OPINION Romanian minister Tudorel Toader's counter-reform of the judiciary: Why proposals announced by Justice minister are poisonous

Romanian Justice minister Tudorel Toader announced a set of proposals on Wednesday to reform the judiciary. The package of proposed legislation shows Toader fell in line with Social Democratic leader Liviu Dragnea’s requests and complied to put forward a counter-reform of the Justice system in a country that has struggled to properly reform it for more than a decade. It is now essential that magistrates react firmly as their very independence is at stake.

The proposals come half a year after another set of harmful changes to the judiciary were proposed by the Social Democratic government, but were eventually withdrawn in the face of unprecedentedly massive protests across the country. The government was changed since then, but its mastermind – PSD leader Liviu Dragnea, who can’t hold prime minister’s office because of a corruption-related sentence and other criminal inquiries – remained in charge.

Several months since his becoming Justice minister, Tudorel Toader appeared to take the role of a buffer between the judiciary and the PSD-led government. But now, he came out in force, and many are questioning why he did so with a PSD-made project which has not been discussed with the magistrates.

President Iohannis on Wednesday called the proposals „an attack on the rule of law, the independence and the proper functioning of the Judiciary and of the fight against corruption”.
The opposition National Liberal Party, many NGOs as well as the Public Ministry also criticized or even condemned the proposed measures on Wednesday.

A possible explanation for Toader’s delivering such a project may stay with Liviu Dragnea, who has pressed him for the past several weeks. Dragnea, who has already received a sentence related to voting fraud, faces other, serious corruption cases against him directly or his intermediaries in a series of businesses. Dragnea wants to show the Judiciary that it can force it to bend the knee and that he still has the means to bring it back under political control.

This article is based on statements made by Tudorel Toader Today. His ministry did not make the project public and the minister refused to answer press questions.

The Project includes several measures that would be welcome for the reform of the judiciary, but their presence there is obviously meant to draw attention from the horrors elsewhere.
The minister did not hold any consultation with the magistrates on this package of proposals. It is not clear whether Toader takes responsibility for the project, made by PSD or other non-transparent authors.

Why is the initiative extremely serious? We’re not talking about the initiative of any MP without political support, nor about a project for which nobody takes political responsibility. It was put forward by a minister who has the support of the PSD, a party led by Liviu Dragnea, who has pressed the minister into making the announced changes. It is the will of the PSD, as the PSD push to have the judiciary kneel is obvious. The project will most probably pass through parliamentary procedures fast as Dragnea and other MPs with criminal issues want the magistrates stripped of their powers.

And Toader has proven himself a perfect opportunist. After posing as a buffer, postponing the demolition of the judiciary for a while, he has now chosen sides for good.

What are the most important changes announced today:

1. Passing the Judicial Inspection, which has acted autonomously for more than a decade, under the wing of the Justice Ministry. It is a return to the period of early 2000’s, when PSD ruled with an iron fist and Romania was not a member of the EU. It was a period when then Justice minister Rodica Stanoiu could put pressure on judges and prosecutors through this Inspection, which can make or break careers in the judiciary. After 2005, as it was passed under the wing of the Supreme Council of Magistrates (CSM), it stood above suspicions of political interference.

In 2011, then minister Catalin Predoiu attempted to move it back to the Justice Ministry, but dropped the initiative in the face of its unanimous rejection by magistrates, who accused an attempt of political interference.

2. Make magistrates hold material responsibility for errors. This is a measure which, if badly implemented, may be disastrous. This sort of responsibility is normal and is already covered by current legislation. But – based only on Toader’s statements, as there is no official document available – the new legislative package would force the state, through the Finance Ministry, to demand damages from judges and prosecutors found to have made judicial errors. It is necessary that the proposal include references to bad faith and negligence when it comes to authors of the judicial errors, as it would allow a clear difference between magistrates who made an error while acting in good faith and those who made it for obscure reasons. Without such a phrasing, the new provision would only be a means to press judges and magistrates, who would always act under the threat of a court action with the state.

3. Removing the president of Romania from the process of naming top prosecutors at the Prosecutor General, the National Anti-Corruption Department and the body fighting organised crime, DIICOT. This is an old wish of criminals in Romanian politics. The principle of eliminating the president – who is a political person – may be fair in a strong democracy with stable systems of checks and balances. But in a country where Justice reforms are still ongoing, the elimination of a filter risks weakening the whole process.

There is a recommendation in this regard that the European Commission has made in its Cooperation and Verification Mechanism. But it came in the wake of a political barter between then-president Basescu and then-PM Ponta in 2013, when nominations were made without a transparent procedures. Still, a proper solution would not be the elimination of one of three actors involved in this process (the Justice minister, the CSM and the President), but possibly by strengthening the role of the CSM, as magistrates only have a consultative role now.

And one more thing: if changes to the procedure of naming top prosecutors would become law fast, current chief prosecutors, including DNA head Laura Codruta Kovesi, would be removed immediately. If interested in showing that the current chief prosecutors are not a target for the changes, minister Toader should mention explicitly in the project that the change comes into force when their term ends. The minister said it orally, but it should be seen in the law.

4. The establishment of a new, special department within the Prosecutor General’s Office for the criminal investigation of magistrates. It would be led by people named according to the new procedures – a head prosecutor proposed by the Justice minister and named by the CSM. The risk of political nominations and the impact on magistrates will be huge.

A legitimate question: under these new regulations, with the Judiciary Inspection service under the wing of the ministry and a new department at the Prosecutor General’s Office in charge with magistrates, will any prosecutor dare pursue cases against Dragnea or any other top politician? How will a judge who has to deal with a big shark case act, when he knows he has not one, but two pendulums above his head?

5. Raising the age bar for entering magistracy to 30 years and increasing the time for advancement in magistrates’ careers. One can debate about the first measure, and its the duty of magistrates to decide which is the best solution.

But a realistic argument against such a decision comes from reality in Romania itself: if one forces a Law graduate spend time outside magistracy until he turns 30, working as criveners or with legal offices or bailiffs, what sort of experience will he have when 30? A simple solution would be the one provided by medicine: Law graduates working as apprentices to magistrates for several years.

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These are the major changes announced publicly by minister Toader. We do not yet know if the set of proposals also includes other high impact provisions. But the ones we know are enough to see clearly the attempt of the minister, supported by the PSD and their ALDE allies, to make magistrates bend the knee.

It is the time for magistrates to react. Judges and prosecutors have to produce their own antibodies, to publicly dennounce the attempt to bring them under political control. It’s now or it will be too late. But the first signs are discouraging: the Judicial Inspecition welcomed the minister’s plan in its regard publicly on Wednesday.