ROMANIAN COMMITMENT TO INDEPENDENCE OF JUSTICE AND ANTICORRUPTION REFORMS UNDER CVM AND RULE OF LAW INCENTIVES. SOME CONSIDERATIONS ON CASE-LAW OF THE CONSTITUTIONAL COURT.

• Author: Curt, Cynthia Carmen

1. Introduction

   Democratic backsliding of Central and Eastern Europe in recent years is attested by many scholarly articles (Cianetti, Dawson and Hanley 2018; Dimitrova, 2018; Gora and de Wilde, 2020; Scott, 2021). According to some authors (Cianetti, Dawson and Hanley, 2018) the term 'backsliding' is properly used in cases of former consolidated democracies, such as Hungary and Poland. In other parts of the region, it can be detected a merely democratic regression, since consolidation was never the case for low-quality post-communist democracies. Democratic decline of Hungary and Poland took the form of 'executive aggrandizement': illiberal parties winning the parliamentary majority have engaged in state capture, by challenging the rule of law and limiting pluralism (Cianetti, Dawson and Hanley, 2018; Bermeo, 2016; Dimitrova, 2018). Romania and Bulgaria, for example, were challenging for a long time the independence of justice and fight against corruption, threatening EU rule of law core values (Dimitrova, 2018); here, institutional and legislative accelerated reforms were conducted under the EU accession incentives and are now declining. The causes of democratic decline in post-communist states such as Bulgaria, Romania, Serbia and Slovakia are determined by slow and only partial democratic reforms, leading to state capture by political and business elites, benefiting from state resources and weakening new democratic institutions in order to maintain power (Dimitrova, 2018). Public trust in the political and administrative elites is strongly influenced by fostering public integrity values (Radu, 2020); consequently, mass protests of citizens defending democratic institutions, civil liberties and accusing corrupt practices were present in the entire region (2013-2021), attesting a certain popular attachment to democratic values.

   Beyond the particular paths of democratic backsliding within Central and Eastern Europe, the result consists in threatening EU core values, accentuating the 'de-fragmentation' of EU law (Perju, 2018). Some general instruments grounding democratic decay could be identified in Central and Eastern European states (Dimitrova, 2018), putting into question the rule of law, independence of justice and anticorruption institutions. Internal safeguards such as constitutional courts, independent anticorruption prosecutorial offices, superior judicial councils and similar institutions were imperilled, along with mainstream media, civil society organisations and freedom of speech guarantees. Legislative 'reforms' of key-democratic institutions, enabling political interference in the judicial, were often used to undermine the independence of justice.

   EU capacity to intervene in order to safeguard the rule of law and separation of powers, as EU law core values, was often questioned in recent years. National Constitutional Courts, as domestic safeguards of rule of law, were targets of abusive political majorities, attempting to limit the effects of courts' decisions and competencies (Romania, 2012, Hungary, 2012, Poland, 2015); eventually, several Constitutional Courts were politically captured. The Cooperation and Verification Mechanism for Romania (CVM), set up through Commission Decision 2006/928/EC at the moment of Romania's accession to the EU, and Art. 7(1) of the Treaty on European Union (TEU) procedure for Poland and Hungary were, in the first instance, possible solutions for EU interventions to safeguard the rule of law and separation of powers. In Hungary, the authoritarian strong political majority revised the Constitution (in 2012 and 2021 new amendments were drafted) and the Constitutional Court was politically captured in order to oppose EU intervention. In Poland, the Parliament revised the Act of Constitutional Tribunal in order to diminish its independence. Further on, 'authoritarian' Constitutional Courts developed an abusive understanding of the principle of constitutional identity (Kovacs, 2017; Perju, 2018) related to Art. 4(2) TEU, in order to derogate from EU law and to defend the domestic 'autocratic legalism' based on 'ideological choice' (Scheppele, Kochenov and Grabowska-Moroz, 2020). Beginning with Costa v. ENEL, the European Court of Justice (ECJ) developed a long case-law defending the primacy of EU law (Kelemen and Pech, 2019; Perju, 2020). Recent ECJ case-law based on the interpretation of Art. 19 TEU, interlocked with pecuniary and ad interim blocking measures, succeeded to limit several legislative amendments undermining the independence of the judiciary (Kochenov and Bard, 2019; Scheppele, Kochenov and Grabowska-Moroz, 2020); the authors suggest that a broader approach of the ECJ case-law based upon systemic infringement actions of the Commission in order to defend EU core values (based on Art. 2 TEU), attached to the possibility of suspension of some EU funds for systematic violations of EU law (Art. 260, 279 TFEU), is needed (Kochenov and Bard, 2019; Scheppele, Kochenov and Grabowska-Moroz, 2020).

