7. The career of magistrates

The deficient way in which the SCM is administered puts its mark on the management of the magistrates’ career. We have identified weaknesses in the following areas:

a) Recruitment

Admission of law graduates to INM is a big problem. For several years, out of the approximately 3000 candidates, only 120 have succeeded, although the total number of places put up for competition is 180. Probably the education offers poorly trained graduates (in the conditions in which the law faculty can be graduated between two baths in Herculane, it is not surprising), but also the recruitment system can be inappropriate.

I also registered irregularities in the admission by competition of lawyers with 5 years of experience. Thus, the verifications made by the SCM did not reveal the fact that fraudulently police officers who did not fulfill their duties as legal advisers entered the competition and were proposed by the SCM for appointment as magistrates to the President of Romania.

Direct admission to the judiciary is possible for lawyers with 10 years of experience, following a simple interview. As these people do not hold a competition, and in Romania there is no practice of interviewing in the legal environment, the solution of filling vacancies in this way is not pleasant. We need quality people in the system, because after granting immovability nothing can be done.

In Romania, the need for judicial staff has never been scientifically established. The studies of the last two years are incomplete. Recently, the SCM started a pilot program through which judges from five pilot courts monitor their time allocated to each type of activity. With the mention that such a monitoring was carried out for the first time in 2003 within the AMR-Cluj branch, we draw attention to the incorrectness of the procedure: the judges monitor themselves on the activity carried out.

b) Promote

The way of organizing and conducting the competitions for the occupation of management or promotion positions in the executive positions have been until now the proof of amateurism and irresponsibility. It is strange that, in the face of so many irregularities invoked by the candidates and the press [71] , no one was found responsible for the deficiencies that have taken place in the competitions organized so far.

If until 2005 the appointment of heads was made on political rather than managerial criteria, changing the appointment system created major difficulties. Currently, there is a parallel: there are courts where presidents have competed in matters including management knowledge, human resources and communication, and other courts where bosses are people who do not have these skills or, at least, are not verified. As long as there has not been at least an assessment of the latter, we cannot speak of a complete reform in the field of court management until 2009, when the mandate of those appointed according to the old law will expire.

c) Transfer

In the field of transfer, there is a regulation containing the procedure to be followed, without any objective criteria for applying this procedure, which has given rise to several debatable issues:

– many prosecutors have made requests for transfer from courts to prosecutor’s offices; Apart from the small number of prosecutors that currently exist, we do not see what other reasons there are for not resolving these requests, some of which were made almost two years ago;

– lawyers who are 5 years old and who have become judges for less than a year are denied the transfer from the court they initially chose to another, on the grounds that by registering for the exam they knew from the beginning that in such cases are put up for competition in usually unwanted courts; however, situations have been reached for mothers with small children to commute from their place of residence to the place where the court is located because the SCM does not accept the transfer;

– former judges are taken to courts where it is not necessary: ​​for example, 5 in Sighişoara, instead of Reghin where only one position has been allocated, although the activity is much increased;

– there are cases in which the transfer of some persons during the disciplinary action was accepted, which is inadmissible, because a disciplinary sanction may even be the transfer for a certain duration to another locality.

d) Retirement:

The magistrates do not know when their employment will end, so there are some who have obtained a retirement decision from the Pension House, but have not made the steps to the SCM or it has not completed the dismissal procedure. Thus, there were cases when the respective magistrate receives both a pension and a salary.

e) Deontology

The code of ethics for judges was drafted in 2001 and was selectively distributed to only some magistrates. However, he was not public. In 2004 a new one was elaborated, then modified in 2005. From the SCM Activity Report for that year we find that less than a quarter of the total number of magistrates were informed in 2005 on the Code of Ethics within the SCM campaign organized in the Phare twinning program. 2002. However, SoJust considers the debates before the drafting of the code to be much more important. Which code should be exactly the result of the debates and not the other way around.

Although there are specialists in Romania trained abroad in the matter of the deontological code, they were not involved in the adoption process.

This code is common to judges and prosecutors. This aspect is unacceptable, the functions of the two categories of magistrates being totally different. In any case, such a code should be the emanation of the magistrates themselves, possibly through their professional associations, and not of an official body. However, the legislative burden of organizing the profession – Constitution, laws, regulations, code of ethics is sufficient and yet there are difficulties in the functioning of the system.

f) Disciplinary violations

In this matter we found at least four dysfunctions:

f1. Incompatibilities and prohibitions

In order to ensure the impartiality of magistrates, the law provides for their prohibition to be part of political parties, to carry out commercial activities, to exercise a public office other than that of legal education. In order to prevent conflicts of interest, magistrates are required to declare whether they are part of NGOs, as well as to declare whether their spouse or relatives are part of the legal system. It was obvious, from the appearance of the law, that in order to ensure the finality of these provisions, such declarations should be made public, although the law did not expressly provide for them. However, the SCM forgot the principle according to which the spirit of the law is taken into account, not only its letter.

