Justice Minister Tudorel Toader responded on Thursday to the criticism according to which he should have delegated a prosecutor to handle the evaluation of the Prosecutor General and of the Chief Prosecutor of the National Anticorruption Directorate, claiming that he acted within the limits of the law.
“I didn’t watch TV last evening. I assure you there are different procedures, and I exercised my legal and constitutional prerogatives,” Tudorel Toader stated on Thursday before the plenary meeting of the Supreme Magistracy Council (CSM).
According to Article 69, Paragraph 1 of law no.304/2004 on the organisation of the judiciary, the Justice Minister can exercise his oversight of the prosecutors – whenever he considers it necessary, at his own initiative or at the request of the Supreme Magistracy Council – through prosecutors designated by the Prosecutor General of the High Court of Justice’s Prosecutor’s Office or by the Chief Prosecutor of the National Anticorruption Directorate, by the Chief Prosecutor of the Directorate for the Investigation of Organised Crime and Terrorism or by the Justice Minister.
According to Paragraph 2 of Article 69, the oversight consists of verifying managerial efficiency, the way prosecutors carry out their prerogatives and the way in which working rapports are taking place with those indicted and with other persons involved in the activity pertaining to the prerogatives of the prosecutor’s offices. The oversight cannot concern measures ordered by the prosecutor during the criminal probe and the solutions adopted.
On Wednesday, at a press conference, after finalising the report on the two Chief Prosecutors’ activity, Tudorel Toader announced that the dismissal of Prosecutor General Augustin Lazar and of DNA Chief Prosecutor Laura Codruta Kovesi is not advisable.
Augustin Lazar: I took note of the conclusions of the evaluation presented by the Justice Minister. The Public Minister will strictly respect the Constitutional Court’s decision
Prosecutor General Augustin Lazar announced, on Wednesday evening, that he took note of the conclusions of the evaluation presented by Justice Minister Tudorel Toader and that the Public Ministry will strictly respect the Constitutional Court’s decision, which established that the Prosecutor’s Office attached to the High Court of Cassation and Justice does not have prerogatives to carry out a criminal investigation into the legality and advisability of a legislative act adopted by the legislator.
“The Prosecutor General of the Prosecutor’s Office attached to the High Court of Cassation and Justice, Mr Augustin Lazar, has taken note of the conclusions of the evaluation presented today (Wednesday – editor’s note) by Justice Minister Tudorel Toader,” reads a message posted on the Public Ministry’s Facebook page.
The representatives of the Prosecutor’s Office attached to the High Court of Cassation and Justice (PICCJ) also say that Prosecutor General Augustin Lazar reaffirms that the Public Ministry will strictly respect the Constitutional Court’s decision, which noted the existence of a constitutional conflict between the Public Ministry, the PICCJ and the DNA on one side and the Government on the other, a conflict generated by the criminal probe into the adoption of government emergency ordinance no.13 (GEO 13).
“In this context, the Prosecutor General reiterated the point of view that the Public Ministry will strictly respect the Constitutional Court’s decision and will act to carry out its role to represent, in the judiciary’s activity, the general interests of society and to defend the rule of law, as well as the rights and liberties of the citizens,” the message posted on the Public Ministry’s Facebook page reads.
Grindeanu: DNA is not represented by Kovesi or Negulescu; it must function regardless of persons
The National Anticorruption Directorate (DNA) is not represented by “[controversial prosecutor] Mr. Negulescu or Ms Kovesi”, but must work as an institution, distinctly unattached to a particular individual, Prime Minister Sorin Grindeanu said on Thursday.
“I gave and further give full credit to the Minister of Justice. His presentation yesterday of the assessment he and the Ministry of Justice have conducted is part of the Justice Minister’s incumbent responsibilities. I very carefully followed developments, I had a discussion with the Minister before the public presentation of the assessment. I understand very well his arguments and I agree with them. As a conclusion, I could say that for Romania’s fight against corruption to be really strong, all mechanisms must work flawlessly, but the mechanisms do not rely on and are not connected to particular persons. DNA is not represented by Mr Negulescu or by Ms Kovesi, for me to go to extremes, but is an institution that must work without being overshadowed by particular individuals,” Sorin Grindeanu told a working meeting organized by the Aspen Institute.
