Twinning projects

During the Workshop “Establishing the medium and long term planning for the NSC with regard to the recruitment of auditors, teaching staff, training facilities and budget” for the members of the SCM-Working Group on NSC related issues, members of the Steering Board of the NSC, the Director of the NSC and one of the deputies, staff members of the SCM and of the NSC concerned with the issues in question, the participants were familiarized with methods of efficient medium and long term planning for Clerks’ Schools in Germany. The essential aspects to be taken into account in the process were highlighted and practical experience discussed with the participants. A special focus was put on planning aspects associated with the intended shift in attributions of auxiliary personnel in Romania. As a result, the participants are informed about best practice methods, and they are be better prepared for their task.

The Workshop on “Establishing the medium and long term planning for the NIM with regard to the recruitment of auditors and teaching staff” for members of the SCM-Working Group on NIM related issues, members of the Scientific Council of the NIM, the Director of NIM and one of the deputies, staff members of the SCM and of the NIM concerned with the issues in question, was implemented with the same objectives and essentially same results as the aforementioned parallel workshop relating to planning for the NSBC.

Taking into account, the genuine interest and commitment of the leadership of the NSC and of the other participants of the aforementioned Workshop, the Twinning Partners established, that it was in the interest of fostering the development of the NSC to carry out an additional Workshop during which all aspects treated in the initial Workshop in theory would be applied to the concrete conditions of the NSC with the objective of establishing a basic planning framework for the NSC. Accordingly, Activity II.5 “Critical analysis of the current state of short-, medium- and long-term planning for the National School of Clerks (NSC) in the light of actual resources on the one hand and (future) demands on the other hand, and establishing an updated and complete planning pattern for operating and developing the NSC on a short-, medium- and long-term basis” was introduced by way of Side letter no 45 and was carried out during the Reporting Period. During the Workshop, the leading personnel of the NSC in cooperation with the two STEs established a basic planning framework which can in future be continuously updated in accordance with changing demands on the School and changing budgetary outlooks (the planning framework has been included as Annex 5 in QR 5). This activity has in a special way fostered the capacity of the participants for coherent and efficient planning, and it may be considered as particularly successful, also with regard to the sustainability of the result.
The Workshop on “Project Management” from 5 – 6 October 2006 has also been directed at participants from the NIM and the NSC in order to enhance their capacity for implementing long and medium development plans in accordance with up to date management principles and practices.
It can be doubtlessly presumed, that the capacity of the Members and the administrative staff of the SCM to successfully exert their tasks and obligations with regard to the NIM and the NSC as well as the management-capacity of the leading personnel of both institutions have been significantly enhanced through their active participation in the above mentioned activities.


WORKING AREA NO III: FOSTERING THE CAPACITY OF THE JUDICIAL INSPECTION ATTACHED TO THE PLENUM OF THE SUPERIOR COUNCIL OF THE MAGISTRACY
The mandatory results listed in the Contract are the following:
“Regulatory framework pertaining to the role of the Judicial Inspection attached to the SCM enhanced.
Capacity of the members of the Judicial Inspection to efficiently exerting their tasks within the confines delineated by judicial independence and in line with best practice European standards fostered.”

The mandatory results of Working Area III have been achieved.

The numerous activities implemented with the objective of fostering the role and performance of the Judicial Inspection have, first of all, given the leadership and members of the Inspection a comparative law outlook on the organization and functioning of inspections in some other judicial systems in the European Union and to critically assess their own activity against that backdrop. This has set off a process of thorough discussion on how the organization of the activity of the Inspection could be improved in order to be better positioned for efficiently fulfilling its mission. This, again, has lead to the implementation of according measures, respectively, pertinent proposals to the Plenum of the SCM. The problems encountered in other countries and the solutions, or contemplated solutions, for solving these problems elsewhere - as, for instance, the intention in France to involve the Appeal Courts to a greater extent in carrying out inspections and, thus, to relieve the central Judicial Inspection in Paris from its current overburdening - only confirmed the assessment that the current structure and organization of the Romanian Inspection with a centralized workforce of less than 50 Inspectors is not adequate for efficiently covering a system with altogether ca. 6.000 magistrates officiating at more than 240 different courts and more than 240 prosecutors offices all over Romania.

