Dragoș Călin [Judge at the Bucharest Court of Appeal, Co-President of the Romanian Judges' Forum Association, Director of the Judges' Forum Review (Revista Forumul Judecătorilor)].
The saga of requests for preliminary rulings by Romanian courts on the rule of law and the independence of judges continues, although, under pressure from the Romanian Constitutional Court’s decisions, ordinary judges have begun to refuse to apply European Union law. Failure to comply with the decisions of the Constitutional Court constitutes a disciplinary violation, a legislative solution that allows total disregard of the decisions of the Court of Justice of the European Union, for fear of disciplinary action. A climate of fear among judges was created by disciplinary actions initiated without any reservations by the Judicial Inspection against the judge of the Pitești Court of Appeal who dared to apply the CJEU decision of 18 May 2021, but also the judges who proposed and/or referred to the CJEU in this case.
In this context, on 10 December 2021, the Bucharest Court of Appeal – The 8th Division for Administrative and Fiscal Disputes, under Article 267 of the Treaty on the Functioning of the European Union, referred to the Court of Justice of the European Union for a preliminary ruling on the following question: “Articles 2 and 19 (1), second subparagraph, of the Treaty on the European Union, and the Decision 2006/928 (establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and fight against corruption), that is the guarantees of independence and impartiality imposed under the European Union law, must be interpreted as opposing a national regulation allowing the Chief Inspector of the Judicial Inspection to issue normative (infralegal) and/or individual administrative acts by which to decide autonomously the organization of the institutional framework of the Judicial Inspection for the selection of judicial inspectors and the evaluation of their activity, the performance of inspection works, respectively to decide on the appointment of the Deputy Chief Inspector, if, according to the organic law, these persons are the only ones who can carry out, confirm or reject acts of disciplinary investigation against the Chief Inspector?”.
In the case, the applicant criticized the organization and operation of the Judicial Inspection, namely that judicial inspectors who can carry out, confirm or refute acts of disciplinary investigation against the Chief Inspector are selected, evaluated and carry out inspection work based on an institutional framework in which the Chief Inspector is given the power to issue normative (infralegal) and individual administrative acts. Also, in case the Chief Inspector is targeted by their referral, the complaint against the discontinuance resolution is solved by the Deputy Chief Inspector, who is also appointed by the Chief Inspector, by unilateral, individual act. This possibility to issue the individual administrative act appointing the judicial inspectors who hold hierarchically inferior management positions within the Judicial Inspection (including the Deputy Chief Inspector) is provided by Article 69 para. (1)(a) of Law no. 317/2004, but this text also stipulates that “their mandate shall end at the same time with the mandate of the Chief Inspector”.
The Judicial Inspection is a body with legal personality within the Superior Council of Magistracy (SCM), whose accountability and transparency are expressly provided for as a purpose of the first benchmark of the Cooperation and Verification Mechanism developed by the European Commission (Decision 928/2006). The Judicial Inspection plays a key role in disciplinary proceedings in the judiciary, directly linked to the objective of strengthening the accountability and, therefore, the efficiency of the judiciary.
The importance of the independence of the Judicial Inspection derives from the fact that is conferred a wide range of jurisdictional duties, with a major impact on the career of judges and prosecutors, as follows: it carries out the disciplinary investigation, a mandatory preliminary stage to the disciplinary action against the judge or prosecutor, it carries out checks in order to assess the fulfilment of the conditions for performing the position in bad faith or gross negligence in case of a judicial error, it carries out checks in the case of applications for the protection of the independence, impartiality and professional reputation of judges and prosecutors, it verifies the fulfilment of the condition of good reputation necessary for performing the position of judge or prosecutor, it verifies the integrity of the applicants enrolled in the competition for promoting to the position of judge at the High Court of Cassation and Justice, it performs checks in courts and prosecutor’s offices on compliance with the provisions of laws and regulations, as well as the performance of managerial duties by judges and prosecutors holding a management position etc. The Judicial Inspection plays a key role in disciplinary proceedings, as it carries out the preliminary investigation and decides whether it is necessary to initiate a disciplinary investigation. This investigation is carried out by judicial inspectors before deciding whether or not to take disciplinary action before the competent section of the SCM. The Judicial Inspection also has important duties in initiating the procedure that leads to determining the existence of a judicial error.
