essentially, the only ones subject to limitations, namely budgetary ceilings in the context of allowances, is not in compliance with the constitutional guarantees for their institutional independence and principle of balance of interaction between the branches of government.

While, in the context of the second issue, namely the procedure for the determination of the equivalencies, the Judgment clarifies that the contested Law prohibits any change in the structure, components or levels of the salary coefficients and conditions the creation of any new functions, positions or designations/titles, to the approval by the Government, namely the MIA. Such a legal regulation, through which issues related to the functional independence and internal organization of the constitutionally independent institutions, must be subject to the approval by the Government, has already been declared unconstitutional through a number of Court Judgments, including (i) KO73/16 pertaining to the constitutional review of the Administrative Circular no. 01/2016, issued by the Ministry of Public Administration; (ii) KO171/18 related to the constitutional review of Law no. 06/L-048 on the Independent Oversight Board for Civil Service of Kosovo; (iii) KO203/19 related to the constitutional review of Law no. 06/L-114 on Public Officials; (iv) KO219/19 related to the constitutional review of Law no. 06/L-111 on Salaries in the Public Sector; and finally, (v) KO216/22 and KO220/22 related to the constitutional review of Law no. 08/L-197 on Public Officials.

The Judgment, further clarifies that (i) all institutions of the Republic of Kosovo are subject to their obligation to implement the relevant laws regarding the management of public finances and internal audit procedures, pursuant to the provisions of Law no. 06/L-021 on Public Internal Financial Control, and are subject to the control of the Auditor-General of the Republic of Kosovo, based on the provisions of articles 136 [Auditor-General of Kosovo] and 137 [Competencies of the Auditor-General of Kosovo] of the Constitution; and (ii) recalls that the Court has consistently emphasized that the constitutional independence of the constitutionally independent institutions does not entail the constitutional authorization to act in isolation from other branches of government defined by the Constitution. Yet, the Judgment highlights that, the exercise of these public duties also entails the obligation of each branch of government to ensure the compliance with the independence of the branch of power in which an “interference” might be created, to the detriment of the constitutional balance. In defending this principle, the Court has continuously emphasized that, in exercising the respective competences to propose and adopt laws, the Government and the Assembly, must ensure that the constitutional independence of the judicial branch and other institutions, which the Constitution has vested with the constitutional guarantees for “functional, organizational and budgetary” independence, is safeguarded. The contested Law, does not comply with this principle, in violation of the constitutional independence of independent institutions and the consistent case-law of the Constitutional Court. Consequently, the Court has found that paragraph 2 of article 2 (Scope) and paragraph 2 of article 45 (Repeal) in conjunction with paragraph 2 of article 24 (Allowance for labor market conditions), paragraph 5 of article 25 (Performance allowance), paragraph 4 of article 28 (Workload allowance) and paragraphs 2 and 3 of article 42 (Determining the equivalence) of the contested Law, are not in compliance with paragraph 1 of article 4 [Form of Government and Separation of Power] and paragraph 1 of Article 7 [Values] of the Constitution.

(ii) fundamental rights and freedoms in relation to the decrease of the salary level for the public officials/officials/employees

In assessing whether the decrease of the salary levels in the public sector has violated the fundamental rights and freedoms, guaranteed by the Constitution, the Judgment initially elaborates the case-law of the ECtHR in the context of assessing the violation of rights as a result of decrease of salaries/social benefits during economic crises and according to which, it results that the salaries/social benefits arising from, among others, a concrete right in the applicable laws, constitute an “asset” related to “legitimate expectation” and, consequently, are considered to generate a property interest that falls within the scope of article 1 (Protection of property) of Protocol no. 1 of the ECHR. As a consequence and further, applying the principles stemming from the aforementioned case-law, the Judgment clarifies that it is undisputable that the decrease of the salary levels in the public sector has resulted in an “interference/restriction” of the right to peaceful enjoyment of the property and that such “interference/restriction” is “defined by law” and pursues “a legitimate aim”, namely that of the “uniformity” of salaries in the public sector. It highlights, however, that based on the ECtHR cases reviewed, and which are related to the decrease of the salaries/social benefits, the respective decreases were not a result of such a “legitimate aim”, but rather a consequence of economic crises and/or measures undertaken to address budgetary deficits. Having said that, the Judgment further focuses on assessing whether the respective “interference/restriction” in the fundamental rights and freedoms is “proportional” to the pursued aim, and whether a “fair balance” has been struck between the general interest and the obligation to protect the fundamental rights and freedoms of the affected subjects, who should not bear an excessive burden in the attainment of this goal/aim. In this assessment, the Judgment focuses on five (5) categories of functionaries/officials/employees who were affected by the contested Law, namely (a) judges and prosecutors; (b) other functionaries/officials/employees who were affected by the salary levels decrease; (c) the foreign service of the Republic of Kosovo; (d) functionaries/officials/employees who were employed following the entry into force of the contested Law; and (e) all employees in the public sector for the first fifteen (15) years of work experience in the context of the reduction by half of the work experience allowance through the contested Law.