There is broad agreement, that a way must be found to decentralize the inspection activity, be it by way of stationing inspectors in each Appeal Court District or be it by involving the Appeal Courts in the implementation of inspections. Moreover, there is agreement, that the Inspection should be freed from the many tasks it is burdened with now and which do not fall under the notion of judicial inspection proper, as, for instance, the time-consuming task of establishing hundreds of clearance certificates for candidates who apply for entering the National School of the Magistracy (NIM) as auditors of justice, or for jurists of a certain seniority in the profession who apply for direct entry into the Magistracy.

The basic organizational changes considered necessary in order to make the Inspection more efficient and forceful, and in order to eliminate certain situations which are perceived as incompatible – as, for instance the role Inspectors have in preliminary disciplinary investigations, on the one hand, and their prosecutorial role in disciplinary matters in front of the Sections, on the other hand, cannot be brought about by the SCM itself. They would necessitate legislative amendments. Therefore, these important issues are being addressed in the Legislative Working Group in the context of the ongoing broader efforts directed at an overhaul of the Law on the SCM, with the objective of making its provisions more feasible and coherent. Certain aspects of the activity of the Inspection have already been addressed by the SCM where this is within the range of its regulatory competence.

One very important enhancement in the regulatory framework has been the introduction of checklists for carrying out inspections, based on the comparative law material presented by the RTA. They cover all pertinent aspects and assure efficiency, completeness and unitary practice in the implementation of inspections at courts and prosecutors offices.

Another important advancement was the elaboration of professional and personal criteria which candidates for the position of Inspector must fulfill in order to meet the special qualifications required for this outstanding position. Such criteria are now applied in the competitive selection process for positions in the Judicial Inspection.

Progress has not only been made with regard to enhancing the regulatory basis and technical efficiency of inspections. Just as important has also been the internalization of a professional attitude which combines a strong commitment to thoroughness and objectivity in inspections with an unmitigated respect for the constitutionally chartered judicial independence and impartiality of judges, respectively, the impartiality of prosecutors.. Doubtlessly, the Inspectors of the Judicial Inspection attached to the Plenum of the Superior Council of the Magistracy of Romania do not differ in this respect from their peers in other justice administrations in the EU, as, for instance, in Spain, France or Germany.

The Project has right from its start focused on the need for enhancing the organisation and performance of the Inspection. Accordingly, during the initial 3 months of project implementation the Workshop on Treatment of Complaints and carrying out Preliminary Disciplinary Investigations, the Workshop on Protecting Objectivity and Impartiality in Public Prosecution and the Study Visit to specialised disciplinary Courts for Judges and Prosecutors in Germany – these courts decide also on complaints regarding infringements on judicial independence - have been implemented. These activities all fostered the professionalism of the participants from the Inspection and reassured them that the professional policies of the SCM and of the leadership of the Inspection respect the confines delineated by judicial independence and are in line with best practice standards in justice administrations in the EU, as, for instance, in France, Germany and Spain..

Apart from the activities provided for within Working Area III, dedicated more or less exclusively to the Inspection, and apart from the support provided by the RTA, the members of the Inspection have also benefited in great measure from numerous other activities of the Project, in particular the wide ranging activities within Working Area I. The Administrative Workshops focused much on fostering the activity and organisation of the Judicial Inspection. The activities regarding disciplinary law and practice, the evaluation of magistrates, promotion procedures, questions of civil responsibility of magistrates, the defence of the impartiality and reputation of magistrates and parameters for workload allocation, just to name some of the most important areas, all touched in one way or the other on the activity of the Judicial Inspection, since the SCM has involved the Inspection in all these areas by way of according provisions in the Regulations. In this context, it should be emphasized, though, that the much extended range of activity for the Judicial Inspection is certainly too much of a burden for the Inspection, especially, given its comparatively limited human resources. It is a matter that needs to be urgently addressed. Of course, relieving the Inspection from this overburdening can to a large extent only go hand in hand with the progress of the Council in the endeavor of significantly raising the number of adequately trained staff in the SCM-administration up to the ceiling provided for in the budget.

