Fără precedent. Statutul magistraților, votat „pe lângă” Regulamentul Parlamentului
Majoritatea PSD-ALDE, susținută de UDMR, a decis continuarea dezbaterilor la Statutul judecătorilor și procurorilor în timp ce trebuia să înceapă ședința comună dedicată bugetului pe 2018. Propunerea a fost formulată de senatorul PSD Șerban Nicolae. Practic, prin acceptarea acesteia, senatorii au încălcat prevederile Regulamentului activităților comune ale Camerei Deputaților și Senatului.
Senatul a adoptat, marţi, în calitate de for decizional, Legea privind statutul judecătorilor şi procurorilor. Modificările la Legea 303/2004 privind statutul judecătorilor şi procurorilor au fost adoptate după ce PNL şi USR au părăsit sala.
Astfel, s-au înregistrat 80 de voturi ”pentru” şi niciun vot împotrivă.
Plenul Senatului a adoptat o serie de amendamente ale lui Şerban Nicolae, respinse de comisie, la capitolul care reglementează răspunderea materială a magistraţilor.
Ședința de plen de la Senat ar fi trebuit să se încheie la ora 14.00, pentru ca senatorii să poată participa la ședința comună dedicată bugetului de stat pe 2018. Cu puțin timp înainte de expirarea timpului alocat, plenul a votat însă, la propunerea senatorului PSD Șerban Nicolae, prelungirea programului de lucru până la epuizarea dezbaterii la Statutul magistraților.
În semn de protest față de această decizie a majorității, senatorii PNL şi USR au părăsit sala de plen.
Senatorul PNL Mario Oprea a spus că plenul Senatului nu poate încălca o decizie a Birourilor Permanente Reunite, care au hotărât ca de la ora 14.00 să aibă loc o şedinţă comună a Camerei Deputaţilor şi Senatului pentru dezbaterea proiectului de lege a bugetului pentru 2018.
El a anunţat că senatorii liberali vor părăsi şedinţa şi vor ataca la Curtea Constituţională modul în care decurg dezbaterile pe marginea Legii nr. 303/2004 privind Statutul magistraţilor.
Liderul grupului USR, Cristian Ghica, a anunţat că şi senatorii acestui partid vor părăsi sala în semn de protest faţă de prelungirea programului.
După câteva zeci de minute în care senatorii puterii au dezbătut și votat singuri amendamentele la Statutul magistraților, președintele Senatului, Călin Popescu Tăriceanu, a anunțat suspendarea lucrărilor.
Dacă ar fi continuat cu cele două ședințe în paralel – plen Senat și plen comun -, dincolo de problemele de asigurare a cvorumului, parlamentarii ar fi încălcat și prevederile Regulamentului activităților comune ale Camerei Deputaților și Senatului.
Art. 33 din Regulamentul ședințelor comune stabilește:
„(1) Deputaţii şi senatorii sunt obligaţi să fie prezenţi la lucrările comune ale Camerei Deputaţilor şi Senatului şi să se înscrie pe lista de prezenţă a şedinţei comune, ţinută de secretari.
(2) Deputatul sau senatorul poate solicita în scris liderului grupului parlamentar din care face parte permisiunea de a absenta de la lucrările comune pentru rezolvarea unor probleme legate de exercitarea mandatului sau pentru rezolvarea unor probleme personale.
(3) În situaţia în care deputatul sau senatorul absentează de la lucrările comune datorită apariţiei unor situaţii neprevăzute, acesta se poate adresa în scris Biroului permanent pentru a solicita motivarea respectivelor absenţe.
(4) Neparticiparea la cel puţin o activitate parlamentară desfăşurată în sediul Camerei Deputaţilor sau Senatului, după caz, se consideră absenţă nemotivată şi are drept consecinţă reţinerea a 1% din indemnizaţia lunară brută a deputatului sau a senatorului, cu excepţia motivării absenţelor în conformitate cu prevederile Regulamentului Camerei Deputaţilor şi ale Regulamentului Senatului”.
Amendamentele acceptate de plenul Senatului referitoarea la răspunderea magistraților
„Eroarea judiciară atrage răspunderea judecătorilor şi procurorilor doar în ipoteza în care şi-au exercitat funcţia cu rea credinţă sau gravă neglijenţă”, se arată la alin. (2) reformulat de Şerban Nicolae.
În noua formă, alin. (3) prevede „există eroare judiciară atunci când, în înfăptuirea actului de justiţie se determină o desfăşurare greşită a unei proceduri judiciare şi prin această se produce o vătămare a drepturilor ori intereselor legimite ale unei persoane”.
De asemenea, Şerban Nicolae a modificat şi alin. (4) al legii 303/2004, care acum prevede că „există rea credinţă atunci când judecătorul sau procurorul în exercitarea funcţiei, cu ştiinţă, prin încălcarea Convenţiei pentru apărarea Drepturilor Omului şi a Libertăţilor fundamentale prevăzute de Constituţia României ori a normelor de drept material sau procesual a determinat o eroare judiciară”.
La alin. (5), se arată că „există gravă neglijenţă atunci când judecătorul sau procurorul în exercitarea funcţiei din culpă nesocoteşte normele de drept material ori procesual, determinând o eroare judiciară”.
„Nu este îndreptăţită la repararea pagubei persoana care, în cursul procesului, a contribuit în orice mod la săvârşirea erorii judiciare de către judecător sau procuror”, precizează alin. (6) în noua formă.
Alin. (7), modifcat şi el, statuează că „pentru repararea prejudiciului produs printr-o eroare judiciară persoana vătămată se poate îndrepta cu acţiune numai împotriva statului, reprezentat prin Ministerul Finanţelor Publice, în condiţiile legii, la tribunalul în a cărui circumscripţie îşi are domiciliul sau sediul după caz. Plata de către stat a sumelor datoroate cu titlu de despăgubire se efectuează în termen de maxim 1 an de la data comunicării hotărârii judecătoreşti definitive”.
„După ce prejudiciul cauzat de o eroare judiciară a fost acoperit de stat, Ministerul Finanţelor Publice se întoarce în mod obligatoriu pe cale judiciară împotriva jduecatorului sau procurorului care a determinat eroarea judiciară. Competenţa de judecată, în primă instanţă, revine Curţii de Apel Bucureşti, dispoziţiile Codului de procedură civilă fiind pe deplin aplicabile”, se arată la alin. (8), modificat aşa cum a propus Şerban Nicolae.
La alin. (9) se prevede că „termenul de prescripţie a dreptului la acţiune al statului prevăzut la alin. (8) este de un an, de la data când a fost achitat integral prejudiciul”.
Ultimul alineat al articolului 96, în forma propusă de Şerban Nicolae, prevede că „CSM poate stabili condiţii, termene şi proceduri pentru asigurarea profesională obligatorie a judecătorilor şi procurorilor. Asigurarea obligatorie nu poate să întârzie, să diminueze sau să înlăture răspunderea pentru eroarea judiciară determinată de rea-credinţa sau gravă neglijenţă”.
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