Romania

A powerful judicial council was established to insulate the judiciary from political interference. As the Superior Council of Magistracy consists mainly of judges and prosecutors elected by their peers, it is formally independent from the executive power. This formal insulation of the Council from political interference does not, however, eliminate indirect or informal pressure on the judiciary or on individual judges, especially in major corruption cases. Such pressure has taken the form of media exposure or assertions of the lack of judicial independence, threats of filing complaints with the Judicial Inspectorate, and even attempts at changing legislation to remove certain corruption offences. 

While the Council has reacted to attempts at undermining judicial independence in the past (including by issuing negative opinions on controversial laws), it has not always been able to suppress this. At the same time, in view of the extreme concentration of powers in the Council, the lack of transparency and accountability – the absence of external and internal checks – emerges as a major issue of concern. The only political authority still involved in the formation of the Council is the Senate, which appoints two representatives of civil society. Another concern is related to the limited involvement of courts or judicial associations in decision-making and a lack of administrative and financial independence at the court level.   

Recent reforms have been focused, among other things, on increasing the transparency and accountability of the Council. 

The strong position of prosecutors within Romania’s justice system comes partly from its communist heritage; prosecutors were very powerful during the communist regime and were politically controlled. Currently, they are considered as “magistrates” by the law, on an equal footing with judges. A major part of the discussion around the independence of the judiciary revolves around prosecutorial activity. 

Several rulings of the European Court of Human Rights (ECtHR) have touched upon prosecutorial independence in Romania. 

In the Brisc case, the applicant, the chief prosecutor of the Prosecutor’s Office attached to the Maramureş County Court, was unduly reprimanded and removed from office for making legitimate statements to the press and in a television interview about an ongoing criminal investigation about alleged influence peddling within the judiciary. He did so while acting in his capacity as a staff member designated to maintain contact with the press. The ECtHR found, in particular, that the sole purpose of the applicant’s press release and interview had been to inform the press about an ongoing criminal investigation of evident interest to the public, and not at all to accuse magistrates of any offence or to reveal any information in either his press release or television interview that could have led to the identification of the individuals involved. The disciplinary sanction imposed on the applicant had, therefore, not been based on relevant and sufficient reasons, and had thus breached his freedom to impart information in a democratic society (violation of Article 10 of the European Convention on Human Rights). The case has been pending implementation since 2019, and the authorities argue that no legislative or other general measures are required to implement this case 

In the Codruța Kövesi case, the ECtHR found that the applicant was unable to effectively challenge in court the undue premature termination of her mandate as the chief prosecutor of the National Anti-Corruption Directorate. This was due to the boundaries set for the review of her case by the Constitutional Court. The ECtHR also found a violation of Article 10, in connection with illegitimate and unjustified interference with the expression of views by the applicant in her professional capacity on legislative reforms affecting the judiciary. The Court found that the premature termination of the applicant’s mandate was a particularly severe sanction, which undoubtedly had a “chilling effect”, in that it must have discouraged not only her, but also other prosecutors and judges, from participating in public debate on legislative reforms affecting the judiciary and, more generally, on issues concerning the independence of the judiciary.  The 2022 Law on the Status of Judges and Prosecutors introduced the possibility for high-ranking prosecutors to challenge dismissals before the section for administrative and tax disputes of the High Court of Cassation and Justice, competent to review the legality and the merits of dismissal proposals made by the minister of justice. Moreover, challenges against removal decrees are examined under an emergency procedure and with priority. Also, the Act on Administrative Disputes allows for the suspension of the effects of an administrative decision, such as a removal decree issued by the president, until the competent court has ruled on the merits of the dispute. Finally, the Act also states that members of the judiciary may express their opinions on public policies or legislative initiatives in the field of justice or in other areas of public interest, with the exception of political opinions.  

