29 MAY 2002
ROMANIA / INFO
Regarding the status of the prosecutor
The Romanian Constitution settles in article 131 paragraph 1 that the prosecutors develop their activity under the supervision of the Minister of Justice.
The content of the notion of authority draws out from the Law no. 92/1992, the law on the judicial organization where is stipulated that the minister of justice may give compulsory orders and has the power to verify the entire activity of the prosecutors, controlling in the same time their promotion in service.
Although, initially the powers of the minister were restricted, through the changes made to the law from 1997 his authority was excessively extended. Is to be noticed that in practice there were no cases in which the minister of justice used these powers.
These legal provisions on the status of the prosecutor are to be criticized on the following aspects:
These legal provisions are against the constitutional principle of separation of powers in state, because the minister is a member of the Government.
The prosecutor’s activity is submitted to the hierarchical and judicial control, as is stipulated also in the European Convention of Human Rights.
The Public Ministry formulated proposals that were sent to the bodies with legislative initiative, as follows:
A) In the process of changing the Romanian Constitution is necessary the removal of article 131 paragraph 1 regarding the authority of the minister of justice over the prosecutors.
The status of the prosecutors must be changed in order to be similar to the status of the judges: regarding the independence in taking decisions and the control over their work (beside the hierarchical control, the acts of the judges must be put only under the judicial control as was stipulated also by the Constitutional Court in several decisions).
B) In accordance with the actual constitutional settlements, up to its changing as it was stipulated in point A), is necessary the changing of the law 92/1992 on judicial organization, republished, as follows:
Regarding the authority of the minister of justice over the prosecutor
The disposals made by the minister of justice through the general prosecutor must be restricted only to administrative aspects, the right to request the general prosecutor information regarding the prosecutor’s office activity as well as the possibility of giving general guiding on the measures that are imposed for fighting the criminal phenomenon.
There must be removed the direct control or through general inspectors exercised by the minister of justice over the activity, the training and the professional character of the prosecutors. This control must be exercised only according to the constitutional principle of hierarchical subordination by the General Prosecutor of the Prosecutor’s Office attached to the Supreme Court of Justice through the inspector prosecutors.
Is imposed the elimination of the minister of justice’s right to give written disposals to the prosecutor with competence in starting the criminal pursuit.
Regarding the organization and the duties of the Superior Council of Magistracy
The Superior Council of Magistracy is a body elected by the general assemblies of the magistrates;
In the Superior Council of Magistracy there will be elected judges and prosecutors, in equal proportion with their dividing in the magistracy;
The Superior Council of Magistracy will have its own budget and a permanent executive bureau, elected in the first meeting of the new council, regarding the current duties of the council;
Among the duties of the Superior Council of Magistracy must be stipulated the one regarding the promotion, transfer or removal from office of the prosecutors at the proposal of the General Prosecutor of the Prosecutor’s Office attached to the Supreme Court of Justice;
The Superior Council of Magistracy must be a disciplinary council for the judges and for the prosecutors, in this way will be removed the Disciplinary Council that is in the framework of the Prosecutor’s Office attached to the Supreme Court of Justice;
The decisions of the Disciplinary Council in the framework of the Superior Council of Magistracy must be submitted to the legal means of attack, including by the titular of the disciplinary action;
The actual stipulations regarding the appointment of the president of the Supreme Court of Justice must be applied accordingly also to the position of General Prosecutor of the Prosecutor’s Office attached to the Supreme Court of Justice, respective to his appointment by the President of Romania, from the three proposals made by the Superior Council of Magistracy;
The magistrates will not investigated, retained, arrested, searched or sent to trial without the approval of the Superior Council of Magistracy;
Regarding the increase of the Public Ministry’s efficiency
The delegation and the transfer of the prosecutors-magistrates to be disposed by the General Prosecutor of the Prosecutor’s Office attached to the Supreme Court of Justice;
Regarding the authority increase of the leading bodies of the Public Ministry, is imposed the change of the specific names of the prosecutor’s offices, and of the specific positions, as follows:
The specific name as General Prosecutor of the Prosecutor’s Office attached to the Supreme Court of Justice to be changed by the name General Prosecutor of Romania;
The position as general prosecutor of the prosecutor’s office attached to court of appeal, to be changed in chief prosecutor;
The names as prosecutor’s office attached to the Supreme Court of Justice, court of appeal, tribunal, and first instance to be changed in General Prosecutor’s Office, Territorial Prosecutor’s Office, County Prosecutor’s Office, and Local Prosecutor’s Office.
