de     The Romanian Digest
Joi, 11 august 2005, 0:00


The Hubbub on Judicial Reform: Was Romania’s Constitutional Court Wrong?

Introduction
Justice reform in Romania – long overdue and long demanded by the European Union as part of Romania’s EU admission requirements -- became the focus of political debates last month following a Constitutional Court ruling holding some of the Government’s proposed reforms unconstitutional.

As a result of that ruling, the Prime Minister announced his resignation and that of his entire government stating that the Constitutional Court had jeopardized Romania’s proposed entry into the EU in 2007. A few days later he rescinded his resignation.

Even with the dissolution of the Government and early elections no longer appearing to be a real possibility, it is clear that clashing political interests still taint legislative efforts at reform.

In the June 2005 issue of The Romanian Digest™, we described a possible cause of a delay in Romania’s entry into the EU due to insufficiencies in its promised reform of its competition laws and the justice system.

In that article, we addressed the EU negotiations chapter on competition, which could trigger the involvement of the safeguard clause within the EU Accession Treaty signed this past April. However, this summer, justice reform, the other chapter capable of causing a postponed accession has become the focus of debate.

The EU’s enlargement commission criticized Romania for not implementing reforms capable of reaching the highest levels of the judiciary. These insufficiencies also affect Romania’s ongoing fight against corruption, which is still widespread. This has been partially attributed to the lack of independence of the judiciary.

The current coalition government, under Prime Minister Calin Popescu Tariceanu, promised to do what many accuse the former government, led by the Social Democrat Party (PSD), of not doing: ending corruption, strengthening the rule of law, and reforming the judiciary.

Indeed, the PSD’s apparent continued reluctance in the Parliament – which it currently controls -- to reform the judiciary is easy to understand, as many of its members hold senior positions in the judiciary.

Mr. Tariceanu’s government assumed responsibility for a package of draft laws to be passed by Parliament and which included major reforms of property laws, (see The Romanian Digest™, July 2005), and of the judiciary. These reforms were passed with the exception of a handful of provisions which the Constitutional Court held as unconstitutional.

What ensued was a political debate, with accusations flying between the current Government and the PSD regarding the exertion of undue political influence and actions detrimental to Romania’s EU accession aspirations.

The reforms rejected by the PSD-influenced Constitutional Court were essentially those that dealt with the dismissal of judicial officials appointed by the previous government led by the PSD.

The scope of these reforms was to make senior members of the judiciary independent of political interference and influence and, ultimately, to combat corruption and strengthen the overall independence of the judiciary. However, the Court did find sound constitutional reasons for their rejection, making the torrent of criticism to which it was subjected somewhat questionable.

Because of the Court’s decision, on July 7, Prime Minister Tariceanu announced that he would resign as Prime Minister and dissolve his government, a move which would trigger early elections 45 days after his resignation. Mr.

Tariceanu stated that the Government’s term was over because, in his words, “We are faced with a political situation in which the Constitutional Court essentially amputates the content of the laws on justice reform and, in effect, prevents the current Government, in which Parliament has placed its trust, from continuing the reform process, as pledged to the EU.

With the reform process thus frozen, we stand no chance of obtaining a favorable report from the European Commission.”

Mr. Tariceanu hoped that early elections in October would allow the Government parties’ majority to be strengthened to the point of holding a majority of the parliamentary seats. This would mean that they could more easily counter the opposition to the reforms.

A two-thirds majority in Parliament would allow a Tariceanu government to overturn the Constitutional Court’s decision - thus passing the rest of its proposed judicial reforms.

"A democratic vote is the only way to decide whether Romania wants to continue reforming its judiciary or maintain this scandalous system of a Constitutional Court dominated by a political party, formerly in power, and now seeking to maintain its privileges," stated Mr. Tariceanu.

However, many saw this move as a purely political one intended to secure a stronger coalition with more of Prime Minister Tariceanu people, and not one grounded in the desire to pass a few Constitutional Court-rejected provisions.

Despite declaring that the resignation of the government was inevitable, the Prime Minister soon after announced that, indeed, he had decided not to resign. This decision came after his return from a meeting with European Union officials in Brussels.

The need for stability in the face of Romania’s recent devastating floods was cited as the principal reason for his change of heart, but the press speculated that one of the possible reasons was that Jonathan Steele, the head of the European Commission’s Delegation in Romania, convinced Mr. Tariceanu not to resign for the good of Romania’s timely accession to the EU.

This seems plausible, as had the early elections occurred, they may have been self-defeating in terms of facilitating the road to EU accession. Although early elections would seek to remedy the rejection of justice reforms that the current Government deems necessary to fulfill EU requirements, they themselves might negatively affect the EU accession process.

The stability of Romania’s democracy is one of the four basic requirements for accession. Furthermore, Romania’s business environment could also be negatively affected by the dissolution of the Government; indeed, concern about the effects of early elections was seen shortly after Mr. Tariceanu’s announcement in the form of a drop in share values on the Bucharest Stock Exchange.

Prime Minister Tariceanu’s much anticipated official resignation never came, but the issues surrounding the events which triggered early election threats have not disappeared.

