Astăzi, 06.03.2019, Adunarea Parlamentară a Consiliului Europei a decis sesizarea Comisiei de la Veneția cu privire la OUG care modifică legile justiției

Mai jos, textul cererii trimise de Asociația Forumul Judecătorilor din România în acest sens.

To the attention of

The Council of Europe

Mrs. LILIANE MAURY PASQUIER

President of the Parliamentary Assembly

of the Council of Europe (PACE)

The Romanian Judges’ Forum Association, a private law, independent, non-profit, non-governmental and apolitical legal person, the professional association of judges in Romania, hereby submits this request to consult the European Commission for Democracy through Law (the Venice Commission) on certain current issues regarding the amendment in Romania of the “laws of justice” by four emergency ordinances (EGO no.77/2018; EGO nr.90-2018; EGO nr.92-2018; EGO no.7/2019), for the following reasons:

  1. Preliminary issues

The Venice Commission, created in 1990, is a consultative body of the Council of Europe in constitutional matters. The Commission is internationally recognized as an independent reflection body. The Venice Commission also contributes to the dissemination and development of the common constitutional heritage, playing a unique role in promptly providing constitutional solutions for transition states, in line with standards and good practice in the field. The Venice Commission aims to disseminate and develop constitutional justice, in particular through the exchange of information.

Based on Article 3 (1) and (2) of the Statute of the European Commission for Democracy through Law adopted by the Committee of Ministers on 21 February 2002, at the 78th Meeting of the Ministers’ Deputies, without prejudice to the competence of the organs of the Council of Europe, the Commission may carry out research on its own initiative and, where appropriate, may prepare studies and draft guidelines, laws and international agreements. Any proposal of the Commission can be discussed and adopted by the statutory organs of the Council of Europe. The Commission may supply, within its mandate, opinions upon request submitted by the Committee of Ministers, the Parliamentary Assembly, the Congress of Local and Regional Authorities of Europe, the Secretary General, or by a state or international organisation or body participating in the work of the Commission.

 

  1. State of facts concerning the bills on Romanian Judiciary

During 2017 and 2018, three bills were adopted for the generically called laws “of judiciary”, i.e. Law no. 303/2004 on the statute of judges and prosecutors, Law no. 304/2004 on judicial organisation, and Law no. 317/2004 on the Superior Council of Magistracy, all republished, subsequently amended and supplemented.[1]

A significant number of amendments, which were heavily criticized by the European Commission for Democracy through Law (Venice Commission), the Group of States against Corruption (GRECO) or by the European Commission 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 force.[2]

In principle, the legislature and the executive of Romania should immediately consider the Opinion issued on October 20, 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.[3]

We recall that The Romanian Constitutional Court refused to implement the recommendations of the Venice Commission, arguing in the following sense:

”29. In respect of the request submitted by the author of the unconstitutionality referral to set a deadline for debates next to issuance by the Venice Commission of the legal opinion on the bills regarding Romanian judiciary, regulated through Law no. 303/2004, Law no. 304/2004 and Law no. 317/2004, opinion which was asked for by the President of Romania on the 3rd of May 2018, one day before the Constitutional Court was lodged with the present complaint case, Plenum of the Court, reiterating those stated in the Decision no. 33/23.01.2018, par. 54-55, holds as it follows:

The standpoint asked for is related to the main capacity of the international body, consisting of providing legal opinions to asking Member States with regard to already enacted legislation or amending bills, context in which the Venice Commission may be lodged with by subjects as the Parliament, the Government or the President of the State, according to article 3 point 2 of the Statute adopted on 21st of February 2002 by The Committee of Ministers.

  1. Given the stage of the constitutional procedure regarding the Law nr. 317/2004 on Superior Council of Magistracy, meaning the law was finally enacted by the Parliament and may be submitted to the constitutional check, the Court finds that given its competence to perform the check exclusively according to the Constitution provisions, the legal opinion of Venice Commission cannot be redeemed via this procedure.

The recommendations of the international body could have been implemented exclusively in the parliamentary process of enacting or amending living legislation, the Constitutional Court being enabled to perform the compliance check of already enacted law with the Constitution, certainly not to balance the opportunity of one or another legal solution, power strictly granted to the legislative according to its policy of amending the existing judiciary laws.[4]

 

2.1. Targeted criticisms regarding the amendments of the three laws

  • According to the Opinion of Venice Commission of October 20, 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 Codruța 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 Romanian Constitutional Court.[5]

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.[6]

  • 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 Opinion no. 934/2018, Venice Commission, with regard to the freedom of expression of the magistrates, considered that “(…) the new obligation imposed on Romanian judges and prosecutors appears to be unnecessary at best and dangerous at worst. It is obvious that judges should not make defamatory statements with respect to anyone, not only with respect to state powers. It seems unnecessary to specify this by law. 130. On the contrary, it seems dangerous to do so, especially as the notion of defamation is not clearly defined and this obligation relates specifically to other state powers. This opens the way for subjective interpretation: what is meant by “defamatory manifestation or speech” for a member of the judiciary “in the exercise of their duties”? What are the criteria to assess such conduct? What is, for the purpose of this prohibition, the meaning of the notion of “power”? Does it refer to persons or to public institutions? What is the impact of the new obligation on the SCM task of defending judges and prosecutors, by publicly expressed statements, against undue pressure by other state bodies?[7]

The lawmaker failed to comply with its obligation set forth by the Romanian 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 of 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 in 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[8] 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 Opinion 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 Section 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.[9]

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 section 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 structure of the Public Ministry, still, in the Opinion of October 20, 2018, Venice Commission suggested to reconsider the establishment of a special section 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 Opinion regarding the draft law on Special State Prosecutor’s Office of Montenegro, paragraphs 17, 18 and 23[10].

In the Ad-Hoc Report on Romania (Rule no. 34) adopted by GRECO, during the 79th Plenary Reunion (Strasbourg, 19-23 March 2018), it was indicated that the section appeared as as an anomaly in the current institutional set-up, in particular because (i) there have been no particular data or assessments demonstrating the existence of structural problems in the judiciary which would warrant such an initiative, (ii) of the way its management is appointed, and (iii) this section would have no investigators and adequate investigative tools at its disposal, unlike other specialist prosecution bodies. It has also been pointed out that this body would be immediately overburdened due to the (draft) arrangements providing for the immediate transfer of many cases from other prosecution services, whilst its small staff is not commensurate to dealing with them (15 in total according to draft legislation). 34. Moreover, this new section would be dealing with criminal offences even if other persons are involved, together with magistrates (e.g. civil servants, elected officials, businessmen etc.), according to the wording of the intended amendments to article 881 paragraph 1 of law n°304/2004. As many have pointed out, this could lead to conflicts of jurisdiction with the existing specialised offices (DNA, DIICOT, military prosecutor’s offices), even though the authorities recall that such conflicts are normally sorted out by the Prosecutor General. More importantly, there are also fears that this section could easily be misused to remove cases handled by the specialised prosecution offices or interfere in sensitive high-profile cases if  complaints against a magistrate were lodged incidentally in that case as it would automatically  fall under the competence of the new section (a decision would then need to be taken to split  that case under the general criminal procedure law on the grouping/splitting of cases, for it to remain in the hands of the originally competent prosecutors).”[11]

  • 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 October 20, 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.[12]

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 of 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 of 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.

In the Ad-Hoc Report on Romania (Rule 34) adopted by GRECO during the 79th Plenary Reunion (Strasbourg, 19-23 March 2018), it was considered as follows: ”31. The intended amendments still contain a proportion of subjectivity in the selection and decision process concerning promotions, which contemplates a two-phased promotion procedure, the latter phase consisting of an assessment of one’s past work and conduct. The amendments also provide for the SCM to develop and adopt rules on the procedure for organising such assessments including appointments to the responsible commission and the particular aspects to be assessed. The GET heard fears that this new system would leave more room for personal or political influences in career decisions, which could impact the neutrality and integrity of the justice system and it would thus be essential that the CSM develops appropriate rules to guard against such risks, including clear and objective criteria to guide the future decisions of the selection commission.”[13]

  • 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[14] 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 SCM Plenary and SCM Sections affects the constitutional role of SCM and exceeds the constitutional prerogatives specific to the Sections 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 sections 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.[15] 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 sections, 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 sections 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.[16]

Even though the assessment made by Venice Commission converges 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 sections, 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.

