Strasbourg, 22 Octobre 2006

CCJE/REP(2006)30
English only

Consultative Council of European Judges (CCJE)

Questionnaire on “The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”: reply submitted by the delegation of Romania

A.1. The “National Institute for Magistracy” (NIM) ensures at the same time the training of future magistrates, - as well as the continuous training during the exercise of profession, namely the training of in-service magistrates. The Institute is in charge with the recruitment and entry- level training of future judges and prosecutors, the in-service training of sitting judges and prosecutors, and of the trainers` training as well.

Following the legislative amendments through which the specialized courts will be created, the NIM also has the responsibility of training the magistrates who operate in specialized courts, as a component of the continuous training.

National Institute of Magistracy has to provide a number of training programmes sufficient for the participation of one-third of the number of magistrates every year and providing intensive training or specific training in certain areas.

As stated before since 2002, the continuous training modules are developed in five regions in the country – in the three regional centres: Sovata, Timisoara, Amara and Barlad and NIM headquarters in Bucharest – in order to ensure the unitary training for the magistrates of all courts of appeal.

85 NIM trainers are magistrates, of which 24 are court practice managers (12 judges and 12 prosecutors). Out of the 61 trainers, 54 are active magistrates (48 judges and 6 prosecutors) and 7 magistrates have retired or are on secondment to other institutions.

A. Initial training

 

Discipline

Lectures

Debates

 

ECHR – profile discipline
Objectives:
- to offer a general view on the human rights safeguard; on the European Convention of Human Rights trough the jurisprudence created by the Court; on which the philosophical conceptions are, determining the creation of the Convention; which the means are, assuring the protection; how the balance between the society’s and individual protection; on existence of common standards in the international and national documents concerning the human rights; on the evolution of the Court jurisprudence, reported to the evolution of social and legal standards of the signatory states.
The modifications in the Court jurisprudence will be in view also in the national legislation, in order to realise a comparative presentation of the ECHR disposition.
By the end of the year, the auditors must identify judicial issues, arisen by the ECHR application, must be able to pronounce o legal and justified decision to the species, to acquire the skills to draft the procedure acts using the methods of the Court, to identify and solve issues concerning the violation of human rights in Courts and Prosecutor’s Offices by the Courts, applying directly the ECHR jurisprudence.
The knowledge acquired will be assessed through 2 practical tests (in January and June).
The assessment during the thematic debates will be realised on a dossier containing written paperwork, meaning the draft by auditors of at least 4 written paperwork, as well as 2 tests: to resolve some species.
At the end of the universitary year, slips of paper for notice are registered in the secretary, with the written paperwork.

 

2 hours/2 weeks
No. hours: 32

 

COMMNITY LAW – profile discipline
Within the frame of lectures and debates, the seminar aims to deepen the knowledge concerning conceptual issues of the European accession, of the EU institutions, the judicial order of EU, community justice, as well as elements of material law.
The assessment during the thematic debates will be realised on a dossier containing written paperwork, meaning the draft by auditors of at least 2 written paper works and 4 presentations.
At the end of the universitary year, slips of paper for notice are registered in the secretary, with the written paperwork.

2 hours/2 weeks
No. hours: 32

2 hours/2 weeks
No. hours: 32

B. In-service training – NIM and TAIEX / 2005:

 

Theme

Date
2005

Places

Partici-
pants

1.

Community Law – ECHR Jurisprudence in the field of free circulation of merchandises, persons, services, capital, as well as in the competition field

20-21.01.

Sovata

23 judges

2.

Community Law – ECHR Jurisprudence in the field of free circulation of merchandises, persons, services, capital, as well as in the competition field

3-4.02

Barlad

23 judges

3.

Community Law – ECHR Jurisprudence in the field of social politics, intellectual and industrial property, exterior competences of the EC, as well as in the field of environmental protection

24-25.02

Bucharest

24 judges

4.

Community Law – ECHR Jurisprudence in the field of social politics, intellectual and industrial property, exterior competences of the EC, as well as in the field of environmental protection

10-11.03

Timisoara

19 judges

5.

Community Law – ECHR Jurisprudence in the field of social politics, intellectual and industrial property, exterior competences of the EC, as well as in the field of environmental protection

31.03.1.04

Sovata

22 judges

6.

Community Law – ECHR Jurisprudence in the field of social politics, intellectual and industrial property, exterior competences of the EC, as well as in the field of environmental protection

21-22.04

Barlad

16 judges

7.

