Situation Regarding the Legislative Amendments Concerning the Romanian Judicial System

          

 

  1. Introduction

During 2017 and 2018, three amendments were adopted for the generically called laws “of judiciary”, i.e. Law no. 303/2004, republished, on the statute of judges and prosecutors, Law no. 304/2004, republished, on judicial organisation, and Law no. 317/2004 on the Superior Council of Magistracy, all republished, subsequently amended and supplemented.

A significant number of such amendments, which were heavily criticized by the European Commission for Democracy through Law of the European Commission (Venice Commission) or GRECO, which are already in place or, as the case may be, submitted to the President of Romania for promulgation[1], are extremely harmful for magistracy, being necessary to postpone or suspend the enforcement of the concerned provisions until the date of their complete review, or, as the case may be, the abrogation of those provisions which are in place.

In principle, the legislature and the executive from Romania should immediately consider the Notice issued on 13 July 2018 by the Venice Commission so that the destruction of magistracy is avoided. This is enlightening for the compliance with the standards of the rule of law in Romania in numerous aspects regarding the amendments made to the laws of judiciary, and it cannot be endlessly disregarded, the recent public developments seriously endangering the independence of the judiciary and the trajectory of Romania within the European Union and the Council of Europe, as previously ascertained by the European Commission and GRECO.

 

  1. Targeted criticisms regarding the amendments of the three laws
  • According to the Notice of Venice Commission of 13 July 2018, the legislature and the executive from Romania are bound to immediately rethink the system of appointing/discharging the prosecutors in senior management functions, in order to provide the conditions for a neutral and objective appointment/discharge process by maintaining the role of some of the authorities, like the President and the Superior Council of Magistracy (CSM), which are capable of counterbalancing the influence of the Ministry of Justice. Mrs. Laura Codruta Kovesi was discharged from her office of Chief Prosecutor of the National Anticorruption Directorate under the Decree no. 526/2018 issued by the President of Romania as a result of the Decision no. 358 of 30 May 2018 of the Constitutional Court. As long as a Chief Prosecutor may be discharged to the discretion of a politician, even if he is the Minister of Justice, we can no longer talk about independence, an excessive political influence being created. According to Annex IX to the Treaty Regarding the Accession of Bulgaria and Romania to the European Union, Romania undertook to provide actual independence to the National Anticorruption Directorate, a fact which is denied by discharging the chief prosecutors of this unit of the prosecutor’s office which is to the discretion of the Ministry of Justice.

Moreover, Venice Commission suggested that, in the context of an ampler reform, the principle of independence should be added to the list of principles which govern the activity of the prosecutors.[2]

  • The limitations proposed with regard to the freedom of expression of the judges and prosecutors should be eliminated, and the provisions regarding the material liability of the magistrates should be reviewed, modifying the mechanism of deploying the recourse action.

Through Notice no. 934 of 13 July 2018, Venice Commission, with regard to the freedom of expression of the magistrates, considered that “(…) the new obligation imposed to the Romanian judges and prosecutors seems to be at best unnecessary and at worst dangerous. It is obvious that judges should not make defamatory statements with regard to any person, not only with regard to the branches of the government. It is useless to make this specification through the law. 129. On the contrary, such specification seems dangerous, especially that the notion of defamation is not clearly defined, and such obligation is incumbent precisely upon the other branches of the government. Thus, the path towards subjective interpretations is opened: what does “defamatory manifestation or expression” of a magistrate “in exercising his/her prerogatives” mean? Which are the criteria for the assessment of such conduct? What does the “power” notion mean within the meaning of this interdiction? Does it refer to public institutions or persons? Which is the impact of the new obligation on the jurisdiction of the Superior Council of Magistracy (CSM) to defend the judges and prosecutors through public statements against the undue pressures originating from other state institutions?”  

The lawmaker failed to comply with its obligation set forth by the Constitutional Court to identify and regulate those infringements of the rules of substantive or procedural law which are within the scope of the notion of judicial error in the sense of the considerations from Decision no. 252/2018, but it has kept a general definition in principle of the judicial error, referring to other necessary regulations in order to supplement such definition.

