Cassation and Justice

The role of the High Court of Cassation and Justice (ICCJ)

The ICCJ should be the benchmark court. The professional and moral qualities of the judges of the supreme court should be beyond any suspicion. SoJust points out that the appointment of ICCJ judges is a decision of major importance for society as a whole and for the judicial reform process. Considering that the decisions of the Supreme Court affect the lives of millions of Romanians, the appointment of judges to this court is a matter of public interest. Therefore, the SCM should have very clear and adequate criteria in this matter. SoJust proposes that the appointment procedure be focused on the following principles:1. the principle of professional competence; 2. the principle of promoting the fundamental rights and freedoms enshrined in the Constitution and in the international documents to which Romania is a party; 3. the principle of promoting and protecting the independence of the Judiciary; 4. the principle of transparency; 5. the principle of involving judges from all over the country. Candidates should be evaluated according to criteria such as: experience in solving complex cases; procedural discipline; integrity; knowledge and use of the judicial practice of the ECHR; coherence and clarity of argumentation; independence and impartiality; continuous training and interest in legal research.

Or, the verification of such requirements requires a not only careful, but also long-term monitoring of the potential candidates for the HCCJ. In this context, it is impossible for us to understand how it was promoted, on September 15. 2006 in the supreme court, the head of the Judicial Inspection at the SCM [27]. thus, the law imposes as a condition of promotion that the candidate has been a judge in the last two years, or the candidate in question did not work in court, but was seconded to an institution other than a court. Secondly, the very institution in which she was seconded – the SCM – is the one that is competent to decide on the promotion of judges, which gives rise to an obvious conflict of interests. Moreover, the Judicial Inspection is even empowered to make checks on SCM members. As such checks have been made in the last year with negative effect, we can not help but think that, in fact, the advancement of the head of the inspection, in addition to the fact that it is illegal, is a kind of reward. In addition, as long as he has not resigned from the SCM,

Although in 2005 it was legislated that the president of the ICCJ is the representative of the judiciary, SoJust has so far not identified any action of the current president corresponding to this position. Moreover, its distinct public present is non-existent.

The role of the ICCJ in shaping a unitary practice is perhaps the most important. ensuring a unified interpretation of the law will be especially important for building the trust that underlies the principle of mutual recognition by foreign courts. Unfortunately, even in the supreme court I have encountered cases of non-unitary practice: not only does a panel decide in the opposite direction to another panel in a similar case, but there are also cases when a judge from a panel decides in a certain way. and when he is in another suit in a similar case he decides otherwise. Also, there are situations in which the ICCJ practice is sent to the courts in files with a certain practice, while the party receives a decision with another practice.

It is interesting that the way of professional training of judges from the ICCJ is not known. Very rarely does a judge from this court take part in the training seminars organized with the other magistrates. However, an activity report of the HCCJ for 2005 is not yet published [28] .

The material competence of the ICCJ must be rethought: acting according to the current regulations, the court is overcrowded. Perhaps the reform would begin here too if the ICCJ were to rule only on matters of principle (such as appeals in the interests of the law, etc.), and not to give decisions on the individualization of punishment to crimes of jurisdiction in the first instance courts and for claims of 5 billion and one leu in civilian clothes.

then, starting from the supreme court, conceived as a court of cassation and not of justice, the competence of all courts should be rethought, with the clarification of the role and place of the courts of appeal, the courts most inappropriate to the current system (because they have jurisdiction in the first instance, and competence in appeal, and in appeal). We consider the most appropriate vision to be to divide the competence of the first instance between the judges and the courts, and the competence to resolve the appeal (which would be the only ordinary appeal) to be in favor of the courts of appeal; prejudicial issues (interpretation of a text of law or change of jurisprudence), as well as the appeal, but only for questions of law, to be returned to the High Court.