The activity of the Judicial Inspection raises many concerns in terms of public perception, because following strictly online the statistics of the High Court of Cassation and Justice rulings in disciplinary matters (as the current SCM no longer publishes on the site its rulings in disciplinary matters since 2017, despite orally assumed transparency) one can find that between January 2017 – September 2018 there were upheld 29 disciplinary actions and another 27 rejected, all concerning judges, while with regard to prosecutors 11 were upheld and 12 were rejected, the percentage of ”innocent found magistrates” being of 50% out of the total submitted to disciplinary SCM panels (sometimes the High Court of Cassation and Justice overturned SCM judgements initially confirming the approach of the Judicial Inspection). Some of High Court rulings even found the disciplinary proceedings formally invalid, which shows blatant systemic deficiencies or flagrant miscarriages, unconceivable for the performance level expected from the Judicial Inspection. In the same reference time, more than 75% of Judicial Inspection’s deeds concerning virtual misconduct of magistrates were rejected, a major part of them as time barred.

Moreover, as numberless disciplinary deeds are targeting the General Prosecutor of Romania or the Chief Prosecutor of the Anticorruption Directorate, as well as their deputies alongside other magistrates who publicly and individually fought the bills on Judiciary, while national and international relevant bodies (Venice Commission, GRECO, European Commission) also found it inappropriate, especially since no final disciplinary sanction was enforced to each of them, it is obvious that the Judicial Inspection activity reflects a negative impression.

For example, the Prosecutors’ Section of SCM delivered ruling nr. 376/26.06.2018 as outcome of settling on the Judicial Inspection report nr.2314/IJ/588/DIP/2018 and found there are no clues on breaching the art. 17 of the Judges and Prosecutors Conduct Code by Augustin Lazăr, General Prosecutor of the Prosecutor’s Office attached to the High Court of Justice and Cassation, rejecting the proceeding against him.

The same Prosecutors’ Section of SCM delivered rulings with majority on 13th June 2018 and 25th July 2018 resulting in rejection of disciplinary proceedings against Laura Codruța Kovesi, Chief Prosecutor of the Anticorruption Directorate.

On the 13th September 2018, a similar rejection ruling was delivered with regard to Marius Constantin Iacob, Deputy Chief Prosecutor of the Anticorruption Directorate and Carmen Simona Ricu, Chief Section Prosecutor within the Anticorruption Directorate.

On the 27th June 2018, a similar rejection ruling was delivered with regard to Florentina Mirică, another Chief Section Prosecutor within the Anticorruption Directorate.

The High Court of Justice and Cassation delivered the final judgment nr. 54/26.03.2018 which overturned a SCM disciplinary ruling (file nr. 11/IJ/2017) against judge Ioan Fundătureanu from Pitești Court of Appeal as unsubstantiated.[17]

The European Commission’s latest Cooperation and Verification Mechanism (CVM) report, released on November 13, 2018 notes that Romania has reversed the progress of its judicial reform and the fight against corruption and comes with new recommendations to remedy the current situation:[18] ”Justice laws: suspend immediately the implementation of the Justice laws and subsequent Emergency Ordinances; revise the Justice laws taking fully into account the recommendations under the CVM and issued by the Venice Commission and GRECO. Appointments / dismissals within judiciary: suspend immediately all ongoing appointments and dismissal procedures for senior prosecutors; relaunch a process to appoint a Chief prosecutor of the DNA with proven experience in the prosecution of corruption crimes and with a clear mandate for the DNA to continue to conduct professional, independent and non-partisan investigations of corruption, the Superior Council of Magistracy to appoint immediately an interim team for the management of the Judicial Inspection and within three months to appoint through a competition a new management team in the Inspection; respect negative opinions from the Superior Council on appointments or dismissals of prosecutors at managerial posts, until such time as a new legislative framework is in place in accordance with recommendation 1 from January 2017.”

 

2.2. The repeated and unprecedented attacks on the judges and prosecutors

In December 2017, more than one thousand Romanian judges, prosecutors, and trainee magistrates silently protested in front of their institutions, holding their robes or the Constitution, but most of them showing printed versions of the common oath they took when sworn into office at the beginning of their career.[19]

In essence, the protests came after the Parliament adopted the so-called ”justice laws”, consisting in substantial changes in the three main laws affecting the organization and the statute of the judiciary without taking into consideration the firm opposition of more than half of the judiciary. Moreover, the silent protests concerned the announced changes in the criminal codes which would dramatically limit the investigation powers of police and prosecutors, as well as the possibility to protect the victims and identify criminals, no matter the nature of the crime (murder, theft, rape, corruption etc.).

Bucharest, Cluj, Constanța, Timișoara, Iași, Galați, Craiova, Pitești, Brașov, Bacău, Baia Mare, Suceava, Botoșani, Brăila, Satu Mare, Oradea, Călărași, Miercurea Ciuc, Zalău, Slatina, Târgoviște, Târgu Mureș, Tulcea, Piatra Neamț, Sf. Gheorghe are the main cities where magistrates protested against the actions of the Parliament.

During and after these protests, there were some voices in the news that challenged the right to protest, saying that the law forbids judges and prosecutors to protest in any way, the Judicial Inspection having been recently notified with regard to the participation of some judges to the most recent protest staged on the steps of Bucharest Court of Appeal on 16th of September 2018.

To begin with the domestic law, we must say that the law only forbids political reunions by judges and prosecutors, not any sort of public reunion and gathering. Therefore, art. 9 from the Statute of Judges and Prosecutors states that judges and prosecutors cannot be members of political parties, nor carry out or participate in political activities, being also forbidden to publicly state or in any way show their political preferences.[20]

Romanian judges and prosecutors did not protest against a political party or another (an activity strictly forbidden without a doubt),[21] but against public policies adopted in the field of justice, affecting them directly as main stakeholders, along with each and every citizen or resident of the country.

Therefore, the question is not whether they can, but rather why and when magistrates absolutely should protest, as the independence of the judiciary is not a privilege of judges and prosecutors, but a fundamental right of every person.

In reply to all social movements fighting the current legislative changes, on June 9, 2018, the Social Democratic Party and government partners organized a large-scale rally against the magistrates in Bucharest (with over 150,000 participants). The messages explicitly targeted justice, with the rationale that the political power would prevail over the independence of “unreformed” institutions, calling for the termination of the so-called “abuses” not only as a form of pressure on magistrates who have criminal cases, even in the deliberation stage, which is a very dangerous precedent. The hardness of the political discourse, from the cataloguing of magistrates to generalizing statements as “corrupt”, “Stalinist,” “secular,” “tortured,” culminating in the absolutely unacceptable name of “rats” to the principles of democracy and to the whole “scenario” of the political rally, the “props” used and the so-called “will of the people” to circumvent the “elected” by the legal means of attracting criminal liability, associated with the statement of “street fight”, ” to the end “outlines the image of a serious threat to the independence of justice. Also, in a TV show following this event, the President of the Chamber of Deputies, Nicolae Liviu Dragnea, threatened the DIICOT prosecutors not investigating a pending complaint in the performance of their duties, accusing them of “risking to pay hard” for the solution.[22]

After Decision no. 358 of 30 May 2018 of the Romanian Constitutional Court,[23] prosecutors are being put under the complete and unlimited control of the Minister of Justice, ignoring the role of the Superior Council of Magistracy in managing the career of these magistrates. As long as a chief prosecutor can be revoked by the discretionary appreciation of a politician, even if he is the Minister of Justice, any form of independence is excluded, as it creates an excessive political influence.[24] According to Annex IX of the Accession Treaty, Romania undertook the obligation to ensure the effective independence of the National Anti-Corruption Direction, violated through the revocation of its chief prosecutors at the discretion of the Minister of Justice.24

The story of this decision goes back on 22nd of February 2018, when Justice Minister Tudorel Toader announced the start of the dismissal procedure regarding the head of DNA, stating as reasons authoritarian behaviour and prioritization of solving the cases with a media impact.

In the substantiation of the negative report issued on the Justice Minister’s demand to have the DNA Chief Prosecutor dismissed from office, the CSM’s Section for Prosecutors stated in Decision no.52/27 February 2018 that the dismissal request makes no mention of any legal prerogative infringed, the managerial component concerned not being specified.

