The Romanian Judges’ Forum Association warns about the effects of the amendments to the laws of justice on the promotion of judges in grade / execution positions, on the occasion of publishing the Regulation issued by Judges Section of the Superior Council of Magistracy regarding the organization of the contest for promotion of judges, with the observations made in the Commission no. 2 from June 2019 – https://www.csm1909.ro/PageDetails.aspx?Type=Title&FolderId=7119 .
The effective promotion of judges, in the proposed way, with two successive stages (in rank and in function) will gradually become tributary to an inadmissible hierarchical subordination for judges and will in practice lead to some sort of „baronization” of the judiciary.
Thus, the new normative version of the promotion exam in executive functions transforms the on-the-spot promotion exam into a precondition necessary for effective promotion, the latter becoming a subjective procedure, which is at the discretion of judges from the superior court.
1. Such an amendment does not take into account the case-law of the Constitutional Court. According to the Decision no. 413 from June 19, 2018 regarding the unconstitutionality of the provisions in art.45 final sentence of the Law no.303 / 2004 on the status of judges and prosecutors, published in the Official Gazette of Romania, Part I, no.897 from 24 october 2018, traditionally in Romania, „the promotion of judges in office is closely linked to the level of the court in which they operate.
In the field of promotion in executive positions, the rule is that of effective promotion, in the sense that a judge who works at a first level court or at a district court, and thus has a professional rank in relation to them, in order to work in the superior Court must run and promote a competition and, as a result of obtaining the function, acquires the superior professional status of the district court or the court of appeal. It should be noted that the legislator himself uses the notion of promotion, and once the judge has promoted, he acquires the rank and the other rights attached to it. Therefore, professional rank is a component of the function, and not vice versa. From this rule, the legislator, in order to ensure the functionality and good administration of the court system, regulated an exception, namely on-the-spot promotion, seen as a mechanism that provides, if necessary, the completion of vacant positions at district courts or court of appeals. This mechanism involves acquiring the superior professional rank of the district court or the court of appeal without actually operating in that superior court. It is a derogation from the situation that links the professional rank with the position exercised in a court from a certain level and allows to obtain the professional rank distinct from that function. This exception is justified by the needs of functioning of the higher-level courts in the case of vacancies of certain positions at their level, by the necessity to occupy the vacant offices as a result of individual departures in the court system. There is thus a replacement body that can respond immediately, permanently and continuously to the needs and challenges caused by personnel fluctuations within the courts. Therefore, the personnel scheme of the courts can not be conceived without this replacement body, whose capacity of which is set by the Superior Council of Magistracy. Such jurisdiction of the Superior Council of Magistracy derives from the provisions of Article 125 paragraph (2) of the Constitution, according to which the nomination proposals, as well as the promotion, transfer and sanctioning of judges are within the competence of the Superior Council of Magistracy, under the conditions of its organic law. This exception to the rule can not be generalized (…).It would come to an absurdly situation when all judges would acquire a professional rank of court of appeal and would continue to function in the first level courts or district courts, which would amount to a distortion of the promotion system on executive positions. It would result a system of promotion in professional rank, not in executive office. However, the functioning of a judge in a court of a certain level gives the appropriate professional rank. „
Therefore, the on-the-spot promotion of magistrates is traditionally an exception in Romania and can not become a rule, not even a step necessary for effective promotion.
Thus, the legislative amendments adopted in 2018 depart from the logic of the promotion of judges. Practically, the judge will have the professional rank of the higher court (district court, court of appeal), but will not have the essence of its office, namely the right to function at that court, as it can only be acquired after a new, subjective and formal selection.
Moreover, the condition for prior acquiring the professional rank of the court to which effective promotion is sought is a disproportionate restriction of the right to work. The hierarchical ranks in the magistrates’ system in Romania are related to the „hierarchy of the courts”, and they can not be independent of it.
2. The setting up of an effective promotion procedure exclusively by assessing the activity and conduct of the candidates in the last three years, carried out through consultation with the judges from superior courts, analysis of documents drafted by the candidates and interview, realized by a evaluation committee proposed by the presidents of the courts in which effective promotion is requested, will gradually lead to attitudes of hierarchical subordination toward superior judges and colleagues with leading positions.
