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Revista Forumul Judectorilor Nr. 1/2009 3

REVISTA FORUMUL JUDECTORILOR

Director:

- judector Drago Clin

Redactor-ef:

- judector Adrian Neacu

Redactor-ef adjunct:

- judector Ionu Militaru

Colegiul de redacie:

- judector Roxana Lctuu

- judector Loreley Mirea

- judector Angelica Cruceanu

- judector Simona Kovcs

- judector Gabriel Caian

- judector Paula Andrada Coovanu

Colegiul tiinific:- judector lector univ. dr. Lavinia Lefterache- judector lector univ. dr. Dana Cigan- judector lector univ. dr. Ctlin Chiri- conf. univ. dr. Daniel-Mihail andru- Mihai Banu

Colaboratori:- profesor Mdlina Iulia Vntu- judector Andreea Vasile- Vito Monetti, il sustituto Procuratore

Generale della Cassazione, Italia- Judge Alex Kozinski, Chief Judge of the

United States Court of Appeals for theNinth Circuit

- judector Miguel Carmona Ruano,Presidente de la Audiencia Provincialde Sevilla, Espana

- profesor Daniel James Beers, IndianaUniversity, U.S.A.

- Antonio Cluny, Procurador GeralAdjunto en los Tribunales Supremo dePortugal.

Revista Forumul Judectorilor este editat, pentru Uniunea Naional a Judectorilor din Romnia,de asociaia profesional Forumul judectorilor din Oltenia.

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Indeed, the text of the law clearly stated: Judgesmust defend the interests of the working class,protect the new democracy and punish theenemies of the people.

Later, in 1948, all lawyers were excluded fromthe bar, and only those who had been approvedby committees dominated by the communistswere reappointed afterwards, which reducedtheir number to less than 20 percent of thosepracticing before the purge.

The process continued with the elaborationof the Constitution of 1948, followed by one in1952 and another in 1964, with the modificationof the criminal legislation from 1948 and of allthe other main sources of law. All that legislation,rapidly instituted from the first years of thetakeover, allowed the formation of terror as astate policy.

Judges from the interwar period educatedabroad, especially in France and Italy, werereplaced by workers and activists who hadattended a school of law for six months. Theycarried out nationalizations of property, arrests,and imprisoned dissidents, especially with thehelp of the court. There were decisions whichdictated capital punishment for those owning andnot handing over quantities of gold supposedlyintended to finance actions against thecommunist statebut without proofor whichconfiscated the fortunes of those declared kulak.

In hundreds of cases the nationalization wasabusive. The Decree-law of nationalization No.92/1950 stipulated the possibility of challengingin court the act of nationalization, if the person

3357,3

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Union of Judges of Romania

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Vice-President of the National Union ofJudges of Romania

The reform of the judicial system is very difficult taking into account the judges from the communistperiod are mentained, whose vision of the rule of law is completely different from the Western one,and also the fact that the European Union underestimated this problem before the accession of thecountries of Eastern Europe.

1. The period before 1990

Already troubled by a period of dictatorshipbefore the takeover of the communistregime, judicial institutions and the ruleof law suffered a decisive blow after thecommunist regime was established.

On a legislative level, this period occurredsimultaneously with significant changesregarding legal principles and the role of justicein society. The rule of the law was quicklyreplaced by a policy of abuses and theindependence of justice by its subordination tothe political power.

The judicial system was changed in order todeprive the individual of any feeling of protectionor potential support. New judges were appointed,while the whole judicial system became a tool ofthe regime.

The process of subordinating justice, whichwas one of the most important objectives of thenew regime, started as soon as the communiststook power. The courts were subordinated, oneby one, first by the Law of 31 March 1945,concerning the trial of war criminals, stating thata judicial panel would consist of two professionaljudges and seven representatives of the people,and later by the Law of 24 November, on theorganization of the judiciary, which extended theuse of such judicial panels.

The work of revoking the independence ofthe courts was completed by an importantfiltering of the judicial corps, and by overturningthe principle of irremovability, so that judgescareers were in the hands of the executive.

+

whose building wastaken didnt join thecases enumeratedby the law. Howe-ver, in case lawsuch contestationswere not admitted.

In the years1980-1990, the lawfaculties werepoliticized, so that inorder to be admittedit was compulsory tobe member of theOrganization of the

Communist Youth. A healthy origin168havingparents who were workers or peasantscouldbe an advantage, not for being admitted to afaculty, but for being admitted to the magistracy.

In the homes where someone was punished,the sins of the parents were passed on to theirchildren. Besides those cases, there was also asocial criterion, ostensibly to rectify the inequalityproduced by former privileges, but in reality usedto reward adhesion to the new regime and toclose any future for those who were related tothe past by a family tradition. The crime of thecommunist authorities was the fact that theyblamed social origin, just like fascism had blamedethnic origin.

With very few exceptions, judges andprosecutors were members of the RomanianCommunist Party, while those who were notmembersa very small numberwere notallowed to be promoted. If a member of onesfamily settled abroad, their career wasendangered and they could even be excludedfrom the magistracy.

In the magistracy, access was possible eitherby receiving a position when graduatingespecially for the first in the class of graduatesor on political criteria.

Without the existence of private ownership,civil cases were very few, concerning family lawlitigations and lawsuits involving successionduties.

Concerning criminal cases, the proceduralrights of the people were not observed, lawyersactivities were marginalized, and legal action onthe basis of confessions obtained by violencewas confirmed by the judges. The number ofacquittals could be counted on ones fingers, andthis was not due to the prosecutorsprofessionalism.

The only methods of association werethe communist party organizations, manytimes common to judges and prosecutors.

In relation to the activity of trial courts, thecommunist party took care to assure thedependence of justice through the use ofpertinent legislation. Judges never enjoyedirremovability, and the appointment of judges tothe Supreme Court was done, according to theconstitutional laws of the entire period, by theGreat National Assembly, for a definite period oftime. Thus, it was guaranteed that any judge ofthe Supreme Court would be careful to obey theregime, so as to make sure that his mandatewhich was limited in duration would beprolonged. Furthermore, in order to eliminatepossible deviations, the Great National Assemblywas the authority which checked theconstitutionality of lawslaws which were in factemitted by the assembly itself.

Until 1989, prosecutors took partandeffectively participated, despite being meninthe meetings of the medical commissions whichdecided if a woman could have an abortion. Theconditions were extremely restrictive, and thiswas the reason why many women died fromillegal abortions in deplorable conditions. Therewere also cases of girls dying when theirappendicitis perforated, because the doctorsthought they had caused an abortion and refusedto operate upon them. Never could the doctorsbe convicted in such a case, but they could beconvicted if they caused an abortion.

The public prosecutors offices had a militaryhierarchy, strictly observing the principle ofhierarchical subordination.

Judges made convictions ceaselessly on thegrounds of Decree-law No. 306/1981 concerning

168 The intruders, whose access to education was blocked,were divided in three groups.The first category: sons of industrial or agriculturalworkers, collectivist peasants or peasants having smallor medium-sized households, sons of military men,engineers or technicians, clerks or pensioners,

craftsmen and cooperative farmers.The second category: sons of small traders orfreelancers.The third category: sons of kulaks, merchants ormanufacturers, together with sons of war criminals,traitors, spies, saboteurs, fugitives abroad etc.

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measures to prevent and control deeds whicheffected the good provisioning of the population,which incriminatedas an offence punishableby imprisonment, and often enforcedthegathering of corn cobs after the passing of thecombine harvester and taking hold of them.

