During the last decade, despite the vehement opposition exhibited by a large portion of the political spectrum, Romania has managed to develop a strong and independent judicial system that is based on the professionalism and commitment of the Romanian judges and prosecutors. The successes achieved in the fight against corruption have transformed the Romanian practice into a model to be followed by other countries in the region. Nevertheless, the PSD – ALDE ruling coalition, commanded by political leaders who are currently under criminal investigation or are defendants in ongoing criminal trials, has launched a massive offensive against the independence of the justice system. The attempt to decriminalize the offense of “abuse of office” at the end of last winter has prompted hundreds of thousands of Romanians to take to the streets in protest, and have ultimately managed to block the coalition’s initiative.
At present, the PSD – ALDE governing coalition is again readying major amendments to the legislation regulating the organization and functioning of the judicial system, meant to subordinate the judges and prosecutors to the political regime. The legislative amendments proposed by the PSD –ALDE coalition through an emergency legislative procedure in the Romanian Parliament will severely affect the independence of justice, by a wide range of measures that are reminiscent of the legal framework preceding Romania’s accession to the European Union.
Magistrates across the country firmly reject the new draft laws on the judiciary, which they deem as having been proposed “without a prior consultation of the magistrates within a normal procedure, without taking into account their standpoint, as specifically requested by the European Commission, without a proper justification of their reasons (as per art. 92 (1) of the Chamber of Deputies Regulations), without impact studies, and by ignoring a recent negative opinion from the Superior Council of Magistracy and the firm position expressed by the magistrates’ body, and by hijacking a legislative procedure abandoned by the Government after strong public reactions (here).”
Despite the unwavering opposition exhibited by the 4000 magistrates who signed the memoire initiated by the Forum of Romanian Judges, the negative opinion of the Superior Council of Magistracy (CSM), and the massive public protests, the PSD – ALDE governing coalition insists on proceeding with the proposed amendments.
Given the circumstances, the Romania 100 Platform, draws attention to the most significant alterations that the governing coalition aims to inflict on the Romanian judicial system, emphasizing both their immediate impact as well as their long term effects.
1)The subordination of the magistrates through alterations to the Statute of judges and prosecutors
Law 303/2004 regarding the Statute of judges and prosecutors, although originally meant to ensure the stability of the judicial system and safeguard the careers of the magistrates, is transformed through the proposed amendments into a tool for subordinating judges and prosecutors to the wills of the government, generating at the same time numerous dysfunctionalities within the judicial system. In the following, we state only the most relevant changes:
•The prosecutor general of Romania and the chief prosecutor of Romania's National Anticorruption Directorate (DNA) can be removed from office without the accord of the President. Accordingly, the Prosecutors Division of the Superior Council of Magistracy (CSM), based on the recommendation of the Minister of Justice or even ex officio, can at any time revoke the two top prosecutors, thus interrupting their mandate ahead of time, despite the fact that they have been lawfully appointed by the President. The proposed system infringes upon the principle of the symmetry in office appointment and revocation. The current procedure ensures several decision filters and allows for mutual control among decision-makers, so that neither the Minister of Justice, nor the CSM, nor the President be able to exert full control over the appointment and revocation procedures applicable to the top prosecutors. Leaving a decision of such significance in the hands of the six members of the CSM would jeopardize the mandates of current top prosecutors. Their premature dismissal would be equivalent to a retaliation from indicted or convicted politicians. On the long run, removing the current checks and balances among the three institutional actors involved in the appointment of top prosecutors will undermine the stability of the Romanian judiciary, the President being unable to play any role in its defence.
•The President is eliminated from the appointment procedure applicable to the chief prosecutors heading the sections of the Prosecution office attached to the Higher Court of Cassation and Justice, the National Anticorruption Directorate, the Directorate for Investigation of Organised Crime and Terrorism, and the newly proposed Directorate for the Investigation of Crimes Committed by Judges and Prosecutors. The proposed changes state that these are appointed by the Prosecutors Division of the CSM, based on proposals from the Minister of Justice. The Prosecutors Division of the CSM can reject only once, justifiably, the proposals from the minister. Limiting to one the number of rejections devoids the CSM of any actual power to make such appointments, by transforming its involvement into an administrative formality, contrary to the constitutional role of this body. Should such changes be adopted, the current robust procedure involving three institutional actors that can counterbalance any possible abuse, would become a procedure in which the Minister of Justice has the initiative and the Prosecutors Division of the CSM has no other choice but to accept the proposal from the minister after one possible rejection. Indirectly, the Minister of Justice will be able to impose his or her options for all the positions mentioned above.
