Memorandum amicus curiae for the Constitutional Court of Romania

Referring to file no. 642E/2019

 

 

The Romanian Judges’ Forum Association, legal person of private law, independent, non-profit, non-governmental and apolitical, professional association of judges, with legal personality established by the conclusion no. 671/08.06.2007 issued by the Slatina First Instance Court, hereby requests that the filing of the following arguments in connection with the request for settlement of the juridical act of a constitutional nature between the Romanian Parliament, on the one hand, and the High Court of Cassation and Justice, on the other, a conflict caused by the alleged “explicit refusal of the High Court of Cassation and Justice to enforce a law passed by Parliament”:

 

The absence of a constitutional legal conflict between the Romanian Parliament on the one hand and the High Court of Cassation and Justice on the other

The “specialization” of judges is a method for promoting unitary and quality jurisprudence, because it is assumed that judges are better informed about the laws and jurisprudence in their field of activity. According to the provisions of article 37 paragraph 4 of Law no.303/2004: “The continuous professional training of judges and prosecutors shall be carried out taking into account the necessity of their specialization”.

The status of the profession provides the “specialization” as a necessity, but also as an attribute of judges from the perspective of professional career, because it presupposes the capitalization of the experience accumulated in this field if there is a need for a differentiation between them according to criteria such as: seniority in the department, the relevant professional experience in the field of activity of the specialized panel, the graduation of the professional training courses in the respective field, as well as the professional training made by doctoral, master’s, postgraduate studies, presentation of papers or works in congresses, seminars, other forms of debate, articles or studies published in specialized publications, etc.

Therefore, from the point of view of the status of the profession of judge, “specialization” is a concept related to the person of the judge, so that the mechanisms of unification of the jurisprudence to benefit from his/her experience in a certain field.

Law no. 78/2000 provided the necessity of setting up specialized panels only in the first instance, not for appeals, which were judged (per a contrario) by non-specialized panels.

The rule regarding the jurisdiction of the High Court of Cassation and Justice is that it is the highest court of judicial review, in which it judges appeals against criminal rulings handed down at first instance by the courts of appeal and the military courts of appeal, and also the appeals in cassation against final criminal rulings.

It is incontestable that, from the perspective of Law no. 78/2000, the High Court of Cassation and Justice works, mainly, as a court of judicial review, meaning that the appeal proceedings (in a collegial panel of three judges) are made without any restriction on the establishment of a specialized panel.

As a consequence, all judges who make up panels of appeals against lower court rulings (made up of 3 judges) acquire specific experience in this field (anti-corruption files).

Only as an exception, the same judges of the High Court of Cassation and Justice (making up of 3 judges, as in the case of appeals against lower court rulings) must first judge the cases in the first instance having as object the offences under Law no. 78/2000, according to the quality of the defendant.

However, the desideratum of the “specialization” of court panels (or rather, of the judges who compose them) is fulfilled by the fact that the same judges are assigned to judge in the same matter, of the Law no. 78/2000, appeals against lower court rulings.

By expressly stipulating the law, the judging of appeals in this matter should not be made through specialized panels, and the Supreme Court fulfils, by its essence, a role of cassation, mainly judging appeals.

According to the provisions of article 124 paragraph 2 of the Romanian Constitution: “Justice is unique, impartial and equal for all.”

The uniqueness of justice, viewed from the point of view of the specialization of the judges who make it, and the equality before the law they interpret and apply, signifies that the same judges who acquire the professional experience in this matter, in the appeals (which require much more complexity since they have the capacity to reform the ruling under appeal), must also be considered competent (“specialists”) to judge in the same composition (of three judges) and cases of the same nature but having as their object acts committed by certain socio-professional  categories (senators, deputies and Romanian members in the European Parliament, members of the Government, judges of the Constitutional Court, members of the Superior Council of Magistracy, judges of the High Court of Cassation and Justice and prosecutors at the Prosecutor’s Office attached to the High Court of Cassation and Justice).