Even though, as a result of bringing the law into line with Decision no. 45/2018, the lawmaker has regulated a procedure by which the recourse action is not automatically initiated – mentioning that the initiation of the recourse action takes place after submitting a consultative report of the Judicial Inspection and after “own evaluation” of the Ministry of Public Finance – the omission of the regulation by law of a clear procedure through which such “own evaluation” should be carried out is capable of causing unpredictability in enforcing the rule.

This aspect is also rendered evident in the Notice of Venice Commission, which states that criteria are not provided for carrying out own evaluation of the Ministry of Public Finance, a body of the central public administration, and that such institution, which is not part of the judicial system, does not represent the best solution with regard to its inclusion in this procedure, not being possible for it to have a role in the assessment of the existence or causes of the judicial errors. These could be established through disciplinary proceedings.

  • It is necessary for the legislature and the executive to cancel the establishment of a separate prosecutor’s office structure for the investigation of the offences committed by judges and prosecutors.

The Division for the Investigation of the Judiciary Offences was established as part of the Prosecutor’s Office attached to the High Court of Cassation and Justice, which shall allow to forward tens of files of high-level corruption on the dockets of the National Anticorruption Directorate by simply filing fictitious complaints against a magistrate, destroying a significant volume of DNA activity constantly appreciated by MCV Reports.[3]

While, under Decision no. 33/2018, the Constitutional Court dismissed as unfounded the unconstitutionality criticisms regarding the effects which the enforcement of this new prosecutor’s office structure generates on the jurisdiction of other already existing structures, the regulation of rules which refer to the statute of the prosecutor, creation of a new discriminatory regime not founded on objective and rational criteria, the modality of regulating the institution of the chief prosecutor of this division or the jurisdiction of the General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice to solve the conflicts of jurisdiction which occur between the structured of the Public Ministry, still, in the Notice of 13 July 2018, Venice Commission suggested to reconsider the establishment of a special division for the investigation of the magistrates.

Alternatively, it was proposed to use specialized prosecutors at the same time with efficient procedural safeguard measures. Venice Commission established that “The use of specialized prosecutors in such cases [corruption, money laundry, trade of influence etc.] was successfully engaged in many states. The concerned offences are specialized and can be better investigated by specialized personnel. Moreover, the investigation of such offences often requires persons with special expertise in very specific fields. Provided that the deeds of the specialized prosecutor are subject to an adequate judicial control, it brings many benefits and there are no general objections to such system.” CDL-AD (2014)041, Interim notice regarding the draft law on the State Prosecutor’s Office of Montenegro, paragraphs 17, 18 and 23[4].

In the Ad-Hoc Report on Romania (Rule no. 34) adopted by the Group of States against Corruption (GRECO), during the 79th Plenary Reunion (Strasbourg, 19-23 March 2018), it was indicated that the division appeared as “an anomaly in the current institutional structure especially because of (i) the fact that there have not been any specific data or evaluations which to demonstrate the existence of structural judiciary issues which to justify such initiative; (ii) the way in which the management is appointed, and of (iii) the fact that such division would not have available adequate investigators and investigation instruments unlike other specialized criminal investigation bodies. It was also emphasized that such body would be immediately overburdened because of the draft provisions which stipulate the immediate transfer of many cases from other prosecutor’s offices while the low number of personnel is not adequate for solving them (a total of 15 according to the draft law). Moreover, this new division shall investigate the offences, even though other persons are involved, together with the magistrates (e.g. public officers, elected officials, businesspersons etc.), in accordance with the formulation of the amendments proposed at Article 88, indicative 1, paragraph 11 of Law no. 304/2004. This could lead to jurisdiction conflicts with the existing specialized prosecutor’s offices (DNA, DIICOT, military prosecutor’s offices), even though the authorities remind that such conflicts are normally solved by the General Prosecutor. More importantly, there are also concerns that such division would be easily used in an abusive way in order to eliminate the cases judged by the specialized prosecutor’s offices or to interfere in the important and sensitive cases, if the complaints against a magistrate are incidentally filed in this case, because it would automatically fall within the competence of the new division (a situation in which a decision to disjoin the case should be taken, according to the general rules of criminal procedure in the field of connecting/disjoining cases, in order for it to remain at the initially competent prosecutors).”