By Law no. 24/2012 for amending and supplementing Law no. 303/2004 on the statute of judges and prosecutors and Law no. 317/2004 on the Superior Council of Magistracy, a thorough reform of the disciplinary system was made, based on the European Commission reports under the Cooperation and Verification Mechanism, one of the adopted measures being the institutional consolidation of the Judicial Inspection, by increasing its autonomy in relation to the Superior Council of Magistracy, both in terms of performance of duties and in terms of operational independence.
However, the positive evolution of the Judicial Inspection was stopped upon the entry into force of the amendments brought to the laws of justice in 2018.
Thus, first of all, on 5 September 2018, the Government adopted the Emergency Ordinance no. 77/2018, which provided that “in case of vacancy of the position of Chief Inspector or, as the case may be, of Deputy Chief Inspector of the Judicial Inspection as a result of expiry of the mandate, the interim position shall be held by the Chief Inspector or, as the case may be, the Deputy Chief Inspector whose mandates have expired, until these positions are occupied under the law”.
The intuitu personae effect of this regulation, with direct reference to the establishment by means of a legal provision of certain persons as interim holders of management positions, is clear from its statement of reasons, namely: “Given the need for interim positions to be held by persons who have demonstrated their professional and managerial competence, by already holding the given positions, having a thorough knowledge of the activity of the Judicial Inspection and passing a competition both at the time of the initial appointment and at the time of reappointments for a new mandate, under the law”, further stipulating that the provision also applies to the situations where the position of Chief Inspector or, as the case may be, Deputy Chief Inspector of the Judicial Inspection is vacant on the date of entry into force of this Emergency Ordinance”, given that the mandate of the Chief Inspector had ended on 01.09.2018.
The intervention of the executive power in regulating nominally, indirectly, the de facto management of the Judicial Inspection, by reappointing in office, by Government act, the persons whose mandates had just ended a few days before, represents an unfortunate interference in the operational independence of the Judicial Inspection, as long as the form in force of Law no. 317/2004 at that time provided, in Article 65 para. (2), that the “Judicial Inspection is led by a Chief Inspector, assisted by a Deputy Chief Inspector, appointed by competition organized by the Superior Council of Magistracy”.
Noticing this setback, the Commission’s Report under the Cooperation and Verification Mechanism of 13.11.2018 reveals growing concerns about the diminished independence of the Judicial Inspection, as follows: “A series of disciplinary investigations were started against the heads of key judicial institutions. Many of the judges and prosecutors concerned were also seen as critical voices concerning ongoing legislative procedures. It should be noted that the Consultative Council of European Judges and the Venice Commission have both underlined the importance that judges should be free comment in relevant public debates. The Judicial Inspection also conducted a series of controls at the office of the General Prosecutor and the National Anti-Corruption Directorate. The fact that in at least two cases, information reached the press before the end of the control was the source of particular controversy”. The report further underlined the key problem of the appointment of the Judicial Inspection management directly by the Government: “In addition, there was no competition organised by the Superior Council to appoint a new management of the Judicial Inspection, although the mandate of the management team expired end of August 2018. The decision of the Government to solve the situation by adopting an Emergency Ordinance to nominate the current team ad interim – rather than leaving this to the Superior Council – did nothing to assuage concerns”.
By judgment of the Grand Chamber of the Court of Justice of the European Union in the joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România and Others, it was established that Article 2 and the second subparagraph of Article 19(1) TEU, and Decision 2006/928 must be interpreted as precluding national legislation adopted by the government of a Member State, which allows the latter to make interim appointments to the management positions of the judicial body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, without following the ordinary appointment procedure laid down by the national law where that legislation is such as to give rise to reasonable doubts that the powers and functions of that body may be used as an instrument to exert pressure on or political control over the activity of those judges and prosecutors.
