According to the guidelines set out in the judgment of the Court of Justice of the European Union from 18 May 2021 in Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România and Others, reproduced in the judgment of 21 December 2021 in Joined Cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, Euro Box Promotion, Romania must comply with Decision 2006/928 establishing the CVM and the reports adopted by the European Commission on that basis in order to comply with the benchmarks. “In particular, Romania may not adopt or maintain in the areas covered by the benchmarks measures which would risk jeopardising the result they foresee.” (para. 177).
In the Annex IX to the Act of Accession entitled ”Specific commitments undertaken and requirements accepted by Romania at the conclusion of the accession negotiations on 14 December 2004 (referred to in Article 39 of the Act of Accession)”, at points I (3), (4) and (5), there are listed some requirements relating to: an action plan and a reform strategy for the judiciary (3); the considerably speed up of the fight against corruption, in particular against high-level corruption, by ensuring a rigorous application of anti-corruption legislation and effective independence of the anti-corruption prosecutor’s office (…); the Anti-Corruption Prosecutor’s Office (the actual National Anti-Corruption Directorate) must be provided with staff, financial and training resources and the necessary equipment to fulfil its vital function (4) and implementing the anti-corruption strategy and action plan in this regard (5).
Thus, among the commitments Romania has made through its accession to the European Union a paramount significance has that of demonstrating the sustainability and irreversibility of the progress in the fight against corruption, which involves the institutional strengthening of the National Anti-Corruption Directorate (DNA), whose results have been appreciated and encouraged in numerous reports by the European Commission.
However, the fulfilment of these commitments is severely jeopardised by the existence of the Special Section (SIOJ). Moreover, the CVM Report of 22 October 2019 found that “The changes related to the acceleration of the establishment of the Special Section for the Investigation of magistrates and the extension of its competence or successive changes to the procedural requirements and rules for appointing prosecutors (including senior staff) of the National Anti-Corruption Directorate (DNA) have fuelled even more the sources of concern and the lack of confidence in these changes.”
In addition, the CVM reports strongly recommend taking into account the recommendations made in the GRECO reports and the opinions of the Venice Commission (both Council of Europe bodies), which expressed serious concerns about the changes to the justice laws in 2018-2019.
By Opinion No 924/2018, the Venice Commission stated that: “We can wonder whether the use of specialised anti-corruption prosecutors, with stronger procedural guarantees for the judges and prosecutors under investigation, without setting up a special structure for this purpose, would not be a more appropriate solution if the legislator’s objective were indeed to combat and sanction corruption in the judiciary. The Venice Commission has recognised in its work the advantages of calling on specialised prosecutors, combined with appropriate judicial review, for the investigation of very special areas or crimes, including corruption, money laundering, trafficking in influence, etc. Furthermore, for other offences, the ordinary judicial framework should be applied, as in the case of any citizen of Romania (para. 88).
In its Opinion No 950/2019, the Venice Commission also suggested that „The plenary of the SCM already has a large majority of judges (there are nine judges and only five prosecutors). It is not clear why this dominant proportion is further strengthened in the context of appointments to the Section, where the opinion of the Section of Prosecutors on a candidate is replaced by the opinion of the judges — i.e. the “selection committee” dominated by judicial members of the judiciary. This can only be explained by a strong distrust by the Government towards the current memberes of the prosecutors Section of Superior Council and by the desire to reduce their role. However, this objective is not legitimate: The government should not be able to influence the balance between members of a constitutional body whose main function is to defend the independence of judges and prosecutors from the executive. The proposed appointment system is not compatible with the institutional conception of the SCM as described in the Constitution.” (para. 37). “They decided to weaken the SCM prosecutors’ wing (as regards the appointments of senior prosecutors in the Section) and to strengthen the influence of the Minister of Justice (as regards the general system of appointments), eliminating other external checks (such as the President’s power to disagree with the Minister’s proposal). As a result, prosecutors lost most of their influence as regards the appointments of high-ranking prosecutors within the Section under the transitional legislative regime, both in relation to the Minister or to the judicial wing of SCM. The Venice Commission is not persuaded that this is the correct answer to the abuses allegedly committed by some prosecutors in the past. The Venice Commission reiterates its previous recommendation to reconsider the need for the establishment of the Section. In any event, it is a fortiori ill-advised to appoint to the Section top prosecutors who do not enjoy confidence of their colleagues from the Prosecutor’s Section of the SCM (which does not exclude, at the same time, that judges may also be involved in the selection of candidates). It is recommended to develop a system of appointment scheme which would give the Prosecutor’s Section of the SCM a key and proactive role in the process of appointment of candidates to any top positions in the prosecution service, in the Section or elsewhere.” (para. 38)
Last but not least, through Opinion 1036/2021, the Venice Commission welcomed “the intention of the Romanian authorities to reform the judicial system and restore the competence of specialised prosecutor’s offices such as DNA and DIICOT” and understood “that the first urgent step in this wider reform is to dismantle the SIOJ” (par. 68).
