Justice Minister Tudorel Toader stated on Tuesday that the legality of a Government Decision (GD) is verified by the judge specialising in contentious administrative matters, not by the prosecutor. His statement comes after National Anticorruption Directorate (DNA) Chief Prosecutor Laura Codruta Kovesi stated, referring to the GD adopted in the Belina case, that the DNA does not monitor such legislative acts but takes note, ex officio, when there is information that something is wrong with them.
“Government Decisions are infralegal legislative acts, under the law, in the hierarchy of legislative acts. Government Decisions may create suspicions regarding legality. In this hypothesis, verifying the legality of infralegal legislative acts is done by the administrative court. (…) Consequently, in my opinion, the legality of a Government Decision is verified not by the prosecutor but by the judge specialising in contentious administrative matters,” the ministers said in response to a question.
Toader explained that infraconstitutional legislative acts – those with the power of law – are being verified, in the sense of their constitutionality, by the Constitutional Court, while those that are under the law are being verified by the administrative court, by the specialised judge.
Referring to the Belina case, DNA Chief Prosecutor Laura Codruta Kovesi stated on Monday, for Europa FM, that it is not a novelty for the DNA to probe ministers, pointing out that the case does not date back to 2014 but to May 2017 and is in an intermediary stage.
“DNA is doing its job. The dossier is in an intermediary stage. The persons probed in the dossier have the right to bring evidence in their favour. In recent years, we kept probing ministers. For us it’s not a novelty. We kept probing ministers. However, a confusion has been created: the dossier is not from 2014. It’s from May 2017. In 4-5 months, we conducted the first acts and investigations,” the DNA Chief Prosecutor stated.
She said information on this topic appeared in the press before, “but that doesn’t necessarily mean what the press is writing is also true.”
“But we can verify,” Laura Codruta Kovesi emphasised.
In what concerns the Government Decision in the Belina case, the DNA Chief Prosecutor stated: “We do not monitor Government Decisions. But when information appears that there is something wrong with a Government Decision, we take note ex officio.”
The DNA announced last Friday that Deputy Premier Sevil Shhaideh is suspected of committing abuse of office while she was secretary of state with the Regional Development Ministry (MDRAP). According to the dossier, in 2013, through the concerted action of persons holding public offices, parts of the Belina Island and the Pavel Distributary were illegally transferred from state ownership to the ownership of Teleorman County and the administration of the Teleorman County Council, only for them to be illegally leased to a private company only several days later, according to anticorruption prosecutors. The DNA has also asked the Lower House to lift Rovana Plumb’s immunity for her to face a criminal probe in the same dossier.
DNA Chief Prosecutor notifies CSM as result of JusMin’s statement that prosecutors can’t verify legality of Gov’t decisions
DNA Chief Prosecutor Laura Codruta Kovesi asked the Supreme Magistracy Council (CSM) on Tuesday to analyse whether Justice Minister Tudorel Toader’s statement – according to which prosecutors cannot verify the legality of Government decisions – is liable to affect the independence of the judiciary, considering that the minister induced the idea that the prosecutors’ activity is not taking place within the limits of the legal framework.
“On 26 September 2017, Justice Minister Tudorel Toader made a series of considerations of a juridical nature, in the context of the media’s questions about a case currently handled by DNA prosecutors, known as the ‘Belina case.’ Thus, the Justice Minister stated, among other things, that the legality of a Government decision is not verified by prosecutors but by administrative court judges,” the DNA points out.
“Justice Minister Tudorel Toader’s statements on an ongoing DNA criminal probe whose object is to investigate criminal offences, represent a form of interference in the prosecutors’ activity. Under this aspect, the DNA Chief Prosecutor has asked the Supreme Magistracy Council (CSM) to analyse whether these statements are liable to affect the independence of the judiciary, since, through the statements made on 26 September 2017, the Justice Minister induced the idea, in the public opinion, that the prosecutors’ activity is not taking place within the limits of the legal framework,” the DNA points out.
The substantiation of the request lodged with the CSM also shows: “We deem that the public expression of a point of view must necessarily observe the principle of responsibility, professional deontology and good faith. Crediting the idea that DNA prosecutors are not probing offences that represent the violation of criminal law is liable to affect the public opinion’s confidence in the activity carried out by the DNA. Publications quoting the statements contributed to the amplification of these consequences, affecting the independence of the judiciary and manipulating public opinion.”
In what concerns the legal problem invoked by the Justice Minister’s statements, the DNA points out that “it was definitively settled by the High Court of Cassation and Justice, through Decision no.13 adopted by the five-judge panel on 24 January 2014, which established that the action of a minister who tables a Government decision whose object is the illegal transfer of a real-estate asset from the state’s public domain to another form of public ownership, generating a material advantage for a commercial company, represents abuse of office.”
In what concerns another Constitutional Court ruling, decision no.68/27 February 2017, the DNA claims that “this is applicable to some legislative acts that have the statute of laws and to emergency ordinances, not to administrative acts issued via Government decisions.”
Tariceanu: Kovesi got angry and denounced the Justice Minister, I’m stupefied. I don’t think there’s the possibility of creating in Romania a superpower that would control institutions like Ms Kovesi wants
Referring to the fact that Laura Codruta Kovesi asked the CSM to analyse whether Justice Minister Tudorel Toader’s statement – according to which prosecutors cannot verify the legality of Government decisions – is affecting the independence of the judiciary, Senate Speaker Calin Popescu Tariceanu stated on Tuesday that he is “stupefied” by such actions and considers that they only show lack of knowledge on the judiciary. Tariceanu stated there is no “superpower” that would control public institutions “like Ms Kovesi wants.”
“She [Laura Codruta Kovesi] got angry and denounced the minister [Justice Minister Tudorel Toader]. I’m absolutely stupefied seeing such actions that also show, after all, lack of knowledge on the juridical essence. I believe the minister was extremely clear in what he said, emphasising that laws and emergency ordinances can be challenged at the CCR, and the other pieces of legislation he referred to, such as Government decisions too, can be challenged in administrative court. I don’t think anyone should get angry in this regard,” Tariceanu stated.
He added there is no possibility of creating a superpower that would control public institutions “like Ms Kovesi wants.”
“If she believes this is the model to follow, she can go to Russia and shake hands with Mr Putin,” Tariceanu added.
Iohannis: Justice minister’s approach to verifying legality of Government Decision inadequate
President Klaus Iohannis has said that Justice Minister Tudorel Toader’s approach to verifying the legality of a Government Decision is inadequate, with the head of state arguing that if he found that some things are not well clarified in the judiciary, he had to come up with an act to correct them.
“Minister Toader has confused his position now with the position of university professor or rector he had before. If we speak theoretically, then there can be a discussion on the competence of administrative litigation, constitutional litigation or other related issues about who is in charge of what in Romania. It is true that this discussion can be held, and if we are to remain in the purely theoretical area, there are some aspects that are interesting and important for many, but Mr. Toader is not a university professor at the moment, but minister of justice. So, in his capacity as minister of justice, if he found that certain things were not well clarified in the Romanian judiciary, he did not have to make theoretical statements, but had to come up with an act that corrected, for example, the Civil Procedure Code. Therefore, the minister’s approach seems inappropriate to me,” Iohannis said at the Cotroceni Palace.
According to the president, the cases of prosecutors’ abuse should be resolved by the Higher Council of Magistrates, which deals with complaints of this kind, and by the policy in the field of justice.