The Ministry of Justice (MJ) has put to public debate on Monday the draft Emergency Ordinance amending certain provisions of the controversial Gov’t emergency ordinance GEO 7/2019.
According to the preamble to the draft, the changes are necessary as a result of the “negative reactions as regards certain legislative solutions” contained in GEO 7/2019 and “noting that, at present, these dissatisfactions of certain members of the magistrate’s body affect the optimal functioning of the judiciary courts and of the prosecutors’ offices attached to them and causes the danger of dividing the society.”
The Justice Ministry finds that the negative reactions regarding certain legislative solutions contained in this normative act come mainly from the representatives of the institutions of the judiciary – the Superior Council of Magistrates, the High Court of Cassation and Justice, the Public Prosecution Service, as well as the professional associations of the judges and prosecutors.
“These reactions particularly focus on the intervention carried out in the matter of the delegation of prosecutors to the leading positions with the prosecutors’ offices for which the nomination is conducted by the President of Romania, (…) the legislative amendment which gave the judges the possibility to run and to be appointed to the highest leadership positions within the Prosecutors’ Office, in the latter case an impairment of the status and independence of the judges being claimed,” the draft amendment of GEO 7/2019 shows.
The MJ proposes the return to the legislative solution prior to the entry into force of GEO 7/2019 regarding the remuneration of IT specialists in the judiciary system, as it was included in Law no. 304/2004 on the judicial organization, a solution which also ensures their uniform salary regime.
“Paragraph 1 of Article 54 shall be amended and shall have the following content: (1) The Prosecutor General of the Prosecutor’s Office attached to the High Court of Cassation and Justice, his first deputy and deputy, the chief prosecutor of the National Anticorruption Directorate, his deputies, the chief prosecutor of the Directorate for the Investigation of Organized Crime and Terrorism, his deputies, as well as the chief prosecutors of these Prosecutors’ Offices, are appointed by the President of Romania, at the proposal of the Minister of Justice, with the opinion of the Prosecutor’s Section with the Superior Council of Magistrates, from among the prosecutors who have a minimum seniority of 15 years as a judge or prosecutor, for a period of three years, with only one possibility of re-appointment,” the draft also shows.
Justice Minister Tudorel Toader was stating on February 28 that a new emergency ordinance was drafted, which will repeal several provisions of GEO 7/2019, which are the object of the protest of magistrates.
“The Draft Emergency Ordinance for amending GEO 7/2019 was drawn up at MJ [Ministry of Justice, ed.n.]. The draft is elaborated in keeping with the issues discussed by the prime minister with the President of the CSM [Superior Council of Magistrates, ed.n.], AMR [the Association of Romania’s Magistrates, ed.n.], UNJR [ed.n], the Romanian Prosecutors’ Association, the IJ [the Judicial Inspection, ed.n.] and the Judiciary Crime Investigation Section. The amendments refer to the (…) repeal of Article 54 – which stipulates that judges, together with prosecutors, may become high-level prosecutors and that the advisory opinion for high-level prosecutors is no longer given by the Prosecutor’s Section, but by the CSM plenary – the previous provision is thus restored, namely that only prosecutors can become high-level prosecutors and the advisory opinion is given by the Prosecutor’s Section of CSM,” Toader said in an interview with private TV broadcaster Antena 3.
He specified that the new draft will also solve the problem of wage differences and wage losses for IT workers in the judiciary – what they have lost through the wage law, on the one hand, and the fact that there are still salary differences, although they carry out the same specialised activity in the service of the judiciary.
Thirdly, the Minister added, two legal correlations relating to the jurisdiction of the Judicial Inspection are removed, regarding those who no longer have the right to initiate disciplinary proceedings.
On February 25, Prime Minister Viorica Dancila invited at Victoria Palace a representative of every magistrates’ associations as well as representatives of the CSM to discuss the legislation in the field of justice.
On February 19, the Government adopted an emergency ordinance amending the laws of justice and banning delegations to leadership positions within the the Public Prosecution Office.
DIICOT continues its protest after the amendment of GEO 7. White armbands until March 22. “The amendment proposals are necessary but not sufficient”
The Directorate for Investigating Organized Crime and Terrorism (DIICOT) has decided to continue its protest by wearing an armband until March 22. The Directorate appreciates that GEO no.7 as it was amended, doesn’t include provisions related to the Department for Investigations and asks the Ombudsman to notify CCR, and the Government to remove the provisions related to structure.
The prosecutors’ general assembly of the Directorate for Investigating Organized Crime and Terrorism adopted on Monday, with a majority of 163 votes of the total of 218 present prosecutors, the continuation of the protest with the change of the form of protest; during the period of March 4 to 22, the prosecutors of the Directorate will wear, as a sign of protest, a white armband during their working program.
