Justice Minister Tudorel Toader stated on Monday that he will order an external audit at the National Anticorruption Directorate (DNA) and the Directorate for Investigating Organized Crime and Terrorism (DIICOT).
“I didn’t forget and don’t forget the fact that the Law No.303 allows the prosecutors’ assessment, this time on the content, and I will dispose an audit, an external audit that will verify, not the DNA and the DIICOT, because Romania’s prosecutors, the 2,650 prosecutors operate, carry out, fulfill their competence in the basic structures of the Public Ministry, the Prosecutor’s Offices attached to the Courts, Courthouse, Court, at the DIICOT or the DNA. Then it would be unfair to search the content and stop at someone and elude others. I tell you […] that in a period I haven’t set, following a legal procedure, I will order, as Minister, an external audit to be performed at the three structures of the Public Ministry, namely the DNA, the DIICOT and the High Court of Cassation and Justice,” Tudorel Toader said on the Antena 3 private television station.
When asked what the respective audit should look into, Toader said that into “a lot” and it could contain the verification of the number of cases, acquittals or citizens who were unlawfully imprisoned.
“A lot, I will establish them, but I can say: the number of cases, the European Court of Human Rights (ECHR) and we are talking about a reasonable deadline in solving a case, to see from the notification until it was solved, the indictment, the case’s dismissal, what could be, how long ago. So that some of them to be taken over their turn and others stand in waiting towards a prescription. One can see, for instance, the number of defendants, the number of people arrested, the number of our citizens who were unlawfully imprisoned and, afterwards, acquitted, one can see the convictions at the ECHR following those, the amounts of money that ECHR forced us and we, from the state budget, plead against, although no matter how much is the compensation, the ECHR doesn’t offer a large compensations, the ECHR gives principle solutions and compensations more on the limit of covering a moral damage, but not even that, because any amount of money is not likely to cover an illegal, unreasonable, unjustified detention period,” the Justice Minister also said.
“I will not set any threshold for abuse of office”
JusMin Toader announced on Monday that no threshold will be introduced in the drafts amending the Criminal Code and Code of Criminal Procedure to define abuse of office.
“There is a proposal in the draft to modify abuse of office, currently Article 297 in the Criminal Code, we are talking about, but I will set no threshold, lower or upper levels because I was a constitutional judge, I am a member on the Venice Commission, but the lawmakers have to observe the fundamental law. The fundamental law says that abuse shall be deemed the action by a public servant, and there is no mention of a threshold there; we mean this is a mechanism and I know perfectly well the arguments,” Toader told Antena 3 private broadcaster on Monday.
He added that this leaves judges leeway to rule damage-incurring abuse criminal offence or not.
“That is why the judges are given leeway to rule; it all depends on the personality of the offender, the seriousness of the offence, whether or not he or she is a second-time offender and the aim of the offence. Judges can had suspended sentences, postpone punishment, same as prosecutors can forfeit criminal investigation, the famous Article 318 in the Code of Criminal Procedure. As initiator of the draft law, I cannot err from the decision of the Constitutional Court,” said Toader.
He added that most likely on Tuesday he will submit to the Government a bill amending the Criminal Code and the Code of Criminal Procedure to bring them in line with the rulings of the Constitutional Court, after which the bill will be put up for public discussion.
“Our judiciary is creaking at all joints”
Justice Minister Tudorel Toader said that the Romanian judiciary “is creaking at all joints,” pointing out that there are problems at the level of interpreting and enforcing the law.
Justice Minister Tudorel Toader said that he proposes the modification of the Criminal Code article on abuse of office in line with the ruling made by the Constitutional Court of Romania (CCR), so that there would be no threshold for the damage caused, leaving it up to the judge to weigh the severity of the crime.
“We discussed, at the ministry, the bill that we will send to the Government most likely on Tuesday, after which we will put it up for public consultations, the bill amending the Criminal Code and the Criminal Procedure Code in line with Constitutional Court rulings. (…) Consequently, we also have, in that bill, the proposal to modify the abuse of office – currently [article] 297 of the Criminal Code – and I won’t set any threshold, not upper and not lower. (…) The national lawmaker must observe the Fundamental Law, according to which the civil servant’s guilty act represents an abuse, and it doesn’t mention any threshold there. You give the judge the freedom to deem whether an abuse that causes a certain damage is a criminal offence or not. That is why the judge has the freedom to weigh – by taking into account the offender’s personality, the severity of the guilty act, whether he is a repeat offender or not, the goal and the motive of the guilty act. The judge can rule a suspended sentence, can postpone the enforcement of the sentence, just as the prosecutor can drop the criminal prosecution. I, as minister and initiator of the bill, cannot stray away from the Constitutional Court’s ruling,” Tudorel Toader stated for Antena3 private television broadcaster.