In this context, SoJust requested the publication of these statements. The SCM approved such a transparency of the activity of magistrates: “The Plenum of the Superior Council of Magistracy decided [72]on May 4, 2006, as “declarations of interests” given by magistrates, which show that they hold positions within associations, foundations or other non-governmental organizations or political parties, or carry out remunerated activities that are not related to the mandate or position on holding it or having the status of shareholders or associates of a company, including banks or other credit institutions, insurance and financial companies to be published on the website of each court of appeal in the constituency in which they operate. declarations pursuant to Article 111 of Law No. 161/2003 on certain measures to ensure transparency in the exercise of public dignity, public office and in the business environment, the prevention and sanctioning of corruption. It was also decided that the statements on their own responsibility given by judges, prosecutors and assistant magistrates be published on the website of the Superior Council of Magistracy in case the husband, relatives or relatives up to and including the 4th degree exercise a function or perform a legal activity, or investigation or criminal investigation activities. The magistrates have the obligation to complete annually such declarations according to art. 5 para. 3 of Law no. 303/2004 regarding the status of judges and prosecutors, which are submitted to their professional file ”.

No one has verified how this decision was fulfilled. Moreover, no one checked the content of the statements to see if there were any magistrates who were breaking the law. SoJust has uncovered cases of magistrates who significantly increase their revenues by illegally joining various commissions, councils and committees; the issue concerns both seconded magistrates and legal advisers assimilated to magistrates. It was enough for the SCM, respectively the respective institutions to verify the publicly posted wealth declarations.

The law also stipulates the need for the annual publication of magistrates’ wealth declarations. The magistrates complied with this obligation, but the SCM Inspection did not verify their content, although it had this attribution. SoJust points out that there are cases of shareholder magistrates, although the law does not allow this, an issue recently confirmed by a decision of the SCM.

f2. Good reputation

The law stipulates that the good reputation of the magistrate is necessary for admission to the INM or directly to the magistracy. Once admitted to the system, it is obvious that the magistrate must fulfill this condition throughout the exercise of the function. Analyzing the activity of the SCM in this regard, we found that there are no criteria to determine what good reputation means and does not have the ability to verify it. In 2004, the SCM sanctioned magistrates who had been found not guilty of committing criminal acts but who nevertheless received an administrative fine according to art.18! According to this practice, any magistrate who was fined on the street for violating a traffic rule risked being considered no longer in good standing and excluded from the judiciary!

This was also encouraged by the fact that in the law on the status of magistrates, the violation of the deontological code was considered a disciplinary violation. In 2005, this provision was repealed, but the other extreme was reached: 20 magistrates who were found to have committed serious misconduct in an acceptable manner in society could not be sanctioned by the SCM on the grounds that there was no regulation. SoJust considers the elimination of that provision to be normal: violation of certain ethical norms can only be sanctioned by public disgrace. But the cases of unworthy magistrates could be solved with reference to the condition of good reputation that art. 12 of Law 303 imposes on admission to the profession, because it is obvious that such a condition must exist after admission.

That this is so, the SCM proves to us in one case: a candidate declared successful in the admission competition in the autumn of 2005 did notit is proposed to the President of Romania for the appointment of a prosecutor on the grounds that he would not meet the condition of good reputation. In addition to the fact that the SCM decision is illegal without being motivated, we were interested in the reasons for this decision. Here is what I found: a complaint was filed against the candidate in 2001 regarding the commission of a forgery offense; the prosecutor ordered the removal from criminal prosecution and the application of an administrative sanction with a fine; starting the procedure of appointment as a magistrate, the candidate notifies in 2005 the hierarchically superior prosecutor for the ex officio refusal of this solution; the prosecutor in question agrees with the candidate and changes the solution to a more favorable one, on the grounds that there is no subjective side of committing the crime. The final solution was not contested. However,the final solution is not good ! Compared to the practice of the SCM so far, the decision is astonishing: the SCM allows itself to appreciate the decisions of the magistrates, to challenge them and not to give them effect – we will show below that the constant position is different. In addition, if the SCM considered that the way to solve the criminal case is debatable, we believe that an investigation of the hierarchically superior prosecutor should have been initiated, which refuted the initial solution. Instead, the candidate who has a solution of a judicial body in favor, receives a solution from an administrative body to the detriment .

We return to the previous idea: if the SCM accepts that a good reputation is a condition that it can investigate, we do not understand why magistrates who are guilty of unworthy deeds could not have been sanctioned. Interestingly it is kept according to a judge who is proven to have a strange behavior and cursed and pushed notorietate- from colleagues, to intimidate witnesses and magical practices [73] . It seems that the standard for good reputation is very variable …

f3. Exercising the function in bad faith or gross negligence

SoJust draws attention to the harsh way in which the SCM misinterprets some legal provisions, which may favor in the future the promotion of arbitrariness in the application of the law by magistrates.

