Illegal Decisions

a) illegal decisions

There are decisions adopted by the SCM that contravene either the laws or the regulations.

For example, rules of transfer, delegation, secondment of judges beyond the law: in Article 9 reads: ” Posting judge or prosecutor may terminate earlier period it was decided by judgment corresponding section of the Superior Council of Magistracy, at the request to the one who requested the secondment or to the seconded judge or prosecutor. The secondment may also cease at the motivated request of the president of the court or of the head of the prosecutor’s office where the judge or prosecutor in question operates ”. [35] In practice, the head of the detachment’s notice, which had been expressly waived by Law 275 of 2005, was bypassed in a deterrent manner ..

The secondment can be ordered for a minimum of 6 months, until then it can only be a delegation. However, the SCM detached by Decision no. 157 of June 2006 [37] a person for a period of 2 and a half months. One observation: the person was seconded to the SCM.

Another type of illegal decisions are retroactive ones. Thus, on June 1, the section of judges decides by decision no. 182 of 01.06.2006 the delegation to the leading position of a court president starting with that very date [38] . At the meeting on 28 June, this decision was re-discussed, it was reversed and it was decided that the delegation would start on… 1 May [39] . Of course, there can be no question of correcting any simple material error.

In the meeting of September 5. 2006 The Judges’ Section of the SCM gave the most retroactive decisions: 5 judges were delegated to the position of president and another 5 were extended their delegation starting with one month or even 2 months before the decision was given [40] .

Some decisions address the same thing but include different solutions: for example, prosecutor M. makes a transfer request from the MN Prosecutor’s Office. On June 1, the SCM approves his request and orders the transfer from MN to TC starting June 15 [41] . After a month, however, on July 13, the same prosecutor is also transferred from MN, to another prosecutor’s office [42] . And, also in this last decision, it is mentioned that prosecutors were appointed in management positions, but the ground for appointing judges was invoked (art. 48 instead of 49 of the law). We rightly wonder what prosecutor M. will go to the prosecutor’s office to carry out his activity.

From another decision, we find out that a transfer is granted because the parents of the petitioning prosecutor are old and sick . We wonder if such a mention falls into the category of personal data and should not have been revealed [43] .

In any case, there is a need for a way to return to the SCM decisions, conceived as an internal appeal. They cannot have res judicata authority, as a result there must be a review / return procedure, but the conditions must be expressly stated in the law.

b) arbitrary decisions

SoJust identified situations in which the activity of the SCM was subjected to arbitrariness.

Thus, although SoJust warned the SCM [44] that it did not have criteria for the selection of candidates for promotion to the HCCJ of judges who meet all legal requirements, the SCM, for example, in the August 2005 competition rejected 28 people without they are told the points in their career that do not meet the requirements. This led to the possibility that some candidates rejected in October could be admitted to a further session in November 2005.

As the vote is secret, these criteria do not even matter in the end. For total transparency and true assumption of responsibility, SoJust proposes to the SCM members to give up the constitutional protection consisting in secrecy of their vote.

c) inconsistent decisions

The lack of consistency of the SCM is manifested in decisions taken on which it subsequently returns.

Thus, by decision no. 306 of 17 August 2005 [45] approved the Regulation on the capacity examination of trainee judges and trainee prosecutors. According to art. 43, it applies accordingly to the legal personnel assimilated to the magistrates from the own apparatus of the Superior Council of Magistracy, the Public Ministry, the National Institute of Magistracy and the National School of Clerks. Subsequently, by the SCM Decision no. 446 of 12 October 2005 [46] was also intended to apply to the staff of the National Institute of Criminology. After a month, however, this last decision was abrogated by SCM Decision 55 of 23 Nov. 2005 [47]. And all this took place during an ongoing capacity contest !!!

There are inconsistencies between INM and SCM. Thus, for the magistrates recruited under the conditions of art. 33 of Law 303 (5 years of experience in legal work), provides for the need to complete a training period in the first 6 months. INM claims that the SCM agreed on 30.11.2005 that during this period they should not participate in meetings / perform procedural acts. As a result, INM transmitted this decision to the SCM. But through Hot. 13 of 18.01.2006 The Plenum of the SCM established that these persons can participate, before the completion of the 6-month course. On February 16, this possible contradiction was discussed. So, an issue has been debated 3 times.

We have notified decisions clearly given on the grounds of the conflict with the ministry. After initially rejecting a judge’s request for a judge to be seconded to this institution on June 14, the reason for the rejection being “the need to ensure the proper functioning of the courts” [48] , after a week the same person and based on the same documents is seconded the… CSM [49] . On June 1, the secondment of a judge from a court to the ministry for the same reason, of the large volume of activity in court is rejected [50] ; after one month, however, the secondment is allowed, even at the same institution [51] .

d) “strange” decisions

By decision no. 71 of August 3, 2005 of the section of judges, it is found that at the S. Court there is a vacant execution position, so that the transfer of the LCA judge from the B. Court is approved starting with September 1, 2005. The decision is published on 08.11.2005, so 3 months after adoption and 2 months after it was due to take effect [52] . But, it is not implemented, so the judge remained at B., where he judged without having the right. And he even enters the competition for appointment to the position of president at the B. Court, the file being accepted without reservations [53] ! However, the judge gives up the competition and no longer appears at the first test [54]. To cover the dysfunction, two solutions were possible: a return to judgment 71, as if the transfer request had been approved in error or: at the beginning of 2006, the judge formulated the request for secondment, obviously fictitious, from S. to B. , which is approved by four bodies, all judicial !!!: the management board at the Court B., of the Tribunal M., of the Court of Appeal C. and, finally, is approved by the SCM by Decision no. 66 of March 16, 2006, but (attention!) With retroactive application from September 1, 2005.

