On behalf of the Republic of Moldova, the Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Mr. Talal Igor DOLEA, GEOGRAPHIC LOCATION, Mr. Victor PALMER, Mr. Zadrahimi, judges, with the participation of Mrs. Ludmila Chihai, Registrar, taking into account the appeal lodged on 3 April 2017 and recorded at the same time, examining the appeal referred to in public plenary, taking into account the acts and proceedings of the dossier , acting in plenary, following a judgment Pronounced: PROCEDURE 1. The origin of the case lies the appeal lodged with the Constitutional Court on 3 April 2017 by the Supreme Court of Justice, under articles 135 para. (1) (a). of the Constitution, 25) lit. d) of the law on the Constitutional Court and 38 para. (1) (a). d) of constitutional jurisdiction, the Code for controlling notification constitutionality of article 101 paragraphs 1 and 2. (1) of law No. 328 of 23 December 2013 regarding remuneration of judges and prosecutors.
2. The author of the referral alleged that article 101 paragraphs 1 and 2. (1) of law No. 328 of 23 December 2013 regarding remuneration of judges and prosecutors, which States that the salaries of judges and prosecutors function established, pursuant to article 1 shall be reviewed annually on 1 April, within the limit of the appropriations provided for this purpose in the State budget, coming in conflict with articles 1 (1). (3) paragraphs 1 and 2, 46. 116 (1) and paragraphs 1 and 2. (1) of the Constitution.
3. By decision of the Constitutional Court of 3 April 2017 referral has been declared admissible, without prejudeca Fund case.
4. In the process of examination referral, the Constitutional Court requested the views of the President, Parliament, Government, the Superior Council of Magistracy, the Superior Council of Prosecutors and Prosecutor-General.
5. In the plenary session of the Court, the Supreme Court of Justice was represented by Iulia Sîrcu, judge. Parliament was represented by Valeriu head of Kuchuk, representation at the Constitutional Court and the law enforcement agencies within the General Directorate of the Parliament Secretariat. The Government was represented by E, Deputy Minister of Justice, Taha, M. Cărăuș, Deputy Minister of finance, and the Racerboy, Deputy Head of the Directorate of the Ministry of labor wage policies, social protection and family.
In FACT 6. Law No. 328 of 23 December 2013 governs and conditions of remuneration of judges and prosecutors, including the amount of the salaries of their function, instituting a uniform salary system, based on the average salary in economy achieved in the previous year of discharge as the reference unit.
7. Pay System of judges and prosecutors shall establish the general framework for the application of uniform standards and procedures for determining the wage, ensure the creation of a hierarchy of categories salaries of judges in relation to the level of the courts and the creation of a hierarchy of wages by prosecutors in relation to the level procuraturilor.
8. On 16 December 2016, by law nr. He completed 281 Parliament law No. 328 of 23 December 2013 article 101, which provides that the function of the salaries of judges and prosecutors under the conditions laid down in article 1 shall be reviewed annually on 1 April, within the limit of the appropriations provided for this purpose in the State budget.
PERTINENT LEGISLATION 9. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 1Statul "[...]
(3) the Republic of Moldova is a democratic State of law, in which human dignity, rights and freedoms, the open development of human personality, justice and political pluralism represent supreme values and are guaranteed. "


Article 6Separaţia and cooperation of powers "in the Republic of the legislative, Executive and judicial powers are separate and cooperate in the exercise of their prerogatives under the Constitution."


Article 46Dreptul to private property and its protection "(1) the right to private property, as well as loans and advances to the State are guaranteed.
[...] "


Article 116Statutul "(1) the judges of the courts are independent, impartial and irremovable under the law.
[...] "
10. The relevant provisions of law No. 514-XIII from 6 July 1995 concerning judicial organization (republished in the Official Gazette, no. 2013, 15-17, section 62) are as follows: Article 1Puterea Court "(1) the judicial power is independent, separate from the legislative and executive power, has its own tasks exercised through the courts, in accordance with the principles and provisions of the Constitution and other laws.
[...] "


