“Brief review of the main measures taken between November 2019 and November 2020”, presented a few days ago by the Ministry of Justice, is the faithful reflection of the incapacity or the lack of political will, both of them characterizing this last year.
Although the Ministry of Justice and the Superior Council of Magistracy have constantly denied the evidence, in recent months, the courts and the prosecutor’s offices have turned into Coronavirus outbreaks, with 500 cases of infections among magistrates and auxiliary personnel, completely or partially closed courts and prosecutor’s offices, more and more magistrates and court clerks hospitalized at ICU, deceased court clerks, etc.
Although both associations have repeatedly requested the extensive digitalization of the courts and the speedy adoption of a normative act to establish regulations in this regard, the competent authorities are unduly dragging this, by stubbornly ignoring the harsh reality.
The same thing happens with the changes that need to be immediately brought to the laws of justice. Although the current Government has been in office for over a year, the Iordache-Toader version of the “laws of justice” is still applicable, without any adjustment, despite the cascading criticism by the relevant international entities and the Romanian magistrates.
Both the Prosecutor’s Office Special Section, created for the investigation of criminal offenses in the judiciary, and the Judicial Inspection, legally subordinated to a single person, operate under the same rules that are strongly criticized by international bodies. For advancing to the High Court of Cassation and Justice, the same type of formal interview is organized before the Section for Judges of the Superior Council of Magistracy, a Section which, in its majority, unconditionally supported the legislative changes criticized both in the CVM reports and by the international entities (GRECO, Venice Commission). Moreover, competitions for admission are no longer organized in the judiciary, as the legislative and the executive powers are not able to adopt a rapid regulation in order to comply with a Constitutional Court decision issued in March 2020.
Also, the Report of the European Commission of 30 September 2020 on the rule of law – the Chapter on the situation of the rule of law in Romania – mentions that the Prosecutor General and the Chief Prosecutor for DIICOT were appointed (by President Klaus Iohannis, at the proposal of the Minister of Justice, Cătălin Predoiu), “Despite a negative opinion of the SCM. This situation highlighted the long-standing shortcomings previously set out by the Commission, which, in the context of the CVM, has recommended that a more robust and independent appointment procedure is needed, and that a sustainable solution could best be achieved with the support of the Venice Commission”.
The image exercise represented by the draft amendments to the laws of justice, whose public debate was scheduled until March 2021, without taking into account the urgency of the necessary changes, does not help the honest and independent judiciary in any way. Despite the related parliamentary debate, these amendments could be adopted and enter into force at the earliest in 2022, taking into account any possible successive referrals of the Constitutional Court with objections of unconstitutionality. By then, all amendments that entered into force in 2018 and were maintained by the current Government will have produced harmful effects.
Although, under public pressure, the Ministry of Justice has proposed the closing of the Section for the Investigation of Criminal Offences in the Judiciary, that project was accompanied by the establishment of unacceptable filters, which transformed the Superior Council of Magistracy sections into real courts, prior to the criminal investigation of any possible offences committed by magistrates. The project in question, criticized by the associations of Romanian magistrates, has remained inactive, without any will to complete it, with the necessary changes, as it was obvious that the approach was not coherent and serious, as long as the Minister of Justice announced that this draft to Parliament would not be sent to the Parliament until a majority in favour of its adoption is not met.
The new draft law announced on 30 September 2020 by the Ministry of Justice takes over some measures that both professional associations have requested in recent years (for example, the closing of the Section for Investigating Criminal Offences in the Judiciary, meritocratic exams, the election of the members of the Superior Council of Magistracy – judges and prosecutors, respectively – by all general meetings of judges and prosecutors, respectively, the abolition of restrictions on freedom of expression, materialized in magistrates’ obligation to abstain from “defamatory manifestation or expression in relation to the other powers of the State”; removal of the provisions on doubling the training period in the National Institute of Magistracy; compliance with the role and powers established by the Constitution for the Superior Council of Magistracy, as a collegiate body, by removing the arbitrary transfer of some powers of the Plenary to sections or to certain judges, depending on the professional degree held, likely to distort the collegiate operation; review of the provisions on the revocation of SCM members, in the sense of a flexible and accessible procedure, the abolition of provisions that could unduly burden the workload of courts and prosecutor’s offices etc.).
However, in the process of amending the laws of justice, some provisions of the old regulation appear unchanged and there are some new provisions, which, however, might seriously affect the independence of the judiciary.
Thus, the procedures for appointing high-ranking prosecutors do not comply with the recommendations constantly made by the European Commission reports under the Cooperation and Verification Mechanism, the reports of the Group of States against Corruption (GRECO) on Romania and the opinions of the Venice Commission and the Consultative Council of European Prosecutors (CCPE). The political factor continues to play a crucial role in the election/removal of high-ranking prosecutors, given that the recommendations of all relevant international entities were that the appointment and removal from the highest positions in the prosecutor’s offices should be done through a transparent procedure and based on objective criteria, in which the Superior Council of Magistracy should be granted a much more important role.
