Twinning projects

8. The activity of the Superior Council of the Magistracy has been a focus of media coverage with the effect that public awareness of the important role of the SCM has further increased. The activity of the SCM – especially, the process of decision-making in the Plenum and in the Sections - is widely transparent for the general public, since sessions of the Plenum and of the Sections are generally public and regularly attended by representatives of the Media who closely follow and critically observe the activities of the SCM.


Project Assumptions
1. Collaboration from the beneficiary. SCM supporting the RTA with the necessary co-ordination and collaboration
Co-ordination and collaboration provided by the SCM have at all times been exemplary and pivotal to successfully implementing the projected activities. It has allowed to carry out an extraordinary dense calendar of activities and to make best use of the timeframe available, including numerous additional activities that were not projected in the initial Working Plan.

2. National budget resources available.
The necessary co-financing has been made available within the framework projected in the Contract.

3. Availability for participation of the SCM members/staff the activities are directed at.

Participation of the relevant administrative personnel was, as a rule, very satisfactory. On the other hand, participation of SCM members did not always fully meet with expectations. The matter has been discussed between the partners, and the desirability for more participation of SCM members has been acknowledged. It must be emphasized, though, that the ongoing reform process, which touches upon all major areas of the justice system, in particular, the crucial area of human resources, puts an enormous workload burden on members and staff of the SCM alike. It is only consequential that also the implementation of this Project has had to cope with some of the constraints imposed by this situation.
Participation from magistrates and auxiliary staff from outside the SCM has also been very satisfactory. Quite apart from other considerations, the question of participation in the activities of the Project cannot be adequately answered in terms of numbers of participants solely. In the end, it is the commitment of the participants which, above all, defines the effectiveness of each activity. And this commitment left nothing to be desired. It may be unreservedly stated, that the participants showed a great and sincere interest in the seminars and workshops and involved themselves in an exemplary manner. The positive repercussions of this commitment will be felt far beyond the individual project activities concerned, since the participants will, over time, further disseminate their new insights and experiences within the system. Also the foreign Short Time Experts participating in these activities frequently expressed their great satisfaction with the exemplary commitment and sincerity they witnessed on the part of their Romanian peers.
It has been due to the preoccupation of the Plenum of the SCM with problems that had come up unforeseeably and had to be addressed urgently, that the Final Meeting – planned for ca. 120 participants from all over the justice system - had to be cancelled, although preparations had been finalised and a part of invitations gone out. At the time, the Plenum had been convoked exceptionally for altogether 3 days in a row, including the 30^th of November when the Final Meeting was scheduled. Taking into account, that the members of the SCM could not at all, or at best, for a short while attend the Final Meeting because of the special urgency of the matter at hand, the Partners agreed, that it would be better to cancel the Final Meeting than to risk sending out a false message towards the participants and the Media that the SCM itself showed no real interest in the event. Since the Final Meeting had been scheduled on the last day of the implementation period, there has been no possibility for postponement.

4. Willingness of the SCM to discuss and to heed the experts’ / working groups’ recommendations.

A sincere and steady interest, on the part of the SCM and its leadership as well as on the part of its administrative leadership and staff, in making best use of the support provided by the Twinning Program has been manifest all along the implementation of the Project. The same applies to the general willingness of the SCM members to discuss and heed experts and working group’s recommendations.

5. Willingness of the Romanian Ministry of Justice / Government to support legislative/ regulative measures which might be proposed by the SCM as a result of the findings and suggestions evolving from the activities in the working groups.
As has been mentioned before, the Ministry of Justice has not shown much commitment with regard to resolving the many legislative problems brought to its attention. A possible reason for this may have been a preoccupation with other projects and problems considered to be more important or urgent on a political level. In this regard, one may also have to consider the fact that the leadership of the Ministry of Justice changed during the implementation period of this Project in April 2007 not long before the beginning of the parliamentary recess.


2B - ACHIEVEMENT OF MANDATORY RESULTS

WORKING AREA NO I: STRENGTHENING THE ADMINISTRATIVE CAPACITY OF THE SUPERIOR COUNCIL OF THE MAGISTRACY
COMPONENT 1

IMPROVING THE ADMINISTRATIVE CAPACITY OF THE SCM

The mandatory results listed in the Contract are the following:
“Sound organizational/administrative structures for the SCM established.
Administrative capacity of the Superior Council of Magistracy strengthened by way of training measures focused on the attributions to be exerted by the administrative units of the Council.
Staff trained”

The mandatory results of Component 1 have been achieved.

