Regarding this proposal made by the Minister of Justice to amend ”the justice laws”, one has to take into account the fact that the contentious constitutional court has already mentioned by its Decision no.331 of April 3rd, 2007 referring to the exception of unconstitutionality of the provisions of art.29 par.(7), art.35 related to art.27 par.(3) and art.35 letter.(f) of the Law no.317/2004 on the Superior Council of Magistracy and art.52 par.(1) of the Law no.303/2004 on the statute of judges and prosecutors, that „according to art.133 par.(1) of the Constitution, the Superior Council of Magistracy is responsible for guaranteeing the independence of the justice system. This being the case, the circumstance that the promotion of the judges to the High Court of Cassation and Justice is made by the Superior Council of Magistracy, in its Plenum, consisting also of prosecutors and representatives of the civil society, through the selection procedure provided by art.52 par. (1) of the Law no.303/2004 and not through contest is not of the nature to impair the impartiality of the judges of the supreme court.
Thus, the provisions of art.52 par. (1) of the Law no.303/2004 are not of the nature to infringe neither the provisions of art.21 par. (3) and art.124 par. (2) of the Fundamental Law nor the provisions of art.6 paragraph 1 of the Convention on Human Rights and Fundamental Freedoms, the author of the exception enjoying all the guarantees of a fair trial performed in front of an impartial court.
Moreover, the provisions of art.52 par. (1) of the Law no.303/2004 are not of the nature to infringe the provisions of art.124 par. (3) of the Fundamental Law too, these having been adopted in accordance with the constitutional provisions of art.133 referring to the structure of the Superior Council of Magistracy.
The Constitutional Court notes also that the dispositions of art.35 related to the dispositions of art.27 par. (3) of the Law no.317/2004 express the powers of the Superior Council of Magistracy, as they were regulated by art.134 of the Fundamental Law. Therefore, these cannot be construed as infringing the provisions of art.124 par. (3) of the Constitution”.
Moreover, the manner in which the constitutional legislator regulated the formation of the Superior Council of Magistracy cannot make the object of a constitutionality control.
Finally, the provisions of art.35 letter (f) of the Law no.317/2004 are in accordance with the provisions of art.134 par. (4) of the Fundamental Law, according to which the Superior Council of Magistracy performs other functions too, set by its organic law, being responsible for guaranteeing the independence of the justice system. Thus, no violation is brought to the provisions of art.61 par. (1) of the Constitution, according to which the Parliament is the supreme representative body of the Romanian people and the sole legislative authority of the state, as the regulatory function by organic law falls within its exclusive competence, and the regulation referred to in the criticised text of law is adopted in accordance with the law.
As a consequence, the Constitutional Court appears to assert that under the circumstances in which the decisions of the Superior Council of Magistracy (SCM) are made, according to art. 133 par. 5 of the Constitution, by secret ballot in order for the members of SCM not to be exposed to external pressures, under the circumstances of a lack of an imperative mandate, the fact that the prosecutors are part of SCM with their retained members and take the decisions in the Plenum together with the judges members and the members of the civil society, the respective decisions are not of the nature to impair the independence of the judges.
The circumstance that distinct sections exist in respect of the judges or the prosecutors does not involve the fact that the decisions made by these sections are final or that the complaints challenging these decisions are solved by the very section that ruled the challenged decision.
The constitutional architecture of the Superior Council of Magistracy, a collegiate body, involves the challenging in the Plenum of the decisions ordered by each section (except for the decisions ruled by the disciplinary sections, also as an effect of a constitutional text).
The only manner in which a strict delimitation between the judges’ careers and the prosecutors’ careers can be made is by a constitutional amendment.
In France or Belgium, the traditional constitutional models for Romania too, the presidents of the supreme courts have recently ruled in favour of the unity of the judiciary within the same council.[1]
The Romanian Judges’ Forum Association, an independent, non-profit, non-governmental and apolitical association of Romanian judges, having legal personality under Romanian law, has as main goal to bring its contribution to the progress of society through actions aimed to create an independent, impartial and efficient justice, the assertion and the defence of the independence of justice in relation to the other powers of the state, as well as through the initiation, organization, support, coordination and implementation of projects concerning the improvement, the modernization and the reform of the administration of justice. Contact: dragos.calin@just.ro, ionut.militaru@just.ro, www.forumuljudecatorilor.ro.
[1] For details see the interview with the President of the Court of Cassation from Belgium, Mr. Jean de Codt, published in the Judges’ Forum Rewiev no.1/2017, pg.15-16, available on the webpage http://www.forumuljudecatorilor.ro/index.php/archives/2706 [last consulted on October 17th, 2017], as well as the stand taken by the President of the Court of Cassation from France, Mr. Bertrand Louvel, the webpage https://www.courdecassation.fr/venements_23/derniers_evenements_6101/magistrature_bertrand_37040.html [last consulted on October 17th,2017].
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