Likewise, according to the substantiation, even though the Justice Minister said that his dismissal request concerns all the components of the DNA Chief Prosecutor’s managerial prerogatives, “one notices the existence of a generic listing of the managerial components, without concrete individualisation: of the resources illegally used, of the behavioural deficiencies, of the legal prerogatives that were not carried out (…)”

Following the Head of State refusal, based on SCM decision, to dismiss the DNA Chief Prosecutor Laura Codruța Kovesi, the Government lodged a request for the Constitutional Court to settle on a constitutional conflict between the Justice Ministry and the Presidency, the Decision nr. 538 being delivered on 30th of May 2018 and establishing that there is a constitutional conflict between those two afore head mentioned and that the Head of State must sign the decree dismissing DNA Chief Prosecutor Laura Codruța Kovesi.

Hence, the CCR decision also announced what measures must be taken so that this institutional conflict between the President and the Justice Minister would cease to exist, indicating to the Head of State the dismissal of the DNA Chief Prosecutor.

“Thus, regardless of the authority that generated the juridical conflict of a constitutional nature, it has the obligation, within the coordinates of the rule of law, to observe and comply with the things noted by the decision of the Constitutional Court. In this case, the Court notes that the fulfilment of the conditions regarding the regularity and the legality of the procedure indubitably results from the address through which the Romanian President refused to comply with the proposal to dismiss Ms Laura Codruța Kovesi from the office of Chief Prosecutor of the DNA. Consequently, the Romanian President is set to issue the decree dismissing from office the Chief Prosecutor of the National Anticorruption Directorate, Ms Laura Codruța Kovesi,” the substantiation reads.

The Constitutional Court decided:

1. Notes the existence of a juridical conflict of a constitutional nature between the Justice Minister and the President of Romania, generated by the latter’s refusal to comply with the proposed dismissal of the Chief Prosecutor of the National Anticorruption Directorate, Ms Laura Codruța Kovesi.

  1. The President of Romania is set to issue the decree dismissing from office the Chief Prosecutor of the National Anticorruption Directorate, Ms Laura Codruța Kovesi. Final and generally mandatory. The decision will be communicated to the President of Romania, the Prime Minister and the Justice Minister, and will be published in the Official Journal of Romania, Part I,” the document, which has 133 pages, reads.

In the reasoning of its decision regarding the institutional conflict between the President and the Justice Minister, the Constitutional Court shows that the Head of State assumed prerogatives that he does not have when he rejected the dismissal of DNA Chief Prosecutor Laura Codruța Kovesi, thus blocking the minister’s authority over the activity of prosecutors.

“Based on the analysis of the Romanian President’s address, through which he refused to comply with the proposed dismissal of National Anticorruption Directorate Chief Prosecutor Laura Codruța Kovesi, the Court establishes that the Romanian President noted the regularity and legality of the dismissal procedure, his only objections having to do with the advisability of the measure. In this context, the Court notes the existence of a juridical conflict of a constitutional nature between the Justice Minister and the President of Romania, generated by the latter’s refusal to comply with the proposed dismissal of the Chief Prosecutor of the National Anticorruption Directorate, Ms Laura Codruța Kovesi,” reads the CCR reasoning.

The Romanian Constitutional Court shows that, since President Klaus Iohannis had no objection regarding the regularity of the dismissal procedure, it means the procedure met the legality criteria, however the President assumed prerogatives he does not have.

“The President of Romania should have issued the decree dismissing from office the Chief Prosecutor of the National Anticorruption Directorate. Refusing to issue it, the Court is set to establish whether the President of Romania created a blockage in what concerns the exercise of the Justice Minister’s authority over the activity of prosecutors. In this sense, it can be said that, by assuming a contra legem role, the President of Romania impeded the fulfilment of the Justice Minister’s own constitutional prerogative, blocking it without the Constitution giving him such a prerogative. Consequently, the President of Romania’s conduct of not exercising his prerogatives in line with the Constitution resulted in the Justice Minister’s impossibility to exercise the constitutional prerogatives conferred by Article 132, Section 1, of the Constitution.”

The CCR states that an institutional gridlock between the two authorities thus resulted, impeding the completion of the Justice Minister’s proposal to have Laura Codruța Kovesi dismissed.

“The Justice Minister’s authority over the activity of prosecutors imposes similar constitutional effects in regard to the act issued in connection with the prosecutor’s career, an aspect nevertheless refused by the President of Romania, who chose not to allow the Justice Minister’s proposal to follow its natural constitutional course, blocking it and thus creating an obvious situation of institutional blockage between the two authorities,” the reasoning reads.

The CCR decided on May 30, 2018 that Romania’s President is to issue the decree to remove chief prosecutor of the National Anticorruption Directorate (DNA) Laura Codruța Kovesi from office, following the finding of a legal constitutional conflict determined by the head of state’s refusal to follow up with the Justice Minister’s request to remove the DNA head form office.

The Romanian Constitutional Court debated the request to solve the judicial constitutional conflict between the Justice Minister and Romania’s President, firstly, as well as that between the Government and Romania’s President, secondly, determined by the head of state’s refusal to follow up with the request to remove chief prosecutor of the DNA Laura Codruța Kovesi from office.

The Court decided that the Prime Minister holds the right to notify the CCR for the settlement of a legal constitutional conflict.

In respect to the Justice Minister’s quality as part within the legal constitutional conflict, it was established that the latter is expressly nominated through the article 133, the paragraph (1) of the Constitution, which stipulates the following “Public prosecutors shall carry out their activity in accordance with the principle of legality, impartiality and hierarchical control, under the authority of the Minister of Justice.”

“The Court decided that, in case of the dismissal of the prosecutor from leadership positions, stipulated by the article 54, the paragraph (1) of the Law No.303/2004, the Justice Minister acts within some strict limits imposed by law, in the form of cases that objectively justify the dismissal of the prosecutor from a management position. The President of Romania, under the provisions of the article 94 letter c) of the Constitution, doesn’t have a discretionary power within the dismissal procedure, but a power to verify its regularity. It results that the prerogative of the President of Romania to revoke the prosecutor from a leading position is exclusively limited to a control regarding the regularity and legality of the procedure,” the CCR says.

In the CCR view, the President doesn’t have the constitutional authority to bring forth opportunity arguments in relation to the dismissal proposal initiated by the Justice Minister under the law.

“Or, in this respective case, Romania’s President refused to issue the dismissal decree of the chief prosecutor of the National Anticorruption Directorate (DNA) on opportunity grounds, and not on legal grounds, which created a blockage in respect to the Justice Minister’s exerting his authority over the prosecutors’ activity. Therefore, the conduct of Romania’s President, that of not exercising his authority according to the Constitution, determined the Justice Minister’s impossibility to exercise his constitutional authority granted by the article 132, the paragraph (1) of the Constitution, which determined a legal constitutional conflict,” the release mentions.

The CCR also shows that, taking into account the its jurisprudence, it also established the constitutional conduct that must be followed in this case, namely the issuance by President Klaus Iohannis of the decree to remove chief prosecutor of the DNA from office.

In the official communiqué issued on May 30 announcing its decision on the existence of a juridical conflict of a constitutional nature between the Justice Minister and the Romanian President, generated by the Head of State’s refusal to comply with the proposed dismissal of the DNA Chief Prosecutor, the Constitutional Court pointed out that the Head of State is set to issue the decree dismissing from office the Chief Prosecutor of the National Anticorruption Directorate.

“The President of Romania is set to issue the decree dismissing from office the Chief Prosecutor of the National Anticorruption Directorate, Ms Laura Codruța Kovesi. The decision is final and generally mandatory and will be communicated, in line with Article 36 of Law no.42/1992, to the President of Romania, the Head of the Romanian Government, and the Justice Minister, and will be published in the Official Journal of Romania, Part I,” the Constitutional Court’s release reads.

Following the dismissal serial of high-ranking prosecutors, Justice Minister Tudorel Toader presented on 25th October 2018 the report regarding the managerial activity of the Chief-Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice, announcing he started the procedures for the removal from office of Prosecutor General Augustin Lazar.

Toader added that the facts listed in the report are “intolerable” for the rule of law, and Lazar’s managerial activity violates his constitutional and legal obligations. “We consider that the actions and deeds listed in this report, intolerable for the rule of law, show that Mr Augustin Lazar’s managerial activity violates his constitutional and legal obligations. Given the circumstances, the continued occupation and exercise by Mr Lazar of the highest office of the Public Prosecution Service is no longer tenable. All the evidence presented support the seriousness of the behaviours, the public messages of the attorney general who, through the management implemented, hijacked the activity of the Public Prosecution Service away from its constitutional role,” said Toader.

