In the latest clash over the rule of law in Europe, the European Union’s top court told Romania that it must abide by EU laws and commit to tackling corruption, a long-standing problem in the former communist country.
(CN) — In a ruling that gives heart to those fighting corruption and democratic backsliding in Romania, Europe’s highest court on Tuesday cast into legal doubt a set of controversial judicial reforms passed between 2017 and 2019 by a former Social Democratic government.
The European Court of Justice’s Grand Chamber ruled on six different legal questions related to a judicial overhaul by a government run by the center-left Social Democratic Party. Critics saw the changes as weakening the independence of Romania’s judiciary and shielding Romania’s corrupt elites from prosecution.
Large protests broke out after the changes were proposed in 2017 and the reforms remain at the center of Romanian politics. A new center-right government led by the National Liberal Party has made repealing the judicial changes a core promise.
At issue in Tuesday’s ruling, which was not immediately available in English, were a set of questions about the primacy of EU law in relation to Romania’s constitution, Romania’s obligations to tackle corruption as a condition to its entry into the EU in 2007 and new questionable mechanisms to hold judges and prosecutors accountable.
Before letting Romania and Bulgaria join the EU club in 2007, Brussels made the former communist countries adopt new laws and pledges to root out deep corruption in their nations. Political corruption was – and remains – a major problem in both countries. In Romania’s case, many say it inherited a corrupt system from the country’s longtime dictator, Nicolae Ceausescu.
But in 2017, through laws and emergency procedures, the Social Democratic government amended the “justice laws” Romania had passed in 2004 as part of talks to enter the EU and tried to relax penalties for official corruption and embezzlement.
The three justice laws were crafted to give prosecutors and judges more independence, but by 2017 the Romanian government argued it wanted to make the judiciary more efficient and open with its judicial changes.
Critics cried foul and tens of thousands of protesters took to the streets, accusing the Social Democratic Party of seeking to shield corrupt politicians from prosecution, stacking the courts with cronies and trying to get people convicted of corruption out of prison.
Most prominently, the party was led by Liviu Dragnea, a powerful politician whose business dealings had long been under scrutiny by anti-corruption investigators. He is in prison after being found guilty of vote rigging and abuse of office. He faces new charges of influence peddling to get a seat at former U.S. President Donald Trump’s inauguration, according to Balkan Insight, a news outlet.
On Tuesday, the EU high court took aim at the reforms, which are being challenged by groups representing prosecutors, judges and others. In September, a magistrate for the high court issued a legal opinion critical of the reforms.
The Luxembourg-based court said that Romania must abide by its pledges to tackle corruption as stipulated under an agreement it signed before joining the EU. The court added that Romania is legally required to meet a set of benchmarks the EU imposed on it to ensure its legal system is run properly and fairly.
The court noted that the benchmarks were established by the European Commission, the EU’s executive arm, to deal with deficiencies in Romania’s legal system.
“Romania is, therefore, required to take appropriate measures to meet the benchmarks and to refrain from implementing any measure which could jeopardize their being met,” the court said in an English statement on the ruling.
However, the high court stopped short of calling illegal a controversial law that set up a special section within the Public Prosecutor’s Office to investigate and prosecute alleged misdeeds by judges and prosecutors.
The EU court said it is up for Romanian courts to decide whether the new prosecutor’s section breaches EU law, but it noted that the new office must “be justified by objective and verifiable requirements relating to the sound administration of justice” and not be “used as an instrument of political control over the activity of those judges and prosecutors.”
This finding may be largely irrelevant because Romania’s new government is pushing legislation to do away with a special chamber related to such prosecutions, the Special Court for the Investigation of Magistrates.
The court also looked at a new law that makes judges personally liable for issuing rulings containing judicial errors. Critics contend this law can be used to apply pressure on judges and deter them from ruling against powerful interests.
While the high court expressed reservations about the law, it said the statute can be compatible with EU law if a judge’s liability “is limited to exceptional cases and is governed by objective and verifiable criteria.”
The ruling also said there must be “guarantees designed to avoid any risk of external pressure on the content of judicial decisions.”
“To that end, clear and precise rules defining the conduct which may give rise to the personal liability of judges are essential, in order to guarantee the independence inherent in their task and to avoid exposing them to the risk that their personal liability may be incurred solely because of their decision,” the court said. “The fact that a decision contains a judicial error cannot, in itself, suffice to render the judge concerned personally liable.”
The ruling said judicial errors must be investigated by authorities who “act objectively and impartially.”
In 2018, Romania’s then-Prime Minister Viorica Dancila, a Social Democrat, was reprimanded by the European Parliament for the judicial reforms and warned that Brussels was ready to punish Romania just as it had done with Hungary and Poland. EU institutions had by then opened sanctions proceedings against Poland and Hungary’s right-wing nationalist governments.
The clash between the EU and Poland and Hungary centers on arguments between those who feel that the EU is interfering in internal politics and those who say the bloc’s founding democratic principles are under threat.
Since that warning by the European Parliament, Romania has taken steps to reverse course. Romania’s president, Klaus Iohannis, also gummed up the Social Democratic Party’s judicial changes through his power to contest legislation. Iohannis, a National Liberal Party leader, has taken on the mantle of Romania’s corruption fighter. His party, too, has been accused of corruption, with a former party leader and prime minister, Calin Popescu-Tariceanu, charged with taking bribes in January.
The Social Democratic Party’s judicial overhaul drew such intense criticism because they were proposed at a time of tension as authorities sought to crack down on corruption.
Romania’s Anti-Corruption Directorate was carrying out numerous investigations against leading politicians for alleged corruption and related offenses. Those probes led to the convictions of a number of politicians.
Critics also noted that acquittals in high-profile cases led many to question the tactics used by prosecutors and even judges too. Those criticisms were given more fuel when it was revealed that intelligence services and judicial institutions had agreed to cooperate, raising questions about how independent judiciaries and prosecutors are in Romania.
High-ranking politicians and media campaigns allegedly also put pressure on and intimidated judges, according to a report by the Venice Commission, a judicial watchdog group set up by the Council of Europe, the body that created the European Court of Human Rights.
Despite Romania’s apparent efforts to regain the EU’s trust, deep problems remain, a recent report by the Council of Europe found. The council’s anti-corruption body, GRECO, said Romania has not done enough to prevent high-level corruption among members of parliament, judges and prosecutors. The report said Romania had implemented only five of 18 recommendations the council said were needed.
But the council noted that Romania is taking steps to make the appointment of prosecutors more transparent and limit judges’ liability.
Courthouse News reporter Cain Burdeau is based in the European Union.