EC’s 2020 rule of law report on Romania: “Amendments to the Justice laws in 2018 and 2019 continue to raise concerns”

According to the 2020 Rule of Law Report Country Chapter on the rule of law situation in Romania released on Wednesday, the European Commission warned that the controversial amendments operated by PSD-ALDE to the justice laws in 2018 and 2019 are still in force in Romania and are prompting uncertainty for the proper functioning of the judiciary system overall.

The report also contains criticism against the Special section for investigating magistrates, while mentioning that the current Government has pledged to start a dialogue with the judiciary system and the political parties in order to correct the controversial measures.

“Several amendments to the Justice laws in 2018 and 2019 continue to raise concerns as regards their impact on judicial independence. The Justice laws regulate the status of judges and prosecutors, the organisation of the justice system and the functioning of the Superior Council of Magistracy. The amendments entered into force in July and October 2018, and were further modified through several Government Emergency Ordinances. The measures raised concerns, in particular as their combined effect was considered by several national and international stakeholders to represent a serious threat to the independence of the judiciary8. Major issues were identified with the creation of a Section for the Investigation of Offences in the Judiciary (SIIJ), the system of civil liability of judges and prosecutors, early retirement schemes, entry into profession, and the status and appointment of high ranking prosecutors. From the outset, their implementation has confirmed the concerns of pressure on judges and prosecutors, and on the independence, efficiency and quality of the judiciary. Furthermore, the continued application of the laws has highlighted new issues beyond the problems identified early on”, says the report.

According to the European Commission, the prolonged implementation of the amended justice laws creates increased uncertainty for the functioning of the justice system. “While the current Government has expressed willingness to engage in a dialogue with the judiciary and political parties to reverse the controversial measures, it has also pointed out that the current political situation does not provide for the right conditions to obtain a broad consensus and necessary majority in Parliament to ensure support for comprehensive reforms11. It is unlikely that such reforms will be undertaken before new parliamentary elections are held. The fact that these amendments remain in place creates uncertainty for the functioning of the judicial system as a whole, and for individual magistrates with regard to their independence, statute and career in particular. The uncertainty is exacerbated by strong divisions within the justice system as to the solutions to be put forward to amend the Justice laws. In this context, while based on its functions the Superior Council of Magistracy should be taking a leading role and building consensus, its recent work has been marked by internal divisions and controversy.”

The EC experts also note that the perception of judicial independence among the general public in Romania is low, and shows a decreasing trend in recent years.

“The level of perceived judicial independence among the general public remains low (37%), and has been decreasing. Among the companies, the level of perceived judicial independence is average (53%). In both cases, the reason most often invoked for the perceived lack of judicial independence is related to interference or pressure from the Government and politicians. The public debate on the judiciary has been marked by strong tensions, and the existence of public attacks on the judiciary from the political world and the media, but such tensions have decreased significantly under the current Government. Although the Superior Council of Magistracy has reacted to some complaints brought to its attention regarding the defence of the independence, reputation and impartiality of magistrates, the overall activity of the Council in this area was limited”.

Another warning in the rule of law report is that “the prosecutorial Section for the Investigation of Offences in the Judiciary (SIIJ) remains in place, despite widespread criticism”.

“This Section is tasked exclusively with the prosecution of crimes committed by judges and prosecutors. In addition, it also has jurisdiction to prosecute cases against other individuals that are investigated together with the judges or magistrates concerned. The Venice Commission noted that the rationale behind the creation of this Section does not appear justified by factual evidence, and its establishment and practice has been criticised both for its effects on the independence of magistrates and for the negative effects it could have on the effectiveness of the prosecution. Furthermore, the perception that the pressure of the Section can affect judicial independence also adversely impacts on the appearance of independence, which is in itself an essential requirement of judicial independence”.

The 2020 report also reminds that the dismissal in 2018 of the former anti-corruption directorate chief prosecutor Laura Codruta Kovesi had violated the articles 6(1) (‘Right to a fair trial’) and 10 (‘Freedom of expression’) of the European Convention of Human Rights.

“The ECtHR held that the former chief prosecutor had not been able to effectively challenge in court the reasons for her removal from the position. In that context, the ECtHR drew attention to the growing importance attached to the intervention of an authority independent of the executive and the legislature in respect of decisions affecting the appointment and dismissal of prosecutors. With regard to the freedom of expression, the ECtHR underlined also that the dismissal could have a chilling effect, discouraging other prosecutors and judges from participating in public debate on legislative reforms affecting the judiciary and more generally on issues concerning the independence of the judiciary. Regarding the participation of magistrates in the public debate, the CVM reports had expressed concern as regards the practice of the Judicial Inspection of initiating disciplinary proceedings against judges and prosecutors on the basis of their public statements on the judicial reforms.”

The European officials also say that the legislative amendments affecting human resources may hinder Romania’s efforts to reduce the length of judicial proceedings. “Several legislative changes from 2018 could put the efforts to reduce excessive length of civil and criminal cases at risk. The provisions of the civil procedure code on council chamber proceedings, aiming at improving the efficiency of the handling of the cases have been eliminated. However, the main concern stems from the amendments of the Justice laws which risk contributing to increasing the deficit in human resources, but also require additional judges on certain panels60 or higher seniority in the specialised prosecution offices.”

Romanian Justice Minister, Catalin Predoiu, has announced on Wednesday the start of the public debate, to last until March 31, 2021, of the proposals to amend the Justice laws – Law 303/2004 regarding the status of judges and prosecutors, Law 304/2004 regarding judicial organization and Law 317/2004 regarding the Supreme Council of Magistracy.

Predoiu told a press conference at the Justice Ministry headquarters, that among the amendment brought are the disbanding of the Section for Investigation of Crimes in Justice, bringing professional criteria in the selection process of magistrates – elimination of appointment without competition, elimination of the anticipated pensioning scheme for magistrates, reinforcing the principle of independence of prosecutors in judicial activity and elimination of restrictions in what regards the freedom of expression of magistrates.