Venice Commission issues an urgent Opinion on three laws concerning the justice system in Romania

The European Commission for Democracy through Law (the “Venice Commission“) has published an urgent Opinion on three laws concerning the justice system of Romania: the Law on the Superior Council of Magistracy, the Law on the Judicial Organisation, and the Law on the Status of Judges and Prosecutors.

The Opinion was requested in September 2022 by the Committee on the Honouring of Obligations and Commitments by Members States of the Council of Europe of the Parliamentary Assembly of the Council of Europe (PACE).  On 25 October 2022, the Minister of Justice of Romania asked for this opinion to be dealt with under the urgent procedure.

The three draft laws were adopted on 17 October 2022. Their constitutionality was challenged before the Constitutional Court by the Ombudsman and some members of Parliament. On 9 November 2022, the Constitutional Court announced that it rejected all appeals as unfounded. The Laws were enacted by the President of Romania on 15 November 2022.

President Klaus Iohannis promulgated the new Justice laws on Tuesday, one day after the Constitutional Court published the reasoning by which it rejected the referrals of USR, AUR and the People’s Advocate regarding the three Justice laws adopted in Parliament.

USR notified the Venice Commission on the subject of the three normative acts, with the forum to issue an opinion in December. At the same time, the European Commissioner for Justice advised the Bucharest authorities to wait for the opinion of the Venice Commission. President Iohannis has though promulgated the laws before the Venice Commission had issued an opinion.

As this opinion, upon request by the Romanian authorities, is being prepared under the urgent procedure, the Commission cannot examine in detail the three Laws, the Venice Commission said. In the limited time at its disposal, the Commission will therefore analyse only some issues, notably those relating to issues raised in PACE Resolution 2466.
“This opinion cannot be seen as expressing a view on the compatibility of the three Laws with European standards on any other points than those discussed below. The Venice Commission also cannot enter the political discussion whether the adoption of these Laws justifies the termination of the EU Mechanism for Cooperation and Verification (CVM), as was pointed out by some interlocutors of the delegation of the Venice Commission.”

Unlike earlier reforms, the current laws were subject of lengthy preparation since 2020 and numerous consultations with all stakeholders took place. This is a positive point, which must however be tempered by the fact that at the end of the process, the parliamentary debate was
conducted in a rushed manner., the commission notes.
 The March 2022 Opinion on the dismantling of the Section for Investigating Criminal Offences within the Judiciary in Romania7 criticised the haste with which that law had been adopted.

The Venice Commission slammed that fact that its opinion had not been requested on the three justice draft laws.
“The Romanian authorities had announced that they would take into account the opinions of the Venice Commission. However, the Government did not request an opinion on the draft laws. The Government argued that this was necessary due to the need to quickly ensure the termination of the CVM and to enter the Schengen Space; any consultation on the intermediary versions would not have brought an accurate assessment on the drafts, since they were only reflecting the respective stage of the process.

The Venice Commission regrets that it was not consulted until after the laws had been adopted, whereas the lengthy preparatory procedure would have made it possible to obtain the opinion beforehand.”

According to the Venice Commission, “this acceleration of the procedure also led to a hasty adoption of the laws in Parliament. Debates in Parliament started on 12 September and the laws were adopted on 17 October 2022. Relatively little time appears to have been made available for debate in the Parliament because an emergency procedure was applied.“
“The Venice Commission regrets the haste of the adoption procedure and the fact that it was not asked in time to prepare an opinion on the draft laws and that it should deal with the adopted laws under the urgent procedure. The authorities insist that the drafting process was transparent and inclusive, the parliamentarian debate being only the last step of this long democratic process. In Parliament, the emergency procedure had been fully respected, a special commission had been set up, in line with the transparent emergency procedure, not affecting the democratic debates, with the participation of all parliamentarian groups and stakeholders.”

However, the Venice Commission emphasized that “the majority of opinions gathered during the meetings on 7 November were positive,” but there were some very critical voices but they focused on specific issues rather than questioning the laws altogether.
“The Superior Council of Magistracy, several of the judges’ and prosecutors’ associations and some representatives of civil society are of the opinion that these new laws represent progress, even if improvements are still desirable on certain points. In this respect, the overall tone of the comments received is quite different from that of 2018/2019 and even at the time of the abolition of the Special Section.
As concerns the quality of the texts, these three Laws are voluminous pieces of legislation. They are very detailed. One can question whether many provisions need to be regulated on the level of law in such detail, such as on training and other technical questions. However, this seems to be part of the national legislative style.
A relevant document to be taken into account by the Romanian authorities is also GRECO’s Second Interim Compliance Report on Romania in the framework of the Fourth Evaluation Round on “Corruption prevention in respect of members of parliament, judges and prosecutors”, which also includes the follow–up to the ad hoc (Rule 34) Report on Romania. A Third Interim Compliance Report including Follow up to the ad hoc Rule 34 procedure is scheduled for discussion at the next plenary session of GRECO on 28 November – 2 December 2022.”

For the specific issues raised by the Venice Commission, you may consult the link.