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March 1, 2021
POLITICS

Special committee on judicial laws adopts a series of amendments: Prosecutors should be controlled by their superiors, including by the minister*SRI Cttee should verify the veracity of judges’ affidavits

The special committee on the judicial laws adopted on Wednesday a series of amendments that introduce the hierarchical oversight of prosecutors, including on the part of the Justice Minister, and the magistrates’ obligation to annually file affidavits stating they are not undercover agents of the intelligence services, the parliamentary committees tasked with the oversight of the Romanian Intelligence Service (SRI) and the Foreign Intelligence Service (SIE) having the role of verifying the veracity of these affidavits. “Prosecutors carry out their activity according to the principle of legality, impartiality and hierarchical oversight, under the authority of the Justice Minister,” reads one of the amendments that PSD-ALDE brought to law no.303/2004 on the statute of judges and prosecutors. The initiators of the amendment defended it by arguing that it puts the law in line with the Constitution.

Nevertheless, Save Romania Union (USR) MPs criticised the amendment brought by PSD-ALDE-UDMR MPs, explaining that it actually means the elimination of the independence of prosecutors.

“Prosecutors are no longer independent in carrying out their activity. An amendment was voted stipulating this independence in law no.303, and now that article has been modified and provisions from the Constitution are taken, which are very general. At present, we had a regulation which was like an addition to what the Constitution says, as a guarantee that magistrates – and prosecutors, whether we like it or not, continue to be and will be magistrates –, not just judges, also enjoy this independence. House member Mr Arpad claimed, which is out of the ordinary, that the prosecutor handling a case should not be independent not even for the issuance of an arrest warrant, instead, there should be an agreement along the hierarchical line, up to the highest-ranking prosecutor. Such a theory is absolutely unqualifiable,” USR’s House member Stelian Ion stated.

“Basically, at this moment prosecutors are limited to the solutions they order, they benefit from independence only in those situations. On the other hand, in the rest of the situations, in the case of other documents they draft in the dossier, the article in its current form implies that they are no longer independent and that all these documents should be verified by a hierarchically superior body or even by the minister. The best wording would have been that they benefit from this independence in all situations covered by law,” USR Senator George Dirca stated in his turn.

Based on a proposal tabled by ALDE’s House member Steluta Cataniciu, the special committee also adopted the following amendment to law no.303/2004: “Judges and prosecutors are obligated to abstain from behaving or expressing themselves libellously in any way toward the other branches of government – legislative and judicial.”

“Such an amendment is not at all advisable. We haven’t seen judges defaming public institutions, as the attempt is being made to accredit the idea here. It’s a false topic. But we see on the other hand a decision, decision no.1 of the Constitutional Court, through which an attempt is being made to censor the opinion of judges. We see that basically the attempt is being made to censor the opinions of judges, which is inadmissible,” USR’s House member Stelian Ion explained.

Last but not least, the committee adopted a series of regulations in what concerns the magistrates’ rapports with intelligence services.

Thus, at the proposal of the Association of Magistrates, the committee adopted the amendment which stipulates that “being a member – as agent or collaborator – of the security bodies, in terms of political police, results in dismissal from office.”

A series of other amendments, proposed by the National Union of Judges, stipulate that magistrates will fill-in, annually, an affidavit stating that they were not and are not agents, including undercover agents, informers or collaborators of any intelligence service.

Likewise, the intelligence services are not allowed to recruit judges or prosecutors.

“The intelligence services are not allowed to recruit the persons mentioned on Paragraph 1 (judges, prosecutors, assistant-magistrates, juridical personnel assimilated to them and the special ancillary personnel of the courts and prosecutor’s offices – editor’s note) as agents, including undercover agents, informers or collaborators. Violating this interdiction is an offence against the independence of the judiciary and is punishable by 5 to 10 years in prison. If the offence is committed by an officer holding a leadership position, or at his instigation, the limits of the punishment are to be raised by a half. The attempt is punishable,” reads an amendment adopted on Wednesday.

“The CSAT [Supreme Defence Council] and the special parliamentary committees for the oversight of the activity of the intelligence services verify the veracity of the affidavits mentioned on Paragraph 2, annually on their own initiative or every time they are notified by the Justice Ministry, the Supreme Magistracy Council, the judge or the prosecutor concerned. (…) The intelligence services are obligated to place at the disposal of the parliamentary oversight committees all the data, information or documents necessary in this sense,” reads another amendment adopted by the committee.

