Main aspects seriously affecting the Romanian judicial system

Bogdan Ciprian Pîrlog,

Prosecutor,

Prosecutor’s offices attached to Bucharest Tribunal

1. The destruction of human resource pool in courts and prosecutor’s offices

      Through the amendments of 303, 304 and 317/2004 laws the main goal (intentionally or not) is to obtain the decrease and loss of professionalism for the magistrates, doubled by an artificial increase of their activity and imposing of some unrealistic procedural deadlines which will jam the judiciary system. By the time the new system will be enforced the recruiting and initial professional training, in a time frame of 3 years no prosecutor or judge will occupy any vacant job.

1. Recruitment in the system (points 17-48 of the Law amending and supplementing Law no.303/2004)
2. Transforming National Institute of Magistracy from a vocational training institute into a 4-year program, which consists of pursuing for 3 years, by the justice auditors of some training programs in different institutions (including 6 months in penitentiary) and liberal professions. This extended program will have a negative impact due to the following considerations:
3. A four-year hiatus is created between the learning of theoretical knowledge while in the university and the period of application of this knowledge in practice in the professional field.
4. The future judge or prosecutor, during the National Institute of Magistracy, will have contact with the court or the prosecutor’s office only 6 months in 4 years. Moreover, between the period during which the auditor will perform an internship in the courts or at the prosecutor’s office and the time of appointment as a judge or prosecutor, there will be a gap at least 2 years (enough to forget what he learned during that internship) as a conclusion this kind of training will have no positive impact on the professional training of the future magistrate.
5. Exposing the future magistrates to the criminal environment through the two stages of 6 months in prisons and law offices. It also offers the opportunity to establish the influence of lawyers, from offices where the future magistrates will perform their trainings (no criteria have been established for the selection of these privat office), on judges and prosecutors (it must be kept in mind that the final mark and the future of the professional career of the magistrates will depend of the assessment made by that lawyer).
6. For the last year of the university, the institutions in which they will perform their internship are not mentioned by the law
7. The National Institute of Magistracy final exam becomes a subjective assessment and lawyers are elected in the evaluation committees.
8. The appointment for the position of judge or prosecutor, is performed after the graduation, thus that throughout the time spent in the institute, the auditor does not know what profession will have. Consequently, National Institute of Magistracy will not be able to develop a real training program as the trainees will find out the profession only after graduating from the institute.
9. Due to unrelated modifications , in fact it is not clear how it will be organized the graduation exam, since the Section for Judges of the Supreme Council of Magistracy appoints a commission composed of 5 judges, one lawyer and a university professor, and the Section for Prosecutors of the Supreme Council of Magistracy appoints a commission composed of 5 prosecutors, a lawyer and a university professor, although court auditors will opt for a career judge, respectively prosecutor after passing the exam (and depending on the final exam grade). So, who examines who?
10. Last but not least, the increase of training period, from 2 to 4 years, will cause the loss of the most talented in each generation of graduates. Given the low amount of the scholarship offered to auditors of justice and the training period increased to 4 years, the best of law graduates will turn to professions that can bring them income that is directly proportional to their academic achievements in a shorter time. By this decision will benefit professions such as lawyers or notary offices, which will attract the most valuable graduates of the law universities in the country, offering them a much higher income than that offered in the National Institute of Magistracy, as well as the possibility to carry out practical activities from the first day of their carrier, and not after 4 years.

2. Increasing the trainee period to 2 years, and significantly reducing competence of the trainee prosecutors, who will no longer be able to solve any criminal cases, but only to issues advisory opinions.
3. The capacity exam becomes subjective, 50% from the final grade consisting in the evaluation of the „professional portfolio”.
4. Effective promotion at higher courts and prosecutors’ offices (paragraphs 58 to 63 in the Law for amending and completing the Law no. 303/2004)

 

• The promotion is based on absolutely subjective criteria, as following: “activity assessment and the conduct in the last 3 years “. In particular, it is not clear what the assessment of the conduct is, taking into account the fact that the “very good” rating must be obtained at every evaluation in order to promote, one of the criteria considered is that of the quality of the activity, and any inappropriate conduct would constitute a disciplinary offense, which would disqualify the candidate automatically.
• It is obvious that through these changes a controlling system for promotions through the ranks is established, having the main purpose of recruiting only certain individuals to the appeal courts, thus indirectly influencing the solutions in the appeal procedures.

