Measures introduced by Romania to regulate judges do not guarantee their independence and are contrary to EU law, according to official legal advice given to Europe’s top court.
The opinion from the Advocate General comes ahead of a forthcoming ruling by the European Court of Justice (ECJ). It is not binding but is seen as largely influential.
The advice referred to a contentious department to investigate judges and prosecutors. It was established under the former Social Democratic government, which was ousted in 2019.
Critics said it was designed to deter and intimidate prosecutors from pursuing high-level corruption cases.
Romania remains under EU monitoring over laws which critics claim threaten judicial independence and dilute the definition of corruption.
The opinion was issued following a request from Romanian courts, which asked the ECJ to rule whether the changes respected the rule of law and guaranteed judicial protection and independence.
This case concerns the creation of a prosecution department with exclusive oversight of judges’ offenses and also the interim appointment of the Chief Judicial Inspector, Lucian Netejoru.
His mandate expired in 2018 but he still holds the same position. He was reconfirmed, but it is unclear whether the procedure was carried out correctly. Mr. Netejoru is supported by former Social Democrat chairman Liviu Dragnea who is currently serving a 3 1/2 year prison sentence for abuse of office.
Michal Bobek, one of the ECJ’s Advocates General, said in an official legal recommendation to the court that the moves do not offer sufficient guarantees and go against EU law.
The legal advice also criticizes Romania over appointments to a judicial regulatory body, which it says mean that in practice people whose mandates had expired are reinstated.
It also says the new prosecution section, given sole powers to investigate judges, is unlawful as its creation was not transparent and there were inadequate guarantees against political interference.
Countries are free to regulate their own judges, the advice says, but there must be safeguards against undue pressure on the judiciary.
Earlier this year the European Court of Human Rights, which is not part of the EU, ruled that Romania’s former anti-corruption chief Laura Codruța Kovesi had her rights violated when she was ousted from office in 2018 for criticizng the government’s anti-graft legislation.