The appointment of top prosecutors in Romania: minimizing the role of the judiciary

In Romania, the appointment of top prosecutors is still one of the main competences of the executive power. The legislative procedure in force, which is incomplete and essentially devoid of meritocracy, has required the advice of international experts, such as the Venice Commission, to strengthen the role of the body representing the judiciary, but has also received overwhelming criticism from the European Commission under the Cooperation and Verification Mechanism.

The role of the Superior Council of Magistracy is minimized, despite the recent opinions and reports of the relevant international entities regarding the importance of establishing guarantees for the independence and impartiality of the judiciary, as well as for transparent and depoliticized methods of appointment of judges.

This article will analyse the current situation and the recent changes that have been made by the Romanian legislator, while also mentioning the criticisms of the international and European institutions, the pending cases before the CJEU regarding the rule of law and the needs for further improvements.

Current situation and the recent changes that have been made by the Romanian legislator

In the context of Romania’s accession to the European Union, the judiciary of the former communist country claimed that it had changed and was aligned to those of the democratic countries of Western Europe. On the one hand, there are definitely positive signs: for instance, many young magistrates have entered the judicial system, the National Anticorruption Directorate (DNA) has consistently had serious results, and hundreds of corrupt politicians and magistrates have already been finally sentenced. On the other hand, though, the Cooperation and Verification Mechanism (CVM), which is a transitional measure set up by the European Commission to assist Romania (and Bulgaria) in achieving specific benchmarks in the areas of judicial reform and the fight against corruption, has still not been lifted 13 years after Romania joined the European Union, and the assault against those who fight the scourge of corruption still seems to be in full swing.

During 2017-2018, three extensive amendments were adopted to the generic laws called “justice” laws. These laws have been extremely harmful to the magistracy and were harshly criticized by the Venice Commission, respectively by GRECO.

Among other things, a new Section for the Investigation of the Judiciary Offences was established as part of the Prosecutor’s Office attached to the High Court of Cassation and Justice, which allows to transfer dozens of files of high-level corruption on the dockets of the DNA on the basis of fictitious complaints against a judge or a prosecutor investigating those cases, thereby destroying a significant volume of the DNA’s activity despite the fact that it was so positively appreciated by CVM Reports. In 2019, this new special section started investigations against the former chief-prosecutor of the DNA, Ms. Laura Codruța Kövesi, who had earlier applied for the position of chief-European prosecutor. Ms. Kövesi, who had gained support from various European countries as well as political groups of the European Parliament, was summoned at the section days before her first hearing in Brussels. A few days later, the High Court of Cassation and Justice invalidated the measures taken by the newly created section.

Another amendment introduced the possibility for retirement of the Romanian judges or prosecutors who have 20 to 25 years of seniority in the magistracy, even before reaching the age of 60. As a result, retirement of the judges of prosecutors shall be possible at the age of 42-43.

Furthermore, as regards the procedures for appointing top prosecutors in Romania, under Art. 54, para. (1) and (2) of Law No. 303/2004 regarding the status of judges and prosecutors, the General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice, their First Deputy and Deputy, the Chief Prosecutor of the National Anticorruption Directorate, their deputies, the Chief Prosecutor of the Directorate for the Investigation of Organized Crime and Terrorism Offenses (DIICOT), their deputies, and the prosecutors heads of divisions of these prosecutor’s offices, are appointed by the President of Romania, at the proposal of the Minister of Justice, with the approval of the Section for Prosecutors of the Superior Council of Magistracy (SCM). They shall possess at least 15 years of experience as judge or prosecutor and will be appointed for a period of 3 years, with the possibility of re-appointment only once. The Minister of Justice organizes a selection procedure, based on an interview, during which the candidates present a project regarding the exercise of the specific duties of the management position for which they have applied. In order to ensure transparency, the interview of the candidates is broadcasted live, audio and video, on the website of the Ministry of Justice, is recorded and published on the website of the Ministry. The Amendments to the Law on the Statute of Judges and Prosecutors prescribe that the President of Romania may refuse only once an appointment, providing reasons for such a refusal. When the Minister of Justice proposes a second candidate, the President is bound to appoint this person, even in the case of a negative opinion of the SCM.