1. Introduction of the possibility for voluntary suspension from the magistrature (paragraph 112 from the Law for amending and completing the Law no. 303/2004)¹

• The judge or prosecutor may be suspended from the magistrature in order to serve as a member of the Government, during the term of office, or may be suspended voluntarily for a period of up to 3 years.
• This creates the possibility for magistrates to carry out other duties, without becoming incompatible with their appointments. Such a situation may favor corruption in the system (eg. the magistrate who performs “certain actions” or decide “certain measures or solutions” is suspended voluntarily engages or performs another activity remunerated by an entity controlled or influenced by the “beneficiary” of the magistrate’s provisions).
• Such provision creates, among other negative effects the possibility for magistrates to evades professional activity, suspending (for short periods) whenever the volume of activity and the amount of assigned work increases or when the allocated cases are difficult or very important. Moreover, it emerges from the regulation that the Supreme Council of Magistracy only acknowledge the suspension, does not have decision-making power over the issue, the decision belonging exclusively to the magistrate, and there is no possibility to censor it.
• The consequences of such a provision are extremely dangerous to the stability of the judicial system. Nothing prevents the suspension of all judges in a court or every prosecutors in a prosecutor’s office with disastrous consequences. If in small units it is possible to prevent such a situation by delegating magistrates from other units to the main courts or important prosecutor’s offices this is impossible.

1. Amending the 20 years of service pension not considering the age threshold (paragraph 145 in the Law for amending and completing the Law no. 303/2004).

• Around 1,000 to 1,500 magistrates (out of 6500) benefit from these provisions, and taking into account the fact that the pension will substantially exceed the amount of the wage rights of the active magistrates exists a high probability that all these magistrates will retire (we mean people of age between 44-48 years). They are encouraged to leave the magistrature at the peak of their career. As per comparison a similar action in the police ended with disastrous results.

1. The artificial and unjustified increase in the volume of activity of the courts and prosecutor’s offices

1. Introduction of unrealistic imperative deadline (paragraph 5 in the Law amending and supplementing Law 304/2004)

Introducing the mandatory reprieve to motivate a court decision to a maximum of 90 days is unrealistic, not taking into account the amount of files in large courts or the particular complexity of certain cases. The immediate effect will be a decrease in the quality of court decisions.

2. Increasing the number of judges in the panel (paragraph 5 in the Law amending and supplementing Law 304/2004)

• Doubling the number of judges in the challenge panel and increasing from 2 to 3 of the judges in the appeal panel, without enlarging the scheme of judges’ functions will lead to doubling the volume of activity for each judge.
• In the case of criminal courts, if we consider the proposed amendments to the Criminal Procedure Code, in the sense of establishing the incompatibility between the preliminary court judge and the court, the volume of activity for each judge within the criminal sections will increase around 3 times.
• The consequence in time will be a correlative increase of the activity of the court division of the prosecutor’s offices.

3. 3. Modification of seniority to be appointed to National Anticorruption Directorate and Directorate for Investigating Organized Crime and Terrorism (paragraphs 40, 43 of the Law amending and supplementing Law 304/2004).

• Increasing the minimum seniority to 2 years for the position of prosecutor or judge in order to be appointed in the two elite units of the Public Ministry drastically reduces the recruitment pool with consequences on the volume of activity of each prosecutor.

In conclusion, for points I and II, we note that by blocking for 3 years the acceding to vacant positions of judge or prosecutor, combined with the elimination of the minimum retirement age (20 years of activity), the number of judges and prosecutors will be reduced by about 25%. If we consider the introduction of the voluntary suspension in magistrature, the total number of active magistrates may decrease even more.

The dramatic abatement of the number of magistrates is doubled by the increased work load for each judge or prosecutor (minimum 3 time the current volume), which will eventually lead to the collapse of the judicial system.

