June 6, 2007 5:45 PM – Cristi Danileţ
The Superior Council of Magistracy never ceases to amaze me with its manifest attitude of concentrating in its hands all the powers over the judiciary. Basically, this institution will become, if it has not already done so, a second Ministry of Justice, which will be an almost irreparable mistake.
According to the Constitution, the SCM has to deal with two issues: managing the career of magistrates (recruitment, promotion, transfer, sanctioning) and defending the independence of the judiciary (for which no effective mechanisms have yet been created). All administrative tasks related to the system belong to the Public Ministry and the Ministry of Justice. The latter institutions are responsible for the budget of the prosecutor’s offices, respectively the courts.
At the request of the professional associations of magistrates, in 2005 the law on judicial organization was amended, stipulating that starting with January 1, 2008 the budget of the courts will pass from the ministry to the High Court of Cassation and Justice, as the sole representative of the government. judicial (phrase that designates exclusively the courts) and top of the hierarchical system of courts. It should be noted, however, that through its governing bodies, the supreme court has repeatedly stated that it does not want this budget.
Without organizing any public debate on this subject, the SCM recently advanced the proposal that the budget (only of) the courts should fall within its competence. Far from being argued in any way, this proposal is opposed to the following:
a) constitutional considerations:
– the budget is related to the administration of justice, which does not fall within the area of competence of the SCM; the budget of the courts concerns not only the salaries of judges (at most for these we could say that the SCM could have competences), but also of the civil servants and auxiliary staff of the courts (with which the SCM has no constitutional connection). So, under the current Constitution, the envisaged amendment will be unconstitutional;
– narcotic, although the prosecutors have and it seems that they will keep the administration of their own budget, the judges will be created an inferior position; moreover, the prosecutors members of the SCM will also decide on the budget of the courts, which would be inadmissible;
– if we still want an independent administration of the budgets in the judiciary, it is incomprehensible why the arguments that would exist for the takeover of the courts’ budget by the SCM would not be applicable for the takeover of the prosecutor’s office budget by this institution.
b) practical considerations:
– The SCM does not have the administrative capacity to quickly manage the budget of the courts: it has nowhere to take over 60-100 officials to deal with it overnight;
– as the SCM works, which even at the departure of someone from its technical staff takes the decision (obviously unconstitutional) in the Plenary, I deduce that the decisions regarding the budget will also be taken in the Plenary. Even if it is taken in the section, it will still be difficult: budgetary administrative decisions must be taken daily, from orders related to judges’ salaries, to their travels or investments in courts. Such decisions, in any type of administrative institution, are effectively taken by a single person – the head of the institution or his replacement. As long as the members of the SCM do not have permanent activity, and the meetings are held once a week, the bureaucratic blockages will quickly make their presence felt;
– not all courts of appeal are represented in the SCM (a system for electing members from among all courts within each court of appeal would be best suited for equitable geographical representation), its members will support the financial interests of their own courts.
c) comparative law considerations:
– in Europe, out of 46 states, a number of 16 do not have SCM: there deals with the budget Ministry of Justice or Services decentralization of court administration. Of the rest who have the SCM, only in 3 this institution has total responsibility for the budget (all are Nordic, a very different system from ours). In the rest of the states, the SCM is or is not consulted when building the budget. And our legislation is advanced compared to many other states, because the budget is built `from the bottom up`, from the courts, with the assent of the SCM.
– it should be noted that in Bulgaria and Portugal, after the budget was recently given to the SCM, there were decreases in the budget granted by the legislature. Portugal’s case last year is really painful, because the budget is half as much as when the responsibility fell on the ministry.
Theoretically, perhaps an elimination of budgetary administrative problems is intended. But it is wrong to believe that, by moving the main author from one side to another, the problems of the Romanian judiciary are solved: as long as there are bosses whose management knowledge is insufficient, as long as the SCM systematically refuses to import Western practices where the administration of courts it has gone from presidents to court managers, as long as the administrative relations between the secondary officers (the presidents of the courts of appeal), the tertiary ones (the presidents of the courts) and the presidents of the courts are dysfunctional, so that we do not have high hopes. And the SCM, a collegial body by its nature, will not even be held accountable for the syncopes that will arise.
In my opinion, an audit on the budgetary side is needed in the truest way possible to find the flaws of the current system, which should only be streamlined, not necessarily changed.