Community Law – Judicial Cooperation in civil and criminal matter

5-6.05

Bucharest

21 judges

8.

Community Law – Judicial Cooperation in civil and criminal matter

19-20.05

Timisoara

24 judges

9.

Community Law – Judicial Cooperation in civil and criminal matter

9-10.06

Sovata

18 judges

10.

Community Law – Judicial Cooperation in civil and criminal matter

23-24.06

Barlad

20 judges

 

Conference – closure of the program

26-28.09

Bucharest

90 judges

NIM and TAIEX organised, during May 2004 - June 2005, seminars in the field of COMUNITAR law, following the thematic structure:
1. General principles of the community law;
2. Procedures in front of the ECHR;
3. ECHR Jurisprudence in the field of free circulation of merchandises, persons, services, capital, as well as in the competition field;
4. ECHR Jurisprudence in the field of social politics, intellectual and industrial property, exterior competences of the EC, as well as in the field of environmental protection;
5. Judicial Cooperation in civil and criminal matter.
For a uniform preparation at national level in the fields above mentioned, each of the five themes enlisted was developed in series of 4 seminars sustained in the Regional Centres of Timisoara, Sovata, Barlad and at the site of the NIM. Thus, NIM organised series of 4 seminars on each of the theme enounced, in each of these locations.

A.2. NIM, in the frame of the initial and in-service training, aims that judges be informed on the jurisprudence of ECHR, so it tried and successfully accomplished to initiate an activity in order to apply the ECHR, as well as possible.

Thus, a NIM collective elaborated the paper work “The ECHR Jurisprudence”, 2nd edition, which, through the efforts of the Institute – and that means its publishing –, began in 2005, with the free of charge spreading to all judges in Romania. It was spread 2433 copies in 2005. In the same time, at the level of the High Court of Cassation and Justice (HCCJ), it is annually elaborated the “Bulletin of the Jurisprudence – collection of decisions in civil matter, family law, employment code, intellectual property law, international private law, control of the assets, business, competition, administrative, banking, financial and fiscal law, right of the public office, of the social security, urbanism law, customs law, civil processual law, criminal law, criminal processual law. The Bulletin of the jurisprudence of the HCCJ on 2004 was print by the Publishing House “All Beck”. The revue was offered free of charges to all judges of the instance (108 copies). The same instance published also the Bulletin of Cassation, since 2005. The decisions of the ECHR concerning Romania are published on the HCCJ site: www.scj.ro.

In Romania, the system of informing the judges knows several modalities. There are also possibilities free of charge, as mentioned.

Each court of appeal (15), the courts (41) have documentation centres, acquiring, in subscription system, the official Monitors publishing the normative acts, adopted by the Parliament of Romania (on paper support, sometimes in electronic version), domestic and international profile publications, profile revues, at the reach of all judges for study.

In the courts of appeal also, teams of judges elaborate jurisprudence collections, printed and acquired by judges. In addition, in the individual training process, each judge acquires information from a as ample documentation as possible.

At the instances level, where the IT system is functioning, there are Internet sites, where all decision pronounced, in their integrity, are introduced. It is an easy way to be informed not only for parts, but also for the judges.

A.3. The NIM has the responsibility of training the judges admitted following the extraordinary judge recruiting contest, among candidates who have at least 5 years seniority and it is also responsible for training of magistrates on foreign legal terminology (English and French, especially). Furthermore the attendance of specific courses is required in Romania to access specialized courts.

The courts do not have special translation facilities, but there is a list with foreign languages interpreters, authorised by the Minister of Justice, contacted in order to provide both translation in pending cases, and for translation of documents and procedures implying a foreign country.

 

Discipline

Hours

 

English:
Objective of the course:
Having mainly an applicative feature, the course aims the increase of the linguistic performance both at grammatical and lexical level, centred on the judicial terminology.

2 hours / week
No. hours: 64

 

French:
Objective of the course:

    - Learning terms of judicial French
    - Acquiring the grammatical structures
    - Encouraging the oral and written expression in French, one of the languages of the European Community.

Objective of the course:
- Learning terms of judicial French in civil, criminal, administrative field, approached in a comparative context with Romanian terms and judicial institutions, and, eventually, terms of the community law.
- Acquiring elementary notions of French history and civilisation.
- Deepening the indispensable knowledge of French grammar.
- Acquiring the capacity of oral and written expression in French.

The assessment during the thematic debates will be realised on a dossier containing written paper works, meaning the drafting by the auditors of at least 2 written paper works.

