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Treaty on the disciplinary liability of magistrates - Ioan Garbulet
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Publisher: Universul Juridic
Author: Ioan Garbulet
Pages: 1044
Publisher year: 2020
ISBN: 978-606-39-0260-4
Product Code:
9786063902604
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The paper is the first Treaty published in our country that analyzes in detail the disciplinary violations of magistrates, the procedure for investigating and resolving disciplinary action, the liability of magistrates for violating the rules of conduct regulated by the Code of Ethics, verifying the good reputation for judges and prosecutors in function, the defense of the independence and impartiality of judges and prosecutors and the defense of their professional reputation, as currently regulated by the laws of justice.
CONTENTS OF THE PAPER
The Treaty analyzes:
- the forms of legal liability of magistrates;
- the specific features of the disciplinary liability of magistrates;
- the constitutive elements of the disciplinary violation;
- disciplinary violations;
- holders of disciplinary action;
- the procedure of preliminary verifications;
- disciplinary investigation procedure;
- the procedure for judging the disciplinary action;
- the procedure for solving the appeal;
- disciplinary sanctions;
- the liability of the magistrates for violating the norms of conduct regulated by the Code of Ethics;
- checking the condition regarding the good reputation for the judges and prosecutors in office;
- defending the independence, impartiality and professional reputation of judges and prosecutors;
- elements of comparative law.
STRENGTHS OF THE WORK
- includes an exhaustive analysis of all disciplinary violations in terms of object, subject, objective side and subjective side;
- presents the similarities and differences between the disciplinary violations in order to make a correct legal classification of the deeds committed by the magistrates;
- a series of definitions and interpretations of the incidental legal provisions are proposed, in order to clarify the concepts established by the legislator;
- a detailed analysis of the procedure for investigating and resolving disciplinary violations is presented both at the Judicial Inspection and at the court of first instance and in the appeal;
- the disciplinary sanctions and the way of their individualization are analyzed;
- the liability of the magistrates for violating the norms of conduct regulated by the Code of Ethics is initiated;
- the procedure of verifying the condition regarding the good reputation for the judges and prosecutors in office is developed;
- the procedure of defending the independence and impartiality of judges and prosecutors and of the requests regarding the defense of their professional reputation and independence is examined;
- the entire jurisprudence of the sections and the Plenum of the Superior Council of Magistracy in the analyzed matters is published, published in the years 2005-2020;
- the jurisprudence of the High Court of Cassation and Justice in disciplinary matters is presented up to date;
- the disciplinary violations and the procedure for solving them in the comparative law are described, in order to form an overview on the disciplinary liability of the magistrates.
TARGET AUDIENCE
The paper is addressed to judges, prosecutors, assistant magistrates of the High Court of Cassation and Justice, judicial inspectors, members of the Superior Council of Magistracy and judicial assistants, as they are directly concerned by the legal provisions analyzed.
At the same time, the paper is a useful tool for other legal professions: lawyers, legal advisers, notaries public, bailiffs, clerks, insolvency practitioners, mediators, but, at the same time, for all those who are interested, including one form or another, of knowing the situations for which a magistrate can be disciplined.
CONTENTS OF THE PAPER
The Treaty analyzes:
- the forms of legal liability of magistrates;
- the specific features of the disciplinary liability of magistrates;
- the constitutive elements of the disciplinary violation;
- disciplinary violations;
- holders of disciplinary action;
- the procedure of preliminary verifications;
- disciplinary investigation procedure;
- the procedure for judging the disciplinary action;
- the procedure for solving the appeal;
- disciplinary sanctions;
- the liability of the magistrates for violating the norms of conduct regulated by the Code of Ethics;
- checking the condition regarding the good reputation for the judges and prosecutors in office;
- defending the independence, impartiality and professional reputation of judges and prosecutors;
- elements of comparative law.
STRENGTHS OF THE WORK
- includes an exhaustive analysis of all disciplinary violations in terms of object, subject, objective side and subjective side;
- presents the similarities and differences between the disciplinary violations in order to make a correct legal classification of the deeds committed by the magistrates;
- a series of definitions and interpretations of the incidental legal provisions are proposed, in order to clarify the concepts established by the legislator;
- a detailed analysis of the procedure for investigating and resolving disciplinary violations is presented both at the Judicial Inspection and at the court of first instance and in the appeal;
- the disciplinary sanctions and the way of their individualization are analyzed;
- the liability of the magistrates for violating the norms of conduct regulated by the Code of Ethics is initiated;
- the procedure of verifying the condition regarding the good reputation for the judges and prosecutors in office is developed;
- the procedure of defending the independence and impartiality of judges and prosecutors and of the requests regarding the defense of their professional reputation and independence is examined;
- the entire jurisprudence of the sections and the Plenum of the Superior Council of Magistracy in the analyzed matters is published, published in the years 2005-2020;
- the jurisprudence of the High Court of Cassation and Justice in disciplinary matters is presented up to date;
- the disciplinary violations and the procedure for solving them in the comparative law are described, in order to form an overview on the disciplinary liability of the magistrates.
TARGET AUDIENCE
The paper is addressed to judges, prosecutors, assistant magistrates of the High Court of Cassation and Justice, judicial inspectors, members of the Superior Council of Magistracy and judicial assistants, as they are directly concerned by the legal provisions analyzed.
At the same time, the paper is a useful tool for other legal professions: lawyers, legal advisers, notaries public, bailiffs, clerks, insolvency practitioners, mediators, but, at the same time, for all those who are interested, including one form or another, of knowing the situations for which a magistrate can be disciplined.
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Treaty on the disciplinary liability of magistrates - Ioan Garbulet
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Ioan Garbulet is a judge, currently being a judicial inspector at the Judicial Inspection within the Superior Council of Magistracy.
He is a doctor of law and editor-in-chief of the Romanian Journal of Enforcement. He has published, as an author, co-author or coordinator, 20 specialized papers in the field of law and over 150 articles, studies, notes and comments in various specialized journals and on legal sites.
He was awarded, by the Union of Romanian Lawyers, the prize "I.L. Georgescu ”for the paper“ Theoretical and practical treaty of forced execution ”, vol. I-II, Ed. Universul Juridic, 2013, and“ Diploma of excellence ”for the paper“ Disciplinary violations of magistrates ”, Ed. Universul Juridic, 2016.
In 2010 he received the "Savelly Zilberstein" award for the best study published in the Romanian Journal of Enforcement.
He is a doctor of law and editor-in-chief of the Romanian Journal of Enforcement. He has published, as an author, co-author or coordinator, 20 specialized papers in the field of law and over 150 articles, studies, notes and comments in various specialized journals and on legal sites.
He was awarded, by the Union of Romanian Lawyers, the prize "I.L. Georgescu ”for the paper“ Theoretical and practical treaty of forced execution ”, vol. I-II, Ed. Universul Juridic, 2013, and“ Diploma of excellence ”for the paper“ Disciplinary violations of magistrates ”, Ed. Universul Juridic, 2016.
In 2010 he received the "Savelly Zilberstein" award for the best study published in the Romanian Journal of Enforcement.
Content
Chapter I. General considerations regarding the legal liability of magistrates / 7
Section 1. General notions regarding legal liability / 7
Section 2. Civil liability of magistrates / 11
General considerations / 11
Legal characteristics of the civil liability of magistrates / 13
Subsidiary character / 13
Indirect character / 13
General character / 14
Integral character / 14
Civil liability based on the provisions of the Code of Criminal Procedure / 15
The right to compensation for damage in case of judicial error / 16
The right to reparation in case of illegal deprivation of liberty / 17
Action for damages / 20
The holders and the term for introducing the action for reparation of the damage / 20
Competent court / 20
Type and extent of repair / 21
Civil liability based on the provisions of art. 96 of Law no. 303/2004 / 21
Civil liability based on the obligation of the state to pay sums of money established by ECHR decisions against Romania / 22
Procedure for carrying out verifications by the Judicial Inspection / 23
General provisions / 24
Conducting checks / 27
Completion of checks / 30
Completion of checks / 30
Action in regression / 32
Section 3. Criminal liability of magistrates / 33
General notions / 33
Approval of search, detention, house arrest and pre-trial detention of magistrates / 35
Investigation of crimes committed by magistrates / 37
Duties of the Section for the Investigation of Crimes in Justice / 39
Appointment and revocation of the Chief Prosecutor of the Section for the Investigation of Crimes in Justice / 40
Registration for the contest / 40
Organizing the contest / 41
Conduct of the contest / 42
Revocation from the position of Chief Prosecutor of the Section for the Investigation of Crimes in Justice / 44
Appointment and dismissal of the Deputy Chief Prosecutor of the Section for the Investigation of Crimes in Justice / 45
Appointment, continuation of activity and revocation of prosecutors with executive positions within the Section for investigation
crimes in justice / 47
Contest registration / 47
Organizing the contest / 47
Conduct of the contest / 50
Continuation of the activity within the section / 54
Dismissal of prosecutors with executive positions within section / 54
Judgment of crimes committed by magistrates / 56
Section 4. Contraventional liability of magistrates / 56
General notions / 56
The contraventional liability regulated by Law no. 176/2010 on integrity in the exercise of functions and dignities
public / 58
Section 5. Moral responsibility of magistrates / 60
Section 6. "Administrative" liability of magistrates / 63
Professional incapacity / 64
Mental illness / 67
Good reputation / 68
Unjustified absence from the aptitude test or rejection of the candidate at two sessions / 69
Chapter II. Disciplinary liability of magistrates / 70
Section 1. General considerations / 70
Notion and definition / 70
General features of disciplinary liability / 73
Specific features of the disciplinary liability of magistrates / 74
Section 2. Regulation of disciplinary liability of magistrates / 75
Section 3. Disciplinary violation / 81
Defining the disciplinary violation / 81
Classification of disciplinary offenses / 87
Depending on the quality of the active subject / 87
Depending on the manner of committing disciplinary offenses / 91
Depending on the nature of the deeds committed / 92
Depending on the principles it interferes with / 94
Depending on the external manifestation of the disciplinary violation / 94
Depending on the subjective element of the disciplinary violation / 96
The similarities and differences between disciplinary violations / 97
Section 4. The constitutive elements of the disciplinary violation / 99
The object of the disciplinary violation / 99
Legal object / 99
Material object / 107
The subject of disciplinary misconduct / 108
Active subject / 108
General conditions of the active subject / 115
Passive subject / 118
The objective side of the disciplinary violation / 118
The material element / 119
Immediate consequence / 121
Causal link / 122
The subjective side of the disciplinary violation / 123
Section 5. Cases that remove the disciplinary liability of magistrates / 126
General considerations / 126
Justifying causes / 127
Causes of imputability / 128
