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POLICY BRIEF

The laws on justice: don’t open Pandora’s box!

The Ministry of Justice sending the three draft bills to Parliament in their current form risks opening a Pandora’s box, since the end result and duration of the legislative process is difficult to anticipate. EFOR supports the idea that the solution must be pragmatic, focused on solving the overdue problems of the Romanian justice system, rather than putting forth over 500 articles for negotiation in Parliament.

The drafts were published on the website of the Ministry of Justice in September 2020 by Minister Predoiu and supported, with amendments, by Minister Ion. On 26th of March 2021, the Ministry of Justice published a final proposal of the new laws on justice. After publication, reactions in the public sphere clearly showed that the announced proposals are currently not

agreed by all three political parties in the governing coalition, and the publication of the drafts without prior consultation and negotiation within the coalition was subject to criticism.

Unfortunately, recently there was a similar unfortunate episode regarding the draft bill on the dismantling of the Special Section, where, once again, the governing coalition did not agree upon the solution.

Although the dismantling of the Special Section is a goal undertaken by the governing coalition in their Governance Plan, the proposal of the Ministry of Justice was amended in Parliament by the coalition partners. A member of Parliament, representative of the minority group* introduced an amendment that will provide magistrates with additional protection when indicted – virtually no judge and no prosecutor could be sent to court without the agreement of the competent Section of the Superior Council of Magistracy. Moreover, the same coalition partners have recently included an additional amendment, whereby the cases of the Special Section would not be reassigned to the prosecutors’ offices based on the subject matter of the case, but rather they would be sent to the Criminal Prosecution and Forensic Section of the General Prosecutors’ Office, where all the prosecutors of the Special Section will be transferred.

 

These recent events show that the full reopening of the debate on the laws on justice is a dangerous endeavour, and that it is very likely that we will see a cavalcade of harmful amendments included in relation to institutions and concepts that are nowadays very well regulated. In an attempt to achieve legislative perfection, we might end up losing the good things that the current legislation contains. The draft bill on dismantling the Special Section is a painful example in this respect.

 

The Ministry of Justice sending the three draft bills to Parliament in their current form risks opening a Pandora’s box, since the end result and duration of the legislative process is difficult to anticipate. We are talking about roughly 500 articles in the three draft laws that will be reviewed and amended in Parliament on an item-by-item basis

 

Expert Forum believes that the path to follow should be a pragmatic one, focused on solving the remaining problems of the Romanian judicial system. The decisions of the ECHR, the rulings of the Constitutional Court of Romania (CCR) and the recommendations of the Venice Commission and the European Commission serve as a solid base for developing some distinct projects on the aspects that need correction: introducing mechanisms to challenge in court the requests to revoke chief prosecutors; introducing solid mechanisms to revoke CSM (Superior Council of Magistracy)members; stronger regulations governing Judicial Inspection and mechanisms for material and disciplinary liability of judges and prosecutors.

 

These individual projects can be promoted in Parliament; the benefit of that would be that the discussion would focus on them rather than on all the articles of the justice laws, including issues that have never been called into question. This is the path to follow in order to solve these problems and, if implemented successfully and backed by solid political support, it could also pave the way to the CVM (Cooperation and Verification Mechanism) being lifted.

Beyond the considerations over how suitable it is to open the debate on the laws on justice as a whole, presented above, Expert Forum deems that some of the legislative solutions proposed are either problematic, some insufficiently explained, or they are incorrect transpositions of the decisions of the Constitutional Court; some could generate difficulties when applied in practice. We also mention that the comparative analysis of the proposed texts with the legal provisions currently in force is difficult, since no comparative table is available and, in some cases, the internal logic of the texts was changed as well.

[*An initial version of the report wrongly mentioned that this amendment was introduced by an MP member of UDMR.]

Read the complete analysis of the three draft laws here:

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Report published in a project implemented with the support of the Bureau of International Narcotics and Law Enforcement Affairs (INL) in partnership with CEELI Institute (Central and Eastern European Law Initiative) and International Foundation for Electoral Systems (IFES)


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