Romania’s 10-year progress in streamlining judicial practice and independence will be wiped out if the government’s amendments to the basic laws on the functioning of the judiciary are endorsed by parliament, President Klaus Iohannis stated on August 23. This will mean the European Union will maintain for a long time the Cooperation and Verification Mechanism over Romania, he claimed.
Iohannis' comments are a reaction to the Ministry of Justice's draft amendments to laws 303/2004 (on the prosecutors’ statute), 304/2004 (on judiciary organisation) and 317/2004 (on the magistrates’ body CSM).
While some of the proposed amendments address real public concerns (such as judges' accountability for their decisions), the president said the government's plans need more public debate and their quick endorsement would give rise to major criticism from the European Commission, which is still monitoring Romania's judicial reforms under the Cooperation and Verification Mechanism.
The ruling majority's very weak credibility on judicial issues, after its attempts to weaken the anti-corruption legislation in February, mean any proposal in this area is likely to spark heated public debate. A small number of protesters gathered in front of the government building after President Iohannis had criticised the bills.
Iohannis particularly questioned the proposed mechanism for the appointment of head prosecutors (head prosecutor and head anti-corruption prosecutor) and of the directorate for investigation of organised crime DIICOT. While currently the appointment is made by the president at the recommendation of the ministry and endorsed by the CSM, under the revised regulation the appointment is made by CSM at the recommendation of the ministry.
Other criticisms expressed by Iohannis concern judges’ material (financial) liability in case of judicial errors and the control exerted by higher prosecutors over the activity of prosecutors – both measures resulting in reduced independence of prosecutors. The new body proposed to assess the misconduct of prosecutors is also questioned by Iohannis, since the new body’s activity would overlap the functions of other bodies, primarily the National Anti-corruption Directorate.
President Iohannis urged more public debates on the proposed amendments and more consultation with magistrates.
When announcing the plans to amend the three key laws on the functioning of the judiciary, Justice Minister Tudorel Toader stressed that the amendments are not about weakening judiciary practice – such as pardoning or disincriminating the abuse of office, two very delicate topics on the public agenda given the government’s past attempts in this regard earlier this year.
Toader introduced the amendments by mentioning a real concern in public debates: namely, the responsibility of prosecutors and judges for committing errors. Romania has frequently lost cases in the European Court of Human Rights for such errors. Separately, the contradictory rulings issued by courts in similar or even the same case has been constantly questioned as well.
Toader stressed the need for a law on judicial responsibility, aimed at making magistrates accountable for their conduct. Under the existing law, the state is entitled to sue the magistrates for their deeds (after covering the damage created by the magistrate) but in fact the state has never sued the magistrates for technical reasons. Under the proposed law, the state will take legal steps toward making magistrates liable in case of errors, Toader commented.
As regards the superior prosecutors’ right to cancel the decisions of lower prosecutors, Toader explained that the new law only extends the grounds from procedural grounds to reasons related to the case. Under the proposed regulations, a superior prosecutor can cancel inferior prosecutors’ decisions (to indict or not, for instance) if he finds the decision wrong. Under existing law, he can cancel the decision only if the lower prosecutor breached the procedures.