Other cases that remove disciplinary liability / 131
Chapter III. Analysis of disciplinary violations / 134
Section 1. Manifestations that prejudice the professional honor or probity or the prestige of justice, committed in the exercise or outside the exercise of service attributions / 134
General considerations / 134
Regulation of disciplinary misconduct / 134
The similarities and differences between the analyzed disciplinary violation and other disciplinary violations / 135
The constitutive elements of the disciplinary violation / 136
The object of the disciplinary violation / 136
The legal object/ 136
Material object / 138
The subject of disciplinary misconduct / 138
Active subject / 138
Passive subject / 139
The objective side of the disciplinary violation / 139
The material element / 139
Immediate consequence / 155
Causal link / 155
The subjective side of the disciplinary violation / 156
Modalities and consumption of the deviation / 158
Section 2. Violation of the legal provisions regarding incompatibilities and interdictions regarding judges and prosecutors / 158
General considerations / 158
Regulation of disciplinary misconduct / 158
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 160
The constitutive elements of the disciplinary violation / 162
The object of the disciplinary violation / 162
Legal object / 162
Material object / 168
The subject of disciplinary misconduct / 168
Active subject / 168
Passive subject / 169
The objective side of the disciplinary violation / 169
The material element. / 169
Incompatibilities of the judge and the prosecutor / 171
Incompatibility of the position of judge or
prosecutor with any other public or private position / 171
Incompatibility of the position of judge or prosecutor with the effective exercise of these functions / 184
Incompatibilities regulated by the Code of Civil Procedure / 185
Incompatibilities regulated by the Code of Criminal Procedure / 189
Prohibitions of the judge and the prosecutor / 192
Prohibitions of a professional nature / 192
Prohibitions of a commercial nature / 197
Prohibitions of a political nature / 200
Prohibitions of a social nature / 202
Prohibitions regarding the exercise of other functions / 205
Prohibitions regarding the dignity of the position / 207
Immediate consequence / 211
Causal link / 212
The subjective side of the disciplinary violation / 212
Modalities and consumption of the deviation / 214
Section 3. Unworthy attitudes during the exercise of official duties towards colleagues, other staff of the court or prosecutor's office in which they operate, judicial inspectors, lawyers, experts, witnesses, litigants or representatives of other institutions / 215
General considerations / 215
Regulation of disciplinary misconduct / 215
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 215
The constitutive elements of the disciplinary violation / 216
The object of the disciplinary violation / 216
Legal object / 216
Material object / 218
The subject of disciplinary misconduct / 218
Active subject / 218
Passive subject / 218
The objective side of the disciplinary violation / 219
The material element / 219
Immediate follow-up / 226
Causal link / 226
The subjective side of the disciplinary violation / 226
Modalities and consumption of the deviation / 227
Section 4. Carrying out public activities of a political nature or manifesting political convictions in the exercise of official duties / 228
General considerations / 228
Regulation of disciplinary misconduct / 228
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 229
The constitutive elements of the disciplinary violation / 230
The object of the disciplinary violation / 230
Legal object / 230
Material object / 232
The subject of disciplinary misconduct / 233
Active subject / 233
Passive subject / 233
The objective side of the disciplinary violation / 233
The material element / 233
Carrying out public activities of a political nature / 235
Manifestation of political convictions in the exercise of official duties / 236
Immediate consequence / 238
Causal link / 238
The subjective side of the disciplinary violation / 238
Modalities and consumption of the deviation / 239
Section 5. Unjustified refusal to receive in the file the requests, conclusions, memoranda or documents submitted by the parties to the process / 239
General considerations / 239
Regulation of disciplinary misconduct / 239
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 240
The constitutive elements of the disciplinary violation / 241
The object of the disciplinary violation / 241
Legal object / 241
Material object / 245
The subject of disciplinary misconduct / 245
Active subject / 245
Passive subject / 246
The objective side of the disciplinary violation / 246
The material element / 246
Immediate follow-up / 250
Causal link / 250
The subjective side of the disciplinary violation / 251
Modalities and consumption of the deviation / 251
Section 6. Unjustified refusal to perform a duty of service / 252
General considerations / 252
Regulation of disciplinary misconduct / 252
Similarities and differences between the analyzed disciplinary misconduct and other types of disciplinary misconduct / 252
The constitutive elements of the disciplinary violation / 253
The object of the disciplinary violation / 253
Legal object / 253
Material object / 258
The subject of disciplinary misconduct / 259
Active subject / 259
Passive subject / 259
The objective side of the disciplinary violation / 259
The material element. / 259
The duty of the magistrate to perfcontinuously selects the professional training, according to the specialization needs / 260
The duty of the magistrate to respect the norms of the deontological code, the legal provisions, those resulting from the regulations,
from the decisions of the general assemblies and of the management colleges / 265
The duty of the magistrate to participate in the court hearings, in the panels established according to the law / 269
The duty of the magistrate to wear during the court hearing the attire corresponding to the court where he works / 272
The duty of the magistrate to submit the declaration of assets and the declaration of interests / 273
The duty of the magistrate to immediately inform the president of the court in which the fact that
it was ordered to be sent to court / 274
The duty of the magistrate to fulfill other attributions than those regarding the judicial activity / 275
Immediate follow-up / 276
Causal link / 276
The subjective side of the disciplinary violation / 276
Modalities and consumption of the deviation / 278
Section 7. Failure by the prosecutor to comply with the provisions of the hierarchically superior prosecutor, given in writing and in accordance with the law / 278
General considerations / 278
Regulation of disciplinary misconduct / 278
The similarities and differences between the analyzed disciplinary violation and other disciplinary violations / 279
The constitutive elements of the disciplinary violation / 280
The object of the disciplinary violation / 280
Legal object / 280
Material object / 282
Active subject / 282
Passive subject / 283
The objective side of the disciplinary violation / 283
The material element / 283
Immediate follow-up / 289
Causal link / 289
The subjective side of the disciplinary violation / 289
Modalities and consumption of the deviation / 290
Section 8. Repeated non-compliance and for imputable reasons with the legal provisions regarding the speedy settlement of cases or repeated delay in carrying out the works, for imputable reasons / 291
General considerations / 291
Regulation of disciplinary misconduct / 291
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 292
The constitutive elements of the disciplinary violation / 293
The object of the disciplinary violation / 293
Legal object / 293
Material object / 295
The subject of disciplinary misconduct / 295
Active subject / 295
Passive subject / 297
The objective side of the disciplinary violation / 297
The material element / 297
Repeated non-compliance with the legal provisions regarding the speedy settlement of cases / 298
Repeated delay in performing the works / 304
Immediate follow-up / 307
Causal link / 307
The subjective side of the disciplinary violation / 307
Modalities and consumption of the deviation / 309
Section 9. Failure to comply with the duty to abstain when the judge or prosecutor knows that there is one of the causes provided by law for his abstention, as well as the formulation of repeated and unjustified requests for abstention in the same case, which has the effect of delaying the trial / 310
General considerations / 310
Regulation of disciplinary misconduct / 310
The similarities and differences between the analyzed disciplinary violation and other disciplinary violations / 311
The constitutive elements of the disciplinary violation / 311
The object of the disciplinary violation / 311
Legal object / 311
Material object / 315
The subject of disciplinary misconduct / 315
Active subject / 315
Passive subject / 316
The objective side of the disciplinary violation / 316
The material element. / 316
Failure to comply with the duty to abstain when the judge or prosecutor knows that there is one of the causes provided by law for his abstention / 316
Formulation of repeated and unjustified requests for abstention in the same case, which has the effect of delaying the trial / 353
Immediate consequence / 356
Causal link / 357
The subjective side of the disciplinary violation / 357
Modalities and consumption of the deviation / 359
Section 10. Failure to observe the secrecy of the deliberation or confidentiality of works of this nature, as well as other information of the same nature of which he became aware in the exercise of office, except for those of public interest, under the law, if the act does not constitute a crime / 360
General considerations / 360
The constitutive elements of the disciplinary violation / 361
The object of the disciplinary violation / 361
Legal object / 361
Material object / 364
The subject of disciplinary misconduct / 365
Active subject / 365
Passive subject / 367
The objective side of the disciplinary violation / 367
The material element. / 367
Failure to observe the secrecy of the deliberation, if the deed does not constitute a crime / 368
Failure to respect the confidentiality of works that have this character, if the deed does not constitute a crime / 373
Failure to comply with the secret or confidential nature of other information that the magistrate became aware of in the exercise of office, if the act does not constitute a crime / 376
Immediate consequence / 379Causal link / 379
Subjective side of disciplinary misconduct / 380
Modalities and consumption of the deviation / 382
Section 11. Unexcused absences from work, repeatedly or directly affecting the activity of the court or the prosecutor's office / 383
General considerations / 383
The constitutive elements of the disciplinary violation / 384
The object of the disciplinary violation / 384
Legal object / 384
Material object / 387
The subject of disciplinary misconduct / 387
Active subject / 387
Passive subject / 388
The objective side of the disciplinary violation / 388
The material element / 388
Unexcused absences from work, repeatedly / 388
Unexcused absences from work that directly affect the activity of the court or the prosecutor's office / 397
Immediate follow-up / 398
Causal link / 399
The subjective side of the disciplinary violation / 399
Modalities and consumption of the deviation / 400
Section 12. Interference in the activity of another judge or prosecutor / 401
General considerations / 401
Regulation of disciplinary misconduct / 401
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 402
The constitutive elements of the disciplinary violation / 403
The object of the disciplinary violation / 403
Legal object / 403
Material object / 409
The subject of disciplinary misconduct / 409
Active subject / 409
Passive subject / 409
The objective side of the disciplinary violation / 410
Material element / 410
Immediate consequence / 432
Causal link / 432
The subjective side of the disciplinary violation / 432
Modalities and consumption of the deviation / 433
Section 13. Unjustifiably non-compliance with administrative provisions or decisions ordered in accordance with the law by the head of the court or prosecutor's office or other administrative obligations provided by law or regulations / 434
General considerations / 434
Regulation of disciplinary misconduct / 434
The similarities and differences between the analyzed disciplinary violation and other disciplinary violations / 435
The constitutive elements of the disciplinary violation / 437
The object of the disciplinary violation / 437
Legal object / 437
Material object / 441
The subject of disciplinary misconduct / 441
Active subject / 441
Passive subject / 442
The objective side of the disciplinary violation / 442
The material element. / 442
Unjustifiably non-compliance with administrative provisions or decisions ordered in accordance with the law by the head of the court or prosecutor's office / 442
