On 16 February 2021, Ploiesti Court of Appeal (Romania) brought a request for a preliminary ruling to the Court of Justice of the European Union, asking, inter alia, whether:
1) Can the principle of independence of judges, enshrined in the second paragraph of Article 19 (1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union, as well as in the case law of the Court of Justice of the European Union, with reference to Article 2 TEU, be interpreted as concerning also procedures for the promotion of judges in office?
2) Is this principle affected by the establishment of a system of promotion to the superior court based solely on a summary assessment of the activity and conduct carried out by a commission composed of the chairman of the judicial review court and its judges, which separately performs, in addition to the regular evaluation of judges, both the assessment of judges for promotion and the judicial review of their decisions?
3) Is the principle of independence of judges, enshrined in the second paragraph of Article 19 (1) of the TEU and Article 47 of the Charter of Fundamental Rights, as well as in the case-law of the Court of Justice of the European Union, with reference to Article 2 TEU, undermined if the Romanian State disregards the predictability and legal certainty of European Union law by accepting the Cooperation and Verification Mechanism and its reports and complying with them for more than 10 years, and then unexpectedly changing the procedure for promotion of judges to execution positions, against the recommendations of the European Commission?
The request was made in a dispute pending before the Romanian court since 2019, supplementing practically the preliminary requests in avalanche aimed at the independence of the judiciary of this East European state, received by the Court of Justice over the last three years.
On 23 September 2020 the Advocate General of the Court of Justice of the European Union, Michal Bobek, presented his conclusions in the first six cases referred to the Court of Justice by the Romanian courts regarding the rule of law (joined cases C-83/19, C-127/19, C-195/19, Asociația Forumul Judecătorilor din România and Others, case C-291/19, SO, case C-355/19, Asociația Forumul Judecătorilor din România and Others, case C-397/19, Statul Român – Ministerul Finanţelor Publice). According to Michal Bobek, the interim appointment of the head of the Judicial Inspection and the national norms regarding the establishment of a specific prosecutor’s office with exclusive competence for the investigation of crimes committed by judges and prosecutors, such as the Section for the Investigation of Criminal Offences in the Judiciary, are contrary to the European Union law.
In several other cases, the same Advocate General will present his Opinion on March 4, 2021.
Along with other aspects strongly and unanimously criticised by all relevant international bodies, in 2018, the modality of effective promotion of judges in Romania to execution positions was changed, after 13 years of methodology promotion based on written examination, meritocratic, organised by the National Institute of Magistracy.
The new legislative approach first involves a written examination for the so called “on the spot promotion” which has the purpose for the judges and prosecutors to obtain the rank of the superior court, followed by a second selection procedure, which aims of achieving effective promotion, conducted to a large extent through the presidents of the appellate courts.
Although a judge, following “on the spot promotion”, acquires the professional degree of the hierarchically superior court to which he applied through the promotion contest, she/he cannot actually function in the court corresponding to the degree obtained. Traditionally, in Romania, the promotion of judges was closely linked to the level of the court at which they operate.
The need for this change was not justified by any impact study or debate within the judges’ body, effectively leading to a return in time to the procedure according to which “hierarchical chiefs” were establishing scores, specific to the years in which Romania had not become a member of the European Union.
There are real fears that the establishment of this procedure for effective promotion in execution office exclusively through subjective evaluation of the activity and conduct of candidates in the last 3 years, carried out through consultation of judges from higher courts, analysis of documents drafted by candidates and interviews, within evaluation committees proposed by the presidents of the courts to which effective promotion is requested, will gradually determine the emergence of attitudes of “hierarchical subordination” towards the judges of the higher courts and to those who will hold management positions.
In fact, the Romanian legislature regulated a parallel procedure for evaluating judges: the periodic evaluation and the evaluation for effective promotion to the superior court. In both proceedings, the president of the appellate court has a decisive role. Formally, the head of the appellate court is part of a committee for the assessment of promotion, as well as the evaluation commission of all the judges of the appellate court, thus cumulating a large decision-making power, both as regards the evaluation of judges at the appellate court and the appointment of judges who will be effectively promoted to the appellate court. In the case of Bosnia and Herzegovina, the Venice Commission established that such disposition „looks problematic as it defines the President of the Court as a central figure in the process of the evaluation of judges. This may not only lead to a conflict of interest, but also result in malpractice, limiting the independence of individual judges”.
Regarding these new provisions, GRECO has already expressed its concern.
The Consultative Council of European Judges, by Opinion no. 17 (2014), established that: ”the risk to judicial independence is not completely avoided even if the evaluation is undertaken by other judges. Judicial independence depends not only on freedom from undue influence from external sources, but also requires freedom from undue influence internally, which might in some situations come from the attitude of other judges, including presidents of courts”.
The restoration of meritocracy and professionalism within the judiciary is a necessary step, as well as the increasing the citizens’ trust in it because in a democratic society that respects the rule of law its members must have the certainty that judges are promoted according to objective criteria, this being an essential guarantee for an independent, impartial and competent justice.
Dragoș Călin
Co-president of the Romanian Judges’ Forum Association; judge to the Bucharest Court of Appeal; PhD in constitutional law of the Faculty of Law, Bucharest University; associate scientific researcher within the Institute for Legal Research “Andrei Rădulescu”, Romanian Academy; trainer of the National Institute of Magistracy.
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