While aspects of these reforms were seen as move in the right direction, some concerns remained. The procedure for appointing top prosecutors is among the issues of concern. Under October 2022 legislative changes, the president of Romania appoints top prosecutors upon a reasoned nomination from the minister of justice, following a selection process launched and organised by the Ministry of Justice and an opinion of the Superior Council of Magistracy (SCM). The report under the Cooperation and Verification Mechanism indicated that, under this system, the prosecutorial section of the SCM and the president could arguably act as counterweights to the influence exercised by the minister of justice, and safeguard against politicisation or undue political influence. The minister will have to examine and take into account the arguments raised in the SCM opinion in the nomination process, even though the minister is not prevented from proceeding with the nomination in the face of a negative opinion from the SCM or after a refusal by the president. 

In its 19 December 2022 opinion, the Council of Europe’s Venice Commission pointed out that, while the minister of justice still has a decisive role in appointing top prosecutors, this political responsibility is shared with the president of Romania and the role of SCM is strengthened. The Commission concluded that the involvement of several institutional actors in the procedure decreases the risk of partisan appointments. 

In the same opinion, the Venice Commission noted that a three years term of office, with the possibility of renewal, creates a potential risk, and recommended introducing a longer appointment period, with no possibility of renewal.   

The Venice Commission also recommended introducing competitive selection of deputy managers in courts and prosecutor’s offices. Under the new laws, deputy managers in courts and prosecutor’s offices are appointed by the relevant judicial council, upon the proposal of the court president or the head of the prosecutor’s office. Stakeholders have raised concerns that such a system risks concentrating the decision-making power in the hands of the head of the court or prosecutor’s office.  

Furthermore, the Romanian legislation (law no. 304/2002 on judicial organisation) provides that the prosecutor general may overrule, in writing, decisions taken by any lower prosecutor when they deem that the decision is unlawful or unfounded.  The Venice Commission recommended that the prosecutor general not be able to bypass the prosecutorial hierarchy when finding prosecutorial measures unlawful or unfounded. It said that such a finding should be passed down through the hierarchy of prosecutors. 

Concerns regarding distortion of judicial accountability are related to (a) regime of disciplinary liability; (b) the regime of criminal liability; and (c) the regime of civil liability. Each of these will be discussed below in detail. 

The first concern involves the role of the Judicial Inspectorate, a disciplinary body functioning within the internal structure of the Superior Council of the Magistracy. While the Inspectorate starts disciplinary actions, the respective sections of the Council decide on the imposition of disciplinary responsibility. Those decisions can then be appealed to the High Court of Cassation and Justice. 

Academics have claimed that that Judicial Inspectorate had been politically captured through the concentration of considerable power in the hands of the chief inspector and politically-motivated appointments to the Inspectorate. According to this commentary, once the government reinstated the Chief Inspector in office, the latter engaged in targeted disciplinary investigations against judges that had criticised the judicial reforms. In some instances, the Council upheld disciplinary sanctions proposed by the Inspector. Some of these sanctions, however, were annulled by the High Court; one removal from office was found by the ECtHR to violate the right of access to a court (Camelia Bogdan v Romania), and another to violate both the right to a fair trial and freedom of expression (Kövesi v Romania) 

According to the European Commission, there have been cases where disciplinary investigations appeared to be linked to the voicing of critical opinions on the rule of law. The CJEU indicated in its 11 May 2023 ruling that a disciplinary regime must avoid any appearance of political control of judicial activity. Such a requirement applies not only to the rules governing the procedure for appointment to management positions within a body competent to conduct investigations and to bring disciplinary proceedings, but also, more broadly, to all the rules governing the organisation and operation of that body. Such rules may prevent or, on the contrary, encourage disciplinary action, with the object or effect of exerting pressure on judges or of ensuring political control over their activity.  

With regard to the regime of judicial discipline in Romania, the CJEU noted that the concentration of substantial powers in the hands of the chief inspector could give them, in practice, broad discretion in whether to bring disciplinary proceedings against judges, and facilitate the use of the disciplinary regime to exert pressure on or establish political control over judicial activity. The Court pointed out that the safeguards legislation may provide to prevent misuse of powers by the chief inspector, or lack thereof, were particularly important. It was a matter of concern that disciplinary action for abuse could be initiated against the chief inspector by an inspector whose career depended to a large extent on the decisions of the chief inspector. Also, the decisions related to the chief inspector could be reviewed by the deputy chief inspector, who had been appointed by the chief inspector.

