JUSTICE POLITICS

Judicial laws controversies continue. Tudorel Toader to Prosecutor General: Justice Minister does not interfere in criminal prosecution activity, but can demand explanations. JusMin presented amendments to judicial laws at the Venice Commission

Judges’ Forum and Prosecutors’ Association ask Parliament to reject modifications to judicial laws

 

The Judges’ Forum and the Prosecutors’ Association ask Parliament to reject the legislative package to amend the judicial laws, the two professional associations announcing they reserve their right to protest these modifications by all legal means.

In a Friday release, the Judges’ Forum and the Prosecutors’ Association sound the alarm over “the unjustified and non-procedural haste” through which this legislative package is promoted.

“The only solution to overcome this critical situation is resuming dialogue, based on the institutional transparency principles, so the modification of these laws, fundamental for the functioning of the rule of law, be done only after conducting some impact studies, a real consultation with the civil society, the Superior Council of Magistrates, the magistrates’ body, the Venice Commission, and their adoption enjoy the confidence of Romania’s citizens, contribute to the good functioning and modernisation of the judicial system and not affect the independence of the judiciary, a fundamental guarantee of democracy. We once more sound the alarm over the unjustified and non-procedural haste of promoting this legislative package, without having presented solid and credible arguments referring to the modifications proposed, aspects which are seriously breaching the recommendations of the European Commission Report within the Co-operation and Verification Mechanism,” the release signatories say.

The two associations also accuse that the debate on the law package in Parliament was done without taking into account the point of view of the majority of magistrates.

The Judges’ Forum and the Prosecutors’ Association announce they reserve their right to protest these modifications by all legal means.

Furthermore, the Judges’ Forum and the Prosecutors’ Association ask the CSM to adopt a call-statement to Parliament and the Government.

The reaction of the associations of magistrates comes as a result of the fact that the special parliamentary committee on judicial laws on Thursday introduced a new article in law no.304/2004 on the judicial system. According to it, the Directorate for the Investigation of Organised Crime and Terrorism (DIICOT) will have to draft an annual activity report and present it to the Justice Ministry and the CSM. Another amendment adopted states that the National Anticorruption Directorate (DNA) will no longer be able to set up territorial services, services, bureaus, and other activity compartments without the Supreme Magistracy Council’s (CSM) greenlight. Likewise, the committee voted the setting up of a section for the investigation of crimes committed within the judicial system, which will function within the Prosecutor General’s Office and which will have the exclusive prerogative of criminally probing corruption crimes and crimes against the rendering of justice committed by prosecutors and judges.

The amending of law no.303/2004 on the statute of judges and prosecutors took place on Wednesday, in a marathon meeting that lasted more than 12 hours. Nevertheless, the final vote was postponed because PSD-ALDE-UDMR failed to garner sufficient votes to adopt the legislative act.

 

 CSM’s Ghena:  Setting up the section that will probe magistrates is unnecessary and unjustified, especially the way it was discussed and adopted

 

The setting up of the section tasked with probing magistrates is unnecessary, this measure not being justified, Supreme Magistracy Council (CSM) President Mariana Ghena stated on Friday. She says that, as also shown by the negative report on this bill, the CSM disagrees with this proposal, especially given the way it was discussed and adopted.

“The CSM’s plenum has issued a negative report on this aspect. The negative report was solidly substantiated. If you noticed in the point of view expressed by CSM’s representatives, who received our mandate, they too opposed it, invoking the same negative report and the substantiation it includes. This section, in our point of view, is not necessary, its setting up is not justified in any form, especially the way it was discussed and eventually adopted. This proposal was not consistently substantiated, and we disagree even more so with the adoption of this law,” CSM President Mariana Ghena stated at the Palace of Parliament.

 

 Prosecutor General Lazar on “attempts by certain state powers to viciously deprive Romanian prosecutors of their independence”

 

The independence of the prosecutors must be defended with “dignity” and “strength”, on Thursday night said the Prosecutor General of Romania Augustin Lazar, speaking of “attempts of certain powers of the state to deprive the Romanian prosecutors of their independence in dubious ways, through vicious parliamentary bills and procedures”.