Article 22Cheltuielile for the administration of Justice "(1) the financial resources required for the proper functioning of the courts shall be approved by the Parliament, on a proposal from the Superior Council of Magistracy, and included in the State budget. These means cannot be reduced without the consent of the Superior Council of Magistracy and is allocated on a regular basis.
(2) the costs of proceedings are governed by the law and shall be included in the chapter in the respective budgets of the courts, to the article.
(3) the courts and the National Institute of justice are required to provide the necessary means in their own budgets to cover expenditure relating to programmes of continuous training of Heads of secretariats of the courts and judicial assistants. "
11. The relevant provisions of law No. 328 of 23 December 2013 regarding remuneration of judges and prosecutors (Official Gazette, no. 2014, 14-16, art. 32) are as follows: Article 1Obiectul and the scope of the law "(1) this Act regulates the procedure and conditions for the remuneration of judges and prosecutors, including the amount of the salaries of their function, establishing a unitary system of remuneration of judges and prosecutors based on average salary per economy achieved in the previous year of discharge as the reference unit.
(2) the salary system of judges and prosecutors shall establish the general framework for the application of uniform standards and procedures for determining the salaries and provide for: (a) creation of a hierarchy) salaries of judges depending on the level of the courts;
a/1) creation of a hierarchy of categories and prosecutors salaries depending on the level of procuraturilor;

b) rules transparent and easily applicable.
(3) this law shall apply to the judges from all the courts, judges and judges-assistants within the Constitutional Court, and prosecutors. "


Article 2Principiile of the system of remuneration of judges and prosecutors "(1) the salary system of judges shall be determined taking account of the principle of separation of powers, the role of judges in implementing the Act of Justice, incompatibilities and restrictions provided by law for them, and the requirements imposed by international documents relating to the effective functioning of the judicial system and the status of magistrates.
(1/1) Salary system of prosecutors shall be determined taking account of the role of the Prosecutor to achieve the Justice Act, incompatibilities and restrictions provided by law for them, and the requirements imposed by international documents concerning the efficient functioning of the Prosecutor's Office.
(2) the salary system of judges and prosecutors is based on the following principles: a) the rule of law-the principle according to which pay shall be determined under the terms of the legislation in force;
b) proportionality-principle according to which the pay system ensures the establishment of wages in relation to the level of employment requirements, the complexity of the work carried out, the degree of responsibility of the person, and according to incompatibilities and restrictions provided by law;
c) equity and consistency-the principle according to which the wage system creates equal opportunities for both judges and prosecutors through the regulation of certain principles and rules of the uniform wage. "


Article 7Reguli on the establishment of general salary of the judge "(1) the salary of the judge and the Prosecutor's salary shall be established and shall be paid for the work done in the period of a calendar month, during normal work, in proportion to the actual time worked.
(2) the judge's Salary shall be determined within the limits and under the conditions laid down in this law and of the normative acts for its implementation, by an act of the President of the Court in which the judge operates, and in the case of judges and judges-assistants within the Constitutional Court-by an act of the President of the Court.
(3) the Prosecutor's Salary shall be determined within the limits and under the conditions laid down in this law and of the normative acts for its implementation, through an administrative act of the Attorney General. "


Article 101 [final and transitory provisions] (1) the salaries of judges and prosecutors function established, pursuant to article 1 shall be reviewed annually on 1 April, within the limit of the appropriations provided for this purpose in the State budget.    (2) the amount of the average monthly wage on economy achieved in the preceding year shall be submitted annually by the Ministry of labour, social protection and family to be published in the Official Gazette of the Republic of Moldova. "
In LAW 12. From the contents of the referral, the Court observes that it is aimed at essentially filling the annual wage review function of judges by the amount of the appropriations provided for this purpose in the State budget.
13. Thus, the appeal relates to a set of elements and principles with constitutional value related to the principle of separation of powers and the principle of the independence of the judiciary.
A. ADMISSIBILITY Of 14. In accordance with its decision of April 3, 2017, the Court noted that, under articles 135 para. (1) (a). the Constitution of 4), para. (1) (a). a) of the law on the Constitutional Court and of the implementing regulation. (1) (a). the constitutional jurisdiction of the code), the appeal presented to the competence of the Constitutional Court.
15. Articles 25, paragraph 2. (1) (a). d) of the law on the Constitutional Court and 38 para. (1) (a). (d) constitutional jurisdiction) of the Code empowers the Supreme Court to refer the matter to the Constitutional Court.
16. The Constitutional Court finds that constitutionality is subject to article 101 paragraphs 1 and 2. (1) of law No. 328 of 23 December 2013 regarding remuneration of judges and prosecutors.
17. the Court observes that, in the appeal Fund, annual wage review function of judges and prosecutors, within the limits of the appropriations provided for this purpose in the State budget.
18. the Court note that provisions challenged have never made the object of constitutionality.
19. Consequently, the Court considers that the appeal cannot be rejected as inadmissible and there is no other reason to interruption of the process in accordance with the provisions of article 60 of the code of constitutional jurisdiction.
20. the Court retains that power was vested in it by article 135 paragraph 1. (1) (a). the Constitution requires) of the correlation between the laws and the Constitution, taking into account the principle of the supremacy of the latter.
21. Thus, in order to elucidate the compliance provisions challenged with constitutional norms, the Court will operate, in particular, with the provisions of articles 116 and 6 of the Constitution, as well as with the principles governing the rule of law.
22. At the same time, with reference to the claims about his written opinion presented in the Parliament on the existence of a conflict of interest of the judges of the Constitutional Court from examining the contested norm and their opportunity for objection, the Court points out that, according to article 135 of the Constitution, it is the sole authority of constitutional jurisdiction in the Republic of Moldova, which enforces on notification constitutionality control over laws, other normative acts set out in article 135 paragraph 1. (1) (a).     the of the Constitution). Similarly, according to article 140 of the law on the Supreme Constitutional Court decisions are final and cannot be appealed.
23. At the same time, article 27 of the code of constitutional jurisdiction to regulate that the judge of the Constitutional Court cannot participate in the examination of the case and to be recuzat only if: (a)) participated as a decision factor in the adoption of the Act, except for the elaboration and adoption of the Constitution; b) has exhibited in public opinion about the constitutionality of the Act in question.
B. the CASE of alleged infringement of the FUND article 116 combined with article 6 of the Constitution