Regarding the structure and the functioning of the National Anti-corruption Prosecutor’s Office
The National Anti-corruption Prosecutor’s Office will function in the framework of the Public Ministry, with a large autonomy and independence in comparison with the other state authorities.
Material competence –according to the ones provided by law 78/2000.
The National Anti-corruption Prosecutor’s Office will be divided in sections, services and bureaus, as follows:
The Anti-corruption Section;
The Section for Organized Criminality and Economic-Financial Crimes.
These two sections will be divided in two or several services. The services will be made up of several bureaus. It was established a structure at the level of the prosecutor’s offices attached to courts of appeal subordinated only to the Chief Prosecutor of the National Anti-corruption Prosecutor’s Office.
In the framework of the National Anti-corruption Prosecutor’s Office will be the following structures:
a) Judicial Police – made up of police officers appointed through the order of the Minister of Internal Affairs, in 30 days from the date of the written request of the General Prosecutor of the Prosecutor’s Office attached to the Supreme Court of Justice .
The nominal designation of the police officers will be made at the written request of the General Prosecutor of the Prosecutor’s Office attached to the Supreme Court of Justice from the police officers that currently work in the services and bureaus of criminal investigation, judiciary, economic etc., of the Ministry of Internal Affairs, for a undetermined period.
b) The body of specialists made up of high specialists in banking, financial, customs, commercial etc. – with a regime of appointment, transfer similar to the judiciary police.
Guarantees of independence of the new structures
The appointment of the Chief Prosecutor of the National Anti-corruption Prosecutor’s Office and of the chief prosecutors of sections, will be made by the Superior Council of Magistracy, at the proposal of the general Prosecutor of the Prosecutor’s Office attached to the Supreme Court of Justice, for a 6 years period.
The subordination of the prosecutors from the framework of the National Anti-corruption Prosecutor’s Office only to the chief prosecutor of this prosecutor’s office, that is also subordinated to the General Prosecutor of the Prosecutor’s Office attached to the Supreme Court of Justice.
The assimilation of the position of chief prosecutor at the National Anti-corruption Prosecutor’s Office to the one as deputy of the General Prosecutor of the Prosecutor’s Office attached to the Supreme Court of Justice.
The National Anti-corruption Prosecutor’s Office will have its own budget that will have to stipulate the necessary funds for the building and the technical endowments, the salaries of the employees as well as the setting up of the necessary conditions for the physical protection of the prosecutors.
In this system, the General Prosecutor of the Prosecutor’s Office attached to the Supreme Court of Justice will be the main coordinator of credits, the Chief Prosecutor of the National Anti-corruption Prosecutor’s Office will be the second coordinator, and the chief prosecutors from the prosecutor’s offices attached to tribunals will be third coordinators.
For the efficient management of the criminal investigation acts, the law must stipulate the following:
- The bank and the professional secrets are not opposable to the criminal investigation bodies;
- When there are serious clues regarding the committing of one of the crimes stipulated in the above mentioned law, for the purpose of gathering evidence or for the offender’s identification, the prosecutor may dispose for a 30 days period, the following measures:
- The surveillance of the bank accounts and of the assimilated accounts;
- The surveillance or the tapping of phones, technical achieved by the National Anti-corruption Prosecutor’s Office with technical means and own specialists;
- Access to informational systems;
- The possibility of requesting the communication of authentic or under private signature acts of banking, financial or accounting documents.
- Guarantees in order to ensure the access of the National Anti-corruption Prosecutor’s Office at the data and information detained by other authorities or institutions, indifferently of its nature and eventually, the drawing up of an own service of gathering capitalization of data;
- The right of the chief prosecutor to authorize the use of undercover agents in order to discover facts, identify authors and get the means of evidence, in the situations in which there are serious clues that a crime was committed or is about to be committed one of the crimes stipulated in the present law;
- Measures of witness and victim protection;
- The drawing up of trained panels to try corruption cases and the cases assimilated to corruption.
For the increase of the efficiency in the prosecutor’s activity, is imposed:
- The increase of the number of financed jobs, with at least 150 prosecutors and 100 administrative positions.
