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The removal of the communist state’s power, set up in Romania after 1945, through the Revolution of December 1989, paved the way for drafting a new Constitution which was to establish the democratic order of the rule of law, to promote the principles of the market economy and the protection of the private property. In this connection, under Title III of the Constitution on public authorities, the judiciary plays an important role(Cap. VI) with reference to the courts, the prosecution and the Superior Council of Magistracy. The reform is based on a triangular structure that is found both in the judicial reform strategy and in its implementation: the transparency, credibility and efficiency of justice. In this respect, it should be noted that the new constitutional provisions meet the European requirements on independence of the judiciary and of the magistrates. Strengthening the role of the High Court of Cassation and Justice, the establishment of specialized courts, the computerization of the judiciary, the improving of the judicial cooperation on European and on international level are important steps for the justice reform.
INTRODUCTION……………….175
I. ACCESSION TO THE EUROPEAN UNION ……176
II. THE NEW CODES ……..177
III. RECENT DEVELOPMENTS ………181
CONCLUSION …………..183
INTRODUCTION
It is common knowledge that the justice reform in Romania is perceived, both by practitioners in the judiciary and the litigants, as a “form without substance” which remains to the state of political discourse, without being the only area affected by inefficiency and lack of vision regardless of alternation in power.
We believe that the existence of a state of uncertainty and anxiety about the often legal changes in the legislation of Romania greatly affect the quality of justice and the fundamental principles of solving the cases, and the idea of predictability and efficiency of the judiciary.
Consequently, setting clear objectives in terms of judicial reform, the involvement of civil society with experts in law are, in our opinion, important factors in ensuring continuity in the strategy to follow in this area. Also, we can state that the “evolution” of the judiciary after Romania’s EU accession, after 2007, is mainly due to pressure from the EU to harmonize the national legislation with the changing requirements of European law.
The first part of this paper outlines the beginnings of the justice reform in Romania, upon accession to the European Union. The second part refers to important changes of the legislation preparing the adoption of the new criminal and civil codes, and also of the corresponding procedure codes, while the final part of the paper examines recent developments of the legislation.
I. ACCESSION TO THE EUROPEAN UNION
Upon accession to the European Union, the judicial system in Romania did not meet the standards of efficiency, independence and impartiality required by membership of the Union. Consequently, the European Commission by Decision1 2006/928/CE established a mechanism for cooperation and verification of the progress in Romania in order to meet certain specific benchmarks in the areas of judicial reform and fight against corruption (MCV), a mechanism that exists today.
Thus, the progress made by Romania in the process of judicial reform and fight against corruption is measured in terms of four benchmarks:
(1) Providing for a more transparent, more effective legal process, particularly by increasing the capacity and the responsibilities of the Superior Council of Magistracy. Reporting and monitoring the impact of new codes: civil, criminal, civil and criminal procedures;
(2) Establishing an integrity agency for verifying the procurements, the incompatibilities and the potential conflicts of interest;
(3) To continue the progress already made and the professional, impartial investigations in cases of high-level corruption;
(4) The adoption of measures to prevent and fight against corruption, especially in the central and local government.
So, it should be emphasized that these goals should be considered together as part of a broad and real long-term reform of the legal system and of the fight against corruption, both aspects needed to strengthen the rule of law.
Finally, the judicial reform contributes to the development of a European legal area involving the harmonization and modernization of the Member States, based on standards developed by the European Union. The EU Member States should be assisted to modernize their institutions and procedures and to promote the respect for the rule of law.
Also, the measures to develop the independence and the impartiality of judges, improve civil procedures for review and enforcement of judgments, reduce the load of trial courts and shorten, simplify, and improve legal assistance and judicial quality should be part of a constant preoccupation of the domestic and European bodies.
II. THE NEW CODES
Also in this context, it should be regarded the impact of the new codes on the justice system in Romania, as part of a much needed reform in this area. However, the lack of the two instruments needed to implement the new Civil Code and Criminal Code, respectively of the procedure codes, generates interpretations that lead to difference in the jurisprudence.
In this respect, we have the view that the desire to strengthen the prestige of justice can not be achieved without fulfilling the requirements of integrity, good reputation and professionalism for all those related to justice.
