Romanian Judges’ Forum Association repeatedly requested Mr. President Klaus Iohannis, Senate President and Chamber of Deputies President to ask an opinion from European Commission for Democracy through Law (Council of Europe body known as Venice Commission) on complex issues concerning amendments to Criminal Code, Criminal Procedure Code and Civil Procedure Code, claiming imperatively a discontinuance in the above mentioned debates till such a legal opinion is delivered.
Despite this request, the on-going process of enacting legislation is carried on in a completely unpredictable and unclear manner, giving no clue on the way that submissions of judiciary would be used hereinafter and just taking advantage of its presence in order to validate a fake consultation lacking real dialogue.
Thus, most of the handouts have been circulated just few hours before the Commission’s start working time, no members’ vote is happening next to discussions on amendments, although there are many inter connected provisions which normally incur prior analysis on proposed and enacted after form.
We stress that some of these new amendments ignore well established rule of law principles as well as third power state position magistrates should be recognized to, alongside with the transparency which real public consultation should reflect; in reality, the proposed amendments unbalance the independence and responsibility of judges and prosecutors, uncomplying with constitutional standards and defying commitments Romania took when joining international treaties which is part to.
For instance, some of newly proposed amendments (crimes incriminated in article no 2801 – Bad faith and article no 2802 – Gross negligence) are nothing but a surprisingly and so far unwitnessed attempt to intimidate Romanian judges and prosecutors by turning simple professional misbehaviour into crimes similarly punished to homicide and much more severely than theft, manslaughter, pandering, robbery, piracy, corruption offences, etc. (for more details, one can refer to Romanian Judges Forum’ Association Press Release on 8th of May 2018).
More recently, other amendments are assimilating judges and prosecutors to organized crime, placing them on the same crime danger level with running hookers, human traffickers, smugglers, as they appear to have been issued out of the necessity “to fight organized crime groups, as well as judges and prosecutors in committing specific crimes” (quote of the newly proposed amendment to article no 367 al. 2 of Criminal Code, which reads as follows: “The conduct incriminated in paragraph 1 meant to undertake any other criminal action against life, resulting in other injuries or health threat or on the purpose to unfairly investigate or taking someone to trial is being punished with 10 to 15 years imprisonment and other rights ban”.
In the same time, the proposed amendment of article no 397 Criminal Code (so called “Actions against constitutional order”) is being justified like this: “not only army operations but the very actions undertaken so far by National Anticorruption Directorate and Romanian Intelligence Service are the living proof of an illegal attempt to the constitutional order and obstruction of legitimate state power exercise”.
Romanian judges and prosecutors are obviously being presumed by the legislative power of actioning in bad faith, are ab initio publicly advertised as a highly dangerous crime phenomenon, requiring proper and immediate destruction, approach incompatible with rule of law democratic standards and minimal compliance with provisions of joining treaties to Council of Europe and European Union.
Contrary to the public stated objectives of the Special Joint Commission, we emphasize the parallel obscure existence of project amendments adopted through tacit agreement, without any consultation of judiciary, which seem to reinvent the Criminal Procedure Law (for instance an appeal to the five members bench of High Court of Justice and Cassation can only be lodged in favour of the defendant).
Justice Minister’s and some members’ of Special Joint Commission statements, in opposition to article 11 of Constitution, have recently undermined GRECO report which specifically requested Romania to refrain from adopting amendments to criminal legislation in non compliance with its international commitments and thus jeopardizing the domestic fight against corruption. Such inadequate outbursts may also endanger Romania’s image as a Council of Europe member and canceling all institutional efforts, carried out in the last 20 years, regarding mutual trust with our European partners.
Therefore, in view of these arguments it is more than obvious that the representatives of legislative power are least likely to act on the purpose of improving legislation by transposing European directives or implementing Constitutional Court rulings, as long as the way of organizing the debates and communication deficiencies corroborated with obscure legislating approaches rather plead for an extensive well thought before plan of weakening judiciary, holding it “liable” for lately criminal convictions of many politicians.
Romanian Judges’ Forum Association took early part in these debates in good faith, to the only goal of bringing legal professional arguments and issuing constitutional answers mutually shared by other European Union member states legislations, in compliance with the provisions of international treaties Romania has joined so far.
Despite this effort, recent developments seem to disclose a deep inner hate against judiciary along with a wish to reconfigure the balance which should exist between the same old three powers of any constitutional state.
To conclude, Romanian Judges’ Forum Association reports withdrawal from debates in the Joint Special Legal Commission of Deputies Chamber and Senate and firmly requests to the Superior Council of Magistracy to ascertain that the above mentioned amendments are deeply impairing the independence, the prestige and credibility of judiciary, doing nothing but undermine its empowered authority.
We finally claim a real independence of judicial power, which involves certain established guarantees from the other two state powers in order to consolidate the independence and impartiality of a magistrate.
judge Dragoș Călin, Bucharest Court of Appeal, co – president
judge Anca Codreanu, Brasov District Court, co – president
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