In comparison to 1989, in 2001 the volume of activity increased 5 times, meanwhile the number of prosecutors increased insignificantly, from around 1300 to 2000 prosecutors. Now, there are prosecutor’s offices that are in the impossibility of developing their activity normally, because from a necessary of 6 to 8 prosecutors, there are 1 to 3 prosecutors.
- The passing of the judiciary police under the functional subordination of the Public Ministry.
- The modification of the Criminal Procedure Code in the following way:
- The simplification of the procedures in the causes in which the accused or defendants admit their guilt;
- the legal recognition of the right to silence of the accused or defendants, and of their duty to tell the truth in front of the magistrates;
- the recognition of the possibility to negotiate the accusation by the prosecutor, in certain situations;
- the creation of a system of sanctions diminished for the defendants that cooperate for the solving of the case;
- the setting-up of the legal duty for the specialized state bodies to carry out technical findings, financial-accounting reported to the objectives of the prosecutors;
- the passing of the Forensics Institute in the subordination of the Ministry of Justice;
- the indication in the Public Ministry’s budget of sufficient funds for the experts fees.
The similarities between the status of the magistrates prosecutors and judges
The judges from all the law-courts and the prosecutors in the framework of all the prosecutor’s offices have the quality of magistrates and are part of the Body of Magistrates (article 42 from the Law no. 92/1992 republished).
The law-courts (first instances, tribunals, courts of appeal, and the Prosecutor’s Office attached to the Supreme Court of Justice) in which are working magistrates judges, make together with the Public Ministry (which exerts its duties through prosecutors) and the Superior Council of Magistracy the judicial authority, each one with its own duties stipulated by the Constitution and other laws (art.1 from the law no. 92/1992).
The magistrates prosecutors and judges on probation enjoy stability (art.91 from the Law 92/1992).
The general conditions for appointment of the magistrates judges and prosecutors are the ones stipulated in article 46 paragraph 1 letters a-f from the law above mentioned, and may be appointed magistrate the person who fulfils the following conditions:
· Is a Romanian citizen with the domicile in Romania and has capacity of exercising his rights;
· Has a degree in law or economic administrative law, has the stage stipulated by the law for the position in which follows to be appointed and proves a good professional training;
· Does not have criminal record and enjoys a good reputation;
· Has knowledge of Romanian language;
· Is healthy medically and psychologically, for exerting the law;
· Graduated the National Institute of Magistracy or promoted the contest or the exam for admission in magistracy organized according to the regulation approved by the minister of justice.
· The magistrates judges and prosecutors, excepting the ones on probation, are appointed through a Decree of the President of Romania, at the proposal of the Superior Council of Magistracy.
The main way of recruiting magistrates is according to article 76 from the Law 92/1992, the National Institute of Magistracy, and the admission is made based on an annual exam, according to the Regulation on the organization of the exam at the National Institute of Magistracy, approved through the Order no. 1478/C from 13th of July 2001, order of the minister of justice.
The exceptional cases in which a person can be appointed as magistrate, without an exam, are the ones stipulated in article 67 from the same law. There can be appointed as magistrates the persons who hold a doctor in law degree or had the quality of magistrate or general inspector or legal counselor in the Ministry of Justice, university teacher in law, researcher at the Institute of Juridical Research of the Romanian Academy, lawyer or notary for a period of at least 5 years, as well as legal counselors in service for at least 10 years.
The judges and prosecutors on probation are appointed through an order of the Minister of Justice with the observance of the provisions of article 46 from the Law 92/1992 (article 51 from the same law).
The judges and prosecutors on probation that did not graduate the National Institute of Magistracy will make a 2 years stage (holding after the first 6 months as a magistrate) an exam regarding the knowledge obtained in order that the judge to attend a trial stage which does not involve a decision, and the prosecutor to obtain the right to put conclusions in the law-court and to sign procedural acts, excepting the ones regarding the persons’ freedom (article 53 and article 57 from the Law 92/1992). The stage is carried out in two steps: first of 6 months and second of 18 months.
The magistrates on probation judges and prosecutors graduated of the National Institute of Magistracy, 1 or 2 years courses, have the right to take the capacity exam after a period of 6 months of effective work as magistrates on probation (article 83 from the Law 92/1992).
When the duration of the courses at the National Institute of Magistracy is higher that 1year or 6 months, they have the right to take the capacity exam directly, in the first session that will be held by the Ministry of Justice.
After the stage, the magistrates are obliged to take the capacity exam organized according to the Common Regulation on the magistrates’ training, organization and development of the capacity exam, approved by the Minister of Justice through the Order no.1227 from 13th of June 2001.