“Between protecting the criminals or the victims, the Prosecutor’s Office has made it clear cut its choice for a long time: it will protect the victims, and towards the criminals it will be steady, intransigent and yet even-handed. By doing that, the Public Services Ministry will assume the independence it has to benefit from according to the Constitution of Romania, as well as to international documents, some of which are part of the domestic law through ratification, in accordance with Art. 11 of Romania’s fundamental law. We thus answer all of the public opinion’s questions, the attempts of certain state powers to deprive the Romanian prosecutors of their independence in dubious ways, through vicious parliamentary procedures and bills, or through fraudulent manoeuvres engineered in political circles with interests against the criminal justice, that the Public Service Ministry will not abdicate from its independence or from its steadiness. The independence conferred by the Constitution of Romania is defended with dignity, firmness and through judicial tools provided by the law!” says Lazar, according to a release issued on Thursday evening by the Prosecutor’s General Office.

The Prosecutor General reviews the internal and international documents that rule the prosecutors’ independence, reminding of the noted political scientist Francis Fukuyama, and criticises the bill amending the judicial laws.

“There is a clear connection between the rule of law and the prosecutors’ independence. We talk about the prosecutors’ independence because it is only by this that grave criminal deeds could be sent to court, meaning the justices have the possibility to decide upon the guilt or innocence of the defendants. To harass the prosecutors, to put them in a defensive state, to threaten them with disproportionate legal liabilities against eventual mistakes they did, to assimilate ipso facto a court decision of acquittal of a defendant with professional guilt, to turn the Prosecutor’s Office into a weak link between the Police and the courts, to subdue the prosecutors to control from a fully political executive body, as the Justice Ministry is, headed by a politically appointed Justice minister and with a political agenda means in a nutshell to gravely violate fundamental principles of the rule of law,” Lazar says.

In his opinion, the rule of law is based on the rule of law principle, and yet it implies the idea of moral, ethical, political and judicial responsibility, too.

According to the Prosecutor General, Art. 132 paragraph (1) of the Constitution refers not to any subordination of the prosecutors to any other state authority and under no circumstances to the Justice minister.

Augustin Lazar says that several international documents speak about the prosecutors’ independence, and yet admits that there are constitutional systems across the world where the prosecutors are part of the executive power, “but Romania, as a European country of neo-Latin culture, is not part of this family of constitutional systems.”

“The real mission of a prosecutor in society is to act in the service of the victims of criminality, considering their rights ahead of all. And these are human rights, moreover they are rights of the innocent and whose legitimate rights and interests have been aggressed, ruined, mocked by the criminals. The obligation of the Public Service Ministry to observe the human rights also refers to the persons accused or prosecuted for doing crimes, but only in what regards the assurance of guarantees of a fair trial, the observance of the right to freedom, insomuch as this right justifies its existence in the criminal prosecution stage and trial of the criminal process and last but not least of the presumption of innocence. The rights of the defendants will never be more important than the rights of the victims, on the contrary because otherwise we’d live in a twisted world wherein they who suffer through crime are meant to suffer the humiliation of a criminal investigation and a trial that puts them in inferiority against their aggressor,” Lazar asserts.

“The prosecutors’ firmness is a trait specific to their social role, and society should appreciate the steadiness examples from the prosecutors’ offices because this attitude means but intransigence towards the criminals and a higher defence of the victims of criminality,” Lazar concludes.

 

Iordache on amendment of House regulations: Clearly rejected amendments no longer have the number of votes, so there’s no longer any point in voting

 

PSD House member Florin Iordache, along with Tudor Ciuhodaru (PSD) and Marian Cucsa (ALDE), tabled in Parliament a bill amending the Regulations of the House. According to it, during the plenary meeting, after the time allocated for debate runs out, the admitted amendments are put up for vote as a package, while the rejected amendments are put up for vote only in some cases.

Thus, the three signatories want the Regulations to establish the following procedure: “In case the approved time for debate runs out, the debate ends and the House Speaker puts up for a single vote all the admitted amendments to an article, amendments included in the committee’s report. The rejected amendments are put up for vote only in case the House rejected, by vote, the amendments admitted by the committee.”