The possibility of disciplinary action against judges and prosecutors by the Minister of Justice is reintroduced; this measure will affect the independence of magistrates, by interfering in the management of disciplinary issues in the careers of judges and prosecutors. If a Minister of Justice, who is part of a political party, may bring disciplinary action against a prosecutor or a judge who is investigating/judging acts committed by the Minister’s party colleague or friend or by a person who is part of the same groups of political interests, it is clear that he will be under enormous pressure, and this unacceptably affects their independence. Moreover, the European Commission, when analysing the situation in Poland (where, among the amendments to the Law on the organization of the Supreme Court, the possibility for the Minister of Justice to initiate disciplinary actions against judges of the Supreme Court and influence the conduct of investigations was provided), in the Recommendation of 26 July 2017, established in point 3.5.2, par. 40 and 42, the following: “In particular, the involvement of the Minister of Justice in disciplinary proceedings against judges of the Supreme Court would constitute a threat to their independence: the fact that the Minister of Justice would have the power to initiate disciplinary proceedings against Supreme Court judges and also to influence the conduct of the investigations, would provide the Minister of Justice with an additional tool to put considerable pressure on judges. The mere threat of disciplinary proceedings being initiated pursuant to the instructions of the Minister of Justice would directly affect the independence of judges of the Supreme Court. The Court of Justice has held that for a court to be independent it should exercise its functions wholly autonomously, without being subordinated to any other body and be thus protected against external interventions or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them. These conditions are not fulfilled in the present case. As a consequence, Supreme Court judges may feel pressure to follow the position of the executive power when adjudicating cases.”
Contrary to the explanations provided by the Ministry of Justice, the proposed draft law does not seek to ensure adequate representation of the management of courts and prosecutor’s offices in the management boards. On the contrary, by introducing the section vice-presidents and presidents, as full members, in the management boards of the courts, at the same time with reducing the number of members without management positions (remaining purely symbolic in the board) the very idea of democratizing the decision/management in the courts and ensuring a counterweight in relation to the attributions of the president of the court is affected. Practically, the management bodies are turned into the support team of court presidents (appointed by commissions appointed by the Section for Judges of the SCM, a section that directly appoints the section presidents of courts), also becoming some sort of unuseful administrative formalities. The executive function will get mixed with the decision-making function, as the president and his/her team actually take over any decision-making power in the court, with the consequence that the management team fulfils its own decisions. However, the decision-making component should be the responsibility of all judges and should be exercised by democratically elected representatives. The change of the composition of the management boards of the courts and prosecutor’s offices was established in 2005 precisely to ensure the wider access of judges and prosecutors to the decision-making process within the institution where they work. Also, taking into account the powers of the court presidents in the individual professional evaluation of the judges of the court they administratively manage (since they are legal members of the evaluation commissions), it is clear that the measure proposed by the draft law of the Ministry of Justice unduly strengthens the role of some persons appointed in court with the broad support of the Section of Judges of the SCM, to the detriment of the individual independence of judges, practically placed in an unacceptable form of hierarchical control. Regarding the evaluation procedures for judges, the Venice Commission established the following: “[…] This provision looks problematic, as it defines the President of the court as a central figure in the process of the evaluation of judges. This may not only lead to a conflict of interest, but also result in malpractice, limiting the independence of individual judges.” – CDL-AD (2013)015, Opinion on the draft law on the courts of Bosnia and Herzegovina, par.66
Regarding the proposal on the functioning of the future Superior Council of Magistracy (not the current council in any case), in Europe, there is no standard model of permanent or non-permanent activity in the judicial councils. For example, in Belgium, only four members of the High Council of Justice have permanent activity. In Bulgaria, the Netherlands and Italy, all members of the Supreme Judicial Council have full-time activity. In Denmark, only the general manager of Domstolsstyrelsen has permanent activity. In France, Ireland and Latvia, the members of the Superior Council of Magistracy, namely An tSeirbhís Chúirteanna and Tieslietu padome, do not have full-time activity. In Lithuania or Malta as well, the members of Teisėjų Taryba and Kummissjoni ghall-Amministrazzjoni tal-Gustizzja, respectively, have no permanent activity. In Poland, members of Krajowa Rada Sądownictwa meet in monthly sessions, for a full week, otherwise judges remain in their court positions. In Portugal, each member decides whether or not to opt for full-time activity. In Slovakia, only the President of the Judicial Council is a member with permanent activity. The other members of the Council perform their positions entirely from the courts and are not entitled to remuneration as members of the Judicial Council. In Slovenia, the members of the Judicial Council meet in meetings every 2-3 weeks. Even if the proposal of the Ministry of Justice is intended to reduce the loss of contact with the courts or prosecutor’s offices for the SCM members, however, in the case of elected members coming from the High Court of Cassation or prosecutor’s offices, it would be necessary to maintain the permanent activity, as the former could be colleagues with the judges of the High Court of Cassation and Justice who settle appeals against the disciplinary decisions of the Section for Judges on disciplinary matters, in which case it is necessary to maintain an appearance of impartiality and to remove any risk of influencing them, and the others could thus be protected from any possible pressure or interference, given the hierarchical subordination of prosecutors within the Public Ministry.
