The Judiciary: Structure
Romania’s courts have increasingly
asserted their independence from the other powers. Judges appointed by
the President (80% of judges, the remainder being trainees) enjoy tenure.
Judges are managed by the Supreme Council of the Magistracy, which is chaired
by the Minister of Justice and made up of judges and prosecutors (5 of
the Council’s 15 members) elected by Parliament for four-year terms.
The executive supervises
the activities of judges via a body of inspectors under the authority of
the Minister of Justice. Though judges are the best paid staff in the public
sector, low wages are causing many to seek better-paid work in the private
sector.
The department of public
prosecutions, which is headed by a Prosecutor-General appointed by the
President, is under the umbrella of the Minister of Justice. Prosecutors
have extensive powers; in particular, the Prosecutor-General may, on either
his own initiative or that of the Minister of Justice, seek a review of
a final court ruling in a number of civil and criminal cases. Moreover,
large areas of prosecutors’ activities are not subject to judicial control.
Appeals against acts of the
administration may be lodged with ordinary courts, which have special chambers
for this purpose.
The "People’s Advocate" introduced
by the Romanian Constitution fulfils the functions traditionally assigned
to an Ombudsman. However, his powers and the means of exercising them are
not clearly defined.
The Constitutional Court,
which was set up in 1992, consists of nine members appointed for a single
nine-year term of office. The President, the Chamber of Deputies and the
Senate each appoint three members to the Court. It verifies the constitutionality
of bills at the request of various authorities (the Presidents of the Republic,
the Chamber of Deputies or the Senate, the Government, the Supreme Court,
or a group of 50 deputies or 25 senators) and also scrutinises existing
laws at the request of any interested party involved in legal proceedings.
However, the Court’s ruling that an act is unconstitutional is without
effect if Parliament upholds its original decision by a two-thirds majority
(Article 145 of the Constitution), which limits considerably the scope
of the supervision exercised.
Functioning of the Judiciary
The Romanian judicial system
is not working satisfactorily. The courts are overloaded and judgements
can be a long time coming. The problems can be attributed to a shortage
of qualified judges (23% of posts are vacant), a lack of equipment, complex
procedures and the great number of new rules to be enforced. The Government
has tabled a bill reforming dealings between the executive authorities
and the department of public prosecutions to increase the latter’s autonomy,
especially with regard as to whether cases should come to court. There
are also plans to increase salaries (already substantially increased towards
the end of 1996) and staffing in the Romanian judiciary.
The fact that the Constitutional
Court’s rulings can be overturned by a two-thirds majority of Parliament
is a major obstacle to genuine constitutional control in Romania.
European Commission Regular
Report on Romania 1999
The Judiciary
A series of measures have
been taken to strengthen the working of the judiciary.
The amendment of the Civil
Procedure Code in January 1998 has resulted in an acceleration of procedures.
In general, judicial proceedings are not excessively long. Civil
procedures take in the first instance 12 - 15 months on average and penal
procedures not more than 1 year. Only suspended cases may last longer.
Proceedings related to financial matters and other new specialised fields
of law however still take relatively long . The backlog of court
cases has been significantly reduced. At the beginning 1997 the backlog
was 480.320 files; reduced to 444.288 at the beginning of 1998. On 30 July
the backlog was 339.800 cases. The significant reduction in the backlog
from 1998 to July 1999 is mainly due to the amendment to the Civil procedures
Code entering into force in January 1998. This ordinance changed
the procedures relating to the requirement of the judges to provide a reasoning
for the decision as well as shortened the delays for issuing the
written format of the rulings and for filing appeals on grounds of fact
and on ground of law.
Other modifications to the
Law on the organisation of the judiciary have resulted in better
promotion possibilities for new magistrates to higher courts or to
decision-making positions. The brain drain of the recent years has
come to a halt. The modifications to the law on wages of magistrates and
auxiliary personnel in the justice system provided for an increase in salaries
and additional compensations. The Ministry of Justice introduced a human
resources policy for judges based on the principle of progressive career
development.
Administrative weaknesses
such as lack of access to case studies and court decisions still
affect the equitable application of law. The fifteen Courts of Appeal are
not inter- connected and few cases are finally brought to the
Supreme Court resulting in diverging case-law.
The Ministry of Justice
organises periodic meetings with the presidents of the Courts of Appeal;
though well intentioned, this is an insufficient measure. There is
scope for further improving court administration, in particular as
regards training and working conditions of staff and parties in the
court.
Decisions are consistently
enforced and the powers of the Prosecutor’s Office have been substantially
restrained. All prosecution acts may be reviewed by the judiciary.
The review of the organisational
structure of the Prosecutor’s Office combined with personnel changes of
strategic importance has resulted in more efficient prosecution, especially
in fraud and organised crime cases.
The National Institute of
the Magistracy is the main admission institution for new judges and prosecutors.
It should now be given the appropriate institutional responsibility
and resources. The newly established training centre for court clerks
and other auxiliary personnel is expected to make a positive contribution
as well.
Despite the positive measures,
overall the Romanian judicial system remains weak with a low level of technical
skills in EU law, financial, fiscal and banking law, new fields of commercial
law and specific areas such as money laundering, drug trafficking, illegal
migration and computer crime.