Commission Report 2002 (Romania)

The judicial system

Reform of the judiciary has been limited during the reporting period and the main concerns raised in last year`s Regular Report have not been addressed. In particular, the involvement of the executive in judicial affairs has not been substantially reduced, the courts remain over-burdened, the General Prosecutor has retained an extensive right to introduce extraordinary appeals, and the combination of a lack of resources and an inadequate human resources policy means that the judicial system is severely strained.

The Romanian judicial system has four levels of courts: courts of first instance in the large cities, tribunals which are organised at the county level, court of appeal, and a Supreme Court of Justice. The Prosecutor-General is attached to the Supreme Court. The Supreme Court is also the supreme jurisdiction for the separate system of special military courts. In general, cases enjoy a judgement in substance in the first jurisdiction and two degrees of judicial redress: appeal on facts and appeal on law. There is also a Constitutional Court in Romania. This Court has a two-fold jurisdiction: the examination of laws before their promulgation by the President, and the examination of laws already in force when their constitutionality is challenged before ordinary courts.

The Superior Council of the Magistracy proposes the appointment of judges and prosecutors to the President and is responsible for disciplinary matters as well as judicial promotions. However, selection of Council members lacks transparency and, as in the past, the Minister of Justice has a strong influence over the Council. An amendment to the Law on Judicial Organisation has increased the number of members in the Council from 15 to 17 in order to increase representation of tribunals. In a separate, positive development the Minister of Justice issued an order stipulating that the promotion of judges and prosecutors is merit-based and decided following an open competition using written and oral tests. This promotion process is supervised by a commission composed of university professors, researchers, legal practitioners and experts working within the Ministry of Justice. Given that political influence over the judiciary remains a concern in Romania, further reforms are needed to strengthen the role of the Council and guarantee the independence of the judiciary.

The General Prosecutor, who is sub-ordinated to the Executive, has continued to use his discretionary power to bring extraordinary appeals against judicial decisions. The concerns expressed in last year`s Regular Report, over allowing extraordinary appeals to be made even before other legal remedies have been exhausted and about the relaxation of the criteria for introducing such appeals, have not been addressed. This situation has been found contrary to the European Convention of Human Rights and undermines the principle of legal certainty.

The National Institute of Magistracy is the main entry point for a career as a judge or prosecutor and trainees are selected following highly competitive open competitions. The other common route into these professions is for lawyers to pass an examination. However, individuals with a doctorate in law or who have been magistrates, general inspectors or legal counsellors within the Ministry of Justice can be appointed as judges or prosecutors without having to pass a competitive examination. This raises the possibility of political appointments and could undermine the independence of the judiciary.

The National Institute of Magistracy is legally dependent on the Ministry of Justice for its funding, numbers of trainees, approval of programmes and trainers, and generally for the approval of decisions adopted by the Institute's Council. There has been no progress with the granting of self-governing status to the Institute. The centre providing initial training for Court Clerks became operational during the reporting period. Despite the fact that two regional centres for continuous training have been created they are not operational and the Ministry of Justice has not yet established a clear policy on in-service training for judges and prosecutors. Although training provisions have been improved they remain inadequate and the quality of training for all judicial professions, including clerical staff, should be improved. Particular attention needs to be given to providing specialised training on issues such as economic crime, money laundering and the fight against corruption.

The total number of judges and judicial vacancies has not changed substantially over the reporting period. The average number of cases dealt with by each judge increased from 511 in 2000 to 531 in 2001, and this heavy workload is a particular problem in the tribunals and courts of appeal and has negative consequences for the quality of judgement. Working conditions remain poor and despite an evident need there has only been limited progress with the introduction of IT systems in courts and in prosecutors' offices, and in terms of improving court management.

The number of judges working in the Supreme Court increased over the reporting period, although the workload remains excessive. Additional staff resources as well as measures to reduce the number of cases forwarded to the Supreme Court are necessary.

The situation with regard to the enforcement of civil decisions has improved. Enforcement is the responsibility of private bailiffs and is carried out effectively in most cases.

The Romanian system of legal aid is operational but is limited and should be extended. There have been no changes over the reporting period, and in criminal cases, mandatory legal aid is provided in all cases of detention and to all minors. However, legal aid is only mandatory during hearings for cases where the punishment exceeds five years imprisonment and in cases where the court decides that the defendant is unable to defend himself. The Civil Procedure Code contains provisions for granting legal aid to persons who cannot afford the legal costs of a civil case. Legal assistance service are organized by the bars and payment is provided by the Ministry of Justice.

In order to address the issues set out above, the Romanian authorities are advised to draw up a comprehensive strategy to further reform and improve the functioning of the judiciary. Such a strategy should include an implementation plan with budgetary provisions.

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