The Romanian body in charge of disciplinary proceedings against judges may be in breach of the Rule of law, the Court of Justice of the European Union ruled on Thursday 11 May (Case C-817/21).
In Romania, a party in several criminal cases is challenging the dismissal of several disciplinary complaints it has submitted to the competent judicial inspectorate against certain judges and prosecutors involved in the cases. In particular, it considers that the concentration of powers in the hands of the Chief Inspector is contrary to EU law.
Referred to by the Bucharest Court of Appeal, the Court recalls that the disciplinary system applicable to judges, who may be called upon to apply EU law, must provide the necessary guarantees to avoid any risk of using that disciplinary system as an instrument of political control over their activities (cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19) (see EUROPE B12721/30).
In particular, the CJEU notes that under Romanian law, disciplinary action for abuses committed by the Chief Inspector can only be brought by an official whose career depends to a large extent on the decisions of the Chief Inspector. And decisions relating to the Chief Inspector may be reviewed by his deputy, who has been appointed by the Chief Inspector and whose term of office will end at the same time as the Chief Inspector.
It is true, notes the European judge, that the dismissal of a complaint against the Chief Inspector may be the subject of an appeal that may lead to the annulment of the decision to dismiss. However, in the judge’s view, the Romanian disciplinary system seems, subject to the necessary verifications, to be such as to prevent the effective exercise of disciplinary action against the Chief Inspector.
It is up to the Bucharest Court of Appeal to assess the extent to which the Romanian justice system allows for the effective exercise of disciplinary actions against the Chief Inspector, as well as the effective and impartial handling of complaints against him. If this is not the case, it should be considered that the Romanian regulation is not designed in such a way as to not raise any legitimate doubt in the minds of litigants about the possible use of judicial inspection for the purpose of pressure or political control of judicial activity.
Furthermore, the Court found that the national legal and factual context, marked by the strengthening of the powers of the Chief Inspector and the close links between the latter and the executive, tended to corroborate the finding that the regulations at issue did not comply with the requirements of the Rule of law.
To see the Court’s judgment: https://aeur.eu/f/6um (Original version in French by Mathieu Bion)