The promotion of magistrates, prosecutors and judges, is made according to the provisions of article 66 from the Law 92/1992, article 3 from the Law 50/1996 regarding the remuneration and other rights of the judicial authority personnel, modified and completed through the Governmental Ordinance no. 83/1992, published in the Official Gazette of Romania no. 425 from the 1st of September 2000, as well as the Regulation on the organization and development of the exam for promotion, approved through the Order no. 2958/C from 10th of December 2001 of the Minister of Justice, published in the Official Gazette of Romania no. 18 from 15th of January 2002.
The promotion and transfer of magistrates, judges and prosecutors is made only with their consent (article 94 from the Law 92/1992).
The magistrates, judges and prosecutors can be delegated without their consent for a period of the most 2 months in one year, with the possibility of extending the period, only with their consent (article 95 from the Law 92/1992).
The magistrates, judges and prosecutors can be detached in other public institutions by the Minister of Justice for a period of 6 months up to 3 years, with the possibility of extending the period once up to 3 years. During this period, the person will keep their status as magistrates (article 96 from the Law 92/1992).
The remuneration of the magistrates, judges and prosecutors is stipulated in the Law 50/1996 on the remuneration and other rights of the personnel from the judicial authority bodies, as it was modified and completed through the Government Ordinance no. 83/2000 (articles 13 and 14 from the Law no. 50/1996).
The magistrates, judges and prosecutors from the first instances, tribunals and the prosecutor’s offices attached to them may be maintained in duty up to 65 years old, and the ones from the courts of appeal and the prosecutor’s offices attached to them up to 68 years old, and the prosecutors from the Prosecutor’s Office attached to the Supreme Court of Justice up to 70 years old, in all the cases with the consent of the head of the law-court or the prosecutor’s office (article 68 from the Law 92/1992).
The magistrates retired can be appointed as judges or prosecutors at the first instances, tribunals and courts of appeal, as well as prosecutor’s offices, if they did not exceed 65 years old (article 156 from the Law 92/1992).
In all cases in which the quality of magistrate shall cease, except those on probation, the decision or act, which determines the cessation of this quality, shall be notified to the President of Romania by the Superior Council of the Magistrature with the view to the issue of the decree of removal from office (art.131 of the Law no.92/1992).
The office of magistrate shall be incompatible with any other public or private function, except higher educational didactic functions (art. 111 of the Law no.92/1992).
Public prosecutor or judge magistrates cannot be investigated, retained, arrested, searched or brought to justice without the advice of the Minister of Justice (art. 91 paragraph 2 of the Law no.92/1992).
Differences between judge and public prosecutor magistrates
The judge magistrates shall be independent, irremovable and they shall submit only to the law (art. 3 and art. 91 of the Law no.92/1992).
The public prosecutor magistrates from each public prosecutor’s office shall be subordinate to the head of that office. The dispositions of the hierarchically superior public prosecutor, given in accordance with the law shall be obligatory for the subordinate public prosecutor. Nevertheless, the public prosecutor is free to present before the court the conclusions he deems founded according to the law, taking into account the evidence laid in the cause (art. 28 of the Law 92/1992).
For the public prosecutor magistrate the dispositions of the Minister of Justice, given directly or by the agency of the Public Prosecutor General with a view to the observance and application of the law shall be compulsory (art. 33 of the Law no.92/1992). The Minister of Justice, through the inspector – public prosecutors from the Public Prosecutor’s Office attached to the Supreme Court of Justice, and from the public prosecutor’s offices attached to the courts of appeal, or other delegate public prosecutors, shall exercise the control over all members of the Public Ministry (art. 34 of the Law no.92/1992). The Minister of Justice may institute proceedings, under the conditions established by law, for the prosecution of offences of which he has cognizance but he may not give orders for stopping the prosecuting procedure (art. 34 final paragraph of the Law no. 92/1992).
The Public Ministry shall exercise its powers through public prosecutors, organized in public prosecutor’s offices attached to each court of law, under the authority of the Minister of Justice (art. 26 paragraph 1 of the Law nr. 92/1992).
The public prosecutor-magistrates shall carry out their activity according to the principles of legality, impartiality and hierarchical control (art. 26 of the Law nr. 92/1992).