The same criticisms of the Judicial Inspection are repeated in the CVM Report published on 08.06.2021, in Benchmark 1 – Judicial independence and Judicial reform – the Judicial Inspection, clearly stating the following: “In recent years, judicial institutions, including the SCM itself, have highlighted concerns with the lack of accountability of the Judicial Inspection, citing the high proportion of cases brought by the Inspection eventually rejected in court, the concentration of all decision making with the Chief Inspector and the limits on the oversight powers of the SCM. More generally, these developments have raised questions on whether the provisions in the Justice laws for appointing the management of the Judicial Inspection and its accountability offer sufficient guarantees and achieve the right balance between judges, prosecutors and the SCM. The new draft justice laws of March 2021, on which the Minister of Justice requested the opinion of the SCM, modify the provisions on the appointment of the Chief and deputy Chief Inspectors, as well as the control mechanisms regarding the activity of the Judicial Inspection, giving stronger oversight powers to the SCM and involving the National Institute of Magistracy in the competitions for entering the Judicial Inspection. In the reporting period, judicial institutions reported an overall reduction in the activity of the Judicial Inspection, namely fewer ex-officio disciplinary proceedings raising concerns about objectivity. However, there remain cases where disciplinary investigations and heavy sanctions on judges critical of the efficiency and independence of the judiciary have raised concerns. Examples include disciplinary proceedings with proposal of preventive suspension from office until the finalisation of the disciplinary investigation and the decision of the SCM against judges from judges and prosecutors’ associations who have resisted the backwards changes of 2017-2019 and brought preliminary ruling requests to the European Court of Justice (the disciplinary investigation concerns group conversations leaked from a private social network group)”.
The 2021 Rule of Law Report (Chapter on the rule of law in Romania), published by the European Commission, took note of the start of a disciplinary investigation for committing disciplinary misconduct by bad faith or gross negligence in the exercise of duties, if the deed does not meet the constitutive elements of a crime, against a judge of the Piteşti Court of Appeal, as a result of applying in a case, on 7 June 2021, the ruling of the European Court of Justice of 18 May 2021.
Secondly, in the architecture of judicial inspection activities, the Chief Inspector has key duties, which were strengthened by another legislative amendment in 2018, namely Law no. 234/2018: appoints judicial inspectors, appoints inspectors with management positions, manages the activity of the Judicial Inspection and disciplinary proceedings, organizes the distribution of files, establishes specific areas of activity over which control is exercised, is the main issuer of instructions/orders and has the capacity to initiate disciplinary proceedings themselves or to endorse/confirm the solution of discontinuance of referral given by an inspector during the preliminary verifications.
By these amendments, the Judicial Inspection has become, practically, a pyramid-type public authority, which is unique in the Romanian judicial system, for the benefit of a single person, with an extended discretion (including in adopting the organizational regulatory framework, confirmation/reversal of judicial inspectors’ decisions etc.). In this structure, magistrates (judges and prosecutors) appointed judicial inspectors by the Chief Inspector are completely subordinated to the latter, with the risk that their functional independence is substantially affected.
In its request for a preliminary ruling, the Bucharest Court of Appeal held that the regulations issued by the Chief Inspector contain rules of national law regarding the structures of the institutions, the duties of the personnel, the registration and distribution of applications, deadlines for settlement, the appointment of judicial inspectors, the performance of inspection work, the appointment of persons with management positions by the Chief Inspector, the control and evaluation of their activity etc., whose issuance, amendment and supplementation is left by the ordinary legislator in the exclusive competence of a natural person – the Chief Inspector of the Judicial Inspection, and the regulation regarding the norms for carrying out the inspection works, approved by the order of the Chief Inspector, is not even subject to the procedure of publication in the Official Gazette of Romania.
The Constitutional Court of Romania has already ruled that even in the case of a collegial body, such as the Superior Council of Magistracy, and which is the “guarantor of the independence of justice”, according to Article 133 para. (1) of the Romanian Constitution, the “requirements of stability, predictability and clarity” are not met by issuance of administrative acts of a regulatory nature, of infralegal rank, in the matter of the transfer of judges and prosecutors, when the criteria are detailed by the Regulation (Decision no. 454 of 24.06.2020, para. 18). The same logical reasoning was applied by the Constitutional Court in the case of the conditions for admission to the profession of judge or prosecutor, especially in terms of the exam consisting of the interview (Decision no. 121 of 10.03.2020, para. 17), or the termination of the secondment of judges and prosecutors (Decision no. 588 of 21.09.2017, para. 16), which raises for the Bucharest Court of Appeal the legitimate question whether the appointment of a judicial inspector or their revocation from this position as a result of regular professional evaluation should not meet – at least – the same standard of the organic law regarding issues such as the way to establish the results and the possibility of challenging the marks obtained in each test, the evaluation criteria and procedure, etc., as guarantees of independence and impartiality.
