I. The destruction of human resource pool in courts and prosecutor’s offices
Through the amendments of 303, 304 and 317/2004 laws the main goal (intentionally or not) is to obtain the decrease and loss of professionalism for the magistrates, doubled by an artificial increase of their activity and imposing of some unrealistic procedural deadlines which will jam the judiciary system. By the time the new system will be enforced the recruiting and initial professional training, in a time frame of 3 years no prosecutor or judge will occupy any vacant job.
A. Recruitment in the system (points 17-48 of the Law amending and supplementing Law no.303/2004)
1. Transforming National Institute of Magistracy from a vocational training institute into a 4-year program, which consists of pursuing for 3 years, by the justice auditors of some training programs in different institutions (including 6 months in penitentiary) and liberal professions. This extended program will have a negative impact due to the following considerations:
- A four-year hiatus is created between the learning of theoretical knowledge while in the university and the period of application of this knowledge in practice in the professional field.
- The future judge or prosecutor, during the National Institute of Magistracy, will have contact with the court or the prosecutor’s office only 6 months in 4 years. Moreover, between the period during which the auditor will perform an internship in the courts or at the prosecutor’s office and the time of appointment as a judge or prosecutor, there will be a gap at least 2 years (enough to forget what he learned during that internship) as a conclusion this kind of training will have no positive impact on the professional training of the future magistrate.
- Exposing the future magistrates to the criminal environment through the two stages of 6 months in prisons and law offices. It also offers the opportunity to establish the influence of lawyers, from offices where the future magistrates will perform their trainings (no criteria have been established for the selection of these privat office), on judges and prosecutors (it must be kept in mind that the final mark and the future of the professional career of the magistrates will depend of the assessment made by that lawyer).
- For the last year of the university, the institutions in which they will perform their internship are not mentioned by the law
- The National Institute of Magistracy final exam becomes a subjective assessment and lawyers are elected in the evaluation committees.
- The appointment for the position of judge or prosecutor, is performed after the graduation, thus that throughout the time spent in the institute, the auditor does not know what profession will have. Consequently, National Institute of Magistracy will not be able to develop a real training program as the trainees will find out the profession only after graduating from the institute.
- Due to unrelated modifications , in fact it is not clear how it will be organized the graduation exam, since the Section for Judges of the Supreme Council of Magistracy appoints a commission composed of 5 judges, one lawyer and a university professor, and the Section for Prosecutors of the Supreme Council of Magistracy appoints a commission composed of 5 prosecutors, a lawyer and a university professor, although court auditors will opt for a career judge, respectively prosecutor after passing the exam (and depending on the final exam grade). So, who examines who?
- Last but not least, the increase of training period, from 2 to 4 years, will cause the loss of the most talented in each generation of graduates. Given the low amount of the scholarship offered to auditors of justice and the training period increased to 4 years, the best of law graduates will turn to professions that can bring them income that is directly proportional to their academic achievements in a shorter time. By this decision will benefit professions such as lawyers or notary offices, which will attract the most valuable graduates of the law universities in the country, offering them a much higher income than that offered in the National Institute of Magistracy, as well as the possibility to carry out practical activities from the first day of their carrier, and not after 4 years.2. Increasing the trainee period to 2 years, and significantly reducing competence of the trainee prosecutors, who will no longer be able to solve any criminal cases, but only to issues advisory opinions.
3. The capacity exam becomes subjective, 50% from the final grade consisting in the evaluation of the „professional portfolio”.
B. Effective promotion at higher courts and prosecutors’ offices (paragraphs 58 to 63 in the Law for amending and completing the Law no. 303/2004)
- The promotion is based on absolutely subjective criteria, as following: “activity assessment and the conduct in the last 3 years “. In particular, it is not clear what the assessment of the conduct is, taking into account the fact that the “very good” rating must be obtained at every evaluation in order to promote, one of the criteria considered is that of the quality of the activity, and any inappropriate conduct would constitute a disciplinary offense, which would disqualify the candidate automatically.
- It is obvious that through these changes a controlling system for promotions through the ranks is established, having the main purpose of recruiting only certain individuals to the appeal courts, thus indirectly influencing the solutions in the appeal procedures.
C. Introduction of the possibility for voluntary suspension from the magistrature (paragraph 112 from the Law for amending and completing the Law no. 303/2004)1
- The judge or prosecutor may be suspended from the magistrature in order to serve as a member of the Government, during the term of office, or may be suspended voluntarily for a period of up to 3 years.
- This creates the possibility for magistrates to carry out other duties, without becoming incompatible with their appointments. Such a situation may favor corruption in the system (eg. the magistrate who performs “certain actions” or decide “certain measures or solutions” is suspended voluntarily engages or performs another activity remunerated by an entity controlled or influenced by the “beneficiary” of the magistrate’s provisions).
- Such provision creates, among other negative effects the possibility for magistrates to evades professional activity, suspending (for short periods) whenever the volume of activity and the amount of assigned work increases or when the allocated cases are difficult or very important. Moreover, it emerges from the regulation that the Supreme Council of Magistracy only acknowledge the suspension, does not have decision-making power over the issue, the decision belonging exclusively to the magistrate, and there is no possibility to censor it.
- The consequences of such a provision are extremely dangerous to the stability of the judicial system. Nothing prevents the suspension of all judges in a court or every prosecutors in a prosecutor’s office with disastrous consequences. If in small units it is possible to prevent such a situation by delegating magistrates from other units to the main courts or important prosecutor’s offices this is impossible.
D. Amending the 20 years of service pension not considering the age threshold (paragraph 145 in the Law for amending and completing the Law no. 303/2004).
- Around 1,000 to 1,500 magistrates (out of 6500) benefit from these provisions, and taking into account the fact that the pension will substantially exceed the amount of the wage rights of the active magistrates exists a high probability that all these magistrates will retire (we mean people of age between 44-48 years). They are encouraged to leave the magistrature at the peak of their career. As per comparison a similar action in the police ended with disastrous results.
Prosecutor Bogdan Ciprian Pîrlog
Prosecutor’s offices attached to Bucharest Tribunal