We report another case, when a procedure is started, but another is completed. Thus, the position of Chief Judicial Inspection became vacant in February 2006. Instead of being put up for competition to allow confrontation between several candidates, a fast-track procedure was preferred, the delegation in office, which could only be temporary. The “sole” candidate expresses in writing his agreement for delegation (!), The Plenum of the SCM on February 23, 2006 votes the delegation as it appears from the minutes of the meeting [55] , but from the drafted decision no. 131 of 2006 results in the appointment and not the delegation in that position [56], which could only take place through a competition (several candidates, management plan, etc.). Which means that the post has been permanently filled; but, through an illegal procedure – and this even by the head of the Judicial Inspection of the SCM.

e) unmotivated decisions

Also, although the law obliges the SCM to motivate decisions, SoJust has identified a number of unmotivated decisions. There are situations when in the content of the decision the reasons retained by the SCM members when deciding certain aspects do not appear [57] . The worst is when something like this happens in the procedure of promoting judges at the ICCJ, not knowing what distinguished a magistrate refused from the one admitted [58] .

The procedure for receiving a candidate for magistracy is particularly important. Any decision of the SCM must be motivated, and even more so a decision by which a candidate is removed from the competition for appointment to the judiciary. Thus, the MCA passed the theoretical examination tests, the medical test, and then is rejected by the prosecutors’ section of the SCM by decision no. 99 of 13 April 2006 on the grounds that it would not meet the condition of good repute [59] .

However, there is no mention of what is a good reputation, how it is accounted for and what are the deeds committed by the MCA that make it unworthy of the magistrate profession.

These are decisions, perhaps simpler, that are taken by the SCM members without any prior debate in the meeting. We do not explain what will be the reasons that will be retained in the decision in such situations.

f) decisions motivated with great delay or unpublished

Most deficiencies in this regard were registered in 2005. For example, decision no. 100 A of 16 March 2005 on the granting of a notice of conversion of posts was published 11 months later, on 15 February 2006 [60] . Decision no. 108 of March 23, 2005, concerning the final competition, will be published faster in the Official Gazette on 12.04.2005, than published on the website where it arrives on September 23, 2005 [61]. In fact, most of the 2005 decisions are published 4-6 months after the date of adoption. However, there are decisions that even now, a year after their adoption, are not yet published – for example, the decisions of the SCM Plenum no. 82, 89, 105 and 106 of March 2005, no. 181, 182, 228 and 239 of May 2005, no. 375 and 389 of sept. 2005 etc. I also found decisions published only in part: for example, the Decision of the President of the SCM no. 36 from 11.08. 2005, of which only the second page is displayed [62] .

This major shortcoming improved significantly in 2006, when decisions were generally published after one month. However, I found that here too there are unpublished decisions, although more than 6 months have passed since their adoption – for example, the decisions of the SCM Plenum 90, 91, 141, 142 of February 2006, no. 180 of March 2006, no. 281, 304 , 329 of April 2006, etc. [63] ., Or the decision of the judges’ section no. 81 of April 6, 2006 . Regarding the decisions of the Secretary General of the SCM, for 2006 only one decision is published, no. 119 [64] . Finally, no disciplinary decision is available [65] , but for more than a year it has been maintained that “information is to be introduced” [66] .

Currently, about 100 SCM decisions are being challenged in court, by magistrates or civil society. We are not saying that all of them are illegal, but many of them are not convincing.

g) inefficient decisions

By Decision no. 71 of March 9, 2005 [67] of the Superior Council of Magistracy established general rules applicable to programs of random distribution of cases, likely to resolve situations arising during the settlement of cases and which could affect the essential elements of random distribution of cases. The resolution of incidental situations during the trials was also regulated, such as the distribution of files in case of recusal, abstention, temporary absence of the judge, etc. As a rule, the computerized distribution of cases was established, and in the subsidiary the manual distribution, according to the cyclical system. In order to empower the courts and increase the judge’s power to control his own hearing,it is necessary that through the random file sharing system only the trial panel be determined automatically, not the deadline . Thus, once indicated by the judge, he will take over the file and depending on the urgency of solving the case, the time needed to study the case and his own load of files, he will set the trial term.

A special situation is related to the defense of the professional reputation of magistrates, where the SCM’s reaction to attacks against judges and prosecutors must be immediate. Thus, a judge candidate for a leadership position accused by a local parliamentarian of political ties, the request to defend his reputation made in March, only after 3 months, is resolved positively [68] . But, apart from a press release on the SCM website, nothing happened.

Or, at a self-notification from the press about the possible abuses of a magistrate, the SCM concludes that, being a case in progress, the Superior Council of Magistracy cannot express points of view, being prohibited the interference in the activity of judges who decide according to law. [69] . This after no less than 7 pages presenting the actual situation, absolutely useless.

There are recent attacks on the judiciary to which the SCM has not responded at all – to the two elderly people sent to prison for non-payment of criminal fines after they were definitively convicted of committing the crime of aggravated possession disorder and were beaten for a year for the payment of the fine although the law provides only 3 months [70], or of the pregnant woman imprisoned for non-payment of maintenance after the repetition of the deed after having suffered a conviction for abandonment of the family. These people were portrayed in the media as victims of unprofessional magistrates, when in reality they applied the law exactly, without any discrimination, as required by the Constitution. We do not know why the press finds these cases to be emblematic, when in prisons there are minors, intellectuals, workers, young people, old people, sick people, sick people, pregnant women, and mothers with small children at home and thieves. and criminals. This has led to the system being blamed when it works.