PM asks to be constantly kept abreast of the results of the continuous oversight of the prosecutors’ activity
Wednesday evening, Prime Minister Sorin Grindeanu reiterated the Government’s strong commitment to the anticorruption fight, stating however that it must not be “under the aegis of one name”.
In a press release remitted on Wednesday to AGERPRES, the Executive is introducing Premier Grindeanu’s position regarding the results of the assessment carried out by the Minister of Justice. According to the source, Prime Minister Grindeanu took note on Wednesday of the Justice Minister’s decision, following the assessment of Prosecutor General Augustin Lazar’s activity and that of the Chief-prosecutor of the National Anti-corruption Directorate (DNA) Laura Codruta Kovesi, in the context of the Constitutional Court’s February 27th decision.
“The Minister of Justice has the legal, professional experience and moral stand to make this assessment and to recommend the appropriate measures,” the release reads.
According to the Executive, the Prime Minister asked to be constantly kept abreast of the results of the continuous oversight of the prosecutors’ activity, oversight instituted by the Justice Minister’s decision.
“Furthermore, the Prime Minister considers it necessary for state authorities to respect their constitutional competencies so that such conflicts are avoided in the future. We must keep in mind that Constitutional Court of Romania judges showed, in their decision, that a state institution assumed prerogatives that it didn’t possess,” the release specifies.
Premier Grindeanu reiterates “the Romanian Government’s firm commitment to the anticorruption fight.”
“The Prime Minister stresses however that, for this fight to be really effective, it must not stand under the aegis of a name. Anti-corruption mechanisms must reach maturity, which means they have to function regardless of the leader. An institution cannot be confused with a person, whoever he/she might be,” the statement further mentions.
Liviu Dragnea: I don’t endorse the conclusions of Tudorel Toader’s report on Public Ministry and the DNA
Social Democratic Party (PSD) President Liviu Dragnea stated on Thursday that he does not “endorse” the report that Justice Minister Tudorel Toader publicly presented, a report concerning the activity of the Public Ministry and of the DNA, sarcastically stating that the chief prosecutors of the two institutions “are shaking” at the thought of the Justice Ministry’s announced verification mechanism. Dragnea added that dismissing Tudorel Toader is out of the question, even though he is “disappointed” with his report, but a decision in this sense will be taken by Premier Sorin Grindeanu.
“I have a certain disappointment”
When asked if he is content with the report presented by the Justice Ministry in respect to the assessment regarding the activity of the Public Ministry and the DNA, Liviu Dragnea stated the following: ” No. I have stated many times in all my public appearances that one way or another I would endorse the decision of the Justice Minister if it is based on arguments. Unfortunately, I have nothing to endorse because I expected an argument that would have told us all why the heads of the Prosecutor’s Offices should be kept in office, which was one option and the result of the assessment, or an argument for requesting their dismissal. Instead, I have seen an argument in favour of their dismissal and a conclusion to keep them in office. Unfortunately, I have nothing to endorse and I have to admit that I have a certain disappointment. Honestly, whether these prosecutors remain in office or not interests me very little,” Liviu Dragnea added.
The Speaker of the Lower Chamber claimed that he would have wanted to see from Justice Minister Tudorel Toader “not the presentation of counter-arguments to the final decision.”
He made a sarcastic comment on the idea of the mechanism of verification of the Public Ministry, an idea that Tudorel Toader announced: “The chief prosecutors are shaking with fear.”