In terms of proposals supported by us, we can consider those for accelerating the settlement of the pending cases to avoid their prescription by bringing together identical or similar cases—the same type question—in one case (type class action lawsuits) which would reduce the number of cases in courts, the involvement of the Superior Council of Magistracy in solving concrete situations related to the activity of courts. In this respect, not only finding appropriate script reports on the state of justice but taking appropriate measures by the Superior Council of Magistracy is of interest.
Furthermore, these reports do not convince individuals about the role of the Superior Council of Magistracy and do not bring significant news on how its activity improves the functioning of courts, it only emphasizes the excessive load degree of these instances, largely due to existing heterogeneous and conflicting legislation. But precisely this lack of concrete solutions involves the continuous and irreversible degradation of the quality of justice in Romania which results in the decredibilization of courts empowered to hear and not to delay indefinitely the settlement of cases.
Of course, we agree that there should be discarded the anathema on the judiciary which is subject to a current and excessive media exposure, but it can not be tolerated the slow process and the lack of a final and conclusive decision, especially in cases of corruption.
Another useful proposal which we support and which begins to take shape becoming more encouraging was that of mediation in the courts, through the conclusion of protocols between them and the representative bodies of authorized mediators.
We also believe that all those involved in world of justice, the judiciary, lawyers, notaries, bailiffs and individuals have the capacity and the moral duty to reform this important area in contemporary society, without which there can be no state of law in the true sense of the word.
In other words, the justice reform in Romania is of a paramount importance to the legal community and for the modern development of the Romanian society. A modern justice in a modern state is the only chance for Romania to pass the status of a truly integrated country in the European area of justice, freedom and security.
Judicial reform was seen as a necessity of the early 1990s, so that by Law No.92/1992 (repelled almost in its entirety by Law No.304/2004)2, it was reorganized the whole system of courts and prosecutors’ offices attached to them. By law it was set up courts of appeal and appropriate prosecution and new judges and prosecutors’ offices attached to them3.
Accordingly the new organization of the judiciary and the judicial procedural rules were amended and supplemented by introducing the appeal, a devolutive ordinary mean of attack, concomitant with the establishment of courts and prosecution powers.
The same law regulated the status of judges, the principles of independence, tenure, and obedience only to the law and the specific status of prosecutors—legality, stability and fairness.
The judicial reform has become a priority in the context of deepening and accelerating the effective European integration process, which required a consistent and coherent approach to the judicial reform in all its components, together with other areas related to social reforms in line with the European acquis.
As known, Romania applied for EU membership in 1995, and the actual accession negotiations were opened in February 2000. Since the application for accession, the European Commission monitored Romania in terms of the criteria and conditions for membership. The annual monitoring results were included in the Monitoring Report.
Since 1998, the Commission appreciated Romania’s concerns for the operation of the judicial system, but has made a number of requirements: strengthening the independence of the judiciary and protecting it against corruption; shortening the proceedings, improving the status and remuneration of judges and prosecutors, and need to improve their business.
In 1999, despite the measures taken, the judicial system in Romania was characterized as deficient in terms of awareness of Community law, finance, taxation and banking, organized crime and money laundering. Corruption remained a widespread problem at central and local levels.
Considering some progress in improving the judicial reform in 2000, the Commission found little progress in fighting corruption. However, it was appreciated Law No. 78/2000 to the punishing, discovering and sanctioning of corruption.
In 2001, the reform of the judicial procedures continued, and the implementation of the new legislation on public procurement was positively assessed by the Commission, being regarded as an important mean to fight corruption. The Commission recommended to take effective measures to guarantee the independence of judges.
In 2002, the judicial reform has been affected by the lack of resources. The Commission recommended that judicial reform is to become a public priority, based on a comprehensive strategy. In the strategy, judicial independence should be a decisive goal.
In this context, the judicial reform strategy 2003-20074 was followed by important developments in achieving an independent judiciary, which allowed the completion of negotiations for the accession to the European Union in December 2004.
The evolution of the reform of justice in Romania is marked by two essential stages, the enactment of the new Constitution of Romania in 1991 and the accession of Romania to the European Union, respectively.
Under the new Constitution of Romania, the judiciary was reformed by establishing in the framework of the judiciary the Superior Council of Magistracy, body that have taken over a series of powers of the judiciary which were previously carried by the Ministry of Justice.
The process of accession to the European Union has led in an emphasis put on the fight against corruption, by employing institutional and legislative means. Moreover, in the same period, significant legislative works were carried in order to harmonise the Romanian legislation with the European legislation.
