First of all, we draw attention to the provisions of art. 1 para. (3) and art. 6 para. (2) of O.U.G. no. 7/2019, according to which the traineeship period of prosecutors and judges admitted until 2019 at the National Institute of Magistracy is 1 year. This aspect has placed the activity of the graduates of the 2018 generation (who started their traineeship period on 01.01.2019) outside the legislation, for more than 6 months, at the time of writing this press release. Practically, the apprenticeship period of these trainee magistrates was exceeded by more than 50%, during which time they had limited competence to solve cases and no predictability regarding their professional and private activity and lives.
Secondly, according to art. 8 para. (1) of O.U.G. no. 7/2019, the Superior Council of Magistracy, which had the obligation to organize the capacity examination of prosecutors and trainee judges, fulfilled this obligation with a delay of 41 days in 2019, compared to 2018. This, alongside the current epidemiological crisis has led to the critical situation of trainee magistrates, through by postponing the capacity exam less than 48 hours before the date of the first test (14.03.2020).
Moreover, the considerations of the Decision of the Constitutional Court no. 121 of March 10, 2020 regarding the exception of unconstitutionality of the provisions of art. 106 lit. a) and d) of Law no. 303/2004 on the status of judges and prosecutors lead to the conclusion that the organization of the capacity examination by the Superior Council of Magistracy has become unconstitutional, rendering the current exam organization implicitly unconstitutional.
Therefore, we consider that, at this moment, given the uncertain socio-professional situation we are in, the priority of all actors involved should be the urgent finding of alternative solutions of evaluation of the 2018 promotion of graduates of the National Institute of Magistracy, so that they can become permanent magistrates and serve the interests of the judiciary in full jurisdiction, which is becoming increasingly strained.
Also, we cannot neglect the fact that priority of access to the same profession is given to persons from outside the judicial system, on a simplified examination model, instead of giving priority to the magistrates already invested in by the Romanian state, through the National Institute of Magistracy, that have been repeatedly and thoroughly subjected to numerous theoretical and practical examinations and which are currently prepared to serve the needs of the legal system. This is a blatant discrimination between the two socio-professional categories, since all the advantages seem to be given to those outside the system.
Another aspect to be taken into account is that prosecutors and trainee judges are deprived during all this time of accumulating seniority as permanent magistrates, seniority which is necessary for access to the higher professional phases and participation in various competitions. Given that they have already faced a change in the legislation regarding the period of seniority required to advance in the profession, the situation in which they find themselves becomes deeply unfair, being unable to take exams or future competitions. This aspect yet again creates a profound discrimination between the people outside the judicial system whose seniority is counted on from the moment of admittance into the profession, despite them not working from the start.
Given that the initial examinations were postponed less than 48 hours before the first test, we consider that the purpose of the traineeship and examination period has been achieved, as the magistrates have already deepened the knowledge necessary for completion, preparing throughout this period.
Given that the internship period is already 50% longer than required by law, all this context offers the current generation of magistrates both the premises of a good professional experience and a thorough theoretical training, identical to that achieved by previous generations.
Therefore, we consider that there are sufficient reasons to develop an alternative method of organizing the capacity examination for them, as soon as possible, including by issuing an Emergency Ordinance (for example, their distribution as permanent magistrates based on objective evaluation criteria, such as the average obtained at the graduation of the National Institute of Magistracy, appointment on the positions already occupied, elaboration of an traineeship work dossier, evaluation of the candidates by the traineeship coordinator, etc.).
In any case, the organization of the examination in its classic form would create a major delay (in addition to the 6 months already passed), because even if the necessary legislative process starts immediately and if it would take a maximum of 30 days (unlikely aspect), it would still take at least 4 months for trainee magistrates to reach the first examination test (according to the current regulation, they take place at least 90 days after the announcement of the examination). Given the legislation currently active in Romania, this places the 2018 promotion of trainee magistrates at the cusp of hazard and imbalance, giving the fact that they have to undergo more than the previous generations to achieve the same results.
Moreover, any way of taking the exam in the classical format must also take into account the possibility that some of the candidates may be infected with the SARS-CoV-2 virus, in which case they should be allowed to take the exam in another way to eliminate any possible risk or discrimination.
At the same time, we emphasize the personal situation of the mentioned promotion, which prepared for an exam that was suspended without any other mention, exhausting their rest days for 2019 and 2020 for the preparation of this exam and consider it inadmissible to ask them to continue rigorous preparation for testing and examination in tandem with carrying on their professional activity diligently (given the very large number of cases pending in the prosecutor’s offices and courts in the country), already extended over many months.
We draw attention, consequently, that the trainee magistrates who graduated in 2018 from the National Institute of Magistracy are in a situation in which they will not be able to benefit from the activity-specific rest leave, corresponding to a duration of 2 years, which, in relation to any other professional category, appears completely disproportionate.
Finally, we also emphasize the salary discrepancy that exists between trainee magistrates and permanent magistrates, the first having been deprived in the last 6 months of the rights provided by law in this regard. Furthermore, there is the possibility that this discriminatory situation continues, if not intervened from a legislative point of view to regulate their definitization in the profession.
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