Recent Romanian court decisions in environmental cases indicate the disappearance of the rule of law

Recent Romanian court decisions in environmental cases indicate the disappearance of the rule of law

Over the past year, Agent Green has lost cases against the state concerning logging that it used to win

Bucharest, 14 July 2022 – The European Commission’s report on the rule of law, judicial independence and press freedom shows that citizens’ trust in justice has fallen below 50%. This is a certainty also felt over the past year in Agent Green’s cases against Romanian authorities, with some courts delivering procedurally and substantively ridiculous rulings to reject claims brought by the environmental organisation in cases of flagrant breaches of the law.

“The separation of powers has ceased to exist. Political interference in justice also has a catastrophic impact on nature. Until 2020, we routinely won cases to annul abusive logging approved by the Environment Ministry and to obtain access to forest management plans that are abusively treated as state secrets. Well, over the last two years we have begun losing cases on similar issues,” said Gabriel Păun, president of Agent Green.

Several cases seeking the annulment of forest management plans have been brought. Identical cases. Yet the courts’ rulings contradict one another. For some courts, breaches of the law and of European law pose no problem. In the Topana Forest case, for example, the court states explicitly that forestry operations can legally be carried out before the environmental assessment procedure. This is precisely the national problem reported by Agent Green to the European Commission that has triggered a series of infringement proceedings for this reason and that the Environment Ministry promises to resolve. In fact, it merely lies to delay referring the case to the CJEU. In similar cases, courts have annulled forest management plans and/or screening decisions, for example for the Padeș, Avrig, Boișoara, Lerești and Alpina Borșa forest districts.

In another case concerning the Băile Herculane forest management plan, the High Court of Cassation and Justice (ICCJ) claims that logging in a protected area without environmental assessment is not grounds for suspension — again, the problem raised by the Commission in the infringement procedure. In other cases, for example in the Baia de Aramă and Avrig districts, plans were suspended by the same ICCJ that suspended those plans.

The situation has worsened over the past year, with courts upholding res judicata in a case seeking annulment of the building permit for the Porțile de Fier – Resița 400 kV overhead power line, based on another action concerning only suspension of the permit. “How can the subject matter be identical in such a situation? In another case, the ICCJ admitted a cross-appeal from the party that had lost the litigation, a flagrant breach of the Code of Civil Procedure. Do ICCJ judges not know procedure, or are these rather political decisions? The case concerned construction of the overhead power line for the Defileul Jiului hydropower plant, whose regulatory acts have been irrevocably annulled by a court,” says Cătălina Rădulescu, Agent Green’s lawyer.

Another case concerns annulment of a government decision authorising clearance of forest areas for the Porțile de Fier – Resița 400 kV overhead power line. The action was dismissed as time-barred even though it had been brought, under procedural law, within the legal period from the response to the preliminary complaint.

In a case against Romsilva, the organisation also encountered problems concerning annulment of enforcement that had been finally authorised by a court. “How can a final judgment be annulled by another court? There is no such legal provision in the procedural code. The case concerned obliging Romsilva to disclose forest management plans. Because of political affinities, some courts defy procedural and substantive law, delivering utopian judgments. Such decisions existed before, but the last year has brought an intensification of the politicisation of justice,” Rădulescu added.

“Infringement proceedings are not closed through lies and shackling justice, but by resolving the causes and effects that generated them. That requires professional, good-faith politics and justice to match, free and strengthened with prosecutors and judges specialising in nature. Yet Romania is currently profoundly anti-European and heading towards dictatorship. The European Commission is expected to apply the necessary measures for Romania to make the authorities respect democratic principles, including the rule of law,” Păun concluded.

Press contact:

Cătălina RĂDULESCU, Agent Green lawyer, 0745138165