The law on the Superior Council of Magistracy adopted in October 2022 amended the legislative framework related to the Judicial Inspectorate. It includes several provisions to remedy the lack of accountability of the Judicial Inspectorate and the concentration of power in the hands of the chief inspector. The powers of the chief inspector are balanced by a newly introduced board, with a series of powers to ensure it is an adequate counterweight. The board’s role covers decisions on the organisation and operation of the Judicial Inspectorate, the performance of inspection activities, and appointment competitions. The appointment of the deputy chief inspector passed from the hands of the chief inspector to the plenum of the Judicial Council, based on more objective criteria. Similarly, the judicial inspectors are appointed by the chief inspector, on the basis of a competition organised by the relevant Supreme Council of Magistracy section, with the support of the National Institute of Magistracy. This competition was previously run by the Judicial Inspectorate itself. The rules on the organisation of the competitions were clarified, including as regards the selection criteria and the composition of the selection panels. New rules have been introduced to regulate any situations of conflict of interests faced by a chief inspector, who now proposes the composition of the monitoring teams to the management board (instead of the chief inspector deciding directly).  

The new legislation gives stronger powers to the Judicial Council over the appointment of chief and deputy chief inspectors, and involves the National Institute of Magistracy in the competitions for entering the Judicial Inspectorate. The revocation procedure for the chief inspector has also been altered, from a requirement for a decision from the full Supreme Council of Magistracy plenary to initiation by five Council members or by the General Assembly of the Judicial Inspectorate. The resulting balance between considerations of independence, accountability, and stability in the leadership of the Judicial Inspectorate will have to continue to be monitored in practice.   

As highlighted in the European Commission’s 2022 Report on Progress in Romania under the Cooperation and Verification Mechanism, a remaining concern relates to the possibility for the chief inspector to overrule a decision to dismiss a case, or any decision taken by an inspector following a preliminary investigation. The application of this rule in practice and the effectiveness of the existing safeguards will need to be monitored.  

The new leadership of the Judicial Inspectorate now has the opportunity to ensure that disciplinary investigations are no longer used as instruments to exert pressure on the activity of judges and prosecutors, in line with the case law of the CJEU.   

National judges still claim that, although some of the reforms might look good on paper, new legislation has not prevented the Judicial Inspectorate from harassing them in practice, and getting them dismissed for objecting to legislative amendments related to the justice system. 

The reform of the criminal liability regime for magistrates has been another contentious issue. Until 2017, the National Anti-Corruption Directorate, a specialised body established in 2004 as a pre-condition for Romania’s accession to the EU, investigated magistrates. In October 2018, Romania established a special section within the Public Prosecutor’s Office with exclusive competence to conduct investigations into offences committed by judges and prosecutors (the Special Section for the Investigation of Offences in the Judiciary, or SIIJ). This newly created entity took this role over from the National Anticorruption Directorate (DNA). This was contrary to the recommendations in an opinion from the Venice Commission. The Commission’s October 2018 opinion warned that the establishment of the SIIJ would undermine the independence of judges and prosecutors, as well as public confidence in the criminal justice system. The Commission saw the possible re-routing of high-profile cases of corruption pending before the DNA as a major risk, and suggested that such a move would undermine the DNA’s anti-corruption work and the DNA as an institution. While acknowledging that “the choice of means for fighting against offences belongs to the national legislator”, the Commission expressed fear that the new structure would serve as an instrument to intimidate and put pressure on judges.  

In its 2018 Report under the Cooperation and Verification Mechanism, the European Commission similarly concluded that “the new structure could be more vulnerable in terms of independence than has been the case so far with the DNA, as it could be used as an additional instrument to intimidate and put pressure on magistrates.” The report added that “in addition, a generalist department dealing with all crimes by magistrates, it will also lack expertise in terms of investigating specific corruption crimes.” 

