European Judicial Training Network Exchange Programme for Judicial Authorities With the support of the European Union

REPORT ON THE EXCHANGE AND SUMMARY

Instructions: 1. The report must be sent to the EJTN ([email protected]) within one month after the exchange. 2. Please use the template below to write your report (recommended length: 4 pages). 3. Please write in English or French. Should this not be possible, the report can be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary shall contain a synthesis of the most important information of the report. 6. Please note that NO NAMES, neither yours nor the ones of the persons you met during your exchange, should appear in the report in order to ensure anonymity1. Initials can be used when necessary.

Identification of the participant

Name:

First name:

Nationality: Romanian

Country of exchange:

Publication For dissemination purposes and as information for future participants in the Programme please take note that, unless you indicate otherwise, EJTN may publish your report in its website. In this case the report will remain anonymous and your name and surname will not appear. To this aim, please do not mention any names in the reports. Initials can be used instead.

Please tick this box if you do not wish for your report to be published

For completion by EJTN staff only Publication reference:

1 To that purpose, the first page of this report will be taken out before any possible publication

Réseau Européen de Formation Judiciaire/European Judicial Training Network (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: +32 2 280 22 42; Fax: + 32 2 280 22 36; E-mail: [email protected]

For completion by EJTN staff only Publication reference:

Identification of the participant

Nationality: Romanian

Functions: Judge at a first instance court in Bucharest

Length of service: since October 2004

Identification of the exchange

Hosting jurisdiction/institution: Regional Court in and Local Court Potsdam City: Berlin, Potsdam

Country: Germany

Dates of the exchange: 7-18 of November 2011

Type of exchange:

one to one exchange x group exchange

general exchange specialized exchange (please specify : )

SUMMARY

My exchange took place in two cities: Berlin, the capital city of Germany and one of the 16 , and Potsdam, the capital city of the German federal state of Brandenburg and part of the Berlin/Brandenburg Metropolitan Region. The exchange programme was organized by the tutor appointed, Mrs B.P., from Senate Department for Justice, Berlin Brandenburg Joint Board of Legal Examiners, and it combined both group and individual training, which I think was excellent because it gave us the possibility to deepen the relation between participants and tutors and also the opportunity to know more about the legal systems of different countries and not only about the one of the hosting country. In Berlin: - I visited the Regional Court (), divided into two divisions for civil and criminal cases. In the German court hierarchy, it is above the eleven local courts (Amtsgerichte) of the city and below the Kammergericht. The Landgericht Berlin is the largest Landgericht in Germany. - I had a meeting with a streetworker from the Gangway society, Incorporated Society for Streetsocialwork, who told us about his activity as a streetworker and the importance of the Gangway society in this field. - I also visited the Prison in Berlin, a medium security facility, where I could find out that the prisons in Germany are not fully occupied. In Potsdam I attended several criminal trials at the Local Court, accompanied by my tutor, judge O.K, who translated the main content of the statements in the trial and made me acquainted with several German colleagues. One aspect of the host country’s national law that I was particularly interested in was the lay judges.

European Judicial Training Network With the support of the European Union Exchange Programme for Judicial Authorities

Lay judges (Schöffen) are effectively short-term, non-professional judges. Except for most crimes for which the trier of fact is a single professional judge, and serious political crimes which are tried before a panel of professional judges, all charges are tried before mixed tribunals on which lay judges sit side by side with professional judges. Another very interesting aspect for me was the existence of the Gangway Society and their vision on helping the young people. As far as the German law is concerned, impartiality and independence of judges are considered fundamental in the judicial system, same as in Romania. However, I observed some significant differences in comparison to our Romanian system. In Germany is considered to be incompatible with the independence of judges the obligation to be present at court at least within a certain timeframe each day. Regarding the attribution of files to a judge, in Germany it is managed by a schedule of responsibilities set up for the relevant year, when in Romania the computer attributes the incoming files to the judges and sets up the time schedule of their session as far as the first court session is concerned. Another aspect of the German law regardes the possibility to maintain a convicted person in prison after he/she has executed the entire imprisonment punishment, when this person is still considered to endanger the public order, based on the decision made by the responsible judge.

