Flawed Magistrates

Contests for flawed magistrates 2005-2007

The members of the Society for Justice are deeply concerned about the events that characterized the last competition for judges and prosecutors to hold management positions in courts and prosecutor’s offices, held in October-November 2007. Thus, SoJust considers very serious the accusations against some prosecutors for buying the subjects of competition for the occupation of management positions, as well as the accusations of conflicts of interests that affected the impartiality of the examining judges. Concern is heightened by statements in December 2007 by the director of the National Institute of Magistracy about the existence of “internal networks” among magistrates who would defy exams and the Prosecutor General’s about the suspicion of fellow prosecutors about their “arrangement”.

All this determined the members of the Society for Justice to analyze the organization of the seven contests held in the period 2005-2007, according to the new legal provisions.

Our findings regarding the composition of the audit committees are additional concerns: no competition was exempted from violations of the law or the principles of carrying out such activities ( see annex ).

So:

– Although the law (Law no. 303/2004) and the regulation for the organization and conduct of the competition (SCM Hot no. 283/2005 and then Hot no. 320/2006) stipulate that two judges from the ICCJ are part of the commission for courts and two judges from the courts of appeal, respectively, that prosecutors from the prosecutor’s offices attached to the ICCJ and from the courts of appeal are part of the prosecutor’s office they were part of the institutions shown, but within the SCM Inspection ( 7 situations for full members, 3 situations for alternate members ) or from the courts ( one situation );

– At each competition there were appeals that were verified either by the members of the SCM Inspection or by members of the SCM technical apparatus who also fall within the competence of the SCM Inspection: therefore, it became unlikely to find irregularities in the activity of examination commissions as long as they included members of the Inspectorate themselves;

– Although international regulations on conflicts of interest (eg Recommendation No. 10 of 2000 of the Committee of Ministers of the Council of Europe) are applicable to members of committees (which in this capacity clearly perform an administrative function and not a judicial one, each out of the 7 contests there were members of the commission who were in conflict of interests at least apparently with those examined ( 25 situations for full members, 14 situations for alternate members), being either colleagues in the same court as those examined, or their superiors, or current or former subordinates on the administrative line, and in one case a member of the commission was in contractual relations with a criminal prosecutor; it should be noted that, although there were alternate members, in no case did the full members notice the conflict of interest and did not abstain in order to be replaced.

– The decision on the composition of the verification commissions was published either before the start of the competition tests ( one situation ), or during the competition ( three situations ), or after it ( two situations ) or not at all ( one situation ): publication of these decisions later the start of the competition tests, in fact with the exceeding of the legal terms, made the competitors impossible to contest them, making the publication practically useless;

– The test with the most suspicions of incorrectness was always the one to support the project regarding the exercise of the attributions specific to the position for which it is applied: the order of examination of the competitors changed from the one displayed, different questions were asked to the competitors, time presentation did not comply with the limits imposed by law and was different for competitors, there were cases when members of the committee criticized claims of the report right in front of the competitor, the score after which the score was made and the marks given by each member of the committee were not made never public, and the competitors’ projects were never brought to the attention of the public opinion or even of the staff of the courts and prosecutor’s offices where the new leaders were appointed.

– Moreover, the discretionary power of the members of the commission is strengthened by the impossibility to contest the grading at this test, an aspect expressly provided in the Regulation elaborated by the SCM and which thus contravenes art. 21 of the Constitution which guarantees free access to justice and provides that no law may restrict this right;

– The way of appointing judges and prosecutors who are part of the verification commission is one lacking objectivity and transparency: the situations monitored by SoJust determine well-founded suspicions regarding the selection of certain persons in these commissions, who are in administrative collaboration or notorious friendship with SCM members.

The Society for Justice finds that, according to the law, the SCM is solely responsible for organizing and conducting these competitions: this body is the one competent in starting the competition procedures, appointing the members of the commission, validating the competition. The competition was introduced in the legislation as a way of appointing the heads of courts and prosecutor’s offices in order to avoid appointments based on political or clientelistic criteria that were practiced until 2005. Unfortunately, the way in which the SCM managed these competitions, although it was warned by May often both by magistrates, acting individually, and by associations of magistrates, they prove serious negligence, if not bad faith.

For these reasons, the Society for Justice publicly expresses its concern and requests:

1. the immediate resignation of the members of the SCM , who proved incapable of organizing and managing according to objective criteria the issues related to the career of magistrates.

2. the modification of the Regulation for the organization and development of the competition for the occupation of management positions in courts and prosecutor’s offices in order to prevent situations like the ones above.

3. ensuring the transparency of the SCM by publishing the decisions and all the documents related to the career of magistrates.

4. establishing objective criteria according to which the members are appointed in the commissions for organizing and verifying the various competitions, but also in connection with the other activities involving discretionary powers of the SCM: promoting magistrates as judges at the ICCJ, appointing Inspectors within the SCM, appointing section presidents and chief prosecutors, transfer of magistrates, participation in national and international seminars, appointment of 10-year-old lawyers as a judge or prosecutor.

5. requests the involvement of the President of Romania, in promoting a transparent activity of the Superior Council of Magistracy.