Therefore, the question arises as to how robust a system of safeguards is, based mostly on administrative acts of a normative nature issued unilaterally by a person holding the position of Chief Inspector, when this very person may be subject to disciplinary action.
The Venice Commission, in the Opinion no. 855/2016, CDL-AD(2017)018, on the Judicial System Act in Bulgaria, showed that “it would be preferable that general rules governing inspections are set by another body – preferable by the Supreme Judicial Council. These general rules should be publicized, and should contain safeguards against arbitrary, lengthy or repeated inspections into the same matter”.
The Bucharest Court of Appeal also states that, although there are various forms of organization of the disciplinary system in the Member States, judicial inspectors and judicial inspection activities should be subject to the same standard of safeguards as those applicable to the judiciary, to which they belong, perhaps even more demanding, given that judicial inspectors are those who can exercise disciplinary action against any magistrate, including the person who holds the management position in the judicial inspection activity.
David Kosař, in the paper Perils of Judicial Self‑Government in Transitional Societies, Cambridge University Press, Cambridge, 2016, p. 407, suggests that certain forms of self-government create “a system of dependent judges within an independent judiciary”, unjustified influence being exercised by judicial officials, such as court presidents or officials of judicial self-governing bodies, within the judiciary (also see the Opinion of Advocate General Michal Bobek of 4 March 2021 in joined cases C‑357/19 and C‑547/19, Ministerul Public – Parchetul de pe lângă Înalta Curte de Casație și Justiție – Direcția Națională Anticorupție, paragraph 152, and the final judgment available here).
Therefore, the self-government of the judiciary may lead to the misuse of disciplinary proceedings and other accountability mechanisms or to the distortion of the meritocracy-based magistrates’ selection system, which are extremely interesting issues to be addressed by the CJEU.
Judges need to be protected from outside interventions or pressure that could jeopardize their independence. The rules applicable to the statute of judges and the exercise of their position as judges must allow, in particular, the exclusion not only of any direct influence, in the form of instructions, but also of indirect forms of influence likely to guide the decisions of the judges in question and thus remove a lack of the appearance of their independence or impartiality that could undermine the trust that the judiciary should instil in litigants in a democratic society and in the rule of law.
Also, in the Judgment of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, paragraphs 62-64, the Court of Justice of the European Union acknowledged the principle of maintaining the protection level of the Union’s values, a principle that can be analysed by the CJUE in relation to the amendment of the regulatory framework regarding the Judicial Inspection in Romania, in 2018.
 According to judgment: “Consequently, since those occupying management positions within such a body are likely to exert a decisive influence on its activity, the rules governing the procedure for appointment to those positions must be designed – as the Advocate General noted, in essence, in paragraph 269 of his Opinion in Cases C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19 – in such a way that there can be no reasonable doubt that the powers and functions of that body will not be used as an instrument to exert pressure on, or political control over, judicial activity (paragraph 200). (…) In particular, national legislation is likely to give rise to doubts such as those referred to in paragraph 200 above where, even temporarily, it has the effect of allowing the government of the Member State concerned to make appointments to the management positions of the body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, by disregarding the ordinary appointment procedure laid down by national law (paragraph 205”).
 Opinion no. 3(2002) of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the Council of Europe on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality; Opinion no. 1(2002) of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the Council of Europe on the on standards concerning the independence of the judiciary and the irremovability of judges.
 See, in this regard, Judgment of 18 May 2021, joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România and Others, point 193,Judgment of 2 March 2021, A. B. and others (Nomination des juges à la Cour suprême – Recours), C‑824/18, EU:C:2021:153, paragraphs 119 and 139, as well as the quoted case law.
Picture credits: Daniel_B_photos.