A Response to the European Commission Consultation on Rule of Law in the EU

11.05.2020
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Romania situation – The Association for the Defence of Human Rights – the Helsinki Committee (APADOR-CH)

This contribution is a response to the European Commission’s consultation feed into its first Annual Rule of Law Report.

Justice system

Independence

Allocation of cases in courts

In Romania, cases are randomly allotted through an online informatics system, named ECRIS. Each judge or panel of judges is randomly allotted a certain number of cases by matching the object of the file with the specialization of the judge/panel of judges. Other criteria for the allotment are the degree of difficulty of the court session and the number of cases allotted per session.

By combining the two criteria, the degree of difficulty of the court session and the number of cases allotted per session, the result is that in some cases one judge/panel of judges is allotted few cases which are deemed by the system to be more difficult, while in other cases, a judge/panel of judges are allotted an excessive number of lower-difficulty cases.

The solution to prevent such inadequate situations is to implement hourly intervals within each court session, to increase the overall number of judges and to create more locative facilities for court sessions, since the main obstacle in establishing a court session is the lack of proper available room in which a session may be duly held.

Independence and powers of the body tasked with safeguarding the independence of the judiciary

Although the independence and the powers of the Romanian Council for the Judiciary do not seem affected from the 2019 legal developments, it is relevant to mention that curent legislation (Law no. 317/2004 regarding the Council for the Judiciary) provides that plenary board meetings of the Council must be held in the presence of 15 of its members, so that quorum requirements are met for legally passing resolutions.

This provision might and was used by certain members of the Council in contradiction with its purpose, by refraining to participate to board meetings so that certain points on the Council’s agenda could not be duly voted and passed.

An example in this respect is the recurent postponement in July 2019 of the Council meetings whose agenda was to appoint the chief prosecutor of the Special Section for the investigation of offences committed by magistrates.

The solution to prevent such cases of unjustifiable postponements of Council’s plenary meetings is to amend the legislative framework for participating in the Council’s Board meeting either by eliminating the mandatory character of such a high presence of the members or by instituting effective sanctions against Board members who in ill-faith and without objective ground refrained from participating to a Board meeting, thus blocking the possibility of discussing the agenda by the rest of the members present.

Accountability of judges and prosecutors, including disciplinary regime and ethical rules

While a judge’s independence is a necessary element for the stability of the justice system, it is not a sufficient requirement for the corect and fair solution of particular cases. Romania has suffered from several ECHR convictions for breaching the obligation to ensure the right to a fair trial.

The breaches emerged from material erors committed by Romanian judges, and a legal framework sanctioning their conduct through a direct obligation to repay damages has yet to be implemented. Nevertheless, the Romanian State is the one who must initially pay these damages to its citizens, without having an effective possibility to recover the damages from the magistrate in default.

As such, in present, judges are not directly liable from a material point of view for judicial erors. However, in compliance with Law no. 303/2004 regulating the status of judges and prosecutors (“Law no. 303/2004”), the Romanian state is obliged to pay the damages. The Romanian Ministry of Public Finances shall alert the Judicial Inspection which shall investigate whether the judicial eror is committed as a result of gross negligence or illfaith.

Based on the report issued by the Judicial Inspection, the Romanian State through the Ministry of Public Finances, may pursue the eroneous magistrate requesting the recovery of material damages in 6 months as of the report of the Judicial Inspection. In practice, the Judicial Inspection’s findings are not sufficient to support the Romanian State’s action against the magistrate.

A solution to limit and prevent as extensively as possible potential judicial erors would be to introduce material accountability directly for the magistrate proven in default. If such an accountability is not a prefered instrument, other solutions may be the extension of the statute of limitation of Romanian State claims for damages against magistrates, since at present, the Romanian State may request damages only after it is obliged in its turn by the ECHR to pay these damages and ECHR trials are known to be lengthy.

