Decision U.no.160/2014

U.no.160/2014

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 of the Rules of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 18 January 2017, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. Article 144 of the Law on Judicial Service (“Official Gazette of the Republic of Macedonia”, nos.43/2014, 156/2014, 33/2015 and 98/2015) SHALL BE REPEALED.

2. This decision shall generate legal effects from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

3. With its Resolution U.br.160/2014 dated 31 October 2016 the Constitutional Court of the Republic of Macedonia instigated proceedings for appraising the constitutionality of Article 144 of the Law on Judicial Service (“Official Gazette of the Republic of Macedonia”, nos.43/2014, 156/2014, 33/2015 and 98/2015), as there was a reasonable question raised with regard to the accordance of the provision with the Constitution.

4. At its session the Court found that under Article 144 paragraph 1 of the Law on Judicial Service, the judicial officer who was employed at the court as of the date of commencement of the application of this Act, should submit evidence of proficiency in foreign languages ​​and knowledge of computer programmes for office operations appropriate to his job, in which he was assigned on the day of commencement of the application of this Act, within one year from the date of accession of the Republic of Macedonia to the European Union. Under paragraph 2 of that Article, the judicial officer who fails to furnish proof of knowledge of foreign languages ​​and knowledge of computer programmes for office operations pursuant to paragraph (1) of this Article shall be assigned to a position lower for one category than the job in which he was assigned at the time of entry into force of this Act, except judicial officers who on the day of commencement of the application of this Act were assigned to entry level positions. Pursuant to paragraph 3 of this Article, paragraphs (1) and (2) of this Article shall not apply to judicial officers who shall exercise the right to pension within ten years from the date of commencement of the application of this Act.

5. Under Article 8 paragraph 1 line 3 of the Constitution the rule of law is a fundamental value of the constitutional order of the Republic of Macedonia.

Under Article 32 paragraph 5 of the Constitution, the exercise of the rights of employees and their position are regulated by law and collective agreement.

Pursuant to Article 51 of the Constitution in the Republic of Macedonia laws shall be in accordance with the Constitution and all other regulations in accordance with the Constitution and law. Everyone is obliged to observe the Constitution and the laws.

The Law on Judicial Service regulates the rights, duties, responsibilities of the judicial officers, the system of salaries and compensations to salaries of judicial officers (Article 1).

Under Article 3 paragraph 1 of the Law, judicial officers are persons with the status of administrative officer who perform professional, administrative, IT, technical, statistical-analytical and material-financial affairs in the courts in accordance with this and other laws. Judicial officers exercise their employment rights in compliance with this Law and collective agreements.

The impugned Article 144 of the Act is codified in Chapter XVIII. TRANSITIONAL AND FINAL PROVISIONS.

At the time of the lodging of the application, Article 114 paragraph 1 of the Law on Judicial Service read: “The judicial officer who was employed at the court up to the date of commencement of the application of this Law should submit evidence of proficiency in foreign languages ​​and knowledge of computer programmes for office operations, within two years from the date of commencement of the application of this Law.”

With Article 1 of the Law Amending the Law on Judicial Service (“Official Gazette of the Republic of Macedonia” no. 98/2015 of 15 June 2015), this paragraph obtains the current content, in a way that the words “within two years from the date of commencement of the application of this Law” shall be replaced with the words “appropriate to his job, in which he was assigned on the date of commencement of the application of this Law, within one year from the date of accession of the Republic of Macedonia to the European Union.” According to the explanation of the Proposed Law, the change replaces the deadline for submission of the said evidence of two years from the date of commencement of the application of the Law on Judicial Service with a term of one year from the date of accession of the Republic of Macedonia to the European Union, whereby the Law on Judicial Service is harmonised with the amendments to the Law on Administrative Officials, previously adopted and entered into force.

The Court holds that the amendment to the deadline for submission of the said evidence does not affect the legal issue raised by the application, and consequently further on there is constitutional-legal analysis of the contested provision in the current text.