24. The author claims that the contested provisions of the referral of article 101 of the law regarding remuneration of judges and prosecutors to come into conflict with article 116 of the Constitution, according to which: "(1) the judges of the courts are independent, impartial and irremovable under the law.
[...] "
25. Similarly, the author of the referral considers that supervision of constitutionality rule violates article 6 of the Constitution, which States: "in the Republic of the legislative, Executive and judicial powers are separate and cooperate in the exercise of their prerogatives under the Constitution."
1. Arguments of the author referral 26. Author of referral to state that by establishing a margin of discretion to review judges ' salaries, if the appropriations provided for in the national budget are insufficient, affects the independence of the judges, guaranteed by article 116 of the Constitution.
27. The author of the referral argues that insecurity which he presented to wage fluctuations of judges, in the given situation, is incompatible with the need to ensure the exercise of the judicial function independently and impartially, to be protected by external pressures aimed at influencing their decisions and behaviour.
28. in addition, the author considers that the procedure for referral to regulate judges ' annual wage review, within the limit of the appropriations provided for this purpose in the State budget, contrary to the principle of the rule of law, proclaimed in article 1 (1). (3) of the Constitution.
2. authorities 29 Arguments. In his written opinion, Parliament noted that through the provisions of the disputed methodology was determined wage mechanism operation, setting and the date on which the revision of salaries can be effected according to the amount of average monthly wage on economy achieved in the previous year.
30. Parliament considers that the contested rule cannot be applied in sensu stricto, be applied in close connection with all provisions of the law, taking into account the need to ensure the constitutional guarantees established by the Constitution.
31. In his opinion, the Government noted that the law contains no express provisions Supreme or which can be interpreted in the sense in which they would guarantee the right of judges or other persons to increase the annual salary. By the way, both in the Constitution and other legislative acts, there are no rules that would prohibit modification of the provisions governing the mechanism for determining the size of the salary. Thus, to the extent that the new law does not affect the size of the current salary of the judge, it does not entail an infringement of the rights guaranteed by the Constitution.
32. Moreover, the Government, in its written opinion, points out that the policy staff salary in budgetary sector belongs exclusively to the State, which by law can introduce, suspend or eliminate certain wage standards, measures taken for the maintenance of budgetary balance between expenditure and revenues, following a public purpose in the public interest, while respecting fundamental human rights.
33. Thus, the Government argues that the impugned provisions pursue a legitimate aim, namely the economic stability of the country, and keeps a reasonably proportionality between the means employed and the aim envisaged by the legislator-pay the salary of judges and prosecutors.
3. Assessment of the Court 3.1. General principles 34. According to article 116 paragraph 1. (1) of the Constitution, judges of the courts are independent, impartial and irremovable under the law. Constitutional provisions defining the legal status of judges in the Republic of Moldova and recognises as a justice independent and impartial branch of State power. 35. The Court noted that under the democratic system of the principle of the separation of the three branches of State power, to keep the ambitions of the rule of law, it is important that the existence of an independent judicial powers. Judicial power being exercised, by the judges, as unique exponents of this power, it consists, in turn, of a system of authority that must be distinct from the legislative and executive powers, authorities and neinfluenţate.
36. Considering that the only ones are carriers of the judicial power, the Court judges note that the principle of independence of judges represents the pillar of maintaining judicial power as a full-fledged power architecture for the Organization of State power. the principle of separation of powers requires collaboration and keeping their balance. For these reasons, the principle of independence of judges represents not only constitutional basis, but also measure controlling the observance of the rights and capacities of the judiciary within the framework of actions to maintain the balance of powers of the State.
37. The principle of the independence of the judge involve two issues: independence functional and personal independence.
38. Functional independence implies, on the one hand, that judges should not be influenced by the Executive or legislative, and, on the other hand, that the courts should not be subjected to on the part of successive legislative power, executive power or litigants.
39. the personal independence of the judge, who shall endorse the status must be provided by law. Basically, the criteria for assessing personal independence are: the recruitment of magistrates; the duration of the appointment; irremovability; fixing the salary of judges by law; freedom of expression of judges and the right to form professional organizations to defend their interests; the incompatibilities; prohibitions; preparation continues; the liability of judges.
40. Thus, the Court notes that the independence of the judiciary cannot be ensured without a financial independence of judges.
41. According to article 121 paragraph 2. (1) of the Constitution, the financial resources of the courts are approved by Parliament and are included in the State budget.