Also, a potential solution may be the regulation of the possibility for the Romanian Ministry of Finances to pursue magistrates for the repair of material damages, without the necessity of the Judicial Inspection’s prior disciplinary sanctioning decision or without a criminal ruling attesting the default and the prejudice.

Remuneration/bonuses for judges and prosecutors

Law no. 303/2004 establishes the right for judges and prosecutors to be granted a special pension for their service as magistrates. The value of the magistrate’s pension is roughly 80% of the gross wage plus bonuses received in the month prior to retiring from activity. This value is supported partly from the social insurance budget, based on the magistrate’s contribution to the social system. The largest part of the special pension is supported from the state budget.

In practice, the value of the service pensions computed as described above reaches extremely high amounts (e.g. 3,750 EUR for the medium magistrates’ pension, as per public sources) and can turn out to be even higher than the magistrates’ salary. This situation may lead to a disruption in the public perception of judges and prosecutors, whose special pensions may not be perceived as meritorious due to their extremely high value.

In the first 3 months of 2020, judges and prosecutors in Romania have protested against a legislative initiative aimed to annul their service pensions. A solution to this situation would be to gradually reduce the percentage or the basis on which the service pension is computed, similar to cases of other categories of Romanian citizens who receive a service pension (e.g. policemen).

Independence/autonomy of the prosecution service

Law no. 303/2004 provides that prosecutors are impartial but also establishes hierarchical control and subordination between prosecutors. In practice, there are cases when the prosecutor’s conduct is not effectively controlled by its superior hierarchical prosecutor or the control is aimed to pressure the hierarchical inferior prosecutor.

For example, the indictment (the act by which a criminal case is sent by the prosecutor to the court for the trial) must be confirmed by the hierarchically superior prosecutor who drafted the indictment. To be confirmed, the indictment is examined by the hierarchically superior prosecutor both in terms of legality and in terms of soundness. If the hierarchically superior prosecutor does not confirm the indictment, the file cannot go to court. The possibility of the hierarchical prosecutor to infirm the indictment act may lead to political pressure on the latter, and this concern should be properly addressed within the legal framework.

A solution to prevent ineffective subordination of prosecutors to their hierarchical bodies would be the implementation of an active mechanism for magistrates’ accountability.

Significant developments capable of affecting the perception that the general public has of the independence of the judiciary

In 2019, several events could be interpreted as affecting the perception of the general public with respect to the independence of the judiciary:

• Emergency Ordinances No.7/2019 of 20 February 2019 and No.12/2019 of 5 March 2019 modifying the justice laws, which were criticized by magistrates due to alleged speed of adoption, lack of consultation and unclear rationale behind these emergency ordinances affected the legal certainty and predictability of the judicial process,

• Due to these frequent amendments of the justice laws, in February – March 2019, magistrates united and protested against the manner in which these laws were passed, by suspending the judgement of trial, by publicly protesting on the steps of courts of law or by wearing a distinctive white armband.

• The operation of the Special Section for the investigation of offences committed by magistrates continued to raise questions regarding the legality of its creation, since the Special Section launched investigations against judges and prosecutors who had opposed the curent changes to the judicial system, as well as abrupt changes in the approach followed in pending cases, such as the withdrawal of appeals previously lodged by the DNA in high-level corruption cases. In December 2019, the Ministry of Justice submitted a proposal for the revocation of the Special Section, which was received positively by the Government. However, in lack of a legal initiative detailing the consequences of the envisaged revocation of the Section and considering that the Constitutional Court declared its existence to be in line with the Constitution, it is still unclear whether the Section shall cease to exist entirely, or its attributions shall be amended.

