Regarding the Justice Minister’s proposal of the review of justice laws even though this is a very commun subject, in fact, it requiers an extremely technical analysis.
- In view of the European legal framework
The Consultative Council of European Judges, through the 55th alin. of the third Notice recommends as a general principle that the judges must be exempted of any liability concerning the dirrect complaints against them regarding the goodwill exercise of their function. The legal errors, related to assessing and law enforcement, or to evidence assessment, either related to the jurisdiction or to the procedure, must be corrected by way of appeal; other judicial errors which cannot be amended in that manner (including the excessive delay) must lead at the most to a claim against the State of an unhappy litigator.
European Charter on the Statute for Judges, in the 5.2th alignement, emphasizes the need to restrain the civil liability of the judges to the state’s indemnification for „gross and inexcusable negligence” using legal procedures and having the prior agreement of an independent authority based on a pertinent legal reprezentation (such as the represented one at the 43th aticle of The Opinion of CCJE No 1/2001). Furthermore, with regard to the material liability of the judge, the Charter states that the State should provide the compensations for illegal damages incurred following a decision of the judge or due to the way of exercising his office. Therefore, the State is the constant guarantor to te victim for demage compensation.
By stating that, this State guarantee shall be applied to the damages incurrend in a illegitimate way following a decision of the judge or due to the way of exercising his office, the Charter does not necessarily refer to the wrong nature of the decision or the judge’s behavior, but rather insists on the damages arising thereof or illegally incurred. This is perfectly compatible with the liability that doesn’t rely to the judge’s error but based on the unusual, special and serious character of the damage that arrises from his decision or from his behavior. The meaning of this emerges from a particular considerantion to the fact that the judicial independence of the judge should not be vitiated by a civil liability regime.
In fact, the Charter states that, when the damage that the State has to ensure is the result of a gross and inexcusable ignorance of the rules governing the judge’s activity, the Statute can provide the State the possibility to require the beneficiary judge to reimburse the compensation for the reimbursement, by a jurisdictional action, within the limits of the Statute.
The need for a gross and inexcusable error, the jurisdictional nature of the repayment action must provide significant guarantees to avoid an eventual deviation of the procedure. (The European Charter on the Statute for Judges).
Without affecting the disciplinary procedures or any right of appeal or State compensation, according to the national law, the judges should have personal immunity towards civil suits intended to obtain material damages for inappropriated acts or omissions made in the performance of their judicial function. (Basic Principles on the Independence of the Judiciary, adopted by The Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan, from 26 august to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985).
- European standards
Consultative Council of European Judges (CCJE) – Opinion no. 18 (2015) “The position of the Judiciary and its relation with the other powers of state in a modern democracy”
The Judiciary, just as the other two powers of state, provides a public service. It is self-evident that it has to be held responsible to the society it serves. The judicial authority needs to be exercised in the interest of the rule of law and of those seeking justice. Accordingly, the Judiciary is confronted with the task of proving the other powers of state and society in general the utility in whose service it has dedicated its competencies, its authority and its independence. The beneficiaries of justice are increasingly demanding a more efficient Judiciary. A better access to justice is regarded as increasingly important. The efficacy and the accessibility are elements that demonstrate the “responsibility”. The CCJE admitted the existence of these trends on other occasions as well. When it notes that the judiciaries in democratic systems have to produce justice of the highest quality and with adequate responsibility, the CCJE is emphasizing an aspect of the judicial “responsibility” that needs to be provided to society in general. In recent years, the public services have evolved to become more open and have accepted the fact that they need to provide the public that they serve with explanations that are more thorough. Consequently, the concept of responsibility towards the public has become increasingly important in the overall setting of the public activities. A public agency will be seen as “responsible” if it provides explanations for its actions and, equally important, if it assumes responsibility for them.
This accountability is as vital for the Judiciary as it is for the other powers of state because the Judiciary, just as the others, has public service as its main objective. Additionally, if a careful balance is maintained, the two principles, of judicial independence and of accountability, are not irreconcilably opposite. In the judicial sense, “accountable” needs to be read as being held to account for one’s actions, in other words to indicate the reasons and provide explanations for the decisions and the conduct in relation to the cases the judges are called to adjudicate. “Accountable” does not mean that the Judiciary is responsible or subordinated to another power of state because this would contravene its very constitutional role of being an independent body, whose function is to adjudicate disputes in a way that is impartial and in accordance with the law. If the Judiciary were “responsible” to another power of state, as in respond or be subordinated to it, it would follow that in those situations in which the other powers of state are involved, the Judiciary would not be able to fulfil its abovementioned constitutional role.
