Tag: Romania

Once again on the rule of law in Romania. The risk that thousands of defendants would not face criminal liability: a new wave of requests preliminary rulings at the CJEU

On By officialblogunioIn EssaysLeave a comment 

Dragoș Călin (Judge at the Bucharest Court of Appeal and Co-President of the Romanian Judges' Forum Association)
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The decisions of the Constitutional Court of Romania once again created a wave of requests for preliminary rulings at the CJEU. Currently there are ten such new referrals that the ordinary courts in Romania (Brașov Court of Appeal, Bucharest Court of Appeal, Bistrița First Instance Court) have submitted or are going to submit after drafting the decisions,[1] under Article 267 of the Treaty on the Functioning of the European Union. In fact, one of the requests (case C-107/23 PPU, Lin) will be heard in an urgent preliminary ruling procedure, therefore, in a very short time, a solution is expected from the CJEU, as the pleadings are scheduled for 10 May 2023. Another reference for a preliminary ruling was dismissed in a peculiar manner, as a result of the admission by the High Court of Cassation and Justice – Criminal Division of the request to transfer the hearing of the case, the High Court noting the fear of a defendant, judged in several cases in which he has such a capacity, regarding the referral to the CJEU.

In the domestic cases in which these requests were submitted, the accused requested the application of the principle of the most favorable criminal law (lex mitior) in the situation where a decision of the Constitutional Court of Romania declared unconstitutional a legal provision (Article 155 par. (1) of the Romanian Criminal Code) regarding the interruption of the limitation period of criminal liability (Decision no. 358/2022). To do so, the Constitutional Court argued the passivity of the legislator, which did not intervene to bring the legal text into agreement with another decision of the Constitutional Court, issued four years earlier (Decision no. 297/2018). During that time the case law of the common courts formed and attempted to interpret the existing in law in accordance with the Constitutional Court’s decision, the practical consequence of reducing to half the limitation period for all criminal acts for which a final judgment of conviction was not issued prior to the first decision of the Constitutional Court and of terminating the criminal proceedings against the accused in question.

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The system of investigation of offences committed by judges and prosecutors in Romania, once again under the attention of the CJEU

On By revistaunioIn Essays1 Comment 
Dragoș Călin (Judge at the Bucharest Court of Appeal and Co-President of the Romanian Judges' Forum Association)
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By the decision issued on 24 November 2022, the Pitești Court of Appeal referred two preliminary questions to the Court of Justice of the European Union, the second of which concerns the compatibility of the new system of investigation of offences committed by judges and prosecutors, as a result of the dismantling of the famous Special Section (SIOJ), criticized by all relevant international bodies and regarding which the Court of Justice of the European Union (CJEU) itself expressed serious doubts related to the compatibility with the European Union law.

Thus, by the judgment issued 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, the Grand Chamber of the Court of Justice of the European Union established that Article 2 and the second subparagraph of Article 19(1) of the TEU, as well as the Commission Decision 2006/928 of 13 December 2006 establishing a Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (CVM) must be interpreted as precluding national regulation that provides for the establishment in the Public Ministry of a specialized section that has exclusive competence to investigate the offences committed by judges and prosecutors without the establishment of such section being justified by objective and verifiable requirements related to the sound administration of justice and without being accompanied by specific guarantees that allow, on the one hand, to remove any risk that this section may be used as an instrument of political control over the activity of those judges and prosecutors likely to affect their independence and, on the other hand, to ensure that such competence can be used in relation to the latter in full compliance with the requirements resulting from Articles 47 and 48 of the Charter of Fundamental Rights of the European Union.

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The role of associations of judges in defending the rule of law: legitimacy of unconditional locus standi in situations where they seek to obtain effective jurisdictional protection in areas regulated by European Union law

On By officialblogunioIn EssaysLeave a comment 
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)].
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On 24 November 2022, the Pitești Court of Appeal referred two preliminary questions to the Court of Justice of the European Union, the first of which concerns the legitimacy of locus standi and the procedural interest of professional associations of judges in order to promote and defend the independence of judges and the rule of law, as well as to safeguard the status of the profession, in situations where associations seek to obtain effective jurisdictional protection in areas regulated by Union law.

