Accessory motion to intervene filed by a professional association of magistrates in the procedure of disciplinary liability of judges and prosecutors. Inadmissibility

JURISPRUDENŢĂ ÎN MATERIE DISCIPLINARĂ

Abstract

The sections of the Superior Council of Magistracy, when they accomplish the role of a court in the matter of disciplinary liability of judges and prosecutors, have the features of an extrajudicial court, which carries out an administrative and judicial activity, as they are not courts within the meaning of Article 126 of the Constitution and Article 2 para. 2 of Law no. 304/2004 on the judicial organization, as republished, subsequently amended and supplemented. Even in the presence of the reference rule provided by Article 49 para. 7 of Law no. 317/2004 regarding the Superior Council of Magistracy, as republished, subsequently amended and supplemented, in the administrative and judicial procedure conducted before the sections of the Superior Council of Magistracy, when they accomplish the role of court in the matter of disciplinary liability of judges and prosecutors, the provisions of the Code of Civil Procedure shall not automatically become an incident, but only insofar as they are not compliant with the respective procedure. The accessory motion to intervene in the interest of the investigated magistrate shall be inadmissible, being filed according to Article 63 of the Code of Civil Procedure by a professional association of magistrates in the administrative and judicial procedure conducted before the sections in disciplinary matter of the Superior Council of Magistracy. The provisions of Article 64 of the Code of Civil Procedure shall not comply with the disciplinary procedure governed by Law no. 317/2004, for the following arguments: (i) Article 29 para. 2 of Law no. 317/2004 shall confer the professional associations of magistrates the opportunity to participate in the proceedings of the sections in disciplinary matter and to express, on their own initiative, when they deem it necessary, a view regarding the problems to be debated, so that the professional association of magistrates aims to intervene in the administrative and judicial procedure conducted before the sections for judges in disciplinary matter of the Superior Council of Magistracy, however, without acquiring the capacity as party in the respective procedure by applying the provisions of the Code of Civil Procedure to the accessory intervention; (ii) in such an assumption, the inconsistency between the provisions of the Code of Civil Procedure and the administrative and judicial procedure conducted before the corresponding section in disciplinary matter shall prejudice neither the statutory purpose of the professional association, which is able to participate in the procedure and has the possibility of expressing an opinion, nor the interest of the investigated magistrate in benefiting from the support in defence provided by the professional association; (iii) in other words, the attainment of the goal of the provisions of the Code of Civil Procedure relating to the accessory intervention is ensured by the possibility conferred to the professional associations under the provisions of the special law.