  III. The Damage of the statute of Magistrates and establishment of control and pressure mechanisms 1.Changing the status of the prosecutor in the sense of repealing the legal provisions guaranteeing independence(points 4,5 from The Law for Modification and Completion of the Law 303/2004)

l  Thus, according to the legal provisions in force: “The prosecutors appointed by the President of Romania enjoy stability and are independent, according to the law. Prosecutors enjoying stability may be moved, transferred or promoted only with their consent. “l  Following the amendments it will be stipulated that “Prosecutors are independent in ordering the solutions, under the conditions stipulated by the Law no.304/2004”. Criminal investigation activity is not limited to the issuing of a final decision in the case. Practically, through this amendment, corroborated with the provisions of paragraph 35 of the Law amending and completing Law 304/2004, the prosecutor is no longer independent in the exercise of his or her duties of supervising the criminal investigation of the judicial police or the carrying out of his own criminal investigation.l  Loss of the guarantee of stability, which absurdly will be enjoyed only by the trainee prosecutors and the abolition of the prosecutors’ independence, makes them de facto simpler executors of the orders of the head of prosecutor’s offices and, implicitly, of the provisions of the Minister of Justice (point 38 of the Law for the amendment and completing the Law 304/2004) 2. Require of additional obligations and instituting new incompatibilities to magistrates (paragraphs 2, 5, 6, 7, 12 of the Law amending and completing Law 303/2004). E.g: l  “In other situations that go beyond the activity related to the act of justice, the conflict of interest will be brought, in writing, to the attention of the college of the court or prosecutor’s office who appreciates its existence or non-existence.”²l  “Judges and prosecutors must both be and appear to be independent of each other.”l  “Judges and prosecutors are obliged, in the exercise of their duties, to refrain from defamation or expression, in any way, against the other powers of the state – legislative and executive.”

 

