By Decision no. 230 of 23 March 2021, the Section for Prosecutors of the Superior Council of Magistracy found “the very low quality of the activity of the Judicial Inspection in the field of disciplinary liability, given that the resolutions to carry out disciplinary actions were confirmed by the Chief Inspector, including by violating legal provisions regarding the impartiality; directing the activity of the Judicial Inspection in the period 2017 – 2020 towards the prosecutors in the National Anticorruption Directorate and the prosecutors in the professional associations who took a stand regarding the 2018 legislative amendments; recording unreal mentions in the Activity Report of the Judicial Inspection for 2020, in order to misinform about the results of the Judicial Inspection; recruiting judicial inspectors who accept professional limits (the mentions in the Activity Report), without making any effort to overcome them.”
Thus, “in the period 2017-2020, out of the 50 actions carried out by the Judicial Inspection, the Section for Prosecutors in disciplinary matters resolved a total number of 44 disciplinary actions, of which 30 disciplinary actions by rejecting and cancelling them, consequently, in 2020, only one disciplinary action carried out by the Judicial Inspection was admitted, 6 actions were rejected and 7 were canceled. Of the 30 disciplinary actions, 19 decisions ordered the rejection of disciplinary actions and 11 decisions ordered the cancellation of disciplinary actions, of which: 16 final decisions rejecting disciplinary actions and 7 final decisions cancelling disciplinary actions; one decision rejecting the disciplinary action and 3 decisions cancelling disciplinary actions, all pending before the High Court of Cassation and Justice, for hearing the appeal; 2 decisions rejecting the disciplinary action and one decision cancelling the disciplinary action, changed in appeal. Of the 19 decisions rejecting the disciplinary actions, 18 decisions were dismissed as unfounded and one as devoid of subject.”
The Judicial Inspection plays a key role in the disciplinary procedure, as it carries out the preliminary investigation and decides whether it is necessary to initiate a disciplinary investigation. This investigation is carried out by the judicial inspectors before deciding whether to file or not a disciplinary action before the competent section of the SCM. The Judicial Inspection also has important duties in initiating the procedure leading to the determination of the existence of a judicial error.
In the structure of the judicial inspection activities, the chief inspector has key responsibilities, which have been reinforced by the 2018 amendments: appoints judicial inspectors, appoints inspectors with management positions, manages the activity of the Judicial Inspection and the disciplinary procedures, organizes the distribution of files, establishes the specific areas of activity over which control is exercised, is the main issuer of instructions/orders and has the capacity to initiate a disciplinary procedure himself/herself or to approve/confirm the solution to dismiss a complaint issued by an inspector during the preliminary checks.
By these amendments, the Judicial Inspection has actually become a pyramid-type public authority, unique in the judicial system, available to a single person, with an extended discretion (including in adopting the organizational regulatory framework, confirming/invalidating the decisions of judicial inspectors, etc.). In this structure, magistrates (judges and prosecutors) appointed judicial inspectors by the chief inspector are fully subordinated to the latter, with the risk of substantially affecting their functional independence.
The budgets of the Judicial Inspection approach the amount of 10 million Euros annually (year 2017 – Lei 31,408,000; year 2018 – Lei 31,800,000; year 2019 – Lei 42,715,000; year 2020 – Lei 36,905,000).
Of these amounts, a significant part is intended for the daily allowances that judicial inspectors receive (year 2107 – Lei 3,725,911; year 2018 – Lei 3,790,227; year 2019 – Lei 4,909,818; year 2020 – 5.886.929 lei), namely over 1,000,000 Euros annually.
By the Judgment of the Grand Chamber of the Court of Justice of the European Union, delivered in the joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, it was established that Article 2 and the second subparagraph of Article 19(1) TEU, as well as the Decision 2006/928 must be interpreted as precluding a national regulation adopted by the government of a Member State which allows the latter to make interim appointments to the management of the judicial body in charge of disciplinary investigations and of bringing disciplinary proceedings against judges and prosecutors without compliance with the ordinary appointment procedure provided for by national law where such regulation is likely to give rise to legitimate doubts as to the use of the powers and functions of that body as an instrument to exert pressure on, or political control over, the activity of those judges or prosecutors. (”200 Consequently, since those occupying management positions within such a body are likely to exert a decisive influence on its activity, the rules governing the procedure for appointment to those positions must be designed – as the Advocate General noted, in essence, in point 269 of his Opinion in Cases C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19 – in such a way that there can be no reasonable doubt that the powers and functions of that body will not be used as an instrument to exert pressure on, or political control over, judicial activity. (…) 205 In particular, national legislation is likely to give rise to doubts such as those referred to in paragraph 200 above where, even temporarily, it has the effect of allowing the government of the Member State concerned to make appointments to the management positions of the body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, by disregarding the ordinary appointment procedure laid down by national law.”)