Last but not least, the liability procedure against judges and prosecutors involves two new key actors since 2017-2018: the Ministry of Public Finance and the Judicial Inspection  (an independent entity that is part of the SCM). The decisive role of the Ministry of Public Finance, which cannot be the most appropriate body to assess the existence and causes of a judicial error, is questionable. It is the Ministry that decides whether to file an action for recovery or not, based on its own evaluation and the consultative report of the Judicial Inspection, which carries out preliminary investigations and the disciplinary actions against judges and prosecutors.

Critics of the international and European institutions

The Venice Commission, by Opinion No. 924/20 October 2018, CDL-AD(2018)017-e, recommended the effective involvement of the prosecutorial council in the procedures for appointing top prosecutors, a guarantee of neutrality and professional, non-political expertise. In its turn, by the CVM Report of 15 November 2017, the European Commission requested to “put in practice a robust and independent system of appointing top prosecutors, based on clear and transparent criteria, drawing on the support of the Venice Commission” (CVM report, p.3). In particular, the Venice Commission had recommended to review Art. 132, para. (1) of the Constitution of Romania and to amend Law No. 303/2004, so that the SCM opinion would become binding (Venice Commission opinion, para. 60). By the CVM Report of 13 November 2018, the European Commission expressly requested to “respect the negative opinions of SCM on appointments or dismissals of prosecutors at managerial posts, until such time as a new legislative framework is in place” (CVM report, p.18).

The recommendations and requirements contained in the reports presented by the European Commission, under Art. 2 of Decision 2006/928 establishing a mechanism for cooperation and verification of progress made by Romania to address specific benchmarks in the areas of judicial system reform and the fight against corruption, are aimed at fulfilling the benchmarks, which is a result obligation for Romania. The CVM reports are built around these benchmarks that Romania must fulfil, making a common body with the Decision 2006/928, entailing concrete and precise obligations and commitments. Therefore, the recommendations made by the Commission for fulfilling the benchmarks, based on the principle of loyal cooperation, provided by Art. 4, para. 3 of the Treaty on the European Union, must be taken into consideration by the Romanian authorities. They require not only concrete measures to meet the benchmarks set out in the Annex of Decision 2006/928/EC, but also for the Romanian authorities to abstain from any measure likely to infringe or endanger their fulfilment.

Under the pressure of the Romanian magistrates and of the European Commission’s reports, the implementation of the provisions allowing the early retirement of judges and prosecutors, after only 20 years of activity in the judiciary, which were likely to massively depopulate the judiciary, was postponed. However, we are witnessing a lack of any real political will for minimum compliance with the rule of law, as the Parliament of Romania has made no progress with the enactment of legislation abolishing the Section for the Investigation of Criminal Offences in the Judiciary, reviewing the system of appointment and dismissal of top prosecutors and limiting the role of the Minister of Justice in these procedures, repealing the restrictions on the freedom of expression, materialized in the obligation for judges and prosecutors to abstain from any “defamatory manifestation or expression in relation to the other powers of the State” (Opinion of the Consultative Council of European Judges of 25 April 2019, para. 55-65), reviewing the rules on the personal liability of judges, which lack the minimum guarantees for the independence of the judiciary, or reorganizing the Judicial Inspection, by reconsidering the role and duties of the Chief Inspector.

Pending cases before the CJEU regarding the Rule of law

However, the content, the nature and the temporal scope of the Mechanism for Cooperation and Verification are to be interpreted by the Court of Justice of the European Union (CJEU), in the joined cases C-83/19, C-127/19, C-195/19, Asociația Forumul Judecătorilor din România și alții, in which the hearings took place on 20 and 21 January 2020.