Unjustified non-compliance with other administrative obligations provided by law or regulations / 446
Immediate consequence / 449
Causal link / 449
The subjective side of the disciplinary violation / 449
Modalities and consumption of the deviation / 452
Section 14. Using the position held to obtain favorable treatment from the authorities or interventions to resolve requests, claiming or accepting the settlement of personal interests or family members or other persons, other than within the legal framework for all citizens, if the act does not meet the elements constitutive of a crime / 453
General considerations / 453
Regulation of disciplinary misconduct / 453
The similarities and differences between the analyzed disciplinary violation and other disciplinary violations / 455
The constitutive elements of the disciplinary violation / 455
The object of the disciplinary violation / 455
Legal object / 455
Material object / 457
The subject of disciplinary misconduct / 457
Active subject / 457
Passive subject / 458
The objective side of the disciplinary violation / 458
The material element / 458
Use of the position held in order to obtain a favorable treatment from the authorities, other than within the regulated legal framework for all citizens, if the deed does not meet the constitutive elements of a crime / 458
Interventions for solving some requests, other than within the regulated legal framework for all citizens, if the deed does not meet the constitutive elements of a crime / 463
Claiming or accepting the resolution of personal interests or of family members or other persons, other than within the legal framework regulated for all citizens, if the deed does not meet the constitutive elements of a crime / 466
Immediate consequence / 469
Causal link / 470
Subjective side of disciplinary misconduct / 470
Modalities and consumption of the deviation / 471
Section a15. Failure to comply with the provisions regarding the random distribution of cases / 473
General considerations / 473
The constitutive elements of the disciplinary violation / 476
The object of the disciplinary violation / 476
Legal object / 476
Material object / 484
The subject of disciplinary misconduct / 484
Active subject / 484
Passive subject / 486
The objective side of the disciplinary violation / 486
The material element / 486
Immediate consequence / 497
Causal link / 498
Sidesubjective of disciplinary misconduct / 498
Modalities and consumption of the deviation / 499
Section 16. Obstruction of the inspection activity of judicial inspectors, by any means / 500
General considerations / 500
Constitutive elements of the disciplinary violation / 500
The object of the disciplinary violation / 500
Legal object / 500
Material object / 506
The subject of disciplinary misconduct / 506
Active subject / 506
Passive subject / 506
The objective side of the disciplinary violation / 507
The material element. / 507
Immediate follow-up / 508
Causal link / 508
The subjective side of the disciplinary violation / 508
Modalities and consumption of the deviation / 509
Section 17. Direct participation or through persons interposed in pyramid games, games of chance or investment systems for which the transparency of funds is not ensured / 509
General considerations / 509
Regulation of disciplinary misconduct / 509
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 510
The constitutive elements of the disciplinary violation / 511
The object of the disciplinary violation / 511
Legal object / 511
Material object / 514
The subject of disciplinary misconduct / 514
Active subject / 514
Passive subject / 514
The objective side of the disciplinary violation / 514
The material element. / 514
Direct participation in pyramid games, games of chance or investment systems for which the transparency of funds is not ensured / 515
Participation through intermediaries in pyramid games, games of chance or investment systems for which the transparency of funds is not ensured / 520
Immediate follow-up / 520
Causal link / 520
The subjective side of the disciplinary violation / 521
Modalities and consumption of the deviation / 521
Section 18. Non-drafting or non-signing of court decisions or judicial acts of the prosecutor, for reasons
imputable, within the terms provided by law / 522
General considerations / 522
Regulation of disciplinary misconduct / 522
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 523
Constitutive elements of the disciplinary violation / 524
The object of the disciplinary violation / 524
Legal object / 524
Material object / 528
The subject of disciplinary misconduct / 528
Active subject / 528
Passive subject / 530
The objective side of the disciplinary violation / 530
Material element / 530
Non-drafting of court decisions or judicial acts of the prosecutor within the terms provided by law / 531
Failure to sign the court decisions or judicial acts of the prosecutor within the terms provided by law / 538
Immediate follow-up / 539
Causal link / 540
The subjective side of the disciplinary violation / 540
Modalities and consumption of the deviation / 542
Section 19. The use of inadequate expressions in court decisions or judicial acts of the prosecutor or the motivation clearly contrary to legal reasoning, likely to affect the prestige of justice or the dignity of the position of magistrate / 543
General considerations / 543
The constitutive elements of the disciplinary violation / 544
The object of the disciplinary violation / 544
Legal object / 544
Material object / 548
The subject of disciplinary misconduct / 549
Active subject / 549
Passive subject / 550
The objective side of the disciplinary violation / 550
Material element / 550
The use of inappropriate expressions in court decisions or judicial acts of the prosecutor, likely to affect the prestige of justice or the dignity of the position of magistrate / 550
Motivation clearly contrary to the legal reasoning of court decisions or judicial acts of the prosecutor, likely to affect the prestige of justice or the dignity of the position of magistrate / 554
Immediate consequence / 557
Causal link / 557
The subjective side of the disciplinary violation / 557
Modalities and consumption of the deviation / 558
Section 20. Non-compliance with the decisions of the Constitutional Court or of the decisions pronounced by the High Court of Cassation and Justice in
settlement of appeals in the interest of the law / 559
General considerations / 559
Regulation of disciplinary misconduct / 559
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 560
The constitutive elements of the disciplinary violation / 561
The object of the disciplinary violation / 561
Legal object / 561
Material object / 563
The subject of disciplinary misconduct / 563
Active subject / 563
Passive subject / 564
The objective side of the disciplinary violation / 564
The material element. / 564
Failure to comply with the decisions of the Constitutional Court / 564
Failure to comply with the decisions of the High Court of Cassation and Justice in resolving appeals in the interest of the law / 569
Immediate follow-up / 574
Causal link / 574
The subjective side of the disciplinary violation / 574
Modalities and consumption of the deviation /575
Section 21. Exercising the function with bad faith or serious negligence, if the deed does not meet the constitutive elements of a crime. / 576
General considerations / 576
Regulation of disciplinary misconduct / 576
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 578
The constitutive elements of the disciplinary violation / 578
The object of the disciplinary violation / 578
Legal object / 578
Material object / 580
The subject of disciplinary misconduct / 581
Active subject / 581
Passive subject / 581
The objective side of the disciplinary violation / 581
The material element. / 581
Exercising the function in bad faith, if the deed does not meet the constitutive elements of a crime. / 581
Exercising the function with serious negligence, if the deed does not meet the constitutive elements of a crime / 594
Immediate follow-up / 600
Causal link / 600
Subjective side of disciplinary misconduct / 600
Modalities and consumption of the deviation / 604
Chapter IV. Holders of disciplinary action / 606
Section 1. General considerations / 606
Section 2. Organization and functioning of the Judicial Inspection / 608
General provisions / 608
Principles governing the activity of the Judicial Inspection / 610
The principle of legality / 611
The principle of respecting the independence of the judge and prosecutor and of the res judicata authority / 611
Principle of operational independence / 612
The principle of impartiality and independence of inspectors / 612
The principle of confidentiality / 613
The principle of transparency / 614
Leading the Judicial Inspection / 614
Chief Inspector / 614
Deputy Chief Inspector / 618
Inspection directions / 619
Judicial Inspection Directorate for Judges / 620
Judicial inspection department for prosecutors. / 621
Section 3. Judicial inspectors / 621
Appointment of judicial inspectors / 621
Duties of judicial inspectors / 623
Duties related to the activity and conduct of judges, prosecutors and assistant magistrates from the High Court of Cassation
and Justice / 623
Attributions of analysis and control / 624
The judicial inspectors from the Inspection Directorate for judges have the following attributions of analysis and control / 624
The judicial inspectors from the Inspection Directorate for prosecutors have the following attributions of analysis and control: / 624
Evaluation of the professional activity of judicial inspectors / 625
Activity efficiency / 626
Quality of activity / 626
Integrity / 627
Communication / 627
Participation in other activities in the area of ​​competence / 627
General Assembly of Judicial Inspectors / 627
Chapter V. Procedure for disciplinary sanctioning of magistrates / 629
Section 1. Preliminary verification stage / 629
General considerations / 629
Methods of notification / 630
Conditions of notification / 632
Designation of judicial inspectors / 637
Connecting notifications / 644
Deadline for carrying out preliminary checks / 645
Carrying out preliminary checks / 649
Initial documentation / 649
Relationship request / 649
Carrying out direct checks / 650
Carrying out other activities or verifications necessary to clarify the notified aspects / 651
Completion of preliminary checks / 652
General provisions / 652
4.3. Beginning of disciplinary research / 659
Section 2. Stage of disciplinary research / 662
General considerations / 662
Fundamental principles of disciplinary research / 664
Mandatory disciplinary investigation if
finds that there are indications of committing a disciplinary offense / 664
Carrying out the disciplinary investigation by the judicial inspectors within the Judicial Inspection / 664
Carrying out the disciplinary investigation in relation to the quality of judge or prosecutor of the investigated person / 665
Carrying out the disciplinary investigation by the judicial inspector who ordered its beginning / 665
Carrying out disciplinary research in compliance with the legal provisions regarding classified information and data protection with
personal character / 667
The term for conducting the disciplinary investigation / 668
The object of disciplinary research / 670
The deeds committed by the magistrate / 670
The consequences of the deeds committed by the judge or prosecutor / 670
The circumstances in which the deeds were committed by the magistrate / 671
Other conclusive data regarding the commission of the deed by the magistrate / 672
The guilt of the magistrate / 672
Suspension of disciplinary investigation / 673
Initiation of the criminal action against the magistrate under disciplinary investigation / 673
The initiation of the criminal action against the disciplinary investigated magistrate was ordered for the same deed / 674
Suspension from office of the magistrate concerned during the disciplinary investigation / 676
Notion and conditions of suspension from office / 676
Ex officio suspension / 678
Suspension from office at the proposal of the judicial inspector / 678
Disciplinary research procedure / 683
Communication of the beginningdisciplinary research / 684
Verification of the defenses formulated by the magistrate and administration of the requested evidence / 686
Carrying out the actual disciplinary research / 686
Lack of the magistrate from conducting the disciplinary investigation / 687
The presence of the magistrate at the performance of the disciplinary investigation / 690
Bringing to the notice of the investigated magistrate all the activities carried out until the respective date / 690
Listening to the magistrate concerned / 691
Verification of defenses and administration of evidence requested in defense / / 692
Ex officio administration of any evidence that the judicial inspector deems necessary / 693
Presentation of the evidence of the magistrate concerned / 694
Completion of disciplinary research / 696
General considerations / 696