42. According to article 22 of law No. 514-XIII from 6 July 1995 concerning the judiciary, the financial means necessary for the proper functioning of the courts shall be approved by the Parliament, on a proposal from the Superior Council of Magistracy, and are included in the State budget. These means cannot be reduced without the consent of the Superior Council of Magistracy and is allocated on a regular basis.
43. the court notice that insurance would have the respect of the judges and is drawn into the international standards governing the independence of the judges.
44. Thus, the European Charter on the status of Judges lays down: "6.1. The exercise of that profession of judicial duties involves the remuneration of a judge at a level established in such a way as to protect it from pressure aimed to influence decisions or general meaning in his jurisdiction and affect the independence and impartiality ".
45. The reasons for the Charter with reference to 6.1, it was established that the level of remuneration shall be fixed so as to protect the judge against pressures, rather than to provide a determination of this level in relation to remuneration accorded to holders of high offices within the legislature or executive, as holders of these functions are to be treated in a comparable manner from one national system to another.
46. Likewise, it was noted that the provisions of the Charter are aimed at raising the level of securities in different European countries, to an extent which depends on the level already achieved in these countries. The provisions of the Charter cannot in any way serve as a basis for possible amendments to the statute that would involve national, conversely, lowering, lowering the level of the guarantees already achieved in one country or another.
47. According to Recommendation CM/Rec (2010) 12 of the Committee of Ministers to Member States concerning judges: independence, effectiveness and responsibility: "53. The main rules of the system of remuneration for judges shall be determined by law professionals.
54. The remuneration of judges must be as their role and responsibilities and have a level sufficient to make them immune to any pressure designed to influence the decisions. There must be guarantees for maintaining a reasonable remuneration in case of sickness, maternity or paternity, as well as for the payment of old-age pensions, which should be reasonably reported at the level of remuneration of judges in Office. Specific legal provisions should be introduced establishing a measure of protection against a reduction of the remuneration which would specifically target the judges.
55. To avoid systems in which the basic remuneration of judges depend on performance, because it could create difficulties for the independence of the judges. "
48. In its opinion No. 1 (2001) of the Consultative Council of European Judges (CCJE) stipulated that: "62. While some systems (e.g. Nordic countries) resolves the situation by traditional mechanisms without formal legislation, CCJE considered generally important (and, in particular, in the case of new Democrats) that there should be specific legislation to ensure that the salaries of judges are protected from shrinkage and to ensure de facto rise of wages in relation to the cost of living ".
49. Furthermore, in its opinion No. 2 (2001), the CCJE has noted, even if the courts funding is part of the national budget in Parliament, supported by the Ministry of finance, it must not be subject to political fluctuations. Although determining the level of funding of the courts that a country can afford it constitutes a political decision, we must always take care that neither the Executive nor the legislative cannot exert pressure on judicial authority at the time of budgeting. Decisions concerning the allocation of funds for the Court should be taken with strict observance of judicial independence (point 5).
50. According to section 2 of the opinion No. 2 (2001), the financing of the courts is in close connection with the independence of judges, in that it determines the conditions under which courts carry out their duties.
51. the Venice Commission, in the report on European standards relating to the independence of the judiciary (2010, part I, CDL-AD (2010) 040) argues: "55. Decisions concerning the allocation of the budgetary funds by the courts to be taken respecting the strictest of the principle of judicial independence, and the judiciary should be given the opportunity to express their views regarding the proposed budget to Parliament, possibly through the Judicial Council ".
3.2. Application of the principles in this question 52. Appreciating the guarantees of judges as one of the pillars of their independence, the Parliament passed Law No. 328 of 23 December 2013 entered into force from 1 January 2014.
53. This law shall establish uniform standards and procedures for determining salaries. The law does not establish a fixed amount of wages, but only a formula (based) computing.
54. Thus, article 1 of law nominated by way of the principle lays down that the system of remuneration of judges and prosecutors is based on average salary per economy achieved in the previous year of discharge as the reference unit.
55. the Court notes that, under article 1 of the Act, the amount of salary of the judges nominated to be recalculated annually depending on the size of the average salary per economy achieved in the preceding year.
56. At the same time, the Court noted that Parliament, on 16 December 2016, has adopted Law No. 281 concerning the modification and completion of some legislative acts, by which, inter alia, to complete the law No. 328 of 23 December 2013 article 101, according to which: "the function of the Salaries of judges and prosecutors be established pursuant to article 1 shall be reviewed annually on 1 April within the limit of the appropriations provided for this purpose in the State budget. "

