JUSTICE POLITICS

Controversies surrounding GEO on judicial laws

The emergency ordinance  on judicial laws was published in the Official Journal on Tuesday, 24 hours after it was adopted by the Government. Prosecutors from all prosecutor’s offices will remain in office provided they meet the conditions included in the new legal provisions. The Government emergency ordinance (GEO) came into force the moment it was published in the Official Journal.

The legislative act establishes that, in order to be promoted to the Prosecutor’s Office attached to the High Court of Cassation and Justice (PICCJ), “prosecutors must have no disciplinary sanctions, good professional training, irreproachable moral conduct, at least 10 years seniority as prosecutor or judge, at least the professional rank corresponding to the prosecutor’s office attached to the Court of Appeals, and must have been declared admitted following a competition organised by the commission set up for this purpose.”

The Prosecutor General, the Chief Prosecutors of the National Anticorruption Directorate (DNA) and the Directorate for Investigating Organised Crime and Terrorism (DIICOT), their First Deputies and Deputies, as well as the chiefs of the sections of these prosecutor’s offices are nominated by the Justice Minister and appointed in office by the President of Romania, with the opinion of the Superior Council of the Magistracy (CSM), from among prosecutors who have minimum seniority of 15 years as judges or prosecutors, for a three-year term, with the possibility of being reinstated in office only once.

Previously, the chiefs of sections were appointed by the CSM’s Section for Prosecutors.

Candidates will be heard by the Justice Minister and the hearings will be broadcast live on the Justice Ministry’s website.

To be eligible for appointment within the DIICOT or DNA, prosecutors must have no disciplinary sanctions, good professional training, irreproachable moral conduct and at least 10 years seniority as prosecutor or judge and must be declared admitted following a competition organised by the commission set up for this purpose.

The GEO stipulates that “the representatives of civil society take part in the proceedings of the CSM’s plenum and have the right to vote.”

The legislative act also stipulates that “the Justice Minister can ask the Judicial Inspection to establish whether there are any clues pointing to prosecutors perpetrating a disciplinary offence.”

A CSM member can be dismissed if the relevant CSM Section ascertains, based on the Judicial Inspection’s report, that the said member “did not fulfil or improperly fulfilled, in a grave, repeated and unjustified manner, the prerogatives stipulated by law.”

Prosecutors from all prosecutor’s offices will remain in office only if they meet the conditions included in the new legal provisions.

The GEO came into force the moment it was published in the Official Journal.

Justice Minister Tudorel Toader presented on Monday, after the Government meeting, several provisions of the GEO, including the one raising the seniority needed to be appointed Prosecutor General, First Deputy Prosecutor General and Deputy Prosecutor General, and Chief Prosecutor of the DNA and DIICOT.

“The minimum seniority is 8 years now and it will be 15 years. At the Justice Ministry, when those interviews take place, the Venice Commission recommends we show more transparency. We took over the CSM model and in the future the said interviews will be broadcast live, will be archived, will be viewable by anyone interested,” Toader emphasised.

Another modification raises to 10 years the seniority needed to work as prosecutor within the DNA or DIICOT.

“The GEO also consolidates the statute of prosecutor on secondment at the DNA or DIICOT, in the sense that at present the Prosecutor General can dismiss them if he enforces against them the most lenient sanction – a warning. So, we’ve eliminated the Prosecutor General’s ability to dismiss [them] in the presence of the lowest sanction. One observation here which is only liable to emphasise the fact that the future prosecutors who want an office within the section investigating judiciary crimes will benefit from the rights of prosecutors on secondment,” the Justice Minister also explained.

Another amendment introduced by the GEO is that the Justice Minister will be able to ask the Judicial Inspection to establish whether there are clues pointing to disciplinary offences on the part of the prosecutors. Tudorel Toader brought as an argument the authority that the Justice Minister has over prosecutors, authority conferred by the Constitution.

“Obviously, this authority would be purely declarative if you didn’t have also a juridical instrument to intervene. (…) I’ve been a minister for one year and a half and I’ve never used this instrument. I also wish I won’t have to,” Toader pointed out.

Referring to the dismissal of CSM members, the minister said he finds it necessary to eliminate from the law the provision that says that CSM members can be dismissed if they lose the confidence of those who elected them, because confidence is subjective and cannot be quantified. Toader said that the Venice Commission shared this opinion too and took over procedural elements proposed by the CSM in this regard.

The early retirement of magistrates has been postponed for the end of 2019, to avoid a personnel deficit crisis, the Justice Minister also announced.

