In recent years, the Romanian Judges’ Forum Association has consistently advised the Romanian authorities on the need to adopt reforms in order to restore the necessary elements of the Romanian justice system for its functioning based on the principles of independence, meritocracy, efficiency and accountability.
The new justice laws, adopted in 2022, have departed from this ideal, the judiciary experiencing unacceptable backsliding.
We reaffirm the urgent need for real judicial reforms, implementing the rulings of the Court of Justice of the European Union and the requirements of relevant European and international bodies, in particular the Venice Commission and the Organisation for Economic Co-operation and Development (OECD).
Thus, the OECD reiterated the observation concerning the lack of meritocratic competition on the promotion of magistrates, in particular at the High Court of Cassation and Justice (HCCJ), and the methods of promotion based solely on an assessment of the judicial decisions delivered by candidates throughout their activity (accompanied by an interview before the Section for Judges of Superior Council of Magistracy on promotion to the HCCJ), which were systematically challenged by a serious part of the judicial system for the lack of a truly meritocratic character.
As requested several times by the European Commission, the Venice Commission recommendations of the last Urgent Opinion, issued at the end of 2022, need to be incorporated into legislation, namely: “extending the term of office of senior prosecutors which at present has a three years length and removing the possibility of renewal of mandates, as well as strengthening safeguards in the event that the Prosecutor General of the Prosecutor’s Office attached to the High Court of Cassation and Justice refutes by a motivated decision all measures and solutions adopted by other prosecutors (except National Anti-Corruption Directorate – DNA and Directorate for Investigating Organized Crime and Terrorism – DIICOT). Other proposed amendments include a selection by competition for the Vice-Presidents of the Courts and Deputy Chief Prosecutors of the Prosecutors’ Offices and a clear determination that judicial police officers seconded to the prosecution service have no reporting obligations towards the Ministry of Interior.”
At the same time, the Venice Commission regrets that the legislator has not restored the competences prior to the establishment of the Special Section for the Investigation of Offences in the Judiciary (SIIJ) and recommends restoring the powers of DNA to investigate and prosecute crimes committed by judges and prosecutors.
In addition, the need for legislative amendment concerning the functioning of the Judicial Inspection is also necessary in the light of the binding judgment of the Court of Justice of the European Union of 11 May 2023 (Case C-817/21, Inspecția Judiciară). The CJEU noted the strengthening of the powers of the‑Chief Inspector in the more global context of reforms concerning the organisation of the Romanian judicial system with the aim or effect of reducing the guarantees of independence and impartiality of Romanian judges, but in particular the concrete practice followed by the‑Chief Inspector in the exercise of his or her prerogatives, with explicit reference to the European Commission, which „mentions examples which may show that these powers have been used on several occasions for the purpose of political control of judicial activity, some of which appear, moreover, in the reports from the Commission to the European Parliament and the Council of 22 October 2019 and 8 June 2021 on progress made by Romania under the Cooperation and Verification Mechanism (COM (2019) 499 final, pp. 7 and 8, and COM (2021) 370, p. 18), which the Romanian authorities must take due account, pursuant to the principle of sincere cooperation laid down in Article 4(3) TEU, in order to attain the objectives pursued by Decision 2006/928 (see paragraph 71 of the judgment of 11 May 2023)’.
More recently, the Consultative Council of European Judges (CCJE), in its Opinion No 27 (2024) on the disciplinary liability of judges, called for the avoidance of any abuse in the initiation and conduct of disciplinary proceedings, in the absence of any evidence. These procedures must be conducted within a reasonable period of time and it is necessary to regulate the possibility of recusal of the members of the Disciplinary Chamber. In addition, CCJE Opinion No 23 (2020) on the scope of associations of judges in support of judicial independence states that ‘judges cannot be obliged to disclose their membership of an association of judges’ precisely in order to be protected and prevent unjustified attacks against them.