“Basically, at this moment we are drifting away from the essential role we have, namely that of legislating, and we gain ever more prerogatives in the role of investigating. In our view, we were not mandated by our voters to investigate something in Parliament and we must legislate,” USR Senator George Dirca pointed out.

“By waiver from any other laws or provisions, the information, decisions, rulings, protocols, orders, and other acts issued or co-signed by the Supreme Defence Council or by an intelligence service, which concern or are connected to the judicial system, represent information of public interest,” reads another amendment adopted by the special committee.

 

PNL, PMP and Prosecutor General’s representative walk out of debate on judicial laws, complaining of “political baseness” and “parliamentary insolence”

 

National Liberal Party (PNL) and Popular Movement Party (PMP) MPs walked out of the special committee’s debate on the amendments to the judicial laws, after the PSD-ALDE-UDMR majority rejected all the proposals they tabled, including the demand to ask the Venice Commission for a point of view. The representative of the Prosecutor General’s Office also walked out of the special committee’s meeting after his request for the debate to first focus on the general principles of the legislative amendments was also rejected.

“What is happening there is political baseness, legislative baseness, and, if you’d allow me, parliamentary insolence. The way the proceedings have taken place confirms what we all feared: it’s not a well-meaning overture, it’s an overture well-guided by Mr Dragnea’s office to butcher the judicial laws,” PNL’s House member Catalin Predoiu stated after the Liberals walked out.

“There are not hundreds but thousands of amendments made, whose reading is probably possible overnight at PSD, because they are like Prince Charming, they read as many amendments overnight as others read in ten years. There are thousands of pages in juridical language, pages you can’t study thoroughly, you can’t read so as to have a pertinent opinion and one that would generate added value to the judicial system,” PNL Senator Alina Gorghiu explained in her turn.

She accused PSD and ALDE of “silencing” those who disagree with them.

“Nothing from what the Opposition proposed, from what the CSM proposed, from what the Prosecutor General’s Office wanted to say has been discussed. PSD has tried to turn us into pieces of furniture because they have the following objective: we were ordered by Dragnea, we must pass these laws in 24 or 36 hours, we’re not interested in a debate, we’re not interested in the judicial system’s opinion, we’re not interested in the Opposition, we’re not interested in absolutely anything else. Look how they act like lemmings. No PSD Senator or House member discusses anything, they stay silent and raise their hands and vote what Mr Iordache says, the wise man of this group, the one who has picked up the flag of amending the judicial laws. For this reason, we all decided to walk out of the discussions today and to protest, because it’s better not to do something than to do it poorly,” Alina Gorghiu added.

Before walking out, the Liberals unsuccessfully proposed that the judicial laws should enter a normal parliamentary procedure and that the special committee chaired by Florin Iordache should give up debating these legislative acts.

PMP’s representatives also walked out of the special committee meeting, in protest against the way committee chairman Florin Iordache (PSD) handled the debates.

At PSD and UDMR’s proposal, the committee’s scheduled was extended until 7 p.m. on Wednesday.

The first legislative act tackled on Wednesday was law no.303/2004 on the statute of judges and prosecutors. The most challenged amendment in this case seeks to limit the Romanian President’s ability to refuse a nominee for the office of chief prosecutor, namely only once, and to remove the Head of State from the procedure to dismiss a chief prosecutor.

The PSD-ALDE ruling coalition has devised an accelerated timetable for the rapid passing of the bill amending the judicial laws: ten days in the Lower House and ten days in the Senate, which means that the final vote on the said amendments will take place in the next three weeks.

 

Special cttee on judicial laws rejects PNL’s proposal to notify Venice Commission

 

On Wednesday, the special committee on judicial laws voted to reject the National Liberal Party’s (PNL) proposals to ask for the Venice Commission’s point of view on the bill amending the judicial laws and to draft an impact study on the same bill.

The proposals were tabled by PNL’s Lower House member Ioan Cupsa and were rejected with 13 votes against and only 6 in favour. PNL and USR also asked that the debates be postponed for one week, a request that was also rejected. Following the rejection of these proposals, PNL and USR MPs wanted to walk out, but after discussing for a few minutes they decided to remain in the room.

The Lower House and Senate’s special committee for the systematisation, unification and assurance of legislative stability in the judicial field convened on Wednesday for the first time since Parliament decided that this committee should take over the prerogatives of the judiciary committees in what concerns the judicial laws.

 

Iordache on PNL notifying the Venice Commission: What for?