  • The lawmaker from Romania should waive the provisions which set forth a double period of training at the National Institute of Magistracy (four years instead of two years).

In the opinion of Venice Commission published on 13 July 2018, doubling the period of training at the National Institute of Magistracy, combined with other modifications (like changing the structure of the panels, anticipated retirement etc.) could seriously affect the “efficiency and quality of the judicial process”. Moreover, the institutional blockage that could be generated by the aforementioned provisions affects even the application of justice and its independence both in the institutional component, which regards the good operation of the judicial system, and also in its personal component, which refers to the independence of the judge.

  • Based on the new provisions, meritocracy shall be eliminated from the magistracy, for example, the actual promotion in the superior prosecutor’s offices and courts being done based on subjective criteria, i.e. “assessment of activity and conduct within the last three years”, at the High Court of Cassation and Justice being doubled by a formal interview before the Plenary of the Superior Council of Magistracy, eliminating the practical and/or theoretical written examinations and enforcing a visible promotion control system. The written examination was eliminated from the competition for promotion in the position of judge at the High Court of Cassation and Justice.

By maintaining only the interview examination for applicants, the professional standards are relativized, with effect on the quality of the activity of the Supreme Court judges, and the subjectivism dose is enhanced. On the other hand, the subject of the interview, as it is provided at Article 524, paragraph (1) of Law no. 303/2004, is identical to that of the verifications carried out by the Judicial Inspection in the procedure provided by the Regulation regarding the promotion in the position of judge at the High Court of Cassation and Justice. In other words, all the data which are the subject of the interview are found in the Report prepared by the judicial inspectors upon the verifications whose subject is precisely this: “integrity of the applicants and the way in which the applicants relate to the values like the independence of legislative and impartiality of judges, motivation and “their human and social” skills.

The inequity in regulating the procedures of promoting to superior courts is all the more obvious as the degree of professional exigency should be directly proportional to the hierarchy of the law courts in the Romanian judicial system, being necessary for the activity at the supreme court to be carried out by judges who have proven that they have thorough theoretical and practical knowledge in the specialization for which they apply.

With these decisions, the international deeds which set forth the fundamental principles regarding the independence of judges – importance of their selection, professional training and conduct and of objective standards necessary to be complied with both when entering the profession of magistrate and upon enforcing the promotion modalities – are also blatantly disregarded.

The Committee of Ministers in the Council of Europe has constantly recommended to the governments of the member states to adopt or consolidate all the necessary measures to promote the role of judges, in an individual way, but also of magistracy, in an aggregate way, in order to promote their independence, by especially applying the following principles: “(…) any decision regarding the professional career of judges should be based on objective criteria, the selection and promotion of judges should be based on merits and depending on their vocational training, integrity, skills and efficiency” (please, see the Committee of the Ministers in the Council of Europe, Recommendation no. 94/12 of 13 October 1994, with regard to the independence, efficiency and role of judges).

            Any “objective criteria” which are intended to guarantee that the selection and career of judges are based on merits, considering the vocational training, integrity, capacity and efficiency” cannot be defined but in general terms. First of all, it is intended to provide content to the general aspirations for the purpose of “appointing based on merits” and “objectivism”, aligning the theory to reality. The objective standards are required not only to exclude the political influences, but also to prevent the risk of favouritism, conservatism and “nepotism”, which exists to the extent that the appointments are made in an unstructured manner. Although adequate vocational experience is a prerequisite condition for promotion, the seniority in the modern world is no longer generally accepted as the dominant principle of determining the promotion.

With the Ad-Hoc Report on Romania (Rule 34) adopted by the Group of States against Corruption (GRECO) during the 79th Plenary Reunion (Strasbourg, 19-23 March 2018), it was considered as follows: ”31. The proposed amendments continue to contain a share of subjectivism in the selection and decision-making process regarding promotions, which provides a two-step promotion procedure, the last step consisting in the latest work and behaviour. The amendments also provide as the prerogative of CSM the preparation and adoption of rules regarding the procedure of organisation of such evaluations, including the appointments in the commission in charge and the particular aspects which should be evaluated. GRECO heard concerns with regard to the fact that this new system would leave more space for the personal or political influences in the decisions regarding the career, which could have an impact on the neutrality and integrity of the judicial system, and that, therefore, it would be essential for CSM to establish adequate rules to prevent such risks, including clear and objective criteria to guide future decisions of the selection commission. 32. Because of the abovementioned risks and uncertainties, GRECO recommends (i) to adequately review the impact of the amendments on the future personnel structure of the courts and prosecutor’s offices in order to be possible to adopt the necessary transitional measures, and (ii) the implementing regulation to be adopted by CSM with regard to promotion of judges and prosecutors to regulate adequate, objective and clear criteria which to consider their actual qualifications and merits.”