Thus, the national legislative provisions on the interim appointment of the Chief Inspector of the Judicial Inspection can no longer be applied, due to the inconsistency with European Union law, and all documents issued during the substitute period (05.09.2018-14.05.2019) by this Chief Inspector (including the Regulation on the organization and operation of the Judicial Inspection or the instruments of appointment of inspectors selected on this basis, including the Chief Inspector) are null and void (the domino principle).
Under the same judgment of the CJEU, all CVM Reports will have to be properly taken into consideration by Romania, taking into account the requirements of the principle of sincere cooperation provided for in Article 4 (3) TEU. Under this basis, they can no longer be disregarded by any domestic public authority in Romania.
The November 2018 CVM report pointed to substantial concerns about the Judicial Inspection: a pattern of disciplinary proceedings against magistrates publicly opposing the direction of reform of the judiciary, leaks of documents in the press (which were then used by politicians to attack judicial institutions) and the prolongation of the management team by the Government. The November 2018 report recommended: ”The Superior Council of Magistracy to appoint immediately an interim team for the management of the Judicial Inspection and within three months to appoint through a competition a new management team in the Inspection”.
The CVM report published by the European Commission on 22.10.2019 mentions, as regards the Judicial Inspection, that it was found that “since the last report, the pattern of disciplinary proceedings against magistrates, including the heads of judicial institutions who oppose the reforms of the judiciary, have continued (namely the laws of justice adopted in 2018, our note), as well as the leaking of documents. The recommendation of November 2018 has therefore become overtaken by events, but the underlying concerns remain fully applicable. Successive CVM reports have pointed to the pressure on magistrates and judicial institutions from public attacks from the political world and the media. Since the beginning of 2018, this has been compounded by the actions of the authorities responsible for disciplinary and criminal investigation of magistrates. The National Anti-Corruption Directorate has long been a particular focus of such pressure, as well as the office of the General Prosecutor. The period of reference also saw a sharp increase of pressure on the High Court of Cassation and Justice, which is competent for many high-level corruption trials. Two constitutional conflicts were launched by the Government against the High Court regarding its interpretation of procedural rules on the constitution of criminal judges panels. In addition, the Judicial Inspection filed a disciplinary complaint against its President and the judges section of the Superior Council called for her revocation. These combined steps seem to have the objective of pressurising the High Court and when the President announced her intention not to apply for a second term of office, she made clear that this was the reason. (…) These developments confirm the assessment made by the Commission in the November 2018 report that the Superior Council of Magistracy is not fulfilling its role of providing effective checks and balances to defend the independence of judicial institutions under pressure.”
The same criticism is repeated in the CVM Report published on 08.06.2021, at Benchmark One: judicial independence and judicial reform – Judicial Inspection, clearly stating the following:
“2018 and 2019 were marked by controversy about the approach of the SCM towards the position of the Chief Inspector, as the SCM effectively extended the term of the incumbent, despite the controversy relating to a temporary interim prolongation on the basis of a Government Emergency Ordinance. A preliminary ruling request was brought to the Court of Justice of the EU on the compatibility with Articles 2 and 19(1) TEU of the power for the Government to carry out interim appointments to management positions within the Judicial Inspection responsible for conducting disciplinary proceedings against judges and prosecutors. In its judgment of 18 May 2021, the CJEU ruled that national legislation cannot give rise to doubts that the powers of a judicial body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors might be used as an instrument to exert pressure on, or political control over, the activity of those judges and prosecutors. The Court held that national legislation is likely to give rise to such doubts where, even temporarily, it has the effect of allowing the government of the Member State concerned to make appointments to the management positions of the body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, by disregarding the ordinary appointment procedure laid down by national law. The judgment revives the purpose of the 2018 recommendation. The authorities with oversight on the Judicial Inspection, in particular the SCM, will have to take the judgment into due consideration, also in light of the repeated concerns raised with the activity of the Judicial Inspection.