There was no corruption because nobodycould do anything with money and becauseeveryone was afraid.

The leading authorities of the party, consistingof activists who studied four years at normalschool and the rest at evening class, had meansof control and simply humiliated the judgeswhenever they could. The role of prosecutingalso belonged to the executive.

Established in the middle of 1948, theSecuritate secret police (and its special troops,directly aided by the communist police corp -Militia) represented the main instrument ofcommunist repression against the Romanianpeople. The methods of imposing terror weremany, starting with violent repression. Arrests,investigations, torture, the fixing of convictionswere the norm, and courts, especially militarycourts, were practically the slaves of theSecuritate. The Securitates methods continuedwith psychological terrororganizing anextraordinary network of informers, developinga diabolical system of diversion andmisinformation of the masses, threats,blackmailand ended with pressuring the wholestate apparatus, economic and administrative.

Consequently, in the period 1948-1989, theRomanian state was essentially based on terror,direct or indirect, punitive and/or preventive, whilethe purpose of the judiciary was to hide andjustify the crimes committed by the totalitarianstate.

2. The period 1990-2006In the first years after 22 December 1989,

the date marking the fall of Nicolae Ceausescusdictatorship and the end of the communistregime, no debates took place in Romaniansociety regarding the place of justice or its rolein society. Old mentalities inherited from thecommunist regime persisted for a significantperiod of time following the revolution.

Crowd collectivism functioned on its own,a collectivism which dictated the false egalitariansubmission of the members of Romanian societyto the commands of the central state leadership.Those who had a different opinion from that of

the society were, like in the years of communism,marginalized.

Moreover, the first years after the events of22 December 1989 were characterized by a lackof responsibility on the part of the individual,toward himself and toward society.

The years 1990-1991 were marked byconflicts involving miners who committed actsof violence against certain declassed elementsof society. Those people were considered assuch both by the miners, the rough andunconscious force of a recent and troubled pastin the Romanian history, and by those who ruledRomania, most of them former privilegedcommunist officials of second rank in thecommunist system. Moreover, the opinion of thecollectivityof the majoritywas clearlyfavorable to the elimination of these declassedelements and openly approved the way in whichthe political power at that time resorted toviolence during the events.

Actually, those declassed elements (themajority being students and intellectuals) didntwant anything but to cleanse Romanian societyby eliminating from the leading structures ofRomanian politics and the Romanian statescentral institutions the people who had helddecision-making power, even of second rank, inthe communist apparatus, as well as those whocollaborated with the Securitate.

It is not a coincidence that the events involvingthe miners got a favorable response from themajority of Romanians. Indeed, this may wellhave been because the communist structuresof second rank functioned flawlessly andpreserved their power, both during the events of22 December and immediately after theseevents, and because the majority of Romanianswere totally dependent on the state, on themonthly payments they received for their work.

The excessive centralization, the dominanceof all levels of administrative decision, includingthe judiciary, by those who held power in the firstyears after December 1989 blocked for manyyears a true democratization of the post-communist Romanian state.

However, a Western democracy, as thosewho were in power after 1989 claimed to want,assumed the personal efforts of those whoworked in the field of justice toward establishinga real system of justice anchored in the rule oflaw. At the same time, it also assumed thedetermination of those who held the centralized

.

power to restrain themselves and refrain frominterfering in the judiciarys activities.

In reality, both those who worked in the fieldof justice (judges, prosecutors, auxiliarypersonnel) and those who were in power (mostlyformer privileged communist officials of secondrank in the communist regime) were prisonersof a totalitarian outlook expressed in theorganization and the functioning of the state.

The administrative centralization of decisionsconcerning Romanian justice (for instance, thoseof appointments for a position, appointments ofthe president of the court, budgetary decisionsregarding the distribution of money needed forthe functioning of the courts), left in the handsof the central administrative power (the Ministryof Justice), obscured the way of the Romaniansystem of justice towards its own independence.

Due to slow actions, immobility, and theperpetuation of the status quo from the periodbefore 1989, the justice system in Romania didnot change for two and a half years.

The Law No. 58/26 of December 1968, on tothe judicial organization, and the Law No. 60/26of December 1968, concerning to theorganization and functioning of the magistracyof the Socialist Republic of Romania,represented the basis on which the Romaniansystem of justice continued to function.

Article 42 of that Government Decreestipulated that the president of the courts ofjustice, the judges of these courts, as well asthe judges from the trial courts are elected anddismissed by the district peoples councils or, ifit was the case, by the Peoples Council ofBucharest at the proposal of the Ministry ofJustice.

Moreover, Article 47 stipulated that thedistribution of judges elected for trial courts, atthe courts in the districts or in Bucharest []was performed by the Minister of Justice, whileArticle 48 stipulated that leadership positionsother than those stipulated by Article 42, suchas court vice-presidents, presidents of sections,judges inspectors at district courts of justice, aswell as presidents and vice-presidents of trialcourts, were appointed by the Ministry of Justice.

Obviously, objective criteria for promotion tosuperior courts or leading positions were notlegally stipulated, so obedience to the executivepower appeared to be the only criterion neededto be promoted to these positions.

In turn, the lack of independence in theadministrative management of courts led to the

mixing of interests of those who held leadingpositions in the system of justice (presidents andvice-presidents of courts) with those who heldthe central and local political power afterDecember 1989.

Taking into account the fact that proposals topromote judges to superior courts were generallydecided by the Minister of Justice at the proposalof the president of the court, there developedreal cartels in justice created to support theinterests of the presidents of the courts and ofthose who were politically in control of Romaniain the first years after the revolution.

That is why there was only a slight interest,almost non-existent, in the functional notion ofthe independence of justice as the basis of arule of law among those who composed theso-called judicial power.

On the other hand, the Public Ministry enjoyedthe advantages conferred by the communistregime in the years of dictatorshiptheprosecutors, together with the people from theformer Securitate, being the main instrumentsby which the communists preserved their power.

In other words, if justice was just the slave ofthe interests of the central and local politicalpower working hand in hand with the interestsof the presidents of courts to perpetuate theadministrative power, the magistracyrepresented, both in the communist regime andin the first two years after the events of December1989, the political power itself. This is becausethe magistracy was invested in the first placewith the defense of the peoples revolutionaryconquering, of the social and state order inimplementing the policy of the party and of thestate.

As a matter of fact, the main instrument bywhich the prosecutors perpetuated their powerin the Romanian post-communist society wasby the possibility to place those people inpreventive custody who they considereddangerous. However, the events involving theminers were greatly aided by the magistracy.Together with the forces repressing the peoplewho demanded Romanias democratizationduring and immediately after these events,prosecutors arrested and started inquiriesagainst those who protested quietly against thepolitical powera power which instituted itselfimmediately after 22 December 1989.

From this point of view, if judges were unableto fight for independence for the reasonsmentioned above, the prosecutors did not want

/

to declare their possible independence becausethey were fully enjoying the advantages of thereal power they held: the possibility to refer acase to court or to not refer a case to court,without any external control (especially withouta judicial control). This was undoubtedly a terribleweapon of protection, used in concert with theordering of preventive custody during criminalinquiries, and without judicial control.

According to the new Law of judicialorganization adopted in August 1992, the courtsof appeal were created as the second degree ofjurisdiction. Thus, the authorities who held thepower in the judicial system changed: because,administratively, the system of justice wascentralized, the decision being only in the handsof the Minister of Justice, the president of thecourts directed their obedience towards thecentral political power which was ruling.

