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May 10, 2021

Forum of Romanian Judges expresses support for the more than 700 prosecutors who adopted a “Declaration of Independence” following CCR decision. JusMin Toader: How is it possible for a group of prosecutors to request suspension of Constitutional Court’s rulings?

The ‘Forum of Romanian Judges’ Association expresses its support for the more than 700 prosecutors who, alongside judges and judicial auditors, have adopted a “Declaration of Independence” after the Constitutional Court decided that President Klaus Iohannis must dismiss DNA Chief Prosecutor Laura Codruta Kovesi.

In the document, the magistrates state that “the Justice Minister does not and will not have any involvement and any role in professional activity,” this being the prerogative of the Supreme Magistracy Council. They also talk about “the risk of harming the checks and balances,” demanding that the rule of law and the independence of the judiciary be observed. “The independence and impartiality of the prosecutor are not his/her personal benefits but necessary guarantees for the carrying out of his/her duty,” the prosecutors state.

The Forum of Judges points out in a press release that, in Decision no.924/1 November 2012, the Constitutional Court of Romania pointed out that the Public Ministry was established, by Articles 131 and 132 of the Romanian Constitution, as a magistracy that is part of the judicial system, having the role to represent in the judicial activity the general interests of society and to protect the rule of law and the rights and freedoms of citizens. Just like judges, prosecutors have the constitutional statute of magistrates, clearly stipulated in Articles 133 and 134 of the Fundamental Law; just like judges, they are appointed in office at the proposal of the Supreme Magistracy Council, and the same judicial system body plays the role of court in what concerns the disciplinary accountability of judges and prosecutors. The Constitutional Court stated that the independence of the judiciary consists of two components, namely the institutional component (that does not refer exclusively to judges, but covers the judicial system as a whole), and the independence of the judge – the individual component.

The judges state that numerous international documents that proclaim the independence of the prosecutor as an intrinsic and indispensable attribute of a democratic judicial system confirm these principles. For instance, in Romania’s case, the Venice Commission stated, in Opinion no.731/2013 on the bill regarding the initiative to amend the Romanian Constitution, Sections 184 and 185, that “at European level there is a trend of strengthening the independence of the Public Ministry, rather than subordinating or attaching it to the executive power.” Similarly, the Venice Commission notes that “in the few states in which the Public Ministry is subordinated to the executive power, the latter is extremely diligent in abstaining from any interference in the activity of the prosecutor, since the simple appearance of an intervention is just as damaging as an actual intervention. The Venice Commission mentioned once again the importance of unitary and coherent regulation of the statute of the prosecutor, accompanied by clear, solid and efficient guarantees of independence, inviting the Romanian authorities to revise the point of law norms in the stated sense, under the aspect of addressing the shortcomings in the coherence and guarantees of the proper functioning of the Public Ministry.”

The concordant opinion CDL-AD (2015)039 of the Venice Commission, Consultative Council of European Prosecutors and OSCE, issued in regard to the bills amending the Public Ministry law in Georgia, states, under Section 16, that “there are detailed standards and recommendations regarding the independence of the prosecutor, thus: the Committee of Ministers of the Council of Europe asks member states to confer upon prosecutors the security of their activity, free from any unjustified interference.”

As part of Opinion CDL (1995)073rev., expressed in regard to the fundamental principles of the Hungarian Constitution (Chapter 11, Section 16), the Venice Commission stated that “the fundamental principle that should govern a state’s Public Ministry is its full independence, no other consideration being as important as that. Only if this independence is guaranteed and protected by law will the public trust the system, an essential element of a healthy society.”

According to Article 20 of the Criminal Law Convention on Corruption, adopted by the Council of Europe on 27 January 1999 in Strasbourg, ratified by Romania through Law no.27/2002, “each Party shall adopt such measures as may be necessary to ensure that persons or entities are specialised in the fight against corruption. They shall have the necessary independence in accordance with the fundamental principles of the legal system of the Party, in order for them to be able to carry out their functions effectively and free from any undue pressure.” To an equal extent, Article 6, Section 2, of the United Nations Convention Against Corruption, adopted in New York on 31 October 2003, ratified by Romania through Law no.365/2004, defines the notion of “public official” under Article 2, Section A: “Each State Party shall grant the body or bodies referred to in paragraph 1 of this article the necessary independence, in accordance with the fundamental principles of its legal system, to enable the body or bodies to carry out its or their functions effectively and free from any undue influence.”

“Last but not least, we remind the public opinion that a real independence of the judge cannot be conceived without the guarantee of symmetrical independence given to the prosecutor, liable to maintain unaltered the premises of enforcing the law on a state of affairs on which the former has to rule, and which must not be vitiated a priori through an interference that is unjustified and not in accordance with the international standards in this field, mentioned above,” the ‘Forum of Romanian Judges’ adds.


JusMin Toader: How is it possible for a group of prosecutors to request suspension of Constitutional Court’s rulings?


It is unacceptable for a group of prosecutors to demand the suspension of the Constitutional Court of Romania (CCR)’s rulings, on Tuesday said the Justice Minister Tudorel Toader, in the meeting of the Section for Prosecutors with the Superior Council of Magistrates (CSM).

“I’ll invite you to join me in a discussion with the prosecutors of the Prosecutors’ Office attached to the Court of Brasov, because it is unacceptable (…), they come from the National Institute of Magistracy (INM), they are trained on the European component, judicial norms, but to demand such things – to suspend the rulings of the CCR – this is implying something else. So, we need very well trained prosecutors, to enhance their status, their independence, since these are stipulated in the Constitution. (…). (We should) have a talk, at least so as to make things clear, so that we see how it is possible for a prosecutor or a group of prosecutors to request the suspension of the rulings of the CCR and other such demands,” Toader said at the meeting in which Felix Banila was interviewed for the DIICOT (Terrorism and Organised Crime Investigation Directorate) chief prosecutor position.

The Justice minister accused, in the same context, the existence in the public space of certain misinformation regarding the danger that the prosecutors’ independence could be affected.

On 18 May, the General Assembly of the Prosecutors with the Brasov Court’s Prosecutors Office requested the suspension of the adoption of a Constitutional Court’s new ruling referring to the Justice Laws package until the Venice Commission sends its opinion.

“In accordance with the provisions of the Romanian Constitution, the International Treaties Romania is part of are mandatory and take precedence over the internal legal regulations, so that implicitly, the GRECO recommendations are also mandatory for the Romanian legislator,” the Prosecutor’s Office attached to Brasov Court said.

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