“We have decided to postpone early retirement at 20 years for the end of 2019. The Venice Commission would say that it would be a problem if magistrates were to retire after 20 years of actual work, I understand we would be talking about 2,100. That doesn’t mean all would retire on the same day. The proposal came from the CSM, the CCR validated it, the Commission said there is a problem, because a personnel deficit would be created. So, to maintain balance, to respond to the Venice Commission’s concerns, we’ve decided to postpone for the end of 2019, let’s see how many retire, how many enter the system and it will be decided at the end of next year,” the minister explained.

Toader also said that an analysis will be made at the Public Ministry’s level to see how many prosecutors on secondment meet the legal criteria to hold their offices. At the same time, the ongoing mandates of magistrates on secondment will not be terminated.

Toader also pointed out that one of the Justice Ministry’s secretaries of state has resigned.

“The judicial laws, they too are perfectible. Other modifications will probably be necessary, but I’ve went twice at the Venice Commission, I took the draft GEO with me, not to ask for an endorsement but to discuss the coordinates of the new regulation in line with European standards. On Thursday I will go to Venice and this GEO will also be debated and will be integrated into the preliminary opinion. My hope is that the final opinion takes note of the fact that, albeit partially, Romania falls in line with European standards from this standpoint,” Toader stated in conclusion.

 

Toader and Dragnea discuss GEO on judicial laws in House Speaker’s office. Dragnea: I saw the text of the ordinance on judicial laws in the Official Journal

Justice Minister Tudorel Toader has met House Speaker Liviu Dragnea in the latter’s office at the Palace of Parliament. PSD President Liviu Dragnea says he saw the final text of the emergency ordinance on judicial laws in the Official Journal and did not discuss it with Justice Minister Tudorel Toader.

“According to this two-year propaganda, any law and GEO is issued for me, naturally. I’m not interested if that prosecutor remains within the DNA or not. Firstly, it’s manipulation: if the lady leaves, the dossier will be blown up. I understand she isn’t leaving. Anyone is free to attack this ordinance. From what I know, Mr Toader went to the CSM and to Strasbourg prior to that. There is wide support for experienced prosecutors working within the superior structures of the PG, DNA and DIICOT,” the PSD President stated on Wednesday.

Asked what happens with the prosecutors who no longer meet the seniority criteria, Dragnea said: “They go out into the streets, are the streets all right? (…) From what I understand from Mr Toader, the level of professional experience within these elite units should be higher. Mr Toader considered it must be 10 years.”

Asked whether the provisions that concern the seniority criteria that must be met by DIICOT, DNA and PG prosecutors provide for the future, Dragnea said: “It’s probably being discussed at the CSM.”

The PSD President also stated that he saw the final text of the ordinance in the Official Journal.

“I’m not my colleagues’ commenter. On the part of my colleagues there is come discontent that I do not share. I’ve seen the text published on a famous website and then the text of the GEO published in the Official Journal,” the PSD leader stated.

 

Toader after talking with Dragnea: We discussed the adopted GEO

 

Justice Minister Tudorel Toader stated on Wednesday, referring to his meeting with Liviu Dragnea, which lasted several minutes, that the talks focused on the emergency ordinance on judicial laws and his visit to the Venice Commission.

“Tomorrow afternoon I’ll leave for the proceedings of the Venice Commission. We talked about the adopted GEO, it took over some of the recommendations from the Commission’s preliminary opinion. At the Commission, I will present the legislative developments in the sense of the Commission’s preliminary opinion, participating with an interest in seeing the final form of the opinion,” Tudorel Toader stated after his meeting with Liviu Dragnea, which lasted several minutes.

The Justice Minister added that he did not go to the Venice Commission to ask for approval.

“I didn’t go at the Commission to ask for approval, to obtain an endorsement of the final form of the bill without prior talks with national decisionmakers. I went there not on my own but within the limit of a mandate of representation, of discussion, from the Romanian Government. Based on this, we’ve had several discussions on different days,” Toader added.

Tudorel Toader went to Parliament directly from the CSM headquarters, where discussions focused on the applicability of the ordinance on judicial laws, which raises to 10 years the seniority that must be met by DNA, DIICOT and PG prosecutors.

When leaving the CSM, Toader did not point out whether the talks there focused on the ordinance providing for the future or whether prosecutors that are currently members of the aforementioned bodies are also concerned.

 

CSM: Ordinance on judicial laws provides only for the future. No prosecutor should leave

The CSM’s Section for Prosecutors unanimously decided on Wednesday to recommend that the provisions of the GEO on judicial laws provide only for the future, CSM Vice President Codrut Olaru announced, adding that in the opinion of CSM members no prosecutor should leave.

