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Preliminary conclusions and observations by the Special Rapporteur on the Independence of Judges and Lawyers: Visit to Romania

Bucharest, 24 May 2011

I visited Romania from 17 to 24 May 2011, in my capacity as United Nations Special Rapporteur on the Independence of Judges and Lawyers. My visit was undertaken at the invitation of the Government and included Bucharest, Iasi, Cluj Napoca and Pitescu.

The main purpose of my visit was to assess the situation of the independence of judges, prosecutors and lawyers in the context of the judicial reform process in the country. I looked into the organization and functioning of the judiciary and the legal profession and issues related to access to justice, legal aid, the predictability of the judicial system and how judicial decision-making is regarded. I also examined the policy and legal framework regulating issues pertaining to my mandate.

I met a wide variety of actors including the President of the High Court of Cassation and Justice; the President of the Constitutional Court; the President of the Superior Council of the Magistracy and some of its elected members; the Director of the National Institute of Magistracy; the Deputy Prosecutor General; the President of the National Council for Combating Discrimination; the President of the Senate Committee for Human Rights, Cults and Minorities; State Secretaries and other officials from the Ministries of Foreign Affairs and the Ministry of Justice as well as officials from the office of the People's Advocate and the National Integrity Agency. I also consulted a wide variety of non-governmental organizations and other stakeholders including representatives of judges, lawyers, prosecutors and bailiffs as well as the United Nations Country Team in Romania. I visited the penitentiary of Rahova and interviewed a number of detainees.

In Iasi, I met judges from the tribunal and the Court of Appeal as well as professors, students and representatives of lawyers, judges and civil society. In Cluj Napoca, I met judges from the judicatorii, the tribunal, and the Court of Appeal as well as professors, and representatives of lawyers, judges, bailiffs and civil society. In Pitescu, I met various stakeholders. Throughout the visit I consulted other stakeholders in their capacity as users of the administration of justice system in Romania.

I am very grateful to the Government of Romania for having offered me the opportunity to examine the independence and impartiality of judges, prosecutors and lawyers in an independent matter and with the fresh eyes of an external observer. My independence was respected during the visit, I had unrestricted access to stakeholders and enjoyed freedom of movement within the country. I would also like to express my deep appreciation to all stakeholders and interlocutors for their availability and the information and insights provided. I hope that we can continue engaging in a proactive dialogue and cooperation on issues related to my mandate and would like now to share with you some of my preliminary conclusions and observations.

Let me begin by referring to the independence and impartiality of judges, prosecutors and lawyers, as a fundamental pillar of a democratic society, respectful of the rule of law and the effective protection of human rights.

The Independence of the judiciary
The principle of an independent judiciary is directly related to that of a separation of powers. This principle also relates to the system of checks and balances aimed at preventing abuses of power to the detriment of a free society. The Executive, Legislature and Judiciary form three separate branches of the Government, each of which should be accountable to society. This means that accountability should be demanded of, and expected from, all branches of the State and not only from one of them.
This independence of the judiciary means that both the judiciary as an institution and also individual judges deciding particular cases must be able to exercise their professional responsibilities without being influenced by other branches of power or other external and internal sources. During my visit to Romania, I have been informed of concerns regarding the institutional independence of the judiciary, particularly regarding its de facto financial dependence from the Executive branch of Government. I have been informed that even if the law guarantees the financial independence of the judiciary, the application of the law has been adjourned systematically through ordinances adopted by the Ministry of Justice, which exerts effective control of the judicial budget.
I have also been informed of other factors that hamper the independence of magistrates and exert an important influence on the performance of their tasks. For example, challenges in the infrastructure of the courts, such as inadequate office space and insufficient venues for hearings, including at the level of the High Court of Cassation and Justice. I would like to recall that the Basic Principles on the Independence of the Judiciary recognize that “it is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions”.

The principle of the independence of judges was created to protect human beings against abuses of power. It follows that the discretion of judges to interpret and apply the law finds its limit in the law itself. This means that the independence on the judicial decision-making process cannot be according to a judge’s personal preferences, but that the judge duty is and remains to apply the law based on facts and evidences. This is why both the exercise of the profession of judge and judicial decisions are affected if the law lacks coherence or the legal framework is instable, for example, because of the excessive proliferation of laws, and a lack of adequate training so that judges may cope with changes. The independence of judges may also be severely impacted by an excessive workload and external pressures to produce decisions to be taken into consideration for statistical purposes. Nothing will benefit more judges, lawyers, prosecutors and in general the system of administration of justice in Romania than a coherent and unified legislative framework, which may be interpreted and applied in a unified way to ensure a reasonable margin of predictability of judicial decisions. The right to equality should also be upheld by ensuring equal treatment by the law, and before the courts, to all those that are placed in similar circumstances.

All judicial actors have the important responsibility to recognize people’s rights in an efficient, independent, impartial and transparent manner observing the principle of equality of all under the law. In doing so, the expected results will be achieved at the expected level of quality ensuring that justice is fairly administered to all in Romania.