The accountability of individual judges and the Judiciary, as a whole, is twofold. First, they are responsible to the private individuals that are engaged in the particular judicial proceedings. Second, they are responsible to the other powers of state and, through them, to society in general.
There are multiple forms of accountability. First, the judges are accountable for their rulings through the appealing procedure (“judicial accountability”). Second, the judges have the duty to act transparently. By organizing public hearings and by providing reasoning in the publicly available (save for exceptional circumstances) rulings, each judge provides the justice seekers with arguments for their actions and decisions. At the same time, the judge provides justifications for his or her actions to the other powers of state and the society in general. This type of accountability can be described as “explanatory accountability”. Third, if a judge acts improperly, (s)he will be held liable in a more rigorous way, for instance by being subject to disciplinary procedures and, as the case may be, to criminal prosecution. This is called “punitive accountability”.
As far as civil, criminal and disciplinary liabilities are concerned (what was previously called “punitive accountability”), the CCJE stresses that the main remedy for the judicial errors that do not implicate bad faith has to be the appealing procedure. At the same time, in order to protect the independence of justice against improper influences, a great deal of attention has to be paid when setting up a framework for the criminal, civil and disciplinary liability of judges. The tasks of interpreting the law, weighing the evidence and finding the facts that are undertaken by a judge in ruling on the cases before him or her should not give rise to his/her civil or disciplinary liability, save for situations when his/her bad faith, malice or gross negligence have been proven. In addition, when the state is ordered to pay damages to a party due to the faulty administration of justice, it is the state, and not the party, who holds the power to determine, through judicial action, the civil liability of a judge.
European Commission for Democracy through Law (Venice Commission). Republic of Moldova Amicus Curiae Brief for the Constitutional Court on the right of recourse by the state against judges (Article 27 of the Law on Government Agent no. 151 of 30 July 2015) adopted by the Venice Commission at the 107th Plenary Session (Venice, 10-11 June 2016).
As far as the procedure of holding judges liable, initiated because of a decision by the Court, keeping up with the Court’s jurisprudence can prove to be a difficult task. The Court has repeatedly held that the Convention is a living instrument that has to be read in light of the latest developments in society. The way in which the Court makes use of the living instrument doctrine makes it difficult for domestic courts to anticipate the rulings that are to be rendered in its pending cases. The contested legal issue may be a novel one or specific to a certain jurisdiction so that the existing jurisprudence of the Court does not provide clear guidance for interpretation by the national judge. The Court’s jurisprudence can be more or less rooted or evolving, depending on the legal issue and the affected rights.
The core issue here is the way in which requests for a more extensive accountability of the Judiciary are dealt with, while safeguarding the fundamental principle of the independence of judges.
Article 66 of the Recommendation CM/Rec(2010)12 weighs up the independence of a judge and his/her accountability as follows: “The interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to civil or disciplinary liability, except in cases of malice and gross negligence.”
Statement of Principles of the Independence of the Judiciary by the Conference of Chief Justices of Central and Eastern Europe, Brijuni, Croatia, 14 October 2015
Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State in accordance with national law, judges should enjoy personal immunity from civil suits and immunity from paying indemnification, based on allegations of improper acts or omissions in the exercise of their judicial functions. No judge should be subjected to criminal proceedings for criminal conduct without the withdrawal or waiver of the judge’s immunity. However, because no judge is above the law, whenever a judge engages in criminal conduct, the waiver of his immunity should be forthcoming.
ENCJ Report 2013-2014 “European and International Standards for Independence and Accountability of the Judiciary”
The independence of the Judiciary as a whole and that of individual judges lie at the heart of the rule of law. Without it, the Judiciary cannot fulfil its functions. However, independence does not stand on its own. It must be recognized that independence is directly linked to accountability. A Judiciary that claims independence but which refuses to be accountable to society will not enjoy the trust of society and will not achieve the independence for which it strives.
ENCJ working group Report on Liability 2007-2008
Generally, State responsibility mechanisms also exist to correct errors caused by “defective or abnormal functioning” of the justice service. Any deficiency that translates to the justice service being unable to fulfil its mission generally constitutes an error. By way of example, the main causes are unreasonable delays in handling procedures, serious negligence, denial of justice, judicial error, the duration of detention etc.
In certain countries, in such cases where civil errors can be proved against judges, those judges can be declared civilly responsible for the consequences of their decisions independently and outside of the framework of recourse actions. Civil responsibility is of the classic type. A civil error must be present in judgement or the exercise of professional functions and result in damages.