 

Florin Iordache, chairman of the special parliamentary committee on the judicial laws, stated on Wednesday that PNL notifying the Venice Commission makes no sense, since this overture should be made only if the procedure used to appoint the chief prosecutors is changed.

“They notify the Venice Commission, what for? Because, you see, for the time being we are discussing in order to draft a report. We can ask for the Venice Commission’s point of view by asking what? If there are issues on which the Venice Commission’s point of view is necessary, then we will ask for it, but if there are no structural changes in changing [sic] the appointment of prosecutors… because, after all, this is the issue – the Venice Commission should be notified when it comes to the appointment and dismissal of the prosecutors. If we haven’t decided on the formula that will result from the committee, namely on whether the President will remain the one who appoints and dismisses the judges or prosecutors, or whether that will be the CSM. For the time being, in my view, until we have a report and a point of view from this committee, we have no reason to ask the Venice Commission for a point of view,” Florin Iordache stated.

 

PSD Senator Serban Nicolae wants magistrates’ training period extended from 2 to 4 years

 

Social Democratic Party (PSD) Senator Serban Nicolae has tabled a series of amendments to the judicial laws, one of them concerning the extension of the period of post-university training of future magistrates from 2 to 4 years, and the enrolment in internships in several institutions.

The judicial laws are under public consultation within the special parliamentary committee.

In its current form, Article 16 of the Law on the Statute of Magistrates stipulates that the students enrolled at the National Magistracy Institute (INM) for a future career as judge or prosecutor undergo a training period of two years, with the students set to opt between the two careers after the first year.

Serban Nicolae proposes that the duration of training at the INM be extended to four years. “After the first year of classes, the students will undergo six-month internships at courts, prosecutor’s offices and penitentiaries, namely two months each at the level of court, tribunal and court of appeals and three months each at the Trade Registry Office, National Land Register and Real-estate Advertisement Agency, General Directorates for Social Security and Child Protection and among lawyers, notaries public, and court enforcement officers,” reads the PSD Senator’s amendment.

In what concerns the mechanism used to appoint the President and Vice Presidents of the High Court of Cassation and Justice, Serban Nicolae claims that the Romanian President should appoint in office the persons nominated by the CSM, but with the amendment that the Head of State cannot refuse appointing them and cannot dismiss them.

Likewise, Serban Nicolae is in favour of maintaining the mechanism used to appoint the chief prosecutors, with the amendment that the required seniority threshold should be lifted from 10 to 15 years and only prosecutors could be appointed in these offices.

The PSD Senator also wants significant amendments brought to Article 96 of the Statute, the one referring to the state’s and magistrates’ accountability for judicial errors. In its current form, the article stipulates that the state’s material liability does not eliminate the accountability of magistrates who carried out their prerogatives “with ill faith or severe negligence.”

Serban Nicolae’s amendment defines the two notions. “Acting with ill faith is the judge or prosecutor who, while carrying out their duties, by infringing the Convention on the protection of Fundamental Human Rights and Freedoms, the fundamental rights and freedoms included in the Constitution of Romania, or the norms of substantive or legal procedure laws, but also by intentionally committing judicial errors, injures a person’s legitimate right or interest, prompting the state’s material liability for the damage caused. Acting with severe negligence is the judge or prosecutor who culpably disregards the norms of substantive or legal procedure laws, injuring a person’s legitimate right or interest and prompting the material liability of the state for the damage caused,” reads the proposed amendment.

For the cases in which the state must pay damages to a person on account of a judicial error, one of the Senator’s amendments forces the Finance Ministry, under penal sanction, to ask that the damages be paid by the magistrate who caused the damage through his/her actions.

 

PNL’s Turcan: Parliament’s standing bureaus to ask Venice Commission for an opinion on judicial legislation

 

The National Liberal Party (PNL) is calling on the standing bureaus of the Lower House and the Senate to ask the Venice Commission for an opinion on the package of judicial laws, PNL’s Lower House whip Raluca Turcan announced on Tuesday.

“PNL is calling on the standing bureaus of the Lower House and the Senate to relieve the special committee on judicial laws of its duties and to ask the Venice Commission for an opinion on the package of judicial laws. I want to point out here that after a meeting of [Romanian Justice Minister] Toader and Vice-President of the European Commission Frans Timmermans, there was a common commitment that before the judicial laws are put up for vote an opinion from the Venice Commission has to be sought. We are also requesting that this package of legislation be subject to a comprehensive debate and that a study be carried out on the impact of this legislation on society as well as on the system,” Turcan said at Parliament Palace.

