The Constitutional Court of Romania noted that the rules governing the organization and conduct of the competition for appointment to the position of inspector within the Judicial Inspection must be established by organic law

The Constitutional Court, by a majority of votes, upheld the exception of unconstitutionality and found that the provisions of Article 70 paragraph (2), final sentence, of Law No 317/2004 on the Superior Council of Magistracy were unconstitutional.

Summary

The Constitutional Court found that the contested statutory provisions, according to which the Regulation governing the organization and conduct of the competition for appointment to the position of inspector within the Judicial Inspection is approved by order of the Chief Inspector of the Judicial Inspection, were contrary to Article 1 paragraphs (3) and (5) of the Constitution, which enshrine the rule-of-law nature of the Romanian State and, respectively, the principle of legality, in its component concerning the supremacy of the law. They were also found to be inconsistent with Article 73 paragraph (3) letter (l) of the Constitution, which requires that the organization and functioning of the Superior Council of Magistracy, the courts of law, and the Public Ministry be regulated by organic law.

Reasoning

With regard to the criticisms of unconstitutionality, the Court held, in essence, that:

• In its case-law, it has consistently ruled that, for all categories of personnel whose status must, pursuant to the Constitution, be regulated by organic law, the essential aspects relating to the filling of positions must be governed by organic law, and not by administrative acts of a lower rank than the law. The Court has established that the legal status of a category of personnel consists of the statutory provisions governing the conclusion, performance, amendment, suspension, and termination of the legal employment relationship to which that category is subject, and has emphasized that these considerations likewise encompass the legal status of judges and prosecutors, as follows from Article 73 letter (l) of the Constitution.
• With regard to the organization and conduct of the competition for the position of judicial inspector within the Judicial Inspection, in view of the specific nature of this office, stemming, on the one hand, from the fact that judicial inspectors are recruited from among magistrates and, on the other hand, from the role of the Judicial Inspection within the judicial system, it follows that there is a clear similarity between the legal status of judicial inspectors and that of judges and prosecutors, when assessed from the perspective of the requirement that the essential aspects concerning their status and career be regulated by organic law. Accordingly, the rules governing the organization and conduct of the competition for appointment to the position of inspector within the Judicial Inspection must be established by organic law, and not by a regulation approved by order of the Chief Inspector of the Judicial Inspection.

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The decision is final and generally binding.

The arguments underlying the reasoning of the Constitutional Court’s ruling shall be set out in the text of the decision, which will be published in Part I of the Official Gazette of Romania.

Unofficial document for media use, not binding on the Court.