“After deliberations, the Section for Prosecutors unanimously took note of the requests lodged by the Prosecutor’s Office attached to the High Court of Cassation and Justice, DIICOT and DNA, and recommends that the provision of Article VII of GEO no.92/2018 be interpreted in the sense that the conditions stipulated for holding office within the Prosecutor’s Office attached to the High Court of Cassation and Justice, DIICOT and DNA, as well as within the rest of the prosecutor’s offices, are provided for the future,” Superior Magistracy Council (CSM) Vice President Codrut Olaru stated.

Asked who are the prosecutors who will leave the prosecutor’s offices, Olaru pointed out that in the opinion of the members of CSM’s Section for Prosecutors no prosecutor should leave. “Nobody leaves, in our interpretation, considering the directives of the law which stipulate, in our view, the seniority requirement from the date the law appears, the emergency ordinance provides for the future, so we’re not talking retroactively. Basically, we want to issue a message of stability regarding the prosecutors’ activity within the entire Public Ministry, because basically we’re not talking solely about the special structures, we’re not talking solely about the activity of the Prosecutor General’s Office, which could be affected by an interpretation other than the one we came up with during today’s meeting and, consequently, it’s a clear message I want to address to all prosecutors, that of stability,” the CSM Vice President added.

The interpretation was later relayed publicly by the Section for Prosecutors too, via a press release.

“The Section for Prosecutors has unanimously recommended that the provisions of Article VII of Emergency Ordinance no.92/2018 be interpreted in the sense of providing for the future in what concerns the requirements needed to hold office within the Prosecutor’s Office attached to the High Court of Cassation and Justice, the Directorate for Investigating Organised Crime and Terrorism, and the National Anticorruption Directorate, as well as within the rest of the prosecutor’s offices,” reads a press release remitted to MEDIAFAX.

Article VII of the GEO on judicial laws, the article that caused controversies, points out that “the prosecutors who, on the date the present emergency ordinance comes into force, are carrying out their activity within the Prosecutor’s Office attached to the High Court of Cassation and Justice, the Directorate for Investigating Organised Crime and Terrorism, and the National Anticorruption Directorate, as well as within the rest of the prosecutor’s offices, remain in office only if they meet the conditions stipulated by Law no.303/2004 on the statute of judges and prosecutors, republished, with subsequent amendments and supplementations, and by Law no.304/2004 on the structure of the judiciary, republished, with subsequent amendments and supplementations.”

The new provisions included in the emergency ordinance, which was published in the Official Journal on Tuesday, impose a seniority of at least 10 years in the magistracy for prosecutors working within the Prosecutor General’s Office, DNA and DIICOT.

 

Reactions

 

PG Lazar about GEO on justice laws: We are checking for possible infringements of Constitution to go to the Ombudsman

Prosecutor General Augustin Lazar on Tuesday stated that the Government Emergency Ordinance (GEO) regarding the justice laws has created numerous problems of a functional nature for the prosecutors’ offices, especially for the DNA (National Anticorruption Directorate), with the Public Prosecution Service currently checking for possible infringements of the Constitution, so as to address then the Ombudsman, who can notify the Constitutional Court.

“This emergency ordinance has created numerous problems of a functional nature for the prosecutors’ offices, especially for the DNA, and we are now analyzing it to find the possible violations of the Constitution. The solutions are going to be identified in the next days. We are checking the ordinance to discover the possible infringements of the Constitution, in order to approach the Ombudsman afterwards and the latter to notify further the Constitutional Court of Romania,” Lazar told AGERPRES.

 

Catalin Predoiu: Minister Toader has basically shut down the DNA; Ordinance sends home dozens of DNA prosecutors, stopping probes, deterring the entire institution

House lawmaker Catalin Predoiu (PNL) has stated that with the ordinance on judicial laws, published in the Official Journal on Tuesday, Justice Minister Tudorel Toader “has basically shut down the DNA.” “The ordinance sends home dozens of DNA prosecutors, thus stopping probes, deterring the entire institution, encouraging the world of corruption,” Predoiu said.

“With Article VII of the Ordinance published today, Minister Toader has basically shut down the DNA. Thus, he offers, with a little delay, an answer to the question that Liviu Dragnea publicly asked: ‘Does the DNA still exist?!’. The answer is no, it no longer exists starting today,” Catalin Predoiu wrote on his Facebook page on Tuesday evening.

According to him, “the ordinance sends home dozens of DNA prosecutors, thus stopping probes, deterring the entire institution, encouraging the world of corruption.”

“And, starting today, the CVM is an acronym for the Merry High-level Corruption,” Predoiu added.

 

European Commission on GEO on judicial laws: We are following the developments with concern

On Wednesday, the European Commission informed that it is following with concern the recent developments concerning the amendments to the judicial laws and that it will “closely” analyse them and will then draw “the appropriate conclusions.”