Admitting the notification, by exercising the disciplinary action and notifying the corresponding section of the Superior Council of
Magistracy / 697
Confirmation of resolution / 701
Completing the disciplinary research / 701
Revocation of the resolution issued by the judicial inspector / 703
Communication of the resolution for admitting the notification and for exercising the disciplinary action / 703
Rejection of the notification, if it finds, following the disciplinary investigation, that the conditions are not met
for the exercise of the action / 704
Contestation of the resolution rejecting the notification / 705
Section 3. The stage of judging the disciplinary action / 708
General considerations / 708
Principles of the disciplinary process / 709
The principle of notifying the disciplinary court exclusively by
the holder of the disciplinary action / 709
The principle of composing the panel of judges from all members
section of the Superior Council of Magistracy / 710
The principle of the competence of the disciplinary court according to
the quality of the researched person / 711
Partile / 712
Representation of the parties in the disciplinary process / 718
Representation of the applicant in the disciplinary proceedings / 718
Representation of the defendant in the disciplinary process / 719
Competence of the disciplinary court / 720
Composition of the disciplinary court / 722
Disciplinary action / 724
The terms of exercising the disciplinary action / 726
The term of 30 days from the completion of the disciplinary investigation / 727
The term of 2 years from the date when the deed was committed / 728
Procedure for resolving disciplinary action / 731
Suspension of the trial of the disciplinary action / 737
Practical aspects / 738
Deliberation and pronouncement of the decision / 742
The decision by which the section of the Superior Council of Magistracy solves the disciplinary action / 743
Section 4. The stage of solving the appeal / 746
General considerations / 746
Object of the appeal / 749
Holders of the appeal / 751
The time limit for appeal / 752
Application for appeal / 754
Grounds for appeal / 755
Procedure for resolving the appeal / 756
Submission of the appeal / 756
Appeals filtering procedure / 757
New evidence on appeal / 758
Rules regarding the judgment of the appeal / 759
Practical aspects / 759
Solutions of the court of appeal / 764
Admission of the appeal / 764
Dismissal of the appeal / 765
Annulment of the appeal / 765
Finding the expiration of the appeal / 765
The contestation in annulment and the revision of the decision of the disciplinary court / 767
Chapter VI. Disciplinary sanctions / 771
Section 1. General considerations regarding disciplinary sanctions / 771
Classification of disciplinary sanctions / 774
Depending on the effects produced on the service relations / 774
Depending on the degree of determination of the sanction / 775
Depending on the degree of severity of the sanction / 775
Features specific to disciplinary sanctions / 775
Section 2. Disciplinary sanctions / 777
Enumeration of disciplinary sanctions / 777
General considerations / 777
Criteria for individualization of disciplinary sanctions / 778
Analysis of disciplinary sanctions / 779
Warning / 779
Reduction of the gross monthly employment allowance by up to 25% for a period of up to one year / 781
Disciplinary transfer for an effective period from one year to 3 years to another court or another prosecutor's office, even immediately
inferior / 783
Suspension from office for a period of up to 6 months / 785
Relegation to a professional degree / 788
Exclusion from the magistracy / 789
Section 3. Prescription of the application of disciplinary liability / 791
Section 4. Deletion of disciplinary sanctions / 794
Chapter VII. Disciplinary liability in other legal professions / 796
Section 1. General considerations / 796
Section 2. Disciplinary liability of the bailiff / 798
General considerations / 798
Disciplinary violations / 801
Failure to observe professional secrecy / 801
Violation of incompatibilities and prohibitions provided by law / 803
Committing deeds that infringe on honor, professional probity or good morals / 805
Failure to fulfill the obligations regarding the professional training of trainee bailiffs, employed on a contract basis / 806
Systematic and negligent delay in carrying out the works/ 807
Unexcused absence from office / 808
Failure to advertise the sale through the Electronic Register of Advertising of the sale of goods subject to enforcement,
according to the provisions of art. 35 para. (2) / 809
Disciplinary sanctions / 809
Rebuke / 810
Warning / 810
Fine from 500 to 3,000 lei / 810
Suspension from office for a period of one month to 6 months / 811
Exclusion from the profession / 811
Holders of disciplinary action / 812
The term in which the disciplinary action can be exercised / 813
Disciplinary investigation procedure / 813
Procedure for solving the disciplinary action / 814
Disciplinary Council of the Chamber of Bailiffs / 814
The Superior Disciplinary Commission of the National Union of Bailiffs / 817
Deletion of disciplinary sanctions / 820
Section 3. Disciplinary liability of lawyers / 820
General considerations / 820
Disciplinary violations / 822
Disciplinary sanctions / 823
Holders of disciplinary action / 824
The term in which the disciplinary action can be exercised / 828
Disciplinary investigation procedure / 828
Procedure for resolving disciplinary action / 830
Bar Discipline Commission / 830
Central Discipline Commission / 831
The U.N.B.R. Council, constituted as a disciplinary court in its plenary / 831
Prescription of the application of disciplinary sanctions and their cancellation. / 833
Section 3. Disciplinary liability of notaries public / 833
General considerations / 833
Disciplinary violations / 836
Disciplinary sanctions / 837
Holders of disciplinary action / 838
The term in which the disciplinary action can be exercised / 840
Disciplinary research procedure / 840
Procedure for resolving disciplinary action / 841
Disciplinary Board / 841
Council of the Union. / 843
Prescription of the application of disciplinary sanctions and their cancellation. / 843
Section 4. Disciplinary liability of the specialized auxiliary staff of the courts and of the prosecutor's offices attached to them / 844
General considerations / 844
Disciplinary violations / 847
Disciplinary sanctions / 848
Holders of disciplinary action / 849
The term in which the disciplinary action can be exercised / 849
Disciplinary misconduct investigation procedure / 849
Procedure for applying the disciplinary sanction / 850
Deletion of disciplinary sanctions / 851
Section 5. Disciplinary liability of legal advisers / 851
General considerations / 851
Disciplinary violations / 853
Disciplinary sanctions / 855
Holders of disciplinary action / 856
Disciplinary misconduct investigation procedure / 856
5. Procedure for solving the disciplinary violation / 857
Deletion of disciplinary sanctions / 858
Section 5. Comparative analysis regarding disciplinary liability
within the legal professions / 859
Disciplinary violations / 859
Disciplinary sanctions / 862
Holders of disciplinary action / 864
The term in which the disciplinary action can be exercised / 865
Disciplinary action research procedure / 866
Procedure for resolving disciplinary action / 869
Deletion of disciplinary sanctions / 871
Conclusions / 872
Chapter VIII. Responsibility of magistrates for violating the norms of conduct regulated by the Deontological Code of Judges and Prosecutors / 873
Section 1. General notions about ethics and deontology / 873
Section 2. The deontological code of judges and prosecutors / 877
General considerations / 877
Independence of justice / 880
Promoting the rule of law / 883
Impartiality of judges and prosecutors / 884
Exercising professional duties / 886
Dignity and honor of the profession of judge or prosecutor / 889
Activities incompatible with the capacity of judge or prosecutor / 892
Deontology of the judge and the prosecutor / 894
The deontological code of judges and prosecutors. / 895
Social media and masked advertising / 896
Avoidance of legal advice by judges and prosecutors / 896
Mediation between freedom of expression and the reserve obligation / 896
The responsibility of the judge and the prosecutor on social media / 897
Educating judges and prosecutors in the use of social networks / 898
The judge and the prosecutor as a friend on social media / 898
Institutions within the judicial and social media system / 899
Section 3. The procedure for carrying out the verifications regarding the violation of the norms of conduct regulated by the Deontological Code / 900
General provisions / 900
Verification procedure / 903
Completion of the paper / 905
Carrying out direct checks / 905
Listening to the magistrate concerned / 906
Presentation of evidence / 907
Completion of checks. / 907
Section 4. Procedure for resolving complaints regarding the violation of the norms of conduct regulated by the Deontological Code / 909
Chapter IX. Liability for non-compliance with the condition of good reputation / 913
Section 1. General notions regarding the good reputation of magistrates / 913
Section 2. Fulfillshe's in good standing for
person admitted to the National Institute of Magistracy / 916
The facts analyzed for establishing the condition of good reputation / 916
Criteria taken into account when verifying the condition of good reputation / 917
Documents that are verified when establishing the condition of good reputation / 918
Documents submitted by candidates / 919
Documents requested by the competition admission commission / 919
Complaints submitted regarding candidates / 919
Documents from the professional file / 920
Competence to verify the condition of good reputation / 920
Section 3. Fulfilling the condition of good reputation at the graduation of the National Institute of Magistracy, prior to appointment as a trainee judge or prosecutor / 920
The facts analyzed for establishing the condition of good reputation / 921
Criteria taken into account when verifying the condition of good reputation / 921
Documents that are verified when establishing the condition of good reputation / 922
Documents submitted by candidates / 922
Documents requested by the National Institute of Magistracy / 922
Complaints submitted regarding graduates / 923
Documents from the professional file / 923
Competence to verify the condition of good reputation / 923
Section 4. Fulfilling the condition of good reputation at the appointment in the magistracy based on competition / 923
The facts analyzed for establishing the condition of good reputation / 924
Criteria taken into account when verifying the condition of good reputation / 925
Documents that are verified when establishing the condition of good reputation / 925
Documents submitted by candidates / 925
Documents requested by the competition admission commission / 926
Complaints submitted regarding candidates / 926
Documents from the professional file / 926
Competence to verify the condition of good reputation / 927
Section 5. Fulfilling the condition of good reputation at the appointment in the magistracy without competition or exam / 927
The facts analyzed for establishing the condition of good reputation / 928
Criteria taken into account when verifying the condition of good reputation / 928
Documents that are verified when establishing the condition of good reputation / 929
Documents submitted by the interested persons / 929
Documents requested by the Human Resources and Organization Department within the Superior Council of Magistracy. / 930
Documents from the professional file / 930
Competence to verify the condition of good reputation / 930
Section 6. Fulfilling the condition of good reputation for the judges and prosecutors in office / 930
General provisions / 930
The modalities of notification / 931
Designation of judicial inspectors / 932
Verification procedure / 933
General provisions / 933
Communication of documents and notification / 934
Listening to the magistrate concerned / 936
Presentation of evidence / 936
Completion of checks. / 937
Completion of checks / 938
Procedure for resolving complaints regarding the condition of good reputation for judges and prosecutors in office / 939
Suspension from office during the procedure of verification and ascertainment of the fulfillment of the condition of good reputation / 941
Suspension from office at the proposal of the judicial inspector / 941
Suspension from office, ex officio / 941
Chapter X. Defending the independence, impartiality or professional reputation of magistrates, the independence of the judiciary and the judiciary as a whole / 944
Independence of judges and prosecutors / 945
Independence of judges / 945
Independence of prosecutors / 954
Independence of the judiciary. / 956
Independence of the judicial authority as a whole / 958
Impartiality of judges and prosecutors / 958
Professional reputation of judges and prosecutors / 963