The assessment report on Augustin Lazar’s activity has been handed to the Superior Council of the Magistracy and its Section for Prosecutors has heard the Prosecutor General on November 13.[25] Currently, the request was communicated to the President of Romania.

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 Section 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 (see the Opinion 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 Superior Council of Magistracy appears not having any kind of reaction with regard to the amendments made to the laws of judiciary and Section for judges 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 sections and the website of the High Court of Cassation and Justice (because the decisions of the sections 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 sections (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 the Superior Council of Magistracy 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 Dancilă, 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, 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 agitation 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.[26]

A similar message was issued, on 4 October 2018, by the Section for Judges 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.”[27]

In a press release issued on 14th of October 2018, supported by hundreds of judges and prosecutors,[28] 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.

  1. Emergency Ordinance (EGO) no. 77/2018

The European Commission Report under the Cooperation and Verification Mechanism published on November 13th, 2018, imposed 8 new recommendations to Romania, among which:

Justice laws

Suspend immediately the implementation of the Justice laws and subsequent Emergency Ordinances.

Revise the Justice laws taking fully into account the recommendations under the Cooperation and Verification Mechanism and issued by the Venice Commission and the Council of Europe’s Group of States against Corruption GRECO

Appointments/dismissals within the judiciary

 Suspend immediately all ongoing appointments and dismissal procedures for senior prosecutors.

 Relaunch a process to appoint a Chief prosecutor of the National Anticorruption Directorate with proven experience in the prosecution of corruption crimes and with a clear mandate for the National Anticorruption Directorate to continue to conduct professional, independent and non-partisan investigations of corruption.

The Superior Council of Magistracy to appoint immediately an interim team for the management of the Judicial Inspection and within three months to appoint through a competition a new management team in the Inspection

Regarding the Judicial Inspection, the following were held:

”Also, for the appointment of a new management team of the Judicial Inspection, the Superior Council of Magistracy did not organize a competition, although the mandate of the team management expired at the end of August 2018. The Government Decision to solve the situation by adopting an emergency ordinance regarding the appointment of the current ad interim team – instead of leaving this task to the Superior Council of Magistracy – only continued to increase the concerns.”

The Superior Council of Magistracy did not organize a competition for the new management of the Judicial Inspection, although the mandate of the team management expired at the end of August 2018. This led the Government to adopt an emergency ordinance for the appointment of the current ad interim team. The argument invoked in this regard was that the law regulating the organization of the competition was challenged in court (by the Judicial Inspection in 2016) and as a result there is a legal blankness. The Superior Council of Magistracy has failed to take steps to ensure that a suitable solution is found for organizing the competition on time. The fact that the Minister of Justice decided to intervene, extending the mandates of the current management, could be seen as interfering with the competences of the Superior Council of Magistracy.(See the Technical Report accompanying the document Report from the Commission to the European Parliament and the Council on the progress made by Romania under the cooperation and verification mechanism).

Article 19 paragraph (1), part of Title III of the EU Treaty, entitled “Provisions on the institutions”, stipulates: “The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.”

Title V of the EU Treaty, entitled “General provisions on the Union’s external action and specific provisions on the common foreign and security policy”, Article 21 paragraph (1) first section of Chapter 1, entitled “General provisions on the Union’s external action”, stipulates: “The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.”

 The jurisdictional control for the observance of the Union’s legal order is provided, according to Article 19 paragraph (1) TEU, by the Court and the courts of the Member States. In addition, the Union is a union of law in which the acts of its institutions are subject to compliance control, in particular with treaties, general principles of law and fundamental rights.

Under Article 2 of the Treaty on European Union, “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

            By Decision of 27 February 2019, ruled in case C‑64/16, Associação Sindical dos Juízes Portugueses, ECLI:EU:C:2018:117, CJUE established the following:

”42. The guarantee of independence, which is inherent in the task of adjudication (see, to that effect, Judgment of 19 September 2006, Wilson, C 506/04, EU:C:2006:587, paragraph 49; Judgment of 14 June 2017, Online Games and Others, C-685/15, EU:C 2017:452, paragraph 60; and Judgment of 13 December 2017, El Hassani, C-403/16, EU:C:2017:960, paragraph 40), is required not only at the Union’s level as regards to the Union judges and the Advocates General of the Court, as referred to in Article 19 paragraph (2) third section of TEU, but also at the level of the Member States as regards to the national courts.

  1. 43. The independence of the national courts is essential especially for the proper functioning of the judicial cooperation system established by the preliminary ruling mechanism stipulated by Article 267 TFEU, as this mechanism can only be activated by a body which has the task of applying Union law and fulfils inter alia this criterion of independence.
  2. 44. The concept of independence implies, in particular, that the body in question exercises its judicial functions in a completely autonomous manner, without being subjected to any hierarchical or subordinate connection and without receiving provisions or instructions, irrespective of their origin, and thus protected from interventions or external pressures liable to affect the judicial independence of its members and influence their decisions (see, to that effect, Judgment of 19 September 2006, Wilson, C-506/04, EU:C:2006:587, paragraph 51; and judgment of 16 February 2017, Margarit Panicello, C 503/15, EU:C:2017:126, paragraph 37 and the case-law cited).”

            Reorganization of Judicial Inspection strengthens the competences of the chief inspector which has the task to appoint between the judicial inspectors, those who will take management positions (following a simple evaluation of the management projects specific to each management position), practically controlling the selection of the judicial inspectors, conducting the inspection activity and the disciplinary research, being the main authorizing officer and the sole holder of the disciplinary action. The establishment by law of a provision which, on the one hand, promotes the chief inspector’s subjectivity in appointing the management of the Judicial Inspection and, on the other hand, establishes a total dependence of all senior management mandates within the Inspection on the chief inspector’s mandate constitutes an infringement of the principle of ensuring the security of legal relations in the exercise of managerial mandates by the respective judicial inspectors.

The preamble shows that the Government Emergency Ordinance in question, no. 77/2018, was adopted with intuitu personae effects – “Taking into account the need to provide interim protection by persons who have demonstrated their professional and managerial competence, already exercising the respective functions, having a thorough knowledge of the activity of the Judicial Inspection and participating at a competition both at the time of the initial appointment and at the time of inauguration for a new mandate, under the law”. [See Article II of EGO no. 77/2018: Provisions of Article 67 paragraph (7) of Law no. 317/2004 applies also for situations when the position of chief inspector or, as appropriate, deputy chief inspector of the Judicial Inspection is unoccupied at the time of entry into force of this emergency ordinance”].

According to Article 133 paragraph (1) of the Constitution, the duties of the Superior Council of Magistracy, as guarantor of the independence of justice, under Law no. 317/2004, regard the defence of judges and prosecutors against any act that might affect their independence or impartiality or would create suspicions about them (Article 30), the career of judges and prosecutors (Article 35), admission examination for entry into the magistracy, evaluation, training and examinations of judges and prosecutors (Article 36), organization and functioning of courts and prosecutor’s offices (Article 37). As a consequence, the bills involving a Council opinion are those normative acts on the status of judges and prosecutors (which include provisions on the rights and obligations of judges and prosecutors, incompatibilities and interdictions, appointment, promotion, suspension and termination of office of judges and prosecutors, delegation, secondment and transfer of judges and prosecutors, their liability, etc.), currently regulated by Law no. 303/2004, judicial organization (courts – organization/ competences/management, Public Ministry – organization/competences/management, the organization and functioning of the National Institute of Magistracy, the specialized auxiliary departments within the courts and prosecutor’s offices, the budgets of the courts and prosecutor’s offices, etc.), currently regulated by the Law no. 304/2004, or the organization and functioning of the Superior Council of Magistracy with Law no. 317/2004 as applicable law (see the Decision no. 63 of 8 February 2017 ruled by the Constitutional Court), which also regulates the organization and functioning of the Judicial Inspection.

Under Article 67 of Law no.317/2004, the chief inspector and the deputy chief inspector are appointed by the Plenum of the Superior Council of Magistracy between judicial inspectors in office, based on a competition consisting in a project concerning the exercise of the tasks specific to that management position and a written test on management, communication, human resources, the ability of the candidate to make decisions and take responsibility, stress tolerance and a psychological test. The competition is organized by the Superior Council of Magistracy in accordance with the Regulation approved by Decision of the Plenum of the Superior Council of Magistracy, published in the Official Gazette of Romania, Part I.

