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SCM – negative opinion on the draft Government decision on the external evaluation of judges and prosecutors

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The members of the Superior Council of Magistracy (SCM) gave a negative opinion, at their meeting on 20 May, on the draft Government decision on the approval of the draft law on the external evaluation of judges and prosecutors.

The President of the SCM Nina Cernat and members Ion Guzun and Alexandru Postica voted in favour of the draft law “with the proposals presented by the members of the SCM”.

“An opinion on the law is not negative or positive, but with recommendations and opinions for modification, exclusion or support,” said non-judge member Ion Guzun.

One SCM member warned that there would be a risk that “once every four years we will have an external evaluation of judges”.

“The Venice Commission has recommended the state to establish constitutional guarantees that this exercise will be unique. I see in Article 2 that the evaluation is a one-off exercise has been indicated at the level of the law and I do not see a draft amendment to the Constitution in which this is expressly provided for. Therefore, I believe that the approval of this law does not correspond to the spirit of the Venice Commission’s recommendation. We risk setting a dangerous precedent and once every four years having an external evaluation of judges. That is why I will vote against the approval of this draft law because I believe that this evaluation can be carried out as recommended by the Venice Commission only if protection mechanisms are put in place to ensure that this mechanism will be unique”, said magistrate Sergiu Caraman.

Interim President of the SCM Nina Cernat pointed out that the draft states that “this law shall cease to have effect on the date of rejection by the Supreme Court of Justice of the last appeal lodged (…)”.

“The Venice Commission has indicated that the state should strengthen its internal bodies that evaluate the work, professionalism and integrity of judges and prosecutors. Moreover, another aspect that was indicated in the opinion of the Venice Commission and I did not find it in the law and perhaps it should be indicated – hearings of candidates in public session and requests of candidates that hearings be held in closed session. The Commission recommended that the decisions of the Evaluation Commission to reject these applications could be appealed to the SCM or to the PSC, and I did not see such regulations in the law (…)”, said Judge Maria Frunze.

According to the draft decision submitted for opinion, the subjects of the evaluation will be:

  • judges who have held the office of president and vice-president of the courts, including those who have held these offices on an interim basis for a period of more than one year since 1 January 2017, including those who hold them on the date of entry into force of this Act;
  • judges of courts of appeal, in office on the date of entry into force of this Law;
  • the Prosecutor General, his deputies, the chief prosecutors of the sections of the General Prosecutor’s Office, including those who have held these offices or who have been acting in these offices for a period of more than one year, as of 1 January 2017, including those who are holding them on the date of entry into force of this Law.
  • prosecutors who have held the office of chief prosecutor of a prosecutor’s office and deputy chief prosecutor of a prosecutor’s office, including the interim of these offices for a period of more than one year, as of 1 January 2017, including those holding them on the date of entry into force of this Law;
  • prosecutors of specialised prosecutors’ offices;
  • judges and prosecutors referred to in points (a) to (e) who are suspended from office;
  • candidates for vacant positions in the Anticorruption Prosecutor’s Office and the Prosecutor’s Office for Combating Organised Crime and Special Cases.
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