LESIJ NO. XX, VOL. 2/2013
BRIEF CONSIDERATIONS ON THE DISCIPLINARY
LIABILITY OF THE MAGISTRATES
Elena Emilia ŞTEFAN
The recent amendments in the applicable law on the disciplinary lia bility of the magistr ates have
induced many debates regar ding the increase of holders that own the right to initiate the disciplinar y action
against a magistr ate and also r egarding the area of disciplinary offenses. The con ferring of the status of
holder of the disciplinary action to the Minister of Justice, the Pr esident of the High Court of Cassation and
Justice and to the General Attorney of the Prosecutor’s Office of the High Cour t of Cassation a nd Justice,
has conferred us the opportunity to present the impact of these legislative amendments on the lega l
Therefore, the theme proposed through this s tudy will be done by presenting the relevant legisla tion
and the relevant constitutional jur isprudence.
Keywords: magistrate, disciplinary liability, Constitutiona l Court, Minister of Justice,
Superior Council of Magistracy.
In several texts of the Constitution the notion of public office or service is introduced, and
therefore the notion of officer
1. The legal system of public office also includes its liability, whose
purpose is the suppression of errors made by public officials, which represents only one of the
liability purposes2. In this context of public servants, in the doctrine was stated that: “legal liability
applies to the magistrates too, being obvious that, in a democratic society, the magistrate can not
be under the protection of absolute immunity when he seriously breaks the obligations of
impartiality and fairness”3.
In the case of the magistrates, the multiplication of facts that may represent misconducts,
made them f urthermore face a situation that can no longer be ignored, namely, the magistrates,
the judges, the public servants in general, may interf ere at some point in time with a possible
disciplinary action promoted against their activity. Therefore, here is the fact, at least theoretically
but also practically, the disciplinary action against a magistrate is a predictable action with in the
context of the legislative amendments, but also undesirable in the activity of a magistrate.
1. The holders of the disciplinary action against a magistrate
In our opinion a controversial issue that will raise many problems in practice is related to
the amendments to the legal system al the liability of the magi strates. Thus, the amendments to
Assistant Lecturer, PhD, Faculty of Law, “Nicolae Titulescu” University of Bucharest ( e-mail:
1 Rodica Narcisa Petrescu, „Drept administrativ” (Administrative Law), Hamangiu Publishing House,
Bucharest, 2009, p. 522.
2 Dana Apostol Tofan, „Instituii administrativ europene”, (European Administrative Institutions), ű. H.
Beck Publishing House, Bucharest 2006, p. 184.
3 I. Leş, „Organizarea sistemului judiciar românesc”, (The Organization of the Romanian judiciary
system), C. H. Beck Publishing House, Bucharest, 2004, p. 211.