The promotion and transfer of judges in offices of the magistrature shall be ordered by the Superior Council of the Magistrature, under observance of the conditions provided by law (art. 69 paragraph 1), and the promotion and transfer of public prosecutors in offices of the Public Ministry shall be made by the Minister of Justice, at the proposal of the Public Prosecutor General (art. 69 paragraph 2 of the Law no. 92/1992).
The transfer of public prosecutors in judge offices shall be ordered by the Superior Council of the Magistrature (art. 69 paragraph 1 of the Law no. 92/1992).
For the public prosecutor magistrates who commit disciplinary misbehaviours, the titular of the disciplinary action is the Public Prosecutor General of the Public Prosecutor’s Office attached to the Supreme Court of Justice and the disciplinary sanction is applied by the disciplinary board of the Public Ministry. For the judge magistrates the titular of the disciplinary action is the Minister of Justice and the disciplinary sanction is applied by the Superior Council of the Magistrature.
According to art. 121 of the Law no. 92/1992, the magistrates shall answer disciplinary for misbehaviours in fulfilment of their office duties as well as for behaviour prejudicial to the interest of the office or to the prestige of justice.
The facts considered misbehaviours provided by art. 122 of the same law include: systematic delay in carrying out their work; absences without leave from the office; interventions or insistences for the settlement of certain petitions regarding the satisfaction of their own interests or those of the members of their family in violation of the legal framework as well as interference with the activity of an another magistrate; irreverent attitudes during the exercise of the prerogatives of their office; non-observance of the secret of deliberations or of confidential character of work having this character; public activities with a political character; manifestations prejudicial to professional honour of probity; unjustified refusal to accomplish an obligation which is incumbent upon them according to laws and rules, or trespassing upon other obligations following from the present law; non-observance of the legal provisions regarding the judicial stamp tax and the judicial stamp; repeated non-observance of the legal provisions regarding the settling with celerity of the causes; repeated neglect in the resolution of work; perpetration of other serious breach of the provisions of the magistrates’ Deontological Code; violation of other provisions of the law, referring to incompatibilities and interdictions with regard to magistrates. The disciplinary sanctions that may be applied to magistrates in relation to the gravity of the misbehaviours are provided in art. 123 of the Law no. 92/1992: observation, reprimand, reduction of the salary by up to fifteen per cent over a period of 1 to 3 months, disciplinary move for a period of 1 to 3 months to a law court or to a public prosecutor’s office located within the territorial area of the same court of appeal or of the public prosecutor’s office attached to this, respectively; suspension from office for a period of 6 months at the most; releasing from the leading position filled and removal from the magistrature, sanctions applied in relation to the seriousness of the misbehaviours committed.
The disciplinary responsibility of the public prosecutor magistrates, the exercise of the disciplinary action, the carrying out of the preliminary inquiries, the making up and the manner of functioning of the Disciplinary Board of the Public Ministry are all settled by the provisions of articles 121 through 131 of the Law no. 92/1992, completed with the Rules of organization and functioning of the Public Ministry’s Discipline Board, and the Civil Procedure Code.
The disciplinary action in the case of misbehaviours committed by a public prosecutor shall be exercised by the Public Prosecutor General of the Public Prosecutor’s Office attached to the Supreme Court of Justice, according to art. 124 paragraph 2 of the Law no. 92/1992, within a term of 30 days from the registration of the act of the preliminary inquiry on the disciplinary misbehaviour, but not later than one year from the date when the disciplinary misbehaviour was committed.
The control bodies, as well as the heads of the public prosecutor’s offices, after taking cognizance, ex officio or by prior complaint, of a disciplinary misbehaviour having been committed, inform immediately the public prosecutor general of the Public Prosecutor’s Office attached to the Supreme Court of Justice, by the agency of the Section for analysis, studies, control and professional training, and also submit the material on the basis of which the information was made.
With a view to the exercise of the disciplinary action within 60 days, it shall be compulsory to carry out a preliminary inquiry, which shall be ordered by the titular of this action (art. 125 of the Law no. 92/1992).
The preliminary inquiry shall be effected by inspector-public prosecutors from the Public Prosecutor’s Office attached to the Supreme Court of Justice who shall establish the deeds and their consequences, the circumstances under which they were carried out, the existence or inexistence of guilt as well as any conclusive data. During the disciplinary inquiry the hearing of the magistrate involved, and the verification of his defence, as well as characterization by the head of the public prosecutor’s office with respect to the volume and quality of the activity carried out, and with respect to his behaviour at office and in society, shall be compulsory.