•The magistrates' liability is extended, making them subject to significant pressure. While prosecutors and judges can be faced at present with patrimonial liability only in case of violating the law with the intention of harming a certain person or for gross negligence, the proposed bill by significantly widening the magistrates' liability, does nothing but confirm the war that the parliamentary majority is waging against the judicial system. According to the project, the magistrates will face patrimonial liability for any violation of legal norms that is likely to cause damage, even if there is no intent or gross negligence involved. Such provisions will render the judges more vulnerable, by affecting their capacity to make independent decisions, without fear of blackmail or threats. A new mechanism of chicanery against judges will be encouraged, instead of using the regular ways to appeal court decisions. When combined with media campaigns, backed by the parliamentary majority, aimed at discrediting magistrates involved in the conviction of important political actors, such measures can generate additional limitations of the independence of the judiciary.
•The initial training period of future magistrates is doubled, potentially producing an imminent lack of professionals in Romanian courts and prosecutors' offices. The proposed bill doubles the duration of the courses at the National Institute of Magistracy (INM) from two to four years, adding the requirement of mandatory traineeships at entities that are not part of the judiciary, such as the National Trade Register Office or the National Land Records Office.
In addition, the internship period in courts and prosecutors' offices is also doubled to two years. Medium-term these hikes will generate a significant shortage of magistrates in the judiciary, which is already overburdened, and will discourage law graduates from pursuing a career in magistracy.
Moreover, this doubling of initial training period is advanced without any impact study on the capacity of INM to provide initial training at current standards and on budgetary needs. In short, such a measure lacks any substantive justification.
2) Controlling the Judiciary through the establishment of a special entity meant to investigate and prosecute judges and prosecutors
Law no. 304/2004 on judicial organization is chiefly aimed at ensuring the impartiality of judges and prosecutors, as well as their independence in relation to any external influences. The amendments proposed by the PSD –ALDE ruling coalition represent a significant limitation of the independence of magistrates by establishing the Directorate for Investigating Crimes Committed by Judges and Prosecutors. This special prosecutorial agency is exclusively dedicated to the investigation and prosecution of magistrates, whether they be judges or prosecutors or even members of the SCM. It should be borne in mind that the jurisdiction of the new body will cover not only offenses committed in relation to the exercise of their judicial prerogatives, but also any other crime committed by magistrates, regardless of the circumstances. Such an entity has a clear potential to become an instrument of direct pressure against the magistrates, who are singled out as the only professional category targeted by a special investigative unit.
Although the Romanian Judiciary has been under the constant scrutiny of the European Union through the Cooperation and Verification Mechanism (CVM) established by the European Commission in 2006, the level of criminality among magistrates has never been singled out as a particular concern, unlike corruption and organized crime, which led to the establishment of DNA and DIICOT. Moreover, the current Code of Criminal Procedure already ensures that the process of holding magistrates criminally liable is effective, as it sets forth the required competencies exclusively in favor of courts and prosecution offices at superior levels of jurisdiction. It is therefore apparent that the legislative proposal is in no way based on a real necessity of the Romanian Judiciary, but paves the way to another mechanism of pressure and control by the political factors on the Romanian magistrates.
On the contrary, through the initiative of the PSD – ALDE coalition, the will of some political actors to intimidate the magistrates’ body is materialised, a will that has already been manifested through media campaigns and in parliamentary inquiry committees. In particular, the intended effect is to take control of the National Anticorruption Directorate, a prosecution office specialised in the prosecution of corruption crimes committed high level public officials, as well as influencing the CSM, a key body for the independence of the Romanian Judiciary.
3) The control and politicization of the judiciary by changing the status of the Judicial Inspection from an autonomous structure within the Superior Council of Magistracy to a structure controlled by a new, unconstitutional body – the Integrity Council of Judges and Prosecutors
Law 317/2004 regulates the functioning and organisation of the Superior Council of Magistrates (CSM), the guarantor of judicial independence in Romania. The modifications proposed by the PSD-ALDE coalition in an emergency procedure are reminiscent remind of legal provisions prior to Romania’s EU accession and will seriously impact judicial independence. Here are the ones that would affect most severely the activity and independence of the judiciary:
•The Judicial Inspection, now placed under the control of the CSM, will become subordinated to a new body lacking any constitutional basis. This body has not yet been legally defined and will be established through forthcoming legislation so there is no information at present about its organization, functioning, funding, competencies, appointments, rules for decision-making or independence guarantees.