Regarding the universal vote for the election of the Superior Council of Magistracy members, should it be proposed to be established, there is no reason anymore to maintain a preliminary stage, namely the appointment of one candidate of the courts/prosecutor’s offices for the position of member of the Superior Council of Magistracy among the judges/prosecutors/military prosecutors who have applied. This filter violates the right to be elected (it is as if, preliminarily, the candidate for the position of President of Romania should be elected by the inhabitants of the county where he/she resides or works) and creates the premises for establishing agreements to nominate a particular candidate, subject to the risk that the representative body of the judiciary becomes a place where the interests of those who have supported a particular candidate are confronted. The candidates for the Superior Council of Magistracy do not have the status of agents or special representatives of the courts or prosecutor’s offices from which they come. The status of SCM member means the representation of the entire judiciary. Specifically, each candidate must represent the entire body of judges/prosecutors, and not a certain court or a certain prosecutor’s office.
The draft also proposes the transfer of competencies of the SCM Section for Prosecutors to the Prosecutor General of the Prosecutor’s Office attached to the High Court of Cassation and Justice (appointment and dismissal of prosecutors within DIICOT and DNA, secondment), respectively to the Minister of Justice (approval of the Internal Regulation of the prosecutor’s offices). Granting such powers to politically appointed persons, to the detriment of the body that has, according to Art. 133 par. (1) of the Romanian Constitution, the role of guarantor of the independence of the judiciary, is an obvious violation of the independence of the judiciary. The fact that the activity of the prosecutors (who make up the Public Ministry) is carried out under the authority of the Minister of Justice does not mean subordination in administrative terms. The human resources management issues of the Public Ministry are a component of the independence of prosecutors and the normative act regulating these issues has to be approved by the SCM Section for Prosecutors, a council whose constitutional role is to guarantee the independence of the judiciary.
Also, accepting the unlimited intervention of the Prosecutor General of the Prosecutor’s Office attached to the High Court of Cassation and Justice on the documents drawn up by any prosecutor within the Public Ministry (the solutions adopted by the prosecutor may be refuted with reasons by the hierarchically superior prosecutor when they are considered illegal) means recognizing an exceptional power to the same, which allows them to circumvent without any limit the legal way to perform the hierarchical control. In the case Kövesi vs. Romania, the European Court of Human Rights found that the principle of the independence of prosecutors is a key element in maintaining the independence of the judiciary. In the absence of the prosecutor’s independence in carrying out or supervising the criminal prosecution, the independence of adopting a solution is devoid of content. Therefore, the Prosecutor General of the Prosecutor’s Office attached to the High Court of Cassation and Justice may carry out, directly or through specifically designated prosecutors, exclusively powers of coordination and control of the administration of all prosecutor’s offices.
Regarding the reorganization of the Judicial Inspection, by reconsidering the role and responsibilities of the Chief Inspector, the new draft essentially proposes only the establishment of management boards, which will be composed, at least in the near future, of inspectors appointed by the current Chief Inspector of the Judicial Inspection, through the selection procedures regulated by law in 2018. Given the evolution of the Judicial Inspection in recent years, with the appointment of the interim Chief Inspector and his deputy by Government Emergency Ordinance, directly by the executive power, intuitu personae, which was widely criticized in the MCV reports, it would be necessary to completely reform this institution and immediately create two distinct structures: The Judicial Inspection for judges and the Judicial Inspection for prosecutors, respectively, both with their own budgets, with their own personnel, with inspectors selected based on meritocratic criteria, with terms of office of maximum 3 years, without the possibility for renewal.
As regards the competitions for advancing to executive or management positions in the judiciary, the draft proposed by the Ministry of Justice omits: the random appointment of the competition commissions, transparently, at the level of the National Institute of Magistracy; the interdiction of being appointed as a member in any other commission established for the selection of judges for three years from the date when that judge was appointed member of a competition commission for the positions reserved for judges in the judicial system; regulating clear criteria for avoiding conflicts of interest between the members of competition commissions. It is also necessary to regulate the possibility of challenging the scores given in oral exams (for example, interview), because the Constitutional Court has admitted the possibility of challenging each exam in the competition for admission to the judiciary (see Decision no. 121/2020).
In conclusion, the Romanian Judges’ Forum and the Initiative for Justice Association find that, without real reforms, the Romanian judiciary will remain in the darkest period in its recent history.
The legislative power and the executive power have no excuse for the lack of political will needed to amend the laws of justice immediately, given that, with every day wasted, Romania is moving away from the values shared by democratic states regarding the independence of the judiciary, with major negative consequences for the existence of the rule of law, which will undoubtedly lead even to the blocking of access to European funds.
The Romanian Judges’ Forum Association
The Initiative for Justice Association
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