A well functioning administration being a most crucial element for the success of the SCM, emphasis has been laid throughout the whole implementation period on fostering the organization and efficiency of the SCM-administration in areas with pivotal importance for the activity of the Council. Accordingly, no less than altogether 24 workshops/seminars with duration of altogether 58 working days have been implemented in this Component. The activities – part of them were extended or introduced via Side letter in response to upcoming new needs - covered all relevant areas, spanning from internal organization, human resources management, budgeting for the SCM and for the courts/prosecutors’ offices, efficiency in planning and preparing SCM sessions, Law drafting, staff accommodation and office equipment, steering continuous training for the SCM staff and the judiciary in general, data protection in Justice Administration, Project Management, applications of IT for the SCM and in Judicial Administration (including the development of an up-to-date IT-based registration system for the SCM), establishing parameters for adequate and balanced allocation of Human Resources to Prosecutors Offices and for a fair allocation of workloads between prosecutors.
Moreover, 7 leading staff of the SCM-administration have been offered the opportunity to study on the spot how well established and up to date judicial administration works in practice. The insight and experiences they gained at the side of their German peers enabled them to assess where the personnel administration of the SCM is positioned in comparison to a long and well established justice personnel administration in another European Partner-State, and it enhanced their capacity and inclination for developing and implementing further improvements within the scope of their own administration.
All activities met with great interest on the part of the participants and with a general predisposition at the SCM for taking any necessary steps in order to achieve high organizational and professional standards. They have provided an indispensable contribution in establishing sound organizational/administrative structures for the SCM and in installing a drive for constant improvement on the part of those who bear the responsibility for efficiently administering the attributions of the SCM. As a result, the constructive impact of the Project is perceptible in each and every area of the administration.
Moreover, the numerous training activities which were focused on the attributions exerted by the administrative units of the Council have considerably strengthened the Administrative capacity of the Superior Council of Magistracy. The staff is trained and motivated.
The effect of all these interrelating activities – including the continuous efforts in the Working Groups - may not only be measured in terms of enhanced skills of individual participants. Even more important is the medium- and long-term effect on the system, since these participants will serve as “multiplicators” by bringing the new skills and insights to bear in future cooperation with their colleagues and in the continuous process of improving the system.
In their final Report, the administrative Experts who analysed in several consecutive stages the development of the SCM-administration and advised on what next steps to take, reiterated their earlier observations regarding the exceptional devotion and engagement of the staff concerned and the remarkable progress in establishing an efficient administration achieved so far notwithstanding the sometimes unfavourable conditions. They also make a number of suggestions for further improvement. As can be expected for any new administration in an early stage of its development and in many ways hampered by a burdensome legislative framework, there still are areas for further structural and operational improvement. Yet, the decisive and positive conclusion is, that the administration of the SCM now has a solid administrative backbone that can withstand the high burden, even if it will need to be developed further. Equally satisfying and promising is the observation that the SCM has a hard-working administrative workforce with a good team-spirit and a determination to succeed in striving for efficiency and quality in carrying out its attributions.
The activities of the administrative experts have always met with great interest on the part of their Romanian peers and with a general predisposition at the SCM for taking any necessary steps in order to achieve high organizational and professional standards. For more details on the current state of the administration of the SCM and of the Judicial Inspection, as portrayed by the team of experts, please, see the Final Report of the Administrative Experts (Annex _to QR 7_). The Report testifies to the fact that the mandatory results listed in the Contract for Working Area 1/Component 1 – “Sound organizational/administrative structures for the SCM established. Administrative capacity of the Superior Council of Magistracy strengthened by way of training measures focused on the attributions to be exerted by the administrative units of the Council. Staff trained” – have been achieved to the extent possible within the given scope of activities.
It should, in this context, also be mentioned that the SCM has a special advantage regarding the development of its staff, since it can, over time, build up a stable workforce of experienced administrative staff, without any of the changes and concurrent disruptions in the chain of expertise that sometimes come with changes of leadership in political institutions.
Another important aspect is the fact, that wherever suitable representatives from courts and prosecutor’s offices, the Ministry of Justice and the Minister Public participated in the activities. This has generated the positive effect, that the – indispensable - cooperation between these institutions has been fostered. Thus, for instance, the activity “Enhancing the capacity for budgeting for the SCM and for the courts and prosecutor’s offices“ has been extended to allow for all 117 institutions with budgetary attributions in the justice system, including also the NIM and the NSC, to take part. The budgetary workshops met with great interest on the part of the participants, who much appreciated the possibility to inform themselves on best practice standards in the area and to discuss between themselves and with their foreign peers practical problems related to establishing and administering budgets in the judicial system. As a result, it may be said that “best practice” standards in this important area have been discussed and disseminated all over the judicial system in Romania and that a general awareness with regard to these standards has taken root. Moreover, the conditions for good cooperation and communication in budgeting matters between the SCM, the courts and prosecutors offices and the Ministry of Justice has been much improved.
