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⁴ Părău, Cristina, The Drive for Judicial Supremacy, in Judicial Independence in Transition (Anja Seibert-Fohr ed., 2015) 665.Google Scholar

⁵ Garoupa&Ginsburg, supra note 1 at 105.Google Scholar

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⁷ Garoupa & Ginsburg, supra note 1 at 103.Google Scholar

⁸ For details, see Selejan–Guţan, Bianca, The Constitution of Romania. A Contextual Analysis (2016) 181-182.Google Scholar

⁹ There are no special administrative courts.Google Scholar

¹⁰ Selejan-Gut̗an, supra note 8 at 186.Google Scholar

¹¹ Following the ECtHR judgment Pantea v. Romania, in 2003, the Romanian Constitution was amended so that only a judge can decide on preventive detention and the prosecutors lost this power.Google Scholar

¹² Articles 124-128 CR.Google Scholar

¹³ Guţan, Manuel, Judicial Culture as Vector of Legal Europeanization, in Europeanization and Judicial Culture in Contemporary Democracies (Manuel Guţan, Bianca Selejan–Guţan ed., 2014).Google Scholar

¹⁴ Ibid. See also Selejan–Guţan, Bianca, Transitional Constitutionalism and Transitional Justice in Postcommunist States – The Romanian Case in 2 Romanian Journal of Comparative Law 289-90(2010).Google Scholar

¹⁵ Kühn, Zdenek, Worlds Apart: Western and Central European Judicial Culture at the Onset of the European Enlargement in 52 American Journal of Comparative Law 550 (2004).Google Scholar

¹⁶ The only prohibition to occupy leading positions or positions in the SCM is for judges and prosecutors who were part of intelligence services before 1990 or who collaborated with these services (the old political police –Securitate). The National Council for the Study of Securitate's Archives (CNSAS) gives affidavits to certify this condition. See also Părău, supra note 4 at 641.Google Scholar

¹⁷ Selejan-Gut̗an, Bianca, Human Rights – An Element of the European Judicial Culture, in Guţan, Selejan-Gut̗an, supra note 12 at 214.Google Scholar

¹⁸ As provided by Article 37 of the Act of Accession of Romania to the EU (2005) and by Commission Decision of 13 December 2006 (2006/928/EC), http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:354:0056:0057:EN:PDF. The first benchmark was to “ensure a more transparent, and efficient judicial process notably by enhancing the capacity and accountability of the Superior Council of Magistracy.” See also COM(2007) 378 final, Report from the Commission to the European Parliament and Council on Romania's progress on accompanying measures following accession 2. Google Scholar

¹⁹ See, for details, Selejan-Gut̗an, supra note 8 at 190.Google Scholar

²⁰ See also David Kosař, Perils of Judicial Self-Government in Transitional Societies (2016) 23.Google Scholar

²¹ Bobek, Michal, Kosař, David, Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe, in 15 German Law Journal 1266 (2014).Google Scholar

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²³ See also Sebastian Spinei, Organizarea profesiilor juridice liberale (2010) 23.Google Scholar

²⁴ Ciobanu, Viorel Mihai, Articolul 133, in Constitutia Romaniei. Comentariu pe articole (loan Muraru, Elena Simina Tănăsescu ed, 2008) 1261.Google Scholar

²⁵ Geneza Constitutiei României. Lucrănrile Adunârii Constituante (1998) 669.Google Scholar

²⁶ Ibid. Google Scholar

²⁷ Law no. 142/1997.Google Scholar

²⁸ lancu, Bogdan, supra note 3 at 594.Google Scholar

²⁹ RCC, Decision 80/2014. For comments and details, see Bogdan lancu, Standards of good governance and peripheral constitutionalism. The case of post-accession Romania, in Sociology of Constitutions: A Paradoxical Perspective (Studies in the Sociology of Law (Alberto Febbrajo, Giancarlo Corsi ed, 2016) 191 et seq.Google Scholar

³⁰ See also Ion Popa, CoNsiuuL Superior al Magistraturii din Romania – de la succes institutional la eşec functional (2011) 18-19. The author characterizes the period as a ‘dictatorship’ of the Ministry of Justice on the SCM.Google Scholar

³¹ Dima, Bogdan, Tănăsescu, Elena Simina, Reforma constitutionalâ: analizâ Si proiectii (2012) 139.Google Scholar

³² Ibid, at 23.Google Scholar

³³ Article 38 (4) LSCM.Google Scholar

³⁴ RCC, Decision 901/2009, Decision 3/2014.Google Scholar

³⁵ RCC, Decision 3/2014.Google Scholar

³⁶ See, for details, Bianca Selejan-Gut̗an, We Don't Need No Constitution'–On a Sad EU Membership Anniversary in Romania, Verfassungsblog, 1 February 2017, http://verfassungsblog.de/wedontneednoconstitutiononasadeumembershipanniversaryinromania/.Google Scholar

