European critique of Romania’s justice laws

The Section for the Investigation of Offences committed within the Judiciary (hereinafter SIOJ; original Romanian: “Secția de Investigare a Infracțiunilor din Justiție”) was established in 2018, and it is part of the High Court of Cassation and Justice of Romania. Its mandate is to investigate offences committed by members of the judiciary (i.e., judges and prosecutors), and/or any other third parties (i.e., non-magistrates) involved in the procedures.

The CJEU explained that being in accordance with EU law, the legislation creating the SIOJ:

must be justified by objective and verifiable requirements relating to the sound administration of justice and must […] provide the necessary guarantees ensuring that those criminal proceedings cannot be used as a system of political control over the activity of those judges and prosecutors and fully safeguard the rights enshrined in Articles 47 and 48 of the Charter [of Fundamental Rights of the European Union].”

Article 47 of the Charter covers the right to an effective remedy and a fair trial; while

Article 48 of the Charter defends the presumption of innocence and the right of defence.

Thus, the said dispositions could also violate the requirements of Article 19(1), second subparagraph of the Treaty on European Union (TEU), as well as Romania’s specific obligations under Decision 2006/928 in relation to the fight against corruption, if it is believed that the SIOJ would become a tool of political influence over the judges and prosecutors dealing with corruption cases, undermining the separation of powers – some say, a critical element of a functional democracy.

Failure to comply with these requirements could lead to the authority being perceived as an instrument of pressure and intimidation of judges, further undermining the confidence in the judicial system of the country. Nonetheless, the CJEU left the final assessment of compatibility with EU law to the determination of the national courts.

The Cooperation and Verification Mechanism (CVM) was established at the accession of Romania to the EU in 2007 as a transitional measure to facilitate Romania’s continued efforts to reform its judiciary and step up the fight against corruption. The most recent CVM dated 8 June 2021 criticises the decision not to abolish the Investigative Section. A similar analysis was presented by both the Venice Commission and GRECO (The Group of States against Corruption).

However, on the same day and in accordance with the CJEU decision, the Romanian Constitutional Court stated in two separate judgements that the SIOJ does not undermine the separation of powers. To the contrary, they said it creates additional legal guarantees on the independence of judges.

Status quo?

The situation sheds light on the continuous deficiency of the political and institutional cooperation within the country. Having already received a vote in favour of the SIOJ abolition in the Chamber of Deputies, the lack of a clear and efficient dismantling procedure poses an obstacle in the forwarding of the draft bill to the Senate Chamber (the higher parliamentary forum), slowing down Romania’s progress considering the CVM recommendations.

Another fascinating argument in the CJEU decision (above) entails the idea that the CVM and EU law supersede the constitutional law of all member states. However, this is a one-dimensional view on the topic. Applying logical reasoning, it is finally the constitution of each country that gives power to Union law to start with. This is a weighty consideration – if the objectives sought by EU law, the Charter of Fundamental Rights and the various other treaties concerned are achieved, then there is no ground to further contest the position of the Constitutional Court.

Finally, what is essential is the Romanian authorities’ handling of the Investigative Section’s abolition in light of the European critique, and whether the disappearance of the SIOJ will prove to be beneficial as argued by the Venice Commission, contrary to the opinion of the Romanian Constitutional Court. The reality is that it will be highly difficult to discern the presumed results of the SIOJ on the long-term, as the institution will have never reached maturity.

The SIOJ is just one piece of the puzzle the country needs to solve, there remain many other points raised in the CVM reports demanding attention. Thus, it is interesting to observe how the situation will further develop in view of the pandemic currently seizing Europe (all over again).

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