UPDATE 12:40 : In the end, it was concluded that, in the absence of a plenary session, the interim president of the SCM, Judge Bogdan Mateescu, to send to the Senate an address for the validation of the substitute Marian Budă as a member of the SCM.
INITIAL ARTICLE:
7 SCM members, including judges Andrea Chiș, Mihai Andrei Bălan, Gabriela Baltag, Evelina Oprina and prosecutors Tatiana Toader, Florin Deac and Cristian Ban they refused to attend the plenary session in protest against the appointment of Judge Bogdan Mateescu as interim president.
In today’s plenary session, the mandate of the substitute judge Marian Budă was to be validated in place of the retired judge Mariana Ghena. According to judicial sources, Mason Judge Marian Buda is in the running to be the new president of the SCM.
In the end, the plenary did not take place due to lack of quorum. Protesting judges also do not participate in the SCM Judges’ Section, where interviews for judges of the High Court take place. The meeting of the Section for Judges takes place as the Minister of Justice, Călălin Predoiu, ensures the quorum.
”Today, me and my colleagues Mihai Andrei Bălan, Gabriela Baltag, Evelina Oprina and my colleagues prosecutors Tatiana Toader, Florin Deac, Cristian Ban, I chose not to participate in the meeting of the Plenum of the Superior Council of Magistracy, and later I and my colleagues listed no I also did not attend the meeting of the Judges’ Section. The Plenary Session did not take place due to the lack of a quorum, and the meeting of the Judges’ Section took place with the participation of the Minister of Justice, who provided the quorum, as he did not participate in the Plenary Session.
The Plenary Session did not take place today due to those who refused and still refuse to enter into legality, endangering not only the image of the Council but also the legality of its acts, making the entire activity of the institution vulnerable, with serious and irreparable consequences on the judiciary.
We requested that the Vice-President exercise the power to chair the Plenary Session and to elect a Chairperson in the case of a Judicial Section meeting, a chairperson of the hearing who may have been the illegally appointed interim, but we were refused. Most refused to apply the lawshe ”, wrote the judge Andrea Chiş, member of the SCM, on a social network.
”Today, a minority of 7 members of the Plenum, representing half of the elected members, as well as 4 members of the 9 elected members of the Judges’ Section, we refused to strengthen and perpetuate an illegality committed by Decision no. 211 / 16.12.2021, decided by a very close majority of the SCM Plenum, to appoint an interim president, contrary to the Romanian Constitution and Law no. 317/2004 regarding the Superior Council of Magistracy.
Attendance at a meeting chaired by an illegitimate President shall invalidate any decision of the Council adopted under these conditions.
The legislator could not imagine a situation that has never arisen in the history of the Romanian judicial councils, namely that the judges members of the council could refuse to elect a president from among those who have the legal capacity to occupy this position, wanting to preserve a power situation acquired by a majority.
The plenum evaded the law, calling interim what could not be renewed, according to the Constitution, thus being outside the limits of the law and the Constitution.
The law on the organization of the Council contains regulations related to the absence of the president, art. 24 para. (5) expressly providing that the vice-president may exercise all his attributions listed by par. (3), including the notification of the Constitutional Court with a conflict of a constitutional nature. The President, as well as the Vice-President, shall be appointed in the same manner and may perform the same duties and, in the opinion of the legislator, the Vice-President shall perform all the duties of the President in his absence, whether temporary or vacant.
The separation of careers does not justify and does not allow the appointment of an interim president of the Plenary, for the Section of Judges there is a text that allows the election of a sitting president.
What the majority of the Judges Section did was to retain in its ranks an attribution that none of its members could exercise in accordance with the Constitution.
It is not a vacancy in office, but a deadlock created by a majority that wants to preserve and strengthen its position of control.
In the case of appointing judges to the HCCJ under these conditions (according to the agenda of the Section for Judges), not only the careers of these colleagues are questioned, but also the decisions they will make in the future. We can in no way accept such a situation. Some of us have also pointed this out in the case of the appointment of the interim chief inspector by the GEO, and the Judgment of 18 May 2021 of the CJEU confirmed our fears.
The majority opinion sets a dangerous and unacceptable precedent for interpretation, because if the Plenary, by the same majority, would vote, for various reasons, in the sense that it does not want to organize elections for the new SCM, members cannot be forced to vote otherwise than dictated. our own conviction, we would all remain interim by our own will beyond the constitutional term of office.
In addition to the illegal conduct of today’s Plenary Session, the Plenum was also illegally convened in relation to the provisions of art. 57 of Law no. 317/2004 republished, which, in par. (1) begins with the obligation of the Plenum to organize elections for the vacant seat. The interim is a subsidiary, organizational matter, necessary for the functioning of the Council until the number of members is restored.
For the preparation of such a meeting, it is necessary to discuss the organizational issues in the Joint Commission 1, taking into account the provisions of Law no. 317/2004 and of the Regulation regarding this issue (art. 33 of the Regulation expressly regulating its application and for the appointment of candidates in the event that a position of elected member of the Superior Council of Magistracy becomes vacant). The President whose term of office has expired has not complied with the provisions on the preparation of the Plenary.
Moreover, an interim, in turn, can be appointed only with his consent, being a remnant of the mandate and it is necessary to discuss this organizational issue in the preparatory meeting of the Plenary for the elections. The existence of this agreement does not follow from the material made available to the members of the Plenary.
The majority of the Plenary proved once again that the interpretation of the law is conjunctural, appreciating that the decision of the Plenary is not needed if it was not a quorum, but the administrative act of the president is enough.
Our gesture is meant to restore normalcy and legality to the functioning of the Council“Judge Chis showed.
The appointment of Judge Bogdan Mateescu as interim President of the Council after the expiration of his term of office on January 6, 2022 is considered “non-compliant with the constitutional and legal provisions and generates a series of vulnerabilities, with important consequences in terms of all relations and relations in which the Superior Council of Magistracy manifests itselfJudges Gabriel Baltag and Evelina Oprina also consider. Details here.
Context. In December 2021, the SCM plenum decided to extend the term of office of the head of the SCM, Bogdan Mateescu, after January 6, 2022, if no other president was elected by that date. This is after the SCM Judges’ Section decided to reject the candidacies of judges Andrea Chiș and Gabriela Baltag.
Meanwhile, the SCM judge Mariana Ghena has retired and will be replaced by the substitute Marian Budă from the High Court. According to judicial sources, he is in the books to be the new president of the SCM.
Photo source: Ilona Andrei / G4Media.ro
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