(a) judges and prosecutors

The Judgment, among others, emphasizes that the constitutional and international standards in the context of the independence of the justice system, have already been elaborated, over the years, through the case-law of the Court. The Judgment further clarifies that (i) regarding the salary levels of judges and prosecutors, there are guarantees stemming from international instruments and constitutional and legal provisions in the Republic of Kosovo; (ii) the applicable laws of the Republic of Kosovo, namely the Law on Courts and the Law on the State Prosecutor, guarantee preserving the same salary level during the term of office for a judge and/or prosecutor, provisions that are repealed by the contested Law; (iii) judges and prosecutors of the Republic of Kosovo, are the most affected category by the contested Law, namely by up to fifty percent (50%) of the salary value; and (iv) based on the case-law of the ECtHR, the CJEU and the Judgments of other Constitutional Courts, the only circumstances under which the aforementioned courts have not found a violation in the context of decreasing the salary levels of the judicial branch, are the ones related to the economic/financial crises, during which, comprehensive measures have been taken to stabilize the economy, resulting in the temporary salary decrease and the subsequent scaling up of salaries for all public officials, placing an equal burden on judges and prosecutors and other officials. In the circumstances of the contested Law, this is clearly not the case. Moreover, as per the clarifications in the Judgment, the increase of salaries of judges and prosecutors through the Government Decision [no. 20/14] of 20 December 2017, was subject to the review of constitutionality by the Court through the Judgment in the case KO12/18. According to the clarifications given, the disproportionate decrease of the salary levels for judges and prosecutors in the Republic of Kosovo, does not entail only issues related to the violation of individual rights and freedoms of judges and prosecutors, but also serious issues of violation of the independence of the judicial branch, separation and balance of powers, and the constitutional balance and values of the constitutional order of the Republic of Kosovo. Consequently, the Court has found that paragraph 2 of article 41 (Transitional allowance) of the contested Law, is not in compliance with paragraphs 1 and 2 of article 46 [Protection of Property] of the Constitution in conjunction with article 1 (Protection of Property) of the Protocol no. 1 of the ECHR and paragraph 1 of article 4 [Form of Government and Separation of Power] and paragraph 1 of Article 7 [Values] of the Constitution.

(b) other categories of functionaries, officials and employees who are affected by the salary level decrease

The Judgment recalls that in its previous judgment related to salaries in the public sector, namely Judgment KO219/19, among others, it was especially emphasized that (i) while the sustainability of public finances is in the public interest, the achievement of this goal should be applied universally, that is, the burden should be distributed equally among all officials; and (ii) the burden of the salary decrease, if it is considered necessary due to the economic crisis, must be proportional and must affect everyone equally so that no particular sector will have to take over an excessive burden. Such a stance is also supported by international standards, including the case-law of the ECtHR. The latter, reflects certain common characteristics, namely (i) the lowering of salaries/benefits and/or introducing/increasing taxes, relates to the imposition of comprehensive measures in order to address economic crises and/or budgetary deficits in the respective states; (ii) deductions were always temporary, sometimes including mechanisms through which the salary levels were gradually restored to the previous level; and (iii) they were applied uniformly throughout the state administration. The Judgment clarifies that the contested Law is essentially different from the aforementioned circumstances, because, among others, the selective decrease of the salary levels in the public sector, (i) is under no circumstances related to an economic crisis, budgetary deficit or extraordinary circumstances; (ii) is neither temporary nor uniform; (iii) has substantially increased the salary levels for a category of functionaries/officials/employees, while substantially affecting some other categories with an equally high decrease, including the exclusion of entire categories from the rights of the transitory period. As per the clarifications given, the mechanisms chosen by the legislator to achieve the purpose of the contested Law, does not follow the obligations stemming from article 55 [Limitations on Fundamental Rights and Freedoms] of the Constitution, according to which in case of limitations of the fundamental rights and freedoms, public authorities are obliged to assess the relation between the limitation and the purpose to be achieved and to review the possibility of achieving the purpose with a lesser limitation. By placing a disproportionate burden only on certain categories of the public sector, a “fair balance” between the general interest and the obligation to protect fundamental rights and freedoms has not been struck, with the consequence of infringing upon the respective rights to the peaceful enjoyment of property, in a completely disproportionate manner. As a consequence, the Court has found that paragraphs 2 and 3 of article 41 (Transitional allowance) of the contested Law, are not compatible with paragraphs 1 and 2 of article 46 [Protection of Property] of the Constitution in conjunction with article 1 (Protection of Property) of Protocol no. 1 of the ECHR.