At the end of the disciplinary inquiries the inspector-public prosecutor shall draw up a report on the facts found, including his conclusions and proposal.
The report together with all documentation shall be submitted to the public prosecutor general of the Public Prosecutor’s Office attached to the Supreme Court of Justice who orders for the Disciplinary Board to be informed or for the cause to be closed.
In case of informing the Disciplinary Board, the act of informing together with all the material obtained from verifications shall be submitted to the Disciplinary Board.
According to art. 127 in the Law nr. 92/1992, the Disciplinary Board shall be formed of 5 public prosecutors from the Public Prosecutor’s Office attached to the Supreme Court of Justice, elected by members of this Office for a period of 4 years and shall be presided over by the public prosecutor highest in grade, and in the case of equal grades, by the public prosecutor with the greatest seniority in magistrature, as well as of 3 substitutes members to replace the titulars in case these cannot participate in the works of the Board.
The Disciplinary Board carries out its activity at the headquarters of the Public Prosecutor’s Office attached to the Supreme Court of Justice and convocation is made by the president of the Board who communicates the members and the public prosecutor general the list of the files on the roll at each trial date.
The unfolding of the trial sessions which are not public is carried out with observance of the provisions of the Civil Procedure Code, and the persons participating in the activity of the Disciplinary Board shall keep the secrecy of the debates.
The decisions adopted by the Disciplinary Board are drawn up by a member of the Board designated for each cause.
The secretariate activity of the Disciplinary Board is ensured by a public prosecutor designated by the public prosecutor general of the Public Prosecutor’s Office attached to the Supreme Court of Justice.
The Board’s proceedings are mentioned in closings, at each trial date, through the care of the Board’s president and of the public prosecutor designated to ensure the Board’s secretariate.
Against the decisions pronounced by the Disciplinary Board of the Public Prosecutor’s Office attached to the Supreme Court of Justice, the public prosecutor involved can lodge a legal contest within 30 days after the decision was reported.
The legal contest shall be lodged with the Disciplinary Board and it shall be immediately forwarded together with the file of the cause to the Supreme Court of Justice.
The cause shall be tried in a panel of 9 judges, with participation of the representative of the Public Prosecutor’s Office attached to the Supreme Court of Justice, and the decision settling the legal contest shall be final.
The final decisions through which the public prosecutor was sanctioned shall be enforced by order of the public prosecutor general, and the sanctions applied through final decisions shall be registered with the personal record of the one sanctioned or in his work book.
In the case where by the disciplinary sanction removal from the magistrature was ordered, this shall be reported to the Superior Council of the Magistrature in order that necessary steps should be taken with the view to issuing the presidential decree for removal from office.
Unlike the public prosecutors who are sanctioned by the Disciplinary Board of the Public Prosecutor’s Office attached to the Supreme Court of Justice, the judges who commit misbehaviours shall be sanctioned by the Superior Council of the Magistrature at the Minister of Justice’s informing, with the observance of the same rules of the Law no. 92/1992 and of the Civil Procedure Code.
According to the magistrates’ Deontological Code adopted by the Superior Council of the Magistrature, justice occupies an essential place in any society founded on the principles of the state of law, and magistrates are conferred a power and correlatively, a responsibility, which are altogether special.
In exerting these, in their relations with the justice-applicants, with the other participants in the trial activity and with the society on its whole, the magistrates are assigned the rights acknowledged by law and duties also settled by law (art. 1 in the Deontological Code of the magistrates).
The rights and duties of the magistrates are provided by the Law no. 92/1992, namely in Title VI, articles 91 to 120.
The role of the Deontological Code is to formulate standards for magistrate’s conduct in order that such conduct should be in compliance with the honour and dignity of his profession (art. 2).
The observance of the conduct standards laid down by the Deontological Code is estimated by the competent bodies, according to the law, to intervene in the unfolding of the magistrates’ professional career. Infringement of these rules may lead to entailing, under the law, of the disciplinary responsibility only in the last analysis, when its seriousness requires it (art.3). The Deontological Code is applicable to all magistrates, except for the provisions of chapter VII which are applied to the public prosecutor magistrates only (art. 4).
The magistrates must defend the independence of justice, exert their function with objectivity and impartiality, based only on the law and the general principles of the law, without complying with the exterior pressures and influences, and have such a conduct in unfolding any of their activities as not to put in any way in danger the confidence in their independence (art. 5).