In order to strengthen their power, thepresidents of the courts brought into the systempeople with experience in different legalprofessions who had previously served thecommunist apparatus, and isolated thetroublesome ones, the latter choosing a freeprofession, that of a lawyer, which gave themmaterial satisfactions.

A novelty was represented by the integrationof the prosecutors in the judicial authority.

A significant indication that the new law wasnot a definitive break with the past is the factthat the enactment of the Law No. 92/1992 wasnot preceded by an extensive debate among themagistrates, nor did the active elements of civilsociety (which were making their own way)express their opinions about the natural placeof justice in society or in supporting the rule oflaw.

The new law stipulated two degrees ofjurisdiction through the creation of the courts ofappeal on a regional level, so that practically,almost unconsciously, a new reorganization ofthe authorities who had the power inside thejudiciary was accomplished.

The creation of intermediate courts betweenthe district ones (administrative-territorialstructures with structures of local administrativepower) and the Supreme Court in Romania(formally known as the Supreme Court ofJustice) changed the ratio of forces between theexecutive local power at the local administrativelevel (the prefects office, the district council andthe local council of municipal towns), and thepresidents of the courts.

The courts of appeal (15 in number) wereprovided with an extensive territorialcompetence, including two to four districts, sothat neither the leading structures of the courtsof appeal, nor the courts of justice, nor the trialcourts, depended strictly on the interests of thelocal political power, but in the first place on thecentral executive power.

Through the appearance of the courts ofappeal, and through the centralization ofpromotions and leadership appointments in thecourts, with the purported aid of the SuperiorCouncil of Magistracy, those who led the courtsdirected their obedience towards theparliamentary politicians or the politicians whoheld leading positions in the centraladministrative apparatus (leaders of ministries,state secretaries etc.).

The excessive centralization of the judiciarysadministrative apparatus in the hands of theexecutive power, including the budget of thecourts, made political programs, such as thefight against corruption and the independenceof justice high-minded language withoutpractical consequences, since the politicalpower, no matter its nature (left-oriented,right-oriented, coalitions of parties, etc.)combined its own interest with the interests ofthe presidents of courts.

As a matter of fact, each major politicalchange (when a new political majority waselected, and a new government was appointedbased on this new majority) caused thereplacement of court presidents by the Ministerof Justice, according to the legal mechanismpresented above, and the maintenance of onlythose who proved that they were able to beobedient to the new politicians as well.

This is the reason why the presidents of thecourts of appeal permanently sought tostrengthen their position in the hierarchicalsystem they were leading administratively. Theyowned and used very efficiently (excepting thesituations when the political power interferedthrough its main spokesman, the Minister ofJustice) several key instruments:

a) They marginalized inconvenient judges byforbidding them, for various reasons, to bepromoted to functions at superior courts or inleading positions. The ones who were preferredto be promoted were the judges able to carryout blindly the commands and requests of thepresidents of the courts of appeal, and throughthem, of the politicians. In fact, the politicians

6

decided to choose a free profession, that of alawyer.

b) New people were brought into the systemfrom other judicial professions (primarily legalcounsels from the former state arbitrations), bothto replace those who had left, as well as to fillvacancies in the system. (Through the creationof the courts of appeal, older judges occupiedthe positions in the courts of appeal, while thetribunals and especially the first instance courtswere left with many vacancies, which had seriousconsequences for the effectiveness of solvingcases.) This was a disputable basis of selection,because these people served the communistregime faithfully, their outlook being built on theadministrative centralized structures of thecommunist system. On the other hand, thesepeople built a faithful arm which was alwaysready to defend its benefactor, the president ofthe court who brought them into the system.

Another novelty in this period was the factthat the old magistracy was integratedconstitutionally into the judicial authority, aconstitutional entity which covered a wider rangeof institutions having attributions in the field ofjustice, such as the judicial courts, the PublicMinistry and the Supreme Council of Magistracy.

It can be said that the methods used by thepresidents of the courts to preserve power werealso used successfully by the leaders ofprosecutors offices belonging to the PublicMinistry. This was especially the case forprosecutors offices belonging to the courts ofappeal and the tribunals, as well as the militaryprosecutors officeswhere the interests of thepoliticians interfered with the interests specificto the leaders of the prosecutors offices whowanted to maintain power inside the system.

The period between 2001 and the beginningof 2004 was the darkest period for the Romanianlegal system from the standpoint of theindependence of post-communist justice.

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the persons who were investigated and broughtto justice by the part of the Public Ministryspecialized in corruption offences. Moreover, theso-called justice chapter in Romaniasnegotiations with the European Union wasimproved significantly thanks to the efforts ofMinister of Justice Monica Macovei, workingtogether with civil society groups and a significantnumber of judges and prosecutors involved inthe reform process.

At any rate, the dominant idea during theperiod between spring 2005 and spring 2007 wasto crystallize a real independence, takingadvantage of the successes of the new judicialorganization Laws, as well as the new Ministerof Justice who avoided any personal intervention,either official or underground, into the legal affairsof judges, prosecutors, or the Public Ministry.

The independence of justice, thanks to theseefforts, is now one which is openly affirmed bycourts and judges. This independence cannotbe restricted, at least for the time being,particularly because of safeguards gained duringthis period. (The activity of the Superior Councilof Magistracy in defense of the independenceof justice reflects this tendency, as does theactivity and actions of the professionalassociations of magistrates in civil society.)

For maintaining the systems independenceand internally monitoring against its dysfunctions,the professional associations of magistrateshave a particular and remarkable role. InRomania, there is not outlined a true judicialbranch and therefore there is no classconsciousness. Judges and prosecutors inRomania have not yet developed a vocationalconscience and they are not yet aware of thenecessity of taking part in actions designed topromote public interests in common with theinterests of the guild. The main purposes arethe defense of the judiciarys independence, anefficient enforcement of the law, and theassurance of high professional standards in thefield.

Until 2004, it was forbidden for Romanianjudges to take part in nongovernmentalorganizations, except in the form of professionalorganizations. As a consequence, their ideaswere isolated from the public discourse, and thatfact generated an inhibition towards beingpublicly involved. In fact, we can even talk aboutthe existence of a confusion regarding the aimof professional associations, which usually

address problems involving trade union matters,such as increasing wages, improving workingconditions, or lessening the workload ofmagistrates.

One very inhibiting factor was the publicreactions of the Ministers of Justice, as well asthe reactions of chiefs of courts and prosecutorsoffices (who were appointed at that time by theMinister of Justice), towards these professionalorganizations. Building a professional asso-ciation which was ruled by another leader wasconsidered a perturbation and a disruption totheir own influence upon the system. Many times,the magistrates who were members of suchprofessional associations were (or are, evennow) considered as rebels, revolutionaries, etc.But it is beyond any reasonable doubt thatwithout these sorts of rebels a lot of strangethings in the Romanian judiciary would havenever been pointed out.

In Romania there are several associations ofmagistrates, many of which have notdistinguished themselves by any kind of activity,and others which have limited their activities tothose of trade union demands.

The Association of Romanian Magistrates(AMR), founded in 1993, is the oldest associationof magistrates in Romania. AMR declared itselfat the very beginning as a successor to theformer Association of Magistrates and Lawyers(AMA), which had functioned during the inter-warperiod. AMR is composed of judges (638) andprosecutors (414) as well.

