Adopted in 2004 and repeatedly amended over the past two decades, the so-called “justice laws” are the legislative foundation of the Romanian justice system. The functioning of Romanian justice and the rule of law in Romania depends on how good these laws are.
The latest amendments to the three laws in question – the Law on Judicial Organisation; the Law on the Superior Council of Magistracy; the Law on the Status of Judges and Prosecutors – were adopted by the Romanian Parliament. And, unsurprisingly, they were immediately challenged at the Constitutional Court by the Opposition, both by USR and AUR, which voted against. It was said that the lifting of the Cooperation and Verification Mechanism (CVM) and Romania’s entry into Schengen would depend on these laws. But criticism of the content of the new laws comes not only from the political sphere, but also from within the judiciary, and they point out that not only Brussels’ demands, but also major, historical problems – such as the lengthy duration of trials or inconsistent practice even within the same court – have not only not been solved, but not even addressed.
“It is a project started in 2020, left unfinished afterwards, unfinished business, and this circumstance was unacceptable for a functioning government. Why did we start it in 2020, two years ago? The answer is as simple as that; because it was demanded by the Romanian judiciary, because citizens are still dissatisfied with the justice system and its performance and, last but not least, because it is an objective under the CVM, under the NRRP and at the same time an objective on which our accession to the Schengen area implicitly depends. Therefore we have multiple stakes related to these projects, some of them are related to the justice system itself and its consequences on the rights and freedoms of the citizens, others are related to political and economic objectives of the utmost importance for the interests of the country”, wrote the Minister of Justice, Cătălin Predoiu, in September on Facebook.
In January 2021, the Câţu government adopted a memorandum expressing its political commitment to implement all the recommendations of the CVM with a view to completing the implementation of the mechanism. At the time, the PNL-USR government made a commitment to abolish the so-called “Special Section” – the Section for the Investigation of Justice Offences (SIIJ), a creation of the former PSD Liviu Dragnea government, about which Brussels had expressed “serious concerns” in the 2018 and 2019 CVM reports (and continued to severely criticise its existence in 2020 and 2021). Two other hotspots on Brussels’ list of demands were related to the Superior Council of Magistracy (CSM) and the appointment/dismissal procedures for the heads of major prosecutors’ offices (such as DNA – whose former head, Laura Codruța Kovesi, now head of the European Public Prosecutor’s Office, “crushed” Romania at the ECHR on the grounds of unfair dismissal).
The legislative package did not reach Parliament until mid-2022, after being adopted by the new liberal government on the 24th of August. After a month of public debate mostly behind closed doors, the “justice laws” entered the special parliamentary committee circuit in a substantially modified form since the beginning of the draft debate.
One of the most important changes of the government compared to the initial draft regarding the competitive promotion of judges to the JCCJ removes the National Institute of Magistracy from the game, leaving the competition only to the SCM. As regards the election of the president and vice-president of the SCM, they will each be elected by the judges’ section and the prosecutors’ section respectively, and not by the plenary, as stipulated in the initial draft under debate.
During the presentation of the draft justice laws adopted by the Government, Justice Minister Cătălin Predoiu said that “in order to avoid institutional setbacks in the work of the SCM Plenary”, its work is carried out in the presence of at least 15 members, but “if this quorum is not reached, the next time the Plenary is convened, its work will be carried out in the presence of the majority of its members”. Therefore, out of the 19 members of the SCM, any decision can be taken by 10 prosecutors and judges.
Subsequently, the bill was amended both in the Chamber of Deputies and in the Senate. Among the amendments of the parliamentarians are a number of deletions from the list of disciplinary offences stipulated in the old law (20 in number) for magistrates. Among these deviations there are the following: “manifestations that seriously and manifestly undermine professional honour or probity or the prestige of the judiciary committed in the exercise or outside the exercise of official duties” and “manifest and unjustified disregard of the judgments of the Court of Justice of the European Union”, of the European Court of Human Rights, decisions of the Constitutional Court and decisions of the High Court of Cassation and Justice in the resolution of appeals in the interest of the law or in the determination of points of law’.
As regards the draft on the Superior Council of Magistracy, one of the amendments adopted in Parliament provides for the elimination of the possibility for the Prosecutor General of the Public Prosecutor’s Office of the Judicial and Prosecutorial Council or the President of the Judicial and Prosecutorial Council to take disciplinary action in the case of misconduct by prosecutors/judges. This action being the sole responsibility of the Judicial Inspection.
Senator Simona Spătaru, chairwoman of the Senate’s Constitutionality Committee, pointed out that the PSD – PNL – UDMR changes weaken the justice system and do not solve the problems created under Dragnea.
“Unfortunately, today’s laws are much worse than those of the Dragnea regime, as the powers of DNA and DIICOT remain incomplete, which is a blow to the fight against corruption and organised crime. Then, what is the politician looking for in the appointment of senior prosecutors? The Chief Prosecutor of Romania, the Chief Prosecutor of DNA and DIICOT – their deputies – even the chief prosecutors will need to be politically appointed by the Minister of Justice”, said Simona Spătaru, according to the quoted source.
Criticism from within the system
The new justice laws recently adopted by Parliament do not solve any major problems in the justice system, according to Victor Alistar, a civil society representative on the Superior Council of Magistracy. He is the only one who, in his public stance on these draft laws, has mentioned the old and unresolved problem of prescription and the lack of uniform practice, saying that there have been cases where two brothers received different decisions in the same court.
