Strasbourg, 6 November 200
6 CCJE (2006) 8
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
(CCJE)
Letter from THE ROMANIAN ASSOCIATION OF MAGISTRATES to the CCJE
53 Bdv Elisabeta, floor 6, District 5, Bucharest
Tel/Fax: + 40(21) 310.32.00/extension 178
Mobile phone: 0722.382.557
e-mail : [email protected]
No 167/20.09.2006
To the attention of:
Consultative Council of European Judges (CCJE)
Private Law Department
Directorate General of Legal Affairs
Council of Europe
Your Excellencies,
I am addressing you in a very sensitive moment for both the Romanian society at large and the Romanian magistracy, only days before the European Commission publishes the Comprehensive Monitoring Report.
Latest legislative amendments recently adopted in Romania have resulted in an unprecedented situation for the Romanian magistracy, moreover as amendments defy basic principles of law observed in all Member States. I mainly refer to Law no 303/2004 related to the status of magistrates, namely to the introduction of paragraph h of Article 99, providing that infringements of procedural rules shall result in disciplinary action to be conducted by the Inspection within the Superior Council of Magistracy.
This constitutes a severe infringement of best legal practices throughout the European Union, which as a matter of principle provides that potential infringements of procedural issues are to be addressed within the judicial system itself, through remedies in higher courts of law. Romania has three grades of jurisdiction, i.e. sufficient guarantees that any potential infringements of procedures could be repaired through judicial review.
The fact that amendments of Article 99 of Law no 303/2004 on the Statute of Magistrates introduces a technical structure outside the judicial system per se, as the Inspection within the Superior Council of Magistracy, as a decision-maker in bringing disciplinary action for infringements of procedural rules do constitute, in our opinion, a severe slippery slope and a complete change in the legal tradition accepted throughout the EU.
Also, article 322 item 4 of the Civil Procedure Civil, in its new drafting, provides that Court decisions would be reversed in case that judges who ruled over the case have been subject to disciplinary procedures. Such amendment leads to an administrative control above the judiciary control and threatens the stability of the legal circuit as well as the res iudicata of Court decisions.
Another recent amendment which contradicts European practices in the field of material liability of judges is reflected by the wording of articles 506 and 507 of the Criminal Procedure Code. Despite the fact that European regulations are in the sense that the material liability of judges is only incurred in case of criminal offences committed by the judge while rendering the act of justice, the new articles 506 and 507 establish the Romanian State's obligation to recover the amounts ordered by the European Court of Justice to be paid by the State from the judges who rendered the decision overturned by the European Court, without any distinctions.
For these very reasons and for others, of no less importance, mentioned in extension in our open letter addressed to the highest authorities Romania, magistrates decided to officially protest, including by suspension on a daily basis of the court session. We understand to use such measures in order to be considered and treated as key actor in the overall process of reforming the Romanian judicial system, as better justice cannot be achieved through what would be repression against its independent magistrates.
We are addressing you as we do trust that further monitoring allowed for through the safeguard clauses might also address our problem, thus helping Romanian magistrates in their efforts to contain the on going reform within the limits defined by EU best practices and general accepted principles of law, as the issue addressed to your excellencies is directly linked with a political criterion as independence of the judicial system.
Faithfully your,
Viorica Costiniu,
Judge within Bucharest Court of Appeal
President of the Romanian Association of Magistrates
Annex: Open Letter of the Romanian Association of Magistrates addressed to the responsible Romanian authorities
53 Bdv Elisabeta, floor 6, District 5, Bucharest
Tel/Fax: + 40(21) 310.32.00/extension 178
Mobile phone: 0722.382.557
e-mail : [email protected]
No 166/18.09.2006
To
The President of Romania
The Prime Minister of Romania
The President of the Senate
The President of the Chamber of Deputies
The President of the Superior Council for the Magistracy
The Minister of Justice
The recent legislative amendments of Law no. 356/2006 published in the Official Gazette no. 677/7.08.2006 and which relate to art.99 letter h) of Law no. 303/2004 and art. 507 of the Criminal Procedure Code require the submission by the magistrates in Romania of the present
OPEN LETTER
regarding the unprecedented situation of Justice in Romania, which demands an urgent legislative initiative meant to abrogate the legal provisions which have led to the transformation of the independence of the act of justice into a merely theoretical principle.
The independence of justice is the basis of any state of law and it should be guaranteed through the Constitution and laws, all governmental authorities and other entities being obliged to observe it. This principle has been reflected through important international instruments, such as the International Chart of Judges, the European Chart regarding the Judges' Statute, the Recommendation no. R (94) of the Council of Europe regarding the judges' independence, efficiency and role, Approvals no.1 and 2 of the Consultative Council of European Judges, etc.
Such instruments refer to the independence of the judicial authority as follows:
"The main principle is that the judge, while exercising his attributions, is nobody's employee; he holds a state position. He only serves law and is only liable to the law". (Approvals 1 and 2 of the Consultative Council of European Judges)
"The independence of justice shall be granted by the state and recognized through the Constitution or domestic legislation. All governmental authorities and other entities must observe the independence of justice. Judges must be impartial in settling the cases and shall render decisions based on facts and in accordance with the law, without restrictions, influences, persuasion, pressure, warnings or interferences, either direct or indirect, by anybody and for any reason. Judges shall be competent to rule over any legal matters and shall have exclusive authority to decide if a case falls under their competence or not, according to the law.