Also with a majority of 22 votes, DIICOT adopted the following opinion: “The prosecutors of the Directorate for Investigating Organized Crime and Terrorism have taken not of the public statements of the President and Vice President of the Superior Council of Magistracy and of the Justice Minister, appeared in the newspapers of March 1, 2019, related to the discussions on the controversial amendments to the Laws on Justice, brought by the Government’s Emergency Ordinance no.7/2019, and on the proposals regarding its amendment. The DIICOT prosecutors continue to be worried towards the manner by which the executive power, as the delegate legislator, understands to adopt amendments through emergency ordinances, on the ‘Laws on Justice’, which are organic normative acts on whose clarity and predictability depends the normal functioning of the judiciary itself”.
In their point of view sent to the press through a press release, the DIICOT prosecutors also mention that these series of substantial amendments initiated a few months ago were and are likely “to seriously affect” the both the activity of the Superior Council of Magistracy and the Public Ministry, and the smooth functioning and the stability of the judiciary as a whole, with consequences in terms of the manner of making the act of justice.
“The prosecutors of the Directorate for Investigating Organized Crime and Terrorism remind that on February 25, 2019, by the decision of the general assembly, they protested against the multitude of obviously unconstitutional issues included in the GEO no.7/2019, consisting of:
– unobserving the competences given by the law to the Superior Council of Magistracy, by making impossible for it to issue the opinion provided by Art.38 par.(3) of the Law no.317/2004. The Department for Prosecutors of the Council wasn’t informed on the content of the normative act, therefore it wasn’t able to analyze and formulate a point of view to be presented in the Plenum of the Superior Council of Magistracy, which would have reflected the opinion of the prosecutor magistrates. Thus, the members of the Department for Prosecutors have been directly prevented from exercising their representative constitutional mandate. Unobserving this legal requirement voids of content the invoked legal prevision and the role of the Superior Council of Magistracy, as the guarantor of the independence of justice, as provided by Art.133 par.(1) of the Constitution, leading to breaching the principle of the supremacy of the Constitution and the laws, stated by Art.1 par.(5) of the Constitution, and the principle of the loyal collaboration between the state authorities, as it is defined by the constant case law of the Constitutional Court of Romania;
At the same time, after seeing the proposals for amending GEO no.7, sent by the Superior Council of Magistracy and revealed to the public on March 1, the DIICOT prosecutors find that the draft doesn’t contain amendments related to the new paragraph (6) of Art.881 or to Art.888 par.(1) let.(d) of the Law no.304/2004.
“In this context, we remind that, referring to the provisions related to the Department for Investigating Judiciary Offenses (S.I.I.J), the prosecutors of the Directorate have constantly expressed themselves against its establishment and operation, appreciating that this action denotes a punitive approach towards the judiciary as a whole; the reasons of concern are also found in the Venice Commission’s and GRECO Reports and in the last CVM Report. In its current form, by the way of organizing and functioning of S.I.I.J., there has been created de facto a category of citizens who benefit from a total immunity of criminal jurisdiction, namely the S.I.I.J. prosecutors, which contravenes Art.16 par. (1) and (2) of the Romanian Constitution: ‘Citizens benefit from the rights and freedoms stated by the Constitution and other laws and have the obligations provided by them’, respectively ‘No one is above the law’”, the DIICOT prosecutors stated.
Liberals wearing white armbands in sign of solidarity with magistrates’ protest on GEO 7
The Liberal MPs wore on Monday white armbands in solidarity with the magistrates’ protest against GEO 7.
“I recommended to the PNL [National Liberal Party, ed.n.] representatives, especially MPs and MEPs, that today we wear these armbands as a sign of solidarity with the magistrates ‘protest against OUG 7, because today there will be a large protest in many prosecutors’ offices, in many courts, tribunals, and our message is one of solidarity and support for the legitimate claims of magistrates, namely the repeal of OUG 7 and the dissolution of this Magistrates’ Investigation Section which has took on the appearance of an independent platoon of execution, in which the Minister of Justice gives the command to fire, at Dragnea [PSD leader Liviu Dragnea, ed.n.]’s order,” PNL Chairman Ludovic Orban stated after the PNL Executive Bureau meeting.
Asked if PNL would initiate other actions, he approved.
“We are in an information campaign so that Romanian citizens know about what is happening in OUG 7 and other OUGs that have been covertly issued by the Government, and PNL’s point of view is simple: we support the independence of the justice, the functioning of the judiciary as power in its own right in the state, we support the free access of citizens to justice and respect for the fundamental rights and freedoms of Romanian citizens,” Orban said.