• On 14.10.2019, EU Council confirms Laura Codruţa Kövesi as first European chief prosecutor, after the application of Mrs. Kövesi raised divergent opinions in Romanian justice and political system. Controversies stemmed from her dismissal by President Klaus Iohannis following a decision of the Constitutional Court stating that he can only verify the legality of the Ministry of Justice’s proposal for the dismissal, not the arguments that lead to the proposal. Also, in 2019, prior to the appointment as European chief prosecutor, the Special Section for the investigation of offences committed by magistrates publicly announced that Mrs. Kovesi is curently investigated in several criminal files.

Positive aspects were also registered within the public mindset, through the results of the Referendum in May 2019, called by the President of Romania, in which an overwhelming majority of Romanian citizens supported propositions to strengthen the safeguards against corruption and the arbitrary use of emergency ordinances.

 Quality of justice

Accessibility of courts

With respect to court fees, the amounts and the procedures established for requesting facilities for the payment of these court fees do not raise any issues of accessibility. However, the legal fees for the court appointed attorney are derisory and this circumstance may affect the quality of legal assistance provided by the public defender and subsequently, the accessibility to effective legal representation by the attorney.

A Protocol between the Ministry of Justice, the Public Ministry and the National Association of the Romanian Bar establishing public attorney fees has been adopted in February 2019. Although the adoption of this instrument was welcomed, in practice the matter of the low public defender fees is yet to be resolved, since the courts do not take into consideration the fees mentioned in the Protocol. Procedural laws allow judges to censor the court appointed attorney’s fees, without having to observe the minimal fees set out through the Protocol, since such Protocol is not binding and opposable to magistrates as a law would be.

Another matter related to the legal fees is the fact that the latter are usually paid with a certain delay, which can also lead disruptions in the quality of the legal representation. Solutions for these matters would be to enforce mandatory legal provisions establishing minimum attorney fees for public defenders, which are paid within 30 days as of the date when the legal services were performed.

 Resources of the judiciary

Considering the potential threat perceived by magistrates with respect to the abrogation of their service pensions, a large number of magistrates files requests for early retirement. In the near future, this circumstance determines a reduced number of magistrates per court, while the number of cases remains the same, thus leading to an overload of cases per magistrate.

In December 2019, Romanian Parliament voted that the anticipated retirement is postponed until January 2022, in order to prevent judicial system to be overwhelmed due to the lack of magistrates. This measure alone does not suffice and it is recommendable use this period of time to organize several competitions for the occupancy of positions as judges and prosecutors so that human resources at the court’s level are ensured once the magistrates are allowed to enter early retirement.

Use of assessment tools and standards

With respect to ICT systems, Romanian courts have recently adopted certain digitalization measures, including the implementation of the digital file at higher courts, by independently creating the software for the digital file where the court documents are stored. The digital file is considered to be a success, but the downside is that it can only function for newly registered claims, since the scanning capacity of physical documents is extremely limited. As such, financial resources should be increased so that the progress of Romanian court through technology is higher and allows courts to address curent needs of citizens and even of magistrates.

Romanian courts receive funding from the Ministry of Justice so a solution would be the increase of these funds and the implementation of a national technology scheme which would allow all courts to benefit from modern scanning equipment, from modern computers and would also provide that each judge has its own electronic signature (at present, there is only one electronic signature per court).

In Romania there is no method of monitoring and evaluating the quality of justice and assessing the results of the act of justice. A solution to create such a tool would be that the Council of the Judiciary caries out an annual report assessing the quality of justice in Romania, based on accurate feedback provided by citizens benefiting from the justice system.

Other issues related to the quality of justice

A proposal for the increase of the quality of the act of justice is to adopt mandatory rules obliging law offices with more than 50 attorneys to perform pro-bono legal services for a a limited number of hours per year. This could lead to a higher involvement of attorneys in corporate responsibility programs and would increase the overall quality of legal services, considering the vast experience, skills and know-how which attorneys may provide for free to those in need.

Efficiency of the justice system

Length of proceedings

Through the adoption of the New Romanian Civil Procedure Code in February 2013 and through the adoption of the New Romanian Criminal Procedural Code in February 2014, the length of proceedings has been substantially reduced and should be, at least in theory, somewhat predictable. However, in practice, the length of proceedings in certain types of trials is more than excessive.

