JUSTICE

Emergency Ordinance on judicial laws adopted by Gov’t. Reactions

A Government meeting was convened on Monday morning to adopt the emergency ordinance amending and supplementing the judicial laws, ordinance that was not initially included on the announced schedule of the day. The text of the Government emergency ordinance (GEO) was criticised by some Social Democrats.

Premier Viorica Dancila announced on Monday, referring to the GEO on judicial laws, that the solution was discussed during the Justice Minister’s meeting with the representatives of the Venice Commission as well as during the meeting with European Commission First Vice President Frans Timmermans.

 

PM Dancila: The solution, discussed with Venice Commission representatives and Timmermans

“This solution has been discussed during the Justice Minister’s meeting with the representatives of the Venice Commission and during the meeting with European Commission First Vice President Frans Timmermans. As you know, the three judicial laws were modified by Parliament, and the modifications were validated by the Constitutional Court,” Viorica Dancila stated at the start of the Government meeting.

The Premier pointed out that the emergency ordinance correlates certain provisions for better practice within the judicial domain.

“What we are adopting today within the Government represents a harmonisation of the provisions of the laws, to ensure better practice for the act of justice. The judiciary must be a guarantee for the defence of the rights of Romanians, and abuses in carrying out the act of justice are not and will not be tolerated,” the Head of Government added.

The ordinance, which was relayed to the Superior Council of the Magistracy (CSM) on Friday evening and which MEDIAFAX got hold of, stipulates, among other things, the postponement of the early retirement of magistrates.

Thus, the provisions concerning early retirement are postponed until 31 December 2022. According to the document, this provision’s potential impact on the human resources of prosecutor’s offices and courts was also underscored by the Venice Commission, which recommended that the early retirement scheme be dropped.

The GEO shows that a new section will be adopted under Article 54 of Law no.303/2004 on the statute of judges and prosecutors, which concerns appointments at the helm of the Prosecutor General’s Office, National Anticorruption Directorate (DNA) and the Directorate for Investigating Organised Crime and Terrorism (DIICOT). According to the Ordinance, the section thus introduced shows that chief prosecutors are selected based on an interview in which the candidates will present a project and, to ensure the transparency of the procedure, the hearing will be broadcast live on the Ministry’s website.

On Sunday evening, the Prosecutor General’s Office criticised some of the GEO’s provisions, warning that they risk violating constitutional order.

PSD’s Senate whip Serban Nicolae stated on Sunday, for MEDIAFAX, referring to the text of the GEO on judicial laws, that the formula of dismissing CSM members is “stupid,” the provision regarding the accountability of magistrates is “a mockery,” and as a result the Government should reject the ordinance.

“It raises significant questions. I feel that Macovei and Pruna have cast a shadow over the thinking of this ordinance, aside from the fact that the ordinance is very much extended in contrast to what appeared to be the topic of discussion for a potential modification. For example, I’ve seen phrasing the likes of ‘it is prorogued until the end of Romania’s Presidency of the Council of the European Union,’ I’ve seen the absolutely stupid formula concerning the dismissal of CSM members, [process] in which judges and prosecutors vote for dismissal but then the CSM decides with a majority of votes,” PSD’s Senate whip Serban Nicolae stated on Sunday, when asked for his comments on the text of the emergency ordinance amending the judicial laws, a text that the Justice Ministry had relayed to the CSM.

Justice Minister Tudorel Toader stated on October 3 that the members of the Venice Commission agreed with the GEO on the judicial laws.

“We know that the Venice Commission is not open to the GEO, but it’s not open to ordinances whose role is to avoid the parliamentary procedure, the constitutional procedure. In this case, we are talking about the pre-emption of less wanted effects. (…) They agreed by common assent, they expressed their agreement with the adoption of a GEO in the sense of the things discussed,” Tudorel Toader stated for RomaniaTV.