The initiative was also signed by House members Tudor Ciuhodaru (PSD) and Gheorghe Cucsa (ALDE), and was registered on Wednesday, precisely on the day in which the law on the statute of magistrates was debated.

“Iordache and PSD are modifying the Regulations to muzzle the Opposition. Today’s latest theft bearing PSD’s trade mark: Iordache has filed an amendment to the Regulations, for the amendments to be voted as a package within the plenum. And so that those rejected (generally belonging to the Opposition) could no longer be backed. I discovered the atrocity by digging through the House’s website, because they did everything with haste. Yesterday they lodged the bill with the Standing Bureau, they immediately gave it a registration number and House bill number and today they’ve already introduced it in the S.B. meeting, with Monday as the deadline for the filing of amendments,” USR House member Catalin Drula wrote on Facebook. “These people have no kind of respect for democracy! Muzzling is all they know!” he added.

The PSD-ALDE bill comes after adopting the law on the statute of magistrates – in an article-by-article procedure – lasted 13 hours within the House plenum because the USR used the regulatory provisions to back the amendments within the plenum, thus trying to prevent the majority from passing the amendments to the judicial laws in record time.

At the end of the debate on law no.303/2004, Florin Iordache criticised the Opposition representatives who tried to block the debate on the legislative act, claiming that the way the plenum’s proceedings took place was not normal.

In their turn, Opposition parties PNL and USR harshly criticised the way the House plenary meeting took place, accusing the ruling coalition parties – PSD, ALDE and UDMR – of abuse and of infringing democratic rules.

PSD House member Florin Iordache on Thursday justified his proposal to amend the House regulations – so that the amendments would be voted as a package, not individually – by arguing that if a proposal was rejected within the committee then it means there is no majority for its adoption, so there is no point in putting it up for vote.

“You saw yesterday that there was a double voting of amendments in the plenum. Through the proposal I made, when the admitted amendments are accepted, the rejected amendments clearly no longer have the number of votes, so there is no point in voting. (…) This stems from a very simple reason: what are we to do in the case of the budget, which has thousands of amendments and tens of thousands of paragraphs? We would have to cast votes once on the admitted amendments and then on the rejected amendments. (…) Not now, not in the future and not ever could the rejected amendments be known more,” Florin Iordache claimed.

Asked whether his proposal comes after Wednesday’s experience, when the House meeting lasted more than 13 hours, Iordache answered: “Yes, undoubtedly.”

Asked whether he will also seek to modify the regulations of joint meetings, since the draft budget is discussed in the joint plenary meeting of the House and Senate, Iordache said there is no need for that.

“I don’t believe it’s necessary, because the joint meetings’ regulations are supplemented by the regulations of one of the Houses. So, if we have a provision in the regulations of one of the Houses, it will undoubtedly be implemented in the joint plenum too,” PSD’s House member stated.

 

Tudorel Toader to Prosecutor General: Justice Minister does not interfere in criminal prosecution activity, but can demand explanations

 

Justice Minister Tudorel Toader responded to Prosecutor General Augustin Lazar, who harshly criticised the amendments brought to the judicial laws. Referring to the amendment to law no.303/2004, which introduces hierarchical control over prosecutors, including on the part of the Justice Minister, Tudorel Toader stated on Saturday, for Antena3, that it “internalises the constitutional rule according to which prosecutors carry out their activity under the authority of the Justice Minister,” claiming that the minister “does not interfere in the criminal prosecution activity” but can ask prosecutors for explanations concerning a dossier. Likewise, Toader said it is worth discussing whether it would not be normal for the Justice Minister to become credit authority for the Public Ministry’s budget too, a statement that drew new criticism from the Prosecutor General’s Office, which considers this would cause severe damage to the independence of the judiciary.

“The bill internalises the constitutional rule according to which prosecutors carry out their activity under the authority of the Justice Minister. The Justice Minister does not interfere in the criminal prosecution activity, however, he can, for example, ask how come a criminal probe is started against a high-level official, the official is suspended from office, then an act of criminal prosecution is no longer carried out for a long period of time,” Tudorel Toader stated on Saturday.

He added that it should also be discussed whether it would not be normal for the Justice Ministry to become credit authority for the Public Ministry too.

