Twinning projects

2. The leadership of the Ministry of Justice changed during the reporting period. On the 3^rd of April 2007 Parliament approved a new Government, with Mr. Tudor Chiuariu taking over from Mrs. Monica Macovei as Justice Minister. The new Minister of Justice, member ex officio of the SCM, has, on the occasion of his first participation in a session of the Plenum of the SCM, declared that he intended to partake in the activity of the Plenum of the Council and to have a good cooperation with the Council in the joint effort of fostering Justice Reform.
The RTA was offered the opportunity to meet with the new Minister of Justice for a discussion on matters of justice reform. The Minister has encouraged the RTA to support the process of drafting legislative amendments in areas of concern for the SCM.
Regrettably, the initial improvement in communication between the Ministry of Justice on the one hand and the SCM on the other hand after the change at the helm of the Ministry of Justice in spring 2007 has not been enduring. As a matter of fact, the SCM has in many cases been fully ignored by the Ministry of Justice with regard to legislative projects and amendments, although the law provides in Art 38 (3) of the Law on the Superior Council of Magistracy, that “the Plenum of the SCM shall issue the aviz (endorsement) for the draft normative acts concerning the activity of the judicial authority”.
This policy development gives serious grounds for concern. It has been additionally highlighted by the fact, that the SCM has not been involved by the Ministry of Justice in the process of updating the Plan for Justice Reform, published in the Monitor Oficial in the fall of 2007. Evidently, this is entirely incompatible with the role of the SCM as the constitutional institution at the heart of the Justice System and with its potential as a driving force for – feasible - Justice Reform. It is no consolation that the SCM would in future be in the position to reject any responsibility for any weaknesses of a Plan that has been devised without its participation and without the input of professional know how and experience primarily the SCM can offer.
It remains to be seen, whether this policy will change after the impending renewed change at the helm of the Ministry of Justice.
3. It should not go without mentioning either, that there was a tendency in public declarations to attribute the responsibility for success or failure of the Justice Reform to the SCM. Such assertions are unjustified and at the same time potentially dangerous for the SCM. Dangerous because the SCM might be blamed for failure and that this again might be turned into an argument for abolishing the SCM altogether on the grounds that it is ineffective and not up to its obligations. That would be a disastrous development. Notwithstanding all the shortcomings yet to overcome – there can be no doubt that the SCM with its complete transparency is absolutely crucial in assuring the independence and functioning of justice in Romania. When considering shortcomings of the SCM, it should always be kept in mind that this is an institution which in its current form only exists since three years now and which had to exert its many attributions out of a standing position and at the same time build up its technical apparatus from near zero. To demand that it functions like one of the long established judicial administrations in the EU is simply unrealistic.
Looking over the horizon and making abstraction from current problems, the SCM represents a great potential which can and will be developed in a medium- and long-term perspective. It can over the years built up a stable administrative backbone of highly experienced staff in all fields of its activity. This will assure continuity, quality and progress and – last but not least - a solid support for the Members of the SCM in decision making and in tackling basic issues of the Justice System.
4. Whilst it is true, that the SCM has been attributed the largest part of measures for the implementation of the Updated Action Plan for Justice Reform which was drafted by the Ministry of Justice, it is equally true that the SCM does not have all the instruments necessary and suitable for successfully fulfilling these tasks. In particular, the sweeping legislative changes introduced in 2005 to the Justice Reform Laws of 2004 have created problems which the SCM cannot resolve on its own, not even with the – existing – maximum degree of good will. Even though these problems – and proposals for solving them - have been presented to the Ministry of Justice and even though they have been known and discussed extensively, no discernible effort at pursuing pertinent legislative amends has been undertaken by the Ministry of Justice.
In particular, in the crucial area of human resources management, the implementation of the objectives of the reform is severely hampered by incongruous or impractical legislation enacted in 2005. Thus, for instance, it is factually impossible to apply some basic amendments in the Law on the Statute of Judges and Prosecutors (originally enacted in 2004 as the Law on the Statute of Magistrates).
Evaluating the professional activity of magistrates in accordance with up to date standards as a means for fostering professional performance has been one of the major features of the Law of 2004. Yet, the amendments introduced in 2005 make the periodical evaluation partly unfeasible and partly inadequate for, inter alia, the following reasons (the statistical data cited reflect the situation in fall 2007):
a. According to Art. 39 (3) Law 303/2004 evaluations are to be carried out by boards composed of the president of the court, or, the case being, of the head of the prosecutor's office, section or directorate within the Prosecutor’s Office attached to the High Court of Cassation and Justice or within the National Anti-corruption Prosecutor's Office, as well as of 2 judges or prosecutors designated by the Board of Direction. The provision poses a number of severe and insurmountable problems:

