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September 29, 2022
JUSTICEPOLITICS

More reactions of Bucharest authorities on Venice Commission’s report on judicial laws. JusMIn Toader: It’s an intermediary report that can be supplemented. Tariceanu: The preliminary opinion of the Venice Commission is a political document. The Commission treats these things with a superficiality that frightens me. Florin Iordache: Authors of the opinion did not read the latest definition of judicial error, consisting of ill faith and grave negligence, nor the Constitutional Court’s decisions

Justice Minister Tudorel Toader stated on Monday, referring to the Venice Commission’s report on the judicial laws, that it is an intermediary report that can be supplemented and if the ministry is asked to take part in drafting Romania’s position on this topic, in order to send it to the Commission, it will contribute.

“We are talking about an intermediary report, which means that they themselves will finalise and supplement it, by October’s session. (…) I know the power of Venice Commission recommendations, expressed either through a review, albeit intermediary,” Toader stated, pointing out that if the Justice Ministry is asked to draft Romania’s point of view, to be sent to the Commission, it will obviously contribute to it.

Toader reminded that the three laws were a parliamentary initiative, which means that the most appropriate and substantiated answer can be received by its initiators from the special committee too.

He expressed his surprise that the provisions concerning the lowering of the retirement age for magistrates were not noted even though the laws have went through constitutionality audit many times.

“Nobody criticised this solution,” the minister noted.

 

Tariceanu: The preliminary opinion of the Venice Commission is a political document. The Commission treats these things with a superficiality that frightens me

 

Senate Speaker Calin Popescu Tariceanu claims that the preliminary opinion of the Venice Commission, which should not have been made public, is a political document, and says that he is “frightened” by the fact that the Commission treats this superficially.

“Such a document, called “preliminary opinion,” should not have been made public, because it entails it will be modified up next. I don’t know what the procedures which lead to the preliminary opinion are, but the first remark I want to make on the substance [of the issue] is that this document is a document that seemed to me extremely weak from a juridical standpoint. It’s a political document, it’s a political opinion expressed by the Venice Commission. It’s not normal. The Venice Commission should have analysed the juridical topics, not the political options,” Tariceanu stated on Sunday evening in a phone interview for RTV.

“The Venice Commission treats these things with a superficiality that frightens me. It literally frightens me. In what concerns the political options that we have in the field of criminal policy, in the field of the structure of the judiciary, I believe the filters that we had and that worked, including at the Constitutional Court, were sufficient,” the Senate Speaker added.

 

Tomac (PMP): Parliament and Constitutional Court must heed the Venice Commission’s opinion on the judicial laws

 

The Parliament and the Constitutional Court must heed the opinion of the Venice Commission on the judicial laws, Popular Movement Party (PMP) President Eugen Tomac stated for RFI, deeming that otherwise one can talk about “a political divorce from Europe.”

In the PMP leader’s opinion, “both Parliament and the Constitutional Court must heed” this opinion.

“The current majority, the PSD voices that handled the agenda regarding the amending of the judicial laws always claimed high and mighty that they will heed all the recommendations of the Venice Commission. Now we have a preliminary report, in October we will have the final conclusions, and I have great hopes that lucidity will prevail,” Tomac said.

Asked what would happen if Romania were to disregard the Venice Commission’s final opinion, Tomac deemed that this would mean “political divorce from Europe.”

“Such a signal would have the effect of political divorce from Europe, because we adhered to a set of values and principles which are fundamental for the EU, and when political decisionmakers decide to ignore such signals and to consider them superficial or to label them as inappropriate, this has the effect of huge distancing from everything that a common community of values and principles that stand at the basis of European society means,” Eugen Tomac said.

 

Florin Iordache: Authors of the opinion did not read the latest definition of judicial error, consisting of ill faith and grave negligence, nor the Constitutional Court’s decisions

 

House lawmaker Florin Iordache (PSD), chairman of the special committee on amending the judicial laws, stated on Monday that the authors of the preliminary opinion of the Venice Commission “did not read the latest form that defines judicial error,” saying that it is worth noting that the Section that was set up to investigate offences committed by judges and prosecutors is not criticised in itself in the report. At the same time, concerning the dismissal of CSM members, Iordache states that the amendment was prompted by “a concrete situation that emerged in recent years, when judges convened in general assemblies expressly requested the dismissal of their representative.”

Iordache quotes Paragraph 133 of the preliminary opinion of the Venice Commission, stating that it praises the “separation of careers” of judges and prosecutors through the transfer of prerogatives regarding appointments in office, from the Plenum to the two sections of the CSM.

“The new way of taking decisions “regarding careers” will lead to the consolidation of the independence of judges, which is not entirely possible as long as the decisions on the careers of judges are also taken by prosecutors,” the Commission said (Paragraph 133),” reads the text that Iordache quoted from the Venice Commission’s opinion, according to a press release.

“We point out that both the President and the Opposition, as well as the prosecutors and the Forum of Judges Association have vehemently challenged this amendment.

“Another amendment challenged but praised by the Venice Commission was the removing of the President from the procedure to appoint the leadership of the High Court of Cassation and Justice,” he added.

“The proposed system, making the CSM the exclusive actor in appointments at the ICCJ, is a welcome solution, that confirms the CSM’s essential role as guarantor of the independence of the judiciary, the Venice Commission said (Paragraph 40),” the chairman of the special committee said.