In 2016, the Constitutional Court ruled that the current legislation stipulates no damage threshold in what concerns abuse of office, so that “regardless of the value or the intensity of the damage caused by committing this guilty act, the latter can be an abuse of office crime if the rest of the constituent elements are met,” according to the Constitutional judges’ substantiation report.
“Unfortunately, our judiciary is creaking at all joints: there are problems at legislative level, at institutional level, at the level of interpreting and enforcing the law. Our legislation is too bulky, [there’s] legislative inflation. It has lost the coherence it is supposed to allegedly have had. The second cause: a far too heavy load of case files for magistrates. (…) The third cause is the fact that we have a non-standard praxis. The law, as it is, doesn’t meet the requirement of being predictable, of being understood by all Romanians. It’s profoundly unjust for two Romanian citizens who are in the same juridical situation to receive different rulings,” the Justice Minister told Antena3.
Horodniceanu on Toader’s audit: DIICOT was not the object of CVM, but we’ll gladly comply
Daniel Horodniceanu, Chief Prosecutor of the Directorate for the Investigation of Organised Crime and Terrorism (DIICOT), stated on Tuesday that he did not talk with Justice Minister Tudorel Toader about his proposal about an external audit on the Public Ministry, adding that DIICOT was not the object of the Cooperation and Verification Mechanism (CVM) or of any other audit so far, but the institution will comply with the Government’s decisions.
“Firstly, we should understand the terms; you should ask the Justice Minister what it will consist of and we don’t have… you know how it is… we’ll gladly comply. (…) It’s natural for the Public Ministry to be treated as a single unit but, on the other hand, so far, DIICOT hasn’t been the object of the CVM, nor of the mechanism of verification that the Justice Ministry has created for the upcoming period,” Horodniceanu stated in Parliament, while attending a meeting of the Senate’s Defence Committee.
He pointed out that if Minister Toader wants to audit the entire Public Ministry that would also entail the auditing of DIICOT, however he stated that he is yet to discuss this topic with the Justice Minister.
PM Grindeanu: No audit at Public Prosecution Office in 10 years, it’s JusMin’s job to do it
Premier Sorin Grindeanu said on Tuesday that the audit announced by Minister of Justice Tudorel Toader with the three prosecution authorities differs from the assessment conducted in the context of debates on the controversial Government Emergency Ordinance No. 13, emphasizing that such an audit has not been performed in 10 years.
“Mr. JusMin Tudorel Toader made an assessment of which he gave a detailed presentation last week (…) on the action taken by the General Prosecution and the National Anticorruption Directorate (DNA) – in the light of the Constitutional Court ruling on OUG 13 and the related steps. What Mr. Minister announced last night is something else – namely an assessment and a complete audit at the Prosecution Office – targeting the Prosecution Office of the High Court of Cassation and Justice, the DNA and the Directorate for Investigating Organised Crime and Terrorism (DIICOT). These are two completely different things,” Grindeanu said in press statements at the Renault Technical Center in Titu.
He explained that performing such audits is part of the job description of the Minister of Justice, and is not the Prime Minister’s responsibility.
“It is my understanding that [such assessments] have not been performed in 10 years. It’s not my job. As a Prime Minister it’s normal for me to know what each minister does, but performing this audit at the Ministry of Justice is part of the Justice Minister’s job description, just as he did with the assessment. Yesterday morning we also discussed the Ministry’s priorities related to the bill on the Constitutional Court’s rulings that need to be put in accordance with the Criminal Code and the Criminal Procedure Code, whether we speak of the law package on the situation in prisons, alternative pardon measures and so on,” added the Prime Minister.
The head of the government emphasized that he is interested in the functioning of the rule of law, and for this it is important that “institutions are strong and inter-institutional mechanisms are well defined and fine-tuned, regardless of who runs a structure or another.”