• 
  The provision would mean, that altogether (233 courts x 3 evaluators =) 699 judges out of a total number of 3.814 judges would have to be trained to evaluate the other 3.115 – on average ca. 4,5 per evaluator.
  

• 
  The problem is even more trenchant in the case of prosecutor’s offices, for which, in principal, the same rules apply. 699 prosecutors out of a total number of 1.718 (excluding DNA, DIICOT and the General Prosecutor's Office) would have to be trained to evaluate the other ca. 1.000 – on average ca. 1,5 per evaluator.
  

• 
  To have ca. 1.400 evaluators means that it will be close to impossible to train them adequately and to assure the application of equal standards in the evaluations.
  

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  The law does neither expressly nor indirectly provide who is supposed to evaluate the 1.400 evaluators.
  

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  As the law stands, the appointed members of the evaluation-panels – judges/prosecutors in executive positions – would evaluate the magistrates in leading positions at their court/prosecutor’s office, except for the head of the court/prosecutors office who according to the law is born member of the evaluation committee. There are 1713 executive positions at prosecutor’s offices as opposed to 478 leading positions. As a rule, it may be presumed, that a judge or prosecutor without own prior experience in a leading position will be hardly able to evaluate professional performance in a leading position.
  

• 
  The stipulations of Art. 39 al. 3 and 4 are rather ambiguous as to the composition of the evaluation-panels at the HCCJ and at the Ministerul Public. They expressly state, though, that the Prosecutor General of Romania would be included in the panel charged with evaluating the prosecutors at the DIICOT and DNA. Accordingly, the Prosecutor General would have to evaluate altogether far over 300 prosecutors. Hence, he/she would be completely blocked by evaluation activities for more than 7 working-weeks even if he/she spent on average no more than one hour on each evaluation. If he/she were to participate also in the evaluation of the prosecutors at the Prosecutors Office attached to the HCCJ he/she would have to evaluate altogether almost 500 prosecutors !
  

• 
  Art. 39 (3) could not be applied at all at the many courts and prosecutors offices with less than the three magistrates needed for setting up an evaluation-panel as provided in the law. There are 22 courts and 78 prosecutor’s offices which have only three or even less judges.
  

• 
  The aforementioned problem concerning courts and prosecutors offices with less than 3 judges or prosecutors runs even deeper, since there can be no Leading Board at these courts in the first place. According to the law, the Leading Board consists of at least 3 members, two of whom are elected by the General Assembly of that court/prosecutor’s office.
  

• 
  At courts and prosecutors offices with only few more than 3 magistrates it is, in theory, feasible, but evidently inefficient and inappropriate to have a panel of three carrying out the evaluation of the remaining others. Thus, for instance, in the many cases of courts with only 4 judges, the other three would evaluate their one “left” colleague.
  

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  Of the 233 courts 28 have only between 1 and 3 judges, 57 have only between 4 and 6 judges and 47 have between 7 and 12 judges. Of the 233 prosecutors offices 78 have only between 1 and 3 prosecutors, 48 have only between 4 and 6 prosecutors and 77 have between 7 and 12 judges.
  

