reform in Romania – long overdue and long demanded by the European Union
as part of Romania’s EU admission requirements -- became the focus of
political debates last month following a Constitutional Court ruling
holding some of the Government’s proposed reforms unconstitutional. As a
result of that ruling, the Prime Minister announced his resignation and
that of his entire government stating that the Constitutional Court had
jeopardized Romania’s proposed entry into the EU in 2007. A few days
later he rescinded his resignation. Even with the dissolution of the
Government and early elections no longer appearing to be a real
possibility, it is clear that clashing political interests still taint
legislative efforts at reform.
2005 issue of The Romanian Digest™, we described a possible
cause of a delay in Romania’s entry into the EU due to insufficiencies
in its promised reform of its competition laws and the justice system.
In that article, we addressed the EU negotiations chapter on
competition, which could trigger the involvement of the safeguard clause
within the EU Accession Treaty signed this past April. However, this
summer, justice reform, the other chapter capable of causing a postponed
accession has become the focus of debate. The EU’s enlargement
commission criticized Romania for not implementing reforms capable of
reaching the highest levels of the judiciary. These insufficiencies also
affect Romania’s ongoing fight against corruption, which is still
widespread. This has been partially attributed to the lack of
independence of the judiciary.
The current coalition government, under Prime Minister Calin Popescu
Tariceanu, promised to do what many accuse the former government, led by
the Social Democrat Party (PSD), of not doing: ending corruption,
strengthening the rule of law, and reforming the judiciary. Indeed, the
PSD’s apparent continued reluctance in the Parliament – which it
currently controls -- to reform the judiciary is easy to understand, as
many of its members hold senior positions in the judiciary.
Mr. Tariceanu's government assumed responsibility for a package of draft
laws to be passed by Parliament and which included major reforms of
property laws, (see The Romanian Digest™, July 2005), and of the
judiciary. These reforms were passed with the exception of a handful of
provisions which the Constitutional Court held as unconstitutional. What
ensued was a political debate, with accusations flying between the
current Government and the PSD regarding the exertion of undue political
influence and actions detrimental to Romania’s EU accession aspirations.
The reforms rejected by the PSD-influenced Constitutional Court were
essentially those that dealt with the dismissal of judicial officials
appointed by the previous government led by the PSD. The scope of these
reforms was to make senior members of the judiciary independent of
political interference and influence and, ultimately, to combat
corruption and strengthen the overall independence of the judiciary.
However, the Court did find sound constitutional reasons for their
rejection, making the torrent of criticism to which it was subjected
Because of the Court’s decision, on July 7, Prime Minister Tariceanu
announced that he would resign as Prime Minister and dissolve his
government, a move which would trigger early elections 45 days after his
resignation. Mr. Tariceanu stated that the Government’s term was over
because, in his words, “We are faced with a political situation in which
the Constitutional Court essentially amputates the content of the laws
on justice reform and, in effect, prevents the current Government, in
which Parliament has placed its trust, from continuing the reform
process, as pledged to the EU. With the reform process thus frozen, we
stand no chance of obtaining a favorable report from the European
Mr. Tariceanu hoped that early elections in October would allow the
Government parties’ majority to be strengthened to the point of holding
a majority of the parliamentary seats. This would mean that they could
more easily counter the opposition to the reforms. A two-thirds majority
in Parliament would allow a Tariceanu government to overturn the
Constitutional Court’s decision - thus passing the rest of its proposed
judicial reforms. "A democratic vote is the only way to decide whether
Romania wants to continue reforming its judiciary or maintain this
scandalous system of a Constitutional Court dominated by a political
party, formerly in power, and now seeking to maintain its privileges,"
stated Mr. Tariceanu. However, many saw this move as a purely political
one intended to secure a stronger coalition with more of Prime Minister
Tariceanu people, and not one grounded in the desire to pass a few
Constitutional Court-rejected provisions.
Despite declaring that the resignation of the government was inevitable,
the Prime Minister soon after announced that, indeed, he had decided not
to resign. This decision came after his return from a meeting with
European Union officials in Brussels. The need for stability in the face
of Romania’s recent devastating floods was cited as the principal reason
for his change of heart, but the press speculated that one of the
possible reasons was that Jonathan Steele, the head of the European
Commission’s Delegation in Romania, convinced Mr. Tariceanu not to
resign for the good of Romania’s timely accession to the EU. This seems
plausible, as had the early elections occurred, they may have been
self-defeating in terms of facilitating the road to EU accession.