According to the Fundamental Principles of Independence of Judges, adopted by the United Nations VII Congress, approved by United Nations General Assembly resolutions no. 40/32 of November 29, 1985 and 40/146 of December 13, 1985, „those selected as judges will be honest and competent persons with adequate training or legal qualification. Any method of selection and promotion of judges / prosecutors will be drafted in such a way as not to allow appointments on inappropriate grounds „(point 10). It also stated in paragraph 13 that „the promotion of judges, wherever such a system exists, must be based on objective factors, in particular professional qualifications, integrity and experience.”
The Committee of Ministers of the Council of Europe has recommended that the governments of the Member States adopt or strengthen all necessary measures to promote the role of judges individually but also of magistrates as a whole in order to promote their independence by applying in particular the following principles: (…) I.2.c. „Any decision relating to the professional career of judges must be based on objective criteria, the selection and promotion of judges must be based on the merits and according to their professional training, integrity, competence and efficiency.” (Recommendation (94) / 12 of 13 October 1994 on the independence, efficiency and role of judges)
Any „objective criteria” that seek to ensure that judges’ selection and career are based on merit, taking into account professional training, integrity, capacity and efficiency „can only be defined in general terms. First of all, it should be given content to the general aspirations towards „merit-based appointment” and „objectivism”, aligning the theory to reality. The objective standards are to be imposed not only in order to exclude political influences, but to prevent the risk of favoritism, conservatism, and „nepotism” which exist to the extent that appointments are operated in an unstructured manner. Although appropriate professional experience is an important condition for promotion, seniority in work in the modern world is no longer generally accepted as a dominant principle of determining promotion.
In the case of effective promotion, the Regulation proposed by Judges Section of SCM completely eliminates the merit-based examination, becoming a priority the subjective assessments of the candidates by members of a commission appointed on the proposals of the presidents of the courts of appeal, priority being given to advisory opinions of judges within the same courts of appeal in regard with the candidates, whose favorable opinions give an advantage from the start of 10 points to a candidate without any objective justification. Effective promotion is also based on the assessment of court decisions / judgments in the last 3 years of activity, from which the committee randomly chooses 10 decisions, being possible to give fewer points to a candidate by simply choosing less relevant judgments on the complexity, experience and quality of judge’ work. Also, the candidate can not challenge the way decisions are chosen.
As the Venice Commission has consistently pointed out, the proposed criteria on which is carried out the analysis of judgments can not justify the meritocratic promotion of judges in executive functions. All the criteria proposed by the Regulation can only be relevant to the periodic evaluation of judges (and these are applicable to the characteristics of each court – the number of judges, the workload in terms of file number and complexity etc.).
„Periodic evaluations of a judge’s performance are important tools for the judge to improve his / her work and can also serve as a basis for promotion (therefore, they can not serve as the main promotion criterium, but only as a basis; for example, to reach the level of written exam after obtaining the qualifiers well or very well after evaluating the judgments is sufficient). It is important that the evaluation should be primarily qualitative and focused on the professional, personal and social skills of judges. There should be no assessment based on the content of decisions and solutions, nor taking into account quantitative criteria such as the number of acquittals and cassations, which should be avoided as a standard basis for evaluation. „(CDL-AD (2011) 012, Joint Opinion of Venice Commission and OSCE / Office for Democratic Institutions and Human Rights on the constitutional law on the judiciary and the status of judges in Kazakhstan, par.55).
We also mention that the way the promotion exam was carried out in the previous legislation has cumulated the recommendations of the European Commission formulated over time in the MCV reports as a materialization of the obligation that Romania assumed at the time of accession to create a body of magistrates recruited exclusively on performance criteria.
Thus, in the Report from 22.07.2009 on the progress made by Romania under the Cooperation and Verification Mechanism it is noted that „Appointment procedures have been held and new competitions have been organized in accordance with the objectives set to ensure objectivity and high qualification of staff „[1]
The same type of report concluded in 2011 as part of the Recommendation on Jurisdiction of the Judiciary that „it is necessary to” prove a history of management decisions in the judiciary adopted in a transparent and objective way, for example through appointments, disciplinary decisions, evaluations and through the promotion system at the High Court of Cassation and Justice „[2].
