Judges who raised magistrates’ salaries through final rulings have violated five decisions of the Constitutional Court / “That doesn’t matter,” rules a judge from the Bucharest Court of Appeals

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In 2008 and 2009, the Constitutional Court of Romania (CCR) issued five decisions intended to put an end to the practice whereby courts granted salary increases to magistrates, even though the salary laws adopted by Parliament did not provide for such increases.

Although CCR decisions are generally binding on all public authorities, courts systematically ignored these five decisions in the years that followed and continued to issue final judgments granting salary increases to magistrates.

This is how what began as mere inconsistent case law became a systemic phenomenon with a devastating budgetary impact: the salary arrears owed to magistrates, accumulated strictly as a result of these final judgments, amount to 5.2 billion lei—or one billion euros—for this year alone.

This is the amount that the President of the High Court of Cassation and Justice, Lia Savonea, is claiming from the Government in the lawsuit she filed on March 30 of this year with the Bucharest Court of Appeals and which, of course, she won as early as the first hearing.

Until this lawsuit, no one had officially raised an important issue: the fairness of the final rulings through which the judges increased their own salaries. This time, the Ministry of Finance, a party to the lawsuit, did so—albeit rather timidly.

In its response filed with the court, the Ministry of Finance pointed out that there are four 2008 Constitutional Court decisions prohibiting courts from granting salary increases based on the principle of non-discrimination—decisions which, although binding, were not respected by the courts when they decided to grant salary increases to magistrates.

Keyword: discrimination

The main vehicle used by magistrates to increase their salaries through court rulings was Ordinance 137 of 2000, aimed at combating discrimination.

Throughout the 2000s, several governments and Parliaments adopted various salary ordinances and laws, through which either salaries were increased or bonuses were granted to various categories of public sector employees, pending a unified salary law. Each time, the beneficiaries of these rights were explicitly mentioned in the body of the legislative act, which means, in theory, that only they could benefit from these increases.

Although judges had a separate pay law under which all bonuses were included in their base salary, whenever a new legislative act was issued to increase salaries or grant bonuses—regardless of the beneficiaries—hundreds of judges would file lawsuits demanding that they too be granted those increases, on the grounds that they were being discriminated against.

By 2008, the phenomenon had already reached such proportions that the Ministry of Justice was forced to appeal to the Constitutional Court. The Ministry raised exceptions of unconstitutionality regarding Ordinance 137/2000 on discrimination in several dozen cases.

The Constitutional Court grouped these complaints into four cases, which it resolved on the same day, July 3, 2008. The Constitutional Court noted that all court rulings granting salary increases and bonuses to magistrates on the basis of non-discrimination tend to create new laws, a power that courts do not possess, as it is the exclusive prerogative of Parliament (through laws) or the Government (through ordinances).

Finally, the CCR ruled that the provisions of the anti-discrimination ordinance “are unconstitutional to the extent that they imply that courts have the authority to annul or refuse to apply legislative acts, on the grounds that they are discriminatory, and to replace them with judicially created norms or with provisions contained in other legislative acts.”

In other words, the CCR prohibited courts from granting judges salary increases or bonuses on the grounds that they would be discriminated against compared to other categories of public sector employees. Over the next two decades, the courts ignored these CCR decisions.

Augustin Zegrean was member of the CCR at that time. He recalls the circumstances surrounding the issuance of those decisions: “We wanted to put a stop to this phenomenon, whereby courts were creating their own salary laws through judicial means. But since compliance with the rules is optional in our country, the courts disregarded the decisions and continued these practices. And you see, there were not just those four decisions; there was another one on the same issue, through which we resolved a legal conflict of a constitutional nature,” Augustin Zegrean told us.

Another front, the same war

Indeed, a parallel front in the same war was opened by the president at the time, Traian Băsescu. In May 2009, President Băsescu referred to the Constitutional Court the existence of a legal conflict of a constitutional nature between the judiciary, on the one hand, and Parliament and the Government, on the other.

The High Court of Cassation and Justice was headed at the time by Nicolae Popa, a close associate of Ion Iliescu, who had appointed him president of the Supreme Court even though he did not meet the legal criteria for the position.

In 2007 and 2008, the High Court, under the presidency of Nicolae Popa, issued two rulings unifying case law, through which it recognized en masse the right of all magistrates to a whole series of bonuses, again invoking the anti-discrimination ordinance. That is, exactly what the courts to which individual magistrates appealed were doing.

Furthermore, through those rulings, the High Court set out to review the constitutionality of certain legal provisions, even though this power belongs exclusively to the Constitutional Court.

President Băsescu argued that through these rulings, the judiciary was creating new salary laws for itself, thereby infringing upon the legislative authority of Parliament and, potentially, the Government as a delegated legislator, and thus violating the separation of powers in the state.

The Constitutional Court found that a conflict of powers existed and resolved it by ruling as follows: “The High Court of Cassation and Justice has the obligation to ensure the uniform interpretation and application of the law by all courts, while respecting the fundamental principle of the separation and balance of powers in the state. The High Court of Cassation and Justice does not have the constitutional authority to enact, amend, or repeal legal norms with the force of law, nor to review their constitutionality.”

Nevertheless, this decision too remained unenforced by the courts. They continued to grant unjustified raises and bonuses to magistrates; the governments were unable to pay them and kept deferring the payments, and this is how we have now reached the point where the High Court is in litigation with the Government and the Ministry of Finance over a cumulative debt of 5.2 billion lei.

“Regardless of the quality of the ruling”

According to the reasoning in the Bucharest Court of Appeals’ ruling, in which the Supreme Court prevailed, the Ministry of Finance’s criticism regarding the quality of court rulings issued in disregard of Constitutional Court decisions was summarily dismissed by Judge Ramona Bușu: “Judicial rulings have the force of res judicata, and the effect of res judicata is attached to the judicial ruling regardless of the quality of the solution rendered.”

In other words, although the judges violated binding decisions of the Constitutional Court, their decisions, even if they are wrong, must be enforced.

In thieves’ slang, this translates to: “What’s stolen is still stolen.”

(Traducere realizată cu ajutorul programului DeepL).