The reaction of the Society for Justice regarding the passing exam in the Ministry of Justice
April 27, 2007 11:22 AM
Compared to the situation that arose in connection with the passing exam of some legal advisers assimilated to judges and prosecutors, which takes place during this period at the Ministry of Justice, the Society for Justice presents its position.
According to art. 87 paragraph 1 of Law no. 303/2004, republished, during the term of office, the legal personnel of the Ministry of Justice, the Public Ministry, the Superior Council of Magistracy and the National Institute of Magistracy is assimilated to judges and prosecutors in terms of rights and duties, including taking the exam promotion, the provisions of this law being applied accordingly.
Or, according to this law, the promotion is made only through a competition organized at national level – within the limit of vacancies – by the Superior Council of Magistracy. The procedure chosen by the contest organizers circumvents the exclusive competencies of the Superior Council of Magistracy in the career of judges and prosecutors, creates a privileged regime for the category of staff assimilated to judges and prosecutors and destabilizes even in terms of budget payroll schemes according to the provisions applicable to magistrates.
Worse, however, is the fact that the existence of a parallel, unconstitutional category discredits and derides the very dignity and status of the position of judge and prosecutor, especially since the procedure for promoting these assimilated is more than debatable.
It should be noted that art. 73 of Law no. 303/2004 on the status of judges and prosecutors stipulates that the rights and obligations of judges and prosecutors “are made taking into account the place and role of justice in the rule of law, the responsibility and complexity of the position of judge and prosecutor, the prohibitions and incompatibilities provided by law for these functions and seeks to guarantee their independence and impartiality. ”
Or, the attributions of the judicial authorities, ie the courts and structures belonging to the Public Ministry (see in this sense the constitutional provisions from art. 124 -132 of the Romanian Constitution), are those of administering justice through the High Court of Cassation and Justice and other courts (art. 124 and 126 paragraph 1 of the Romanian Constitution) and, in the case of the Public Ministry and prosecutors, to represent the general interests of society and the defense of the rule of law, as well as the rights and freedoms of citizens (see art. 131 of the Romanian Constitution). Moreover, art. 1 of Law no. 303/2004 on the status of judges and prosecutors takes over, in connection with the constitutional notion of magistrate, the constitutional definitions, providing that:
We cannot fail to emphasize that in addition to the idea that this category of employees, so-called assimilated to judges and prosecutors, not only does not perform judicial activities in the constitutional sense but, moreover, the emergence of this category of budget employees in the field of judicial authority represented and can be an effective means in the hands of the executive branch of the judiciary. This is because, although the rights and obligations of assimilated legal advisers are similar to those of some judges and prosecutors, they are administratively subordinated to the executive branch, not having the independence or stability of judges and prosecutors.
As SoJust also pointed out in the September 2006 Independent Report, maintaining this institution creates obvious inequities between judges and prosecutors on the one hand (who only benefit exceptionally from on-the-spot promotion, as the number of seats is limited). obtains the rank of High Court only through effective promotion and never the rank of prosecutor at the Prosecutor’s Office attached to the High Court) – and legal advisers assimilated to them (who already hold the rank of higher courts although the Ministry of Justice has not organized any promotion exam so far, they benefit from an unlimited number of places for promotion on the spot; on the other hand, the latter, being assimilated to prosecutors, can even obtain the rank of Prosecutor’s Office attached to the High Court of Cassation and Justice).
SoJust considers that the attributions of legal advisers assimilated to judges and prosecutors have nothing to do with the activity of magistrate, and the social importance of the two categories is incomparable. Moreover, the existence of this category creates confusion regarding the status of the judge and prosecutor and gives the public the impression of the existence of “chancellery” judges and prosecutors, administratively subordinated, which is unacceptable for a state governed by the rule of law. and the prosecutor must be the full expression of the independence of the judiciary.
SoJust considers it necessary, in order to eliminate any prejudice to the independence of the judiciary and any interference in its activity, that:
– the Minister of Justice, Mr. Tudor Chiuariu, verify the compatibility between the Regulation approved by order 663 / C / 2007 by the Ministry of Justice and Law no. 303/2004, republished, with the subsequent amendments regarding the promotion exam held during this period at the Ministry of Justice and to prove that, in fact, there is no “power vacuum” at the helm of the Ministry of Justice. As this is an administrative act that entered the civil circuit and produced legal effects, we ask the Minister of Justice either to assume it publicly or to delimit himself from it and to request in court the finding of its nullity;
– the Minister of Justice and the Superior Council of Magistracy to re-evaluate the need to maintain the institution of “legal advisers assimilated to judges and prosecutors” in accordance with the constitutional provisions. In this regard, SoJust will act in all legal ways, insofar as the law enforcement authorities will refuse to question the legality of this category of budget employees, including notifying the People’s Advocate.