The High Court of Cassation and Justice (ICCJ) announced on Friday having challenged in the Constitutional Court several provisions of the piece of legislation amending Law No. 303/2004 on the judges and prosecutors’ statutes, ICCJ said in a release.
“The joint sections of the High Court of Cassation and Justice, legally constituted under Decision No. 1 of March 29, 2018, referred to the Constitutional Court the challenge to several aspects of the Law amending and supplementing Law No. 303/2004 on the statutes of the judges and prosecutors,” the release said.
In the referral to the Constitutional Court, ICCJ argues that the provisions of Art. I (57), Art. 42 paragraph (2) of the challenged law run counter to the provisions of Art. 1 paragraph (5), Art. 41 paragraph (1), and Art. 125 of the Constitution of Romania, as the notion “unfit”, which is not defined in the context of a specific assessment of a judge or prosecutor’s activity, could affect not only the right to serve as a judge or prosecutor, but also the exercise of the right to work according to the magistrate’s professional training.
The ICCJ also points out in the referral that “through their unclear and confusing content” the provisions of Art. I (152), referencing Art. 96 paragraph (3) and paragraph (8) sentence I, run counter to Art. 1 paragraph (5) of the Constitution.
In the opinion of the judges, these provisions represent a derogation from the provisions of Art. 52 paragraph (3) of the Constitution, which keep a perfect balance between the need to provide the legal and institutional framework for the functioning of an independent justice – as a fundamental prerequisite for democratic rule of law – and the rights of the person who has been affected by a judicial error, “placing on the magistrates a material liability that goes beyond the boundaries set by this article.”
The ICCJ further argues that the text regarding the judicial error is unclear and leads to confusion in the interpretation and enforcement of the law.
The law text that drew the judges criticism is as follows: “A judicial error is committed when, during judicial proceedings, substantive or procedural rules have been violated, resulting in the violation of the person’s absolute fundamental rights; by the manifest and indubitable infringement of the substantive or procedural rules, a litigious situation has been settled contrary to factual or judicial reality, or an irregularity has been caused in the course of the judicial proceedings, and this was not remedied by the judicial remedies or in the procedures provided by the law, thus causing serious harm to the fundamental rights and freedoms of the person.”
The supreme court considers that the terms “violation of the absolute fundamental rights” and “fundamental rights and freedoms of the person” which have been referenced from the perspective of the legal technique used in the notion of judicial error “are such that, on the one hand, they cause confusion about the scope of their examination in a concrete situation and, on the other hand, are not foreseeable.”
Also, the wording “a litigious situation has been settled contrary to factual or judicial reality” is equivalent to questioning again factual or legal issues that have been finally settled in the damage remedy procedure.
The magistrates also maintain that the amendments did not observe the content of Constitutional Court Ruling No. 45 of January 30, 2018 which explicitly and clearly specified the criteria for defining judicial error.
In addition, the supreme court points out that international regulations outline the judicial error as a distinct legal concept, which should not be confused with the error of judgment, for which other remedies are set in forth under both domestic and international legal provisions.
ICCJ considers that the law introduces an extrinsic and double-standard criterion of assessment by a body outside the judiciary, such as the Ministry of Finance, as such assessment affects the independence of the judiciary by adding to the assessment performed by the Judicial Inspection, the only independent body competent for independently assessing the magistrates’ liability, and which has an advisory character.
On March 26 the Senate adopted, as decision-making chamber, the amendments to the Law No. 303/2004 on the magistrates’ statutes, following the rulings of the Constitutional Court.