(c) the foreign service of the Republic of Kosovo

The Judgment, among others, clarifies that the foreign service of the Republic of Kosovo, along with the category of judges and prosecutors, is proportionally among the most affected by the decrease of the salary levels through the contested Law. Moreover, unlike the latter, it has also been excluded from the right to the transitional allowance and consequently, affected with an immediate decrease of the salary levels through the entry into force of the contested Law. Consequently, and as per clarifications given in the Judgment, beyond the disproportionate violation of the right to the peaceful enjoyment of property, the category of the foreign service of the Republic of Kosovo, also raises issues related to equality before the law. In the context of the latter, the Judgment elaborates on the principles stemming from article 24 [Equality before the Law] of the Constitution in conjunction with article 14 (Prohibition of discrimination) and article 1 (General prohibition of discrimination) of Protocol no. 12 of the ECHR and in the application of the relevant criteria to ascertain whether the “difference in treatment” results in a violation of the aforementioned provisions, the Court has found that pertaining to the category of the foreign service of the Republic of Kosovo, this is the case. Therefore, the Court has found that paragraph 3 of article 41 (Transitional Allowance) of the contested Law is not in compliance with paragraphs 1 and 2 of article 46 [Protection of Property] of the Constitution in conjunction with paragraph 1 of article 1 (Protection of Property) of Protocol no. 1 of the ECHR and paragraph 1 of article 24 [Equality before the Law] of the Constitution in conjunction with Article 14 (Prohibition of discrimination) of the ECHR.

(d) the category of functionaries/officials/employees who are employed after the entry into force of the contested Law

The Judgment, also clarifies that according to the contested Law, any person who is employed after its adoption, benefits from the salary according to the relevant Annexes of the Law and does not enjoy the right to the transitory allowance. Consequently, a part of this category is compensated with a lower and different salary for equal work compared to the equivalent positions, for a period of two (2) years, namely for as long as the transitional period lasts. The Judgment further clarifies that this category, which was employed after the entry into force of the contested Law, is not subject to guarantees related to the right to peaceful enjoyment of property in the context of guaranteed provided by article 46 [Protection of Property] in conjunction with article 1 (Protection of property) of Protocol no. 1 of the ECHR. Having said that, the same raises issues pertaining to the principle of equality before the law as guaranteed by article 24 [Equality before the Law] of the Constitution, because a part of the functionaries/officials/employees falling within the scope of this law, but who were employed after its entry into force, will not have the same and/or equal salary as their colleagues who were employed before the entry into force of the contested Law, in violation of the very guarantees that the contested Law itself contains. According to the elaborations given in the Judgment, and in the application of the relevant criteria deriving from the right to equality before the law, the Court found that the “difference in treatment” between these two categories, is not proportional with the aim pursued and, consequently, results in violation of the rights to equality before the law of this category of functionaries/officials and employees. As a result, the Court found that paragraph 4 of article 41 (Transitional Allowance) of the contested Law is not in compliance with paragraph 1 of article 24 [Equality before the Law] of the Constitution in conjunction with article 1 (General prohibition of discrimination) of Protocol no. 12 of the ECHR.

(e) reduction by half of the allowance for work experience during the first fifteen (15) years of work experience

The Judgment also clarifies that the contested Law reduces by half the work experience allowance, namely from zero point five percent (0.5%) to zero point twenty five percent (0.25%), for each full year of work during the first fifteen (15) years of work experience, thus affecting the salary level of all functionaries/officials/employees falling within the scope of the contested Law. According to the elaborations in the Judgment, it is not contentious that the right to the allowance/addition to the basic salary of zero point five percent (0.5%) for each year of work experience, originates from article 18 (Allowances on salary for work experience) of the previously applicable law, namely, Law no. 03/L-147 on Salaries of Civil Servants. Consequently, the “interference/restriction” with this right through the contested Law, is subject to the control of the guarantees provided for through article 46 [Protection of Property] of the Constitution in conjunction with article 1 (Protection of property) of Protocol no. 1 to the ECHR. The Judgment, in applying the principle deriving from the case-law of the ECtHR, clarifies that, while it is not contentious that the relevant “interference” with the right to peaceful enjoyment of property is “prescribed” through the contested Law, it does not follow any “legitimate aim”. This, among other things, because, the reduction by half of the level of the allowance for the first fifteen (15) years of work experience, (i) was done neither for the purposes of an economic crisis or of an extraordinary situation; and (ii) nor for the purposes of “a uniform system of salaries in the public sector” which reflects the purpose of the contested Law, but (iii) according to MIA, it was done “to support and stimulate the contribution as a service to the state and society”. According to the clarifications given in the Judgment, such a purpose does not reflect the obligations stemming from article 55 [Limitations on Fundamental Rights and Freedoms] of the Constitution, according to which, the limitation on fundamental rights and freedoms cannot be done for purposes other than those for which they were provided. Moreover, it does not reflect the obligation of the public authority to balance the limitation and the purpose that is intended to be achieved, considering the possibility of achieving the purpose with a lesser limitation. As a result, the Court has found that paragraph 6 of article 6 (Basic Salary) of the contested Law is not in compliance with paragraphs 1 and 2 of article 46 [Protection of Property] of the Constitution in conjunction with article 1 (Protection of Property) of Protocol no. 1 to the ECHR.