“Even though it was not the object of this report, the Venice Commission tangentially dealt with the secret protocols between the SRI and various institutions/authorities from the judicial authority (ICCJ, Prosecutor General’s Office, CSM). The Commission praised the introduction of a specific offence for intelligence service workers who recruit magistrates,” he added.

Likewise, the House lawmaker states that the provision according to which all extra-judicial acts that influence judicial procedures should be of public interest was praised, reminding that the members of the Opposition, mainly the PNL, opposed it.

“In the context of these protocols and of the intelligence services’ interference in the judiciary, “a thorough analysis of the judicial norms regarding the oversight of the intelligence services is necessary,” the Venice Commission said (Paragraph 97), something that we agree with,” the aforementioned source shows.

Iordache says that it is worth noting that the Venice Commission mentions the importance of CCR decisions and the obligation to observe their conclusions, explaining that it is for the first time when “an institution with great impact in the development of democracy raises the issue of the protocols that the SRI concluded with judicial authorities.”

Regarding several pinpoint issues, mentioned in the preliminary opinion, Florin Iordache made the following statements:

“In the Report on European standards concerning the criminal prosecution bodies, dated 3.01.2011: it was considered that there is no European harmonisation regarding the “degree of independence that prosecutor’s offices should benefit from” (paragraph 24), the following examples being given: Austria, Denmark, Germany and Netherlands, where prosecutor’s offices are subordinated to the Justice Ministry (paragraph 26); it was claimed that “and where the prosecutor’s office is an independent institution, there may be a hierarchical oversight of the decisions and activities of prosecutors, others than the Prosecutor General” (paragraph 28); the appointment and dismissal from office of the Prosecutor General is a decision that may belong to the President or to Parliament (paragraph 35) while making sure that a request is made for an opinion from relevant persons regarding the professional qualification of the candidates; the reasons for dismissal must be expressly stipulated in the law; creating public policies in the criminal prosecution field belongs to the Legislative, Justice Ministry and Government, which have a decisive role (paragraph 87.8); the order to modify the opinion of a hierarchically-inferior prosecutor must be subjected to the oversight of the court (paragraph 87.15).”

At the same time, the chairman of the special committee on amending the judicial laws believes that, based on the way the texts currently in force were modified, all observations were observed.

“Regarding the appointment of high-ranking prosecutors, the only change compared to the text in force refers to the limiting of the Romanian President’s right to refuse their appointment several times. For their appointment, as well as for their dismissal, the text stipulates the obligation to go through some stages, the one before the Justice Ministry, the opinion issued by the CSM’s Section for Prosecutors, and the President’s decision to appoint in office. In the current constitutional regime, the Public Ministry is part of the judicial authorities and is under the authority of the Justice Ministry, so that, correctly, the Justice Minister’s proposal must be very carefully looked at both in what concerns the appointment in and dismissal from office. Many times, the President of Romania disregarded both the Justice Minister’s nomination and the CSM’s opinion,” Iordache pointed out.

He says that the provision regarding the hierarchically-superior prosecutor’s possibility to opine on acts issued by hierarchically-inferior prosecutors not only in what regards their legality but also regarding the groundless character of a solution can be challenged in court precisely to ensure the enforcement of correct legal provisions. Even though this measure is part of the amendments to the Criminal Procedure Code, the opinion’s authors considered it part of the three judicial laws.

Likewise, regarding the fact that judges and prosecutors are restricted from publicly expressing opinions on the other branches of government, the Constitutional Court (CCR) decreed that in observing the principles that stand at the basis of the profession, namely the one concerning “the obligation to reservation,” as well as the observance of the presumption of innocence, it is natural for dialogues that can sometimes get out of hand not to exist in the public space.

Florin Iordache says that those who drafted the opinion did not read the way in which the judicial error was defined

“It seems that the authors of the opinion did not read the latest form in which judicial error was defined, consisting of ill faith and grave negligence, nor the decisions of the Constitutional Court which established, on one hand, that it differs from criminal and disciplinary accountability and, on the other hand, that the latest form precisely establishes their extent, and the introduction of the filter ensures, through the Judicial Inspection, the existence of clear elements triggering the accountability of the judge or prosecutor for the reparation of the damage,” Iordache added.

He also says that it is worth noting that the Section that was established and is set to probe the offences committed by judges and prosecutors is not criticised in itself, but the recommendation is made that it should consist only of specialised prosecutors. The conditions of accession to this Section are special: seniority of 18 years only as prosecutor, an activity that was not censured, passing an examination, with the selection set to be made by the CSM’s Plenum, hence by judges, prosecutors, and members of civil society.

Regarding the dismissal of the CSM members, Florin Iordache claims that the amendment was prompted by “a concrete situation that emerged in recent years, when judges convened in general assemblies expressly asked that their representative be dismissed, the decisions adopted during these general assemblies being challenged and the court rejecting the dismissal by arguing that such a provision does not exist in the law.”

Finally, he also explains that the proposal for judges and prosecutors to be able to retire when they fulfil 20 years in their line of work “was prompted, on one hand, by the fact that it previously existed in the law, having been introduced in 2005 by former Justice Minister and current MEP Monica Macovei, and no kind of ‘chaos’ ensued in the system, and, secondly, because this request came from the CSM, following talks that took place at the level of courts.”

Read also:

Venice Commission issues preliminary opinion on Justice Laws, recommends Romania to reconsider the nomination and removal from office of high ranking prosecutors. PSD’s Nicolicea: Venice Commission draft on Justice laws contradicts its own adopted official report. 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

 

 

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