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Romanian Judges’ Forum on the changes attempted to be made to the conditions of promoting within magistracy

Regarding this proposal made by the Minister of Justice to amend ”the justice laws”, the CVM reports welcoming the evolution of the magistracy indicated in a certain manner that a merit-based promotion ensures the foundation of an independent judiciary body, free of any influences, both from its inside and from the outside. The return to a manner of promotion on subjective criteria, that lack any form of objective control made by the magistrates, with no possibility to challenge and no predictability, will deprive the judiciary of this foundation.

The establishing of an evidence, for the promotion, evaluating the documents drawn up by the magistrates could lead to situations, for example, in which a seconded magistrate who drew up only administrative documents (administrative proposals approved by the minister / president of SCM / director of the National Institute of Magistracy etc.) receive a maximum rating, as the administrative notes were perfectly drafted, while a sitting judge, with hundreds of decisions annually ruled, have the bad luck and his/her decisions ruled in repetitive cases be analysed in a succinct manner, the decisions being criticisable for „the lack of imagination” in reasoning at least. The latter will not promote, while the seconded judge will be able, without problems, to claim a position to the superior court. The text presumes an effective promotion procedure that is deeply subjective allowing for a lax selection, based on an extreme subjective non-transparent criteria, of those who will have access to the hierarchical superior levels of the courts and prosecutor’s offices. That is to say, an extreme non-transparent procedure for the selection of judges / prosecutors is established, the solution blocking, for extremely unclear reasons, the career path of the magistrates who are not among those favoured by the evaluators. This manner of promotion seriously impairs the independence of the justice system from the perspective of the selection procedure of the magistrates for the superior courts, on the basis of other criteria than the strict professional and merit-based ones. The possibility to regulate the promotion procedure in question by secondary legislation is not only extremely criticisable in terms of opportunity, but also questionable in terms of constitutionality, as long as the provisions of art. 125 par. (2) of the Constitution impose the rule that the promotion of the judges fall within the powers of the Superior Council of Magistracy, under the conditions established by the organic law.

As a consequence, the promotion to the hierarchical superior level of the magistracy is to be made through an extreme no-transparent, subjective procedure (the evaluation of some documents drawn up by the magistrate representing, in fact, the opinion of the evaluators about those documents, the individual opinion being, by definition, of no objective nature) and also volatile (being possible to be regulated at will and directed depending on the interests at moment – under the circumstances in which the procedure is to be established by the SCM Regulation), a circumstance exclusively resulting in the quality of the magistracy being impaired, by increasing the level of dissatisfaction and mistrust, within the system in the first place, at the reliability and objectivity of the promotion procedure. The questionable character of the promotion procedure within the system cannot be kept only intra-professionally, its export to the media and society will lead inclusively to a decrease in trust in the act of justice (the citizen / journalist will have no reason to trust a magistrate promoted to the superior courts following a selection process that is questionable within the judicial profession).

The return to a manner of promotion on subjective criteria, that lack any form of objective control made by the magistrates, with no possibility to challenge and no predictability, will deprive the judiciary of this foundation. We draw the attention that the desired amendments related to the promotion were rejected by the General Assembly of Judges and Prosecutors with over 600 ballots against in September 2015.

In the context in which the promotion of the magistrates in non-managerial positions, according to the current regulation, caused over the years dissatisfactions among the candidates related to the quality of the subjects, the manner of dealing with the complaints challenging the evaluations, to inequalities in the tie-breaking of the candidates with various specialities, remained unsolved till the present day, the introduction in the pass mark of more subjective variables is inexplicable, total non-transparent variables, as: hundreds of various evaluation commissions at the national level, subjective and unpredictable criteria, the inexistence of a transitional rule, making use of a mark obtained following the evaluation of the documents drawn up within a speciality when promoting in another position with another speciality, the impossibility to establish a common base for the evaluation of the magistrates who effectively carry out their activity in courts/prosecuting units and of the magistrates  seconded to the Superior Council of Magistracy, the National Institute of Magistracy, the Ministry of Justice etc., although they have the possibility to candidate for the same position (the last years’ experience showing that the tie-breaking mark is at  the level of hundredths), and the list of problems remains open.

According to the Fundamental Principles on the Independence of the Judiciary, adopted by the Seventh United States Congress, approved by the resolutions of the General Assembly of the United Nations Organisation no. 40/32 of November 29th,1985 and 40/146 of December 13th, 1985, „ Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives” (point. 10). Moreover, point 13 provides that „ Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.” The Committee of Ministers of the Council of Europe recommended to the governments of the Member States to adopt or strengthen the all measures needed in the promotion of the role of the judges, in an individual manner, but also of the magistracy, as a whole, with the view to promoting their independency applying, in particular, the following principles: (…) I.2.c. „any decision referring to the professional career of the judges has to be based on objective criteria, the selection and promotion of the judges has to be based on their merits and in accordance with their professional training, integrity, competence and efficiency”.

Any „objective criteria” seeking to guarantee the merit-based selection and career of the judges, by taking into account the professional training, integrity, ability and efficiency” can be defined only in general terms. Firstly, a content is sought to be offered to the general aspirations for „merit-based appointment” and „objectivism”, aligning the theory with the reality.

The objective standards are deemed necessary not only to exclude the political influences, but also in order to prevent the risk of favouritism, conservatism and of „nepotism”, existing to the extent in which the appointments are made in an unstructured manner. Although the appropriate professional experience is an important condition for the promotion, the seniority in office, in the modern world, is no longer generally accepted as a dominant principle applied for determining the promotion. The public shows an increased interest not only for the independence, but also for the quality of the judiciary and especially in times when great changes occur. A possible sacrifice in terms of the dynamism may occur when the promotions are exclusively based on the seniority, which cannot be justified by a real gain in terms of independence.

Dragoș CĂLIN

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