(iii) Effects of the Court’s findings

Finally, and in the context of the effects that are related to the findings of the Court regarding the incompatibility with the Constitution of the aforementioned provisions of the contested Law, based on the principles stemming from the relevant Opinions of the Venice Commission, the case-law of the ECtHR and of the Court, with an emphasis on the balance between the principle of legal certainty and the fundamental rights and freedoms guaranteed by the Constitution, the Judgment clarifies the four (4) main categories of its effects, as it follows:

Firstly, the findings of the Judgment, do not in any way, affect the category of functionaries/officials/employees whose salary levels have been increased through the contested Law.

Secondly, declaring as contrary to the Constitution, and consequently repealing paragraphs 2 and 3 of article 41 (Transitional allowance) of the contested Law, has the consequence of maintaining the existing levels of salaries in the public sector until the new salary, namely the salary as determined through the contested Law, reaches the equivalent to the existing salary. Such determination derives from paragraph 1 article 41 (Transitional allowance) of the contested Law, according to which, if a public official or public functionary, before the entry into force of this law, received a salary that is higher than the full salary provided for by this law, she/he will benefit from the new salary according to the provisions of this law and the transitional allowance equal to the difference between the current salary and the new basic salary. The increase in the value of the coefficient for each fiscal year in relation to the proportional reduction of the transitional allowance, while maintaining the level of the existing salary for the categories that have been affected by a salary reduction, gradually results into the full “harmonization/leveling” with the level of the new salary, which is specified by the contested Law through the relevant Annexes. Moreover, declaring as contrary to the Constitution and repealing paragraph 3 of article 41 (Transitional allowance) of the contested Law, in the context of the category of the foreign service of the Republic of Kosovo, with the entrance into force of the Judgment, entails the obligation to treat this category according to paragraph 1 of article 41 (Transitional allowance) of the contested Law.

Thirdly, declaring as contrary to the Constitution and, as a result, repealing paragraph 4 of article 41 (Transitional Allowance) of the contested Law, entails the obligation to level up the salaries from the entry into force of the Judgment, of the category of those employed after the entry into force of the aforementioned law, based on its article 4 (Principles of salary system) of the contested Law, according to which, among others, “everyone, without any discrimination, shall be entitled to receive equal pay for equal work”.

Fourth, notwithstanding the fact that (i) paragraph 6 of article 6 (Basic Salary) of the contested Law, which is related to the amount of the allowance/addition for work experience; and (ii) paragraph 2 of article 2 (Scope) of the contested Law in conjunction with the provisions specified in the enacting clause of the Judgment, have been assessed as being contrary to the Constitution, the Court has not repealed the same, because (i) the repeal of the first in conjunction with the fact that the contested Law also repeals Law no. 03/L-147 on Salaries of Civil Servants, would result in a legal vacuum regarding the right to allowance/addition to salary for work experience; while (ii) the repeal of the second, would affect the implementation of the contested Law in its entirety. Consequently, based on article 116 [Legal Effect of Decisions] of the Constitution, the Court has ordered the Assembly, to amend and/or supplement the aforementioned articles in accordance with the Constitution and the Judgment of the Court, within a period of six (6) months after the entry into force of this Judgment, with the clarification that in the context of (i) paragraph 6 of Article 6 (Basic Salary) of the contested Law, the rights related to the allowance/addition of the work experience, must be specified in the respective amending/supplementation of the contested Law by the Assembly, but with effect from the entry into force of this Judgment; whereas (ii) paragraph 2 of article 2 (Scope) of the contested Law, the functional, organizational and budgetary independence of constitutionally independent institutions, shall be interpreted and implemented in accordance with the Constitution and the Court’s Judgment. The Court, taking into account the necessary preparations for the enforcement of this Judgment, has determined that this Judgment shall enter into force on 1 February 2024.

This translation is unofficial and serves for informational purposes only.

Note:

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