We, undersigned professional associations of judges and prosecutors, took note of “The draft law on the dissolving of the Section for the Investigation of Offenses within the Judiciary, as well as for the modification and completion of some legal acts in the field of justice”, put for public debate today by the Ministry of Justice.
On this occasion, we found that, in addition to the provisions regarding the dissolving of the Section for the Investigation of Offenses within the Judiciary and the return to the competence of jurisdiction of the prosecutors’ offices existing prior to the establishment of this section, the draft law also contains a series of provisions, qualified by the Ministry of Justice, through the related press release, as “sound procedural guarantees meant to protect the independence of the magistrates from any judicial errors or possible abuses”.
By the proposed provisions, it is intended that charging of a judge or a prosecutor should be authorised by the Prosecutor General of the Prosecutor’s Office attached to the High Court of Cassation and Justice, and that referring a case concerning a judge or a prosecutor to a court of law should be approved by the Section for Judges or, as the case may be, by the Section for Prosecutors of the Superior Council of Magistracy.
We point out that such provisions have never been demanded by honest judges and prosecutors in Romania.
Such filters in front of criminal liability of judges and prosecutors are obviously unconstitutional, because they place magistrates above the ordinary citizens. Moreover, if such changes were to take effect, the path to the creation of privileges for other social categories, such as parliamentarians, would be opened. The proposal of the Ministry of Justice is therefore completely inexplicable. We also point out that the Venice Commission was not even notified, in order to issue an opinion, absolutely necessary in such a context.
By giving the approval for referring the cases to the courts of law, both sections of the SCM would become a kind of hierarchical superiors of the case prosecutors, which would contravene art. 132 para. (1) of the Constitution of Romania. According to the constitutional provision, the prosecutors carry out their activity in accordance with the principle of legality, impartiality and hierarchical control, but this hierarchical control is performed exclusively within the Public Ministry, by hierarchically superior prosecutors, and not by administrative bodies outside the Public Ministry. The fact that the SCM sections have the prerogative to approve the taking of procedural of some intrusive procedural measures (search, detention, preventive arrest or house arrest) against the magistrates under investigations is not a valid argument, as these measures do not belong to the essence of the criminal investigation, while bringing the case to court does.
From another point of view, after the principle of the “separation of the careers within the judiciary” was recently adopted and applied almost without exceptions, the necessity of the involvement of some administrative, extrajudicial bodies (as the Section for judges of the SCM) in the prosecutors’ activities cannot be justified
Also, the proposal that the charging of a judge or prosecutor to be made only with the prior authorization of the Prosecutor General of the Prosecutor’s Office attached to the High Court of Cassation and Justice appears to be completely inadequate, given that the recently started procedure of selection of the high-ranking prosecutors by the Minister of Justice blatantly disregards the recommendations of the Venice Commission, GRECO and the European Commission. It undoubtedly violates the independence of the case prosecutor and creates a “super-prosecutor”, enjoying a complete impunity, because he would never approve his own standing in trial.
Last but not least, the approval of the referral made by the Section for judges of the SCM, a purely administrative body, completely distinct from prosecutor’s offices, may inflict pressure on the judges of the case during the trial.
Creating a body of incorruptible, honest and well-trained magistrates does not imply granting of such immunities which no ordinary citizen “enjoys”. According to art. 16 para. (1) and (2) of the Romanian Constitution, citizens are equal before the law and the public authorities, without privileges and without discrimination. Nobody is above the law.
Consequently, such regulations, which not even the former government (whose projects in the field of justice have been strongly criticized by the European Commission, the Advisory Council of European Judges, the Advisory Council of European Prosecutors, GRECO, the Venice Commission, etc.) dared to propose are regrettable and inexcusable, liable to cause harm to the honest body of judges and prosecutors. For that reason, their issuer must urgently take responsibility and proceed accordingly.
The Romanian Judges’ Forum Association
judge Dragoș Călin, co-president
judge Lucia Zaharia, co-president
The Association Initiative for Justice
prosecutor Bogdan Pîrlog, co-president
prosecutor Sorin Lia, co-president
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