Regulars
COMMENT
Judicial reform: an imperative for the new government

by Mark Percival
December 2004

Whatever government is in power by the time of publication, judicial reform should be a clear priority, for Romania is still a long way from being a state based on the rule of law. A fundamental principle of a free society is the separation of powers between executive (government), legislature (parliament) and a judiciary, ensuring the independence of the court structure from political control. Independence of the judiciary is critical not only to protect citizens' rights, ensuring that all are equal before the law, but also to attract foreign investors, who look for clarity of legislation and a level playing field in which the principles of open and fair competition are upheld. It is a key building block of democracy and prosperity. In Romania, this separation has not yet been fully established and consequently the country cannot be considered fully free.

The Justice and Home Affairs chapter of the acquis communautaire has yet to be concluded at the time of writing, and has been the most troublesome part of Romania's accession process, mainly due to lack of political will by the government. The Ministry of Justice (a political authority) still has considerable powers over a court system in which excessive workloads, under-specialisation, low pay and lack of IT facilities inevitably contribute to corruption, and delays, severely weakening judicial impartiality. The government is theoretically committed to reform, in line with Romania's EU accession process. Yet too often, changes are cosmetic, designed to present a positive face to the European Commission, while the government fails to tackle the real issues or surrender political control.

In the new Constitution, passed in October 2003, the judiciary was declared a separate and equal state power for the first time, while the principle of lifelong tenure was established for members of the High Court of Cassation (the highest court in the country, formerly the Supreme Court of Justice), consequently creating a safeguard against political appointments. In June 2004, the so-called ''three law package'' on reform of the magistracy was passed, taking effect on 30th September, aiming to strengthen the independence of the Superior Council of Magistracy by making it fully responsible for recruitment and career development of its members as well as the sanctioning of judges and prosecutors.

However, in spite of the theoretical improvement in the independence of Court of Cassation judges under the new Constitution, the government's real commitment was seriously called into question by the appointment in July 2004 as President of the High Court of a high level political adviser to the government, with no practical experience as a judge. Earlier, in August 2003, the government caused chaos in the Court of Cassation/ High Court by changing the Civil Code to require it to judge all second appeals, increasing the backlog of such cases from 3175 in 2002 to 35800 by the end of April 2004. The measure had to be revoked, but by early October, the number was still around 24000.

There is a serious problem over the length of time required to secure a final judgement, particularly in property restitution cases. Here, political interests are apparent, and recently a number of citizens with claims demonstrated outside the European Commission Delegation calling for the acquis communautaire not to be signed until their cases had been resolved. Only a very limited number of property restitution cases have reached the European Court of Human Rights in Strasbourg, which has reversed decisions by the Romanian courts, ruling that properties should be returned and compensation granted. Many other such cases remain bogged down in the Romanian court system, and appellants cannot go to Strasbourg until they have a final judgement.

Clearly the interminable delays serve the interests of the Romanian government, which can consequently avoid restoring property now held in state hands or paying compensation. Yet it is an absurdity that property restitution has still not been resolved fifteen years after the end of the communist regime. A real reform of the judiciary should set time limits on final judgments in the Romanian courts, making access to Strasbourg much quicker and easier. This is essential if the Romanian government is to respect its obligations under the European Convention on Human Rights. At the same time, an effective system of legal aid needs to be developed to ensure that citizens are not deprived of their rights through lack of financial resources.

Equally, the government's apparent commitment to reinforcing the independence of magistrates under the ''three law package'' has been undermined by the recruitment of judges without the standard two-year training period, as previously required by the National Institute of Magistracy, making political appointments easier. The EU Commission's recent country report, while welcoming the package, noted that it had not yet been effectively implemented. While the Ministry of Justice can no longer promote magistrates or appoint judges directly, it can still appoint judicial assistants and Court Presidents, influential officials who can make important administrative decisions about judges' responsibilities. A further category of ''judicial inspectors'' was also introduced last year, appointed by the Ministry of Justice without a clear role or attributes.

The clearest demonstration of continuing lack of independence of the judiciary has been the ineffectiveness of the National Anti-Corruption court (PNA). Under the new administration, this should carry out its real mandate and tackle high level corruption, rather than allow itself to be deflected into petty cases as happens at present. Since September 2003, the PNA has been responsible for 86 prison sentences, the vast majority for minor offences. One of the most flagrant examples of inequality before the law concerns parliamentary immunity. Even under the 2003 Constitution, Romania still grants protection from prosecution to parliamentarians and government ministers, provisions that exist in many countries. However, the Romanian rules are particularly generous and provide strong protection for historical reasons, because of the need to defend members of the National Assembly from attack by royalist prosecutors immediately after the Revolution in 1989. It is wholly inappropriate to modern Romania. Even former Romanian government ministers enjoy immunity, creating a licence to use political office for personal enrichment, although this is supposed to end from January 2005, curiously as part of a stand-by agreement with the IMF rather than under the acquis communautaire.

Most members of the judiciary and NGOs working on legal issues consider the Romanian legal system to be far from independent. In a survey carried out in May 2004, 81 per cent of Romanian magistrates considered judicial independence to be ''non-existent or ineffectual'' while a clear majority of judges claim to have been subjected to political pressure. In July 2004, a group of NGOs and professional associations representing members of the judiciary protested against the weakness of government reforms to the Supreme Council of Magistrates, declaring that ''in spite of promises to the EU, the political leadership does not want to give up control of the judiciary.''

The Justice and Home Affairs chapter will be signed by the new government, probably as one of its earliest acts. Given that many of the changes so far under the acquis have been largely cosmetic, the chapter is likely to be concluded as much on the basis of commitments as actual achievements. Consequently the EU Commission must make sure that there is careful scrutiny after signature of this chapter, including the possibility of sanctions if the Romanian government does not meet its obligations to the EU and to its citizens. Implementation is critical, and reform should go beyond the theoretical. Real steps to the creation of a genuinely independent judiciary will be a key benchmark of the new government's democratic credentials.

Mark Percival is the Managing Director of Romania Think Tank. More on Romania Think Tank can be found at its website, www.rtt.ro