The Venice Commission (a consultative body of the Council of Europe, alongside independent experts in the constitutional law field) on Friday published its preliminary opinion on the three drafts on modification of the justice laws in Romania, the law on judicial organization, the law regarding the Superior Council of Magistrates and the law on the status of judges and prosecutors.
The Commission recommended Romania to reconsider its system of appointment and removal of the high level prosecutors, including through the revision of the respective provisions from the Constitution, in view of ensuring a neutral and objective context for the appointment and removal of such judges and prosecutors, through maintaining the role of such institutions as the presidency and the Superior Council of Magistrates (CSM), which are able of counter-balancing the influence of the Minister of Justice.
Moreover, the European body recommended Romania to eliminate or better define the provisions allowing the high rank prosecutors to invalidate the solutions pronounced by prosecutors lacking grounds and to eliminate the proposed restriction regarding the freedom of speech of judges and prosecutors.
Another recommendation was to supplement the provisions regarding the material liability of magistrates by explicitly stating the fact that, aside from the obvious lack of good faith and/or neglect, the magistrates are not liable for a solution that could be challenged by another court.
The Commission recommended the Romanian authorities to reconsider the proposal of creating a separated structure within the prosecutor’s office to investigate crimes committed by judges and prosecutors and, as an adequate alternative to this, to resort to the specialized prosecutors and to efficient procedural salvguardation measures.
Moreover, the Bucharest authorities are recommended to give up the early retirement scheme, unless they can certify that it doesn’t have any negative impact on the functioning of the system and they can guarantee that the proposed measures of “assessment” of the magistrates’s activity are based on clearly specified criteria and coupled with an adequate procedural protection and with a right to appeal with the court and identify means to strengthen the surveillance mechanism of the intelligence services.
PSD’s Nicolicea: Venice Commission draft on Justice laws contradicts its own adopted official report
The chairman of the Legal Committee with the Deputies’ Chamber, Social Democratic Party (PSD) deputy Eugen Nicolicea stated on Friday that the preliminary opinion of the Venice Commission regarding the amendment of the Justice laws is a draft and contradicts a previous report of this body concerning the European standards on the independence of the judicial system.
He considers that this preliminary opinion is “a slap in the face” of those in the Opposition and the president who said that the Justice laws don’t need to be amended.
“The Venice Commission is giving a slap in the face to those in the Opposition and Romania’s president, because they have requested many times that nothing be amended, that things be delayed and have made all sorts of notifications to the Court [Constitutional Court of Romania, e.n.] so that they don’t enter into force, be delayed, be blocked. The Venice Commission, you will notice, requests that certain amendments be made, and those who said nothing should be done are contradicted by it,” Nicolicea told AGERPRES.
The Social-Democrat showed that as regards the substance, the Venice Commission contradicts itself.
“Presently, the report regarding the European standards on the independence of the justice system, adopted by the Venice Commission is in force, the official document, not a draft, which is what you have now. The document they are presenting now is a draft that cannot overrule what they voted last time, unless they will change that report. With regard to to respecting the independence of judges and prosecutors, in the proposed law and in the adopted law, you know there is a difference between what was proposed and what was adopted, it closely respects these European standards. Those who do not respect are those from the Venice Commission given that in the respective report adopted by them they talk about a multitude of models, no one model can be recommended, they say, and in most cases the high-ranking prosecutors are appointed either by the gov’t or Parliament. No mention of the word ‘president’ in the adopted report. And I will tell you why. In many countries in Europe, there is no president. If they make now a recommendation in that sense, they need to modify their own report,” Nicolicea affirmed.
He added that the law was not amended with respect to the nomination of high ranking prosecutors, it has stayed as before, and the president has a role in this regard.
“Moreover, if this where the problem stems from, you should note the following matter – the removal from office of the DNA [National Anticorruption Directorate, e.n.] head was carried out based on the old law, not the legislative proposal. (…) Discontent is therefore addressed at the old law,” he mentioned.
Asked what would be the explanation that the two reports of the Venice Commission are different, Nicolicea replied: “We should draw up an official letter, ask them which report is the valid one.”
“I wouldn’t want to suspect any one of manipulation and bad faith, but not to read your own adopted documents seems rather farfetched, not to say they make fools of themselves,” he added.
PNL: Minister Tudorel Toader and other PSD-ALDE representatives lied when they claimed that the legislative amendments were in line with the Commission’s standards
The Liberals say that the preliminary report of the Venice Commission on the laws of justice shows that Minister Tudorel Toader and other PSD-ALDE representatives lied when they claimed that the legislative amendments were in line with the Commission’s standards and draw the attention of the MPs who supported these changes not to defy this document.
“The assessment given to the public clearly shows that Justice Minister Tudorel Toader, as well as other PSD-ALDE representatives, lied with no shame when they claimed that the legislative changes were in line with the Venice Commission standards. We draw the attention of the parliamentarians of the parties forming the PSD-ALDE parliamentary majority, as well as the other parties that have supported the amendments to the laws of justice, not to make the mistake of defying the Venice Commission. Both the European officials and the main Western partners of Romania, have appealed to the Romanian authorities to consult and take into account the position of the Venice Commission. An attitude of non-cooperation on the part of the Romanian authorities is likely to seriously damage Romania and Romanians,” the Liberals say in a press release issued on Friday for AGERPRES.
The Liberals recall that, despite the repeated refusal of the PSD-ALDE parliamentary majority, they obtained the notification of the Venice Commission through the Parliamentary Assembly of the Council of Europe.
They show that among the criticism brought by PNL and confirmed by the Venice Commission is the change in the appointment mechanism in the prosecutor’s managing positions, as well as restraining the powers of the President of Romania in this process, the invalidation of the solutions given by the prosecutor by the hierarchically superior prosecutor on serious grounds, restricting the freedom of expression of magistrates, establishing a special section for the criminal investigation of magistrates, changing the retirement regime of magistrates with an impact on the stability of the judiciary.
The Liberals reiterate the appeal to the Constitutional Court of Romania to take into account the opinion of the Venice Commission, as it has done in many previous cases, in assessing the unconstitutionality complaints about the amendments to the laws of justice.