To the attention of Mrs. Ursula von der Leyen, The President of the European Commission
To the attention of Mrs. Vera Jourova, Vice-President of the European Commission
For the attention of Mr. Didier Reynders, European Commissioner for Justice
We have been fighting for almost four years for the independence of justice in Romania, but without the involvement of the European Commission, which should have been the first to refer the matter to the Court of Justice of the European Union regarding the destruction of the rule of law in Romania and did not do so far, all our efforts will become useless, and all three judgments of the CJEU regarding the independence of justice in Romania will remain without effect.
Moreover, in Romania, under the pressure from the Constitutional Court of Romania (CCR) and Judicial Inspectorate, ordinary judges are reluctant to apply European Union law. Failure to comply with the decisions of the Constitutional Court constitutes disciplinary misconduct, a legislative solution which allows the decisions of the Court of Justice of the European Union to be completely ignored. A climate of fear among judges and prosecutors has been produced by disciplinary actions initiated by the Judicial Inspection against the judge of the Pitești Court of Appeal who dared to apply the CJEU ruling of 18 May 2021, as well as the judges who proposed and/or referred the case to the CJEU, including representatives of the most important professional associations of judges and prosecutors in Romania.
We have consistently called in recent years for the unconditional abolition of the separate prosecutorial section created to investigate crimes committed by judges and prosecutors, which would necessarily lead to the restoration of the competence of the National Anticorruption Directorate to investigate magistrates accused of corruption, the fight against grand corruption being one of the four objectives of the Cooperation and Verification Mechanism (CVM), the failure of which will make it impossible to lift the CVM. However, the new law on the abolition of the Special Section is an inadequate compromise, which violates Romania’s obligations as a member state of the European Union and the Council of Europe, by amputating the powers of the National Anticorruption Directorate (DNA), whose results have been appreciated and encouraged in numerous reports by the European Commission. In fact, the former Special Section is transferred to another section of the General Prosecutor’s Office.
Moreover, none of the key recommendations in recent European Commission reports on justice legislation have been met by Romania. Likewise, the courts have been prohibited from applying these recommendations in pending litigation. Thus, the Constitutional Court of Romania established that “the obligations arising from the decision are incumbent on the Romanian authorities competent to collaborate institutionally with the European Commission (paragraph 177 of the CJEU judgment of 18 May 2021), thus on the political institutions, the Romanian Parliament and Government, and, on the other hand, that the obligations are exercised on the basis of the principle of loyal collaboration, provided for in Article 4 TEU. From both perspectives, the obligations cannot be incumbent on the courts, organs of the State which are not empowered to collaborate with a political institution of the European Union”.
The new drafts of the “laws of justice”, published on 21 July 2022 by the Ministry of Justice, are basically the current laws in force, with certain modifications, being completely different from the versions presented and undertaken before the European Commission.
It is simply incomprehensible why the adoption of such drafts, in the proposed form, is still necessary. Although the Government of Romania has undertaken to ensure the harmonisation of the legislation regarding the organisation and functioning of the justice in accordance with the principles of the international instruments ratified by Romania, as well as taking into account all the recommendations formulated within the European mechanisms (CVM, GRECO, the Venice Commission, the EC Report on the rule of law) and the CCR decisions, the “laws of justice” published on 21 July 2022 maintain the same retrograde provisions and block any kind of reform.
Thus, the principle of loyal cooperation provided for in Article 4 para. (3) of the Treaty on the European Union is violated by the Minister of Justice, the European partners being deceived without any restraint in an insidious and endless game. It follows from this principle that the EU Member States are required to take all necessary measures to guarantee the applicability and effectiveness of Union law, as well as to eliminate the illegal consequences of a violation of this law and that such an obligation falls, within its powers, to each body of the Member State concerned [see in this regard Judgment of 17 December 2020, Commission/Slovenia (ECB Archives), C-316/19].
Despite the commitments made before the European Commission, almost all the harmful changes criticised by international bodies in recent years are maintained: promotion competitions at the High Court of Cassation and Justice, as well as in executive offices at the courts of appeal, tribunals and prosecutor’s offices attached to them (being the only form of promotion allowed by law until 31 December 2025) do not have a meritocratic character and remain under the total control of the Section for Judges of the SCM, the Judicial Inspection is minorly cosmeticized, the role of the National Institute of Magistracy, through the Scientific Council, in the appointment of inspectors, is completely removed, the freedom of expression of magistrates is seriously affected, the obligation to refrain from “defamatory manifestation or expression in relation to the other powers of the State” is maintained, and the operation of the SCM essentially in sections violates the constitutional architecture of this board authority, in which the Plenary is the adequate form of organisation.