This second stage was marked also by drafting new Codes, deemed as essential pieces in the modernisation of Romanian legislation. A new Civil Code came into force and a new Criminal Code was drafted, along with enacting the Codes of Procedure (Civil and Criminal respectively). Besides those, the recent legislative amendments concerning a new statute of judges and prosecutors, along with certain issues of the judiciary in general, are also relevant.
INTRODUCTION……………….175
I. ACCESSION TO THE EUROPEAN UNION ……176
II. THE NEW CODES ……..177
III. RECENT DEVELOPMENTS ………181
CONCLUSION …………..183
INTRODUCTION
It is common knowledge that the justice reform in Romania is perceived, both by practitioners in the judiciary and the litigants, as a “form without substance” which remains to the state of political discourse, without being the only area affected by inefficiency and lack of vision regardless of alternation in power.
We believe that the existence of a state of uncertainty and anxiety about the often legal changes in the legislation of Romania greatly affect the quality of justice and the fundamental principles of solving the cases, and the idea of predictability and efficiency of the judiciary.
Consequently, setting clear objectives in terms of judicial reform, the involvement of civil society with experts in law are, in our opinion, important factors in ensuring continuity in the strategy to follow in this area. Also, we can state that the “evolution” of the judiciary after Romania’s EU accession, after 2007, is mainly due to pressure from the EU to harmonize the national legislation with the changing requirements of European law.
The first part of this paper outlines the beginnings of the justice reform in Romania, upon accession to the European Union. The second part refers to important changes of the legislation preparing the adoption of the new criminal and civil codes, and also of the corresponding procedure codes, while the final part of the paper examines recent developments of the legislation.
I. ACCESSION TO THE EUROPEAN UNION
Upon accession to the European Union, the judicial system in Romania did not meet the standards of efficiency, independence and impartiality required by membership of the Union. Consequently, the European Commission by Decision1 2006/928/CE established a mechanism for cooperation and verification of the progress in Romania in order to meet certain specific benchmarks in the areas of judicial reform and fight against corruption (MCV), a mechanism that exists today.
Thus, the progress made by Romania in the process of judicial reform and fight against corruption is measured in terms of four benchmarks:
(1) Providing for a more transparent, more effective legal process, particularly by increasing the capacity and the responsibilities of the Superior Council of Magistracy. Reporting and monitoring the impact of new codes: civil, criminal, civil and criminal procedures;
(2) Establishing an integrity agency for verifying the procurements, the incompatibilities and the potential conflicts of interest;
(3) To continue the progress already made and the professional, impartial investigations in cases of high-level corruption;
(4) The adoption of measures to prevent and fight against corruption, especially in the central and local government.
So, it should be emphasized that these goals should be considered together as part of a broad and real long-term reform of the legal system and of the fight against corruption, both aspects needed to strengthen the rule of law.
Finally, the judicial reform contributes to the development of a European legal area involving the harmonization and modernization of the Member States, based on standards developed by the European Union. The EU Member States should be assisted to modernize their institutions and procedures and to promote the respect for the rule of law.
Also, the measures to develop the independence and the impartiality of judges, improve civil procedures for review and enforcement of judgments, reduce the load of trial courts and shorten, simplify, and improve legal assistance and judicial quality should be part of a constant preoccupation of the domestic and European bodies.
II. THE NEW CODES
Also in this context, it should be regarded the impact of the new codes on the justice system in Romania, as part of a much needed reform in this area. However, the lack of the two instruments needed to implement the new Civil Code and Criminal Code, respectively of the procedure codes, generates interpretations that lead to difference in the jurisprudence.
In this respect, we have the view that the desire to strengthen the prestige of justice can not be achieved without fulfilling the requirements of integrity, good reputation and professionalism for all those related to justice.
In terms of proposals supported by us, we can consider those for accelerating the settlement of the pending cases to avoid their prescription by bringing together identical or similar cases—the same type question—in one case (type class action lawsuits) which would reduce the number of cases in courts, the involvement of the Superior Council of Magistracy in solving concrete situations related to the activity of courts. In this respect, not only finding appropriate script reports on the state of justice but taking appropriate measures by the Superior Council of Magistracy is of interest.
