CRISTI DANILEŢ – judecător

28/09/2014

    Arch over time:  from  10  years ago justice to justice for over 10 years

Filed under: 0. NOUTATI — Cristi Danilet @ 10:08 PM

10-ani1. Post-revolutionary changes in the justice system

A reign of terror has dominated the Romanian society in the period after the Second World War not only because of the imposition of a new political system, but rather to eliminate all legal barriers to government abuse and the other two powers. Returning to a modern and functional justice system seemed therefore as something normal after removing the dictatorship. Reform began therefore immediately after the events of ’89 and it looked both system architecture and substance of rights: it repealed the death penalty (1989), the main changes are the codes reintroduced appeal and courts of appeal (1993), there is the law of judicial organization (1992), the Court of Auditors (1992), the organization and status of lawyers (1995), a notary public (1995), insolvency practitioners (1999), bailiffs (2000), probation counselors (2000), a work of technical expertise (2000), the Industrial Property Attorneys (2000), anticorruption prosecutors and police (2002), prosecutors and police who fight against organized crime (2004), the judicial police (2004), mediation and mediators (2006), officials for Integrity (2007) etc.

2. Justice before 2004

 Obviously, the most important reform of the judiciary is the judiciary, which began 10 years ago. Let us recall how Romanian justice show up in 2003-2004: recruitment of magistrates and their promotion was made by the Ministry of Justice always led by a politician; appointment and dismissal of presidents of the courts to make the Superior Council of Magistracy proposed by the Minister (39 of the 41 heads of courts were changed during the term of the Minister of Justice in 2001-2003) and the prosecution only by Minister; assign cases to judges by the president of the court; principle of continuity of the judge during settlement of the case was unknown; no specialization of judges; information about private life of magistrates gathered by the intelligence service of minister were used to support or blackmailing them; Central Judicial Inspection of the Ministry of Justice was able to verify the judicial decision; General Prosecutor of Romania was appointed by the President of Romania on the recommendation of the Minister; prosecutor was the one who decided to arrest a person („arrest first, then make samples” was a dictum of those times); supreme court judges were appointed only for a term of six years by the President; supreme court and military courts were regulated in separate laws, although justice is declared as unique system by the Constitution; CSM was a subordinate body and led by the Minister of Justice and judges of CSM – which came only from courts of appeal and the Supreme Court – were selected by the Romanian Senate. The result of this way of organizing the judiciary, in late 2003, are disastrous: a single case with a politician convicted for corruption, only a few magistrates convicted for corruption under probation, lack of transparency, public confidence in the justice was at the level of 22%. Personally, I can say with certainty that at that time the career of judges and prosecutors were controlled by politicians and the Romanian judiciary was not independent. The justice was inefficient.

3. Justice for the period 2004-2014

Judiciary reform began with substantial legislative changes – a package of laws adopted in 2004 and amended once in 2005 (Law no. 303/2004 on the statute of judges and prosecutors, law no. 304/2004 on judicial organization, Law no. 317/2004 on the Superior Council of Magistracy.) – and was completed by the new codes adopted in the last three years. Two objectives were emphasized: independence of the judiciary and fighting against corruption. They included both TO DO LIST obligations undertaken by the Government to prepare the accession of Romania to European Union and tasks undertaken in the Mechanism for Cooperation and Verification established after our accession.

