By Decision No.121/2020, the Constitutional Court held that The Organic Law No.303/2004 on the Statute of Judges and Prosecutors ‘does not provide for essential aspects of the competition for admission to the judiciary, such as the stages and components of the competition, the manner in which the results are determined and the possibility of challenging each component, which is contrary to the provisions of Article 73 para. (3) lit.l) of the Constitution, according to which the organization and functioning of the Superior Council of Magistracy and the organization of the courts are governed by organic law.
In addition, the possibility of the Superior Council of Magistracy to adopt, by the regulation on the organisation and conduct of the competition for admission to the magistracy, essential aspects relating to the occupation of the posts of judge or prosecutor, determines a state of legal uncertainty: „The delegation of the task of establishing these rules to the Superior Council of Magistracy, by issuing administrative acts of an infralegal nature, causes a state of legal uncertainty, such acts usually have an increased degree of successive changes over time’, in breach of the provisions of Article 1 paragraph (5) of the Constitution, in its component regarding the predictability of the law.
The Constitutional Court pointed out that, ‘in order to remove the defect of unconstitutionality, the essential aspects concerning the organisation and conduct of the competition for the posts of judge and prosecutor – such as the general rules on the establishment of competition committees, the type of stages and the components of competition, the way in which the results are determined and the possibility of contesting each exam component – must be regulated by organic law, and the rules specific to these procedures must be explained and detailed by regulation of the Superior Council of Magistracy’.
In order to comply with the constitutional provisions, ‘the legislator must supplement the provisions of Law No. 303/2004 not only with the essential aspects of the competition for admission to the magistracy organised in accordance with Article 33 of the Law, but also with the essential aspects relating to the occupation of the posts of judge or prosecutor by the other means of admission to the magistracy’. And in the case of the competition for admission to the National Institute of Magistracy, the graduation examination of the National Institute of Magistracy and the capacity examination of trainee judges and trainee prosecutors, the law must provide for essential aspects, such as, the conditions of participation, the general rules on the establishment of competition committees, the type of stages and of components of the competition, the way the results are determined and the possibility of challenging each exam component. At the same time, Law No. 303/2004 must also provide for the essential aspects of the employment of the assistant magistrate at the High Court of Cassation and Justice and at the Constitutional Court’.
The constitutional court’s solution is not at all surprising, considering that, in its case-law, the court has consistently established that ‘the legal status of a category of staff consists of the provisions of law relating to the conclusion, execution, modification, suspension and termination of the legal employment relationship in which that category is situated’.
Moreover, the Romanian Judges’ Forum Association has made the public aware of this fact many times, starting with the observations published in December 2017, immediately after the adoption of the amendments to the „laws of justice” established in the „Iordache Commission”, with reference to the unconstitutionality of the legislation relating to the conduct of competitions for admission to the magistracy, the graduation examination of the National Institute of Magistracy and the capacity examination, continuing with various requests to the entities authorized to refer to the Constitutional Court, ” amicus curiae ” memoirs sent to the Constitutional Court, requests to the President of Romania for referral of the laws to Parliament, in order to be reviewed, etc.
The abrupt amendment of the ‘laws of justice’, without observing minimum constitutional rules on the status of judges and prosecutors, proves its major shortcomings again, leading to an unprecedented situation in the Romanian magistracy: the sine die blocking of the competitions for admission to the magistracy, the graduation examination of the National Institute of Magistracy and the examination of capacity, and therefore, by ricochet, seriously damaging the entire judicial system, since, at this moment, there are hundreds of vacancies in courts and public prosecutor’s offices.
In such circumstances, the Romanian Judges’ Forum calls on the Romanian Government and Parliament to quickly find solutions for immediate legislative changes necessary for the conduct of these competitions, the flawed organization of justice can have negative consequences for the functioning of the Romanian state and its European course.
The Romanian Judges’ Forum Association
Judge Dragoș Călin, Co-President
Judge Lucia Zaharia, Co-President
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