Evidently, at these courts and prosecutors offices the composition of the evaluation-panels might also pose a severe perception-problem with regard to the impartiality of the evaluation Presumably, collegial relations and cooperation at these courts and prosecutors are close. This can result in embarrassment for evaluators and evaluated alike.

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  There is also an evident danger, in particular at smaller courts and prosecutors offices, that the working relations can be durably poisoned as a result of quarrels resulting from the evaluation by colleagues.
  

b. According to Art. 40 – (2) Law 303/2004 judges or prosecutors who do not agree with the qualification granted by the evaluation panel may address a complaint to the relevant section of the Superior Council of Magistracy within 30 days since the result is communicated.
This provision could have a disastrous effect on the well-functioning of the SCM and its Sections.

• 
  To grant admissibility of complaints on a virtually unlimited basis – “disagreement” on the part of the evaluated - would mean that every judge and prosecutor who did not receive a “very good” might consider testing whether a complaint to the SCM would lead to a better marking. In fact, it would, under such circumstances, appear to be in everybody’s best interest to try – without risk – for a better rating by filing a complaint with the competent Section of the SCM on the grounds that the marking granted by the evaluation panel is below the professional standards of the applicant. Since a “very good” in the last evaluation is a precondition for taking part in exams for promotions to higher executive or leading positions, every magistrate who did not receive “very good” would be ill advised not to explore all possibilities for getting a “very good” in order not to spoil his/her chances for a promotion.
  

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  Consequently, it must be expected that, in the wake of the periodical evaluation, the Sections of the SCM would be overwhelmed and paralysed by complaints. If only around 20% of all magistrates evaluated would file a complaint, the SCM would be burdened with about 1200 cases. Art. 40 (3) (3) stipulates, that, when solving a contestation, the sections of the Superior Council of the Magistracy may request from the person in charge of the court or prosecutor’s office or from the boards or from the persons in Article 37 paragraph (3) or (4) any information that they see as necessary, and it shall be obligatory to summon the judge or prosecutor for being heard. If, under these conditions, the Sections were to spend, as an average, a minimum of altogether 1 hour on each case, that would mean that the 9 members of the Section of judges and the 5 members of the Section of prosecutors would be completely occupied with solving evaluation related complaints for months on end.
  

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  The Plenum of the SCM might be equally affected, since, according to Art. 40 (4), the decisions rendered by the sections upon evaluation-complaints may be appealed before the Plenum of the Superior Council of Magistracy. To stay within the assumption made above, if only 20 % of the decisions of the Sections were appealed against, the Plenum would have to solve 120 appeals.
  

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  Art. 40 (4) also stipulates that the decisions rendered by the Plenum of the Superior Council of Magistracy, “sitting as a court”, are “final and irrevocable”. This poses an array of fundamental problems for which there is no solution the law:
  

The Minister of Justice, a member of the Government, cannot at the same time be a judge in his capacity as member of the SCM.

The members of the Section against whose administrative decision the appeal would be directed, cannot sit as judges over their own earlier decision.
Contrary to what is stipulated in the Law, the decision of the Plenum as a court of law could not be “final and irrevocable”, because Art. 121 of the Constitution provides that “against decisions of the court, the parties concerned and the Public Ministry may exercise ways of appeal, in accordance with the law”.

Since the 3-year evaluation period stipulated in the law has long elapsed, the initial implementation of the – new form of - periodical evaluations is necessary and urgent. The implementation is also necessary – and urgent - with regard to the fact that the law provides in Art. 44 – (1) and Art. 48 (2) that only judges and prosecutors who have received the grade “very good” in the last evaluation may sit for the examination of promotion to immediately superior courts or prosecutor's offices and to offices of leadership. Yet, for the reasons mentioned above, the matter constitutes an impasse which cannot be solved by the SCM, except for if the SCM would neglect or circumvent clear provisions of the law – which, evidently, is no acceptable option.