“Although I’m disappointed, dismissing Tudorel Toader is out of the question; Grindeanu will decide”
The PSD leader stated that dismissing Justice Minister Tudorel Toader is out of the question, even though he is “disappointed” with his report on the activity of the chief prosecutors, but a decision in this sense will be taken by Premier Sorin Grindeanu. The PSD President pointed out he wants to see the package of laws Toader will come up with because, “leaving aside aggravations,” the legislation in this field must be modified.
Asked whether Tudorel Toader could be dismissed from the helm of the Justice Ministry following his report on Codruta Kovesi’s activity at the helm of the DNA and on the activity of Prosecutor General Augustin Lazar, Dragnea said that Premier Sorin Grindeanu will take a decision.
“No; in my opinion, no. It’s the Prime Minister’s decision,” the PSD leader said.
He added that he is waiting to see the package of laws Tudorel Toader will come up with, considering that the legislation pertaining to the judiciary must be modified in order to no longer have “tense discussions.”
“After all, the most important objectives that the Justice Minister should have are the judiciary laws. We are waiting to see what package he’ll come up with because, in fact, leaving the persons aside, leaving aside aggravations or lack thereof, it’s very important to see if and how the judiciary legislation should be modified so that, in the following period, there should be ever-fewer tense discussions. We’re waiting to see what package of laws he comes up with,” the Lower Chamber Speaker emphasised.
Asked whether the Justice Minister showed lack of courage, Dragnea reiterated that he is “disappointed.”
“I find it very difficult to explain this, I’m disappointed. Not upset, not anything else. I don’t even want to spend all my energy to understand why this happened. Maybe he had meetings, maybe he didn’t, I don’t know,” the PSD leader concluded.
President Iohannis, on JusMin overseeing prosecutors: A very good thing
The Justice Minister’s oversight of the activity of prosecutors with the Prosecutor’s Office attached to the High Court of Cassation and Justice, the National Anticorruption Directorate (DNA) and the Directorate for Investigation of Organised Crime and Terrorism (DIICOT) is a very good thing, President Klaus Iohannis said, on Wednesday.
“I believe it to be a very good thing. If we read carefully the Constitution and the laws, the Public Ministry conducts its activity under the oversight of the Justice Minister. Which is a very good thing and I actually expect the Minister of Justice to support the Public Ministry, the Prosecutor General, the head prosecutor of the DNA, the head prosecutor of the DIICOT,” said Iohannis in a press statement at the Cotroceni Presidential Palace.
He added that such an initiative, announced on Wednesday by Justice Minister Tudorel Toader, is actually part of his job description.
“If they – the Justice Ministry and the Public Ministry – work together, in what we call loyal cooperation, things can only go better, differently than at the start of the year when they had diverging opinions regarding OUG no. 13,” the head of state added.
Iohannis emphasised that if Minister Toader wishes to oversee the activity of prosecutors, he has full rights to do so.
“I am very pleased with the activity of the Prosecutor General and of the DNA’s chief prosecutor. The Public Ministry and the DNA are doing their job just fine”, he mentioned.
Tariceanu on assessment carried out by Toader: It’s the yellow card; a gesture of great courage in an unfavourable context
Senate Speaker Calin Popescu Tariceanu considers that Justice Minister Tudorel Toader’s assessment of the chief prosecutors of the Public Ministry and the DNA represents a “yellow card” but also “a gesture of courage” in an “unfavourable” domestic and international political context.
“I noted the extraordinary rigour of the cool-headed presentation, coming after the collective emotion has passed, the rigour of presenting these serious infringements of the Constitution. It’s for the first time in the last 12-13 years, as far as I remember, when a Justice Minister carries out such a measure, to assess the prosecutors who, according to the Constitution, are working under the Justice Minister’s authority. Hence, this is a Justice Minister who knows his role, understands it and undertakes it. We didn’t have this before. (…) It’s very good that Tudorel Toader made a technical presentation. Had he used political arguments, the objectivity of the analysis, of the assessment, would have been questioned. (…) I believe that Mr Toader, if you want us to interpret it in another key, apart from being the first who has the courage to start such an assessment – something that no other minister from the more distant or recent past did – is giving a signal that… let’s use a term that everybody knows: the yellow card,” Tariceanu stated for the B1TV private television broadcaster on Wednesday.
