Material independence of judges is an essential guarantee of their independence and, at the same time, of the proper functioning of the judiciary as a whole. Both adequate salaries and retirement pensions, by providing judges with financial independence while shielding them from undue pressure and influence, serve an important role in this perspective.
Several international sources- starting from Recommendation Rec(2010)12 of the Committee of Ministers of Council of Europe and the European Charter on the Statute for Judges- referred to financial security as an important component of judicial independence that requires States to provide judges with an adequate remuneration, secured by law and commensurate with the their public duties and professional responsibilities.
In its judgments of 27.2.2018, Associação Sindical dos Juízes Portugueses and of 7.2.2019, Escribano Vindel, the European Court of Justice stressed the link between judges’ security of tenure and their material security, stating that:
– judicial independence requires Courts exercising judicial functions wholly autonomously, without being subject to any hierarchical constraint, external pressure or interventions;
– like protection against removal from office, the receipt by the members of the judiciary of a level of remuneration commensurate with the importance of the functions they carry out constitutes a guarantee essential to judicial independence.
Despite this clear frame of principles, financial security of judges in Europe remains a critical issue. In several Member States inadequate remuneration acts as a threat to the independence of the judiciary[1]. The same concerns must be expressed with reference to countries where judges do not have an appropriate pension scheme, commensurate with their professional responsibilities: like remuneration, an adequate pension is essential to preclude exposing judges to the risk of inappropriate pressures or of being improperly influenced by their future financial status.
This adds to the frequent absence of resources sufficient to allow the justice system to work properly, and to enable Courts to effectively implement their functions: the significant underfunding of judicial staff in many Council of Europe countries is thus a further factor contributing to the crisis of the judiciary and also impacting on the effectiveness of Article 6 of the European Convention on Human Rights.
In several countries, as e.g. Serbia, one can well observe how all the reported criticalities make the judiciary unattractive for the new generations of law graduates, hampering the selection of the best, who – due to their knowledge, skills and integrity – can resist to any undue interference and ensure a fair trial for all[2].
The financial situation of the Hungarian judiciary developed into one of the most alarming situations as a clear demonstration of how, acting on the leverage of financial resources, governments can seriously and insidiously undermine the proper functioning of the Courts and judicial independence. Poor remuneration, per se and compared to other positions in the public sector and to the significant wage increases in other segments of society; the absence only for the judiciary among all branches of public administration of a mechanism to prevent the erosion of the real value of remunerations and to ensure the periodic review of salaries; the difficulties in recruiting and retaining non-judicial staff: all this implies not only negatively affecting the efficiency of the Courts but also making the functioning of the judiciary dependent on entirely discretionary and unpredictable government decisions, depriving judges of certainty about the future of their economic status[3].
Thus, as stated by our Hungarian member association in the complaint submitted to the European Commission, the current remuneration system and the inadequate national legal regulation do not ensure the separation of the judiciary from the other branches of power and result in a systemic breach of its institutional independence[4].
Against this backdrop MEDEL:
– expresses its concerns about the weakening of judicial independence through the freezing of the remunerations of judges and a variety of manipulations of judicial salary indices, as parts of political strategies affecting the financial security of judges;
-appeals to the governments of individual countries for the full implementation of standards ensuring the independence of the judiciary, including the provision of appropriate remunerations and pensions for judges;
– fully supports the initiative of our Hungarian member association, Res Iudicata, to submit a complaint to the European Commission and seek remedies to the unlawful situation represented by the absence of a guarantee of adequate remuneration;
-calls on European institutions to monitor this area and take actions aimed at ensuring the full independence of the judiciary, including material independence.
24 July 2024
[1]Statement by the Executive Board of the ENCJ on financial security in the context of Judicial independence Statement EB financial security 25 May 2023.pdf (pgwrk-websitemedia.s3.eu-west-1.amazonaws.com)
[2] Attractiveness of the Judicial Career, Report of the ENCJ Thematic Dialogue group, 2023-2024; answers of High Judicial Council of Serbia to the ENCJ questionnaire-annex 2 https://pgwrk-websitemedia.s3.eu-west-1.amazonaws.com/production/pwk-web-encj2017-p/GA%202024/ENCJ%20Report%20Judicial%20Attractiveness%20final%2021%20June%202024_0.pdf; Serbia 2023 report, https://neighbourhood-enlargement.ec.europa.eu/document/download/9198cd1a-c8c9-4973-90ac-b6ba6bd72b53_en?filename=SWD_2023_695_Serbia.pdf
[3] https://resiudicata.hu/wp-content/uploads/2024/06/Status-report-and-call-for-intervention-Judicial-remuneration-in-Hungary.pdf; https://www.encj.eu/index.php/node/669; https://helsinki.hu/wp-content/uploads/2024/07/UN-Special-Rapporteur-on-the-Independence-of-Judges-and-Lawyers.pdf;
2023 Rule of law report https://commission.europa.eu/document/download/d69f242b-bd69-4e15-976f-870470b72b55_en?filename=40_1_52623_coun_chap_hungary_en.pdf
[4] https://resiudicata.hu/en/complaint-for-the-immediate-restoration-of-the-institutional-independence-of-the-hungarian-judiciary/