We begin this series of judicial-themed blog pieces on Romania, a country that used to be in the East-European communist bloc under the influence of the Soviet Union. Bare with our obviously unfunny jokes, and us in an attempt to amuse you, and keep reading. Let’s begin with some historical background; Romania went through a Soviet takeover in 1945 following the Second World War. Similar to other communist regimes, the judiciary was used as a simple arm of the totalitarian state (based on a Stalinist model), to legitimize its actions and crimes. The judges in the judiciary were appointed to the Supreme Court by the winning party and had to obey the regime in place, in hopes of staying in office. The judiciary was the subordinate of the securitate (the violent state secret police), and one needed to be a member of the communist youth to join any Law Faculty. In other words, the judiciary was entirely subordinate to the party-state and had virtually no independence.
The Berlin Wall fell in 1989, with the Romanian regime overthrown approximately one month later. The transition away from the communist regime was a long road. The centrality of the state, the deep subordination of all the state structures to the party, and the clinging of communist officials of second rank to positions of powers prevented any significant debate to take place in the judiciary, delaying significant transition for a prolonged time. Most notably, the judiciary still represented to a large extent the political power and will of the executive, with old practices still in place; the majority of decisions were still centralized in the ministry of justice and the only way to move up was to obey the executive. Moreover, judicial cartels developed to support the interests of the presidents of the courts, which signified that there was zero interest from the upper class to change this legal system to an independent judiciary. In consequence, this period did not see much progress in terms of rule of law. Things began to change with the new millennium and the beginnings of negotiations for Romanian accession to the European Union (EU), which finally occurred in 2007.
That’s how we got to the current judiciary, towards which we now turn.
Now, let me dive into each branch a little more and help clarify what exactly each branch does. At level one are the district courts, which are under the tribunals. They have general competence to judge every case that is not expressly sent by law under the jurisdiction of another Court. Their verdicts can be challenged by appeal in the tribunals. Level two consists of the National Tribunals, essentially dealing with cases that have been handed down by the district courts. At level three are the Courts of Appeal. They are the first courts to rule in tax disputes, administrative matters typically involving minister, and some criminal cases. The courts of appeal receive cases handed down by the Tribunal and district courts. Both Courts of Appeal and Tribunals can provide judicial review. You’ve made it to the last level, keep going! This level is formally known as the High Court of Cassation and Justice or Inalta Curte de Casatie si Justitie. The HCOCAJ (own acronym) ensures uniform interpretation and application of the law by the other courts, judicial review, and is the court of “last resort”.
I hope most of my fellow readers have made it to the final part of my blog. The last topic of this blog will be the mechanisms and appointments of individuals in the legal system. Let us begin with the constitutional court (CC). There are nine members in the CC, and six of the nine are appointed by parliament. The president appoints the remaining three. The judges are appointed for nine year terms, and the terms are not recurrent. Moreover, a sitting judge is not allowed to take other jobs, except for the job of the President of the Constitutional courts. Additionally, the president of the constitutional courts is elected by secret ballot, by the other judges for a three-year term. This procedure is done to maintain the integrity and independence of the Judges. Next is the Supreme Court, which was recognized in 1993, post-communist regime. Don’t forget guys, we’re still talking about Romania! The president of the country appoints the Supreme Court members and the members can exercise (no, not work out) ultimate authority over all other courts in Romania. What we see different here, from the constitutional courts is that the appointment terms are shorter, six years, but they may serve consecutive terms.
Additionally, there is the the Superior Council of Magistracy (SCM) , which is in charge of guaranteeing the independence of the judiciary. The SCM is composed of 19 members. The SCM is divided in two sections, the first section pertaining to the judges and the other section is devoted to the prosecutors, which deal with disciplinary breaches of duty. The institutions below function under the coordination of the SCM:
– The National Institute of Magistracy, which is in charge of the initial and continuous training of judges and prosecutors.
– The National School of Clerks, which is in charge of the initial and continuous training of auxiliary staff.
There are also mechanisms for lawyers, who in Romania are classified under a liberal profession. These lawyers have their own organization, the The National Union of Romanian Bars. When looking at the citizens in the modern post-communist society every individual has the right to a defense lawyer during a trial. They can either be represented by a chosen lawyer, or the state will appoint a lawyer.
Now, the ride has come to an end, please unfasten your seatbelts and exit to your right. On your way out click subscribe, and we will see you next week with a new blog entry, where we’re going to talk about the enduring and central problem that the Romanian judiciary has been wrestling with since the end of the communist regime; corruption. Stay tuned, La Revedere!