He opined that the minister “sent the ball at Cotroceni [Presidential Palace].”
“I believe there is a discrepancy between the public expectation in a certain area and the assessment’s conclusion. (…) Today, Justice Minister Tudorel Toader said some things very clearly and trenchantly. But we know very well that he’s not the one who appoints to office, consequently he’s not the one who dismisses from office. I believe that this time, in a manner that proves a certain ability on the minister’s part, he has sent the ball at Cotroceni. The President… I saw he came out afterward and told us a mindboggling thing based on the report which is extremely critical of the Prosecutor’s Office and of the DNA in particular. The President nevertheless claims that he is very pleased,” Tariceanu added.
The Senate Speaker claimed that “the things, as started by the minister, inspire me with confidence.”
“After years in which the Romanian state registered increasingly serious backsliding, you think one can set things right suddenly? I believe these are very clear signals that will be interpreted by embassies, by foreign observers, by the European Commission, that things are not in order. When such a rigorous, sweeping report shows up… you should know that even those in Brussels will read it. You should know that the things, as started by the minister, inspire me with confidence that, at least when it comes to the judiciary field, the functioning of the judiciary will return to what rule of law norms mean, namely respect for fundamental rights and liberties. (…) I believe Mr Toader has made a gesture of great courage in contrast to all of his predecessors, and a gesture of courage in an unfavourable domestic and international political context,” Tariceanu pointed out.
Traian Basescu: Tudorel Toader – a nobody who shifts with the wind. Professional assessment, conclusion worthy of a servant
Popular Movement Party (PMP) President Traian Basescu stated on Wednesday evening, following Justice Minister Tudorel Toader’s speech on the activity of Prosecutor General Augustin Lazar and DNA Chief Prosecutor Codruta Kovesi, that the assessment was “professional” but the “conclusion was worthy of a servant.”
“I too have watched the minister’s speech. It was a professional speech featuring a servant’s conclusion. He noted the DNA’s dysfunctionalities, the grave infringement of the Constitution, and he then told us it’s not advisable to take measure against those who are breaking the Constitution. From now on, the Romanian state operates based on advisability, not on the Constitution. (…) It’s the explanation of a nobody propelled at the Constitutional Court by Fenechiu, who always shifted with the wind. This is my conclusion. So, too bad Tudorel Toader is knowledgeable, but he remains a servant,” PMP President Traian Basescu told B1TV.
Traian Basescu claimed that “an unripe minister and an unripe parliamentary majority” have relativized the Constitution.
“The drama that Romania is experiencing is that of relativizing the Constitution: it’s not mandatory for all. (…) I have a huge disappointment: a small booklet, the Constitution of Romania, which I defended for ten years, is today tread underfoot by an unripe minister and an unripe parliamentary majority,” Traian Basescu said.
The PMP President said that “with or without Coldea or Kovesi, the establishment imposes its point of view.”
Traian Basescu stated there could have been a link between the delay with which the Justice Minister presented the results of his assessment, the court ruling in the Bute Boxing Gala case and the court’s decision not to release Mircea Basescu on parole.
“Although I have no evidence, I believe there was a correlation, just as 6 p.m. was a correlation too. Recall how the minister was saying, on Monday, that he would postpone the press conference for Wednesday at noon, then he scheduled it at 6 p.m., to see whether my brother was going to be released too, although he had the right to be released on September 9,” Basescu said when asked whether there could be a link between the delay with which the Justice Minister presented the results of his assessment and the court ruling in the Bute Boxing Gala case.
