JUSTICE

CCR: Provisions of amendments to Law No.317/2004 on CSM organization, partially unconstitutional

The Constitutional Court of Romania decided on Tuesday that some provisions of the amendments brought to the Law No.317/2004 regarding the organization and functioning of the Superior Council of Magistracy (CSM) are unconstitutional.

“We have ruled on the third justice law – the Law No.317/2004 regarding the organization of the CSM. The solution is to unanimously pass some texts which are aimed at various points of the organization law. There are about five which refer to several texts. I will give you some examples: it’s about a text that keeps repeating itself. However, according to the Law on Legislative Technique, it’s not common and it is actually forbidden that several texts be listed in parallel in order to create confusions in the enforcement process,” President of the CCR Valer Dorneanu stated.

He stated that another text which was found to be unconstitutional refers to the election of the President and Vice President of the CSM.

“Basically, the current text overlooked, omitted the constitutional text saying they were elected to their office by the CSM plenum. However, the text that we criticized stipulated that the President of the Judges Section is basically appointed [as President of the CSM], as well as the Vice President, from among prosecutors. I repeat, the text contradicted the constitutional provisions. Another text that was declared unconstitutional, I repeat, also unanimously, it’s about that regulation stipulating that CSM members’ statements, whether they were involved or have been involved or are involved in political police matters, are censured and controlled by the Parliamentary Committee overseeing the Romanian Intelligence Service (SRI),” the CCR President mentioned.

Another provision rejected by CCR was related to the fact that the statements of the CSM members regarding the political police are controlled by the Parliamentary Committee for the Control of SRI.

CCR President said that some of the constitutional challenges have been rejected as inadmissible because they weren’t motivated. “The challenge regarding the way of establishing the committee (the Special Committee for the Laws on Justice – e.n.), the one related to bicameralism, and other texts related to extrinsic reasons have been rejected by the majority vote” Valer Dorneanu added.

On December 29, 2017, the High Court of Cassation and Justice (ICCJ) notified the Constitutional Court, appreciating that eight articles of the Constitution are breached by the amendments adopted by the Parliament to the law on the organization and functioning of the courts and prosecution offices and to the law on the organization and functioning of CSM.

A serious breach of the Constitution is deemed to be the election of the CSM President only by the vote of the judges elected by the Council, as well as the election of the Vice President only by the prosecutors who are members.

Also, ICCJ appreciates that the check made by the parliamentary committees for the control of the intelligence services on the statements of the magistrates elected in CSM, according to which they are not undercover officers or collaborators, breaches the separation of powers.

The Law on the functioning of CSM was the last one in the package of the three Laws on Justice amended by the accelerated emergency procedure in the Parliament, in December 2017.

One of the amendments is related to implementing new requirements for a magistrate in order to become a CSM member: at least 7 years of seniority, and the lack of any disciplinary sanctions in the last three years. “The members of the Superior Council of Magistracy are elected among the judges and prosecutors appointed by the Romanian President, with at least 7 years of seniority as a judge or prosecutor, who have never been subject to any disciplinary sanctions in the last 3 years” provides the new paragraph (1) of the article 7 of the Law no.317/2004. The law currently in force provides that the members of the Superior Council of Magistracy are elected among the judges and prosecutors appointed by the Romanian President.

Another change brought to the Law no.317/2004 obliges the CSM members to submit “an affidavit stating that they don’t have any personal interest that influences or could influence the objective and unbiased fulfillment of their duties provided by the law”.

 

Livia Stanciu, minority report on the Law on Judicial Organization: Setting up the Criminal Department for Magistrates is discriminatory and may affect the fight against corruption

 

Judge Livia Stanciu issued a minority report on the decision of the Constitutional Court (CCR) on the Law on Judicial Organization, claiming that setting up the Criminal Department for Magistrates should have been declared as unconstitutional, too, mentioning that it is discriminatory and may affect the fight against corruption. Livia Stanciu points out that a special structure can be justified only to the extent to which the existence of a special problem is found or is obvious, and by the new regulation, the idea that there is a problem of criminality among magistrates, requiring special attention, is actually induced. The judge claims that setting up this structure is only “a judicial experiment” superficially prepared, in the lack of any studies and programs and without a detailed and accurate analysis.

She underlines that this is a structure established in order to investigate exclusively crimes committed by the professional category of the magistrates, in the circumstances in which there is no other professional category in Romania to be subject to a specialized inquiry body.

“Therefore, unlike the other Romanian citizens, judges and prosecutors, including military judges and prosecutors and members of the Superior Council of Magistracy, are subject to a different legal treatment, by regulating the investigation of the crimes committed by them by a special prosecution office. This situation is not justified by the constitutional requirements provided by art.16 para.(1) of the Constitution, according to which « Citizens are equal before the law and public authorities, without privileges and without discrimination»” Stanciu says.

Livia Stanciu says that “a special structure can be justified only to the extent to which the existence of a special problem is found or is obvious”.

“Actually, the idea that there is a problem of criminality among magistrates, requiring special attention, is induced” the judge says.

Stanciu also claims that setting up the Department for the Investigation of the Crime in the Judiciary has nothing to do with modernizing the justice in Romania, whose positive evolution is obvious and appreciated by the successive reports of the Cooperation and Verification Mechanism (CVM), but is only a «judicial experiment» superficially prepared, in the lack of any study and programs and without a detailed and accurate analysis”. She added that this is totally contradicting the commitments undertook by Romania by the accession to the European Union, doing nothing else but maintaining the Cooperation and Verification Mechanism (CVM) on a long term.

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