Although early elections would seek to remedy the rejection of justice
reforms that the current Government deems necessary to fulfill EU
requirements, they themselves might negatively affect the EU accession
process. The stability of Romania’s democracy is one of the four basic
requirements for accession. Furthermore, Romania’s business environment
could also be negatively affected by the dissolution of the Government;
indeed, concern about the effects of early elections was seen shortly
after Mr. Tariceanu’s announcement in the form of a drop in share values
on the Bucharest Stock Exchange. Prime Minister Tariceanu’s much
anticipated official resignation never came, but the issues surrounding
the events which triggered early election threats have not disappeared.
to Contents ]
Were the Justice Reforms Really
On July 25, the package of justice and property reforms went into
effect. Although the Constitutional Court eliminated a few parts of the
justice reforms, most of the laws remained untouched - laws which will
re-launch the fight against corruption and which should improve the
efficiency of the judicial system.
The Constitutional Court had the right to judicially review the proposed
reforms for their constitutionality because the opposition to Mr.
Tariceanu’s Government was able to secure a sufficient number of
signatures calling for their rejection. Under Article 146(a) of the
Romanian Constitution, a group of at least 50 deputies and at least 25
senators can send a law to the Constitutional Court for judicial review.
In this case, a group of 101 deputies and 39 senators objected to the
package of reforms for which the Government assumed responsibility in
front of the Chamber of Deputies and of the Senate and hoped to
promulgate in conformance with Article 114(1) of the Constitution.
The Government defended the constitutionality of the proposed reforms,
citing the promises it had undertaken to fulfill in order to join the EU.
The Constitutional Court upheld the proposed reforms and the procedure
which the Government had used for their adoption as constitutional
except in several instances.
Wearing different hats at the same time:
of the proposed reforms rejected by the Constitutional Court dealt with
the Supreme Council of Magistrates (hereafter “CSM”). Under Article 1 of
Law Nr. 317/2004 on the CSM, this body is the guarantor of the
independence of the judiciary. With the Government’s proposed
modifications of Law Nr. 317/2004 and Law Nr. 303/2004, laws
establishing the structure and function of the CSM, members of the CSM
could not hold senior positions in the CSM while also being judges and
prosecutors. These reforms therefore require that CSM members who are
currently in this situation would have to accept a suspension of their
positions as judges or prosecutors if they wish to continue as CSM
members. This forced choice would constitute, according to the Court, a
shortening of their judicial terms and would therefore impinge on Art.
125(1) of the Constitution establishing the principle of immovability
which stipulates that the status of judges cannot be modified mid-term
without their consent, and on Art. 133(4) of the Constitution which
establishes 6-year terms for CSM members.
The Court further stated that under Art. 133(2)(a) of the Constitution,
nine of the CSM members be judges and five of the CSM members be
prosecutors, and interpreted this constitutional provision as requiring
that the CSM members be active judges and prosecutors at the time of
their CSM terms. The Court explained that the purpose of this
Constitutional provision is ensuring that members of a judicial
authority are in touch with the inner-workings of the jobs they are
overseeing, and the best way to ensure this is to have these members
actually be practicing judges and prosecutors. Additionally, Art. 15(2)
of the Constitution does not allow newly-adopted laws to be
retroactively effective, something which would occur if these reforms
were implemented, as the law would prescribe that CSM members currently
in office abandon their positions as judges and prosecutors. Finally,
the Court also found that proposed reform having as their effect a
truncation of judicial terms impinged on the principle of Separation of
Powers of Art. 1(4) of the Constitution by allowing the legislative
branch to interfere in the domain of the judicial branch to the extent
that it could decide to prematurely end the terms of the judges and
The proposed reforms preventing members of the Supreme Council of
Magistrates from holding other senior posts in the judicial system would
have eliminated a major conflict of interest since, at present, the
Supreme Council of Magistrates is the body that assesses the performance
of individuals such as judges and prosecutors. These proposed reforms
might have passed judicial scrutiny under different eyes, but this is
venturing into a sphere of pure speculation. Legal analyses are never
clear-cut, and laws can almost always be interpreted in multiple ways.