On Friday, President Klaus Iohannis signed the decree promulgating Law no.303/2004 on the statute of judges and prosecutors, the final law in the package of three judicial reform laws.

 

What are the provisions of the GEO on judicial laws. Toader on novelties introduced: Minister can notify the Judicial Inspection

On Monday, Tudorel Toader presented the provisions of the Government emergency ordinance on the judicial laws, pointing out that there are changes in what concerns the secondment of prosecutors, that the hearing of candidates for the office of chief prosecutor will be broadcast live, archived and viewable by anyone, and that the minister can notify the Judicial Inspection.

“The seniority is raised for those in the magistracy, for those who will obtain the office of Prosecutor General of the ICCJ, First Deputy, leadership offices at the helm of the DNA and DIICOT, which will be the minimum seniority of 15 years. So, from 8 years to 15 years,” Tudorel Toader stated.

The minister said that the GEO also establishes the steps to take regarding the appointment in office of high-level prosecutors. Thus, the hearing of candidates for the office of chief prosecutor, broadcast live, archived and viewable by anyone, is introduced in the law.

“At the level of the Justice Ministry, when those interviews are carried out to propose to the President the high-level candidacies, the Commission said we should show more transparency. We have taken over from the CSM the said interviews and presentations of managerial projects and they will be broadcast live, they will be archived and will be viewable by anyone interested,” Toader pointed out.

There are also changes in what concerns the secondments of prosecutors. The Prosecutor General will no longer decide on secondments at prosecutor’s offices, but the CSM’s Section for Prosecutors will do so instead.

“Today, the secondment of prosecutors, including in leadership offices, is done by the Section for Prosecutors when we’re talking about prosecutor’s offices attached to the Court of Appeals, to courts. The secondment is ordered by the Prosecutor General of Romania. There was talk of the separation of careers between prosecutors and judges, so that the CSM’s Section for Prosecutors would decide in what concerns the careers of prosecutors, and the CSM’s Section for Judges would decide at the CSM,” Toader added.

At the DIICOT and DNA, the seniority required to accede to the office of prosecutor rises to 10 years. “We have eliminated the chief prosecutor’s possibility to dismiss a prosecutor from the structure of the DNA and DIICOT on account of a warning, the lowest form of sanction. Future prosecutors who will work within the Section investigating judiciary crimes will benefit from prosecutors on secondment in line with the law,” Toader said.

Another provision stipulates that the Justice Minister can notify the Judicial Inspection.

“The Venice Commission has noted the fact that the two representatives of civil society within the CSM do not have the right to vote within the CSM’s plenum. And the Venice Commission writes to us how important it is for them to have the right to vote. I now understand that disinformation is the cause. The Constitution says that the representatives of civil society take part in CSM’s plenary meetings, having the right to vote. It’s true that the law did not explicitly mention that they have the right to vote, but the two CSM representatives always took part in plenary meetings and had the right to vote. But to make things clear: the representatives of civil society take part in the proceedings of the CSM’s plenum, having the right to vote, as written in the Constitution. The Justice Minister can ask the Judicial Inspection to ascertain whether prosecutors have perpetrated disciplinary offences. Only prosecutors, I emphasise. In relation to [Article] 132 of the Constitution, which says that prosecutors carry out their activity under the authority of the Justice Minister. The authority would be purely decorative if you weren’t having a juridical instrument too,” the Justice Minister pointed out.

Another amendment refers to the dismissal of the members of the Superior Council of the Magistracy. “The fact that CSM members can be dismissed from office if ‘they lost the confidence of those who elected them.’ But confidence is a subjective factor that cannot be quantified, so I may have confidence in the same thing in which someone else doesn’t. This subjective approach must not be reflected in the statute of a CSM member. It’s the Venice Commission’s recommendation. We’ve eliminated it and we’ve taken over procedural elements received from CSM’s representatives,” Toader added.