On 18 May 2021, at the request of a Romanian court under the preliminary reference procedure, the CJEU issued a ruling on the compatibility with EU law of the legislation establishing the SIIJ. The CJEU laid down a number of criteria for assessing the compatibility of such legislation. It noted that, in order to be compatible with EU law, such legislation must be justified by objective and verifiable requirements relating to the sound administration of justice, must provide guarantees ensuring that those criminal proceedings cannot be used as a system of political control over the activity of those judges and prosecutors, and must fully safeguard the rights enshrined in Articles 47 (the right to an effective remedy and a fair trial) and 48 (the presumption of innocence and right to defense) of the EU Charter of Fundamental Rights. After identifying a number of possible concerns with regard to the fulfilment of these criteria in the present case, the CJEU left the ultimate assessment to the referring courts. Soon after, on 7 June 2021, the Pitești Court of Appeal declared that the SIIJ’s existence was not justified by objective and verifiable requirements related to the sound administration of justice, and that it was not competent to investigate a case brought before it.  

The SIIJ did not function effectively. In its three years of existence, it solved 2,000 of the 9,651 cases it had to solve, and had sent only seven cases to court. It was eventually dissolved in March 2022. In view of the claims regarding the underperformance of this body, and also reports about pressure on judges and prosecutors, the dismantling of the SIIJ may have been viewed as adequate follow up to the CJEU ruling. There are questions, however, as to whether the structure that replaced the SIIJ fulfils the requirements of EU law any better.  

The respective law (Law No. 49/2022) was adopted in February 2022, signed by the president of Romania on 11 March 2022, and entered into force a few days thereafter. Under this new law, the SIIJ’s competences were taken over by non-specialised prosecutors from prosecutor’s offices attached to the High Court of Cassation and the Courts of Appeals. The Romanian legislature adopted this law without waiting for the opinion of the Venice Commission. A major issue for the Venice Commission was that the new law did not re-establish the competences of National Anti-Corruption Directorate (DNA) as regards corruption offences committed by judges and prosecutors. The opinion of the Commission, from March 21 2022, suggests that non-specialised prosecutors replacing the SIIJ would not be better placed to investigate allegations of corruption by judges and prosecutors than the existing specialised prosecution service, the DNA. The Commission saw the DNA as superior to this new structure in terms of functional independence, specialisation, experience, and technical means at its disposal. It recommended restoring the competences of the specialised prosecution service to also investigate and prosecute offences committed by judges and prosecutors within its remit. The Romanian authorities not only failed to wait for the Venice Commission’s recommendations, and replaced the SIIJ with a new mechanism that arguably lacks autonomy and the capacity to adequately investigate and prosecute corruption, but also proceeded to appoint several prosecutors in line with Law No. 49/2022 to conduct investigations, including for cases of alleged corruption by judges and prosecutors. These prosecutors have to deal with corruption in the judiciary in addition to their other, ordinary tasks.  

The European Commission indicated in its 2023 Rule of Law Report that the new system established to investigate offences committed by judges and prosecutors functioned without procedural incidents. However, designated prosecutors were still dealing with a significant backlog of cases reassigned from the former structure. The Commission noted that it would be important to monitor the functioning of the new system over time, especially in the absence of additional safeguards against the use of the mechanism to exert political control. The Commission also warned that the designated prosecutors had not yet issued any indictments, and that the new system would have to show its ability to deal efficiently with corruption within the judiciary.  

In a decision issued on 24 November 2022, the Pitești Court of Appeal referred two preliminary questions to the Court of Justice of the European Union, the second of which concerns the compatibility of the new system of investigation of offences committed by judges and prosecutors with EU law, as a result of the dismantling of the famous Special Section (SIOJ). 

Regarding the civil liability regime for magistrates, it was affected by 2017-2019 reforms through the increased role of the executive in starting civil liability actions and the absence of adequate hearing rights of the judge under investigation during the establishment of the judicial errors. 

As highlighted by the European Commission, despite continued efforts to improve the situation, the increasing shortage of magistrates is generating serious concerns, as it could impact the quality and efficiency of the judiciary over time. Following an unprecedented number of retirements requested by magistrates over the last year, the situation of human resources in the justice system has worsened overall, and has become critical in some courts and prosecution services. 