For example, in April 2020 the High Court of Cassation and Justice established a first hearing in a recourse against a public administration’s decision in March 2022, approximately 2 years after the date of submission of the recourse. The extensive length of these proceedings is explained by magistrates as being caused by insufficient personal, a high burden of cases per magistrate and scarce court resources, such as rooms for trials and for hearings. Therefore, a solution for limiting the situations when the length of proceedings is excessive is to increase the number of judges and to allocate proper locative resource to courts, including ICT equipment for long distance hearings.

Enforcement of judgements

In practice, citizens face the problem of the extensive time for motivating the court’s decision. The delay in motivating and communicating the ruling impacts the enforcement of judgements, especially if the defendant enters insolvency proceedings until the final decision is drafted, since a ruling can only be enforced once its motivation is drafted and duly communicated to the trial parties.

A solution would be for the legislator to adopt sanctions for the judge’s non-observance of the obligation to draft the motivated ruling within a limited period of time.

Anti-corruption framework

Prevention

Integrity framework

Lawyers’ situation Pursuant to Anti Money-Laundering Law no. 129/2019, attorneys are obliged to inform the national body established by law with respect to any potential information related to money laundering activities. However, point. 39 of Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terorist financing states that “Member States should have the possibility to designate an appropriate self-regulatory body as the authority to be informed in the first instance instead of the FIU.

In accordance with the case-law of the European Court of Human Rights, a system of first instance reporting to a self-regulatory body constitutes an important safeguard for upholding the protection of fundamental rights as concerns the reporting obligations applicable to lawyers. Member States should provide for the means and manner by which to achieve the protection of professional secrecy, confidentiality and privacy”.

Considering that lawyers have professional secrecy obligations (imposed by law and enshrined by the ECHR case-law-Michaud, req. n°12323/11) with respect to disclosing suspicious transactions and that they are part of a self-regulatory body, lawyers should address their suspicions to the President of the Bar who acts as a filter. Consequently, the provisions of Law no. 129/2019 may be interpreted as conflicting with the European acquis and it is recommendable to amend them, so that lawyers may disclose the information provided by Law no. 129/2019 to their self-regulatory body.

NGOs’ situation

Law no. 129/2019 also raises difficulties for NGOs, given its unclear provision regarding whether associations must also provide information regarding the real beneficiary, even though they are not administering and distributing funds.

Also, Law no. 129/2019 contains ambiguous provisions regarding the concept of real beneficiary, applied particularly to associations which do not administer funds. In particular, Law no. 129/2019 places NGOs in the same category of financial risk and under the same due diligence obligations towards partners or individuals as providers of gambling services or banking institutions without any previous risk assessment.

Under Law no. 129/2019, NGOs are required to communicate to the Government the personal data of their beneficiaries, which could include the personal data of abuse victims, journalists or other vulnerable individuals. In case of non-compliance, the organization may be dissolved.

A solution for the above is to amend Law no. 129/2019, so that the legislator clarifies if the category of entities obliged to provide information regarding the real beneficiary includes NGOs who do not administer funds. Also, Law no. 129/2019 should comprise an accurate definition of the real beneficiary which applies in the case of NGOs who do not administer funds.

Measures in place to ensure whistle-blower protection and encourage reporting of corruption

In 2004, Romania became the first European country to adopt a Whistle-blowers Law (Law no. 571/2004) as part of national anti-corruption measures in public administration. 15 years after the adoption of the law, the general conclusions of the monitoring of the implementation of the National Anticorruption Strategy 2016-2020 indicate that whistle-blowers are a vulnerable category to abuses by the authorities because there is no effective national protection system.

