Romanian Judges’ Forum: Legislative proposals recently initiated by the Chamber of Deputies lack motivation, are retrograde and affect the independence of the judiciary
The Romanian Judges’ Forum draws public attention to the Chamber of Deputies legislative initiative issued by a group of eight Members of the Parliament on 31 October 2017 without a proper explanatory memorandum / statement of reasons (according to Article 92, paragraph 1, final sentence of the Chamber of Deputies Regulations) and without a proper impact study. This way of acting is ignoring a recent opinion of the Superior Council of Magistracy and a firm position of the magistrates’ body, and hijacks a governmental procedure that was not assumed by the Government as a result of public reactions, all of the above being unacceptable in a Stat governed by the rule of law.
The last report of the Cooperation and Verification Mechanism (2017) explicitly recommends, in the case of Romania, that “in order to further improve the transparency and predictability of the legislative process and to strengthen internal guarantees of irreversibility”, “the Government and the Parliament …) are to ensure full transparency and are to take due account of consultations with relevant authorities and stakeholders in the decision-making process and legislation related to the Penal Code and the Criminal Procedure Code, anti-corruption laws, (incompatibilities, conflicts of interest, illicit wealth), the laws of justice (on the organization of the judiciary) and the Civil Code and the Civil Procedure Code. ”
By being a member of the European Union, Romania has the obligation to apply this mechanism and to comply with the recommendations established in this framework, in accordance with the provisions of art.148 paragraph (4) of the Constitution.
The promotion of such retrograde projects, drafted in a hurry, with visible mismatches and gaps (for example, from a strictly technical point of view, the expression “decision to reject the application for the exception of non-constitutionality” is a non-juridical formula and is deficient as a legal expression, in relation to the terms stipulated in the legislation and the doctrine – the “reasoned decision rejecting the request for referral to the Constitutional Court” – see Law no. 47/1992 on the organization and functioning of the Constitutional Court), without an adequate explanatory memorandum (statement of reasons), has nothing to do with the modernization of the judiciary as part of a positive development, praised by the successive reports of the Cooperation and Verification Mechanism, but it is a simple episode of the “Judicial Experiment” series, which has been steadily taking place in the last year.
On a similar previous legislative draft, largely being found in this new legislative initiative of the Chamber of Deputies, the Plenum of the Superior Council of Magistracy issued a negative opinion, taking into account the votes casted in numerous general assemblies of judges and prosecutors from courts and prosecutors’ offices. In October 2017, approximately 4.000 Romanian judges and prosecutors, i.e. more than half of the total of magistrates, signed and assumed a Memorandum addressed to the Romanian Government, in order to advocate the withdrawal of that previous legislative draft amending the “laws of justice”.
The signatories of the Memorandum considered that the changes promoted by the Minister of Justice flagrantly violate the Co-operation and Verification Mechanism, its consistent reports and the foundations of a normal judiciary in a democratic state.
The new legislative initiative of the Chamber of Deputies proposes, for example, that the Judicial Inspection should be placed under the control of a non-constitutional body (the Council of Integrity of Judges and Prosecutors in Romania), which is not yet in place, but which would be established by a separate law (without a known legal form, although it is essential to know the organization, the funding, the competence, the rules of the decision-making process, the guarantees of independence, etc.), ignoring numerous reports of the European Commission within the Cooperation and Verification Mechanism, as well as the constitutional role of the Superior Council of Magistracy as a keeper of the independence of justice.
The legislative initiative includes many changes that will influence the career and professional activity of magistrates and will cause imbalances in the judiciary. We remind here only the modification of the training courses duration at the National Institute of Magistracy, which in the long term will produce huge malfunctions in the functioning of the courts and prosecutors’ offices, as it aims to keep unavailable to be put in offices for 4 years approximately 1000 future magistrates, in the context of a wave of retirement expected to take place in the short and very short term.
Also, the proposal regarding the replacement of the current exam of the trainee judges and prosecutors, in order to obtain the capacity to be placed in offices, with an interview in front of the leading boards of the courts of appeal and of the prosecutor’s offices disregard the role of the National Institute of Magistracy to achieve the training of judges and prosecutors at high standards and, at least in principle, remove the possibility of an objective evaluation of the trainees at the end period of their studies, as is currently being done.
In the face of an unprecedented and continuous assault on the justice system in general and on the body of magistrates, in particular, we call on the European Commission, in the country report to be made public in November 2017, to consider the possibility to recommend to the Romanian authorities that all the amendments proposed at present and that will be proposed in the near future are to be made in such a way that will not affect the independence of the judiciary, by emphasizing – once again – some clear, un-crossable limits, in order to keep the magistracy and the justice system inside de recommendations of the Cooperation and Verification Mechanism and in order to keep Romania on its European path.