Were the Justice Reforms Really Unconstitutional?
On July 25, the package of justice and property reforms went into effect. Although the Constitutional Court eliminated a few parts of the justice reforms, most of the laws remained untouched - laws which will re-launch the fight against corruption and which should improve the efficiency of the judicial system.

The Constitutional Court had the right to judicially review the proposed reforms for their constitutionality because the opposition to Mr. Tariceanu’s Government was able to secure a sufficient number of signatures calling for their rejection.

Under Article 146(a) of the Romanian Constitution, a group of at least 50 deputies and at least 25 senators can send a law to the Constitutional Court for judicial review.

In this case, a group of 101 deputies and 39 senators objected to the package of reforms for which the Government assumed responsibility in front of the Chamber of Deputies and of the Senate and hoped to promulgate in conformance with Article 114(1) of the Constitution.

The Government defended the constitutionality of the proposed reforms, citing the promises it had undertaken to fulfill in order to join the EU. The Constitutional Court upheld the proposed reforms and the procedure which the Government had used for their adoption as constitutional except in several instances.

Wearing different hats at the same time:
All of the proposed reforms rejected by the Constitutional Court dealt with the Supreme Council of Magistrates (hereafter “CSM”). Under Article 1 of Law Nr. 317/2004 on the CSM, this body is the guarantor of the independence of the judiciary. With the Government’s proposed modifications of Law Nr. 317/2004 and Law Nr.

303/2004, laws establishing the structure and function of the CSM, members of the CSM could not hold senior positions in the CSM while also being judges and prosecutors. These reforms therefore require that CSM members who are currently in this situation would have to accept a suspension of their positions as judges or prosecutors if they wish to continue as CSM members.

This forced choice would constitute, according to the Court, a shortening of their judicial terms and would therefore impinge on Art. 125(1) of the Constitution establishing the principle of immovability which stipulates that the status of judges cannot be modified mid-term without their consent, and on Art. 133(4) of the Constitution which establishes 6-year terms for CSM members.

The Court further stated that under Art. 133(2)(a) of the Constitution, nine of the CSM members be judges and five of the CSM members be prosecutors, and interpreted this constitutional provision as requiring that the CSM members be active judges and prosecutors at the time of their CSM terms.

The Court explained that the purpose of this Constitutional provision is ensuring that members of a judicial authority are in touch with the inner-workings of the jobs they are overseeing, and the best way to ensure this is to have these members actually be practicing judges and prosecutors. Additionally, Art.

15(2) of the Constitution does not allow newly-adopted laws to be retroactively effective, something which would occur if these reforms were implemented, as the law would prescribe that CSM members currently in office abandon their positions as judges and prosecutors.

Finally, the Court also found that proposed reform having as their effect a truncation of judicial terms impinged on the principle of Separation of Powers of Art. 1(4) of the Constitution by allowing the legislative branch to interfere in the domain of the judicial branch to the extent that it could decide to prematurely end the terms of the judges and prosecutors.

The proposed reforms preventing members of the Supreme Council of Magistrates from holding other senior posts in the judicial system would have eliminated a major conflict of interest since, at present, the Supreme Council of Magistrates is the body that assesses the performance of individuals such as judges and prosecutors.

These proposed reforms might have passed judicial scrutiny under different eyes, but this is venturing into a sphere of pure speculation. Legal analyses are never clear-cut, and laws can almost always be interpreted in multiple ways.

For example, one could argue that the constitutional interpretation of some of the clauses invoked for purposes of holding these rejected reforms unconstitutional is stretched a bit far. This can be seen particularly in the Court’s citing of the Separation of Powers clause as being affected by a modification of terms.

After all, legislation does touch every branch of government, but this does not mean that the Legislative Branch is directly meddling in the realms of the other branches. Another provision which could have been interpreted in favor of the reforms is Art. 133(2)(a) of the Constitution pertaining to the composition of the CSM.

This provision does not expressly state that the CSM members must be practicing judges and prosecutors at the time that they are serving on the CSM.

One could argue that the CSM members may only be practicing judges and prosecutors at the time immediately before being named to the CSM, and that their practice may be suspended while they continue to hold the nominal title of judges and prosecutors simply to be distinguished from persons who held other positions before joining the CSM.

However, the Court’s interpretation can be found valid and must stand, and since it does contain methodical legal analysis, one cannot accuse it of being off base.


Retirement and Age Discrimination:
A proposed modification to Law Nr. 303/2004 Art. 81, regarding the retirement of judges, prosecutors, assistant-magistrates of the High Court of Cassation and Justice, special legal personnel, and magistrates, stipulated that persons holding these positions had to cease their professional activities at the retirement age stated in Law Nr.

19/2000 on the public system of retirement, even if they do not meet all the retirement conditions but have reached the respective age.

The Court found these reforms unconstitutional because they are discriminatory, and contrary to the principles of Art. 16(1) of the Constitution regarding the categories of citizens who benefit from the principles of the public system of pensions in which Law 19/2000 is grounded.

In accordance with these principles and with the provisions of the Constitution, retirement is a fundamental right of every citizen, but not an obligation. Retirement is a right which a person asks for but which cannot be imposed on him by any legal decision.