Most everybody will agree that laws need stability in order to provide a consistent and reliable framework for action and interaction in society. But, that principle is turned on its head, when laws which are evidently unfeasible are not amended. Such laws destroy the respect for the legal system and they are considered an excuse for circumventing it. It is, therefore, very regrettable, to acknowledge that the policy of the Ministry of Justice with regard to the problems mentioned has been one of stagnation instead of one of flexibility in reacting to need for change.

c. Also, the stipulations of articles Art. 48, 49 Law 303/2004 on appointment to positions of leadership at courts and prosecutors offices have a potential for bringing chaos upon the justice system. According to these provisions, presidents and vice-presidents at the Judecatorii, Tribunals and Courts of Appeal - altogether ca. 500 – and the holders of equivalent positions at the Parquets – another ca. 500 - are appointed for only 3 years. After the 3 year tenure has elapsed, a new appointment procedure with exams pp. takes place for each of the altogether 1.000 positions. Apart from the immense burden for the SCM, this means that the Human resources Department of the SCM must take into account that within each period of 3 years 1.000 leading magistrates might be exchanged by 1.000 new leading magistrates, exception made for those who would want and get a second - and last - mandate at the same court/parquet in accordance with Art. 48 (8), 49 (8).
This basic movement of 2.000 positions – 1.000 leaving, 1.000 coming – would only be the beginning of the circle, since the 1.000 who leave their current position for a (new) leading position will have to be followed by another 1.000 magistrates who replace them in the position they held before, and so on ….
Accordingly, within every 3 year cycle 3.000 of the altogether ca. 6.250 magistrates in Romania could change positions due to Art. 48, 49. At least another 1.000 might change positions in connection with retirements, promotions to higher executive office, detachments etc.
Thus, in a worst case scenario, altogether about 2/3 of the magistracy could move around within the system in the space of every 3 year cycle.
Even if one assumed that half of the 1.000 magistrates in leading positions would be reinstated once, the total number of personnel movements would still have to be estimated at around 2.500.
Evidently, in terms of personnel management, this is completely unfeasible and it can only harm the system.
Any kind of foresighted personnel planning for the up to ca. 1.000 leading magistrates who will finish their tenure is impossible. If they want to seek a second term in office, they have to take the promotion exam again. Somebody with a better result in the theoretical exam, but without any proven administrative experience might, in the end, be appointed at their place. Thus, even if it were known early who wants to try for a second tenure, it would be completely unpredictable until the day of the exam who of them would, in the end, return.
The problem does not even stop there:
According to Art. 51 (1) those who do not successfully apply for an office of leadership with the same court or the same prosecutor's office
- “may hold an office” with another court

or prosecutor's office

- or may return to the courts or prosecutor's offices where they come from

- or go to a court or prosecutor's office where they are entitled to work, according to the law.

Thus, including the right to apply for an office of leadership with the same court/parquet, there are altogether at least 4.000 positions between which the 1.000 holders of a leading position might make their choice.

All these problems – and many more – have been repeatedly brought to the attention of the Ministry of Justice – yet, so far, to no avail.

The effect of these problems must no be underestimated. They are not isolated, but go far beyond the particular area concerned, ineffectively binding administrative staff and members of the SCM by preoccupying them with unsolvable complexities whilst, for lack of time, other attributions of the SCM cannot be addressed at all or not in depth as they should. That way, much precious energy is simply lost.
Repercussion of the kind have also severely affected the Twinning Project by taking up much more time and energy than could be foreseen when planning activities and allocating time to the different activities and by demanding much additional and repetitive efforts, especially on the part of the RTA.
5. Key legislative developments in the relevant policy area in the BC were the following law amendments concerning the disciplinary and civil liability of magistrates:

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  Letter h) of Art. 99 of Law No. 303/2004 has been amended to the effect that “exerting the office in bad faith or with gross negligence, including the failure to observe the procedural rules, if the deed is not a penal offence" is considered a disciplinary offence.
  

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  The Code of Penal Procedure has been amended to the effect that judges and prosecutors will have to reimburse the Romanian State for any damages incurred by the State as a result of having been successfully sued for a decision that lead to a person being unjustly condemned or unlawfully deprived of or restricted in his/her freedom, including when the Romanian State has been condemned for an infringement on human rights.
  

