II. DEZBATERI RRDJ 1. Răspunderea disciplinară a magistraților. Încălcarea prevederilor legale referitoare la incompatibilități și interdicții privind judecătorii și procurorii (partea a II-a)
II. RRDJ DELIBERATIONS 1. Disciplinary liability of magistrates. Violation of the legal provisions on incompatibilities and prohibitions concerning judges and prosecutors (part II)

Summary/Abstract: Disciplinary offense represented by “breach of the legal provisions on incompatibilities and prohibitions concerning judges and prosecutors” and governed by art. 99 letter b) of Law no. 303/2004 on the status of judges and prosecutors, republished, not new in the field as it also existed before the changes brought by Law no. 24/2012, including the Law no. 92/1992 on judicial organization, and takes into account all the actions or inactions of the judge or prosecutor, which disregard the legal rules on incompatibilities and prohibitions. Incompatibilities and prohibitions of the magistrates can be classified into several categories. Thus, on incompatibilities, we have the incompatibility of the office of judge or prosecutor with any other public or private office, and the incompatibility of a judge or prosecutor office with the effective exercise of such offices; and, with regard to prohibitions, they can be professional; commercial; political; social, but also prohibitions concerning the exercise of other positions, or prohibitions on the dignity of the position. The legislator does not impose any condition for the existence of disciplinary offense in terms of the material element of the objective side, so that disciplinary offense is committed when violating a legal text governing incompatibilities or prohibitions applicable to magistrates. In terms of the subjective side, disciplinary offense may be committed both intentional and unintentional; the motive which led to the judge or the prosecutor acting, as well as their pursued aim do not require the existence of the subjective side, as they can be considered only when performing the individualisation of the sanction applied. In this context, we must also consider the provisions of art. 99 letter i) first case of Law no. 303/2004 also governing a disciplinary offense closely related to that subject to the analyse, namely the failure to comply with the duty to refrain when the judge or prosecutor knows that there is one of the causes provided by law for its refraining. We consider that disciplinary offense covered by art. 99 letter b) of Law no. 303/2004 is general in that it covers all the incompatibilities and prohibitions applicable to the magistrates, while the disciplinary violation regulated by art. 99 letter i) has a special character and applies only where the judge or prosecutor knows that there is one of the causes provided by law for refraining thereof and fails to make the refrain statement.

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