The impugned Article 144 of the Law on Judicial Service is systematised in Chapter XVIII. TRANSITIONAL AND FINAL PROVISIONS. With it the legislator regulated the transitional regime for judicial officers who became employed in the court up to the date of commencement of application of this Law, determining them a deadline for submission of proof of knowledge of foreign languages ​​and knowledge of computer programs for office operations. Otherwise, if they fail to provide the required evidence within the specified period they will be assigned to a position in one category lower than the position they had at the time of commencement of application of this Law. This assignment (penal) does not apply to judicial officers who on the date of commencement of the application of this Law were assigned to entry positions. The requirement to submit the said evidence and penal assignment unless the evidence is furnished within the specified period does not apply to the category of judicial officers who exercise the right to pension within ten years from the date of commencement of the application of this Law.

Namely, the new Law on Judicial Service as separate job competencies for all levels of category B (managing), C (professional) and D (assisting-professional) of judicial officers determines an obligation for active knowledge of computer programmes for office operations and knowledge of one of the three most commonly used languages ​​of the European Union (English, French or German).

These special conditions for employment were not envisaged in the previously valid Law on Judicial Service (“Official Gazette of the Republic of Macedonia” nos. 98/2008, 161/2008, 6/2009 and 150/2010), which ceased to be applied on the date of commencement of the application of the new Law. However, the previously applicable law in its Article 29-a provided the right and duty of the judicial officer for professional development and training. Continuous training for professional development of judicial officers is aimed at the acquisition and continuous improvement and professional development of theoretical and practical knowledge and skills for qualitative, professional and efficient performance of duties and tasks.

For these reasons, with the new Law on the Judicial Service the legislator stipulated a deadline within which judicial officers who became employed in court up to the date of commencement of application of the new Law should within a specified deadline submit proof of proficiency in computer programmes for office work and knowledge of foreign languages.

It is undisputed that the legislator has the right to regulate new special conditions for work in a particular area, in this specific case the area of ​​judicial service. However, the transition from the old to the new regime of regulation of the relations in law should be provided in a way which implies that the chosen measures, that is, means are adequate to the objectives and reasons for which they are envisaged, without thereby questioning or to greater extent jeopardising legal certainty and already acquired rights and interests of the subjects to which they relate.

In this regard, according to the Court, the requirement for knowledge of computer programmes for office work and knowledge of foreign languages ​​adequate for the job (Article 144 paragraph 1 of the Law) should be seen as an obligation for professional training and development of the judicial officer, in the function of qualitative, professional and efficient performance of the duties and tasks. Under Article 55 of the Law on the Judicial Service, the judicial officer has the right and duty to professional training and development. Continuous training for professional development of judicial officers is aimed at acquisition and continuous improvement and professional development of theoretical and practical knowledge and skills for qualitative, professional and efficient performance of their duties and tasks. Hence, according to the Court, knowledge of computer programmes for office work and knowledge of foreign languages ​​adequate for the job represent knowledge and skills that are the real condition and need to carry out the rights, duties and responsibilities of the judicial officers of all categories, that is, of both new employees in the judicial service and those who are already employed and assigned to adequate jobs, including judicial officers who shall acquire the right to a pension within ten years from the date of commencement of the application of this Law (Article 144 paragraph 3 of the Law), even though there was no such a requirement when they became employed. However, the conditions for providing such an obligation for professional training and development of judicial officers, especially as it was not a requirement when these judicial officers were employed, is the responsibility of the employer and cannot be on the burden of judicial officers, as required by the impugned Article 144 paragraph 1 of the Law, much less can it provide for “punitive” measures for those who in a certain period do not fulfill this obligation, as prescribed by paragraph 2 of that Article.

Namely, the thus regulated legal solution creates a legal situation, that is, possibility of losing an acquired right of employment, which calls into question the exercise of legitimate expectations the employees had at the time when they were employed under other terms and conditions, before the adoption of the new Law on Judicial Service. This category of employees acquired the rights and obligations of employment under the conditions that were laid down in the then applicable Law on Judicial Service and were already subjected to evaluation in terms of their professional and working competencies for acquiring a specific job and title in the hierarchy of titles.