When discussing with my colleagues, participants in the exchange programme, and my German colleagues about the implementation of the jurisprudence of ECHR by the criminal procedure in our countries, they were very surprised to know how accurately Romanian criminal procedure has implemented the principles and the jurisprudence of the European Court of Human Rights regarding the preliminary detention.

This exchange gave me the opportunity to meet people from another country, to learn about the German law and the German vision on a judge’s work and to establish contact points useful in future judicial cooperation, since judicial cooperation has become a part of the daily work of European judges.

REPORT

I- Programme of the exchange

My exchange took place in two cities: 1. Berlin, the capital city of Germany and one of the 16 states of Germany; located in northeastern Germany, it is the center of the Berlin-Brandenburg Metropolitan Region; 2. Potsdam, the capital city of the German federal state of Brandenburg and part of the Berlin/Brandenburg Metropolitan Region, situated on the River Havel, 24 km southwest of Berlin city centre. The name "Potsdam" originally seems to have been "Poztupimi" from a West Slavonic name meaning "beneath the oaks", highlighting the area's many grand oak trees. During the first week, after meeting at Senate Department for Justice, Berlin Brandenburg Joint Board of Legal Examiners with tutor appointed, Mrs B.P., and the colleagues from the exchange group, I was hosted at the Regional Court (Landgericht Berlin) and the Local Court in Potsdam. I spent the second week of my exchange in Potsdam, at the Local Court, participating in several criminal trials and after that I visited the Charlottenburg Prison in Berlin. At the and Regional Court (Landgericht Berlin) we were hosted by judge L. J., working in the civil section of the court. He explained to us the course of the incoming files, presenting us the department of the incoming files, the court archive and his own office. After the presentation, he was so kind as to answer our question about the German legal system, mainly concerning the civil area.

European Judicial Training Network With the support of the European Union Exchange Programme for Judicial Authorities

During our visit in Local Court in Potsdam, we attended a court session in a criminal main trial, presided by judge B.T. We were hosted there by two English speaking judges, one of them working in the civil section and the other in the criminal section of the court. They were so kind as to translate us the main content of the statements and the given sentence in the trial. Also in the first week we had a meeting with Mr. S.S. at the Gangway society, Incorporated Society for Streetsocialwork, who told us about his activity as a streetworker and the importance of the Gangway society in this field ( for details, see below chapter III). In the second week I had a three-day individual exchange at the Local Court Potsdam, where I was hosted by judge O.K., who participated in 2007 to an exchange programme that took place in Romania. He made me acquainted with several colleagues, among them Mrs. A. who was very kind to give me the opportunity to attend several of her court hearings. Mr. O.K., a judge specialized in financial crimes, explained to me some aspects of the German criminal law and was so kind as to interpret the main content of the hearings that I attended there. A highlight of my stage during the second week was the visit to the Charlottenburg Prison in Berlin, a medium security facility. Me and my colleagues were hosted there by Mr. S. and an English speaking teacher working with the prisoners. They told us that the prisons in Germany are not fully occupied and that every prisoner has his own cell. Our tutor also organized for us a visit to the House of the Wannsee Conference and the Plötzensee Memorial Center ( in Berlin). In the House of the Wannsee Conference – a former industrialist’s villa built in 1914-15 and used from 1941 to 1945 by the SS as a conference centre and guest house – on 20 January 1942, fifteen high-ranking representatives of the SS, the NSDAP (Nationalsozialistische Deutsche Arbeiterpartei) and various ministries met to discuss their cooperation in the planned deportation and murder of the European Jews. The Plötzensee Memorial Center commemorates the victims of National Socialism. From 1933 to 1945, nearly three thousand people unjustly sentenced to death by the National Socialist judiciary were executed here. Today, the execution chamber is a memorial. The exhibition in the room adjoining it documents the practice of the National Socialist judicial and penal system.