3. Establishment of political control over judges and prosecutors (paragraph 9 of the Law amending and supplementing Law 303/2004)³ l  The special criminalization of the “recruiting” of the magistrates by intelligence officers, as long as there was already a legal interdiction, the deed constituted the crime of abuse in the service, it seems to have the purpose of accountability of some rather pathological needs (paranoia induced by the acceptance of conspiracy theories) expressed by the representatives of a minority within the professional associations of magistratesl  An absolute parliamentary scrutiny of prosecutors and judges is introduced. “The verification of the veracity of the data provided in paragraph (2) shall be done by the Supreme Council of National Defense and by the special parliamentary commissions for the control of the activity of the intelligence services, either ex officio or whenever they are notified by the Ministry of Justice, Superior Council of Magistracy, the judge or prosecutor concerned. The result of the actual verification has the value of conforming information. Erroneous answer is punishable under the law. “l  In principle, the more the interference of the legislature, politicians, over the magistrates is wider, the more the judges’ independence requires adequate safeguards. Allowing verification of information from magistrates’ declarations may be a violation of the principle of separation of powers of the rule of law in the absence of legal safeguards.l  By this regulation, a parliamentary committee may require the Judicial Authority to remove a “inconvenient” judge or prosecutor, ensuring that the guaranteeing the independence of justice by Supreme Council of Magistracy’s is emptied of content. Including subsequent court control is vitiated. There is no way to talk about a fair trial, because judges are also kept by the conforming information, without a legal mechanism to allow this information to be checked by the court. The information and documents are submitted to the parliamentary committee and not to an institution within the Judicial Authority.l  This regulation is complemented by the interdiction of police officers or non-commissioned police officers to be employees, collaborators or intelligence service informants. The notion of intelligence service is not defined in any law. General Police Inspectorate of Romania also has a Special Operation Department that also carries out intelligence activities (intercepts, video surveillance, audio, filing, etc … in pursuance of the prosecutor’s order or under technical supervision judge mandates) and their officers and non-commissioned officers are judiciary police. This prohibition seeks to prevent the implementation of technical surveillance mandates by excluding from the judicial police the officers and non-commissioned officers specializing in such activities. 4. Establishment of the Special Section for the Investigation of Justice Offenses (paragraph 45 of the Law amending and supplementing Law 304/2004) l  No explanation was given for the need to establish such a structure. A special structure is justified only to the extent that there is a particular problem. The dangerous idea in a state of law is that there is a problem of criminality within the magistrates, which requires special attention.l  The structure will be made up of at most 15 prosecutors, who are not and can never be specialized in each category of offenses covered by the legislation in force. Specialization requires professional experience, in addition to a thorough knowledge of a subject at the theoretical level, and the specialization is acquired after a long period of effective practice in the field.l  Then, the activity of these 15 persons in Bucharest, in violation of the principle of space accessibility of the judicial body, requires the magistrate, unlike other citizens, to go to hearings and other criminal prosecution activities during the working hours, in another locality, at a long distance and incur excessive costs.l  Also, the magistrate will organize its defense very hard and will incur disproportionate costs or will have to refrain from prosecution and incur an unfair trial.l  Moreover, there are thousands of petitions (untrue) against the magistrates annually, in which a minimum investigation must be carried out according to ECHR. At present, these complaints are being investigated by more than 150 prosecutors in 19 prosecutor’s offices (16 Prosecutor’s offices attached to Courts of Appeal, Prosecutor’s Office attached to the High Court of Cassation and Justice, National Anticorruption Directorate and Directorate for Investigating Organized Crime and Terrorism). It is obvious that the 15 prosecutors in the new section will be overtaken by the volume of activity. And this reinforces the suspicion that, in fact, it is not intended to make criminal investigations more efficient in cases where criminal charges are brought to the magistrates, but only to create a unit that can be used punctually against an “inconvenient” judge or prosecutor.l  The appointment of the Chief Prosecutor is made by The Supreme Council of Magistrates Plenum following a “contest” consisting of presenting a project to a commission consisting of 3 judges appointed by the Section for Judges and a prosecutor appointed by the Section for Prosecutors, and the other 14 prosecutors are selected following a “contest” consisting of an interview held before a commission including the Chief Prosecutor of the Special Section and three judges appointed by the Section for  Judges and a prosecutor appointed by the Section for Prosecutors.l  It is noticeable that the appointment of prosecutors, including the head of the section, is fully controlled by the Section for Judges. Beyond the issues of unconstitutionality, it is obvious that this regulation’s reason is that the majority of judges in the Judicial Section are favourable to the current political power or at least to the demise of the judicial system. 5. Reorganizing the Judicial Inspection (paragraphs 43-52 and 65-89 of the Law amending and supplementing Law 317/2004) l  By the changes made, the Judicial Inspection is de facto transformed into the technical support team of the Chief Inspector who gains absolute power within the Inspection. Thus, he: a. Appoints, among the judicial inspectors, those who will be in charge of the leading positions. b. Absolute control in the selection of judicial inspectors. c. Drives and controls inspection and disciplinary investigation, imposing solutions in a discretionary manner. d. Is the main Authorizing Officer. e. Is the sole holder of the disciplinary action. l  The appointment of the Chief Inspector is made by the Supreme Council of Magistracy Plenum following a “contest” consisting of a project submitted to a committee of three judges assigned by the Section for Judges, a prosecutor assigned by the Section for Prosecutors, one of the members of the civil society, assigned by the SCM Plenum and a psychologist, also appointed by the SCM Plenum, who will issue a consultative report.l  It is noticed that the appointment of the Chief Inspector is fully controlled by the Section for Judges, and civil society representatives have been appointed by the current political power. Beyond the issues of unconstitutionality, it is obvious that this regulation’s reason is, too that the majority of judges in the Judicial Section are favourable to the current political power or at least to the demise of the judicial system 6. Maintaining the political factor in the appointment of the heads of the Higher Prosecutor’s offices and the Supreme Court (points 87, 88 and 90 of the Law for amending and completing the Law 303/2004)  l  The Constitution states: “The Superior Council of Magistracy proposes to the President of Romania the appointment of judges and prosecutors, except for the trainees, in accordance with the law.”l  A clearly unconstitutional system of appointment of the President and Vice-Chairs of the High Court of Cassation and Justice is maintained, since the nomination to the President of Romania is made by the Judges Section and not by the SCM Plenum.⁴l  There is also a clearly unconstitutional system of appointment of the General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice, the first deputy and his deputy, the chief prosecutor of the DNA(National Anticorruption Directorate), his deputies, the district prosecutors of the of these Prosecutor’s Offices, as well as the chief prosecutor of the Directorate for the Investigation of Organized Crime and Terrorism and its deputies, who are appointed by the President of Romania, at the proposal of the Minister of Justice, with the opinion of the Prosecutors Section of the Superior Council of Magistracy.l  Again, we notice the intention of the political factor to control appointments to senior positions either directly in the case of prosecutors or through the loyal majority of the Judges Section in the case of the President and Vice-Chairs of the High Court of Cassation and Justice. 7. Strengthening the role of the Minister of Justice and regulating a legal mechanism by which he can influence the course of the criminal process. (paragraph 38 of the Law amending and supplementing Law 304/2004) l  Thus, in particular, it is possible that the Minister of Justice, to be either a member of a political party, either supported and implements the Government’s government program supported in the Parliament by one or more political parties, to “exercise control on prosecutors “and to give written instructions on the measures to be taken ” to prevent and combat crime effectively “.l  It will be that in cases where the prosecution of alleged corruption offenses (and, if necessary, the adjudication of cases) would concern party members who support the Government or who belong to the Government of which it is a member and the Minister of Justice, prosecutors could be controlled by a person whose job depends directly on the persons investigated by the prosecutor. It is obvious that such a report is likely to remove the independence that prosecutors would need to solve such causes.l  Where there is no precise regulation of the limits of the power conferred on the Minister of Justice, the rule in question may be interpreted by the latter with a wide margin of appreciation of the scope of the acts which he may have in the exercise of his authority. However, purely subjective assessments should be excluded from the analysed normative hypothesis, given the importance of the constitutional function exercised by the Public Ministry according to art. 131 par. 1 of the Romanian Constitution (see, mutatis mutandis, CCR Decision No. 553/2015).l  The same imprecision is also likely to create a strong impression that the prosecutor’s impartiality, provided by art. 132 par. (2) of the Constitution, may be affected by the “control over prosecutors” exercise.  8. Modification of provisions on the patrimonial liability of magistrates for judicial errors committed in bad faith or serious negligence⁵  ·         The relevant amended provisions provide for the following: a.    “Judicial error implies the liability of judges and prosecutors only if they have exercised their function in ill-faith or gross negligence.b.    There is a legal error when the misconduct of a judicial proceeding is determined in the course of the act of justice, and as a result a harm to the rights or legitimate interests of a person occurs.c.    There is gross negligence when the judge or prosecutor in the exercise of his duties, fails to observe the rules of substantive or procedural law, causing a judicial error. ·         The constitution, at art. 52 par.3 sentence states that “State liability is established under the law and does not remove the liability of magistrates who have exercised their office duties in ill-faith or gross negligence.”·         The legal error term is totally unpredictable, vague, not being clear and precise which is the subject to regulation. Judicial error as the basis of magistrates’ liability is defined as the determination of the wrongful conduct of a judicial procedure. Moreover, the magistrate may be required to respond even for offenses of the lightest, or even lack of fault, which is excessive, unconstitutional. The concept is foreign to the rule of law, in internal legal provisions, jurisprudence or doctrine there is no reference or definition of the “wrong deployment of a judicial procedure”, purely colloquial expression.

