Supreme Court: Amendments on magistrates' material liability violate Constitution, are unclear, confusing

The High Court of Justice and Cassation (ICCJ, Supreme Court, ed. n.) says in a notification sent on Thursday to the Constitutional Court of Romania (CCR) that the amendments to the Law no. 303/2004 in connection with the material liability of the magistrates violate the Constitution and international regulations, because they have a "unclear" and "confusing" and do not comply with the criteria of predictability and will raise interpretation issues when applied.

The Supreme Court's justices complain about unconstitutionality of 12 articles modified by the Parliament in the Law no. 303/2004 on magistrates' statute. 

One of the contested articles is the one referring to the magistrates' material liability (art. 96 of Law no. 303/2004). 

ICCJ sustains that the amendments are contrary to Art. 1 paragraph (5) of the Constitution of Romania referring to the obligation of observing the Constitution and the laws, "through their unclear and confusing contents" thus infringing the legality principle which is fundamental for the rule of law's good functioning. 

The Supreme Court says that the current institutional framework offers the strong guarantee of the fact that a person who has been victim of a judicial error will be compensated for the damages thus caused, as well as the fact that the current contents of the fundamental law foresees the magistrates liability which it circumscribes to the condition regarding the existence of exercising a magistrate's job in ill-will or with serious negligence, and decides in a manner that does not involve in any way the elements of a direct material liability. 

Moreover, at Point 5 letter iii) of the preliminary works of the Opinion no. 3 of the European Justices' Consultative Council it is said that it is not appropriate that a justice be exposed, as regards their job's exercise, to any personal liability, exception being the case when they make a mistake with intention. The same conclusion is resumed in the "Magna Charter on Justices Statute," (points 20 - 22). 

ICCJ specifies that the text of Art. 96, in the form proposed to be modified, changes the constitutional view upon this judicial construction of liability for the judicial error (thought as a direct liability of the state and a subsidiary liability of the magistrate) and by establishing the compulsory character of the action in regression against the magistrate, it basically establishes the latter's responsibility, contrary to the constitutional spirit, an objective material liability. 

ICCJ further explains that the invoked international dispositions do apply only then when the conviction is annulled or the pardon is granted, if, a new fact demonstrates a judicial error had occurred. 

Moreover, the international regulations crayon the judicial error as a distinct judicial figure, that does not confound with the error of judgment for which both the internal legal dispositions and the international ones foresee other means of remedy.