Apart from the activities directly connected to the efforts of the Working Group, in particular, the Workshop “Analysis of the legal framework relating to the activity of the Judicial Inspection and definition of need for amendments”, the following activities were carried out within Working Area III:

The 2-day Workshop “Performance indicators and quality management in magistracy” - for Members of the SCM, Inspectors of the Judicial Inspection attached to the Plenum of the SCM, members of Leading Boards of Courts and Prosecutors’ Offices, representatives of Magistrates’ Associations, representatives and of other stakeholders in the judicial system - was about measuring and monitoring the performance of individual magistrates (evaluation/inspection) and of the Magistracy as a whole on the basis of uniformly applied general standards as an indispensable tool for establishing whether requirements are met and for addressing detected deficiencies by way of appropriate measures. The Seminar familiarised the participants with performance indicators and ways of measuring judicial performance practised in the respective home States of the STE’s To that end, the STE’s described the ways and means of measuring performance and the methods applied in quality management in their respective judicial administrations, whilst a BC expert portrayed the current practice in Romania in this sector. The activity enhanced the awareness of the participants, especially members of the Inspection, for the relevant and revealing indicators in assessing the performance of individual magistrates and of the system as a whole. They are better prepared now to foster performance measuring and quality management in the Romanian judicial system, be it within their own individual sphere of responsibility or be it via their contributions to the wider discussion on the topic in the framework of Justice Reform in the SCM and at the courts and prosecutors offices.

The Workshop “The treatment of complaints lodged against magistrates and the procedure of preliminary investigation in disciplinary matters of magistrates in a European comparative Law perspective” – for members of the SCM, inspectors of the Judicial Inspection attached to the Plenum of the Council, presidents of courts and heads of prosecutor’s offices, judges and prosecutors - concerned a particularly delicate area of activity of the SCM/Inspection, since it is often difficult to discern whether a particular complaint deserves further investigation into facts, whether the nature of a particular complaint forbids any comment in respect of judicial independence and has to be rejected off-hand, whether the facts presented demand that a preliminary disciplinary action be initiated, and so forth. According to the law, citizens may address their complaints against magistrates to the SCM. The appropriate and efficient treatment of such complaints - currently reaching the SCM in high numbers - is an essential task. The Seminar familiarised the participants with according law and practice in judicial administrations of other EU MS, in particular with regard to preliminary disciplinary investigations, and it offered a forum for discussions on problematic aspects pertinent to that subject matter. To that end, the STE’s presented the situation in their respective judicial administrations, whilst the BC experts portrayed current practice in Romania. As a result of the presentations and discussions, participants are aware of well established practice in other judicial administrations for dealing with complaints, and they are better prepared to deal with legal and practical problems that may come up in this area within their own professional practice.

In response to the introduction of an according change in the law, an additional activity under the heading “Disciplinary responsibility of magistrates and the notion of bad faith and gross negligence in administering justice, as stipulated in Art. 99, h) of Law 303/2004” was introduced and implemented. Admissibility of supervising the substance of judicial decisions is a key issue with regard to the principles, scope and limits of judicial inspection in respect of judicial independence. For Romania, this issue has won special prominence and urgency in the aftermath of an amendment in September 2006 to Art. 99 h) Law 317/2004 which stipulates that it constitutes a disciplinary offence to “Exercise the office, including non-observance of the procedural laws, in bad-faith or gross negligence,…”. The Law does not define what shall constitute “gross negligence” in exerting judicial duties, nor does it stipulate what measure of proof it takes to justify a verdict of “bad faith” in this context. This has led to great legal uncertainty, especially with respect to the borderline between judicial discretion within the bounds of judicial independence on the one hand and “bad faith” and “gross negligence” in exercising the office on the other hand. This legal uncertainty will have to be addressed either by way of further amending the law, or by the jurisprudence of the Sections of the SCM, respectively by the jurisprudence of the HCCJ as final instance in disciplinary matters concerning magistrates. By introducing the additional activity, the Twinning Partners wanted to support this process of clarification by way of providing a comparative law analysis of the existing legislative framework and by assisting in formulating a definition of “gross negligence” and clarifying the borderline between judicial discretion within the bounds of judicial independence on the one hand and “bad faith” in exercising the office on the other hand. Taking into account the results of the presentations of the STEs and of the ensuing discussions, the RTA has formulated a new wording for Art. 99 h which relates to the jurisprudence of the German Bundesgerichtshof and of the French Conseil d’Etat with regard to the scope and limits for a control of judicial decisions under the aspect of “bad faith” and “gross negligence”. The draft amendment is subject to further discussion in the Working Group on legislative matters, respectively the legislative Working Group.