At the end of the universitary year, slips of paper for notice are registered in the secretary, with the written paper works.

2 hours / week
No. hours: 64

A number of 90 justice auditors study English.
A number of 29 justice auditors study French.

B.1. The main form of communication in the cooperation and the dialog between national courts and the European courts is the seminar, which is not only an occasion for punctual presentations in the implied matter, but also interactive debates, necessary to an efficient information flow. In this regard we exemplify through the seminars organised by the Minister of Justice:

- The regional conference on premises of temporary residence and assistance accorded to victims in human smuggling, Tirana, Albania (20.01.2005)
- Seminar organised by the Academy for European Law of Trier, on „Judicial cooperation in civil matter”, Trier, Germany (01-03.02.2005)
- Seminar organised by the Academy for European Law of Trier, on „Judicial cooperation in civil matter”, Trier, Germany (14 – 17 .06.2005). Participants: 2 judges.
- Conference of the Association of Judges from member and candidates EU States in commercial competition matter, London, United Kingdom; (1-2.07.2005). Participants: 1 judge.
- Seminar „Community Acquis in the field of the minors entrust” Bruxelles, Belgium (21-22.07.2005). Participants: 5 judges.
- Regional program on „Consolidating the rule in law in Romania and in the South-Eastern Europe”, Germany (10-17 September). Participants: 7 judges.
- Regional seminar on „Effects an interpretation of the ECHR jurisprudence” Split, Croatia (14-16 September). Participants: 1 judge.
- Seminar „Judicial remedies in the public acquisition system – implementation models of the European Commission directives”, Warsaw, Poland (20-21 October). Participants: 1 judge.
- Seminar „The Faith against discrimination”, Trier, Germany (24-25.10.2005). Participants: 2 judges.
- Seminar „The Role of instances in community legislation implementation in the equity of gender matter”, Bruxelles, Belgium (27.10.2005). Participants: 14 judges.

The 15th-16th of April 2005, the European Commission organised in Bucharest, the seminar “The general principles of the UE legislation and the role of the national judge, dedicated to judges of HCCJ only.

The 25th of October 2005 – HCCJ organised the meeting between Mr. C. Bîrsan, judge at the ECHR, and HCCJ judges, with the theme “The ECHR structure and the influence of its jurisprudence in the HCCJ practice”.

B.2. In Romania are organised seminars dedicated to judges, some of their lecturers being European judges. We exemplify for the year 2005 with the following meetings, each of it possessing assessments, revealing these seminars are perceived as instructive both from a theoretical and a practical point of view:

- Summer School, 2nd edition, organised by NIM, UNICEF and IRZ, 2005, on the theme “Juvenile Justice”.

- Seminar on „From extradition to the European extradition warrant”, organised by the Ministry of Justice and Foundation Hans Seidel, Sinaia (31.03-1.04.2005). Participants: 15 judges.

- Seminar on „Institutionalised forms of cooperation at the EU level - The European Judicial Net, Eurojust”, organised by the Ministry of Justice and European Institute for Public Administration (EIPA) - Luxemburg, Bucharest (14-15.04.2005). Participants: 12 judges.

- Seminar on „ European extradition warrant”, organised by the Ministry of Justice and the European Institute for Public Administration (EIPA) - Luxemburg, Bucharest (2-3.06.2005). Participants: 14 judges.

- Seminar on „News Tools of international cooperation in criminal matter, adopted at EU level”, organised by the Ministry of Justice and the European Institute for Public Administration (EIPA) - Luxemburg, Bucharest (14-15.04.2005). Participants: 13 judges.

- Meeting from 4.10.2005 (organised by the Ministry of Justice in Bucharest, 14-15.04.2005), on „The public debate of the bills, in order to modify and complete the Law no. 302/2004 on international judicial cooperation in criminal matter”. Participants: 8 judges.

The Romanian Judicial Net in civil and commercial matter: seminars organised by the Ministry of Justice in cooperation with the European Institute for Public Administration (EIPA) – Luxemburg:

- Seminar on: „How to facilitate the individual access to justice”, Bucharest (7-8.03.2005). Participants: 16 judges.
- Seminar on: „Rules Brielle’s I, Brielle’s II, the Convention in Rome and their judicial regime” Bucharest, (12-13.05.2005). Participants: 23 judges.
- Seminar on: „Judicial Cooperation in civil and commercial matter – The Role of the national judge”, Bucharest, (20-21.10.2005). Participants: 19 judges.