  • Retirement of the Romanian magistrates shall be possible at the age of 42-43.

The amendment introduces the possibility for such retirement of the judges of prosecutors who have 20 to 25 years of seniority in magistracy to be possible even before reaching the age of 60. A massive retirement among magistrates[5] automatically leads to an overburdening of the courts and to actual blockages of the judicial system operation. Therefore, the concerned regulations have a direct impact on exercising the fundamental right of access to justice and the right of the citizens to case solving within a reasonable period, being contrary to Article 21 of the Romanian Constitution (delays in solving the files because of the necessity to re-docket the cases as a result of judges before whom evidences have been directly submitted or who have participated in court investigation or debates ceasing their activity, dismissal of the cases as a result of expiring the limitation periods etc.).

In the opinion of Venice Commission, it was stated that such amendment represents a real danger for the continuation of the fight against corruption in Romania. The quantum of the pension calculated for the retired judges and prosecutors currently exceeds the quantum of the indemnity received by the judges and prosecutors in office by 30% thanks to more favourable fiscal provisions.

  • The introduction of the panels consisting in three judges (instead of two) for solving the hearings, and of the panels consisting in two judges to judge the appeals against the decisions delivered by the judges of rights and freedoms and the judges of preliminary chamber from the courts of appeals has a direct impact on the good operation of the courts and on their degree of burdening them, and it implies a significant reduction of the time allocated to judges in order for them to reasons the decisions, provided that the number of judges from these courts remains the same, a fact which indirectly affects the settlement of the cases within a reasonable period. Moreover, in the absence of an impact study regarding the effect of such provision on the human resources of the courts and on the settlement of the cases within a reasonable period and especially on the degree of burdening the courts, the legislative solution induces a risk of blockage which the law courts are subject to.
  • The role and prerogatives established by the Constitution for the Superior Council of Magistracy, as a collegiate body, is modified although the rearrangement of the roles and prerogatives between CSM Plenary and CSM Divisions affects the constitutional role of CSM and exceeds the constitutional prerogatives specific to the Divisions contrary to Article 125, paragraph (2), Article 133, paragraph (1), and also to Article 134, paragraphs (2) and (4) of the Romanian Constitution. If it were to accept the possibility for the prerogatives of the Plenary of the Superior Council of Magistracy, meaning of the Superior Council of Magistracy as collective and representative body, to be distributed to the two divisions of the Superior Council of Magistracy, it would mean that two structures of Superior Council of Magistracy type would operate de facto – one for the judges and one for the prosecutors. On one hand, this legislative solution denies the constitutional role established by the constituent lawmaker for the Superior Council of Magistracy as the sole constitutional authority representative for the magistrates, and, on the other hand, it would determine the significant exacerbation of the decisional “corporatism” of the divisions, an aspect which would affect not only the independence of judiciary, but also the constitutional principle of fair cooperation within the court authority, such fair cooperation resulting from the fact that the decisions concerning the independence of the court authority, except the disciplinary ones, are taken in Plenary, with the participation of the representatives of the magistrates, but also of the representatives of the institutions with significant prerogatives in and with regard to the court authority (President of the High Court of Cassation and Justice, General Prosecutor from the Prosecutor’s Office attached to the High Court of Cassation and Justice and the Minister of Justice). The constituent lawmaker has established a constitutional authority within the framework of the court authority which collectively exercises, in its aggregate, a wide series of constitutional and legal prerogatives, while the divisions exercise only those prerogatives which the Constitution has expressly entrusted to them, and also other legal prerogatives, but which are closely connected to the constitutional role provided at Article 134, paragraph (2) of the Constitution. In other constitutional systems, where the constituent intended to make a net distinction between the professional staff of the judges and the professional staff of the prosecutors, distinct judicial councils were established precisely under the fundamental law. In France or Belgium, which are traditional constitutional models also for Romania, the presidents of the supreme courts have been speaking out within the last years for the unity of magistracy within the same council.[6]

Even though the assessment made by Venice Commission converge towards separation of the careers in magistracy, the only way by which the strict separation of the careers of judges and prosecutors is possible without the risk of declaring unconstitutional such modification is represented by a constitutional revision.

