The combined effects of some of the regulations contained in the provisions adopted in Parliament in relation to the justice legislation, although not declared unconstitutional (either because they have not been challenged or because the objections of unconstitutionality were not comprehensive, and the arguments were essentially absent) have the potential to be disastrous for the Romanian magistracy. The magistrates’ body will be reduced by at least 25% (on a very short term), de-professionalised through the removal of promotion exams, over-worked by increasing the volume of activity and over-controlled through the head of the Judicial Inspection and through the Special Section for the Investigation of Criminal Offenses within the Prosecutor’s Office adjacent to the High Court of Cassation and Justice.
I. The lack of adequate consultation with the magistrates’ body is not a guarantee of an effective reform of the judiciary and violates the European Commission’s Mechanism for Co-operation and Verification.
In a truly democratic state, “the pro-active role of the judiciary system and of the judicial committees is essential, as these must always be involved in all the stages of any reform process, either directly or through appropriate consultation. The judiciary system must be involved in creating successful criteria and key performance indicators to assess reforms effectively”
The parliamentary debate on the above mentioned law drafts ignored the overwhelming view of the majority of the magistrates’ body and the negative consecutive notifications issued by the plenum of the Superior Council of Magistracy. During October 2017, approximately 4,000 Romanian judges and prosecutors, ie more than half of their total number, acquiesced to the Memorandum for
the withdrawal of the draft law amending the “justice laws” addressed to the Government of Romania, and in November 2017, over 90 % of the general assemblies of the Romanian courts and prosecutor’s offices opposed the current law projects adopted by the Parliament. Consequently, over 6,000 Romanian judges and prosecutors did not accept this draft bill, but their will was not taken into account and any dialogue with them was avoided. Moreover, the silent protests of the Romanian magistrates, taking place in front of the courts’ offices since 18 December 2017, are notorious, being presented by the press from around the world.
The latest report of the Mechanism for Cooperation and Verification (2017) expressly recommends, in the case of Romania, that “in order to further improve the transparency and predictability of the legislative process, as well as to strengthen the internal guarantees of irreversibility”, the ”Parliament (…) should ensure full transparency and take due account of consultations with relevant authorities and stakeholders in the decision-making and legislative work related to the Penal Code and the Code of Criminal Procedure, anti-corruption laws, (incompatibilities, conflicts of interest, illicit wealth), the laws of justice (concerning the organization of the justice system), and the Civil Code and the Code of Civil Procedure.”
In the Joint Statement of the President of the European Commission, Mr. Jean-Claude Juncker, and of the Vice-President of the European Commission, Mr. Frans Timmermans on 24 January 2018, it was clearly underlined that “the laws of justice are an important test of the extent to which the legitimate interests of stakeholders in the judiciary system and other relevant stakeholders have the chance to be expressed and are sufficiently taken into account in making the final decisions. What we have seen so far have not appeased to our concerns.” The European Commission has called on the Romanian Parliament to rethink the proposed actions, to launch the debate as recommended by the Commission and to build a broader consensus from now on.