The emergency ordinance also stipulates a series of modifications in what concerns the postponement of the early retirement of magistrates. While the initial form of the GEO stipulated the postponement of early retirements until 31 December 2022, the form adopted by the Government on Monday stipulates the postponement until the end of 2019. “To maintain the balance between some people’s desire to retire after 20 years of work as magistrates, to respond to the Venice Commission’s concerns, the solution of postponement until the end of 2019 was adopted, in the meantime we will see how the system settles,” the minister stated.

 

Reactions

 

PG Lazar says amendments to justice laws, that are made in haste, likely to affect big cases

The bills amending the justice laws, which are drafted in haste are likely to affect the ongoing cases, as well as those pending before the Military Prosecutor’s Offices, Romanian’s Prosecutor General Augustin Lazar stated on Monday at the Superior Council of Magistracy (CSM) headquarters.

“Unfortunately, the bills which are drafted in a hurry are likely to affect the ongoing cases. For instance, for the big cases pending before the Public Prosecution Service and which are very well known, for example those pending before the Military prosecutor’s Offices, human resources have been concentrated through delegation, brought from several Prosecutors’ Offices to deal with large and complex cases. Well, in these situations, the delegations will cease on the respective positions and the collectives of personnel who are currently working cease to operate,” Lazar stated.

When asked if he’s talking about the Revolution case or those regarding the protest of 10 August, Lazar stated that he is referring to “all the cases.”

“It will be very difficult to imagine how this cases will be completed, about which everyone argues that we want to close, so that Romania doesn’t have to pay large amounts of money following the ECHR [European Court of Human Rights] convictions,” Romania’s Prosecutor General Lazar stated.

 

Tariceanu: A series of observations from the Venice Commission report were included in GEO on Justice

Alliance of Liberals and Democrats (ALDE) President Calin Popescu Tariceanu stated on Monday that the amendments brought to the judicial laws through Government emergency ordinance (GEO) were the result of the observations included in the preliminary report of the Venice Commission.

“It’s hard for me to tell you whether they (the amendments to the judicial laws – editor’s note) are sufficient or not. I believe the most competent person is the Justice Minister. He sent me the document. I’ve briefly browsed it. A series of observations included in the preliminary report of the Venice Commission are included in the GEO that the Justice Minister referred to,” Calin Popescu Tariceanu stated.

He avoided commenting on the way dossiers are to be allocated.

“It’s not normal for persons who do not have a lot of experience to be working at the Public Prosecutor’s Office. I believe it’s normal everywhere to employ persons who have already accumulated good professional experience, not persons who are doing their apprenticeship on complicated dossiers,” the ALDE leader added.

He also pointed out that he had a discussion with Justice Minister Tudorel Toader, but the meeting took place before Tudorel Toader visited Strasbourg.

“The talks mainly focused on the topics raised by the preliminary report, such as the retirement age, other issues concerning the functioning of certain mechanisms within the judiciary, which have given rise to some critical comments regarding the role of civil society representatives within the CSM. I believe the issue of retirement – as decided by the Legislative – is not creating a real problem either, but this proposal was taken into account and the resulting modifications were carried out,” Calin Popescu Tariceanu added.

 

Iordache: The modifications are very good

House lawmaker Florin Iordache (PSD) stated on Monday that the amendments brought to the judicial laws through the Government emergency ordinance are very good and all provisions are found in the observations of the Venice Commission.

“There are several issues that concern many aspects. The retirement issue, the CSM issue, the issue concerning civil society representatives within the CSM and the dismissal of CSM members, they’re all found in the observations of the Venice Commission. The correlations of law no.303/2004 (on the statute of magistrates – editor’s note) and law no.317/2004 (on the CSM – editor’s note), regarding the appointment and dismissal of chief prosecutors, were contrary between the two laws. There are also issues that concern a better functioning of the special section, as well as that public interview, transparently,” Florin Iordache stated.

He added that the amendment stipulating 10-year seniority as requirement to accede to the office of DNA or DIICOT prosecutor is justified and that it is good that the provisions on the accountability of magistrates were not modified.