Moreover, the representative members of the civil society are excluded from most of the decisions, especially considering the new distribution of prerogatives between divisions, although the Superior Council of Magistracy is a collective body, which should operate as a rule and not as an exception in composing all of its members.

  • The reorganisation of the Judicial Inspection shall unjustifiably enforce the prerogatives of the head inspector who shall appoint, among the judicial inspectors, those who shall occupy the management positions (as a result of a simple evaluation of the management projects specific to each management position), practically controlling the selection of the judicial inspectors, managing and controlling the inspection activity and the disciplinary investigation activity, being the main authorising officer and the only holder of the disciplinary action. All these modifications are aspects which indicate a qualification of the professional standards imposed to the management of the Judicial Inspection with the consequence of eliminating its operational independence.

This trend generates negative effects with regard to the quality of the activity of the Judicial Inspection in the field of liability of the magistrates, and, consequently, it is capable of endangering the independence of the justice and the constitutional role of the Superior Council of Magistracy of guarantor of the independence of judiciary. The enforcement under the law of a provision which, on the one hand, promotes the subjectivism of the head inspector in appointing the management of the Judicial Inspection and, on the other hand, enforces a complete dependence of all the management mandates within the Inspection on the mandate of the head inspector, is an infringement of the principle of providing security of the judicial reports in exercising the management mandates by the respective judicial inspectors.

 

  1. Conclusions

Therefore, in Romania, as effect of enforcing the amendments made to the laws of judiciary, the number of magistrates shall be reduced (on short term, by at least 25%, if no measure is found to fight the effects of early retirement), de-skilled by waiving the meritocratic promotion exams, overworked, by increasing the volume of activity. It will be possible for it to be supervised through the agency of the head of Judicial Inspection and the special Division for the investigation of the judiciary offences within PICCJ. The magistrate prosecutors shall lose de facto their independence, the control over them being implicitly exercised by the Ministry of Justice, a political factor, which shall be allowed to offer them guidance with regard to efficient prevention and fight of crimes.

It is obvious that all these amendments made to the laws of judiciary and submitted to the President of Romania for promulgation or, as the case may be, already valid, are not at all necessary in a judicial system of a democratic state, not being in any way beneficial for the judicial system or society. On the contrary, they are extremely harmful for magistracy, being necessary to postpone or suspend the application of the concerned provisions heavily criticized by Venice Commission or GRECO until the date of their complete revision or, as the case may be, to abrogate those provisions which are valid.

The Romanian Judges’ Forum Association has requested multiple times to the Ombudsman to immediately notify the Constitutional Court with regard to the provisions of these regulatory deeds which affect, according to Venice Commission, the independence of justice. The Ombudsman, Mr. Victor Ciorbea, has replied not even formally, although he has the express prerogative of notifying the Constitutional Court with regard to laws and ordinances, and it is not limited to the protection of human rights, being required for his role to be extremely active in defending the rule of law and, therefore, the international commitments made in this respect by the Romanian State (please, see the Endorsement no. 685 of 17 December 2012, CDL-AD(2012)026, Venice Commission).

We also mention that, with the constant statements of the Minister of Justice and representatives of the legislative, contrary to Article 11 of the Constitution, GRECO Report by which it was required for Romania to refrain from adopting amendments to the criminal legislation which to contravene its international commitments and to undermine the internal capacities to fight against corruption is minimalized, and the necessity of notifying Venice Commission is disregarded.