For implementing these recommendations, Law no. 300/2011, which amended the Law no. 303/2004, on the promotion procedure at the High Court of Cassation and Justice, stated in the explanatory memorandum that „both the interview as a promotion procedure at the supreme court and the lack of a proper procedure for verifying the professional competence of the candidates do not ensure the necessary transparency and objectivity requirements for promotion to the position of judge at the High Court of Cassation and Justice. These issues have been the subject of constant criticism of the magistrates and their professional associations who have requested the amendment of the law in order to guarantee the promotion of judges to the supreme court on the basis of competence and in a transparent manner; the need to remedy these deficiencies has been underlined by the European Commission„. As a result, the law introduced the contest as a way of promotion to the supreme court, consisting in 3 components, namely the evaluation of the written judgments, an interview held before the SCM Plenum, not only before the Section for Judges, and a written test of a theoretical and practical nature, which was abandoned by the new legislative changes.
As long as Romania is still the object of monitoring the provision of an independent justice, through the Cooperation and Verification Mechanism, we appreciate that the validity of the criteria that led to the amendment of Law no. 303/2004 in 2011, according to the recommendations of the European Commission and the magistrates’ requests, is still fully valid for all promotional contests in the magistracy.
Evaluation of judgments can not be a basis for promotion to the higher court, but only an instrument to ensure the improvement of the quality of the act of justice viewed as a system, in relation to each court. However, the proposals in the Regulation lay down a double standard for the evaluation of the judges’ activity: on the one hand, the condition for obtaining the qualification “very good” at the last evaluation must be met, on the other hand, the judge is assessed on the basis of scores by another promotion committee, thus being annihilated any previous qualification. A double standard is also established in the assessment of the judge’s conduct – in an interview before a commission proposed by the president of the court of appeal – when, although the judge has not been subject to disciplinary sanction in the past three years (his/her conduct being therefore presumed to be irreproachable), following the interview this conduct is reevaluated, and failure to obtaining the score may raise question marks.
3. In addition, the regulation of promotion procedures for judges by a normative act inferior to law, which clearly supplement the provisions of the latter, violates the constitutional norms regarding the status of the profession.
The procedure for carrying out the competition or examination for the promotion of judges and prosecutors must be established by law, being a matter of organization of the Superior Council of Magistracy, lato sensu, and the statute of the magistrate can not be inferior to the civil servant status, even in the absence of a separate regulation. By Decision no. 818 of December 7, 2017, the Constitutional Court upheld the objection of unconstitutionality of the provisions of Article 69 (5) of Law no.188 / 1999. Court held that the legislative solution contained in art. 69 paragraph (5) of the Law no. 188/1999 regarding the approval by Government of the methodology for evaluation of the individual professional performance of civil servants is unconstitutional because, in its essence, the evaluation of the activity and conduct of a civil servant is related to its status and must therefore be regulated, in accordance with Article 73 (3) (j) of the Constitution, by organic law. Furthermore, regulating the essential aspects of the evaluation by Government decision represents a breach both of Article 1 paragraph (4) of the Constitution on the principle of the separation and balance of powers in the state (by delegation of an exclusive competence of legislator, to the Government), and of Article 1 paragraph (5) of the Constitution, in its component regarding the predictability and accessibility of the law. 4. At the same time, the issuance of the Regulation on the organization of the competition for promotion of judges by the Judges Section of the Superior Council of Magistracy violates the provisions of art. 125 par. (2), art. 133 par. (1) as well as art. 134 par. (2) and (4) of the Romanian Constitution.
The Constitutional Court stated, by the Decision no.331 of 3 April 2007 on the objection of unconstitutionality of art. 29 para. (7), art.35 referring to art.27 paragraph (3) and art.35 lit.f ) of the Law no.317 / 2004 on the Superior Council of Magistracy and art.52 paragraph (1) of the Law no.303 / 2004 on the statute of judges and prosecutors, that the provisions of art.35 referring to the provisions of art.27 paragraph (3) ) of the Law no. 317/2004 give expression to the powers of the Superior Council of Magistracy, as they were regulated by art.134 of the Romanian Constitution.
