Răspunderea disciplinară a magistraților. Nerespectarea îndatoririi de a se abține atunci când judecătorul sau procurorul știe că există una din cauzele prevăzute de lege pentru abținerea sa, precum și formularea de cereri repetate și nejustificate
Disciplinary liability of magistrates. Non-compliance with the duty to abstain when the judge or the public prosecutor knows of the existence of one of the causes provided by law for his abstention, as well as filing of repeated and unjustified

Summary/Abstract: The disciplinary misconduct related to the „non-compliance with the duty to abstain when the judge or the public prosecutor knows of the existence of one of the causes provided by law for his abstention, as well as the filing of repeated and unjustified applications of abstention in the same case, which has the effect of delaying the judgment”, regulated by Article 99 i) of the Law No 303/2004 on the by-law of judges and public prosecutors, was introduced by the Law No 24/2012 amending and supplementing the Law No 303/2004 on the by-law of judges and public prosecutors and the Law No 317/2004 on the Superior Council of Magistrature; it could not be found in the original version of the Law No 303/2004, nor in the Law No 92/1992 on judicial organization. The material element of the objective side of the disciplinary misconduct regulated by Article 99 i) of the Law No 303/2004 includes two distinct hypotheses: the first hypothesis has as object the non-compliance with the duty to abstain when the judge or the public prosecutor knows of the existence of one of the causes provided by law for his abstention, and the second relates to the filing of repeated and unjustified applications of abstention in the same case, which has the effect of delaying the judgment. In order to constitute a disciplinary misconduct, in terms of the objective side in the first hypothesis, it is necessary to meet both the following conditions: the failure of the judge or of the public prosecutor to comply with the duty to abstain, respectively the judge’s or the public prosecutor’s knowledge of the existence of one of the causes provided by law for his abstention. In the second hypotheses, four conditions must be met, namely: the filing of repeated applications of abstention; the filed applications of abstention must not be justified; the applications of abstention must be filed in the same case; the filed applications of abstention must have the effect of delaying the judgment. In terms of the subjective side, this disciplinary misconduct, in both hypotheses, can only be committed deliberately, directly or indirectly. Thus, the magistrate, although he knows his obligation to abstain, does not file an application for this purpose, or, according to the second modality, he files repeated and unjustified applications of abstention in the same case, which has the effect of delaying the judgment. The disciplinary misconduct regulated by Article 99 i) the first hypothesis of the Law No 303/2004 is consummated when the magistrate knows of the existence of one of the causes provided by law for his abstention and he does not file any statement of abstention, not being conditioned by the existence of other causes, namely by the solution pronounced in the file, by the subsequent filing of some applications of objection, by the solutions pronounced to these applications, by the existence of several files in which there are not filed applications for abstention, etc. In the second hypothesis regulated by this text of law, the disciplinary misconduct is consummated when, in the same case, it is filed the second unjustified application of abstention which has the effect of delaying the judgment. The European Court of Human Rights analyzes the principle of impartiality of the judge noting that it could be appreciated under various aspects, being distinguished a subjective approach, which tends to determine what are the inner thoughts of a judge on a certain case, and an objective approach, with the purpose of inquiring whether he provided sufficient guarantees to exclude any legitimate doubt upon him.

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