The Plenary of the Superior Council of Magistracy appears not having any kind of reaction with regard to the amendments made to the laws of judiciary and the judge division replies without reasoning to the discourse of an ambassador who raises real issues regarding the activity of the Judicial Inspection, in the situation where, purely statistical, by studying the covered agenda of the meetings of the disciplinary divisions and the website of the High Court of Cassation and Justice (because the decisions of the divisions of the current CSM in the disciplinary fields are no longer public since 2017, despite the undertaken transparency), it results that, from 2017 until 2018, 29 disciplinary actions were admitted and 24 disciplinary actions were dismissed, all of which concerning judges, and 11 disciplinary actions were admitted and 11 disciplinary actions were dismissed, all of which concerning prosecutors, the percentage of magistrates found not guilty being of almost half (50%) of those judged by the disciplinary divisions (n.n. – some of the initially admitted disciplinary actions were dismissed by the High Court of Cassation and Justice). All these realities inevitably attract public comments, the freedom of expression being inviolable, according to the Constitution.

It is inadmissible for CSM Plenary not to have any kind of reaction with regard to the constant unfounded statements of various public persons, including of the Prime Minister Viorica Vasilica Dancila with regard to the fact that “half of the magistrates from Romania have had for years files through which they were probably influenced to order sentences established outside the court room”, provided that, in half of the cases, we are talking about fictive complaints, some of the anonymous and abusively filed by parties discontent with the sentences given in the files, and no influence on any judge has ever been punctually proven.

The Superior Council of Magistracy should continue to consolidate its activity in defence of the reputation of the magistracy in a coherent and efficient way, as it was required by the European Commission in MCV, being bound to demonstrate the commitment towards transparency and responsibility, in complying with the constitutional role of CSM, and not to passively assist to magistracy being made less credible, including by propagating the message sent by various public persons with regard to the fact that the justice is made under the pressure or influence of external factors capable of affecting the independence and impartiality of judges.

It is about the hysteria from the domestic public space related to the ambiguity intensely promoted through media of the “illegal character” of the protocol between the Romanian Intelligence Service and the Prosecutor’s Office attached to the High Court of Cassation and Justice for the purpose of cancelling all the efforts of the criminal judiciary from the last few years, to the extent that the existence of actual underlying issues for which legal remedies exist anyway in individual cases is not proven.

The Romanian Judges’ Forum Association stated that, in case of a reasonable suspicion of infringement of the functional competence in carrying out the criminal investigation, the verification of the legality of submitting the evidence is within the exclusive jurisdiction of the criminal courts, considering that all magistrates have the right of access to classified information, and the attorney of the defendant may be provided such access upon request. Moreover, there is an actual necessity of tempering an actual public hysteria on this subject, which is susceptible of concretizing in a direct pressure on the law courts, for example, in order to acquit all the criminals found based on information provided by the Romanian Intelligence Service.

An intervention of the legislative in this field, exclusively and indistinguishably generated only by this context of the “secret protocols”, would cause serious prejudices to the criminal investigation of several serious offences, like those or organised crime and terrorism, because the technical measures executed by the Romanian Intelligence Service at the direction of the prosecutor’s offices or law courts have not concerned only the corruption offences, these being only those which have mostly fed the “conspiracy theory” because of the capacity of the active subjects of public officers, senior officers or officials.[7]

A similar message was issued, on 4 October 2018, by the Judge Division of the Superior Council of Magistracy, which stated that “the independence of judiciary, provision of the right to a fair trial and taking the decisions of the judicial authorities only under the law represent requisites for all the judicial bodies involved in the activity of providing justice. The compliance with the exigencies of the law implies carrying out procedural activities only under the law, and the subsequent deeds concluded in order to comply with the law should rightfully observe the regulatory provisions in strict accordance with the prerogatives assigned by the law to all the involved entities. The assessment of the exceedance of such prerogatives and also of the performance of judicial activities under deeds which disregard such legal exigencies is exclusively within the competence of the judge called to enforce the law in the concrete case and to ensure all the guarantees of a fair trial.”[8]

  1. Update

In a press release issued on 14th of October 2018, supported by hundreds of judges and prosecutors,[9] Romanian Judges’ Forum Association requested the other two legislative and executive powers to take into account as soon as possible the preliminary Opinion delivered by Venice Commission on 13th of July 2018, in order to avoid the dissolution of magistracy.