Magistrates shall be forbidden to be affiliated to political parties or to be engaged in public activities with a political character. They may participate in meetings only to the extent in which they do not express within such framework political convictions.
Magistrates shall not be permitted to militate for other persons’ adhering to a political organization, to participate in collecting funds for political organizations and to allow for their prestige or image to be used for such purposes and, also, they shall not be permitted to grant any kind of support to any candidate for a public function of a political character (art. 6).
Magistrates shall use all means they have at their disposal in order that the participation in active political life of their close relatives should not affect their impartiality in fulfilling their professional duties (art. 7) and they shall not be permitted to make use of the acts, which they perform in exerting their office, for expressing their political convictions (art. 8).
Magistrates’ participation, in the conditions permitted by law, in various commissions or committees for the drawing up of bills, rules, treaties etc. shall not affect their independence and impartiality (art. 9).
Magistrates shall have the duty not to manifest in any way any preconceived idea related to the race, sex, religion, nationality, social and economic status of any person, both during the proceedings unfolding in front of them and beyond these; they shall have the duty to protect citizens’ equality in front of the law, to observe and defend dignity, physical and moral integrity of all persons participating in the judicial proceedings (art. 11).
Magistrates shall have the duty to bring any situations, where there is or could exist the appearance that they would have any interest of any nature, to the cognizance of those competent to order with regard to abstaining (art. 12).
Magistrates may not give oral or written consultations in litigious matters, even though the respective lawsuits are on the roll of other courts or public prosecutor’s offices than those in which they exercise their office, nor express publicly their opinion on unsettled lawsuits or on some litigations the public prosecutor’s office was informed of.
Magistrates shall have the right to plead, under the conditions provided by law, only their personal causes, those of their parents, spouse and children, as well as of persons under their trustee guardian or tutelage. They shall not be permitted to make use of the quality they have in order to influence the solution of the law court or public prosecutor’s office and they shall avoid creating the appearance that they could influence in any way the solution to be given (art. 13).
Magistrates shall fulfil with competence and correctness the professional duties incumbent upon them, and observe their administrative obligations stated by laws, rules and service orders.
Magistrates undertake to carry out with celerity, with observance of the legal terms and, where it is not provided by law, within reasonable terms, the works, as distributed, incumbent on them.
For this purpose they shall be obliged to observe the working programme and not to commit themselves to activities whose unfolding would affect the time which they should allot to fulfil their professional and office duties (art. 15).
Magistrates shall impose order and decency during the settling of the causes, by their adopting a respectable, civilized and impartial attitude towards the parties, lawyers, witnesses, experts and the other persons with whom they come into contact in their quality (art. 16).
Magistrates shall have the duty not to disclose the information which they obtained in their quality as magistrates for other purposes than those related directly to the exercise of their profession (art. 7), and in case of the works with confidential character they shall be obliged to keep the respective material within the precincts of the institution or of the public prosecutor’s office, and to allow for them being consulted only within the framework provided by law and rules (art. 17).
Magistrates shall be obliged to use or to allow for the use of the material means and resources, which are put at their disposal, only according to their destination, exclusively in the interest of the court, and to keep in good state such means and endowment entrusted to them and to give them back when requested from them or on cessation of their activity (art. 18).
Magistrates shall gave the duty to permanently concern themselves with the updating of their professional knowledge and with their keeping to a corresponding level of professional competence, they being obliged to effect, at least every 5 years, organized stages of training or, as the case may be, of professional improvement at the National Institute of the Magistrature, at the higher educational institutes in the country or abroad or within the forms organized by the courts of appeal or, as the case may be, by the public prosecutor’s offices attached to the courts of appeal.
Furthermore, they shall have the duty to continuously improve their theoretical knowledge and to update their information in the field of the national legislation and of the international, particularly European, law (art. 19).
Magistrates holding leading office must concern themselves with the organization of the staff’s activity and with the use with maximum efficiency of the material means, to show initiative and spirit of responsibility and, when taking decisions, to always give priority to the interests of the decisions by the court, respectively by the public prosecutor’s office and to the good administration of justice. Furthermore, they shall have the duty to verify any information received in connection with the disorders occurring in the unfolding of the activity, to take the measures that are required and, when the taking of the corresponding measures exceeds their competence, to inform the hierarchically superior authorities.
