On Thursday, the special parliamentary committee on judicial laws resumed its debates on the bill amending the judicial laws, against the backdrop in which the PSD changed its point of view on the statute of magistrates which was adopted by the committee last week.
The specialized committee adopted the setting up of a section tasked with investigating crimes committed within the judicial system. The section will be part of the Prosecutor General’s Office and will have exclusive prerogatives in carrying out criminal probes against prosecutors and judges for the committal of corruption crimes and crimes against the serving of justice.
The special section for the investigation of prosecutors and judges has been set up following the special committee’s adoption of the amendments that PSD Senator Serban Nicolae brought to law no.303/2004 on the judicial system.
“A new section is to be introduced after Article 88: the section for the investigation of judicial crimes,” reads a first amendment.
The second article details the prerogatives of the newly-established section:
“The section for the investigation of judicial crimes is set up and will function within the Prosecutor’s Office attached to the High Court of Cassation and Justice, having the exclusive prerogative of carrying out the criminal probe into the committal of corruption crimes and crimes assimilated to corruption, as stipulated by the Criminal Code and law no.78/2000, of malfeasance while in office, and of crimes against the serving of justice, committed by judges and prosecutors, including those who are members of the CSM, but also by military prosecutors and judges.”
The setting up of the special section for the investigation of prosecutors and judges was adopted by PSD-ALDE-UDMR, PNL and USR voting against it. PMP’s representative within the special committee did not take part in any meeting.
USR’s House member Stelian Ion said that the setting up of such a directorate is not justified and was not even substantiated by the initiator, while PNL Senator Iuliana Scantei pointed out that such a structure would represent legal support for the setting up of a new SIPA.
“We oppose the setting up of any structure or directorate which, under the prerogative of providing extra protection or an extra guarantee of the independence of the magistrate, would in fact open a Pandora’s box, would generate new abuses and would justify subsequent legislative actions that would lead to the setting up of a special intelligence service for magistrates,” Scantei explained.
The special parliamentary committee on judicial laws started to debate law no.304/2004 on the judicial system on Monday. The representatives of the main institutions of the judicial system – Prosecutor General’s Office, CSM, DIICOT – asked the MPs not to set up a special directorate for the investigation of magistrates, explaining that this would make room for interference in the activity of prosecutors. On the other hand, the Union of Judges endorses the establishment of the special directorate, claiming that it would represent a guarantee of the independence of the judiciary.
The meeting of the special parliamentary committee started with general debates on the bill amending law no.304/2004 on the judicial system.
Prosecutor General’s Office representative Irina Kuglay asked the committee not to modify the texts that explicitly refer to the independence of the prosecutor and to renounce the setting up of a special directorate for the investigation of magistrates.
“The creation of a special structure for the investigation of certain crimes must be based on a social necessity, one resulting from a crime statistics assessment that a certain criminal phenomenon has such an extent that it requires a special investigative structure. That happens in the case of organised crime and terrorism, that happens in the case of high-level corruption crimes. That is not the case of crimes committed by magistrates. Given the way the structure is conceived, it leaves room for interferences in the activity of prosecutors, in the activity that concerns the other magistrates, the ones that this directorate would subject to an investigation, which is worthy of criticism,” Irina Kuglay stated before the special parliamentary committee.
DIICOT Chief Prosecutor Daniel Horodniceanu also asked for the independence of prosecutors not to be affected and said that the setting up of the special directorate is not justified.
“The texts concerning the independence of the prosecutor must be formulated so as to effectively guarantee stability and independence. It’s very important for the form they take to effectively guarantee the independence of the prosecutor. Concerning the new directorate, I consider, in principle, that a number of 20 prosecutors would not justify a unit of such size,” Horodniceanu said.
“In what concerns the directorate for the investigation of crimes committed by prosecutors, irrespective of how it will be organised, you will have to bear in mind the need for both a preliminary assessment of these deeds and for the establishment of a prerogative based on the capacity of the person, against the backdrop in which there is no such prerogative for other professional categories,” CSM representative Maria Ceausescu stated in his own turn, News.ro informs.
National Union of Romanian Bars (UNBR) President Ion Ilie Iordachescu explained that the setting up of a special directorate for the investigation of magistrates would break a protocol of the European Court of Human Rights (ECHR).
“As a personal opinion, I do not consider it necessary to set up a special directorate that would handle the accountability of magistrates. Of course, this directorate can also be called a section within the Prosecutor General’s Office. I don’t deem it necessary to set up even a special section. I invoke in this sense protocol no.12 of the ECHR, which forbids any discrimination precisely on professional issues,” Iordachescu pointed out.
On the other hand, the representative of the National Union of Romanian Judges (UNJR) said that the institution she represents supports the setting up of a special structure for the investigation of magistrates, saying it would be a guarantee of the independence of the judiciary.