            On 15th of October 2018, the Romanian Government enacted the Emergency Ordinance nr. 92 for amending a whole range of regulations in the justice area,[10] such as the postponement till the 1st of January 2020 of the provisions concerning the anticipated retirement scheme as well as the settlement of first and second appeals in a three judges panel. The urgent legislative action was claimed to be taken in order to ensure the proper functioning of judiciary as a public service on a short and medium term, taking into account that failing to follow this step would impair the courts’ proper functioning, would inexcusably delay the cases settlements, leading to major consequences as breaking the very principle of dealing with cases in a reasonable time; the reasoning keeps emphasizing the necessity of taking into account that the anticipated retirement scheme will predictably impact massively on proper functioning of courts and prosecutor’s offices, efficiency and quality of the justice service, leading to a substantial decrease of active magistrates as the new enacted law regulates simultaneously an increase of INM training period as well as the necessary seniority to run for a promotion. In practice, the disaster on human resources has been postponed for 1 year, 2 months and 15 days.

            Even if the Emergency Ordinance also regulated the participation of civil society representatives members of Superior Council of Magistracy with voting rights to the Plenum sessions, the provision has to be read in line with each section’s new assignments, who literally took over the majority of Plenum’s competencies, so that this participation will become merely symbolic.

Apparently, in order to comply with Venice Commission preliminary Opinion, the Government removed the provision which had previously enabled the revocation of an elected SCM member, when the majority of judges or prosecutors in the courts/prosecutor’s offices that the member represents withdraw confidence in his/her respect. Nevertheless, a sort of new probatio diabolica has been instead implemented, rendering the approach almost impossible as long as any step in this direction is confined to the corresponding SCM section findings, based on a report drafted by the Judicial Inspection, concluding that the member object of the revocation procedure did not observe properly, in a serious, persistent and unjustified manner his/her duties prescribed by law.

On the other hand, the emergency ordinance doesn’t refer to any other negative issues underlined in the preliminary Opinion. On the contrary, although the Venice Commission suggested reconsidering the set up of a new special section for investigating magistrates, in total defiance the Government enacted the Emergency Ordinance nr. 90/2018 in order to operationalize it.[11]

The Emergency Ordinance nr. 92/2018 also regulates in new areas not linked whatsoever to the preliminary Opinion of the Venice Commission.

Some of the new provisions have been harshly criticized by Romanian law specialists, such as the ones increasing the seniority as a prosecutor necessary to promotion for an office within The Prosecutor’s Office attached to High Court of Justice and Cassation, the Directorate for the Investigation of Organized Crime and Terrorism and the National Anticorruption Directorate, the seniority for being appointed General Prosecutor, First Deputy and his Deputy within The Prosecutor’s Office attached to High Court of Justice and Cassation, Chief Prosecutor and his/her deputies within the National Anticorruption Directorate, Chief Prosecutor and his/her deputies within the Directorate for the Investigation of Organized Crime and Terrorism, as well as the seniority for being appointed chief section prosecutors.

According to article VII of this emergency ordinance, „The prosecutors who, at the time of coming into force of this regulation, serve within the Prosecutor’s Office attached to High Court of Justice and Cassation, the Directorate for the Investigation of Organized Crime and Terrorism and the National Anticorruption Directorate as well as within other prosecutor’s offices, shall leave their present offices unless they comply with the conditions regulated by the Law nr. 303/2004 regarding the magistrates’ status, as it has been further amended”.

            On request of the Prosecutor’s Office attached to High Court of Justice and Cassation, the Directorate for the Investigation of Organized Crime and Terrorism and the National Anticorruption Directorate, the above stated provision was subject of interpretation by the Prosecutor’s Section of SCM in the 17th of October session

Unanimously the latter recommended a non retroactive interpretation, in a sense that the freshly stipulated conditions for exercising an office as a prosecutor within the Prosecutor’s Office attached to High Court of Justice and Cassation, the Directorate for the Investigation of Organized Crime and Terrorism and the National Anticorruption Directorate, as well as within other prosecutor’s offices could only be observed for the future.

An opposite interpretation, not out of question completely within the Ministry of Justice would lead to the de facto dissolution of the National Anticorruption Directorate (which would be left without 57 prosecutors out of 150, meaning almost 40% of their entire professional body) as well as of the Directorate for the Investigation of Organized Crime and Terrorism, these units benefiting of many young, uncompromising and professional prosecutors [12].