The issue of civil responsibility poses the question of insurance for judges who, although independent in exercising their functions, remain an agent of the State, and thus of its guarantee. Since 1988, Spanish and Italian judges have been insured.
Nevertheless, in no case should civil responsibility be a way of destabilising judges responsible for a case or to either directly or indirectly attach their independence. Moreover, final jurisdictional decisions must retain the authority of the issue being judged after all means of appeal have been exhausted.
Notice no.3 of the Consultative Council of European Judges (CCJE)
With regards to the criminal liability, CCJE considered that judges have to be held accountant to the ordinary laws for crimes committed outside their legal function; criminal liability does not have to be applied to judges for errors unintentionally committed while performing their duties.
Regarding the civil accountability, CCJE considered that, with respect to the principle of independence, correcting judicial errors (both related to jurisdiction, substantial or procedural) has to be done through a corresponding system of appeals (with or without the Court permission, any correction in administrating justice – including for instance the excessive delays – are addressed exclusively to the state and it is not appropriate for a judge to be exposed – regarding their job assignments – to any personal accountability, even as damages owed to the state, unless it the error is intentional.
The Decision of the Court – September 30, 2003 Gerhard Kobler vs. Austria. The claim asking for a preliminary decision: Landesgericht fur Zivilrechtssachen Wien – Austria. Equality of treatment. Cause C-224/01.
”Any possible liability of a judge towards the victim is in conflict to the principle of the independence of judges”.
- Situation in the member states of European Union
- a) In the following states, the judge has (personal) immunity – the state is responsible for damages: United Kingdom, Scotland (with some exceptions for local judges – judges of peace, clerks of court and prosecutors).
- b) In the following states, the judge is responsible only in the case of certain crimes: Latvia, Estonia
- c) In the following states, the judge is responsible for decisions taken with bad faith or extreme negligence: Sweden, Germany, Croatia, Portugal (regress action is only undertaken with the notice from the Supreme Council of Magistrates), Italy, Serbia, France (state action against a magistrate that committed a personal mistake regarding the public service is optional and has never been used), Austria (except the Supreme Court Judges that have immunity, there is a professional insurance system)
- d) In the following states, there is no magistrate liability ruled: Poland, Cyprus
- e) In Hungary there is a complex form of liability
- From the analysis upon the suggestions made by the Ministry of Justice, we can conclude the intention is to state one of the harshest regimes in Europe of juridical liability for magistrates, placing Romania only alongside Hungary from this perspective.
- From the above stated, corroborated with the situation in other countries, first of all it needs to be stated that in the hypothesis of a harsher liability (because such liability already exists currently) there is the need for ruling a system of insurance for compulsory professional insurance, to lower the risk of affecting the independence of the magistrate in making the actual decisions in a case.
- Third, we need to stress that in neither of the European states above mentioned, a recourse of the state against the magistrate is not compulsory (as the Ministry of Justice suggests) but rather is optional and depends on a series of circumstances of the case in concreto.
Also in the states where one such mechanism already exists, it has never been set in motion for the exact reason to actually enforce the independence of the magistrate.
- Fourth, in order for such suggested mechanism not to undermine the principle of the independence of the magistrate, it is required to make a clear distinction and define the notions of extreme negligence or ill faith.
For this matter, the Supreme Court in Italy, in similar circumstances, stated that:
– Punishable negligence requires a quid pluris over simple negligence, it needs to be presented as inexplicable, with no relation to the particularities of the situation that would make such negligence understandable, without giving an explanation for the error of the judge (Cass. 6950/94)
– Extreme breaking of the law determined by punishable negligence does not exclude the processual laws, it is not a reason for liability that moment of performing the judicial duties of a judge regarding the identification of the content of the judicial law and the applicability of the law to a specific situation, even of the solution is debatable or poorly explained, because in this way it would come to a revising of the case that is not allowed for a interpretative or evaluative judgement, while a lack of deciding over a decisive issue being a source of liability. (Cass. 17259/02)
- Fifth, it is imperative to state the fact that patrimonial liability that already exists is in correlation to the European standards, and bringing up the issue of the number or the amount of damages given as a result of convictions the Romanian state got at ECHR does not represent a justifying cause to aggravate the material liability of the magistrate, considering the fact that most of the times the judicial error is not the result of a single action/inaction, but rather the effect of a summing up of factors and incidents that involves also the duties of other powers of the state of law, legislative and executive power.
