The President of Romania sent the CCR, on Thursday, a notice of unconstitutionality on the Law on bailiffs. The head of state draws attention, among other things, to the proposed legislative amendment, which “eliminates an integrity standard” for executors in office, “who have pending criminal proceedings”.
The notification of the president also addresses the aspect of the notarial archive PHOTO Inquam Photos / Octav Ganea
According to the Presidential Administration, the law subject to constitutional review is unclear regarding the change of a bailiff's headquarters.
“A bailiff is based in the district of a court, but his territorial jurisdiction extends over the entire district of the court of appeal in which his seat is located. From this perspective, it is unclear whether the temporary change of seat is equivalent to an extension of the jurisdiction of the bailiff to another district of an appeal court, if the courts in which the associated bailiffs are located in districts of different appeal courts“, appreciates the head of state.
Iohannis also states that the mechanism for filling vacancies evoked by the law sent to the CCR “establishes a privilege for associated bailiffs, to the detriment of non-associated ones“.
“Bailiffs are in the same legal situation, having the right to fill a vacancy through competition. Moreover, the law does not establish any criteria regarding the minimum duration of the association or other criteria to justify such a differentiated treatment for associated bailiffs, an aspect that opens the possibility of filling vacant positions in certain constituencies on preferential criteria, in the absence any rules that ensure equal access of the members of this profession to the respective posts“, says Iohannis.
Another aspect subject to CCR analysis is that of updating the number of positions for bailiffs.
“It is not unequivocally clear what type of competence is established for the Minister of Justice in the annual update of the number of positions, i.e. if he has a related competence or retains a discretionary margin in establishing the number of bailiff positions“, the complaint states.
The rules regarding the bailiff's fee
There are also, the rules regarding the bailiff's fee, respectively the conditions of his employment, are addressed.
“Currently, the regulations regarding executors' fees or stamp duties are not all expressed in percentages, being established in the form of fixed amounts, precisely for the adequate protection of litigants and their right of access to justice“, according to Agerpres, the report states.
The President specifies that, through the changes brought by the law norms sent to the CCR, “the legislator made a reconfiguration of the conditions regarding the appointment to the position of bailiff, the termination of the position of bailiff, respectively the suspension from the position of bailiff“.
“Analyzing the mentioned norms, it is found that the scope of the crimes that attract the impossibility of being appointed as a bailiff to the scope of corruption, service or crimes committed with intent, in the form under promulgation, maintaining the condition of not having certain criminal record and to enjoy a good reputation“, adds Iohannis.
The proposed legislative changes eliminate an integrity standard
Moreover, the proposed legislative amendment is criticized, by which “an integrity standard is removed for the bailiffs in office, who have criminal actions pending in court, having been convicted in the first instance“.
“Practically, through the effect of legislative interventions, they are legally reinstated in the exercise of their functions, with the exception of those deprived of liberty, who, in any case, could not physically exercise their duties“, the report to the CCR shows.
The notification also addresses the aspect of the notarial archive.
“The guarantee that the notarial archive, property of the state, is owned, administered, preserved or protected only by the notary offices, chambers of notaries public or the National Union of Notaries Public in Romania is not a simple technical rule aimed at the management of some documents, but a guarantee of the principle of legality and security of legal relations“, says the head of state in the notification of unconstitutionality.
“From this perspective, the abrogation of this guarantee, in the absence of any other rules to supplement this legislative intervention, is equivalent to the violation of a positive obligation of the state to ensure and guarantee, by appropriate means, the security of legal relations and the principle of legality, with direct implications on a very important field of social relations“, says Klaus Iohannis.
On February 28, the Parliament sent the President of Romania, with a view to promulgation, the Law for the amendment and completion of Law no. 188/2000 on bailiffs.
The law submitted for promulgation has as its regulatory object the amendment and completion of Law no. 188/2000, aiming to strengthen the status of the bailiff profession, defined as a liberal and independent profession, bailiffs being entrusted to perform a service of public interest, through acts of public authority, as partners of justice, with a special role in the civil process .
The law subject to constitutional review modifies and completes provisions related to the competence of bailiffs, the organization and functioning of bailiffs' offices, as forms of exercising the profession, at the Chamber of bailiffs, at the National Union of Judicial Bailiffs and the establishment of the National Institute for the Training and Improvement of Bailiffs Judges, the rights and duties of the bailiff, as well as the execution of the activity of the bailiffs. At the same time, the law contains transitional norms, but also an intervention on the National Archives Law no. 16/1996.