The Constitution expressly provides that only the attribution regarding the fulfillment of the role as a court in the field of disciplinary liability for judges and prosecutors is done by the Council through its sections (Article 134, paragraph 2). However, such an explanation is missing from the article art. 134 par. (1) and (4) of the Constitution. These provisions state the role of the Superior Council of Magistracy as a whole, respectively in its Plenum, regarding the adoption of decisions in general (both for the proposal to Romanian President related to the appointment of judges and prosecutors, except for the trainees, under the law, as well as for other duties established by its organic law, in fulfilling its role as guarantor of the independence of justice).
The separation of decision-making powers regarding the career of magistrates should not affect the role of the Superior Council of Magistracy, which, in its plenary composition, is the guarantor of the independence of the judiciary according to art. 133 par. (1) of the Romanian Constitution. Therefore, all the tasks of the SCM that concern the general and common aspects of the magistrates ‘career and the organization of the courts and prosecutors’ offices rest exclusively on the competence of the SCM Plenum.
The constitutional architecture of the Superior Council of Magistracy, a collegial body, involves the possibility to appeal before Plenum the decisions taken by each section (except for the decisions taken by disciplinary sections, also as a result of the exception enshrined in a constitutional text). Representatives of civil society are excluded from the vast majority of decisions, especially on the new assignment of duties between Sections, although the Superior Council of Magistracy is a collective body, which must function as a rule, and not as an exception, in the composition of all its members.
Art. 125 par. (2) of the Constitution states that „Proposals for appointment, as well as the promotion, transfer and sanctioning of judges are within the competence of the Superior Council of Magistracy, under the conditions of its organic law.” Thus, the constituent legislator established the competence of S.C.M. in its plenary composition, only the conditions being those stipulated in its organic law. The phrase „under the law” implies that the Constitutional Law leaves the possibility for the organic legislator to detail the procedures in order to accomplish these tasks, and not to transfer the duties related to the magistrates’ career from the competence of S.C.M. as a collegial body in the competence of Sections.
Therefore, by organic law, the role and competences established by the Constitution for S.C.M. as a collegial body, respectively for its Sections, as structures with duties in the field of disciplinary liability, cannot be altered. At most, the organic law may establish for S.C.M. as a collegial body other tasks to fulfill the role of guarantor of the independence of justice. Rearranging the roles and tasks between Plenum of S.C.M. and Sections of S.C.M. leads to the impact of the constitutional role of S.C.M. and to overcome the specific constitutional attributions of the Sections, contrary to art. 125 par. (2), art. 133 par. (1) as well as art. 134 par. (2) and (4) of the Constitution.
In order to reveal the constitutional competences of the two sections of the Superior Council of Magistracy, in opposition with the general constitutional role of the Plenum of the Superior Council of Magistracy, we must consider the provisions of art. 133 par. (2) lit. a) and art. 134 par. (2) of the Constitution. The corroborated analysis of the two constitutional texts reveals that the two sections of the Superior Council of Magistracy are not composed of all members of the SCM, but exclusively of the 14 members elected in the general assemblies of magistrates and validated by the Senate. Nine judges are part of the Judicial Section and five prosecutors are part of the Prosecutor’s Section. The way of setting up the sections reflects their constitutional role, as regulated in art. 134 par. (2) of the Romanian Constitution, according to which the Superior Council of Magistrates fulfills the role of a court in the field of disciplinary liability for judges and prosecutors, through its sections, according to the procedure established by its organic law.
It follows that the constituent legislator unequivocally established that the role of the sections of the Superior Council of Magistracy exclusively concerns the field of disciplinary liability for magistrates as a specific and particular element of the general role of the Superior Council of Magistracy, which is the guarantor of the independence of justice. This is the reason why, when using the term “ Superior Council of Magistracy”, the constituent legislator took into consideration the Plenum of the Superior Council of Magistracy, while, when regulating the disciplinary liability for magistrates (judges and prosecutors), it refers expresis verbis to the Sections of the Superior Council of Magistracy. The special competence in disciplinary matters of the Sections is a significant guarantee for the Superior Council of Magistracy to ensure its role as a guarantor of the independence of the judiciary as it establishes that judges and prosecutors will be tried in disciplinary matters without any external influence, exclusively by their own elected representatives, without being able to take part in such decisions other members of the Superior Council of Magistracy (representatives of the civil society, Minister of Justice, President of the High Court of Cassation and Justice and the Prosecutor General from the Prosecutor’s Office attached to the High Court of Cassation and Justice).