Such legal provision expressly contained in EGO no.77/2018 (“(7) In case a position of chief inspector or, as appropriate, deputy chief inspector of the Judicial Inspection is vacant as a result of the expiry of the mandate, an interim inspector shall be appointed by the chief inspector or, where applicable, the deputy chief inspector whose mandates have expired, until the date these positions are no longer vacant, under the law”) does not exist for other management positions in the judiciary (presidents of court, presidents of division, chief prosecutors, etc.), which did not prevent the application of the legal remedy existing in the common law, respectively in Law no. 303/2004 on the statute of judges and prosecutors, which regulates the legal institution of the delegation to a management position by the Superior Council of Magistracy.[29]

Decision of the Plenum of the Superior Council of Magistracy no. 158 of 9 March 2012 approving the Regulation on the organization and conduct of the competition for the appointment of the Chief Inspector and Deputy Chief Inspector of Judicial Inspection was suspended by Court Order ruled by Bucharest Court of Appeal, so that the automatic extension, as provisional, of the mandates of the current management of Judicial Inspection takes place sine die, under EGO no. 77/2018, for indefinite time, without the possibility of exercising by the Superior Council of Magistracy of the power provided by the law to order the delegation to management positions by evaluating the projects of the judicial inspectors who choose to be interim.

According to provisions of Article 133 paragraph 1 of the Constitution of Romania, “The Superior Council of Magistracy shall guarantee the independence of justice”, which implies exercising the power to appreciate not only with regard to the appointment of the Chief Inspector and the Deputy Chief Inspector of the Judicial Inspection under the conditions of Article 67 of Law no. 317/2004, but also with regard to the delegation to such a management position vacant by the expiry of the mandate, under the conditions of Article 57 of the Law no. 303/2004 on the status of judges and prosecutors.

A legislative intervention under Government Emergency Ordinance has not the effect of covering an alleged “legislative gap”, as stated in the preamble to the Ordinance, but the amputation of an attribution of the Superior Council of Magistracy, by virtue of its constitutional role as a guarantor of the independence of the justice, introducing in the legal circuit the possibility to exercise a management position for an indefinite period by the automatic extension as an undifferentiated effect of the law of an expired mandate without any possibility for the Superior Council of Magistracy to exercise the margin of appreciation which is the essence of its constitutional role.

”The requirement of independence also means that the disciplinary regime governing those who have the task of adjudicating in a dispute must provide the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions. Rules which define, in particular, both conduct amounting to disciplinary offences and the penalties actually applicable, which provide for the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence, and which lay down the possibility of bringing legal proceedings challenging the disciplinary bodies’ decisions constitute a set of guarantees that are essential for safeguarding the independence of the judiciary”(see CJUE, Judgment of 25 July 2018, Ministry of Justice and Equality – deficiencies in the judiciary, C-216/18 PPU, EU:C:2018: 586, section 67)

  Also, “the requirement of judicial independence forms part of the essence of the fundamental right to a fair trial, a right which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded” (see CJUE, Judgment of 25 July 2018, Ministry of Justice and Equality – deficiencies in the judiciary, C-216/18 PPU, EU:C:2018: 586, section 48).

In accordance with the relevant provisions, the extension by the Government of the current management mandates of Judicial Inspection violates the powers of the Superior Council of Magistracy in relation to the competences of the chief judicial inspectors and the judicial independence, a prerequisite for ensuring effective judicial protection. The guarantee of independence inherent to the task of adjudication, is required not only at the Union’s level as regards to the Union judges and the Advocates General of the Court, as referred to in Article 19 paragraph (2) third section of TEU, but also at the level of the Member States as regards to the national courts.

  1. Emergency Ordinance (EGO) no. 92/2018

On 15th of October 2018, the Romanian Government enacted the Emergency Ordinance no. 92 for amending a whole range of regulations in the justice area,[30] 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 must 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 most 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 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.[31]

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”.[32]

            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[33].

The Romanian Judges’ Forum Association and the Movement for the Defence of the Prosecutor’s Status have asked the courts to address some questions to the European Union Court of Justice regarding Romania’s obligation to comply with the recommendations of the Cooperation and Verification Mechanism (MCV) of the European Commission. Professional associations of magistrates have argued that Romania, a member of the EU, must comply with the European Commission’s recommendations, that Romania is obliged to immediately suspend the procedures for the dismissal of senior magistrates, and the Government should not interfere with the SCM’s attributions and should not have appointed the interim leadership of the Judicial Inspectorate by emergency decree.[34]

  1. Emergency Ordinance (EGO) no. 90/2018

This ordinance was issued for the operation of the special section. But 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 Section 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.[35]

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 section 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 structure of the Public Ministry, still, in the Opinion of October 20, 2018, Venice Commission suggested to reconsider the establishment of a special section for the investigation of the magistrates.

One of the most controversial change of the judiciary legislation has started to show its effects in February 2019. Thus, in 2018, a new prosecutorial structure has been created by changing the law on the organisation of the judiciary: a „special section for the investigation of offences within the judiciary”, within the General Prosecutor’s Office. In Romania, both judges and prosecutors are considered magistrates, therefore this special section would be competent to investigate all criminal offences allegedly committed by them, including in cases of corruption, by having „the exclusive jurisdiction to investigate offences committed by judges and prosecutors, including military ones, as well as by those who are members of the Superior Council of Magistracy” (Article 88 (1) of the amended law). These changes were challenged at the Constitutional Court by the parliamentary opposition as well as by the President of Romania, on grounds that the establishment of such a prosecutorial section would be a threat against the independence of the judiciary, but the Court rejected the complaints and declared the creation of the section constitutional. Therefore, after the entry into force of the new laws, in July 2018, the special section started to function in October of the same year.

In 2019, the new special section started investigations against the former chief-prosecutor of the DNA, Ms. L.-C. Kovesi, who had earlier applied for the position of chief-European prosecutor. Ms. Kovesi, who had gained support from various European countries as well as political groups of the European Parliament, was summoned at the section days before her first hearing in Brussels. Another move of the special section was to request from the DNA to decline its jurisdiction on the investigation against the chief of the ruling party and president of the Chamber of Deputies, Liviu Dragnea, on corruption offences.[36]

 

  1. Emergency Ordinance (EGO) no. 7/2019

On 20 February 2019, the Government passed an emergency ordinance (EGO 7/2019) which, under the guise of regulating some necessary changes of the admission procedure at the National Institute of Magistracy, brought important changes to the law on the organisation of the judiciary. Thus, the ordinance withdrew the special section from the authority of the Prosecutor General, by saying that, in the case of the special section, by „prosecutor superior hierarchically” will mean the chief-prosecutor of the section. Therefore, the section becomes an autonomous part of the General Prosecutor’s Office, despite the constitutional provisions which provide for the organisation of the „Public Ministry” on the principle of hierarchical control. All the other sections of the General Prosecutor’s Office (DNA and DIICOT – the Direction that investigates organised crime and terrorism) are hierarchically subordinated to the Prosecutor General, in accordance to the constitutional principle. Even the Constitutional Court affirmed the same constitutional principle when it declared constitutional the creation of the section, in 2018: „regardless the manner of appointment as chief prosecutors, according to the constitutional principle of hierarchical control on which is based the activity of prosecutors’ offices, all chief-prosecutors are subordinated to the General Prosecutor of the High Court of Cassation and Justice”. Romanian Constitutional Court, Decision 33/2018, §150.[37]

The same EGO 7/2019 provides that the function of General Prosecutor and of chief-prosecutors can be occupied by former prosecutors that have become judges and that these functions cannot be delegated. Although at the first glance they seem harmless, these new dispositions have some hidden targets: in the first case, besides infringing the separation of the careers of judge and prosecutor (which was endorsed as a principle by the Constitutional Court) RCC, Decision 252/2018, §135, the aim of the new rule might be the appointment of more lenient judges rather that prosecutors at the top of the national  prosecutorial offices, with a view to diminish the fight against corruption; in the second case, the hidden aim of the new rule is to practically force the President of Romania into appointing the candidates proposed by the Minister of Justice The procedure is detailed by Article 54 of the Law 303/2004 on the status of judges and prosecutors, as amended in 2018, since the temporary delegation will no longer be possible and the top prosecutorial offices cannot function without a chief-prosecutor, even an interim one. Therefore, all these changes aim at increasing the power of the executive over the prosecutorial part of the judiciary and at removing virtually all checks-and-balances in decision-making on the top prosecutorial offices. The emergency ordinance was adopted by the Government without the advisory opinion of the Superior Council of Magistracy, which is compulsory on legislation related to the judiciary.[38]

After the adoption of the EGO 7/2019, the magistrates’ associations and self-government organs reacted. For example, The Romanian Judges’ Forum Association made an appeal to judges and to other authorities to take measures in order to defend the independence of the judiciary. The prosecutors’ section of the Superior Council of Magistracy criticised the changes and announced that it will give an official opinion.