   Our analysis focuses on Romanian recent evolutions in the field of independence of justice and fight against corruption commitments, falling under Decision 2006/928/EC and CVM and Rule of Law reports. The study attempts to reflect the turning point in the case-law of the Constitutional Court, as an important domestic safeguard of EU core values, and its alignment to the practice of captured courts in the region, such as Hungary and Poland. The so-called 'Ro-Exit' Constitutional Court decision, issued on 18 May 2021, triggers major concerns related to Romania's commitment to EU values; possible restoration scenarios are explored.

2. Regional context of judicial reforms. Romania between CVM and Rule of Law

   Recent Rule of Law Reports (2020, 2021) emphasize some regional patterns that Romania seemed to have followed: large 'judicial reforms', political interference in the field of independence of justice and anticorruption institutions, decisions of constitutional courts opposing the principle of EU law primacy and EU law core values.

   In Hungary, concerns related to judicial 'reforms' triggered the initiation of Art. 7(1) TEU procedure; new legal amendments targeted the independence of authorities called to assure the balance within the judiciary (National Judicial Council). The Supreme Court (Kuria) declared unlawful a preliminary request addressed by a domestic court to the ECJ (European Court of Justice); new appointments to the Supreme Court overpassed the regular procedure; former Constitutional Court judges were appointed by the Parliament as Kuria judges (Rule of Law Report, Hungary, 2021). Independence of the Constitutional Court was put into question by the provisions of the new Constitution from 2012 (Venice Committee Opinion, CDL-AD (2012)009). Judges were targets of public criticism and the freedom of expression of judges was limited (ECHR, Baka v. Hungary, 2016). The prosecution service activity also raised concerns related to political influences of the Prosecutor General; the disciplinary proceedings against prosecutors have been criticized in terms of transparency and accountability by GRECO Reports (2020). High-level corruption cases investigations also remained limited (Rule of Law Report, Hungary, 2021).

   In Poland, the reforms of the judicial system (started in 2015) raised strong concerns related to the increasement of executive powers and political influences over the independence of justice; consequently, the Commission started the Art. 7(1) TEU procedure against Poland. The Constitutional Tribunal was subject to political capture, as the new Act of Constitutional Tribunal is undermining the independence of apex courts (Venice Committee Opinion, CDL-AD (2016)026). Also, ECHR decided on 7 May 2021 on the irregularities of the appointment of constitutional judges (Xero Flor v. Poland); the following controversial Constitutional Tribunal decisions were challenging the compatibility of EU law with the Polish Constitution, opposing the principle of primacy of EU law and ECJ decisions. The independence of the National Council for Judiciary was threatened by political appointments and the newly created Disciplinary Chamber initiated questionable procedures against judges; the Minister of Justice is holding the position of Prosecutor General, exercising supervision powers over the Central Anti-Corruption Bureau, in a context of a clear tendency of the executive subordinating the prosecutors. Infringement procedures were initiated and ad interim measures were disposed by the ECJ at the requests of the Commission (Rule of Law Report, Poland, 2021).

   For Bulgaria, the Rule of Law Report (2021) notes remaining challenges regarding the independence of the judiciary, in spite of CVM removal in 2019. The Supreme Judicial Council's composition and functioning rules raise further concerns. High-position judges were appointed overpassing the regular open competition; the Constitutional Court declared the exceptional procedure of appointment as constitutional. The influence of the Prosecutor General within the Prosecutor's Office and the Supreme Judicial Council is also a source of concern, as well as the necessity to extend the judicial review over the prosecutorial decision not to open an investigation. The draft law concerning the accountability and legal liability of the General Prosecutor and his deputy was a source of concern as well but, eventually, the Constitutional Court declared the law as unconstitutional; the issue remained unsolved, as well as the promotion regime of magistrates (Rule of Law Report, Bulgaria, 2020, 2021).

   Starting with the EU pre-accession stage, Romania has been focusing its efforts in the area of judicial independence reform and curbing systemic corruption. The January 2017 CVM Report attested important progress registered for the previous 10 years but pointed out the remaining steps to be followed referring to the...