In the last Opinion issued by the Venice Commission, notified by the Parliamentary Assembly of the Council of Europe at the request of several entities, including the Romanian Judges’ Forum Association, the relevant constitutional law body from Council of Europe regretfully noted the change in bad or, after case, the unchanged continuation of the most serious aspects affecting the independence of the justice in Romania.
The Venice Commission has urged the Romanian authorities to drastically limit the use of emergency ordinances, noting, among other things, that the reasons for setting up the Section for Investigating the Crimes committed by Judges and Prosecutors with a vague jurisdiction remain unclear, and this will become an obstacle to the anti-corruption struggle and organized crime, as well as the existence of provisions, offers the possibility to arbitrarily remove the current high-level prosecutors. These recommendations come together with those of the European Commission issued under the Cooperation and Verification Mechanism.
In order for Romania to remove all aspects affecting the independence of the judiciary and the rule of law, referred to in various consecutive international reports, in compliance with Article 2 of the Treaty on European Union (“the Union is founded on the values of respect for human dignity, democracy, equality, the rule of law, and respect for human rights, including the rights of persons belonging to minorities, which are common to the Member States in a society characterized by pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men”) and with quality of member state in the Council of Europe, the following measures are needed:
1. Immediate and unconditional withdrawal of the separate Prosecutor’s Office, created for the investigation of crimes committed by judges and prosecutors;
2. Abrogation of the limitations on freedom of expression, materialized in the obligation for judges and prosecutors to refrain from “defamatory expression or manifestation in relation with the other powers of the state”;
3. Revising the rules on material liability of magistrates as long as they ignore the independence of the judiciary;
4. Reviewing the system of appointment and dismissing of chief prosecutors and limiting the role of the Minister of Justice in these procedures, together with the increase of the powers of the Superior Council of Magistracy;
5. Waiving the provisions stipulating the doubling of the training periodwithin the National Institute of Magistracy;
6. Reinstatement of meritocracy in magistracy. The regulation of some meritocratic promotion exams, including, in particular, the High Court of Cassation and Justice;
7. Respecting the role and attributions established by the Constitution for the Superior Council of Magistracy as a collegiate body by removing the arbitrary transfer of some Plenary attributions to the sections or to some judges, depending on the professional degree detained, deviating the collegiate functioning;
8. Reorganizing the Judicial Inspection by reconsidering the role and responsibilities of the Chief Inspector; the regulation of meritocratic examinations for senior management positions within the Judicial Inspection.
9. Reviewing the provisions on the revocation of SCM members in the context of a flexible and accessible procedure;
10. Abrogation of newly introduced provisions that unduly burden the workload of the courts and prosecutor’s offices (eg, the prolonged rules on the introduction of three judges’ panels for appeals, respectively the two judges’ panels for judging appeals against judgments handed down by judges of rights and freedoms in the preliminary chamber from courts of appeal, etc.);
11. Adoption of amendments to the Criminal Code and the Criminal Procedure Code only in compliance with the recommendations of the Venice Commission;
12. Adoption of budgetary autonomy of judges, as recommended by the Venice Commission.
According to Article 11 of the Romanian Constitution, the Romanian State undertakes to fulfill in good faith its obligations under the Treaties to which it is a party. Treaties ratified by the Parliament, according to the law, are part of domestic law. Romania joined the Council of Europe (EC) following the decision of 4 October 1993, formulated by Resolution no. 37/1993 of the Committee of Ministers of the EC. Adherence to the EC, an organization founded on the principles of respect for human rights and fundamental freedoms, for the values of democracy and the rule of law, was a mandatory step in promoting Romania’s EU accession and North Atlantic Treaty Organization (NATO). The execution of international obligations resulting from a treaty in force for a particular state rests with all state authorities.
The requirement of the independence of judges is also based on the substance of the fundamental right to a fair trial, which is of the utmost importance as a guarantee for the protection of all rights conferred to EU citizens by Union law and for the maintenance of the shared values of the Member States as set out in Article 2 of the Treaty on European Union, especially the value of the rule of law. (CJEU, Judgment of 25 July 2018, Ministry of Justice and Equality, C 216/18 PPU, EU: C: 2018: 586, paragraph 48).
Finally, we can not fail to notice the obstinacy with which the President and some of the members of the Superior Council of Magistracy “fought and fight to the teeth” for regulations and institutions that the relevant international bodies have continually rejected as incompatible with the requirements of the rule of law. Such attitudes require immediate resignations of honor.
The Romanian Judges’ Forum Association
Judge Dragoş Cǎlin, co-president
Judge Anca Codreanu, co-president
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