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January 16, 2021
POLITICS

House adopts articles of the law on the judicial system

The House plenum finalised on Wednesday the debate and adoption of the articles of law no.304/2004 on the judicial system, the legislative act set to undergo the final vote. No other amendments were approved apart from those adopted by the special committee, the most important modifications brought concerning the setting up of a special section for the investigation of prosecutors and judges, harsher job requirements for DNA and DIICOT prosecutors, and the DNA Chief Prosecutor’s obligation to obtain the CSM’s approval if he/she wants to set up territorial branches.

The debate and vote on the articles of law no.304/2004 lasted more than three and a half hours and took place in line with the new House Regulations adopted during the first part of the day.

Because of the electronic voting system’s malfunction, the vote on the admitted amendments and on the articles of law took place via the raising of hands, with the final vote set to take place via roll call.

House members have started the debates on law 317/2004 on the functioning of the CSM, with the final vote on both legislative acts set to take place at the end of the debates.

The most controversial and challenged amendment that the committee chaired by Florin Iordache brought to law no.304/2004 on the judicial system was the setting up of a section for the investigation of judicial crimes, which 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 amendments tabled by PSD Senator Serban Nicolae.

“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 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 of the committee’s meetings.

Likewise, the special committee has harshened the job requirements for DNA prosecutors: minimum seniority as prosecutor or judge has been hiked from 6 to 8 years, a mandatory competitive examination has been introduced, and the candidates should have no prior disciplinary sanctions.

The competitive examination for the admission of prosecutors who want to work within the DNA was introduced at the proposal tabled by UNJR and AMR.

“The National Anticorruption Directorate is to be staffed by prosecutors appointed in office by the Chief Prosecutor of the National Anticorruption Directorate, at the proposal made by the Supreme Magistracy Council’s Section for Prosecutors, following the competitive examination organised in this sense, within the limit of available offices, stipulated in the statute of offices approved in line with the law,” reads the newly-modified Article 87, Paragraph (1), of law no.303/2004 on the judicial system.

Also at the proposal of UNJR and AMR, two new job requirements have been introduced for those interested in becoming DNA prosecutors: seniority of at least 8 years as prosecutor or judge, and no prior disciplinary sanctions.

“To be appointed within the DNA, prosecutors must have no prior disciplinary sanctions, must have good professional training, irreproachable moral behaviour, seniority of at least 8 years in the office of prosecutor or judge, and must be declared admitted following a competitive examination held at the CSM’s Section for Prosecutors,” reads Article 87, Paragraph (2), of the legislative act.

In what concerns the competitive examination for admission within the DNA, it will consist of two tests: an interview before the CSM’s Section for Prosecutors, and a test whose objective is the assessment of at least five randomly-selected indictments and other documents drafted by the candidates in the last 5 years of activity and considered relevant by them.

Another amendment to the law on the judicial system institutes the DNA Chief Prosecutor’s obligation to demand the CSM’s approval when setting up territorial branches, services, offices, and other compartments of activity.

“Territorial branches, services, offices and other compartments of activity can be set up within the National Anticorruption Directorate, via the order of the Directorate’s Chief Prosecutor, with the approval of the Supreme Magistracy Council’s Section for Prosecutors,” reads the new Article 86, Paragraph (1), of law no.304/2004 on the judicial system.

According to the law currently in force, the DNA can set up territorial branches solely via the order of the Directorate’s Chief Prosecutors, without any other institutions’ approval being required. “Territorial branches, services, offices and other compartments of activity can be set up within the National Anticorruption Directorate, via the order of the Directorate’s Chief Prosecutor,” reads Article 86 of the law currently in force.

Likewise, the special committee has modified the seniority requirement for prosecutors who seek to work within the DIICOT, hiking it from 6 to 8 years.

“To be appointed to the Directorate for the Investigation of Organized Crime and Terrorism, prosecutors must have not been disciplined, they have to have a good professional training, a perfect moral conduct, at least 8 years of service as prosecutor or judge and to have been declared admitted as a result of the interview organized by the committee established to this end” reads the amendment adopted at DIICOT’s proposal.

Also regarding DIICOT, the specialized committee introduced a new article in the Law no. 304/2004 on the judicial organization, according to which the institution will have to issue an annual activity report that must be submitted to the Justice Minister and to CSM.

“The Directorate for the Investigation of Organized Crime and Terrorism annually issues a report on the activity conducted, which will be submitted to the Department for Prosecutors of the Superior Council of Magistracy and to the Justice Minister, no later than in next February. Justice Minister will present the conclusions on the activity report of the Directorate for the Investigation of Organized Crime and Terrorism to the Parliament”, according to the new article adopted by the specialized committee.

A similar obligation is provided also for DNA in the law currently in force; it also has to submit an annual report to the Justice Minister and to CSM.

An amendment adopted by the committee was the one providing that the solutions adopted by a prosecutor can be disputed by the higher prosecutor, if he appreciates that they are illegal or ungrounded. The novelty is the notion of ‘ungrounded’; until now, the solutions of a prosecutor could be disputed by the higher prosecutor only if they were deemed to be illegal.

“The solutions adopted by the prosecutor can be disputed by the higher prosecutor by a motivated manner, when they are deemed to be illegal or ungrounded” reads the para (3), as amended, of the article 64 of the Law no.304/2004.

The change was proposed by UNJR and CSM, being taken up as an amendment by PSD and ALDE.

The specialized committee also adopted an amendment to the Law no.304/2004, providing that “officers, even undercover officers, employees or collaborators of the intelligence services, cannot hold the position of an officer or judicial police officer. Prior to the appointment, they will make an authentic statement according to which they are not or have not been part of the intelligence services and they are not or have not been their collaborators or informants”.

Another amendment brought by the specialized committee to the Law on the judicial organization provides that judges will have to motivate their decisions within 90 days since they ruled the decision.

“Court decisions must be drafted within 30 days since they were ruled. In duly justified cases, the time limit can be extended by 30 days no more than twice” reads para. (3) of article 16 of the Law no. 304/2004.

The amendment proposed by PSD was adopted by majority vote, and only one abstention was registered.

The main supporter of the provision was the Chairman of the specialized committee, Social Democrat Florin Iordache, who argued that today, in the absence of such a regulation, there are cases when judges retire without drafting the motivation for their decisions.

Another amendment adopted by the committee provides the reconfiguration of the courtroom so that the equality of arms between the parties will be respected.

“The configuration of the courtroom must reflect the principle of the equality of arms regarding the placement of the judge, of the prosecutors and of the lawyers” states the amendment, which was unanimously adopted. The proposal was made by the General Prosecutor’s Office and was appropriated by UDMR as an amendment.

The specialized parliamentary committee for the Laws on Justice chaired by the social Democrat Florin Iordache adopted on Monday, with 14 pros and 5 cons, an admission report for the Law no.304/2004 on the judicial organization.

The normative act will be submitted to the Senate, which is the decisional body in this case.

 

 

 

 

 

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