GRECO in the Ad hoc Report on Romania (Rule 34) of 23 March 2018 found that: “(…) this new section will prosecute offences even if other persons are involved, together with magistrates (e.g. civil servants, elected officials, businessmen, etc.), in accordance with the wording of the proposed amendments to Article 88.1 (1) of Law No 304/2004. As many have pointed out, this could lead to conflicts of jurisdiction with existing specialised prosecutor’s offices (DNA, DIICOT, military prosecutor’s offices), even if the authorities recall that such conflicts are normally sorted out by the Prosecutor General. More importantly, there are also fears that this section could be easily misused to remove cases handled by the specialised prosecutor’s offices or to interfere in sensitive high- profile cases if complaints against a magistrate were lodged incidentally in that case as it would automatically fall under the competence of the new section (a decision would then need to be taken to split that case under the general criminal procedure law on the grouping/splitting of cases, for it to remain in the hands of the originally competent prosecutors)” (para. 34)
By the draft law on the dismantle of the Section for Investigation of Offences in Justice, published on the website of the Ministry of Justice on 21 January 2022, the initiator chose to propose the formal abolition of this section, while retaining most of the problematic elements.
Corruption offences committed by magistrates are specialised and can be better investigated and prosecuted by specialised staff. Moreover, the investigation of such crimes often requires both persons with specialised expertise in certain areas and sufficient technical means, which cannot be ensured in the system proposed by the project published on 21 January 2022 by the Ministry of Justice,[1] which does not offer to the potential prosecutors with previous experience in corruption cases the autonomy from the general prosecution system.
Thus, the Venice Commission, in its opinions, supported the establishment of units specialised in the investigation/prosecution of corruption, which enjoy some autonomy from the general prosecution system. The model for such units varies. In some cases, the specialised prosecutor’s office remains formally part of the general structure of the prosecutor’s office but as an autonomous unit, so that it does not receive instructions from higher-ranking prosecutors or from the Government. In other cases, the unit is fully independent (see Final Opinion No 9/2016 on the revised draft constitutional amendments on the judiciary in Albania, paragraphs 46 and 47).
In addition, it cannot be argued that the necessary independence, impartiality and guarantees were not provided by sharing competence between the PICCJ — DNA — DIICOT — PCA, units with more than 700 prosecutors, but they are totally assured by the appointment of a maximum 12 prosecutors out of a total of 24 from the PICCJ level and a maximum of 2 prosecutors at each prosecutor’s office attached to the courts of appeal (maximum 30 at this level). The text of the draft law leaves to the plenum of the Superior Council of Magistracy the number of prosecutors specifically appointed in such cases, making thus unpredictable and ineffective (given the internal conflicts existing in the SCM, 2, 3, 5, 10 prosecutors can be appointed at the discretion of this body, which is likely to seriously affect the effectiveness of the proposed new system). No time limit shall be set for such prosecutors to be specifically appointed nor any solution in the event of their refusal to accept the designation, issues affectinf their independence and impartiality.
