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PP RUEHAG RUEHAST RUEHDA RUEHDBU RUEHDF RUEHFL RUEHIK RUEHKW RUEHLA
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DE RUEHBM #0525/01 2090525
ZNR UUUUU ZZH
P 280525Z JUL 09
FM AMEMBASSY BUCHAREST
TO RUEHC/SECSTATE WASHDC PRIORITY 9771
RUEAWJA/DEPT OF JUSTICE WASHINGTON DC PRIORITY
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE

UNCLAS SECTION 01 OF 03 BUCHAREST 000525 
 
SENSITIVE 
 
DEPT FOR EUR/CE ASCHEIBE 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV SOCI KCOR KJUS PREL RO
SUBJECT: ROMANIAN JUDICIARY UPDATE: CONSTITUTIONAL STALEMATE AND 
UPCOMING HOT ISSUES 
 
REF: BUCHAREST 448 
Sensitive but Unclassified, not for Internet distribution. 
¶1. (SBU) Summary:  On July 20, the Charge d'Affaires and DOJ RLA met 
with Prosecutor General Codruta Kovesi, Tom Barnes from the European 
Commission's Cooperation and Verification Mechanism, and Laura 
Stefan, anti-corruption expert with the Romanian Academic Society. 
Issues discussed included the ongoing dispute over judicial bonuses, 
as well as other upcoming topics of interest in the area:  the 
appointment of a new head of the High Court of Cassation and 
Justice, the Prosecutor General's re-appointment, preparation of 
implementing legislation for the new substantive criminal and civil 
codes, and the consideration of the draft criminal procedure codes. 
The high-profile dispute over magistrates' bonuses, opposing the 
judiciary and the executive, amounts to the escalation of what the 
Constitutional Court recently ruled as a "legal dispute of a 
constitutional nature" between the three powers.  Its sponsors in 
the judiciary community describe it as a labor dispute.  The 
standoff sent waves through the deficient judiciary system, laid 
bare the judiciary's apparent misuse of the principle of 
independence, and further eroded public confidence in the judiciary 
as an accountable and responsible branch.  End Summary. 
Judicial Bonuses in Romania:  Constitutional Standoff 
Background: 
¶2. (U) The history of post-1989 Romanian magistrates' compensation 
packages is long and convoluted.  In 1996, a law on magistrates' 
salaries granted them a series of benefits that substantially 
increased their salaries. (Note:  In Romania judges and prosecutors 
are both part of the judiciary under the generic name of 
"magistrates.")  In order to contain the ballooning of magistrates' 
salaries, Cabinet Ordinance 83 issued in 2000 mandated the inclusion 
of all fringe benefits/bonuses into their base pay and dropped a 
so-called "stress" bonus amounting to 50 percent of their base pay. 
Disgruntled magistrates all over the country challenged the 
ordinance and started suing the government to reclaim payment of the 
abolished bonus.  Some of the suits were successful, others were 
not.  In an effort to institute a unitary practice and in the hope 
that the highest court would find granting the abolished bonuses 
illegal, in February 2008 Prosecutor General Codruta Kovesi filed an 
"appeal the interest of the law" with the High Court of Cassation 
and Justice (ICCJ), which has the constitutional duty to provide 
"unitary interpretation and enforcement of the law."  However, in 
its March 10, 2008 ruling, the ICCJ (most of whose members had 
themselves filed suit on the bonus issue) found that the "judges, 
prosecutors and the assistants thereof, as well as the relevant 
auxiliary staff, are entitled to receive a 50 percent bonus for risk 
and mental stress, calculated against their base salary, even after 
CO 83/2000 took effect."  The ICCJ ruling mandated payment of 
past-due bonuses and their resumption in the future.  In the wake of 
the ruling, other categories of state employees started to sue the 
government to reclaim payment of earlier benefits. 
¶3. (U) In early May 2009, President Basescu filed a complaint with 
the Constitutional Court (CC), requesting the Court to determine 
that a "legal dispute of a constitutional nature" exists between the 
judiciary on the one hand, and Parliament and the Romanian Cabinet, 
on the other.  On May 27, 2009, the Constitutional Court found that 
a legal dispute of a constitutional nature did exist between the 
judiciary, on the one hand, and Parliament and the Romanian 
executive on the other.  The judiciary had unconstitutionally 
infringed on the executive and legislative branches' respective 
duties.  The CC determined that "the ICCJ does not have the 
constitutional jurisdiction that would allow it to institute, amend, 
or abolish legal provisions that have the power of law, or to review 
them for constitutionality." Since the Constitutional Court can 
provide rulings only for the future, final court rulings and 
enforceable titles concerning compensation for bonuses that were 
issued before the date of the CC ruling still had to be enforced. 
 