Similar to the deteriorating situation of the rule of law and the reform of the judicial system in Poland, in relation to which the CJEU has already delivered several solutions of principle, Romanian courts have also referred several questions to the CJEU (in most cases, at the request of the Romanian Judges’ Forum Association concerning the interpretation of the EU law in the context of recent legislative amendments or Constitutional Court decisions. In particular, these questions regard:

• the interpretation of the content, nature and temporal scope of the CVM,
• the obligation of Member States to establish the necessary measures for an effective legal protection in the areas regulated by the Union law, namely guarantees of an independent disciplinary procedure for Romanian judges in order to remove any risk of political influence on disciplinary procedures (such as direct Government appointment of the management of the Judicial Inspection, by Romanian Government even provisionally, or the establishment and organization of the Section for Investigating Criminal Offences within the Judiciary, within the Prosecutor’s Office attached to the High Court of Cassation and Justice, and the possibility of indirectly exerting pressure on the judges and prosecutors).

Last procedure regarding appointment of top prosecutors in Romania

In December 2019, arguing the need to appoint managers with full mandates at the head of the prosecutor’s offices, given the relatively long period of delegating general prosecutors or prosecutors heads of the DNA and DIICOT to the position (2018-2019), the Minister of Justice initiated an ad hoc procedure of interviews, on the basis of which three candidates was proposed to the President of Romania (one for the General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice, one for the Chief Prosecutor of the National Anticorruption Directorate and one for the Chief Prosecutor of the Directorate for the Investigation of Organized Crime and Terrorism Offences).

Despite the negative opinions given by the Section for Prosecutors of the SCM, the President of Romania disregarded the European Commission’s reports issued under CVM regarding the need to “respect” these opinions. In supporting his decision to appoint the candidates who had received negative opinions, the President of Romania stated the following: ”I consider the three candidates very good. The SCM opinion seemed to me, in part, quite superficial”.

Such attitudes, consisting in minimizing the role of the bodies chosen by magistrates to manage the judiciary, but especially the opinions of the Venice Commission or the CVM reports, are not new in the Romanian society, but have become axiomatic of the recent period and have been encouraged by some decisions of the Constitutional Court of Romania. For instance, in 2018, the President of Romania initially refused to revoke the Chief Prosecutor of the National Anticorruption Directorate, Ms. Laura-Codruța Kövesi, but a Constitutional Court decision forced him to do so, stating that the President can only verify the legality, not the arguments that lead to the proposal of Ministry of Justice, despite the negative opinion of the SCM. Furthermore, by Decision No. 104/2018, the Constitutional Court qualified CVM as “constitutionally irrelevant”, and in Decision No. 358/2018 it expressly found that:

“the opinion provided by the Venice Commission cannot be used in the examination of constitutionality. The recommendations made by the international forum could have been useful to the legislator, in the parliamentary procedure for drafting or amending the legislative framework, the Constitutional Court being empowered to carry out a review of the compliance of the regulatory document adopted by the Parliament with the Fundamental Law, and not to verify the opportunity of one legislative solution or another, aspects that fall within the discretion of the legislator, within its policy regarding the laws of justice.” (para. 30).

Conclusions

In Romania the appointment and the dismissal of the top prosecutors depend still on the exclusive discretion of the Minister of Justice. The President of Romania may refuse only once an appointment and may never refuse a dismissal. Politically controlled appointments/dismissals to the top positions in the prosecutor’s offices are likely to cause the prosecutors’ increased vulnerability and dependence on the political class.

In this context, without the monitoring of the European Commission, it seems that the chances for Romania to create and implement a legislative framework that establishes guarantees for the independence and impartiality of the judiciary, respectively transparent and depoliticized methods of appointment/dismissal to positions in the judicial system, especially in big prosecutor’s offices, are illusory.

The first solutions of the Court of Justice of the European Union are expected at the earliest in the summer of 2020, and may cause, vertically, the review of some legislative solutions, in line with the European Commission’s requirements under the Cooperation and Verification Mechanism, not only in matters where the Court of Justice was referred to, but also on other issues, for example, the meritocratic promotion of judges and prosecutors during their career.

While there is the obligation to comply with the minimum principles of the rule of law, regardless of the ruling political party, it seems this is hardly becoming a custom in the former communist area.