Decision No. 12 of 27 July 2018 on Constitutional Case No. 1/2018
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by a five-member panel of the Supreme Administrative Court. The subject matter of the case concerns the constitutionality of Article 193, paragraph 6 of the Judicial System Act, which provides that within a nine-month period following the conclusion of the previous competition procedure, and upon a decision of the relevant chamber of the Supreme Judicial Council and the existence of a vacant position within a judicial authority, the relevant chamber of the SJC shall adopt a decision appointing the next-ranked candidate in the competition for promotion or transfer, who has obtained a final evaluation in the competition procedure not lower than “very good” (5.00). The request for a declaration of unconstitutionality is based on allegations of violation of the principles enshrined in Article 4, paragraph 1 (rule of law), Article 5, paragraph 1 (supremacy of the Constitution), and Article 6, paragraph 2 (equality of citizens before the law) of the Constitution.
Summary of the Court’s Reasoning
A fundamental characteristic of the judiciary within the system of separation of powers is its autonomy and distinctness from the other two branches. The independence of the judiciary operates on two levels: first, independence from the other branches of power (the principle of separation of powers, coupled with their interaction), and second, the independence of each individual judge, prosecutor, and investigating magistrate in the performance of their functions. The constitutional requirement of independence of judges, prosecutors, and investigating magistrates is satisfied where, at the statutory level, a reliable and effective mechanism is established and applied for internal selection in cases of transfer and promotion, based on clear rules and procedures.
By providing that a vacant position is to be filled by the next-ranked candidate who participated in a promotion or transfer competition and obtained a final evaluation of not less than “very good” (5.00), Article 193, paragraph 6 of the Judicial System Act ensures, to the highest degree, the independence of judges, prosecutors, and investigating magistrates, as it secures their advancement through the mechanism of a public competition in which they have demonstrated high performance. At the same time, it offers a reasonable and balanced solution in cases where vacant positions within a judicial authority must be filled in a timely manner within a strictly defined, non-prolonged period.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 of the Constitution (the competence to rule on requests for a declaration of unconstitutionality of laws), the Constitutional Court rejects the request seeking a declaration of unconstitutionality of Article 193, paragraph 6 of the Judicial System Act.
The decision was adopted with one dissenting opinion.