Both the litigants and the Minister of Justice requested the SCM to investigate some magistrates for acts of misapplication of the law, considered abuses or evidence of incompetence. Without clarifying notions such as “independence”, “justice” or “interference”, the SCM considers that starting investigations into alleged abuses of the judiciary would be an interference in their work while judicial activities are ongoing [74] . And after the file is completed, it is obvious that the SCM could not intervene. The problem with SoJust is that these verification requests have been misinterpreted by the SCM as interference attempts.. The SCM has tried to argue in several situations that it cannot analyze the decision taken by a magistrate, so as not to defeat his independence. SoJust cannot accept this solution.

Thus, the independence of the judiciary is a requirement of the rule of law, but it should not be understood as a privilege of magistrates, but as a benefit of citizens , because the latter must be protected from abuse and arbitrariness. In order for independence not to be a barrier for incorrect magistrates, it must be correlated with responsibility, ie a control of the acts of prosecutors and judges. According to the SCM conception, only the hierarchically superior body can analyze the justice of a decision of the magistrate. However, SoJust states that the correct reasoning is different: only the hierarchically superior body is the one that can overturn the solution, while the law enforcement for the adoption of that solution can be and is analyzed by bodies such as the criminal ones.[75] or the disciplinary ones [76] , or by the specialized doctrine. Thus, the conception that a decision of a magistrate cannot be criticized is wrong and dangerous: it is even necessary to be so, in order to prevent similar mistakes in the future or to impose legislative changes. But what must be respected is the authority of a final decision, which is something else entirely.

An additional argument is that the disciplinary liability of magistrates can be involved in other violations that also consist of activities and decisions taken during the exercise of the function: non-compliance with the secrecy of deliberation or confidentiality of works that have this character; repeated non-compliance and for imputable reasons with the legal provisions regarding the speedy settlement of cases; unjustified refusal to receive in the file the requests, conclusions, memoranda or documents submitted by the parties to the process; the late performance of the works, for imputable reasons ( art . 99 letter d., e, f and i of law no. 303 of 2004).

Moreover, art. 97 para 1 of Act 303 provides that ” Any person may notify the Superior Council of Magistracy, directly or by leaders of the courts or prosecutor’s offices in connection with the activity or conduct inappropriate for judges and prosecutors, breach of professional duties in relations with litigants or committing to them of disciplinary offenses ”. And in art. 43 letter c and art. 44 letter c of the Regulation on the organization and functioning of the Superior Council of Magistracy approved by the SCM Decision no. 326 of 24.08.2005 stipulates that the Judicial Inspection verifies the notifications addressed to the Council in connection with the activity or conductimproper conduct of judges and assistant magistrates of the High Court of Cassation and Justice, respectively of prosecutors and violation of professional obligations in relations with litigants.

We emphasize that we agree that by verifying the activity of the magistrates, the solutions pronounced by the court decisions, which are subject to legal remedies, as provided in art. 97 para. 2 of Law 303 of 2004. But we cannot help but wonder how the activity of a magistrate could be qualified as inappropriate without being able to verify the acts and measures ordered… It is certain that so far no one has been removed from the judiciary for professional incapacity, although the law provides this as a reason for termination of office.

We do not believe that magistrates should be reluctant to such checks: after all, whether it is material liability, disciplinary or criminal liability, they will be investigated / judged only by their colleagues. We can explain our reluctance by two possible hypotheses: either they are incompetent, they know they will be responsible for mistakes and then they do whatever their institution of responsibility does not work, or I know that their colleagues in the system are incompetent and would not risk being judge by them. In both cases, we are talking about incompetence in the system !!!

f4. challenging the disciplinary sanction

Finally, also in this matter we find a new conception expressed by the SCM members: although the law stipulates that against the solution of a disciplinary sanction the sanctioned person may appeal, the SCM members consider that if the disciplinary action was rejected, the disciplinary commission it may also appeal, on the grounds that it is a party to disciplinary proceedings. Beyond the fact that this creates a new procedural quality, not granted by law, we do not see how the disciplinary commission (composed of a member of the SCM and two inspectors from the SCM Inspection) with the section of judges / prosecutors from the same organism.

In this context, we leave open the discussion on the fact that the members of the Judicial Inspection are appointed by the members of the SCM, that together with them they constitute the disciplinary commission and that this commission could contest the solution of the disciplinary section. The impartiality of the inspectors, respectively of the SCM members who are part of the disciplinary commission, called to investigate them, respectively to judge the magistrates are seriously questioned.