The CSM remains without an important decision lever in the transfer of magistrates. Decision of the CCR
On Tuesday, the Constitutional Court declared as unconstitutional the article of the law on the status of magistrates that gave free hand to the Superior Council of Magistracy regarding the transfers of magistrates from civil courts and prosecutor's offices to military ones. The decision was taken following the notification made to the CCR since 2019, respectively 2020 by two judges to whom the CSM refused the transfer to the Bucharest Military Court.
The decision adopted on Tuesday by the CCR, with unanimous votes, is final and generally binding.
The article of the law declared unconstitutional stipulated that the transfer of judges/prosecutors from civil courts/prosecutions to military ones is based on a joint regulation of the Superior Council of Magistracy and the Ministry of National Defense.
The Constitutional Court decided that the modification, suspension and termination of their legal employment relationship must be regulated by an organic law, and not by an act with lower legal force than this – a regulation, in the present case.
“These rules, in addition to the fact that they violate art. 125 paragraph (2) of the Constitution, are also contrary to the constitutional requirements of stability, predictability and clarity, included in art. 1 paragraph (5), and by the fact that they allow the issuance of administrative acts of a normative nature, of an infralegal nature, in this matter, they determine a state of legal uncertainty”, says CCR in a statement sent shortly after the decision was pronounced.
In addition, the Court emphasizes that the current regulations in the procedure of civil-military transfers also cause a violation of the constitutional provisions regarding the separation and balance of powers in the state, regarding the role of the Parliament and the role of the Superior Council of Magistracy”
How it all started
The CCR was notified regarding the transfer of civilian magistrates to military courts and prosecutors' offices in 2019 and 2020, respectively, by judge Cristian Ungureanu from the Suceava Court of Appeal and by Cătălin Jigău, former judge of the Constanța Court of Appeal, currently a military magistrate at the Iași Military Court.
The SCM opposed the transfers of the two magistrates from civilian to military courts, but both contested the decisions in court.
Judge Jigău managed to obtain the transfer to the military court in Iasi after winning the open case against the CSM. Judge Ungureanu waived the trial. Instead, the two magistrates asked the judges to refer the Constitutional Court to clarify whether the article in the law that gave the SCM the power to transfer magistrates is constitutional.
Criticism of the judge who contested the power of the CSM in the civil-military transfer
In the referral to the Constitutional Court, the judge from Suceava argued that the rules regarding the transfer should be adopted by the legislator through an organic law, precisely to ensure the status of judges.
“By not adopting some rules by the Parliament, this field was usurped by other authorities, in this case, by the Superior Council of the Magistracy, which adopted the rules contained in the regulation in violation of the constitutional principle of separation and balance of powers in the state and, in an impermissible way, added to the law, imposing a condition provided by law for the appointment to the position of judge and the transfer of judges”, according to the conclusion of the Suceava Court of Appeal, consulted by HotNews.
The judge who was denied the transfer complained that “the CSM had no legal or constitutional authority to adopt rules on the transfer of judges”, and this aspect “results also from the analysis of the preamble of the Regulation, which states that it was drawn up on the basis of legal texts, but none of the mentioned texts expressly provides for the competence of the CSM to draw up a regulation on the transfer of judges and prosecutors”, the document also states.
The CSM opposed the referral to the Constitutional Court to clarify the situation, according to the data from the file resolved by the Suceava Court of Appeal. He considered that there was no longer any interest in the referral to the Constitutional Court, because the judge had given up the action on the merits, after, following the refusal of the transfer to the Bucharest Military Court, the CSM approved the continuation of his activity at the Suceava Court after ending his mandate as president of the Gura Humorului Court.
Magistrate Ungureanu insisted on reporting to the CCR, and the Suceava Court of Appeal accepted the request and sent the file to the constitutional review court.