The involvement of the Chief Prosecutor of the Criminal Prosecution and Forensics Section of the Prosecutor’s Office attached to the High Court of Cassation and Justice, a magistrate appointed on the proposal of the Minister of Justice, in the prosecution activity, when there is no other designated prosecutor within the prosecution office (i.e. immediately from the entry into force of the law until the appointment of the SCM of prosecutors, appointment carried out in a totally unpredictable procedure), is extremely problematic, especially in the context of a possible deadlock in the appointment of a sufficient number of prosecutors by the SCM Plenary.
The investigation of magistrates for corruption has been shaped, as a result of amendments to the laws of justice, in a personal competence, but institutionally allocated; however, we are witnessing the unlawful dissipation and attribution of that competence to prosecutors as physical entities, evading the institutional competence, by using the instrument of „designation”.
The selection of prosecutors in personam designated is carried out without transparency, without a competition on meritocratic criteria: the “designation” is made by the plenum of the SCM from a list drawn up by the Prosecutor General of the Prosecutor’s Office attached to Courts of Appeal (PCA) and by the Prosecutor General of the Prosecutor’s Office attached to the High Court of Cassation and Justice, which contains the names of the prosecutors whom they consider eligible, without the selected prosecutors having been previously questioned about their motivation or other criteria and without giving the possibility for those who have not been selected to contest the non-inclusion in the list. From this list, the Prosecutor General of the Prosecutor’s Office attached to Courts of Appeal and the Prosecutor General of the Prosecutor’s Office attached to the High Court of Cassation and Justice indicate one or more persons they deem appropriate, but the SCM plenum is not bound by these proposals, nor is it obliged to organise an interview with the candidates. However, these rules are not at all similar to those concerning the establishment of the European Public Prosecutor’s Office or the appointment of candidates for the position of European Delegated Prosecutor in Romania, such comparison proposed by the initiator of the draft law being not sustainable.
Equally excessive and discretionary is the dismissal of appointed prosecutors, as the term “inefficiency” is not defined in any way and can thus also be invoked in relation with prosecutors who achieve results but are arbitrarily considered “ineffective”. These rules appear to be unclear and unforeseeable, contrary to Article 1(5) of the Romanian Constitution (see also Decision No 384/2020 of the Constitutional Court).
The appointment and dismissal of these prosecutors will be carried out, according to the draft law, by the SCM Plenary, although the Venice Commission has requested a key and proactive role in the appointment process of prosecutors within the Prosecutors Section of the SCM.
At the same time, maintaining the system of transferring corruption files from the National Anti-Corruption Directorate to the new prosecutors specifically appointed within the prosecution and forensic section of the Prosecutor’s Office attached to the High Court of Cassation and Justice, if are investigated other persons for whom, according to the law, the jurisdiction to conduct criminal proceedings belongs to the Prosecutor’s Office attached to the High Court of Cassation and Justice, raises the same issues as the norms deeply criticised by international bodies concerning the SIOJ.
Also, contrary to Opinion no 1036/2021 issued by the Venice Commission, there is no reform in the new draft regarding the situation of vexatory complaints made by private individuals against judges and prosecutors (in many situation, criminal complaints and in a much greater number than the time when DNA was criticized for having too many such complaints pending).
In conclusion, the new draft on the dismantle of the Special Section represents an inadequate compromise, in breach of the CVM Decision and the Venice Commission Opinions, and in particular in breach of Romania’s obligations as a Member State of the European Union and of the Council of Europe.
The natural solution remains the unconditional abolition of the Special Section and the re-establishment of the competences of specialised prosecutor’s offices, such as DNA and DIICOT, as proposed by the relevant European bodies.
The Romanian Judges’ Forum Association
The Association of the Movement for Defence of the Prosecutors’ Statute
The Initiative for Justice Association
[1] See webpage https://www.just.ro/proiect-de-lege-privind-desfiintarea-sectiei-pentru-investigarea-infractiunilor-din-justitie/
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