AMR does not have a clear public messagethat could be easily identified by any dialoguepartner or by the citizens. AMR has no strategyin developing public politics in the field of justiceand has not declared a system of values in orderto sustain or legitimate its public actions. AMRdoes not seem preoccupied with working out aplan related to the predictable evolution of thejudicial system and the necessary changes ofthe system, owing to the need to cooperate withother European judicial systems.

Another regional association which!??!/=

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from Iasi. However, the association has nopublic positions concerning various issues ofpublic interest related to the judiciary or thejudges role in society.

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justice, by improving the functioning of the judicialsystem, reforming the institutional framework,and accelerating the fight against corruption andorganized crime.

Regarding the professional associations, theNational Union of Romanian Judges (U.N.J.R.)was founded in May 2007. The stated goals ofthis organization of young judges are: therepresentation and defense of the professionalinterests of its associated members against otherlegal entities; the promotion of the liberty anddignity of the judicial profession; thestrengthening of the independence of justice;increasing the effectiveness of justice; improvingthe image of the justice system; the creation ofa unitary practice and the modernization of thejustice system; the defense of the independenceof the judiciary, both against the other powers ofGovernment, and against the interests ofindividuals; and promoting respect in allcircumstances for the judicial values of the ruleof law, which recognize justice as a public serviceanswering to the principle of transparency, andliable to the citizens.

U.N.J.R. is composed of the Association forthe Defense of Rights and Independence ofJudges from Oradea, the Association of Judgesfrom Alba, and the Association Forum of Judgesfrom Oltenia, as well as individual judges fromthe districts of the appeals courts, totaling about300 members in all.

On 26 October 2007, the National Union ofRomanian Judges became a member of theAssociation of European Magistrates forDemocracy and Liberty (MEDEL), during themeeting of the Council Board held in Lbeck,Germany.

During the short period of time since itsinception, U.N.J.R. has shown itself as veryactive in representing and defending theprofessional interests of its associated membersagainst the Ministry of Justice, the SuperiorCouncil of Magistracy, and the RomanianPresident. The association has also organizedthree international conferences in Bucharest andIasi on such subjects as the state of prosecutorsin Europe and Romania, the fight against racialand ethnic discrimination, and relations betweenthe media and justice.

4. ConclusionsThe Romanian judiciary has passed through

a long and circuitous evolution after the fall ofthe communist regime in December 1989. It hassuffered multiple violations of its independence,

from powers outside the system, and mostgrievously, from inside the structures of thesystem.

Generally, there is a problem with systemictransformations which do not occur radically, butgradually, with the preservation of the old elite.In such cases, the old elite is concerned primarilywith keeping control, and does not have theinterest nor the desire to reform the structuresof the society. Thus, the debates concerning thenew Constitution often neglects real changes thatwould guarantee the adequate functioning of alawful state, in order to maintain the instrumentsof power in the hands of the old guard.

That was exactly what happened in Romania,where ex-communists took over the politicalpower and guided the transition towards a newConstitutional, legal and economic systemasystem designed to serve their interests.

Undoubtedly, the functional independence ofthe prosecutors remains to be discussed. Butalso in this case, the Romanian society shouldaccept and should push the political class toadopt a legal framework, including aConstitutional one, through which theindependence of the prosecutors will berecognized.

Further, another extremely difficult taskregarding the reform of the justice systemremains to be performedthe task ofestablishing a viable system for evaluating theperformance of judges and prosecutors inachieving their legal functions. This task belongsto the system itself, meaning it is theresponsibility of the Superior Council ofMagistracy, the courts, and the judgesthemselves.

It is also necessary to remove all unqualifiedjudges working in the judiciary and to create anenvironment in which the objective evaluationof courts and judges is a real one, with concreteresults based on the actual performance ofjudges and prosecutors (i.e., their effectivenessin solving cases). This is necessary in order tostrengthen the independence of justice, and alsoto strengthen the trust of Romanian society inthe judicial system.

In any case, there now exists real hope thatthere is no turning back to totalitarianism or tothose periods when justice answered the beckand call of the political power.

It is not only necessary to import the Westernlegislation, but also the idea of a working judicialsystem which operates according to theprinciples of the rule of law.

!

Successfully prosecuting high profile casesof political corruption is an exceptionalchallenge for any law enforcementagency.

The fundamental democratic principleaccording to which everyone is equal under thelaw does not always work when the suspectsare prominent politicians, who have virtuallyunlimited access to all kinds of resources,employ sophisticated schemes in order tocommit and disguise their illicit activities, havethe support of skilled lawyers, utilize lengthyappeals, constitutional challenges or otherstalling tactics and have at their disposal a widerange of means to influence the media coverageof the investigation, in order to wear down publicopinion, which tends to demand results quickerthan the judicial system can deliver.

This kind of investigations usually gives riseto wide public attention and brings alongsignificant institutional and psychologicalpressures to prosecutors, who do not act in apolitical or social vacuum, so it is important thatthey should be in a position that allows them notto worry about how it may influence theirprofessional career.

On the other hand, public confidence in thefairness and openness of systems ofaccountability will depend on the trust they havein the individuals charged with investigatingparticularly controversial issues, something thatcant be achieved when the investigators are inany way connected to the suspects.

In order to address these difficulties, theindependence of the prosecutors is an essentialprerequisite, although not sufficient by itself, forobtaining significant results in the fight againstcorruption.

Romania is probably an ideal case-study, asa country which has acknowledged several yearsago having a serious problem with corruptionand has been under intense external and internalpressure to tackle with it, so has by now asignificant experience in implementing policiesaiming at this problem, and identifying those thatdo not work, or, unfortunately not as often as wewished, those that do.

In Romania, the existing legal and institutionalframework adopted in the recent years ensuredthe effective independence of the Public Ministry,which was an important step towards a differentapproach of the corruption phenomenon.

The Public Ministry is part of the judicialauthority, while prosecutors are magistrates,appointed by the President of Romania, enjoystability and are independent, their career beingconducted solely by the Superior Council ofMagistracy. Within the Prosecutors Officeattached to the High Court of Cassation andJustice there are two autonomous structures -the Directorate for Investigation of Offences ofOrganised Crime and Terrorism (DIICOT) andthe National Anti-Corruption Directorate (DNA),which are coordinated by the GeneralProsecutor.

Prosecutors are completely independent inthe solutions they ordain and may object withthe Superior Council of the Magistracy againstany interventions from the hierarchically superiorprosecutors.

As regards the relations with the otherauthorities, the Public Ministry is independentand exercises its attributions only according tothe law and for ensuring its observance.

The effective enforcement of these principles,combined with the dedication and specialization

/,:).0.

)Marius Bulancea,

Prosecutor, Office attached to theHigh Court of Cassation and Justice

!!

of the prosecutors in the two before mentionedstructures, based on a proactive attitude and astrategic approach of the corruption pheno-menon, allowed the start of a significant numberof very high profile investigations, concerningprominent politicians from all the major politicalparties.

For example, among the politicians who havebeen indicted in 2007 for corruption crimes area former prime minister, four members ofParliament, a former presidential counsellor,several ministerial counsellors and 3 mayors ofimportant cities.

Nevertheless, the picture is not all bright andshiny considering that the independence ofprosecutors is not enough in a legal andinstitutional framework that is often unsuitablefor coping with the specific complexity of thesecrimes, the need to find a balance between thedefendants rights and prosecution, the impactof public interest, and the institutional andpsychological pressures these entail.

The most frustrating effect of this imperfectframework, both for the prosecution and for thepublic, is the lack of convictions in the casesconcerning prominent politicians, even severalyears after the indictment, even though none ofthese persons have been acquitted and thecases are still pending.