Judges and prosecutors protested outside courthouses across Romania on Friday, February 22, 2019,  and stop work, in an unprecedented protest against changes in judicial legislation that have raised alarm bells over the rule of law.[39]

  1. Conclusions

As we previously underlined, the Report issued by the European Commission on the 13th November 2018 within the Cooperation and Verification Mechanism sets out 12 benchmarks, taking into account the extent to which the amendments of the three Justice laws could impair the effective independence of magistrates and limit the role of the Superior Council of Magistracy as the guardian of judicial independence, as follows:

  • the new system of appointment and dismissal of Chief Prosecutors and the role of the Minister of Justice in these procedures;
  • limitations of the freedom of expression and information, through an amendment which requires magistrates to refrain from “defamatory manifestation or expression against the other powers of the state”;
  • new provisions dealing with the material liability of magistrates, which have been seen as opening the possibility to be used as methods of pressuring the magistrates. They open the possibility for the Ministry of Finance to launch regress action against a magistrate for judicial error, on the basis of its own assessment, with only a consultative role for the Judicial Inspection. A decisive role in determining these actions is given to the Judicial Inspection and the Ministry of Finance, rather than to the Superior Council of Magistracy;
  • a new department for investigating criminal offences committed by magistrates (unique of its kind), that can be seen as an additional instrument of pressuring magistrates, taking into account the complete lack of explanation for this special treatment of magistrates compared to other office holders and civil servants, along with ignoring the National Anti-Corruption Directorate (DNA) already established solid track record in investigating and prosecuting cases of corruption within the magistracy;
  • the possibility of revoking the Superior Council of Magistracy members through a nonconfidence vote/petition from courts and prosecution offices, which would risk upsetting the balance between the accountability and the stability and independence of SCM members;
  • the removal of previous reference regarding the independence of prosecutors in their statute which, taking into account the cumulative effect of other measures and given the complex political context currently prevailing in Romania, further tends toward reinforcing hierarchical control and the authority of the Minister of Justice and entails a risk of giving way to political interference in criminal cases;
  • the incentive towards early retirement and the increase of the training period for justice auditors create serious risks of disruption of the human resources management in the judiciary, with consequences on its efficiency and quality.

The European Commission reminded that these concerns were already reflected in the conclusions and recommendations of the GRECO report of March 2018 and have been further confirmed by the conclusions of the opinion of the Venice Commission of 20 October 2018 which also issued recommendations for Romania in order to address the problems identified with the bills on judiciary laws.

So far, the European Union Court of Justice has been lodged by two Romanian courts with preliminary requests, as having been asked to do so by the Romanian Judges’ Forum Association, in accelerated procedure, concerning the interpretation of Cooperation and Verification Mechanism pursuant it’s set up by the Commission Decision 2006/928/CE of 13th of December 2006. Questions were addressed in terms of requesting the interpretation of the legal nature of the CVM as an act issued by an EU institution and therefore legally binding for our country, as well as the provisions of art. 19 par. 2 of the EU Treaty in terms of holding responsible Member States to implement necessary means in order to ensure proper safeguards in areas regulated by EU Law, namely the one regarding independent disciplinary proceedings conducted against judges, apart from any outside political influence, as could be even an interim appointment of Chief Inspector by the Government as well as the setup of a special section on the criminal prosecution of the judges and prosecutors.

At the time being our both requests are registered under case numbers C-83/19, Asociatia Forumul Judecatorilor din Romania and C-127/19, Asociatia Forumul Judecatorilor din Romania and Asociatia Miscarea pentru Apararea Statutului Procurorilor.

We previously expressed our concern about the approach of the Judicial Inspection / Superior Council of Magistracy, our adverse part in both cases, to ask for the transfer of the case file from one of the courts which ruled in favour of lodging the EU Court of Justice with the request in an attempt of cancelling the possibility of such a preliminary ruling.

The present call comes in the light of all recent developments in Romania, which raised concerns in terms of backtracking from all judicial progress made in the last twelve years, since our joining EU, such as:

Recently, the Chamber of Deputies submitted a request for the Constitutional Court in order that it should be found a constitutional conflict between the judicial and executive powers based on the protocol 2009 conclusion between the Prosecution Office attached to The High Court of Cassation and Justice and the Romanian Intelligence Service.

The Constitutional Court ruled about it one month ago, settling there was such a conflict, ruling which was enabled by another of its previous decisions (28/2018) which removed the corruption out of the threats to the national security and impaired the possibility the Romanian Intelligence Service had had so far to ask for wiretapping judicial authorisations on corruption cases, based on the law of national security.  Yet, we stress that no court so far has ruled this protocol should have been illegally concluded, on the contrary, Bucharest Court of Appeal issued its reasoning on a case that such a legal issue can’t be even posed, since the protocol obviously lacks the nature of an administrative act.

Another sensitive issue would be that the High Court of Justice and Cassation (ICCJ) activity panels of 5 judges, which are assigned only the appeals on the most complex criminal cases, dealt with in first instance also by an ICCJ panel of 3, were temporarily put on standby as Bucharest Court of Appeal admitted a request that ICCJ did not comply to the judicial law recently entered in  force which, in the view of the court, should have compelled ICCJ to cast lots another  5 judges panels  immediately (meaning July 2018).

In the meantime, the Government submitted to the Constitutional Court another request of constitutional conflict between ICCJ and the Parliament, claiming that back from 2014 the 5 judges panels had not been lawfully set, as only 4 members out of 5 had been cast lots, as the ICCJ president, vice-president and chief of criminal division had sat as rightful members of those panels.

The Constitutional Court settled the conflict, ruling the way ICCJ interpreted the law when setting up the 5 judges panels since back 2014 was unlawful, reason for which the President of the High Court of Justice and Cassation, Mrs Cristina Tarcea is presently holding responsible for “abusive conduct” and referred by the Judicial Inspection to the Superior Council of Magistracy in disciplinary proceedings.

Last but not least, on 20th of February was published on Romania’s Official Gazette the Government Emergency Ordinance no. 7, which among other changes removed the special section on the criminal prosecution of the judges and prosecutors from under the hierarchical subordination to the General Prosecutor of Romania and enabled the possibility of any judge who previously acted as a prosecutor, regardless how far back in time, to run for chief of high ranking prosecutorial functions.

Sincerely,

The Romanian Judges’ Forum Association

 

judge Dragoș Călin, co-president

judge Anca Codreanu, 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] For details, Dragoș Călin, Ionuț Militaru, Claudiu Drăgușin, Aktuelle Gefahren für die Justiz in Rumänien, in Betrifft JUSTIZ no. 132 von Dezember 2017, pp.217-219.

[3] For a radiography of the Romanian magistracy and Romanian politics, see Reinhard Veser, Staatsanwälte entlässt man nicht, in Frankfurter Allgemeine Zeitung, October 27, 2018, https://search.proquest.com/docview/2125503809?accountid=134368 [last accessed on 27.02.2019]; Thierry Portes, La Roumanie, pays d’un seul parti, in Le Figaro, December 18, 2018,  http://premium.lefigaro.fr/international/2018/12/17/01003-20181217ARTFIG00212-la-roumanie-pays-d-un-seul-parti.php [last accessed on 27.02.2019]; Michael Peel, Valerie Hopkins, EU steps up criticism of Romania over rule of law, in Financial Times, https://www.ft.com/content/0b74c360-d862-11e8-a854-33d6f82e62f8 [last accessed on 27.02.2019].