We also recall the OSCE Office for Democratic Institutions and Human Rights (ODIHR) Recommendations on Judicial Independence and Accountability of the Judiciary (Warsaw Recommendations) of 2023, which suggest the need for further legislative changes: “the Councils for the Judiciary should not be dominated by judges of appeal courts or other higher courts. If the president of a court is appointed to the judicial council, he or she must resign as court president; in order to avoid excessive concentration of power in a single judicial body and the perception of corporatism, competences are shared between autonomous judicial bodies and separate bodies are entrusted with specific tasks of the judicial administration, such as the selection, promotion and training of judges, discipline, performance evaluation and budget; disciplinary proceedings concerning members of the Councils for the Judiciary should be conducted by bodies not composed of members of the Council for the Judiciary; during the disciplinary investigation, the accused judge may only be suspended as a temporary measure, in exceptional circumstances and with payment of the allowance; in order to prevent the perception of nepotism, corruption or other undue influence, transfers of judges within or between sections of a court should be carried out through a process where the transfer criteria are explicitly set out and where the body responsible for deciding on transfers provides a clear and legally justified justification for its transfer or refusal; delegations or secondments of judges to other courts or institutions should be for a fixed and limited period, but not exceeding six months; the transfer of a judge between sections should be carried out only with the written consent of the judge relocated; Judicial Councils and other self-governing bodies should proactively promote gender equality in the context of their functions and in the judiciary in general”.
Furthermore, the regulation of mandatory mediation in Romania is a no longer avoidable solution, supported by CJEU rulings, in order to avoid convictions at the European Court of Human Rights due to natural delays in resolving civil cases lato sensu, in the current coordinates of acute lack of staff in the judicial system.
Most recently, the order of the Court of Justice of the European Union of 3 September 2024, Case C-658/23, Investcapital Ltd, reconfirms that Directive 2008/52 does not, in principle, preclude national legislation under which recourse to mediation, before or after the commencement of legal proceedings, is mandatory or subject to incentives or penalties (see, to that effect, judgment of 14 June 2017, Menini and Rampanelli, C-75/16, paragraphs 49 and 50).
In addition, the Court of Justice of the European Union has stated that national legislation such as that in Romania, under which, in certain types of disputes in civil matters, including those which may fall within the scope of Directive 2008/52, the applicants are required to attend an information hearing on the advantages of mediation, is, in principle, compatible with Article 5(2) of that directive, provided that such legislation does not prevent the parties from exercising their right of access to the judicial system.
In such circumstances, there is no legislative or judicial obstacle in Romania to legislate on a binding mediation procedure, for example: as regards cases in the field of consumer protection, where the consumer alleges the existence of damage as a result of the purchase of a defective product or service; non-compliance with the contractual terms or guarantees granted; the existence of unfair terms in contracts concluded between consumers and economic operators; or the infringement of other rights provided for in national or European Union consumer protection legislation; in certain family cases; in the area of disputes concerning possession, delimitation of property boundaries border, displacement and any other dispute concerning neighborhood relations; in the field of professional liability in which professional liability may be incurred, that is to say, cases of malpractice, in so far as no other procedure is provided for by special laws; in employment disputes arising from the conclusion, performance and termination of individual employment contracts; in civil disputes the value of which is less than RON 100.000, with the exception of disputes in which an enforceable decision has been issued to open insolvency proceedings, actions relating to the Trade Register and cases in which the parties choose to have recourse to the procedure laid down in Articles 1.013 to 1.024 or to that provided for in Articles 1.025 to 1.032 of Law No 134/2010, republished, as amended.
There is a body of mediators well trained in Romania, the lawyers and public notaries being also involved in amicable proceedings, and the compulsory mediation as a condition for the admissibility of legal proceedings is already legislated in various EU countries (see the Italian model, which can also be viable for Romania; the model implies that the mediation procedure must be completed before a case is referred to the court, the costs of the first hearing being paid by the State, and the Constitutional Court of Italy validated the constitutionality of that model, by Decision No 97 of 18 April 2019) and strongly supported by the binding case-law of the Court of Justice of the European Union and the European Court of Human Rights respectively.
The Romanian Judges’ Forum Association
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