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LIABILITY OF JUDGES AND PROSECUTORS - THE JUDICIAL INSPECTION

The Superior Council of Magistracy (SCM) protects the independence of judges and prosecutors. The correlative to this independence is the disciplinary liability of the magistrates The SCM is the representative body of the judicial authority and it is the guarantor of the independence of justice. The SCM is independent and obeys only to the law in its activity. (Arts. 133 Constitution and 1 !aw 31"#$%%&'. The SCM protects the professional reputation of (agistrates against any act liable to affect their independence or i(partiality in ad(inistering justice. A (agistrate who considers that his professional independence i(partiality or reputation are being affected (ay address the SCM which (ay order a chec) by the *udicial +nspection on the notified aspects. (art. 3% !aw 31"#$%%&'. The SCM prepares )eeps and updates the professional records of (agistrates having a database concerning their professional activity (art. 33 !aw 31"#$%%&'. The disciplinary action (ay be e,ercised by *+ or the Minister of *ustice the Chief *ustice and the -eneral .rosecutor of the /igh Court (see the brief report'0 either way preli(inary chec)s (ade by the *+ are (andatory. The SCM has the role of disciplinary court in (atters of disciplinary liability of judges and prosecutors (art. && 1 $ !aw 31"#$%%&'.

The Judicial Inspection (JI) functions under the principle of operational independence ithin the Superior Council of Magistracy

The *+ functions as a body

ith legal personali ! within the SCM1.

Annual current e,penses and capital budgets of the *+ are assured fro( the State budget (art. 2&$ 1 " !aw 31"#$%%&'0 *+ has its own head3uarters and its own ad(inistrative body0 *+ is run by the chief4inspector helped by a deputy chief4inspector appointed for 3 years through a contest organi5ed by the SCM (art. 2&3 1 1 43 !aw 31"#$%%&'0 The chief4inspector and his deputy (ay be revo)ed only by the SCM6s plenu( in case of not fulfilling or wrongfully fulfilling their (anagerial attributions. The decision is ta)en by the .lenu( on the grounds of the annual independent audit report and the decision (ay be challenged at the ad(inistrative section of the /igh Court of Cassation and *ustice. (art. 2& 3 and 2&& !aw 31"#$%%&'0

Following to the amendments brought to the Law 317/2004, amendments that entered into force starting with 25 Ma 2012!

The *+6s inspectors are appointed by the chief4inspector by contest0 the organisation and the functioning of the +nspection are ruled by a regulation approved by the chief4inspector. 7n the proposal of chief4inspector the rules for perfor(ing the wor)s of the inspection are endorsed by a 8egulation adopted by the SCM6s plenu( published in the 7fficial *ournal. (art. 2&31 1 & !aw 31"#$%%&'0 The SCM as any other person (ay file a co(plaint with the *udicial +nspection (in writing and reasoned' about the disciplinary breeches co((itted by judges and prosecutors. (art. &9 1 $ !aw 31"#$%%&'.

the activity of *+ is ruled by the principles of legality i(partiality and transparency but also by the principle of the independence of judges and prosecutors and obeying the principle of res iudicata (clai( preclusion'0

The judicial inspectors carry out po ers of anal!ses" #eri$i%a ion an& %on rol (art. 2&1 !aw 31"#$%%&': The (ain attributions of verification of the *+ consist in: verifications in courts (on rando( distribution of files and continuity on giving drafting and co((unication of decisions on sending the files to courts or e,ecuting the judg(ents'0 verification in prosecutor!s offices (on appoint(ent of prosecutors according to their speciali5ation the principle of continuity the independence of prosecutor in his conclusions in front of the court the ti(eliness the 3uality and the co((unication of procedural acts'0 verifications on the management efficiency in courts and prosecutor!s offices0 verifications of the complaints sent to the SCM on the inappropriate activity or behaviour of judges prosecutors of assistant (agistrates of /igh Court0 verifications for the endorsement of house search" custody or preventive detention of judges prosecutors of assistant (agistrates of /igh Court by the Sections of the SCM0 verifications for the protection of professional reputation0 preliminary chec#s disciplinary matters0 and preliminary investigations in