Procedure for carrying out checks on the defense of the independence, impartiality or professional reputation of magistrates, the independence of the judiciary and the judiciary as a whole / 966
Ways of notification / 966
Designation of judicial inspectors / 969
Waiver of application / 970
Procedure for effective verifications / 971
Completion of checks. / 973
Settlement procedure / 974
Chapter XI. Elements regarding the disciplinary liability of magistrates in comparative law / 976
Section 1. General considerations / 976
Section 2. Disciplinary liability of magistrates in Spain / 978
Section 3. Disciplinary liability of magistrates in France / 984
Section 4. Disciplinary liability of magistrates in Italy / 988
Section 5. Disciplinary liability of magistrates in the Republic of Moldova / 994
Section 6. Disciplinary liability of magistrates in Germany / 1001
Section 7. Disciplinary liability of magistrates in Poland / 1004
Section 8. Disciplinary liability of magistrates in Lithuania / 1006
BIBLIOGRAPHY / 1009
Chapter I. General considerations regarding the legal liability of magistrates / 7
Section 1. General notions regarding legal liability / 7
Section 2. Civil liability of magistrates / 11
General considerations / 11
Legal characteristics of the civil liability of magistrates / 13
Subsidiary character / 13
Indirect character / 13
General character / 14
Integral character / 14
Civil liability based on the provisions of the Code of Criminal Procedure / 15
The right to compensation for damage in case of judicial error / 16
The right to reparation in case of illegal deprivation of liberty / 17
Action for damages / 20
The holders and the term for introducing the action for reparation of the damage / 20
Competent court / 20
Type and extent of repair / 21
Civil liability based on the provisions of art. 96 of Law no. 303/2004 / 21
Civil liability based on the obligation of the state to pay sums of money established by ECHR decisions against Romania / 22
Procedure for carrying out verifications by the Judicial Inspection / 23
General provisions / 24
Conducting checks / 27
Completion of checks / 30
Completion of checks / 30
Action in regression / 32
Section 3. Criminal liability of magistrates / 33
General notions / 33
Approval of search, detention, house arrest and pre-trial detention of magistrates / 35
Investigation of crimes committed by magistrates / 37
Duties of the Section for the Investigation of Crimes in Justice / 39
Appointment and revocation of the Chief Prosecutor of the Section for the Investigation of Crimes in Justice / 40
Registration for the contest / 40
Organizing the contest / 41
Conduct of the contest / 42
Revocation from the position of Chief Prosecutor of the Section for the Investigation of Crimes in Justice / 44
Appointment and dismissal of the Deputy Chief Prosecutor of the Section for the Investigation of Crimes in Justice / 45
Appointment, continuation of activity and revocation of prosecutors with executive positions within the Section for investigation
crimes in justice / 47
Contest registration / 47
Organizing the contest / 47
Conduct of the contest / 50
Continuation of the activity within the section / 54
Dismissal of prosecutors with executive positions within section / 54
Judgment of crimes committed by magistrates / 56
Section 4. Contraventional liability of magistrates / 56
General notions / 56
The contraventional liability regulated by Law no. 176/2010 on integrity in the exercise of functions and dignities
public / 58
Section 5. Moral responsibility of magistrates / 60
Section 6. "Administrative" liability of magistrates / 63
Professional incapacity / 64
Mental illness / 67
Good reputation / 68
Unjustified absence from the aptitude test or rejection of the candidate at two sessions / 69
Chapter II. Disciplinary liability of magistrates / 70
Section 1. General considerations / 70
Notion and definition / 70
General features of disciplinary liability / 73
Specific features of the disciplinary liability of magistrates / 74
Section 2. Regulation of disciplinary liability of magistrates / 75
Section 3. Disciplinary violation / 81
Defining the disciplinary violation / 81
Classification of disciplinary offenses / 87
Depending on the quality of the active subject / 87
Depending on the manner of committing disciplinary offenses / 91
Depending on the nature of the deeds committed / 92
Depending on the principles it interferes with / 94
Depending on the external manifestation of the disciplinary violation / 94
Depending on the subjective element of the disciplinary violation / 96
The similarities and differences between disciplinary violations / 97
Section 4. The constitutive elements of the disciplinary violation / 99
The object of the disciplinary violation / 99
Legal object / 99
Material object / 107
The subject of disciplinary misconduct / 108
Active subject / 108
General conditions of the active subject / 115
Passive subject / 118
The objective side of the disciplinary violation / 118
The material element / 119
Immediate consequence / 121
Causal link / 122
The subjective side of the disciplinary violation / 123
Section 5. Cases that remove the disciplinary liability of magistrates / 126
General considerations / 126
Justifying causes / 127
Causes of imputability / 128
Other cases that remove disciplinary liability / 131
Chapter III. Analysis of disciplinary violations / 134
Section 1. Manifestations that prejudice the professional honor or probity or the prestige of justice, committed in the exercise or outside the exercise of service attributions / 134
General considerations / 134
Regulation of disciplinary misconduct / 134
The similarities and differences between the analyzed disciplinary violation and other disciplinary violations / 135
The constitutive elements of the disciplinary violation / 136
The object of the disciplinary violation / 136
The legal object/ 136
Material object / 138
The subject of disciplinary misconduct / 138
Active subject / 138
Passive subject / 139
The objective side of the disciplinary violation / 139
The material element / 139
Immediate consequence / 155
Causal link / 155
The subjective side of the disciplinary violation / 156
Modalities and consumption of the deviation / 158
Section 2. Violation of the legal provisions regarding incompatibilities and interdictions regarding judges and prosecutors / 158
General considerations / 158
Regulation of disciplinary misconduct / 158
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 160
The constitutive elements of the disciplinary violation / 162
The object of the disciplinary violation / 162
Legal object / 162
Material object / 168
The subject of disciplinary misconduct / 168
Active subject / 168
Passive subject / 169
The objective side of the disciplinary violation / 169
The material element. / 169
Incompatibilities of the judge and the prosecutor / 171
Incompatibility of the position of judge or
prosecutor with any other public or private position / 171
Incompatibility of the position of judge or prosecutor with the effective exercise of these functions / 184
Incompatibilities regulated by the Code of Civil Procedure / 185
Incompatibilities regulated by the Code of Criminal Procedure / 189
Prohibitions of the judge and the prosecutor / 192
Prohibitions of a professional nature / 192
Prohibitions of a commercial nature / 197
Prohibitions of a political nature / 200
Prohibitions of a social nature / 202
Prohibitions regarding the exercise of other functions / 205
Prohibitions regarding the dignity of the position / 207
Immediate consequence / 211
Causal link / 212
The subjective side of the disciplinary violation / 212
Modalities and consumption of the deviation / 214
Section 3. Unworthy attitudes during the exercise of official duties towards colleagues, other staff of the court or prosecutor's office in which they operate, judicial inspectors, lawyers, experts, witnesses, litigants or representatives of other institutions / 215
General considerations / 215
Regulation of disciplinary misconduct / 215
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 215
The constitutive elements of the disciplinary violation / 216
The object of the disciplinary violation / 216
Legal object / 216
Material object / 218
The subject of disciplinary misconduct / 218
Active subject / 218
Passive subject / 218
The objective side of the disciplinary violation / 219
The material element / 219
Immediate follow-up / 226
Causal link / 226
The subjective side of the disciplinary violation / 226
Modalities and consumption of the deviation / 227
Section 4. Carrying out public activities of a political nature or manifesting political convictions in the exercise of official duties / 228
General considerations / 228
Regulation of disciplinary misconduct / 228
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 229
The constitutive elements of the disciplinary violation / 230
The object of the disciplinary violation / 230
Legal object / 230
Material object / 232
The subject of disciplinary misconduct / 233
Active subject / 233
Passive subject / 233
The objective side of the disciplinary violation / 233
The material element / 233
Carrying out public activities of a political nature / 235
Manifestation of political convictions in the exercise of official duties / 236
Immediate consequence / 238
Causal link / 238
The subjective side of the disciplinary violation / 238
Modalities and consumption of the deviation / 239
Section 5. Unjustified refusal to receive in the file the requests, conclusions, memoranda or documents submitted by the parties to the process / 239
General considerations / 239
Regulation of disciplinary misconduct / 239
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 240
The constitutive elements of the disciplinary violation / 241
The object of the disciplinary violation / 241
Legal object / 241
Material object / 245
The subject of disciplinary misconduct / 245
Active subject / 245
Passive subject / 246
The objective side of the disciplinary violation / 246
The material element / 246
Immediate follow-up / 250
Causal link / 250
The subjective side of the disciplinary violation / 251
Modalities and consumption of the deviation / 251
Section 6. Unjustified refusal to perform a duty of service / 252
General considerations / 252
Regulation of disciplinary misconduct / 252
Similarities and differences between the analyzed disciplinary misconduct and other types of disciplinary misconduct / 252
The constitutive elements of the disciplinary violation / 253
The object of the disciplinary violation / 253
Legal object / 253
Material object / 258
The subject of disciplinary misconduct / 259
Active subject / 259
Passive subject / 259
The objective side of the disciplinary violation / 259
The material element. / 259
The duty of the magistrate to perfcontinuously selects the professional training, according to the specialization needs / 260
The duty of the magistrate to respect the norms of the deontological code, the legal provisions, those resulting from the regulations,
from the decisions of the general assemblies and of the management colleges / 265
The duty of the magistrate to participate in the court hearings, in the panels established according to the law / 269
The duty of the magistrate to wear during the court hearing the attire corresponding to the court where he works / 272
The duty of the magistrate to submit the declaration of assets and the declaration of interests / 273
The duty of the magistrate to immediately inform the president of the court in which the fact that
it was ordered to be sent to court / 274
The duty of the magistrate to fulfill other attributions than those regarding the judicial activity / 275
Immediate follow-up / 276
Causal link / 276
The subjective side of the disciplinary violation / 276
Modalities and consumption of the deviation / 278
Section 7. Failure by the prosecutor to comply with the provisions of the hierarchically superior prosecutor, given in writing and in accordance with the law / 278
General considerations / 278
Regulation of disciplinary misconduct / 278
The similarities and differences between the analyzed disciplinary violation and other disciplinary violations / 279
The constitutive elements of the disciplinary violation / 280
The object of the disciplinary violation / 280
Legal object / 280
Material object / 282
Active subject / 282
Passive subject / 283
The objective side of the disciplinary violation / 283
The material element / 283
Immediate follow-up / 289
Causal link / 289
The subjective side of the disciplinary violation / 289
Modalities and consumption of the deviation / 290
Section 8. Repeated non-compliance and for imputable reasons with the legal provisions regarding the speedy settlement of cases or repeated delay in carrying out the works, for imputable reasons / 291
General considerations / 291
Regulation of disciplinary misconduct / 291
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 292
The constitutive elements of the disciplinary violation / 293
The object of the disciplinary violation / 293
Legal object / 293