¶4. (U) On July 3, the Justice Ministry and Prosecutor General's 
office announced that as of June 2009 magistrates' salaries will no 
longer include the stress bonus.  They both cited unavailability of 
funds as communicated by the Finance Ministry, and the burden 
already placed on the strapped state budget by the need to cover 
back payments.  PG Kovesi said that the funds needed to cover 
amounts in past-due bonuses awarded through 2007 and 2008 final 
court rulings accounted for 96 percent of her office's overall 
budget for 2009.  At the Justice Ministry, Minister Predoiu said 57 
percent of the ministry's budget would go to past-due bonus 
payments.  The decision caused outrage among magistrates, who took 
indignant public stands through the Superior Council of the 
Magistracy (CSM) and their professional associations.  They decided 
to stop work for several hours a day in protest.  The ICCJ and other 
relevant judiciary bodies immediately sued the Finance Ministry.  In 
the latest twist of the ongoing legal battle opposing magistrates 
and the Finance Ministry, on July 24, the ICCJ magistrates and 
auxiliary staff, the National Institute for the Magistracy, and the 
National School for Clerks won the case against the Finance Ministry 
over the latter's recent decision to drop the current bonuses.  The 
 
BUCHAREST 00000525  002 OF 003 
 
 
likely appeal will be judged by none other than the ICCJ, one of the 
litigants in the case. 
¶5. (U) The dispute includes public statements and accusations, with 
the judges taking the position that the failure to pay the bonuses 
is a violation of their "independence" and of law.  Judges have gone 
on strike, which is illegal. In addition, prosecutors, too, have 
joined in claiming these bonuses.  Judges have also brought legal 
complaints against the government. These complaints are problematic, 
since they present myriad recusal and conflict issues that are not 
being addressed by the Romanian judges. For example, regular 
litigants' disputes are not heard for months (even time-sensitive 
ones) by courts citing funding problems, but the complaints by the 
judges against the government are given immediate calendar dates. 
In particular, we have been told that money may be diverted from 
administrative funds, including funds for issuing subpoenas, to pay 
remuneration to judges. Thus, the courts cry poverty when litigants 
seek to move their cases, obtain simple administrative services at 
the courts, or seek subpoenas, although part of the cause of that 
poverty is an improper diversion of funds. 
¶6. (U)  The prosecution service faces similar problems, although 
efforts are being made to address the conflict issues. The 
Prosecutor General has declared these bonuses to be illegal and 
directed the prosecutors not to take them or to strike. However, 
there is no ability to enforce these orders, since the discipline of 
prosecutors is not controlled by the Prosecutor General, but instead 
is controlled by the CSM, which would take no action against a 
prosecutor disregarding the Prosecutor's order.  To her credit, the 
Prosecutor General recognized the obvious conflicts presented by 
this case in the event a prosecutor who had made a personal claim 
for the bonus  were assigned on a relevant case.  It was only with 
some difficulty that the Prosecutor General was able to identify 
unconflicted prosecutors for these suits. 
¶7. (U) Another issue presented by this ongoing dispute is that it 
has created perverse incentives for judges who are at retirement 
age. According to our contacts, there are a substantial number of 
judges and prosecutors who have retirement papers ready for 
execution, yet who are delaying their retirement in the hopes that a 
favorable decision on bonuses may be forthcoming. Pensions for the 
magistracy are approximately 80% of the last month's compensation. 
Compensation is not limited to base compensation, but can also 
include compensation such as bonuses, or even can include a lump-sum 
payment of past-due compensation, such as occurs when a judge 
prevails in a compensation dispute and receives past-due bonuses or 
salary for periods of years or months. These retirement-ready judges 
create a drag on an already understaffed system, since they tend not 
to do their best or most productive work when they are simply 
marking time before finalizing their retirement at the close of a 
hoped-for windfall compensation month. 
¶8. (SBU) Comment:  From a legal and constitutional standpoint, the 
current dispute over judicial bonuses appears to be a much more 
fundamental problem than a simple policy or pay dispute.  Romanian 
magistrates contravened 1) a ruling of Romania's Constitutional 
Court in unconstitutionally granting themselves bonuses and in 
pursuing them; and 2) orders against the bonuses coming from the 
Finance Minister, the Minister of Justice, and the Prosecutor 
General.   Most troubling, the ring-leaders of this judicial revolt 
seem to be the very judges who are members of the bodies that one 
would most expect to discipline improper judicial conduct and rein 
in improper applications and interpretations of law:  the Superior 
Council of Magistracy and the High Court of Cassation and Justice. 
End Comment. 
¶9. (SBU) In a conversation on the issue with a Mission Political 
Specialist on July 24, the President's advisor for legal and 
constitutional issues described three possible avenues out of the 
stalemate:  1)  A legal/constitutional one that would involve 
lodging another complaint with the Constitutional Court (such as the 
one the President filed in May);  2)  An executive/ legislative one 
in which the Cabinet would take a tough stance and, by executive 
order, force magistrates of retirement age to leave the system, and 
in the longer run, pass a government-wide civil service compensation 
plan by legislation, including for the judiciary;  3)  A political 
one in which the President would act as mediator between the parties 
involved.  Such President-sponsored mediation, as requested by the 
CSM and the Justice Minister, may likely happen next week, according 
to the President's legal advisor. 
Romanian Judiciary:  Upcoming Justice Sector Hot Spots 
¶10. (SBU) As described by our contacts, there will be four hot spots 
to watch in the upcoming months that have the potential to influence 
the system.  First, the appointment of the new head of the High 
Court of Cassation and Justice is key. One of the leading 
candidates, Lidia Barbulescu, would be a troublesome choice. She is 
one of the leaders of the pro-bonus campaign, and her aggressive 
efforts in this regard may be calculated to engender support among 
the judiciary and promote her candidacy.  (Note and comment:  A 
former CSM head and current ICCJ vice chair, Judge Lidia Barbulescu 
was notoriously averse to opening up the system and doing away with 
magistrates' special pensions.  She has been an opponent of 
 