For example, one could argue that the constitutional interpretation of
some of the clauses invoked for purposes of holding these rejected
reforms unconstitutional is stretched a bit far. This can be seen
particularly in the Court’s citing of the Separation of Powers clause as
being affected by a modification of terms. After all, legislation does
touch every branch of government, but this does not mean that the
Legislative Branch is directly meddling in the realms of the other
branches. Another provision which could have been interpreted in favor
of the reforms is Art. 133(2)(a) of the Constitution pertaining to the
composition of the CSM. This provision does not expressly state that the
CSM members must be practicing judges and prosecutors at the time that
they are serving on the CSM. One could argue that the CSM members may
only be practicing judges and prosecutors at the time immediately before
being named to the CSM, and that their practice may be suspended while
they continue to hold the nominal title of judges and prosecutors simply
to be distinguished from persons who held other positions before joining
the CSM. However, the Court’s interpretation can be found valid and must
stand, and since it does contain methodical legal analysis, one cannot
accuse it of being off base.
Retirement and Age Discrimination:
A proposed modification to Law Nr. 303/2004 Art. 81, regarding the
retirement of judges, prosecutors, assistant-magistrates of the High
Court of Cassation and Justice, special legal personnel, and
magistrates, stipulated that persons holding these positions had to
cease their professional activities at the retirement age stated in Law
Nr. 19/2000 on the public system of retirement, even if they do not meet
all the retirement conditions but have reached the respective age.
The Court found these reforms unconstitutional because they are
discriminatory, and contrary to the principles of Art. 16(1) of the
Constitution regarding the categories of citizens who benefit from the
principles of the public system of pensions in which Law 19/2000 is
grounded. In accordance with these principles and with the provisions of
the Constitution, retirement is a fundamental right of every citizen,
but not an obligation. Retirement is a right which a person asks for but
which cannot be imposed on him by any legal decision.
The Court continued by stating that, for complex and important functions
such as the profession of magistrates, there can be reasonable
retirement ages established as pertaining to the biological, physical
and mental aptitude necessary for the carrying out of their jobs.
However, maximum age limits prescribed under different circumstances do
not coincide with the standard age from which retirement is allowed. For
magistrates, almost all states have prescribed a maximum age limit of 70
or 68. Furthermore, Law Nr. 19/2000 allows for the systematic increase
by the year 2014 of the standard retirement age from 60 for women and 65
for men. However, under the proposed reforms, retirement would be forced
on magistrates and special legal personnel at 57 and 7 months for women
and 62 and 7 months for men.
Beyond the discriminatory character of these reforms, the Court found
them unconstitutional as pertaining to immovability of judges as
provided for in Art. 124 (3) and Art. 125(1) of the Constitution; this
was because the reforms would allow for dismissal, with or without a
pension, regardless of whether the person exercising his position is
capable of continuing the activities under his job description. Art.
155(5) of the Constitution also delineates a principle defining the
concept of immovability of judges under Art. 125(1) of the Constitution,
that in the case of a change in term limits, either through a
Constitutional amendment or a new law, magistrates currently serving
terms under the old laws will continue to serve out their term as
decided before the new laws were adopted.
In addition to an infringement of Romania’s constitution, the Court also
found that these retirement reforms impinge upon several international
standards. One such international standard can be found in the Seventh
UN Congress on the Prevention of Crime and Treatment of Offenders,
Milan, Italy 26 August - 6 September 1985. This document sets out the
fundamental principles regarding the independence of magistrates and
expressly state that the duration of the terms of judges, their
independence, their security and their corresponding remuneration, their
work conditions, and their pensions and retirement ages must be
adequately guaranteed by law. A similar statement appears in the
Universal Charter of the Judge, adopted at the meeting of the Central
Council of the International Association of Judges in Taipei on November
17, 1999, which stipulates in Article 8 that “any change to the judicial
obligatory retirement age must not have retroactive effect.” According
to the Court, these reforms, if adopted, would have precisely this kind
of internationally prohibited retroactive effect.
Finally, under the proposed addition of Art. 81(8) to Law Nr. 303/2004,
judges and prosecutors who would interrupt their functions as such in
order to become CSM members would lose the right to accumulate the
pensions for the years flanking their CSM membership. This clause was
held unconstitutional for being discriminatory against judges and
prosecutors as compared to other retirees, as Romanian Law 19/2000 on
the system of pensions guarantees the right of accumulation of pension
in a profession, regardless of the respective salaries. The Court also
found the clause to be discriminatory against CSM members who are judges
and prosecutors as compared to other CSM members not holding these
positions before joining the CSM.