The Court continued by stating that, for complex and important functions such as the profession of magistrates, there can be reasonable retirement ages established as pertaining to the biological, physical and mental aptitude necessary for the carrying out of their jobs.

However, maximum age limits prescribed under different circumstances do not coincide with the standard age from which retirement is allowed. For magistrates, almost all states have prescribed a maximum age limit of 70 or 68. Furthermore, Law Nr. 19/2000 allows for the systematic increase by the year 2014 of the standard retirement age from 60 for women and 65 for men.

However, under the proposed reforms, retirement would be forced on magistrates and special legal personnel at 57 and 7 months for women and 62 and 7 months for men.

Beyond the discriminatory character of these reforms, the Court found them unconstitutional as pertaining to immovability of judges as provided for in Art. 124 (3) and Art.

125(1) of the Constitution; this was because the reforms would allow for dismissal, with or without a pension, regardless of whether the person exercising his position is capable of continuing the activities under his job description. Art. 155(5) of the Constitution also delineates a principle defining the concept of immovability of judges under Art.

125(1) of the Constitution, that in the case of a change in term limits, either through a Constitutional amendment or a new law, magistrates currently serving terms under the old laws will continue to serve out their term as decided before the new laws were adopted.

In addition to an infringement of Romania’s constitution, the Court also found that these retirement reforms impinge upon several international standards. One such international standard can be found in the Seventh UN Congress on the Prevention of Crime and Treatment of Offenders, Milan, Italy 26 August - 6 September 1985.

This document sets out the fundamental principles regarding the independence of magistrates and expressly state that the duration of the terms of judges, their independence, their security and their corresponding remuneration, their work conditions, and their pensions and retirement ages must be adequately guaranteed by law.

A similar statement appears in the Universal Charter of the Judge, adopted at the meeting of the Central Council of the International Association of Judges in Taipei on November 17, 1999, which stipulates in Article 8 that “any change to the judicial obligatory retirement age must not have retroactive effect.

” According to the Court, these reforms, if adopted, would have precisely this kind of internationally prohibited retroactive effect.

Finally, under the proposed addition of Art. 81(8) to Law Nr. 303/2004, judges and prosecutors who would interrupt their functions as such in order to become CSM members would lose the right to accumulate the pensions for the years flanking their CSM membership.

This clause was held unconstitutional for being discriminatory against judges and prosecutors as compared to other retirees, as Romanian Law 19/2000 on the system of pensions guarantees the right of accumulation of pension in a profession, regardless of the respective salaries.

The Court also found the clause to be discriminatory against CSM members who are judges and prosecutors as compared to other CSM members not holding these positions before joining the CSM.

The reforms addressing retirement of CSM members did appear to be unconstitutional and contrary to accepted international norms. Again, although judicial review is not a clear science, discriminatory practices are clearly frowned down upon by sound democracies, and the Court makes its point in a clear and supported manner.

Overall results:
These reforms, even without the constitutionally-rejected portions, chip away at the previous invulnerability of the Prosecutor’s Office of the High Court of Cassation and Justice (PICCJ) and the National Prosecutor’s Office on Anti-corruption (PNA). Before these reforms, members of these two bodies could not be replaced except under severe disciplinary sanctions.

From now on, members can be replaced if their institutions prove to be inefficient.

A consequence of this was that Monica Macovei, the Minister of Justice, was able to propose that Ioan Amarie, general prosecutor of the PNA, and four adjuncts, be replaced. The inefficiency of the PNA has been evinced in the European Commission’s country reports and in the Freedom House report, documents which Monica Macovei has declared that she will rely on in calling for PNA changes.

Conclusion
In the weeks following the Constitutional Court decision, newspapers were filled with criticism of the decision, with many claims that the Court was obviously controlled by the PSD. While it is true that the majority of the members of the Constitutional Court appointed by the PSD, the amount of PSD influence on their decisions can only be guessed.

One can almost always argue at least two sides of a legal issue, and Constitutional interpretation is not a black-and-white process. The Court did make sound arguments in their rejection of several of the reforms as unconstitutional.

However, reactions justifiably show concern at the rejection of certain clauses which would directly affect the Court and other PSD members when one looks at the long list of PSD-politicized institutions which include the High Court of Cassation and Justice, the Supreme Council of Magistrates, the National Council on Audiovisual Media, Radio-TVR, the Competition Council, the Commercial Bank of

Romania (BCR), and the Savings and Loans House (CEC).

Of course, other democracies are no strangers to political appointments. However, in most, there exist guiding principles and restrictions to place a check on the complete control of one political party. Restrictions on politicization include screening candidates to exclude those with ties to political parties and limiting terms in office.

Politicization is a harsh reality, and only an idealist would think that judicial bodies can ever be shielded from political interests from various directions. Even so, a little less mixing of politics and law in Romania is not an unrealistic goal.

The judiciary reforms, even without the provisions the Constitutional Court declared unconstitutional, are an important step for Romania to take on its way to joining the EU and to distancing itself further from its Communist past. The sound constitutional arguments from a body often accused of being entirely politically driven is another.


















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