The advisory opinions come in a group of cases questioning the independence of the Romanian judiciary.
(CN) — A magistrate for the European Union’s high court said Thursday that the Romanian Constitutional Court was justified in finding the composition of certain panels on the country’s Supreme Court was unlawful, but it shouldn’t have required specialized panels to hear corruption cases.
European Court of Justice Advocate General Michael Bobek held in three nonbinding opinions that two decisions concerning judicial independence were compatible with EU law but one was not.
From 2016 to 2019, the Constitutional Court issued a series of rulings involving the independence of the judiciary. Two found that Romanian’s Supreme Court wasn’t properly staffed and didn’t use legally mandated experts in some corruption cases, and another mandated that only specialized police officers could use technical surveillance measures.
The Romanian Supreme Court is the nation’s top civil court, while the Constitutional Court is a specialized body that is separate from the regular court system. In 2019, several lower Romanian courts requested clarity about the Constitutional Court’s decisions on judicial independence.
In one challenged decision, the Constitutional Court found in 2018 that judicial panels at the Supreme Court ruling on corruption and tax evasion cases were improperly composed because they were determined by a lottery system.
Bobek ruled for Constitutional Court and found that regulations for the 27-member political and economic union do not govern how judicial panels are selected.
He wrote that EU law does not prevent a national constitutional court from declaring “that that judicial panels within the national supreme court have not been established in accordance with the law.” But he did note that if the case involves the financial interests of the EU, the situation might be different.
In another ruling from 2019, the Constitutional Court overturned two sets of convictions for money laundering, forgery and fraud because the defendants were convicted by “non-specialized” panels of Supreme Court judges.
According to the Constitutional Court, corruption cases should be decided by judges with specific legal knowledge on the subject. But Bobek ruled against the 2019 decision on Thursday, finding the requirement is needlessly complicated.
“What appears to lie at the heart of the matter is the absence of formal designation,” Bobek wrote. “However, once the [Supreme Court] formally determined that all its criminal panels were panels specialized on corruption, the same panels in exactly same composition became lawfully composed.”
The final decision at issue involves Romanian prosecutors using wiretaps to obtain evidence during a corruption investigation. Before the case went to trial, the Constitutional Court ruled in 2016 that only specialized police forces could conduct such surveillance. The defendants requested the evidence be thrown out, arguing it was obtained illegally.
The court referred the matter to the Luxembourg-based Court of Justice, and Bobek sided with the Constitutional Court.
The magistrate found that EU law “does not in any way regulate the manner in which technical surveillance measures in the framework of criminal proceedings are carried out, or the role and powers of domestic intelligence services.”
Rulings from the EU’s top court follow the legal reason of its magistrates in about 80% of cases. Final decisions on Thursday’s cases are expected later this year.
The Court of Justice heard arguments in another group of cases involving Romanian rule of law in 2020. The same advocate general concluded in September that other changes to the Romanian judicial system did violate EU law. A ruling is expected in those cases later this year as well.
Concerns over rule of law have grown across Europe in recent years, as the European Commission, the EU’s executive body, has tried to curtail a trend of reduction in democratic norms in countries like Poland and Hungary. The Court of Justice ruled on Tuesday that Poland’s right-wing government violated EU law when it changed the way Supreme Court judges are appointed.