(The Basic Principles of the United Nations with regard to the judges' independence) or
"The judges' independence must be insured through the law which establishes and protects the judicial authority, which is truly and effectively independent towards other authorities in the state. The judge, as holder of a judicial position, must be able to exercise his competence without any social, economic or political pressures and to be independent towards other judges and the administration of the justice system" (International Chart of Judges)
We underline that the amendment of article 99 letter h of Law no. 303/2004 introduces a new case of disciplinary liability of magistrates for breaching procedural rules. In fact, the inspectors' body within the Superior Council for the Magistracy shall have the power to exercise a type of "judicial control" which is parallel to the one exercised by Courts (with potentially different solutions), and which has an administrative nature, despite all the regulations of any judiciary system in Europe.
This circumstance represents a severe and unacceptable interference within the act of justice, which threatens res iudicata of Court decisions and has unimaginable consequences upon the fundamental rights and freedoms of any person.
The international instruments which we have referred to expressly mention the following:
The judges decisions should not be reversed otherwise than through the appeals provided by law (the Recommendation no. R (94) of the Council of Europe regarding the judges' independence, efficiency and role, adopted by the Council of Ministers on 13.10.1994 ), while paragraph 69 of the Approvals 1 and 2 of the Consultative Council of European Judges provides that:
The inspection systems of the Courts, in those country where such inspection is provided by law, should not be preoccupied by the object or accuracy of Court decisions and should not determine judges, for efficiency grounds, to act in favor of productivity, instead of properly fulfilling their role, namely the rendering of a well thought decision, which would defend the interests of the individuals.
It is thus obvious that this type of control over Court decisions of the Inspection within the Superior Council for the Magistracy severely derogates from the international instruments referred to above and also contradicts the Romanian Constitution, according to which the only control of the legality of Court decisions shall be done through the Supreme Court of Justice and other Courts provided by law (articles 126 and 129).
Furthermore, our judiciary system is also fighting other types of pressure, such as the unstable and incoherent legal frame which severely damages the prestige of the judicial authority; it is relevant enough to mention the unexplainable amendment of essential legal instruments (such as the Criminal Procedure Code, the Criminal Code or the Civil Procedure Code) which are significantly modified on a monthly basis or the recent amendment (two times in one month) of Law no. 356/2006 and Government Ordinance no. 60/2006 respectively. One must also note that indirect types of pressure faced by judges such as the huge amount of work and the insufficient Court personnel.
The amendments of article 507 of the Criminal Procedure Code, at the same time with the publication of Law no. 356/2006 - Official Gazette no. 677/7.08.2006 (which set forth the obligation to exercise a legal action against the magistrate in all cases where the state has been sentenced by an international Court or ordered to pay damages, under article 506 of the Criminal Procedure Code) represent measures taken by the legislative and executive authority which may endanger the core of the judges' independence.
Both in cases where the Romanian state has been sentenced by an international Court and in cases where the state has been ordered to pay damages under articles 504-506 of the Criminal Procedure Code (for errors in judgment), we notice that the solution found by the executive and legislative authorities (to start legal actions against judges) denies any other responsibility for such decisions, even though in many cases such errors are a result of the fluctuant legal frame and the huge amount of work.
The decisions rendered by the European Court of Human Rights against Romania have been mostly generated by the climate of legal uncertainty due to the lack of coherence and the ever changing legal instruments; such circumstance has been often registered by the European Court in several decisions, which underline the breach by the Romanian State of the positive obligation to act promptly and coherently in issues of general interest: "The Court assesses that the lack of coherence of the legislative framework and the divergences in the case law… may create a general climate of uncertainty and legal insecurity…"(Paduraru against Romania); "…The Court has acknowledged that the state did not fulfill its positive obligation to act promptly and coherently in general interest issues…"( Radu against Romania)"; "..The Court underlines that no internal legal provisions state clearly and certainly that the consequences of the sale by the state of a good belonging to an individual, the domestic regulations namely, provide a clear and precise answer to the question whether and how can the individual owner be indemnified for the loss of such good") (Strain against Romania); "..It is certain that numerous judicial procedures … result out of this uncertainty and that the Courts have been called to rule upon such cases, even though they did not benefit of a predictable and coherent enough legal frame (Paduraru against Romania).
Given the unprecedented situation of the Justice in Romania, we hereby request an urgent legislative intervention, with the consultation of the Superior Council for the Magistracy, whose approval is mandatory in accordance of Law no. 317/2004, for the amendment of:
1. art. 99 letter h) of Law no. 303/2004, by deleting the new case of disciplinary action (for breach of procedural rules);
2. art. 504 and the following of the Criminal Procedure Code, so that the legal action initiated by the state against magistrates would be possible only when it is established that the damages that the State needs to pay are the result of a crime committed by such magistrate;
3. article 322 item 4 last paragraph of the Civil Procedure Code, according to which the disciplinary sanction of the magistrates for exercising such position would represent reasons to reverse a Court decision.
We also need to mention as requiring a legislative intervention article 1 item 24 referring to art. 48, item 151 referring to art. 309 paragraph 2, item 201 referring to art. 418 paragraph 3 and 4, while other provisions breaching European regulations and Constitutional provisions need still to be identified.
We believe that the time frame for the relevant authorities (the Ministry of Justice, the Romanian Government and the Parliament) can be set for 22nd of September 2006.
We found ourselves in the extreme situation to draw the attention and decide that in case such requirements are not fulfilled until the above mentioned deadline,
The magistrates intend to start the professional protest for the defense of a coherent legislation in accordance with judicial realities, by proposing:
- the notification of all international institutions monitoring Romania;
- the notification of all international judicial bodies;
- the suspension of Court hearings, at a national level, starting with Monday, 25th of September 2005, 10: 00, for a duration of half an hour, until the abrogation of the legal provisions whose enactment has generated a threatening of the state of law.
We hope that a legislative solution shall be found in order to insure a proper carrying out of the act of justice, as an evidence of observing the judicial activity and recognizing justice as a power in the state.
President of the Romanian Association of Magistrates,
Judge Viorica Costiniu