Material object / 295
The subject of disciplinary misconduct / 295
Active subject / 295
Passive subject / 297
The objective side of the disciplinary violation / 297
The material element / 297
Repeated non-compliance with the legal provisions regarding the speedy settlement of cases / 298
Repeated delay in performing the works / 304
Immediate follow-up / 307
Causal link / 307
The subjective side of the disciplinary violation / 307
Modalities and consumption of the deviation / 309
Section 9. Failure to comply with the duty to abstain when the judge or prosecutor knows that there is one of the causes provided by law for his abstention, as well as the formulation of repeated and unjustified requests for abstention in the same case, which has the effect of delaying the trial / 310
General considerations / 310
Regulation of disciplinary misconduct / 310
The similarities and differences between the analyzed disciplinary violation and other disciplinary violations / 311
The constitutive elements of the disciplinary violation / 311
The object of the disciplinary violation / 311
Legal object / 311
Material object / 315
The subject of disciplinary misconduct / 315
Active subject / 315
Passive subject / 316
The objective side of the disciplinary violation / 316
The material element. / 316
Failure to comply with the duty to abstain when the judge or prosecutor knows that there is one of the causes provided by law for his abstention / 316
Formulation of repeated and unjustified requests for abstention in the same case, which has the effect of delaying the trial / 353
Immediate consequence / 356
Causal link / 357
The subjective side of the disciplinary violation / 357
Modalities and consumption of the deviation / 359
Section 10. Failure to observe the secrecy of the deliberation or confidentiality of works of this nature, as well as other information of the same nature of which he became aware in the exercise of office, except for those of public interest, under the law, if the act does not constitute a crime / 360
General considerations / 360
The constitutive elements of the disciplinary violation / 361
The object of the disciplinary violation / 361
Legal object / 361
Material object / 364
The subject of disciplinary misconduct / 365
Active subject / 365
Passive subject / 367
The objective side of the disciplinary violation / 367
The material element. / 367
Failure to observe the secrecy of the deliberation, if the deed does not constitute a crime / 368
Failure to respect the confidentiality of works that have this character, if the deed does not constitute a crime / 373
Failure to comply with the secret or confidential nature of other information that the magistrate became aware of in the exercise of office, if the act does not constitute a crime / 376
Immediate consequence / 379Causal link / 379
Subjective side of disciplinary misconduct / 380
Modalities and consumption of the deviation / 382
Section 11. Unexcused absences from work, repeatedly or directly affecting the activity of the court or the prosecutor's office / 383
General considerations / 383
The constitutive elements of the disciplinary violation / 384
The object of the disciplinary violation / 384
Legal object / 384
Material object / 387
The subject of disciplinary misconduct / 387
Active subject / 387
Passive subject / 388
The objective side of the disciplinary violation / 388
The material element / 388
Unexcused absences from work, repeatedly / 388
Unexcused absences from work that directly affect the activity of the court or the prosecutor's office / 397
Immediate follow-up / 398
Causal link / 399
The subjective side of the disciplinary violation / 399
Modalities and consumption of the deviation / 400
Section 12. Interference in the activity of another judge or prosecutor / 401
General considerations / 401
Regulation of disciplinary misconduct / 401
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 402
The constitutive elements of the disciplinary violation / 403
The object of the disciplinary violation / 403
Legal object / 403
Material object / 409
The subject of disciplinary misconduct / 409
Active subject / 409
Passive subject / 409
The objective side of the disciplinary violation / 410
Material element / 410
Immediate consequence / 432
Causal link / 432
The subjective side of the disciplinary violation / 432
Modalities and consumption of the deviation / 433
Section 13. Unjustifiably non-compliance with administrative provisions or decisions ordered in accordance with the law by the head of the court or prosecutor's office or other administrative obligations provided by law or regulations / 434
General considerations / 434
Regulation of disciplinary misconduct / 434
The similarities and differences between the analyzed disciplinary violation and other disciplinary violations / 435
The constitutive elements of the disciplinary violation / 437
The object of the disciplinary violation / 437
Legal object / 437
Material object / 441
The subject of disciplinary misconduct / 441
Active subject / 441
Passive subject / 442
The objective side of the disciplinary violation / 442
The material element. / 442
Unjustifiably non-compliance with administrative provisions or decisions ordered in accordance with the law by the head of the court or prosecutor's office / 442
Unjustified non-compliance with other administrative obligations provided by law or regulations / 446
Immediate consequence / 449
Causal link / 449
The subjective side of the disciplinary violation / 449
Modalities and consumption of the deviation / 452
Section 14. Using the position held to obtain favorable treatment from the authorities or interventions to resolve requests, claiming or accepting the settlement of personal interests or family members or other persons, other than within the legal framework for all citizens, if the act does not meet the elements constitutive of a crime / 453
General considerations / 453
Regulation of disciplinary misconduct / 453
The similarities and differences between the analyzed disciplinary violation and other disciplinary violations / 455
The constitutive elements of the disciplinary violation / 455
The object of the disciplinary violation / 455
Legal object / 455
Material object / 457
The subject of disciplinary misconduct / 457
Active subject / 457
Passive subject / 458
The objective side of the disciplinary violation / 458
The material element / 458
Use of the position held in order to obtain a favorable treatment from the authorities, other than within the regulated legal framework for all citizens, if the deed does not meet the constitutive elements of a crime / 458
Interventions for solving some requests, other than within the regulated legal framework for all citizens, if the deed does not meet the constitutive elements of a crime / 463
Claiming or accepting the resolution of personal interests or of family members or other persons, other than within the legal framework regulated for all citizens, if the deed does not meet the constitutive elements of a crime / 466
Immediate consequence / 469
Causal link / 470
Subjective side of disciplinary misconduct / 470
Modalities and consumption of the deviation / 471
Section a15. Failure to comply with the provisions regarding the random distribution of cases / 473
General considerations / 473
The constitutive elements of the disciplinary violation / 476
The object of the disciplinary violation / 476
Legal object / 476
Material object / 484
The subject of disciplinary misconduct / 484
Active subject / 484
Passive subject / 486
The objective side of the disciplinary violation / 486
The material element / 486
Immediate consequence / 497
Causal link / 498
Sidesubjective of disciplinary misconduct / 498
Modalities and consumption of the deviation / 499
Section 16. Obstruction of the inspection activity of judicial inspectors, by any means / 500
General considerations / 500
Constitutive elements of the disciplinary violation / 500
The object of the disciplinary violation / 500
Legal object / 500
Material object / 506
The subject of disciplinary misconduct / 506
Active subject / 506
Passive subject / 506
The objective side of the disciplinary violation / 507
The material element. / 507
Immediate follow-up / 508
Causal link / 508
The subjective side of the disciplinary violation / 508
Modalities and consumption of the deviation / 509
Section 17. Direct participation or through persons interposed in pyramid games, games of chance or investment systems for which the transparency of funds is not ensured / 509
General considerations / 509
Regulation of disciplinary misconduct / 509
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 510
The constitutive elements of the disciplinary violation / 511
The object of the disciplinary violation / 511
Legal object / 511
Material object / 514
The subject of disciplinary misconduct / 514
Active subject / 514
Passive subject / 514
The objective side of the disciplinary violation / 514
The material element. / 514
Direct participation in pyramid games, games of chance or investment systems for which the transparency of funds is not ensured / 515
Participation through intermediaries in pyramid games, games of chance or investment systems for which the transparency of funds is not ensured / 520
Immediate follow-up / 520
Causal link / 520
The subjective side of the disciplinary violation / 521
Modalities and consumption of the deviation / 521
Section 18. Non-drafting or non-signing of court decisions or judicial acts of the prosecutor, for reasons
imputable, within the terms provided by law / 522
General considerations / 522
Regulation of disciplinary misconduct / 522
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 523
Constitutive elements of the disciplinary violation / 524
The object of the disciplinary violation / 524
Legal object / 524
Material object / 528
The subject of disciplinary misconduct / 528
Active subject / 528
Passive subject / 530
The objective side of the disciplinary violation / 530
Material element / 530
Non-drafting of court decisions or judicial acts of the prosecutor within the terms provided by law / 531
Failure to sign the court decisions or judicial acts of the prosecutor within the terms provided by law / 538
Immediate follow-up / 539
Causal link / 540
The subjective side of the disciplinary violation / 540
Modalities and consumption of the deviation / 542
Section 19. The use of inadequate expressions in court decisions or judicial acts of the prosecutor or the motivation clearly contrary to legal reasoning, likely to affect the prestige of justice or the dignity of the position of magistrate / 543
General considerations / 543
The constitutive elements of the disciplinary violation / 544
The object of the disciplinary violation / 544
Legal object / 544
Material object / 548
The subject of disciplinary misconduct / 549
Active subject / 549
Passive subject / 550
The objective side of the disciplinary violation / 550
Material element / 550
The use of inappropriate expressions in court decisions or judicial acts of the prosecutor, likely to affect the prestige of justice or the dignity of the position of magistrate / 550
Motivation clearly contrary to the legal reasoning of court decisions or judicial acts of the prosecutor, likely to affect the prestige of justice or the dignity of the position of magistrate / 554
Immediate consequence / 557
Causal link / 557
The subjective side of the disciplinary violation / 557
Modalities and consumption of the deviation / 558
Section 20. Non-compliance with the decisions of the Constitutional Court or of the decisions pronounced by the High Court of Cassation and Justice in
settlement of appeals in the interest of the law / 559
General considerations / 559
Regulation of disciplinary misconduct / 559
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 560
The constitutive elements of the disciplinary violation / 561
The object of the disciplinary violation / 561
Legal object / 561
Material object / 563
The subject of disciplinary misconduct / 563
Active subject / 563
Passive subject / 564
The objective side of the disciplinary violation / 564
The material element. / 564
Failure to comply with the decisions of the Constitutional Court / 564
Failure to comply with the decisions of the High Court of Cassation and Justice in resolving appeals in the interest of the law / 569
Immediate follow-up / 574
Causal link / 574
The subjective side of the disciplinary violation / 574
Modalities and consumption of the deviation /575
Section 21. Exercising the function with bad faith or serious negligence, if the deed does not meet the constitutive elements of a crime. / 576
General considerations / 576
Regulation of disciplinary misconduct / 576
Similarities and differences between the analyzed disciplinary violation and other types of disciplinary violations / 578
The constitutive elements of the disciplinary violation / 578
The object of the disciplinary violation / 578
Legal object / 578
Material object / 580
The subject of disciplinary misconduct / 581