 

Judge Dragoş Călin, Bucharest Court of Appeal, co-president

Judge Anca Codreanu, Brașov Tribunal, co-president

[1] Law no.207/2018 for the amendment and supplementation of the Law no. 304/2004 on judicial organisation was published in the Official Gazette of Romania, Part I, no. 636 of 20 July 2018, being enforced three days after its publishing date. Law no. 234/2018 for the amendment and supplementation of the Law no. 317/2004 on the Superior Council of Magistracy was published in the Official Gazette of Romania, Part I, no. 850 of 8 October 2018, being enforced three days after its publishing date. Law no.242/2018 for the amendment and supplementation of the Law no. 303/2004 on the statute of judges and prosecutors was published in the Official Gazette of Romania, Part I, no. 868 of 15 October 2018, being enforced three days after its publishing date.

[2] CDL-AD(2014)010, paragraph 185

[3] In its latest report regarding the progress made by Romania in the Cooperation and Verification Mechanism (November 2017), the European Commission stated that “in general, a positive assessment of the progress achieved in the reference objective no. 3 (fight against high-level corruption) is based on an independent National Anticorruption Directorate, which to be capable of carrying out its activity with all the available instruments and to continue to obtain results.” In this report it is provided that the National Anticorruption Directorate continued to obtain results despite the fact that it had dealt with significant pressure. Moreover, the European Commission states that “in case of pressures with negative effects on the fight against corruption, the Commission might be constrained to revaluate such conclusion.”

[4] Please, go to http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2014)041-e [last accessed on 21 July 2018].

[5] Please, see Romanian Judges’ Forum Association – White paper – Amendments to the laws of judiciary – potential collapse of the Romanian magistracy, a study available at http://www.forumuljudecatorilor.ro/index.php/archives/3137. The replies received from various judiciary authorities are found at: http://www.forumuljudecatorilor.ro/wp-content/uploads/Raspuns-Alina-Palancanu.pdf; http://www.forumuljudecatorilor.ro/wp-content/uploads/ICCJ-date-statistice.pdf; http://www.forumuljudecatorilor.ro/wp-content/uploads/Raspuns-MJ-DOC-2018-02-27-161342.pdf; http://www.forumuljudecatorilor.ro/wp-content/uploads/Raspuns-CSM-4260.pdf; http://www.forumuljudecatorilor.ro/wp-content/uploads/Raspuns-CSM-1594.pdf; http://www.forumuljudecatorilor.ro/wp-content/uploads/Raspuns-PICCJ-499-2018.pdf;http://www.forumuljudecatorilor.ro/wp-content/uploads/Vechime-peste-20-ani.pdf .

[6] For more details, please, see Forumul Judecatorilor Magazine no.1/2017, pages 15-16 – http://www.forumuljudecatorilor.ro/index.php/archives/2706 [last time consulted on 7 October 2018], and also the webpage https://www.courdecassation.fr/venements_23/derniers_evenements_6101/magistrature_bertrand_37040.html [last time consulted on 7 October 2018].

[7] For more details, please see, Romanian Judges’ Forum Association – White Paper – Cooperation protocols between the Romanian Intelligence Service and various judicial authorities with jurisdiction in criminal matters, a study available at http://www.forumuljudecatorilor.ro/index.php/archives/3390 [last time consulted on 7 October 2018].

[8] Please, go at https://www.csm1909.ro/ViewFile.ashx?guid=5740561a-de72-46a9-b913-b75c66e451f9|InfoCSM [last time consulted on 7 October 2018].

[9] For details, see the web page http://www.forumuljudecatorilor.ro/index.php/archives/3407 [last time consulted on 17 October 2018].

[10] Published in the Official Gazette of Romania, Part I, no. 874 of 16 October 2018.

[11] Published in the Official Gazette of Romania, Part I, no. 862 of 10 October 2018.

[12] One can see the National Anticorruption Directorate press release, accessible from the link https://www.g4media.ro/exclusiv-dna-a-trimis-un-punct-de-vedere-csm-in-care-avertizeaza-ca-noile-conditii-de-vechime-impuse-procurorilor-anticoruptie-nu-pot-fi-aplicate-retroactiv-deoarece-ar-incalca-legea-fundamentala.html .

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