Sever Voinescu, Dilema.ro: CSM vs Romania

Through a 76-page document issued on June 9 of this year, the CSM "defends the independence of judges". A strange and vehement defense! Not long ago, when asked about this document, the President of Romania responded as follows: "It is legitimate for the CSM to defend magistrates. However, it is not legitimate for the CSM to escalate. So it is very good that they have taken opinions, they have responded to these opinions. It is democracy, everyone defends their point of view. However, to indicate names and surnames of individuals and legal entities, NGOs, that is not correct at all... The thing happened, again, any escalation only harms Romanian society, regardless of which side it comes from. That is what I can say. Furthermore, obviously, I do not have institutional means to intervene in this matter."

I do not agree with what the president says, which is not surprising – for some time now, more and more of us do not agree with one thing or another that the president says. Moreover, the CSM is not a kind of union that builds a wall around its members, so it is not necessarily "legitimate" for the CSM to defend magistrates or, more precisely, it is not at all "legitimate" for the CSM to automatically defend magistrates as a reflexive gesture whenever a criticism or a protest arises from society. Although the unionization of the CSM is evident and, for this reason, the CSM is further away from what it should be according to the law and the Constitution, we must not forget that the CSM's job is not to "defend magistrates", nor to represent magistrates, because it is not the magistrates' union, but to be the "guarantor of the independence of Justice". And it should be emphasized in front of whom the CSM must guarantee the independence of Justice. Since the Constitution is a pact between society and the state, it is clear that the "creditor" of the obligation of the independence of Justice is society. I would be curious to hear from the CSM a list of threats to Justice and, especially, to hear from the CSM, a structure made up of jurists, how it understands the difference between "guarantor" and "defender". The CSM, as a guarantor, is an institution that responds to society that Justice is independent. And to respond effectively, the law gives the CSM certain powers (more than attributions, although the law calls them, mildly, attributions) both in relation to the political system and in relation to the magistrates' body itself. However, it remains unclear how the CSM guarantor responds to society when the "debtor" of the obligation of independence, namely the magistracy, is not quite independent, while the "creditor" of the obligation of independence, namely Romanian society, claims "non-fulfillment of the obligation".

More clearly, the CSM is not there to guarantee judges that they are left in peace to do what they want, but to guarantee society that judges are independent. Not that they are correct, not that they are fair, that is controlled by the courts of judicial review, but that they are independent. It is true, in recent years, the CSM has made every issue a matter of the independence of Justice, including the amount of pension after leaving activity or the degree of burden of the court hearing agenda. This broad way of looking at the independence of Justice actually means its dilution. As a former president of Romania said bluntly, at this moment there is the entire legal system necessary to ensure the independence of Justice and everything depends on the judges: they are as independent as they want or have the courage to be. The height of their independence is that no one can force them to be independent. The CSM should make them independent, but it does not. Now, if that is the case – and I believe it is – the CSM's job, as the guarantor of the independence of Justice, is to ensure that judges take the maximum possible independence. And for what exactly should judges be independent? Before anything else, against money and power, against the structures of economic-security influence, whether hidden or visible, and especially against the CSM itself. The idea that the main source of the erosion of judges' independence is NGOs is ridiculous and, frankly, those who support it take us for fools. The main source of the erosion of judges' independence is money and political power.

Returning to the president, I do not know what to understand when he says that he does not have "institutional means". Is it a statement of capitulation? We know that President Dan is in an acute crisis of power. He has no political power in today's Romania, political parties do whatever they want without having to take into account the will of the president, in Parliament there is not even one parliamentarian, not a single one, who would say that he represents the political direction of the president. However, the President of Romania is not silent and absent in relation to the CSM unless he wants to be so. He can also go to CSM meetings at any time and lead them. Leading a meeting, even if you do not have voting rights in it, is one of the most interesting levers that the law makes available to someone. A subtle lever, it is true, but real. Of course, the president cannot issue a decree to impose something on the CSM – in this sense, it is true, the president does not have levers. But leading meetings and being present at these meetings, associated with the immense authority of the millions of votes that made him the head of state, gives the president great influence in the CSM provided there is sustained dialogue and serious involvement in the issues of Justice. Now, if the president decides to use it or not and if he decides how to use it, that is another story. But it is not true that the president cannot do anything in relation to the CSM and I was saddened to hear this statement from Mr. Nicușor Dan because I understood from it that the current president has decided not to use the soft-power tools that the law and citizens make available to him.

The document through which the CSM "defends" independence actually adds to the confrontation between the tightly united justice system around the Savonea group and a good part of Romanian society. I am not referring here only to those structures in the press or extremely critical non-governmental organizations that have even been named in this document, but to a good part of society because the distrust in Justice and the social protest regarding how magistrates administer justice have a wide reach.

The CSM makes a huge mistake believing that this quasi-generalized discontent is manipulated and orchestrated. This tightening of ranks along the lines of "we are good, if we make a mistake it is not because of us, but because we are not provided with conditions, but in general we do not make mistakes and you who say we make mistakes are either ignorant or wicked and want to take our independence" sounds in spirit like the response given to its critics by the Ceaușescu regime in its last years and gives you chills. The counterarguments in that document are all debatable, starting with the invocation of statistics. A senseless argument. No one says that the practice of strategic changes of criminal panels to restart the case from scratch and fill the statute of limitations is widespread. On the contrary, what we say is that it happens in certain cases, few, in which important, influential people are judged, in a position to maneuver such a move. Obviously, a petty thief or a street con artist cannot produce a change of judge from the panel with a request before the final deadline. It is therefore irrelevant that in 99% of cases nothing like this happens. It is terribly relevant that it only happens in the cases of heavyweights. This is what irritates and shows that in Romania, if you have money, political power, or maneuver fine information, Justice favors you. And this is just one example where we clearly see that the CSM simply does not understand what is reproached to Justice or refuses to understand.

https://www.dilema.ro/tilc-show/csm-vs-romania