iV.   Conclusions

1. The collapse of the judicial system

• Through these changes, the magistrates will be deprofessionalized and the National Institute of Magistrature will become the main vector of deprofessionalization.
• Promoting, by eliminating the objective criteria of professional competence, will become an indirect control tool for the solutions given by the appeal or control court panels.
• The current number of magistrates will be reduced by at least 25 percent by 2022.
• The volume of activity will be artificially increased, these actions, together with the massive reduction of the magistrates number, will lead, in particular for judges, to doubling or even tripling the work load.
• All of these consequences will ultimately lead to the collapse of the judicial system and will put an end to justice as a public service.

2. Influencing and distorting the act of justice

• Establishment of mechanisms for control and pressure on magistrates, through directly or indirectly politically controlled entities. Thus, pressure may be exercised on magistrates either through the magistrates’ investigation section or through the Judicial Inspectorate, bodies controlled by the political factor through the aligned members of the SCM Section for Judges.
• The patrimonial and disciplinary liability of magistrates will be attributed irrespective of the existence, inexistence or gravity of their fault.
• Prosecutors’ independence is lost.
• Control over prosecutors can be exercised by the politic entities through The General Prosecutor of Romania, the chief prosecutor of the National Anticorruption Directorate or the chief prosecutor of the Directorate for the Investigation of Organized Crime and Terrorism, whose appointment are controlled by the Minister of Justice.
• The Ministry of Justice, a political factor, will be able to control the prosecutors and give them guidance on preventing and effectively combating crime by engaging in criminal prosecution.
• These actions will place the judicial system in a position of subordination to the political factor, with the consequence of losing the status of rule of law and favouring high-level corruption or the judicial corruption.
• Moreover, the judicial structures, and especially the prosecutor’s offices, will turn into political struggle tools at the disposal of the political power entities, returning to be a repressive, corrupted and non-functional instrument.

  Note: ¹ The Constitutional Court declared these amendments unconstitutional but the decision is not yet motivated. Under such circumstances, we cannot know whether the arguments are relating to the clarity of the legal provision or to the substance of the legal provision² idem³ idem⁴ idem⁵ idem

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