There had been demands in 2006 from the Minister of Justice of that time, that the Judicial Inspection attached to the Plenum of the Superior Council of the Magistracy must extend its controls beyond assessing the observance of professional duties by judges to controlling their decisions as to whether the material and procedural laws have been correctly applied. The demand which was evidently incompatible with the principle and rationale of judicial independence has not been adopted by the Inspection. The Inspection exerts its duties in compliance with the Romanian laws and Constitution and matching standards prevailing in other EU Member States.

Furthermore, in 2006 the Minister of Justice of that time has repeatedly cautioned that she might propose legislation with the aim of depriving the SCM of some of its attributions, should the SCM not improve its activity. This cautioning was neither specified in detail with regard to concrete shortcomings and responsibilities, nor with regard to any specific attributions at stake. No legislative measures of the sort were taken.
In 2007, the Legea privind Agentia Nationala de Integritate - ANI (Law on the National Agency for Integrity) was enacted by Parliament and later amended.

6. In mid-2007, the Ministry of Justice presented a draft „Ordonanţă de urgenţă pentru modificarea şi completarea unor acte normative în domeniul justiţiei” (“Emergency ordinance for changing and completing laws in the field of justice”) to the SCM for discussion and comment. The draft was intended to address a number of issues, inter alia: introduction of “un fond de posturi de rezervă” as a means for occupying positions at courts and prosecutors offices which are temporarily vacant as a consequence of detachments of magistrates to other positions within or outside the judicial system; filling positions in the magistracy in accordance with the existing „Schema” by recruiting law faculty graduates as magistrates without the need of undergoing any preparatory training; harmonizing the pension-age for male and female magistrates in accordance with Directive nr. 86/378/EEC; implementing Decision no. 866/2006 of the Constitutional Court regarding art. 52 (1) of Law 303/2004.
During the course of discussions, the contents of draft Ordonanţă de urgenţă (Emergency ordinance) has been partly changed. Until now, it has not been enacted.
The RTA had been invited by the President of the SCM to participate in the discussions of the Plenum of the SCM on the Draft Ordonanţă de urgenţă (Emergency ordinance). In agreement with the Minister of Justice, he has also presented written observations on certain aspects of the Draft, joined with draft (alternative) proposals (see Annexes 1A, 1B, 2A and 2B to the 5^th QR). These were presented to the Minister of Justice and the Legislative Working Group of the SCM.
A Draft Project of the Commission charged in 2005 with elaborating a new Code of Civil Procedure by the Ministry of Justice has not yet been presented to the public. The draft is supposed to contain also new provisions aiming at fostering consistent and unitary jurisprudence.
A new Draft Code of Penal Procedure has been presented to the Parliament.
Otherwise, there were no major legislative developments in the relevant policy area in the BC during the implementation period of the Project.
7. Considerable efforts aimed at solving the rather complicated and in many ways interrelated problems resulting from the current legislation are undertaken within the Working Groups established by the SCM, in particular, by the Legislative Working Group headed by the permanent member and former President of the SCM, judge dr. Dan Lupascu. The RTA has been closely involved in these efforts to the extent the extremely dense programme of other project–activities in the form of seminars and workshops allowed for it. The numerous papers of the RTA, mentioned in earlier Quarterly Reports, as, for instance, the analysis and proposals regarding the complex of human-resources management addressed in the draft „Ordonanţă de urgenţă pentru modificarea şi completarea unor acte normative în domeniul justiţiei”, the complex problems in the field of the – soon to be carried out - periodical professional evaluation of magistrates stipulated in the law on the Statute of Magistrates (303/2004), the proposals/suggestions with regard to the reform of civil and penal court procedure, in particular, with regard to fostering unitary and consistent jurisprudence, have stimulated the debate in the areas concerned, be it on the level of the SCM or on the level of the MoJ, and much of it has found its way into concepts for reform and into regulatory provisions.