There are numerous reasons for this situation,coming out mainly from a very rigid CriminalProcedure Code, which dates since 1968 and isin many ways obsolete given the new reality. TheCodes provisions can be interpreted in suchways that defendants can find virtually unlimitednumber of tactics to delay the trials indefinitely.Also, it allows the courts to establish the absolutenullity for a wide range of procedural acts thatwere drawn up without observing the legalprovisions regulating the course of the criminaltrial, irrespective of the damage caused, and todispose the restitution of the case to theprosecutor as a consequence in order to startover the investigation.

Without trying to make an in depth analysisof these court decisions, one can not help butnotice an obvious reluctance of judges to reacha conclusion on the facts of the high profilecases, given the extensive application of theseprovisions compared to the average cases.

This can be the starting point for a differentdiscussion on the concept of independence ofmagistrates and how should its limits be settled

in order to avoid thelack of accoun-tability. Striking theright balance is notan easy job and ourjudicial system stillhas to work aboutthat.

The best prooffor the efficiency ofthe Public Ministrysapproach towardspolitical corruptionis in our opinion theresponse we get from the political word. In thelast few years we witnessed a whole series ofunusually innovative initiatives which weinterpreted as a clear indication that politiciansno longer feel that their position is sufficient togrant them impunity and thats why they keeplooking for ways to influence, more or less subtly,the prosecutors activity.

For this reason, laws were adopted or initiatedin order to decriminalize activities which used tobe considered as corruption crimes, to changethe procedure of appointing chief prosecutors,to reorganize the specialized structures that dealwith corruption and organized crime, or in orderto severely limit the prosecutors competencesand thereby deprive him of the instrumentsenabling him to fulfil his role efficiently. Theselaws were voted by some members of Parliamentwho are subject to a judicial procedure andinfluenced directly their cases, raising strongquestions about the morality of these proceduresand the obvious inequality to individualsbelonging to other social categories in identicalcircumstances, who dont have the possibility ofchanging the applicable laws.

For example, in October the Parliamentamended the Criminal Procedure Code, througha law which is presently challenged consti-tutionally, by penalizing the nonobservance ofany trial provisions when producing evidencewith absolute nullity; removing the prosecutorscompetence to issue provisional orders for theinterception of conversations and commu-nications; restricting the instances when thejudge can order the interception of conver-sations; limiting the preventive measuresavailable to the prosecutor and introducing newgrounds for stalling the cases, such as newappeals or the obligation of carrying out an

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experts report in order to establish whether theevidence has been legally obtained.

Another essential obstacle in investigatingpolitical corruption is a highly controversialregime of immunities, especially concerningministers. Consequently to a widely debateddecision of the Constitutional Court, if the servingand former ministers are also members ofParliament, an investigation can only start withthe authorisation of the respective chamber.

Already in two cases the Parliament refusedto authorise the investigation of prominentpoliticians for corruption crimes, claiming that nosufficient evidence was produced to convincethem that they were involved in criminal activities,despite a prior indictment for the same deedsand the fact that according to the provisions ofthe Criminal Procedure Code the evidence canbe administrated only after the beginning of thecriminal investigation in the case, the assuranceof this procedural framework representingexactly the ground of our request.

A widely employed tactic by the investigatedpoliticians is the accusations in the media against

the prosecutors, who are presented as theinstrument of the rival political parties, in orderto discredit the investigation. The constantpresence of these accusations, combined withobjective factors, such as the lack of convictionsin high profile cases, slowly managed to alterthe public perception commitment and theindependence of the judiciary system. Thus,political corruption no longer is the main issueon the public agenda because of the confusioninduced by these messages.

As a consequence, a recent survey provedthere is a huge gap in the perception of theindependence of the judicial system betweenmagistrates and the public. While 96% of thejudges and 86% percent of the prosecutors arehappy with their degree of independence intaking decisions, 66% of the public believe thatthe judges and prosecutors decisions areinfluenced by the politicians. It is an obviousproblem of credibility, which we dont know yetvery well how to address and exactly how muchof it is our own fault.

!-

En Roumanie, lindpendance du systme dejustice a t gravement remise en cause pendantles annes 2001- 2004 par le ministre de justicede cette poque. Cette priode t la plus noirepour lindpendance de la justice post-communiste.

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Sous la pression de lUE, la Roumanie sestdote dun arsenal lgislatif aux normeseuropennes, dun Parquet national anticorrup-tion (DNA) aux moyens considrables (le DNAdispose notamment de sa propre police) etmme dune Agence nationale pour lintgrit(ANI) unique en Europe. Force est de constatercependant que la grande opration mainspropres lance en 2005 par le prsident TraianBasescu na dbouch jusquici sur aucunesanction. coup de manuvres juridiquesdilatoires, les gros poissons sont parvenus passer travers les mailles du filet.

Le cas dAdrian Nastase nest que larbre quicache la fort, mais il est difiant. En 2005, leDNA ouvre une enqute. En 2006, lancienpremier ministre est mis en examen. En 2007,ses avocats invoquent une clausedanticonstitutionnalit dans la procdure pnale.La Cour constitutionnelle donnera raison auxavocats au terme dun arrt byzantin. En aotdernier, Nastase fait jouer son statut de dputet nonobstant les mises en garde de laCommission europenne, le Parlement mani-feste sa solidarit avec lex-chef dugouvernement en refusant dautoriser louverturede poursuites judiciaires.

En revanche, le prsident de la Rpublique,M. Traian Basescu, a fait des dclarationsaccusant de manire frivole un magistrat quiavait donn une importante autorisation deconstruire de corruption.

La Commission europenne a maintenu unmonitoring sur la rforme de la justice et la lutteanticorruption. Mais de toute vidence, les mesures correctives que la Commission laisseplaner depuis lentre de la Roumanie dans lUEnont gure dissuad les lites roumaines derenouer avec leurs vieux dmons. Non contentesde se protger, elles ont contre-attaqu. Legouvernement libral et lopposition de gauchesescriment ainsi depuis deux ans se

dbarrasser du chef du DNA, Daniel Morar, quina survcu cette offensive que grce ausoutien de Bruxelles et de la socit civile.

Dbut octobre, le Parlement a adopt une loiqui revenait vider le judiciaire de sasubstance. Outre quelle interdisait les coutestlphoniques et les perquisitions, elle exigeaitune expertise pour prouver la lgalit desmoyens utiliss par le DNA lors de ses enqutes.Face la leve de boucliers des ONG et deplusieurs ambassadeurs, dont celui destats-Unis, la loi a t lgrement remanie.LAgence nationale pour lintgrit risque de sonct de demeurer une coquille vide. Entre enfonction au dbut de lanne et charge decontrler les avoirs des parlementaires, elle estsupervise par un Conseil dont les membressont nomms par le Parlement.

Conclusion

La justice roumaine a connu une longuevolution sinueuse aprs la chute du rgimecommuniste du 22 Dcembre 1989. Elle asouffert de multiples violations de sonindpendance.

Il en reste, certainement, discuterlindpendance fonctionnelle des procureursmais, la socit roumaine devrait y accepter etpresser la classe politique pour quelle acceptelindpendance des procureurs. Il est aussincessaire, pour renforcer lindpendance de lajustice et la confiance de la socit roumainedans une justice indpendante, de crer lesconditions pour prvenir lincomptence decertains magistrats, et dorganiser une valuationobjective des juridictions et des juges.

En tout cas, on peut aujourdhui raisonna-blement esprer que tout retour en arrire, quiferait de la justice linstrument dun nouveautotalitarisme, est impossible.

!6

1. Dune perspective thorique et,ajoutons-nous sans malice, lgrementromantique, les ides qui modlent le conceptde lindpendance des juges -ainsi que, dansune certaine mesure, celui de lindpendancedes procureurs - sont affirmes dune manirequi dtermine une image de vrit absolue,quon ne peut plus mettre en question toutsimplement parce quun tel dialogue seraitdpourvu de sens. Il suffit de parcourir lestextes des conventions internationales rele-vantes qui renvoient la justice (par exemple,Le Pacte International concernant les DroitsCivils et Politiques, adopt le 6 Dcembre 1996,article 14; La Convention Europenne pour laDfense des Droits de lHomme et des LibertsFondamentales, article 6; La Charte des DroitsFondamentaux de lUnion Europenne (LaCharte de Nice), article 47, paragraphe 2) pourrester avec limpression que lindpendancejudiciaire constitue une place commune et unepratique constante dans les dmocratiesmodernes, et que les normes juridiques qui laconcernent ne font que confirmer un tat de fait.

L image est mult ipl ie par la repriseconstante de laffirmation de lindpendancedu systme judiciaire dans le contenu des textesdes Constitutions modernes.

La premire question qui se pose dans lecontexte de lanalyse, est si la ralit estfidlement rflchie par ces images parfaitespasses par le filtre de censure de la droiturepolitique ou la notion de lindpendance dusystme judiciaire est plus proche de la ralitdun kalidoscope form des morceaux de verrecolor que chaque systme politique, chaquegouvernement appartenant des priodes etmilieux socioculturels diffrents mlange, enobtenant des projections diffrentes.

Un tel abord repose sur la consolidationthorique de la dmarche, adapte la ralitdu fonctionnement effectif du systme judiciaire.

2. Le contexte de lanalyse reconnat unchangement de mentalit l abord desfonctions des pouvoirs de ltat et du rapportentre ceux-ci, les tats ntant plus vusprimordialement comme des garants dubien-tre -individuel ou col lecti f - maiscomme de potentiels facteurs de dtermi-nation de certains abus dirigs contre les droitset les intrts des citoyens.

Le courant dtermine un phnomne de fluxet de reflux puisque, dune part, dans le cadrede la relation internationale le citoyen se sentplus confortablement, plus protg, ayantassure la fois une large libert demouvement, pendant que dans le cadre de larelation interne la confiance envers ltatbaisse, et corrlativement accrot la confiancedans la protection offerte par la loi qui setransforme dune forme dexpression du pouvoirpublic dans une forme de limitation de certainsabus possibles.

Ce changement de mentalit dtermine unreplacement du systme judiciaire qui estdescendu du pidestal qui prtendait une relationavec un pouvoir absolu, pas toujours clairementdtermine dans le monde rel, o son activitest destine exclusivement la communautquelle desservit et dont elle obtient le respectpar la garantie de la lgalit et de limpartialitde manire gale et sans prjugs, mais aussipar lgide dindpendance volontairementimpose devant toute ingrence.

Plus que jamais, les juges cessent de jouerle rle de simples excutants, tant appels combiner les normes nationales - qui ont uneorigine constitutionnelle - avec cel les

;, Dana Cigan, juge au Cour dAppel Oradea,

membre du Snat de lUnionNationale des Juges de Roumanie

!

directement applicables, mais ayant uneorigine surnationale, de manire assurer unquilibre dans un systme extrmementcomplexe. Les juges doivent connatre toutesles normes applicables la cause quils jugent -de droit matriel et processuel - et faire lal iaison entre ces normes se trouvantquelquefois en conflit. Dautre part, ils seconfrontent souvent avec des normesincompltes, ce qui peut avoir plusieurs motifs,lun dentre eux tant la difficult de plus enplus grande du lgislateur traditionnel delgifrer temps et dassurer un contenu quiprenne en considration le milieu environnantse trouvant en changement permanent.

Cette ralit confirme le fait que le jugequi dtenait un simple rle dapplication de lalettre de la loi est disparu, celle-ci restant uneabstraction dpourvue de tout contenu fautedune interprtation cratrice.

videmment le besoin de crativit etdinterprtation multilatrale implique unedimension culturelle, ceux appels interprterla loi de manire cratrice ayant besoin dunevision interdisciplinaire pour pouvoir toujoursidentifier la solution la plus approprie dans lamultitude des possibles.

3. Si ce que jai prsent a offert le cadrencessaire esquisser ce que je considre trelessence du rle des juges dans un tatdmocratique, je vais essayer dexpliquerpourquoi lindpendance des procureurs estessentielle pour la ralisation correcte eteffective de lacte de justice.

Je souligne encore une fois que lesous-systme judiciaire est toujours un reflet dusystme politico social lintrieur duquel ilfonctionne. Bien que gnre par une ralitincontestable, laffirmation contient un sophismepuisquelle permet de conclure que le systmejudiciaire parfait fonctionnera dans une socitparfaite, qui grce cette qualit, naura pasbesoin en fait dun systme juridique. Dautrepart, que signifie une socit parfaite ?Comment peut-on configurer le fonction-nement sans faute dun systme judiciaire ?

Les questions sont, videmment rhtoriques,mais elles permettent le transfert vers une autreinterrogation qui a une connotation beaucoupplus pratique. Il sagit du rle et de la place duMinistre Public dans le systme, de la qualitde magistrats des procureurs, dune

subordination duMinistre Public lexcutif ou de lastructure hirar-chique lintrieurdes parquets et dela manire dont unetelle hirarchie estcompatible ou nonavec le principe delindpendance delactivit des procu-reurs.

Assez souventles lgislations na-tionales reconnai-ssent au MinistrePublic la possibilitdexercer certainesattributions setrouvant sur unelarge palette souslaspect de leurfondement.

Pour exemplifier en utilisant un modleconnu, conformment la lgislation roumainele Ministre Public exerce, par les procureurs,les attributions suivantes:

- il dirige et surveille lactivit derecherche pnale de la police judiciaire, ildirige et contrle lactivit dautres organesde recherche pnale.

Cette activit correspond aux attributionsspcifiques de magistrat, charges de ladfense de lordre de droit, ainsi que desdroi ts et des l iberts des ci toyens, leprocureur tant oblig damasser les preuvesde la dfense mais de laccusation aussi. - ilsaisit les instances judiciaires dans les affairespnales La dlivrance dun rquisitoire de miseen jugement suppose premirement uneapprciation vis--vis du respect des dispositionslgales concernant la dcouverte de la vrit etde lexistence des preuves lgalementadministres, activit spcifique du magistrat.

Mais dautre part, lexercice de linstructionet le saisissement des instances pour la mmecause, faits par le mme procureur, peut mettreen doute limpartialit, ou, au moins, lapparencedimpartialit.

- il exerce laction civile- il dfend les droits et les intrts lgiti-

mes des mineurs, des personnes frappes

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dune interdiction, des personnes trouvesen difficult.

En mme temps le procureur- agit pour prvenir et lutter contre la

criminalit, sous la coordination du ministre dela justice, pour raliser unitairement la politiquepnale de ltat.

- tudie les causes qui gnrent ou quifavorisent la criminali t, labore etprsente au ministre de la Justice des propo-sitions en vue de les liminer, ainsi que deperfectionner la lgislation dans le domaine;

- vrifie le respect de la loi aux lieux dedtention prventive

Les questions qui sont lies la politiquepnale de lEtat sont des attributions qui peuventtre exerces exclusivement par des agentsexcutifs, comme reprsentants du pouvoirexcutif dans lexercice.

Quand nous parlons du procureur commemagistrat nous pensons premirement lindpendance qui devrait caractriser cetteinstitution juridique. Un procureur vraimentindpendant peut o f f r i r les garant iesdinstrumenter impartialement un dossier et derespecter les droits et les liberts fondamentalesdes citoyens, tant un lment important dansla rduction des potentiels abus.

Nexercer aucune de ces attributions ce nestpas incompatible, en fait, avec lareconnaissance en faveur du procureur, dunepleine libert dans la dcision du choix desinfractions qui vont tre poursuivies et le pouvoirde dcider le non lieu, partant de la ralit quecest cette activit qui reprsente lintrt majeurde lactivit des procureurs.

Pour quune telle libert ne se superpose pas lactivit interprtative du juge, elle doit tredouble de certains attributs.

Premirement elle doit tre rglementeminutieusement dans le contenu dun statut dela profession qui contienne de maniredtaille un ensemble de critres objectifs quijustifient nimporte quelles des solutions,

puisque lvaluation de lopportunit ne doit paspouvoir tre perue comme ayant une naturearbitraire, subjective.

Les actes par lesquels cette libert sematrialise et sexerce - qui est, la fois, uneobligation - doivent tre transparents etpublics, connus par les parties impliques.

Deuximement, la rglementation doitcontenir aussi des voies alternatives decompensation ou de protection des victimes desinfractions, respectivement voies dattaque quipeuvent tre exerces devant les instances.

Dfinitoire pour lvaluation du degrdindpendance des procureurs est la maniredexercer les attributions spcifiques dans laphase du procs pnal. Pour dtailler cettequestion on peut regarder premirement lesdispositions de lart.6 de la ConventionEuropenne des Droits de lHomme, qui, enquelques mots seulement, instituent une rglefondamentale: lindpendance de la justice, enstipulant ainsi: toute personne a droit aujugement de manire quitable, publiquementet dans un dlais raisonnable de sa cause, parune instance indpendante et impartiale,institue par la loi. La notion de procsquitable est mise, ainsi, en rapport avec lastructure antagonique de la procdure pnalequi garantit lgalit darmes entre la dfense etlaccusation. Dans ce contexte on sollicite toutes les juridictions nationales la reco-nnaissance de la possibilit de linculp et deson dfenseur de prendre part la constitutionde la probation et que, si cest possible, toutcela se passe en sance publique.

Lactivit pratique a prouv que le niveaudindpendance du Ministre Public et dechaque procureur qui participe au procs pnal(dtermins par les prvisions qui concernentla structure administrative, les mthodes depoursuite, le statut du procureur), influencent demanire dcisive le domaine de connaissanceo le juge peut exercer ses fonctions, avec laconsquence directe de la qualit du rsultatfinal de son activit - le jugement.

+

I would like to start by thanking the U.S.Department of State, Institute of InternationalEducation and American Embassy inRomania for giving me such a great opportunityto be included in this International VisitorsLeadership Program. It was a wonderful and veryfruitful experience, professionally and personallyas well. I had the chance to learn a lot moreabout the American judicial system, to comparethe civil law system to the common law system,to understand which are the benefits andweaknesses of each of them and therefore torealize what can be improved in the Romanianjudicial system. In my point of view, theRomanian judicial system could adapt someelements of the common law system andimplement them, in order to shorten the durationof trials, to protect in a better way the victims inthe course of criminal procedures, to assure areal check and balance between the threepowers of the state and to make some progressin the mediation procedures.

Regarding personal contacts, this programgave me the opportunity to meet a lot ofcolleagues from the judicial branch from all overthe world, to establish professional contacts inthe United States, to understand that the aim isthe same for each of us, no matter the nationalityor culture, as long we are serving the peopleand try to deliver justice to them in the best waywe can.

Our program started in Washington DCwhere we had several interesting meetings inAugust 7-14. The meeting with doctor JonGould, Assistant Professor and Directory atGeorge Mason University was very instructivebecause it offered us from the very beginningan overview of the U.S. judicial system and lawenforcement in the U.S., a better understandingof the difference between federal courts and civilcourts and the ways the political area caninfluence the nomination of judges or may affectthe composition of the Supreme Court. Also, Dr.Alan Levines presentation (from the American

University), generated very interestingdiscussions about the separation of powers andwhat this concept really means.

From the professional point of view, thediscussions with Mr. Stewart Robinson (principaldeputy director) regarding the extradition processand mutual legal assistance with the U.S. werevery useful, because as a criminal judge I amdealing a lot with extradition cases and I waspleased to find out that some excessiveprocedures can be avoided between ourcountries, in order to speed the extradition of adefendant.

We also visited the United States SentencingCommission and explored the sentencingpolicies and practices for the federal courts,discussed the impact and objectives of anti-crimeand sentencing guidelines legislation.

At the District of Columbia Superior Court,we learned more about the organization of thecourthouse, nomination of judges, caseloadmanagement and the impact of technology oncaseload and enhancing the capabilities ofjudges and attorneys during court proceedings.

The strategic plan 2008-2012 of the DistrictCourt of Columbia Courts, called DeliveringJustice seemed to me a very good one and agood example for other courts. As a member ofmy courts board I am seriously considering thisexample, especially to enforce the public trustand confidence in the justice system which inRomania is at a very low level. In the same time,the program Multidoor Dispute Revolution whichstarted in 1976 seems to be a very successfulone, as long as the mediation becamecompulsory in civil cases and therefore thenumber of cases has reduced substantially. Ireally believe that with some efforts and a realpolitical will this procedure can be successfullyimplemented in the Romanian judiciary system,where the number of civil trials is huge and hasthe tendency to increase year after year.

Talking about the Code of Conduct for UnitedStates Judges and Essentials Ethics, it was

57Adina Daria Lupea

Judge, Cluj TribunalMember of the National Union

of Judges of Romania

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pleasing for me to see that the Code of Conductof Romanian Judges is very similar, fact thatconfirmed once again that all the nations havebasically the same attitude and view about howa magistrate should act in order to maintain thedignity and nobility of this profession.

The role of U.S. NGOs in the AmericanJudicial System became more clearly after thevisit to Judicial Watch, NGO that has over 20years experience in conservative public policy,trying to expose government corruption andmake bureaucrats accountable to tax-payingcitizens. Even though some members of ourgroup didnt share the views or methods of thisNGO, I found it very useful - as long as theystrongly believe in their mission and try to workfor the benefit of the people, without any politicalinfluences. Some recent political events inRomania proved that a strong and realindependent NGO is needed here, to use legaltools to aid the cause of transparency inGovernment or Parliament.

Last but not least, the visit to the United StatesSupreme Court was purely impressive, as wellas the biographies of the its honorable members.

In the weekend we spent in Washington DCwe had the opportunity to visit some of the mostimportant places. During the course of tour ofWashington the most impressive objectivesseemed to me the Lincoln Memorial, theChurchill Memorial, the National Museum ofCrime and Punishment and Arlington NationalCemetery. These places are so full of history thatthe visitors are feeling overwhelmed.

Team-City Programs has brought me inLouisville Kentucky, in August 14 - 19, 2008,a very peaceful and quite town, with gentlepeople, clean and safe streets and wonderfulneighborhoods and sights. Even though theagenda was quite busy, we had fruitful meetingsand in the same time a very relaxing weekend,which included a visit and a tour of MammothCave National Park and home hospitality.