It is very strange that the elimination of all these aspects was considered essential for the independence of the judiciary in the drafts published by the Ministry of Justice, represented by the current minister, on 30 September 2020 and 22 June 2022, and their revision was undertaken without reservations before the European Commission, and, via the new draft of 21 July 2022, the necessary changes are abandoned without any explanation, without transparently mentioning who proposed the new provisions, given that, in June 2022, the Ministry of Justice announced that it would not reopen the public debate on the drafts.
Also, regulations were introduced that ensure the possibility for the general prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice to refute with reasons all the measures and solutions adopted by the prosecutor (including the prosecutors of DNA (National Anti-Corruption Directorate)/DIICOT (Organised Crime and Terrorism Department)), provisions likely to violate the obligations undertaken by Romania through the Treaty of Accession to the European Union to ensure the independence of the DNA. De facto, by these drafts, all the progress made by Romania in the fight against corruption and organised crime is compromised and an attempt is made to control the activity of the two specialised prosecutor’s offices by the political factor, through the Prosecutor General of Romania, who is eminently appointed by political reasons.
The filling by competition of the office of vice-president of the court/deputy of the first prosecutor of the prosecutor’s office is eliminated, which constitutes a setback, as this regulation envisages the creation of a dependency of those who fill managerial offices in the courts/prosecutor’s offices to the Section for Judges/Prosecutors and the president of the court/head of the prosecutor’s office, who will propose their deputies. A clientelist system is thus configured within the judiciary, which is unacceptable, because it endangers the very independence of the judicial system.
In addition, at a time when more than 1000 judge and prosecutor positions are vacant, it is proposed to increase the period of training at the National Institute of Magistracy from 2 years to 3 years, a proposal that is not based on any impact study, nor any needs analysis or evaluation of the situation of the personnel in the judicial system. Increasing the training period will lead to chronic staff shortages and an imbalance in the medium term for courts and higher-level prosecutor’s offices by correlation with the seniority required for promotion.
In this context, the desire of the executive power to create a judicial system, in which the decision-making power is held by the majority of the Section for Judges of the Superior Council of Magistracy, the leadership of the Public Ministry and the presidents of the courts, with a discretionary character and ignoring the board participation when making decisions of interest, remains obvious.
Practically, through these laws, the judicial system experiences an unacceptable setback, its independence being seriously endangered, although the guarantees of independence regarding judges ensured at the time of accession to the European Union should have remained intangible after accession, as already established by the CJEU by Judgment of 20 April 2021, pronounced in the Repubblika case, C-896/19.
The Judicial Inspection’s dissatisfaction with the judgment of the CJEU of 18 May 2021, perceived to challenge the very foundation of the mandate of the Chief Inspector of the Judicial Inspection, is bestowed upon judges by challenging conceptually the foundations of the right of association, the right of professional associations to sue and submit requests for a preliminary ruling, raising serious allegations of partisanship with a political faction whose speeches are pro-European.
These allegations call into question the very foundations of the right of association and the authority of European bodies, seeking to block the participation of associations in CVM consultations, as well as the legitimate legal means of defence such as preliminary referral.
Finally, as we feel a continuing and increasing pressure from the body responsible for defending our independence, and since another solution is no longer available to defend our independency or to enforce European Union law, we call on your Excellencies, as a last resort, to use all the means at your disposal to restore the hope of the magistrates acting in good faith that the values of the rule of law have not yet disappeared in Romania.
Otherwise, with the European Commission’s inaction, the destruction of justice will be complete and the EU treaties in Romania will be totally and irreparably compromised.
Romanian Judges’ Forum Association
Association Movement for the Defence of the Status of Prosecutors
Association Initiative for Justice
The full analysis of the draft justice laws can be downloaded at http://www.forumuljudecatorilor.ro/wp-content/uploads/Observatii-proiecte-legile-justitiei-21-iulie-2022-FINAL_EN.pdf
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