“Given that we have a number of judges almost twice that of prosecutors, given that the Justice Ministry is credit authority only for the budget of courts, for a unitary management of judicial activity it is worth discussing whether it would not be normal for the Justice Ministry to become credit authority for the prosecutors’ budget too,” Minister Tudorel Toader added.

The Public Ministry states that financial independence is an essential component of the independence of the judiciary, which must not be dependent in any way on another branch of government and that the idea of having the Justice Ministry manage the Public Ministry’s budget means the grave damaging of this independence. The Public Ministry thus responded to Justice Minister Tudorel Toader, who stated on Saturday that it is worth discussing whether it would not be normal for the Justice Ministry to become credit authority for the Public Ministry’s budget too.

In a communique issued on Saturday, following the Justice Minister’s statements, the Public Ministry states that financial independence is an essential component of the independence of the judiciary, which should not have any kind of dependency toward any other branch of government, that it was never financially dependent on other institutions, and that changing the current situation would demonstrate the desire to put prosecutors under control.

“In this context, the leadership of the Prosecutor’s Office attached to the High Court of Cassation and Justice expresses its concern about the independence of the prosecutor, the idea of having the Justice Ministry take over the management of the Public Ministry’s budget representing grave damage to this independence. If the Justice Minister – politician or member of a political Government – becomes the credit authority of the Public Ministry’s budget, then the possibility of controlling the activity of prosecutors by under-financing the system, the structures within it, or by discretionarily channelling financial resources is being created,” the Public Ministry shows.

The institution also says that the three budgets of the Public Ministry – PICCJ, DNA, DIICOT – cannot be operatively managed along with the Justice Ministry’s budget, because it would prompt financial gridlock, namely the blocking of the activity of prosecutor’s offices.

“Invoking the fact that the Justice Ministry is credit authority for the courts’ budgets is not an argument, considering that the Supreme Magistracy Council and the representatives of the courts have constantly demanded that the courts’ budgets be managed by the High Court of Cassation and Justice, invoking the same argument of financial independence. The leadership of the Prosecutor’s Office attached to the High Court of Cassation and Justice knows the financial needs of the prosecution bodies, the priorities for the tackling of the criminal phenomenon, being thus imperiously necessary for the management of the budget to be handled by the representatives of the Public Ministry, to ensure the proper functioning of prosecutor’s offices and to combat criminality,” the Public Ministry adds.

In what concerns the Justice Minister’s statements about the control of the prosecutor’s activity in the criminal probe, the Public Ministry states that the current legislation has mechanisms of verification and control that are not considered interference, unlike a possible intervention on the part of the Justice Minister, which would have the character of interference.

 

Justice Minister presented amendments to judicial laws at the Venice Commission on Saturday

 

Justice Minister Tudorel Toader announced in a brief Facebook posting that he presented the amendments to the judicial laws at a working session of the Venice Commission, on Saturday.

“The Venice Commission – working session, 9 December 2017: 1. I accepted the invitation to present the legislative developments concerning the judicial laws in Romania. 2. On the margins of the meeting, I met Mr Marin Mrcela, President of the Group of States Against Corruption (GRECO),” Tudorel Toader wrote on his Facebook page.

On Wednesday, Justice Minister Tudorel Toader met the ambassadors of the United States, Canada, Belgium, France, Germany, United Kingdom, Netherlands, Slovenia and Sweden, who conveyed their concern about the bill amending the judicial laws, a bill currently debated in Parliament, as well as their “firm desire” for Romania to continue the process of consolidation of the rule of law, of the independence of the judiciary and of the fight against corruption.

Likewise, the ambassadors of EU member states emphasised the importance of a wide-ranging and open process of consultation with all the interested parties, including demanding the Venice Commission’s report.

Prosecutor General Augustin Lazar, who has complained of attempts on the part of some branches of government to deprive Romanian prosecutors of their independence in a dubious manner, via vitiated parliamentary bills and procedures or via bad-faith manoeuvres planned by political circles whose interests oppose the carrying out of criminal justice, stated on Friday that the Venice Commission’s point of view on the amendments brought to the judicial laws is absolutely mandatory.

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