The reforms addressing retirement of CSM members did appear to be
unconstitutional and contrary to accepted international norms. Again,
although judicial review is not a clear science, discriminatory
practices are clearly frowned down upon by sound democracies, and the
Court makes its point in a clear and supported manner.
These reforms, even without the constitutionally-rejected portions, chip
away at the previous invulnerability of the Prosecutor’s Office of the
High Court of Cassation and Justice (PICCJ) and the National
Prosecutor’s Office on Anti-corruption (PNA). Before these reforms,
members of these two bodies could not be replaced except under severe
disciplinary sanctions. From now on, members can be replaced if their
institutions prove to be inefficient.
A consequence of this was that Monica Macovei, the Minister of Justice,
was able to propose that Ioan Amarie, general prosecutor of the PNA, and
four adjuncts, be replaced. The inefficiency of the PNA has been evinced in the European
Commission’s country reports and in the Freedom House report, documents
which Monica Macovei has declared that she will rely on in calling for
to Contents ]
the weeks following the Constitutional Court decision, newspapers were
filled with criticism of the decision, with many claims that the Court
was obviously controlled by the PSD. While it is true that the majority
of the members of the Constitutional Court appointed by the PSD, the
amount of PSD influence on their decisions can only be guessed. One can
almost always argue at least two sides of a legal issue, and
Constitutional interpretation is not a black-and-white process. The
Court did make sound arguments in their rejection of several of the
reforms as unconstitutional. However, reactions justifiably show concern
at the rejection of certain clauses which would directly affect the
Court and other PSD members when one looks at the long list of PSD-politicized
institutions which include the High Court of Cassation and Justice, the
Supreme Council of Magistrates, the National Council on Audiovisual
Media, Radio-TVR, the Competition Council, the Commercial Bank of
Romania (BCR), and the Savings and Loans House (CEC).
Of course, other democracies are no strangers to political appointments.
However, in most, there exist guiding principles and restrictions to
place a check on the complete control of one political party.
Restrictions on politicization include screening candidates to exclude
those with ties to political parties and limiting terms in office.
Politicization is a harsh reality, and only an idealist would think that
judicial bodies can ever be shielded from political interests from
various directions. Even so, a little less mixing of politics and law in
Romania is not an unrealistic goal.
The judiciary reforms, even without the provisions the Constitutional
Court declared unconstitutional, are an important step for Romania to
take on its way to joining the EU and to distancing itself further from
its Communist past. The sound constitutional arguments from a body often
accused of being entirely politically driven is another.
to Contents ]
Editors Note: It is our policy not to mention our clients by name in
The Romanian Digest™ or discuss their business unless it is a matter of
public record and our clients approve. The information herein is correct
to the best of our knowledge and belief at press time. Specific advice
should be sought from us, however, before investment or other decisions
Copyright 2005 Rubin Meyer Doru & Trandafir, societate civila de avocati.
All rights reserved. No part of The Romanian Digest™ may be reproduced,
reused or redistributed in any form without prior written permission
from the publisher.
RUBIN MEYER DORU & TRANDAFIR
societate civila de avocati
Str. Putul cu Plopi, Nr.7, Sector 1
Tel: (40) (21) 311 14 60
Fax: (40) (21) 311 14 65
VISIT OUR WEB SITE:
The Romanian Digest Archive
Herzfeld & Rubin, P.C.
125 Broad Street
New York, NY, 10004
Tel: (212) 471-8500
Fax: (212) 344-3333
Herzfeld & Rubin LLP
1925 Century Park East
Los Angeles, California 90067
Tel: (310) 553-0451
Fax: (310) 553-0648
Chase, et al.,Herzfeld & Rubin, LLC
5N Regent Street
Livingston, New Jersey 07039
Tel: (973) 535-8840
Fax: (973) 535-8841
Israeli Affiliated Law Firm
Balter Guth Aloni & Co.
Textile Center, 2 Kaufman Street, 68012
Tel Aviv, Israel
New York — California — New Jersey — Romania
If you no longer wish to receive emails
from us, please send an e-mail with UNSUBSCRIBE
in the subject line to