The European Commission reported improvement in terms of length of proceedings. At this point, however, Romania remains under enhanced supervision by the Committee of Ministers for the excessive length of civil and criminal proceedings, and lack of effective remedy in this respect. The latest assessment took place in 2016. In June 2023, the authorities submitted additional information on general measures implemented, especially as regards the impact of the legislative reform aimed at preventing the excessive length of civil and criminal proceedings. This information is currently under assessment. 

In its 2011-2012 jurisprudence, the Romanian Constitutional Court recognised the Decision on Cooperation and Verification Mechanism and the reports of the European Commission reports monitoring Romania’s progress on the rule of law under this mechanism as legally binding and as standard  for assessing the constitutionality of laws regarding the justice system. The Court changed its position in 2018, after its composition changed. It concluded that the above-mentioned decision could not be a reference point for a review of the constitutionality of the justice reform, in that it did not fulfil the requirements of a directly effective and legally binding provision, but merely constituted a “recommendation”. The Constitutional Court eventually ended up upholding many controversial aspects of the judicial reform, including the establishment of the Special Section for the Investigation of Offences in the Judiciary, or SIIJ. 

With its 8 June 2021 decision, the Constitutional Court challenged the authority of the Court of Justice of the European Union (CJEU) and the primacy of EU law. In response to the 18 May 2021 judgment of the CJEU, on 8 June 2021 the Constitutional Court issued its decision no. 390. Despite the CJEU’s suggestion to the contrary, the Constitutional Court insisted that the section within the Prosecutor’s Office investigating judges was in conformity with the Constitution, dismissing the concern that the section could be perceived as an instrument for the pressuring and intimidation of judges. With this decision, the Constitutional Court precluded national judges from applying the CJEU prescriptions if they conflicted with its rulings. It insisted that the EU law had no primacy over the Constitution, and that national courts did not have the power to disregard national law provisions contradicting EU law if these provisions had already been declared constitutional. As a result, judges faced a choice between respecting EU court rulings or Constitutional Court decisions. If they chose the former, they could be subject to disciplinary sanctions. This hindered national courts’ application of EU law, and undermined effective cooperation with the EU Court. In the same ruling, the Constitutional Court accepted that Romania cannot adopt a piece of legislation contrary to its obligations as a Member State of the EU, but suggested that this prohibition would have “a constitutional limit based on the concept of national constitutional identity”. The Court has not, however, defined this concept of national constitutional identity.  

In a press release on 23 December 2021, the Constitutional Court refused to accept the judgment of the CJEU, delivered on 21 of December 2021, in the joined cases C-357/19, Euro Box Promotion and Others, C-379/19, DNA – Serviciul Teritorial Oradea, C-547/19, Asociația Forumul Judecătorilor din România, C-811/19, FQ and Others, and C-840/19, NC. It argued that the conclusions of the CJEU ruling – that the effects of the principle of the primacy of EU law apply to all organs of a Member State, without national provisions, including those of a constitutional nature, being able to hinder this, and according to which national courts are obliged not to apply any national legislation or practice contrary to a provision of EU law – could have effect only after a revision of the Constitution.  

As of June 2023, the Constitutional Court had not formally revised its initial decision. 

In December 2022, Romania removed the provisions allowing the imposition of disciplinary sanctions on judges for non-compliance with Constitutional Court decisions contravening the EU law. However, the Constitutional Court’s interpretation of those changes still leaves room for the imposition of such measures on judges. In its decision no. 520/2022, the Constitutional Court ruled that the failure to comply with its decisions could still count as a disciplinary offence and lead to disciplinary liability for the judge, if it was demonstrated that they had exercised their office in bad faith or with gross negligence. This interpretation was linked to Art. 147 of the Constitution, which establishes the binding character of Constitutional Court rulings. Based on this interpretation of the Law no. 303/2022, not every failure to comply with Constitutional Court rulings would be sanctioned, but some could be. 

The Association for the Defense of Human Rights in Romania (APADOR-H) has been skeptical about the total elimination of non-compliance with Constitutional Court rulings as a disciplinary offence, as this would endanger respect for Constitutional Court decisions. It leaned towards the middle-way solution of keeping the offense and re-defining it in cases of conflict between Constitutional court and CJEU decisions, allowing the courts to give priority to the latter.