Furthermore, these reports do not convince individuals about the role of the Superior Council of Magistracy and do not bring significant news on how its activity improves the functioning of courts, it only emphasizes the excessive load degree of these instances, largely due to existing heterogeneous and conflicting legislation. But precisely this lack of concrete solutions involves the continuous and irreversible degradation of the quality of justice in Romania which results in the decredibilization of courts empowered to hear and not to delay indefinitely the settlement of cases.
Of course, we agree that there should be discarded the anathema on the judiciary which is subject to a current and excessive media exposure, but it can not be tolerated the slow process and the lack of a final and conclusive decision, especially in cases of corruption.
Another useful proposal which we support and which begins to take shape becoming more encouraging was that of mediation in the courts, through the conclusion of protocols between them and the representative bodies of authorized mediators.
We also believe that all those involved in world of justice, the judiciary, lawyers, notaries, bailiffs and individuals have the capacity and the moral duty to reform this important area in contemporary society, without which there can be no state of law in the true sense of the word.
In other words, the justice reform in Romania is of a paramount importance to the legal community and for the modern development of the Romanian society. A modern justice in a modern state is the only chance for Romania to pass the status of a truly integrated country in the European area of justice, freedom and security.
Judicial reform was seen as a necessity of the early 1990s, so that by Law No.92/1992 (repelled almost in its entirety by Law No.304/2004)2, it was reorganized the whole system of courts and prosecutors’ offices attached to them. By law it was set up courts of appeal and appropriate prosecution and new judges and prosecutors’ offices attached to them3.
Accordingly the new organization of the judiciary and the judicial procedural rules were amended and supplemented by introducing the appeal, a devolutive ordinary mean of attack, concomitant with the establishment of courts and prosecution powers.
The same law regulated the status of judges, the principles of independence, tenure, and obedience only to the law and the specific status of prosecutors—legality, stability and fairness.
The judicial reform has become a priority in the context of deepening and accelerating the effective European integration process, which required a consistent and coherent approach to the judicial reform in all its components, together with other areas related to social reforms in line with the European acquis.
As known, Romania applied for EU membership in 1995, and the actual accession negotiations were opened in February 2000. Since the application for accession, the European Commission monitored Romania in terms of the criteria and conditions for membership. The annual monitoring results were included in the Monitoring Report.
Since 1998, the Commission appreciated Romania’s concerns for the operation of the judicial system, but has made a number of requirements: strengthening the independence of the judiciary and protecting it against corruption; shortening the proceedings, improving the status and remuneration of judges and prosecutors, and need to improve their business.
In 1999, despite the measures taken, the judicial system in Romania was characterized as deficient in terms of awareness of Community law, finance, taxation and banking, organized crime and money laundering. Corruption remained a widespread problem at central and local levels.
Considering some progress in improving the judicial reform in 2000, the Commission found little progress in fighting corruption. However, it was appreciated Law No. 78/2000 to the punishing, discovering and sanctioning of corruption.
In 2001, the reform of the judicial procedures continued, and the implementation of the new legislation on public procurement was positively assessed by the Commission, being regarded as an important mean to fight corruption. The Commission recommended to take effective measures to guarantee the independence of judges.
In 2002, the judicial reform has been affected by the lack of resources. The Commission recommended that judicial reform is to become a public priority, based on a comprehensive strategy. In the strategy, judicial independence should be a decisive goal.
In this context, the judicial reform strategy 2003-20074 was followed by important developments in achieving an independent judiciary, which allowed the completion of negotiations for the accession to the European Union in December 2004.
The evolution of the reform of justice in Romania is marked by two essential stages, the enactment of the new Constitution of Romania in 1991 and the accession of Romania to the European Union, respectively.
Under the new Constitution of Romania, the judiciary was reformed by establishing in the framework of the judiciary the Superior Council of Magistracy, body that have taken over a series of powers of the judiciary which were previously carried by the Ministry of Justice.
The process of accession to the European Union has led in an emphasis put on the fight against corruption, by employing institutional and legislative means. Moreover, in the same period, significant legislative works were carried in order to harmonise the Romanian legislation with the European legislation.
This second stage was marked also by drafting new Codes, deemed as essential pieces in the modernisation of Romanian legislation. A new Civil Code came into force and a new Criminal Code was drafted, along with enacting the Codes of Procedure (Civil and Criminal respectively). Besides those, the recent legislative amendments concerning a new statute of judges and prosecutors, along with certain issues of the judiciary in general, are also relevant.