​ANALYSIS Why the proposed changes to the Romanian laws on judiciary are dangerous

The governing coalition in Romania, which holds a majority in the Parliament, has been pushing for massive changes to three key pieces of legislation regarding the functioning of the Judiciary. The attempts to change the current legislation have been fiercely criticised as attempts to subdue the judiciary politically. They should be taken into consideration as a whole, not in separation. See the proposed changes below, step by step, then connect the dots to see the big picture.

Step 1

• They changed the statute of magistrates

• They removed the guarantee of prosecutors’ operational independence

• The hierarchical superior prosecutor can censor the prosecutors’ acts for substantive reasons, not just on general legality grounds

• Such possibility of interference with prosecutorial work for substantive reasons gives ample room for interpretation and arbitrary decisions

• They separated the careers of judges and prosecutors

• They placed the prosecutors de facto under the authority of the minister of justice

Step 2

• They are changing the law on judicial organization

• A new Special Division to investigate crimes committed by magistrates is envisaged

• The head of this Special Division will be appointed by the Superior Council of Magistracy, without any other checks and balances

• The twenty prosecutors who will work for the Special Division will be easily controllable

• They will investigate the disobedient magistrates and turn a blind eye to the obedient ones

• The State is obliged to turn against the magistrates who made decisions with gross negligence and bad faith

• ”Gross negligence” is a vague formulation that will encourage harassment against prosecutors whose cases end up in acquittal

• These changes are operated mostly against the will of the magistrates

• The debates are ongoing

Step 3

• It follows the law on the functioning of the Superior Council of Magistrates (CSM)  

• What is at stake is taking the Judicial Inspection out of the CSM authority

• Turning the Judicial Inspection into a nominally autonomous institution does not guarantee its independence

• It depends on who will appoint the new heads and on who will populate the new Inspection

• A number of essential checks and balances have been removed from the newly proposed judicial laws

• The President can no longer turn down the proposals for the appointment of top positions at the Higher Court, not even one single time   

• The overall effect of the proposed changes is that of self-censorship – the most insidious form of control over the judiciary

Step 4

• The President could still be eliminated from the appointment procedure of the top prosecutors, pending the vote in the plenum of the Parliament

• There are similar precedents. The plenum of the Chamber of Deputies voted for a form of the magistrates’ liability that had previously been rejected in the Special commission

• The new Special Division and the Judicial Inspection risk becoming weapons in the hands of politicians

• The judicial laws are passed at high speed through the Parliament. Everything is subject to change in the plenum

• Opposition Liberals (PNL) and Save Romania Union (USR) are accusing the governing coalition of Social Democrats (PSD) and Liberal Democrats (ALDE) with the support of the Hungarian Democrats (UDMR) of stiffling the parliamentary debate, which is the essence of democracy

• Key institutions are radically transformed through legislative amendments tabled overnight

• After the bills are passed, the President can send them back for re-examination only once

• The last step. Even if the Parliament chooses to ignore his objections, the President is obliged to sign the bills into law