Another special highlight within Component 1 was the 4 sequenced workshops dedicated to “Establishing parameters for adequate and balanced allocation of Human Resources to Prosecutors Offices and for a fair allocation of workloads between prosecutors”. Under the heading “FOLLOW-UP UNDER THE COOPERATION AND VERIFICATION MECHANISM”, the Commission of the European Communities has in its “Report on Romania's progress on accompanying measures following Accession” of 27.6.2007 emphasized, that, concerning judicial reform and the fight against corruption, Romania should continue to move towards meeting the benchmarks and in particular, “Resolve the current staffing and organizational problems of the Romanian court system and follow-up on the results of studies and pilot projects to set performance indicators for the judiciary.” The – additional - workshop-activity was aimed at supporting the efforts of the CSM towards the aforementioned benchmark with regard to the parquet by providing according expertise from other EU member States. The activity was implemented in 4 consecutive sequences of Working Group sessions, involving intense work, also in between sessions, on the part of some members of the Working Group and the Twinning Team, in particular with regard to analyzing vast amounts of different groups of statistical data for over 240 entities of prosecutor’s offices and compiling and documenting the results of the analysis. All involved were convinced of the potential benefit of the effort and, accordingly, were genuinely engaged in supporting the activity.
The results of the Workshop have been documented in a 47-page strong Report which has been finalized after the end of the Project. The Report – drafted by the RTA on the basis of the jointly agreed upon findings of the Working Group - was presented to the SCM on the 12^th of December 2007. It has since met with exceptional resonance and approval, and it may be confidently expected, that it will be used as a platform for following up on its findings and proposals within the Working Group of the SCM concerned with the organization of the courts and prosecutors offices and related matters of personnel management. As far as is known, the Report is a first in its kind in the area concerned. It may be used as an example for further analysis in related areas, since the methodology applied offers a general pattern for a practicable and efficient approach to planning for fair and efficient distribution of human resources over the judicial system. The methodology remains applicable even if doubts with regard to a complete dependability of the statistical database used may not be fully excluded at this moment in time, and if that database should need to be improved and broadened.
The Report proves and highlights the fact that the existing personnel scheme for the prosecutor’s offices, dating back to the early 90s, is completely obsolete and that the current distribution of human resources between the different parquets of the same jurisdictional level as well as between the different hierarchical levels is arbitrary in view of the distribution of workloads, many parquets being understaffed whilst others are much overstaffed. This situation may be considered as one of the core roots of the existing problems in the parquet-system.
The Analysis has also clearly shown, that the current organizational structure of the Public Ministry, with more than 180 – often minute - parquets at the Judecatorie-level is untenable in terms of efficiency and effectiveness of the system. Accordingly, the Report proposes a restructuring which would, inter alia, include dissolving the parquets at Judecatorie-level in favor of establishing centralized parquets at the Tribunal-level by way of first subordinating the prosecutors of the existing small parquets to the Prosecutors’ Office at their respective Tribunal and then, further on, gradually integrating them into the central parquet, whilst taking into account local constraints. The objective and result would be strong and efficiently operating Parquets with an all-encompassing competence and according adequate human resources, allowing for specialization and flexible reaction to changing demands in terms of human resources management amongst many other advantages. The new system would no more be affected by changes of competences between the different jurisdictional levels which have had devastating effects in the past in terms of human resources management.
The members of the Working Group were aware of the fact, that the proposed reform would mean a sea change for the organization of the Public Ministry. Yet, at the same time, they were convinced, on the basis of their findings, that there is no realistic alternative to a fundamental reform if the system is to be ridded from its current problems and to be made fit for the future. Evidently, the proposed changes would have multiple effects, also with regard to certain vested interests, which might affect acceptance. In view of this, the Report states the pros and cons of the proposal and weighs them up against each other, providing suggestions for overcoming any problematical effects the implementation of the proposed measures could have
In terms of mandatory results, the Workshop has been another exemplary exercise in best practice judicial administration and, as such, has fostered the professional capacity of the participants for human resources management and their methodological aptitude in approaching personnel planning for the system. At the same time, the Report elaborated by the Working Group offers a methodologically sound basis for the Human Resources Department of the SCM for tackling the far-reaching problem of uneven and disruptive distribution of human resources in the parquet-system and a model for addressing the problem of fair and efficient distribution of judges and auxiliary personnel over the system (for more details, please, see the Report in Annex … to QR 7).