In recent years, judicial institutions, including the SCM itself, have highlighted concerns with the lack of accountability of the Judicial Inspection, citing the high proportion of cases brought by the Inspection eventually rejected in court, the concentration of all decision making with the Chief Inspector and the limits on the oversight powers of the SCM. More generally, these developments have raised questions on whether the provisions in the Justice laws for appointing the management of the Judicial Inspection and its accountability offer sufficient guarantees and achieve the right balance between judges, prosecutors and the SCM. The new draft justice laws of March 2021 on which the Minister of Justice requested the opinion of the SCM, modifies the provisions on the appointment of the Chief and deputy Chief Inspectors, as well as the control mechanism regarding the activity of the Judicial Inspection, giving stronger oversight powers to the SCM and involving the National Institute of Magistracy in the competitions for entering the Judicial Inspection. In the reporting period, judicial institutions reported an overall reduction in the activity of the Judicial Inspection, namely fewer ex-officio disciplinary proceedings raising concerns about objectivity. However, there remain cases where disciplinary investigations and heavy sanctions on magistrates critical of the efficiency and independence of the judiciary have raised concerns. Examples include disciplinary proceedings with proposal of preventive suspension from office until the finalization of the disciplinary investigation and the decision of the SCM against judges from magistrate associations who have resisted the backwards changes of 2017-2019 and brought preliminary ruling requests to the European Court of Justice (the disciplinary investigation concern group conversations leaked from a private social network group).”
The 2021 Rule of Law Report (the Chapter on the rule of law in Romania), published by the European Commission, took note of the start of a disciplinary investigation for committing misconduct representing bad faith or gross negligence in the exercise of his duties, if the deed does not meet the constitutive elements of a crime, against a judge of the Piteşti Court of Appeal, for relying in a dispute, on 7 June 2021, on the judgment of the Court of Justice of the European Union of 18 May 2021, delivered in the joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România and Others. In principle, a disciplinary procedure is incompatible with the rules of the European Union law, if it affects the essence of the procedure governed by Article 267 TFEU and, at the same time, the foundation of the Union itself, having a dissuasive effect on any Romanian magistrate called to apply mandatory rules of the European Union law, including the case law of the Court of Justice of the European Union, under Article 148 of the Romanian Constitution.
Consequently, the Judicial Inspection has recently started disciplinary proceedings against the very judges who initiated the CJEU referral and those who applied the CJEU ruling, in a show of force that was perceived by all relevant external observers as vindictive, likely to compromise the mandatory application of EU law in Romania. Also, these disciplinary investigations are carried out by the judicial inspectors appointed either during the interim period of the Chief Inspector, or in the competitions controlled by the Chief Inspector.
A body in charge of starting disciplinary proceedings, such as the Judicial Inspection, should at least demonstrate a certain degree of operational independence and investigation.
Therefore, given the current organization, as well as the obvious unlawfulness of the instruments of appointment of some judicial inspectors between 2018-2019, it is necessary to dissolve the Judicial Inspection and create two judicial inspection structures with distinct legal personality, one for judges and another one for prosecutors, by removing the operation on a subordinated hierarchical system. Each judicial inspector must be independent in issuing solutions, the cases must be distributed randomly, and access to the positions of judicial inspector (prosecutor or judge) must operate by an examination based on objective and meritocratic criteria. Only in this way will the suspicions regarding the “fabrication of files” for certain magistrates considered uncomfortable by interest groups that have parts of the media subordinated to them or want to control the judiciary be removed.
Such a solution was welcomed by the Venice Commission in the case of Bulgaria (Opinion no. 1002/2020 of 20 November 2020) and would correspond to the principle of career separation, expressly introduced in the legislation on judicial organization and the status of magistrates in 2018 (Art. 1(2) of Law no. 303/2004 stipulates: ”(2) The career of the judge is separate from the career of the prosecutor, judges may not interfere in the career of prosecutors nor prosecutors in that of judges.”)
The Romanian Judges‘ Forum Association
The Movement for Defending the Status of Prosecutors Association
The Initiative for Justice Association
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