57. the Court finds that, even if a legal provision (article 1 para. (1) non-pecuniary) sets out the principle that the salary of judges and prosecutors will be calculated based on average salary per economy achieved in the preceding year, while this unit becomes one reference inoperabilă. However, by rule, challenged the legislature entirely conditional on the size of the salary of the judge's decision to be adopted annually by the Executive and legislative to allocate financial resources to fund the salary of the judicial system.
58. the court notice that under these conditions the size of salary the judge becomes uncertain, being left to the discretion of the decidenților, which could affect the independence of the judiciary.
59. the Court reiterates that the establishment of the remuneration policy, including judges, the competence of the legislature and the Executive. At the same time, the adoption of any remuneration solutions to comply with constitutional principles.
60. In Judgement No. 27 December 20, 2011, the Constitutional Court has noted that the constitutional status of the judge does not represent his personal privilege, but a good of the entire society, being called upon to ensure the effective protection of the rights of every Member of society. Remuneration of judges, it falls within any of the physical or social insurance, is one of the basic components of his independence, being a contrabalanţă to restrictions, prohibitions and responsibilities imposed on their society. Only the maintenance of this balance allows litigants to manifest confidence in the competence, independence and impartiality of judges.
61. Furthermore, the Court pointed out that the legislative power is a direct representation of the people, which is the holder of national sovereignty. For these reasons, it holds the country's budget and determines the rules of behavior of all natural and legal persons in the society. The Executive power is formed by the diriguitorul legislative, budgetary resources provided by legislative and operative management prerogatives of the holder of the goods and the company's shares. The judicial power, however, does not hold any of these major functions. It resolves disputes law in society as a result of the actions of the two powers. For these reasons, the quality of Justice, as an act that is emitted from the judiciary, is directly proportional to the level of independence of the judiciary and with its support so legislative power and executive power.
62. In a genuine democracy, both the Government and the people must recognize that the judge, who must decide in last resort, on life, liberty and human rights, in addition to a highly professional and irreproachable reputation, must possess a neoclassicism and a sense of security with regard to his future. The State has the obligation to determine the remuneration of judges in such a way that it compensate the effort and his responsibilities and to be as the status and the functions that they perform, and the maintenance of the remuneration is one of the guarantees of the independence of the judge.
63. Incompatibilities and prohibitions laid down for judges by the basic law and developed through a special law, as well as the responsibilities and risks involved in the profession, require regulation of the right to wages corresponding to their status of judge.
64. In conclusion, the Court referred to note that incompatibilities and prohibitions laid down for judges by the basic law and developed through a special law, as well as the responsibilities and risks involved in the profession, require regulation of wages corresponding to their status and judge in a way that would ensure predictability of its amount. In this regard, the provisions contained in article 101 paragraphs 1 and 2. (1) of law No. 328 of 23 December 2013 regarding remuneration of judges and prosecutors, the annual amount of salary packaging limit allocations provided for in the national public budget, violates articles 6 and 116 from Moldova's Constitution.
For these reasons, under articles 135 para. (1) (a). of the Constitution), 140, 26 of the law on the Constitutional Court, 6, 61, 62 and 68 of the code of constitutional jurisdiction, the Constitutional Court DECIDES: 1. the appeal is allowed in part of the Supreme Court of Justice for the constitutionality of article 101 paragraphs 1 and 2. (1) of law No. 328 of 23 December 2013 regarding remuneration of judges and prosecutors.
2. Declaring unconstitutional the phrase "within the limits of the appropriations provided for this purpose in the State budget" in paragraph 1 of article 101 of the law No. 328 of 23 December 2013 regarding remuneration of judges and prosecutors.
3. This decision is final, cannot be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.