The legal nature of the activity carried out by the Superior Council of Magistracy, as a court in the field of disciplinary liability

JURISPRUDENŢĂ ÎN MATERIE DISCIPLINARĂ

Abstract

1. According to Article 44 para. 1 of Law no. 317/2004, as republished, subsequently amended and supplemented, the Superior Council of Magistracy has, due to its sections, the role of court in the matter of disciplinary liability of judges and prosecutors. In accomplishing this role, the Superior Council of Magistracy is not a court within the meaning of Article 126 of the Constitution and Article 2 para. 2 of Law no. 304/2004, but an extrajudicial court, which delivers a decision in an administrative and judicial procedure, and to this end both the case-law of the Constitutional Court and of the High Court of Cassation and Justice shall be applicable. 

2. As an administrative and judicial body, the sections in disciplinary matters of the Superior Council of Magistracy shall be set up and operate in accordance with the special rules provided for in Law no. 317/2004, namely Article 27 para. 2 the second sentence, a text according to which „the proceedings of the sections shall be conducted in the presence of the majority of their members”. An argument to this end shall also be represented by the fact that the provisions of Articles 44-53 of Law no. 317/2004, governing the duties of the Superior Council of Magistracy in the matter of disciplinary liability of magistrates, shall not include any rules derogating from those of Article 27 para. 2 of the law. Therefore, even in the presence of the reference rule indicated in Article 49 para. 7 of Law no. 317/2004, the provisions of Article 211 of the Code of Civil Procedure regarding the setting up of the panel according to law shall not automatically become applicable, within the meaning of applying by analogy the rules of the civil procedural law aiming at the composition of the court. For the same arguments, as the decision delivered by the court of discipline is an administrative and judicial act, the provisions of Articles 509-513 of the Code of Civil Procedure shall not be applicable, as the appeal of the review governed by the Code may only be exercised against a court order.