³⁷ RCC, Decision 63/2017.Google Scholar

³⁸ Law no. 304/2004 on Judicial Organisation.Google Scholar

³⁹ Article 65(2).Google Scholar

⁴⁰ By the changes made by the Law no. 24/2012 to the Law no. 317/2004 on the SCM.Google Scholar

⁴¹ The 2018 amendments of the law on the organisation of the judiciary (entered into force on 23 July 2018) gave the Council the sole power of appointing the President and Vice-presidents of the HCCJ, by removing the competence of the President of Romania of appointing the chief justices. In the former regulation, the president of the HCCJ, as well as the vicepresident and the section presidents, were appointed by the President of Romania, at the proposal of the SCM, from among the high court's judges with a minimum of 2 years seniority in office. The actual management of the HCCJ is done by a Ruling Board that includes the president, vicepresident and 9 judges, elected by the general assembly of judges for a period of 3 years.Google Scholar

⁴² For example, the Ruling Board of the High Court of Cassation and Justice has the following powers: approves the Rules of Court and the staff roll of the Court; analyses the candidacies for the position of judge at the HCCJ and reports on them to the SCM; proposes the draft budget of the Court, etc.Google Scholar

⁴³ Established in 2005.Google Scholar

⁴⁴ See Kosař, supra note 19 at 11.Google Scholar

⁴⁵ Article 152 (1) reads as follows: “The provisions of this Constitution with regard to the national, independent, unitary and indivisible character of the Romanian State, the republican form of government, territorial integrity, independence of justice, political pluralism and official language shall not be subject to revision.”Google Scholar

⁴⁶ http://old.csm1909.ro/csm/linkuri/16_12_2016__85230_ro.htm Google Scholar

⁴⁷ http://old.csm1909.ro/csm/linkuri/15_11_2016__84154_ro.htm Google Scholar

⁴⁸ Selejan-Gut̗an, supra note 13 at 293.Google Scholar

⁴⁹ Ibid. at 294.Google Scholar

⁵⁰ See also Părău, supra note 4 at 657-58.Google Scholar

⁵¹ Brumărescu v. Romania, App. No. 28342/95 (28 October 1999) and the subsequent case law.Google Scholar

⁵² For a detailed account on “Black Tuesday” (2013), see Selejan-Gut̗an, , supra note 7 at 86.Google Scholar

⁵³ COM(2013) final at 4.Google Scholar

⁵⁴ Ibid. Google Scholar

⁵⁵ COM (2013)47 final at 4. See, for details, the 2017 Technical report SWD(2017) 25 final at 1314.Google Scholar

⁵⁶ Two disciplinary cases based on this text were referred to the SCM in 2017 and are still pending.Google Scholar

⁵⁷ The amendments of the law on the status of magistrates were challenged several times at the Constitutional Court before promulgation. The Court gave its first decisions in January 2018. As a result, all drafts were declared partially unconstitutional and reexamined by Parliament. Currently (July 2018), the readopted versions are in the process of promulgation and were referred again to the Constitutional Court.Google Scholar

⁵⁸ One of the judges’ associations registered an amicus curiae statement at the Constitutional Court, where numerous breaches of the Constitution are emphasized. See Forumul Judecatorilor, Memoriu amicus curiae pentru Curtea Constitutionala a Romaniei, http://www.forumuljudecatorilor.ro/wpcontent/uploads/AmicuscuriaeCCRIegilejustitiei.pdf Google Scholar

⁵⁹ See, for details, Bianca Selejan–Guţan, Failing to Struggle or Struggling to Fail? On the New Judiciary Legislation Changes in Romania, Verfassungsblog, 31 January 2018, https://verfassungsblog.de/failingtostruggleorstrugglingtofailonthenewjudiciarylegislationchangesinromania/ Google Scholar

⁶⁰ SCM, Decision no. 1148/9 November 2017.Google Scholar

⁶¹ A loose interpretation of the Romanian Constitutional Court, i.e. a principle that could cover and define separation of powers more broadly.Google Scholar

⁶² RCC, Decision no. 972/2012.Google Scholar

⁶³ RCC, Decision 901/2009.Google Scholar

⁶⁴ SWD(2017) 25 final at 12.Google Scholar

⁶⁵ See, for details, lancu, supra note 3 at 584585.Google Scholar

⁶⁶ Selejan-Gut̗an, supra note 13 at 289.Google Scholar

⁶⁷ Law no. 303/2004.Google Scholar

⁶⁸ Source: SCM Reports on 2014 and 2015, http://old.csm1909.ro/csm/index.php?cmd=24; Reports of the Judicial Inspection on 2016 and 2017, http://old.csm1909.ro/csm/linkuri/09_03_2017__86944_ro.pdf and http://old.csm1909.ro/csm/linkuri/07_03_2018__90791_ro.pdf.Google Scholar