- National seminar for judge’s and prosecutor’s training concerning application of universal tools against terrorism and trans-national organised crime, Bucharest (19-21.10.2005);

- The 9th Romania-Hungary bilateral seminar on „Probation: present and perspective”, Timisoara (23-25.11.2005).

C.1. The Romania’s Constitution, adopted in 2003, article 20 about International treaties on human rights says:

(1) Constitutional provisions concerning the citizens' rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, with the covenants and other treaties Romania is a party to.
(2) Where any inconsistencies exist between the covenants and treaties on the fundamental human rights Romania is a party to, and the national laws, the international regulations shall take precedence, unless the Constitution or national laws comprise more favourable provisions.
Article 148 - Integration into the European Union:
(1) Romania's accession to the constituent treaties of the European Union, with a view to transferring certain powers to community institutions, as well as to exercising in common with the other member states the abilities stipulated in such treaties, shall be carried out by means of a law adopted in the joint sitting of the Chamber of Deputies and the Senate, with a majority of two thirds of the number of deputies and senators.
(2) As a result of the accession, the provisions of the constituent treaties of the European Union, as well as the other mandatory community regulations shall take precedence over the opposite provisions of the national laws, in compliance with the provisions of the accession act.
(3) The provisions of paragraphs (1) and (2) shall also apply accordingly for the accession to the acts revising the constituent treaties of the European Union.
(4) The Parliament, the President of Romania, the Government, and the judicial authority shall guarantee that the obligations resulting from the accession act and the provisions of paragraph (2) are implemented.
(5) The Government shall send to the two Chambers of the Parliament the draft mandatory acts before they are submitted to the European Union institutions for approval.

C.2. Not directly, but only implicitly, trough the domestic legislation at which the reference is expressly made, legislation according to the Recommendations and Resolutions of the European Counsel, in the matter implied through the decision.
No.

C.3. Romanian judges have the possibility to apply directly the ECHR and its jurisprudence, until the modification of the legislative text contravening to the Convention.
No.

C.4. Article 4081 of the Criminal Procedure Code, introduced by article I, point 3 of the Law 576/2004:

The definitive decisions in cases in which the ECHR noted a violation of a right, stipulated by the European Convention on Human Rights and fundamental freedoms, may be subject of revision.
It can be asked by:

a) the person which right has been violated;
b) the husband and close relatives of the convict, even after his death;
c) the prosecutor, ex officio.

The instance, competent to judge the revision request, is the instance which trialled the case in first instance.

The revision request may be presented in one year delay, after the date of publication of the ECHR decision in the Official Monitor of Romania, Part I.

After complaint, the instance may dispose, ex officio, at the prosecutor’s proposal or at the part’s request, the stay of execution of the attacked decision and may return to the suspension granted.

The parts are summoned for the judgement of the revision request
The parts, present at the judgement of the revision request, have the right to take the floor, even if they weren’t summoned.
The dispositions of article 402 are correspondently applied.
The prosecutor’s participation is compulsive.
The instance revisions solutions are those stipulated by article 1, 3 and 4, correspondently applied.

The instance may not force the state to pay the damage, accorded by the ECHR and obtained by the victim of the violation of a right stipulated by the European Convention on Human Rights and fundamental freedoms. The state has an “action of return” (term to design an action against those who will be found guilty and which should cover personally the prejudice) against who provoked, in bad faith or sever neglect, the situation generating damages.

The decisions of the revision instance are subject to the same ways of attack as the decisions to which the revision refers.

Article 322, point 9 of the Civil Procedure Code:
If the ECHR find a violation of the human rights and fundamental freedoms, caused by a judicial decision and its severe consequences, continue to be produced and may be remedied only by the revision of the sentenced decision.

Article 324, point 5, para. 3 of the Civil Procedure Code:
For the reason stipulated at article 322, point 9, the delay is 3 months after the date of publication of the ECHR decision in the Official Monitor of Romania, Part I.
No.

D.1. There are recommendations and conventions on terrorism, as follows:
On the 8th of April 2005, Romania signed the Council of Europe Convention of the compensation of victims of violent crimes (ETS 116).

Romania ratified the international conventions and agreements on the prevention and fights against terrorism. It has ratified all 12 UN Conventions related to this matter, as well as the European Convention on the suppression of terrorism and its Amending Protocol.
The premises of Regional Centre for Countering Cross-Border are located in Romania. This Centre – SECI –, set up within the South East European Initiative, provides training on law enforcement and exchange of intelligence in order to counter cross-border crime, including terrorism, in 12 countries in Central and Eastern Europe.