Thus, according to statistics (see the study Hotărârile CEDO în cauzele împotriva României. Analiză, consecințe, autorități potențial responsabile ECHR decisions of cases against Romania. Analysis, authorities with potential liability), until December 31st 2014, the legislative power is responsible in 76,82% of cases in which a conviction decision was given (769 cases), the judicial power in 57,84% (579 cases), Public Ministry for 19,48% (195 cases), and Constitutional Court for 0,39% of convictions (4 causes).
Not least, any legislative intervention with the possibility to create a suspicion of pressure on the judicial system must be heavily based, so that it removes any external interference factor as the objective being precepted as threatened see ENCJ 2013-2014 report on Independence and liability of the judicial system – European and international standards regarding Judicial Independence and Liability.
- Sixth, we stress out the demagogy of this legislative proposal, considering the conditions that the equality between the three powers of the state is not respected. Thus, we notice the fact that in Romania there is no specific procedure for recovering the damages caused by ministries or members of the parliament that are convicted of a penal crime for crimes of corruption, some of them getting an early release without paying in full the damage caused directly to the State.
There is no equivalent system of liability for members of the other powers, members of the parliament having no liability whatsoever for the laws that got invalidated at ECHR (with the most notable example being the law for restitution of properties), and members of the government have no form of liability for activities that cause negative consequences, including at ECHR (most notable example being the situation in the penitentiary, where members of the government know the issue for years and the only initiative to solve that was issuing a law of pardon in the form of an Urgent Government Ordinance 13/2017).
The convictions at ECHR are not determined just by the conduct of some magistrates, but have a fundamental cause, in most cases, of poor laws, sometimes considered to be constitutional by the Constitutional Court (see for example, ECHR (see, for example, ECHR judgments in Sabou and Pîrcălab v. Romania, 28 September 2004, Dumitru Popescu (No 2) v. Romania, 26 April 2007, Marcu v. Romania, 26 October 2010, Bălteanu v. Romania, 16 July 2013). In such cases where the judges’ decision was based on a national legal rule not in conformity with the European human rights law, maintained in the normative fund by a decision of the Constitutional Court, we ask whether the material liability should not be exclusive (or priority, at least) parliamentarians and judges of the Constitutional Court?
It is surprising that the initiative of the Minister of Justice, a former judge of the Constitutional Court, to deviate precisely from its constant jurisprudence on matters of magistrates’ liability. For example, by Decision no. 633 of November 24, 2005, it was stated that “the rule that the injured party can bring an action only against the State and not against the magistrate who has committed the judicial error offers wider possibilities for the recovery of a possible right to compensation. Thus, making the recognition of the right to compensation exclusively for the judicial error results in the alleviation of the burden of proof, in the case where, alongside the judicial error, the bad faith or serious negligence of the magistrate should be proved, constitutional requirements for the accountability of the follow. Moreover, conferring the status of debtor of the wage-exclusion obligation exclusively to the state is likely to eliminate the creditor’s risk of not being able to redeem his claim, being in principle the state is always solvable.”
- Finally, it must be said that the establishment of a regime of extremely harsh liability compared to the other European states (with the exception of Hungary), where the rule of law works, without any of the previously exposed guarantees (clarification of the notions of bad faith and serious negligence; professional liability insurance, etc.) will lead to the creation of a new type of magistrate, the fearful, timorous magistrate.
If the Romanian society needs a fearful magistrate who, when rendering decisions, would always reflect on the possibility of somebody regarding his/her conduct as being susceptible of patrimonial accountability, then the proposals put forward by the Minister of Justice accomplish just that: they bring in a constraining variable in the decisional process.
The argument that the measures are necessary for avoiding abuses is not valid. To the extent that there are abuses presently committed by magistrates, there are mechanisms in place through which they can be held liable, including criminally. There are well-known cases of magistrates that are subjected to various stages of criminal prosecution, as well as magistrates that are sanctioned disciplinarily, according to the Judicial Inspection Report that includes 2016.
It has to be noted that the proposed measures are susceptible of “supervising” the reasoning of the judge/magistrate, thus creating a risk that the measure would interfere and censure the very prerogative that is central for the judge/magistrate, namely to adjudicate, for the mere fact that one of the parties or the society is unhappy with a certain ruling (by way of example, see, inter alia, S v. Makwanyane – Constitutional Court of South Africa, in a famous decision regarding the unconstitutionality of the death penalty, rendered despite the fact that a large part of the population had voted for the penalty).
 See the file regarding the Romanian Judges’ Forum, via judge Georgeta Ciungan, Focsani City Court, regarding to the civil liability of the magistrates, available at the web link http://www.forumuljudecatorilor.ro/index.php/archives/2702 [last consulted October 17, 2017]