On Friday, the Venice Commission issued an emergency notice (review the document) regarding three laws regarding the judicial system in Romania: the Law on the High Council of Magistrates, the Law on the Judiciary and the Law on the Status of Judges and Prosecutors.

The commission criticizes the Romanian authorities for not asking for an opinion on the three bills, as announced by the authorities, and leaving the matter to the Parliamentary Assembly of the Council of Europe, but then asking for the opinion to be adopted as an emergency.

The Commission also appreciates that there are many positive points in the justice laws, such as the independence of the DNA, the regulation of the process of appointing/removing prosecutors, that the Attorney General does not have the power to overrule the decisions of prosecutors under DNA or DIICOT, or that the Minister of Justice can only deal with matters management.

Conclusions of the Venice Commission

• In an emergency procedure, it is impossible to cover all aspects of the three very detailed and long laws that were adopted on October 17, 2022. Due to the complexity of the laws and the level of detail, it is difficult to understand how they can be applied in practice. Therefore, this opinion refers, in particular, to topics that were also considered in Resolution 2466 of the Parliamentary Assembly of October 13, 2022.
• Given that this is an urgent conclusion, the Venice Commission cannot rule out that there are other aspects of these three laws that may be problematic, but it appears that overall these three laws everything seems to be moving in the right direction.

Positive aspects: No interference in DNA activities and appointment/revocation of prosecutors

• The Venice Commission notes several positive points, primarily the fact that there is currently no political interference in DNA’s activities. Although the laws were finally passed in a hasty, emergency manner, the preliminary preparation included consultations with all interested parties.
• Regarding the appointment and dismissal of high-ranking prosecutors, it is positive that it is now regulated at the level of law, rather than a ministerial order, and the involvement of several actors in these appointments provides a positive aspect, a greater degree of transparency. .
• It is also positive that the instructions of prosecutors to subordinate prosecutors must be written and legal, and contrary to the decision of the subordinate prosecutor must be motivated. The Attorney General does not have the power to challenge the decisions of prosecutors under DNA or DIICOT. Finally, it is positive that the control by the Minister of Justice can only concern management issues.

Appointment and dismissal of senior prosecutors

• Regarding the procedure for appointing and dismissing prosecutors, the Commission considers it positive that it is now regulated at the level of law, and not at the level of a ministerial order.
• Thus, three institutions will be involved (the relevant section of the CSM, the Minister of Justice and the President of Romania). Thus, it should provide a positive degree of transparency. It should also be recalled that the Venice Commission does not require that the appointment of high-ranking prosecutors be decided without the intervention of the political authorities.
• Candidates who are not approved by the CSM section must be re-interviewed by the Minister of Justice. This is a relatively weak means of protection. This appears to be based on the idea that there will be public pressure on the minister not to appoint a candidate who is not approved by the CSM.
• In essence, the new appointment procedure still gives the minister a decisive role: “The Minister of Justice selects candidates and makes a reasoned proposal for each of the leadership positions.
• “This is not in line with the previous recommendation of the Venice Court to appoint the main role of the CSM section. During the discussions we had, the Minister emphasized that according to the Constitution, the Minister of Justice, and not the CSM, has the powers of the Prosecutor’s Office.

Recommendations of the Venice Commission on amendments to laws on the judiciary:

• 1. introduce competitive selection also for the positions of deputy directors, not only heads of courts and prosecutors’ offices;
• 2. high-ranking prosecutors, including the general prosecutor, as well as chief prosecutors of DNAU and DIIKOT and their deputies are appointed for a longer term and without the possibility of renewal;
• 3. The Prosecutor General should not be able to bypass the hierarchy of prosecutors when he recognizes that the measures of criminal prosecution are illegal or unfounded. Such a conclusion must be passed through the prosecutor’s hierarchy;
• 4. it must be clearly stipulated by law that the judicial militia does not report on its activities to the Minister of Internal Affairs.

“Laws on paper may not be implemented in practice”

• In any case, it is necessary to attach great importance to the conditions of implementation of these texts. As in any country, laws on paper may not be enforced in practice. They can be ignored in practice or interpreted in a way that deviates from the original meaning.
• While preparing a series of his thoughts on Romania, The Venice Commission The Commission found that there are sometimes quite different views on what the factual issues are or should be.
• Therefore, it is very important that all the relevant actors of the Romanian judicial system (judges, prosecutors, the Minister of Justice and the President of Romania) cooperate to ensure the proper administration of justice in Romania.

The Ministry of Justice welcomes the publication of the urgent opinion of the Venice Commission and notes that the Report generally assesses the fact that the laws on justice are headed “in the right direction”, although they were adopted in an emergency procedure, thus implicitly confirming the fact that when they were adopted, they were preliminary conclusions of the Commission are taken into account.

President Klaus Iohannis unveiled the new justice laws on Tuesday, a day after the Constitutional Court published its reasoning rejecting an appeal by the USR, the AUR and the People’s Advocate against three justice laws passed by parliament.

What did the UDR and the People’s Advocate complain about

On Wednesday, November 9, the Constitutional Court of Romania rejected appeals filed by the USR, the AUR and the People’s Advocate against three justice laws passed by the parliament.

The KRS rejected as unacceptable and unfounded all five appeals regarding the Law on the Status of Judges and Prosecutors, the Law on the Judiciary and the Law on the High Council of Magistrates.

Why did the UDR attack the three laws of justice on the KKR? Stelian Ion: “The current government forced the procedure as much as possible and did not wait for the conclusion of the Venice Commission (…) It oligarchizes the entire judicial system, establishing control over what it means to carry out an act of justice. “.