The establishment of “specialized” panels for the first instance trials made up of the three judges who also judge the appeals (all the judges of the criminal department who judge in the same matter) would constitute an excessive and unnecessary formalism, as the promotion of unitary and quality jurisprudence is done through the judges, as people – professionals of the field of activity (at the level of the highest national court), and not through the indicative of the court panel thus established.

In accordance with the standards in the judicial systems of other states in the European Union, article 126 paragraph 3 of the Romanian Constitution states that “the High Court of Cassation and Justice ensures the unitary interpretation and application of the law by the other courts, according to its competence”.

It results that the High Court of Cassation is not an ordinary court, its predominant role being to develop and unify jurisprudence at national level. Obviously, the three judges panels meet this desiderate by judging by the same magistrates, as a rule, of appeals against lower courts, and it also gives them experience/specialization in order to judge at first instance the same type of cases, as an exception.

As noted by the European Court of Human Rights in the case of Albu and others against Romania (application no. 34796/09 and others 63), the higher courts have, among others, the task of unifying judicial practice, this role being – even more so – of the High Court of Cassation and Justice, the last hierarchical court.

Also noteworthy is the fact that the European court held in its decision, as relevant legal provisions, extracts from the Venice Commission report (25-26 May 2011), Preliminary conclusions and comments of the UN special rapporteur on the independence of judges and lawyers and Opinion no. 11 (2008) of the Consultative Council of European Judges (CCJE). According to this latter document, it is appreciated that, by fully recognizing the power of judges to interpret the law also their obligation to promote the security and predictability of the act of justice must be taken into account. The principle of security of legal relations guarantees the predictability of the content and the application of the legal norm, thus ensuring a high quality of the judiciary system.

It cannot be considered that the High Court of Cassation and Justice has the aptitude to ensure all these procedural guarantees through the three judges panels, by settling the appeals in its capacity as a superior court, but that the same judges that make up the same panel, but for the first instance judgment, do not have “specialization” to ensure the same procedural guarantees.

It should be noted that, in the circumstances that  Law no. 78/2000 does not provide the establishment of specialized panels for the trial of appeals, the 5 judge panels are composed of the same judges of the criminal department (appointed by drawing of lots), proving that they have the professional capacity and expertise required in this matter to ensure the quality of the act of justice pursued by the special law.

It is therefore a false issue the lack of a decision by the leading college of the High Court of Cassation and Justice to award certain indicative/descriptions to the three judges panels, which show the “specialization” in this matter, only for the first instance trial (exception at the level of the Supreme Court), but to exclude these indicatives/descriptions for the same 3 judges petitions for the appeal trials (rule at the same court level).

The Constitutional Court of Romania has sufficient legal grounds to refuse to receive and take into account the document called “Amicus curiae” filed by the Government Agent for the ECHR.

 Based on article 6 paragraphs (5) and (6) of GO no.94/1999 regarding the participation of Romania in the proceedings before the European Court of Human Rights and the Committee of Ministers of the Council of Europe and the regress of the state following the rulings and conventions of amicable solving, with subsequent amendments and modifications, “(5) The Government Agent is not entitled to intervene in the performance or administration of justice. (6) The breach of the obligations stipulated in paragraphs (1) – (5) shall bring the guilty persons liable under the law.”

 As the legal conflict of a constitutional nature pending at the Constitutional Court concerns precisely the acts of administration of justice, disposed at the level of the High Court of Cassation and Justice, the incidence of article 6 paragraph (5) of OG no. 94/1999 is logical and it is not possible to apply article 3 of the same normative act (“Preparing the necessary acts and defenses, carrying out any other procedural acts, taking the necessary domestic measures and any other acts or activities related to the representation of the interests of the Romanian State at the Court and the Committee of Ministers are within the competence of the Government Agent, except as provided in this ordinance”).