“We have made proposals to the Justice Laws that the duration of criminal proceedings in public prosecutor’s offices should not exceed half the limitation period. No one in the Justice Laws was interested in resolving the issue of prescription. In organized crime you spend 1000 years to supervise while the victims are abused – to make your case! On corruption, if you have bribes of 150 million euros, why did you stay on files? (…) In the Justice Laws: uneven practice, the length of trials, the burden on the magistrate, professionalism are unresolved (…) I think that the Justice Laws were not well thought out, the consultation was not real, but mimed. What came out of the Justice Laws does not improve the justice system. The Justice Laws weakened the Judicial Inspection, eliminated the legal discipline, did not unify the practice, diminished the status of members of the SCM. In the Ministry – Brussels circles, the aim was to remove letter “a” from the disciplinary liability of magistrates (a) violation of legal provisions on declarations of assets, declarations of interests, incompatibilities and prohibitions concerning judges and prosecutors” – Victor Alistar.
The Superior Council of Magistracy (CSM) is criticised for its ambiguous position on the disbanding of the Investigation Section for Crimes in Justice, set up by the former PSD government to intimidate magistrates inconvenient for the political power.
In adopting the draft law, three magistrates’ associations – the Romanian Judges’ Forum, the Movement for the Defence of the Status of Prosecutors and the Initiative for Justice – wrote to Brussels asking it to use all the means at its disposal “to give back to magistrates of good faith the hope that the values of the rule of law have not yet disappeared in Romania”. According to them, despite the commitments made to the Brussels executive, almost all of the damaging changes criticised by international bodies in recent years remain in place. Their representatives claimed that a climate of fear has taken hold among judges and prosecutors.
At the same time, they argue, 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, whose results have been praised and encouraged in numerous European Commission reports. In fact, the former Special Section is being transferred to another section of the General Prosecutor’s Office, they argue in their memorial to Brussels.
– in addition, the drafts contain numerous new regulations that are not justified by the removal of the amendments that were made to the justice laws in 2018. The explanatory memoranda of the drafts do not provide explanations for any of these novelties, in terms of showing the reasons that justified them, the consultations from which their necessity emerged, the impact studies that underpinned them or the estimates of their medium- and long-term effects;
– as a general remark, after the public debate no report was drawn up showing which proposals were received and from whom, which were accepted/rejected and for what reasons;
– in conclusion, neither the omissions nor the novelties in these drafts justify what the legislator’s intention is, nor whether it corresponds to the needs of the judicial system. For these reasons the drafts are opaque and their application is in many cases unpredictable;
– however, the desire of the executive power to create a judicial system in which the power of decision is held by the leadership of the Public Prosecutor’s Office and the presidents of the courts, with discretionary character and ignoring the SCM and the collegial participation in the decision making of interest, is evident.
What the 2021 EU Report called for
Among the “serious concerns” identified in the CVM are the creation of the Section for the Investigation of Crimes in the Judiciary (SIIJ), the civil liability regime for judges and prosecutors, early retirement regimes, entry conditions to the profession, and the status and appointment of senior prosecutors.
Concerns about the continuing impact of the amended justice laws were confirmed in the 2018 and 2019 reports, (…) which highlighted how “the ICJ was used to put pressure on judges and prosecutors and to change the course of high-level corruption cases”. Since its creation, all investigations and prosecutions involving a magistrate, including past and ongoing cases, have been transferred to the SIIJ, which would also handle the investigation and prosecution of all other persons involved in these cases (including high-level corruption cases), even if the magistrate’s role in the case is marginal.
Although fewer than in previous years, there have been new cases of pressure from the ICJS on magistrates through summonses, concerns that the choice of cases to be investigated lacks objectivity. Since the creation of the FISJ, all investigations and prosecutions involving a magistrate, including past and ongoing cases, have been transferred to the FISJ, which would also handle the investigation and prosecution of all other persons involved in these cases (including high-level corruption cases), even if the magistrate’s role in the case is marginal, as well as examples of leaks to the media which may put pressure on judges and prosecutors.
At the same time, the report noted the pressure on the human resources of the judiciary continues to grow, due to the combined effect of a lack of new entrants to the profession in 2019 and 2020, an increase in the workload allocated to each judge and prosecutor, a growing number of retirements, dissuasive seniority thresholds for appointments and restrictions on temporary delegations (especially in the National Anticorruption Directorate).
A further worsening of the situation has been avoided by measures taken by the government and parliament to postpone and subsequently repeal the entry into force of the problematic provisions on the possibility of early retirement of magistrates after 20 years of service and the increase in the number of judges in certain court panels.
The 2019 competition was postponed by the Superior Council of Magistracy and in 2020 the competition procedure was invalidated by the Constitutional Court (CCR Decision No 121/2020). In 2018 and 2019, the seniority requirement for prosecutors in certain services increased significantly from day to day. As a result, a number of people had to leave because they no longer met the requirements and recruitment of new staff was made more difficult. In December 2019, the entry into force of the early retirement provisions was postponed until January 2022. In March 2021, Parliament definitively repealed the early retirement provisions with effect from the 1st of January 2022.
It also notes that successive CVM reports have highlighted “the need for sufficient checks and balances in the appointment procedure for senior prosecutors and for the same appointment and dismissal procedure to apply to lower level prosecutors, as to those at higher levels. The conclusions of the 2018 CVM Report noted a worsening of the situation, while the 2019 CVM Report highlighted the risk that repeated changes would increase insecurity and lack of confidence: despite the fact that the procedure had been changed four times in less than six months, none of these changes addressed the critical issue of the imbalance between the influence of different institutions on the procedure and the concentration of power in the hands of the Minister of Justice.”
“The Commission encourages Romania, its government and parliament to fulfil its commitments under the CVM and to actively pursue the implementation of all remaining recommendations under the CVM. This would allow for the completion of the CVM, and the rule of law issues in Romania would be further monitored under the Rule of Law Mechanism, which is applicable to all Member States” – EC CVM Report 2021.