Superior Council Of Magistracy

Central ideas:

SCM members must be permanently active.

The SCM carries out unconstitutional attributions or pronounces decisions contrary to the law.

Magistrates do not feel protected against pressure.

The population does not feel protected from possible abuses by magistrates.

1. SCM – authority or power?

The Superior Council of Magistracy (here SCM), fundamentally rethought through the revision of the 2003 Constitution, forms, together with the courts and the Public Ministry, the judicial authorities , as the Romanian Constitution calls them in Chapter VI, Title III.

The practice of half measures, of confusions regarding the definition of a real judiciary (specific to all executive or legislative decision-makers who have perished on the Romanian political scene since 1990 until today) characterizes the current constitutional design of the SCM.

The logical inconsistency, first of all, of the organization of the current SCM consists in the fact that it includes in its composition both judges and prosecutors.

The essential attribution of the SCM is that of guarantor of the independence of justice, a concept that is defined by the Romanian Constitution at art. 126 paragraph 1 (“ Justice is administered by the High Court of Cassation and Justice and by the other courts established by law”) . However, the Public Ministry does not enter into this phrase. The conclusions of such a legal aberration are obvious:

On the one hand, the SCM would only guarantee the independence of the High Court of Cassation and Justice (here HCCJ) and the courts and therefore, not being constitutionally invested with guaranteeing the independence or stability (again concepts used ambiguously by the constituent) of prosecutors, it cannot – exercises its attributions regarding them.

On the other hand, following this reasoning, the fact that the SCM is made up of judges, but also of prosecutors, makes the SCM Plenary (composed of judges, but also prosecutors) to take questionable decisions regarding the career of judges (proposes to the President Romania of the appointment and dismissal of judges, promotion of judges [1] ), regarding the evaluation, training and examinations of judges (organizes and validates competitions for the appointment of judges, orders the organization of competitions by judges, appoints commissions for evaluation of the activity of judges [2]), as well as regarding the organization and functioning of the courts (convenes the general assemblies of judges, approves the measures for supplementing or reducing the posts for the courts [3] ). Or, by providing such attributions in the task of the SCM, an inadmissible interference in the affairs of the judiciary takes place, because in this way the representatives of the Public Ministry take essential decisions regarding the judiciary.

As I mentioned, this sin is an original “adamic” one. A revision of the Romanian Constitution will have to resolve these ambiguities, being necessary a clarification of the notion of “power constituted in the state”, in the sense that the judiciary cannot include elements that, through functioning and organization, have the typicality of another power. we refer, of course, to the Public Ministry).

By the same token, the SCM cannot be part of the judiciary, for the simple reason mentioned above that it does not do justice. It only guarantees its independent operation.

This second confusion is apparently maintained by the SCM itself. In fact, the SCM confiscates the independence of the courts and judges through the organization and functioning, through the attributions that it assigns or that have been assigned to it. For example, the SCM has centralized the decisions taken regarding the organization and functioning of the courts, although these attributions should belong to the courts and only insofar as they fail to solve specific problems, only then, to fulfill the role of guarantor, the SCM would must intervene. However, the obvious excessive centralization of decisions regarding the organization and functioning of courts creates a clear relationship of subordination between courts and the SCM., the former, through its leaders, being forced to resort to inadequate means of real independence in order to obtain favorable decisions from the SCM. It is all the more aberrant that, as we have shown, the leaders of these courts, on the same mechanism of obedience, are forced to turn to prosecutors, that is, to the representatives of an institution that is not part of the judiciary.

Secondly, the SCM members create this confusion themselves, also deliberately. In the allegations of the former SCM president, the attacks on him were described as attacks on justice, in an aberrant image game [4] . For SoJust, it is clear that the SCM cannot become a representative of the judiciary, since its structure includes the Minister of Justice, prosecutors and representatives of civil society.

Beyond these confusing constitutional and legal difficulties, the complex composition of the SCM reveals that it should in reality work not only for the judiciary, but also for the population: the SCM should be the interface between citizens-magistrates-public authorities: the first to protect them from the abuses of the magistrates, and to protect the latter from the pressures of the political and social powers. From the SoJust monitoring on the activity of the SCM it can be deduced the (sad) conclusion that the SCM still does not fulfill its purpose and constitutional role in guaranteeing the independence of the judiciary.

Below, SoJust reveals the findings of its monitoring of the SCM’s activity: