EIRP Proceedings, Vol 5 (2010)

Abstract

The paper's main issue is the fact that in the last years Romania is on top of the list of the states paying the highest damages further to the convictions in front of ECHR, fact that determines an increasing dissatisfaction of legal experts but also of the population. This controversial situation generated the reconsideration of the material liability of magistrates, for the judicial errors and the prejudices consequently created, established not only before international courts but also before domestic courts. Tacking into consiferation that, at present, numerous proposals for settling this issue come from more and more subjects, with or without a legislative initiative right, among which the Ministry of Economy and Finances, the Ministry of Justice or the Higher Magistrature Council, the paper tries to capture a perspective view of the material liability of magistrates, for the judicial errors in our legal systembut also in other systems of law, which can be seen as a source of inspiration. According to the legislation in force, the only one liable before an injured party that suffered a prejudice through a judicial error is the state, whose right and possibility to recover the countervalue granted to the prejudiced person through the filing of recourse action against the judge to whom the judicial error is imputable, are acknowledged. The magistrate may be held liable only when the judicial error is caused by the exercise of the function in bad faith or with serious negligence. The application of such concepts as "bad faith" and "serious negligence" is, however, difficult, due to insufficient criteria for their interpretation, considering all the nuances, and quantification, included by law. Also, please note that, through the creation of the possibility that each individual holds the magistrate liable for alleged prejudices caused by the latter, the magistrate's liability and the good functioning of justice would be seriously injured. Also, the fact that numerous convictions obtained by Romania before ECHR were due to the incoherent or abusive legislation, which the magistrates were and are compelled to observe, must not be neglected. From this point of view, the magistrates could be held materially liable, based on grounded reasons, only in the context of a fair, coherent and concise legislation meeting the justice and celerity need of the litigant parties in the settlement of disputes. Therefore, the avoidance of the convictions based on judicial errors causing material and moral prejudices, before ECHR, but also before national courts, supposes the application of coherent measures both in terms of amending the internal legislation and its adaptation and harmonization according to European standards, and in terms of establishing a group of magistrates corresponding to the current optimum magistrate profile, a desiderate which needs to be achieved to meet the current needs of Romanian justice.