“In what concerns the special prerogative, we support the idea of a section within the Prosecutor General’s Office, or of a directorate, depending on the number of cases, precisely due to the circumstance that there aren’t very many cases that would weigh so heavily on the activity of the Prosecutor General’s Office, and the componence of this section can be established by the Prosecutor General with the support of the leadership college of the Prosecutor General’s Office, based on the number and complexity of the cases. The fact that the probe could be carried out, in the case of the special crimes stipulated, by prosecutors with certain prerogatives and certain seniority within the judicial system – not by prosecutors from a structure that can generate various forms of infringement upon the act of justice – is a guarantee of the independence of the judge, but also of the independence of the judicial system,” the UNJR representative said.
UNJR’s Girbovan: Directorate for Investigation of Criminal Offenses in Justice, shielded from any political decision
The president of Romania’s National Judges Union (UNJR) Dana Girbovan maintains that the Directorate for the Investigation of Criminal Offenses of Judges and Prosecutors, due to be set up within the Prosecutor’s Office is “completely shielded from any politician’s decision.”
In a Facebook post, Dana Girbovan refers to UNJR’s proposal sent to the parliamentary committee headed by Florin Iordache of setting up a Directorate for the Investigation of Criminal Offenses of Judges and Prosecutors.
“Despite all slogans voiced by some people in politics or the press, that Justice will be politically seized through this directorate, it can be noticed that this directorate is completely shielded from any politician’s decision. If appointments for the prosecutor general or directorates’ chief prosecutors positions are made with manifest political contribution (the proposal is made by the Justice minister and the appointment by the President), in this directorate’s case, the appointment of the prosecutor general is made by the CSM (Superior Council of Magistracy, ed. n.) plenary. Moreover, the CSM plenary also appoints the prosecutors that will work in this directorate. The appointment is made following a completely transparent procedure, including a live-broadcast interview. The selection pool is among 18-year-on-the-job prosecutors, in minimum rank of Court of Appeal. Seniority and rank will bring a plus of professionalism and experience. In their assessment, their previous activity will count, including the number of acquittals, restitutions, convictions, the way they led their investigations,” Dana Girbovan writes.
The UNJR president further shows that the appointment of these prosecutors in this directorate will cover three years with only one possibility of re-appointment.
“In order to enhance the prosecutors’ independence guarantees, this directorate will only carry out criminal investigation, following that the prosecution be conducted, depending on the situation, by prosecutors with the prosecutors’ offices of the courts of appeal or the judicial department of the Prosecutor’s Office with the ICCJ [High Court of Cassation and Justice – ed.n.]. Such structure, completely protected from any political decision will provide further guarantees of independence not just to judges but also to prosecutors,” Girbovan says.
Predoiu: On Wednesday night we received UNJR amendments that “evaporate” DNA’s prerogatives
PNL’s House member Catalin Predoiu stated on Thursday that on Wednesday evening he received a series of amendments tabled by the National Union of Romanian Judges (UNJR) to law no.304/2004, amendments that “evaporate” the DNA’s prerogatives when it comes to corruption deeds that involve magistrates.
“Last evening (Wednesday – editor’s note), at 12:30 a.m., some of the committee members received by email a series of amendments proposed by the UNJR, regarding the setting up of a special section for the investigation of magistrates, as part of the Prosecutor General’s Office. According to these amendments, the DNA’s prerogatives in the case of corruption deeds involving magistrates are evaporated. It’s an attempted blow against the prerogatives of the DNA,” Predoiu said.
He pointed out that PNL will oppose this initiative and will ask that all the representatives of the judicial system be present at the special committee meeting in which these amendments are being debated.
“It’s inadmissible to receive at 12:30 a.m. amendments that were not relayed, were not debated. It’s not a very good premise for this debate,” Predoiu said.
PG Lazar: Amending judicial laws to surely disrupt Romanian Judiciary
Romania’s Prosecutor General Augustin Lazar stated on Thursday, at the seat of the Superior Council of Magistrates (CSM), that the amendment of the judicial laws “will disrupt the Romanian Judiciary” and “the desire to keep this domain in check is stronger than reason.”
Present at the CSM headquarters, PG Lazar was asked by journalists how he explains the way Lower House lawmakers voted the amendments to the law on the statute of magistrates.
“I could not characterise the activity of the Lower House, but one thing I can tell you. The amendment to the judicial laws, in the context that we all see, in these inadequate conditions and without any impact studies on the results it might produce, will most certainly disrupt the Romanian Judiciary. This is something anyone of good faith can notice, one doesn’t need to be a legal expert to understand these things. It appears though, that the desire to keep the judiciary in check is stronger than reason,” the Prosecutor General said.
“JusMin should never instruct prosecutors how to investigate”
Lazar said also on Thursday that the Justice Minister should never tell prosecutors what to do in the course of investigations.