COMPONENT 2

FOSTERING THE ACTIVITY OF THE SCM SECTIONS AS DISCIPLINARY COURTS

The mandatory results listed in the Contract are the following:

“Enhanced professional capacity of the elected Members of the SCM in their quality as disciplinary judges in the Sections of the SCM, as well as of the other officeholders concerned with disciplinary matters.

Enhanced regulatory framework concerning the disciplinary activity of the SCM.”

The mandatory results of Component 2 have been achieved.

The Workshops, seminars and other activities implemented in Component 2 have much enhanced the professionalism of participants in the areas concerned. All these areas are of crucial importance for the activity of the Sections of the SCM as disciplinary Court and of the Judicial Inspection attached to the Plenum of the SCM.

The initial Workshop “Analysis of the legal framework in the field of disciplinary sanctioning of magistrates and definition of need for amendments” helped to achieve greater awareness on the part of SCM members, Inspectors of the Judicial Inspection and other participants for the urgent need of completing and improving the legislative framework in the area of disciplinary sanctioning with regard to material law as well as procedural law. As a result of the pertinent discussions in the Working Group on disciplinary matters and matters of the Inspection and the Legislative Working Group legislative proposals were drafted which were later adopted by the SCM and forwarded to the Ministry of Justice. These proposals concern the following aspects:

1. 
   Decisions of the Sections of the SCM by which a magistrate is excluded from magistracy shall also pronounce that the magistrate is suspended from office until the decision – subject to appeal to the High Court of Cassation and Justice - shall be irrevocable;
   
2. 
   the suspended judge shall receive a monthly amount for current cost of living;
   
3. 
   Suspension of the disciplinary procedure, if the same acts are the object of a penal case in which the criminal investigation was started. The suspension of the disciplinary procedure shall be ordered by the Sections.
   
4. 
   the time limit for exerting the disciplinary action shall be 3 years;
   
5. 
   In case of magistrates who reached the legal age for retirement and who requests to be pensioned before the disciplinary case was finished, the pension shall be established according to the rules provided by the Law no. 19/2000. In case the disciplinary action shall be rejected or a disciplinary sanction, but exclusion from magistracy, shall be applied, the office pension shall be calculated retroactively for the relevant magistrate.
   

It must be underlined, that efforts with regard to fostering disciplinary law and (SCM-) procedure have continued in the Working Group on disciplinary matters and in the legislative Working Group. There is a strong awareness of the need for improvement in the area of disciplinary law, both, material and procedural. The according efforts are supposed to flow into a wider set of legislative proposals for improving the legislative framework of the 3 Justice Reform Laws, currently subject to the activity of the legislative Working Group.

Through the seminar “Comparative case studies concerning the disciplinary sanctioning of magistrates” the awareness on the part of SCM members, inspectors of the Judicial Inspection and other participants i.a. with regard to the criteria for determining the appropriate disciplinary measure in individual cases has been enhanced.

