Strasbourg, 12 February 2001
CCJE (2001) 13
Consultative Council of European Judges (CCJE)
Questionnaire on the independence of judges, their appointment and careers, and funding of the courts: reply submitted by Romania
I. 1. The independence of the judges is guaranted by the Constitution of 1991:
- article 123 point 2 provides: “Judges shall be independent and subject only to the law” - and also by the legislation. The two Laws - Law no. 92 of August 4, 1992 - on Judicial Organization in art. 3 and the Law of the Supreme Court of Justice - no. 56 of July 9, 1995 in art. 6 provide the same principle stated by the Constitution.
2.3. The institutional safeguard of the independence of the judges is the recognition of their irremovibility.
In this respect are the provisions of art. 124 paragraph 1 of the Constitution and those of art. 75 and art. 129 paragraph 1 of the Law of Judicial Organization. These regulations state that judges are irremovable begining with the date of their nomination by the President of Romania without any time limit.
The situation of the judges of the Supreme Court of Justice is different - they are appointed by Decree of the President of Romania for six years, or as the case may be for the period of their mandate.
4. The decisions taken by the judges can be reversed only by the means of legal ways of attack, also solved by the Courts of law.
According to the criminal law provisions, the failure to comply with a judgement represents an infraction and is sanctioned with fire of imprisonement (art. 271, Penal Code).
5. Under no circumstances whatsoever can a case be withdrawn from a judge. However, there exist the institutions of “incompatibility” and “the challenge” of judges provided by the civil law (art. 25, 26, 29, 34 and 35 - Civil Code of Procedure) and also by the criminal law (art. 46, 47, 48 and 51 - Penal Code of Procedure). The results of these institutions is the removal of the judge from judging the respective case.
II.1. The training and the conditions to be met in order to become a judge are:
- to be a Romanian citizen only;
- to be graduated in law;
- to have no past criminal record and to enjoy a good reputation;
- to be apt from a medical point of view;
2. There are two possibilities in order to be appointed as judge: taking a qualification examination or having exerted for at least 5 years offices of lawyers, notary public, member of the teaching staff of the higher education schools of law, or of the research staff, offices in the public administration, in the machinery of Parliament, or of the presidential institution, of the Constitutional Court, of the People's Advocate institution, of the Court of Audit, or of the Legislative Council.
For example: - 5 years - to be appointed judge at a court of first instance;
- 6 years - for the Tribunals
- 10 years - for the Courts of Appeal
- 12 years - for the Supreme Court of Justice
The qualification marks are taken into account in order to be promoted to higher courts.
3. For being appointed as judge one must be graduated in law and for the beginners - for the first level - the courts of first instance - having no previous length of service (as observed at the previous answer) - having graduated the National Institute for Magistrates. For the judges of the Supreme Court of Justice it is recommended to be doctors in law.
4.5. Any person fulfilling the conditions formaly presented may be judge. The differences with regard to the age limit are:
- Tribunals - 65 years
- Courts of Appeal - 68 years
- The Supreme Court of Justice - 70 years
6.7.8. Except for judges on probation (the first two years after graduating) - that are appointed by order of the Ministry of Justice, all the other judges are proposed to the President of Romania for being nominated by way of Decree, by the Superior Council of the Magistracy.
9. The authority competent in selecting judges is the Superior Council of Magistracy, formed of judges and prosecutors.
10. The Superior Council of the Magistracy is an authority independent from the government and from the administration.
11. According to the provisions of art. 73 letter “b” of the Law on Judicial Organization, no. 92 of August 4, 1992, the Superior Council of the Magistracy dispose with regard to the promotion, transfer, suspension and cessation from the judge office.
12. The criteria for promoting judges are stated by the Law on Judicial Organization. In addition to the fulfilment of the general conditions, they must have exerted a praiseworthy activity, attested by the qualification marks granted by the hierarchical chiefs and inspectors.
13. The removal from office (art. 95 from the Law of Judicial Organization) is the most serious sanction that can be applied for a disciplinary misbehaviour (listed at art. 94 of the same law) such as:
a) systematic delay in carrying out their work;
b) absences without leave from office;
c) interventions or insistences for the settlement of certain petitions regarding the satisfaction of their own interests or those of the members of their family in violation of the legal framework as well as interference with the activity of another magistrate;
d) irreverent attitutes during the exercise of the prerogatives of their office;
e) non-observance of the secret of deliberations or of confidential character of work having this character;
f) public activities with a political character;
g) manifestations prejudicial to professional honour or probity;
h) unjustified refusal to accomplish an obligation which is incumbent upon them according to laws and rules, or trespassing upon other obligations following from the present law;
i) repeated neglect in the resolution of work;
j) violation of other provisions of the law, referring to incompatibilities and interdictions with regard to magistrates;
14. It will be usefull to generalize the irremovibility also for the judges of the Supreme Court of Justice that enjoy it only for six years, even if their mandate can be renewed. In this way tensions and suspicious within this group of judges, caused by the political changes every four years would disappear.
III.1.2.3. According to art. 121 from the Law on Judicial Organization the expenses required for the adequate operation of the courts shall be financed from the State budget as well as from the income achieved by the Ministry of Justice from the judicial stamp.
Art. 65. Law of the Supreme Court of Justice no. 56/July 9, 1995 provides that the Supreme Court of Justice shall have its own budget, which shall be a part of the State budget. The draft budget, with the advisory opinion of the Ministry of Finance, and the budgetary execution, shall be approved with the majority vote of the members of the Joint Divisions of the Supreme Court of Justice.
4. For the proper and prompt fulfillment of their duties judges have at their disposal personnel for assisting them and adequate technical equipment.
5. Because of the material difficulties there are not enough premises and the personnel is not sufficient for the great number of cases. Because of this, by granting long terms and by writing the judgements after a long time - despite all the efforts - there exist some lack of efficiency and delay in solving the cases.
6. The assignement of non-judicial tasks to other persons offers good results.
7. It has been answered.