•The only available details from the bill proposed by the PSD-ALDE coalition mention a “non-permanent, representative body, whose organization and functions are established by law”. This body will take over a set of attributions currently held by the CSM. This change is a direct attack to judicial independence and the only possible reasoning for it is the attempt to institute political control over previously independent structures.
•There is no impact study or analysis to prove that the Judicial Inspection in its current configuration is inefficient or malfunctioning, or why establishing a new body with an unclear structure and parallel functioning is necessary. Furthermore, the proposed changes in the Law no. 317/2004 tacitly abrogate the whole Chapter VII regarding the organization of the Judicial Inspection and the status of the judicial inspectors, which causes a legal void that is both unacceptable and dangerous to the independence of the judicial system. The way how this new structure is designed ignores all European Commission reports under the Cooperation and Verification Mechanism, as well as the constitutional role of the CSM as guarantor of judicial independence.
•The role of the CSM plenum is diminished, while the competencies of its two divisions - one for judges, the other for prosecutors – will increase, leading to more fragmentation and conflicts in decision-making processes within the CSM.
•The CSM plenum will not be able to make proposals for the appointment and revocation of judges and prosecutors to the President and will lack essential competences regarding the magistrates’ careers, such as: the promotion of judges and prosecutors, organizing competitions for appointment and promotion in office, and appointing the committees in charge with the professional evaluation of judges and prosecutors. The current legal provision that empowers the CSM plenum to summon the general assemblies of judges and prosecutors is also eliminated.
The constitutional role of the CSM is to be a guarantor of judicial independence, operating as a collegiate body. The proposed changes will deeply affect the unitary operation and the collegiate structure of the Superior Council of Magistracy. All procedures pertaining to the magistrates’ appointment and career are closely linked to an independent and optimal functioning of the judicial system. This is the reason why decisions on such matters need the opinion of the CSM plenum, in its full membership, as provided by the current law.
By diminishing the role of the CSM plenum, the proposed bill will establish two parallel structures within the same institution, unable of effectively working together to ensure the well-functioning and independence of the judiciary. This will open ample room of manoeuvre for the political factors to speculate the dual nature of the magistrates’ career (judges and prosecutors), by playing them against each other, according the adage divide et impera.
•The decision to recall a member of the Superior Council of Magistracy will be made by simple majority, if two thirds of judges and prosecutors turn out to vote. Presently, the recall vote requires a qualified majority of two thirds.
Such a modification makes members of the SCM more vulnerable and increases the pressure over magistrates. This adds up to the intended establishment of the Directorate for Investigating Crimes Committed by Judges and Prosecutors and the unprecedented broadening of magistrates’ liability, to give rise to a full-scale “legal attack” against the judiciary mounted by the PSD – ALDE coalition.
The above mentioned are merely the most important amendments intended by the PSD – ALDE ruling coalition. Combined with numerous other changes, they will undermine the independence of the Romanian judiciary. Ten years after Romania’s accession to the European Union, the Romanian magistrates and the judicial system will be faced with utter subordination to the political will of various governing political parties. With an undermined judicial independence, the rule of law in Romania will revert to a transitional state with oligarchic attributes. Most worryingly of all, the equality before the law is put into question and the stage is set for the growth of an intangible political caste, protected from anti-corruption policies.
Judicial independence and anti-corruption policies are essential for protecting the rule of law in Romania. The vast majority of Romanian magistrates, the Superior Council of Magistracy, as well as the Higher Court of Cassation and Justice firmly rejected the proposed changes to judicial laws and demanded that their voices be heard in a public debate that is quintessential to the rule of law and a democratic society.
Tens of thousands of Romanian citizens took again to the streets in protest against the attempts made by the PSD – ALDE governing coalition to subordinate the judicial system and to capture the Romanian state in its entirety. However, we are confident that all democratic forces, both civic and political, will support the actions to defend rule of law in Romania, by keeping unaltered the judicial independence and the European path of this country.
Sustainable development in a modern Romania is not possible without an independent judiciary.
This document was drafted with the contribution of the “Justice and anti-corruption policy” thematic community of the Platform Romania 100.