[ad_1]
JRC raises confusion over five judges
The activities of the Supreme Court were blocked in vain by the Court of Appeal. This is at least what the Constitutional Court of Romania (RCC) says in its judgment of 7 November on the composition of the five judges.
According to the document, judges of the Supreme Court must ensure "immediately" the creation of the new complete, and all members are required to draw lots. "The High Court of Cassation and Justice must immediately ensure the constitution of new judges by drawing by lot the five members who compose them and not only the place of the member considered as a member of the law." In addition, the draw will be made by all the judges responsible for the respective sections ", according to the majority opinion. What happened two days after the RCC decision?
The reasoning of the CCR published Thursday does not clarify definitively the procedure of establishment of these reports. In fact, in the following paragraph, the CCR judges aggravate the confusion with a vague provision that seems to give a role to the Judicial Section of the Supreme Judicial Council in the designation of these supplements. The text seems to invest the MSC in the development of a regulation to design these supplements and ensure their implementation. "Similarly, given the constitutional behavior of the High Court of Cassation and Justice sanctioned by the Board of Governors, which is not able to provide guarantees as to the correct restoration of the legal framework governing the operation of the five judges "The Supreme Council of the Judiciary – the Judicial Section, on the basis of its constitutional and legal prerogatives, the obligation to identify the solutions at the level of principle regarding the legal composition of the chambers of the courts and to ensure their implementation, "says the text of the motivation.
In addition, the CCR stresses that the provisions of this decision apply to current and future cases. "The Court notes that this judgment is applicable from the date of publication, both in pending cases, in particular in pending cases and in pending cases, to the extent that the defendants are still within the prescribed period of time. the exercise of appropriate extraordinary remedies, as well as future situations, "reads the statement.
In October, the mode of formation of the 5 finishes was challenged in two ways, both before the Constitutional Court and through a lawsuit in the Bucharest Court of Appeal. In November, the CCR decided that there was a constitutional conflict between the Parliament and the Supreme Court and called for the immediate formation of the group. The Bucharest Court of Appeal quashed the appeal alleging that Supreme Court judges had to wait for the reasoning. Thus, at this stage, pending files on panels of 5 judges are blocked.
Legal conflict between Parliament and the Supreme Court
"It is considered that Decision No. 89/2018 has the value of an explicit refusal of the Superior Court of Cassation and Justice to comply with the provisions of Article 32 of Law No. 304 / 2004 on the composition of the five judges and to extend, without foundation, their functioning in the above manner.More serious is the fact that the operation of the five judges is extended so as to contradict the provisions of Article 32 of Law No 304/2004, including in the form prior to Law No 207/2018 as from the entry into force of Law No 255/2013, which was also confirmed by Decision of Constitutional Court No. 68 of 22 February 2018, placing the Supreme Court in a situation where the composition of the five judges was and continues to be established outside the rules established by the legislator and non-compliance with constitutional standards " , motivates the RCC.
The CCR considers that the non-application of the law on the composition of five judges by the High Court of Cassation and Justice ", as adopted by the Parliament, in the sense confirmed by the Constitutional Court, as well as the refusal to amend it in accordance with the legal provisions, represents an overrun by the Supreme Court of its constitutional
the arrest of certain powers in Parliament. "Such a situation is likely to provoke a legal conflict of a constitutional nature, say the constitutional judges.
Separate opinion
Judges Mircea Minea and Livia Stanciu delivered a separate opinion and held that "the Constitutional Court of Appeal should have established that there was no legal conflict in this case.
Constitutional Treaty between the Romanian Parliament, on the one hand, and the High Court of Justice
Cassation and justice, on the other hand, because:
– The High Court of Cassation and Justice, through the College of Management, did not repeal the powers of the legislature, but applied within the limits of the powers conferred by law the provisions of Law no. 304/2004 concerning the judicial organization, as amended by the provisions of Law No. 255/2013 and Law No. 207/2018, concerning the composition / composition of the 5 judges, which can not be added any explicit refusal by the Supreme Court to enforce a law passed by Parliament;
– there was no conflict between the Romanian Parliament, on the one hand, and the High Court of Cassation and Justice, on the other hand, directly based on the Constitution, the exercise of powers by the Supreme Court's Board of Governors can not be legally qualified,
as the exercise of certain constitutional powers, which are not expressly stipulated in the Basic Law, but only in the Constitutional Law No. 304/2004 regarding the judicial organization, and therefore constitute legal powers;
– in fact, it appears from the judgment of the Constitutional Court that it is a classic administrative law dispute falling within the jurisdiction of a court;
– it was not possible to establish a violation of the principle of loyal cooperation between the authorities of the High Court of Cassation and Justice, the Supreme Court having not violated the powers of the Parliament, the legislature exercising its unconditional powers of law. "
Source link