Key phrase in Justice Minister’s report. The real message Laura Codruta Kovesi and Augustin Lazar got from Tudorel Toader: Negative results could reopen the debate on the advisability of their dismissal
Laura Codruta Kovesu and Augustin Lazar got off with a warning from the Justice Ministry, following their probe into the adoption of government emergency ordinance no.13 (OUG 13). Nevertheless, Tudorel Toader makes it very clear for the DNA Chief Prosecutor and the Prosecutor General that things will no longer be the same and their dismissal could occur at any time. The absence of such a decision now only pertains to its timing.
More precisely, ‘Gandul’ daily writes, as a result of an excess of power that Tudorel Toader noted in the DNA vs. GEO 13 case – the term used is “ultra vires” (in excess of one’s prerogatives – editor’s note) – the Justice Minister decided to institute oversight and the obligation to report the activity of key institutions involved in the fight against corruption. The key phrase of the whole report is found on page 19, the last page, and represents an ultimatum for the DNA Chief Prosecutor and for the Prosecutor General: “Negative results in the sense of this report can reopen for future debate, in relation to the actions noted, the advisability of dismissing the leaders of the institutions concerned and the adoption of other institutional measures, in line with the Constitution and with the law.”
The Justice Minister claimed that this is “a mechanism for exercising the Minister’s authority over prosecutors,” and invoked in his support Article 132, Paragraph 1 of the Constitution, and Article 69 of law no.304/2004 on the organisation of the judiciary. Basically, per the texts of law mentioned, the Justice Minister can himself decide who handles the assessment. The assessment of the DNA, PICCJ and DIICOT can be ordered.
Article 69 of law no.304/2004
“(1) The Justice Minister – whenever he considers it necessary, at his own initiative or at the request of the Supreme Magistracy Council – can exercise oversight of the prosecutors, through prosecutors designated by the Prosecutor General of Prosecutor’s Office attached to the High Court of Cassation and Justice or by the Chief Prosecutor of the National Anticorruption Directorate, by the Chief Prosecutor of the Directorate for the Investigation of Organised Crime and Terrorism or by the Justice Minister.
“(2) The oversight consists of verifying managerial efficiency, the way prosecutors carry out their prerogatives and the way in which working rapports are taking place with those indicted and with other persons involved in the activity pertaining to the prerogatives of the prosecutor’s offices. The oversight cannot concern measures ordered by the prosecutor during the criminal probe and the solutions adopted.
“(3) The Justice Minister can ask the Prosecutor General of the Prosecutor’s Office attached to the High Court of Cassation and Justice or the Chief Prosecutor of the National Anticorruption Directorate to present reports on the activity of the prosecutors’ offices and can issue written guidelines for the measures that must be taken to prevent and efficiently fight criminality.”
Article 132, Paragraph 1 of the Constitution
“Public prosecutors shall carry out their activity in accordance with the principle of legality, impartiality and hierarchical control, under the authority of the Minister of Justice.”
Tudorel Toader explained that the reason for this decision is “identifying the way in which, in the future, through its representatives, [the DNA] understands to observe the limits of its legal competency and to avoid transforming anti-corruption actions into a danger for the proper functioning of democracy and for the observance of fundamental rights and liberties.”
Even though in both the assessment report and his public statement the Justice Minister invoked the DNA’s grave backsliding in the case of the GEO 13 probe, Toader admitted, in writing, that at this moment a decision to dismiss the institution’s leadership is not advisable. He mentioned both the public reaction and the CVM reports’ positive assessment of the DNA. “The Justice Minister is not obligated to propose the dismissal of the two chief prosecutors of the authorities that generated juridical conflicts of a constitutional nature. Should he nevertheless propose their dismissal? The answer to this question shifts the analysis from the sphere of constitutionality and legality to the sphere of advisability. And the assessment of advisability undoubtedly calls for a contextual analysis, which I carried out both based on the reports presented in my talks with the two representatives, on the documents they filed, and based on the entire set of documents concerning the introduction and evolution of the Cooperation and Verification Mechanism (CVM), documents which exist at the Justice Ministry, and on the Governing Platform 2017-2020,” the document signed by Tudorel Toader reads.