“I believe these are normal hikes and they are justified by the fact that certain experience is required, these being special prosecutor’s offices. The modifications are very good, and it’s good that the amendments concerning the accountability of magistrates were dropped, the one concerning the minister, the holder of the disciplinary action, and that 4-year proroguing for early retirement,” Florin Iordache added. Florin Iordache was also chairman of the special parliamentary committee on the judicial laws.

 

Serban Nicolae: Viorica Dancila told me she’s fairly intrigued by the form of the Ordinance on judicial laws

PSD’s Senate whip Serban Nicolae stated on Monday, for MEDIAFAX, that on Sunday he discussed the GEO on the judicial laws with Premier Viorica Dancila, and the Prime Minister said she was “fairly intrigued” by the text of the ordinance.

“I told Ms Dancila that, in my view, what I said remains as valid as possible. She said she is fairly intrigued, she said she was not told it would be as it came out to be. She said the talks she had concerned the emergency ordinance. She told me: ‘I saw the draft and I don’t understand why it has surfaced like this, because I wasn’t told this is what must be urgent, I was told something concerning the contribution period in view of retirement and the correlation between the necessary numbers for appointing and dismissing the members of the CSM.’ I told her: ‘Yes, well, that’s what I publicly said.’ And she said: ‘Well, that’s what I was told too, that this is what it’s about,’” PSD’s Senate whip Serban Nicolae stated.

The Social Democrat pointed out he did not work on a new variant of the GEO on the judicial laws and does not know whether the Justice Minister took part in a meeting at the PSD headquarters.

“I didn’t work on anything. I didn’t work on the ordinance with Nicolicea and Iordache. But I hope so (a different GEO version will be tabled during the Government meeting – editor’s note),” Nicolae added.

 

Tutuianu: I don’t believe it’s all right; it should’ve been discussed within the party, especially since we’ve had the judicial laws on the table for the past two years

Senator Adrian Tutuianu (PSD) stated on Monday that the Government emergency ordinance (GEO) amending the judicial laws “is not all right” and should have been discussed within the party, especially since these laws have been discussed for the past two years. Tutuianu added that he did not see the text of the ordinance and does not know whether “there are good things or bad things.”

Senator Adrian Tutuianu (PSD) was asked on Monday for his comments on the emergency ordinance amending the judicial laws, his answer being that it is “not all right.”

“I don’t believe the ordinance is all right, but this is different. I haven’t seen it. When I see the ordinance, I’ll make comments as much in the know as possible. Otherwise it would mean talking based on what I’ve seen on TV,” Tutuianu said.

He stated that the ordinance “should have been discussed within the party.”

“It should have been discussed within the party, especially since we’ve had the judicial laws on the table for the past two years. To come up with a GEO so rapidly, I find that…,” Tutuianu said, adding that he does not know whether the document was drafted “overnight.”

“I don’t know whether there are good things or bad things,” the Senator added.

 

US Ambassador Klemm says himself, another 11 diplomats were concerned about justice package amendments

US Ambassador to Romania Hans Klemm said on Monday in Hunedoara that he and another 11 ambassadors had been concerned about the changes to Romania’s justice package, as they may have affected the fight against organized crime or terrorism.

Klemm said that Parliament is the competent body to revise the justice laws.

“We were concerned about the changes to the Criminal Code and the Code of Criminal Procedure. I was one of the 12 ambassadors who expressed concerns this June. And the reason is that Romania and the US are now working together to fight terrorism, organized crime and trafficking. We have a powerful cooperation and we were concerned that the amendments could block our ability to cooperate. We are now encouraged by the Constitutional Court ruling, we must look at the details of this ruling and of course, it stays in the power of Parliament to proceed to revisions. We have actually conveyed those concerns to as many people as possible, members of the major political parties and the government included, so that we hope they’ll be listened to”, said the US ambassador.

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