⁶⁹ COM(2011)460 final at 5.Google Scholar

⁷⁰ COM (2012)56 final at 3.Google Scholar

⁷¹ CVM Progress Report, January 2016: https://ec.europa.eu/transparency/regdoc/?fuseaction=list&n=10&adv=0&coteld=1&year=2016&number=41&version=F&dateFrom=&dateTo=&serviceld=&documentType=&title=&titleLanguage=&titleSearch=EXACT&sortBy=NUMBER&sortOrder=DESC.Google Scholar

⁷² SWD(2017)25 final at 910.Google Scholar

⁷³ SCM, Decision 1/J of February 2017. In April 2018, the same judge was excluded once again from magistracy, for a different offence.Google Scholar

⁷⁴ http://www.scj.ro/1094/Detaliidosar?customQuery%5B0%5D.Key=id&customQuery%5B0%5D.Value=100000000309773.Google Scholar

⁷⁵ http://www.digi24.ro/stiri/actualitate/csmlegearaspunderiimagistratilornuesteoportuna648378.Google Scholar

⁷⁶ The Law was challenged at the Constitutional Court before promulgation, declared partly unconstitutional, was reexamined by the Parliament in March 2018 and is now pending promulgation.Google Scholar

⁷⁷ SCM, supra note 56 at 12. In March 2018, the Council of Europe's Group of States against Corruption adopted a Report which recommended the removal of this special section from the draft legislation. See GrecoAdHocRep(2018)2 at 17.Google Scholar

⁷⁸ RCC, Decision 33/2018. The new provisions are likely to enter into force later in 2018.Google Scholar

⁷⁹ Tănăsescu & Popescu, supra note 2 at 171.Google Scholar

⁸⁰ Ibid. at 172.Google Scholar

⁸¹ http://stiri.tvr.ro/disputeledincsmconflictintrejudecatorisiprocurorialegerinetransparente_25751.html. See also Selejan-Gut̗an, supra note 7 at 195-96.Google Scholar

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⁸⁴ See also lancu, supra note 28 at 192.Google Scholar

⁸⁵ http://www.mediafax.ro/social/increderearomanilorinjustitiesisistemuljudiciarinscadereaccentuataeurobarometru15574460. For the 2017 data, http://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/Survey/getSurveyDetail/instruments/STANDARD/surveyKy/2143.Google Scholar

⁸⁶ Gavreliuc, Alin, “Dreptatea” si “apărătorii dreptătii” in imaginarul social românesc. Studiu de caz coruptia, in Despre jurişti (Raluca Bercea, Alexandra Mercescu ed, 2017) 336-337.Google Scholar

⁸⁷ The 2016 SCM Report, https://www.csm1909.ro/PageDetails.aspx?Pageld=267&Folderld=3570.Google Scholar

⁸⁸ For example, the campaigns against the former president of the High Court of Cassation and Justice, in which she was accused of manipulating evidence in a case against a person who accused her of not paying some private debts; the campaign against the general anticorruption prosecutor in which she was accused of plagiarizing her doctoral thesis. Some of the corruption scandals mentioned in the sections above were also important for the decrease in public confidence in the judiciary.Google Scholar

⁸⁹ RCC, Decision no. 63/2017.Google Scholar

⁹⁰ RCC, Decision no. 972/2012.Google Scholar

⁹¹ See also Bogdan Dima, The Authority of the Judicial Power, in The Dialogue between the Judiciary from Romania and the other Authorities of State in the Consolidation of the Rule of Law (Rodica Aida Popa ed, 2016) 248.Google Scholar

⁹² Kosař, supra, note 19 at 1.Google Scholar

⁹³ Dima, supra note 90 at 249.Google Scholar

⁹⁴ Dima & Tănăsescu, supra note 30 at 142.Google Scholar

⁹⁵ Ibid at 139.Google Scholar

⁹⁶ Venice Commission, supra note 7, §137.Google Scholar

⁹⁷ In its preliminary opinion, the Venice Commission also stated that: “Although welcome improvements have been brought to the drafts following criticism and a number of decisions of the Constitutional Court, it would be difficult not to see the danger that, together, these instruments could result in pressure on judges and prosecutors, and ultimately, undermine the independence of the judiciary and of its members and, coupled with the early retirement arrangements, its efficiency and its quality, with negative consequences for the fight against corruption”, supra note 7, §162.Google Scholar

⁹⁸ See European Commission, COM(2018) 851 final, Report from the Commission to the European Parliament and the Council on Progress in Romania under the Cooperation and Verification Mechanism, Strasbourg, 13 November 2018 at 17: “The entry into force of the amended Justice laws, the pressure on judicial independence in general and on the National Anti-Corruption Directorate in particular, (…) have reversed or called into question the irreversibility of progress.”Google Scholar