She added that the Supreme Council of Magistrates (CSM) has released a broad explanation of the negative opinion it issued on the judicial legislation package, adding that, according to the Constitution, the CSM is the guarantor of judicial independence.

“So, there is currently concern that this package of judicial legislation – so hastily passed, without debate, without an impact study – does not serve the Romanian society, or anyone in good faith, but only those who are in conflict with the law, even at war with the law. PNL has demanded from the outset that these laws should follow the normal parliamentary path – standing committees, with all the necessary opinions, plenary debates. The Social Democratic Party (PSD) seems to care about the opposite, fast forwarding, as little transparency as possible, mimicking debates, breaking commitments to European partners. All this confirms that there must be some hidden reasons why PSD is so impatient with these laws,” said Turcan.

 

Ludovic Orban: We are facing a threat to democracy

 

National Liberal Party (PNL) President Ludovic Orban considers that the amending of the judicial laws and the ruling party’s actions represent “a threat” to democracy.

“We are really facing a threat to democracy. Those who are today in power (…) are groups profoundly bothered by everything that an independent Romanian judiciary means and are profoundly bothered by any free person, or any prosecutor, or any citizen who (…) doesn’t obey them, who tries to hold them accountable for what they’ve done. There is a red line for the take-over of all public institutions. Look at the Court of Accounts, look at the ASF, we had a clear demonstration of the political use of the Financial Supervisory Authority (…); at the Public Television Broadcaster they were not satisfied with appointing their man once, the moment a show that displeased them was broadcast or the institution retained some independence they replaced him,” Orban stated at a debate on the judicial laws, a debate organised on Tuesday evening by the Group for Social Dialogue and ‘Revista 22’ weekly magazine.

He deemed that this amendment bill is “a very strange attempt,” since had it been a governmental bill it would normally have followed a procedure, it should have been publicly undertaken by the Justice Minister.

“He acted like a street hustler, publicly announcing he won’t table the bill unless it has the CSM’s endorsement but then he went to the special committee and planted it on the famous Serban Nicolae, Nicolicea and Iordache trio, who are willing to say anything on the topic of the judiciary,” Orban stated, being quoted by Agerpres.

The Liberal leader believes that the Government “has amendments ready and on stand-by,” because their objective, in his opinion, is to replace all chief prosecutors.

“At this moment, even though they haven’t shown it publicly, they are capable of going as far as replacing the President in order to be able to replace the chief prosecutors with [the help of] an acting President, which would be none other than the Senate Speaker. In what concerns the legislation, it could be that this legislation, the way it is being made, is the basis of ampler and more serious actions. The war of the past three years, carried out with unimaginable weapons against everything that an institution means, including the institution in the judicial field, risks affecting extremely seriously society’s evolution,” Orban said.

 

“Replacing the chief prosecutors is sought. They are capable of impeaching the President”

 

Present at the debate that the GSD and the ‘Revista 22’ weekly magazine organised on Tuesday evening, Orban also stated that Tudorel Toader acted as “a hustler” when he tabled within the special parliamentary committee the bill amending the judicial laws, pointing out that the final goal is to replace the chief prosecutors.

“Had it been a governmental bill, it would have followed a procedure, it should have been publicly undertaken by the Justice Minister. But the Justice Minister acted as a street hustler. He publicly announced he would not table the bill unless it has the CSM’s endorsement, but then he went to the special committee and planted it on the famous trio – Serban Nicolae, Nicolicea and Iordache – who is willing to say anything on the topic. (…) We are facing a threat to democracy. They have amendments in the drawer too, because, in my opinion, even though they haven’t shown it publicly, they are capable of going as far as impeaching the President, so as to be able to replace the chief prosecutors, because the acting President would be none other than the Senate Speaker. In what concerns the legislation, the way it is being made, it could be the basis for ampler and much more serious actions,” Ludovic Orban said, according to Mediafax.

Ludovic Orban was probed by the DNA for influence peddling, and was acquitted in the court of first instance. The probe resulted in Ludovic Orban bowing out of the race for the Bucharest City Hall.

The statements were made at the ‘Judicial Laws. Rule of Law in Danger’ debate organised by the Group for Social Dialogue and ‘Revista 22’ weekly magazine.

DNA Chief Prosecutor Laura Codruta Kovesi, CSM magistrates Andreea Chis and Bogdan Mateescu, and judge Camelia Bogdan were among the event’s guests.

 

 

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