BUCHAREST 00000525  003 OF 003 
 
 
President Basescu and former Justice Minister Monica Macovei.). 
 
¶11. (U) Second, the possible re-appointment of the Prosecutor 
General. The Prosecutor General enjoys the support of all who 
seriously oppose corruption in Romania.  Her mandate expires October 
1 (two months before the likely date of the presidential elections). 
The Prosecutor General plans to submit a report of her 
accomplishments to the President, and then discuss with him his 
plans for her position. 
¶12. (U) Third, the implementing legislation for the new substantive 
criminal and civil codes must be closely watched. The codes have 
been adopted, but the next step will be the technical drafting of 
legislation that will implement those codes, and abrogate old law 
that is inconsistent with the new codes. Partly because this is such 
a detailed and technical process, there may be a risk of mischief in 
the manner in which it is carried out.   (Reftel: A recent emergency 
ordinance allowing the Cabinet to amend legislation before it went 
into force, with the ostensible aim to clear the way for the new 
codes, caused a small uproar.  PM Emil Boc committed to using it 
only for getting rid of an old but never-enforced version of the 
codes.) 
¶13. (SBU) Fourth, starting in September, the criminal procedure code 
will be considered in Parliament. The current draft is pretty good, 
but there are a number of areas that will be subject to 
disagreements and those disagreements may result in alterations that 
would be detrimental to Romania's law enforcement efforts. In 
addition, the procedural code as drafted contains major changes, 
including the introduction of plea bargaining for cases subject to 
less than five years' maximum imprisonment, and introduction of the 
"opportunity principle" -- prosecutorial discretion not to pursue 
cases or charges. 
¶14. (SBU) Comment:  If enacted, these changes will require a major 
shift in the mindset of prosecutors, and unless these new 
authorities are carried out in a fair, just, and principled fashion, 
they could be quite harmful to the public's faith in the system. 
Romania could use U.S. assistance in formulating guidelines and 
policies for exercising these authorities and in training 
prosecutors.  End Comment.