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October 26, 2020

Judicial Inspection wants press to have no access to documents during an investigation

At the end of 2016, the Judicial Inspection audited courts and prosecutor’s offices in respect to their manner of interacting with the media. Inspectors discovered several irregularities and issued the recommendation that prosecutors should offer information related to their investigation through a simple press release and should protect personal data.

Inspectors proposed “the analysis of the advisability of modifying the Guide on the rapport between the Romanian judiciary and the media, namely of Article 27, in the sense of no longer allowing the release of any document during the criminal probe.”

In this case, the public would be informed about the existence of a probe through a press release – drafted while protecting personal data, regardless of their type – that would briefly describe the guilty act and its legal classification, with the next announcement set to be made when the probe is completed.

Thus, prosecutor’s offices were audited from November 2 to December 15, 2016, in respect to the activity carried out from 1 January 2015 to the first half of 2016.

In what concerns the Prosecutor’s Office attached to the High Court of Cassation and Justice (ICCJ) and the National Anticorruption Directorate (DNA), inspectors noted that the public communication guide was usually observed, however “also identified were situations in which the provisions of Article 25, Paragraph 3 of the Guide, which concern the confirmation of the existence of a complaint or denunciation, were not observed, in the sense that the existence of a probe was confirmed or denied even though that was not an exceptional situation as described by the same provisions.”

Likewise, “identified were situations in which excerpts from the proceedings proposing pre-trial arrests and from indictments were released in violation of the provisions of Article 27, Paragraph 1 of the Guide, in the sense that details concerning the evidence or the analysis of the evidence were not struck out,” the same irregularity being discovered at the Directorate for the Investigation of Organised Crime and Terrorism (DIICOT).

Romanian courts were also audited in 2016. As a result of the verifications, inspectors proposed that “the Supreme Magistracy Council’s Legislation and Documentation Service should analyse the possibility of erasing information from the courts’ online databases and should identify solutions that can be ordered by the courts in the case of the requests concerning the removal of the parties’ identification data from these records and from the courts’ web portal, considering the two requests filed with the High Court of Cassation and Justice in 2016.”

The Judicial Inspection noted that “the courts’ praxis differs when it comes to verifying the existence of public interest in what concerns the media representatives’ requests regarding civil lawsuits, in the sense that some courts issue favourable solutions to these requests that are not justified in any way, while other courts are asking for the public interest to be justified.”

“Also regarding the request filed with the judge, difficulties are signalled by the courts themselves, in case the spokesperson and the judge handling the case have differing opinions: some courts reject the request, arguing the judge did not issue his approval, while others favourably solve the requests even in the absence of the judge’s approval. We deem that this situation should be expressly regulated by establishing the conditions in which the spokesperson can provide the information in the absence of agreement from the judge handling the case. Another relevant aspect identified in the courts’ praxis concerns the purely formal character of anonymising the documents released, seen especially in civil lawsuits, since the concrete manner in which that is done (using a pen or a sharpie to cover portions of text etc.) actually allows for the reading of the data concerned,” reads the inspectors’ report.

The verifications were carried out as a result of a decision adopted by the Supreme Magistracy Council’s Plenum on 10 June 2015, following an analysis of the note issued by the Council’s Legislation, Documentation and Litigation Directorate on the request filed by the Foreign Affairs Ministry concerning the implementation of the ECHR ruling in the Casuneanu vs. Romania case. The said decision was to notify the Judicial Inspection about the need to include among the topics of its audit activities the way in which the Guide on the rapport between the Romanian judiciary and the media is being observed, and also about the need to carry out ex officio verifications each time pieces of evidence or aspects concerning the private lives of persons are leaked from dossiers that are on the dockets of judiciary bodies.

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