Active subject / 581
Passive subject / 581
The objective side of the disciplinary violation / 581
The material element. / 581
Exercising the function in bad faith, if the deed does not meet the constitutive elements of a crime. / 581
Exercising the function with serious negligence, if the deed does not meet the constitutive elements of a crime / 594
Immediate follow-up / 600
Causal link / 600
Subjective side of disciplinary misconduct / 600
Modalities and consumption of the deviation / 604
Chapter IV. Holders of disciplinary action / 606
Section 1. General considerations / 606
Section 2. Organization and functioning of the Judicial Inspection / 608
General provisions / 608
Principles governing the activity of the Judicial Inspection / 610
The principle of legality / 611
The principle of respecting the independence of the judge and prosecutor and of the res judicata authority / 611
Principle of operational independence / 612
The principle of impartiality and independence of inspectors / 612
The principle of confidentiality / 613
The principle of transparency / 614
Leading the Judicial Inspection / 614
Chief Inspector / 614
Deputy Chief Inspector / 618
Inspection directions / 619
Judicial Inspection Directorate for Judges / 620
Judicial inspection department for prosecutors. / 621
Section 3. Judicial inspectors / 621
Appointment of judicial inspectors / 621
Duties of judicial inspectors / 623
Duties related to the activity and conduct of judges, prosecutors and assistant magistrates from the High Court of Cassation
and Justice / 623
Attributions of analysis and control / 624
The judicial inspectors from the Inspection Directorate for judges have the following attributions of analysis and control / 624
The judicial inspectors from the Inspection Directorate for prosecutors have the following attributions of analysis and control: / 624
Evaluation of the professional activity of judicial inspectors / 625
Activity efficiency / 626
Quality of activity / 626
Integrity / 627
Communication / 627
Participation in other activities in the area of ​​competence / 627
General Assembly of Judicial Inspectors / 627
Chapter V. Procedure for disciplinary sanctioning of magistrates / 629
Section 1. Preliminary verification stage / 629
General considerations / 629
Methods of notification / 630
Conditions of notification / 632
Designation of judicial inspectors / 637
Connecting notifications / 644
Deadline for carrying out preliminary checks / 645
Carrying out preliminary checks / 649
Initial documentation / 649
Relationship request / 649
Carrying out direct checks / 650
Carrying out other activities or verifications necessary to clarify the notified aspects / 651
Completion of preliminary checks / 652
General provisions / 652
4.3. Beginning of disciplinary research / 659
Section 2. Stage of disciplinary research / 662
General considerations / 662
Fundamental principles of disciplinary research / 664
Mandatory disciplinary investigation if
finds that there are indications of committing a disciplinary offense / 664
Carrying out the disciplinary investigation by the judicial inspectors within the Judicial Inspection / 664
Carrying out the disciplinary investigation in relation to the quality of judge or prosecutor of the investigated person / 665
Carrying out the disciplinary investigation by the judicial inspector who ordered its beginning / 665
Carrying out disciplinary research in compliance with the legal provisions regarding classified information and data protection with
personal character / 667
The term for conducting the disciplinary investigation / 668
The object of disciplinary research / 670
The deeds committed by the magistrate / 670
The consequences of the deeds committed by the judge or prosecutor / 670
The circumstances in which the deeds were committed by the magistrate / 671
Other conclusive data regarding the commission of the deed by the magistrate / 672
The guilt of the magistrate / 672
Suspension of disciplinary investigation / 673
Initiation of the criminal action against the magistrate under disciplinary investigation / 673
The initiation of the criminal action against the disciplinary investigated magistrate was ordered for the same deed / 674
Suspension from office of the magistrate concerned during the disciplinary investigation / 676
Notion and conditions of suspension from office / 676
Ex officio suspension / 678
Suspension from office at the proposal of the judicial inspector / 678
Disciplinary research procedure / 683
Communication of the beginningdisciplinary research / 684
Verification of the defenses formulated by the magistrate and administration of the requested evidence / 686
Carrying out the actual disciplinary research / 686
Lack of the magistrate from conducting the disciplinary investigation / 687
The presence of the magistrate at the performance of the disciplinary investigation / 690
Bringing to the notice of the investigated magistrate all the activities carried out until the respective date / 690
Listening to the magistrate concerned / 691
Verification of defenses and administration of evidence requested in defense / / 692
Ex officio administration of any evidence that the judicial inspector deems necessary / 693
Presentation of the evidence of the magistrate concerned / 694
Completion of disciplinary research / 696
General considerations / 696
Admitting the notification, by exercising the disciplinary action and notifying the corresponding section of the Superior Council of
Magistracy / 697
Confirmation of resolution / 701
Completing the disciplinary research / 701
Revocation of the resolution issued by the judicial inspector / 703
Communication of the resolution for admitting the notification and for exercising the disciplinary action / 703
Rejection of the notification, if it finds, following the disciplinary investigation, that the conditions are not met
for the exercise of the action / 704
Contestation of the resolution rejecting the notification / 705
Section 3. The stage of judging the disciplinary action / 708
General considerations / 708
Principles of the disciplinary process / 709
The principle of notifying the disciplinary court exclusively by
the holder of the disciplinary action / 709
The principle of composing the panel of judges from all members
section of the Superior Council of Magistracy / 710
The principle of the competence of the disciplinary court according to
the quality of the researched person / 711
Partile / 712
Representation of the parties in the disciplinary process / 718
Representation of the applicant in the disciplinary proceedings / 718
Representation of the defendant in the disciplinary process / 719
Competence of the disciplinary court / 720
Composition of the disciplinary court / 722
Disciplinary action / 724
The terms of exercising the disciplinary action / 726
The term of 30 days from the completion of the disciplinary investigation / 727
The term of 2 years from the date when the deed was committed / 728
Procedure for resolving disciplinary action / 731
Suspension of the trial of the disciplinary action / 737
Practical aspects / 738
Deliberation and pronouncement of the decision / 742
The decision by which the section of the Superior Council of Magistracy solves the disciplinary action / 743
Section 4. The stage of solving the appeal / 746
General considerations / 746
Object of the appeal / 749
Holders of the appeal / 751
The time limit for appeal / 752
Application for appeal / 754
Grounds for appeal / 755
Procedure for resolving the appeal / 756
Submission of the appeal / 756
Appeals filtering procedure / 757
New evidence on appeal / 758
Rules regarding the judgment of the appeal / 759
Practical aspects / 759
Solutions of the court of appeal / 764
Admission of the appeal / 764
Dismissal of the appeal / 765
Annulment of the appeal / 765
Finding the expiration of the appeal / 765
The contestation in annulment and the revision of the decision of the disciplinary court / 767
Chapter VI. Disciplinary sanctions / 771
Section 1. General considerations regarding disciplinary sanctions / 771
Classification of disciplinary sanctions / 774
Depending on the effects produced on the service relations / 774
Depending on the degree of determination of the sanction / 775
Depending on the degree of severity of the sanction / 775
Features specific to disciplinary sanctions / 775
Section 2. Disciplinary sanctions / 777
Enumeration of disciplinary sanctions / 777
General considerations / 777
Criteria for individualization of disciplinary sanctions / 778
Analysis of disciplinary sanctions / 779
Warning / 779
Reduction of the gross monthly employment allowance by up to 25% for a period of up to one year / 781
Disciplinary transfer for an effective period from one year to 3 years to another court or another prosecutor's office, even immediately
inferior / 783
Suspension from office for a period of up to 6 months / 785
Relegation to a professional degree / 788
Exclusion from the magistracy / 789
Section 3. Prescription of the application of disciplinary liability / 791
Section 4. Deletion of disciplinary sanctions / 794
Chapter VII. Disciplinary liability in other legal professions / 796
Section 1. General considerations / 796
Section 2. Disciplinary liability of the bailiff / 798
General considerations / 798
Disciplinary violations / 801
Failure to observe professional secrecy / 801
Violation of incompatibilities and prohibitions provided by law / 803
Committing deeds that infringe on honor, professional probity or good morals / 805
Failure to fulfill the obligations regarding the professional training of trainee bailiffs, employed on a contract basis / 806
Systematic and negligent delay in carrying out the works/ 807
Unexcused absence from office / 808
Failure to advertise the sale through the Electronic Register of Advertising of the sale of goods subject to enforcement,
according to the provisions of art. 35 para. (2) / 809
Disciplinary sanctions / 809
Rebuke / 810
Warning / 810
Fine from 500 to 3,000 lei / 810
Suspension from office for a period of one month to 6 months / 811
Exclusion from the profession / 811
Holders of disciplinary action / 812
The term in which the disciplinary action can be exercised / 813
Disciplinary investigation procedure / 813
Procedure for solving the disciplinary action / 814
Disciplinary Council of the Chamber of Bailiffs / 814
The Superior Disciplinary Commission of the National Union of Bailiffs / 817
Deletion of disciplinary sanctions / 820
Section 3. Disciplinary liability of lawyers / 820
General considerations / 820
Disciplinary violations / 822
Disciplinary sanctions / 823
Holders of disciplinary action / 824
The term in which the disciplinary action can be exercised / 828
Disciplinary investigation procedure / 828
Procedure for resolving disciplinary action / 830
Bar Discipline Commission / 830
Central Discipline Commission / 831
The U.N.B.R. Council, constituted as a disciplinary court in its plenary / 831
Prescription of the application of disciplinary sanctions and their cancellation. / 833
Section 3. Disciplinary liability of notaries public / 833
General considerations / 833
Disciplinary violations / 836
Disciplinary sanctions / 837
Holders of disciplinary action / 838
The term in which the disciplinary action can be exercised / 840
Disciplinary research procedure / 840
Procedure for resolving disciplinary action / 841
Disciplinary Board / 841
Council of the Union. / 843
Prescription of the application of disciplinary sanctions and their cancellation. / 843
Section 4. Disciplinary liability of the specialized auxiliary staff of the courts and of the prosecutor's offices attached to them / 844
General considerations / 844
Disciplinary violations / 847
Disciplinary sanctions / 848
Holders of disciplinary action / 849
The term in which the disciplinary action can be exercised / 849
Disciplinary misconduct investigation procedure / 849
Procedure for applying the disciplinary sanction / 850
Deletion of disciplinary sanctions / 851
Section 5. Disciplinary liability of legal advisers / 851
General considerations / 851
Disciplinary violations / 853
Disciplinary sanctions / 855
Holders of disciplinary action / 856
Disciplinary misconduct investigation procedure / 856
5. Procedure for solving the disciplinary violation / 857
Deletion of disciplinary sanctions / 858
Section 5. Comparative analysis regarding disciplinary liability
within the legal professions / 859
Disciplinary violations / 859
Disciplinary sanctions / 862
Holders of disciplinary action / 864
The term in which the disciplinary action can be exercised / 865
Disciplinary action research procedure / 866
Procedure for resolving disciplinary action / 869
Deletion of disciplinary sanctions / 871
Conclusions / 872
Chapter VIII. Responsibility of magistrates for violating the norms of conduct regulated by the Deontological Code of Judges and Prosecutors / 873
Section 1. General notions about ethics and deontology / 873
Section 2. The deontological code of judges and prosecutors / 877
General considerations / 877