The Workshop “Comparative case studies on sanctioning/dismissing magistrates for unsatisfactory professional performance with particular emphasis on the limits for censuring the performance of judges in administering justice imposed by the concepts of judicial independence and irrevocability” fostered the awareness of the participants with regard to the strict limits to disciplinary measures as a means for addressing unsatisfactory professional performance of judges where the process of decision-making is concerned. At the same time, it fostered the awareness that, foremost, high recruitment standards and high standards in basic and continuous training, rather than disciplinary measures, offer the best assurances for continuously achieving a high level of professional performance. Moreover, the workshop helped to achieve greater awareness on the part of SCM members, Inspectors of the Judicial Inspection and other participants of the urgent need for completing and improving the existing legislative/regulatory framework in the area of disciplinary sanctioning with regard to material law as well as procedural law. The results of the workshop were followed up in the activities of the Working Group on Disciplinary matters as well as in the legislative Working Group where draft amendments aiming at filling gaps in the current legislation and at improving the procedural framework were being discussed and formulated. The RTA has supported the Working Groups by, inter alia, drafting a revised version of Art. 99 of the Law on the Statute of Magistrates which defines what constitutes a disciplinary infringement. Furthermore, the aforementioned Working Groups were provided with a model law which comprises all material and procedural matters relevant in the area of disciplinary sanctioning, based on the Romanian translation of the Disciplinary Law of the State of North Rhine-Westphalia, Germany, carried out by the project assistant/interpreter.

The seminar “Borderline cases: minor deontological infraction or a disciplinary offence” for members of the SCM, members of the 9-Judge Panel of the HCCJ, the Judicial Inspection and Members of Leading Boards of courts and prosecutors’ offices familiarized the participants with standards and criteria for disciplinary sanctioning in other Member States of the European Union as a source of inspiration in further developing law and jurisprudence in the field. It enhanced their judgment with regard to weighing whether an incident may still to be considered a minor deontological infringement below the threshold for disciplinary sanctioning or whether it demands a disciplinary response.

The Seminar “Judicial Ethics – its foundations and its perspectives in a comparative European View” for members of the SCM, members of the Judicial Inspection of the SCM, judges of the 9-judges panel at the HCCJ and members of the Leading Boards of Courts and Prosecutors’ Offices fostered the awareness of the ethical foundations underlying deontological demands on magistrates and disciplinary law and practice in the justice system. As a result of the presentations and discussions in the seminar, the participants are better prepared to consider fundamental questions of Judicial Ethics in a comparative European law perspective when handling deontological and disciplinary issues.

Two members of the SCM have spend an internship in the special disciplinary court system in Germany. These “Richterdienstgerichte” – special courts who’s competence is limited to disciplinary matters concerning judges and prosecutors and to claims of judges who allege that their independence has been infringed upon - may come closest to the role of the Sections as disciplinary court of law, as far as comparability with institutions in other Member States goes. By way of studying on the spot the organization of the three different jurisdictional levels of the “Richterdienstgerichte” and by discussing cases and questions of material and procedural disciplinary law with their German peers, the two members of the SCM, one a judge and the other one a prosecutor, were enabled to assess where their own organization and practice is positioned in comparison to an analogous disciplinary court in another EU Member State in terms of organization of work, procedure and material law and jurisdictional practice. The comparative law experience fostered their capacity and inclination for further developing the role of the Sections as disciplinary courts. It will be shared by them with the other members of the Sections and, thus, have a stimulating effect on the further general development of the Sections as disciplinary courts.

A Study Visit of a group of SCM-Members and members of the Judicial Inspection to specialized disciplinary Courts for Judges and Prosecutors in Germany – these courts decide also on complaints regarding infringements on judicial independence - has fostered the professionalism of the participants in these areas of crucial importance for the activity of the SCM. They have also contributed to strengthening the respect for judicial independence by reassuring the participants that the relevant lines drawn by the SCM and the Judicial Inspection attached to the Plenum of the SCM are in full compliance with the relevant basic rules and convictions in other Member States.

The professionalism of the members of the Judicial Inspection has also been fostered by presentations of the German experts and discussions on the subject of efficient inspections during the activities of the Administrative Workshop. Moreover, the Inspection has been presented with ample check-lists for implementing judicial inspections regarding the observance of professional duties as well as administrative activities, in use in judicial administrations in Germany. Going from this model, the Inspection has developed its own check-lists.

During the course of the Project also the regulatory framework concerning the disciplinary activity of the SCM has been enhanced within the reach of competence of the SCM. But, as has been mentioned above, in order to establish a truly satisfactory legal framework, the material and procedural disciplinary law must be amended and completed. Efforts for elaborating according legislative proposals to be included in a wider draft project for improving the 3 Justice Reform Laws are currently subject to the activity of the legislative Working Group.