I have been informed that Romania currently faces the challenge to find an appropriate balance between the immunity and accountability of magistrates. In this regard, the Basic Principles on the Independence of the Judiciary provide that “without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions”. The judicial immunity should be seen as a guarantor of the independence of the judges to decide. Such independence is not absolute if we consider that judges should be accountable. I would like to recall that the Bangalore Principles of judicial conduct are intended to establish standards for ethical conduct of judges. These include independence, impartiality, integrity, propriety, equality, competence and diligence.

The Bangalore principles are designed to serve as a guide for judges and provide the judiciary with a framework for regulating judicial conduct. They are also intended to assist members of the executive and the legislature, and lawyers and the public in general, to better understand and support the judiciary. These principles presuppose that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards. Those institutions should be themselves independent and impartial, and be intended "to supplement" and not "derogate" from existing rules of law and conduct binding judges. A judge shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary, which is fundamental to the maintenance of judicial independence.

In this regard, the Superior Council of the Magistracy is, under article 133 (2) of the Constitution of Romania, the competent body to perform the role of a disciplinary council for judges and ensure accountability of magistrates. The Superior Council of the Magistracy should carry out its functions properly and independently, avoiding politicization or excessive solidarity with judges colleagues, as it should act as a disciplinary body and take measures to promote the independence of the judiciary. I invite the Superior Council of the Magistracy together with the judiciary, to help the Government of Romania to uphold the rule of law particularly in all its efforts to combat corruption and organized crime.

Challenges to the independence of the legal professions
Judges, prosecutors and lawyers are often subjected to pressures of various kinds aimed at compromising their ability to exercise their professional responsibilities in true independence. Excessive workload is a serious threat to the independence of judges and lawyers as it compromises their professionalism. The congestion of the justice system occurs when cases are filed at a rate far in excess of what judges in the courts’ jurisdiction can dispose of within a reasonable time. Congestion threats the rule of law, inter alia, because it deprives individuals from their right to a fair trial within a reasonable time. It effectively delays justice in the courts, generates lengthy proceedings and erodes the system of the administration of justice.
Judges, prosecutors and lawyers are frequently also subjected to other kinds of pressure. Such acts may involve public criticism aimed at intimidating the legal professions or at manipulating public opinion so that it exerts undue pressure and influence on judicial decisions.

The independence of lawyers
Independent lawyers play a key role in defending human rights and fundamental freedoms at all times, a role which, together with that played by independent and impartial judges and prosecutors is indispensable for ensuring that the rule of law prevails, and that individual rights are protected effectively. I have learned that in Romania lawyers are able to pursue their work freely and without fear of reprisals. However, major pitfalls in the judicial system, such as the lack of harmonization of the law, the interpretation of the law, and judicial decisions, together with the constraints in resources and infrastructure faced by most of the courts, have also been affecting the adequate exercise of the legal profession.
Regarding the four future new codes, concerns have been raised on sanctions to be imposed to lawyers for not appearing in the courts rooms or for hearings due to the lack of coordination in the courts hearings schedule. I invite all stakeholders to reflect on avenues for coordination among lawyers, prosecutors and judges in the context of the judicial reform.
The independence of prosecutors
A legal system based on respect for the rule of law also needs strong, independent and impartial prosecutors willing to resolutely investigate and prosecute suspected crimes committed against human beings even if these crimes have been committed by persons acting in an official capacity.
The role of prosecutors is very important in Romania and the prosecution service has been the subject of a number of reforms aimed at strengthening its capacities. Efforts need to be redoubled in this connection, as it appears that the prosecution service is under-staffed. Furthermore, the recent powers granted to the Prosecutor-General to reassign investigations without a justified reason, should be carefully analyzed in light of the guidelines on the role of prosecutors, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990 and the guarantees that should exist in this regard in societies governed by the rule of law.
The reforms to the judiciary
Reforming implies changing the status quo. It is therefore a complex process that requires cautious reflection as to advance its future impact. A reform that truly aims to generate positive changes should foresee prior assessments and broad consultations with all stakeholders.
Romania introduced the so-called "small reform" (law 2002 of 2010) to prepare to embark into a major reform expected in 2011. During my visit to Romania, a great majority of stakeholders expressed serious concerns about the reform moving forward too quickly. Concern was also expressed that it is being done under emergency acts, which render fruitful dialogue difficult which should normally exist among the Ministry of Justice and others involved in the administration of justice as well as civil society. Most of these stakeholders explained to me the several conditions that should be in place for the reform to be a success in Romania and that are yet to be addressed. Some of these conditions are: ensuring adequate financial and human resources for the prosecution service and the courts to assume their new functions; informing the general public on the legal changes that are to be introduced and the expected results on the ground; and providing training to all judicial actors so as to ensure a uniform understanding of the reform, and its implications, for example, in terms of workload and celerity in the judicial proceedings.
Reform of the judiciary has been a process of change that has accompanied Romanian efforts to flourish as a democracy. As it now stands, its major goal should be to guarantee a system of administration of justice that ensures independence, impartiality, integrity, equality and transparency, all of which are prerequisites for the enjoyment of human rights by all in Romania. Keeping this goal in mind, I kindly invite the Romanian Government to adopt a people-centered perspective in its reform efforts, which should include access to justice and legal aid and counsel as priority areas.
I recognize the several challenges encountered in the past by Romania in the context of its economic transition. The European Court of Human Rights has identified some of these challenges through cases decided under its pilot-judgment procedure in the context of property rights and restitution. Let me paraphrase the Court in my own assessment: the practice of the domestic courts has been undermined by the absence of a stable legislative framework having as a result the lack of a uniform interpretation and application of the law; the lack of predictability of judicial decisions and the lack of acceptability of judicial decision-making. Other structural factors that need to be addressed include: the de facto financial dependence of the judiciary from the executive.
In line of some of the structural factors above, I invite the Supreme Council of the Magistracy, in close consultation with the judiciary, in all regions of the country and at all levels, to undertake a mapping exercise of the current needs of the judiciary and the way as they will be addressed in the reform, including an assessment of the needs of the judiciary in terms of infrastructure, personnel and budget, for the effective implementation of the four future new codes as their contribution to build up a solid and truly independent judiciary in Romania. I also invite the Executive and the legislature to give serious consideration to such mapping exercise and assessment in the judicial reform process in Romania.