“As First Vice President Frans Timmermans clearly said at the European Parliament debate, as we continue dialogue with the Romanian authorities, in the spirit of cooperation and in the context of the Cooperation and Verification Mechanism, the European Commission will draw the appropriate conclusions in case the amendments to the judicial laws, to the Criminal Codes, to the legislation on conflict of interest and on fighting corruption disregard these concerns. So, we are following the latest developments with concern and we will closely analyse the amendments. As we have already said on numerous occasions, the existence of an independent and professional judiciary is very important,” reads a point of view that an EC spokesperson remitted to MEDIAFAX on Wednesday.

 

PNL to inform Venice Commission about GEO on judicial laws

The National Liberal Party (PNL) will send a letter informing the Venice Commission about the emergency ordinance amending the judicial laws, an ordinance that the Government adopted on Monday, PNL Spokesman Ionel Danca stated on Wednesday.

“Continuing the overtures that PNL has initiated to stop these toxic overtures on the part of the PSD-ALDE coalition of lawbreakers, we will inform the members of the Venice Commission about this legislative act, about the way this ordinance was adopted and especially about the despicable way in which the Venice Commission’s prestige was invoked in order to in fact enact provisions that run completely counter to the observations made by Venice Commission experts,” PNL Spokesman Ionel Danca stated.

On Wednesday, the PNL lodged with the Ombudsman a request for it to bring a constitutionality challenge against the GEO amending the judicial laws.

“Along with my colleague, House lawmaker Ioan Cupsa, Deputy Chairman of the special committee on the judicial laws, I lodged with the Ombudsman a request for it to ask the CCR to analyse the constitutionality of the provisions included in the GEO drafted by Tudorel Toader,”

Ioan Cupsa: “It’s regrettable that we are so often forced to resort to the CCR, directly or via the Ombudsman, in order to correct what those in power are doing.” “They’ve trampled. This GEO is unconstitutional,” PNL Spokesman Ionel Danca stated.

He claimed that if Ombudsman Victor Ciorbea does not fulfil his prerogatives then the PNL will file a criminal complaint against him.

“Regarding today’s situation, in which the Ombusdman is on vacation, we believe it is absolutely an impermissible, unacceptable defiance. It’s the last drop for Victor Ciorbea in the office of Ombudsman. If he doesn’t understand now, in the eleventh hour, that he should fulfil his prerogatives, there is the possibility of a criminal complaint against Mr Victor Ciorbea, who hasn’t delegated his prerogatives during this period of vacation and who, through this lack of a decision that would settle the situation we are in, renders impossible the exercise of the office of Ombudsman. He is the enemy of the people,” Danca added.

 

Ombudsman  is in a holiday in USA until October 30; the petitions related to the GEO on judicial laws are being analyzed, and then a decision will be made

Ombudsman Victor Ciorbea mentions he will be on a holiday in USA between October 17 and 30; this holiday was scheduled six months ago, and the petitions related to GEO on the Laws on Justice are being analyzed and then a decision will be made.

“Ombudsman Victor Ciorbea mentions that the period of his holiday, which he will spend in the United States of America (from October 17 to 30, 2018) was scheduled 6 months ago, and the flight tickets and hotel services have been paid since September 2, 2018”, reads a release of the Ombudsman’s spokesman.

He also brought clarifications regarding the requests to challenge the GEO on the Laws on Justice to CCR.

“Regarding the requests to submit a direct constitutional challenge on the GEO no.92/2018, Ombudsman states that all the petitions related to this matter are being analyzed by the specialists of the Bureau for Constitutional Litigations and Appeal in the Interest of the Law, who will examine the arguments of the complainants, the jurisprudence of the Constitutional Court of Romania, of the European Court of Human Rights, the comparative law in this matter, as well as the conclusions of the European Commission for Democracy through Law (the Venice Commission), and then a decision will be made”, according to the release.

 

Liberals  to table simple motion against Tudorel Toader

PNL will table, later next week, a simple motion against Justice Minister Tudorel Toader, following the adoption of the Government emergency ordinance amending the judicial laws, PNL Spokesman Ionel Danca announced on Wednesday.

“Aside from today’s overture, given the grave situation of the Romanian judiciary, the PNL has decided to initiate a simple motion against Justice Minister Tudorel Toader, which will be tabled next week, regarding the entire activity of this character, of this political tool of Liviu Dragnea, at the helm of the Justice Ministry, who despicably uses the observations of international bodies to apply once more a blow to the Romanian judiciary, thus securing his title as executioner of the independence of the judiciary,” PNL Spokesman Ionel Danca stated.

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