As regards the jurisprudence of the European Court of Human Rights, the cases referred to in the document called “Amicus curiae” filed by the Government Agent for the ECHR regard concrete factual situations that have nothing to do with the issue of the conflict pending in the Constitutional Court. Further we quote a few of the aspects from the general cases, with value of principle:

In the case of Guðmundur Andri Ástráðsson v. Iceland, one of the trial judges was appointed to the Court of Appeal in flagrant violation of the appointment procedures provided for by the applicable law, with the executive power displaying excessive discretionary power not provided by the law in force at his choice to the Court of Appeal. The ECHR concluded that, in the present case, the Court of Appeal did not represent a “court established by law”.

In the case of Coëme and others v. Belgium, the Court found that the law provided exceptionally the trial of ministers by the Court of Cassation. However, the jurisdiction of the Court of Cassation was not provided for the trial of people who did not hold office, even if they were tried for offences related to those for which the ministers were prosecuted. In the absence of a rule providing for the consistency of the cases, it was estimated that with respect to the defendants who held the office of minister, the Court of Cassation was a “court established by law”.

In the case of Pandjikidze and others v. Georgia, the Court ruled that a court in which some non-professional judges also came in, even though the law on associated judges had been abrogated, is not a “court established by law”.

In the case of Lavents v. Latvia, the Court held that two judges issued an ordinance which was subsequently annulled. The national legislation expressly provided that, in the event of such an annulment, judges can no longer continue to participate in the trial. By continuing to participate in the trial, the ECHR considered that the applicant did not benefit from a “court established by law”.

In the case of Richert v. Poland, the Court ruled that a judge continued to be a member of the panel after the expiry of his secondment within that court. The ECHR estimated that after the expiry of the secondment, the condition of the “tribunal established by law” is no longer met, the disposal of a secondment with retroactive effect having no effect on this matter.

Consequently, the conclusion of the Governmental Agent for the ECHR (“disregard for the legislature’s will and violation of an imperative legal rule in force is likely to turn into a flagrant violation of domestic law”) is one of its own and without a concrete foundation in any decision of the European Court of Human Rights on the matter under discussion by the Constitutional Court.

Conclusions

 From the systematic and historical-teleological interpretation of the provisions of article 28 of Law no. 78/2000, it results that the necessity to create specialized panels had a logical justification valid only for the common law courts (others than the High Court of Cassation and Justice) either of the need to reduce the number of territorially widespread judges judging in this matter (to avoid divergent jurisprudence), or the need to ensure a certain composition within a given period (2 judges in the first instance), or to formalize the plan of judicial organization to grant higher salary rights to such specialized judges (which proved to be a discriminatory treatment).

Failure by a court to comply with the national provisions governing the establishment and jurisdiction of the judicial authorities, in principle, leads to a violation of article 6 paragraph 1 of the Convention. However, in view of the general principle that the national courts must first interpret national law, the ECHR considers that they should only question their assessment in cases of flagrant violation of that legislation (Coëme and others v. Belgium, paragraph 98; Lavents v. Latvia, paragraph 114).

The judges of the High Court of Cassation and Justice have jurisdiction at national level, are organized in a single criminal department, have tried in panels of 3, as in the case of appeals against the decisions of the higher court, all have participated in the trial of this type of cases and benefited, by virtue of the law, from the very beginning of the salary rights corresponding to these attributions, so that such “specialization” was not necessary.

Much less, the discussion about the existence or non-existence of panels with a “special” indicative cannot have procedural effects, not involving any violation of the rationale of the law, nor harming the general interest pursued or the private interests of the parties, aspect untied by the criminal courts, in full jurisdiction.

Thus, the jurisprudence of the High Court of Cassation and Justice (decisions of the 5 Judges Panel no. 233 of 12 December 2013 and no. 18 of 30 January 2014) confirmed the ope legis specialization of judges of the High Court of Cassation and Justice in the first instance settlement of corruption cases.

As a result, not being able to talk about flagrant violation of legislation, neither the European Court of Human Rights nor the Constitutional Court of Romania will have reasons to question the constant jurisprudence of the High Court of Cassation and Justice.

Romanian Judges’ Forum Association

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