“The administrative authority should be the only with direct higher competence and that should be all. It should see to the human resources required by the prosecution, the financial resources the Public Prosecution Office needs to work properly, whether the relations with the litigant parties are correct and that’s it,” Lazar said upon leaving the Supreme Council of Magistracy, when asked about the amendment according to which the prosecutors should act under the direct authority of the Justice Minister.
Iordache on statute of magistrates: If we can’t modify laws in Parliament, then where?
PSD’s Lower House member Florin Iordache pointed out, on Wednesday night, after approximately 11 hours of debate on the proposed amendments to the statute of magistrates, that he witnessed more of “a scandal” than debates, accusing the Opposition of not observing the Regulations.
“It’s a pity the proceedings degenerated today, and in fact there was no debate because it was more of a scandal. If we can’t have a debate in Parliament, if we can’t modify the laws in Parliament, then where?” Iordache said at the end of the debates and of the article-by-article vote on the amendments.
He said he did not find it normal the way the proceedings took place in the first part of the meeting.
“As long as we have some rules, as long as certain procedures were established by vote at the start of the meeting, I believe that – whether we like it or not – we must observe those rules. If we have some rules clearly established by the Regulations, I believe both the ruling power and the Opposition must observe them,” Iordache said.
State to seek legal redress, through Finance Ministry, against magistrates who commit errors
Law no.303/2004 on the statute of judges and prosecutors was adopted on Wednesday, article by article, in a marathon meeting that lasted more than 12 hours. However, the final vote was postponed because PSD-ALDE-UDMR failed to garner sufficient Lower House members to pass the legislative act. The only modification that the plenum brought to the committee’s version was the state’s obligation to seek legal redress against the magistrate that committed an error out of ill faith or negligence. “The final vote will be established in a subsequent meeting of the Standing Bureau,” meeting chairman Gabriel Vlase announced at the end of the debates.
The Opposition parties – PNL and USR – once again criticised, at the end of the debates, the way the Lower House’s plenary meeting took place, accusing the ruling coalition parties – PSD, ALDE and UDMR – of abuse and infringement of democratic rules.
Lower House lawmakers decided the state seek legal redress, through the Finance Ministry, against magistrates who committed errors and on Wednesday evening adopted to this end an amendment to Law 303/2004 on the statute of judges and prosecutors.
“After the damage was covered for by the state by virtue of the irrevocable resolution given with observance of par (6) provisions, the state takes compensatory legal action against the judge or prosecutor who, in bad faith or gross negligence, made the judicial error causing the damage.
Paragraph 6 invoked in the amendment states that “In order to compensate the damage, the wronged party can only take action against the state, represented by the Public Finance Ministry.”
Previously, the special parliamentary committee on judicial laws had rejected this proposal in favour of an amendment formulated by the National Union of Judges (UNJR) and the Magistrates Association, according to which the state “has the right” to take action against the judge or prosecutor who committed a judicial error out of negligence or bad faith.
The special parliamentary committee on judicial laws decided to amend this law, among the most important change being the one stating that the head of state cannot refuse the appointment of the president and deputy president of the High Court of Cassation and Justice.
Special cttee’s debates suspended during the three days of national mourning
The special parliamentary committee on the judicial laws will its proceedings on December 14-16, ruling majority MPs rejecting the Opposition’s demands to completely suspend the debates on the judicial laws until after King Mihai is buried.
PSD Senator Nicolae Moga made the proposal to have the special committee’s proceedings suspended.
“I call on calm. We made fools of ourselves, let’s no longer continue to make fools of ourselves. Let’s leave fury, let’s leave anger aside and let’s do the job we are here for. I agree with our Opposition colleagues that we should suspend the committee’s proceedings during the period of national mourning. Please accept my apologies for all the uncontrolled outbursts yesterday,” Moga stated within the committee.
Previously, PNL and USR had asked for the debates on the judicial laws to be fully suspended until after King Mihai is buried.
“Some of us are in mourning and cannot take part in a debate that conveys a feeling of divisiveness to society,” PNL Senator Iulia Scantei explained.
She also asked that the general assemblies of magistrates be convened during the period in which the committee’s proceedings are suspended, so as to express a clear point of view on the latest amendments to the judicial laws.
“We should not try to believe that a minority can block Parliament’s activity. After all, there is a majority that must decide by vote. I don’t think this continuing spectacle does good to any of us,” special committee chairman Florin Iordache (PSD) stated.
“The spectacle you have given in Parliament, and which does Romania no honour, was generated by the way you saw fit to chair yesterday’s proceedings. We sat without any kind of debate until 11:30 p.m., voting only figures,” USR House member Stelian Ion reacted.
The Opposition’s request for the special committee’s proceedings to be suspended until December 18 was nevertheless rejected by the PSD-ALDE-UDMR majority.