[4] See Romanian Constitutional Court, Decision no. 385/2018 on Law no. 317/2004, regarding the reasoning on rejecting the setting of deadline debates after the issuance of the opinion of Venice Commission. The same reasoning is to be found in the Decision no. 357/2018 on Law no. 304/2004.

[5] ”The Romanian Constitutional Court has backstabbed the Romanian President in his efforts to protect the independence of the chief anti-corruption prosecutor. On 30 May 2018, the Constitutional Court ordered the President to dismiss the chief anti-corruption prosecutor via presidential decree. Before, the President had refused the proposed dismissal by the Minister of Justice based on an Advisory Opinion of the Superior Council of Magistracy that stated that the reasons brought forward against the chief prosecutor were not substantiated enough to justify a dismissal.” See Bianca Selejan Guțan, The Taming of the Court – When Politics Overcome Law in the Romanian Constitutional Court, https://verfassungsblog.de/the-taming-of-the-court-when-politics-overcome-law-in-the-romanian-constitutional-court/  [last accessed on 27.02.2019].

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

[7] See the web page https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2018)017-e [last accessed on 27.02.2019].

[8] The Judicial Inspection is a structure with legal person status organised within the Superior Council of Magistracy, lead by a Chief Inspector, appointed after a competition organised by the Superior Council of Magistracy. The Judicial Inspection acts according to the principle of operational independence, performing, through the judicial inspectors appointed under the law, analysis, verification and control tasks in the specific fields of activity. For details, Dragoș Călin, Ionuț Militaru, Claudiu Drăgușin, Romanian Judicial System. Organization, Current Issues and the Necessity to Evoid Regres, in Tsukuba Journal of Law and Politics, 75/2018, pp.1-14.

[9] In the 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.”

[10] Please, go to http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2014)041-e [last accessed on 27.02.2019].

[11] See the web page https://rm.coe.int/ad-hoc-report-on-romania-rule-34-adopted-by-greco-at-its-79th-plenary-/16807b7717 [last accessed on 27.02.2019].

[12] The written examination was eliminated from the competition for promotion in the position of judge at the High Court of Cassation and Justice.

[13] See the web page https://rm.coe.int/ad-hoc-report-on-romania-rule-34-adopted-by-greco-at-its-79th-plenary-/16807b7717 [last accessed on 27.02.2019].

[14] 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 [last accessed on 27.02.2019]. The replies received from various judiciary authorities are found at the web pages: 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 [last accessed on 27.02.2019].

[15] The Superior Council of Magistracy is composed of 19 members: a) 9 judges and 5 prosecutors, elected in the general assemblies of judges and prosecutors; b) 2 representatives of civil society, specialists in the field of law, who enjoy high professional and moral reputation, elected by the Senate; c) the President of the High Court of Cassation and Justice, the Minister of Justice and the General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice, as ex officio members. The Superior Council of Magistracy functions in Plenum, but also in two sections: the judges’ section and the prosecutors’ section. The Judges’ Section of the Superior Council of Magistracy consists of: a) 2 judges from the High Court of Cassation and Justice; b) 3 judges from the courts of appeal; c) 2 judges from the county courts; d) 2 judges from the district courts. The Prosecutors’ Section of the Superior Council of Magistracy consists of: a) 1 prosecutor from the Prosecutor’s Office attached to the High Court of Cassation and Justice or from the National Anticorruption Directorate; b) 1 prosecutor from the prosecutor’s offices attached to the courts of appeal; c) 2 prosecutors from the prosecutor’s offices attached to the county courts; d) 1 prosecutor from the prosecutor’s offices attached to the district courts. For details, Dragoș Călin, Ionuț Militaru, Claudiu Drăgușin, Romanian Judicial System. Organization, Current Issues and the Necessity to Avoid Regres, in Tsukuba Journal of Law and Politics, 75/2018, pp.1-14.

[16] For more details, please, see Judges’ Forum Review no.1/2017, pages 15-16 – http://www.forumuljudecatorilor.ro/index.php/archives/2706 [last accessed on 27.02.2019], and also the webpage https://www.courdecassation.fr/venements_23/derniers_evenements_6101/magistrature_bertrand_37040.html [last accessed on 27.02.2019].

[17] See the web pages http://www.ziare.com/stiri/csm/csm-i-a-taiat-salariul-unui-judecator-care-a-criticat-intr-un-editorial-decizia-ccr-in-cazul-ordonantei-13-1505807 and https://ziarulargesul.ro/sanctionarea-unui-judecator-pitestean-anulata-de-inalta-curte/ [last accessed on 27.02.2019].

[18] See the web page https://ec.europa.eu/info/policies/justice-and-fundamental-rights/effective-justice/rule-law/assistance-bulgaria-and-romania-under-cvm/reports-progress-bulgaria-and-romania_en [last accessed on 27.02.2019].

[19] See, for details, http://video.euronews.com/mp4/EN/NW/SU/17/12/19/en/171219_NWSU_2502163_2502229_66000_232813_en.mp4 [last accessed on 27.02.2019].

[20] ”The passage, in 2004, of the SCM, from an extreme to another, from total dependence to total independence, resulted in an increased autonomy of the judiciary, and in a greater authority of the SCM within the judicial system, but it had little effect on transparency and accountability. Moreover, even in such an autonomous form, the Romanian Judicial self-governments system was not sufficient for Protecting the true Independence of the judiciary against repeated assaults from the political sphere.” See Bianca Selejan-Guțan, Romania: Perils of a “Perfect Euro-Model” of Judicial Council, in German Law Journal, Vol. 19 No. 07, 15 December 2018, pp.1707‐1740.

[21] For details, please see the web page http://www.forumuljudecatorilor.ro/wp-content/uploads/Protestele-magistratilor-din-Romania-18-21-decembrie-2017.pdf [last accessed 27.02.2019].

[22] See the web page http://www.digitaljournal.com/news/world/romanian-judges-protest-ruling-party-chief-s-attacks/article/524407 [last accessed on 27.02.2019]. The Romanian Judges’ Forum Association sent to the Superior Council of Magistracy a request to defend the independence of the judiciary against the attest attacks of the leading representatives of the legislative and executive power, which materialised in the speeches of some political leaders on 9 June and 10 June, respectively. For details, TCA Regional News, Chicago, June 11, 2018, https://search.proquest.com/docview/2052750933?accountid=134368 [last accessed on 27.02.2019].

[23] ”(…) According to the Court’s own organic law on organisation and function (Article 2 §3), “the Constitutional Court decides only as regards to the constitutionality of acts on which it has been seized and cannot change or complete the controlled dispositions”. A fortiori, the Court should have no power to impose a certain content of an act of a political authority. If the Court cannot oblige the Parliament to adopt a certain legal text, it cannot dictate the President to issue a decree with a certain content, as both are elected authorities with high democratic legitimacy. By this highly controversial decision, the Constitutional Courts contradicts its own case law regarding the presidential powers in relation with the judiciary. In 2005, the Court firmly stated that “if the President of Romania had no right to examine and appreciate on the proposals made by the Superior Council of Magistracy for the appointment of judges and prosecutors in leading positions or if he/she had no right to refuse, by motivated decision and at least only once, such appointments, the role of the President according to Articles 94 §c and 125 §1 of the Constitution would be devoid of contents and importance”. This is all the more true, I would add, when the dismissal proposal comes from a minister and the Superior Council of Magistracy advises against it. The present decision means, besides devoiding of contents and importance the role of the President, the total overlooking of the role of the Superior Council of Magistracy in a case that is strictly related to the judiciary’s internal matters. (…) This ruling of the Romanian Constitutional Court proves, firstly, how easily a Constitutional Court majority (6 to 3 in the present case) can be used as a tool by the political power, by disregarding its own case law and the basic principles of constitutional review in the wider meaning. Secondly, this ruling aims at the heart of the Romanian constitutional system as a whole, by transforming it from a semi-presidential one (a directly elected President with more limited powers than in a presidential system) into a hybrid parliamentary one (a directly elected President with a merely formal role). The potential precedent created by such a decision would mean the devoiding of contents of all powers of the President by future similar decisions, should the President be in conflict with the political majority that controls the Court. This type of political involvement is unacceptable for a Constitutional Court that is considered the guardian of the Constitution and the enforcer of the rule of law in a constitutional democracy.” See Bianca Selejan Guțan, The Taming of the Court – When Politics Overcome Law in the Romanian Constitutional Court, https://verfassungsblog.de/the-taming-of-the-court-when-politics-overcome-law-in-the-romanian-constitutional-court/  [last accessed on November 17th, 2018]. ”This decision, tainted by several irregularities, signaled both the capture of the Constitutional Court by
the parliamentary majority and a form of regime change that did not say its name”. See Assemblée Nationale, Rapport d’information sur le respect de l’État de droit au sein de l’Union européenne (n° 1299), déposé par la Commission des affaires européennes et présenté par Coralie Dubost et Vincent Bru, p.34.