Regarding the meetings, in Louisville we hadthe opportunity to observe a criminal trial (atCounty Circuit Court) and discuss theproceedings with judges from the JeffersonCounty District and Circuit Court and also with ajudge from Franklin County Courthouse Annex.Personally, I was amazed by the speed of acriminal trial when the defendant pleads guilty.It took only 15 minutes for a judge to decide thata man will go in prison for life, no witnesses, nomedical or psychiatric examination for thedefendant (who murdered in cold blood two

people for committing a robbery), no right toappeal the sentence. In Europe, under theprovisions of European Convention for HumanRights, a trial like this would never take place.Even though I admit it can be efficient, in themeantime such procedure can seriously threatenthe legal rights of the defendant.

Representatives from the Jefferson CountyJury Administrator provided us an overview ofthe role of petit juries, as well as the process ajury member goes through from registration todismissal from duty. I have to mention here Mrs.Dana Todd, Commonwealth Attorney LarryCleveland Office, which had a very interactiveand clear speech regarding these issues.

In Frankfort, at the Department of PublicAdvocacy (DPA) we discussed the role of thepublic defender in the U.S. Judicial System, aswell as provide an overview of Miranda Rights.Personally, I did appreciate the work and theprofessional devotion of public advocates, whichcould be easily observed in their speeches, aswell in the journal they published, InnocentKentuckians Wrongfully Convicted.

The third location was Salt Lake City, Utah,August 19 - 23, 2008 where the three teamsreunited (the other teams were in Charlotte -North Carolina and Saint Louis - Missouri).

The professional appointments included visitsto the Utah State Court and the Utah Court ofAppeals, meetings with judges and lawyers, aswell as observing trials - civil and criminal cases.

Also, we have met some representatives fromthe Utah Sentencing Commission and Board ofPardons and Parole to learn about Utahsindeterminate sentencing system. The meetingwas very interesting, but the members of ourgroup who deal, most of them, with the civil lawsystem found it difficult to understand why therole of the judge in Utah seems to be soinsignificant. The Utah Sentencing Commissionestablishes the range of time an offender willspend in prison, when the judge chooses thispenalty. In the civil law system this the judge issovereign to establish the punishment. Also, aslong as this commission is a legislatively createdbody which develops policy recommendationsregarding the sentencing guidelines we caneasily talk about some interferences of thelegislative branch in the field of judicial power.

The most interesting meetings in Utah tookplace outside the courts, with representativesfrom the ACLU, Utah Office of Crime VictimReparations and Utah Domestic ViolenceCouncil. The programs they are developing and

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their role in the judiciary area is very importantand it is really impressive that the state pays sucha close attention to the victims of crime anddomestic violence. Utah Statewide VINE Serviceis an excellent idea that contributes to securityand safety of the victims and their families.

Also, we had some fruitful discussions withthe representatives of one of Utahs largest lawfirms, Kirton and McConkie, learning about thestructure and staffing of the firm, as well as itsdomestic and international operations. I have tomention in the same time the great speech ofMrs. Lohra L. Miller at Utah District AttorneysOffice, the materials she provided to us includesome very precise information about the activityand performances of the office she leads.

And finally, the last destination was SanDiego, California, August 23 28, a great citywhere in the free hours we had the chance tosee the beach of Pacific Ocean and had awonderful cruise on Sunday evening.

The first meeting was with a local UnitedStates Attorney and one representative of theFederal Bureau of Investigations San DiegoDivisions Cyber Squad and we discussed thelegal tactics available to prosecute and preventwhite collar crimes, including corruption, cybercrime and embezzlement, one of the mostchallenging and dynamic problems not only inU.S., but all over the world, including Romania.Representatives from the National ConflictResolution Center (NCRC) provided an overviewof the role of mediation and alternative disputeresolution in the American justice system.

Also, the San Diego program included a visitto California Western School of Law for anoverview of the curriculum of the law school anddiscuss the Schools Center for Creative ProblemSolving. The representatives from the CaliforniaInnocence Project gave us a great presentationabout their work to free wrongly convictedprisoners in California.

We also toured the George F. BaileyDetention Facility to gain insight on prisonconditions and to discuss the prison system andrehabilitation programs for inmates in the U.S.and visited Kearny Mesa Juvenile Detentionfacility (KMJDF).

The San Diego program concluded with anoral evaluation session on Thursday, August 28,2008, allowing the participants to discuss theprojects content and unfoldment with the DOSand IIE staff.

In my opinion, the projects goals wereachieved almost completely. We have examinedthe U.S. judicial system within the framework ofthe federalist model and the separation ofpowers, have observed the U.S. trial process,alternate dispute resolution and mediation andjudicial training opportunities. Also, I think thatthe program was very successful in promotingan international appreciation for the rule of lawand the advancement of fair, transparent,accessible and independent judiciaries aroundthe world. I had the chance to meet in thisprogram wonderful people, colleagues from allover the world that share the same ideas aboutjudiciary systems and I do hope that theprofessional and personal contacts we had madethere would be maintained in the future andwould give us all the opportunity to gathertogether (or at least some of us) at otherinternational meetings and work together in thefuture in the field of justice. As a start, I intend toshare this experience by publishing a shortcomparative material in the quarterly brochureof our Superior Council of Magistracy anddisseminate all the information as a member ofthe board of National Union of RomanianJudges, a young professional association thatwas very active in the last two years, trying toimprove and contribute to the judicial reform inRomania.

Last but not least, I would like to give specialthanks to the American people that I met there,Ms. Azza Mounib Zaki and Mr. Anthony Nolen(from the U.S. Department of State), Ms.Rebecca Heller and Ms. Jennie Dunham Smith(from The Institute of International Education)and to our English officers, Emily Kalogeropoulosand Mr. Ronn Francis, they all did succeed tomake our stay there a very useful and pleasantone, despite of the agenda which sometimes wastoo concentrated.

Special thanks as well to Ms. Caroline Krebsand Mr. Darrel Joughlin who accompanied andtook very good care of the Kentucky team, duringour staying there.

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Nationality is not included as possible factor of discrimination nor by the n. 43/2000 DirectiveUnion either by the Italian decree law n. 268/1998.This exclusion seems debatable , above all becausearticle 12 of CE Treaty prohibits discrimination on ground of nationality , with the only limits of measuresconnected with the entry or the residence , not referring to any treatment coming from the juridicalcondition of citizen of a different Country.

The n.43/2000 Directives provisions that hadnt have a correct implementation are various, evenif the formal transcription seems to respect the European text: the lack of the independence of theUNAR - Italian body for the promotions of equal treatment of all persons, there isnt a real reversal ofburden of proof and, in addition, the judge has the full faculty to decide if accepting or not the importanceof the evidences as sufficient proof. This implies more difficulty for the victim of discrimination to bringthe case before the Court.

Italy has implemented with the legislative decree n.30 of February the 6th 2007. the n.38 /2004Directive Union concerning the free movement and residence within the territory of Member States,but, because of the bigger immigrations to Italy from the new Member State, the national and localgovernments used administrative rules in order to evacuate many nomad camps, like Roma and Sinticitizens.

The censure of Italian policy made by the major international organizations that support humanrights drew UNAR s attention to this minority. In 2007 has implemented a regular contact with therepresentative of the associations involved in the protection of this minority to examine the caseshandled by the office. In addition UNAR has issued a call for projects by non profits organizations thatanalyse the factors, processes and good practices related to tackling discriminations on the basis ofrace and ethnicity.

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