Prosecutors’ Association asks CSM to give a negative opinion on the Laws on Justice: The proposals could seriously affect the independence of the judiciary

Romanian Prosecutors’ Association is asking the Superior Council of Magistracy (CSM) to give a negative opinion on the bill amending the Laws on Justice, proposed by the Minister Tudorel Toader, claiming that the proposals could seriously affect the independence and the functioning of the judiciary.

“This request considered the fact that the proposals related to placing the Judicial Inspection under the Justice Ministry’s authority, changing the competences of the Superior Council of Magistracy by weakening its attributions, the way of appointing prosecutors with leading positions from the Prosecution Office attached to the High Court of Cassation and justice, from the Directorate for Investigating Organized Crime and Terrorism (DIICOT) and from the National Anticorruption Directorate (DNA), as well as the changes related to the conditions of the liability of the magistrates, the conditions of admission to the magistracy, to promote magistrates, are proposals that could seriously affect  the independence and functioning of the judiciary” is the message sent by the Romanian Prosecutors’ Association.

According to CSM, the timetable of the internal activities corresponding to the procedure for issuing an opinion on this bill supposes “the consultation of the High Court of Cassation and Justice, of the Prosecution Office attached to the High Court of Cassation and Justice, of the other courts and prosecution offices attached to them, of the National Institute of Magistracy, of the National School of Registrars, of the Judicial Inspection, as well as of the professional associations of judges and prosecutors, which are invited to send to the Superior Council of Magistracy their suggestions and remarks on this bill  until September 13, 2017”, reads a press release issued by CSM.

Subsequently, all these suggestions will be centralized by the Legislation, Documentation and Litigation Division of CSM until September 20, 2017.

The consultative opinion provided by the law will be issued by the plenum of the CSM i the las week of September, 2017.

Justice Minister Tudorel Toader stated he will send the proposals on amending the Laws on Justice only to the Superior Council of Magistracy (CSM), not to DNA, General Prosecutor’s Office or DIICOT, on the ground that CSM is the only one that issues the opinion on the legislative proposals and prosecutors do not make laws, they only apply and interpret the law.

“I will not send the proposals on amending the Laws on Justice to the Public Ministry or to components of the Public Ministry, because CSM is the one that issues the opinion. CSM has a Department for judges, a Department for prosecutors and CSM is the guarantor of the Justice’s independence and the one that issues the opinion on the Laws on Justice. (…) I will send the bill to CSM, then I will wait to receive it back, I will send to the Government, and there is where the decisional proceedings will start. MJ (Justice Ministry – e.n.) is the initiator, the main issues are subject to debate” Tudorel Toader explained.

 

After many criticisms and requests of the magistrates, who claimed that they weren’t consulted and asked to see the entire bill, invoking the requirements of the decisional transparency, the bill was posted on the Justice Ministry’s website.

In the explanatory memorandum accompanying the bill on amending the Laws on Justice, the Ministry invokes provisions of the most recent report of the Cooperation and Verification Mechanism (CVM), a number of decisions of the Constitutional Court, as well as the new “realities and needs of the judiciary” that require the reformation of the legislative frame in the field.

“In the last years, there has been a deep reformation of the legislation representing the main working tool of the judiciary, made by adopting the four codes in the civil and criminal matters, who modified the competences of the courts and prosecution offices, reorganized the legal remedies, generated new kinds of cases and proceedings, caused wide reorganizations of the courts’ departments and panels. Although some of the amendments brought to the Laws on Justice have been promoted on the occasion of the laws for the implementation of the new codes, there are still also other legislative issues in this field who have to be subject to analysis and public debate” reads the explanatory memorandum of the bill on amending the Laws on Justice.

The bill on amending the Law no.303/2004 on the statute of judges and prosecutors provides that the President of Romania is removed from the procedure of appointing chief-prosecutors of the main prosecution offices, and the length of their term is extended from three to four years. Also, Judicial Inspection of CSM will be moved from the authority of this institution, under the authority of the Justice Ministry, and Justice Minister can ask the Prosecutor General or, as the case may be, the Chief-Prosecutor of DNA or DIICOT, information reports on the activity of the prosecution offices, being entitled to give written indications on the measures to be taken in order to efficiently prevent and combat criminality. The form of the bill on amending the Law on the statute of judges and prosecutors is unchanged, compared to the one presented last week by the Justice Minister Tudorel Toader.

“The President and the Vice Presidents of the High Court of Cassation and Justice are appointed by the President of Romania, at the proposal of the Superior Council of Magistracy – the Department for Judges, among the judges of the High Court of Cassation and Justice who worked at this court at least for 2 years and who weren’t disciplinary sanctioned” provides Article 53, para. (1) of the bill.

The amendment consists in introducing the condition that judges appointed in leading positions weren’t disciplinary sanctioned, which condition is currently lacking.

Another amendment provides that the President of Romania can refuse only once, motivated, to appoint a person in the leading positions of the Supreme Court. The provision is similar to the one related to the appointment of the ministers, where the President can also refuse only once and motivated the proposal made by the head of the Government to appoint a new minister in the Cabinet.

Not at last, Tudorel Toader extends the term of the President and Vice Presidents of the High Court of Cassation and Justice from three to four years.

 

 

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