[ad_1]
Dragnea, great victory at the JRC
The motivation of the JRC in the case of panels of 5 judges throws a new bomb into the judicial system: some of them final sentences of the Supreme Court, data from 2014, it could be canceled. I can complain about the nullity of the decisions taken by the sentences of all those convicted within the time allowed for the exercise of extraordinary remedies. This could benefit the decision of RCC Elena Udrea in the "Gala Bute" case, but not in Dragnea, in the referendum case.
The Constitutional Court issued the reasoning behind the decision that it was established that the supplements of the five Supreme Court justices were illegal for the past four years.
Magistrates show that the sanction of the illegal composition of the panel is unconditional nullity and absolute acts performed by such body.
decisions produce effects only for the futurein accordance with Art. (4) of the Constitution, but applies and in case of completed cases "to the extent that the justificators are still exercising extraordinary remedies":
"The Court considers that the presence of the decision is applicable from the date of its publication, in the two cases pending, respectively. in the current casesas well as in those which have been completed to the extent that the judges still exercise the appropriate extraordinary remediesas well as future situations ", motivates the JRC (point 198 of the statement of reasons).
The extraordinary recourse to which the CCR refers is "the appeal for annulment"but it can be inserted into within 30 days since the notification of the decision of the court of appeal – in accordance with Article 428 of the Code of Criminal Procedure.
Another interesting aspect of the motivation of the CCR is that the HCCJ had to resume the draws on 5, but that shot would be the responsibility of the SCM Judges Section.
We recall that the Prime Minister, Viorica Dăncilă, has been seized of the CCR file, the leader of the PSD, Liviu Dragnea, having declared publicly that the HCCJ did not respect the new laws of justice in the case of the constitution of 5 judges .
Two categories of causes: pending and future
The RCC notes that two categories of business can be identified primarily at the level of the High Court of Cassation and Justice, as they will be reproduced below.
The first category of business is represented by those already part of the supplements of the five judges and for which the Court was not informed, but notes that a consistent and consistent approach to all aspects the procedure is necessary.
In this regard, the Court notes that four members of the five-judge panel (as well as all the alternate members) were chosen by lot, while the fifth was not randomly assigned, but by judgments. successive colleges from 2014 to date, he has been nominated as a full member of the Board of Directors and he has chaired it.
As far as these issues are concerned, the case-law of the European Court of Human Rights makes it necessary to take into account the principle of continuity of the College of Judges, explains the reasoning of the CCR. However, it can not be regarded as distinct from the legal obligation to guarantee the arbitrary composition of this group, so that, in view of these two principles / rules which apply jointly, The High Court of Cassation and Justice must immediately ensure the creation of new judgments by drawing by lot the five members of their group, and not just the place of the person considered as a member of the law.. The draw will also be conducted by all judges responsible for the respective sections.
The second category of cases consists of future cases for which the High Court of Cassation and Justice must also ensure the complete composition of the supplements. This should be done, as regards the final criminal, among all the judges in office of the section concerned, because the law makes no distinction in this respect.
No administrative act can suppress or limit the operation of the law, and it must be interpreted and applied in full conformity with its normative content.
At the same time, not to doubt the objective independence / impartiality of these supplements and not to affect the image and credibility of the Supreme Court, the organization of the lottery must be neutral , public, transparent. , in order to prevent and dispel any suspicion as to the proper conduct of the proceedings.
Where is the Superior Court of Cassation and Justice deceived?
This is also indicated in the motivation of the decision on the existence of a constitutional legal conflict between the Parliament and the High Court of Cassation and Justice in the framework of the formation of groups of judges: the conflict takes place in 2014, according to the RAC.
The Constitutional Court declares that the High Court of Cassation and Justice (HCCJ) has amended, by an administrative act, a law passed by the Parliament, denoting an opposition or a neutralization of the legislative policy.
"The Supreme Court, by way of interpretation, misinterpreted the content of the law with respect to the manner in which the members of the five-judge panel were elected and, at the same time, still interpreted, refused to accept it. immediate application of the new law.
Thus, the High Court of Cassation and Justice, as an interpretation, gave a different content to the norms of law regarding the appointment of members of the five chambers to the judiciary and expressly refused to follow their content ", indicates the reasoning.
The Constitutional Court also emphasizes that the question of the legal composition of the group of five judges is a question of procedure and that its resolution falls primarily within the competence of the judiciary.
The RCC's decision, including the two separate opinions, was published on the institution's website.
Who will be responsible for the draw of 5 judges
The CCR indicates that it is no longer possible to entrust the HCCJ to the draw, this responsibility being clarified by the Judges Section of the CMS. In other words, the draw will have to be resumed.
"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 functioning of the 5 Judges "Superior Council of the Judiciary – Judges Section, on the basis of its constitutional and legal prerogatives [art.133 alin.(1) şi art.134 alin.(4) din Constituţie, precum şi art.1 alin.(1) din Legea nr.317/2004 privind Consiliul Superior al Magistraturii], the obligation to identify solutions at the level of the principles concerning the legal composition of the chambers of the courts and to ensure their application, "said RAC.
SEE THE MOTIVATION OF THE CCR HERE
Source link
