Venice Commission issues negative report on Romania: The Gov’t continues legislative amendments by emergency ordinances

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The Venice Commission has issued on Monday a report about the reforms implemented in Romania’s judicial system, pointing to emergency ordinances and to the establishment of the Special Section for Investigating Magistrates.

The Venice Commission notes with regret that the most problematic elements of the 2018 reform, identified in the opinion of October 2018, have remained unchanged or were aggravated.

The most important aspects of the on-going reform of the judiciary are the following:

  • Most alarmingly, the Government continues to make legislative amendments by emergency ordinances. While the Constitution clearly indicates that this should be an exceptional measure, legislation by the GEOs became a routine. Fundamental rules of the functioning of key State institutions are changed too quickly and too often, without preparation and consultations, which raises legitimate questions about the soundness of the outcomes and of the real motives behind some of those changes. The resulting legal texts are not clear. This practice weakens external checks of the Government, it is contrary to the principle of separation of powers and disturbs legal certainty. The Venice Commission calls on the Romanian authorities to drastically limit the use of the GEOs. As to the further amendments to the three laws in the field of justice, they should be made through a normal legislative procedure;
  • The reasons for the creation of the Special Section for Investigation of criminal offenses in the judiciary (the Section), with loosely defined jurisdiction, remain unclear. Top prosecutors of this Section were appointed under a transitional scheme which de facto removed the prosecutors’ wing of the Superior Council of Magistracy (CSM) from the decision-making process, which does not sit well with the institutional design of the CSM. It is uncertain to what extent the prosecutors of the Section and its Chief Prosecutor are under a full hierarchical control of the Prosecutor General. Since the Section would be unable to effectively deal with all cases within its competence, it risks being an obstacle to the fight against corruption and organized crime.
  • The scheme of appointment and dismissal of the top prosecutors remains essentially the same, with the Minister of Justice playing a decisive role in this process, without counter-balancing powers of the President of Romania or the CSM. It is recommended to develop an appointment scheme which would give the Prosecutor’s Section of the CSM a key and pro-active role in the process of the appointment of candidates to any top position in the prosecution system;
  • It is possible to remove currently serving prosecutors with reference to the new eligibility criteria, arbitrary chosen. The Venice Commission urges the Romanian authorities not to apply the new eligibility criteria to those prosecutors who were already in place when the respective amendments were made.

The Venice Commission remains at the disposal of the Romanian authorities and the Monitoring Committee of the Parliamentary Assembly for further assistance in this matter, the report reads.

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