An important element in fostering the capacity of the Judicial Inspection for executing its attributions in accordance with best practice standards were also the study visit to the Spanish and French centralised Judicial Inspections and the internships of two inspectors – one a Judge-Inspector and one a Prosecutor-Inspector – at the Spanish Judicial Inspection. During their internship at the Inspection Service of the Consejo General del Poder Judicial of Spain in Madrid, the interns learned on the spot how and according to what legislative/regulatory framework their Spanish peers organise and implement inspections. They acquainted themselves with the working routines of the Spanish Inspection Service, also with regard to the strict rules applied for observing judicial independence in the exercise of judicial inspections. The insight and experiences they gained by working side to side with their Spanish peers enabled them to critically assess how the organisation and practice of the Judicial Inspection attached to the SCM is positioned in comparison to its counterpart in Spain and what features might be advantageous also for the Inspection at the SCM. In principle, the same applies also to the participants of the study-visit who were provided with the opportunity to see these institutions in action and to discuss practical and legal questions with regard to their activity with their foreign peers. The experience has enhanced their professional capacity for developing and implementing further improvements within the scope of their own Judicial Inspection.
A very useful comparative-law working-tool for the Inspection has also been provided with a Romanian translation of a juridical treatise by Dr. R. Goebel, Judge at the German Bundesgerichtshof, on Judicial Independence, as defined in the leading decisions in this area of law by the highest German Court of Law with regard to different aspects of possible infringement. Moreover, the Inspection has also been presented with a full translation of a decision by the Bundesgerichtshof on an issue regarding judicial independence, reiterating essential parameters of relevant jurisprudence in the area. The jurisprudence mentioned addresses in particular questions related to the activity of judicial inspection.

Through all these seminars and workshops pp., also the activity of the Working Group on issues concerning the Judicial Inspection has been much supported, since the additional professional knowledge and experience acquired in these activities stimulates and inspires the activity within in this Working Group. The Working Group will, by the way, continue to exist, apart from the fact that its name has been changed into that of a Commission.

As a closing observation, it is only fair to mention here, that the many members of the Inspection who participated in numerous activities of this Project have done so with great interest and commitment. They are resolutely determined to improve the organisation and performance of the Inspection and to make it an exemplary institution within the justice system, as, indeed, it should be, given its special role and position. The wide array of interrelating activities and experiences offered to them during the whole duration of the Project has provided the Inspectors with the professional basis for successfully continuing this process. Their involvement has resulted in a dedicated ownership that promises to bear more fruit over time than any short time technical achievement could promise, given the fact that it could be subject to renewed change, as has been observed in some instances in the past with regard to certain legislative achievements.
WORKING AREA NO IV: FOSTERING THE RELATIONS OF THE SUPERIOR COUNCIL OF THE MAGISTRACY AND THE COURTS AND PROSECUTOR'S OFFICES WITH THE GENERAL PUBLIC, MEDIA AND STAKEHOLDERS IN THE JUDICIAL SYSTEM
The mandatory results listed in the Contract are the following:
“Strengthened capacity at the SCM and at courts/prosecutors’ offices in the area of public relations by way of relevant training measures.

Relations with media and stakeholders in the judicial system improved by way of activities which foster mutual understanding.”