Reforms are made step by step, all 10 years. The organization and functioning of the courts is now governed by a single law (2004). We contracted a foreign loan of 110 million Dollars from the World Bank for the construction and rehabilitation of court buildings, and for writing new codes and training required for their entry into force (2006). Judges acquire the power to decide on arrest (2004). We introduce modern rules on extended confiscation (2012). A lustration was made, prohibiting to occupy leadership or CSM members positions for judges who were collaborators or agents of the former security services in communist period and prohibiting all magistrates to be collaborators, informers or agents of existing information services (2005). CSM is removed from the authority of the Ministry of Justice and created as an independent body; members are elected among magistrates who are now represented in all levels of courts and prosecutors; candidates for such positions must assume an objective plan that is presented to voters during an election campaigning; major component of the CSM is composed of magistrates, and the leadership of this body can not belong to the minister, but only a magistrate (2004, 2005). Recruitment and career development is under the authority of magistrates CSM (2004). Enlarges lower pensions and retirement age led to the departure of the magistracy of many judges and prosecutors from the old regime (2004). Now the management positions in courts and prosecutors is the result of a contest, and courts and prosecutors are led by presidents or chief prosecutors in cooperation with leading board whose members are elected by the general meeting of the court or prosecutor (2005). Files are distributed randomly (2005). Judges from a panel can not be replaced during the proceedings. The salaries of judges and prosecutors were increased (2006 and 2009). It extends tenure of judges of the Supreme Court until their retirement (2003) and occupy such a position is supporting a competition that has evolved from a simple interview with the CSM to a true test of legal knowledge, assessment instruments developed decision time and support a limited interview questions integrity (2012). The principle of specialization of judges is provided into law, and the principle of independence of prosecutors for their decisions is for the first time regulated into the law (2005). Intelligence service for judiciary is reorganized (2005) and then disbanded (2006). CSM receives responsibility tasks related to training of magistrates, clerks and inspections (2004). We draw a profile of magistrates underlying their recruitment (2005). Justice is more transparent, press offices are established in each court, there are published collections of case-law (2005). The parties have can access the information about cases via the Internet, some courts grant access password to electronic files (2013) or published official CV`s of judges (CSM Decision no. 515 of 14 June 2012 requires courts to publish a professional CV)

At the end of ten years of reform, the results are extraordinary: people above the law in the past, are now in prison, convicted for serious corruption offenses; prosecutors conduct investigations in a neutral way, destroying crime networks comprising businessmen, politicians and even judges; Judges sanctions farms; process takes more quickly. Confidence in the justice reaches 44%.
During this time justice has had to face huge challenges: increased number of cases from year to year (3.3 million cases were settled by our courts in 2013, for a 21 million citizens); increased number of laws (only in 2013 were adopted 381 laws, 1165 Government Emergency Ordinances, 117  Government Ordinances); attacks from politicians or businessmen exercised mainly through the media.

4. Justice in the next 10 years

Increasing the efficiency and quality of judicial work of the courts are immediate objectives. The use of electronic patterns is the step towards full digitization. It’s possible that in a few years the requests for summons to be sent via e-mail and so be received judgments of the courts in cases that can be resolved on the basis of documents, as is already done in some European countries. It is also expected online submission of the first processes that has a maximum public interest (hearings are already recorded audio). Obviously, training and specialization of judges shall be a priority. We need an authentic professional culture of judges: magistrates understand now their social role and participate actively in the life of the city. For several years some judges are present in the public space public explaining the principles of organization and functioning of the judiciary through the media given regular interviews or postings on blogs or social media accounts. Another important step was made in 2013 when a protocol of cooperation was signed between the judiciary and the Ministry of Education, under which judges will be present in more often among students to submit their minimal notions of law and judicial organization. Unifying jurisprudence is still a desideratum. Too younger magistrates, weaknesses in understanding the concept of judicial independence and legislative inconsistencies facilitated different interpretations as identical issues present in cases settled by the magistrates. Follow the acceptance of the concept of unique case-law in the same court and, of course, the respect for the consistent jurisprudence of the superior court could be real solutions for a „single justice” (art. 124 para. 2 Constitution ). Stare decesis will undoubtedly become a principle of our justice, thereby increasing proximity to the Anglo-Saxon started strongly by new institutions introduced in our legislation (mediation, guilty plea). Ethics and non-legal skills will receive greater emphasis in the training of magistrates. If until now focused on memorization of laws and manuals will now insist profoundly on human character of the magistrate, on his relationship with the justice partners (lawyers, mediators, clerks, etc.), litigants and the general public. Honesty judiciary is essential to the administration of a fair justice and increasing individual and system reliability. Justice system must be fast and friendly, predictable and quality. Finally justice must be lowered from the pedestal where he was isolated for decades and brought in the community where it belongs. It will become a legitimate expectation of citizens, but also a moral landmark. Justice should not only be done but also be seen to be done.

1 comentariu »

  1. Hello, Sir Cristi
    You are right but the Romanian judiciary still has much work: firstly, plenty ofjudges still do what i cut his head or … as … some … the political bent, others …and all this contrary to law and wich touches citizens.They must disappear! Honorto those who comply with the law and occupation have conscience doing right!Then, you must apply the law against those who are guilty: Romanian State can no longer pay for Judgments won by the ECHR citizens!
    Thank you for your article and wish you a good day!
    Yours sincerely,
    Ion Ciobanu

    Comentariu de Ion — 17/10/2014 @ 12:14 PM | Răspunde


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