Thus, as long as the Romanian Constitution has provided general competence for the Plenum of the Superior Council of Magistracy as a collegiate and representative body, and only an awarding power for its sections, it can not be admitted that, by an organic law, the competences established at constitutional level for the Plenum to be exercised by the Sections or to the Sections of Superior Council of Magistracy to receive other powers that are either contrary or overcome their constitutional role established in art. 134 par. (2) of the Constitution.
If it is accepted that the competence of the Plenum of the Superior Council of Magistracy, as a collective and representative body, to be distributed to the two Sections of the Superior Council of Magistracy, it would mean that de facto two structures similar to Council Superior of Magistracy – one for judges and one for prosecutors- will exist. On the one hand, this legislative solution would deny the constitutional role established by the constituent legislator for the Superior Council of Magistracy as the sole representative constitutional authority for magistrates and, on the other hand, would lead to a significant increase of the „corporatism” of decision making within the Sections, aspect that is affecting not only the independence of the judiciary but also the constitutional principle of loyal cooperation within the judiciary, since this loyal cooperation results from the fact that decisions concerning the independence of the judiciary, except those in disciplinary matters, are taken in the Plenum with the participation both of magistrates’ representatives, as well as of representatives from institutions with significant powers within and with respect to the judicial authority (the President of the High Court of Cassation and Justice, the Prosecutor General from the Prosecutor’s Office attached to the High Court of Cassation and Justice and Justice Minister).
It is clear from the constitutional provisions establishing the role and competence of the Superior Council of Magistracy, taking into account the collective and representative nature of this constitutional authority, as well as the constitutional role of the sections of the Superior Council of Magistracy that the constituent legislator has established a constitutional authority in the area of the judicial authority which carries out collectively, as a whole, a wide range of constitutional and legal duties, while the Sections exercise only those functions which Constitution has expressly entrusted to them, as well as other legal duties but closely related with the constitutional role provided in Art. 134 par. (2) of the Constitution. In other constitutional systems, where the constituent legislator intended to mark a clear distinction between the professional body of judges and the professional body of prosecutors, distinct legal Councils were created by the Constitutional Law itself.
In conclusion, the new normative version of the promotion exam in executive positions for judges, which disregards the progress made under the Cooperation and Verification Mechanism, carried out by the European Commission, will gradually lead to the judges being subordinated to the College Bodies in the higher courts, triggering an acute sense of inappetence over the promotion to higher courts for a large number of professionally competent judges, as well as a disapproving attitude towards judges who are eventually rejected and who will feel humiliated and professionally disqualified by participating in a contest that can not be characterized by meritocracy.
The Romanian Judges’ Forum Association rejects the proposed Regulation for promoting judges, while also draws attention to the issue regarding the complete removal of the National Institute of Magistracy from the procedure of effective promotion, neglecting its role in the judiciary.
Also, we can not fail to notice that such an important text for the career and independence of judges is adopted by the SCM in the urgent procedure, in the same style as the Special Commission in Parliament („Iordache Commission”), with a rather formal consultation of judges, without guarantee that their views are actually considered and discussed.
We request the Judges Section of SCM to remove the proposals and to take into account the observations of the European Commission and GRECO on promoting on meritorious grounds. it is necessary to initiate projects to remove the present law provisions and to start further discussions with the magistrates over promotional procedures that would respond to the needs of the Romanian judicial system and ensure the formation of an independent and professional judiciary body.
Romanian Judges’ Forum Association
Judge Dragoş Cǎlin, co-president
Judge Anca Codreanu, co-president
[1] https://ec.europa.eu/transparency/regdoc/rep/1/2009/RO/1-2009-401-RO-F1-1.Pdf
[2] https://ec.europa.eu/transparency/regdoc/rep/1/2011/RO/1-2011-460-RO-F2-1.Pdf
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