Independence of justice / 880
Promoting the rule of law / 883
Impartiality of judges and prosecutors / 884
Exercising professional duties / 886
Dignity and honor of the profession of judge or prosecutor / 889
Activities incompatible with the capacity of judge or prosecutor / 892
Deontology of the judge and the prosecutor / 894
The deontological code of judges and prosecutors. / 895
Social media and masked advertising / 896
Avoidance of legal advice by judges and prosecutors / 896
Mediation between freedom of expression and the reserve obligation / 896
The responsibility of the judge and the prosecutor on social media / 897
Educating judges and prosecutors in the use of social networks / 898
The judge and the prosecutor as a friend on social media / 898
Institutions within the judicial and social media system / 899
Section 3. The procedure for carrying out the verifications regarding the violation of the norms of conduct regulated by the Deontological Code / 900
General provisions / 900
Verification procedure / 903
Completion of the paper / 905
Carrying out direct checks / 905
Listening to the magistrate concerned / 906
Presentation of evidence / 907
Completion of checks. / 907
Section 4. Procedure for resolving complaints regarding the violation of the norms of conduct regulated by the Deontological Code / 909
Chapter IX. Liability for non-compliance with the condition of good reputation / 913
Section 1. General notions regarding the good reputation of magistrates / 913
Section 2. Fulfillshe's in good standing for
person admitted to the National Institute of Magistracy / 916
The facts analyzed for establishing the condition of good reputation / 916
Criteria taken into account when verifying the condition of good reputation / 917
Documents that are verified when establishing the condition of good reputation / 918
Documents submitted by candidates / 919
Documents requested by the competition admission commission / 919
Complaints submitted regarding candidates / 919
Documents from the professional file / 920
Competence to verify the condition of good reputation / 920
Section 3. Fulfilling the condition of good reputation at the graduation of the National Institute of Magistracy, prior to appointment as a trainee judge or prosecutor / 920
The facts analyzed for establishing the condition of good reputation / 921
Criteria taken into account when verifying the condition of good reputation / 921
Documents that are verified when establishing the condition of good reputation / 922
Documents submitted by candidates / 922
Documents requested by the National Institute of Magistracy / 922
Complaints submitted regarding graduates / 923
Documents from the professional file / 923
Competence to verify the condition of good reputation / 923
Section 4. Fulfilling the condition of good reputation at the appointment in the magistracy based on competition / 923
The facts analyzed for establishing the condition of good reputation / 924
Criteria taken into account when verifying the condition of good reputation / 925
Documents that are verified when establishing the condition of good reputation / 925
Documents submitted by candidates / 925
Documents requested by the competition admission commission / 926
Complaints submitted regarding candidates / 926
Documents from the professional file / 926
Competence to verify the condition of good reputation / 927
Section 5. Fulfilling the condition of good reputation at the appointment in the magistracy without competition or exam / 927
The facts analyzed for establishing the condition of good reputation / 928
Criteria taken into account when verifying the condition of good reputation / 928
Documents that are verified when establishing the condition of good reputation / 929
Documents submitted by the interested persons / 929
Documents requested by the Human Resources and Organization Department within the Superior Council of Magistracy. / 930
Documents from the professional file / 930
Competence to verify the condition of good reputation / 930
Section 6. Fulfilling the condition of good reputation for the judges and prosecutors in office / 930
General provisions / 930
The modalities of notification / 931
Designation of judicial inspectors / 932
Verification procedure / 933
General provisions / 933
Communication of documents and notification / 934
Listening to the magistrate concerned / 936
Presentation of evidence / 936
Completion of checks. / 937
Completion of checks / 938
Procedure for resolving complaints regarding the condition of good reputation for judges and prosecutors in office / 939
Suspension from office during the procedure of verification and ascertainment of the fulfillment of the condition of good reputation / 941
Suspension from office at the proposal of the judicial inspector / 941
Suspension from office, ex officio / 941
Chapter X. Defending the independence, impartiality or professional reputation of magistrates, the independence of the judiciary and the judiciary as a whole / 944
Independence of judges and prosecutors / 945
Independence of judges / 945
Independence of prosecutors / 954
Independence of the judiciary. / 956
Independence of the judicial authority as a whole / 958
Impartiality of judges and prosecutors / 958
Professional reputation of judges and prosecutors / 963
Procedure for carrying out checks on the defense of the independence, impartiality or professional reputation of magistrates, the independence of the judiciary and the judiciary as a whole / 966
Ways of notification / 966
Designation of judicial inspectors / 969
Waiver of application / 970
Procedure for effective verifications / 971
Completion of checks. / 973
Settlement procedure / 974
Chapter XI. Elements regarding the disciplinary liability of magistrates in comparative law / 976
Section 1. General considerations / 976
Section 2. Disciplinary liability of magistrates in Spain / 978
Section 3. Disciplinary liability of magistrates in France / 984
Section 4. Disciplinary liability of magistrates in Italy / 988
Section 5. Disciplinary liability of magistrates in the Republic of Moldova / 994
Section 6. Disciplinary liability of magistrates in Germany / 1001
Section 7. Disciplinary liability of magistrates in Poland / 1004
Section 8. Disciplinary liability of magistrates in Lithuania / 1006
BIBLIOGRAPHY / 1009
The paper is the first Treaty published in our country that analyzes in detail the disciplinary violations of magistrates, the procedure for investigating and resolving disciplinary action, the liability of magistrates for violating the rules of conduct regulated by the Code of Ethics, verifying the good reputation for judges and prosecutors in function, the defense of the independence and impartiality of judges and prosecutors and the defense of their professional reputation, as currently regulated by the laws of justice.
CONTENTS OF THE PAPER
The Treaty analyzes:
- the forms of legal liability of magistrates;
- the specific features of the disciplinary liability of magistrates;
- the constitutive elements of the disciplinary violation;
- disciplinary violations;
- holders of disciplinary action;
- the procedure of preliminary verifications;
- disciplinary investigation procedure;
- the procedure for judging the disciplinary action;
- the procedure for solving the appeal;
- disciplinary sanctions;
- the liability of the magistrates for violating the norms of conduct regulated by the Code of Ethics;
- checking the condition regarding the good reputation for the judges and prosecutors in office;
- defending the independence, impartiality and professional reputation of judges and prosecutors;
- elements of comparative law.
STRENGTHS OF THE WORK
- includes an exhaustive analysis of all disciplinary violations in terms of object, subject, objective side and subjective side;
- presents the similarities and differences between the disciplinary violations in order to make a correct legal classification of the deeds committed by the magistrates;
- a series of definitions and interpretations of the incidental legal provisions are proposed, in order to clarify the concepts established by the legislator;
- a detailed analysis of the procedure for investigating and resolving disciplinary violations is presented both at the Judicial Inspection and at the court of first instance and in the appeal;
- the disciplinary sanctions and the way of their individualization are analyzed;
- the liability of the magistrates for violating the norms of conduct regulated by the Code of Ethics is initiated;
- the procedure of verifying the condition regarding the good reputation for the judges and prosecutors in office is developed;
- the procedure of defending the independence and impartiality of judges and prosecutors and of the requests regarding the defense of their professional reputation and independence is examined;
- the entire jurisprudence of the sections and the Plenum of the Superior Council of Magistracy in the analyzed matters is published, published in the years 2005-2020;
- the jurisprudence of the High Court of Cassation and Justice in disciplinary matters is presented up to date;
- the disciplinary violations and the procedure for solving them in the comparative law are described, in order to form an overview on the disciplinary liability of the magistrates.
TARGET AUDIENCE
The paper is addressed to judges, prosecutors, assistant magistrates of the High Court of Cassation and Justice, judicial inspectors, members of the Superior Council of Magistracy and judicial assistants, as they are directly concerned by the legal provisions analyzed.
At the same time, the paper is a useful tool for other legal professions: lawyers, legal advisers, notaries public, bailiffs, clerks, insolvency practitioners, mediators, but, at the same time, for all those who are interested, including one form or another, of knowing the situations for which a magistrate can be disciplined.
CONTENTS OF THE PAPER
The Treaty analyzes:
- the forms of legal liability of magistrates;
- the specific features of the disciplinary liability of magistrates;
- the constitutive elements of the disciplinary violation;
- disciplinary violations;
- holders of disciplinary action;
- the procedure of preliminary verifications;
- disciplinary investigation procedure;
- the procedure for judging the disciplinary action;
- the procedure for solving the appeal;
- disciplinary sanctions;
- the liability of the magistrates for violating the norms of conduct regulated by the Code of Ethics;
- checking the condition regarding the good reputation for the judges and prosecutors in office;
- defending the independence, impartiality and professional reputation of judges and prosecutors;
- elements of comparative law.
STRENGTHS OF THE WORK
- includes an exhaustive analysis of all disciplinary violations in terms of object, subject, objective side and subjective side;
- presents the similarities and differences between the disciplinary violations in order to make a correct legal classification of the deeds committed by the magistrates;
- a series of definitions and interpretations of the incidental legal provisions are proposed, in order to clarify the concepts established by the legislator;
- a detailed analysis of the procedure for investigating and resolving disciplinary violations is presented both at the Judicial Inspection and at the court of first instance and in the appeal;
- the disciplinary sanctions and the way of their individualization are analyzed;
- the liability of the magistrates for violating the norms of conduct regulated by the Code of Ethics is initiated;
- the procedure of verifying the condition regarding the good reputation for the judges and prosecutors in office is developed;
- the procedure of defending the independence and impartiality of judges and prosecutors and of the requests regarding the defense of their professional reputation and independence is examined;
- the entire jurisprudence of the sections and the Plenum of the Superior Council of Magistracy in the analyzed matters is published, published in the years 2005-2020;
- the jurisprudence of the High Court of Cassation and Justice in disciplinary matters is presented up to date;
- the disciplinary violations and the procedure for solving them in the comparative law are described, in order to form an overview on the disciplinary liability of the magistrates.
TARGET AUDIENCE
The paper is addressed to judges, prosecutors, assistant magistrates of the High Court of Cassation and Justice, judicial inspectors, members of the Superior Council of Magistracy and judicial assistants, as they are directly concerned by the legal provisions analyzed.
At the same time, the paper is a useful tool for other legal professions: lawyers, legal advisers, notaries public, bailiffs, clerks, insolvency practitioners, mediators, but, at the same time, for all those who are interested, including one form or another, of knowing the situations for which a magistrate can be disciplined.
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