The litigation initiated by the Romanian Judges’ Forum Association respectively by the Movement for Defending the Status of Prosecutors Association, two of the most important associations of Romanian judges and prosecutors, seeks the annulment of administrative acts regarding the appointment within the Prosecutor’s Office attached to the High Court of Cassation and Justice of prosecutors who will conduct criminal investigations in corruption cases regarding judges and prosecutors, given that, in Romania, the competence of the National Anticorruption Directorate in this field has been completely removed.

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Case C-205/22, C.D.A. Direct application by the national courts of the European Commission reports issued under the Cooperation and Verification Mechanism

On By officialblogunioIn Essays1 Comment 
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)].
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Very recently, on March 10, 2022, the Alba Iulia Court of Appeal – Administrative and Fiscal Litigation Section ordered the referral to the Court of Justice of the European Union, based on art. 267 of the Treaty on the Functioning of the European Union, with a new preliminary ruling in close connection with the Rule of law (Case C-205/22, C.D.A.).

In fact, the Romanian court’s request tends to ascertain mainly whether, in the interpretation of the CJEU, the principle of judicial independence enshrined in the second subparagraph of Article 19(1) TEU with reference to Article 2 TEU and Article 47 of the Charter of Fundamental Rights of the European Union and the principle of sincere cooperation, laid down in Article 4 TEU, preclude a national provision, such as that of Article 148(2) of the Romanian Constitution, as interpreted by the Romanian Constitutional Court, by Decision No 390/2021, according to which national courts cannot take account of the provisions of European Commission Decision 2006/928 and the recommendations made in the CVM Reports for the implementation of the benchmarks, on the ground that “national courts are not empowered to cooperate with a political institution of the European Union.”

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Summaries of judgments: Euro Box Promotion | Wiener Landesregierung and Others (Revocation of an assurance of naturalisation)

On By officialblogunioIn Summaries of judgmentsLeave a comment 
Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

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Judgment of the Court (Grand Chamber) of 21 December 2021, Joined cases C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, Euro Box Promotion e.a., EU:C:2021:1034

Reference for a preliminary ruling – Decision 2006/928/EC – Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption – Legal nature and effects – Binding on Romania – Rule of law – Judicial independence – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Fight against corruption – Protection of the European Union’s financial interests – Article 325(1) TFEU – ‘PFI’ Convention – Criminal proceedings – Decisions of the Curtea Constituțională (Constitutional Court, Romania) concerning the legality of the taking of certain evidence and the composition of judicial panels in cases of serious corruption – Duty on national courts to give full effect to the decisions of the Curtea Constituțională (Constitutional Court) – Disciplinary liability of judges in case of non-compliance with such decisions – Power to disapply decisions of the Curtea Constituțională (Constitutional Court) that conflict with EU law – Principle of primacy of EU law 

Facts

The disputes in the main proceedings follow on from a wide-ranging reform in the field of justice and the fight against corruption in Romania, a reform which is at the origin of the judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393) and has been monitored at EU level since 2007 under the cooperation and verification mechanism (‘the CVM’) established by Decision 2006/928.[1]

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Once again about the priority of the EU law in Romania: “Amédée ou comment s’en débarrasser”

On By officialblogunioIn Essays1 Comment 
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)].
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1. Introduction

In “Amédée, or How to Get Rid of It (Amédée ou comment s’en débarrasser)”, written by Eugène Ionesco (“Théâtre, Volume I”, Paris, Gallimard, 1954), Amédée and his wife Madeleine discuss how to deal with a continually growing corpse in the other room. That corpse is causing mushrooms to sprout all over the apartment and is apparently arousing suspicion among the neighbours. The audience is given no clear reason why the corpse is there.

Like Amédée and Madeleine, in the “priority of the EU law in Romania” saga, we are simply in a play in which nothing changes, but everything transforms.

Under pressure from the Constitutional Court’s decisions, ordinary judges refuse to apply CJEU judgments, and the example is provided by the High Court of Cassation and Justice and Craiova Court of Appeal.

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Case C-817/21, Inspecția Judiciară. Compatibility of the organization of an authority competent to carry out the disciplinary investigation of judges, which is under the total control of a single person, with the rules of the rule of law

On By officialblogunioIn Essays1 Comment 
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.

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