Romania was convicted at the ECHR for such a practice in 2013. ECHR found the lack of effective protection of whistle-blowers in the case of APADOR-CH Bucur and Toma v. Romania. In essence, the Court held that the applicant had been unjustifiably convicted of disclosing the information, considering that there was a public disclosing of law breaching based on good faith. The Court notes that the general interest in disclosing illicit acts committed within the institution is more important than the interest in maintaining public confidence in the institution. The Court also notes that the domestic courts convicted the applicant following an unfair trial in which they rejected essential evidence in his defense.

However, this case did not produce significant systemic improvements, on the contrary. The press constantly reports cases of sanctioned warnings in various fields: health, justice, environmental protection, water industry, public transport, mass media, culture. Several breaches that have been discovered in practice in publicly administered institutions, such as hospitals and public press institutions, included disciplinary sanctions for whistle-blowers so that the latter would be discouraged to come forward publicly with their information. A potential solution to this issue would be to regulate stronger material and disciplinary sanctions for individuals and legal entities who actively create obstacles and determine the discouragement of whistle-blowers.

APADOR-CH has repeatedly pointed out that the internal regulations of certain public institutions contain illegal provisions (contrary to Law no. 571/2004), because they provide sanctions for warnings in the public interest and / or prevent Whistle-blowers from addressing to the media directly. These regulations had to be modified, in the sense of providing for Whistle-blowers all the rights and facilities provided by Law no. 571/2004.

As a consequence of the adoption of the European Directive on the protection of persons reporting breaches of EU law in 2019 by the European Council and the European Parliament, Romania, similar to other Member States, has two years to transpose the provisions of the Directive into national law, the deadline being December 17, 2021.

Sectors with high-risks of corruption in a Member State and relevant measures taken/ envisaged for preventing corruption in these sectors

With respect to healthcare, as per Law no. 95/2006, hospital managers are appointed in Romanian through order of the Ministry of Health, of the Ministry of Transport or order of the mayor of the city/commune where the hospital is located. Considering that the appointment can be performed also by a mayor, who a representative of a political party with usually high influence in the city/commune, the decision to appoint a hospital manager can be subjective and performed in the interest of the political party and affiliation of the mayor. In such cases, hospitals are at risk of being managed by an inefficient manager, whose acts are subject to political interests.

A solution for the prevention of such cases would be the elimination of the legal provision allowing mayors to appoint hospital managers and adopting new provisions for the appointment of hospital managers after a proper competition and examination of their performances/ abilities.

With respect to other sectors with high – risks of corruption, mention should be made that in Romania, political campaign costs are reimbursed from the public budget, pursuant to Law no. 334/2006 for financing political parties and campaigns (“Law no. 334/2006”), within limits which reach up to 20,000 minimum gross salaries. The reimbursement of expenses is granted provided that the candidate obtains a minimum 3% of the total votes expressed. This provision determines political candidates who do not have objective chances to win elections to enroll in political campaigns for the purpose of increasing their own image capital, for the purpose of political games or for the purpose of contracting their relatives’ firms for consultation services, in order to benefit from the reimbursement of these expenses from the public budget.

A solution against this practice is to increase the level of votes which grant the right to reimbursement, which curently is of a mere 3% of the total votes expressed.

Repressive measures

Potential obstacles to investigation and prosecution of high-level and complex corruption cases

The members of the Romanian Government have immunity, meaning that only the Chamber of Deputies, the Senate and the President of Romania are entitled to request the criminal investigation of the members of Government for the acts performed while in function, in compliance with art. 109 of the Romanian Constitution. Since this type of immunity is singular in Romanian legal framework and prohibits any investigation with respect to the members of Government, even after serving office, without the approval of the Chamber of Deputies, of the Senate or of the President, it would be recommendable to consider its amendment and to limit the cases or the period of time for which immunity is granted to Government members.

Read the contributions of other states – Bulgaria, Croatia, Italy, the Netherlands and Spain – in a report submited by Liberties.