In a recently rendered HR-2024-334-A judgment, the question was whether the prohibition against transfers in Section 22 of the Constitution implies that two court leaders who, following the judicial reform in 2021, no longer hold leadership positions but are entitled to retain their title and salary, are obliged to work as ordinary judges in the merged courts.
Date 27.02.2024
Labor Law Practice | HR-2024-334-A: Redundant Court Leaders May Be Assigned Transfers
As a consequence of the merger of courts following the judicial reform in 2021, several court leaders became redundant in their leadership roles. The affected positions were continued as judicial offices in the merged courts, but in a way that allowed the incumbents to retain their title and salary.
Legal Principles
Section 22 of the Constitution states that judges cannot be transferred “against their will”. This provision must be interpreted in light of Section 95 of the Constitution, which safeguards the independence of the judiciary.
The Supreme Court assumes that the protection against transfers in Section 22 of the Constitution encompasses various forms of spatial relocation of the workplace, as well as changes in duties.
However, the Supreme Court establishes in paragraph 73 that Section 22 of the Constitution must be understood in a way that, in “a substantiated organizational change, the civil servant must accept that the position changes as long as he or she retains title, salary, and other benefits of the position. Whether the civil servant can demand to be relieved of his or her duties depends on whether the changes, qualitatively and quantitatively, are so significant that they, through a comprehensive assessment, alter the nature or characteristics of the position”.
The Specific Assessment
The Supreme Court then assessed whether the protection against transfers had been violated, which had to be based on “the actual differences before and after the reorganization, taking into account their overall effects”.
The changes in the specific case concerned two aspects. Firstly, the judicial authority was expanded in scope for the former court leaders. Secondly, the leadership function was abolished.
The Supreme Court briefly dismissed that the order for expanded judicial function itself is “in violation of the prohibition against transfers”.
Subsequently, the Supreme Court examined the cessation of the leadership function, considering both its qualitative and quantitative aspects. It was clear that the changes qualitatively affected the nature of the position as the scope of duties was narrowed, and the relevant civil servants lost the freedom associated with a leadership position. However, the Supreme Court believed this was less intrusive than if the judges had been assigned new tasks of a different nature.
Moreover, the Supreme Court emphasized that the former court leaders retained the same office location in the merged court, could only be assigned cases related to this jurisdiction, were exempt from traveling, and were not part of the rotation system.
The Supreme Court also pointed out that the judges retained their title, salary, and salary progression. The Supreme Court believed that, in reality, the positions became more attractive for the judges because they retained the additional remuneration associated with their previous responsibilities and workload as court leaders, even though these areas of responsibility were abolished. These benefits partially compensated for the loss of personal freedom inherent in holding a position as a court leader.
After an overall assessment, the Supreme Court concluded that even though the changes, particularly the abolition of leadership functions, could be said to somewhat alter the nature of the positions, the changes were not so significant that the positions acquired a different nature or characteristics. The judgment was unanimous.
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Significance of the Judgment
The weight given to the independence of the judiciary has a significant impact on the scope of the prohibition against transfers in Section 22 of the Constitution. The independence and job security provided by Section 22 are not for the benefit of individual judges but are justified by the interest of the rule of law. Even indispensable civil servants, including judges, must therefore, to a large extent, accept that justified organizational changes result in a change to the position.
