Rodica Pricop

Criticising magistrates’ activity risks becoming a criminal offence in Romania shortly. Amidst domestic political war, the Superior Council of Magistracy (CSM) is trying to push a law introducing the censorship of negative opinions citizens pass on the judicial system. In the last few months, Romanians have been shocked by the manner in which CSM was trying to kill in the egg all possible criticism of prosecutors and judges, sending the Judicial Inspection to investigate public persons for the simple reason that they had (still) found the courage to doubt the fairness of a verdict or for denouncing the excessively zealous investigations, disrespect and even abuses committed by prosecutors against members of the public. Nothing can justify the questioning of people in the street, in churches or other public places without prior notice, without a complaint having been filed and without a legal defender being present.

The way in which the Anti-Corruption Department (DNA) has conducted investigations in the referendum case is unquestionably abusive and worthy of times we all deemed long set. The attitude of CSM, who claims that any form of criticism of the activity of prosecutors is ‘an influence’ of the course of the investigation and breaks the ‘independence’ of the judiciary is very dangerous. This attitude which is on the verge of becoming law, will only lead to a discretionary and abusive regime. We already had a glimpse of such a gloomy regime when the fate of Romania was decided upon by six Constitutional Court judges despite the will expressed by 90 per cent of the citizens who voted in the referendum for the impeachment of Traian Basescu. The injustice is all the more so big as in Romania a president may be elected by as few of three votes, but may not be dismissed by any less than 8.5 M (or fewer, as figures are still not official). If Romanians want to prevent a dictatorship backed by the magistrates, the Constitutional Court should be first completely unpoliticised and professionalized (we cannot help noticing the cynicism of PDL leader Vasile Blaga who, after the reinstatement of Traian Basescu, started advocating the removal of the CC from the influence of politics…) or transformed into a committee of the Parliament, the supreme institution of the state, as it is the practice in many other countries. While we are at this chapter, we cannot also skip the cynicism with which the Permanent Electoral Authority has proposed a new law under which all future referenda should not have the quorum condition… Arbitrary decision-making and instability of the legislative system, determined by the political control over some of the key-institutions of the state, alongside corruption, are Romania’s most serious problems at this time. As long as legislation is tailored to the needs of one person or for political or economic lobbies, Justice will never regain its role as a public power watching over legality and observance of civil rights, but will continue to conduct arbitrary investigations exclusively against people or entities that stand outside the circle of the Power and we will never have genuine rule of law.Today, Romania is in the situation where the heads of Justice introduce censorship and try to push legislation allowing criminal penalties against politicians who criticise the activity of magistrates. Accusing the Government and Parliament of ‘undermining the credibility of judges’ and of ‘putting pressure on judicial institutions’, on August 28 the CSM president was asking in a letter sent to the minister of justice no less than ‘to adopt legislation introducing an unequivocal, clear and effective mechanism allowing the criminal liability’ of politicians. We have presented in the pages of this publication, on innumerable occasions, rulings by which the European Court of Human Rights was convicting Romania for human rights violations, most of them on counts of violation of the right to fair trial, length of proceedings, protection of property and right to an effective remedy (Romania has to pay some 16 billion Euros in damages to former owners who won in Strasbourg actually). The fact that so many people no longer find justice in their own country, are subjected to abuse by a corrupt, ineffective and unprofessional justice system, especially by judges who violate their right to fair trial by various ways (rejection of documents proving their innocence or supporting their case, right to address the Court, inadmissibly long duration of proceedings) is a clear indication of the fact that the citizens of this country are not defended by the judicial system and this is exactly what drives them to seeking  justice in at ECHR, where Romania tops the chart of both applications and pending cases (second in the EU).  CSM is now considering (still) freely expressed views by citizens as things that lead to the ‘undermining of institutional stability’. But, if prosecutors and judges are shy and fearsome people who take to flight as soon as they see a mobster or a criminal, we should have no murder case and no other felony investigated and adjudicated in this country. CSM’s arguments are simply defying common sense. However, taking advantage of the unstable political context, the chiefs of the magistrates are trying to push things as far as they can, making it possible for any political statement or negative opinion regarding a verdict to be penalised. Only recently, some 25,000 Hungarian ethnics have protested in Sf. Gheorghe (West)a decision of the Buzau Tribunal that ruled the restitution of the Miko High School to the Reformed Church illegal. Instead of trying to gather information on the issues raised by the citizens (the protest was the biggest demonstration of Hungarian ethnics in Romania), instead CSM decided to have the Judicial Inspection investigate the Hungarian leaders who had denounced the verdict. It seems obvious that CSM members have not the best interests of the citizens at heart. In fact, this episode showed us as clearly as possible that CSM wants to bully anyone who dare criticise judicial decisions, even if they are unfair or illegal, and to induce a climate of fear and suspicion in the society. With the European Union taking also swift steps back from the respect for civil rights, we can only hope the future EU Prosecutor General IS NOT from Romania or at least not someone from the current CSM. In the logic in which CSM now operates, individuals considering themselves wronged by the Romanian justice system should face prosecution and trial and the seeking of legal remedy with the ECHR should be prohibited. There is only one step from the independence of an institution to a dictatorship of the arbitrary.  What the CSM magistrates insist on or are unable to understand is that one’s independence does not come with the right to abuse other by handing down judgements against the norms of democracy and the rule of law and breaking people’s freedom of expression and that the independence of the judiciary is to be safeguarded not by threats and criminal convictions, but rather by professionalism, ethics and moral probity beyond all doubt.