In this regard, I call upon the Government of Romania to consider postponing at least for a year the enactment of the new four codes expected one for October 2011 and the remaining for January 2012. I also call upon the Parliament of Romania, to adopt in two blocks the new codes: in one block the new civil code and the new code of civil procedure and in a second block the new criminal code and code of criminal procedure. This measure will facilitate the understanding of the reform and will positively impact on the implementation of the law already adopted to accelerate the judicial proceedings.

Access to justice
Access to justice is a right in itself and it is also the means of restoring the exercise of rights that have been disregarded or violated. As such, access to justice is an indispensable component of specific rights such as the right to liberty and to personal safety. It is also closely linked to the right to effective judicial protection, which includes fair trial or due process, the right to an effective remedy and the right to equality and the prohibition of discrimination. I have to confess that during my visit, I have been trying to understand why Romania has left outside the judicial reform process aspects relating to access to justice, to focus mostly on "judicial productivity" measured only by the number of cases dealt by courts in a given period of time. In this regard, I would like to recall the importance of ensuring the right of everyone to access justice and the obligations of Romania under international and European law not to obstruct the right of access to judicial and other remedies against violations of human rights, and to remove all obstacles be they legal, social, cultural, economic or other that prevent or hinder the possibility of access to justice. This is of special importance in Romania as I have been informed of barriers to access to justice by groups that already face several challenges in their protection, such as persons of Roma origin and victims of human trafficking. During my visit, I also received information on other obstacles to access to justice by Romanians, in particular lack of financial means and legal aid and counsel.

Legal Aid and counsel
Legal aid and counsel is essential in free and democratic societies as it enables people to initiate and pursue justice procedures. As such, legal aid is instrumental in ensuring everyone's right to access to justice. During my visit, I learned that Romania does not account on a public defense system or specialized agency as legal aid and counsel involves professional lawyers through pro-bono representation. Most of the "users" of the judiciary that I met highlighted that pro-bono representation in practice is limited to criminal law cases, and that the quality of the defense is not adequately ensured.
The provision of legal aid is one of the main conditions to ensure access to justice in Romania. I would like to reaffirm that adequate legal aid and counsel impact positively on other fair trial rights, as the unequal economic or social status of the litigants is usually translated into the unequal possibility of defence in trial. This is why, I would like to invite the Government of Romania to adopt a people-centred approach to judicial reform and include both access to justice and legal aid as priorities within the judicial reform.

The National Institute of Magistracy
I believe that the development of international human rights law education programmes for judges, prosecutors, public defenders and lawyers is crucial to ensuring a solid foundation for democracy and the rule of law. I commend Romania for the priority it has given to strengthening the judicial system, particularly through continuous education for judicial actors. I met the Director of the National Institute of Magistracy and learned about the different comprehensive programmes they have for judges and prosecutors at the early stages of their careers. I was very pleased to learn in some of my meetings with stakeholders, about the positive impact of the programmes offered by the National Institute of Magistracy on the standards of professionalism of judges and prosecutors. I invite the National Institute of Magistracy to adopt a comprehensive approach in its trainings and consider providing specific training on international human rights law standards and consider offering separate programmes to judges and prosecutors.

Let me conclude by encouraging the media to help to bridge tolerance, dialogue and understanding of the judicial reform and its expected impact on the ground. I also would like to encourage the general public to engage on the judicial reform to contribute in building the transparent, fair, accessible, solid and independent system of administration of justice that will redound in benefits for the Romanian future generations.