When formulating or analysing proposals for promotion, transfer or appointments of magistrates or when approving of deciding with regard to employing of auxiliary staff, the magistrates holding leading offices shall have the duty to examine with impartiality and objectivity the legal criteria referring to the candidates’ professional competence and moral qualities. They shall not be permitted to use their prerogatives to intervene, other than they are permitted by law, in the unfolding of the ongoing trials or in order to influence upon the solution given (art. 20).
Magistrates shall have the duty to abstain from any acts or deeds of a nature to compromise their dignity in office and in society, both in exerting their professional competences and beyond these.
They must also have an adequate conduct in their relations with the justice – applicants, their colleagues, the representatives of the other state bodies as well as with the whole social body (art. 21).
Magistrates shall be forbidden to make use of their positions in order to obtain advantages or priorities in solving their personal interests, the interests of their family or of other persons, other than within the limit of the legal frame settled for all citizens.
Magistrates shall not be permitted to intervene in order to influence in any way the decisions, or to accept for the others to do it in their interest, when they aspire to a promotion, transfer or a designation of any nature (art. 22).
Magistrates’ relations with their colleagues shall be correct, based on respect and good faith.
Magistrates shall not be permitted to express their opinion with regard to their colleagues’ professional and moral probity, except for the situation where this affects the image of justice and in this case they may bring such circumstances to the cognizance of the persons in charge with powers of conduct and control from the law court or the Ministry of Justice, respectively from the Public Prosecutor’s Office attached to the Supreme Court of Justice (art. 23).
Magistrates shall be permitted to contribute to specialized publications, as well as to those with a literary, scientific, or social character, or to radio and television broadcasts, only provided that these have not a character of political activities, and only if the image and interest of justice are not affected.
The information referring to the litigations on the roll of the law court or of the public prosecutor’s office, as well as any other information related to the organization and unfolding of the activity within the framework thereof, shall be put at the disposal of the press through the agency of the magistrates designated by the leading staff of the law court or of the public prosecutor’s office and under the conditions stated by the Rules (art. 24).
Magistrates shall be permitted to form professional associations or other organizations intended to represent their own interests, to adhere to local, national or international professional associations, and they may participate in their reunions, but they must not accept responsibility nor commit themselves in activities which could affect negatively the unfolding of the professional activity or which by their nature, manner of financing or modality of action could, in any form, harm the fulfilment with correctness, impartiality and under the legal terms of the professional duties (art. 25).
Magistrates shall not be permitted to cumulate this quality with no other public or private function, except for higher educational didactic functions (art.26).
Judges and public prosecutors shall be forbidden the exercise of trading activities as well as participation in the management of trading or civil companies or of autonomous units, either directly or through interposed persons. Furthermore, they shall be forbidden to participate in the administration of such companies or autonomous units (art. 27).
Magistrates shall be forbidden to request or accept, either directly of indirectly, for them or for others, gifts or promises of gifts, favours or loans, during the exercise of, or with a view to exerting, professional duties.
In exerting or with a view to exerting their profession, magistrates may receive juridical books offered by the authors or editors of such books, invitations to activities with professional character, scholarships under the same conditions as the other participants.
Magistrates shall be forbidden to participate, either directly or through interposed persons, in games of pyramidal type, games of chance or systems of investments for which transparency of the funds is not ensured under the conditions of the law (art. 28).
Magistrates wishing to leave the body of magistrates shall have the duty to bring their decision to the cognizance of the head of the law court or of the public prosecutor’s office in order that the formalities required for releasing from office should be performed (art. 29).
Magistrates shall have the duty to submit, under the conditions and within the terms provided by the law, the statement on their own property (art. 30).
Public prosecutor magistrates shall carry out their activity according to the principles of lawfulness, impartiality and hierarchical control.
In exercising their office, public prosecutor magistrates shall give proof of impartiality, they being obliged to administer all evidence necessary to revealing the truth, both those in favour of the accusation and of the defence. They shall be obliged to provide for the observance of the blamed persons’ and defendants’ presumption of innocence (art. 31).
Public prosecutors shall have the duty to fulfil with celerity and correctness the orders given, according to the law, by the hierarchical superiors (art. 32).
Public prosecutor magistrates shall be obliged to abstain from intervening in the secrecy of deliberation and from giving appreciation with regard to the judicial decisions except for those included in the justification of the ways of attack exercised under the conditions of the law (art. 33).