Romania is also part to the Black Sea Economic Cooperation Agreement on the fight against organized crime.

Romania has concluded bilateral agreements on combating organized crime and terrorism with most European states, as well as with countries in other geographical areas.

Relevant multilateral Conventions ratified by Romania in the field of preventing and combating terrorism and related to terrorism

Treaties ratified or having been the subject of an accession under the aegis of the Council of Europe as of 12/4/2005

Title

Opening of the treaty

Entry into force

European Convention on the Suppression of Terrorism

27/1/1977

4/8/1978

Protocol amending the European Convention on the Suppression of Terrorism

15/5/2003

 

D.2. Yes, in Law no. 535/25.11.2004 on Prevention and Combating terrorism:
Article 40 of Law no. 535/2004 stipulates that the competence of trial in first instance of the crimes of terrorism belongs to the court of appeal, and the procedure of criminal investigation and of trial is the one stipulated by law for crimes in the act.

In the dispositions stipulated at articles 465-479 of the Criminal Procedure Code, containing provisions on the investigation procedure and trial of crimes in the act, are established the special conditions concerning the trial of crimes in the act, as follows: measures preparing the trial, the trial in first instance, measures concerning the state of freedom, the decision of the instance, the civil complaint, the appeal and the review, the case of “competitive crimes” (crimes without a connection between them and for which no definitive sentence has been yet pronounced), indivisible and connected crimes.

The dispositions mentioned suppose celerity, the delays being shortened.

Thus, the instance proceeds to the trial of the case by hearing the defendant, the present witnesses, as well as the claimant, if present; the trial is done on the basis of all these statements and of the pieces of evidence in the dossier. The instance may dispose, ex officio or at request, to be produced new evidence: For this purpose, correspondent measures will be taken, accomplished directly or through the police body. In order to produce new evidence, the instance may accord delays, which all together may not go beyond 10 days. By the standard procedure, this kind of limit-delay for producing new evidence is not stipulated.

The procedures concerning the instance decision are also different. The instance must pronounce itself over the case in the same day in which the debates are closed, or latest in the next 2 days. The defender, remained in custody, is brought for the pronouncement; the decision must be draft in maximum 24 hours, or, in standard procedure, the drafting of the decision must be done in maximum 20 days after the pronouncement.

There is a 3 day delay after pronouncement, for both the appeal and the review, comparing the standard procedure allowing 10 days after the pronouncement, but also after the release toward the absent parts. The dossier of the case is forwarded to the appeal instance or, according to the case, to the review instance, in the next 24 hours after the appeal or review had been lodged, and the trail in appeal and in review is made in urgency.

It is important to mention: in the contents of Law no. 535/2004 the crimes representing terrorism acts are clearly named, and the sentences are distinguished for each of them.

In the trial procedure for crimes in the act, in article 466 - Criminal Procedure Code, crimes in the act, sentenced by law with prison of more than 1 year and of maximum 12 years, as well as the aggravating forms of these crimes, are mentioned as being part of this special disposition.

Differently from the sentences mentioned in trial procedure for crimes in the act, in the case of especially serious crimes concerning terrorism acts, the sentences go beyond the maximum limit of 12 years, arriving until 25 years.

D.3. The dispositions of Law 535/2004, mentioning measures about the progress of some activities in order obtain information, contain references at the interception and recording of communications, seeking for information or documents, for which obtaining it is necessary to access a place, an object, or to open, lift or replace an object or document, to examine and gather information they may contain, as well as to record, copy or obtain copies, by all means. To install, to maintain, to lift objects from places where they had been left, represent the purpose of the request of authorisation on the basis of a proposal.

The proposal must be written down and has a content precisely established by the legal code. It is presented to the general prosecutor of the General Prosecutor’s Office by the HCCJ and it is examined for the point of view of its solidity and legality, by prosecutors especially appointed.

If the proposal is appreciated as unjustified, the prosecutor rejects it through a resolution explained by legal reasons.

If, in a 24 hour delay after the date when the request has been registered, the proposal is found justified and all conditions gathered respond to law, the general prosecutor of the General Prosecutor’s Office by the HCCJ or his deputy demands, in writing, to the Chief Justice of the HCCJ, to authorise the activities proposed.

The request is examined by judges, especially appointed by the Chief Justice of the HCCJ, which admit or reject by legal reason, through the ruling. If the proposal admitted, the judges issue a warrant authorising the activities proposed, which may not last more than 6 months, and, in justified cases, they may not be extended more than 3 mounts.



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