In Romania there was no reform, but revenge. What we should learn from the rejected justice referendum in Italy

The rejected referendum on justice in Italy should also give the authorities in Bucharest something to think about. Because it is not just an episode of Italian internal politics, but a warning for all democracies where political resentment towards prosecutors tries to disguise itself as “reform”, writes Cristian Danileț, in a text published today by HotNews.

• Cristi Danileţ is a university lecturer at “Petre Andrei” University in Iasi. He was a judge from 1998, and in the period 2011-2016 he was a member of the Superior Council of the Magistracy. He is the promoter of legal education in schools and high schools and a founding member of the association Voices for Democracy and Justice.

“A Warning to All Democracies”

Italian judicial reform failed. The Meloni government intended to amend the Constitution to separate the career of prosecutors from that of judges, reorganize the CSM into two judicial councils for the two branches of the judiciary and redefine the disciplinary mechanism targeting magistrates. But Italian citizens said NO: 54% voted against, on a turnout of almost 59%.

This referendum should also give the authorities in Bucharest something to think about. For this is not just an episode of Italian domestic politics, but a warning to all democracies where political resentment towards prosecutors tries to disguise itself as “reform”.

Let's be realistic: in Romania, the anti-prosecutor offensive began in 2012, with the attacks against the DNA initiated by the opposition, completed by those in power in 2018 and completed by the same through the new justice laws of 2022. Obsessed with the need for “justice reform”, Romania refused for too long to see that the separation of careers is neither a technical nor neutral reform. It was the expression of a political suspicion cultivated against the prosecutor and, basically, against the idea that the prosecution must remain within the judiciary, under the protection of the same guarantees of institutional independence.

Law 303/2004 amended in 2018, replaced by law no. 303/2022, expressly established that judges and prosecutors have the status of magistrates, but that “the career of judges is separate from the career of prosecutors”. In other words, what in Italy was subjected to direct democratic control and rejected, in Romania was absorbed into the legislative architecture of the “new laws of justice”.

Of course, career separation advocates use a seemingly reasonable vocabulary: “functional clarification”, “modernisation”, “European alignment”, “avoidance of role confusion”. But in reality, in many Eastern and Southern European contexts, this theme has been fed by something else entirely: selective criminal populism, the hostility of politicians towards the Public Ministry and the old phantasm of the prosecutor who needs to be “put in his place”. However, the main driver was not institutional efficiency, but adversity. It was not the concern for the balance of power, but the desire to weaken one of the institutions that was inconvenient.

The hidden stake

Here, in fact, is the stake that talk of “career separation” often tries to hide. The issue is not whether the judge judges and the prosecutor charges; this is commonplace and no one disputes it. The real issue is whether the prosecutor remains part of the judiciary, with a constitutional and legal status robust enough to withstand political pressure, or whether he is gradually pushed towards an ambiguous area, where his prestige is formally preserved, but his guarantees are gradually eroded.

Or, in states with illiberal reflexes or with a political class refractory to judicial control, this “clarification” tends to become a process of institutional devaluation – and CCR decisions no. 358/2018 and 633/2018 contributed a lot to this. And, yes, let's not forget the “think tanks” in the judiciary – judges and prosecutors who collaborated fully with politicians, including writing anti-magistrate laws. The results are now visible: almost non-existent prosecutors, definitive cases reopened on a conveyor belt, arbitrary power of judges, unlimited statutes of limitations. From where Romania was mockingly considered the “republic of prosecutors”, now it has become the “paradise of criminals” and everyone smiles as accomplices.

Italy has just shown that this road can be stopped. And it was not an isolated technocratic elite that stopped him, but the electoral body. This gives the result a special meaning. The negative vote doesn't just say “we don't want this reform”, but also “we don't accept that the political frustration with the judiciary is turned into a constitutional review”.

Romania went in the wrong direction

From this perspective, it is legitimate to say bluntly that Romania went in the wrong direction. He yielded to a political discourse that treated the prosecutor not as a magistrate indispensable to the functioning of the rule of law, but as an institutional adversary that must be isolated, delimited and, in the last instance, weakened. The reality is that in Romania there was no reform, but revenge.

No model should be idealized. Nor does the unit of the judiciary solve, by itself, all the pathologies of the judicial system. But between serious reform and reform animated by political hostility there is an essential difference. And where reformative energy comes from politicians' visceral distrust of prosecutors, the result almost never strengthens the rule of law, but rather weakens it.

What happened in Italy is a democratic correction applied to a temptation that has already been legalized here. Italy stopped in time, because the electorate defended the magistracy more lucidly than the politicians. In Romania, unfortunately, such a thing did not happen.

*Text originally appeared on Contributors.