Related to the proposal made by the Justice Department concerning the review of the „justice laws”, when the Law no. 304/2004 was adopted, the goal was the ensuring of the independence and the stability of the Judges, regardless their level of jurisdiction in which they may activate; the term of January the 1st 2008, for the taking over of the Courts’ budgets by The High Court of Cassation and Justice, was established on purely technical grounds, which makes any delay unjustifiable, at least until January the 1st 2018.
Whatever are the motives discussed in the public space, regarding the delay of the implementation of the legislator’s will, it can be easily considered that if it existed the will the make the change, it would have been done through a legislated shift of attributions or by signing a protocol between the legal entities evolved, by which the officials should be transferred / delegated / seconded and the logistics should be made available, so that all the activities continue without interruption.
According to the Article no. 25 form the Romanian Constitution, the Judges are designated by the President of the Republic and they cannot be removed from the magistracy; any proposal regarding the appointment, promotion, transfer and punishment of the Judges fall on the exclusive power the Supreme Counsel of Magistracy and the position of the Judges is incompatible with any other public or private position, except for teaching positions in higher education.
In the legal level below the Constitution, the magistrates’ statute is regulated in the Law no. 303/2004. According to this law, the Judges are independent, they obey only the law and they must be impartial. The second Chapter from the quoted Law establishes a number of incompatibilities and interdictions applicable for Judges, Prosecutors and Assistant-Magistrates.
The Fundamental Principles regarding the independence of Magistracy, in the way that they were adopted in the 7th Congress of United Nations on the Prevention of Crime and the Treatment of Offenders (Milan, august the 26th – September the 6th 1985) and ratified by the General Assembly of the United Nations through Resolutions no. 40/30 from November the 29th 1985 and no. 40/146 from December 13th 1985, provide in an express manner in the article 11 that « the duration of the commission of the Judges, their independence, their safety, their remuneration, the working environment, their retirement remuneration and retirement age are adequately guaranteed by the law »
The Minimal Standards of the Judiciary Independence, adopted by the International Bar Association in 1982, provide that « Judicial salaries and pensions shall be adequate and should be regularly adjusted to account for price increases independent of executive control. »
The Recommendation no. R(94)12 regarding the independence, the effectiveness and the mission of the Judges, adopted in October the 13th 1994 by the Committee of Ministers of the Council of Europe, emphasizing the importance of the independence of Judges purposely to enforce The Rule of Law in democratic countries and considering the Article no. 6 from European Convention on Human Rights and also the Fundamental Principles regarding the independence of Magistracy, quoted above, established, among other important measures that have to be adopted by the States, that is the duty « of the State to watch that the Status and remuneration of the Judges should be according to the dignity of the profession and the responsibilities they assume. »
The Recommendation no. CM/Rec(2010)12 a the Committee of Ministers of the State Members regarding the Judges : the independence, the effectiveness and the responsibilities (adopted by the Committee in November the 17th 2010, on the occasion of the 1098th meeting of the Ministers’ delegates) provides that « 54. The remuneration of the Judges should be established according to their mission, responsibilities, in such a manner that would make them immune to any sort of pressure meant to influence their decisions. There must be safeguards in order to maintain a reasonable remuneration in case of illness, maternity leave or paternity leave, also in case of the payment of an old-age retirement, that should have a proportional amount, reasonably comparable to the remuneration of an acting Judge. There has to be a specific legislative regulation meant to protect the Judges’ remunerations against a reduction in remuneration that would specifically target the Judges. »
The Article no. 6.4 from the European Chart regarding the Status of the Judges, adopted the year 1998, provides “ It specifies in this context that judges who have reached the age of judicial retirement after the requisite time spent as judges must benefit from payment of a retirement pension, the level of which must be as close as possible to the level of their final salary as a judge. ”, and the article no. 1.8 from the same Chat refers to the necessity of consulting the Judges “by their representatives or professional associations on any proposed change in their statute or any change proposed as to the basis on which they are remunerated, or as to their social welfare.”
The Venice Commission (The Venice Commission of the Council of Europe through Law) in the Report on the Independence of the Judicial System, adopted within the pale of the 82nd plenary session (Venice, march the 12th-13th 2010) holds that the salary of a Judge must be compliant to the dignity of the profession and the appropriate remuneration is necessary in order to protect Judges from external interference. Exempli gratia, the Constitution of Poland guarantees to all Judges a consistent salary relative to the dignity of their profession and to the scope of their duties. Their remuneration must be established according to the social situation in the country and must be comparable with the level of salaries that the high officials have, determined according to a general, objective and transparent standard. Any sort of reward, gratification, bonus including a discretionary element must be excluded.
In all these documents, principles and measures established regarding the Status and the rights of magistrates are directly related to the provisions contained within the Article no. 10 from the Universal Declaration on Human Rights and those contained within the Article no. 6 form European Convention on Human Rights, concerning to the fundamental right of any person to be judged by a competent, independent and impartial tribunal, established according to the law. Even though some of the quoted documents have only the power of recommendation, those provisions and the purpose sought in those provisions have, individually target directly legal stipulations situated in treaties to which Romania is a party and, by consequence, they enrol in the spirit the provisions found in the Articles no. 11 and no. 20 from the Romanian Constitution.
In Romania, the management of the Courts’ budget it is an attribution of the Justice Department, in consideration of it’s legal main right to distribute credits from the State Budget.
This legislated solution is contrary to the recommendations of the Consultative Counsel of the European Judges (CCEJ) and it raises a serious question on the independence of the justice system, as long as its own budget is controlled by the executive and legislative powers.
The state of underfinancing of the judicial system, the non-payment and the over-dues of the salaries and the rights related to salaries (as they are recognized through subsequent judicial decisions), the inequities from within the salary system, the refusal of the executive power to give up its financial strings regarding the Courts, by passing the management of their budget to the Supreme Court, the increasingly impingement of the main elements of the Status of Judges and Prosecutors constitute the bases of the general protest of Magistrates, back in 2009, that caused a 30days block of all judicial activities.
The financial resources may represent for the Justice Department, respectively for the executive power, an element of pressure against the magistrates and any abrupt modification of the remuneration system might become an injury factor to the independence of the magistrates.