The controls carried out by the +* have focused on two coordinates: Management controls a wide (anage(ent verification project has been initiated in $%%2 in order to analyse the way the leading judges and prosecutors fulfil their tas)s of (anage(ent planning organi5ation coordination control4adjust(ent and co((unication0

;etween $%%24$%1$ controls have been (ade on this topic at all Courts of Appeal and at the /igh Court of Cassation and *ustice0 <ollow4up controls have deter(ined if reco((endations have been properly i(ple(ented0 the

Thematic controls focusing on specific do(ains co(part(ents or branches of courts6 activity0 These controls have been decided following the observation of so(e dysfunctions or different interpretations of procedural nor(s or regulations being li(ited at so(e deter(ined activity do(ains0

The complaints of petitioners and those initiated e' o$$i%io by the SCM This activity ai(ed at establishing the breeches of judges6 and prosecutors6 obligations and responsibilities0

<ollowing the +*6s analyses several proposals were sent to the SCM6s Sections in order to initiate so(e controls or to notify the for(er =isciplinary Co((issions for the disciplinary breeches. $isciplinary proceedings The disciplinary action for the breeches co((itted by a judge is ta)en by the *+ (through a judicial inspector ex officio or following the co(plaint of any person' by the Minister of *ustice or by the Chief *ustice while the disciplinary action against a prosecutor is ta)en by the *udicial +nspection (through a judicial inspector' by the Minister of *ustice or by the -eneral .rosecutor of the /igh Court (art. && 1 3 !aw 31"#$%%&'. The (inister of justice the Chief *ustice or the -eneral .rosecutor of the /igh Court (ay ta)e disciplinary action notifying the *+ with the disciplinary breeches (art. &9 1 1 !aw 31"#$%%&'. % preliminary chec# carried out by the *+ is (andatory in order to ta)e the disciplinary action (art. && !aw 31"#$%%&'. ;eing notified by the SCM other persons or ex officio the judicial inspectors perfor( a preli(inary chec) in order to establish whether there are clues of a disciplinary breech. +f there are no clues the judicial inspector closes the case hi(self. >here the *+ was notified by the (inister of justice Chief *ustice or the -eneral .rosecutor the inspector (a)es only a proposal to decide whether to close the case (infor(ing the applicant and the investigated person' to continue the preli(inary chec) or to start the preli(inary disciplinary investigation (cercetare preli(inar? prealabil?'. (art. &9 1 &49 !aw 31"#$%%&'0 &reliminary disciplinary investigation. 7n the proposal of the judicial inspector to start the preli(inary disciplinary investigation they (inister of justice the Chief *ustice or the -eneral .rosecutor (ay decide to start the preli(inary investigation (art. &9 1 24" !aw 31"#$%%&'. The results of preli(inary investigation are sent by the *+ to the holder of the disciplinary action who (ay

decide to re3uest their co(pletion or to ta)e the disciplinary action in front of one of the sections of the SCM0 The disciplinary action is upheld in front of the SCM6s section by its initiator (the Minister of *ustice the Chief *ustice or the -eneral .rosecutor' or by a designated representative. +f the section of SCM having the role of a court finds that notification is well founded issues a decision applying one of disciplinary sanctions stipulated by the law in relation to seriousness of the disciplinary offence co((itted by (agistrate and to his#her personal circu(stances. the the the the

An appeal (ay be lodged against the decision within 19 days fro( notification at the /igh Court of Cassation and *ustice. (art. &" &@ !aw 31"#$%%&'0 =uring the disciplinary proceedings the section of the SCM ex officio or at the proposal of the judicial inspector (ay decide to suspend the (agistrate fro( office. =uring the disciplinary investigation the re3uest for a special pension is suspended (art. &@1 !aw 31"#$%%&'.

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