II- The hosting institution The Landgericht Berlin is the regional court of Berlin, divided into two divisions for civil and criminal cases. In the German court hierarchy, it is above the eleven local courts (Amtsgerichte) of the city and below the Kammergericht. The Landgericht Berlin is the largest Landgericht in Germany. The Landgericht Berlin is competent for public liability cases, voluntary jurisdiction, intellectual property, copyright and competition law, tenancy second instance concerning housing tenancies, traffic accident cases, comercial matters and apostilles and legalization. The Local Court Potsdam ( Amtsgerichte ) is the lowest level in the German Federal Court system. These courts decide on cases involving minor criminal offences or small civil suits . The Potsdam district court 's subject matter jurisdiction concerns: civil matters (such as financial disputes to 5,000 €, regardless of the amount in dispute such as tenancy disputes); family matters (marriage, divorce and consequential matters); criminal matters; misdemeanor cases ; care and accommodation matters; insolvency matters; register property (commercial, cooperative, association and partnership register); condominium property ; estate matters ; land matters ; foreclosures and compulsory administration matters; personal status matters and enforcement matters. The territorial jurisdiction of the district court Potsdam extends substantially to the district of Potsdam and the Potsdam-Mittelmark district. The building of the Local Court Potsdam (Amtsgerichte ) is a modern one. Each judge has his own office and every courtroom is equiped with computer, printer, telephone and fax-machine.

European Judicial Training Network With the support of the European Union Exchange Programme for Judicial Authorities

III- The law of the host country One aspect of the host country’s national law that I was particularly interested in was the lay judge. Lay judges (Schöffen) are effectively short-term, non-professional judges. Except for most crimes for which the trier of fact is a single professional judge, and serious political crimes which are tried before a panel of professional judges, all charges are tried before mixed tribunals on which lay judges sit side by side with professional judges. Section 263 of the German Code of Criminal Procedure requires a two-thirds majority for most decisions unfavorable to the defendant. In most cases lay judges do not directly examine documents before the court or have access to the case file. Lay judges are selected by a selection committee from lists that are passed by the municipal councils.The selection committee consists of a judge from the Amtsgericht, a representative of the state government, and ten "trusted citizens" (Vertrauenspersonen) who are also elected by the municipal legislature. It is not mandatory that they have legal knowledge. I attended three criminal cases tried before two lay judges and a professional judge. Another very interesting aspect for me was the existence of the Gangway Society and their vision on helping the young people. Gangway appeared in 1990 as an establishment of association of people, which assumed youth-political responsibilities. Gangway was hereby aware of the fact that this field of street work needs flexibility and the nearness to the youths. As a consequence it was impossible to be developed under the roof of public services. At first there were only two teams on board. Currently there are 45 street workers. The workers are divided in 14 teams. They carry out tasks in the 9 districts of Berlin. In each team are allocated three, in ideal cases four street workers of both kinds of gender. In the districts, in which we are confronted with migrants youths, the teams are bi- or tri-national composed. The first fundamental decision taken, focused on the location of work of the teams. Not the train stations and other numerous central places, at which the youths became remarkable, should become the location of work, but rather the districts, in which the youths live and spend most of their time. Concrete life assistance must be set, where the youths live and in most cases where they want to live, exactly in the quarter. Presently the street workers in the quarters are well- known and trusted. As far as the everyday life work, for Gangway it is a fact that the clique is significant to the youths than school, family or other social facilities. The Gangway approach is not aiming to the dissolution of these groups, but to bring them in the truest sense of the word “in motion”. Thus Gangway considers that the youths in their group affiliation gather a lot of experiences, which are enormously important for their development stage. An important component of Gangway’s work is to create a lobby for the youths. It’s not just sufficient to do this for the youths, but rather support them thereby to develop their own form of participation as well to achieve new goals which don’t comply to their daily behaviours. Regular everyday life are e.g. representation of interests and the search after conflict solutions with housing agencies, public authorities, public facilities, residents etc. The public area is a legitimate living place (also) for the youths. The Gangway program doesn’t focus to barely keep the youths away from this area, but rather composes of tolerance process development and interest coordination under activecooperation with the youths. The workers advice to the youths in an adequate way referring to their needs and require, in order to help them to solve their problems. Many juveniles need a trusted confident, who assists them during good and painful times, in order to accept further help and keep the help process going on. A very important aspect concerning Gangway is that the workers, as a general rule, don’t give people or groups-related data to any third party including the police. IV- The comparative law aspect in your exchange Same as in Romania, impartiality and independence of judges are considered fundamental in the judicial system. However, I observed some significant differences in comparison to our Romanian system. In

