Recent Controversy Regarding the Promotion of Judges in Romania: Searching for Meritocracy

Abstract

The appointment of judges to the High Court of Cassation and Justice or to leading positions in other higher courts is a milestone for any judicial system, especially for Romania’s. Guarantees regarding merit-based selection and equal opportunity for each aspirant are essential as are transparent procedures, especially in light of the public image of the profession and the inherent requirements of a professional elite. The 2018 amendments to the “laws of judiciary” adversely affect the equity of judicial competition for those who aspire to these leading jurist positions. Pursuant to those amendments, the merit-based stages of judicial competition have been eliminated, effectively streamlining the selection process and placing responsibility for it with the Section for Judges of the Superior Council of Magistracy and the examiners appointed to special selection committees by Section members. In the absence of any constraints or term limits on the appointment of these examiners to these judicial selection committees, the same examiners are frequently are reappointed to successive terms of service, essentially giving them extraordinary power in successive cycles of appointing new judges to Romania’s highest courts. Moreover, the new normative Regulation which eliminates the requirement for the merit-based examination required for promotions to executive leadership positions in those courts disregards the judicial appointment standards set forth in the Cooperation and Verification Mechanism established by the European Commission. Its effect will result in the judicial selection process being governed by a subjective standard, one in which appointments are determined by college boards of judges seated on the higher court in the absence of any merit-based competition. This absence of any merit-based and objective selection standard is likely to dampen the incentive of professionally trained and experienced judges to pursue such executive leadership positions, particularly for those who are independently minded and who have indicated their support in various ways for key reforms oriented toward improving and enhancing the independence and competence of the Romanian judiciary.