[24] See Venice Commission, Opinion no. 731/2013 CDL-AD (2014)010 on the draft law on the review of the Constitution of Romania: ”184. The Venice Commission acknowledges that there are no international standards Requiring the independence of the prosecution service. At the same time, the Commission stresses, as it did in its Report on the European Standards as regards the Independence of the Judicial System: Part II: Prosecution Service, that “only a few of the countries belonging to the Council of Europe have a prosecutor’s office forming part of the executive authority and subordinate to the Ministry of Justice (e.g. Austria, Denmark, Germany, the Netherlands). The Commission notes that there is a widespread tendency to allow for a more independent prosecutor’s office, rather than one subordinated or linked to the executive. […] Also, it is important to note that in some countries, subordination of the prosecution service to the executive authority is more a question of principle than reality in the sense that the executive is in fact particularly careful not to intervene in individual cases. Even in such systems, however, the fundamental problem remains as there may be no formal safeguards against such intervention. The appearance of intervention can be as damaging as real interference […].”

[25] The Romanian Judges’ Forum Association and the Movement for Defending the Status of Prosecutors have requested the minister of Justice, Tudorel Toader to abandon the procedure for revoking the Prosecutor General Augustin Lazar. Such a procedure, that basically bypasses the guarantor of the independence of justice, namely the Superior Council of Magistracy, the role of which is simply decorative and disobeys the right to defence of a prosecutor subjected to being revoked, was deeply criticized by the Venice Commission, the GRECO and the European Commission and jeopardizes Romania’s path in the European Union and in the European Council and the very democratic existence of the Romanian state, not to mention the negative and discouraging signal sent to an  important part of the Magistrates Body. In the context of altering and amending the package regarding the functioning of the judicial system in Romania, the Venice Commission underlined, throughout the Opinion no. 924/2018, the necessity of ensuring the autonomy of prosecutors’ offices from the perspective of the way of appointing and revoking from office of the head prosecutors, so that they can ensure the protection of magistrates from political meddling. For details, TCA Regional News, Chicago, Oct 25, 2018, https://search.proquest.com/docview/2124689261?accountid=134368 [last accessed on 27.02.2019]. More than 2,000 judges and prosecutors expressed their support to the request to Minister of Justice Tudorel Toader to abandon the procedures for removing Romania’s attorney general.

[26] For more details, 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 accessed on 27.02.2019].

[27] Please, see the web page https://www.csm1909.ro/ViewFile.ashx?guid=5740561a-de72-46a9-b913-b75c66e451f9|InfoCSM [last accessed on 27.02.2019].

[28] For details, see the web page http://www.forumuljudecatorilor.ro/index.php/archives/3407 [last accessed on 27.02.2019].

[29] See also the minutes of  Commission no.1 – Legislation and inter-institutional cooperation within the Superior Council of Magistracy dated July 9th, 2018 and September 3rd, 2018, available on web pages https://www.csm1909.ro/ViewFile.ashx?guid=d6dce35b-eb5e-4c8f-ba47-aefe25c62b3d|InfoCSM respectively https://www.csm1909.ro/ViewFile.ashx?guid=798406b2-192d-4725-b47a-c7be7b51d867|InfoCSM [last visited on 27.02.2019].

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

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

[32] Ingrid Heinlein, Korruptionsbekämpfung in Rumänien am Ende? Was die Regierung Rumäniens unternimmt, um die Strafjustiz zu schwächen und von diesem Vorhaben abzulenken, in Betrifft JUSTIZ no. 136 von Dezember 2018.

[33] 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 [last accessed on 27.02.2019].

[34] Lia Savonea, the new Superior Council of Magistracy President: ”Specifically, given the errors present in the last report, we must be clear that we cannot obey such recommendations blindly like religious injunctions, and not comment on them, or discuss them. Especially when they contain verifiable things that contradict the provisions of the law and the Code of Criminal Procedure. They were obvious”. The four questions that the FJR asks the Olt Tribunal to address to the ECJ: ”First question: Can the Cooperation and Verification Mechanism established by European Commission Decision 2006/928 EC of 13 December 2006 be regarded as an act adopted by an institution of the European Union within the meaning of Article 267 TFEU, and be subject to the interpretation of the Court of Justice of the European Union? (…) Second question: Are the content, nature and temporal extent of the Cooperation and Verification Mechanism established by the European Commission Decision 2006/928/EC of 13 December 2006 covered by the Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union, signed by Romania in Luxembourg on 25 April 2005? Are the requirements set out in the reports drawn up under this Mechanism binding for the Romanian State? (…) Questions 3 and 4: Must the second paragraph of Article 19 (1) of the Treaty on European Union be interpreted as requiring Member States to lay down the necessary measures for effective legal protection in the areas covered by European Union law, namely guarantees of a procedure independent discipline for judges in Romania, removing any risk related to the political influence on the conduct of disciplinary procedures, such as the direct designation by the Government of the leadership of the Judicial Inspection, even on a provisional basis? Must Article 2 of the Treaty on European Union be interpreted as requiring Member States to comply with the criteria of the rule of law also required in the reports of the Cooperation and Verification Mechanism established under Commission Decision 2006/928/EC of the European Parliament and of the Council December 13, 2006, in the case of procedures for the direct designation by the Government of the management of the Judicial Inspection, even on a provisional basis?”  The four questions MASP requests CA Alba Iulia to address to the ECJ: ‘First question: Must the Cooperation and Verification Mechanism established by European Commission Decision 2006/928/EC of 13 December 2006 be regarded as an act adopted by an institution of the European Union within the meaning of Article 267 TFEU and be subject to the interpretation of the Court of Justice of the European Union? Second question: Is the content, nature and temporal extent of the Cooperation and Verification Mechanism established by the European Commission Decision 2006/928/EC of 13 December 2006 covered by the Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union, signed by Romania in Luxembourg on 25 April 2005? Are the requirements set out in the reports drawn up under this Mechanism binding for the Romanian State? Third question: Must the second subparagraph of Article 19 (1) of the Treaty on European Union be interpreted as requiring Member States to determine the measures necessary for effective legal protection in the areas covered by European Union law in the case of revocation procedures high level prosecutors with a political factor – the Minister of Justice of Romania, in violation of the Cooperation and Verification Mechanism, established in accordance with the European Commission Decision 2006/928/EC of 13 December 2006, and of the Reports it? Question 4: Must article 2 of the Treaty on European Union be interpreted as requiring Member States to comply with the criteria of the rule of law as required by the Cooperation and Verification Mechanism reports established pursuant to Commission Decision 2006/928/EC To the European Commission on December 13, 2006, in the case of procedures for the dismissal of high level prosecutors, ordered by a political factor – the Minister of Justice in Romania?”. See, for details, https://www.g4media.ro/upon-request-from-magistrates-associations-courts-should-to-refer-questions-to-the-european-court-of-justice-regarding-romanias-lack-of-compliance-with-the-mcv-recommendations-savo.html [last accessed on 27.02.2019].

[35] In the 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.”

[36] See, for details, Bianca Selejan Gutan, New Challenges against the Judiciary in Romania, https://verfassungsblog.de/new-challenges-against-the-judiciary-in-romania/ [last accessed on 27.02.2019].

[37] See, for details, Bianca Selejan Gutan, New Challenges against the Judiciary in Romania, https://verfassungsblog.de/new-challenges-against-the-judiciary-in-romania/ [last accessed on 27.02.2019].

[38] See, for details, Bianca Selejan Gutan, New Challenges against the Judiciary in Romania, https://verfassungsblog.de/new-challenges-against-the-judiciary-in-romania/ [last accessed on 27.02.2019].

[39] See, for details, web page https://www.reuters.com/article/us-romania-judiciary-protests/romanian-magistrates-stage-unprecedented-protest-against-judicial-changes-idUSKCN1QB1UG [last accessed on 27.02.2019].

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