With the impugned solution previously employed, regardless of previously acquired titles and expertise in work and independently of the successful execution of tasks, are placed in a position of uncertainty of further enjoyment of their employment rights, acquired in a legal manner. This for a reason that the failure to meet the specific requirements of the new law, within the specified period, provides for negative consequences for employees, which are expressed in assignment to a lower position, which certainly implies a salary decrease.

In this way, with a provision of a transitional character, the legislator establishes new requirements for previously employed that are raised at the level of generality having regard to their scope, without considering that at the time when the employee was employed they were not stipulated as generally compulsory for each job. Hence, the new conditions that the Law provides as conditions of employment in the judicial service gain the importance of conditions for keeping the acquired title and salary, which means that such retroactive effect of the provision leads to threatening legal certainty and legitimate expectations of employees regarding acquired rights and obligations.

Additionally, it should be borne in mind that the Law on Judicial Service adequately envisages the special conditions of knowledge of foreign languages ​​and computer programmes for office work for all levels of the categories of judicial officers. Accordingly, the failure to fulfill the special conditions for a particular job can mean failure to meet these requirements for each job, since they are generally provided for all levels and titles in the appropriate category, meaning that the assignment to a lower job does not necessarily have to remove the said “illegality”. From the content of the impugned statutory provision does not arise a clear legal situation with regard to the question whether and where the need for fulfillment of these conditions ends if they are required even for the lower ranked jobs and the officer did not meet them, and all this leads to endangering legal certainty of employees regarding the certainty of retention of even that lower position, bearing in mind that the special requirements are adequately envisaged for all levels, causing additional legal uncertainty for employees in view of their future employment status.

From the impugned legal solution it follows that those previously employed, who gained the assignment to the specific position on the basis of the statutory prescribed conditions, if failing to submit the necessary documents proving those additionally prescribed conditions, are brought into a state of punishment, since the assignment to a post in immediately lower level or title is stipulated by the Law on Judicial Service as a disciplinary measure for more serious disciplinary violation (Article 94 paragraph 2 line 2).

Thus, in conditions when the Law exactly specifies the cases of loss of existing jobs, and solely because of the actions of committed more serious disciplinary violation, it appears that the measure assignment to a lower-level job because of failure to submit, within the prescribed period, proof of knowledge of foreign language and computer programmes for office work, implies same action and effects as the measure which can be imposed only for committing a more serious disciplinary violation. Thereby, it should be considered that the imposition of such a measure in the given situation is prescribed as a threat for failure to fulfill special conditions which are indisputably retroactively established.

According to the Court, it is an undisputed right of the legislator to regulate, modify or complement working requirements, but not in terms of regulation which means denying previously envisaged and fulfilled conditions and denying the successfulness of previous work of the employees, as the meaning of the impugned legal solution, if having in mind that the failure to meet the newly established special conditions within a certain period entails sanctions against the judicial officer who will not meet them.

The retroactive effect of the contested provision of the Law may certainly lead to a situation where court officials that in their overall work so far performed and continue to perform their duties and tasks conscientiously, diligently, qualitatively and successfully even after the entry into force of the new Law are punished by assignment to a lower job and lower salary, which can have a dissuasive effect on the employee.

Considering the foregoing, the Court holds that the measure envisaged providing a transition from the old to the new regime – punitive assignment to a lower position – is not adequate to the goals and reasons for which it is envisaged, because it calls into question and to a greater extent jeopardises legal certainty and already vested rights and interests of employees to whom it applies.

Hence, the Court holds that Article 144 of the Law on Judicial Service is not in accordance with Article 8 paragraph 1 line 3 and Article 52 paragraph 4 of the Constitution.

6. On the basis of what has been noted, the Court decided as in item 1 of the present Decision.

7. The Court took the present decision in the following composition: Mr Nikola Ivanovski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mrs Elena Gosheva, Mr Ismail Darlishta, Mr Jovan Josifovski, Mrs Vangelina Markudova, Mr Sali Murati, Dr Gzime Starova and Mr Vladimir Stojanoski. U.br.160/2014

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