European Judicial Training Network With the support of the European Union Exchange Programme for Judicial Authorities

Germany is considered to be incompatible with the independence of judges the obligation to be present at court at least within a certain timeframe each day. In Romania, on the other hand, the judges have to check in/check out to/form their work, either by informing the President of the court, or by signing in a booklet. Coming late at work could even entail disciplinary measures in Romania. As far as the attribution of files to a judge, in Germany it is managed by a schedule of responsibilities set up for the relevant year, when in Romania the computer attributes the incoming files to the judges and sets up the time schedule of their session as far as the first court session is concerned. In Germany, not every case requires a court session and there is the possibility to make a decision in a merely written procedure, even in criminal cases, which Romanian law does not allow. I would like to point out another aspect of the German law regarding the possibility to maintain a convicted person in prison after he/she has executed the entire imprisonment punishment, when this person is still considered to endanger the public order, based on the decision made by the responsible judge. According to Article 66 of the German Criminal Code a sentencing court may, at the time of an offender’s conviction, order his preventive detention, known as a measure of correction and prevention, under certain circumstances in addition to his prison sentence, a penalty, if the offender has been shown to be dangerous to the public. The Romanian law does not know such a case of maintaining a person in prison. Also, escaping prison is not a criminal offence in Germany; meanwhile in Romania is considered to be a serious crime, punished by imprisonment up to 8 years if committed in aggravated circumstances ( by use of violence or arms or together with another person).

V- The European aspect of your exchange During my stay I had the opportunity to discuss with my colleagues, participants in the exchange programme, and with my German colleagues about the implementation of the jurisprudence of ECHR by the criminal procedure in our countries. As a conclusion, they were very surprised to know how accurately Romanian criminal procedure has implemented the principles and the jurisprudence of the European Court of Human Rights regarding the preliminary detention: a judge is always on call competent to decide on the preliminary arrest of a person and also preliminary detention has to be reviewed each 30 days during the criminal investigation or each 60 days during the trial before the court.

VI- The benefits of the exchange This exchange gave me the opportunity to meet people from another country, to establish contact points useful in future judicial cooperation ( since judicial cooperation has become a part of the daily work of European judges) and also the possibility to learn about the German law and the German vision on a judge’s work. The National Institute of Magistracy in Romania has created a website ( http://www.inm-lex.ro/exchange) where the Romanian magistrates ( participants to the exchange programme) can publish their impression on their exchange, their knowledge about the law of the hosting country in order to encourage other colleagues to apply and participate in such exchange programmes.

VII- Suggestions In my opinion, the best way to organize the training in the exchange programme is to combine both group and individual training, just the way my exchange programme was organized. I think this way is excellent because it gives the possibility to deepen the relation between participants and tutors and also the opportunity to know more about the legal systems of different countries and not only about the one of the hosting country. Annex – copy of my programme, as resulting form the electronic correspondence carried by my tutor.

European Judicial Training Network With the support of the European Union Exchange Programme for Judicial Authorities