16. Plângere împotriva ordonanţei procurorului de clasare a unor dosare vizând magistraţi. Inexistenţa relei-credinţe sau a gravei neglijenţe în exercitarea funcţiei
16. Claim against the prosecutor’s decree of closing files regarding the magistrates. Non-existence of bad faith or of gross negligence in performing the office

Summary/Abstract: Ascertaining the case from all the points of view and based upon the evidence, and developing the judge’s conviction represent two positions for including the appreciative capacity of the court in the indispensable approach in the pursuit of truth, and this interpretation complies with the Recommendation R (94) 12 of the Committee of Ministers to the Member States on the Independence, efficiency and the role of judges, according to which “the judges have to own sufficient powers and to be able to exercise them in order to discharge of their duties”. Although the development of the judge’s own conviction as a result of an effort of reflection of consciousness represents the reasonable support of the judicial approach in order to be aware of the deeds, as a guarantee of a fair trial and in compliance with the provisions of art. 6 para. (2) of the European Convention and Protocol no. 7, the court shall be obliged to explain the solution given to the case, which involves the justification of the conviction process in the mechanism of the judicial syllogism of considering the evidence. As long as the magistrate ruled the solutions according to his own conviction and to the produced evidence, he could not be charged for having acted in an abusive manner and in bad faith, only under the circumstance in which his opinion was not approved by the court of judicial control. The prosecutors and the pre-trial judge cannot substitute for the court of judicial control.

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